In 1981, Manchester Outfitters Suiting Limited negotiated for a loan of 1.3 million Deutsche Marks and 1.05 million Swiss Francs from Standard Merchant Bank Limited of London. The loan negotiated through East African Acceptances Limited, was secured by a mortgage over the company’s factory at Athi River and a debenture on all other assets of the company.
In order to formalize the loan, Manchester Outfitters instructed the law firm of Kaplan & Stratton to act on its behalf. Kaplan & Stratton accepted the instructions and began acting for the company. East African Acceptances also indicated to Kaplan & Stratton that it would also prefer that that law firm act for them so long as the firm disclosed when a conflict of interest arises.
Kaplan & Stratton then started acting for EA Acceptances and Standard Merchant Bank of London but informed Manchester Outfitters that should a conflict arise they would act only for East African Acceptances. The deal was sealed and the money disbursed. However, in 1989, a dispute arose between Manchester Outfitters and the EA Acceptances resulting in a suit being filed by Manchester Outfitters. Kaplan & Stratton was approached by the EA Acceptances to represent them in the suit, instructions which the firm accepted. Manchester Outfitters instructed a leading lawyer, Kamau Kuria, to sue Kaplan & Stratton and restrain it from acting for EA Acceptances. The High Court refused to allow the application. Kamau Kuria appealed and the Court of Appeal found in favour of Manchester Outfitters.
The arguments advanced by Mr. Kamau was that Kaplan & Stratton, having accepted to act for both Manchester Outfitters and EA Acceptances in the loan transactions, were being professionally unfaithful by agreeing to act against one on behalf of the other in matters relating to the transaction. Having acted for Manchester Outfitters, he argued, Kaplan & Stratton had obtained relevant knowledge of the company’s financial position which they would use against it when acting for EA Acceptances.
Issuing the injunction, the Justice of Appeal Mathew Muli said: “I would grant an order of injunction to restrain Mr. Keith and any other partner in Kaplan & Stratton from continuing to act for EA Acceptances in the main suit or in any litigation or proceedings arising from the loan transaction”. Justice of Appeal Cockar (as he then was) and Akiwumi voted in favour of Muli’s judgment.
The heart of the matter was the rule on Advocate/Client confidentiality which prohibits an advocate from disclosing any information of a confidential nature received from a client. As stated by the guide to the professional conduct of solicitors issued by the council of the Law Society of England and Wales. “It has been established as principle of public policy that confidential communications made to a solicitor by his client and received by the client for the purpose of Legal Advice and assistance are the subject of privilege and will be protected from disclosure in the course of legal proceedings…This principle has been established by the court in order that justice should properly be administered and in order to protect the confidence which exists between solicitor and his client, so that the client may be able to communicate frankly and unreservedly with his solicitor…”
In Kenya, this rule is protected by two sections of the Evidence Act. One is in Section 134 which states that “No advocate shall at any time be permitted, unless with his clients express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of such employment.”
The other is in Section 137 which says: “No one shall be compelled to disclose to the court any confidential communication which has taken place between him and his advocate unless he offers himself as a witness in which case he may be compelled to disclose any such communication as may appear to the court necessary to be known in order to explain any evidence which he has given, but no others.”
Advocate/client confidentiality has been viewed in law to be basic to the administration of justice. The only way lawyers can be of full assistance to people who require legal help is if such people are to be fully confident in them. The law therefore declares such communications privileged. And the reason for the privilege is two-fold. Firstly, it is because the information was meant to be confidential. Lawyers, like doctors, and like any other persons receiving confidential information, are under a duty to maintain the confidentiality. Secondly, it is because the advocate/client confidentiality is basic to the administration of justice.
The greatest significance of the rule is in criminal defence. For a lawyer to properly represent a client charged with a crime, he must be well informed on the circumstances of the charge. In the case of murder, they must know whether the client killed the deceased and the reasons for the killing. On a charge of rap, they must know whether the client had intercourse with the person filing the charges and under what circumstances. It would be a grave miscarriage of justice if the lawyer instructed to conduct the defence, to whom such information is given, would take the stand against the client. Since the information was given for the sole purpose of preparing an adequate defence, they are not allowed to use it for any other purpose.
The rule on advocate/client confidentiality is so strict that it binds the lawyer for all time, even after the client dies. It also binds their employees and partners are their law firm. For this, the Court of Appeal issued an injunction against all partners of Kaplan & Stratton not to act against Manchester Outfitters.
Further, the rule prohibits the lawyer from making use of the information even secretly. If the client had informed the lawyer of a wish to make a move on the stock exchange, the lawyer is prohibited from using the information in their own investments. The lawyer is also not allowed to disclose the address of their client or to reveal that they act for them if the client does not wish such information to be known.
Because this rule is liable to abuse, the law makes one major exception to it. A lawyer can be compelled to disclose communications made to them by their client if such communication were made in the furtherance of illegal or fraudulent purposes. Communication made for the purposes of obtaining guidance in the commission of a criminal offence will not be privileged and could in fact expose the lawyer to liability as party to the offence.
The lawyer will also be compelled to disclose the contents of documents they have prepared for their client if the documents have been used in the commission of a criminal offence.