Professional misconduct in the legal profession.

  

Date Posted: 1/27/2013 10:27:00 PM

Posted By: warira  Membership Level: Gold  Total Points: 1095

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Professional misconduct is defined as something which would reasonably be regarded as disgraceful or dishonorable by his profession brethren of good repute and competency (Allison v General Medical Council). The legal profession like any other profession has codes of conduct that its members adhere to. The breach of code of conduct constitutes a professional misconduct. Unprofessional misconduct does not amount to a disciplinary offence although it is conduct that is not approved. Breach of etiquette falls under this category.

The codes of conduct are stipulated in the Law Society of Kenya practice Rules, the Advocates Act, the Law Society of Kenya Act. There are many forms of professional misconduct but I will highlight the most serious among them.

Breach of confidentially is a highly punishable offence as the legal profession is hinged on the duty of confidentiality. The advocate owes his client the duty confidentiality for all the information that he is given. The only time that an Advocate can reveal this information is when he has obtained the consent from the client. It is advisable that the consent should be in writing. Additionally an Advocate can reveal the confidential information with the permit of the court.
Undercutting which in simple terms refers to undercharging. The Advocates Remuneration Act provides the minimum amount that an advocate can charge. Charging a fee below the stipulated amount constitutes an offence. The reprieve is that one can offer his legal services free of charge in what is referred to as ‘Pro Bono services’. Overcharging is also an offence but it is a controversial one since the Act does not stipulate the Maximum amount one can charge.
The legal profession is not a business entity but a profession dedicated to public service. In light of this advocates are not allowed to advertise the legal services.

Advocates should be creative in terms of promoting their work without breaking the law. The Advocates (marketing and Advertising Rules) of 2012 were made following the ruling made in the Omwansa’s case.
Failure to run two separate accounts constitutes an offence. A qualified advocate should have a separate account for their client’s money and their own personal account. A separate client’s account ensures that their money is not embezzled and the money has been used for the proper purposes. At the end of each financial year the account must be audited before one can renew their practicing certificate. The client’s accounts rules, Advocates Accountant Certificate Rule and Advocates Deposit Rules provide guidelines on how the advocates should run these accounts.
Sharing of offices with non-advocates constitutes an offence. This is meant to prevent undue influence on the professional work of an advocate due to the attraction of business. This is also to safeguard the issue of confidentiality.

Coaching of witnesses is highly prohibited. An advocate is prohibited from conversing in any way with his witness when he is being examined by the opponent’s advocate. Coaching of witnesses denies the court the ability to get credible evidence in dispensing justice.
An advocate should not employ or remunerate any person who is disqualified from practicing as an Advocate who has been struck off the Roll or Suspended from practicing as an advocate unless the Council of Society Permits.

Complains about an Advocate's conduct are lodged with the disciplinary committee. The complaint is made by affidavit by the complainant setting out the allegations of professional misconduct. If an advocate Is found to be guilty of the offence he may be punished in the following ways:
1. Advocate may be admonished.
2. Advocate may be suspended from practice for a specified period not exceeding 5 years.
3. Name of the advocate may be struck off the Roll of Advocates
4. May pay a fine not exceeding one million shillings or a combination of the above orders as the committee deems fit.
5. That such an advocates pays to the aggrieved person compensation or reimbursement not exceeding Five million shillings.

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