A peek into the world of ‘learned friends’

• The recent ruling by the High Court that lawyers can advertise their services has triggered a lively debate outside and within the profession. We asked lawyer SEKOU OWINO to let us into the thinking that makes lawyers different from other professionals

One of the essential and defining features of any profession is that it is distinguished by the fact of the training of the members, examination, and or qualification criteria and methods of operation and techniques that set it apart, first as a concrete discipline.

In the case of the legal profession, it is set apart by the methods of operation, attire, and even speech. However, these are just some of the obvious and visible features of the profession.

These include codes of conduct that are long-drawn and ancient in origin and application.

An example of the defining characteristic of the profession of law is the general prohibition against advertising by its members. Granted, this is not unique to law and applies to a number of traditional professions as well.

The reasoning behind this was that it should prevent members of the profession from competing unfairly against each other using hyperbolic descriptions of their services such as the “best advocate” or “you will win”.

This kind of scenario risks turning into a situation where clients are misled into instructing advocates who may promise guaranteed results in their cases.

In short, therefore, the ban on advertising was meant to protect clients from dishonest and puffed self-promotion by the advocate. There is an irony here in the sense that when the High Court declares the prohibition unconstitutional, the reason for the decision was partly anchored on the right of the client, as a potential customer to information about the lawyers and thereby have an opportunity to make the choice of whom to instruct.

If this decision is not challenged on appeal, Kenya will join the league of those few but gradually increasing number countries where advertising by the legal profession is permitted.

The demolition of the ban against advertising will still make it necessary not only for the law to be redrafted, but will require at the very least , that the profession come up with regulations on how advertising by the profession will be conducted.

The very logic that the advertising will help the client have information may prove illusory if there are no regulations to bar false and misleading advertisement by advocates, such as false claims of specialisation in certain areas of the law.

Therefore, even if the advocates in Kenya decide that they will reach their prospective clients by advertisement through tweets, websites, billboards, and on the bodies of public service vehicles, haste is required to ensure that the statements are true and in no way countermanding the consumers’ right to informed choice.

The United States of America is perhaps the country most famous for the scope of advertisement that lawyers may undertake in promoting their services.

Even then, most states have regulations that prohibit misleading statements about the advertiser or their services and even what threshold of competence and qualification a lawyer may have to attain before he or she may claim to be specialised in a given area of the law.

Another important tradition of the legal profession is the ban against fee-sharing with unqualified persons.

This rule prohibits a legal practitioner from engaging in partnership with a person who is not an advocate. Under the law of Kenya, it would constitute a criminal offence for an advocate to work in partnership with or share fees with another person who is not an advocate.

The logic here is that the profession seeks to prevent its members from engaging in agency relationships with unqualified persons to attract business.

It means, therefore, that an advocate should not accept any offer from third parties to attract clients in exchange for “getting a cut” or sharing of the fees from that work.

The fact that this is a criminal offence means that the legal profession in Kenya still insists on a pure and undiluted professional outfit that seeks to ensure that first, lawyers work in partnership with those of their profession and, second, that the sums earned as fees are retained within the professional ranks.