Sometime this year, the courts had to deal with the issue of legislators who are advocates also appearing in court for a client in a case against the Director of Public Prosecutions.
The client sought to stop her arraignment on allegations of corruption.
The prosecution argued that the issues in that case had been the subject of inquiries by a Senate Committee in which the advocates also sat as members.
The court ruled that no prejudice would be suffered by the prosecution on account of the advocates acting for the client seeking to stop the intended prosecution.
The same issue arose when two serving senators appeared as part of the defence counsel in the trial of the Governor of Nairobi.
Though the issue of whether serving senators could represent an accused person was never raised in court, it remained in the minds of many.
The argument then was that because the principal mandate of the Senate under the Constitution is to oversee the implementation of devolution and provide oversight over county governments, the senators risked compromising their respective obligations of objectivity should the issue of the county government and the accused governor end up in the senate for deliberation.
While the President expressed concern over this tendency of serving legislators also working as defence counsel for persons charged with offences or as litigants in court during his address to the nation on Jamhuri Day, he is not the only president concerned about this issue.
Decades ago in the United States of America, a statesman, and later president, contended with this issue in very personal terms.
While serving as a member of Congress, the sixth president of the United States, John Quincy Adams, turned down an offer to argue a case for a client in the Supreme Court.
He said: “It occurs to me that this double capacity of a counsellor in courts of law and a member of a legislative body affords opportunity and temptation for contingent fees of a very questionable moral purity.”
CONFLICT OF INTEREST
At that time, John Quincy Adams’s position was on outlier because this was fairly common, and renowned lawyers of the day such as David Webster often acted as attorney for a bank which had interest in congressional action while also sitting in the Senate.
President Uhuru Kenyatta’s discomfort with this was therefore not new.
It probably comes from the understanding of the legislators’ role as fiduciaries of public interest and more specifically as delegates of their constituents in whose best interests the legislators should always act.
In this sense, therefore, an elected legislator’s relationship with the citizenry is similar to that of a lawyer and his client.
The objection against a lawyer who is also a legislator acting for another party in court is one that could create two levels of clientele for the lawyer-legislator and result in an actual conflict of interest.
The easiest example that President John Quincy Adams tried to illustrate was where a lawyer represents a client whose instructions are to take issue with legislation passed by the body in which the lawyer serves.
RIGHT TO COUNSEL
More complicated could be the fact that the client’s instructions may require the lawyer to take a view on the legality or constitutionality of a legislation whose formation the lawyer was party to as a legislator.
In this scenario, the lawyer\legislator could find himself unable to honestly fulfil his respective fiduciary duties to the electorate on one hand and the paying client on the other.
But legislators who continue to represent clients in court while holding legislative office have often responded that such a situation is an undue concern in the minds of their electors.
They argue that the voters, in selecting a lawyer in active litigation practice, make the choice with this in mind and in the belief that the professional commitments would not unduly affect their effective representation by the lawyer.
But in Kenya, this concern even had greater challenge because the Constitution gives a specific right to counsel of a person’s choice subject to availability of and willingness of the advocate to represent that client.
The defenders of this argue that the Constitution is oblivious to the conflict of interest challenge or at the very least thinks that the right to counsel of choice supersedes the danger that the conflict may bring into the matter.
This danger of conflict of interest is not only based on the actions of a legislator representing a client in court.
The more obvious and dangerous one is where a legislator acts for client who also has an interest in particular legislation. In the United States, attention has been given to this matter at several levels.
The first was to create laws that prohibit or regulate lobbying by public officials on behalf of clients.
The other is simply by the creation of criminal laws to punish such improper actions. Congress in the USA has made this difficult for members of the legislature (House of representatives and the Senate) to engage in law through appearance as litigation advocates in court.
The Senate has specifically prohibited any senator from practicing law except as a sole practitioner and on non-official time.
This is meant to prevent the practice by which serving legislators leverage their influence to attract work for their law practices through the firms’ partnerships.
This is intended to prevent members of congress from selling their names to add lustre to their law practices while still in service of the legislature.
Bar associations have also taken up these issues. An example of action taken against attorneys leveraging of public office by the professional associations is in the case of the American Bar Association, whose canons of Professional Ethics contain guidelines that prohibit a law firm from representing any client before a legislative committee if a member of that legislative body is a partner in the firm.
In Kenya, no law expressly prohibits legislators from acting for any party in court as a client. There is thus need for a larger public debate on conflict of interest of legislators and what its limits should be.
The appearance of the lawyer-legislator in court on behalf of a client is seldom in the client’s best interest.
But it benefits the lawmaker as it makes him or her even more attractive to those clients intent on obtaining a lawyer with more than just professional acuity to the case.
The writer is Head of Legal, Nation Media Group PLC