KSL ATP 105 PE TOPIC 6 Part 1The Advocate-client Relationship

KSL ATP 105 PE TOPIC 6 The Advocate Client Relationship

(Part 1 )

CHARLES B G OUMA & EUNICE ARUWA

TOPIC STRUCTURE

PART 1 : Legal nature of the relationship

PART 2 : Duties of the Advocate /Rights of the client/Remedies for breach

Part 3: Rights of the Advocate/Duties of the client/ Remedies of breach

Part 1 : Legal nature of the relationship 1. Who is an advocate? 2. Who is a client? 3. How is the relationship formed? 4. What is the legal nature of the relationship? 5. What are the consequences of the legal nature of the

relationship? 6. Implications of the unqualified person acting 7. Vicarious liability for the acts of clerks 8. The advocate as an officer of the court. 9. Implications of the legal status of an advocate as an

officer of the court.

Objectives of Part 1

At the end of this part, the participant should be able to

1. Determine the existence of an advocate client

relationship

2. Explain the legal nature of the relationship

3. Explain the implications of the legal nature of the

relationship

4. Explain the implications of an unqualified person

being a party to the relationship

5. Evaluate the correctness of the court findings on the

unqualified advocate

Part 1: Readings

Section 2 advocates act

S 15(4) and 55 Advocates Act

Sections 32 Legal Education Act 2013

Part III and IV V VI VII & VIII Advocates Act

Article 47 48 50 50(2)(g) CoK 2010

S 81 Advocates Act

Senior Counsel Conferment and Privileges Rules, 2011

Part 1: Readings

Prof Tom Ojienda and Katarina Juma Professional Ethics Law Africa Nairobi 2011pp 31-45 65-73

M Slabbert , The requirement of being a "fit and proper" person for the legal profession PER / PELJ

2011(14)4 http://dx.doi.org/10.4314/pelj.v14i4.7

Josephine Mutugu, Exposition of the law and the process of admission to the bar in Kenya,

Membership in LSK (http://www.lsk.or.ke/index.php/membership)

Part 1: Section 1

Who is an advocate?

Who is an advocate?

1. Definition

2. Qualifications

3. Senior counsel

4. Precedence

5. The advocate as an officer of the court

Who is an Advocate?

This is a threshold question

For their to be a relationship of advocate and client, the parties to the relationship must be an advocate and a client

If either party does not answer to the foregoing descriptions, serious complications can arise

Blacks Law Dictionary (8th Edition)- a person who assists, defends, pleads or prosecutes for another.

S 2 of the Advocates Act Cap 16

Who is an Advocate?

Who is an Advocate?

Qualifications

Section 9 Advocates Act

Waki J. held in Keami Helpers v Yehuda (HCCC no. 90 of 1996)- the 3 conditions must exist at the same time.

Cf common law position on the unqualified advocate.

Who is an Advocate?

Section 10 persons entitled to act as advocates.

Do these persons have similar rights and obligations?

What, if any are the differences?

Who is an advocate? Conditions for admission- SS 12-15

Nationality

Education

Moral fitness

Experience? ( the former section 32, repealed by section 50 LEA 2012) What informed the enactment of section 32 and its eventual repeal?

Mohammed Ashraf Sadique & another V Matthew Oseko T/A Oseko And Company Advocates [2009] EKLR

Who is an advocate?

S11 Foreign advocates

Admission

Qualifications

Limitations

Conditions

Discipline

Are the rights and duties of foreign advocates analogous to those of local advocates?

Who is an advocate? Acquiring the practicing certificate

Procedure for application

Supporting documentation

Timelines

Gazzetment

Retroactivity s 24 Advocates Act

Fees

Consequences of not applying on time or at all see rule 35 of the digest

Who is an advocate?

Senior Counsel

Section 81(1)(e) Advocates Act

S17 Advocates Act

Senior Counsel Conferment and Privileges Rules, 2011

Rules provide qualification criteria in detail

Rules provide for the appointment process

Role of senior counsel

Who is an advocate?

Precedence S 20 Advocates Act, section 6(1) Office of the Attorney General Act

AG SG SC/QC LSK Chair and Vice Chair if not an SC Advocates in accordance with date of signing the Roll.

Importance of precedence Implications of precedence

Privileged position/ benefits/ experience Introductions in Court

Part 1: Section 2:

Who is a client?

Who is a client?


Togstad v. Vesely, Otto, Miller & Keefe, 291 NW 2d 686 - Minn: Supreme

Notice how broadly section 2 defines the word client

What is the object of this broad definition? What mischief is section 2 intended to prevent?

Who is a client?

See section 2 advocates act

The prospective client

The instructing client

The actual client

A fellow advocate as the Client

Where do your loyalties lie?

Part 1 section 3

How does the relationship arise?


Section 2

Togstad v. Vesely, Otto, Miller & Keefe, 291 NW 2d 686 - Minn: Supreme

Formally (eg retainer)

Informally( typical)

Way vs Latilla 1937 3ALL ER 759

Beware , you may, in the eyes of the law have clients you do not even know!

Remember to add disclaimers to gratuitous legal opinions


Expressly or by implication

By agreement between a client and an advocate. By formal retainer. (directly)

Between a clients authorized agent and an advocate(indirectly)

By payement of fees or liability to pay fees


Illegal retainers: Ahmednasir, Abdikadir & Co. Advocates V National Bank of Kenya Limited (2006)KLR

Retainer challenged: Njougoro & Co. Advocates V Dubai bank Misc. App. 286 of 2007

Section 46 advocates Act on illegal agreements and the jurisdiction of the court to set aside or vary retainer agreements

Part 1 section 4

Legal Nature Of The Relationship

The legal nature of the relationship

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

Myers vs El Mann 1940 AC 282 1939 4 ALL ER 484

Lewis v His Honor Judge Ogden (1984) 153 CLR 682

Nocton v Lord Ashburton [1914] AC 932

In Re A solicitor

The legal nature of the relationship The relationship can be charecterised as

Principal and agent

Contractual

Fiduciary

Because the relationship is only partially contractual there may be unintended rights and obligations.

Usually the fiduciary has more obligations

The fiduciary relationship overrides contractual provisions

Some rights and duties are implied by statute


Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

I consider that it follows and that it should now be regarded as settled that if someone possessing special skill undertakes, quite

irrespective of contract, to apply that skill for the assistance of

another person who relies upon such skill, a duty of care will arise.

The fact that the service is to be given by means of or by the

instrumentality of words can make no difference. Furthermore, if in

a sphere in which a person is so placed that others could

reasonably rely upon his judgment or his skill or upon his ability to

make careful inquiry, a person takes it upon himself to give

information or advice to, or allows his information or advice to be

passed on to, another person who, as he knows or should know,

will place reliance upon it, then a duty of care will arise.


An action for a breach of a fiduciary duty should be a more frightening proposition to an advocate than a typical malpractice action which require proof of harm ( Hendry vs Pelland US Court of Appeal for the DC 1996)

Recognizing this barrier to legal malpractice claims, more and more plaintiffs are pursuing claims for breach of a lawyers fiduciary duties along with, or instead of, legal malpractice claims. A breach of fiduciary duty claim carries a distinct advantage for a plaintiff: Often, the plaintiff need not show that the breach of duty harmed him in any way

Part 1:Section 5:

Consequences of the legal nature of the relationship

Consequences of the legal nature of the relationship

There are contractual and fiduciary rights and obligations

The relationship is lopsided in favour of the client

Statute and common law seek to protect the client, not the advocate

Batchelor v Pattison & Mackersy (1876) 3 R, 914.

An advocate in undertaking the conduct of a cause in this court enters into no contract with his client, but takes on himself an office in the performance of which he owes a duty, not to his client only, but also to the court, to the members of his profession, and to the public.

Part 1:Section 6

Unqualified persons acting


What is the implications of unqualified persons acting in an advocate-client relationship?

Ss 31 to 43 Advocates Act Prohibited acts Consequences of unqualified persons acting Sanctions

Criminal Professional Civil Contempt of court Invalidity of documents


1. Kajwang vs. LSK 2002 1 KLR 846

2. Khanji v Khanji [1992] LLR 597 (HCK)

3. Kilimani Leasing v Morris Catering [1994] LLR 190 (HCK)

4. Malindi Air v Prestige Air [1997] LLR 842 (HCK)

5. Professor Huq v Islamic University [1995] LLR 44 (SCU)

6. Khalid Butt v Kanjabi [1992] LLR 975 (HCK)

7. Kazungu v K.P.A. [1998] LLR 993 (HCK)

8. Mwalia v KEBS [2000] LLR 993 (CCK)

9. Geoffrey Obura v Martha Koome [2000] LLR 3251 (CAK)


Njagi v Kihara [2000] LLR 1698 (HCK)

Samaki v Samaki [1996] LLR 429 (CAK)

Kingsway Tyres v Alson [1998] LLR 1074 (CCK)

Geoffrey Obura v Martha Koome [2000] LLR 3251 (CAK)

Air Alfaraj Ltd VS Raytheon Aircraft Credit Corporation & anor 2000 KLR 315

Mohammed Ashraf Sadique & another V Matthew Oseko T/A Oseko And Company Advocates [2009] EKLR

KPLC v Chris Mahinda t/a Nyeri Trade Centre HCCA 148/2004 (unreported)

Okenyo Omwansa George vs AG of Kenya

Wilson Ndolo Ayah vs National Bank of Kenya CACA no 119 of 2002 2009 EKLR

Unqualified persons acting:

The case of the unqualified prosecutor

1. Roy Richard Elirema & Another versus Republic,

Criminal Appeal No. 67 of 2002

2. Mulima v Republic [2004] eKLR

3. Pharis Mutembei Mutegi v Republic[2004] EKLR

Suppose the unqualified prosecutor is an advocate?

What happens if an unqualified advocate conducts a criminal defence leading to an acquittal?

Part 1 Section 7

Vicarious liability of the advocate for the acts of the clerk

Vicarious liability

Similar to the normal agency rules

Actual

Apparent

Necessity

Vicarious liability

See the case of Myers vs Elman

See definition of professional undertakings and the requirement of Solicitorial capacity

H P G Waweru J in NP Radier vs DK Njogu& Co Advocates 2006 EKLR

See section 135 evidence Act on privillege

Part 1 Section 8

The Advocate as an Officer of the Court

The Advocate as an Officer of the

Court Section 15(4) Advocates Act



The Advocate as an Officer of the Court

KCB vs Adala 1983 KLR 467

NP Radier vs D K Njogu & Co Advocates NRB HCC 582 of 2003 2006 eKLR

Lord Brougham in Trial of Queen Caroline 8 (1821),

Lord Cockburns response to Lord Brougham

Rondel V Worsley (1967) 1QB 443

Polk County v. Dodson, 454 U.S. 312 (1981) 454 U.S. 312

Part 1 section 9

Implications of the status of the advocate as an officer of the court

The Role of the lawyer

The clarion call for zealous advocacy

Lord Brougham in Trial of Queen Caroline 8 (1821),

'An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion

The Role of the lawyer

Lord Cockburns response to Lord Brougham

My noble and learned friend, Lord Brougham, whose words are the words of wisdom, said that an advocate should be fearless in carrying out the interests of his client; but I couple that with this qualification and this restriction-that the arms which he wields are to be the arms of the warrior and not of the assassin. It is his duty to strive to accomplish the interest of his clients per fas, but not per nefas; it is his duty, to the utmost of his power, to seek to reconcile the interests he is bound to maintain, and the duty it is incumbent upon him to discharge, with the eternal and immutable interests of truth and justice

Implications of the status of the advocate as an

officer of the court

Mason CJ in Giannarelli v Wraith (1988) 165

CLR 543.

A barristers duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his clients success, but also to the speedy and efficient administration of justice.

Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543. Contd

In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.

Batchelor v Pattison & Mackersy (1876) 3 R, 914.

The nature of the Advocate's office makes it clear that in the performance of his duty he must be entirely independent, and act according to his own discretion and judgment in the conduct of the cause for his client.

His legal right is to conduct the cause without any regard to the wishes of his client... and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done even if the client's interests are thereby prejudiced

Implications of the status of the advocate as an officer of the court

An advocate owes duties to multiple stakeholders, the court included

These duties will sometimes clash

Generally speaking, if there be a hierarchy of duties, the primary duty of the advocate is to court

Advocates have certain rights and duties that accrue to them by virtue of being officers of the court

The court has the primary jurisdiction in resolving issues arising out of the relationship

5/11/2015 CBG OUMA & E ARUWA 2014 50

KSL ATP PE 2015

THANK YOU FOR YOUR PARTICIPATION

From Your Course Facilitators

Charles B G Ouma & Eunice Arwa

5/11/2015 CBG OUMA & E ARUWA 2014 51

KSL ATP 105 PE TOPIC 6 Part 1The Advocate-client Relationship

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Transcript of KSL ATP 105 PE TOPIC 6 Part 1The Advocate-client Relationship