SPECIAL ISSUE

THE KENYA GAZETTE

Vol. CXIX—No. 69 NAIROBI, 26th May, 2017 Price Sh. 60

GAZETTE N OTICE NO. 5212 3. Section 5 of the Law Society of Kenya Act deals with the general
powers of the Society and states that the Society shall have the
THE LAW SOCIETY OF KENYA ACT powers to do all things necessary for the proper and effective
(No. 21 of 2014) achievement of its objects and the performance of its functions.

CODE OF STANDARDS OF PROFESSIONAL PRACTICE AND ETHICAL 4. In exercise of its powers under section 4 of the Law Society of
CONDUCT Kenya Act, the Law Society of Kenya has determined the
standards of professional practice and ethical conduct to govern the
IN EXERCISE of the powers conferred by section 4 and 5 of the practice of law in Kenya. The standards were adopted by the
Law Society of Kenya Act (No. 21 of 2014) the Law Society of Kenya Council of the Law Society on 13th June 2016. Pursuant to powers
has set standards of professional practice and ethical conduct for the vested in it by section 16(1) of the Act, at its Annual General
practice of law in Kenya: Meeting held on 11th March 2017, the general meeting approved
the standards for implementation.
PART I—PRELIMINARY
5. The standards, which are contained in this Code, shall apply to
A. Statutory Basis members of the Society and be principal instrument of self-
regulation. As part of the regulatory framework governing the
1. The Law Society of Kenya (“the Society”) established under the
professional practice of law in Kenya the Code will be given effect
Law Society of Kenya Act (No 21 of 2014) is the principal
by the Disciplinary Tribunal exercising its disciplinary jurisdiction
regulatory body over the legal profession. Section 4 of the Act over Advocates pursuant to the provisions of section 55 of the
provides that the objects and functions of the Society are, inter alia, Advocates Act, the Advocates’ Complaints Commission
to: established by section 53 of the Advocates Act as well as the Chief
Justice or a judge of the High Court or a court of equal status
(a) Ensure that all persons who practice law or provide legal
exercising disciplinary powers over Advocates under section 56 of
services in Kenya meet the standards of learning, professional
the Act.
competence and professional conduct that are appropriate to
the services they provide; 6. The Code outlines principles, standards and guidance for members
of the Law Society of Kenya. Its effectiveness depends on the
(b) Set, maintain and continuously improve the standards of extent to which members adhere to the principles and values
learning, professional competence and professional conduct for outlined in it, compliance with its standards and enforcement by
the provision of legal services in Kenya; the profession’s regulatory bodies.

(c) Determine, maintain and enhance the standards of professional B. Application of the Code
practice and ethical conduct and learning for the legal 7. The scope of the Society’s regulatory mandate is over its members.
profession in Kenya; Section 7 of the Law Society of Kenya Act defines the categories
of members of the Society. This consists of:
(d) Facilitate the realization of a transformed legal profession that
is cohesive, accountable, efficient and independent; and (a) Any person who has been admitted as an advocate and whose
name has been entered into Roll of Advocates kept under
(e) Protect and promote the interests of consumers of legal section 16 of the Advocates Act;
services and the public interest generally, by providing a fair, (b) Any person admitted to membership under section 8 of the
effective, efficient and transparent procedure for the resolution Act; and
of complaints against legal practitioners.
(c) Any person elected as an honorary member of the Society
2. As is the case with other professions locally and abroad, the legal under section 9 of the Act.
profession is substantially self-regulated by reference to standards 8. The Advocates Act defines an advocate to mean any person whose
of professional practice and ethical conduct. The Advocates Act, name is duly entered upon the Roll of Advocates. Section 9 which
Chapter 16 regulates the practice of law and makes professional deals with qualification for practicing as an Advocate states that no
misconduct a disciplinary offence. person shall be qualified to act as an Advocate unless:

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(a) He has been admitted as an Advocate; conscience, ethical beliefs and the overriding principles and values
applicable to legal professionals the world over.
(b) His name is for the time being on the Roll; and
18. Typically the rules governing professional conduct are set within
(c) He has in force a practicing certificate. the framework of overriding principles, ethics and values which
9. The Advocates Act therefore draws a distinction between persons ought to guide and underpin the interpretation and understanding
who are Advocates by virtue of the fact that the person’s name has to be accorded to specific rules in specific contexts. The principles
been entered upon the Roll of Advocates and persons who qualify apply to members of the Society when providing legal services
to practice as Advocates, the main distinction being that the latter and, in certain cases, even when not providing legal services.
category are persons who have in force a practicing certificate. The D. Arrangement of the Code
certificate is issued annually and lapses at the end of the calendar
year in respect to which it was issued. 19. The Code comprises a preliminary part which gives the
background and sets the statutory basis; Part II dealing with the
10. This Code is intended to apply to all members of the Society, in overriding values and principles of professional conduct and
this case all persons who fall within the provisions of section 7 of providing the framework for interpretation of the Code; Part III
the Law Society of Kenya Act. Thus the Code is intended to guide which sets out the standards; and Part IV which provides guidance
practising Advocates, in-house counsel and others who, while not on the interpretation of the standards.
actively engaged in the practice, are members of the Society.
20. Whereas the Code aims to provide a comprehensive set of
C. Professional Misconduct principles, standards and guidance for interpreting the standards
11. The term “professional misconduct” is a widely used term in the circumstances will arise in which the professional does not find
context of the legal profession. Section 60(1) of the Advocates Act adequate guidance within this Code to enable him or her
states that “the expression professional misconduct includes adequately deal with a particular situation or event. Therefore
disgraceful or dishonourable conduct incompatible with the status Advocates are advised to seek the guidance of the Law Society
of an Advocate.” The concept of professional misconduct is wide when faced with an issue which they do not find a ready answer to
and the categories of behavior that would be considered as within the Code.
amounting to misconduct not closed. PART II—OVERRIDING VALUES AND PRINCIPLES OF
12. Generally, professional misconduct is conduct in breach of the PROFESSIONAL PRACTICE AND ETHICAL CONDUCT
rules, standards and ethics of the profession. The concept of 21. The standards of professional conduct and ethics set out in the
professional misconduct therefore defines the standard of Code are underpinned by the following ten (10) principles, which
professional practice and ethical conduct expected of a member of are seen universally applicable to the practice of law and ideals
the legal profession. In regard to the legal profession in Kenya the that ought to govern the conduct of members of the legal
rules and standards governing the behavior of Advocates are found profession worldwide. The principles and values ought to infuse
in different texts, including the Advocates Act (which deals with the decisions and actions of any member of the legal profession as
admission and discipline), the rules made under it and standards well as those of regulatory authorities when construing the actions
and guidelines issued by the Society. of its member who is facing a charge of professional misconduct.
13. Professional misconduct is to be distinguished from OVERRIDING PRINCIPLES
“unsatisfactory professional conduct.” The latter phrase refers to
conduct which falls below the standard of conduct or behavior that Issue. Principle or values
is expected of a practicing Advocate, particularly when rendering
legal services. It is conduct which falls below the standard one may 1. Independence Professional independence is a key ingredient
reasonably expect of a practicing Advocate in terms of competence of the Advocate’s ability to provide
or unbecoming behavior (i.e. behavior not becoming of an professional services to the client objectively.
Advocate but occurring outside of the context of legal practice). Professional Independence ought to be nurtured
and respected by the professional body, other
14. Whereas the categories of professional misconduct are not closed regulatory authorities, fellow professionals, the
there is a need to provide a comprehensive way of deciding what in client and the Advocate himself/herself.
a particular instance will be treated as “professional misconduct” Independence requires that the Advocate is free
or unsatisfactory professional conduct. This Code sets out the key from undue influence arising from political,
standards that govern the conduct of a member of the Society. financial, career, personal, emotional or other
Guidance on the interpretation of the standards is equally considerations.
necessary. Such guidance aids in compliance by members of the
Society and in enforcement. 2. Honesty and Honesty and integrity are the hallmark of the
integrity legal professional and must be exhibited by
15. This Code of Standards of Professional Practice and Ethical every legal professional in all his/her dealings
Conduct is intended to be the authoritative standard, guide and with clients, office staff, fellow professionals,
reference point in construing professional misconduct and service providers, regulatory and other public
unsatisfactory professional conduct. It defines the minimum authorities and members of the judiciary bench.
standards designed to assist the regulatory bodies and the legal Honesty and Integrity among members of the
practitioner alike in determining whether, in a particular case, the profession fosters trust and confidence in the
conduct in question falls within or outside of the remit of profession and enhances the moral standing and
professional misconduct. public image of the profession. Honesty and
integrity encompasses civility, professional
16. The Code however does no more than set minimum benchmarks
integrity, high personal moral standards, and
for professional practice and ethical conduct, the breach of which
respect for others among characteristics.
amounts to misconduct and might attract punishment. It is not the
last word on the conduct expected of a member of the Society. In 3. Fidelity to the law The legal professional’s first duty is to the law
addition to regulating misconduct the role of the Society as the and due process. He/she is an officer of the
regulatory body is to encourage professionalism in the legal court and must at all times and in all his
profession. dealings show fidelity to the law and
17. An aspiration to professionalism seeks to encourage within the demonstrate respect for the rule of law and due
process. The legal professional must therefore
legal profession conduct that preserves and strengthens the dignity,
honour and ethics of the profession. Professionalism goes beyond never subvert or connive in the subversion of
the law or due process in his/service of the
avoidance of misconduct. It extends to matters of good
professional practice, etiquette and ethics, the breach of which do client’s interests.
not amount to professional misconduct. A member of the Society 4. Conflict of Trust and confidence in the legal profession
is expected to aspire to higher standards of professional practice interest depends upon the legal professional’s loyalty to
and ethical conduct, going beyond mere avoidance of misconduct. clients. Avoidance of situations of conflict of
At this higher level the legal professional is to be guided by his/her
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Issue. Principle or values sentencing policy, the Code has also left it to the disciplinary
authorities to determine the nature of punishment that would be
interest also enhances the legal professional’s appropriate to a particular instance of professional misconduct in
ability to render unbiased and objective service the circumstances of the case.
to the client and enhances the standing of the
legal profession in the eyes of the public. Topic Standard of Professional Practice and Ethical
Conduct (“SOPPEC”)
5. Advocate-client The right and duty of the legal professional to
confidentiality keep confidential information received from SOPPEC-1: It is professional misconduct for any person who
and advice given to the client is an Requirement for has been admitted as an Advocate to engage in the
indispensable feature of the rule of law and a practicing practice of law without a practicing certificate
essential to public trust and confidence in the certificate valid for the practice year or to allow his/her
administration of justice. It enhances the name to be used by persons not qualified to
client’s trust in the legal professional and practice law to offer legal services.
facilitates full and frank communication
between the Advocate and the client. Advocate- SOPPEC-2: Except to the extent permitted by the Advocates
client confidentiality must be nurtured, Advertising and (Marketing and Advertising) Rules or any
respected and protected by regulatory marketing amendment or replacement thereof, it is
authorities, fellow professionals and the legal professional misconduct for an Advocate directly
professional himself/herself. or indirectly to apply or seek instructions for
professional business or do or permit in the
6. Professional The legal profession is an honourable carrying on of his practice any act or thing which
undertakings profession. The old adage that “the lawyer’s can be reasonably regarded as touting or
word is his [her] honour” must be strictly advertising or as calculated to attract business.
adhered to and given effect by the legal
professional in all his/her dealings. SOPPEC-3:
Undertakings facilitate legal transactions and Competence and The Advocate is under a duty to provide the legal
without them transactions would be severely diligence in client services in respect to which he/she is engaged
care competently, diligently and ethically. Failure to
hampered. Their effectiveness depends on the do so will be dealt with as professional
integrity of the legal profession. Therefore an misconduct.
undertaking – whether given in writing or
orally - is sacrosanct and must be honoured. SOPPEC-4: The practice of undercutting, that is, charging less
Professional fees than the scale fees for professional services
7. Fiduciary duty to In his/her handling of the client’s funds and rendered, constitutes professional misconduct. At
the client other property the legal professional stands in a the same time, charging unjustifiably high fees,
position of trust. Therefore the legal which is not commensurate with the professional
professional has a fiduciary duty to safeguard services rendered, constitutes professional
client’s funds and other property, fully account misconduct.
for them,not use them in a manner that is
adverse to the client’s interests. SOPPEC-5: The Advocate shall not appropriate or convert any
Fiduciary duty funds of the client held in trust or otherwise under
8. Professionalism The lawyer must demonstrate professionalism over client’s the Advocate’s control without the express
in his dealings with the client, with fellow funds and other authority of the client. Any unauthorised
professionals, third parties and the judiciary. property appropriation or conversion is professional
Professionalism requires that the lawyer is misconduct.
competent and renders service diligently at all
times. SOPPEC-6: The Advocate shall not advise or represent both
Conflict of sides of a dispute and shall not act or continue to
9. Remuneration As professionals lawyers are entitled to fair interest act in a matter when there is a conflicting interest,
reasonable remuneration for services rendered. unless he/she makes adequate disclosure to the
Reasonable remuneration enhances the ability client(s) and obtains the client’s consent.
of the Advocate to render services diligently
and promotes financial independence. The SOPPEC-7: Communication between the Advocate and client
lawyers’ professional association, the courts Confidentiality is protected by the rule on confidentiality of
and clients have an obligation to facilitate an and Advocate- Advocate-client communication. The Advocate
environment in which legal services can be client privilege has a duty to keep confidential the information
provided in a framework which enables received from and advice given to the client.
members of the legal profession to earn Unauthorised disclosure of client confidential
reasonable remuneration without legal fees information is professional misconduct. At the
becoming a barrier to access to legal services. same time the Advocate has a duty to safeguard
against the abuse of Advocate-client
10. The lawyer in The lawyer is a member of his/her society and confidentiality to perpetrate illegal activity.
society is expected to lead by example. Therefore the
lawyer’s conduct in society must uphold the SOPPEC-8: The Advocate is an officer of the court and has a
dignity and honour of the profession and reflect Fidelity to the duty of fidelity to the law. Therefore the Advocate
the best of his/her society’s values. In his/her law and due shall discharge his/her duty to represent the client
“outside” life as in his/her professional life the process in adversarial proceedings as well as in non-
lawyer must eschew conduct which undermines contentious matters by fair and honourable means
the standing of the legal profession. and without illegality or subversion of the due
processes of the law.
PART III—THE STANDARDS OF PROFESSIONAL SOPPEC-9: The Advocate has a duty to honour any
PRACTICE AND ETHICAL CONDUCT Professional professional undertaking given in the course of
22. This Part III of the Code provides 12 standards of professional undertakings his/her practice in a timely manner. The
practice and ethical conduct (“SOPPEC”) to govern the practice obligation to honour a professional undertaking
and conduct of every member of the Society. A breach of the remains until the undertaking is performed,
standards shall constitute professional misconduct and may attract released or excused. Failure to honour an
disciplinary action. undertaking is professional misconduct.

23. The Code has not assigned weight to a standard or ascribed gravity SOPPEC-10: Inappropriate use of social media, particularly in a
to any particular standard, leaving this to be assessed by the Social media manner that undermines the standing and dignity
disciplinary bodies on a case by case basis. In the absence of a of the legal profession, is professional
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Topic Standard of Professional Practice and Ethical conveyancing or corporate work, such a person is not subject to the
Conduct (“SOPPEC”) control of regulatory bodies, including the Society. In the case of
misconduct, an unqualified person, not being a member of the
misconduct. Material and content drawn from Society, is not subject to disciplinary procedures of the Society and
social media sites may be taken into account by the Advocates Complaints Commission.
regulatory authorities in dealing with a charge of
professional misconduct. 29. An additional reason for the prohibition arises from the fact that
the client of an Advocate authorised to practice law has the
SOPPEC-11: The Advocate who engages in another profession, protection and benefit of Advocate-client privilege, the Advocate’s
Outside interests business or occupation concurrently with the duty of secrecy, and the authority that the courts exercise over
practice of law shall take care not to allow such Advocates. The client also has rights in respect to taxation of bills,
outside interests to jeopardize his/her professional rules respecting operation of client accounts and professional
integrity, independence or competence or the indemnity cover, all of which provide the client with rights and
standing of the legal profession. protections that assure quality service and recourse in case of
SOPPEC-12: The Advocate shall at all times maintain the professional misconduct.
Honesty and highest standards of honesty and integrity towards 30. Scope of the Standard: This Standard requires the Advocate to
integrity clients, the court, -colleagues, all with whom the ensure that he/she:
Advocate has professional dealings - and the
general public. (a) Has in place a valid practicing certificate;
(b) Does not lend his name and reputation as an Advocate for use
PART IV: GUIDANCE ON THE INTERPRETATION OF THE by an unqualified person;
STANDARDS
(c) Takes full responsibility (by, where required, appending his/her
24. This Part IV provides guidance on each standard which comprises signature to a document) for all business in respect to which he
an explanatory note which articulates the standard, provides its has been instructed, even in respect to tasks which he/she has
basis and rationale, and explains its scope and applicability in delegated or assigned to legal assistants and other support staff;
specific contexts.
(d) Does not maintain a branch office unless there is posted at that
Requirement for a practicing certificate branch office on a full time basis a duly qualified Advocate;
25. SOPPEC-1: It is professional misconduct for any person who has (e) Does not, without the approval of the Society, employ an
been admitted as an Advocate to engage in the practice of law Advocate who has been suspended or struck off;
without a practicing certificate valid for the practice year or to
allow his/her name to be used by persons not qualified to practice (f) Reports to the Society instances which come to his/her
law to offer legal services. knowledge of an unqualified person practicing as an Advocate;

26. The Advocates Act, Chapter 16 defines an advocate to mean any (g) If an in-house counsel employed by an unqualified person,
person whose name is duly entered upon the Roll of Advocates. does not draw documents or render legal services to his
Section 9 which deals with qualification for practicing as an employer for which fees are charged directly or indirectly by
Advocate states that no person shall be qualified to act as an his employer and retained by that employer.
Advocate unless:
Advertising and/or marketing
(a) He has been admitted as an Advocate;
31. SOPPEC–2: Except to the extent permitted by the Advocates
(b) His name is for the time being on the Roll; and (Marketing and Advertising) Rules or any amendment or
replacement thereof, it is professional misconduct for an Advocate
(c) He has in force a practicing certificate. directly or indirectly to apply for or seek instructions for
professional business or do or permit in the carrying on of his
27. Statutory basis for the Standard: SOPPEC–1 which makes it the
practice any act or thing which can be reasonably regarded as
duty of the Advocate not to practice unless he has in force a valid
touting or advertising or as calculated to attract business.
practicing certificate is underpinned by the following statutory
provisions of the Advocates Act: 32. Statutory basis for the Standard: SOPPEC–2 prohibits an Advocate
from advertising or marketing his/her practice. The statutory basis
(a) Section 31 which prohibits an unqualified person from acting
for the Standard is rule 2 of the Advocates Practice Rules (LN
as an Advocate;
19/1967, LN 233/1984). The absolute prohibition against
(b) Section 33 which makes it an offence to pretend to be an advertising and marketing in rule 2 has recently been qualified
Advocate or to take or use any name, title or description through the provisions of the Advocates (Marketing and
implying that the person is an Advocate or is recognised by law Advertising) Rules, LN No 42/2014 which prescribe the
as qualified to act as an Advocate; circumstances in which and the manner of permitted advertising
and marketing.
(c) Section 34 which prohibits an unqualified person from
preparing certain documents or instruments including relating 33. Rationale for the Standard: It is important that a person requiring
to conveyancing of property, incorporation of a company, a legal services is able to access information about the Advocates
partnership agreement, probate or letters of administration, or qualified to offer the kind of legal services the person seeks.
for which fees is prescribed by the Chief Justice. Advertisement of legal services by the Advocate may assist
members of the public to access appropriate legal services.
(d) Section 37 which prohibits the sharing of profits with an
unqualified person; 34. Scope of the Standard: However, an Advocate should solicit for
work by means that are compatible with integrity, independence
(e) Section 39 which prohibits and Advocate from acting as an and the dignity of the profession. Accordingly, an advertisement or
agent for an unqualified person; marketing by an Advocate shall:

(f) Section 40 which provides that costs shall not be recoverable (a) Comply with the provisions of the Advocates (Marketing and
where an unqualified person acts as an Advocate; and Advertising) Rules;

(g) Section 41 which prohibits employing persons who have been (b) Not detract from the integrity, independence and dignity of the
struck off the Roll or suspended without the permission of the legal profession;
Council. (c) Not mislead uninformed or vulnerable members of the public;
28. Rationale for the Standard: Statutory provisions prohibit the (d) Not arouse unattainable hopes and expectations; or
practice of law by unqualified persons. This is due to the fact that
whereas an unqualified person may well be capable of advising or (e) Be so undignified or offensive as to be prejudicial to the
representing another in a legal dispute or undertaking interests of the legal profession or public interest.
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35. It is also the case that, by reason of professional involvement in a kinds of legal issues, an Advocate may well not have the
dispute or transaction, the Advocate may be is able to assist the competence to undertake specific kinds of work. It is not good
media in conveying accurate information to the public about the professional practice for an Advocate to accept instructions in
matter in issue. In such circumstances and for that purpose, it respect to which he/she has no capacity to carry out competently
would be proper for the Advocate to make a media appearance. on account of either the specialist or complex nature of the brief or
the experience of the Advocate.
36. The Advocate has a duty to ensure that before making a public
statement concerning a client’s affairs, the Advocate is satisfied 47. When approached in respect to work which the Advocate cannot
that any communication is in the best interest of the client and undertake competently the Advocate should inform the client of
within the scope of the Advocate’s engagement. Additionally, the the fact that the Advocate cannot on his/her own carry it out and, in
Advocate should ensure that his comments are accurate and the event that the client chooses to proceed and instruct the
objective. Advocate, the Advocate should, following discussions with the
client, make appropriate arrangements for the work to be
37. The Advocate may also make media appearances in a non-legal undertaken by, or in association with, an Advocate with the
setting to publicise fundraising activities, promotion of charitable appropriate skills and capacity to competently carry out the work.
or other public interest causes and so on. The Advocate should
always endeavor to uphold the dignity of the profession during 48. As a general principle an Advocate should always advise the client
such appearances. of the need for specialist input where the matter is complex or
relates to a specialist area of legal practice. Failure to do so poses
38. Whether making a media appearance in the context of a legal brief the risk of adversely affecting the client’s interests and, should that
or in a non-legal setting, the Advocate should take care not to lead to a complaint from an aggrieved client, the Advocates risks
convert the media appearance into a marketing opportunity by discipline for professional misconduct. In addition the Advocate
seeking to encourage publicity for himself in the media reports of risks liability for professional negligence.
the case or transaction contrary to the Advocates (Marketing and
Advertising) Rules. The Advocate should take care that the 49. If an Advocate engages or involves another Advocate in the
appearance and comments he/she makes do not infringe on the handling of the matter the responsibility for paying the other
Advocate’s obligations to the client, the profession or the courts. Advocate’s fees, and the likely amount of fees or the basis for
charging the fees, shall be agreed beforehand with the client. In the
Competence and diligence in handling of a client’s brief: absence of an agreement with the client that the client will be
39. SOPPEC–3: An Advocate is under a duty to provide the legal directly responsible for paying the fees to the other Advocate, the
services in respect to which he/she is engaged competently, instructing Advocate remains responsible for the payment of the
diligently and ethically. Failure to do so will be dealt with as fees.
professional misconduct. 50. Diligence: The Advocate has an obligation to carry out the work
40. The Standard on competence comprises several elements: given to him by a client in a diligent and timely manner. Once
he/she accepts instructions it is professional misconduct to neglect
(a) qualification to be admitted as an Advocate; the brief or withdraw from acting without proper notice to the
client and, until the client has either been given an adequate
(b) qualification to practice law; opportunity to instruct another Advocate or personally take his/her
(c) possession of the knowledge, skills and competence to file, the Advocate must continue diligently protecting the client’s
undertake the brief at hand; interests.

(d) diligence in the conduct of the brief; 51. Integral to the competent provision of services to a client is proper
office management and administration systems. The Advocate is
(e) client care; and under an obligation to invest in the necessary financial, technical
and administrative resources required to establish, maintain and
(f) professional indemnity cover. operate an office or offices which enable the Advocate to serve the
41. Rationale for the Standard: A client is entitled to assume that, by client competently and diligently.
virtue of being licensed to practice law, the Advocate has the 52. The Society therefore expects the Advocate, as a condition to
knowledge, skills and competence required to deal adequately with being issued with an annual practicing certificate, to maintain a
a client’s brief. Competence involves possession of an physical address from which he or she operates. Failure to
understanding of legal principles as well as adequate knowledge of establish an appropriate office or put in place the necessary office
the practice and procedures by which legal principles can be management and administrative systems to enable the Advocate
effectively applied. Competence also requires effective client care serve clients diligently which undermines quality service to the
and office administration and management strategies. client can lead to a finding of professional misconduct.
42. Constitutional Basis for the Standard: Article 46(1) of the 53. The nature and appropriateness of the office and the management
Constitution confers on consumers the right to services of systems to be established will depend on the kind and setting of the
reasonable quality. Clients, as consumers of legal services, Advocate’s practice. However where the Society has issued
therefore have a constitutional right to quality legal services. Thus guidance on the establishment, operation and closure (or winding
advocates owe to their clients a constitutional duty to provide up) of Advocate’s office or practice, the Advocate will be expected
quality legal services. to take account of and give effect to such guidance and failure to
43. Qualification to practice law: Section 13 of the Advocates Act, the do so will be a ground for disciplinary action.
Advocates (Degree Qualifications) Regulations, and the Advocates 54. Client care: The Advocate is under an obligation to put in place a
(Admission) Regulations prescribe the professional and academic client care system to enable the Advocate manage the client
qualifications required for admission as an Advocate. diligently. Failure to put in place and operate a client care system
44. Knowledge, skills and competence: The Advocates (Continuing can lead to a finding of professional misconduct.
Professional Development) Rules LN 43/2014 requires mandatory 55. Examples of practices which might lead to disciplinary action for
attendance of continuing professional development programmes on professional misconduct include:
an annual basis. These statutory requirements are designed to
ensure that the Advocate is qualified and has the knowledge, skills (a) Failure to keep the client periodically informed about
and competence required to deal adequately with a client’s brief. developments affecting the client’s matter;
45. Rule 11 of the Advocates (Continuing Professional Development) (b) Treating the client discourteously or disrespectfully by, for
Rules LN 43/2014 expressly provides that failure to comply with example, showing rudeness or routinely failing to keep
the Rules on continuing professional development is an act of appointments with the client without prior information to the
professional misconduct. client;
46. Rationale for the Standard: Whereas, following admission, an (c) Writing letters that are abusive, offensive or rude or totally
Advocate is assumed to be legally qualified to handle any brief, on inconsistent with the proper tone of professional
account of limited experience and the specialist nature of certain communication from an Advocate;
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(d) Failing to take action on a client’s matter when such action is allow himself to be held out directly or indirectly as being prepared
needed for the effective management of the case (e.g. failing, to do professional business at less than the scales laid down by the
without justification, to prosecute a case for more than one year Advocates (Remuneration) Order for the time being in force.”
as required by the rules);
64. Rationale for the Standard: Misunderstanding about fees and
(e) Manifestly poor quality work or a pattern of poor quality work failure to adhere to the provisions of the Advocates
with obvious errors of fact and or law, such as poorly drafted (Remuneration) Order is a common cause of complaints against
pleadings; Advocates. The perception by a client that the fees charged are
inflated or that the Advocate seeks to take advantage of the client
(f) Failure to maintain a system for addressing and remedying will undermine the client’s confidence in the professionalism and
client grievances. integrity of Advocate. If such undercutting widespread it poses the
56. As a consumer of services in a competitive market, the client has risk of bringing the legal profession into disrepute and
the right to use an Advocate of the client’s choice. Therefore the undermining the administration of justice.
Advocate should refrain from obstructing or frustrating a client 65. It is good professional practice to always make clear the basis on
who is seeking to exercise this right. A client may, if need be, which fees will be charged and the likely amount of fees involved
withdraw instructions and move onto another Advocate. It is the in handling a matter. This should be done in the discussion held
Advocate’s responsibility to facilitate the client’s exercise of this with the client at the time instructions are being given. Where no
choice. agreement is reached with the client regarding fees, the Advocate
57. Upon discharge or withdrawal from acting in a matter the should not accept instructions or, if instructions are already issued,
Advocate has an obligation to: the Advocate should not commence the work until such agreement
is reached.
(a) Deliver to the client all papers and property belonging to the
client, subject to any right of lien that the Advocate may have 66. It is good professional practice for Advocates to always encourage
on account of unpaid fees; clients to issue written instructions before the Advocate’s
engagement commences. The written instructions may take the
(b) Provide to the client all material information about the case; form of either a letter of instructions issued by the client to the
Advocate or a memorandum of agreement between the Advocate
(c) Account for all funds of the client and refund any remuneration and the client. In the case of the memorandum of agreement the
not earned by virtue of the services rendered; and memorandum should be signed by both the client and the
(d) Cooperate with successor Advocates to enable them take over Advocate. The letter or agreement should clearly define the nature
the case or transaction. and scope of the engagement and the understanding between the
parties as regards fees, either clearly stating the amount of fees to
58. Before accepting engagement the successor Advocate should be be charged or the basis on which fees will be charged.
satisfied that the former Advocate approves or has withdrawn or
been discharged by the client. It is good practice for the successor 67. It is professional misconduct for an Advocate to undercut by
Advocate to urge the client to settle or secure the account owed to charging fees below the scale fees stipulated in the Advocates
the former Advocate before accepting instructions. But if a trial or (Remuneration) Order. This prohibition means that an Advocate
hearing is imminent or the client would otherwise be prejudiced who participates in a tender process by bidding for work may not,
the existence of an outstanding account should not stand in the way in his/her financial bid quote fees below the scale fees. Neither
of a successor Advocate acting for the client. may an Advocate enter into an arrangement with a client for
discounts based on volume, as a consideration for being retained to
59. Professional Indemnity Cover: The Advocates (Professional undertake the work or on some other basis, if such retainer would
Indemnity) Regulations, 2004 imposed a requirement for a breach the Remuneration Order.
professional indemnity cover to be purchased by every Advocate
practicing on his own behalf. The cover is to be used in the 68. In cases of indigence or hardship faced by a client, or where the
compensation of clients for loss or damage from claims in respect matter in issue is a public benefit matter or the organisation in
of any civil liability or breach of trust by the Advocate or his question pursues charitable objectives Advocates are encouraged
employees. The amount of the cover has been enhanced since the agree to provide legal services on a pro bono basis, in which case
regulations first introduced the requirement and will most likely no fees are chargeable. Unless the pro bono services are being
continue to rise. rendered to a registered charity with VAT exempt status the
Advocate may find that, despite having rendered the services pro
60. Under the rules no practicing certificate shall be issued to an bono, value added tax remains payable.
Advocate without evidence of the required amount of professional
indemnity insurance cover. Additionally, an Advocate who 69. Where however, instead of undertaking the work pro bono, the
proceeds to engage in practice without maintaining the required Advocate wishes to reduce the amount of fees chargeable below
level of professional indemnity insurance can face disciplinary the scale fees on account of hardship or poverty of the client or, in
action for professional misconduct. the case of a client which is a charitable organisation, as a
contribution to the charitable cause being advanced by the client,
61. It is good practice and prudent for an Advocate to secure and the prior written permission of the regulatory bodies (i.e. the
maintain adequate insurance cover against claims based on Society) shall be obtained.
professional negligence. Adequacy will vary from case to case and
depends on the nature of briefs handled by the Advocate. Clients 70. Where, however, the Society has issued guidance on the charging
may also have their own requirements regarding the scope of or waiver of fees for work undertaken pro bono or at a discount the
professional indemnity cover the Advocate needs to secure and the Advocate shall take account of and give effect to such guidance.
rules recognise the right of the Advocate and client to reach Failure to do so will be a ground for disciplinary action.
agreement on this issue. However the Advocate may not reach an 71. Overcharging: The fees prescribed in the Advocates
agreement whose effect is to enable the Advocate reduce the cover (Remuneration) Order are minimum scale fees, not a cap. The
below the prescribed minimum. Remuneration Order also allows fees to be based on agreement
Professional Fees between the Advocate and the client. However to inflate fees
unjustifiably, particularly in respect of vulnerable clients, can
62. SOPPEC–4: The practice of undercutting, that is, charging less undermine confidence in the professionalism and integrity of the
than the scale fees for professional services rendered constitutes Advocate. It can also undermine confidence in the legal profession.
professional misconduct. Similarly, unjustifiably high fees which
72. Examples of overcharging include:
is not commensurate with the professional services rendered
constitutes professional misconduct. (a) Inflating fees and or disbursements incurred;
63. Statutory basis for the Standard: Fees which may be charged by (b) Misleading the client as to the scale fees;
Advocates for professional services are regulated and prescribed in
(c) Generating unnecessary work as a basis for extra fees;
rules promulgated by the Chief Justice from time to time as the
Advocates (Remuneration) Order. Rule 3 of the Advocates (d) Misrepresenting the amount or complexity of the work
(Practice) Rules states that “no Advocates may hold himself out or involved;
 26th May, 2017 THE KENYA GAZETTE 2615

(e) Claiming that the work took more time to carry out than it did 81. Statutory basis for the Standard: The Advocate is a trustee of
and so on. client’s funds and other property in his possession or under his
control. The Advocate therefore has responsibilities of a fiduciary
73. Charging a fee that cannot be justified given the nature and scope towards his/her client. Additionally the Advocates (Accounts)
of the brief or that is so disproportionate to the services rendered as Rules, the Advocates (Accountants Certificates) Rules and the
to introduce an element of fraud or dishonesty or undue profit may Advocates (Deposit Interest) Rules impose on the Advocate
amount to professional misconduct and expose the Advocate to statutory responsibilities in regard to client’s funds and other
disciplinary action. Unjustifiably overcharging a client is to be property in the Advocate’s possession.
discouraged, even if the client has agreed to the fee proposal, since
in many instances the client looks to the Advocate to advise the 82. The fiduciary duty and rules also apply to client’s property.
client properly on the fees chargeable for the brief. “Property” includes securities such as title deeds, charge
documents, share certificates, wills, files, original documents and
74. In dealing with a complaint regarding overcharging or the so on. The Advocate has a duty to maintain a record of client’s
rendering of inadequate services the regulatory bodies will give property in the Advocate’s custody to facilitate proper accounting.
due consideration to the contents of the engagement letter or The Advocate should keep client’s property out of sight and or
memorandum of agreement. It is the Advocate’s responsibility to reach of those not entitled to see them. Subject to the right of lien
ensure that such written instructions or memorandum of agreement the Advocate should promptly return the property to the client
is in place. The failure to ensure that a letter of instructions is upon request or at the conclusion of the Advocate’s engagement.
issued by the client or a memorandum of agreement executed will
be considered as prima facie evidence of professional misconduct. 83. The pillars of the Advocate’s fiduciary and statutory duties
towards the client are to:
75. Contingent fees: The rules governing the practice of law in Kenya
do not permit a “contingent fee” arrangement, under which the (a) Keep client’s funds separate from the Advocate’s own monies
Advocate’s fee or a portion of it is pegged on the outcome of the and avoid co-mingling of funds;
case. The law also prohibits champerty, which is an agreement to
divide litigation proceeds between the owner of the litigated claim (b) Faithfully account to the client for any use made of the funds
and a third party to the law suit who supports or helps to enforce on the client’s instructions for disbursements and other
the claim. Champerty is prohibited in any case but as regards purposes;
Advocates it is prohibited also because an Advocate who has a (c) Promptly pay out to the client any money belonging to the
financial interest in the outcome of the case is unlikely to provide client; and
objective advice and disinterested service to the client.
(d) Safeguard other client’s property in his/her possession to
76. The prohibition of champerty extends to any arrangement under prevent loss, damage or unauthorised access and or use.
which the Advocate acquires a financial or other proprietary
interest in the subject matter of the dispute or in the outcome of the 84. Rationale for the Standard: Complaints arising from
case. The reason for the prohibition is the risk of conflict arising misappropriation and or conversion of client’s funds constitutes
which would undermine the Advocate’s ability to render objective the majority of complaints for professional misconduct lodged
legal advice and services to the client. Advocates should therefore against Advocates. Often these complaints are categorised as
ordinarily avoid the temptation, and resist requests from clients, to “failure to account” or “withholding of funds” but the underlying
finance a client’s litigation in the expectation that upon the success problem is misappropriation or conversion of funds. Not only does
of the claim the Advocate will recover his/her financing costs from such conduct undermine confidence in the legal profession as a
the proceeds of the settlement. whole but it also undermines the administration of justice.
77. Advocates should also avoid a situation in which the Advocate 85. Improper handling of client’s funds contrary to the Standard and
effectively becomes creditor of the client by financing the good practice will be dealt with as professional misconduct. An
litigation or the pursuit of a claim on the understanding that the Advocate has an obligation to promptly transfer to the client or
Advocate will recover the money advanced from the proceeds of third person funds received or being held on behalf of the client or
the settlement. Where there are justifiable reasons, such as third person. An Advocate may not use a client’s funds or property
indigence, for pre-financing a client’s litigation the Advocate to set off payment of outstanding fees or expenses except with the
should, before entering into an agreement with the client on those prior agreement of the client. Refusal or other delay in transferring
terms, seek the approval of the Society and, where the Society has funds to the client or use of the funds for the Advocate’s own
issued guidance on the issue, comply with such guidance. In all purposes amounts to misappropriation or conversion, both of
cases, such agreements should be in writing. which are criminal offences and amount to professional
misconduct.
78. The Advocate should also avoid entering into an arrangement
under which the client settles legal fees “in kind” through for 86. Other acts which exposes the Advocate to the risk of disciplinary
instances the rendering by the client of services to the Advocate or actions for professional misconduct include:
the transfer by the client to the Advocate of property in settlement
of legal fees. Such arrangements involve various legal and (a) Issuing a cheque drawn on Client’s Account which is
technical complications including how to value the services or dishonoured (i.e. returned unpaid) for lack of funds;
property provided by the client, the payment of income and value (b) Failure to produce an Accountant’s Certificate (or statutory
added tax by the Advocate and the risk that the Advocate-client declaration in lieu thereof) pursuant to the Accountant’s
relationship gives way to a transferee-transferor relationship with (Certificate) Rules;
all its attendant complications.
(c) Failure to maintain a separate client’s account and evidence of
79. Commission payments and “finder’s fees”: The rule prohibiting co-mingling of funds or use of client’s funds to finance office,
sharing profits with an unqualified person extends to the practice business or personal expenses;
of paying a commission to, or sharing fees with, another person for
introducing work or referring clients (referred to as “finder’s (d) Trading with client’s money, through for instance delaying
fees”). It also promotes unethical conduct and corrupt practices payment of the funds to the client to enable the Advocate earn
which undermine the standing of the legal profession. It interest on the money contrary to the Advocate’s (Deposit
constitutes professional misconduct and will expose the Advocate Interest) Rules.
to disciplinary action.
87. Information about client’s funds: The protection accorded to client
Client’s property information and communication extends to information about
client’s funds. This means that as a general rule an Advocate may
80. SOPPEC–5: The Advocate shall not appropriate or convert any legitimately not reveal information about client’s funds or other
funds of the client held in trust or otherwise under the Advocate’s property to third parties without the client’s authorisation. This
control without the express authority of the client. Any places the Advocate’s client account at risk of being used,
unauthorised appropriation or conversion shall be treated as wittingly or unwittingly, as a cover for money laundering or other
professional misconduct. unlawful objectives.
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88. An Advocate who knowingly aids or abets money laundering and (b) Where the nature or scope of representation of one client will
other financial crimes is guilty of professional misconduct and be materially limited by the Advocate’s responsibilities to
risks losing the protection accorded to the Advocate as regards another client, a former client, a third person or by the personal
client information. The Advocate should guard against being used interests of the Advocate;
to “provide cover” for illegal activities and has to walk a thin line
between legitimate safeguarding the client’s legitimate interests (c) Where in the course of representing a client there is a risk of
and being an accessory to criminal activities. In operating the using, wittingly or unwittingly, information obtained from a
client’s account and handling client’s funds the Advocate shall current or former client to the disadvantage of that other client
take cognizance of applicable legal provisions and directives or former client.
arising from or issued under the Proceeds of Crime and Anti- 97. Additionally, a client is entitled to expect independent, unbiased
money Laundering Act, or similar legislation. and honest advise from the Advocate. Circumstances in which a
89. It is good practice for the Advocate to put in place systems and Advocate’s independence may be at risk of being compromised
measures to safeguard against the use of the client account for include:
money laundering or other illegal transactions. Such “Know Your (a) Getting involved in a business transaction with the client, such
Client” measures include: as a debtor- creditor relationship;
(a) Ascertaining the identity and authority of the persons (b) Acquiring an ownership, possessory or security interest in a
transferring funds into the Advocate’s account and the property which is adverse to the client’s interest in the same
legitimacy and purpose of the funds transfer; property;
(b) Maintaining complete records of funds received from clients (c) Acquiring a financial interest in the subject matter of the case
and third parties; that the Advocate is handling; or
(c) Where there is reason to do so, making appropriate inquiries of (d) Having a personal or professional relationship with the adverse
the client and third parties as to the source or origin of the party or a close associate or family member of the adverse
funds; party.
(d) Declining instructions where there is reasonable cause for 98. The Standard as regards the need for professional independence
concern that acting on the client’s instructions will lead to applies to an Advocate in private practice as it does to in-house
possible contravention of the law against money laundering. counsel, notwithstanding that in the latter case the advise is
90. Client records: The Advocate’s duty to maintain client records, rendered to the employer. The objectivity and detachment of in-
including files and other client documents requires the Advocate to house counsel may however be compromised, understandably so,
establish and operate a secure filing and archiving system so that by the employer-employee relationship.
the records do not get lost or misplaced or fall into the hands of 99. The Advocate is required to make a full and frank disclosure to the
unauthorised persons. There is no statutory provision as to the client when it becomes clear to the Advocate that there is a conflict
period for which the Advocate must maintain client records before of interest. This requirement is to enable the client make an
destroying them. In view of the cost of archiving closed files, the informed decision about whether to have the Advocate act despite
Advocate cannot be expected to store records indefinitely. the existence or possibility of a conflicting interest. The Advocate
91. In deciding on the appropriate time frame for keeping files and should however nevertheless guard against acting for more than
other records, the Advocate is advised to take account of the rules one client where, despite the fact that all parties concerned consent,
arising under the law on statutory limitations for filing it is clear that a contentious issue may arise between them or that
proceedings, on maintaining certain records, for instance tax their interests, rights or obligations will diverge as the matter
records, and on the administration of estates, among other progresses.
considerations. If the Advocate does decide to destroy records 100. Further an Advocate who has acted for a client should not, in the
reasonable efforts should be made to inform the client, personal same or a related matter, act against the client or otherwise act
representatives or successors to come and take the files before they against the client where the Advocate might be at risk of using
are destroyed. against the client information previously obtained from the
Conflict of interest: client. It is not however improper for the Advocate to act against
the former client in a fresh and independent matter wholly
92. SOPPEC–6: The Advocate shall not advise or represent both sides unrelated to any work the Advocate has previously done for that
of a dispute and shall not act or continue to act in a matter when person.
there is a conflicting interest, unless he/she makes adequate
disclosure to both clients and obtains their consent. 101. The Advocate may act in a matter which is adverse to the
interests of a current client provided that the matter is unrelated
93. A conflicting interest is an interest which gives rise to substantial to any matter in which the Advocate is acting for the current
risk that the Advocate’s representation of the client will be client and no conflicting interest is present.
materially and adversely affected by the Advocate’s own interests
or by the Advocate’s duties to another current client, former client 102. Accepting instructions and proceeding to act without making a
or a third person. disclosure of the existence of a conflict of interest amounts to
professional misconduct. It would be good practice for the
94. Rationale for the Standard: The Advocate’s ability to represent the Advocate to ensure that the disclosure made, and the client’s
client may be materially and adversely affected unless the decision that the Advocate should continue to act despite the
Advocate’s judgment and freedom of action are as free as possible existence of a conflict of interest, are both in writing.
from compromising influences and the relationship between the
Advocate and the client is not materially impaired by the Advocate Confidentiality of Advocate-client communication:
acting against the client in any other matter. 103. SOPPEC–7: Communication between the Advocate and client is
95. Maintaining loyalty to clients promotes trust and confidence in the protected by the rule on confidentiality of Advocate-client
Advocate. Therefore, as a general rule, an Advocate should not communication. Consequently, the Advocate has a duty to keep
knowingly assume or remain in a position in which a client’s confidential the information received from, and advice given to,
interests conflict with the interests of the Advocate, the firm’s or the client. Unauthorised disclosure of client confidential
another client. The Advocate should not represent a client if the information amounts to professional misconduct.
representation involves a conflict of interest. 104. Rationale for the Standard: The protection accorded to
96. Situations in which a conflict of interest might arise include: communication between the Advocate and client and advice
given by the Advocate to the client through the doctrine of
(a) Where the interests of one client are directly adverse to those professional privilege is a crucial element of public trust and
of another client being represented by the Advocate or the firm, confidence in the administration of justice and the independence
for instance in situations where the representation involves the of the legal profession. The Advocate cannot render effective
assertion of a claim by one client against another client; professional service to the client unless there is full and
 26th May, 2017 THE KENYA GAZETTE 2617

unreserved communication between them. The client is entitled book, such as an autobiography, shall not make unauthorised use
to assume that, without his express consent or unless otherwise of confidential information obtained from the client.
required by law, matters disclosed to or discussed with the
Advocate will be held secret and confidential. 114. In the same vein the Advocate may not, without the consent of
the client, provide information on work undertaken for a client to
105. Statutory basis for the Standard: Section 134(1) of the Evidence support a tender submitted to a prospective client or other
Act prohibits advocates from disclosing privileged advocate- solicitation for work. The general principle is that the Advocate
client communication. The privilege covers contents and should not make unauthorised use of information which is
conditions of documents within the Advocate’s knowledge as protected by the rule relating to client confidentiality and should
well as advice rendered by the Advocate to the client. Section only disclose information which is publicly available. Prior to
134(2) of the Evidence Act extends the obligation for non- providing such information to support a tender the Advocate
disclosure after the employment of the Advocate has ceased. shall seek the client’s consent. The same caution should be
Under section 134(1) an Advocate is only permitted to disclose exercised in relation to material published in the law firm’s
privileged communication with the express consent of the Client. profile, brochures, websites and other publicity material.
However, section 134 (1)(a) and (b) does not protect
115. The Advocate should avoid indiscreet conversations or gossip
communication made in furtherance of an illegal purpose as well
which might reveal confidential information about a client or a
as observation by the advocate on commission of crime or fraud
client’s matter. Even in situations where the issue is public
from the time of his employment as the client’s Advocate.
knowledge the Advocate should guard against participating in or
Section 135 of the Evidence Act extends the duty for non-
commenting upon speculation concerning the client’s affairs or
disclosure of privileged information to the clerks and servants of
business. The information disclosed in such informal settings,
the Advocate.
even if it is limited to not more than the identity of a client or the
106. Protection of Advocate-client communication is comprised of the fact that a particular individual has consulted the Advocate,
doctrine of legal professional privilege and Advocate – client could result in prejudice to the client. Any commentary by the
confidentiality. Advocate who is acting for a client will be seen by those
listening as validation of the speculation.
107. Legal professional privilege is evidentiary privilege that protects
an Advocate from being compelled to disclose certain 116. Apart from the risk of prejudice to the client arising from
communications between the Advocate and client in a judicial or indiscreet conversations by the Advocate, respect of the listener
other proceeding where the Advocate may be called as a witness. for the Advocate concerned and the listener’s regard for the
Legal professional privilege acts to protect the Advocate. It is not Advocate’s integrity and trustworthiness will probably be
designed for the benefit of the Advocate but for the benefit of the lessened. The need to exercise care and avoid indiscreet
client and public interest in ensuring access to legal services. conversation applies with equal force to communication on
social media. A breach of client confidentiality through
108. The duty of confidentiality may be waived by the client and indiscreet conservations, even if inadvertent, amounts to
therefore, if a situation arises in which the Advocate is called professional misconduct.
upon to disclose such information, and it is not a situation in
which the duty has been exempted or qualified by law, before 117. Exceptions: There are situations in which the principles of
making the disclosure, the Advocate should seek the consent of confidentiality and professional secrecy of Advocate-client
the client preferably in writing. communications do not apply.

109. The Standard on confidentiality of Advocate-client 118. Reference has been made to the Advocate’s statutory and
communication, on the other hand, covers all communication professional duty to safeguard against the use of the Advocate’s
between the Advocate and the client relating to the advice given client account for money laundering or other unlawful financial
to the client and representation of the client by the Advocate. As transactions. Consequently, the Advocate cannot claim the
a general principle the Advocate should not disclose information protection of confidentiality when assisting and abetting the
unlawful conduct of their clients.
which is protected by the rule relating to client confidentiality.
The scope of the principle of confidentiality is thus greater than 119. The protection afforded to Advocate-client communications may
that of legal professional privilege. also be qualified, for instance, if revealing the information is
necessary to prevent the commission of a crime in furtherance of
110. The Advocate’s obligation of confidentiality and professional
which the client has used or is using the Advocate’s services.
secrecy extends beyond the period of subsistence of the
Indeed situations may arise in which the Advocate has a positive
Advocate-client relationship; indeed it has no time limit. The
obligation to report to the authorities the risk of a crime being
Advocate has to ensure that client confidential information
committed, for instance where there is an impending threat of a
remains confidential even if the client withdraws instructions or
crime, such as a terrorist attack, being committed. The Advocate
terminates the engagement as well as following the conclusion of
will have to exercise professional judgment in deciding whether,
the transaction or brief in question.
in the particular case, disclosure is justified.
111. The obligation to keep Advocate–client communication
120. Disclosure may also be justified in order to establish or collect a
confidential also applies to the support staff in the Advocate’s fee or to defend the Advocate against any allegations of
office. The Advocate has a duty to ensure that such staff professional misconduct but only to the extent necessary for such
members maintain the obligation of confidentiality and purpose.
professional secrecy. In this respect the general rule is that any
information known by the Advocate is deemed to be known by Fidelity to the Law and due process
the entire law firm.
121. SOPPEC–8: The Advocate is an officer of the court and
112. The Advocate’s duty to safeguard client confidential information therefore the Advocate shall discharge his/her duty to represent
requires that the Advocate puts in place measures and systems the client in adversarial proceedings and non-contentious
for data storage and protection. This includes electronic proceedings by fair and honourable means and without illegality
communications and data stored in computers. Thus, if due to or subversion of the due processes of the law.
inadequate protective measures, client information inadvertently
comes into the hands of third parties, the Advocate could be 122. Statutory basis for the Standard: Section 55 of the Advocates Act
guilty of professional misconduct, and in the event that the client identifies advocates as officers of the court hence advocates are
suffers loss and damage as a result of such inadvertent disclosure subject to the jurisdiction of the Court, the Advocates
the Advocate may be exposed to claims of professional Complaints Commission and the Disciplinary Tribunal.
negligence. 123. Rule 8 of the Advocates (Practice) Rules makes certain
113. Client information is for the benefit of the client, not the provisions for the Advocate’s conduct in the context of
Advocate. Therefore the Advocate should not make use of adversarial litigation. The rule prohibits the Advocate from:
information made available to the Advocate by a client to (a) appearing as a witness before any court or tribunal in a
advance the Advocate’s private or business interests without the matter in which he has reason to believe that he may be
consent of the client. By way of example an Advocate writing a required as a witness to give evidence;
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(b) coaching or permitting the coaching of any witness in the not approach or deal with an opposite party who is professionally
evidence he will give before any court, tribunal or represented except through or with the consent of that party’s
arbitrator; or Advocate. To do so will be dealt with as professional
misconduct.
(c) calling to give evidence before any court, tribunal or
arbitrator any witness whom he knows to have been Professional undertakings:
coached in evidence without first informing the court,
tribunal or arbitrator of the full circumstances. 130. SOPPEC–9: The Advocate is under a duty to honour any
professional undertaking given in the course of his/her practice in
124. In adversarial proceedings the Advocate’s function as advocate is a timely manner. The obligation to honour a professional
necessarily partisan. The Advocate does not have an obligation undertaking remains until the undertaking is performed, released
to assist an adversary or advance matters which undermine the or excused. Failure to honour an undertaking is professional
client’s case. But as a member of the legal profession and an misconduct.
officer of the court the Advocate has a duty to uphold the rule of
law and refrain from subverting the course of justice. The 131. An undertaking is a formal promise whose effect is to make the
Advocate must therefore be accurate, make a full disclosure and person giving it responsible for the fulfillment of the obligations
not mislead the court or tribunal, particularly when appearing in respect to which it is given. An Advocate’s undertaking is a
before the court or tribunal ex parte. personal promise as well as a professional and legal obligation. It
is based on the concept of the legal professional as an honourable
125. The Advocate shall not resort to illegal or unlawful means or profession and the expectation that an honourable person will
“sharp practice” to advance his client’s case. Examples of honour his/her word. In legal practice professional undertakings
conduct which would amount to professional misconduct in the are a standard method of mediating transactions. Without such
context of court or tribunal proceedings are: undertakings there would be much difficulty and inconvenience
suffered by clients.
(a) Abuse the process of the tribunal by instituting or
prosecuting proceedings or applications that, although legal 132. Rationale for the Standard: The effectiveness of undertakings
in themselves, are motivated by malice on the part of the given by the Advocates depends on the confidence and belief
client or are brought solely for the purpose of injuring the that a party has that reliance can be placed on the undertaking.
other party or frustrating the processes of the court or The Advocate’s failure to honour the undertaking undermines
arbitral tribunal. such confidence and is detrimental to the client’s interests.
Moreover, a breach of a professional undertaking adversely
(b) Knowingly perverting or frustrating the course of justice by affects the Advocate’s reputation as well as the reputation and
assisting or permitting the client to do something which the trustworthiness of the legal profession as a whole and potentially
Advocate considers to be dishonest or unlawful, such as the can jeorpardise legal transactions.
procuring the disappearance of the court files or removal of
documents from the court records; 133. A professional undertaking is enforceable against the Advocate
personally and therefore the Advocate must exercise care when
(c) Conducting a matter before a judicial officer when the giving and accepting an undertaking. Care requires that the
Advocate or client has a business, personal or other Advocate observes the following principles in giving an
relationship with such officer that gives rise to real or undertaking:
apparent pressure, influence or inducement affecting the
impartiality of such judicial officer; (a) Obtain the client’s express authority to give it;
(d) Attempting or allowing another person to attempt to (b) Give the undertaking in writing and, where given verbally,
influence the decision or actions of the judicial officer reduce it into writing as soon as reasonably practicable
through corrupt or other unlawful means; thereafter to avoid misunderstanding as regards the
interpretation to be given to the undertaking;
(e) Knowingly deceiving or participating in the deception of a
judicial officer or tribunal by offering false evidence, (c) Only give an undertaking which the Advocate has full
misrepresenting the facts or law, presenting or relying on a control over the ability to fulfil;
false affidavit or other evidence, suppressing relevant or
assisting in any fraud, crime or illegal conduct; or (d) Neither give nor accept an undertaking which, to the
Advocate’s knowledge, the Advocate giving the
(f) Dissuading a material witness from giving evidence or to undertaking has no means with which to fulfil it;
falsify evidence.
(e) Where the Advocate does not intend to accept personal
126. If the client wishes to adopt a course of action which the responsibility for the fulfillment of the undertaking make
Advocate considers to be a breach of the rule against abuse of the this clear in the terms of the undertaking given;
court process the Advocate has a duty to advise the client against
it. If the client insists despite the Advocate’s advice the (f) Exercise diligence when accepting an undertaking from an
Advocate’s duty is to withdraw from acting. Advocate.

127. At the same time the Advocate should never waive or abandon 134. The Society has issued guidance on professional undertakings
the client’s rights without the client’s informed consent. But, and members are urged to make reference to the guidance in
whenever a case can be settled amicably the Advocate should giving or accepting undertakings. In dealing with a complaint of
advise and encourage the client to do so rather than commence or professional misconduct arising from failure to honour a
continue legal proceedings. professional undertaking regard will be had to the extent to
which the Advocate’s conduct has complied with or departed
128. The same principles of allegiance to the court and fidelity to the from the guidance on professional undertaking issued by the Law
rule of law apply in the context of criminal proceedings. When Society of Kenya.
defending an accused person the Advocate’s duty is to put
forward the accused person’s defence notwithstanding the The Advocate’s use of Social Media
Advocate’s private opinion as to its credibility or merits and 135. SOPPEC–10: Inappropriate use of social media, particularly in a
vigorously seek to defend the client’s right to a fair trial and a manner that undermines the standing and dignity of the legal
favourable outcome for the accused. But the advocate shall not profession, amounts to professional misconduct. Additionally,
base the accused’s defence on assertions or claims which the material and content drawn from social media sites are relevant
Advocate knows to be false. Admissions made to the Advocate and may be taken into account by the regulatory authorities in
by the accused may impose limitations on the conduct of the dealing with a charge of professional misconduct.
defence, for example by ruling out an alibi defence.
136. Social media are web-based and mobile technologies that turn
129. The Advocate shall at all times demonstrate professional text communication into active dialogue. They principally take
courtesy and respect to his/her colleagues when handling a the form of on-line networking sites. Such sites create a context
matter or undertaking a transaction, including a non-contentious in which Advocates may form links to clients, judges and other
transaction. Professional courtesy dictates that the Advocate shall members of the legal profession. This can create informality of
 26th May, 2017 THE KENYA GAZETTE 2619

relationships among members of the network which can Advocate should be governed by the rule relating to conflict of
potentially undermine detachment and independence in the interest. Where the outside interest is not related to the provision
performance of their work and create the potential for conflict of of legal services, ethical considerations will usually not arise
interest to arise. unless the Advocate’s conduct brings the Advocate personally or
the profession generally into disrepute.
137. Social media provides a platform for short quick messages to be
disseminated widely. It is often the case that comments posted 146. Where the outside interests take the form of the Advocate
online are spontaneous and less than guarded. Such comments, if holding a public office, the Advocate shall, in the discharge of
not carefully thought out, can damage the professional standing his public duties, adhere to the standards of conduct as high as
of the Advocate, particularly when they express unconventional those applicable to the Advocate engaged in private practice.
opinions or are controversial in nature. Social media also exposes Because such Advocate is in the public eye, the legal profession
the Advocate’s personal and social life online and this might can be more readily brought into disrepute by failure on the
create an image of the Advocate which undermines the Advocate’s part to observe the profession’s standards of conduct.
Advocate’s, and more widely the legal profession’s, standing in
society. 147. Consequently, the Advocate holding a part time public office –
for instance membership of a commission such as the Judicial
138. Social media sites may also be used consciously or Service Commission–shall not, during the time of such
unconsciously to promote oneself and solicit for work. Therefore membership, accept or conduct any private legal business where
care needs to be taken not to breach the rules of the profession the Advocate’s duty to the client will or may conflict with the
relating to advertising. Care should also be taken to ensure that Advocate’s official duty or where the Advocate private legal
comments made online are not intended to be relied on for legal work may come into conflict or be seen to conflict with his
advice as this might create exposure to professional liability official duties or position. The Advocate has a duty to avoid the
claims for negligent professional advice. Advertisement or risk or appearance of impropriety by for instance not handling a
solicitation for work on social media in breach of the rules brief before a judicial officer where, on account of the
governing advertisements amounts to professional misconduct. Advocate’s public office, there might be a reasonable
apprehension that the judicial officer’s independence might be
139. Social media offers access to wide audiences in a cost effective
compromised by the Advocate’s appearance in the matter.
manner and for this reason its use has grown dramatically in
recent years including by and among professional persons. Social Honesty and integrity:
media can be used in a way which potentially can undermine the
standing of the legal profession. Therefore in using social media 148. SOPPEC–12: The Advocate shall at all times maintain the
Advocates should be mindful of the obligation to uphold the highest standards of honesty and integrity towards clients, the
dignity and standing of the profession and should apply the same court, colleagues, all with whom the Advocate has professional
high standards of conduct to online activity as they do in their dealings and the general public.
day to day professional life. At all times Advocates should
refrain from commenting on a client’s affairs on social media. 149. Rationale for the Standard: Honesty and integrity are the
hallmarks of a member of the legal profession. By adhering to
The Advocate’s outside interests the highest standards of honesty and integrity a member of the
legal profession will promote trust in the profession.
140. SOPPEC–11: The Advocate who engages in another profession,
Dishonourable conduct on the part of the Advocate either in
business or occupation concurrently with the practice of law shall
private or professional life will reflect adversely upon the
take care not to allow such outside interests to jeopardise the
Advocate, the integrity of the legal profession and the
Advocate’s professional integrity, independence or competence
administration of justice.
or the standing of the legal profession.
141. “Outside interests” include activities connected with the practice 150. As a general rule purely private or extra-professional activities of
the Advocate that do not bring into question the integrity of the
of law, such as directorships on corporations as well as activities
not connected to the practice of law such as business, politics, legal profession or the Advocate’s professional integrity are not
relevant considerations in determining professional misconduct.
sports and the Advocate’s social life.
But if the conduct, whether within or outside the professional
142. Before engaging in other professions or businesses there are two sphere, is such that knowledge of it would be likely to impair the
tests to be satisfied: the profession or business must be an client’s trust in the Advocate as a professional advisor, then it
honourable one that does not detract from one’s status as an would be justified to take disciplinary action for professional
Advocate and it must not be calculated to attract business to the misconduct.
Advocate unfairly, which would be a breach of the Advocate’s
Practice Rules. 151. Conduct in the private sphere which might attract disciplinary
action includes conviction for a criminal offence involving moral
143. Examples of activities which can be seen as calculated to attract turpitude. Sexual harassment falls into this category as fraud,
business to the Advocate unfairly and are therefore improper are: abuse of a position of trust and similar offences. Such conduct
even, if not in the course of the practice of law, amount to
(a) The Advocate becoming an active partner in a non-legal professional misconduct.
firm dealing with insurance agencies;
152. The elements which make up the concept of honesty and
(b) The Advocates registering a limited liability company to
integrity include honesty and candour, personal dignity and
undertake on their own account company work and the
respect for the law. Thus the Advocate:
registration of companies; and
(a) Should not knowingly make a false statement of fact or law
(c) The Advocate joining or acting in association with an
organisation or person whose business is to make, support in the course of representing a client;
or prosecute claims as a result of death or personal injury in (b) Should not fail to correct a false statement of material fact
such circumstances that such person or organisation solicits or law previously made by him/her; and
or receives any payment, gift or benefit in respect of such
claims. (c) Must always demonstrate civility, personal dignity, candor,
respect and courtesy in his or her dealings with others at all
144. The Advocate may only engage in outside interests which are
times, including those over whom he has authority and
compatible with the practice of law. These are activities which
control, such as staff members and those serving as pupils
are honourable and do not detract from the status of the Advocate
in the Advocate’s chambers.
or the legal profession generally. Indeed the Advocate may be
guilty of professional misconduct if he assumes an office or 153. The Standard on honesty and integrity also requires that an
engages in an outside interest which is incompatible with the Advocate may not use unlawful or unethical means to advance
practice of law or dignity of the profession. the client’s case. Examples include obtaining or advising the
145. Where the outside interests might influence the Advocate’s client to obtain evidence through unlawful methods or
suppressing or destroying or advising the client to suppress or
judgment or ability effectively to represent the client the
2620
2620 THE KENYA GAZETTE 26th May, 2017

destroy evidence or other information to the detriment of an 21st January 2013 or any amendment or replacement thereof.
opposing party or advising a client to achieve an objective Repeated failure to adhere to the dress code without adequate
through unlawful methods or conduct. reason can undermine the standing of the Advocate in the eyes of
the public.
154. The Standard which imposes on the Advocate the duty of
honesty and integrity extends to the conduct expected of the 156. The Standard also extends to the Advocate’s management of
Advocate towards all persons with whom the Advocate comes his/her financial affairs, whether personal or business finances.
into contact. At all times the Advocate should demonstrate The Advocate has a professional duty to meet financial
courtesy and good faith. Any ill feeling that may exist between obligations incurred or assumed in the course of practice or in
clients, particularly during litigation, should not be allowed to private life. A pattern of neglect to discharge debts and other
influence Advocates in their conduct towards each other or the financial obligations undermines the standing of the Advocate
parties. Personal animosity between Advocates involved in a and the dignity of the profession. Such a pattern can also attract
matter may cloud their judgment and hinder the proper resolution disciplinary action for professional misconduct.
of the matter.
Dated the 11th March, 2017.
155. The Standard also extends the Advocate’s mode of dressing
when in public. The Advocate is under a duty to dress modestly MERCY K. WAMBUA,
and in a manner that lends itself to the dignity of the legal CEO, Law Society of Kenya.
profession. Where an issue arises regarding the appropriateness
of the dressing of the Advocate, whether male or female, regard ISAAC E. N. OKERO,
shall be had to the extent of compliance by the Advocate with the MR/3429422 President, Law Society of Kenya.
Advocates Dress Code issued by the Law Society of Kenya dated

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