Duties of Advocate To Client and Self

ATP 105
PROFESSIONAL ETHICS AND PRACTICE
KENYA SCHOOL OF LAW, CLASS
DR. OMONDI R. OWINO

Advocates Duty to the Client
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Who is a client?
Section 2 Advocates Act
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“client” includes any person who, as a principal or on behalf of another, or as a trustee
or personal representative, or in any other capacity, has power, express or implied, to
retain or employ, and retains or employs, or is about to retain or employ an advocate
and any person who is or may be liable to pay to an advocate any costs;
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Duty of Confidentiality
Article 31 Kenyan Constitution;
In SBI International Holdings Ag (Kenya) v Amos Hadar [2015] eKLR the court stated of the
duty of confidentiality imposed on an employee:
a) The protected information must concern specific skills and not general information in the
public domain;
b) Information relating to illegal activities undertaken by the employer either independently or
in cahoots with the employee does not qualify for protection under the duty of confidentiality.
On the contrary in such cases, the employee is under a duty of disclosure;
c) The duty of confidentiality is not vitiated but the absence of a written confidentiality
agreement or clause;
d) The protected information must be specific and of proprietary value because not every
piece of information that is labeled confidential is in fact confidential.
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It creates an environment of trust between a client and advocate to enable a

client disclose sensitive information;
Enables an advocate to competently represent a client since absence of full
disclosure may lead to ambush in court;
The fiduciary nature of the advocates work prohibits disclosure of
confidential information to third parties - section 134 Evidence Act CAP 80
Laws of Kenya;
Confidentiality includes interpreters, and advocates’ clerks and servants –
section 135 Evidence Act
See sections 136 – 137 Evidence Act;
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Section 134(1) Evidence Act

No advocate shall at any time be permitted unless with his client’s express consent, to disclose any
communication made to him in the course and for the purpose of his employment as such
advocate, by or on behalf of his client, or to state the contents or condition of any document with
which he has become acquainted in the course and for the purpose of his professional employment,
or to disclose any advice given by him to his client in the course and for the purpose of such
employment:
Provided that nothing in this section shall protect from disclosure—
(a) any communication made in furtherance of any illegal purpose;
(b) any fact observed by any advocate in the course of his employment as such, showing that any
crime or fraud has been committed since the commencement of his employment, whether the
attention of such advocate was or was not directed to the fact by or on behalf of his client.
(2) The protection given by subsection (1) of this section shall continue after the employment of the
advocate has ceased.
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Duty to Communicate with the Client

Advocates are obligated to maintain effective, frequent and professional communication with
the client;
An advocate should truthfully communicate merits and demerits of a client’s case when
taking instructions;
An advocate should use simple comprehensible language and avoid legalese when
communicating with a client;
An advocate should give as much information as possible to aid the client in making informed
decision on possible legal choices;
An advocate should keep the client informed of the status of the matter during
representation;
Failure to uphold duty to communicate amounts to professional misconduct
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Duty of Loyalty/to Act on Client Instructions

As a client’s representative, an advocate only acts on the basis of instructions and
commits professional misconduct if he acts otherwise;
An advocate should avoid conflict of interest i.e. taking instructions that run
contrary to a client’s best interest;
All major decisions must be undertaken only with the client’s consent;
Obligation to safeguard the client’s property;
An advocate should be truthful and candid at all times;
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Duty to competently represent the client

Zealously and fearlessly represent the interests of the client within the
boundaries of law;
Exhibit thoroughness and preparation in executing client’s instructions;
An advocate should execute the client’s brief with skill and diligence;
The advocate should act for the client until conclusion of the matter even
where there is a dispute on fees and thereafter sue for his fees.
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Duty to charge reasonable fees

An advocate must not undercut but charge fees in conformity to the
Advocates Remuneration Order (ARO), 2017 – Rule 3 ARO; see also section
44 Advocates Act;
An advocate and the client are allowed to have fees agreements – section
45;
An advocate must not charge fees based on the outcome of litigation or
share proceeds of litigation – section 46 Advocates Act;
The advocate should act for the client until conclusion of the matter even
where there is a dispute on fees and thereafter sue for his fees.
Advocates Duty to Self
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Advocate’s Duty to Self
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Self respect;
Duty to uphold integrity (pp. 49 - 53 Weda);
Dress and grooming - (pp. 71 - 78 Weda)
‘The world sums you up by the clothes you wear and treats you accordingly’
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Ali Kovan (1914-1972)
British Author and Inventor
Avoid professional misconduct - includes disgraceful or dishonourable
conduct incompatible with the status of an advocate, may be made to the
Tribunal by any person. (section 60(1) Advocates Act)
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Client’s Obligation to the Advocate
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Candor and full disclosure ;

Payment of agreed fees and disbursements;
Cooperation;
Clear and unequivocal instructions;
Duty to inform advocate about change of circumstances;
Respect for rule of law in pursuit of justice.
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ATP 105

PROFESSIONAL ETHICS AND PRACTICE

KENYA SCHOOL OF LAW, CLASS

DR. OMONDI R. OWINO

It creates an environment of trust between a client and advocate to enable a

Section 134(1) Evidence Act

Duty to Communicate with the Client

Duty of Loyalty/to Act on Client Instructions

Duty to competently represent the client

Duty to charge reasonable fees

Candor and full disclosure ;

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