KITUO CHA SHERIA BLOG

The role of an advocate is invaluable in society. They are instrumental in the resolution of disputes and advancing arguments of the public. It is also important to note that they too are human beings

In as much as only 10% of Kenyans approach the formal systems of dispute resolution, Kenyans are very litigious.

It is not uncommon for us as Kituo Cha Sheria to receive complaints from our beneficiaries who are the poor and marginalized in society touching on their advocates. In some cases, the disagreements are those that can be resolved without escalating the dispute and the client and advocate relationship is maintained. However, in most cases, most of our beneficiaries come to us as a last resort after they have had their matters dismissed for non-attendance or execution carried out against them.

This article is aimed at assisting our beneficiaries and every mwananchi on what their rights and obligations are when it comes to the relationship they enter into with their advocate, where they can seek redress for any complaints and the right forum to have disputes addressed.

According to the Advocates Complaints Commission and the Law Society of Kenya, we have 18,792 advocates on the roll of advocates. Most of these advocates are in compliance with the Advocates Act and all Professional Ethics regulations. However, there are some who fail to discharge their mandate causing distress and even financial loss suffered by their clients.

WHERE TO GO?

We have an Advocates Complaints Commission which is under the State Law Office.

They have been in operation since 1990 and currently have their offices situated in Nairobi CBD at Cooperative House along Haile Selassie Avenue. The ACC also does have offices spread across the Country where they carry out a lot of alternative dispute resolution

The Commission is comprised of 2 commissioners, 24 state Counsels, 21 registry and support staff, A commission Secretary and 2 CID Officers.

The Commission does not sanction Advocates. This role is carried out by the Disciplinary Committee which either discharges a complaint or issues sanctions against advocates. The Commission receives complaints, investigates (they have CID officers on board), reconciles disputes and prosecutes.

WHAT TYPES OF COMPLAINTS CAN BE REPORTED AT THE COMMISSION?

1. Advocates withholding client funds
2. Failure to account to a client
3. Failure to keep a client informed
4. Issuing cheques which are subsequently dishonoured-this is also a criminal offence
5. Failure by an advocate to honour a professional undertaking
6. Inactivity in pursuing a client’s court matter
7. Failure to reply to correspondence
8. Failure to comply with instructions of a client
9. Failure to release a file or documents especially where instructions have been withdrawn from the advocate
10. Overcharging
11. Undercutting- charging way below the Advocates Remuneration Order
12. Failure to attend court
13. Not disclosing conflict of interest
14. Demanding fees from a person who is not a client
15. An advocate practicing without a certificate

WHAT COMPLAINTS ARE NOT HANDLED BY THE ACC?

1. Cases relating purely to negligence of advocates in the discharge of their duties
2. Complaints against judicial officers and state Counsels

WHAT THEN IS THE PROCESS OF LODGING A COMPLAINT?

1. Obtain a help form at the Advocates Complaints Commission offices or form the Office of the Attorney General or download it from www.acc.go.ke for free
2. Complete the form and attach any documents supporting your complaint
3. Submit the form online (scanned) to acc@go.ke or deliver the same to the ACC offices

The ACC will thereafter review the complaint and determine whether the same is valid. The Commission will thereafter determine whether to accept or reject the complaint, In both instances the complainant will be informed. Depending on the complaint, the commission will thereafter indicate whether it can go through internal dispute resolution or if it goes straight to the Disciplinary Committee. If Alternative Dispute resolution doesn’t work, then the matter is referred to the Disciplinary Committee and the complainant is thereafter informed of the decision.

What are some of the penalties an advocate may suffer?

If a case against an advocate is not dismissed, the Disciplinary Committee may order the advocate found culpable to pay a fine, an advocate may be suspended and an advocate may be struck off the role of advocates. Suspension is a temporary measure of redress while being struck off is a permanent measure as the advocate ceases to be an advocate and can no longer practice.

What are some of the challenges faced by the Commission?

• Some of the lodged complaints are not clear
• Budgetary constraints
• Failure by complainants to provide evidence when they lodge their claims
• Slow process of resolution of complaints
• Slow process of implementation/enforcement of decisions of the Commission
• Slow cooperation with other stakeholders which slows down the process of investigation and review of claims.
• Delay in getting dates for pleas before the Committee
• Delays in hearing of matters at the Commission due to the many matters being listed for hearing. Currently the Committee sits on Mondays.

HOW CAN A CLIENT PROTECT THEIR INTERESTS?

• Ensure that they issue instructions to their advocates in writings and request for a copy of the same and make sure the full scope of the advocate is captured in the agreement such as his duty to safeguard your interests by attending court, writing to you after court, preparing court documents among other obligations depending on the issue brought to the advocate.
• Agree on fees and mode of payment in writing
• Agree on meeting times and venues in writing
• Ask and retain copies of all documents and communication
• Carry out due diligence on the status of the advocate to confirm whether the advocate is licenced to practice. This can be done by checking the Law Society of Kenya advocate search tool online or making a call to the Law Society of Kenya to confirm whether the advocate is on the roll and has a practicing certificate.
• Make requests from your advocate for payment receipts

HOW CAN A CLIENT PROTECT THEIR INTERESTS?

• Ensure that they issue instructions to their advocates in writings and request for a copy of the same and make sure the full scope of the advocate is captured in the agreement such as his duty to safeguard your interests by attending court, writing to you after court, preparing court documents among other obligations depending on the issue brought to the advocate.
• Agree on fees and mode of payment in writing
• Agree on meeting times and venues in writing
• Ask and retain copies of all documents and communication
• Carry out due diligence on the status of the advocate to confirm whether the advocate is licenced to practice. This can be done by checking the Law Society of Kenya advocate search tool online or making a call to the Law Society of Kenya to confirm whether the advocate is on the roll and has a practicing certificate.
• Make requests from your advocate for payment receipts

WHAT ADVOCATES CAN DO TO BEST SAFEGUARD THEIR PRACTICE AND PROFESSION

Ensure they manage the expectations of their clients

Ensure they carry out all the duties owed to their client and communicate and preferably in writing to their clients

Only take on the cases they can manage. This will then prevent scenarios where clients do not get the attention they require.

Take care of their mental health. This is through seeking professional help, taking time to debrief, take care of their health and rest. This would enable them best carry out their mandate to the many clients they represent which if not done, may create pressure on the advocate and cripple his or her ability to discharge their mandate.

Some of the ways in which stakeholders can assist the Advocates Complaints Commission

1. Enabling timely resolution of complaints by providing the Commission with Claims statement evidence and information that facilitates timely investigations such as reports from insurance companies and banks, certified copies of judgments and proceedings.

2. Promote interdependence of stakeholders through referrals 

3. Provision of free legal aid services and legal aid. Legal Aid Services will reduce instances of complaints as the public will be more aware of their rights. Free legal aid services will ensure less issues of the mostly lodged complaints which touch on withholding of client funds and court documents.

4. Partnership with institutions offering legal education. Currently the Commission has an MoU with the Kenya School of Law as well as the Kenyatta University Law School. This is with the intention to deter professional misconduct in young lawyers to prevent them from being corrupted by rogue advocates.

5. Conduct public sensitization and legal aid clinics in the Counties

6. Vetting of advocates for public offices. Government institutions and advocates to liaise with advocates to establish the suitability through vetting of Legal Professionals for appointment to public offices.

RECOMMENDATIONS

• Need for psychosocial support for lawyers at the point where they are starting off as lawyers for them to manage their expectations in practice and sensitization to ensure they are not caught up by social pressure created by society.
• Need for advocates to embrace the Commission as opposed to viewing it as the enemy
• Need for sensitization of the public on the commission
• Need to sensitize the public on the role and importance of alternative justice systems in ensuring that there is fast dispensation of issues.
• Advocates to get further training on the procedure of the Disciplinary Committee and the Advocates Complaints Commission.
• ACC to pick up training of clients to self-represent themselves
• Need for senior advocates to cling to the universities and share on humble beginnings.
• Need to track advocates who have been struck off to deter them from setting up shop in other areas.

By: Tracy Wanjiku Wachira – Legal Officer, Kituo Cha Sheria