As discussed previously, the initial step towards liberalising the legal profession is by the repeal of the Advocates Remuneration Order of 1993. The repeal will enable advocates to compete on prices and leave advocates and their clients to determine the cost of their relationship.
This mode of charging has an added but hidden benefit. By actively involving the clients in the costing procedure, the new mode of costing will make clients the more vigilant about the services they receive. From the first day, the clients will know all the steps that the advocate is required to take, when they should be taken, and what the cost will be. The remuneration order would, however, have to be maintained for the limited purpose of assessing what the costs the unsuccessful party at litigation would pay the victorious one. A victorious party is not reimbursed the exact amount of money he spends on lawyers.
If that were so, poor people would be discouraged from suing rich ones because of the devastating effects of lack of success in the litigation. Poor people would thus have no access to court due to fear. To prevent this, the courts have laid out the money payable by the loser and the winner is left to pay the balance from their own pocket. The present remuneration order should be left to serve this purpose of determining party to party costs at the end of litigation.
The second compliment to repealing the Remuneration Order is the permitting of advertising. Advertising, as stated earlier, reduces costs, enhances competition, and thus efficiency. In the legal profession, it increases legal awareness and promotes accessibility to justice. Advertising is an integral component of the development of any industry. Advertising, however, is also liable to abuse. It can peddle false information, employ undue pressure to the exercise of choice, and thus kill competition and restrict the growth of the industry. Improperly used, advertising can maintain old, big and inefficient business establishments at the top, and suppress new, small and efficient establishments at the bottom.
Advertising therefore, needs to be regulated to ensure that it is honest and fair. In the legal profession, it must be regulated to ensure that while it facilitates the marketing of legal services, it protects the integrity of the profession. The best way of doing this is to regulate the publication and contents of advertisements relating to legal profession.
Some basic rules, for instance, would be:
- Every advertisement placed by a lawyer seeking instructions for legal business can only be placed in the classified section of a newspaper or magazine of good reputation.
- No advertisements shall carry the photograph of the lawyer, nor reveal previous cases or instructions a lawyer has handled.
- An advertisement may indicate the academic qualifications of the lawyer, and may state their area and period of expertise.
- No advertisement of legal services may be more than 1.5 inches by 3.0 inches in size, and the print thereof may not be more than 10 points for titles and 8 points for content.
- No advertisement may indicate the costs that may be payable to the lawyer, but may indicate the services for which the lawyer may discount payment.
- An advocate may, for the purpose of advertising, by way of mail, offers to undertake legal business and may publish in such mail scales of his charges.
Well, numerous rules will be required to govern advertising. These should be made in line with the repeal of the present prohibitive rules. An example is Rule 11 of the Advocates Practice Rules which states that: “No advocate or firm of advocates shall, in connection with the practice of the advocates or the firm, cause or permit himself or firm’s name to be described otherwise than as ‘Advocate’ or ‘Advocates’ as the case may be whether by means of printed headings on business note paper…or any name-plate, or in any public advertisement…”
Or Section 36, Subsection 2 of the Advocates Act which states that “No advocate shall charge or accept otherwise than in part payment, a fee or other consideration in respect of professional business, which is less than the remuneration prescribed, by order, under this Act.
Another provision that requires serious considerations in the interests of promoting competition is Section 32 of the Advocates Act. It provides that:
‘’Notwithstanding that an advocate has been with a practicing certificate under this Act, he shall not engage in practice on his own behalf either full-time or part-time, unless he has practiced in Kenya continuously on a full time basis for a period of not less than two years after obtaining the first practicing certificate in a salaried post, either as an employee in the office of the Attorney General or an organization approved by the Council of Legal Education or an advocate who has engaged in continuous full time practice on his own behalf in Kenya for a period of not less than five years.’’
The operation of this section was suspended when the Advocates Act came into force, and is to be put into operation in the future by the Attorney General.