NYAMWEYA: Don’t feel so helpless in front of advocates - Daily Nation

Don’t feel so helpless in front of lawyers, the law protects you too

Saturday January 12 2019

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By OMWANZA NYAMWEYA
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There has been hue and cry over professionalism of advocates and on how they charge legal fees. In the recent past we have had prominent lawyers who have been struck off the roll of advocates including a onetime minister.

Advocates have been accused of stealing clients’ money, practicing without a license, breach of confidentiality, undercutting, coaching of witnesses and charging illegal fees. Advocates, just like the medical profession or the engineering profession, get disciplined for professional misconduct. Professional misconduct is when a member of a profession fails to adhere to the rules, regulations and the basic ethos of such a profession.

REGULATIONS

The legal profession is guided by the Advocates Act, the Law Society of Kenya Regulations and the Advocate’s Remuneration Order. The Advocates Act establishes the basic legal framework for advocate’s disciplinary mechanisms. The Law Society of Kenya Regulations regulates the conduct between lawyers and provides guidelines and instances when conduct amounts to professional misconduct. The Remuneration Order regulates the charging of fees by advocates. Charging of lower fees than what is provided in the Remuneration Order amounts to undercutting, which is a professional misconduct.

The upsurge in arrests of advocates over legal fees is a worrying trend, charging of fees is not an offence and it is not illegal for advocates to charge fees that the public feels is excessive. There exist laws that govern disciplining advocates and voicing complaints if one is aggrieved by the fees charged.

The Advocates Act provides for a two tier system. Section 53 the Act establishes the Complaint Commission and section 57 establishes the Disciplinary Tribunal. The Complaint Commission Section 53 (4) receives complaints regarding professional misconduct about a firm, a particular advocate, an advocate’s employees and any member of such firm. It’s the duty of the commission to consider any complaint received and if it merits the commission shall forward the same to Disciplinary Committee for action but if the commission considers that it’s a matter not within the purview of the committee and the commission, it shall advice the complainant to direct such matter to the courts.

DISCIPLINARY

An order made by the commission is registered with the court and becomes and can be executed as a court order.

If the complaint is a matter in regards to fees charged by an advocate, the commission has powers to call for the fee note and if the advocate fails to surrender it, the commission has powers to asses such fees as it deems fit. Under subsection 6 E the commission has powers to investigate the accounts of an Advocate.

The commission can order an Advocate to provide documents to accounts held by the advocate to the commission or an accountant appointed by it for investigation.

These are some of the the avenues through which advocates get disciplined in case of any wrong amounting to a professional misconduct by or any questionable issue on the legal fee charged by an advocate.

Section 57 establishes the Disciplinary Tribunal, the tribunal consists of, the Attorney General, the Director of Public Prosecutions, the Solicitor General or a person deputed by the Attorney General and (6) six advocates of not less than 10 years standing and one of those advocates is one who does not practice within Nairobi.

COMPLAINANT

In Section 60 (1), a complaint against an advocate is made to the tribunal if one considers the advocate’s conduct as a professional misconduct or dishonourable conduct incompatible with the status of an advocate. The complaint shall be filed in the form of an Affidavit by any aggrieved party.

The tribunal shall consider the evidence before it and if the evidence discloses misconduct the tribunal can order either that the advocate be admonished, the advocate be suspended from practice for not more than five years, the name of the advocate be struck of the roll, the advocate pays a fine of Sh50,000 or any combination of the orders above. The Advocate may also be required to pay not more than Sh5 million to the complainant.

The tribunal also has powers on complaints on advocates fees. The tribunal can require an advocate to file a bill of costs for taxation and if the advocate fails to file the tribunal can determine the fees as it deems fit.

Omwanza Nyamweya is an advocate of the High Court of Kenya

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