An erroneous belief that holds sway in Kenya is that lawyers are sacrosanct when it comes to being compelled to become State witnesses against their clients.
This belief is based on the provisions of the Evidence Act Section 134 which states that “no advocate shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him … or to state the contents or condition of any document with which he has become acquainted … or to disclose any advice given by him to his client in the course and for the purpose of such employment”.
This general rule has, however, always been subject to exceptions that allow grievous derogations to the privilege of advocate-client confidentiality. In the past, there have not been many times when such derogations became a common practice.
But with crime becoming increasingly complex, and lawyers becoming integral players in many joint criminal enterprises, these exceptions are receiving serious attention from criminal justice systems the world over.
The most dramatic derogations were seen during the investigations in the United States by a Special Counsel appointed by the US Attorney General to look into Russian interference in the 2016 American presidential election.
In the course of his work, Robert Mueller, the Special Counsel, issued several subpoenas to lawyers who had represented various persons of interest both in America and Russia, requiring them to give testimony before the Grand Jury on matters that involved their work as attorneys.
In one such case, Mueller issued a subpoena to the lawyer of Paul Manafort, a lawyer himself and former head of campaign for President Donald Trump, seeking to have him answer questions before a grand jury. Manafort was accused of lying in a disclosure filed with the Department of Justice. He went to court and challenged the attempt to have his lawyer turning into a state witness against him.
Three judges of the US District of Columbia court ruled that Manafort had no advocate-client confidentiality protection and that his lawyer had to answer the investigators’ questions.
Based on information that was obtained from his lawyer, Manafort has so far been convicted and sentenced for more than seven and a half years in jail and fined more than $24 million. The cases continue.
The US court had used the “crime-fraud exception” in arriving at the decision against Manafort. The exception provides that communication between an advocate and client will not be accorded any protection when it is made in furtherance of a criminal objective.
In Kenya, this exception is found in the provision to Section 134 which states that “nothing in this section shall protect from disclosure (a) any communication made in furtherance of any illegal purpose and (b) any fact observed by any advocate in the course of his employment … showing that any crime or fraud has been committed since the commencement of his employment.”
The “crime-fraud exception”, when used in real life situations, has become so all-encompassing that advocate-client confidentiality is today only useful in the classical case of the criminal suspect who confides in his lawyer to enable the lawyer defend him in a criminal court.
In all other instances, advocates are finding themselves caught up in situations where they have to choose between becoming state witnesses or criminal suspects. Indeed, it has now become common in Kenya to see an advocate as one of the accused persons in a charge sheet in corruption cases.
Graft lords, however, continue to use advocates in their criminal enterprises in the mistaken belief that they enjoy protection. On the contrary, the advocate is today their worst enemy.
Under the “crime-fraud exception”, an advocate must tell on his client if failing to do so would make the advocate a party to the crime. If, for instance, the advocate received money from a corruption don with instructions to make payments on the client’s behalf, then the advocate becomes an accessory to the crime by discharging the instructions.
If the advocate claims that he could not have known of the crime from which the money emanated, then he cannot escape having to be a state witness against that client and to disclose everything he knows on the source of the money.
In fact, if during any time of employment the advocate comes to suspect that a crime was being or had been committed, he has to report to the police or he will be an “accessory after the fact.”
The exception also provides that the advocate must breach the advocate-client confidentiality if it is necessary to prevent a crime or fraud that will result in physical harm to any person or to substantial injury to the financial or property interests of any third party.
An advocate will also be compelled to testify against his client where the advocate has given advice which the client then uses to commit a criminal offence.
If, for instance, a Governor or his family were to incorporate companies through an advocate and those companies were used to do business with the county that the Governor heads, the advocate will be compelled to give evidence as to who the beneficial owner of those companies are.
It is not necessary that the advocate knew of the criminal intention of the client. So long as the prosecutor can show, on a balance of probability by the way, that the clients sought the legal advice in order to further their own criminal enterprise, then the advocate will have to testify against the clients.
This power to subpoena lawyers has become an important tool in investigations of corruption all over the world. The society has refused to accept that lawyers can continue to be innocent bystanders as their clients commit crimes against the people.
The world is saying that legal offices will no longer be the hideouts for criminals and outlaws. I believe it is not going to be long before we see lawyers charged in court for failing to report crimes that they come to know about in the course of their work.
Gone are the days of the consigliore, the adviser and confidante of the Mafia boss who gave dispassionate advice to the family, helping them navigate through the rapids of the law, but kept away from the murky business of the enterprise.
A second derogation from advocate-client confidentiality that is also gaining currency is in respect of tax evasion. A lawyer will be compelled to reveal information regarding his work if the purpose of his engagement is shown to be evasion of payment of taxes.
When this law is fully enforced, corruption dons in Kenya will no longer hide in the client accounts of advocates to evade the Kenya Revenue Authority.
The writer, an advocate of the High Court of Kenya, is former Prime Minister Raila Odinga’s legal adviser