Contrary to popular belief, lawyers are not at liberty to charge what they want. The fees that lawyers can charge are regulated by the Advocate Remuneration Order which is contained in the Advocates Act. The order lays out in the rules to be followed by advocates when raising fee and also the seals to be used to determine the fees payable.
The basic rule of the remuneration order is that no lawyer may agree or accept his remuneration at less than that provided by the order. This is basically a rule against undercutting and it attempts to prevent competition among lawyers by way of a price war. Neither is an advocate entitled to charge above the remuneration order in the absence of an agreement between him and his client. An advocate wishing to charge exorbitantly should enter into an agreement with his client by which the two agree to the advocates remuneration above that prescribed by the order.
Another basic rule in advocates remuneration is that no advocate should enter into an agreement with his client by which he shall be paid only in the event of success in the suit or proceedings that the advocate has been instructed to conduct. Nor should an advocate enter into an agreement by which he would be paid at different rates according to his success or failure.
This latter mode of charging is particularly prevalent in respect to insurance matters. Clients are aggressive by promising incentive to a lawyer to be on the amount he collects. Others, fearing that their claims may not be successful, prefer to enter into a no-win-no-pay agreement with the lawyer.
The rules of practice of advocates are of the view that such agreements would create more evil than good. The agreements are laudable because they make legal services affordable to the common man and thus enable him to enjoy his right to legal representation in which the advocate gets such vested interests in the proceedings of his client that his professional judgement is compromised.
Where the advocate’s fees are definite, then the advocate will be ready to settle every proceeding at the point where justice is met. But where the advocate’s fees depend on whether he kills, then he will always want to kill, and may go to many lengths to do so. The ultimate result will be that advocates will begin coaching witnesses to make sure they tell the winning tales, they will suppress document and forge others, pursue vexations, litigations, relentlessly and generally do everything that is contrary to their professional ethics. In short, advocates would become brokers and commission agents.
This rule against charging on speculative basis is based on the rule against chamberly. This rule prevents an advocate from purchasing any interest in the proceedings of his client. No advocate is allowed to finance from his pocket the work of his client or to purchase an interest in the subject matter of the proceeding of his client. For this reason, advocates are required to always ask their clients to pay a “small” deposit before they even lift their finger. Others will ask the client to pay a “small” premium to “open a file”. The reason for this is, though it not always is, to enable the advocate finance the proceedings from the client’s pocket. Otherwise the advocate would be guilty of “chamberly”.
The scales laid out in the remuneration order are very precise and provide a comprehensive guide on the raising of fees. In respect to transfers and mortgages they laid out the amount to be raised as fees depending on the value of the property. In the incorporation of companies, the fees are laid out depending on the amount of share capital quoted by the promoters of the company.
On the contentious matters before the court, the fees are charged depending on the value of the subject matter as quoted on the court documents or as determined by the eventual judgement. In a litigation suit, an advocate is entitled to charge an instruction fee which is based on the value of the subject matter, a fee for getting up and preparing for trial which is one quarter of the instruction fees, a fee for preparing court documents which is chargeable per page, a fee for perusing correspondence which is also chargeable per page, a fee for preparing any application in the suit, a fee for attending to any phone call.
For example, according to the current remuneration order, if a lawyer sues for One Million Shillings, he is entitled to an instruction fee of Shs 52,000, a fee of getting up and preparing for trial of about Shs 13,000. Shs 1,200 for every hour he attends court. Shs 40 for every three minutes he spends on the phone, Shs 20 for every page of correspondence or document he reads and Shs 30 for every page of every court document he prepares.
A client is entitled to insist that his advocate charge according to the remuneration order. The way to do this is to ask the advocate to draw up his bill of costs and to take it to a deputy registrar of the High Court of taxation. Taxation is a process through which a deputy registrar inspects the fees being charged by an advocate and determines whether the fees are fair. Every day a deputy registrar stops advocates from over charging and determines how much they should be paid.
The danger for the bad client, that is the client who keeps popping in and out of the advocates office whether wasting time or harassing him and then at the end of the day cannot pay the legal fees, is that the fees determined by the registrar must be paid.
Once taxation is complete, the advocate is given a certificate of costs. This certificate is as powerful as a judgment and the advocate can attach the client’s goods to recover the fees, which should act as a warning to all non-lawyers: time is money, and lawyers have nothing else to sell but their time.