Law and its ‘triple Satanic’ attributes

Justice (Rtd) Kuloba’s Bench Legacy in ‘Apollo Insurance Company Ltd v Scholastica K. Kamau & Muthanwa and Company Advocates’

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By Chrispin Bosire

“Being a lawyer is not merely a vocation. It is a public trust, and each of us has an obligation to give back to our communities. Do and act on what you believe to be right, and you will wake up the next morning feeling good about yourself.”

For a long time now, public perception has painted advocates in bad light. Some people refer to the members of the legal profession as a “necessary evil” while others simply dismiss them as cardinal agents of Satan on dry land. 

Be that as it may, advocates actually play a crucial role in solving society’s most complex problems. In so doing, they make a positive impact on general living and help humanity realise its potential. As Lord Atkin once observed, there is no profession beside which has done more in the way of both effort and sacrifice to maintain the supremacy of the law and to preserve the safeguards of liberty against any form of invasion, whether from the autocracy of a sovereign or from the domination of a class or from the seductions and threats of a crowd.

Generalisations must be avoided at all times. As Justice (Rtd) Richard Kuloba warns, generalisations create a single story, whose main shortcoming is that it creates stereotypes; and the problem with stereotypes is not that they are untrue, but that they are incomplete. Therefore, prudence demands that one ought to be deliberately specific about whatever claim they make, otherwise, it becomes a sweeping statement devoid of sense and justification. 

In classifying lawyers as roundly corrupt people, a qualification must be drawn, something like, “lawyers who aid corruption, are bad people.” The analogy that one spoilt potato leads to the rot of a sacksful, fails in this sense. The truth is, defending members of the legal profession who constantly engage in professional misconduct is like splitting hairs. This explains the existence of discipline mechanisms within the legal system which ideally, and as a matter of last resort; usually lead to disbarment of errant members of the noble profession.

In a rather descriptive tone of the situational analysis of the state of the legal profession then, Justice Kuloba stated:

“Today the ‘hungry and unscrupulous advocates’ are not ‘few’, they are not merely ‘hungry and unscrupulous’, they are triple satanic, depravity with wicked greed and an ever-increasing ethical decadence. Their number grows by the day. The ‘few occasions’ of ‘serious abuse’ spoken of in 1991, are today almost common routine; ‘serious abuse’ now comes with cruel ravishment. The wrongs done are in a litany which stretches, like Banquo’s line of kings, to the crack of doom.”

To epitomise the public perception of the role of advocates in all that is wrong in society, there has been a suggestion before, that in order to sort out societal problems, lawyers must be eliminated. This is expressed in a rather sweeping statement in a work of fiction, where Shakespeare suggested, “The first thing we do, let’s kill all the lawyers.” 

An advocates’ obligations 

Roscoe Pound’s definition of a profession speaks of “a group pursuing a learned art as a common calling in the spirit of public service – no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art is in the spirit of public service, the primary purpose.”

The term “legal profession” is an umbrella term for all those who are in some capacity engaged in the working of the legal system. Members of the legal profession include judges, advocates and prosecutors, among others.

An advocate owes duties and obligations to his client, the court, the State, the legal profession, but above all, a duty to himself that he shall as far as possible, be a person of integrity. Duties stem from statutes while obligations relate to general prudent conduct becoming of a member of the legal profession.

As cardinal obligations owed to all players in the legal profession and the general public, advocates must uphold honesty and integrity and defend the law, which is their whole duty. As an officer of the court, an advocate must show loyalty to the course of law. 

An advocate, while acting, must always disclose all financial benefits to the client. The duty to disclose financial benefits arises from the agency relationship between the advocate and the client that demands, inter alia, good faith and transparency. It is perhaps the least discharged duties of an advocate, and potentially, the justification for painting advocates in bad light.

Representatives of “bad” people

People often marvel at the fact that people accused of the “most heinous crimes” such as defilement, rape, terrorism, attempted treason and even murder, still get representation. They do not understand the advocate’s double standards.

In the practice of law, the common law doctrine of ‘cab rank’ obliges advocates to act for any person who instructs them, regardless of who they are, whatever they might have done, or whatever their cause. This doctrine is a bulwark of the rule of law. In a democratic society such as Kenya, it is only fair that everyone who needs legal representation obtains it.  

Like all other common law doctrines before the evolution of equity, concerns have been raised over the use of the cab rank rule. The main problem with the rule is not that it secures legal representation for bad people, but that it fails to advance the goal of access to legal representation because it is so heavily qualified.

Authors have suggested that the rule should be refashioned in a way that it applies to all legal service providers by creating a genuine cab rank, in which lawyers dedicate a set amount of their time to representing the next client that comes along seeking representation within their area of practice. 

On the issue of legal fees under the cab rank rule, there is need to ensure that it is regulated to ensure the cab rank benefits not only the unpopular wealthy, but also the poor whether or not their cause is popular. Under this system then, advocates should be obliged to do more cases pro bono, in a bid to disabuse the notion that advocates are money minded. Equally, more advocates should endeavour to litigate in the interest of the public in matters of general public benefit. 

Identifying the rot

Lawyers are unpopular, they are distrusted, and they are disrespected. This is so because there have been numerous instances where some advocates have failed to surrender damages awarded to their clients from insurance claims. Further, some advocates charge ‘abnormal’ fees. 

When preparing the client a Bill of Costs, some include expenses that ordinarily should not be incurred. The habitual thievery has plunged the legal profession into great disrepute.

Nevertheless, the day to day work of an advocate towards completion of a client’s brief is full of expenses. These expenses may be in the form ranging from printing paper to filing fees, and to be honest, is not a cheap affair at all. Clients must therefore understand that it is imprudent to expect that cases can be litigated at costs less than what is reasonable. In all fairness, someone has to pay for the genuine expenses incurred by an advocate in the discharge of duties.

Perception is key in the legal profession… The narrative now needs to change. There is need for a cultural shift from that of impunity, dishonesty and selfish behaviour, to an ethics-based culture. 

Regulating conduct 

Recognising the need to protect citizens from otherwise hungry and unscrupulous incompetent advocates, the Advocates Act (Chapter 16 of the Laws of Kenya) and the Law Society of Kenya Act (Chapter 18 of the Laws of Kenya) contain regulations and directions regulating the conduct of advocates.

In ‘R v George Maina Kariuki’, the Court held that the Law Society of Kenya’s main purpose is to regulate affairs and conduct of members. Lawyers are regulated in the sense by many different institutions, sources of law and norms.

Patrick Lumumba explains the roles of an advocate, in an increasingly complex society, as requiring regulation through increasingly complex laws and recommends co-regulation where non-advocates also sit, to inspire public confidence in its impartiality, and combat the tendency to protect one’s kind. 

Over time, the legal profession in Kenya has developed regulations, guidelines and practice standards aimed at fostering discipline. The Advocates Act also has several specific provisions that are aimed at ensuring proper conduct by members of the legal profession. 

Also, although LSK members are not State or public officers, the values of accountability espoused in the Constitution should be used as guidelines for their conduct. Client accounts should not be used as safe havens for sanitising money obtained through corruption.

The legal profession’s disciplinary system must address legitimate public concerns, particularly those involving legal costs, quality and accessibility of legal services, protection of social interests and inadequate sanctions for lawyer misconduct.

Conclusion

The Court in ‘Bolton v Law Society’, held that a profession’s most valuable asset is its collective reputation and the confidence, which that inspires. The reputation of the profession is more important than the fortunes of any individual member. 

Perception is key in the legal profession. The existence of so many regulations and laws that regulate entry into the legal profession can best be rationalised by the need for the profession to guard itself jealously against professional misconduct; protect the sanctity of the profession and instil public confidence in the justice system. The narrative now needs to change. There is need for a cultural shift from that of impunity, dishonesty and selfish behaviour, to an ethics-based culture. 

Law is, indeed, a profession and not an ordinary job. For this statement to hold true, professional lawyers themselves should act accordingly. A lawyer should do more than just occupy a profession; a lawyer should serve the public. To do so effectively, s/he need to be trustworthy, with an
untarnished reputation.

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