No advocate may directly or indirectly apply for or seek instructions for professional business, or permit in the carrying on of his practice any act or thing which can be reasonably regarded as touting or advertising or as calculated to attract business unfairly”. Rule 2, The Advocates (Practice) Rules.
As stated last week, the legal profession has been a commercial venture of more than one century to date. Thousands of lawyers have made a living and many amassed a fortune from practicing law. Even for those who have joined the legal profession to fight for justice, the practice of law has been a commercially rewarding engagement. The provisions of Rule 2 quoted above are therefore contradictory to the reality. In fact, looked at alongside with reality, the rule is ridiculous. I dare say that there is not one living practicing advocate in Kenya of sound mind who does not in the conduct of their practice either directly or indirectly apply for a professional business or do an act that indicates his desire for professional business. No advocate.
And the reason is simple; law practice is a business. It has fixed costs, aspirations, ambitions, fortunes etc. No advocate enters the business sector, leases office premises, buys furniture and other office supplies, and employs a secretary, messenger and court clerk, then sits down and waits for the good Lord to send them clients. The first lesson that such an advocate learns is that Rule 2 of the practice rules is only applicable to monks.
And it is a lesson advocates in Kenya have learned very fast. Ambulance chasing lawyers in Kenya are two-a-dime. The entertaining of clients and prospective client is equally prevalent. Every large law firm has a programme for attracting new clients and for keeping old ones contented. And the programme is basically an advertising strategy though it may be clothed to look otherwise.
But the Kenyan legal profession has not come to terms with the change nature of law practice. On the one hand is the reality of commercial nature of the profession which at one time reached severe proportions. In the 1980’s the Kenyan legal profession was so commercialized that lawyers had been baptized by the press as “Kenya’s whities on the woodpile”, for nibbling at everything that came their way, particularly client’s money. The press openly called on the government to take action on the ‘sharks’. Then on the other hand is the reality that the Kenyan legal profession has been the vanguard of liberty in the country. More than any other group in Kenya, lawyers have with a singular sense of purpose stood up against autocratic rule and injustice. Even when personal liberty was at stake, there has always been a group of lawyers risking their lives to stand for the truth. In this way, the profession has become the conscience of the Kenyan society.
Any attempt to reform the Kenya Bar must therefore start with a reconciliation of these two realities. Is it possible that a lawyer can practices law for financial gain and for protecting rights at the same time? Can the protection of rights be the purpose of a commercial venture?
The answer is yes. It all depends on the approach towards the legal work at hand. Where an advocate is approached by a client to represent them and fight for their rights, they can either purely look at it as the client’s problem for which they, the lawyer, is trained to solve, or they can look at it as their problem as well. If they look at it as the client’s problem, they have no difficulty in charging for it. If they look at it as their problem too, then they are in a dilemma in respect of the charging.
The Kenyan legal profession had been in this dilemma. For good reasons, it has viewed the abuse of rights as its problem too. And so the practice of law has become a vocation, a missionary endeavor to alleviate the plight of Kenyans. But this missionary endeavor has to be financed, and by the client, the Kenyans. Thus the confusing result of lawyers being not only business minded, but also acting as missionaries.
In a way the profession feels guilty and a bit embarrassed about being in business. And to cover up its embarrassment and guilt, provides for those things that the public uphold the missionary countenance of the profession.
Behind this screen, the profession conducts a business. I know not any lawyer in Kenya punished for infringing upon Rule 2 and I believe the reason for this to be that it is not meant for the lawyers. It is only there to make the profession look good and to enable lawyers look good and reconcile themselves to the realities of the profession.
Possibly until the day that the Kenyan society is ran along the semblance of law and order, the Kenya Bar will never be able to remove itself from the people it serves and properly conduct itself as a business. It will require a country where poor people apply for legal aid and therefore the lawyer in private practice will have no problem turning down cases because they are in business.
It will require a specialized legal profession so that lawyers who want to practice law as a vocation can practice in the field that does not provide good business e.g Criminal Law. And a lawyer with business zeal can concentrate on the profitable practice. It will require a profession that has institution taking up all criminal, constitutional and other warfare law cases and leaving the rest of the lawyers to run businesses. Until then, the entire Bar will have to deal with the approved contradiction.
But a way must be found in dealing with the contradiction because it not only hurts the profession but also the society. When the Ngai Ndethya train crashed, Kenyan lawyers sat back and waited for the victims and their families to come to the offices to instruct them on filing claims.
Most of the victims did not even know that they could sue and those who did were quite unsure. The Kenya Railways declared the disaster “an act of God”. Without Rule 2, every single victim would have obtained a lawyer and sued for their rights.
The point is not the profession should be liberalized so that lawyers will start running all over the place getting everyone to sue everyone so that they can earn fees. (By the way, have you heard of the lawyer who was such a successful ambulance chaser that he owns his own fleet of ambulances?)
The point is that the profession should be liberalized enough to allow the proper conduct of business. And the start should be repealing the Advocates (Remuneration) Order.