“The first thing we do, let’s kill all the lawyers”. William Shakespeare, “Henry VI”
A problem as complex and as old as the one facing the legal profession in Kenya cannot be resolved by quick fix solutions. The popular solution to the crisis in the profession is punishment. It is believed that a tighter and harsher disciplinary process can eradicate the complaints of the public against the conduct of members of the Bar. But just as criminal law does not eradicate crime, punishment is not the solution.
Undeniably, punishment will reduce the complaints. Rules that are permissive are eventually ignored. A judge once said that if a man thought that the law was “thus and so”, and the law treated him like it was “thus and so”, then the law will actually be “thus and so”. For the legal profession in Kenya, the disciplinary committee metes out punishment against misconduct. We must begin by attending to the weakness of this committee.
One of the weaknesses is that it is a closed shop. Its membership consists of the Attorney-General, the Solicitor General and three lawyers of at least lO-year standing. This membership does not represent critical sectors that have an interest in the practice of law. And self-governance is not sufficient reason to keep the committee as a closed shop.
We must put provision for representation of the Judiciary by one or two judges and representation of the public by the chairman of the Parliamentary Committee on Justice and Constitutional Affairs. For a profession that has incessantly called for transparency and accountability, we must be ready to open, at least a window, into our affairs
To compliment the work of the Advocates’ Complaints Commission, we must empower the Ethics Committee of the Law Society. The members of this committee must be persons who have qualified to hold the title senior counsel. They must also be proactive. While the Complaints Commission has to sit and await persons to come to it, the Ethics Committee must supervise the profession. They must take up any issue that threatens the integrity of the profession whether there is a complainant or not.
Away from the policing and disciplining, we must revolutionise the way we practise law. We must enter the 21st century. Other countries have made fundamental changes in their professions but we in Kenya still hang on to old meaningless rules. No wonder the late Dr Josephat Karanja called us “colonial anachronistic cobwebs”. There are several fundamental changes we must make:
a) Remove the minimum legal charges applicable to advocates and clients. We should encourage people to enter into remuneration agreements with their lawyers and to operate under these agreements. The average Kenyan is now literate enough to enter into simple agreements. The Law Society of Kenya could even come up with standard agreements.
The Advocates Remuneration Order should only apply between parties in court to determine the legal costs payable between them. Price controls have no place in a liberalised market. Removing them will help lower the costs of legal services.
b) We must allow some advertising. Though, the advertising of professional services must be properly controlled and regulated, it must be allowed to the extent that it will enable the public to obtain sufficient information to make educated decisions.
c) We must revoke the rules that forbid charging fees on a contingency basis. The rule for one is not honoured and it is known in the profession that all accident cases are handled on a contingency fees basis. Secondly, legalising contingency fees will make legal services more accessible as lawyers can plough back their profits into providing legal services.
Sharing the proceeds
The profession must also allow outsiders to participate in the contingency fees cases. Some countries now allow investors to set up companies that finance litigation on the basis of sharing in the proceeds of the case. This will create business for lawyers and allow the public to access legal services. The investors will also bring the added advantage of protecting ignorant clients from errant lawyers.
I would also advocate for the adoption of the controversial two cheque system but in a different way. We begin by reconceptualising the concept of the lawyers’ licence. Basically, a practising licence gives one the right to act as an advocate, i.e. appear in court, draft and execute legal processes, attest the execution of legal documents, etc. The practising licence also gives one a right to do business, i.e. open up a law firm and maintain clients portfolios and receive and disburse money.
A law firm, however, brings into play other considerations. It is no longer a question of having gone to the university and passed the examinations. There are questions of indemnity insurance, the quality of staff and the financial security of the practitioner. It is in the knowledge of these extra considerations that the Attorney-General amended the Advocates Act in 1989 to insert Section 32, which provides that, notwithstanding that a person has been issued with a practising certificate, he cannot practise on his own unless he has been employed first as an advocate on a full time basis for two years.
We should therefore create another licence, a law firm licence. To obtain this, one must have an office, a registered legal secretary, a registered court clerk, an accountant and a professional indemnity cover. The Law Society of Kenya, which will issue this licence on behalf of the government, must decide whether the practitioner should or should not hold client money. If the person is not authorised to hold client money, or if he is only allowed to receive up to a stated maximum for each client, then he is to receive money for his client in a cheque form. He will be entitled, however, to withhold the clients’ cheque until his fees are paid in accordance with the remuneration agreement. In case of a dispute, the LSK can bank the cheque to a special account and disburse the money in accordance with the orders of the High Court.
This may appear controversial but we must consider the process other people who handle public money through to get a licence. Banks have to adhere to strict conditions to be allowed to receive money from the public. And they are regularly inspected by the Central Bank. The law firm is a business and must be regulated.
Lastly, we must put strict controls on professional standards. This applies not just for the lawyers but also for people who work in law firms. For lawyers, we must establish a strict training curriculum that must be fulfilled by anyone wanting to join the Bar.
Similar attention must be paid to the staff in the advocate’s office. An advocate’s quality of service can be ruined by incompetent staff.