All about the Queen’s counsel, cab-rank rule and DPP’s choice

George Barnard Shaw once said that all professionals are a conspiracy against the laity. He was presciently spot on with regard to the responses to the appointment of a Queen’s Counsel to act in the case of the Deputy Chief Justice in Kenya.

It is nearly three weeks since the Director of Public Prosecutions appointed a lawyer from England of the rank of Queen’s counsel to act in the case relating to the intended prosecution of the Deputy Chief Justice.

Opinion was divided on whether it was the correct action.

THRILLED

Members of the public were thrilled and beguiled almost equally.

The advocates in Kenya were no less divided.

In contention was whether the reason given for the appointment of the foreign advocate was justifiable.

Why should a lawyer from another jurisdiction be permitted to come and practise in Kenya, whatever his competence and qualification in his original jurisdiction of practice?

Even more amazing was the argument that in any event, Kenya has its own roll of senior counsel which is the equivalent of Queen’s counsel in England.

The sceptic advocates asked: Is it that none of the senior counsel in Kenya could attend to the case?

NEO-COLONIALISM

Kenyans given to ultra-nationalism even saw a strand of neo-colonialism while the lawyers given to occupational protectionism which arises from exclusive occupational licensing like that of the legal profession in Kenya saw an opportunity lost.

Given that the right to practise law in all its forms has been held to be a property right, the appointment of an advocate from a different jurisdiction can result in challenges by the cartel that perceives its right as being invaded by the permission to foreigners.

It is not in doubt that services of Queen’s counsel abroad are a good source of invisible export by Britain to its former colonies.

This is fortified by the experience that foreign clients whether litigating in the United Kingdom or within their own countries often prefer to get Queen’s counsel to represent them in difficult or sensitive legal cases.

CONTENTIOUS

The issue as to the essence of Queen’s counsel is one that is contentious, not only in Kenya, but in many jurisdictions including in England where this category of lawyers arose and from which many commonwealth countries, including Kenya, have copied.

The distinguished cadre within the legal profession known in England as Queen’s Counsel (or King’s as the monarch may be at any time) is now known as Senior Advocate in Nigeria and Senior Counsel in Kenya and South Africa.

In Sri Lanka, this distinguished advocate is known as the President’s Advocate.

UNITED STATES

It is only the United States which has insisted on its egalitarianism and resisted the categorisation of practising lawyers in this manner.

The letters gained following an appointment to this rung of the profession, whether as SC for senior counsel or QC for Queen’s counsel, brings with it instant benefit to the appointee: Higher fees, priority rights to address court and the supposedly more complex but in truth just more financially juicier cases.

A joke is repeatedly told of a barrister who hiked his fees in the middle of a case after receiving his letters patent (the document of appointment to that hallowed club).

At one point, the office of fair trading in England opined that the system of Queen’s Counsel offered questionable value to the public consumers of legal services because of the inordinate increase of fees by Queen’s Counsel upon being granted that designation.

WIGS AND GOWNS

The costume of wigs and gowns, which already makes the profession appear puffy, is further elevated by the Queen’s Counsel’s silk gowns.

It is for this reason that they are called Silks and being appointed one makes the appointed say that he has “taken silk”.

This categorisation of the profession into Queen’s counsel, senior counsel and others is not one that is acceptable to all.

Even in Britain, former Lord Chancellor Irvine once proposed a change to the system including its abolition altogether.

His view was that this designation was an arbitrary one that did not necessarily reflect a genuine professional elite and therefore did not serve the ultimate consumers of the service, that is the clients, in any useful way.

This might be partly true but I have no doubt that senior counsel or Queen’s counsel have in their respective ranks some of the best lawyers who do justice to the society and enhance the standing of the profession.

DISTINCTION BY SKILLS

The existence of Queen’s counsel within the profession and in other countries where it is accepted, calls for the need to recognise advocates of distinction by their skills, integrity, independence, diligence, and experience.

In other words, the Queen’s counsel or similar designation, should be a mark of quality for a lawyer.

LEARNED FRIEND

In British Columbia, Canada, it is Queen’s counsel who are addressed as my learned friend and other counsel merely as my friend!

But back to Kenya, the answer as to why the DPP thinks it is appropriate to invite a Queen’s counsel for the cases relating to the intended prosecution of the DCJ was not answered directly.

However, it is surmised that perhaps the advocates in Kenya, including the senior counsel, may have been reluctant to do so possibly out of fear of antagonising the Judiciary, generally, or the DCJ individually.

DERELICTION OF DUTY

If at all the fear of going against a judge was one part of the reason that an advocate could not be found to take up the case in Kenya, then there seems to be a dereliction of duty on the part of the advocates approached.

My reason for this is that lawyering and advocacy is an office more than just a vocation or profession.

Most lawyers will agree that their entry into the profession is not founded on their partnership deeds in the firms in which they practise or even the letters of appointment executed with their employers.

The foundation of an advocate’s responsibility is that they are officers of the court.

PROFESSIONAL ALLEGIANCE

It is to the court that they owe their professional allegiance.

This, rather than their partnership deeds or letters of employment, is the advocate’s office.

This office is taken up by an oath sworn by the advocate in which he or she swears that the honour of privilege of practising law requires that he ensures that justice is the principal objective and must be the result of every brief.

In Kenya, the oath taken by a candidate as a condition to admission as an advocate binds the oath taker to ensure that the rule of law is served at all times without fear or favour or any prejudice whatsoever.

In Ontario, the Candidate must swear that “I shall champion the rule of law and safeguard the rights and freedoms of all persons.”

The core of this oath is common to lawyers all over the world: That whatever jurisdiction an advocate is to practise in, the advocate must swing the sword of his advocacy in whichever direction and at whomever he is called to do to ensure that justice is served within the law.

CAB-RANK RULE

This principle is further embedded in the form of a statement known as the cab-rank rule which makes an advocate duty bound to take a case from a client and may not refuse to provide legal representation based on the popularity of the client, the case and the nature of the offence or issues at stake.

The phrase is drawn from British cab drivers who developed among themselves a requirement to take on all customers irrespective of their destination.

This was meant to ensure that all persons in need of a taxi cab were able to get it irrespective of the distance of their travel.

Before this, there was a tendency by cab drivers to ignore s over short distances in favour of those headed to further destinations because of the profitability involved.

RIGHT TO REPRESENTATION

In the legal context, the cab-rank rule seeks to ensure that the right to representation is guaranteed to every person in need of a legal service.

It, therefore, obligates an advocate who is approached by a client to provide the services to the best of his ability without introduction of a filter on the status of the client or the client’s opponent.

Therefore, if one of the reasons for the need for a Queen’s counsel in the DCJ’s case was that the advocates for some reason were unwilling to take up the case then there may well be a case of breach of the cab-rank rule guideline.

My view, however, is that in the same way that any accused person is entitled to representation by an advocate of his choice, so is the DPP entitled to the choice of counsel, including a Queen’s counsel.

Mr Owino is the Head of Legal Affairs at NMG. [email protected]