Disciplinary Reportfor Publication

The Enforcement of Professional Ethics and Standards in the Kenyan Legal
Profession
Noel Cox
and
Tom Odhiambo Ojienda
Published by The World Bank and the Law Society of Kenya
© The World Bank and The Law Society of Kenya 2010
ISBN XX
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TABLE OF CONTENTS:
PREFACE...................................................................................................6
FORWARD.................................................................................................7
EXECUTIVE SUMMARY........................................................................8
ACRONYMS............................................................................................21
I SCOPE OF REPORT........................................................................22
1.1 Regulation of entry into the Legal Profession...................................22
1.2 Maintenance of a disciplinary system................................................23
1.3 Specific Objective (Scope of Work)...................................................23
II TECHNICAL TASKS......................................................................24
III INTRODUCTION........................................................................25
IV THE INSTITUTIONAL CONTEXT OF THE DISCIPLINARY
BODIES....................................................................................................27
4.1 Theoretical background......................................................................27
4.2 Kenyan situation................................................................................37
V COMPARATIVE STUDY................................................................43
5.1 AUSTRALIA.....................................................................................46
5.1.1 Regulatory authorities........................................................................47
5.1.2 Disciplinary authorities......................................................................47
5.1.3 The Court’s “inherent jurisdiction”....................................................48
5.1.4 Solicitors and barristers......................................................................48
5.1.5 Professional associations....................................................................48
5.2 CANADA...........................................................................................52
5.2.1 Federal system....................................................................................52
5.2.2 Nova Scotia legal profession..............................................................52
5.2.3 Ontario legal profession.....................................................................52
5.2.4 Investigative role................................................................................53
5.2.5 Right of review...................................................................................53
5.2.6 Adjudicative role................................................................................53
5.3 ENGLAND AND WALES.................................................................55
5.3.1 Barristers............................................................................................55
5.3.2 Solicitors............................................................................................56
5.3.3 Investigative role................................................................................58
5.3.4 Adjudicative role................................................................................60
5.4 NEW ZEALAND...............................................................................61
5.4.1 Complaints about bills.......................................................................63
5.4.2 Other avenues.....................................................................................63
5.4.3 New system from 2007/2008.............................................................64
5.5 SOUTH AFRICA...............................................................................67
5.5.1 Attorneys............................................................................................67
5.5.2 Advocates...........................................................................................68
5.6 TANZANIA.......................................................................................70
5.6.1 Advocates...........................................................................................70
5.7 UGANDA..........................................................................................71
5.7.1 Advocates...........................................................................................71
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5.8.1 Specific jurisdictions..........................................................................73
5.8.2 Over-arching conclusions...................................................................74
VI DISCIPLINARY STRUCTURES................................................76
6.1 Review the policy, legal and administrative framework for
addressing advocates (including those in public service), the ethical
issues in place today and the feasibility of previous consultancy
recommendations in view of the passage of time..........................................76
6.2 Admission..........................................................................................79
6.3 Legal education..................................................................................80
6.4 Intervention and account monitoring.................................................82
6.5 Conclusion.........................................................................................83
VII THE ADVOCATES COMPLAINTS COMMISSION.................84
7.1 Introduction........................................................................................84
7.2 Historical background........................................................................84
7.3 Institutional and operational framework of the Advocates
Complaints Commission................................................................................87
7.4 The role of the Commission...............................................................95
7.5 The Advocates (Complaints Commission) (Structure and
Procedure) Rules 2003.................................................................................100
7.6 The administration of the Commission............................................102
7.7 The procedure for dealing with complaints.....................................107
7.8 Possible limitation of the role of the Commission...........................109
7.9 A Review of the shortcomings of the Advocates Complaints
Commission..................................................................................................110
7.10 Duplication of Functions and Responsibilities.................................111
7.11 The independence of the Advocates Complaints Commission
113
7.12 Lack of Proper Rules of Procedure..................................................116
7.13 Lack of Representation of the Law Society of Kenya.....................117
7.14 The Legality Principle under Criminal Law....................................118
7.15 A Legal Profession Ombudsman......................................................118
VIII THE DISCIPLINARY COMMITTEE.......................................120
8.1 Review the structure and administration of the advocates
Disciplinary Committee and propose reforms in the light of
international best practices...........................................................................120
8.1.1 Establishment...................................................................................120
8.1.2 Standing before the committee........................................................124
8.1.3 Mandate, Powers and Jurisdiction...................................................125
8.1.4 Power to Receive and Determine Complaints.................................126
8.1.5 Jurisdiction to determine Costs/Fees................................................128
8.1.6 Orders of the Committee and Enforcement.....................................130
8.1.7 Findings of the Committee and Appeal............................................131
8.1.8 Where there is an appeal by the Advocate to the High Court..........132
8.1.9 Final Order.......................................................................................132
8.1.10 Power to Recommend Restoration...................................................133
8.1.11 Others: Disciplinary Powers as to Clerks........................................133
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8.1.12 Rules of Procedure...........................................................................134
8.2 Propose specific ways to convert the Disciplinary Committee
into an efficient and affective tribunal providing justice to the
aggrieved and the profession in a fair and expeditious manner...................135
IX THE REGIONAL ETHICS COMMITTEES AND THE
DISCIPLINARY COMMITTEE............................................................141
9.1 Propose ways of harmonizing the work of the Advocates
Disciplinary Committee with that of The Law Society of Kenya
regional ethics panels...................................................................................141
X ADVOCATES’ PRACTICE RULES AND CODE OF CONDUCT
144
10.1 Review and propose amendments to the pending proposals for
the amendment of the advocates’ practice rules and code of conduct to
enhance the ethical conduct of advocates....................................................144
10.1.1 Current Advocates’ Practice Rules and Code of Conduct................144
10.1.2 Digest of Professional Conduct and Etiquette.................................148
10.1.3 Proposed amendments to the Advocates’ Practice Rules and
Code of Conduct..........................................................................................176
XI CONCLUSION AND RECOMMENDATIONS........................189
11.1 CONCLUSIONS..............................................................................189
11.2 RECOMMENDATIONS.................................................................191
11.3 REVIEW STRATEGY.....................................................................201
XII ANNEXES..................................................................................202
12.1 TERMS OF REFERENCE..............................................................202
12.2 REPORT OF THE WORKSHOP ON CAPACITY BUILDING
OF THE ADVOCATES COMPLAINTS COMMISSION AND THE
DISCIPLINARY COMMITTEE – 12th May 2007, Imperial Hotel,
Kisumu.........................................................................................................209
DISCIPLINARY COMMITTEE – 26th May 2007, Sarova Whitesands
Beach Resort, Mombasa..............................................................................233
DISCIPLINARY COMMITTEE – 2nd June 2007, Sarova Stanley
Hotel, Nairobi...............................................................................................252
12.5 NOTE ON AUTHORS.....................................................................269
SELECT BIBLIOGRAPHY...................................................................270
INDEX....................................................................................................276
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PREFACE:
In the early part of 2007 The Law Society of Kenya, through the
Governance, Justice, Law and Order Sector Reform Programme
(“GJLOS”) of Kenya, undertook a review of the disciplinary machinery
of the legal profession. This work, conducted by a team of consultants,
was intended, inter alia, to review progress since the 2002 “Review of
the Effectiveness of the Disciplinary Committee of The Law Society of
Kenya and the Complaints Commission” by Mr. Mark Stobbs of the
International Bar Association. This book is the result.
Although the purpose of the project was to identify means of

strengthening the disciplinary processes of the Kenya bar, its application
is broader. There are generic and universal principles of good practice
which are applicable in all countries and in more professions than just
the legal profession. One difficulty faced by the consultants was to
identify processes that reflected good practice and also were workable in
the environment in which they were placed. This involved consideration
of social, political and economic aspects of the environment.
One of the major challenges facing the world today is the relative
fragility of democracy, transparency, and the rule of law in many
countries. This report, though intended for the benefit of Kenya, is a rich
resource for other countries that might wish to review the disciplinary
mechanisms for their legal professions, or other learned professions.
Noel Cox
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FORWARD:
Ms. Betty Nyabuto, 28th June 2007
Secretary/Chief Executive Officer,

The Law Society of Kenya,
Lavington opp. Valley Arcade, Gitanga Road,
P.O. Box 72219-00200,
Nairobi,
KENYA.
Dear Madam,
EVALUATION OF THE FRAMEWORK FOR ENFORCEMENT

OF PROFESSIONAL ETHICS AND STANDARDS IN THE
KENYAN LEGAL PROFESSION
We have the honour to present the above Report.
yours sincerely,
Professor Noel Cox (International Consultant and Team Leader)
Mr. Tom Odhiambo Ojienda (Local Consultant)
cc. Dr. Nightingale Rukuba-Ngaiza, World Bank Task Team Leader
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EXECUTIVE SUMMARY
Executive Summary
1. The Governance, Justice, Law and Order Sector Reform Programme
(“GJLOS”) of Kenya has as one of its objectives addressing the
shortcomings in the formal justice system, and facilitating the
implementation of reforms to strengthen institutions within the
sector. The Ministry of Justice has identified a number of priorities
in relation to the legal profession. These priorities include fighting
corruption, promoting judicial reform, promoting legal reform,
improving access to justice, and improving legal education,
including continuing legal education. One aspect of this programme
is ensuring that the ethical and disciplinary procedures of the legal
profession are sufficiently robust to meet international standards of
impartiality and effectiveness.
2. This Report examines the current state of the disciplinary procedures
for advocates in Kenya, in the context of a comparison with the
practise in several other countries. As a learned profession at the
heart of society, the legal profession must adhere to high ethical
standards. International best practise provides guidance as to how
this might be achieved, though there are no prescriptive
requirements. This process does not make any assumptions as to
whether the state of the legal profession in Kenya is more or less
corrupt or prone to malpractice than what might be deemed the
international norm. There is little empirical evidence available on
this question. It is sufficient that there are certain international
standards to which legal professions are customarily assessed with
respect to their disciplinary processes.
3. The Report was written after reviewing the legislative, policy and
administrative structures in which the disciplinary system is based,
and included consideration of broader aspects such as the advocates’
practice rules and code of conduct, the regional ethics committees of
The Law Society of Kenya, and the ethics content of the Advocates
Training Programme. As the context of the review is to benchmark
Kenyan practice with international best practice documentary
analysis coupled with observation of process and discussion with
stakeholders provided the necessary empirical evidence. This was
then analysed in the light of current best practice for the maintenance
of professional ethics.
4. The Report comprises a report on a comparison of disciplinary
processes in a number of other countries, followed by a review of the
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disciplinary procedures at present operating in Kenya. This involves
the Advocates Complaints Commission and the Disciplinary
Committee, as well as the regional ethics committees of The Law
Society of Kenya. This second section includes a number of
recommendations for change. The final section includes a review of
the present code of professional conduct and a proposed draft
expansion of this.
5. The present system in general is comparable with that operating in
other countries. However, there is considerable room for
improvement in both the Advocates Complaints Commission and the
Disciplinary Committee. The former is not operating as effectively
as it should, largely through under-funding, but also because its
administrative processes are unsuited to dealing with the large
number of complaints it receives. Various recommendations are
made to correct this problem. The key recommendations are the
introduction of a computerised case-management system, and the
appointment of additional staff.
6. One objective of this Report was to assess the relevance of the 2002
report entitled, “Review of the Effectiveness of the Disciplinary
Committee of The Law Society of Kenya and the Complaints
Commission” by Mr. Mark Stobbs of the International Bar
Association.1 Although that report is now some five years old most
of the recommendations it contained remain valid, and have not been
overtaken by events.
7. Abolition of either the Advocates Complaints Commission or the
Disciplinary Committee would not be in the best interests of the
legal profession or the country. Nor would amalgamation of these
bodies be consistent with international best practice.
8. The regional ethics committees are a worthwhile contribution to the
disciplinary machinery, but are insufficiently robust to replace either
the Advocates Complaints Commission or the Disciplinary
Committee. Recommendations to strengthen their role, particularly
as a filter mechanism, have been included.
9. The Disciplinary Committee is not effective. It does not provide a
sufficiently robust sanction for errant advocates. Among the
recommendations for correcting this situation are changes to the
membership and the procedure of the Committee.
1
Law Society of Kenya/International Bar Association, “Review of the
Effectiveness of the Disciplinary Committee and the Complaints
Commission” (the Stobbs Report) (Law Society of Kenya, Nairobi,
2002).
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10. The current code of ethics for the legal profession is insufficiently
broad and detailed to meet the international standard for best
practice. A more comprehensive draft code is suggested as a starting
point for the development of a new code – a process which must
involve the legal profession and elements of the wider community.
Summary of Recommendations
11. The following 83 recommendations are made:
Recommendation 1: It is recommended that the Advocates Act be
amended to ensure that the Advocates Complaints Commission has
jurisdiction over former practitioners, subject to the qualification that the
conduct complained of must relate to their practise as advocates, and not
to any judicial, prosecutorial or other role they may previous or
subsequently have held (para 222).
Recommendation 2: It is recommended that affidavits and references in
support of applicants for admission be required in all cases. References
in support of applicants should be from two people of standing in the
community (not being close relatives), and from an advocate in
possession of a current practising certificate and against whom there is
no outstanding complaint before the Law Society, Advocates Complaints
Commission or Disciplinary Committee (para 229).
Recommendation 3: It is recommended that the Law Society continues
to work closely with the Council of Legal Education to ensure that the
Advocates Training Programme (“ATP”) provides the best model of
training, particularly as it relates to professional ethics and etiquette, and
account keeping (para 235).
Recommendation 4: It is recommended that the operation of the ATP be
reviewed by the Council of Legal Education after the first year in which
it is offered to ensure that the objectives are being met (para 236).
Recommendation 5: It is recommended that professional ethics be
included in any compulsory continuing legal education requirements for
advocates, both junior and the more experienced (para 239).
Recommendation 6: It is recommended that the Law Society conduct
regular audits of advocates’ accounts, using their own accountant, or an
independent auditor reporting to the Society, for the purpose, and that
this be provided for by regulations under the Advocates Act (para 242).
Recommendation 7: It is recommended that an advocates fidelity fund
be instituted, funded from a percentage of the practising certificate fee,
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for the compensation of clients for losses due to the malpractice of
advocates (para 244).
Recommendation 8: It is recommended that the term of office for
commissioners of the Advocates Complaints Commission should be two
years, renewable, and that they should be provided with security of
tenure (para 260).
Recommendation 9: It is recommended that consideration be given to
defining misconduct more formally, not so as to restrict its scope, but so
as to clarify the distinction between professional misconduct and
inadequate professional services (para 292).
defining inadequate professional services more formally, as part of a
revision of the Advocates (Practice) Rules (para 295).
Recommendation 11: It is recommended that the Advocates Complaints
Commission and Disciplinary Committee be clearly empowered to
investigate and prosecute and to try former advocates for their actions
while advocates (para 298).
Recommendation 12: It is recommended that, on the authority of s 54(3)
of the Advocates Act, the Attorney-General should, in consultation with
the Law Society, make comprehensive rules of procedure to guide the
operations of the Advocates Complaints Commission. This means that
the discretion of the Commissioners to make their own rules of
procedure, as envisaged by Rule 11 of the Advocates (Complaints
Commission) (Structure and Procedure) Rules 2003, should be reduced
(para 307).
Recommendation 13: It is recommended that there be a minimum of
three Commissioners in the Advocates Complaints Commission, as the
workload of the Commission is sufficient to justify at least this number
of judicially-qualified officers or others of comparable seniority (para
309).
Recommendation 14: It is recommended that further legally-qualified
staff be employed by the Advocates Complaints Commission (para 312).
Recommendation 15: It is recommended that investment be made in
adequate office space and filing facilities, and technical support
equipment such as photocopiers, scanners, and printers, for the
Commission (para 316).
Recommendation 16: It is recommended that formal training for
prosecutors in prosecution techniques be entrusted to a second
Commissioner with suitable prosecutorial and management experience
(para 317).
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Recommendation 17: It is recommended that a number of more senior
State Counsel be appointed to the staff of the Advocates Complaints
Commission and Disciplinary Committee computer-based case
management systems be integrated as far as practical – subject to the
same (joint) tendering process (para 322).
Recommendation 19: It is recommended that the offices of the
Commission remain in Nairobi until it can be clearly shown that the
advantages of decentralisation outweigh the additional costs and
management complexities of decentralisation (para 326).
Recommendation 20: It is understood that Swahili translations of the
Advocates Complaints Commission publicity materials and forms are to
be provided, and it is recommended that this be done as a matter of
urgency (para 331).
Recommendation 21: It is recommended that all complainants to the
Advocates Complaints Commission be required to pay a small filing fee,
and that the Commission be empowered to make an award of costs
against a complainant in exceptional circumstances where the complaint
is deemed to be frivolous and vexatious (para 335).
Recommendation 22: It is recommended that no complaint be accepted
by the Advocates Complaints Commission after more than six years
after the cause of action arose (para 335336).
having the legislation reflect more accurately the fact that complaints are
not merely referred to the Disciplinary Committee by the Advocates
Complaints Commission but are prosecuted by the Commission before
the Committee (para 337).
Recommendation 24: In conformity with the view expressed in the
Stobbs Report, it is recommended that the Commission lose the ability
to make determinations, and confine its role to investigation and
prosecution, with a supporting mediation and conciliation role (para
339).
Recommendation 25: It is recommended that the Commission lose the
power to examine witnesses on oath, as this role should be restricted to
the Disciplinary Committee, and the power to tax bills of cost (para 339)
Recommendation 26: It is recommended that the Ethics and Compliance
Committee confine its role to the regular and systematic review of the
advocates’ practice rules and code of conduct, and that it consequently
relinquish the dispute resolution role (para 351).
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Recommendation 27: Due to the limited resources of the Law Society it
is recommended that the Society investigate complaints and prosecute
only in exceptional circumstances, thus allowing it to concentrate upon
regulatory and representational functions (para 363).
Recommendation 28: To ensure that the independence of the Advocates
Complaints Commission is buttressed, and its legitimacy enhanced, it is
recommended that the Commissioners should be appointed by the
President on the recommendation of the Law Society of Kenya (para
368).
Recommendation 29: In addition, the determination of the remuneration
of the Commissioners by way of salary, allowance, pension or gratuity
should be removed from the presidency. As in the case of the
Disciplinary Committee, the remuneration of the Commissioners should
be determined by the Attorney-General in consultation with the
Treasury. This is so recommended (para 369).
Commission should be made independent of the Office of the Attorney-
General, as a stand-alone agency, with its own independent budget (para
370).
Recommendation 31: It is recommended that to ensure that the
Advocates Complaints Commission gets the staff it requires to maintain
and preserve its independence, integrity and efficiency, the Chairman of
the Advocates Complaints Commission should be empowered to select
his or her own staff (para 371).
Recommendation 32: It is recommended that the Advocates (Complaints
Commission) (Structure and Procedure) Rules be amended to include
specific provisions for the conduct of the Commission’s proceedings
(para 373).
Recommendation 33: It is recommended that Advocates Complaints
Commission be renamed the Advocates Investigation Commission (para
377).
Recommendation 34: To counter the defect inherent in s 53(3A) of the
Advocates Act, that is, the failure to stipulate the sentence for the
offence created therein, it is recommended that the Act should be
amended to stipulate the sentence to be meted out to a person convicted
of the offence. Consequently, the defect will be cured (para 380).
Recommendation 35: It is recommended that an independent Legal
Profession Ombudsman be appointed, by the Attorney-General, with the
tasks described (para 382).
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Recommendation 36: It is recommended that the term for advocate
members of the Disciplinary Committee be two years, with a right of
renewal (para 387).
Recommendation 37: Although it is good practice to include lay
members in the Disciplinary Committee, it is recommended that care is
taken to ensure both that appropriate people are selected, and that they
and the advocate members of the Committee understand their respective
roles (para 388).
Recommendation 38: The lay members are full members of the
Committee, and should be involved in the deliberate and decision-
making processes. An induction process is recommended (para 388).
Recommendation 39: The Advocates Act currently allows for the
possibility of a Disciplinary Committee sitting with solely lay members.
It is recommended that this possibility be removed (para 392).
Recommendation 40: It is recommended that there should be at least one
lay and one advocate member present at each hearing of the Disciplinary
Committee, and at least three in total (para 392393).
Recommendation 41: It is recommended that the number of advocates in
the Disciplinary Committee be increased to nine, and that three of these
must be of at least twenty years standing (para 394).
Recommendation 42: The co-option of advocates is important even if
the permanent membership of the Committee is increased, and it is
recommended that the recommendation with respect to co-option be
implemented (para 396).
Recommendation 43: It is recommended that the Attorney-General and
Solicitor-General be excluded from the membership of the Disciplinary
Committee (para 397).
Recommendation 44: It is recommended that the Attorney-General
appoint the Chairman and Deputy Chairman of the Disciplinary
Committee (both to be advocates or judicial officers) on the
recommendation of Judicial Services Commission, and that these should
be appointments in lieu of the Law Officers. There should continue to be
representatives of the Attorney-General and Solicitor-General (para
397).
Recommendation 45: It is recommended that the Chairman or Deputy,
but not both, should be a judge, but that this not necessarily be a
statutory requirement (para 399).
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Recommendation 46: It is recommended that the Stobbs Report
recommendation with respect to including more junior advocates not be
implemented at this time (para 400).
Recommendation 47: The Secretary to The Law Society of Kenya is
also Secretary to the Disciplinary Committee. While the Disciplinary
Committee remains an organ of the law society a close linkage is
appropriate. However, as recommended in the Stobbs Report, it is
recommended that the Secretary should cease to be Secretary of the
Recommendation 48: Once a matter has been listed for hearing before
the Committee, the requirements of service must be pursuant to the Civil
Procedure Rules (para 412).
Recommendation 49: An order of the High Court against an advocate
may be appealed against by the aggrieved advocate to the Court of
Appeal of Kenya. It is recommended that the right of appeal be extended
to all parties (para 425).
Recommendation 50: There is a provision for direct referral of
complaints to the Disciplinary Committee by the Advocates Complaints
Commission. This is apparently rarely used as the Disciplinary
Committee will usually refer these back to the Commission if it is
realised that full investigations were not carried out. It is recommended
that this provision be abolished, as the time of the Disciplinary
Committee should not be occupied in considering charges which have
not been fully investigated (para 436).
Recommendation 51: The recommendation of the Stobbs Report was
that the Committee should have the option to hear cases under a
summary procedure to enable the simpler, less serious cases to be heard
speedily. It is recommended that a summary procedure of this sort be
Recommendation 52: The Stobbs Report recommended the appointment
of a Directions Officer with similar functions to a Master in the court.
This officer would deal with uncontroversial and administrative matters
and set timetables and make other orders to ensure that a case is ready
for hearing. It is recommended that this recommendation be
Recommendation 53: There was uncertainty as to whether the
Disciplinary Committee had the power to summon witnesses. It is
recommended that it be given this power (para 444).
Recommendation 54: Recommendation 17 of the Stobbs Report called
for a procedure for dealing with advocates who fall ill prior to hearings.
15
It is recommended that this is implemented, including a procedure for
dealing with advocates who wilfully absent themselves from the
Disciplinary Committee in an effort to frustrate its operation (para 444).
Recommendation 55: It is recommended that recommendation 35 of the
Stobbs Report, that the rules should contain sanctions to encourage
advocates to prosecute appeals expeditiously and to penalise frivolous
appeals, should be implemented (para 446).
Recommendation 56: It is recommended that the implementation of the
computer-based case management system recommended by the Stobbs
Report (recommendations 2 and 24) should proceed as a matter of
urgency (para 448).
Recommendation 57: It is recommended that any software and hardware
acquired for the case management system be subject to a pilot study, in
parallel with the existing manual system, so that the members and
secretariat of the Disciplinary Committee, Advocates Complaints
Commission and Law Society of Kenya can become familiar with its
operation and its effectiveness is assured (para 448).
Recommendation 58: The Stobbs Report recommended
(recommendation 3) that the computerised case-management system
should be built to a carefully considered specification and be subject to
tender (recommendation 3). It is recommended that this is best practice
and should be followed (para 450).
Recommendation 59: It is recommended that consideration should be
given to imposing a higher level of fines as a matter of practice (para
452).
Recommendation 60: Recommendation 35 of the Stobbs Report was that
for consistency, the Committee, in consultation with the Commission
and the Chief Justice, should prepare guidelines setting out its policy on
sentencing. It is recommended that guidelines be prepared, with the
qualification that these would be for guidance merely, and not
prescriptive (para 452).
Recommendation 61: It is recommended that the judiciary should be
notified promptly of any advocate who has been suspended from
practice or struck off the Roll of Advocates, and that those so suspended
or struck off not be permitted to continue practice through membership
of a firm (para 454).
Recommendation 62: To render the process of notifying the judiciary of
those advocates who have been struck off the Roll by the Disciplinary
Committee more effective, and to enable the Law Society to maintain
the most up-to-date record of its membership, currently practising
16
advocates, and those who have been struck off – or suspended – it is
recommended that the Law Society acquire a computer database to
record this information (para 455).
Recommendation 63: It is recommended that the prosecutorial powers of
the Law Society over those persons purporting to be advocates be
revived (para 456).
Recommendation 64: It is recommended that the powers of the
Disciplinary Committee be extended to include making orders for
supervision of practise by senior named advocate or advocates (para
457).
Recommendation 65: It is recommended that the Discipline Committee
publish the names of advocates against whom a final judgement has
been entered (para 458).
Recommendation 66: It is recommended that hearings should also be
publicised in the general press, to allow members of the public and of
the news media to be present if they so wish (para 459).
Recommendation 67: Although The Law Society of Kenya has actively
sought to collect fines from convicted advocates, it is clear that further
investment in enforcement processes is warranted, and this is
recommended (para 460).
Recommendation 68: It is recommended that the Disciplinary
Committee be assigned an independent budget and dedicated staff (para
461).
Committee be able to travel on circuit and hear cases away from Nairobi
(para 462).
Recommendation 70: It is recommended that Disciplinary Committee be
renamed the Advocates Disciplinary Tribunal (para 463).
Committee should be composed of five members from each branch of
The Law Society of Kenya, and sit quarterly in on circuit in each of the
branches (para 469).
Recommendation 72: It is recommended that the members of the Ethics
and Compliance Committee should be advocates of at least five years
standing, and that the conveners should be advocates of at least ten years
standing (para 471).
encouraging the regional ethics panels to act as de facto agents of the
17
Commission. They could act as repositories for complaints, which
would then be passed to the Commission in Nairobi. But, perhaps more
importantly, they can provide in the provinces the type of mediation and
alternative dispute resolution function carried out in Nairobi by the
Recommendation 74: It is recommended that the responsibility of the
ethics committees should include handling disputes between advocates
(para 473).
Recommendation 75: In order to strengthen the ethics committees and
allow them to operate in concert with the Advocates Complaints
Commission, it is recommended that rules of procedure for the
committees be adopted (para 474).
Recommendation 76: It is recommended that the regional ethics
committees be provided with simple information sheets, outlining for
inquirers the role of the committees, the Law Society, the Advocates
Complaints Commission and the Disciplinary Committee (para 475).
Recommendation 77: It is recommended that the Law Society provide
all advocates with copies of the current Advocates (Practice) Rules when
they are sent their next practising certificate, and that any amendments
are also sent, by the Law Society, to all advocates in practise whenever
these amendments are enacted (para 478).
Recommendation 78: The Advocates (Practice) Rules are comparatively
brief, with 14 rules – 12 of them substantive rules. It is recommended
that consideration be given to consolidating the Advocates (Accounts)
Rules, the Advocates (Accountant’s Certificate) Rules, and the
Advocate’s (Deposit Interest) Rules into one single set of Rules. The
Advocates (Practice) Rules should remain separate, and all should be
subject to comprehensive review to ensure that they reflect
contemporary good practice (para 487).
Recommendation 79: Rule 14 of the Advocates (Practice) Rules
provides that “The Council of the Law Society of Kenya shall have
power to waive in writing any of the provisions of these Rules in any
particular case”. It is recommended that this be qualified (para 489).
Recommendation 80: It is recommended that this rule be amended to
read “The Council of the Law Society of Kenya shall have power to
waive in writing any of the provisions of these Rules in any particular
case where it is just and proper to do so” (para 489).
Recommendation 81: It is recommended that certain general ethical
requirements be included in the Advocates (Practice) Rules (para 492).
18
Recommendation 82: The draft code of ethics is offered as a starting
point for debate, and it is recommended that the views of the profession
be sought with respect to the specific content of the code (para 495).
Recommendation 83: It is recommended that only one set of enforceable
rules exist, either the Advocates (Practice) Rules – as amended in para
494 or otherwise – or the proposed Rules of Professional Practise
Conduct and Etiquette of the Council of the Law Society of Kenya (in
para 484, as modified) (para 496).
REVIEW STRATEGY
12. The Law Society of Kenya has primary responsibility for the
maintenance of professional standards in the legal profession.
Following acceptance of this Report it is proposed that the following
action takes place:
 The Chairman of the Law Society or senior officer appointed

by the Council of the Law Society, proceed to implement the
Recommendations of this Report which are the responsibility
of the Law Society, and liaise with the equivalent officers
elsewhere;
 The Chairman of the Advocates Complaints Commission and

the Attorney-General or the de facto Chairman of the
Disciplinary Committee, proceed to implement the
Recommendations of this Report which relate to their
respective bodies, and liaise with their counterparts
 That the three above officers report to the Attorney-General

(or if one is the Attorney-General himself, the Minister of
Justice and Constitutional Affairs), on progress in the
implementation of the Recommendations, six months after
the acceptance of this Report, and at six monthly intervals
thereafter until the Recommendations are implemented.
13. The way ahead is clear. There is considerable potential for
improving the framework of professional ethics in the Kenyan legal
profession. The priorities now are the following:
 Additional funding for the Advocates Complaints

Commission and Disciplinary Committee (primarily to
ensure adequate staff are available);
 Provision of computerised case-management systems and

Advocates databases for the Advocates Complaints
19
Commission and Disciplinary Committee, and Law Society
of Kenya;
 Statutory and regulation reform as recommended.
20
ACRONYMS
ADT Administrative Decisions Tribunal

AG Attorney-General
ATP Advocates Training Programme
Cap Capital
CLE Continuing Legal Education
EALS East Africa Law Society
GCB General Council of the Bar
GJLOS Governance, Justice, Law and Order
Sector Reform Programme
ICJ International Commission of Jurists
IDF Institutional Development Fund
LSCC Legal Services Complaints
Commissioner
LSK Law Society of Kenya
LSO Legal Services Ombudsman
LSSA Law Society of South Africa
MOJCA Ministry of Justice and
Constitutional Affairs
NZ New Zealand
OLSC Office of the Legal Services
Commissioner
Para paragraph
s Section
ss Sections
UK United Kingdom
21
I SCOPE OF REPORT
14. The Governance, Justice, Law and Order Sector Reform Programme
has as one of its objectives the addressing of shortcomings in the
formal justice system, and facilitating the implementation of reforms
to strengthen institutions within the sector. The Ministry of Justice
has identified a number of priorities in relation to the legal
profession. These priorities include fighting corruption, promoting
judicial reform, promoting legal reform, improving access to justice,
and improving legal education, including continuing legal education.
One aspect of this programme is ensuring that the ethical and
disciplinary procedures of the legal profession are sufficiently robust
to meet international standards of impartiality and effectiveness. It is
important to ensure the quality, accountability, transparency and
independence of the legal profession in Kenya.
15. The International Bank for Reconstruction and Development (The
World Bank), by Institutional Development Fund Letter-Agreement
of 12th October 2004, granted the Government of Kenya US$256,000
to strengthen standards and ethics in the legal profession, and the
Continuing Legal Education programme.
16. The World Bank/IDF Grant No. TF 054290 Capacity building for the
Legal Profession, Component A: Capacity building of the Advocates
Complaints Commission and the Disciplinary Committee is the
specific aspect of this programme that is reflected in this Report.
17. Part of the GJLOS programme, the narrower context of this review
is the formal role played by the organs of The Law Society of Kenya
charged with the maintenance of professional ethical standards; the
Disciplinary Committee and the Advocates Complaints Commission.
1.1 Regulation of entry into the Legal Profession

18. Every person who is duly qualified to be admitted as an advocate is
required by law to file a petition requesting admittance. The Law
Society of Kenya has the mandate to review such a petition and has a
right to be heard concerning the person’s admission. Therefore the
Society is able to advise against the admission of a person as an
advocate if it feels that such an individual lacks moral fitness.2
2
Advocates Act (Cap 16 of the Laws of Kenya) s 15.
22
1.2 Maintenance of a disciplinary system
19. Every advocate is subject to the jurisdiction of the Disciplinary
Committee3 that is established by s 59 of the Advocates Act, Chapter
16 of the Laws of Kenya and mandated to deal with offences or
misconduct by an advocate. The Law Society of Kenya acts as the
secretariat of the Disciplinary Committee and the Secretary of the
Society is the secretary of the Committee. Members of the
Disciplinary Committee are elected from the membership of The
Law Society of Kenya and the Society is therefore involved in the
regulation of its own members.
20. Through its Institutional Development Fund the World Bank has
undertaken to assist the legal profession through The Law Society of
Kenya in fulfilling its mandate to strengthen the skills and
professional conduct of the members of the legal profession in the
delivery of legal services to the government and the larger public in
all matters relating to the administration of justice in Kenya. This
grant will further enhance the work already undertaken on this
programme and assist the Law Society to improve the regulation of
the membership and provide Kenyan lawyers, through The Law
Society of Kenya, with the knowledge, techniques and best practices
required to ensure that the Advocates Complaints Commission and
the Disciplinary Committee can adequately apply and enforce the
standards provided in the Advocates Act.
1.3 Specific Objective (Scope of Work)

21. This particular component of the grant seeks to provide The Law
Society of Kenya with information pertaining to best practices of
other Commonwealth jurisdictions on the enforcement of ethical
standards of the Legal Profession. The Grant also seeks to provide
The Law Society of Kenya with an opportunity to assess the existing
framework for the enforcement of professional ethics.
22. The International Consultant shall work with the Local Consultants
contracted for the project to ensure capacity building in all grant
activities.
23. The International Consultant shall work in concert with the Local
Consultants, to facilitate three (3) chapter workshops throughout the
country (in Nairobi, Mombasa and Kisumu) to educate and increase
3
23
awareness amongst advocates of the regulations to improve
professional legal standards and ethics.
24. The International Consultant shall work in concert with the other
consultants to facilitate one (1) national workshop to determine
policies and draft rules for professional legal standards and ethics for
the legal profession, which will result in the adoption of regulations
to improve the delivery, ownership and sustainability of Professional
Legal Standards and Ethics in Kenya.
25. In carrying out the above-noted tasks, the Consultant shall refer to
the recommendations made by Mr. Mark Stobbs of the International
Bar Association in his report entitled, “Review of the Effectiveness
of the Disciplinary Committee of The Law Society of Kenya and the
Complaints Commission.” The Consultant shall aim to incorporate
those Recommendations in the course of his or her research, and
implement the Recommendations within the Report, including a
proposal for legislative reform.
II TECHNICAL TASKS
The technical tasks covered by this report include the following:
26. Preparation of a report on a comparative study of the enforcement of
ethical standards used by Commonwealth Countries. The study
should include the United Kingdom, South Africa and Australia and
any other countries Professor Noel Cox deemed relevant.
27. Presentation of the findings of the report at a national workshop to
discuss the existing framework for enforcement of professional
ethics and to develop a strategy for the review of the framework by
the Bar. The role of the Kenyan Bar in the adoption, implementation
and enforcement of professional ethics was also to be discussed and
comparative models compared with the purpose of adopting best
practices.
28. A study of the existing capacity in Kenya’s legal profession to
enforce ethical standards within the profession.
29. Facilitation of three local chapter workshops to discuss the existing
framework for the enforcement of professional ethics.
30. Facilitation of one national workshop to discuss the existing
framework for enforcement of professional ethics and to develop a
strategy for the review of the framework by the Bar.
24
III INTRODUCTION
31. In the course of preparing this Report many people involved in one
way or another with the disciplinary processes were interviewed.
The International Consultant was in Kenya 2 nd-14th April, and 24th
May-3rd June 2007. As well as observing a sitting of the Disciplinary
Committee, he met, inter alia, the following:
 Rautta Athiambo (Rautta & Co, Advocates, Nairobi, former

Secretary, Advocates Complaints Commission);
 Mrs. Violet Awori, Mr. Charles Kariuki, Mr. R. M. Chubi (Members

of the Disciplinary Committee);
 Joseph N. King’arui (Chairman, Advocates Complaints

Commission);
 Samuel K. Kiptorus (Senior Economist 1, High Court of Kenya);
 Professor Wanyama Kulundu-Bitonye (Director of the Kenya School

of Law, Nairobi);
 Professor Githu Muigai (Mohammed Muigai, Advocates, Nairobi,

Chairman of the Disciplinary Committee);
 Dr. Elizabeth Muli (Senior Lecturer, Head of the Department of

Private Law, School of Law, Moi University)
 Ms Bibiana Ndambuki (Administrative Secretary, Disciplinary

Committee);
 Charles K. Njai (Registrar of the High Court of Kenya);
 Ms. Betty Nyabuto (Secretary/Chief Executive Officer of The Law

Society of Kenya, Nairobi);
 Erik Omogeni (Chairman, The Law Society of Kenya);
 Tom O. Onyango (Ochieng’, Onyango Kibet & Ohaga, Advocates,

Nairobi).
32. The Report was written after reviewing the legislative, policy and
administrative structures in which the disciplinary system is based,
and included consideration of broader aspects such as the advocates’
practice rules and code of conduct, the regional ethics committees of
The Law Society of Kenya, and the ethics content of the Advocates
Training Programme.
25
33. The Report comprises a report on a comparison of disciplinary
processes in a number of other countries, followed by a review of the
disciplinary procedures at present operating in Kenya. This involves
the Advocates Complaints Commission and the Disciplinary
Committee, as well as the regional ethics committees of The Law
Society of Kenya. This second section includes a number of
recommendations for changes. The final section includes a review of
the present codes of professional conduct and a proposed draft
expansion of these.
34. The scope and depth of this report was limited by the comparatively
short time-frame in which it was written. For this reason the
comparative study did not delve deeply to an assessment of the
effectiveness of each jurisdiction reviewed – this would have
required a considerable investment in time and effort. The focus was
therefore on the identification of structural similarities and
differences, and a review of legislative and regulatory provisions and
procedures.
35. Similarly, in conformity with the terms of reference to the
Consultants the review of the disciplinary machinery in Kenya
concentrated upon recommending improvements to the existing two
principal organs, rather than a wholesale restructuring. However, as
is shown in the body of this report, the general structure is consistent
with international practice, and no convincing case has been shown
for the abolition of either the Advocates Complaints Commission or
Disciplinary Committee, or indeed of the amalgamation of the two
bodies.
36. The assistance of The Law Society of Kenya, the World Bank, the
Disciplinary Committee, the Advocates Complaints Commission and
other institutions and individuals is acknowledged, particularly Dr.
Nightingale Rukuba-Ngaiza, the World Bank Task Team Leader.
26
IV THE INSTITUTIONAL CONTEXT OF THE DISCIPLINARY
BODIES
4.1 Theoretical background

37. The legal profession has a unique position in the community in any
civil society. Its distinguishing feature is that it is concerned with
protecting the person and property of citizens from whatever quarter
they may be threatened and pre-eminently against the threat of
encroachment by the state.4 This stems from the fact that the
protection of rights has been a historic function of the law, and it has
been the responsibility of lawyers to carry out that function.
38. The profession also plays a most significant role in upholding the
social fabric. This is largely because lawyers are the people who
have a direct part to play in the maintenance of the rule of law which
is in turn what fastens and upholds society. 5 Indeed, the role of the
lawyer spans the entire spectrum of national development activities.
More often than not he or she is in the public limelight and his or her
involvement in social and political issues draws upon them
considerable conspicuousness and vulnerability.
39. Accordingly, the legal profession connotes a sense of public service.
For this reason Roscoe Pound viewed a profession as composing a
common calling in the spirit of public service. 6 Similarly, according
to Benna Lutta, the legal profession “can be said to be a kind of
priesthood and dedicated to public service.”7 Hence, it logically
follows that the goodwill of the legal profession largely depends on
the people it serves, that is, members of the public. The members of
the public have to be able to trust the profession if they are they are
ever going to be comfortable charging the profession with the
aforementioned functions.
4
George D. Finlayson, “Self Governance and the Legal Profession –
Can it Continue?” (1985) 4 Advocates’ Society Journal 11.
5
P.L.O. Lumumba, “The State of Legal Education in Kenya Today: A
critical Analysis”. Paper presented at the Conference of the Law Society
of Kenya under the theme; Lawyers at the Cross-roads: Defining the
Future of the Legal Profession, 15th September 2000.
6
Roscoe Pound, The Lawyer from Antiquity to Modern Times (West
Publishing Co., St. Paul, Minn, 1953).
7
Benna Lutta, “The Role of the East African Lawyer” in Kivutha
Kibwana (ed), Human Rights and Democracy in East Africa: The
Constitutional Implication of East Africa Co-operation (East Africa Law
Society, 1997), pp. 16-32.
27
40. Consequently, to perform the said functions in the spirit of public
service, a high ethical and professional standard must be maintained
within the rank and file of the legal profession. The lawyer must
consequently, amongst others things, be of high integrity, probity,
honesty and competent. Like in any other profession, members of
the legal profession must shun those things which are likely to bring
the profession into disrepute. They must exhibit a great sense of
integrity, and, must give proper professional service. As
professionals, therefore, they should be viewed as a bulwark of
society, and not an obstacle to progress.
41. Of necessity, lawyers should identify themselves in a positive and
practical manner with the aspirations and efforts of the people they
serve. They should shirk complacency and constantly engage in the
reappraisal of values and methodologies. By so doing, lawyers will
be able to establish and justify their worth in society.
42. It is impossible to eliminate poverty, corruption and other major
evils of society without an efficient and effectively functioning legal
profession.
43. The need for lawyers to maintain a professional and ethical standard
becomes even more imperative when it is considered that they have
historically been regarded as constituting or belonging to a
profession. Western society traditionally restricted the term
“professional” to persons engaging in three activities: law, medicine
and the church though present day society have tended to add
accounting, architecture and engineering (and certain others) to the
list of professions. The notion that lawyers constitute a profession
holds sway in Kenya, as in the rest of the world.
44. As a profession, therefore, it is generally accepted that the members
thereof must adhere to a professional and ethical standard. Thus,
according to Professor J.B. Ojwang and D.R. Salter, “the often large
body of professionals invariably necessitates the establishment of
regulatory legislation; the adoption of controlling practices; the
fostering of certain norms and mores of professional culture; etc.” 8
This opinion is supported by Honourable Justice Professor Dr. G.W.
Kanyeihamba, who asserts as follows:
Professional standards must ideally be kept in all societies,

but in my opinion, no where else are these standards of more
paramount importance than in three professions that
8
J.B. Ojwang & D.R. Salter, “The Legal Profession in Kenya” (1990)
34(1) Journal of Africa Law 9-26.
28
intimately affect the human being in its welfare, living and
health, namely the medical profession, the legal profession
and religion. The first controls a person’s health, the second
affects one’s existence, living and property and the third
affects and controls one’s will and spiritual wealth.9
45. In a similar vein O’Connor J. in Shapero v. Kentucky Bar
Association10 clearly put the position in the following words:
One distinguishing feature of any profession, unlike other

occupations that may be equally respectable, is that
membership entails an ethical obligation to temper one’s
selfish pursuit of economic success by adhering to standards
of conduct that could not be enforced either by legal fiat or
through the discipline of the market. There are sound reasons
to continue pursuing the goal that is implicit in the traditional
view of professional life. Both special privileges incident to
membership in the profession and the advantages those
privileges give in the necessary task of earning a living are
means to a goal that transcends the accumulation of wealth.11
46. Yet it need not be over emphasized that lawyers have rarely been the
darlings of society, and this is discernible from many an epitaph
hardly complimentary of lawyers. Shakespeare’s “The first thing we
do, let’s kill all the lawyers”12 is but one of the oldest of many barbs
at the expense of lawyers, though in that case, although it belied the
author’s hostility to the profession, it also revealed an important
truth: the surest way to chaos and tyranny even then was to remove
the guardians of independent thinking.
47. The legal profession has existed for over two thousand years. From
the Greek city-states and the Roman Empire to present day, legal
advocates have played a vital and active role in the formulation and
administration of laws. Because of their role in society and their
close involvement in the administration of law, lawyers are subject
to special standards, regulation, and liability. Sometimes called legal
9
G.W. Kanyeihamba, “The Legal Profession, the Judiciary and Justice,”
Address at the Jurist of the Year Award Ceremony, 10 th December 2003,
the International Commission of Jurists (Kenya Section).
10
(1988) 486 VS 466.
11
Ibid at pp 488-489.
12
Dick’s advice in Henry VI.
29
ethics, sometimes professional responsibility, the topic is perhaps
most comprehensively described as the law governing lawyers.
48. It is a commonplace that legal professions will be self-governing or
at least co-regulating. This is partly because of their important role in
the legal system, but also because they constitute a learned
profession. At its broadest a profession may be seen as distinct from
a mere trade or occupation, and as such entitled to different
treatment before the law; different, but not necessarily privileged.
With great privileges come great responsibilities.
49. There is considerable international literature on professions, and
their regulation, and an important sub-set on the legal profession.
The 1979 British Royal Commission on legal services identified
what it thought were five main distinctive features of a profession.
Each profession has:
 A governing body (or bodies) [that] represents a profession

and has powers of control and discipline over its members;
 [Mastery of] a specialised field of knowledge. This requires

not only the period of education and training ... but also
practical experience and continuing study of developments in
theory and practice;
 Admission ... dependent upon a period of theoretical and

practical training in the course of which it is necessary to
pass examinations and tests of competence;
 [A] measure of self regulation so that it may require its

members to observe higher standards than could be
successfully imposed from without; and
 [An understanding that a] professional person’s first and

particular responsibility is to their client. The client’s case
should receive from the adviser the same level of care and
attention as the client would himself exert if he had the
knowledge and the means.13
50. The first of these elements is particularly important in the context of

this Report, concerned as it is with the maintenance of professional
ethics.
13
(1979) vol 1 at para 28, 30.
30
51. Sociological studies of professions have traditionally focused on
listing those activities which are accepted as professions in an
attempt to differentiate profession from non-profession. An
alternative approach holds that the ability to obtain and retain
professional status is closely related to concrete occupational
strategies and to wider social forces and arrangements of power.
Such an approach leads to a consideration of the social meaning of
occupational tasks (perhaps an easier task with the lawyer or doctor
than the architect), the resources behind the emergence and the
continuation of professionalism, and the social consequences of
professionalism.14 Sociologists sought to demonstrate that governing
bodies were unrepresentative and ineffective regulators; professions
lacked the expertise they claimed; admission criteria had little
relevance to the actual work of the professions; ethical rules were
motivated by economic self-interest and failed to ensure
competence; and professionals repeatedly betrayed clients.15
52. Producers of a service who succeed in constructing a marketable
commodity only become an occupation. To become a profession
they must seek social exclusivity. The consumer must acknowledge
the value of the producers’ services, and must be convinced that they
cannot produce the services themselves.16 Structural functionalists
argue that this is not a conscious, self-interested strategy, but is
simply the means by which society ensures that consumers receive
quality services. Quality is maintained through controls on entry.17
To promote competition the free-market advocates would reduce the
controls on entry into professions, ignoring the fact that this is a
means of maintaining standards in the public interest. If it were
indeed true that professional status is for the benefit of the
professional, then one would require strong evidence of some
countervailing public benefit to justify any monopoly.18
53. The American Bar Association’s Commission on Professionalism
identified a profession with the placing of the interests of others
ahead of one’s own. In the case of the lawyer, the interests of the
client must be placed ahead of those of the lawyer. The lawyer must
also give precedence to the interests of the Courts and of the justice
system, as well as to those of third parties and of society as a whole.
14
Douglas Klegon, “The Sociology of the Professions: an emerging
perspective” (1978) 5 Sociology of Work and Occupation 259.
15
Richard Abel, The Legal Profession in England and Wales (1988) 7.
16
Ibid, 10.
17
Ibid, 12.
18
Rt. Hon. Mr. Justice McKay, “Professions at risk” [1993] New
Zealand Law Journal 104.
31
The hallmarks of a profession are integrity and service. 19 Since
service is a primary objective, the monetary reward must be
relegated to second place. Thus rendering legal assistance to
impecunious criminal defendants is a professional duty.20
54. A profession will tend to be concerned with personal confidence of
the client in the technical competence of practitioners, and the
confidence of the public at large in the integrity and ethical conduct
of the profession as a whole.21 This has certain implications for the
way in which professional misconduct is defined, and how it is
handled. For example, while a disciplinary tribunal must have
sufficient professional standing to be taken seriously by the legal
profession, it must also seek to attract widespread public support for
its actions.
55. Because standards cover conduct and competence, both technically
and ethically, control must be exercised over both entry into the
profession and conduct within it. It follows that by membership
practitioners may be subject to sanctions for acts or omissions which
do not violate the criminal or civil law. 22 Only statutory regulation
can ensure that the disciplinary sanctions are effective. Thus it is
normal for legal professions to be subject to binding codes of
conduct and punishable for infringing these codes, whether or not
their action also constitutes a civil wrong or a criminal offence under
the general law.
56. Controls over the conduct of members of the legal profession
include personal remedies in tort, contract or equity; the criminal
law; an educational standard for entry; procedural and substantive
requirements for admission to the bar; restrictions as to the right of
entry into private practice; procedural and substantive requirements
for issuing a practising certificate; continuing requirement of
physical and mental fitness; provision of taxation of bills of costs;
provision for strict control over trust accounts; requirements of
membership of law societies (who have disciplinary procedures and
19
20
Darvell v. Auckland Legal Services Subcommittee [1993] 1 New
Zealand Law Reports 111 at 120 per Williams J.
21
Royal Commission of Inquiry into Civil Rights (1968-71) (McRuer
Report) Ontario No 1 Vol 3 at para 1161.
22
W. R. Flaus, “Discipline within the New Zealand Legal Profession”
(1973) 6 Victoria University of Wellington Law Review 337 at 338.
32
sanctions).23 A lawyer could not rely on their private involvement to
opt out of any professional duty owed to the client.24
57. Some of these controls belong to the wider law, but some are
specific and reflect the fact that members of the profession
voluntarily submit to higher standards of conduct than those required
by ordinary citizens, and thereby render themselves liable for
professional misconduct in addition to any penalty which the
common or statute law may impose.25
58. To ensure that all those interested in the maintenance of professional
conduct at the highest possible standard by the best possible measure
to be satisfied, one must look to the system currently operating in
disciplinary matters and compare it with a theoretical but attainable
ideal as to how the disciplinary system of the profession should be
designed; who should exercise its powers and by what procedures;
and what powers should be conferred and how should the conditions
for the exercise of the powers be defined.26
59. To understand the role of statutory regulation of the professions it
must be understood that the learned professions are bound together
in a common discipline which creates a spirit of fraternity,
scholarship and public service. The free market economic approach
widely adopted by governments world-wide does not rest upon the
same intellectual and public service basis. Business typically calls
for skill, not learning, and the objective is profit, not service.
60. The premise for the statutory regulation of professions is that it is
necessary for a profession to have the power of control and
discipline to suppress dishonourable or improper practices among its
members and thereby maintain professional standards. Self-
regulation without statutory authority is possible, but unlikely to be
truly effective.
61. In the 1980s movement towards economic liberalisation in many
countries led to the role of professions being re-examined. This
included a widespread assumption that the only need for
occupational regulation was to provide information. The whole issue
23
(1973) 6 Victoria University of Wellington Law Review 337, 339.
24
Sims v. Craig Bell and Bond [1991] 3 New Zealand Law Reports 535
(CA).
25
Ranjith Abeysuriya, “The Legal Profession” in “Selected extracts from
papers given at the [LAWASIA 1993 Colombo] conference” [1993] New
26
(1973) 6 Victoria University of Wellington Law Review 337, at 339.
33
was then reduced to one of minimising the cost of obtaining
information. The alternatives proposed were government-imposed
arrangements such as occupational licensing, and voluntary private
arrangements such as trade associations. Fortunately this free market
approach to professions is no longer in favour internationally, nor
did it ever have more than a marginal effect on the legal professions
of Commonwealth countries.
62. If professional rules and ethics and their enforcement ceased to be
the concern of professional bodies, professions would become
merely voluntary associations, no longer having responsibility for
admission standards, ethical standards and professional discipline.
The obsession with economics and the free market, the general lack
of understanding of the way in which professional bodies operate,
and the belief that self-interest has been the motivation for
professional bodies could lead to the demise of the professions as
they are recognised internationally.27 Even the legal profession
would not be safe from the pressure to “de-regulate”.
63. The right of a profession to self-discipline is not automatic, though
in the case of the legal profession it is based on long and historic
tradition and has received legislative recognition. The granting of
self-government is a delegation of legislative and judicial functions
and can only be justified as a safeguard to the public interest. 28 On
the other hand, these professional associations act as a counter-
weight to an increasingly monolithic state.29 A balance must be
struck between government interests, non-government interests and
professional interests.30 This is particularly true with respect to the
provision of disciplinary procedures, and codes of conduct and
ethics.
64. The traditional justification for giving powers of self-regulation to
any body is that the members of that body are best qualified to
ensure that proper standards of competence and ethics are set and
maintained. This is generally true, but the risk is that the powers may
be exercised in the interests of the profession or occupation rather
than in the interests of the public. 31 This requires safeguards to be
27
Zealand Law Journal 104, at 106-7.
28
Royal Commission of Inquiry into Civil Rights (1968-71) (McRuer
Report) Ontario, No 1 Vol 3 at para 1162.
29
Richard Abel, The Legal Profession in England and Wales (1988) 7, at
5.
30
S. Ross, “The Solicitors (Amendment) Act 1974 (UK): Its relevance to
Australia” (1975) 49 Australian Law Journal 268 at 272.
31
Public and Administrative Law Reform Committee, Working Paper
relating to the disciplinary and complaints procedure of the legal
34
integrated into the system, safeguards which commonly require a
degree of lay involvement and/or that processes occur in public
(subject to certain matters which should be kept confidential) and are
thus subject to public scrutiny. It may be that the public rarely avails
itself of this privilege, but it should be preserved regardless.
65. For a profession to justify any powers or privileges which it may
receive, it must be able to show that it is not selfishly concerned for
its own interest but has regard for that of the public. It must show
itself worthy of the power of domestic discipline which is conferred
upon it. For this reason lay members should generally be appointed
to the governing bodies of all self-governing professions and
occupations. Non-legal professional bodies have a long tradition of
lay members.32 For the bodies to be dominated by lay members
however would be a perversion of the reason for including non-
professionals. Recently there have been some legal professions
where the number of lay members almost equals the numbers of
lawyers on disciplinary bodies. This is perhaps going a little too far
in this direction, as it threatens to undervalue the principle that
members of a profession are best qualified to ensure that proper
standards of competence and ethics are set and maintained.
66. Public involvement in the proceedings of disciplinary bodies is
based on the purpose of enabling the public interest to be
represented, and will help to assure the public that its interests are in
fact being represented. It has the further effect of making the
profession more responsive to the public. Without lay observers
being present the public can only trust that the organised profession
will be sensitive to its needs, and sufficiently responsible to
endeavour to meet those needs.33
67. Commentators have often expressed the belief that lawyers are
concerned to protect themselves and that law societies exist solely
for the benefit of members of the legal profession.34 The professions
themselves must be alert to this perception, and do all they can to
respond to it, without harming their professional integrity.
68. The legal profession has every right to be looked up to as comprising
the learned, enlightened and honourable sector of society.
profession (1977) 3.
32
Brian Abel-Smith and Robert Stevens, Lawyers and the Courts
(Harvard University Press, Cambridge, 1967) 192.
33
Brian Abel-Smith and Robert Stevens, Lawyers and the Courts
(Harvard University Press, Cambridge, 1967) 6.
34
35
Accordingly, it behoves every member of the profession to conduct
themselves in such a way as not to jeopardise that respected position.
A practitioner must be learned in the law, diligent in the pursuit of
their professional conduct, and scrupulously honourable and proper
in their professional activities.35 The first line of defence then is not
the disciplinary tribunals, or even the law schools, but the
practitioners themselves. They must be diligent in guarding the
integrity of the profession, through watching their own conduct and
that of professional colleagues.
69. To quote the words of Sir Shridath Ramphal, QC, former Secretary-
General of the Commonwealth:
The law itself may be flawed; from time to time it will be;
but so long as lawyers worship at the altar of “justice” there
is hope for social redemption. It is only when (we) as lawyers
become votaries of the legal order that justice is endangered
and we ourselves cease to be worthy of society’s esteem …36
70. The traditional view has been that a member of a profession was not
only subject to the general law in the same way as any other citizen,
but was also subject to the additional requirements imposed by the
ethics of the profession.37 Because this is an additional sanction
arising from a breach of professional standards, it is appropriately
dealt with by the judgment of professional peers.38
71. General principles for the disciplinary arrangements of professional
bodies (not specifically the legal profession) include:
 representatives of the public should participate in the

disciplinary process;
 investigative and adjudicative functions should be separate;
 procedures for hearings must be fair to both complainant and

members;
35
Ranjith Abeysuriya, “The Legal Profession” in “Selected extracts from
36
Quoted at the Truth and Reconciliation Commission – Legal Hearing
– 27 October 1997.
37
For a discussion of the rationale for this see, for instance, Deborah L.
Rhode and David Luban, Legal Ethics (4th ed., Foundation Press, New
York, 2004). See also paras 37-58.
38
Zealand Law Journal 104, at 106.
36
 grounds for suspension, cancellation of registration or
membership or any other punishment must be appropriate to
professional or occupational activities; and
 adequate provision must be made for appeal.39
72. It will be seen, therefore, that there are certain norms which are
common to the legal professions of a wide variety of countries.
Because all legal professions are primarily domestic in focus they
reflect national peculiarities. All utilise some means of enforcing
minimum ethical standards distinct from the standards required by
the law of all providers of services. There has yet to be a truly
international standard of legal professional ethics, though progress
has been made in this direction. 40 We can however learn much from
examining the regulation processes of comparable countries. In this
case these are a number of Commonwealth common law countries
and jurisdictions.
4.2 Kenyan situation

73. In the eyes of the public, misconduct on the part of one lawyer is
synonymous with misconduct on the part of all lawyers. The
confidence of the public in the legal profession has and is gradually
fading away. The position is well captured by Benna Lutta who in
writing on the East African lawyer said thus:
At one point in time in this region, lawyers were a privileged

class and, as members of the learned profession, they were
respected and were looked up to by most people in the
society for leadership. In the late 1950s, our profession in
this region had a very high place in the community. We
inherited the traditions which were handed down to us from
those eminent British lawyers, both on the bench and at the
bar, those opinions and judgments we read and still quote
today. There was a general feeling of brotherhood in the
profession and high standards were maintained. But now
39
40
Andrew Boon and John Flood, “Globalization of Professional Ethics?
The Significance of Lawyers’ International Codes of Conduct” (1999)
2(1) Legal Ethics 29-57.
37
there is a growing tendency to degrade the legal profession
and the public are taking note of it, hence the statements we
hear often to the effect that there are “too many lawyers”!41
74. East Africa, and Kenya in particular, is not different to other parts of
the world in respect of the need for professional ethics in the legal
profession. The existence of special codes of conduct, and the
maintenance and enforcement of these codes of professional ethics,
are accepted as part of the normal background environment to the
legal profession. By all accounts Kenya has a serious corruption
problem;42 it is inevitable that this affects the legal profession as well
as other sectors of society. But equally an effective system for
ensuring minimum standards of legal professional ethics is essential.
It is clear from the number of complaints which continue to be made
to the Advocates Complaints Commission and heard by the
Disciplinary Committee that professional misconduct remains a
significant problem.
75. Law may not be the only means of combating corruption but it is the
principal way in a country founded on the rule of law. According to
Dr. Nihal Jayawickrama, the former Executive Director of
Transparency International, in a developing country or a country in
transition, with weak governance institutions, corruption is likely to
corrode the entire system.43 The legal profession has a pivotal role in
the operation of institutions, not least in the provision of judicial
personnel, but also in the administration of the laws, civil and
criminal. The profession itself must therefore be held accountable for
the conduct of its members. Where this alone is insufficient
41
Benna Lutta, “The Role of the East African Lawyer” in Kivutha
Kibwana (ed), Human Rights and Democracy in East Africa: The
Constitutional Implication of East Africa Co-operation (East Africa Law
Society, 1997), pp. 16-32.
Although it is beyond the terms of reference of the Report, on the
question of the number of lawyers it may be instructive to note that on a
population basis the number of lawyers in Kenya is only half of the
number in South Africa, and less than a tenth of the number in Canada.
It is not believed that there is a study which shows that a country
benefits from more lawyers, indeed while the reverse is probably not
correct, it is possibly that a larger number of lawyers are a reflection of
more economic activity. It should be observed however that the Japanese
Government, in the early 2000s, adopted a deliberate policy of
increasing the number of lawyers from 20,000 to 50,000.
42
See for instance the Transparency International annual reports.
43
“A Holistic Approach to Combating Corruption” (1999) 25 Common
Wealth Bulletin 665-668.
38
partnership with governmental, usually independent or quasi-
independent bodies, is appropriate.
76. The International Commission of Jurists has observed that:
While members of the legal profession and some of their

clients have been victims of judicial corruption, the ICJ
mission found sufficient evidence to conclude that many
practicing advocates have been willing participants in
corruption. The ICJ urges the Law Society of Kenya (LSK)
and legal civil society organizations to assess the state of
corruption within the legal profession through an
independent committee set up for this purpose on the
initiative of the LSK. The committee should have the
mandate to make recommendations on how to prevent such
practices and other unethical behaviour and on how to
improve relevant legislation or enact new statutory
provisions to better regulate professional conduct of
advocates in Kenya.44
Disciplinary processes aimed at maintaining standards deemed

international norms are essential to reducing corruption within the
legal profession. Without this the profession itself cannot play an
adequate role in reducing corruption nationally, and may indeed
foster it.
77. One example of the type of misconduct of many which could be
cited was described by Jesse Wachanga:
The privilege given by the Evidence Act (Chapter 80) to the

Advocate-Client relationship has been grossly abused. There
are some instances where Advocates have obstructed genuine
investigations by invoking the privilege … We think it is
necessary for the Law Society of Kenya to address this issue
of privilege through practice guidelines. Professional ethics
also need to be strengthened so as to fortify the role of
Advocate as an officer of the High Court of Kenya, and thus
should desist from defending cases in such manner as to
defeat the administration of justice. There is also the issue of
Advocates earning fees from sources that are plainly
proceeds of crime, or assisting criminals in the concealment
44
Kenya: Judicial Independence, Corruption and Reform (International
Commission of Jurists, Geneva, 2005) 26.
39
of the corrupt transactions or the proceeds or instruments of
crime.45
78. The joint World Bank-International Finance Corporation Country

Assistance Strategy is closely aligned with the government’s
Investment Programme for the Economic Recovery Strategy for
Wealth and Employment Creation (IP-ERS) and proposes to help
Kenya achieve its development objectives through four key areas of
support:
a. Strengthening public sector management and accountability;

b. Reducing the cost of doing business and improving the
investment climate;
c. Reducing vulnerability to the environment and strengthening
community development capacity, and
d. Investing in the education and health care of its citizens.
Improving the ethical standards of the Kenyan legal profession

contributes directly towards the first two areas. Improving
governance by reforming the judiciary, improving security, and
reforming public administration to achieve increased transparency
and accountability is one of three interlinked pillars in Kenya’s
Economic Recovery Strategy.
79. The World Bank “supports the government’s efforts to create the
legal and policy framework that supports anti-corruption efforts,
including the legislation now before parliament for reform of
procurement and public financial management. More specifically,
the Bank is financing the government’s reform of the legal and
judicial system, in collaboration with other donors, in order to ensure
the effectiveness of this vital sector.”46
80. A great challenge for the legal profession in Kenya and across the
world is to restore the waning public confidence in the profession.
45
“Fighting Corruption in Kenya; Institutional History, Legal
Framework, Challenges and Expectations” in Tom Ojienda (ed), Anti-
Corruption and Good Governance in East Africa: Laying Foundations
for Reform (LawAfrica, Nairobi, 2006) 1-13, 11.
46
“A More Equitable, Prosperous, and Competitive Kenya: Country
Assistance Strategy 2004-2007” (The World Bank, Nairobi), p. 8.
40
The formulation of codes of conduct and statutory regulations has
spoken eloquently of the responsibility the profession feels towards
those whom its members serve. In Kenya, in addition to regulations
embodied under the Advocates Act (Cap 16 Laws of Kenya), the
Law Society has put in place a Digest of Professional Conduct and
Etiquette (2000). The Digest is intended to give guidance to
advocates concerning their professional conduct and the etiquette of
the profession. The Digest is read in conjunction with the Advocates
(Practice) Rules, the Advocates (Accounts) Rules and the Advocates
(Accountant’s Certificate) Rules which have been promulgated
under the Advocates Act.
81. Central to the regulation of the legal profession is the question of the
lawyers’ disciplinary mechanism. The consumers of legal service
must have recourse to a remedy when they have a complaint against
a member of the profession. The existence of codes of conduct does
in not themselves guarantee the observance of the code. Therefore,
there must be a body to enforce the standards, wherever found. The
body must be responsible for dealing with errant advocates, and
must be seen to do so effectively and dispassionately.
82. In recognition of this need, the Advocates Act Cap 16 Laws of
Kenya establishes the Advocates Complaints Commission and the
Disciplinary Committee as the primary regulatory and disciplinary
bodies within the legal profession. These two bodies are generally
charged with the duty of ensuring that professional and ethical
standards are maintained and upheld. Complaints against advocates
or a firm of advocates are received and determined by these two
bodies.
83. The Advocates Complaints Commission (an independent body of the
Attorney-General’s Office) and the Disciplinary Committee of The
Law Society of Kenya are the national organs primarily charged with
maintaining professional ethical standards in the legal profession.
The role of the regional ethics panels (which are sub-committees of
the Law Society and independent of the formal disciplinary process)
must also be considered. Although the specific mandate of this
Report is to review the first two bodies, with the intention of
identifying shortcomings and making recommendations for
improvement, it is necessary to consider the broader institutional
setting in which they are placed, in order to understand their role and
operation. At its broadest context the Law Society represents,
through these tribunals, the regulatory body of a profession, with the
implications that arise from this. However, the Advocates
Complaints Commission is a state body rather than a professional
association. Thus professional ethics in Kenya are entrusted to both
the profession and the government.
41
42
V COMPARATIVE STUDY
84. In a number of jurisdictions in the world today there are professional

societies of lawyers who call themselves “barristers” or “advocates”,
and who hold themselves out as specialists in the skill of advocating
the causes of their clients in courts of law.47 Examples are England,
Wales, Scotland, the various states and territories of Australia
(Tasmania, Victoria, South Australia, Western Australia, Queensland,
New South Wales, the Australian Capital Territory and the Northern
Territory), New Zealand, Zimbabwe, Namibia, Ghana, Botswana and
South Africa. In these jurisdictions “solicitors” or “attorneys”
conduct the bulk of non-court legal, or chambers legal work. In other
jurisdictions, including Kenya, lawyers constitute one class, whether
known as advocates, attorneys or (as in some Australian and
Canadian jurisdictions) “barrister and solicitor”.
85. Each of these societies has its own peculiar rules, but they all
subscribe, by and large, to three principles: that they practice
independently; that they practice mainly upon referral by another
professional; and that they regulate their own affairs. Self-regulation
by legal practitioners of their own affairs is recognised by the United
Nations Basic Principles on the Role of Lawyers, endorsed by the
General Assembly in 1990, which states that:
Lawyers shall be entitled to form and join self-governing

professional associations to represent their interests, promote
their continuing education and training, and protect their
professional integrity. The executive body of the professional
associations shall be elected by its members and shall
exercise its function without external interference.48
86. The intrinsic value underlying this approach is that lawyers and
judges provide the first line of defence against human rights
violations and are vulnerable to pressure and attacks for the
47
For the role of a barrister see Ziems v. Prothonotary of Supreme Court
of New South Wales (1957) 97 Commonwealth Law Reports 279, 298;
64 Australian Law Reports 620 (High Court of Australia).
48
Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, United Nations Basic Principles on the Role of
Lawyers (United Nations High Commissioner for Human Rights,
Geneva, 1990).
43
discharge of their professional duties. The legal profession is today
the only profession which is singled out for protection by the
international community, through the United Nations, in the form of
endorsing minimum standards of guarantees which member states
are obliged to provide in their domestic legislation. The United
Nations also protects human rights defenders.49
87. For most practical purposes human rights abuses and political
pressure are not central to the role of the lawyer. The lawyer-client
role is of greater moment, and it is this, and the lawyer-lawyer and
lawyer-court relationships which are governed by most codes of
ethics and conduct. Failure to adhere to the highest standards of
conduct, whether or not this also constitutes a civil wrong or
criminal offence, renders the lawyer liable to potential action for
professional misconduct. Because of the norm of self (or
co-)regulation in most but not all cases the disciplinary apparatus is
run by the relevant law society, with or without involvement from
the state, and has investigative and adjudicative aspects. Mediation
and conciliation may also form a part of the process.
88. Our terms of reference required this comparative study to include
United Kingdom, South Africa and Australia. I have added Canada,
New Zealand, Tanzania and Uganda to the study. It will be noted that
in the case of only two of these countries can it be said that there is a
single national legal profession. In the United Kingdom the
profession is distinct in England and Wales, Northern Ireland, and
Scotland. The example of England and Wales is used (and
arrangements for both barristers and solicitors are considered,
although the emphasis is upon the latter). In South Africa the
provincial law societies are responsible for the attorneys’ profession
and the advocates are distinct. In Australia each state has a separate
legal system. In some there is a division between barristers and
solicitors, in others there is not.
89. Canada was added because it has a relatively complex and
sophisticated disciplinary system. New Zealand is included because
it is a unitary common law legal profession, which is currently
implementing a new disciplinary system. Tanzania and Uganda are
included to provide a regional comparison.
90. In Canada – allowing also for the civil law-based system in Quebec
– the provinces have their own rules, and the standard is generally
that of a unified profession of barrister and solicitor. In New Zealand
49
General Assembly Resolution A/RES/53/144, Declaration on the
Right and Responsibility of Individuals, Groups and Organs of Society
to Promote and Promote and Protect Universally Recognised Human
Rights and Fundamental Freedoms (General Assembly, 8th March 1999).
44
alone there is only one national system, although even there a
function division exists among the barristers and solicitors, with
some choosing to practise solely as barristers. This does not,
however, affect the disciplinary apparatus in any significant way, and
so the profession may, like Kenya, be regarded as unified and
fused.50
91. These different models have certain implications for the way in
which ethical standards are set and maintained by the legal
profession. The following analysis considers each of the models
existing in the selected countries and jurisdictions.
50
We may discount the position of notary, since only advocates may be
appointed to this office. Thus, although it is distinct from that of
advocate, it does not constitute a truly separate profession.
45
5.1 AUSTRALIA
92. Australia is one of the largest common law countries. It is not,

however, one jurisdiction. Historically each State and Territory has
been and continues to be individually responsible for the regulation
of legal practitioners in its jurisdiction. Consequently legislation,
admission rules, professional standards, disciplinary procedures and
so on vary from one jurisdiction to another.
93. In 1994 the Law Council of Australia initiated a National Practice
Model Laws Project with the aim of introducing national consistency
across jurisdictions. These “Model Provisions” were published in
their final form, as the National Legal Profession Model Bill, on 23
April 2004 and in July of that year were endorsed by the States’ and
Territories’ Attorney-Generals. This was a landmark achievement for
the regulation of the profession. The Model Provisions have been
implemented in most States and Territories with the remaining Acts
to become effective by the end of 2007.
94. Although there is now a model law on the regulation of the legal
profession in the various states and territories, historically the legal
profession has been separate in each jurisdiction, though sharing
common characteristics due to a common British origin. Hence the
division between barrister and solicitor, inherited from the British
Isles, survived in all the jurisdictions until comparatively recently,
and persists in several. This division, where preserved, has certain
implications for the regulation of the profession.
95. In another respect the profession – if we can write meaningfully of a
profession where there are marked distinctions across jurisdictions –
has a common characteristic that is crucial to disciplinary processes:
The legal profession in Australia, as elsewhere in the common law
world, was self-regulating. But, also in common with a number of
other common law jurisdictions, since 1994 this self-regulation has
gradually changed. Lawyers’ professional associations now form
part of a co-regulatory framework that includes independent
statutory authorities. This framework also includes the courts,
though these have generally always had a disciplinary role, in part
because they might regulate admission, and because they have
control over the conduct of counsel appearing before them.
96. The statutory authorities administer the rules; they handle
complaints, undertake investigations, and resolve consumer disputes,
and so on. The rules themselves are established by each
jurisdiction’s legislature. The professional associations assist with
46
disciplinary matters and are also responsible for admission
procedures and the like. While statutory authorities and professional
associations can and do issue reprimands and impose minor
penalties, serious conduct matters are determined by the courts. The
courts also hear appeals and can review professional associations’
decisions.
97. The balance in these co-regulatory frameworks between government
authorities and professional associations varies from jurisdiction to
jurisdiction and reflects local conditions. Nonetheless, there is a
general tendency towards investing more regulatory power in
independent statutory authorities. This is consistent with recent
Commonwealth practise.
98. The complaint-handling and disciplinary system in most Australian
jurisdictions is three-tiered. The bodies that regulate the legal
profession in each jurisdiction tend to be divided between those with
regulatory powers and those with disciplinary powers. The
distinction is not always clear however. Some regulatory authorities
also have disciplinary powers, and some disciplinary authorities also
have regulatory powers. In general, however, it is useful to
distinguish them as follows:
5.1.1 Regulatory authorities

99. Regulatory authorities include professional associations (such as law
societies and bar associations) and statutory authorities (e.g. the New
South Wales Office of the Legal Services Commissioner, and the
Legal Ombudsman Victoria). The functions of regulatory authorities
include admitting people to legal practice, issuing practising
certificates, making practice rules, receiving complaints against
lawyers, resolving consumer disputes and investigating conduct
matters.
5.1.2 Disciplinary authorities

100. Disciplinary authorities are courts, tribunals and panels. The
courts have an inherent jurisdiction to discipline lawyers – but also
one which is often uncertain in scope, and rarely utilised.
47
5.1.3 The Court’s “inherent jurisdiction”
101. When a lawyer is admitted to practise, their name is entered
on the Roll of Legal Practitioners of the Supreme Court in their State
or Territory: they become an “officer of the Court”. As such, they are
subject to the “inherent jurisdiction” of that Court. In other words,
the Supreme Courts retain inherent jurisdiction over the regulation of
lawyers in Australia. This means there is always a right of appeal to
the Supreme Courts as well as the ability to bring actions at first
instance in the Supreme Court in certain circumstances.
5.1.4 Solicitors and barristers

102. The vast majority of lawyers in Australia practise as
solicitors (chambers lawyers, as distinct from court lawyers or
advocates).51 But some lawyers practise as barristers (advocates).
Barristers are independent, sole practitioners who specialise in court
work. Solicitors normally work in firms and offer more general legal
services. In trials, the usual arrangement is that the solicitor
organises the case and instructs the barrister, and the barrister makes
the court appearances. In most jurisdictions lawyers are now
admitted as both barrister and solicitor and in these states and
territories most solicitors do also appear in court from time to time.
103. Barristers and solicitors alike can provide specialised legal
advice and can participate in, or represent people in, mediations and
arbitrations. However, the ways in which they are disciplined for
misconduct vary between the jurisdictions and (where the profession
is not fused) between barrister and solicitor.
5.1.5 Professional associations

104. In each state and territory the professional association for
solicitors is a law society and for barristers a bar association. In New
South Wales, for example, solicitors are represented by the Law
Society of New South Wales and barristers by the New South Wales
51
J. R. Forbes, The Divided Legal Profession in Australia: history,
rationalisation and rationale (Law Book Co, Sydney, 1979). It is to be
noted that the term advocate, when used generically, refers to the
barrister or court lawyer. This is to be distinguished from the use of the
term advocate in jurisdictions which have, like Kenya, a fused
profession.
48
Bar Association. A law society usually has some regulatory
responsibility for the solicitors in its jurisdiction; likewise, a bar
association for its barristers. However, in some jurisdictions, such as
South Australia, the Northern Territory, and the Australian Capital
Territory, the legal profession is “fused”. This means that the same
professional association (the law society) has responsibility for
solicitors and barristers. If a bar association exists in these states and
territories it will have only representational functions, not regulatory
or disciplinary.
105. Professional associations in Australia receive no government
funding. They are financed by the interest that accrues on Trust
Accounts held by lawyers and by contributions from practitioners.
These contributions may include the involuntary contributions
derived from disciplinary hearings.
106. With respect to the details of the disciplinary provisions, the
example of New South Wales will be taken as typical. The Legal
Profession Act 2004 requires that a complaint regarding the conduct
of a legal practitioner must be made in writing to the Office of the
Legal Services Commissioner. The Legal Profession Act 2004 came
into effect on 1 October 2005 and applies to all complaints lodged
after that date. The Legal Profession Act 1987 continues to apply to
all complaints lodged prior to that date.
107. The Office of the Legal Services Commissioner (“OLSC”)
receives all complaints about solicitors and barristers (and licensed
conveyancers) in New South Wales. The OLSC also oversees the
investigation of complaints about the conduct of practitioners and
plays a major role in resolving consumer disputes.
108. The OLSC works as part of a co-regulatory system, together
with the Law Society of New South Wales (the professional body for
solicitors) and the New South Wales Bar Association (the
professional body for barristers) to resolve disputes and investigate
complaints about professional conduct. The OLSC is however
independent of the professional associations.
109. The OLSC was established as a result of a Report in
February 1993 by the New South Wales Law Reform Commission
“Scrutiny of the Legal Profession – Complaints Against Lawyers”. It
was created by an amendment to the Legal Profession Act 1987, and
the OLSC commenced operation on 1 July 1994. The OLSC is an
independent statutory body and the decisions of its head, the Legal
Services Commissioner, can only be challenged through the normal
process of administrative law. The Legal Services Commissioner
reports to Parliament annually through the Attorney-General.
49
110. The OLSC’s main role is to ensure that legal practitioners
abide by their ethical and other professional obligations when
providing services to the public. The OLSC can take disciplinary
action against legal practitioners and help resolve problems between
practitioners and other members of the community.
111. The OLSC cannot
 Provide legal advice or representation

 Investigate or change court findings, or
 Handle complaints about judges or magistrates.
In most cases it will not investigate complaints about practitioners

practising in other states or territories.
112. The Office of the Legal Services Commissioner (OLSC) is
the single point of entry for all complaints. While they may in
practice do so, there is no requirement for providers of legal services
to have considered a complaint before it is considered by the
Commissioner. Once a complaint has been received, the OLSC may
retain the handling of it, or he or she may decide to pass it to the
relevant professional body. He or she monitors, and can review, its
decisions, or can order a re-investigation.
113. Cases involving potential misconduct are referred to a
separate statutory Legal Services Tribunal. The OLSC can reprimand
a lawyer, order mediation, and refer to costs assessors or the Legal
Services Division of the Administrative Decisions Tribunal (ADT).
The Tribunal can order compensation, order lawyers to undertake
further education, reprimand and fine lawyers, and suspend or strike
them off. Appeal lies to the ADT Appeals Panel, but the Supreme
Court of New South Wales retains overall jurisdiction. The OLSC
receives operational funding from the state Public Purpose Fund, the
cost of which is recouped from those activities it oversees.
114. In most Australian states and territories, including New South
Wales, the common model for disciplinary arrangements today is co-
regulation, utilising professional associations and independent, often
statutory, bodies. Commonly, though not universally, the former are
concerned with regulatory matters such as admitting people to legal
practice, issuing practising certificates, making practice rules,
receiving complaints against lawyers, resolving consumer disputes
and investigating conduct matters. The latter are concerned with
50
disciplinary matters per se, although they may also include
investigation and mediation functions.
51
5.2 CANADA
5.2.1 Federal system

115. Like Australia, Canada is a federal state, with separate legal
professions in each jurisdiction. Again, however, there is a degree of
commonality of approach to regulatory and disciplinary procedures.
116. At federal level, the Canadian Bar Association does not
discipline lawyers or mediate in lawyer-client disputes. The law
societies in each province and territory are responsible for making
sure that lawyers practise law competently and ethically. They can
discipline lawyers who do not meet these standards. The Law
Society of Upper Canada, the professional association for the
province of Ontario, is here taken as a representative example, along
with the Nova Scotia Barristers’ Society.
5.2.2 Nova Scotia legal profession

117. The Nova Scotia Barristers’ Society has exclusive
responsibility for the enforcement of professional ethics. The
Professional Responsibility Department receives complaints, which
may then be passed on to the Investigative Sub-Committee for
investigation. The Hearings Sub-Committee may fine practitioners,
but does not have power to compensate complainants.
5.2.3 Ontario legal profession

118. Legislation passed by the Parliament and Government of
Ontario, (primarily the Law Society Act52 and Regulations made
under that Act) authorise the Law Society to educate and license
Ontario’s lawyers and regulate their conduct, competence and
capacity to practise.
119. Law Society by-laws and Rules of Professional Conduct –
both based in the Law Society Act – set out the professional and
ethical obligations of all members of the legal profession in the
province. Members failing to meet these obligations are subject to
the Society’s complaints and discipline process. The discipline
process is governed by the Rules of Practice and Procedure.
52
Law Society Act c L-8 Revised Statutes of Ontario 1990.
52
120. Barristers and Solicitors are separate professions,53 but the
majority are admitted as both, and there is one professional
association.
5.2.4 Investigative role

121. In common with the standard model for common law legal
professions, Ontario’s legal profession is self-regulating with public
representation (by means of membership of disciplinary
committees). The Law Society has the authority to deal with a range
of professional conduct matters relating to lawyers. For example,
they can deal with issues relating to delay, not replying to
communications, misleading, rude and discriminatory behaviour, not
accounting for or improperly handling money, and not reporting on a
transaction. They also have jurisdiction to deal with other issues
relating to the service, ethics and honesty of lawyers. These
responsibilities are assigned to Complaints Resolution or
Investigations departments and funded entirely by the profession,
through the Law Society.
5.2.5 Right of review

122. If a complainant disagrees with a decision, by either the
Complaints Resolution or Investigations departments, to close their
complaint, he or she may ask the Complaints Resolution
Commissioner (CRC) for a review. The Office of the Complaints
Resolution Commissioner (CRC) performs an impartial review of
the Law Society’s decision to close the complaint file. This is an
important function similar to an “ombudsman” (equivalent to the
Legal Services Ombudsman in England and Wales) and is
independent of the Law Society’s professional regulation activities.
5.2.6 Adjudicative role

123. For the formal hearing of disciplinary causes in Ontario there
are the following primary agencies – the Hearings Management
Tribunal, Hearing Panel, Appeal Panel, and the Appeals
Management Tribunal.
53
Barristers Act c B-3 Revised Statutes of Ontario 1990; Solicitors Act c
S-15 Revised Statutes of Ontario 1990. Every Barrister and Solicitor is
ex officio a notary public and Commissioner for Oaths, though not all
notaries are legally trained; c N-6 Revised Statutes of Ontario 1990.
53
124. The Management Tribunals schedule hearings, allowing the
Hearing Panel, and the Appeal Panel, to concentrate on substantive
trials, and appeals, respectively, and not occupy their time with
procedural issues such as status hearings.
125. The Canadian arrangements, as typified by Ontario and Nova
Scotia, leave the primary investigatory function in the hands of the
profession, through its professional association. This includes
mediation and alternative disputes resolutions processes. If this fails
recourse is had to the Hearings Panels and the equivalents in other
provinces. These are also to be seen primarily as organs of the
professional associations, but also include lay members.
54
5.3 ENGLAND AND WALES
126. As in Australia and Canada, so too in the United Kingdom

the disciplinary arrangements for the legal profession are different in
each jurisdiction, and there is therefore no national system. Since it
is the largest jurisdiction by far, and also because it is a common law
system (like the very similar but much smaller Northern Ireland, but
unlike Scotland), we will consider here the example of the legal
profession in England and Wales.
5.3.1 Barristers
127. As in many jurisdictions elsewhere in the common law world
– and indeed in most civil law systems – the legal profession in
England and Wales is divided into two distinct professions (three, if
notaries are included54), barristers and solicitors.55 Unlike in Canada,
Australia and New Zealand, however, where a varying degree of
fusion has occurred, in England and Wales barristers and solicitors
remain completely separate.
128. Barristers were admitted, controlled and could be disbarred
by their governing body, the Inns of Court,56 although professional
rules were formulated by the Attorney-General, as professional head
of the bar, until the establishment of the Bar Council in 1893.57
54
Noel Cox, “The Notary Public – the third arm of the legal profession”
(2000) 6 New Zealand Business Law Quarterly 321-335.
55
There was a division of the English legal profession for as long as
there has been a profession; Sir John Baker, “Counsellors and Barristers:
an historical Study” (1969) Cambridge Law Journal 205.
56
A brief note on terminology is needed to avoid confusion. The court
lawyers of the ecclesiastical and admiralty courts were the advocates,
admitted by the Dean of the Arches, on behalf of the Archbishop of
Canterbury. The barristers, of the Common Law and Chancery courts
have succeeded the advocates, after that order declined. The advocates
were admitted to all the courts 1857 by statute (Matrimonial Causes Act
1857 (UK), Court of Probate Act 1857 (UK)). The barristers, serjeants,
attorneys, and solicitors were admitted to the admiralty courts in 1859
by statute (An Act to enable Serjeants, Barristers-at-Law, Attorneys, and
Solicitors to practise in the High Court of Admiralty (UK)). It was
settled in practice after 1858 that barristers were entitled to practice in
the ecclesiastical courts.
57
Richard Abel, The Legal Profession in England and Wales (1988) 133.
55
129. Until the end of the nineteenth century the circuit messes
shared with the Inns the role of disciplining barristers. Despite this,
the first account of barristers’ etiquette only appeared in 1875, and it
took until 1980 before the Senate of the Inns of Court published a
Code of Conduct for the Bar of England and Wales.
130. Efforts to centralise and institutionalise the disciplinary
process in the 1860’s failed, and only in 1896 were the judges
allowed to hear appeals from benchers in disciplinary matters. The
Bar Council never acquired the power to discipline, but it did hear
complaints and referred a few of them to the Inns of Court. Shortly
after this, the Senate was established, which assumed jurisdiction in
disciplinary matters.
131. A committee appointed by the chairman of the Bar Council
which reported on 12 September 1994 recommended that a
Barristers Complaints Bureau be established, along with a new
advocacy code and three years compulsory continuing education for
newly admitted counsel. The existing disciplinary tribunals would
remain.58
132. The barristers’ profession in England and Wales is primarily
self-regulating. Since, however, with the division between barrister
and solicitor barristers do not have direct access to clients’ money,
and indeed must act under instruction from a solicitor, the position of
barristers is quite different from that of solicitors, or of Kenyan
advocates.
5.3.2 Solicitors
133. The regulation of the legal profession dates from the earliest
years of the development of law as a distinct profession. As early as
the fifteenth century fees charged by attorneys59 were regulated by
the Courts, and by the beginning of the eighteenth century
regulations covered most aspects of any possible litigation. In the
early nineteenth century the then newly-established Law Society
obtained important changes which made it easier to remove
58
The Times (London), 13 September 1994; Bar Council, A Blueprint
for the Bar (1994).
59
The attorneys were the common lawyers, who practised in the Courts
of King’s Bench and Common Pleas. The solicitors were the
practitioners in the Court of Chancery. The proctors, who were licensed
by the Archbishop of Canterbury, were found in the ecclesiastical and
admiralty courts. In 1873 all solicitors, attorneys and proctors became
solicitors of the Supreme Court; Supreme Court Act 1873 (UK).
56
dishonest and undesirable practitioners. Although the Solicitors Act
1749 had already allowed their disbarring for misconduct the
absence of an effective professional association had until the
nineteenth century meant that these provisions were ineffective. The
new measures included the creation of the office of National
Registrar (1839),60 with the maintenance of the roll given to the
Society in 1843.61
134. Till 1933 the rules governing the conduct of English
solicitors were found exclusively in case law, ironic enough given
that solicitors, attorneys and proctors were not court lawyers per se.
The Attorney-General, as head of the bar, made rules for the
barristers, but the solicitors had no equivalent law officer. The
Solicitors Act 1933 made the Council of the Law Society responsible
for making practice rules for the regulation of solicitors.62
135. In the case In re the Justices of the Court of Common Pleas
at Antigua,63 Lord Wynford said:
In England the Courts of Justice are relieved from the unpleasant

duty of disbarring advocates in consequence of the power of
calling to the Bar and disbarring having been in very remote
times delegated to the Inns of Court. In the Colonies there are no
Inns of Court, but it is essential for the due administration of
justice that some persons should have authority to determine who
are fit persons to practise as advocates and attorneys there. Now
advocates and attorneys have always been admitted in the
Colonial Courts by the Judges, and the Judges only. The power
of suspending from practise must, we think, be incidental to
admitting to practise, as is the case in England with regard to
attorneys.
136. Because the legal profession is involved as it is with the

judicial system there is a strong public interest in the statutory
regulation of the admission and qualification of practitioners.
Furthermore there is a requirement that high professional standards
be preserved. To maintain these standards there must be a
60
Solicitors Act 1839 (UK).
61
Solicitors Act 1843 (UK) s 2.
62
Juliet Greenaway, History of the New Zealand Legal Profession
(1989) LLB(Hons) dissertation University of Auckland, at 37.
63
(1830) 12 English Reports 321.
57
disciplinary body empowered to achieve this. The use of legislation
was seen as the only way this might be done effectively.
137. In England and Wales the solicitors’ profession is regulated
primarily by the Law Society, but as we have seen, from at least the
nineteenth century this has been backed by statutory provisions.
More recently two developments may be noted. The first is the
involvement of lay members in disciplinary proceedings – and even
investigations – and the other is the division between representative
and regulatory functions. These have been required by government
in order to ensure that members of the public are protected, and that
the profession operates to the highest standards of professional
ethics, and are seen by the public to so operate.
138. In 2004 a Consultation Paper on the Review of the
Regulatory Framework for Legal Services in England and Wales
noted that in the United Kingdom five of the legal professional
bodies (the Law Society, Bar Council, Institute of Legal Executives,
Chartered Institute of Patent Agents and the Institute of Trade Mark
Attorneys) combine both regulatory and representative functions. It
questioned whether this existence of hybrid roles should continue.
Representative functions include providing services and support for
members; regulation includes setting the parameters within which
members work. These are distinct, and as a result of the paper the
functions were separated.
5.3.3 Investigative role

139. Complaints against solicitors in England and Wales are
investigated by the Legal Complaints Service, established in 2006
following the separation of the representative, regulatory, and
complaints handling functions of the Law Society. It has equal
numbers of legal and non-legal members. It seeks to reconcile
complainants and solicitors, but can ward compensation of up to
£15,000 (although the average award is £45064).
140. Dissatisfied complainants can refer their complaint to the
Legal Services Ombudsman (“LSO”). The LSO was established
under the Courts and Legal Services Act 1990 and investigates the
handling of a complaint by lawyers’ professional bodies on behalf of
members of the public. If the LSO considers a complaint has not
been investigated properly, the Ombudsman can recommend that the
64
Legal Complaints Service website,
<http://www.legalcomplaints.org.uk/financial-compensation/distress-
and-inconvenience.page#howmuch>.
58
body review the latter again. They also have the power to award
individual complainants up to £5,000 compensation (in the case of
the Law Society £15,000 from 1st January 2006). The Ombudsman
also has the power to investigate the original complaint but to date
this has been used infrequently.
141. In their concurrent role as Legal Services Complaints
Commissioner (“LSCC”) they examine the Law Society’s capability
to handle complaints made about its members efficiently and
effectively. The LSCC has the power to levy very substantial
financial penalties (up to £1 million) if the Law Society of England
and Wales fails to provide adequate plans or deliver improvements in
accordance with those plans in its complaints-handling function.
142. The Solicitors Regulation Authority of the Law Society of
England and Wales, established in 2007, has a number of roles,
including taking regulatory action. It also refers prosecutions to the
independent Solicitors Disciplinary Tribunal. The Legal Complaints
Service and Solicitors Regulation Authority may together be deemed
to be broadly the equivalent to the Advocates Complaints
Commission, and the Solicitors Disciplinary Tribunal is broadly
equivalent to the Disciplinary Committee of the Law Society of
Kenya. Just over half of the members of the Solicitors Regulation
Authority are solicitors, with the rest being lay persons.
143. In England and Wales an amendment to the Solicitors Act in
197465 provided for one or more lay observers to be appointed by the
Lord Chancellor, to examine any written allegation by or on behalf
of a member of the public concerning Law Society treatment of a
complaint about a solicitor or employee of a solicitor. This was as a
consequence of considerable political pressure.66 The Observer
receives general directions from the Lord Chancellor, to whom they
report annually.
5.3.4 Adjudicative role

144. The Solicitors Disciplinary Tribunal is independent of the
Law Society, but funded by it. Normally all hearings are held in
public and involve three members, one of whom is a lay person.
Members are appointed by the Master of the Rolls (the senior civil
judge), and appeal lies to the High Court.
65
Solicitors (Amendment) Act 1974 (UK) ss 5, 7, 11.
66
S. Ross, “The Solicitors (Amendment) Act 1974 (UK): Its relevance to
Australia” (1975) 49 Australian Law Journal 268, at 270.
59
145. The Solicitors Disciplinary Tribunal conducts the actual trial
of solicitors charged with disciplinary offences. Officers of the
Solicitors Regulation Authority prosecute, after a complaint has been
investigated by the Legal Complaints Service. The vast majority of
prosecutions are brought by the Law Society. It may award fines of
up to £5,000, and strike off or suspend solicitors.
146. The disciplinary arrangements in England and Wales have
recently strengthened the division between representative and
regulatory functions, and increased lay involvement in the process at
all of the complaints investigation, regulatory (including
prosecutorial) and disciplinary levels.
60
5.4 NEW ZEALAND
147. The assumption that the New Zealand legal profession is

currently a fused one, based on the fact that almost all practitioners
are admitted as both barristers and solicitors, is not quite correct. The
bar remains distinct, both legally and functionally, from what might
be termed the chambers, as distinct from the court side of the
profession.67 Rights of audience are accorded all barristers and
solicitors, and barristers,68 though those practitioners who are
admitted as solicitors only have rights of audience in the lower
courts.69 Further, the Rules of Professional Conduct for Barristers
and Solicitors distinguish between practise as a barrister sole, and as
a solicitor or barrister and solicitor. The disciplinary procedures are
identical; but the requirements of behaviour and conduct that might
constitute professional misconduct, differ.
148. The system for dealing with complaints about lawyers’
conduct or fees in New Zealand was previously set out in the Law
Practitioners Act 1982 (NZ).70 All lawyers with current practising
certificates belonged to one of the 14 district law societies. District
law societies were not branches of the New Zealand Law Society.
They were independent bodies, with their own separate statutory
powers that required them to investigate complaints about their
members. Other bodies, including the Criminal Bar Association of
New Zealand, and the New Zealand Bar Association, had and
continue to have representative rather than formal regulatory or
disciplinary roles.
67
“Barrister” includes a barrister and solicitor practising as a barrister,
whether or not he or she is also a solicitor; Law Practitioners Act 1982
(NZ), s 2. Although from the eighteen-forties barristers could act as
solicitors, and solicitors as barristers, there never was in New Zealand a
conscious fusion of the two branches of the legal profession. The right
of barristers and solicitors to practice each other’s profession was
intended as a temporary measure, made necessary by the shortage of
qualified lawyers in the colony. See Barrott v. Barrott [1964] New
Zealand Law Reports 988; Lord Cooke of Thorndon (ed.), Portrait of a
Profession (Reed, Wellington, 1969).
68
Law Practitioners Act 1982 (NZ), s 43 (4).
69
Re GJ Mannix Ltd [1984] 1 New Zealand Law Reports 309 (Court of
Appeal); Mihaka v. Police [1981] 1 New Zealand Law Reports 54.
70
The new Lawyers and Conveyancers Act 2006 (NZ), though enacted,
was only gradually being brought into effect. For comparative purposes
both disciplinary systems (the current one, and its replacement) are
discussed.
61
149. A complaint about the conduct of a lawyer was normally
addressed to the district law society covering the area in which the
lawyer practised. The district law society would investigate the
complaint and will let the complainant know what action, if any, it
decided to take. Because the district law societies varied
significantly in size – Auckland was by far the largest – the ability of
individual societies to fully investigate complaints varied.
150. If the district law society thought the matter was serious (that
is, it raised a question of professional misconduct rather than a civil
dispute between lawyer and client), it could lay a charge against the
lawyer with either the District Disciplinary Tribunal or the New
Zealand Law Practitioners Disciplinary Tribunal. The district law
societies were thus investigative and prosecutorial authorities.
151. Not all complaints resulted in charges before a tribunal. In
some cases the matter was resolved before a hearing was necessary.
152. Sometimes the person making the complaint might not be
satisfied with the decision of a district law society’s decision or
mediation. If the complainant was not satisfied with the district law
society’s treatment of their complaint they could write to the Lay
Observer for the region setting out their allegation about the
handling of the complaint.
153. The Lay Observer was a government-appointed non-lawyer,
whose task was to examine such allegations. The Lay Observer
would get all the relevant information from the complainant, the
district law society and the lawyer concerned and would send the
complainant a written report of the results of his or her examination.
154. He or she might make recommendations to the district law
society and, if so, the district law society was required to then tell the
Lay Observer what, if any, action it took on those recommendations.
If the Lay Observer was not satisfied with the district law society’s
response he or she might request the district law society to refer the
report or recommendation to the New Zealand Law Society for
review, and the district law society was required to do so.
155. Prosecutions before the District Disciplinary Tribunals and
the New Zealand Law Practitioners Disciplinary Tribunal were
conducted by the district law societies. Both tribunals included lay
members.
156. The District Disciplinary Tribunal or the New Zealand Law
Practitioners Disciplinary Tribunal had considerable powers to deal
with lawyers they find guilty of disciplinary charges: they could
censure, fine or restrict the practice of lawyers and the New Zealand
62
tribunal could strike a lawyer off the roll of barristers and solicitors.
Applications for striking-off could also be made direct to the High
Court, though this avenue was rarely taken except by a district law
society, and then only in exceptional situations.
5.4.1 Complaints about bills

157. As well as investigating complaints about lawyers’ conduct,
district law societies also undertake costs revisions. If a client is
concerned that a lawyer’s bill of costs is unreasonably high, then the
first step is to discuss it with the lawyer and, if the client has not
already received one, to ask for an itemised account. If they are still
concerned they can ask the relevant district law society (in writing)
to review the bill. Generally speaking, the client must ask for a
review within six months of the date of its delivery, but it can be
longer if the client and the lawyer agree to that.
158. If the client is not satisfied with the decision of the district
law society on a costs revision they can appeal (as indeed can the
lawyer) to a Registrar of the High Court.
5.4.2 Other avenues

159. The complaints system is aimed at disciplining lawyers who
were guilty of professional misconduct. While a Disciplinary
Tribunal had the power to order a lawyer to pay small amounts by
way of compensation, the system was not primarily aimed at
recovering any money the client may have lost through the action of
the lawyer. The objective of the system was not the recovery of debts
or damages, but the punishment of wrongdoing.
160. If a complainant believed that they have lost money through
a lawyer’s fault then, as well as making a complaint about the
lawyer’s conduct, they might consult another lawyer about whether
they could take other action – such as making a civil claim or
reporting the action as criminal fraud. In certain circumstances, they
might have a valid claim against the Solicitors’ Fidelity Guarantee
Fund, administered by the New Zealand Law Society.
161. The New Zealand Law Society operates a freephone line for
members of the public and lawyers to report concerns about
solicitors’ trust accounts.
63
5.4.3 New system from 2007/2008
162. The Lawyers and Conveyancers Act 2006 (NZ) introduced a
new regulatory and disciplinary system. Part 7 of the Act (ss 120-
272) comprises a significant proportion of the new, very lengthy and
complex, statutory provisions for the legal profession.
163. The New Zealand Law Society is now be the sole
compulsory membership association of lawyers (excepting the very
small class of conveyancers), and is required to establish a
complaints service.
164. There will be one or more Lawyers Standards Committees,
as part of the New Zealand Law Society complaints service.
Members of the Committees will be appointed by the law society,
and there are to be at least three members, one at least of whom must
be a lay member. The role of the Committee is to investigate
complaints against lawyers or their employees (and to make its own
inquiries where necessary), to promote the resolution of disputes
through negotiation, conciliation and mediation, and to prosecute in
the Disciplinary Tribunal. The law society or a Standards Committee
may (and it is expected that they will) appoint investigators.
165. In the event of an agreed settlement, the Standards
Committee may make an order that all or some of the terms of an
agreed settlement between the person to whom a complaint relates
and the complainant are to have effect, by consent, as all or part of a
final determination of the complaint.
166. The Standards Committee may issue a determination that a
practitioner – or former practitioner – is guilty of unsatisfactory
conduct, or that the matter is to be referred to the Disciplinary
Tribunal. In the event of a finding of unsatisfactory conduct, the
Standards Committee may make an order censuring or reprimanding
the person to whom a complaint relates, order the person to whom a
complaint relates to apologise to the complainant, pay compensation
or reduce their fees, and rectify any error or omission. There is also
provision for a fine of up to NZ$15,000 (Kshs 750,000), and
additional orders covering, inter alia, compulsory training or
education, inspection of practice, and the award of costs to the law
society. The Standards Committee may also intervene in the
management of a practice. Thus the Lawyers Standards Committee
is investigative, prosecutorial, and to a limited extent also
disciplinary, in function.
64
167. The Legal Complaints Review Officer is a non-lawyer
appointed by the Minister after consulting the Law Society – though
the first appointee is Dr Duncan Webb, a legal academic and
barrister (who has relinquished his practising certificate and his chair
at the University of Canterbury). The function of the Legal
Complaints Review Officer is to review decisions of the Lawyers
Standards Committee. Such reviews are to be conducted in private.
The Legal Complaints Review Officer may him or herself lay a
prosecution before the Disciplinary Tribunal, or direct a Standards
Committee to do so. The law society pays the government the cost of
operating the Office of Legal Complaints Review Officer.
168. The Disciplinary Tribunal (in full the New Zealand Lawyers
and Conveyancers Disciplinary Tribunal) is to hear applications for
suspension, and other charges. It comprises a chairman, deputy
chairman (both legally experienced but not currently practising
lawyers), 7 to 15 lay members, 7 to 15 lawyers and 3 to 5
conveyancers. The chairman and deputy chairman and all lay
members are appointed by the Governor-General on the advice of
the Minister. The lawyers and conveyancers are appointed by their
respective professional associations.
169. The Tribunal may sit in divisions, with at least five members,
and apart from the chair, half must be lay and half lawyers or
conveyancers as appropriate. Hearings are in public. Since the
system is only being established now it is unknown whether the
workload of the Tribunal will require it to sit in divisions.
170. The Tribunal may order a fine of up to NZ$30,000 (Kshs
1.5m), payable to the law society. Every person commits an offence
and is liable on summary conviction to a fine not exceeding
NZ$5,000 (Kshs 250,000), who wilfully obstructs the Tribunal, or
intimidates or insults its members. Failure to attend hearings, or to
provide documents requested, can result in a fine of NZ$25,000
(Kshs 1.25m).
171. Appeal against the decisions of the Tribunal lies to the High
Court, and then to the Court of Appeal. The Law Society must
reimburse the government for the cost of a hearing.
172. Prior to a hearing of a case the Tribunal may make an order,
at the request of the Standards Committee, suspending a lawyer from
practising until the matter has been determined.
173. The High Court retains its inherent power to strike off the
roll and discipline lawyers as officers of the Court. As in other
jurisdictions these powers are comparatively rarely used.
65
174. The new arrangements are based on centralised self-
regulation, but moderated by the requirement for lay participation.
They are unusual in that they effectively have the one agency which
has investigative, prosecutorial and disciplinary functions. The
Lawyers Standards Committees investigate complaints, attempt to
resolve disputes, and prosecute offenders. They also have limited
powers to punish, and their decisions are subject to appeal to the
Legal Complaints Review Officer, a non-lawyer. The New Zealand
Lawyers and Conveyancers Disciplinary Tribunal deals only with
the more serious offences.
175. Although these Committees are part of the New Zealand Law
Society’s complaints service – the old District Disciplinary Tribunals
has been abolished – the new Committees will be based in the
districts. Whereas there was a distinction between the investigative
and prosecutorial role of the District Law Society’s officers and the
disciplinary role of the District Disciplinary Tribunals, in the new
system these roles have effectively been combined. This is a
departure from the approach adopted in most other jurisdictions
reviewed, and its likely effectiveness is unknown. Because the
district law societies – apart from Auckland – have disappeared,
local committees are associated with branches of the New Zealand
Law Society.
66
5.5 SOUTH AFRICA
5.5.1 Attorneys
176. The Law Society of South Africa (LSSA) is the umbrella
body of the attorneys’ profession in South Africa. Complaints against
attorneys are conducted by the Provincial Law Society where the
attorney is registered, and is completely outside the ambit of the
LSSA. The Cape Law Society (the Law Society of the Cape of Good
Hope) is here taken as typical. The Cape Law Society supervises
compliance with the provisions of the Act relating to annual audits of
trust accounts and investigates any irregularities, qualifications or
failure to comply with the Society’s audit requirements the Society.
177. The Cape Law Society investigates complaints about the
conduct of attorneys by putting the complaint to the attorney, by
calling for a full report and by considering the complaint, with the
report, to determine whether the attorney has contravened rules
governing professional conduct.
178. Where the professional conduct rule has been contravened,
the Society refers the matter to the Disciplinary Committee, which
considers the matter and makes recommendations to Council. The
recommendations may result in a resolution by Council to impose a
reprimand or fine, to proceed to a full disciplinary inquiry or
application to court to suspend or strike the attorney from the Roll.
179. The Committee is empowered to consider and investigate
any complaint made against any member at the instance of
whomsoever, including any complaint made at the instance of the
Council mero motu; and to authorise the Director to render to any
complainant such assistance in connection with the lodgement of his
complaint as may be reasonably necessary or desirable.
180. Where a case of unprofessional or dishonourable or
unworthy conduct on the part of the member is established, the
Committee is to notify the Council of its opinion and the facts upon
which such opinion is based. At the same time, and having
considered the member’s disciplinary record, it is to make a
recommendation to the Council that the Council do either of two
things. These are to determine the complaint summarily, without a
hearing, in which event it will at the same time make a
recommendation to the Council as to whether the Council should
impose a punishment provided for in the Act. In such an event, it is
required to indicate what punishment the Council should impose or
67
whether the Council should apply for the striking off such member
from the roll of attorneys or for his or her suspension from practice.
181. The second option is to hold a formal enquiry into the
complaint. In this event it shall refer the complaint to a Disciplinary
Enquiry Committee with an instruction that the committee hold a
formal enquiry into the complaint.
182. Members of both Committees are appointed by the Council
on an annual basis. Both a Disciplinary Committee and a
Disciplinary Enquiry Committee consist of as many practising
members and other persons as the Council may from time to time
resolve. Lay members are appointed.
183. The Disciplinary Enquiry Committee is required, as a general
rule (though subject to exceptions) to preserve the confidential
nature of all its enquiry proceedings.
5.5.2 Advocates
184. The General Council of the Bar (“GCB”) can seek to have
advocates struck off the roll, by petitioning the High Court, 71 for
breaching the Uniform Rules of Professional Ethics of the General
Council of the Bar of South Africa. An advocate who fails to adhere
to those standards to a degree that satisfies a court that he or she is
unfit to continue to practise is liable to be suspended from practise or
to have his or her name struck from the roll of advocates.72
185. The GCB is a federal body representing the organized
advocates’ profession in South Africa, and has ten constituent
societies of practising advocates, or Bars. Advocates are bound by
the codes of ethics of their own bar association. These are enforced
by the Bar Council. An advocate who transgresses the law or the
code of conduct may be expelled from the profession by way of an
application to the High Court. The Council of the GCB may on its
own initiative, or whenever requested by a constituent Bar to do so,
recommend rules of professional etiquette and practice for adoption
by all constituent Bars or a constituent Bar.
186. The Council of the GCB has the power to hear and decide
appeals by members of constituent Bars from decisions of those Bars
in any disciplinary proceedings in respect of those members save
where the decision concerned is one to approach the Supreme Court
71
See General Council of the Bar of South Africa v. Van der Spuy 1999
(1) SA 577 (T).
72
Section 7(1)(d) of the Admission of Advocates Act 74 of 1964.
68
to take disciplinary proceedings against that member. The appeal
shall be heard by a committee consisting of at least three members,
appointed by the Chair and which may include himself. The
committee thus appointed determines the procedure to be followed
and makes it known to the parties. The committee may, together with
any ruling given in an appeal, make any order in regard to costs
which in the circumstances may be just and equitable. Pretoria Bar
Association (Pretoria Society of Advocates) is an example of the
constituent societies.
187. The standard South African model may be regarded as being
self-regulation by the professional associations, with the Council of
the relevant law society being involved, and the investigative and
determinative functions exercised by organs of the society. In
common with other systems the conduct of inquiries is dealt with in
more than one body, with several tiers operating.
69
5.6 TANZANIA
5.6.1 Advocates
188. The Tanganyika Law Society was established by law, and is
comprised of all lawyers called to the Bar in Tanzania. There is a
separate Zanzibar Law Society, with a small membership.
189. Any person enrolled as an advocate under the Advocates Act,
Chapter 341 of the Laws of Tanzania (R.E.2002) and listed as a
member of the Tanganyika Law Society, established pursuant to the
Tanganyika Law Society Act Chapter 307 of the Laws of Tanzania
(R.E 2002) can practice law as an Advocate and shall be subject to
the disciplinary rules and etiquette as promulgated under the said
laws, and subject to the Ethics Committee of the Law Society and
the Advocates Disciplinary Committee established under the
Advocates Act CAP 341.
190. Although it has a statutory basis, the professional association
is one of few in Africa that have no legal capacity to disbar any
errant member. Most of the complaints involve failure to represent
clients in court, receiving money through intimidation, conspiracy
with the other party in cases against their clients and forgery. The
Tanzanian model may be characterised as self-regulation, but in the
absence of power to strike off advocates its effectiveness is limited
when compared, for instance, with South Africa.
70
5.7 UGANDA
5.7.1 Advocates
191. The Uganda Law Society (ULS) is a corporate body
established by the Uganda Law Society Act (Cap.276) with
perpetual succession and a common seal. The Uganda Law Society
has a membership of over 1,200 advocates spread across the country.
The Council of the Law Society has an Ethics and Professional
Conduct Committee.
192. The Law Council was established under the Advocates Act,
1970 (as amended). It is chaired by a Judge of the Courts of
Judicature and its membership includes –
 the President of the Uganda Law Society;

 The Director of the Law Development Centre;
 The Dean Faculty of Law of Makerere University;
 Two practicing advocates elected by the Uganda Law
Society;
 The Solicitor General or his/her representative not below the
rank of Principle State Attorney;
 A person co-opted by the Law Council.
193. The functions of the Law Council are, inter alia,
 to advise and make recommendations to the Government on

matters relating to the profession of advocates;
 to exercise, through the medium of the Disciplinary
Committee, disciplinary control over advocates and their
clerks;
 to exercise power of approval of approval of persons eligible
to practice as Advocates in Uganda.
194. The Disciplinary Committee of the Law Council sits every

Friday of the week in the Ministry Board room to hear complaints
against Advocates by the individual members of the public. It has
power to strike an advocate off the Roll of Advocates, or fine them.
It also has power to investigate, and anyone may take a complaint to
it. Members include the Solicitor-General or his or her nominee,
and five other members of the Law Council other than the
71
Chairperson of the Law Council, appointed by the Law Council. The
Secretary of the Law Council provides prosecuting counsel.
195. The Disciplinary Committee may be regarded as an example
of co-regulation, as it is an independent statutory body. It can be seen
as self-regulation only in the limited sense that it is largely
comprised of lawyers; the representational functions of the Law
Society are separate. It is also relatively unusual in having no lay
member. The separation of investigatory and disciplinary functions
is also not fully developed, since it is an organ of the Law Council,
which prosecutes cases before the Committee.
72
5.8 IN CONCLUSION
5.8.1 Specific jurisdictions

196. Certain similarities are found in the Commonwealth systems
surveyed. In most Australian states and territories, including New
South Wales, the common model for disciplinary arrangements today
is co-regulation, utilising professional associations and independent,
often statutory, bodies. Commonly, though not universally, the
former are concerned with regulatory matters such as admitting
people to legal practice, issuing practising certificates, making
practice rules, receiving complaints against lawyers, resolving
consumer disputes and investigating conduct matters. The latter are
concerned with disciplinary matters per se, although may also
include investigation and mediation functions. In New South Wales
the one agency deals with all complaints. There is not clear evidence
that one model in inherently more effective at enforcing ethical
standards than another, although dynamic tension, and co-regulation,
appears more effective than self-regulation alone. The degree of
sophistication of the wider profession, and its willingness to enforce
disciplinary measures upon its members (and see them enforced by),
may be of equal importance to merely structural aspects.
197. The Canadian arrangements, as typified by Ontario, leave the
primary investigatory function in the hands of the profession,
through its professional association. This includes mediation and
alternative disputes resolutions processes. If this fails, recourse is
had to the Hearings Panels and the equivalents in other provinces.
These are also to be seen as primarily organs of the professional
associations, but also include lay members.
198. In England and Wales, the Legal Complaints Service has a
primary investigative function, with right of reference by a
complainant to the Legal Services Ombudsman. The Solicitors
Regulation Authority prosecutes, and has certain regulatory
functions. The Solicitors Disciplinary Tribunal conducts the actual
trial of solicitors charged with disciplinary offences.
199. The new arrangements in New Zealand are based on self-
regulation, but moderated by the requirement for lay participation.
The new Lawyers Standards Committees investigate complaints,
attempt to resolve disputes, and prosecutes offences. Unusually they
also have limited powers to punish, and their decisions are subject to
appeal to the Legal Complaints Review Officer, a non-lawyer. The
73
New Zealand Lawyers and Conveyancers Disciplinary Tribunal will
deal only with the more serious offences.
200. The standard South African model may be regarded as being
self-regulation by the professional associations, with the Council of
the relevant law society being involved, and the investigative and
determinative functions exercised by organs of the society. In
common with other systems, the conduct of inquiries is dealt with in
more than one body, with several tiers operating.
201. Tanzania may be categorised as self-regulation. The Ethics
Committee of the Law Society and the Advocates Disciplinary
Committee are established under the Advocates Act.
202. Uganda is an example where the one statutory body, the
Disciplinary Committee of the Law Council, has responsibility for
disciplining members. It does not include laymen, nor is it part of the
professional association. Prosecution is by state counsel in the Law
Council, so investigatory, prosecutorial and adjudication functions
are not fully separated.
5.8.2 Over-arching conclusions

203. The primary investigatory function is generally in the hands
of the profession, usually in a dedicated investigatory service or
department. Disciplinary matters per se, which may also include
investigation and mediation functions, are often in the hands of
independent bodies, generally statutory. Where these also remain in
the hands of the profession (as in Canada) the investigation,
mediation, and determination functions are generally separate. In
some systems, such as New Zealand, lesser offences are dealt with
by a lower level, generally regional, body, with only the most serious
disciplinary offences reaching the highest disciplinary tribunal. In
almost all examples, lay participation is expected, and the tendency
is for this to become more pronounced. It must be noted, however,
that the choice of individuals, and the qualifications required of
them, as well as their role in the tribunals, is of critical importance.
204. The high-level choice rests between taking responsibility for
complaints away from the professions and leaving it with the
professions, subject to oversight. A further choice is in the separation
of the handling of complaints from disciplinary matters. Currently
discipline is generally removed from the handling of complaints.
205. Removing the regulatory functions from the professional
bodies clearly separates complaints from the representative influence
74
and, therefore, permits the system to be independent, responsive to
consumers and free from capture, and the perception thereof. A
feature of a new system could be a single gateway for consumers
into the complaints system. A disadvantage could be that it removes
responsibility from the professions and may be seen as allowing
them to disown ownership of, or the ability to learn from,
complaints.
206. Leaving responsibility with the professions, subject to
appropriate oversight, keeps the professional bodies involved in
dealing with their own complaints and allows the peer pressure
driver on standards to continue; but it suffers from a real or
perceived lack of independence; and preserves a number of possible
avenues for the consumer to follow to achieve redress.
207. Internationally, it is usual for the costs of a complaints
system to be borne by the providers of the service (and not the public
purse). A regulatory framework will have to be funded sufficiently to
enable it to function properly and in a timely fashion but without
imposing an undue burden on those required to fund it. In some
cases, particularly where the disciplinary system is immature,
government funding may be necessary, but it is not ideal in the long-
term. The cost of dealing with complaints against providers of
services is likely to be passed back to the consumer by the provider
by way of increased fees or charges.
208. These international examples may be seen as indicating what
is common practice, and the direction in which reforms to
disciplinary processes for the legal profession has been taking.
Because details do vary it is not practical to identify in tabular form
the various models that have been examined. What is important is
the dynamic structure – division of responsibility and function, lay
participation, and self-regulation and co-regulation. In the light of
these comparisons the next part of the Report will examine the
current system in Kenya.
75
VI DISCIPLINARY STRUCTURES
209. This Report involves a review of the Advocates Complaints

Commission, and the Disciplinary Committee, and the other
processes and bodies involved in the maintenance of standards of
professional ethics in the legal profession.
210. The assumptions with respect to self-regulation and co-
regulation which underlay the Stobbs Report are followed in this
Report. It is not the intention of the International Consultant to
propose a new scheme for the maintenance and enhancement of
professional ethical standards, but rather to provide
recommendations as to how to respond to the perceived
shortcomings of the system. This is qualified, however, by the need
to ascertain that the disciplinary system as presently constituted is
capable of improvement without radical overhaul.
6.1 Review the policy, legal and administrative framework for

addressing advocates (including those in public service), the
ethical issues in place today and the feasibility of previous
consultancy recommendations in view of the passage of time
211. This section of the Report will consider the legal, policy and
administrative framework for preserving and enhancing ethical
standards in the legal profession. This is not in isolation, but is rather
in the context of the five years which have elapsed since the Stobbs
Report. Although many of the recommendations of that report were
implemented, many have yet to be implemented, and indeed the
effectiveness of those which have been implemented needs to be
reviewed.
212. This section is concerned more with the broader structure and
context of disciplinary machinery rather than the technical questions
of role, powers, and procedures, which will be considered later in the
Report.
213. The disciplinary apparatus depends upon three key elements;
the Law Society, the Advocates Complaints Commission, and the
Disciplinary Committee. The newer regional ethics committees will
also be considered in due course.
214. The Law Society of Kenya was established by the Law
Society of Kenya Act (Act No. 10 of 1949), and now governed by
the Law Society of Kenya Act (Act No. 18 of 1963). It may
76
investigate complaints against advocates, and may – though in
practise rarely does – prosecute them before the Disciplinary
Committee. The legislative powers of the Law Society with respect
to disciplinary matters appear to be generally adequate, subject to the
need to develop rules of intervention and account monitoring (which
will be discussed later).
215. Every advocate is subject to the jurisdiction of the
Disciplinary Committee73 which is established by the Advocates Act,
Chapter 16 of the Laws of Kenya and mandated to deal with
offences or misconduct by an advocate.
216. The legislative framework for the formal disciplinary
machinery is relatively complex (and should be simplified), but in
simple terms the Disciplinary Committee is established under s 57(1)
of the Advocates Act. Its powers are broadly sufficient, and its role
fairly clear. In its actual operation difficulties are apparent – which
will be discussed in due course.
217. The Disciplinary Committee generally adheres to
international good practise with respect to its structure and
membership. Its legislative powers and responsibilities are generally
adequate to deal with its core goal. The deficiencies which exist
relate more specifically to the administrative framework in which it
operates, and the way in which it has been used.
218. The Disciplinary Committee should be seen as the tribunal of
last resort – and should not be concerned with matters which might
properly be regarded as administrative in nature, nor with what are
solely or largely financial disputes.
219. The Advocates Complaints Commission is established under
s 53 of the Advocates Act. Unlike the Disciplinary Committee,
which is effectively an organ of the Law Society, the Commission is
a department of the Office of the Attorney-General (State Law
Office). Again its powers are adequate, and its role clear. Although
the operation of the Commission would appear to be more efficient
than that of the Committee, more work is needed – as will be
discussed later.
220. Ethical standards depend upon a number of factors, some of
which are inherently beyond the control of the legal profession. An
additional complexity, noted in the Stobbs Report (paras 116-117),
included the “low level of knowledge in Kenya about legal rights
and procedures” and “a slow, complex judicial procedure dealing
with such actions”. That report also identified a lack of sufficient
73
77
work for the number of practising advocates, and consequently
economic pressure on advocates (para 117). These factors may well
be some of the underlying causes of complaints.
221. In any system there will always be some errant legal
practitioners; it must be the aim of any system to minimise the
number and ensure that misconduct is punished. This is so regardless
of the level of understanding of the law by the general public, or the
efficiency of the judiciary as a whole. This may compel a greater
degree of co-regulation (rather than self-regulation) than would
otherwise be desirable.
222. One potential difficulty is with respect to the treatment of
non-advocates. Employees of advocates are covered by the present
system. At present the Disciplinary Committee has jurisdiction over
all past and present advocates who remain on the Roll, while the
Advocates Complaints Commission has only jurisdiction over
currently practising advocates. It is recommended that the Advocates
Act be amended to ensure that the Advocates Complaints
Commission has jurisdiction over former practitioners (such as those
who have retired), subject to the qualification that the conduct
complained of must relate to their practise as advocates, and not to
any judicial, prosecutorial or other role they may previously or
subsequently have held (Recommendation 1).
223. Advocates in public service are in a somewhat different
position to those in private practice. One difference, referred to
above, is that they are not the responsibility of the Advocates
Complaints Commission; they could however potentially be
disciplined by the Disciplinary Committee, if prosecution were to be
brought by the Law Society. This does not appear, however, to
happen in practice. Nor is the Disciplinary Committee – at least as
presently constituted and run – necessarily the best tribunal for this
purpose.
224. Section 2 of the Public Officer Ethics Act (Act No. 4 of
2003) defines “Public Officer” as an officer, employee or member of
any government department or service. These do of course include
many advocates in public service. They and their public officer
colleagues are bound by the Code of Conduct and Ethics instituted
under the Act.74 Failure to adhere to the Code renders a miscreant
liable to the sanction of the relevant Commission (inter alia, the
Judicial Service Commission for judges, magistrates, and public
officers in the judiciary, and the Public Service Commission for most
74
s 34.
78
others), which is empowered to “take whatever disciplinary action it
considers appropriate”.75
225. The Public Officer Ethics Act provides an appropriate
measure of enforcement of ethical standards for advocates and para-
legal personnel in public office. Advocates, as members of the legal
profession, should however continue to remain liable for misconduct
in the same way as lawyers in private practice. Since the nature of
legal work in public office differs markedly, so that some closely
resembles private practice while others are quite dissimilar (and thus
the code of ethics for advocates might not be a useful measure), it is
appropriate for parallel disciplinary provisions to remain.
226. As well as ensuring that advocates at one end of their career
do not escape being held to account by retirement, it is also
important to ensure that a proper check is kept upon admission to the
legal profession; indeed this is an even more important matter.
227. All advocates owe a duty of professional conduct to their
colleagues and to the general public. This can be reinforced (though
not of course guaranteed) by ensuring that only appropriate persons
are admitted to practice; that legal education (both academic and
professional or vocational) is robust and adequately inculcates
ethical principles; and that post-admission continuing legal
education is effective. Post-admission supervision of practise by the
profession must also be adequate to detect misconduct where (for
whatever reason) clients and colleagues do not take action.
6.2 Admission
228. The procedures for the admission of advocates, while closely
related to the requirements of legal education, are distinct. Apart
from completing the requisite academic and professional training, a
would-be advocate must be a fit and proper person. There is no
certain way or ascertaining whether an applicant is such a person.
However, it is incumbent on the Law Society, as the professional
association for advocates, to implement a system to check that
applicants are fit and proper persons.
229. Every person who is duly qualified to be admitted as an
advocate is required by law to file a petition requesting admittance.
The Law Society of Kenya is required to review such a petition and
has a right to be heard with regards to the person’s admission.
Therefore the Society is able to advice against the admission of a
person as an advocate if it feels that the individual lacks moral
75
s 35(1)(a).
79
fitness.76 It is recommended that affidavits and references in support
of applicants for admission be required in all cases. References in
support of applicants should be from two people of standing in the
possession of a current practising certificate and against whom there
is no outstanding complaint before the Law Society, Advocates
Complaints Commission or Disciplinary Committee
(Recommendation 2).
6.3 Legal education

230. Professional legal education is provided in accordance with
the Council of Legal Education Act.77 This provides, inter alia, that
the Council of Legal Education (“the Council”) may make
regulations (with the approval of the Minister for Justice and
Constitutional Affairs) for legal education. The Advocates Training
Programme 2007 (“ATP”) will come into effect 1 st January 2008.
Because this change is imminent the current regime will not be
considered.
231. The objective of the ATP will be to instil in lawyers
professional preparedness and ethical commitment. The Council
should be commended for placing such a high emphasis on ethics.
However, it is necessary that action follows words. In this case the
specific provisions of the ATP do indeed appear to provide a sound
training in the principles of ethical professional practise.
232. Ethics forms part of the curriculum at two levels. Firstly
there is a specific unit dedicated to the subject. Secondly, it is an
aspect of other units of the curriculum. For instance, a specific
objective of the criminal litigation unit is to “equip students with
case management skills to facilitate expeditious disposal of cases”.
Similarly, in the probate and administration unit an objective
includes equipping students “with case management skills to
facilitate expeditious disposal of cases”. Since delay is a common
ground for complaints this approach is welcome. The ethics of
negotiation also forms a key skill in the trial advocacy unit.
233. Unit 6 (of 10) covers professional ethics and practice. The
overall objective of the module is to “inform, inculcate and develop
in the students the high standards of conduct demanded of advocates
by the profession”. The course description is commendably
comprehensive, ranging from the concept of ethics, the role of the
76
77
No 12 of 1995.
80
lawyer in society, to such detailed but important aspects as advocates
remuneration, and the rights, obligations and privileges of an
advocate.
234. There is also a unit on legal practice management, an area
which itself is often an underlying cause of professional misconduct.
Financial training is particularly important, as poor accounting
practises contribute to many instances of malpractice.
235. It is recommended that the Law Society continues to work
closely with the Council of Legal Education to ensure that the ATP
provides the best model of training, particularly as it relates to
professional ethics and etiquette, and account keeping
(Recommendation 3).
236. It is also recommended that the operation of the ATP be
reviewed by the Council of Legal Education after the first year in
which it is offered to ensure that the objectives are being met
(Recommendation 4).
237. The Report of the Ministerial Task Force on the
Development of a Policy and Legal Framework for Legal Education
in Kenya 200578 (“the 2005 Report”) was critical of the standard of
legal education; it is expected that the new ATP will mark a new and
more satisfactory era for the legal profession.
238. It is noted that the recommendations of the 2005 Report
included eleven suggested core courses at diploma and degree level
(recommendations 11 and 12). These did not include ethics.
Professional ethics was however suggested for inclusion in Bar
courses, and this has been accepted and implemented in the new
ATP. It is recommended that consideration be given to including
professional ethics as a core subject in diploma and degree level
courses. This would not constitute duplication of coverage, as the
focus at undergraduate level should be different. But ethical
standards must be inculcated at the earliest possible stage, and
leaving this until the Bar course may be too late.
239. The admission of foreign-qualified advocates to practice in
Kenya exposes the country to the varying standards of ethical
education and adherence found abroad. It has been observed that
there has been a sharp fall in standards of advocacy and professional
ethics among Kenyan lawyers who have been admitted to practice
78
Report of the Ministerial Task Force on the Development of a Policy
and Legal Framework for Legal Education in Kenya 2005 (Nairobi,
2005) para 36.
81
on the strength of qualifications acquired abroad. 79 The numbers of
such lawyers appears to have increased in recent years.
240. For the above reason, as well as from general principles, it is
important that continuing legal education includes an ethical
standards component. The Joint Meeting of the Council of the Law
Society and the Committee on Continuing Legal Education of the
Law Society on 27th October 2005 proposed that three subjects be
mandatory elements of the continuing legal education programme:
latest developments in civil and criminal procedure; practice
management; and professional responsibility which includes legal
ethics, professionalism and the prevention of malpractice. It is
recommended that professional ethics be included in any
compulsory continuing legal education requirements for advocates,
both junior and the more experienced (Recommendation 5).
6.4 Intervention and account monitoring

241. Apart from complaints from clients, and from fellow
advocates, professional misconduct may be discovered through the
use of periodic or systematic inspections of the accounts and other
records of firms.
242. It is recommended that the Law Society conduct regular
audits of advocates’ accounts, using their own accountant, or an
independent auditor reporting to the Society, for the purpose, and
that this be provided for by regulations under the Advocates Act
(Recommendation 6). Systematic inspection of all accounts annually
may not be possible or even necessary. Random inspections should
be sufficient to ensure that advocates endeavour to keep their
accounts in a good state.
243. The Law Society should also be able to take over the
operation of a practise if it appears, to the satisfaction of the Law
Society, that this is necessary to safeguard clients’ funds. This right
would however only be used in wholly exceptional circumstances.
244. The profession as a whole must take responsibility for the
performance of its members. For this reason it is recommended that
an advocates fidelity fund be instituted, funded from a percentage of
the practising certificate fee, for the compensation of clients for
losses due to the malpractice of advocates (Recommendation 7).
79
Ibid.; Venkat Iyer, Continuing Legal Education for Kenyan Advocates:
A Review of Existing Provision (The Law Society of Kenya, Nairobi,
2007) 24.
82
245. The Advocates Complaints Commission may investigate the
accounts of an advocate against whom a complaint has been made
and for that purpose may order such advocate to produce all relevant
books and documents to the Commission or to an accountant
engaged by the Commission in that behalf.80 However it is
appropriate for the profession itself to also have this role and for the
Law Society to be so empowered.
6.5 Conclusion
246. Apart from complaints from clients, and from fellow
advocates, professional misconduct may be discovered through the
use of periodic or systematic inspections of the accounts and other
records of firms.
247. Although neither the Advocates Complaints Commission, nor
the Disciplinary Committee – or indeed the regional ethics
committees – are without faults, the existing disciplinary structure of
the legal profession of Kenya is capable of improvement without
abolition of any of these major elements. The necessity for
disciplinary apparatus of some sort is reflected in the ubiquitous
existence of such systems in comparable common law jurisdictions.
80
Section 53(6E) Advocates Act (Cap 16 Laws of Kenya) introduced by
Statute Law (Miscellaneous Amendments) Act No. 2 of 2002.
83
VII THE ADVOCATES COMPLAINTS COMMISSION
7.1 Introduction
248. This part of the Report encompasses a review of the role of
the Advocates Complaints Commission vis-à-vis the autonomy and
independence of the profession and makes proposals relating thereto.
7.2 Historical background

249. The history of the legal profession in Kenya dates back to the
colonial era, and especially to the period after the end of the Second
World War. It was established by the settler community rewarded for
their services in the War. In common with many other settler
communities81 the initial entrants to the profession in Kenya were
often not properly qualified and in particular not properly trained in
law. The influence of the Arabic world was also felt at the coast
where there were “vakeels”, a term used to refer to advocates
(particularly itinerant ones) amongst the Arabs. The regulation and
discipline of advocates during this time was therefore very weak to
the point of being almost non-existent. Such regulation as existed
was often such as could be provided by the judiciary.
250. The year 1949 marked the establishment of the Law Society
of Kenya under the Law Society of Kenya Act (Act No. 10 of 1949).
The new society was, among other things, charged with the
maintenance and improvement of standards of conduct of the legal
profession in Kenya. The council governing the society was to make
rules on a variety of topics, among them the grounds for expulsion
from the society. These rules did not have to be approved by any
other person or body, any more than did any other actions of the
council. This did not perhaps matter too much, for membership of
the society remained voluntary, and expulsion therefrom did not
prevent an advocate from continuing to practice, though it might
adversely affect his or her professional reputation.
251. To remedy the above defect, the Legislative Council passed
the Advocates Act (No. 55 of 1949). The Act established bodies and
conferred legal powers where none had previously existed. The two
important new statutory bodies that were established were the
Advocates’ Committee and the Remuneration Committee.
81
See, for instance, Lord Cooke of Thorndon (ed.), Portrait of a
Profession (Reed, Wellington, 1969).
84
Specifically, the Advocates’ Committee was given certain
responsibilities in the field of discipline. The Advocates’ Committee
consisted of the Attorney-General, the Solicitor-General, and three
advocates from the Law Society. Any one could make a complaint to
the Advocates’ Committee concerning the conduct of an advocate.
The complainant and the advocate complained of were heard by the
Advocates’ Committee, which submitted a report to the court,
together with all the evidence, if it considered that there was a prima
facie case to answer.82 The court of course had always had an
inherent jurisdiction over advocates, though lacking mechanisms,
independent of the professional association, and now the Advocates’
Committee, to review advocates’ conduct.
252. In 1986, the Advocates Act was amended by Act No. 18 of
that year. The procedure for discipline was laid down in part X
therein. Section 62 allowed for complaints to be lodged against
advocates for professional misconduct. The complaint was to be
filed to the Board of Inquiry, appointed by the Council of the Law
Society and comprising of three advocates. The Board could: –
 If in its opinion the complaint did not warrant reference

to the Disciplinary Committee reject the complaint and
inform the complainant.83
 If the complaint warranted a reference, file an affidavit by
chairman of the board, setting out the allegations.84
 Report to the Council the nature of the complaint, the
action taken and what should be undertaken.85
253. It also had powers to interview and correspond with persons

including the advocate to whom the matter related. 86 After such
inquiry, a matter could then proceed to the Disciplinary Committee,
and on first examination, if a matter did not disclose a prima facie
case, then the Disciplinary Committee could dismiss such a
complaint summarily without informing the advocate.87 Upon
82
See Y. P. Ghai & J. P. W. B. McAuslan, Public Law and Political
Change in Kenya (Oxford University Press, Nairobi/London, 1970) pp.
386-387.
83
S.62 (1)(a) of Act 18 of 1986.
84
S.62 (1)(b). id.
85
S.62 (1)(c). id.
86
S.62 (3).
87
S.62 (3).
85
conviction, possible sanctions were specified in s 62(b). 88 There was
also a right of appeal to the High Court and thence to the Court of
Appeal.
254. In essence, the regime created under Act No. 18 of 1986 was
a self-regulation mechanism sponsored by The Law Society of
Kenya. The Board of Inquiry was not only exclusively appointed by
the Council of the Law Society but its membership was also
exclusively constituted of advocates. There were no provisions for
representation of the Government, non-Law Society groups, or the
public.
255. Although self-regulation of this type was not unknown
elsewhere, for some time such independence has been generally
subject to limitations of one sort or another. Consequently, this
regime was attended with doubts and uncertainty and the ability of
the Law Society of Kenya to discipline its members increasingly
became suspect over time. Whatever disciplinary machinery existed
for self-regulation of Law Society members conduct had largely
broken down. It was feared that The Law Society of Kenya could no
longer effectively protect and assist the public in all matters
touching, ancillary or incidental to the law. The Boards of Inquiry
which had been established to deal with complaints against
advocates could not cope with the said complaints. This affected
public confidence in the legal profession, and the profession itself
recognised the need for this to change. Eventually calls for the
formation of a better and stronger disciplinary mechanism to
regulate and oversee the discipline of members of the legal
profession were acted upon.
256. The Advocates Complaints Commission was established in
1989 by Act No. 18 of that year which made fundamental
amendments to the Advocates Act. At present, therefore, it is the
Advocates Complaints Commission (and the Disciplinary
Committee) that is mainly concerned with the discipline of
advocates in Kenya. As will be seen hereunder, the provisions
regarding the Advocates Complaints Commission were further
enhanced in the year 2002 when the Statute Law (Miscellaneous
Amendments) Act No. 289 was passed into law. It is this regime
establishing the Advocates Complaints Commission with which this
Report is concerned.
88
See, Act No.9 of 1989.
89
Kenya Gazette Supplement No. 49 (Acts No. 3).
86
7.3 Institutional and operational framework of the Advocates
Complaints Commission
257. Provisions regarding the Advocates Complaints Commission
are to be found under Part X of the Advocates Act as amended by the
aforementioned Act No. 18 of 1989. Section 53(1) thereof
establishes the Commission with the sole purpose of enquiring into
complaints against any advocate, firm of advocates, or any member
or employees thereof.90
258. The Commission falls under the State Law Office (or the
Attorney General’s chambers). Its vision is to inspire a greater public
confidence in the administration of justice through efficient and
effective handling of complaints with sustained cooperation of the
members of the profession themselves. It is committed to the
eradication of incompetence and dishonesty and to the improvement
of professional ethics and services among advocates in Kenya
259. The Commission consists of such a commissioner or
commissioners as shall be appointed by the President. 91 If a single
commissioner is appointed under the Act, he or she must be qualified
to be appointed as a judge of the High Court under Chapter IV of the
Constitution.92 If more than one commissioner is appointed then one
of them must be qualified as aforementioned. 93 In 2004 the Attorney-
General made rules under s 54(3) of the Advocates Act for the
operations of the Complaint’s Commission and provided for the
position of a Chairman.
260. The term of office of commissioners is three years at present.
It is recommended that the term of office for commissioners should
be two years, renewable, and they should be provided with security
of tenure (Recommendation 8). Appointments should be on the
nomination of the Law Society of Kenya, the Minister of Justice and
Constitutional Affairs, and the Attorney-General.
261. The Act also provides for the appointment by the Attorney-
General of a Secretary to the Commission. 94 In addition, the
Attorney-General is obliged to provide such public officers as are
necessary for the proper and efficient exercise of the duties and
90
Section 53(1) Advocates Act, (Cap 16 Laws of Kenya).
91
Ibid. Currently the Chairman is Joseph King’arui, and the
Commissioner (formerly Secretary and Chief State Counsel) is Mrs.
Esther Aduma.
92
93
Ibid.
94
87
functions of the Commission.95 The Commission operates from
Nairobi where all the complaints are handled. The Commission has a
total of twenty-nine staff comprising of 2 Commissioners, 7 State
Counsel and 14 support staff.
262. The Commission rightly views its primary duties as ensuring
that advocates conduct themselves properly and that standards of
legal services rendered to the public are improved and maintained. In
practical terms, the Commission is mainly responsible for and
perform the following functions:
 Dismissal of complaints that do not disclose any

offences.
 Investigation of complaints.
 Referral of complaints to the Disciplinary Committee
(DC).
 Prosecution of disciplinary offences that are brought
before the Disciplinary Committee.
 Reconciliation of parties.
263. In carrying out the above duties, the Commission may

require any person to assist it in so doing. 96 Pursuant to the
amendment effected in 2002, any person who, without lawful
excuse, fails or refuses to assist the Commission when required to do
so shall be guilty of an offence. 97 A detailed account of the above
duties of the Commission is given hereunder:
7.3.1 Dismissal of Complaints that do not Disclose any Offences

264. The Commission is empowered to reject or dismiss any
complaint that appears to hold no substance. As indicated by Table II
below, between 1st October 2006 and 31st December 2006, thirty-
nine (39) complaints were dismissed by the Commission for failure
to disclose any offence on the part of advocates/firm of advocates.
95
Section 54(2) Advocates Act (Cap 16 Laws of Kenya).
96
97
Section 53(3A) Advocates Act (Cap 16 Laws of Kenya).
88
7.3.2 Investigation of Complaints
265. It is the duty of the Commission to receive and consider a
complaint made by any person, regarding the conduct of any
advocate, firm of advocates, or any member or employee thereof.98
Indeed the role of the Commission in other respects stems from this
investigatory duty.
266. If it appears to the Commission that there is substance in the
complaint but that it does not constitute a disciplinary offence it shall
forthwith notify the person or firm against whom the complaint has
been made of the particulars of the complaint.99 Such person or firm
is then called upon to answer the complaint within such reasonable
period as shall be specified by the Commission in such
notification.100
267. After the expiration of the period specified in the
notification, the Commission then proceeds to investigate the
matter.101 For this purpose (that is, investigation) the Commission
has the powers to:
 summon witnesses;
 require the production of such documents as it may deem
necessary;
 examine witnesses on oath; and
 generally take such steps as it may consider proper and
necessary for purpose of its inquiry.102
268. The Commission may also, in hearing a complaint against an

advocate order the advocate to produce to the Commission a detailed
fee note for the purposes of taxation of the bill of costs. 103 In the
event that the advocate does not comply with this order within 14
days from the date of such an order, the Commission may assess the
advocate’s fee in such sum as it deems fit.104
98
99
Section 53(4)(c) Advocates Act (Cap 16 Laws of Kenya).
100
Ibid.
101
Section 53(4)(d) Advocates Act (Cap 16 Laws of Kenya).
102
Ibid.
103
Section 53(6D) Advocates Act (Cap 16 Laws of Kenya) introduced
by Statute Law (Miscellaneous Amendments) Act No. 2 of 2002.
104
Ibid.
89
269. It may also investigate the accounts of an advocate against
whom a complaint has been made and for that purpose may order
such advocate to produce all relevant books and documents to the
Commission or to an accountant engaged by the Commission in that
behalf.105
270. After hearing submissions made to it by or on behalf of the
complainant and the person or firm against whom the complaint has
been made, the Commission makes such an order as it shall in the
circumstances of the case consider just and expedient. 106 The scope
of this power will be discussed later.
271. In this regard (the remedies available from the Commission),
the Commission has from 2002 had the power to award, by order,
compensation or reimbursement not exceeding one hundred
thousand shillings (Ksh. 100,000) to a complainant who has suffered
loss or damage by reason of the advocate’s conduct. 107 Hitherto, the
compensation or reimbursement was limited at a maximum of ten
thousand shillings (Ksh. 10,000), a sum that was increased to a
maximum of hundred thousand shillings (Ksh. 100,000) by the
272. Where the commission makes an order awarding
compensation or reimbursement to the complainant, such an order
must be registered with the Court and shall thereupon be enforceable
in the same manner as an order of the Court to the like effect. 108 It is
vital to note that under the Act the “Court” refers to the High Court,
and that this definition is used throughout this Report.
273. In addition to awarding compensation or reimbursement, the
Commission may order the surrender of all funds or property which
an advocate does not dispute in a matter relating to the surrender of
funds or property by an advocate to a client. 109 However, this is not
applicable where the complainant has filed a civil suit against the
advocate in respect of the same funds or property.110 In essence the
Act recognises the principle of res judicata.
105
Section 53(6E) advocates Act (Cap 16 Laws of Kenya) introduced by
106
Section 53(4)(d) Advocates Act (Cap 16 Laws of Kenya).
107
Section 53(6) Advocates Act (Cap 16 Laws of Kenya) as amended by
108
Section 53(6A) advocates Act (Cap 16 Laws of Kenya) introduced by
109
Section 53(6B) advocates Act (Cap 16 Laws of Kenya) introduced by
110
Ibid.
90
274. The Commission may also issue a warrant for the levy of the
amount of any sum ordered to be paid on the immovable and
movable property of the person or firm by whom the compensation
is ordered to be paid by distress and sale under warrant, and such
warrant shall be enforced as if it was a warrant issued by the
Court.111
275. The Act provides that appeals from the Commission lie to the
High Court and that the determination of any such appeal by the
High Court shall be final.112 Where an aggrieved party does not
prefer an appeal to the High Court, he may apply to the Disciplinary
Committee for a review of the order.
7.3.3 Referral of Complaints to the Disciplinary Committee

276. The Commission is required to refer a matter to the
Disciplinary Committee, constituted under Part XI of the Advocates
Act, if it appears to the Commission that there is substance in the
complaint which constitutes or appears to constitute a disciplinary
offence.113
277. However, in the event that the Commission is of the opinion
that the proper remedy for the complainant is to refer the matter to
the courts for appropriate redress the Commission shall forthwith so
advise the complainant.114 This option should only be taken when
there is substance in a complaint but that the circumstances of the
case do not disclose a disciplinary offence with which the
Disciplinary Committee can properly deal and that the Commission
itself should not deal with the matter.115 The relationship between
inadequate professional services and professional misconduct, and
between the Disciplinary Committee and the Court, will be
discussed later.
7.3.4 Reconciliation of Parties

278. In all cases which do not appear to the Commission to be
serious or aggravated nature, the Commission shall endeavour to
111
112
Section 53(6C) Advocates Act (Cap 16 Laws of Kenya).
113
Section 53(4)(b) Advocates Act (Cap 16 Laws of Kenya).
114
Section 53(4)(e) Advocates Act (Cap 16 Laws of Kenya).
115
Ibid.
91
promote reconciliation and encourage and facilitate an amicable
settlement between the parties to the complaint.116
7.3.5 Prosecution of Offences before the Disciplinary Committee

279. Having referred a matter to the Disciplinary Committee for
appropriate action, it is established practice that the Commission
proceeds to prosecute such a matter before the Committee.
7.3.6 Number of complaints and reporting of the Commission’s work

280. It is important to note that the Commission is under an
obligation to publish a quarterly report as to the complaints dealt
with it in that quarter.117 The report is required to be made in such a
manner and form as prescribed by rules made under s 54(3) of the
Act which allows the Attorney-General to make rules regulating the
structure and operation of the Commission for the carrying into
effect its functions under the Act.118
281. By Gazette Notice No. 1175 dated 31st January 2007 the
Commission published its 64th Quarterly Report for the period
between 1st October 2006 and 31st December 2006. During this
period, the Commission received a total of four hundred and thirty-
five (435) new complaints out of which eighty-four (84) were
classified and files opened. Three hundred and fifty-one (351) were
submitted for further enquiry under the preliminary enquiry
initiative. The table below gives a summary of the nature and
number of the complaints received by the Commission during the
period under review.
TABLE I: Nature of Complaints Received by the Commission between

1st October 2006 and 31st December 2006 (Source: Gazette Notice 1175
of 2007)
116
117
118
Ibid.
92
NATURE OF COMPLAINT NO. OF COMPLAINTS
Failure to account 9
Failure to keep client informed 7
Delay 6
Failure to render professional 20

services
Acting without instructions 2
Overcharging 2
Withholding funds 35
Conduct unbecoming of an 3
advocate
TOTAL 84
282. During the same period, complaints received and filed

against advocates/firm of advocates were disposed of as shown in
Table II below.
TABLE II: Complaints Disposed of by the Commission between 1 st

October 2006 and 31st December 2006 (Source: Gazette Notice 1175 of
2007)
CLASSIFIED COMPLAINTS NO. OF COMPLAINTS
Abandoned 38
Settled 9
Advocates deceased 6
Closed as no misconduct 39
disclosed
Withdrawn 5
Advocate not in practice 1
Insurance under liquidation 1
93
Sub judice 1
TOTAL 100
283. The matters referred to the Disciplinary Committee during

the same period for further actions and in accordance with s 57(1) of
the Advocates Act were sixty-four. It is also vital to note that during
the same period a further eight-six (86) cases were disposed of as
follows:
TABLE III: Further Complaints Disposed of between 1 st October 2006

and 31st December 2006 (Source: Gazette Notice 1175 of 2007)
MANNER OF DISPOSAL OF NO. OF COMPLAINTS
Advocates struck off the roll of advocates 7
Advocates suspended 3
Advocates fined 31
Advocates acquitted 20
Settled (Matters resolved) 3
Advocates deceased 3
Advocates executed against 12
TOTAL 86
284. In conclusion, it is noteworthy that the number of

outstanding complaints in the period under review was thirteen
thousand nine hundred and eighty-one (13,981). The question of the
number of outstanding complaints will be discussed later.
7.4 The role of the Commission

285. The independence of the Commission is closely linked to its
role. Although the Commission does act as a disciplinary body of
94
first instance (for complaints which have substance but which do not
constitute a disciplinary offence), it also acts as prosecutor in cases
brought to the Disciplinary Committee. It also has a mediation role,
and endeavours to promote reconciliation by acting as an arbitrator
between advocates and their clients.
286. Its declared mission is to eradicate dishonesty and
incompetence in the legal profession in Kenya. To achieve this aim
its objective is to restore public confidence in the legal profession by
ensuring that advocates provide honest and quality services to their
clients.
287. The Commission deals with two categories of complaints,
inadequate professional services and professional misconduct. While
the former category may appear to extend somewhat beyond the
ambit of professional discipline, it is appropriate and is comparable
with practise elsewhere (such as “unsatisfactory conduct” in New
Zealand).
288. The Commission’s own publicity material outlines thirteen
examples of inadequate professional services and professional
misconduct. These are (and the list is said to not be exhaustive):
failure to account for/withholding funds; failure to keep clients
informed; issuing cheques which are subsequently dishonoured;
failure to honour professional undertakings; delay; failure to reply to
correspondence or other communications from professional
colleagues or the Commission; failure to comply with instructions
from clients or acting contrary to instructions; failure to release files
or documents; overcharging or failure to advise the client on costs;
failure to attend court; conflict of interest; and demanding legal fees
from a person who is not a client.
289. The list also includes “any other behaviour which may
amount to professional misconduct”. This is defined broadly as
including any disgraceful or dishonourable conduct incompatible
with the status of an advocate. Although there is an unfortunate
element of vagueness about this definition this is probably
unavoidable. It is better to ensure that the Commission – and the
Disciplinary Committee – has jurisdiction to act, rather than
otherwise.
290. Where it felt that misconduct should be defined the following
recent definition, from the Lawyers and Conveyancers Act 2006
(NZ) might be a useful starting point. This states (s 8) that
(1) In this Act, misconduct, in relation to a lawyer or an

incorporated
95
law firm,—
(a) means conduct of the lawyer or incorporated law firm
that occurs at a time when he or she or it is providing
regulated services and is conduct—
(i) that would reasonably be regarded by lawyers of
good standing as disgraceful or dishonourable; or
(ii) that consists of a wilful or reckless contravention
of any provision of this Act or of any regulations
or practice rules made under this Act that apply to
the lawyer or incorporated law firm or of any
other Act relating to the provision of regulated
services; or
(iii) that consists of a wilful or reckless failure on the
part of the lawyer, or, in the case of an incorporated
law firm, on the part of a lawyer who is
actively involved in the provision by the incorporated
law firm of regulated services, to comply
with a condition or restriction to which a practising
certificate held by the lawyer, or the lawyer so
actively involved, is subject; or
(iv) that consists of the charging of grossly excessive
costs for legal work carried out by the lawyer or
incorporated law firm; and
(b) includes—
(i) conduct of the lawyer or incorporated law firm
that is misconduct under subsection (2) or subsection
(3); and
(ii) conduct of the lawyer or incorporated law firm
which is unconnected with the provision of regulated
services by the lawyer or incorporated law
firm but which would justify a finding that the
lawyer or incorporated law firm is not a fit and
proper person or is otherwise unsuited to engage
in practice as a lawyer or an incorporated law
firm.
(2) A lawyer or an incorporated law firm is guilty of misconduct
if, at a time when he or she or it is providing regulated
services, and without the consent of the High Court or of the
Disciplinary Tribunal, the lawyer or incorporated law firm
knowingly employs, or permits to act as a clerk or otherwise,
in relation to the provision of regulated services, any person
who, to the knowledge of the lawyer or incorporated law
firm,—
(a) is under suspension from practice as a barrister or as a
solicitor or as a conveyancing practitioner; or
(b) has had his or her name struck off the roll of barristers
96
and solicitors of the High Court; or
(c) has had his or her registration as a conveyancing
practitioner
cancelled by an order made under this Act; or
(d) is disqualified, by an order made under section
242(1)(h), from employment in connection with a
practitioner’s
or incorporated firm’s practice.
(3) A person is guilty of misconduct if that person, being a
lawyer
or an incorporated law firm, shares, with any person other than
another lawyer or incorporated law firm, the income from any
business involving the provision of regulated services to the
public.
(4) Despite subsection (3), a lawyer or an incorporated law firm
is
not guilty of misconduct under that subsection by reason only
of sharing with a patent attorney (in the circumstances, and in
accordance with any conditions, prescribed by the practice
rules) the income from any business involving the provision
of regulated services to the public.
(5) Despite subsection (3), neither an incorporated law firm nor a
lawyer who is actively involved in the provision by an
incorporated
law firm of regulated services is guilty of misconduct
under that subsection by reason only of the incorporated law
firm making a distribution to shareholders of that firm.
291. As can be seen, the key elements are that the conduct must be
committed while practising as a lawyer, and that it must be such as
would reasonably be regarded by lawyers of good standing as
disgraceful or dishonourable; or amount to wilful or reckless
contravention of any provision of the [Advocates] Act or regulations
made under it; or wilful or reckless failure to comply with a
condition or restriction in a practising certificate; or consists of the
charging of grossly excessive costs; or knowingly employs, or
permits to act as a clerk or otherwise, any person who, to the
knowledge of the lawyer is under suspension from practice or has
had his or her name struck off the roll of advocates.
292. It is recommended that consideration be given to defining
misconduct more formally (perhaps along the lines suggested
above), not so as to restrict its scope, but so as to clarify the
distinction between professional misconduct and inadequate
professional services (Recommendation 9). Attempting to provide
97
precise definitions may be self-defeating, as has been observed
elsewhere:
The proceedings of the New Zealand Law Practitioners

Disciplinary Tribunal and the Disciplinary Committee that
preceded it, have demonstrated clearly that a charge of
misconduct in one’s professional capacity need not be tied to
any specific rule of ethics or to the Solicitors Trust Account
Regulations or Rules. First the Committee, and later the
Tribunal, have had the task of deciding whether any
particular act or omission forming the basis of a charge of
misconduct comes within the concepts of Part VII of the Act.
In each case it is a question of fact having regard to the
circumstances of that case.119
293. The Lawyers and Conveyancers Act 2006 (NZ) also defines
“unsatisfactory conduct” (the equivalent to inadequate professional
services). This is defined as follows (in s 12):
12 Unsatisfactory conduct defined in relation to lawyers

and incorporated law firms
In this Act, unsatisfactory conduct, in relation to a lawyer or
an incorporated law firm, means—
(a) conduct of the lawyer or incorporated law firm that
occurs at a time when he or she or it is providing
regulated services and is conduct that falls short of the
standard of competence and diligence that a member of
the public is entitled to expect of a reasonably competent
lawyer; or
(b) conduct of the lawyer or incorporated law firm that
occurs at a time when he or she or it is providing
regulated services and is conduct that would be
regarded by lawyers of good standing as being unacceptable,
including—
(i) conduct unbecoming a lawyer or an incorporated
law firm; or
(ii) unprofessional conduct; or
(c) conduct consisting of a contravention of this Act, or of
any regulations or practice rules made under this Act
that apply to the lawyer or incorporated law firm, or of
any other Act relating to the provision of regulated
Rules of Professional Conduct for Barristers and Solicitors (7th ed,
119
New Zealand Law Society, Wellington, 2006), p. 2.
98
services (not being a contravention that amounts to
misconduct under section 7); or
(d) conduct consisting of a failure on the part of the lawyer,
or, in the case of an incorporated law firm, on the part of
a lawyer who is actively involved in the provision by
the incorporated law firm of regulated services, to comply
with a condition or restriction to which a practising
certificate held by the lawyer, or the lawyer so actively
involved, is subject (not being a failure that amounts to
misconduct under section 7).
294. This is conduct that falls short of the standard of competence

and diligence that a member of the public is entitled to expect of a
reasonably competent lawyer; or conduct that would be regarded by
lawyers of good standing as being unacceptable, including conduct
unbecoming a lawyer or unprofessional conduct; and or a
contravention of the Act, or of any regulations or practice rules made
under the Act (or a lesser sort than would constitute misconduct); or
failure to comply with a condition or restriction to which a practising
certificate (again, qualified as above).
295. It is recommended that consideration be given to defining
inadequate professional services more formally, as part of a revision
of the Advocates (Practice) Rules (Recommendation 10).
296. The Commission will accept and consider most complaints
against advocates but focuses on the standard of services and
professional misconduct. In common with standard international
practise for such bodies it will not investigate cases that relate purely
to negligence of advocates in the discharge of their duties (though
conduct that falls short of the standard of competence and diligence
that a member of the public is entitled to expect of a reasonably
competent lawyer would be justiciable).
297. An ongoing educative programme would appear to have led
to an increased awareness of the role of the Commission. Some
uncertainty would appear to remain as to the precise function of the
Commission, and indeed of the disciplinary processes as a whole,
vis-à-vis the proper role of the courts. Recommendation 9 of the
Stobbs Report was that the Commission should concentrate on
reducing its backlog and its work on seminars and other events
should be put on hold until this was done. This on-going educative
role is appropriate – and indeed necessary. In particular, the
respective functions of the disciplinary processes and of the courts
should be emphasised. However, the backlog has yet to be cleared.
99
298. The Commission will not investigate complaints about the
actions of judicial officers and prosecutors. This is appropriate, as
judicial officers and prosecutors are not per se, members of the legal
profession, and their roles are quite distinct, so the disciplinary
processes for such officers should be distinct. However, there may
be scope for the investigation of former advocates (who may now,
for instance, be judicial officers) for professional misconduct
offences committed while acting as advocates or in the employ of
advocates. It would be inappropriate for advocates to avoid
responsibility for their actions when acting as advocates simply
because they have since retired from practice. It is recommended
that the Commission and Committee be clearly empowered to
investigate and prosecute and to try former advocates for their
actions while advocates (Recommendation 11).
7.5 The Advocates (Complaints Commission) (Structure and

Procedure) Rules 2003
299. The Advocates (Complaints Commission) (Structure and
Procedure) Rules 2003,120 were made pursuant to s 54(3) which
empowers the Attorney-General to make rules regulating the
structure and operation of the Commission and for the carrying into
effect of its functions under Part X of the Advocates Act.
300. The provisions of the rules only apply where two or more
Commissioners are appointed to the Commission under s 53(2) of
the Advocates Act.121 It requires that where such two or more
commissioners are appointed, the Attorney-General may, by notice
in the Gazette, designate one Commissioner to be the chairman of
the Commission.122
301. Accordingly, the current chairman of the Commission is
Joseph Nguthiru King’arui appointed by the Attorney-General in
Gazette Notice No. 1409 for a period of three (3) years with effect
from 1st January 2007.
302. The Commission is under an obligation to have at least four
meetings in each calendar year.123 However, the secretary to the
120
Legal Notice No. 213 of 2003.
121
Rule 2, The Advocates (Complaints Commission) (Structure and
Procedure) Rules, 2003.
122
123
100
Commission may at any time, and shall, within fourteen days of the
receipt of a written request signed by at least two Commissioners,
convene a special meeting of the Commission.124
303. The meetings of the Commission are presided over by the
chairman and in his absence at any meeting, the Commissioners
present are required to elect one of their number to preside over such
a meeting.125 Once duly elected to preside over a meeting, such a
person shall, with respect to that meeting and the business transacted
thereat, have all the powers of the chairman.126
304. The quorum for a meeting of the Commission is fixed at two
Commissioners. The decision of the Commission on any matter is by
a majority of the votes of the members present and voting, and, in
the event of an equality of votes, then the chairman or the person
presiding shall have a casting vote.
305. It is mandatory upon any Commissioner who, either directly
or indirectly, has an interest in any matter before the Commission,
and is present at a meeting of the Commission at which the matter is
the subject of consideration, to disclose that fact.127 He must do this
at the meeting and as soon as reasonably practicable after the
commencement of the meeting of the Commission.128 Thereafter,
such a Commissioner shall not take part in the consideration or
discussion of, or vote on, any questions with respect to that matter or
be counted in the quorum of the meeting during consideration of the
matter.129 Further, such a disclosure of interest must be recorded in
the minutes at which it is made.130
306. Finally, the Commission may determine its own procedure
including the procedure for the attendance of other persons at its
meetings, and may make standing orders for that purpose.131
124
125
126
Ibid.
127
Rule 9(1), The Advocates (Complaints Commission) (Structure and
128
Ibid.
129
Ibid.
130
Rule 9(2), The Advocates (Complaints Commission) (Structure and
131
101
307. It is recommended that, on the authority of s 54(3) of the
Advocates Act, the Attorney-General should, in consultation with the
Law Society, make comprehensive rules of procedure to guide the
operations of the Advocates Complaints Commission. This means
that the discretion of the Commissioners to make their own rules of
Commission) (Structure and Procedure) Rules 2003, should be
reduced (Recommendation 12). In particular, the rules of procedure
should incorporate measures to ensure that the initial assessment of a
complaint speedily determines whether or not the complaint is above
the threshold below which it should be rejected as insubstantial, and
the complainant advised to utilise the Law Society’s regional ethics
committees alternative dispute resolution services.
7.6 The administration of the Commission

308. In 2004 the Attorney-General made rules under s 54(3) of the
Advocates Act for the running of the Commission and provided for
the position of Chairman. The Act also provides for appointment of
Commissioners and a Secretary. The Secretariat is headed by the
Chief State Counsel/Secretary who is assisted by State Counsel and
administrative staff.
309. The Commission comprises one or more Commissioners; if a
sole Commissioner he must be qualified for judicial office, and if
there is more than one Commissioner at least one must be similarly
qualified. These appointments are made by the President. The
appointment and qualifications for office would appear to be
appropriate, given the nature and role of the Commission. It is,
however, recommended that there be a minimum of three
Commissioners, as the workload of the Commission is sufficient to
justify at least this number of judicially-qualified officers or others
of comparable seniority (Recommendation 13).
310. Feedback from the workshop in Kisumu suggested that there
should be one commissioner in each province and a commissioner
general in the head office in Nairobi; a total of nine commissioners.
It is thought however that this would be inappropriate, even if the
Commission is given branch offices (see para 326), because such an
arrangement would result in diffusion and contribute to
administrative and procedural inconsistency and uncertainty. In the
event of decentralisation each office would require at least one
senior state counsel (for instance of the rank of deputy chief state
counsel), but the commissioners should be based in Nairobi.
102
311. There would appear to still be insufficient experienced staff
to enable the Commission to undertake its role effectively. The
summary of findings of the Stobbs Report commenced with the
finding that the “two principal disciplinary bodies, the Complaints
Commission and the Disciplinary Committee, are under-funded,
under-resourced and with management systems that are no longer
able to cope with the volume of complaints”. It would appear that,
although much progress has been made, further investment is
required.
312. It is understood that there are currently some 28 staff,
including 2 Commissioners, 11 state counsel and 15 support staff, in
addition to two vacancies.132 This remains less than the ideal
numbers anticipated by the Stobbs Report as being required, and it is
recommended that further legally-qualified staff be employed
(Recommendation 14).
313. On the basis of the assumptions in the Stobbs Report, of an
initial investigation caseload of 150 to 200 complaints per year for
an individual, and 30-40 prosecutions for those charged with that
role, some 8 investigators and 5 prosecutors are required. The
Commission itself estimates that the optimal establishment of the
Commission is 91, including a Chairman and three commissioners,
and 33 state counsel.133
314. The size of the complaints backlog and the Stobbs Report
assumption of the number of complaints which can be dealt with by
one State Counsel suggests that it could require as much as 90 man-
years to clear the backlog given the present size of the Commission.
This is completely unacceptable. Even if all the recommendations
contained in this Report are implemented it remains uncertain that
this backlog, which is a serious embarrassment, can be significantly
reduced.
315. The priority for any new Commissioners and senior State
Counsel should be to reduce the backlog, by careful evaluation of all
current files. These will, in any event, have to be systematically
132
The Chairman, one Commissioner, a Senior Principal State Counsel,
2 Principal State Counsel, 2 Senior State Counsel, 3 State Counsel I, 3
State Counsel II, a Records Management Officer III, 3 Senior Clerical
Officers, a Personal Secretary, a Shorthand Typist I, a Shorthand Typist,
3 Copy Typist I, a Copy Typist II, a Senior Driver, and 3 Drivers (list as
of 30th May 2007). The two vacancies are of crucial importance, being
the Secretary to the Commission, and the Deputy Chief State Counsel.
133
A Chief State Counsel, Deputy Chief State Counsel, 2 Senior
Principal State Counsel, 4 Principal State Counsel, 10 Senior State
Counsel, 15 State Counsel II/I.
103
incorporated into the new case management system, and it is
recommended that all pre-existing cases be subject to a rigorous
assessment by senior State Counsel. Those which are effectively
“stale” should be closed after advising the complainant of this
decision – allowing complainants to lay a fresh complaint if they
wish, thereby reviving the original complaint.
316. Experience, and a sound case-management system, are as
important – perhaps more so – than the mere question of the number
of investigators and prosecutors. Office space is currently inadequate
for the scale of the operation, and this inhibits the preservation of
confidentiality that is necessary for the Commissions work. It is
recommended that investment be made in adequate office space and
filing facilities, and technical support equipment such as
photocopiers, scanners, and printers (Recommendation 15).
Increased off-site archiving of closed files would assist. The filing
system is currently entrusted to a relatively junior person (a Records
Management Officer III), and further investment in this field is
necessary.
317. Although formal training for prosecutors in prosecution
techniques was recommended by the Stobbs Report
(recommendation 11) it would appear that this is still lacking. It is
recommended that formal training for prosecutors in prosecution
techniques be entrusted to a second Commissioner with suitable
prosecutorial and management experience (Recommendation 16).
318. The introduction of internal administrative measures,
including computers and client satisfaction questionnaires, would
appear to have improved the efficiency of the Commission. Further
work is however required. In particular, the relatively low status and
seniority of State Counsel may hamper the ability of the
Commission to investigate adequately, and prosecute effectively.
319. Recommendation 12 of the Stobbs Report was that more
senior advocates should be recruited to the Commission to deal with
the more complex and difficult complaints. For reasons which may
be structural rather than merely financial the seniority of State
Counsel in the Commission is still not commensurate with the
importance of their role. Rather than being seen as a career
backwater for government lawyers, appointment to the Commission
should be seen as important and prestigious as any in the public
service. Prosecutors before the Disciplinary Committee are in one
sense like prosecutors in any court (indeed a lower court since the
penalties are essentially only economic) – but as the accused are
lawyers, the prosecutors must seek to preserve the integrity of the
legal profession by prosecuting expeditiously, rigorously and
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effectively. It is recommended that a number of more senior State
Counsel be appointed to the staff of the Advocates Complaints
Commission (Recommendation 17). This should also serve to reduce
the risk – which is impossible to quantity – of State Counsel being
reluctant to investigate or prosecute more senior advocates.
320. The use of computers for both typing and for recordkeeping
and case management is essential, and will result in cost-savings
over time. The computerised case management system for the
Disciplinary Committee (see the later discussion of the Committee)
should be coupled with a similar arrangement in the Advocates
Complaints Commission. Such a system will enable deadlines to be
set and met in a timely manner, by automatically generating
reminders, and expediting the production of letters and other
documents. It will also reduce the chance of complaints being
misplaced, or otherwise not followed up in a timely manner.
321. As with the Disciplinary Committee, it is essential that
adequate staff training is provided for the most effective use of these
systems. The introduction of this system – for which Mark Stobbs
was advised in 2002 there were funds allocated – is a matter of high
priority. Quality and completeness is however critical for the system
to be cost-effective. Thus it should be designed to, inter alia,
facilitate the effective prosecution of cases by State Counsel even
where they have not been dealing with the specific file. Paragraph 53
of the Stobbs Report outlines some of the minimum attributes of the
system. These should also include a reporting facility, to make
possible the production of real-time reports on the entire workload of
the Commission. The production of annual reports could thus be
largely automated, and it would be possible to produce quarterly
reports which were regularly on time.
322. The Stobbs Report anticipated that the Commission’s
computer case-management system should be compatible with any
system acquired for the Disciplinary Committee and, if possible, the
two should be implemented in tandem. It is further recommended
that the Advocates Complaints Commission and Disciplinary
Committee computer-based case management systems be integrated
as far as practical – subject to the same (joint) tendering process
(Recommendation 18). Internal firewalls can be used to isolate
information which is exclusively intended for the Disciplinary
Committee or for the Advocates Complaints Commission.
323. The introduction of a computer-based case management
system, the appointment of additional (senior) State Counsel, and the
implementation of systematic in-house or out-sourced prosecutorial
training are important steps. But they should be in conjunction with
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a review of the case management process (which should be reflected
in the arrangement of the case management system).
324. Another challenge that faces the Advocates Complaints
Commission is its centralization in Nairobi. The Act does not
provide for the establishment of the Commission in various parts of
the Country. Consequently, the Commission is largely inaccessible to
complainants and advocates outside Nairobi. The cost of travelling
to the Commission especially by complainants, a majority of who
are already bearing the brunt of poverty, is highly prohibitive.
325. The Commission, which currently sits only in Nairobi, ought
at some time in the future to be decentralized with the aim of
bringing it closer to the people who require its services. The
consequence of this is that the Commission should be established at
various strategic areas in the country. In the alternative, the
Commission may, on a rotational basis, move across the country for
purposes of hearing and determining complaints. One or other of
these initiatives should be done in the medium-term, once the other
recommended improvements have been implemented.
326. It is understood that there have been plans to decentralize the
services to the provinces but this has not been affected due to what
are described as logistical problems. The Commission has however
begun programmes for its decentralization with Eldoret and
Mombasa being its pilot projects. In view of the fact that a
disproportionate number of complaints arise against advocates
outside Nairobi it is desirable that the Commission have a permanent
presence in the provinces, or at least have a presence on circuit.
However, it is essential that this not have an adverse affect on the
operational efficiency of the Commission.
327. It is recommended that the offices of the Commission remain
in Nairobi until it can be clearly shown that the advantages of
decentralisation outweigh the additional costs and management
complexities of decentralisation, and that the Commission is
functioning efficiently (Recommendation 19).
328. This recommendation is to be understood in conjunction with
Recommendation 72 that the regional ethics committees act as de
facto agents of the Commission (para 472). Decentralisation should
also occur once the operation of the Commission is sufficiently
robust and the backlog of complaints cleared or at least significantly
reduced. Any branch office should comprise at least one senior state
counsel, and should be able to conduct on-site preliminary inquiries.
The implementation of the computer-based case management system
would enable the head office to closely monitor the operation of
branch offices, and remove the need for local commissioners.
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329. The Stobbs Report identified certain timelines as good
practice: 14 days from receipt of a complaint to the first action being
taken; letters answered and action taken on their contents within 10
days of receipt; follow-up letters despatched no more than four
weeks; and four weeks for conciliation. All of these times, and other
appropriate milestones can and should be incorporated in the
Commission’s case management system, and similar facilities should
be available to the Disciplinary Committee. It should be noted that
the targets set by the Legal Services Complaints Commissioner and
contained in The Law Society of England and Wales’ Plan for the
period 1st April 2007 to 31st March 2008 includes 93% of complaints
acknowledged within five working days of receipt, 88% of
complaints to receive a substantive response within 45 days of
receipt, and 67% of cases to be closed within three months.
7.7 The procedure for dealing with complaints

330. At the time of the Stobbs Report (2002) the Commission
seemed to receive some 1,500 complaints a year. Accurate records
were not, however, apparently available, and that was a matter for
serious concern. The implementation of a computerised case
management system should both facilitate the avoidance of any
significant backlog and allow accurate monitoring of the progress of
complaints and cases. The existence of some 14,000 current
complaints suggests that the Commission has been unable to reduce
the backlog identified at the time of the Stobbs Report.
331. All complaints must be in writing. At present the Advocates
Complaints Commission publicity materials and forms are in
English. It was recommended in the Stobbs Report that the
Commission should consider translating it into Swahili
(recommendation 1). It is understood that Swahili translations of the
Advocates Complaints Commission publicity materials and forms
are to be provided, and it is recommended that this be done as a
matter of urgency (Recommendation 20).
332. It was also recommended in the Stobbs Report that the
Commission should consider re-drafting its information leaflet about
the system with a view to making it less technical (recommendation
1). The leaflet may have been revised since then, but further work is
still required.
333. If the Commission determines that the complaint lacks
substance it is rejected. If it believes that the complaint has
substance but does not disclose a professional disciplinary offence it
will investigate and make such orders or awards as it may consider
107
just and expedient. This latter function is inconsistent with an
investigatory role – and could be justified as a regulatory function if
the Commission were part of the Law Society. As it stands however
this is a regulatory or disciplinary role which would be better placed
with the Law Society or Disciplinary Committee. We will return to
this when considering possible limitations on the role of the
Commission.
334. There appears to be a relatively high proportion of
complaints which do not disclose ostensible professional misconduct
and inadequate professional services, and a significant number of
complaints which are abandoned. Without examining the files in
detail it is impossible to be sure whether there are any conclusions
which can be drawn from these observations. It is possible that many
complaints are made in the absence of a professional misconduct or
inadequate professional services because clients are dissatisfied with
the result of legal action in which they are engaged. But it is also
possible that some complaints have been abandoned due to the
excessive backlog of complaints and the resultant delays in resolving
them.
335. It appears that many complaints are indeed frivolous in
nature. While these are not proceeded with after the preliminary
investigation, it is desirable to consider further measures to deter
such complaints. It is recommended that all complainants be
required to pay a small filing fee, and that the Commission be
empowered to make an award of costs against a complainant in
exceptional circumstances where the complaint is deemed to be
frivolous and vexatious (Recommendation 21).
336. It is recommended that no complaint be accepted by the
Advocates Complaints Commission after more than six years after
the cause of action arose (Recommendation 22).
337. If a complaint is seen to disclose a disciplinary offence the
matter is referred to the Disciplinary Committee. In practice this
means that the Commission will prosecute the advocate before the
Committee. It is recommended that consideration be given to having
the legislation reflect more accurately the fact that complaints are
Complaints Commission but are prosecuted by the Commission
before the Committee (Recommendation 23).
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7.8 Possible limitation of the role of the Commission
338. Though both the Advocates Complaints Commission and the
Disciplinary Committee deal with complaints against advocates, the
Disciplinary Committee deals with more serious cases, particularly
those that disclose professional misconduct. In practice, complaints
are addressed to the Advocates Complaints Commission in the first
instance and dealt with at that level. The Ministry of Justice and
Constitutional Affairs also receives complaints against advocates,
which it always refers to the Commission. Where any complaints
disclose a disciplinary offence, the Commission prosecutes these
before the Disciplinary Committee. It is nonetheless possible for a
complainant to directly refer a matter to the Disciplinary Committee,
bypassing the Commission (or indeed the Law Society).
339. Since the Commission is primarily an investigatory body, its
adjudicative function (as distinct from mediation) would appear to
be inappropriate. It is inconsistent with an investigatory role. If the
Commission were part of the Law Society it could be justified as a
regulatory function (though exercisable by a different agency within
the Law Society). In conformity with the view expressed in the
Stobbs Report, it is recommended that the Commission lose the
ability to make determinations, and confine its role to investigation
and prosecution, with a supporting mediation and conciliation role
(Recommendation 24). This will reduce the potential for a conflict of
interest, and clarify responsibilities, as well as free the resources of
the Commission to address its core role. It is recommended that the
Commission lose the power to examine witnesses on oath, as this
role should be restricted to the Disciplinary Committee, and the
power to tax bills of cost (Recommendation 25).
7.9 A Review of the shortcomings of the Advocates Complaints

Commission
340. As earlier noted, the specific mandate of this work is to
review the shortcomings of the Advocates Complaints Commission.
It must first be appreciated that over the years, attempts have been
made to deal with limitations of the Commission. In particular, the
Statute Law (Miscellaneous Amendments) Act No. 2 of 2002 sought
to increase the powers of the Commission particulars of which have
already been highlighted above. It also made it an offence for a
person summoned by the Commission in carrying out its mandate to
fail, refuse without lawful excuse to assist the Commission when
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required to do so. This aspect of the Commission’s powers will be
discussed later.
341. However, and despite the intervention by the Statute Law
(Miscellaneous Amendments) Act No. 2, there are shortcomings that
are still inherent in the institutional and operational framework of the
Commission. Consequently, the application and enforcement of the
standards provided in the Advocates Act by the Commission is still
minimal or wanting.
342. At the very least, the Commission faces the following
structural challenges that impedes it from adequately and
successfully discharging its duties.
 Increase in the number of complaints which has led to

increased workload and backlog.
 Shortage of professional staff to enable the commission
handle the increased amounts of work.
 The registry has not yet been automated thus leading to
slow output.
 Inadequate office space and filing facilities.
 Lack of appropriate training of all cadres of staff on the
unique functions of the Commission.
 Lack of prompt responses from advocates, insurance
companies and others leading to delay in disposal of
complaints.
343. But more importantly, are the shortcomings that relate to the
legislative constitution of the Advocates Complaints Commission. A
critical look at Part X of the Advocates Act reveals, amongst others,
the following loopholes:
7.10 Duplication of Functions and Responsibilities

344. A perennial problem that has always been associated with the
Advocates Complaints Commission is the duplication of functions
and responsibilities between it and the Disciplinary Committee. The
line that divides the jurisdiction of these two disciplinary bodies is
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always thin and vague. Though attempts have made to deal with this
issue, the problem has persisted over the years.
345. The Complaints Commission is pursuant to s 53(4) of the
Advocates Act required to receive and consider a complaint made by
any person regarding the conduct of any advocate, firm of advocates,
or any member or employee thereof. On the other hand, the
Disciplinary Committee is required under s 60(1) of the Advocates
Act to receive, from any person, a complaint against an advocate of
professional misconduct, which expression includes disgraceful or
dishonourable conduct incompatible with the status of an advocate.
346. This distinction is on the face of it insufficient for the
mandates of these two bodies are capable of very wide
interpretations. For this reason, the Commission and the Committee
find themselves dealing with the matters of similar nature thus
leading to duplicity of functions and responsibilities. In particular,
though the Complaints Commission is mandated to deal with
complaints that do not disclose any disciplinary offence, there is
nothing in the Act that bars the Disciplinary Committee from
receiving and determining such complaints.
347. This problem is further compounded by the fact that both the
Complaints Commission and the Disciplinary Committee are forums
of first instance. Thus the choice of forum discretionally lies with the
complainant. The result is that complaints are lodged in either of the
two defeating the logic of having the Complaints Commission which
traditionally have assumed the role of scrutinising complaints and
sending meritorious ones to the Disciplinary Committee. One might
ask why it is necessary to have the Complaints Commission when
the Disciplinary Committee can after all receive and determine
complaints of whatever nature? The answer of course is concerned
with the investigative function of the Commission.
348. If after hearing from the advocate concerned, the Law
Society is of the opinion that the complaint is not valid, the
complainant is informed in writing that his or her complaint lacks
merit. If the Law Society is of the view that the complaint is
genuine, the complaint is forwarded to the Compliance and Ethics
Committee; a committee of The Law Society of Kenya. The
Compliance and Ethics Committee acts as a mediator between the
two parties; it encourages the parties to settle the dispute and the
process is intended to preserve the good relationship that has been
there prior to the complaint.
349. If the Ethics and Compliance Committee is not able to
resolve the dispute successfully, the Committee normally writes to
the Law Society recommending that the dispute be forwarded to the
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Disciplinary Committee for hearing and determination. This may
also be the result if an advocate fails to respond to correspondence
from the Law Society.
350. The Ethics and Compliance Committee is effectively acting
as a filtering mechanism in the same way that the Advocates
Complaints Commission uses mediation and conciliation. While this
does potentially reduce the number of complaints which reach the
Committee, it may also be unduly complicating the process, by
duplicating a function already undertaken by the Commission.
351. Again, the issue of duplicity of functions and responsibilities
arises. In receiving complaints, scrutinising attachments thereon,
requiring the advocate to respond to the complaint, mediating over
the dispute and referring complaints to the Disciplinary Committee,
the Law Society is simply doing what the Complaints Commission
has been required to do. The functions and responsibilities of the
Commission are thus apparently usurped and its relevance is
consequently put to question. It is recommended that the Ethics and
Compliance Committee confine its role to the regular and systematic
review of the advocates’ practice rules and code of conduct, and that
it consequently relinquish the dispute resolution role
7.11 The independence of the Advocates Complaints Commission

352. The autonomy and independence of the legal profession are
important constitutional safeguards. In a free and democratic society
the legal profession plays an important role; indeed without a free
legal profession the basic safeguards of an unbiased judiciary and
the impartial rule of law are threatened.
353. But this autonomy is not unqualified. The independence of
the legal profession must be balanced by a responsible and impartial
adherence to uniformly high ethical standards, accountability and
transparency. This can involve – and indeed is increasingly involving
– bodies other than the professional associations themselves, and
individuals other than legal professionals.
354. There is now a tendency internationally for the membership
of disciplinary and even of investigatory bodies to include lay people
as well as lawyers. For example, just over half of the members of the
Solicitors Regulation Authority in England and Wales are solicitors,
with the rest being lay members. Including lay members in
regulatory and disciplinary bodies ensures that the body is perceived
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to be autonomous and independent of the professional association, as
well as contributing to its accountability.
355. This would appear, on one level, to conflict with the notion
that a profession should be self-governing. Indeed it is, but the right
of self-government is not absolute, and the extent of the limitation
upon this will vary over time and from jurisdiction to jurisdiction.
Certain factors suggest that a greater degree of limitation may be
needed; where, for instance, the legal profession is comparatively
fragmented, greater state involvement may be required. Where the
role of lawyers and the legal system is less well understand greater
lay involvement in the system may, paradoxically, be necessary.
356. The Law Society is an independent representative,
regulatory, and complaints handling body. As the governing body of
a learned profession, the Law Society is privileged to provide its
own disciplinary machinery. This machinery should be autonomous
and independent of wider judiciary and legal system; but also
adhering to the highest ethical and professional standards.
357. Although the Law Society itself does investigate and
prosecute complaints made against advocates, the Advocates
Complaints Commission is the body primarily responsible for this. It
is charged with investigating complaints and bringing them to the
attention of the Disciplinary Committee. Its role is crucial to the
effective operation of the disciplinary system, and thus of the
maintenance of professional ethics.
358. The Advocates Complaints Commission is not however an
organ of the Law Society. Rather it is a department in the Office of
the Attorney-General, established under the Advocates Act134 in 1989
and operational since 1990, “for the purpose of inquiring into
complaints against any advocate, firm of advocates or any member
or employee hereof”. It deals with the majority of complaints,
although some are made to the Law Society and others directly to
the Disciplinary Committee.135 It is wholly funded by the
Government of Kenya, and no charges are made for its services.
359. Commonwealth practice would suggest that the investigatory
and prosecutorial organ of the legal profession has usually – though
not invariably – been a part of the lawyers’ professional association.
There have been calls from some quarters for the abolition of the
Commission, particularly because it was seen as having been
134
135
Under the Advocates Act (Cap 16 of the Laws of Kenya) s 60 a
complaint against an advocate for professional misconduct may be made
directly to the Disciplinary Committee by any person.
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established as part of the political dynamics of the time, as a political
move by the Government.
360. It is however equally important for the investigative body to
retain independence from the representative functions of the law
society, as well as from the disciplinary functions of dedicated
tribunals. This is achieved by removing the majority of investigative
and prosecutorial work from the Law Society. This is also consistent
with growing international practice.
361. Complaints against solicitors in England and Wales are
investigated by the Legal Complaints Service, established 2006
following the separation of the representative, regulatory, and
complaints handling functions of the Law Society. It has equal
numbers of legal and non-legal members. Dissatisfied complainants
can refer their complaint to the Legal Services Ombudsman. This
could be a model for the Kenyan system – provided sufficient
funding was provided. At present it seems unlikely that The Law
Society of Kenya could itself fund a complaints service, and the
present arrangements should continue.
362. Recommendation 66 of the Stobbs Report was that there
should be a single agency to deal with the investigation and
prosecution of advocates, and that (recommendation 69) the
complaints agency should be run by The Law Society of Kenya –
subject to the willingness of the latter to undertake the role, and
prepared to fund it. It is not here recommended that the Law Society
assume this responsibility; at least not until it is clear that the
Disciplinary Committee is operating effectively. It is also probable
that transferring responsibility to the Law Society would be coupled
with a transfer of financial responsibility – as the professional
disciplinary apparatus of the legal profession should ideally be self-
funding. Such a move would be premature at this time.
363. Due to the limited resources of the Law Society it is
recommended that the Society investigate complaints and prosecute
only in exceptional circumstances, thus allowing it to concentrate
upon regulatory and representational functions (Recommendation
27). An example of the type of exceptional circumstances could
include an advocate who was a politician, and who was involved in
abuse of office, which would reflect upon the profession as a whole
but would not necessarily attract a complaint in the ordinary course
of events.
364. To give the Advocates Complaints Commission more
relevance and counter the problem of duplicity, the Commission
should be designated to be the forum of first instance to specifically
receive complaints. The choice of forum that currently lies at the
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discretion of the complainant should be whittled down. This is also
means that in the event that a complainant lodges his/her complaint
in the Disciplinary Committee the same should, without the
Disciplinary Committee looking into its merits, be referred to the
Complaints Commission for assessment of its merits.
365. The commissioner or commissioners constituting the
Commission are appointed exclusively by the President. The Act
does not envisage that such commissioner or commissioners shall be
appointed by the President on the advice of any other body. Neither
the advice nor the consultation of the Law Society of Kenya or the
Judicial Service Commission or Parliament is sought in making the
appointment.
366. The product of such a system of appointment is that the
commissioner or commissioners so appointed may feel obliged to
owe their allegiance to the President – or may be perceived to so
owe their allegiance. Their independence is consequently
undermined. The Commission therefore becomes amenable to
manipulation, or to a perception of manipulation, which may be little
less serious. In a country where Presidential appointees have
historically been known to defer to the wishes (stated or anticipated)
of their appointer, this is a serious limitation on the perception of the
independence of the Advocates Complaints Commission. Yet for the
Commission to gain the confidence of both the complainants and the
advocates/firm of advocates who appear before it, it must be or at
least seen to be independent.
367. Ideally the independence of the Advocates Complaints
Commission could be achieved by a combination of factors. These
would include the inclusion of lay members – to ensure
independence from the Law Society – and possibly the removal of
the Commission from the Office of the Attorney-General.
368. To ensure that the independence of the Complaints
Commission is buttressed, and its legitimacy enhanced, it is
President on the recommendation of the Law Society of Kenya
369. In addition, the determination of the remuneration of the
Commissioners by way of salary, allowance, pension or gratuity
Disciplinary Committee, the remuneration of the Commissioners
should be determined by the Attorney-General in consultation with
the Treasury. This is so recommended (Recommendation 29).
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370. At present the Commission does not have an independent
budget. It is dependent upon a share of the budget of the State Law
Office. This renders the Commission potentially subject to influence
from other elements in the Attorney-General’s Office. For reasons of
independence and transparency the Commission should have an
independent budget. It is recommended that the Commission should
be made independent of the Office of the Attorney-General, as a
stand-alone agency, with its own independent budget
(Recommendation 30). This is less because of the desirability for
independence – for it is not recommended that the Law Society take
it over – but to facilitate the administrative changes recommended
below (and principally to assist the Commission to attract more
senior and experienced State Counsel).
371. It is recommended that to ensure that the Advocates
Complaints Commission gets the staff it requires to maintain and
preserve its independence, integrity and efficiency, the Chairman of
the Commission should be empowered to select his or her own staff
7.12 Lack of Proper Rules of Procedure

372. As earlier noted, s 54(3) of the Advocates Commission
empowers the Attorney-General to makes rules regulating the
structure and operation of the Commission and for the carrying out
of its functions. The Attorney-General duly did this in 2003 by
publishing the Advocates (Complaints Commission) (Structure and
Procedure) Rules, which have been highlighted above.
373. However, the said rules do not indicate how the Commission
should conduct its proceedings. The Commission is left to determine
its own procedure including the procedure for the attendance of
other persons at its meetings, and it may make standing order in the
respect thereof. With the power to determine its own procedure, it is
possible for the Commission to abuse this power. The safeguards of
natural justice are neglected with the consequence that the parties
appearing before the Commission may suffer injustice. It is
recommended that the Advocates (Complaints Commission)
(Structure and Procedure) Rules be amended to include specific
provisions for the conduct of the Commission’s proceedings, subject
to the recommendation with respect to new rules (Recommendation
32).
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7.13 Lack of Representation of the Law Society of Kenya
374. As already seen above, the Commission consists of
commissioner or commissioners appointed by the President. It is
also comprised of a secretary and public officers all of whom are
appointed by the Attorney-General. Unlike the Disciplinary
Committee, the Commission lacks representation of the Law Society
of Kenya which is the body charged with the role of representing the
interests of advocates in Kenya in addition to maintaining and
improving the standards of conduct of the legal profession.
375. It therefore lacks legitimacy especially among the persons it
seeks to regulate yet legitimacy is central to its success. Legitimacy
shapes the perception of a people towards an institution. It creates a
sense of goodwill and persons are therefore willing to subject
themselves before the institution. The Advocates Complaints
Commission has not yet received the full support and goodwill of
advocates in Kenya, in part because it is perceived to be lacking in
terms of legitimacy.
376. It is recommended that the Judicial Service Commission
consult the Law Society before recommending to the President the
name of a candidate for appointment as a commissioner.
377. The workshop at Kisumu suggested that the Advocates
Complaints Commission be renamed the Advocates Enquiry
Commission. This style is however insufficiently accurate as it
suggests a non-legal process is involved. The commission’s work
would be impeded by adopting a name which suggested that its work
was informal. It is recommended that Advocates Complaints
Commission be renamed the Advocates Investigation Commission
7.14 The Legality Principle under Criminal Law

378. The Statute Law (Miscellaneous Amendments) Act No. 2 of
2002 is lauded for it sought to give the Advocates Complaints
Commission the proverbial “teeth to bite.” In particular, it made it a
criminal offence for any person whilst summoned by the
Commission to assist it, fails or refuses to assist the Commission
without lawful excuse.
379. However, in creating this offence, the Amendment,
conspicuously failed to stipulate the sentence that will be meted out
against a person if found guilty and convicted of the offence. It is a
fundamental principle of Criminal law that no man shall be charged
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of a criminal offence unless the crime is stipulated in written law and
the sentence stated therein. The amendment fails this fundamental
test. It is recommended that this provision be repealed, or adequately
limited. It is to be questioned whether such a criminal sanction is
effective, and it may be taken to suggest a degree of frustration with
advocates, or even of desperation.
380. To counter the defect inherent in s 53(3A) of the Advocates
Act, that is, the failure to stipulate the sentence for the offence
created therein, it is recommended that the Act should be amended to
stipulate the sentence to be meted out to a person convicted of the
offence. Consequently, the defect will be cured (Recommendation
34).
7.15 A Legal Profession Ombudsman

381. Because the purpose of this Report is to advise on
modifications to the existing structure of Advocates Complaints
Commission and Disciplinary Committee, rather than necessarily
propose a radical reform of the system for maintaining professional
ethics, the bi-polar system is preserved. The Law Society (through
the regional ethics panels, Disciplinary Committee and to a lesser
extent the Commission – if the membership is revised as
recommended), and the Office of the Attorney-General (through the
Commission, and also [if the recommendations are implemented]
through appointing the Chairman and Deputy Chairman of the
Disciplinary Committee) are both involved in the system. This raises
the question of whether some office is required for an overview of
the system.
382. In other Commonwealth jurisdictions such an officer exists.
In Ontario the Complaints Resolution Commissioner can be asked to
perform an impartial review of the Law Society’s decision to close a
complaint file. In England and Wales dissatisfied complainants can
refer their complaint to the Legal Services Ombudsman. It is
recommended that an independent Legal Profession Ombudsman be
appointed, by the Attorney-General (Recommendation 35), with the
following tasks:
a. To review the decision of the Law Society to close a
complaint file (and with power to recommend that the Law
Society reconsider the complaint);
b. To review the decision of the Advocates Complaints
Commission to close a complaint file (with similar powers);
118
c. To monitor the performance of the system for the
maintenance of professional ethics and make
recommendations to the Attorney-General and to the Law
Society from time-to-time with respect to improvements.
119
VIII THE DISCIPLINARY COMMITTEE
383. This Report is intended, inter alia, to review the operation of

the professional disciplinary machinery of The Law Society of
Kenya. It includes the following specific elements:
 Review the structure and administration of the advocates

international best practices.
 Propose specific ways to convert the Disciplinary Committee

into an efficient and affective tribunal providing justice to the
aggrieved and the profession in a fair and expeditious manner.
 Propose ways of harmonizing the work of the advocates

regional ethics committees.
 Review and propose amendments to the pending proposals for

the amendment of the advocates’ practice rules and code of
conduct to enhance the ethical conduct of advocates.
These will be considered in turn.
8.1 Review the structure and administration of the advocates

international best practices
8.1.1 Establishment
384. The Disciplinary Committee is established under s 57 of the
Advocates Act (Cap 16, Laws of Kenya) to adjudicate upon alleged
breaches of rules of professional conduct by advocates and
advocates’ clerks in Kenya. The Committee comprises the Attorney-
General; the Solicitor-General or a person deputed by the Attorney-
General; six advocates136 and three other persons, not being
advocates appointed by the Attorney-General on the
recommendation of the Law Society of Kenya.137 The Secretary of
136
These are elected under The Law Society of Kenya Act (Cap 18)
Laws of Kenya, The Law Society of Kenya (General) Regulations, Part
IV.
120
the Society shall be the Secretary of the Committee.138 In practice,
the Deputy Secretary of the Society may represent the Secretary in
the Committee’s proceedings.
385. The Disciplinary Committee may constitute itself into a
tribunal of either three or five members to determine a complaint or
matter where it appears such a tribunal is unavailable or
inconvenient to determine the matter or complaint.139 This has
enabled the Committee to deal with the backlog of cases, since it can
be constituted into two or more tribunals at any time. When the
Committee sits as a tribunal to consider a case, and an adjournment
ensues, the subsequent hearing must have all the members presiding
in the case, otherwise it is not deemed as fully constituted. When it is
not constituted as a tribunal, all its members sit in the proceedings.
The Committee (or tribunal) is chaired a person deputed by the
Attorney General, who shall preside at all meetings at which he is
present,140 and sits in Nairobi.
386. The advocates may not be Chairman, Vice-Chairman or
Secretary of the Law Society (who are covered by s 58), and all must
be advocates of at least 10 years standing. One advocate shall be an
advocate who does not ordinarily practise in Nairobi. There are thus
eight professional (assuming that the person deputed by the
Attorney-General are so qualified) and three lay members. In
practice there are ten members, as the Attorney-General does not
normally attend.
387. The Committee is chaired by the Attorney-General (when
present), the Solicitor-General, or in their absence, a person deputed
by the Attorney-General. The advocate members are elected for three
year terms and are eligible for re-election. It is recommended that
the term for advocate members of the Disciplinary Committee be
two years, with a right of renewal (Recommendation 36).
137
Additionally, under s 58 of the Act, the Committee may require the
chairman or vice-chairman of the Society or both to sit as an additional
member or members of the Committee to constitute the tribunal where
appropriate.
138
In the absence or inability of the Secretary, the Committee may
appoint an advocate to ct as such secretary for the duration of such
absence or inability.
139
Section 58(1) of the Advocates Act.
140
Section 58(2) of the Act provides that the Attorney-General or
Solicitor-General, or in the absence of the Attorney-General or the
Solicitor-General the person deputed by the Attorney-General under s
57(1)(b) shall chair such meeting, and in the absence of both, the
tribunal shall appoint a chairperson from among its members.
121
388. The non-advocate members have served since 2002. It would
appear that their presence does little to enhance the effectiveness of
the Disciplinary Committee. Although it is good practice to include
lay members in the Disciplinary Committee, it is recommended that
care is taken to ensure both that appropriate people are selected, and
that they and the advocate members of the Committee understand
their respective roles (Recommendation 37). It is suggested that
serving or past members of disciplinary bodies of other professions
be included especially.
389. The lay members are full members of the Committee, and
should be involved in the deliberate and decision-making processes.
An induction process is recommended (Recommendation 38).
390. The lay members are not currently being utilised in an
effective manner, and rather than leading to public confidence in the
Committee it may actually be harming professional confidence in it.
Their effectiveness is also hampered by the nature of much of the
work of the Committee, since they are not well placed to be actively
involved in the procedural matters which occupy much of the
Committee’s time. If the status hearings and other procedural
functions of the Committee are reduced in line with later
recommendations in this Report then the lay members should be able
to play a more meaningful role. Although they have not been a
success to date it is not recommended that they be removed, as has
been suggested elsewhere. This is because there remain sound
reasons for the inclusion of lay members, and they can make a
worthwhile contribution to the Committee’s work.
391. The Solicitors Regulation Authority of the Law Society of
England and Wales, established in 2007, has a number of roles,
including taking regulatory action. It also refers prosecutions to the
independent Solicitors Disciplinary Tribunal. The Solicitors
Regulation Authority may be deemed to be broadly the equivalent to
the Advocates Complaints Commission, and the Solicitors
Disciplinary Tribunal to the Disciplinary Committee. Just over half
of the members of the Solicitors Regulation Authority are solicitors,
with the rest being lay. This model is becoming more common, with
international best practice seeing the increased use of lay members.
392. The Advocates Act currently allows for the possibility of a
Disciplinary Committee sitting with solely lay members. It is
recommended that this possibility be removed (Recommendation
39).
393. It is also recommended that there should be at least one lay
and one advocate member present at each hearing of the Disciplinary
Committee, and at least three in total (Recommendation 40). The
122
same members need not be present at every stage of a particular
hearing. The procedure for the selection of members to attend each
sitting ought also to be clarified.
394. It is recommended that the number of advocates in the
Disciplinary Committee be increased to nine, and that three of these
must be of at least twenty years standing (Recommendation 41).
395. The Stobbs Report recommended that the Committee should
have power to co-opt advocates; that membership should be open to
advocates of 5 years standing or more and that two elected places
should be reserved for individuals of between 5 and 10 years’
standing; and that a greater number of lay representatives are likely
to be needed (recommendations 20-22).
396. The co-option of advocates is important even if the
permanent membership of the Committee is increased, and it is
implemented (Recommendation 42). The current membership of the
Committee is insufficient, given that the Attorney-General and
Solicitor-General do not in practice sit, and the Committee meets
regularly, twice a week, on Mondays in the morning and Thursdays
in the afternoon.
397. It is therefore recommended that the Attorney-General and
Solicitor-General be excluded from membership (Recommendation
43). This is not to suggest that the present holders141 of these high
offices do or at any time have acted less than with the highest
propriety. However best practice suggests that these office-holders
should not be members of a judicial or quasi-judicial body.
398. It is recommended that the Attorney-General appoint the
Chairman and Deputy Chairman of the Disciplinary Committee
(both to be advocates or judicial officers) on the advice of the
Judicial Services Commission, and that these be appointments in lieu
of the Law Officers. There should continue to be representatives of
the Attorney-General and Solicitor-General (Recommendation 44).
399. Recommendation 58 of the Stobbs Report was that
consideration should be given to giving the judges representation
(possibly as chairman) on the Disciplinary Committee. It is
recommended that the Chairman or Deputy, but not both, should be a
judge, but that this not necessarily be a statutory requirement
At the time this Report was written, the Hon. S. Amos Wako, EGH
141
EBS LLB(Hons) BSc(Econ)(Hons) LLM FCIArb SC MP, and Wanjuki

Muchemi, CBS LLB(Hons) MBA FCIArb CPS respectively.
123
400. It is recommended that the Stobbs Report recommendation
with respect to including more junior advocates not be implemented
at this time (Recommendation 46). Members of the Disciplinary
Committee are required at times to deal with advocates of
considerable experience and standing in the community. More junior
advocates on the Committee may be placed at a disadvantage and be
unable to robustly hear such cases. Senior advocates appearing
before the Committee often view it as lacking legitimacy due to the
relative youth of some Committee members.
401. The Secretary to The Law Society of Kenya is also Secretary
to the Disciplinary Committee. While the Disciplinary Committee
remains an organ of the law society a close linkage is appropriate.
However, as recommended in the Stobbs Report (para 159), it is
Committee (Recommendation 47).
402. This linkage is particularly problematic while it remains
possible for the Law Society to investigate complaints and prosecute
advocates before the Committee, even though this is not the normal
course of events. If all investigations and prosecutions were dealt
with by the Advocates Complaints Commission then the Secretary of
the Law Society might remain Secretary of the Committee. Good
practice would however suggest that the positions should be
separated, whilst still allowing the secretariat of the Law Society
responsibility for the operation of the Committee. Consideration
should be given to appointing a Deputy Secretary (Ethics), who
would have specific responsibility for this role.
8.1.2 Standing before the committee

403. Any person may make representations of professional
misconduct against an advocate licensed to practice law in Kenya.
Under s 60A of the Advocates Act, the Disciplinary Committee may
be seized under the Act
by or on behalf of the Council of the Law Society of
Kenya;142
by the Advocates Complaints Commission;143 or
by or on behalf of any person (or complainant); or
142
Established under s 13 of the Law Society of Kenya Act (Cap 18)
Laws of Kenya.
143
Section 53(4)(b) of the Advocates Act.
124
by or on behalf of an advocate seeking to procure the
removal of his/her name from the Roll.144
404. The vast majority of complaints to the Committee are
referrals by the Council and the Commission, which then prosecute
the cases. In each of these cases, the persons with the standing and
the advocate against whom the complaint is lodged are parties to the
proceedings, and may be represented by an advocate, 145 in some
cases appointed by the Council, where the complainant or applicant
does not have one.146
8.1.3 Mandate, Powers and Jurisdiction

405. The mandate of the Disciplinary Committee is to enforce
ethical standards in the legal profession by adjudicating complaints
of unbefitting conduct or professional misconduct against advocates
in Kenya.147 Professional misconduct as defined by the Act includes,
but is not limited to,148 disgraceful or dishonourable conduct
incompatible with the status of an advocate. 149 The Committee also
has jurisdiction in cases where professional services provided by an
advocate or firm were not of the quality that could reasonably have
been expected of an advocate or firm.150 The ultimate object,
therefore, of the Committee is to maintain honesty, probity and
integrity in the legal profession.
406. Under s 59(1) of the Advocates Act, the Committee is also
empowered to receive and hear applications by advocates seeking to
procure their removal from the Roll. Upon hearing such an
144
Section 59(1).
145
Section 79.
146
Rule 11 of the Advocates (Disciplinary Committee) Rules, L.N.
458/1990.
147
Section 60(1); s 53(4)(c). The jurisdiction extends to Advocates
registered in Kenya, but who otherwise are registered to practice in other
foreign jurisdictions.
148
See the Advocates (Practice) Rules; The Advocates (Remuneration
Order); The Advocates (Accounts) Rules; The Advocates (Deposit
Interest) Rules; The Advocates (Accountant’s Certificate) Rules and the
Advocates (Practising Certificates) (Fees) Rules; The Advocates
(Professional Indemnity) Rules and the LSK Ethics and Etiquette
Manual.
149
Most of the cases received by the Committee relate to failure to keep
clients informed, failure to account, withholding funds, delay and failure
to render services.
150
Section 60A(2).
125
application, the Committee may make an order that the name of such
advocate be removed from the Roll and may make such other order
in relation to the case as it may deem fit.
407. The disciplinary mandate of the Committee also extends to
advocate’s clerks. The object of this is to uphold ethical standards
within this cadre of personnel who provide vital support to advocates
and by the nature of their work interact with clients and confidential
information relating thereto. The Council of the Law Society is thus
mandated to move the Committee to make orders in relation to the
employment, retention or remuneration of any person who are
deemed unfit to be advocates’ clerks.151
408. To discharge its mandate, the Committee’s procedures are
deemed to be judicial/legal proceedings.152 Accordingly, the
Committee may administer oaths or affirmations, whereas the
complainant and the advocate to whom a complaint relates, and an
applicant making any application to the Committee, may take out a
summons for discovery of documents or to give evidence in
accordance with evidentiary principles applicable in trials.153
8.1.4 Power to Receive and Determine Complaints

409. In cases of a complaint filed against an advocate for
professional misconduct, the Committee has the following powers
during, before or after the hearing stage:
Refer any matter to the Advocates Complaints

Commission;154
Summon the advocate against whom the complaint has been
made and the complainant or applicant making the
application to the Committee to give evidence or to produce
documents;
151
Section 72.
152
Section 58(5). This is reflected in the procedures of the Committee.
See the Advocates (Disciplinary Committee) Rules, L.N. 458/1990.
153
Section 58(4).
154
Although there are no express powers vested in the Committee to do
this, in practice, most lay complaints are referred to the Commission.
126
At any stage of any proceedings, refer the case to the Council
of the Law Society as appropriate155 or otherwise allow or
refuse the withdrawal of any application;156
Make orders, upon consideration of adduced evidence, that
the advocate to whom the complaint relates
be admonished; or
be suspended from practice for a specified period
not exceeding five years; or
that the name of such advocate be struck off the
Roll; or
pay a fine not exceeding one million shillings, or
such combination of the above orders as the
Committee thinks fit; or
pay to the aggrieved person compensation or
reimbursement not exceeding five million
shillings;157 or
pay to the complainant such sum as it finds to be
due from the advocate, where the complainant has
not filed a civil suit against the advocate in
respect of the sum in dispute.158
Dismiss summarily such complaint where it appears that the

same is frivolous or vexatious, or does not otherwise disclose
a prima facie case,159or upon termination of the full hearing
of a complaint;160
In the case of dismissal of a complaint against an advocate,
make a formal order161 discharging such advocate without
requiring the advocate to whom the complaint relates to
answer the allegations; and
155
Rule 19 of the Committee Rules.
156
Rule 20, Committee Rules.
157
Section 60(4).
158
Section 60(9).
159
Section 60(3) and Rule 11 of the Committee Rules.
160
Section 61(1).
161
Rule 11, Committee Rules.
127
Make any such order as to payment by any party (including
the complainant) of any costs or witness expenses and of the
expenses of the Committee in connection with the hearing of
any complaint as it may deem appropriate.162
410. In exercising these powers, the Committee applies mainly the

Advocates Act (Cap 16) Laws of Kenya and subsidiary provisions
and procedures enacted thereunder, case law, and general principles
of law.163 Typically, a case begins with a consideration of pleas,
whereupon a date is set for hearing. Following conclusion of the
“prosecution”164 and defence, there is an adjournment for judgement,
and another for mitigation and “sentence”.
411. Although most complaints may be of a criminal nature, in
practice, the Committee has preferred a restorative approach to a
strict approach of sanctions. Thus it is rare for cases to be referred to
the Attorney-General to institute charges where there is a finding of
criminal liability.
412. Once a matter has been listed for hearing before the
Committee, the requirements of service must be pursuant to the Civil
Procedure Rules (Recommendation 48).
8.1.5 Jurisdiction to determine Costs/Fees

413. Further, the Committee also has powers to determine the fee
or costs payable to an advocate or any to make restitution in the
following cases:
Where a complaint relates to fees and costs, and the advocate
has not filed a bill of costs in the High Court, the Committee
may upon the request of the complainant, order such
advocate to produce before it a detailed fee note, failure to
which the Committee may determine the fee payable to the
advocate in such sums as it deems fit.165
162
Section 60(5).
163
Section 3 of the Judicature Act (Cap 8) Laws of Kenya. See the
Stobbs Report.
164
This is usually done by the Advocates Complaints Commission or the
Council of the Society.
165
Section 60(6).
128
Where the complaint relates to fees and costs, the Committee
may adjourn the complaint pending taxation,166 or make its
own estimate of the costs due to the advocate and make
orders accordingly.167 Such determination shall be deemed to
be a determination of the High Court.168
Where the Committee deems that the professional services
provided by an advocate or firm in connection with any
matter in which such advocate or firm of advocates had been
instructed by the a complainant were not of the quality that
could reasonably have been expected of an advocate or firm,
it may do one or more the following things as it deems
appropriate
determine that the costs to which the advocate or firm of advocates
shall be entitled shall be limited to such amount as may be specified
in its determination;
a. direct the advocate to comply, or to secure compliance, with
the requirement to refund, remit or waive the whole or part of
any advocate’s costs or fee or amount already paid by or on
behalf of the client; or
b. direct the advocate or firm of advocates to secure the
rectification of any error, omission or other deficiency arising
out of their fault; or
c. direct the advocate to take at their own expense, such other
action in the interests of the client as it may specify.169
414. The provisions on costs and fees are particularly drastic and
wide, and the Committee is required to use its discretion
judiciously,170 considering that there are other avenues for remedies
in such cases of for civil liability in tort or contract.
8.1.6 Orders of the Committee and Enforcement

415. Orders of the Committee in relation to a complaint against an
advocate may be filed in the civil registry of the High Court of
Kenya by any party thereto who shall, within twenty-one days of the
166
That is, if a bill of costs has been filed in Court by the advocate
respondent.
167
Section 60(7).
168
Section 60(8).
169
Section 60A(2).
170
Section 60(4).
129
filing, give a notice to all other parties in writing of the filing of the
order.171
416. Where no appeal has been filed, the party in favour of whom
the order is made may apply for leave to enforce such order as
decree, and the order may be executed in the manner as an order of
the High Court to the like effect and, if it is an order for of money,
may be enforced on the immovable and movable property of the
advocate in accordance with the Civil Procedure Rules.172
417. The Committee has powers to issue a warrant for the levy of
the amount of any sum ordered to be paid on the immovable and
movable property of the advocate by distress and sale under warrant
and such warrant is enforceable as if it were a warrant issued by the
High Court173 The Committee is empowered to entertain applications
in respect of non-compliance with its orders, notice or direction.174
418. Although the orders of the Committee are to be enforced as
though they are orders of a court of law, in practice, the enforcement
of orders of the Committee has been very weak. There are cases
where advocates have ignored orders of the Committee. 175 The
Secretariat of the Committee (normally personnel from the Law
Society of Kenya) is tasked with this role, but has not managed the
same efficiently for want of capacity. 176 The introduction of a
computerised case-management system should facilitate more
rigorous enforcement of the orders of the Committee.
8.1.7 Findings of the Committee and Appeal

419. The Committee is enjoined by the Act to embody its findings
and the order or orders made by it in the form of a report to the
Registrar of the High Court, who shall give notice of its receipt to
the complainant, the Complaints Commission (if the complainant
has been referred by it to the Committee), the Council of the Law
Society and to the advocate respondent. These findings are
considered judgements, with the ratio for the Committee’s decisions.
The advocate, if aggrieved by order of the Committee may appeal
171
Section 60(1).
172
Section 60(11).
173
Section 60(12).
174
Section 77 read together with s 60.
175
See Stobbs Report, p. 19.
176
The Society has declined in recent years to grant any defaulting
advocate a practicing certificate.
130
against such order to the High Court, or take an action for judicial
review.177
420. It would be impractical to limit the right of judicial review of
decisions of the Disciplinary Committee. This is a right enjoyed by
other persons in analogous situations. It appears however that such
action may have a seriously deleterious effect upon the operation of
the disciplinary system. The Chief Justice is therefore invited to
remind the judiciary that the professional standing of advocates is a
matter which the judiciary should take careful cognisance, and bear
in mind the importance of a well-regulated legal profession.
421. Where there is a finding that discloses a breach of trust by an
advocate under s 80 of the Advocates Act, the Committee shall
report such finding to the Attorney-General, who may then institute
proceedings.178 Note in this regard needs to be made that the
Committee does not have the powers to institute such criminal
proceedings, since s 26(3)(a) of the Constitution of Kenya provides
that only the Attorney General shall institute and undertake criminal
proceedings against any person before any court (other than a courts-
martial) in respect of any offence alleged to have been committed by
that person.
8.1.8 Where there is an appeal by the Advocate to the High Court

422. The Court shall set down a hearing, and give to the Council
of the Society and to the advocate notice of the date of hearing (there
is no specific reference to the complainant, but parties).179
423. Such appeal under does not suspend the effect or stay the
execution of the order appealed against (this is notwithstanding that
the order is not a final order if there is an appeal).
424. Upon considering the memorandum of appeal and the
evidence, the Committee may
refer the complaint back to the Committee with directions a
retrial or confirm, set aside or vary any order made by the
Committee or substitute therefore such order as it may deem
fit;
177
Article 62(1). In practice, most advocates do not appeal, but rather
institute Judicial Review proceedings in the High Court. This avenue is
preferred since Judicial Review may provide a stay of the orders by the
Committee, which is not provided for in the case of an appeal.
178
Article 61(3).
179
Sections 62(2) and 64.
131
make such order as to the payment by any person of costs, or
otherwise in relation to the appeal, as it may think fit.
425. Such decision or order of the High Court may be appealed
against by the aggrieved advocate to the Court of Appeal of
Kenya.180 It needs noting that although the right of appeal has been
expressly prescribed for an aggrieved advocate, such is not the case
for other parties such as the complainant. This defies the principle of
equality, which requires that all parties to a dispute be afforded equal
rights to seize dispute settlement mechanisms and appeal therefrom.
It is recommended that the right of appeal be extended to all parties
8.1.9 Final Order

426. Following appeal, where applicable, or the report of the
Committee, the Registrar of the High Court shall
cause a note of the effect of a final order to be entered in the

Roll against the name of the advocate concerned; and
where the order so directs, remove or strike off the
advocate’s name from the Roll.181
427. The Registrar is required to inform the secretary of the

Society of the making of an entry in respect of any advocate on the
Roll,182and to send a certified copy of every final order removing or
striking off the name of an advocate from the Roll or suspending an
advocate from practice.183 The Registrar is also enjoined to cause to
be published in the Kenya Gazette the final order that has been made
in respect of the advocate whereby he has been suspended from
practice or whereby his name has been struck off the Roll. 184 The
society may publish a similar notice in at least one daily new paper
of national circulation, but this has not been the practice.
180
Section 67.
181
Section 68(1).
182
Section 69(1).
183
Under s 68(3) of the Act, such is also required to be sent to any
professional body outside Kenya where the advocate is a member.
184
Section 69(2).
132
8.1.10 Power to Recommend Restoration
428. The Chief Justice is empowered, either suo motu or upon
recommendation of the Committee, to order the Registrar to restore
on the Roll any advocate whose name had been removed from or
struck off the Roll.185
8.1.11 Others: Disciplinary Powers as to Clerks

429. The Committee is mandated to receive applications from the
Council of the Law Society regarding the conduct of advocates’
clerks. The Committee is empowered to make orders barring the
employment, retention or remuneration of, without the consent of the
Council, any person who being or having been a clerk to an advocate
has been convicted of serious offences or stealing, fraud or

deceit; or
has been party to any act or default of an advocate in respect
of which a complaint has been or might be made against such
advocate to the Committee; or
has so conducted himself whilst employed as a clerk to an
advocate that, had he himself been an advocate, such conduct
might have formed the subject of a complaint against him to
the Committee.186
430. Upon the hearing of such application, the Committee may

make orders such as those relating to the regime for advocates,
mutatis mutandis. The respondent may appeal against such order(s)
in the High Court.187
8.1.12 Rules of Procedure

431. Applications to the Committee are made by way of an
affidavit of complaint188 setting out the facts of the case and the
185
Section 71.
186
Section 71(1).
187
Section 73.
188
Rules 3 and 8, Advocates (Disciplinary Committee) Rules.
133
allegations of the misconduct by the advocate, or in the case of an
advocate’s clerk, the misconduct or offence against which the clerk
had been convicted. Applications are lodged with the Secretariat of
the Committee/ Tribunal, based at the Law Society of Kenya. In
practice, the Committee sets a date to determine the existence of a
prima facie case against the respondent, and the Secretary shall give
written notice thereof (and the application/copy of affidavit of
complaint) to the parties not less than twenty-one days before the
date fixed for the hearing.189 The notice shall contain the charges of
alleged professional misconduct and shall also require the addressee
to furnish the Committee with list documents to be adduced at the
hearing.190
432. The Committee may then proceed to hear and determine the
complaint or application. At the hearing, a party may be represented
by an advocate or may appear in person. In the event of a respondent
(as is in many cases of advocates falling ill during the hearing) or
applicant failing to appear at the hearing the Committee may dispose
of the case in absentia.191 Parties may adduce evidence, call
witnesses,192 admit, prove or disclose documents, 193 or amend the
application,194 whereas the Committee may adjourn the
proceedings,195 or proceed to full hearing. Evidence before the
Committee is given on oath and it has power to accept affidavit
evidence.196
433. Upon the hearing or determination of any complaint or
application, the Committee may find professional misconduct or
inadequate professional services and impose sanctions, or in the case
of an application in respect of an advocate’s clerk, make orders as to
the employment, retention or remuneration of such clerk. 197 The
Committee may, additionally make orders regarding costs of
proceedings as it deems fit. The findings and transcripts of the
proceedings are produced and made available after the hearing.
434. It follows that the Committee’s procedures and evidentiary
rules are broadly congruent with those of the High Court, although
strict rules of evidence and procedure are not applied. Moreover, the
189
Rule 4(2).
190
Rules 13 and 14.
191
Rule 17.
192
Rule 32 empowers the Committee to summon witnesses.
193
Rule 30.
194
Rule 23.
195
Rule 21.
196
Rule 18.
197
Sections 60, 60A and 72, read together with Rule 24 of the Advocates
(Disciplinary Committee) Rules.
134
Committee may dispense with any requirements of these rules where
it appears to the committee to be just or expedient so to do.198
8.2 Propose specific ways to convert the Disciplinary Committee into

an efficient and affective tribunal providing justice to the
aggrieved and the profession in a fair and expeditious manner
435. Aside from aspects of the structure and administration of the
Committee which are discussed above, there are a number of
specific changes which could be made to improve its efficiency and
effectiveness. Many of these relate to the process of the Committee,
both before and during a hearing. There are some other changes to
the Committee’s powers which would enhance its effectiveness.
436. There is a provision for direct referral of complaints by the
Advocates Complaints Commission to the Disciplinary Committee.
This is apparently rarely used as the Disciplinary Committee will
usually refer these back to the Commission if it is realised that full
investigations were not carried out. It is recommended that this
provision be abolished, as the time of the Disciplinary Committee
should not be occupied in considering charges which have not been
fully investigated (Recommendation 50). This is consistent with the
Stobbs Report recommendation (number 10) that prosecutors should
interview all witnesses and complainants before a case is referred to
the Committee in order to save time being wasted in front of the
Committee.
437. A complaint against an advocate of professional misconduct,
including disgraceful or dishonourable conduct incompatible with
the status of an advocate, may be made to the Committee by any
person. The complaint is made by affidavit by the complainant
setting out the allegations of professional misconduct.
438. Cases brought by the Advocates Complaints Commission –
which constitute the clear majority of complaints brought before the
Disciplinary Committee – are prosecuted by the Secretary to the
Commission assisted by State Counsel. In practice they are
conducted by State Counsel.
439. The prosecution cases were not always well prepared, and
this contributed to delays. It would appear that this is due to staffing
limitations in the Complaints Commission. State Counsel from the
Advocates Complaints Commission were evidently not always well
prepared and able to proceed with cases.
198
Rule 28.
135
440. Most matters heard during the hearing attended during the
writing of this Report were procedural rather than substantive,
effectively status hearings. This is not a good use of the Committees
time, nor does it contribute to enhancing its reputation and standing.
Recommendation 15 of the Stobbs Report was that the Committee
should have the option to hear cases under a summary procedure to
enable the simpler, less serious cases to be heard speedily. It is
recommended that a summary procedure of this sort be implemented
441. The Stobbs Report concluded that (para 33) that the
Committee had been able to deal with less than 20% of the cases
referred to it in the previous eleven years. This is a matter for serious
concern. There are approximately 1,000 pending cases, three
hundred of which are serious cases.
442. Since it is recommended elsewhere that the Commission
cease to exercise an adjudicative function, the Committee must be
equipped to handle an increased number of cases. This can be
achieved by implementing the above recommendations with respect
to the procedure of the Committee.
443. The Stobbs Report also recommended (number 16) the
appointment of a Directions Officer with similar functions to a
Master in the court. This officer would deal with uncontroversial and
administrative matters and set timetables and make other orders to
ensure that a case is ready for hearing. It is recommended that this
recommendation be implemented, in part to speed the process of the
Committee itself, but also to ensure that the lay members may play a
more effectively part (Recommendation 52). It is also necessary to
ensure that the Committee is taken seriously as a trial court, and not
be regarded as a merely administrative body.
444. There was uncertainty as to whether the Disciplinary
Committee had the power to summon witnesses. It is recommended
that it be given this power (Recommendation 53).
445. Recommendation 17 of the Stobbs Report called for a
procedure for dealing with advocates who fall ill prior to hearings. It
is recommended that this is implemented, including a procedure for
Disciplinary Committee in an effort to frustrate its operation
446. It is recommended that recommendation 35 of the Stobbs
Report, that the rules should contain sanctions to encourage
advocates to prosecute appeals expeditiously and to penalise
frivolous appeals, should be implemented (Recommendation 55).
136
447. The Stobbs Report concluded that the Disciplinary
Committee’s procedures were cumbersome and in need of urgent
reform to provide a coherent case management system and reduce
the substantial delays that exist. It would appear that, largely due to
Committee sitting more regularly than previously, the unacceptably
large backlog of cases has been cleared. The Committee secretariat
also does a reasonable job of managing the files. However, more
fundamental issues remain. One of these is the amount of time
occupied with procedural matters. Another is the absence of a proper
case management system.
448. Record keeping seemed to be fairly basic. It was generally
adequate, but it is recommended that the implementation of the
computer-based case management system recommended by the
Stobbs Report (recommendations 2 and 24) should proceed as a
matter of urgency (Recommendation 56).
449. It is recommended that any software and hardware acquired
for the case management system be subject to a pilot study, in
operation and its effectiveness is assured (Recommendation 57).
450. The Stobbs Report recommended (recommendation 3) that
the computerised case-management system should be built to a
carefully considered specification and be subject to tender
(recommendation 3). It is recommended that this is best practice and
should be followed (Recommendation 58). It is understood that
arrangements have been set in train, or will be shortly, for the
commissioning of the requisite programme.
451. The powers of the Disciplinary Committee, upon finding
proven a charge of professional misconduct, include making any or
all of the following orders in respect of the advocate: admonition;
suspension from practice for a specified period not exceeding 5
years; that the name of the advocate be struck off the Roll of
Advocates; a fine not exceeding Ksh. 1,000,000; compensation or
reimbursement not exceeding Ksh. 5,000,000.
452. The evidence seen suggests that in most cases the penalties
actually imposed are significantly less than the maximum allowed.
In one instance, which may be taken as typical, an advocate found
guilty of failure to account for over Ksh. 1,000,000 was fined Ksh.
10,000. It is recommended that consideration should be given to
imposing a higher level of fines as a matter of practice
137
453. It was suggested at the workshop at Kisumu that offences
should be stratified and classified and sentence be stipulated for each
group of offences or offence. This however is inconsistent with the
general fluidity of ethical rules, which are especially fluid and
unpredictable. The formal stipulation of penalties is unhelpful, and
with the more precise definition of misconduct which is
recommended is unnecessary. Recommendation 35 of the Stobbs
Report was that for consistency, the Committee, in consultation with
the Commission and the Chief Justice, should prepare guidelines
setting out its policy on sentencing. It is recommended that
guidelines be prepared, with the qualification that these would be for
guidance merely, and not prescriptive (Recommendation 60).
454. Relationship with courts needs to be clarified. It is common
practice for there to be concurrent jurisdiction between professional
disciplinary bodies and the courts, with respect to the discipline of
legal practitioners. However, it would appear that better
communications are required between the Disciplinary Committee
and the judiciary. In particular, it is recommended that the judiciary
should be notified promptly of any advocate who has been
suspended from practice or struck off the Roll of Advocates, and that
those so suspended or struck off not be permitted to continue
practice through membership of a firm (Recommendation 61).
455. To render this more effective, and to enable the Law Society
to maintain the most up-to-date record of its membership, currently
practising advocates, and those who have been struck off – or
suspended – it is recommended that the Law Society acquire a
computer database to record this information (Recommendation 62).
456. It is also recommended that the prosecutorial powers of the
Law Society over those persons purporting to be advocates be
revived (Recommendation 63).
457. It is recommended that the powers of the Disciplinary
Committee be extended to include making orders for supervision of
practise by senior named advocate or advocates (Recommendation
64).
458. It is understood that a gazette notice will be published
containing the names of all those persons licensed to practice law.
This is an important initiative. However, additional efforts are
required. It is recommended that the names of advocates who have
been disbarred, or otherwise disciplined, should be published in a
manner accessible to the general public (Recommendation 65).
Rather than damage the reputation of the legal profession, this will
enhance the reputation of the profession as a whole for impartiality
and adherence to the highest ethical standards.
138
459. It is recommended that hearings should also be publicised in
the general press, to allow members of the public and of the news
media to be present if they so wish (Recommendation 66). It may be
rather a cliché, but justice not only needs to be done, but needs to be
seen to be done. The legal profession itself should lead in this regard.
It is a disservice to the profession to seek to avoid publicity; every
legal profession, in every country, has members who are guilty of
misconduct. The openness with which the prosecution and
punishment of these malefactors is conducted is a sure way to
persuade the general public that the legal profession is setting a high
standard. Criminal courts conduct their trials in public and the names
of the accused and publicised regardless of the possibility of
acquittal or a conviction being overturned on appeal.
460. Although The Law Society of Kenya has actively sought to
collect fines from convicted advocates, it is clear that further
recommended (Recommendation 67).
461. The Committee lacks complete autonomy especially in terms
of finance. The Committee has no autonomous fund. It can neither
collect funds nor hold any funds in trust for complainants before it.
Presently the members of the Committee receive attendance fees
from the Advocates Complaints Commission. It is recommended that
the Disciplinary Committee be assigned an independent budget and
dedicated staff (recommendation 68). This could be funded from a
percentage of practising fees of advocates.
462. The Committee is centralized in Nairobi and many advocates
and complainants find it difficult to get access to the Committee.
However, as with the Advocates Complaints Commission it is not
recommended that the Disciplinary Committee have more than one
base. However, it is recommended that the Disciplinary Committee
be able to travel on circuit and hear cases away from Nairobi
(recommendation 69).
463. It is recommended that Disciplinary Committee be renamed
the Advocates Disciplinary Tribunal (Recommendation 70). The
intention is to emphasise the relative importance of this body,
particularly in relation to the regional ethics committees, and its
judicial character.
139
IX THE REGIONAL ETHICS COMMITTEES AND THE
DISCIPLINARY COMMITTEE
9.1 Propose ways of harmonizing the work of the Advocates

regional ethics panels
464. The Law Society of Kenya in 2005 established Ethics
Committees (also known as regional ethics panels) throughout its
branch network to promote alternative dispute resolution without
necessarily resorting to the formal disciplinary process. Their
mandate extends to relatively complaints which are inherently
unsuitable for the formal disciplinary process. Significant gains have
been made from this innovative approach to complaints and
discipline, foremost among them being expeditious and convenient
resolution of disputes between advocates and clients.
465. The Branches represent the specific interests of members in
Kenya’s regions. The Branches consist of the Mount Kenya Law
Society, serving the Central and Eastern Provinces; the Mombasa
Law Society, serving Mombasa and its environs; the Malindi Law
Society serving the Malindi region; the Rift Valley Law Society,
serving the Rift Valley Province; the West Kenya Law Society,
serving the Western Provinces and Nyanza; and the North Rift
Valley Law Society.
466. Harmonizing the work of the Disciplinary Committee with
that of the regional ethics panels is dependent upon clarifying the
respective roles of each, and making both – but especially the
Disciplinary Committee – more effective. The Disciplinary
Committee is – or should be – primarily concerned with misconduct
offences rather than debt recovery. The ethics committees should be
concerned with resolving relatively low-level disputes, which will
often be concerned with financial matters.
467. International practice has recognised the value of alternative
dispute resolution, especially where there is a need for relatively
quick processes. However, to some degree alternative disputes
resolution, although widely used in the disciplinary arrangements of
legal professions, is found to be complementary to investigative
functions, and is not a substitute for disciplinary action. This is
because professional misconduct does not only harm the client –
indeed there may be no victim as such. It adversely affects public
perceptions of the profession. Thus like the general criminal law the
victim is in a sense a secondary consideration.
140
468. For the above reason the regional ethics committees can be
seen as complementary to formal disciplinary action. The members
of the committee must therefore be alert to the true “victim”, and not
allow their concern for the client or other complainant to obscure
their higher obligation. They are also complementary to the work of
the Advocates Complaints Commission, which is perhaps where
there is the greatest scope for overlap.
469. The relationship between the ethics panels and the Advocates
Complaints Commission needs to be clarified, since the latter also
has mediation functions.
470. It is recommended that the Ethics and Compliance
Committee should be composed of five members from each branch
of The Law Society of Kenya, and sit quarterly in on circuit in each
of the branches (Recommendation 71). Generally the committee
should sit in the provincial capital.
471. It is further recommended that the members of the Ethics and
Compliance Committee should be advocates of at least five years
standing, and that the conveners should be advocates of at least ten
years standing (Recommendation 72).
472. It is recommended elsewhere that the Advocates Complaints
management complexities of decentralisation, and that the
Commission is functioning efficiently. However, because this
renders the Commission less accessible to complainants it is
recommended that consideration be given to encouraging the
regional ethics panels to act as de facto agents of the Commission.
They could act as depositories for complaints, which would then be
passed to the Commission in Nairobi. But, perhaps more
importantly, they can provide in the provinces the type of mediation
and alternative dispute resolution function carried out in Nairobi by
the Commission (Recommendation 73). Formal complaints may still
be made direct to the Commission, or via the regional ethics
committees.
473. One of the difficulties facing the legal profession is
communications between lawyers, and between lawyers and the
public. This can be improved by giving the Law Society a more
active role. It is recommended that the responsibility of the ethics
committees should include handling disputes between advocates
(Recommendation 74). These may be enacted under the authority of
ss 4(1) and 81(1)(a) of the Advocates Act.
141
474. In order to strengthen the ethics committees and allow them
to operate in concert with the Advocates Complaints Commission, it
is recommended that rules of procedure for the committees be
adopted (Recommendation 75).
475. It is recommended that the regional ethics committees be
provided with simple information sheets, outlining for inquirers the
role of the committees, the Law Society, the Advocates Complaints
Commission and the Disciplinary Committee (Recommendation 76).
In particular, it should emphasise that the committees exist for
dispute resolution, and that the Advocates Complaints Commission
and the Disciplinary Committee are concerned with questions of
misconduct and inadequate professional services which are of a
more serious nature.
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X ADVOCATES’ PRACTICE RULES AND CODE OF CONDUCT
10.1 Review and propose amendments to the pending proposals for

the amendment of the advocates’ practice rules and code of
conduct to enhance the ethical conduct of advocates
476. As noted in the 2002 Stobbs Report, the present rules
governing the behaviour of advocates are to be found in a number of
different locations: the Advocates Act itself and in Rules made under
that Act; and in a guide to Conduct issued by The Law Society of
Kenya (Digest of Professional Conduct and Etiquette (2000)). That
Report recommended that the rules be reviewed. Proposals also
currently exist for amendment of the advocates’ practice rules and
code of conduct. This section is to review the Rules and to propose
amendments to the pending proposals. The key objective should be
to consolidate the rules, and to ensure that professional misconduct
is limited to breach of these rules and that any breach of the rules
does amount to professional misconduct rather than merely a
technical infringement.
10.1.1 Current Advocates’ Practice Rules and Code of Conduct

477. There are a number of sets of Rules enacted under the
Advocates Act. These include the Advocates (Practice) Rules. Other
Rules which are of relevant to professional ethics include the
Advocates (Accounts) Rules, the Advocates (Accountant’s
Certificate) Rules, the Advocate’s (Deposit Interest) Rules, the
Advocates (Practice) (Advertising) Rules 2001, and the Advocates
(Disciplinary Committee) Rules. There is also the Advocates
(Remuneration) Order. Virtually all the disciplinary offences in the
Advocates Act are also restated under the Advocates (Practice)
Rules.
478. Although this is in the form of subordinate legislation rather
than rules of the Law Society, it is recommended that the Law
Society provide all advocates with copies of the current Rules when
they are sent their next practising certificate, and that any
amendments are also sent, by the Law Society, to all advocates in
practise whenever these amendments are enacted (Recommendation
77).
479. The full text of the current Advocates (Practice) Rules are as
follows:
143
1. These Rules may be cited as the Advocates (Practice)
Rules.
2. No advocate may directly or indirectly apply for or seek

instructions for professional business, or do or permit in the
carrying on of his practice any act or thing which can be
reasonably regarded as touting or advertising or as
calculated to attract business unfairly. [apparently repealed
by the Advocates (Practice) (Advertising) Rules 2001 but
still included in the official copies of the Rules]
3. No advocate may hold himself out of or allow himself to

be held out directly or indirectly and whether or not by name
as being prepared to do professional business at less than the
scales laid down by the Advocates (Remuneration) Order for
the time being in force.
4. No advocate may agree to share with any person not being

an Advocate or other duly qualified legal agent practising in
another country his profit costs in respect of any business
whether contentious or non-contentious;
Provided always that –
(i) an advocate carrying on practice on his own account may

agree to pay an annuity or other sum out of profits to a retired
partner or predecessor or the dependants or legal personal
representative of a deceased partner or predecessor;
(ii) an advocate who has agreed in consideration of a salary

to do the legal work of an employer who is not an advocate
may agree with such employer to set off his profit costs,
received in respect of contentious business from the

opponents of such employer or the costs paid to him as the
advocate for employer by third parties in respect of non-
contentious business against –
(a) the salary so paid or payable to him, and
(b) the reasonable office expenses incurred by such employer

in connexion with such advocate (and to the extent of such
salary and expenses).
144
5. No advocate employed by an unqualified person shall
draw documents or render other legal service to his employer
for which fees are charged directly or indirectly by his
employer to any other person and retained by that employer.
6. (1) No advocate may join or act in association with any

organization or person (not being a practicing advocate)
whose business or any part of whose business is to make,
support or prosecute (whether by action or otherwise and
whether by an advocate or agent or otherwise) claims as a
result of death or personal injury, including claims under the
Workmen’s Compensation Act, in such circumstances that
such person or organization solicits or receives any payment,
gift or benefit in respect of such claims, nor may an advocate
act in respect of any such claim for any client introduced to
him by such person or organization.
(2) No advocate may with regard to any such claim

knowingly act for any client introduced or referred to him by
any person or organization whose connexion with such client
arises from solicitation in respect of the cause of any such
claim.
(3) It is the duty of an advocate to make reasonable inquiry

before accepting instructions in respect of any such claim for
the purpose of ascertaining whether the acceptance of such
instructions would involve a contravention of paragraph (1)
or (2).
7. (1) An advocate may .act for a client in a matter in which

he knows or has reason to believe that another advocate is
then acting for that client only with the consent of that other
advocate.
(2) An advocate may act for a client in a matter in which he

knows or has reason to believe that another advocate was
acting for that client, if either –
(a) that other advocate has refused to act further; or
(b) the client has withdrawn instructions from that other

advocate upon proper notice to him.
8. (1) Subject to specific agreement, an advocate who briefs,

instructs or consults another advocate is personally
responsible for the payment to such other advocate of his
145
proper professional remuneration in respect thereof.
(2) Subject to specific agreement, an advocate who consults,

instructs or calls as a witness any architect, engineer, doctor,
surgeon or other professional or technical person is
personally responsible for the payment to that person of his
proper remuneration in respect thereof.
9. No advocate may appear as such before any court or

tribunal to any matter in which he has reason to believe that
he may be required as a witness to give evidence, whether
verbally or by declaration or affidavit; and if, while
appearing in any matter, it becomes apparent that he will be
required as a witness to give evidence whether verbally or by
declaration or affidavit, he shall not continue to appear:
Provided that this rule does not prevent an advocate from

giving evidence whether verbally or by declaration or
affidavit on formal or non-contentious matter of fact in any
matter in which he acts or appears.
10. (1) No advocate may coach or permit the coaching of any

witness in the evidence he will or may give before any court,
tribunal or arbitrator.
(2) No advocate may call to give evidence before any court,

tribunal or arbitrator a witness whom he knows to have been
cached in the evidence he is to give without first informing
the court, tribunal or arbitrator of the full circumstances.
11. No advocate or firm of advocates shall, in connection

with the practice of the advocate or firm, cause or permit
himself or firm name to be described otherwise than as
“Advocate” or “Advocates”, as the case may be, whether by
means of printed headings on business notepaper or legal
forms, or by means of printed insertions therein, or by
writing or typescript or similar means on such notepaper or
forms, or on any name-plate, or in any public advertisement,
or m any other manner whatsoever:
Provided that –
(i) where an advocate, whether a member of a firm of

advocates or not, holds the office of Notary Public or
Commissioner for Oaths, he may add the words “Notary
Public” or “Commissioner for Oaths”, whichever is
146
appropriate, to the description “Advocates”, as the case may
be;
(ii) where more than one member of a firm of advocates

holds such office, the firm may add the words “Notaries
appropriate, to the description “Advocates”;
(iii) where an advocate, whether a member of a firm of

advocates or not, possesses an academic distinction, or a
professional qualification additional to that by virtue of
which he was as an advocate he may indicate, in the manner
and style commonly adopted, that he possesses such
distinction or qualification personally.
12. No advocate shall practise under any name other than his
own name or the name of a past or present member or
members of the firm.
13. No advocate may request in a letter of demand before

action payment from any person other than his client of any
costs chargeable by him to his client in respect of such
demand before action, or in respect of professional services
connected with the demand.
14. The Council of the Law Society of Kenya shall have

power to waive in writing any of the provisions of these
Rules in any particular case.
480. The specific provisions of these Rules will be discussed after

considering the Digest of Professional Conduct and Etiquette.
10.1.2 Digest of Professional Conduct and Etiquette

481. The Law Society of Kenya Digest of Professional Conduct
and Ethics (2000) is intended to give guidance to advocates
concerning their professional conduct and the etiquette of the
profession. It should be read in conjunction with the Advocates
(Practice) Rules, the Advocates (Accounts) Rules and the Advocates
Accountant’s Certificate) Rules.
147
482. Although these are “private” rules in that they are not formal
law (unlike the Advocates (Practice) Rules), they are a digest of
opinions of the Council of The Law Society of Kenya. As such they
are invaluable as a guide to what has been identified, in the past, as
good practice. In a few instances they also provide an indication of
the likely interpretation of the Advocates (Practice) Rules
themselves. They are, in this respect, a glossary on the Rules, though
most of the rules in the Digest range rather further than the
Advocates (Practice) Rules.
483. These opinions are valuable and the Law Society should be
encouraged to continue to update them as and when questions of
conduct and etiquette are brought to the attention of the Council of
the Law Society. As this is a digest of opinions it is not intended to
be comprehensive. The Rules – and especially the Advocates
(Practice) Rules – should however be both comprehensive and
reflect international good practice.
484. The Council of the Law Society of Kenya has proposed
Rules of Professional Practise Conduct and Etiquette, for enactment
pursuant to Section 83 of the Advocates Act (Chapter 16 Laws of
Kenya) with the approval of the Chief Justice. The Rules are as
follows:
LAW SOCIETY OF KENYA
RULES OF PROFESSIONAL PRACTISE CONDUCT

AND ETIQUETTE
The Council of the Law Society of Kenya for the better regulation
and conduct of Professional practice, conduct and discipline of the
members of the Law Society in the discharge of their duties as
Advocates pursuant to and by virtue of the authority conferred upon
it by Section 83 of the Advocates Act and with the approval of the
Chief Justice hereby makes the following Rules:
PART 1
148
UNPROFESSIONAL, DISHONOURABLE OR UNWORTHY
CONDUCT
The commission of any of the acts set out below by an Advocate

constitutes unprofessional, dishonourable or unworthy conduct
rendering an advocate found guilty of such conduct liable to the
disciplinary penalties of:-
(i) Striking off the role of Advocates

(ii) Suspension from practice
(iii) Admonition or
(iv) Fine
These are:-
(a) Touting.
(b) Advertising.
(c) Wilful contravention of any of the provisions of the

Advocates Act or the Advocates Practice Regulations or
other subsidiary legislation made thereunder.
(d) Withholding the payment of trust money without lawful

cause.
(e) Champerty.
(f) In any way assisting, allowing or enabling an unadmitted

person to charge, recover or receive any fee or derive any
remuneration in respect of or in connection with the
preparation or execution of any document or the performance
or any professional work which only an admitted person is
authorised by law to prepare, execute or perform or in any
way conniving at any arrangement or understanding
whatsoever whereby any such fee or remuneration shall be
charged, recovered or received by any such unadmitted
person.
(g) Opening or maintaining any office or branch which is not

under the continuous personal supervision of an advocate.
(h) Remunerating an employee who is an unadmitted person by

way of a share in the profits of the advocates practice.
149
(i) Tendering or offering in response to advertisement, circulars
or similar invitations, either directly or indirectly, for the
performance of any work or business proper to the calling of
an advocate or commonly associated therewith.
(j) Assisting any unadmitted person to recover charges for

services rendered by including such charges in any bill of
costs or memorandum of charges rendered by him as an
advocate without disclosing the facts in such bill or
memorandum.
(k) Allowing his name with any of his qualification as an

advocate to appear by way of advertisement or notification or
by way of information upon any business letterheads,
accounts or other documents whatsoever in conjunction with
the name of an unadmitted person so as to convey or be
likely to convey, the impression that he is associated in the
legal profession with that unadmitted person.
(l) Entering into or continuing to be a party to any contract or

arrangement with an unadmitted person, the effect of which
is to place the advocate under such control on the part of the
unadmitted person as may interfere with the Advocates
professional independence.
(m) Entering into or continuing to be a party to any contract or

partnership with or of employment by an unadmitted person,
the direct or indirect result of which is to enable the
unadmitted person to enjoy or participate in fees reserved
solely to an advocate or to secure for the advocate the benefit
of professional business solicited by the unadmitted person.
(n) Levying any charges or accepting any fee which is less than
the minimum charge or fee prescribed in the Remuneration
of Advocates Order.
(o) Failure to attend court without reasonable excuse including

failure to make adequate provisions for the representation of
an accused person whom the advocate has undertaken to
represent, during periods of the advocates absence.
(p) Overdrawing of a trust account.
(q) Failure to produce an Accountant’s Certificate (or Statutory

Declaration in lieu thereof) as required by the Advocates
(Accountant’s Certificate) Rules.
150
(r) Failure to reply promptly to correspondence.
(s) Issuing a cheque which is subsequently dishonoured for want

of sufficient funds in the account against which it is drawn.
(t) Failing to renew a practicing certificate while continuing to

practice.
(u) Encouraging publicity for oneself in a case in which the

advocates knows will be reported in the press.
(v) Failure to honour an undertaking given by the Advocate in

connection with his business as an Advocate.
(w) Commencing and continuing to act without instructions.
(x) Conviction by a court of competent jurisdiction on an offence

involving fraud, dishonesty, corruption in office or bribery.
(y) Insolvency – inability to pay once debts as they fall due.
(z) Failing to obey an order of the disciplinary committee.
PART II
ETIQUETTE AT THE BAR
For the guidance of its members, the Council of the Law Society
issues the following guidelines of the proper conduct and etiquette
expected of the members.
1. Duty of the Advocate to the Court.
(a) It is the duty of the Advocate to maintain towards the

Court respectful attitude, not for the sake of the
temporary incumbent of the judicial office, but for the
maintenance of its supreme importance. Judges, not
being wholly free to defend themselves, are
peculiarly entitled to receive the support of the Bar
against unjust criticism and clamour. Wherever there
is proper ground for serious complaint of a judicial
officer, it is the right and duty of the advocate to
submit his grievances to the proper authorities. In
such cases, but not otherwise, such charges should be
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encouraged and the person making them should be
protected.
(b) An Advocate should be punctual in all court

appearances and, whenever possible, should give
prompt notice to the Court requiring his tardiness or
absence.
(c) An advocate should make every reasonable effort to

prepare himself fully prior to court appearances. He
should promptly inform the court of any settlement,
whether partial or entire, with any party, or the
discontinuance of any issue.
(d) An advocate should see to it that all depositions and

other documents required to be filed are filed
promptly, should stipulate in advance with opposing
counsel to all non-controverted facts, should give the
opposing counsel on reasonable request, an
opportunity in advance to inspect all evidence of
which the law permits inspection and in general
should do everything possible to avoid delays and to
expedite the trial.
2. Relation with Judges
An advocate should never show marked attention or unusual

hospitality to a judge, uncalled for by the personal relations
of the parties. He should avoid anything calculated to gain or
having the appearance of gaining special personal
consideration or favour from a judge.
3. Conduct Towards Judges During Trial
(a) During the trial, the Advocate should always display a

dignified and respectful attitude towards the judge
presiding, not for the sake of his person, but for
maintenance of respect for and confidence in the
judicial office. It is both the right and duty of the
advocate fully and properly to present his client’s
case and to insist on an opportunity to do so. He
should vigorously present all proper arguments
against any ruling he deems erroneous and should see
to it that a complete and accurate case record is made.
In this regard, he should not be deterred by any fear
of judicial displeasure or even punishment. In no
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circumstances should the advocate reveal the
confidences of his client.
(b) Save where the opposing advocate fails or refuses to

attend and the judge is advised of the circumstances,
an advocate should not discuss a pending case with
any judge trying the case, unless the opposing
advocate is present.
(c) Except as provided by rule or order of court, an

advocate should never deliver to the judge any letter,
memorandum, brief or other written communication
without concurrently delivering a copy to the
opposing counsel.
(d) An advocate ought not to engage in the exchange or

banter, personalities, arguments or controversy with
opposing counsel. His comments, requests and
observations should in every case be addressed to the
judge presiding.
(e) Subject to the foregoing, an Advocate may submit to

the judge any reason for expediting or delaying the
decision.
4. Candour and Fairness
(a) The conduct of the advocate before the court and with
other advocates should be characterised by candour
and fairness and the Advocate should in court inform
the presiding judge of subsisting decided cases even
where the decision is against his client. The Advocate
is however entitled to distinguish any such case.
(b) It is not candid or fair for an Advocate knowingly to

misquote the contents of a paper, the testimony of a
witness, the language or the argument of opposing
counsel, or the language of a decision or a text-book
or with knowledge of its invalidity, to cite as
authority a decision that has been over-ruled, or a
statute that has been repealed or in argument to assert
as a fact that which has not been proved or in those
cases instances, where a side has the opening and
closing arguments to mislead his opponent by
concealing or withholding in his opening argument
positions upon which his side intends to rely.
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(c) It is unprofessional and dishonourable to deal other
than candidly with the facts in taking the statements
of witnesses in drawing affidavits and other
documents and in the presentation of causes.
(d) An advocate should not offer evidence which he

knows the court should reject, nor should he address
to the judge arguments upon any point not properly
calling for determination by him. An advocate should
not in any argument addressed to the court introduce
inadmissible remarks or statements likely to influence
the court or bystanders.
(e) An advocate must not promote a case which to his

own knowledge is false nor should he file a pleading
or other document which he knows to be false in
whole or in part, or which is intended to delay the
trial.
5. Courtroom Decorum
(a) An Advocate should rise when addressing or being

addressed by the judge.
(b) While the court is in session an Advocate should not

assume an undignified posture and should not without
the Judge’s permission, remove his wig and gown in
the courtroom. He should always be attired in a
proper and dignified manner and abstain from any
apparel or ornament calculated to attract attention to
himself.
6. Employment in Criminal Cases
(a) Every person accused of crime has a right to a fair

trial, including persons whose conduct, reputation or
alleged violations may be the subject of public
unpopularity or clamour. This places a duty of
service o the legal profession and, where particular
employment is declined the refusal of the brief or to
undertake a defence may not be justified merely on
account of belief in the guilt of the accused, or
repugnance towards him or to the crime or offence as
charged.
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(b) It is the paramount duty of defending counsel to
ensure that the accused person is never left
unrepresented at any stage of the trial. In any event
the advocate must notify the court and his client at the
earliest possible opportunity of his inability to attend
court. Advocates should contact the court either
personally or by telephone, or telegram if there is not
sufficient time for letters to reach the court.
(c) When an accused person is represented by two

advocates neither should absent himself other than for
a purely temporary period except for good reason and
then only if the consent of the instructing advocate, if
any, or the client is obtained.
(d) Where an accused is represented by only one

advocate that advocate must normally be present
throughout the trial and may only absent himself in
exceptional circumstances which he could not
reasonably have expected to foresee and provided:-
(a) he obtains the consent of the instructing

advocate, if any, or his client and
(b) another advocate takes his place who is well

informed about the case and is able to deal
with any questions which might reasonably be
expected to arise.
(e) Failure to attend court could amount to professional

misconduct and lead to disciplinary action.
7. Counsel Undertaking a Pauper Brief
An advocate assigned a pauper brief ought not to ask to be

excused for any trivial reason, and should always exert his
best effort in his behalf.
8. Conduct of Criminal Cases
(a) It is the duty of an advocate to undertake the defence

of a person accused of crime, regardless of his
personal opinion as to the guilt of the accused,
otherwise innocent persons, victims only of
suspicious circumstances, might be denied proper
defence. The advocate is bound by all fair and
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honourable means to present every defence that the
law of the land permits, to the end that no person may
be deprived of life or liberty, but through the due
process of law.
(b) A confidential disclosure or guilt alone does not

require a withdrawal from the case. However, after a
confidential disclosure of facts clearly and credibly
showing guilt, the advocate should not present any
evidence inconsistent with those facts. He should
never offer testimony which he knows to be false.
(c) The crime charged should not be attributed to another

identifiable person unless the evidence introduced or
inferences warranted therefrom raise at least a
reasonable suspicion of that person’s probable guilt.
(d) The primary duty of an advocate engaged in public
prosecution is not to convict but to see that justice is
done. The suppression of facts or the secreting of
witnesses capable of establishing the innocence of the
accused is unethical and savours of unprofessional
conduct.
9. Adverse Influences and Conflicting Interests
(a) It is the duty of an advocate at the time of accepting

the brief to disclose to the client all the circumstances
of his relations to the parties, and any interest in or
connection with the controversy, which might
influence the client in the selection of counsel.
(b) It is unprofessional conduct to represent conflicting

interests, except by express consent of all concerned
given after a full disclosure of the facts. Within the
meaning of this rule an advocate represents
conflicting interests when in respect of one client for
whom he presently contends the interest of that client
touch or concern confidences of another client to
whom the advocate at the same time owes a duty of
service.
10. Professional Colleagues and Conflicts of Opinion
(a) A client’s proffer of assistance of additional counsel

should not be regarded as evidence of want of
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confidence, but the matter should be left to the
determination of the client. An advocate should
decline association as colleague if it is objectionable
to the original counsel, but if the advocate first
retained is relieved, another may come into the case.
(b) When advocates jointly associated in a cause cannot

agree as to any matter vital to the interest of the
client, the conflict of opinion should be frankly stated
to the client for his final determination. His decision
should be accepted unless the nature of the difference
makes it impracticable for the advocate whose
judgement has been overruled to co-operate
effectively. In this event it is his duty to ask the client
to relieve him.
(c) Efforts direct or indirect in any way to encroach upon

the professional employment of another advocate are
unworthy of those who should be brethren at the Bar,
but nevertheless, it is the rift of any advocate without
fear or favour, in general to give proper advice to
those seeking against unfaithful, neglectful or dilatory
counsel, after communication with the advocate
whom the complaint is made.
(d) An advocate who hands over his brief to another must

make every endeavour to ensure that the brief is
handed over in reasonable time for his colleague to
acquire a grasp of the case.
(e) When an advocate is aware that a person is already

represented by another advocate in a particular matter
he shall not have any dealings with that person in the
same matter without giving prior notice to the other
advocate. An advocate accepting instructions in such
circumstances shall use his best endeavours to ensure
that all the fees due to the other advocate in the matter
are paid.
(f) Acting in a matter in which another advocate is acting

without first seeking his concurrence may amount to
professional misconduct.
11. Advising upon the merits of a clients cause
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An advocate should endeavour to obtain full knowledge of
his clients cause before advising therein, and he is bound to
give a candid opinion of the merits and probable result of
pending or contemplated litigation. The miscarriages to
which justice is subject, by reason of surprises and
disappointments in evidence and witnesses, and through
mistakes and errors of courts, even though only occasional,
admonish advocates to beware of bold and confident
assurances to clients, especially where the employment may
depend upon such assurance. Whenever the controversy will
admit of fair settlement, the client should be advised to avoid
or end the litigation.
12. Negotiations with Opposing Party
An advocate should not in any way communicate upon the

subject of controversy with a party represented by counsel
much less should he undertake to negotiate or compromise
the matter with him but should deal only with his counsel. It
is incumbent upon the advocate most particularly to avoid
everything that may tend to mislead a party not represented
by counsel, and he should not undertake to advise him as to
the law.
13. How far an advocate may go in supporting a client’s cause
(a) An advocate should not assert in argument his

personal belief in the integrity of his client or of his
witnesses or in the justice of his cause, as distinct
from a fair analysis of the evidence touching those
matters.
(b) An advocate owes a duty of entire devotion to the

interest of his client, warm zeal in the maintenance
and defence of the client’s rights and the exertion of
his utmost learning and ability, to the end that nothing
be taken or be withheld from him, save by the rules of
law, legally applied. No fear of judicial disfavour or
public unpopularity should restrain him from the full
discharge of his duty. In the judicial forum the client
is entitled to the benefit of every remedy and defence
that is authorised by the law of the land, and he is also
entitled to expect his advocate to assert every such
remedy or defence. It must, however, be borne in
mind that the great trust of the advocate is to be
performed within and not without the bounds of the
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law. The office of an advocate does not permit, much
less does it demand of him for any client, violation of
law or any manner of fraud or chicanery. He must
obey his own conscience and not that of his client.
14. Restraining clients from Improprieties
An advocate should use his best efforts to restrain and to

prevent his client from doing those things which the advocate
himself ought not to do, particularly with reference to the
client’s conduct towards courts, judicial officers, witnesses
and suitors. If a client persists in his action or conduct his
advocate should terminate their relationship.
15. I11-Feeling Between Advocate
(a) Clients not advocates, are the litigants. Whatever

may be the ill-feeling existing between clients, it
should not be allowed to influence counsel in their
conduct and demeanour toward each other or towards
suitors in the case.
(b) An advocate should adhere strictly to all express

promises to and agreements with opposing counsel,
whether oral or in writing, and should adhere in good
faith to all agreements implied by the circumstances
or by local custom. When he knows the identity of an
advocate representing an opposing party, he should
not take advantage of the advocate by causing any
default or dismissal to be entered without first
inquiring about the opposing advocates intention to
proceed. All personalities between counsel should be
scrupulously avoided. In the trial of a cause it is
unethical to allude to the personal history or the
personal peculiarities and idiosyncrasies of counsel
on the other side. Personal colloquies between
counsel which cause delay and promote unseemly
wrangling should also be carefully avoided.
16. Technical Advantage over counsel and enforcement of

agreements
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An advocate should not ignore known customs or practice of
the Bar or of a particular court, even when the law permits
without giving timely notice to the opposing counsel. As far
as possible, important agreements affecting the rights of
clients, should be reduced to writing, but it is dishonourable
to avoid performance of an agreement fairly made, merely
because it is not reduced to writing as required by rules of
court.
17. Right of an advocate to control the incidents of the trial
(a) The advocate is to be judge of incidental matters not

affecting the merits or operating to prejudice
substantially the rights of his client, and his client has
no right to demand that his advocate do or refrain
from doing anything repugnant to his advocate’s
sense of honour or propriety. In matters not directly
affecting the merits or operating to prejudice the
rights of the client his advocate may, to the exclusion
of his client, determine the accommodations to be
granted to opposing counsel.
(b) For the purposes of paragraph (a) above the

expression “incidental matters” embraces matters
such as fixing opposing counsel to trial while the
latter is afflicted in any way or bereaved, the fixing of
trial on a particular day convenient to opposing
counsel, or applying for or resisting adjournment
without reasonable cause.
18. Advocate as witness for clients
When an advocate knows, prior to trial, that he will be a

necessary witness, except as to merely formal matters such as
identification or custody of a document or the like, neither he
nor his firm should conduct the trial. If during the trial he
discovers that the ends of justice require his testimony, he
should, from that point on, if feasible and not prejudicial to
his client’s case leave further conduct of the trial to other
counsel. If circumstances do not permit withdrawal from the
conduct of the trial the advocate should not argue the
credibility of his own testimony.
19. Investigation of facts and production of witnesses, etc
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(a) An advocate should thoroughly investigate and
marshal the facts. Subject to the rule dealing with
communications with the opposite party, he may
properly interview any witness or prospective witness
for the opposing side in any civil or criminal action
without the consent of the opposing counsel or party.
He should avoid any suggestion calculated to induce
any witness to suppress evidence or deviate from the
truth. He should avoid taking any action calculated to
secrete a witness. However, except when legally
required, it is not his duty to take affirmative action to
disclose any evidence or the identity of any witness.
(b) An advocate should not participate in a bargain with a

witness either by contingent fee or otherwise as a
condition of his giving evidence, but this does not
preclude the payment of reasonable and non-
contingent compensation for actual loss of time and
expenses of persons who cannot afford to attend or
will not appear and testify for the statutory fees, nor
does it preclude payment of non-contingent fees to
expert witness.
(c) An advocate may advertise for witnesses to a

particular event or transaction but not for witnesses to
testify to a particular version thereof.
(d) An advocate should never be unfair or abusive or

inconsiderate to adverse witnesses or opposing
litigants, or ask any questions intended only to insult
or degrade the witness. He should never yield, in
these matters, to suggestions or demands of h is client
or allow any malevolence or prejudice of the client to
influence his actions.
20. Upholding the honour of the profession
Advocates should expose without fear or favour before the

proper tribunals corrupt or dishonest conduct in the
profession, and should accept without hesitation employment
against a member of the Bar who has wronged his client.
The counsel upon the trial of a cause in which perjury has
been committed owes it to the profession and to the public to
bring the matter to the knowledge of the prosecuting
authorities. The advocate should aid in guarding the Bar
against the admission to the profession of candidates who are
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unsuitable by reason of their moral character or insufficient
qualification. The advocate should strive at all times not
only to uphold the honour and to maintain the dignity of the
profession but also to improve the law and the administration
of justice.
21. Justification and Unjustifiable litigations
An advocate must decline to conduct a civil cause or to make

a defence when convinced that it is intended merely to harass
or injure the opposite party or to work oppression or wrong.
Otherwise it is his right and having accepted a retainer, it
then becomes his duty to insist upon the judgement of the
court as to the legal merits of his client’s claim. His
appearance in court should be deemed equivalent to an
assertion on his honour that in his opinion his client’s case is
one proper for judicial determination.
22. Responsibility for litigation
Counsel is bound to accept any brief in the courts in which

he professes to practice at a proper professional fee
dependent on the length and difficulty of the case, but special
circumstance may justify his refusal, at his discretion, to
accept a particular brief. Every advocate upon his own
responsibility must decide what causes he will bring into
court for plaintiffs and what cases he will contest in court for
defendants. His is the responsibility for advising as to
questionable defences. He cannot escape it by urging as an
excuse that he is only following his client’s instructions.
23. The advocate ultimate duty
Advocates are duty bound to uphold the law and no service

or advise ought to be rendered or given by them to clients,
corporate or individual, of any description or to any causes
whatsoever involving disloyalty to the law or bringing
disrespect upon the holder of any judicial office or involving
corruption of holders of any public office. Improper service
or advice in such circumstances as aforesaid is unethical and
merits strong condemnation as unprofessional conduct. On
the other hand, service or advice rendered or given that not
only accords with the letter of the law but also embraces
moral principle cannot be too highly commended. He must
also observe and advise his client to observe the statute law,
save that until a statute has been construed and interpreted by
162
competent adjudication, he is free and is entitled to advise as
to its validity and as to what he conscientiously believes to be
its just meaning and extent. Above all an advocate finds his
highest honour in a deserved reputation for fidelity to private
trust and to public duty as an honest man and as a patriotic
and loyal citizen.
24. Instigating litigation either directly or through agents etc
(a) It is unprofessional conduct for an advocate to proffer

advice to bring a lawsuit, except in rare cases where
ties of blood, relationship or trust may render it
necessary. Fomenting strife or instigating litigation is
unprofessional conduct.
(b) Other objectionable matters to be avoided by

advocates include:-
(i) searching of land titles for defects with a view

to employment in litigation
(ii) seeking out claimants in respect of personal

injuries and other causes of action as possible
clients
(iii) Engaging agents and others to follow up on

accidents with a view to employment in a
legal capacity by next-of-kins and others
(iv) offering rewards to persons likely by reason of

their own employment to be able to influence
legal work in favour of a particular advocate.
It is in the interest of the profession generally that any such

cases should be reported to the council for disciplinary
action.
25. Confidence of a client
(a) It is the duty of an advocate to preserve his client’s

confidence. This duty outlasts the lawyer’s
employment, and extends as well to his employees.
None of them should accept employment which
involves or may involve the disclosure or use of these
confidences, either for the private advantage of an
advocate or his employees or to the disadvantage of
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the client without the client’s knowledge and consent,
and eve though there are other available sources of
such information. An advocate should not continue
employment when he discovers that this obligation
prevents the performance of his full duty to his
former or his new client.
(b) If an advocate is accused by his client, he is not

precluded from disclosing the truth in respect to the
accusation. The announced intention of a client to
commit a crime is not included within the
confidences which he is bound to respect. He may
properly make such disclosures as may be necessary
to prevent the act or protect those against whom it is
threatened.
26. Newspaper comment on pending litigation, etc
Newspaper comment by an advocate on pending or

anticipated litigation may interfere with a fair trial in the
courts and otherwise prejudice the due administration of
justice. It is to be avoided save in exceptional circumstances.
A particular case may possibly justify a statement to the
public, but it is unprofessional to make it anonymously. An
expert reference to the facts should not go beyond quotation
from the records and papers on the court file, and is better
avoided entirely.
27. Discovery of imposition and deception
When an advocate discovers that some fraud or deception has

been practised to the detriment of the court or a party he
should make every effort to rectify it, at first by advising his
client and if his client refuses to forego the advantage thus
unjustly gained, he should promptly inform the injured
person or his counsel so that they may take appropriate steps.
28. Withdrawal from employment
The right of an advocate to withdraw from employment, once

assumed, arises only from good cause. Even the desire or
consent of the client is not always sufficient. The advocate
should not throw up the unfinished task to the detriment of
his client, except for reasons of honour or self-respect. If the
client insists upon an unjust or immoral course in the conduct
of his case, or if he persists over the advocates remonstrance
164
in presenting frivolous defences, or if he deliberately
disregards an agreement or obligation as to fees or expenses,
the advocate may be warranted in withdrawing on due notice
to the client allowing him time to employ another advocate,
so also when an advocate discovers that his client has no case
and the client is determined to continue it, or even if the
advocate finds himself incapable of conducting the case
effectively. Other instances as they arise may justify
withdrawal. Upon withdrawing from a case after a retainer
has been paid, the advocate should refund such part of the
retainer as has not been clearly earned.
29. Engaging in Business
No Advocate may practise as an advocate and be engaged in

any trade or business which the council may declare to be
incompatible with practice as an advocate or tending to
undermine the high-standing of the profession.
30. Extraneous Activities
Before engaging in other professions or businesses, there are

two tests to be satisfied. First, the profession or business
must be an honourable one that does not detract from status
as an advocate. Secondly, it must not be calculated to attract
business to the advocate unfairly, which would be in breach
of the Advocates (practice) Rules.
31. Salaried Employment
(a) Subject to what follows, there is no objection to an

advocate agreeing to do legal work for an employer in
consideration of a fixed annual salary.
(b) Provided that his employer allows it, he may also

accept instructions from other clients.
(c) Such an advocate must comply with the Advocates

(Accounts) Rules and the Advocates (Practice) Rules,
(d) Such an advocate must ensure that his employer

neither directly nor indirectly advertises his services,
and in particular does not recommend him to fellow-
employees.
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(e) The advocate must satisfy himself that any
recommendation by the employer was made only at
the express request of the intending client, and that he
must explain that the employee is free to instruct any
advocate of his choice or such advocate whom he
may wish to instruct. Only on being satisfied that
there is not, would the advocate be justified in
accepting instructions.
(f) In no circumstances may an employee advocate allow

his employer to receive any part of any profit costs he
may earn acting for clients other than the employer.
(g) As regards the employer’s legal work, the position is

regulated by rule 4, proviso (ii) of the Advocates
(practice) Rules. The employed advocate can only set
off the costs of contentious and non-contentious work
done by him for his employer to the extent of his
salary and reasonable office expenses. In other
words, any amount by which the total fees exceed the
advocate’s salary and office expenses must be paid to
him by the employer.
(h) No employed advocate can comply with proviso (i) to
Rule 46 of the Advocates (Practice) Rules unless he
keeps a bills delivery book showing the full profit
costs of all works done for the employer, and there is
an annual accounting with his employer in terms of
the proviso.
(i) An employed advocate who is also a Commissioner

for Oaths cannot, of course, administer an oath when
he has drawn the document.
(j) It is improper for such an advocate to administer an

oath to any official of his employer in respect of that
official’s duties.
(k) As a general rule an advocate whilst a servant or in

salaried employment of any kind other than those
specifically exempted by an Act of Parliament should
not appear as an advocate in the High Court or the
Court of Appeal. The following shall not be deemed
to constitute an advocate, a servant or in salaried
employment.
166
(i) the receipt of fees as a director of a limited
liability company, provided that the recipient
of such fees shall not appear as an advocate
for his company.
(ii) employment as a legal officer in any

Government Department.
(iii) part-time employment as a lecturer.
(l) Advocates holding full-time legal appointments with

local government authorities, parastatals or statutory
corporations may appear in court as counsel as behalf
of their employers provided they have a current
practising certificate.
(m) A non-practising advocate in full time salaried

employment may represent his employing authority
or body as an officer or agent in cases where the
authority or body concerned is permitted to appear by
an officer or agent and in such cases robes should not
be worn.
(n) An officer in the Armed Forces who is also an

advocate is not precluded by reason of his being an
advocate from discharging as an officer any duties
which may devolve upon him as such and may
therefore appear at a court martial, provided he does
so in his capacity as an officer and not as an advocate.
32. Calling at a client’s house or place of business
Except in special circumstances or for some other urgent

reason preventing his client from coming to his chambers an
advocate shall not call at a clients house or place of business
for the purpose of giving advice to or taking instructions
from the client.
33. Advertising, Touting and Publicity
(a) It is contrary to professional etiquette for an advocate

to solicit professional employment by circulars,
advertisements, through touts or by personal
communication or interviews. Indirect
advertisements for professional employment such as
furnishing or inspiring newspaper comments or
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procuring his photograph to be published in
connection with causes in which the Advocate has
been or is engaged or concerning the manner of their
conduct, the magnitude of the interest involved, the
importance, of the advocate’s position and all other
like self-aggrandizement, offend the traditions and
lower the dignity of the profession and are
reprehensible but, the customary use of simple
professional cards is not improper.
(b) Publication in reputable law lists, in a manner

consistent with the standards of conduct imposed by
the rules of brief biographical and informative data is
permissible. Such data must not be misleading and
may include only a statement of the advocates name
and the names of his professional associate, address,
telephone and telex numbers, cable addresses, date
and place of birth and admission to the Bar, schools
attended, with dates of graduation, degrees and other
educational distinction, public or quasi-public offices,
posts of honour, legal authorship, legal teaching
positions, memberships and offices in the council of
the Law Society and committed thereof, and positions
in legal and scientific societies.
(c) An advocate may:
(i) Send to his own clients notice of a change of

address or telephone number.
(ii) Cause his qualifications to appear on his note

paper and visiting cards.
(iii) Have the word advocate written after his

name, displayed at the entrance, or outside
any building where his offices are situated, so
long as any sign or notice containing those
words shall be of reasonable size and of sober
design.
34. Scope of the Prohibition of Advertisement
An advocate may not:-
(a) lend his name together with a description advocate,

Banister-at-Law, Barrister , Barrister & Solicitor,
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Solicitor or Lawyer for use in any commercial
advertisement except as provided by these rules.
(b) insert in any newspapers, periodical or any other

publication and advertisement offering as an advocate
to undertake confidential enquiries.
(c) write for publication or give an interview to the press

or otherwise cause or permit to be published, except
in a legal periodical, any particulars of his practice or
earnings in the profession or of cases pending in the
court or cases where the time for appeal has not
expired on any matter in which he has been engaged
as an advocate.
(d) save as a member of a group permitted by the council

to do so answer questions on legal subjects in the
press or any periodical or in a wireless or television
broadcast where his name or initials are directly or
indirectly disclosed or likely to be disclosed.
(e) take steps to procure the publication of his

photograph as an advocate in the press or any
periodical.
(f) wear advocates robes on any occasion other than in

court or as may be directed by the council.
35. Newspapers and Periodicals
An advocate may with propriety write articles for publication

in which he gives information upon the law but he should not
accept employment from such publications to advise
inquiries in respect to their individual rights.
36. Notice to Local Lawyers
An advocate available to act as an associate of other

advocates in a particular branch of the law or legal service
may send to local advocates only and publish in his local
legal journal, a brief and dignified announcement of his
availability to serve other advocates in connection therewith.
The announcements should be in a form which does not
constitute a statement or representation of special experience
or expertness.
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37. Aiding the unauthorised practice of law
No advocate shall permit his professional services or his

name to be used in aiding of, or to make possible, the
unauthorised practice of law by any unadmitted person
whether individual or corporate.
38. Equality of members
Subject to the rules relating to precedence all advocates are

equal. This principle involves the explanation that no
advocate irrespective of his rank or title shall regard himself
as superior or inferior to any other advocate.
39. Retirement from judicial position or public employment
(a) An advocate should not accept employment as an

advocate in any matter upon the merits of which he
has previously acted in a judicial capacity.
(b) An advocate having once held public office or having

been in the public employ should not after his
retirement accept employment in connection with any
matter which he has advised on or dealt with while in
such office or employ.
40. Retainers
(a) Advocates may accept general or special retainers. A

general retainer binds the advocate accepting it not to
advise in or appear in any proceedings detrimental to
the interests of the client paying the retainer during
the period of the retainer. A special retainer implies
an undertaking by the advocate that he will not accept
any instructions in any matter forming the subject
matter of the retainer which will involve advising or
acting against the interests of the special retainer
client. The giving of a retainer whether special or
general confers no authority on the advocate
accepting the same. A brief must be delivered in
order to authorise him to take any step in the
proceedings or he must be specifically instructed.
(b) An advocate shall not accept instructions from a

client on terms that a particular class of case shall be
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done at a fixed fee in each case irrespective of the
circumstances of such case.
41. Acquiring interest in litigation
An advocate should never purchase or otherwise acquire

directly or indirectly any interest in the subject matter of the
litigation which he is conducting but nothing herein shall
prohibit a just and reasonable agreement on fees contract.
42. Expense
An advocate may not properly agree with a client that the

advocate shall pay or bear the expenses of litigation although
he may in good faith advance expenses as a matter of
convenience but subject to reimbursement.
43. Fixing the amount of the fee
(a) In fixing fees, an advocate should avoid charges

which over-estimate his advice and services, as well
as those which undervalue them. A client’s ability to
pay cannot justify a charge in excess of the value of
the service, though his poverty may require a less
charge, or even none at all. The reasonable requests
of brother advocates, and of their widows and
orphans without ample means, should receive special
and kindly consideration.
(b) In determining the amount of the fee, it is proper to

consider:-
(i) the time and labour required, the novelty and

difficulty or the questions involved and the
skill requisite properly to conduct the cause.
(ii) whether the acceptance of employment in the

particular case will preclude the advocate
appearance for others in cases likely to arise
out of the transaction, and in which there is a
reasonable expectation that otherwise he
would be employed.
(iii) whether the acceptance of the employment

will involve the loss of other employment
while employed in the particular case or
antagonisms with other clients.
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(iv) the customary charges of the profession for
similar services.
(v) the amount involved in the controversy and

the benefits resulting to the client from the
services.
(vi) the contingency or the certainty of the
compensation and
(vii) the character of the employment, whether

casual or for an established and constant
client.
No one of these considerations in itself is controlling. They

are mere guides in ascertaining the real value of the service.
(c) In determining the customary charges of the

profession for similar services, it is proper for an
advocate to consider the scale of remuneration set out
by the Remuneration of Advocates Order.
(d) In fixing fees it should never be forgotten that the

profession is a branch of the administration of justice
and not a merely money-getting trade.
44. Division of fees
No division of fees for legal services is proper, except with

another advocate, based upon a division of service or
responsibility.
45. Compensation, Commissions and Rebates
An advocate should accept no compensation, commissions,

rebates or other advantages from other without the
knowledge and consent of his client after full disclosure.
46. Suing clients for professional fees
Controversies with clients concerning remuneration are to be

avoided by the advocate so far as shall be compatible with
his self respect and with his right to receive reasonable
recompense for his services and lawsuits with clients should
be resorted to only to prevent injustice, imposition or fraud.
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47. Intermediaries
(a) The professional services of an advocate should not

be controlled or exploited by any lay agency, personal
or corporate which intervenes between client and the
advocates. An advocate’s responsibilities and
qualifications are individual. He should avoid all
relations which direct the performance of his duties
by or in the interest of such intermediary. An
advocate’s relation to his client should be personal
and responsibility should be direct to the client.
Charitable societies rendering aid to the indigent or
the legal aid department or agency are not deemed
such intermediaries.
(b) An advocate may accept employment from any

organisation, such as association, club or trade
organisation, to render service in any matter in which
the organisation, as an entity is interested, but his
employment should not include the rendering of legal
services to the members of such an organisation in
respect of their individual affairs.
48. Dealing with Trust Property
(a) The lawyer should refrain from any action whereby

for his personal benefit or gain he abuses or takes
advantage of the confidences reposed in him by his
client.
(b) Money of the client or collected for the client or other

trust property coming to the possession of the lawyer
should be reported and accounted for promptly, and
should not under any circumstances be commingled
with his own or be used by him. The overdrawing of
a trust account is professional misconduct.
49. Partnership
(a) Advocates may practise their profession in

partnership with others. They must, however, have
regard to the following considerations.
(i) In the formation of partnerships and the use of

partnerships names, care should be taken not
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to violate any law, custom, or rule of court
locally applicable. Care should be taken to
avoid any misleading name or representation
which would create a false impression as to
the professional position of the members.
(ii) It is undesirable for firms to practise under

any name other than that of a past or present
member or members.
(iii) The continued use of the name of a deceased

or former partner is not unethical but care
should be taken that no imposition or
deception is practised through this continued
use.
(iv) When a partner in a firm has been appointed

to the judiciary, there is no objection to the
retention of the firm name by the remaining
partners.
(v) In the formation of the partnership for the

practice of law, no person should be admitted
or held out as a practitioner or member who is
not an advocate duly authorised to practise
and amenable to professional discipline. In
the selection and use of a name for a
partnership, false, misleading, assumed or
trade names are to be avoided.
(c) Partnerships between advocate and members of other

professions or non-professional persons should not be
formed permitted where any part of the partnership’s
employment consists of the practice of law.
(d) An advocate practising on his own account should not

hold himself out as a partner in a firm of advocates by
using a firm’s name, for example, by using the name
“A, B. & Co.” which suggests that he is in a
partnership with others.
50. Practising Fees
(a) Advocates are expected to pay the annual practising

fees not later than 31st January, in every year, but in
the case of lawyers who are first enrolled in any
174
particular year, the fees should be paid within one
month of the enrolment.
(b) It is unprofessional conduct for any lawyer in any

court or before any tribunal to claim that he has paid
his annual practising fees when he is in fact in
default.
(c) An advocate is entitled to refuse to take part in the

hearing of a suit or other matter where the advocate
knows that the opposing counsel is in default of
payment of the annual subscription.
(d) It is professional misconduct to carry on the business

of an advocate while aware that his annual
subscriptions are in arrears.
485. As can be seen these rules are more comprehensive than the
Advocates (Practice) Rules, and also bear some resemblance to the
Digest of Professional Conduct and Etiquette, which they would
presumably replace. The Rules of Professional Practise Conduct and
Etiquette would, however, be formally enforceable in a way that the
current Digest of Professional Conduct and Etiquette is not.
486. It will be noted, however, that the distinction between

enforceable rules, and guidelines, is not clearly established in this
proposal, and this aspect would require revision if it were decided to
proceed with adopting these Rules as subordinate legislation. They
would also require revision in light of the recommendations that
professional misconduct and inadequate professional services may
need to be defined more precisely (Recommendation 9), and that the
Disciplinary Committee, in consultation with the Advocates
Complaints Commission and the Chief Justice, should prepare
guidelines setting out its policy on sentencing (Recommendation
59).
10.1.3 Proposed amendments to the Advocates’ Practice Rules and

Code of Conduct
487. The Rules of Professional Practise Conduct and Etiquette
could be adopted to replace the Advocates (Practice) Rules. But
before considering that option, certain detailed recommendations for
amendments to the Advocates (Practice) Rules are offered.
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488. The Advocates (Practice) Rules are comparatively brief, with
14 rules – 12 of them substantive rules. It is recommended that
consideration be given to consolidating the Advocates (Accounts)
contemporary good practice (Recommendation 78).
489. Rule 14 provides that “The Council of the Law Society of
Kenya shall have power to waive in writing any of the provisions of
these Rules in any particular case”. It is recommended that this be
qualified (Recommendation 79). The Advocates (Practice) Rules are
subordinate legislation, and it is not good practice to confer on a
body, private or public, power to exempt individuals from the
operation of the law. Clearly there may be instances where
exemptions are appropriate; however these should be limited.
490. It is recommended that this rule be amended to read “The
Council of the Law Society of Kenya shall have power to waive in
writing any of the provisions of these Rules in any particular
exceptional case where it is just and proper to do so”
491. The current code of ethics has been described as “woefully
sketchy and inadequate …” and as “not comprehensively deal[ing]
with modern day problems of practice”.199 They should be expanded
in scope, ideally borrowing from international examples of good
practice as well as from the existing Law Society of Kenya Digest of
Professional Conduct and Ethics.
492. If the Advocates (Practice) Rules are to be retained and
altered, rather than replaced (as by the proposed Rules of
Professional Practise Conduct and Etiquette), it is recommended that
certain general ethical requirements be included in the Advocates
(Practice) Rules (Recommendation 81). The International Code of
Ethics of the International Bar Association is a suitable model. This
Code is a re-statement of much of what is to be found in national
codes of ethics and is a guide as to what the International Bar
Association considers to be a desirable course of conduct by all
lawyers.
493. It is suggested that the International Code of Ethics should be
incorporated into the Advocates (Practice) Rules as far as possible,
199
Rautta Athiambo, “Professional Ethics and the Legal Profession: A
Presentation prepared for the CLE Induction Programme, Nairobi, 14
February 2004”.
176
and be in addition to the twelve current substantive rules. They
would constitute the bare minimum standard for an ethics code.
However, consideration should be given to a more comprehensive
revision of the Advocates (Practice) Rules, as, for instance, the
adoption of the Rules of Professional Practise Conduct and Etiquette
as modified to incorporate the International Code of Ethics.
494. The following is a consolidation of the Advocates (Practice)
Rules and the rules borrowed and modified from the International
Code of Ethics of the International Bar Association, with certain
additional rules to make the code more comprehensive. Some of
these rules are taken from codes of ethics in Tanzania and Uganda,
where relevant and appropriate. It is also renamed:
1. These Rules may be cited as the Advocates (Code of

Ethical Practice) Rules.
2. Advocates shall at all times maintain the honour and

dignity of their profession. They shall, in practice as well as
in private life, abstain from any behaviour which may tend to
discredit the profession of which they are members.
3. Advocates shall preserve independence in the discharge of
their professional duty. Advocates practising on their own
account or in partnership shall not engage in any other
business or occupation if by doing so they may cease to be
independent.
4. In the interests of the administration of justice, the
overriding duty of an advocate acting in litigation is to the
court or the tribunal concerned. Subject to this, the advocate
has a duty to act in the best interests of the client.
5. Advocate shall not, while the holder of a practising
certificate, engage in a business or professional activity other
than the practice of law unless the business or professional
activity:
(i) will not detract or have the potential to detract from the
standards of independence and professionalism a client is
entitled to expect from an advocate;
(ii) does not have nor has the potential to have a harmful
effect on the privilege or confidentiality attaching to
communications between an advocate and a client; and
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(iii) would not of itself have the potential to create a conflict
of interest on the part of an advocate.
6. No advocate may agree to share with any person not being
an Advocate or other duly qualified legal agent practising in
another country his profit costs in respect of any business
whether contentious or non-contentious;
Provided always that –
(i) an advocate carrying on practice on his own account may

agree to pay an annuity or other sum out of profits to a retired
partner or predecessor or the dependants or legal personal
representative of a deceased partner or predecessor;
(ii) an advocate who has agreed in consideration of a salary

to do the legal work of an employer who is not an advocate
may agree with such employer to set off his profit costs,
received in respect of contentious business from the

opponents of such employer or the costs paid to him as the
advocate for employer by third parties in respect of non-
contentious business against –
(a) the salary so paid or payable to him, and
(b) the reasonable office expenses incurred by such employer

in connexion with such advocate (and to the extent of such
salary and expenses).
7. Advocates shall treat their professional colleagues with the

utmost courtesy and fairness.
8. An advocate must promote and maintain proper standards
of professionalism in relations with other advocates.
9. Subject always to the rights and duties pertaining to
advocate and client privilege there is generally an obligation
on every advocate who has grounds to suspect defalcations or
other improper acts by another advocate to make a
confidential report at the earliest possible time to the
Chairman or the Council of The Law Society of Kenya.
10. An advocate, when acting for a client in a matter where
the other party is acting in person, should treat the other party
with courtesy and fairness.
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11. Every advocate has a professional duty to honour an
undertaking, written or oral, given in the course of legal
proceedings or in the course of practice; and this rule applies
whether the undertaking is given by the advocate personally
or by a partner or employee in the course of the practice.
12. Advertisements to or any other communications with any
person relating to the services of an advocate or of a firm of
advocates must be consistent with the maintenance of proper
professional standards. In offering services direct to members
of the public other than by normal advertising channels, an
advocate must ensure that approaches to persons who are not
existing clients, are made in a manner which does not bring
the profession into disrepute. Approaches must be made in
accordance with proper professional standards and not in a
way that is intrusive, offensive, or inappropriate.
13. No advocate may hold himself out of or allow himself to

be held out directly or indirectly and whether or not by name
as being prepared to do professional business at less than the
scales laid down by the Advocates (Remuneration) Order for
the time being in force.
14. No advocate employed by an unqualified person shall

draw documents or render other legal service to his employer
for which fees
are charged directly or indirectly by his employer to any
other person
and retained by that employer.
15.(1) No advocate may join or act in association with any

organization or person (not being a practicing advocate)
whose business or any part of whose business is to make,
support or prosecute (whether by action or otherwise and
whether by an advocate or agent or otherwise) claims as a
result of death or personal injury, including claims under the
Workmen’s Compensation Act, in such circumstances that
such person or organization solicits or receives any payment,
gift or benefit in respect of such claims, nor may an advocate
act in respect of any such claim for any client introduced to
him by such person or organization.
(2) No advocate may with regard to any such claim

knowingly act for any client introduced or referred to him by
any person or organization whose connection with such client
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arises from solicitation in respect of the cause of any such
claim.
(3) It is the duty of an advocate to make reasonable inquiry

before accepting instructions in respect of any such claim for
the purpose of ascertaining whether the acceptance of such
instructions would involve a contravention of paragraph (1)
or (2).
16. No advocate or firm of advocates shall, in connection

with the practice of the advocate or firm, cause or permit
himself or firm name to be described otherwise than as
“Advocate” or “Advocates”, as the case may be, whether by
means of printed headings on business notepaper or legal
forms, or by means of printed insertions therein, or by
writing or typescript or similar means on such notepaper or
forms, or on any name-plate, or in any public advertisement,
or m any other manner whatsoever:
Provided that –
(i) where an advocate, whether a member of a firm of

advocates or not, holds the office of Notary Public or
Commissioner for Oaths, he may add the words “Notary
appropriate, to the description “Advocates”, as the case may
be;
(ii) where more than one member of a firm of advocates

holds such office, the firm may add the words “Notaries
appropriate, to the description “Advocates”;
(iii) where an advocate, whether a member of a firm of

advocates or not, possesses an academic distinction, or a
professional qualification additional to that by virtue of
which he was as an advocate he may indicate, in the manner
and style commonly adopted, that he possesses such
distinction or qualification personally.
17. No advocate shall practise under any name other than his
own name or the name of a past or present member or
members of the firm.
18. No advocate may request in a letter of demand before

action payment from any person other than his client of any
costs chargeable by him to his client in respect of such
180
demand before action, or in respect of professional services
connected with the demand.
19. The relationship between advocate and client is one of

confidence and trust, which must never be abused.
20. An advocate as a professional person must be available to

the public and must not, without good cause, refuse to accept
instructions for services within the advocate’s fields of
practice from any particular client or prospective client.
21. It is improper for advocates to accept a case unless they

can handle it promptly and with due competence, without
undue interference by the pressure of other work.
22. An advocate must not act for a client against a former

client of the advocate when, through prior knowledge of the
former client or of his or her affairs which may be relevant to
the matter, to so act would be or would have the potential to
be to the detriment of the former client or could reasonably
be expected to be objectionable to the former client.
23. An advocate shall not exploit the inexperience, lack of

understanding, illiteracy or other personal shortcomings of a
client for his personal benefit or for the benefit of any other
person.
24. Every advocate shall, in all contentious matters, either

appear in Court personally or brief a partner or a professional
assistant employed by his firm to appear on behalf of his
client.
25. An advocate shall be personally responsible for work

undertaken on behalf of a client and shall supervise or make
arrangements for supervision by another advocate who is a
member of the same firm of all work undertaken by non-
professional employees.
26. It shall be considered improper for advocates to
communicate about a particular case directly with any person
whom they know to be represented in that case by another
advocate without the latter’s consent.
27. A client has an unequivocal right to change from one
advocate to another.
181
28. Except where the law or custom otherwise requires, any
oral or written communication between advocates shall in
principle be accorded a confidential character, unless certain
promises or acknowledgements are made therein on behalf of
a client.
29. An advocate should never consent to handle a case
unless: (a) the client gives direct instructions, or (b) the case
is assigned by a competent body or forwarded by another
advocate, or (c) instructions are given in any other manner
permissible under the relevant rules or regulations.
30. Advocates shall at all times give clients a candid opinion
on any case. They shall render assistance with scrupulous
care and diligence. This applies also if they are assigned as
counsel for an indigent person. Advocates should only
withdraw from a case during its course for good cause, and if
possible in such a manner that the client’s interests are not
adversely affected. The loyal defence of a client’s case may
never cause advocates to be other than perfectly candid,
subject to any right or privilege to the contrary which clients
choose them to exercise, or knowingly go against any law.
31. Advocates shall, when in the client’s interest, endeavour
to reach a solution by settlement out of court rather than start
legal proceedings. Advocates should never stir up litigation.
32. An advocate must make all reasonable efforts to ensure
that legal processes are used for their proper purposes only
and that their use is not likely to cause unnecessary
embarrassment, distress or inconvenience to another person’s
reputation, interests or occupation.
33. Advocates should not acquire a financial interest in the
subject matter of a case which they are conducting. Neither
should they, directly or indirectly, acquire property about
which litigation is pending before the Court in which they
practice.
34. Advocates should never represent conflicting interests in
litigation. In non-litigation matters advocates should do so
only after having disclosed all conflicts or possible conflicts
of interest to all parties concerned and only with their
consent. This Rule also applies to all advocates in a firm.
35. Advocates should never disclose, unless lawfully ordered
to do so by the Court or as required by statute, what has been
communicated to them in their capacity as advocates even
182
after they have ceased to be the client’s counsel. This duty
extends to their partners, to junior advocates assisting them
and to their employees.
36. An advocate may not, without the specific consent of a
client, give any interview or make any public statement
relating to the client or the affairs of the client, whether or
not the client is involved in a matter of public knowledge.
37. In pecuniary matters advocates shall be most punctual
and diligent. They should never mingle funds of others with
their own and they should at all times be able to refund
money they hold for others. They shall not retain money they
receive for their clients for longer than is absolutely
necessary.
38. Advocates may require that a deposit is made to cover
their expenses, but the deposit should be in accordance with
the estimated amount of their charges and the probable
expenses and labour required.
39. No advocate may appear as such before any court or
tribunal to any matter in which he has reason to believe that
he may be required as a witness to give evidence, whether
verbally or by declaration or affidavit; and if, while
appearing in any matter, it becomes apparent that he will be
required as a witness to give evidence whether verbally or by
declaration or affidavit, he shall not continue to appear:
Provided that this rule does not prevent an advocate from
giving evidence whether verbally or by declaration or
affidavit on formal or non-contentious matter of fact in any
matter in which he acts or appears.
40.(1) No advocate may coach or permit the coaching of any

witness in the evidence he will or may give before any court,
tribunal or arbitrator.
(2) No advocate may call to give evidence before any court,

tribunal or arbitrator a witness whom he knows to have been
cached in the evidence he is to give without first informing
the court, tribunal or arbitrator of the full circumstances.
41. An advocate shall not include in any affidavit any matter

which he knows or has reason to believe is false.
183
42. If any advocate becomes aware that any person has,
before the Court, sworn a false affidavit or given false
evidence, he shall inform the Court of his discovery.
43. An advocate conducting a case or matter shall not allow a
Court to be misled by remaining silent about a matter within
his knowledge which a reasonable person would realise, if
made known to the Court, would affect its proceedings,
decision or judgment.
44. An advocate shall not, in order to benefit his client’s case
in any way, intimidate or otherwise induce a witness who he
knows has been or is likely to be called by the opposite party
or cause such a witness to be so intimidated or induced from
departing from the truth or abstaining from giving evidence.
45. An advocate shall not knowingly fail to discover a
relevant document.
46. An advocate must exercise care in court about naming
persons not involved in the proceeding, and must refrain
particularly from making scandalous or unnecessary
allegations against such persons.
47. An advocate must not attack a person’s reputation
without good cause.
48. Advocates shall always maintain due respect towards the
Court. Advocates shall without fear defend the interests of
their clients and without regard to any unpleasant
consequences to themselves or any other person. Advocates
shall never knowingly give the Court incorrect information,
or advice which is to their knowledge contrary to the law.
49. Advocates shall never forget that they should put first not
only their right to compensation for their services, but the
interests of their clients and the exigencies of the
administration of justice. The advocate’s right to ask for a
deposit or to demand payment of out-of-pocket expenses and
commitments, failing payment of which they may withdraw
from the case or refuse to handle it, should never be
exercised at a moment at which the client may be unable to
find other assistance in time to prevent irreparable damage
being done.
50. Advocate’s fees should, in the absence or non-

applicability of official scales, be fixed on a consideration of
the amount involved in the controversy and the interest of it
184
to the client, the time and labour involved and all other
personal and factual circumstances of the case. An advocate
shall charge a client no more than a fee which is fair and
reasonable for the work done, having regard to the interests
of both client and advocate.
51. An advocate must not receive a reward, whether financial

or otherwise, of which a client is unaware, in respect of
services rendered to the client.
52.(1) An advocate may act for a client in a matter in which

he knows or has reason to believe that another advocate is
then acting for that client only with the consent of that other
advocate.
(2) An advocate may act for a client in a matter in which he
knows or has reason to believe that another advocate was
acting for that client, if either –
(a) that other advocate has refused to act further; or
(b) the client has withdrawn instructions from that other

advocate upon proper notice to him.
(1) Subject to specific agreement, an advocate who briefs,

instructs or consults another advocate is personally
responsible for the payment to such other advocate of his
proper professional remuneration in respect thereof.
(2) Subject to specific agreement, an advocate who consults,

instructs or calls as a witness any architect, engineer, doctor,
surgeon or other professional or technical person is
personally responsible for the payment to that person of his
proper remuneration in respect thereof.
54. On a plea of not guilty counsel for the defence has a duty
to see that the prosecution discharges the appropriate onus to
prove the guilt of the accused, and to put before the court any
proper defence in accordance with the client’s instructions.
55. Counsel may not wantonly or recklessly attribute to

another person the crime or offence with which the client is
charged, provided that if facts or circumstances arising out of
the evidence or reasonable inferences drawn from them, raise
a reasonable suspicion that the crime or offence may have
been committed by another person, such a line of defence
may be proper.
185
56. Counsel must not in the course of making submissions or
cross-examining a witness say or lead a witness to say
anything that might mislead the court. In particular, counsel
must not make any statement to the court or put any
proposition to a witness that is not supported by reasonable
instructions, or that lacks factual foundation by reference to
the information available to the court.
57. Where counsel has been instructed to defend a criminal

charge and before or after the proceedings have started the
client makes a confession of guilt to counsel, counsel must
bear in mind:
(i) a trial is for the purpose of finding whether the accused

person is guilty or not guilty, not whether the accused is
innocent;
(ii) it is for the prosecution to call evidence to justify a

verdict of guilty;
(iii) a “crime” is a defined offence committed by a person of
sound mind and understanding.
In such circumstances, counsel may continue to act only if

the plea is changed to one of guilty or if not, within very
strict limitations. Counsel must not put forward a case
inconsistent with the confession.
If the plea is to remain one of not guilty, counsel may

conduct the defence by putting the prosecution to the proof,
and if appropriate, assert that the prosecution evidence is
inadequate to justify a verdict of guilty; but must not raise
any matter which suggests that the client has an affirmative
defence, for example an alibi. Counsel may, however,
proceed with a defence based on a special plea such as
insanity, if such a plea appears in counsel’s professional
opinion to be available.
58. The Council of the Law Society of Kenya shall have

power to waive in writing any of the provisions of these
Rules in any particular exceptional case where it is just and
proper to do so.
495. This draft is offered as a starting point for debate, and it is

recommended that the views of the profession be sought with respect
186
to the specific content of the code (Recommendation 82).
Consideration ought also to be given to combining the Advocates
(Practice) Rules and the Digest of Professional Conduct and Ethics
into one document, in which the (formal) Rules could be
accompanied by a commentary and guide. The proposed draft Rules
of Professional Practise Conduct and Etiquette would in effect
achieve this, and could replace both the Advocates (Practice) Rules
and the Digest of Professional Conduct and Ethics. However,
although the Rules of Professional Practise Conduct and Etiquette
closely follow the Digest of Professional Conduct and Ethics in
content it is less generic than the proposed Advocates (Practice)
Rules in para 494.
496. Complexity due to multiple sources of guidance, formal and
informal, is not conductive to compliance. It is recommended that
only one set of enforceable rules exist, either the Advocates
(Practice) Rules – as amended in para 494 or otherwise – or the
proposed Rules of Professional Practise Conduct and Etiquette of the
Council of the Law Society of Kenya (in para 484, as modified)
497. Because of the importance of the code of professional

conduct in the maintenance of ethical standards it is desirable that a
working party under the chairmanship of the Law Society of Kenya,
and including representatives of other stakeholders, review the above
codes with the intention of proposing a comprehensive single
document. It would be inappropriate for the authors of this Report to
suggest any single solution, as questions of professional ethics
should be decided on a rather broader basis. However, the draft in
para 494 has been offered as a suggestion. The proposed draft Rules
of Professional Practise Conduct and Etiquette (para 484) may
require further work to make it manageable as a piece of subordinate
legislation rather than as guidelines.
187
XI CONCLUSION AND RECOMMENDATIONS
11.1 CONCLUSIONS
498. The Governance, Justice, Law and Order Sector Reform
Programme has as one of its objectives the addressing of
shortcomings in the formal justice system, and facilitating the
implementation of reforms to strengthen institutions within the
sector. The Ministry of Justice has identified a number of priorities
in relation to the legal profession. These priorities include fighting
corruption, promoting judicial reform, promoting legal reform,
improving access to justice, and improving legal education,
including continuing legal education. One aspect of this programme
is ensuring that the ethical and disciplinary procedures of the legal
profession are sufficiently robust to meet international standards of
impartiality and effectiveness.
499. This Report examines the current state of the disciplinary
procedures for advocates in Kenya, in the context of a comparison
with the practise in several other countries. As a learned profession
at the heart of society the legal profession must adhere to high
ethical standards. International best practise provides guidance as to
how this might be achieved, though there are no prescriptive
requirements. This process does not make any assumptions as to
whether the state of the legal profession in Kenya is more or less
corrupt that what might be deemed the international norm. There is
little empirical evidence available on this question. It is sufficient
that there are international standards to which legal professions are
customarily assessed with respect to their disciplinary processes.
500. The Report was written after reviewing the legislative, policy
and administrative structures in which the disciplinary system is
based, and included consideration of broader aspects such as the
advocates’ practice rules and code of conduct, the regional ethics
committees of The Law Society of Kenya, and the ethics content of
the Advocates Training Programme. As the context of the review is
to benchmark Kenyan practice with international best practice
documentary analysis coupled with observation of process and
discussion with stakeholders provided the necessary empirical
evidence.
501. The Report comprises a report on a comparison of
disciplinary processes in a number of other countries, followed by a
review of the disciplinary procedures at present operating in Kenya.
This involves the Advocates Complaints Commission and the
Disciplinary Committee, as well as the regional ethics committees of
188
The Law Society of Kenya. This second section includes a number
of recommendations for changes. The final section includes a review
of the present code of professional conduct and a proposed draft
expansion of this.
502. The present system in general is comparable with that
operating in other countries. However, there is considerable room for
improvement in both the Advocates Complaints Commission and the
Disciplinary Committee. The former is not operating as effectively
as it should, largely through under-funding, but also because its
administrative processes are unsuited to dealing with the large
number of complaints it receives. Various recommendations are
made to correct this problem. The key recommendations are the
introduction of a computerised case-management system, and the
appointment of additional staff.
503. The Disciplinary Committee is not effective. It does not
provide a sufficiently robust sanction for errant advocates. Among
the recommendations for correcting this situation are changes to the
membership and the procedure of the Committee.
504. The current code of ethics for the legal profession is
insufficiently broad to meet the international standard for best
practice. A more comprehensive draft code is suggested as a starting
point for the development of a new code – a process which must
involve the legal profession and elements of the wider community.
189
11.2 RECOMMENDATIONS
505. The following 83 recommendations are made:

Recommendation 1: It is recommended that the Advocates Act be
amended to ensure that the Advocates Complaints Commission has
jurisdiction over former practitioners, subject to the qualification that the
conduct complained of must relate to their practise as advocates, and not
to any judicial, prosecutorial or other role they may previous or
subsequently have held (para 222).
Recommendation 2: It is recommended that affidavits and references in
support of applicants for admission be required in all cases. References
in support of applicants should be from two people of standing in the
possession of a current practising certificate and against whom there is
no outstanding complaint before the Law Society, Advocates Complaints
Commission or Disciplinary Committee (para 229).
Recommendation 3: It is recommended that the Law Society continues
to work closely with the Council of Legal Education to ensure that the
Advocates Training Programme (“ATP”) provides the best model of
training, particularly as it relates to professional ethics and etiquette, and
account keeping (para 235).
Recommendation 4: It is recommended that the operation of the ATP be
reviewed by the Council of Legal Education after the first year in which
it is offered to ensure that the objectives are being met (para 236).
Recommendation 5: It is recommended that professional ethics be
included in any compulsory continuing legal education requirements for
advocates, both junior and the more experienced (para 239).
Recommendation 6: It is recommended that the Law Society conduct
regular audits of advocates’ accounts, using their own accountant, or an
independent auditor reporting to the Society, for the purpose, and that
this be provided for by regulations under the Advocates Act (para 242).
Recommendation 7: It is recommended that an advocates fidelity fund
be instituted, funded from a percentage of the practising certificate fee,
for the compensation of clients for losses due to the malpractice of
advocates (para 244).
Recommendation 8: It is recommended that the term of office for
commissioners of the Advocates Complaints Commission should be two
190
years, renewable, and that they should be provided with security of
tenure (para 260).
defining misconduct more formally, not so as to restrict its scope, but so
as to clarify the distinction between professional misconduct and
inadequate professional services (para 292).
defining inadequate professional services more formally, as part of a
revision of the Advocates (Practice) Rules (para 295).
Commission and Disciplinary Committee be clearly empowered to
investigate and prosecute and to try former advocates for their actions
while advocates (para 298).
Recommendation 12: It is recommended that, on the authority of s 54(3)
of the Advocates Act, the Attorney-General should, in consultation with
the Law Society, make comprehensive rules of procedure to guide the
operations of the Advocates Complaints Commission. This means that
the discretion of the Commissioners to make their own rules of
Commission) (Structure and Procedure) Rules 2003, should be reduced
(para 307).
Recommendation 13: It is recommended that there be a minimum of
three Commissioners in the Advocates Complaints Commission, as the
workload of the Commission is sufficient to justify at least this number
of judicially-qualified officers or others of comparable seniority (para
309).
Recommendation 14: It is recommended that further legally-qualified
staff be employed by the Advocates Complaints Commission (para 312).
Recommendation 15: It is recommended that investment be made in
adequate office space and filing facilities, and technical support
equipment such as photocopiers, scanners, and printers, for the
Recommendation 16: It is recommended that formal training for
prosecutors in prosecution techniques be entrusted to a second
Commissioner with suitable prosecutorial and management experience
(para 317).
Recommendation 17: It is recommended that a number of more senior
State Counsel be appointed to the staff of the Advocates Complaints
191
Commission and Disciplinary Committee computer-based case
management systems be integrated as far as practical – subject to the
same (joint) tendering process (para 322).
Recommendation 19: It is recommended that the offices of the
management complexities of decentralisation (para 326).
Recommendation 20: It is understood that Swahili translations of the
Advocates Complaints Commission publicity materials and forms are to
be provided, and it is recommended that this be done as a matter of
urgency (para 331).
Recommendation 21: It is recommended that all complainants to the
Advocates Complaints Commission be required to pay a small filing fee,
and that the Commission be empowered to make an award of costs
against a complainant in exceptional circumstances where the complaint
is deemed to be frivolous and vexatious (Para 335).
Recommendation 22: It is recommended that no complaint be accepted
by the Advocates Complaints Commission after more than six years
after the cause of action arose (para 335336).
having the legislation reflect more accurately the fact that complaints are
Complaints Commission but are prosecuted by the Commission before
the Committee (para 337).
Recommendation 24: In conformity with the view expressed in the
Stobbs Report, it is recommended that the Commission lose the ability
to make determinations, and confine its role to investigation and
prosecution, with a supporting mediation and conciliation role (para
339).
Recommendation 25: It is recommended that the Commission lose the
power to examine witnesses on oath, as this role should be restricted to
the Disciplinary Committee, and the power to tax bills of cost (para 339)
Committee confine its role to the regular and systematic review of the
advocates’ practice rules and code of conduct, and that it consequently
relinquish the dispute resolution role (para 351).
Recommendation 27: Due to the limited resources of the Law Society it
is recommended that the Society investigate complaints and prosecute
192
only in exceptional circumstances, thus allowing it to concentrate upon
regulatory and representational functions (para 363).
Recommendation 28: To ensure that the independence of the Advocates
Complaints Commission is buttressed, and its legitimacy enhanced, it is
President on the recommendation of the Law Society of Kenya (para
368).
Recommendation 29: In addition, the determination of the remuneration
of the Commissioners by way of salary, allowance, pension or gratuity
Disciplinary Committee, the remuneration of the Commissioners should
be determined by the Attorney-General in consultation with the
Treasury. This is so recommended (para 369).
Commission should be made independent of the Office of the Attorney-
General, as a stand-alone agency, with its own independent budget (para
370).
Recommendation 31: It is recommended that to ensure that the
Advocates Complaints Commission gets the staff it requires to maintain
and preserve its independence, integrity and efficiency, the Chairman of
the Advocates Complaints Commission should be empowered to select
his or her own staff (para 371).
Recommendation 32: It is recommended that the Advocates (Complaints
Commission) (Structure and Procedure) Rules be amended to include
specific provisions for the conduct of the Commission’s proceedings
(para 373).
Recommendation 33: It is recommended that Advocates Complaints
Commission be renamed the Advocates Investigation Commission (para
377).
Recommendation 34: To counter the defect inherent in s 53(3A) of the
Advocates Act, that is, the failure to stipulate the sentence for the
offence created therein, it is recommended that the Act should be
amended to stipulate the sentence to be meted out to a person convicted
of the offence. Consequently, the defect will be cured (para 380).
Recommendation 35: It is recommended that an independent Legal
Profession Ombudsman be appointed, by the Attorney-General, with the
tasks described (para 382).
Recommendation 36: It is recommended that the term for advocate
members of the Disciplinary Committee be two years, with a right of
renewal (para 387).
193
Recommendation 37: Although it is good practice to include lay
members in the Disciplinary Committee, it is recommended that care is
taken to ensure both that appropriate people are selected, and that they
and the advocate members of the Committee understand their respective
roles (para 388).
Recommendation 38: The lay members are full members of the
Committee, and should be involved in the deliberate and decision-
making processes. An induction process is recommended (para 388).
Recommendation 39: The Advocates Act currently allows for the
possibility of a Disciplinary Committee sitting with solely lay members.
It is recommended that this possibility be removed (para 392).
Recommendation 40: It is recommended that there should be at least one
lay and one advocate member present at each hearing of the Disciplinary
Committee, and at least three in total (para 392393).
Recommendation 41: It is recommended that the number of advocates in
the Disciplinary Committee be increased to nine, and that three of these
must be of at least twenty years standing (para 394).
Recommendation 42: The co-option of advocates is important even if
the permanent membership of the Committee is increased, and it is
Recommendation 43: It is recommended that the Attorney-General and
Solicitor-General be excluded from the membership of the Disciplinary
Recommendation 44: It is recommended that the Attorney-General
appoint the Chairman and Deputy Chairman of the Disciplinary
Committee (both to be advocates or judicial officers) on the
recommendation of Judicial Services Commission, and that these should
be appointments in lieu of the Law Officers. There should continue to be
representatives of the Attorney-General and Solicitor-General (para
397).
Recommendation 45: It is recommended that the Chairman or Deputy,
but not both, should be a judge, but that this not necessarily be a
statutory requirement (para 399).
Recommendation 46: It is recommended that the Stobbs Report
recommendation with respect to including more junior advocates not be
implemented at this time (para 400).
Recommendation 47: The Secretary to The Law Society of Kenya is
also Secretary to the Disciplinary Committee. While the Disciplinary
194
Committee remains an organ of the law society a close linkage is
appropriate. However, as recommended in the Stobbs Report, it is
Recommendation 48: Once a matter has been listed for hearing before
the Committee, the requirements of service must be pursuant to the Civil
Procedure Rules (para 412).
Recommendation 49: An order of the High Court against an advocate
may be appealed against by the aggrieved advocate to the Court of
Appeal of Kenya. It is recommended that the right of appeal be extended
to all parties (para 425).
Recommendation 50: There is a provision for direct referral of
complaints to the Disciplinary Committee by the Advocates Complaints
Commission. This is apparently rarely used as the Disciplinary
Committee will usually refer these back to the Commission if it is
realised that full investigations were not carried out. It is recommended
that this provision be abolished, as the time of the Disciplinary
Committee should not be occupied in considering charges which have
not been fully investigated (para 436).
Recommendation 51: The recommendation of the Stobbs Report was
that the Committee should have the option to hear cases under a
summary procedure to enable the simpler, less serious cases to be heard
speedily. It is recommended that a summary procedure of this sort be
Recommendation 52: The Stobbs Report recommended the appointment
of a Directions Officer with similar functions to a Master in the court.
This officer would deal with uncontroversial and administrative matters
and set timetables and make other orders to ensure that a case is ready
for hearing. It is recommended that this recommendation be
Recommendation 53: There was uncertainty as to whether the
Disciplinary Committee had the power to summon witnesses. It is
recommended that it be given this power (para 444).
Recommendation 54: Recommendation 17 of the Stobbs Report called
for a procedure for dealing with advocates who fall ill prior to hearings.
It is recommended that this is implemented, including a procedure for
Disciplinary Committee in an effort to frustrate its operation (para 444).
Recommendation 55: It is recommended that recommendation 35 of the
Stobbs Report, that the rules should contain sanctions to encourage
195
advocates to prosecute appeals expeditiously and to penalise frivolous
appeals, should be implemented (para 446).
Recommendation 56: It is recommended that the implementation of the
computer-based case management system recommended by the Stobbs
Report (recommendations 2 and 24) should proceed as a matter of
urgency (para 448).
Recommendation 57: It is recommended that any software and hardware
acquired for the case management system be subject to a pilot study, in
operation and its effectiveness is assured (para 448).
Recommendation 58: The Stobbs Report recommended
(recommendation 3) that the computerised case-management system
should be built to a carefully considered specification and be subject to
tender (recommendation 3). It is recommended that this is best practice
and should be followed (para 450).
Recommendation 59: It is recommended that consideration should be
given to imposing a higher level of fines as a matter of practice (para
452).
Recommendation 60: Recommendation 35 of the Stobbs Report was that
for consistency, the Committee, in consultation with the Commission
and the Chief Justice, should prepare guidelines setting out its policy on
sentencing. It is recommended that guidelines be prepared, with the
qualification that these would be for guidance merely, and not
prescriptive (para 452).
Recommendation 61: It is recommended that the judiciary should be
notified promptly of any advocate who has been suspended from
practice or struck off the Roll of Advocates, and that those so suspended
or struck off not be permitted to continue practice through membership
of a firm (para 454).
Recommendation 62: To render the process of notifying the judiciary of
those advocates who have been struck off the Roll by the Disciplinary
Committee more effective, and to enable the Law Society to maintain
the most up-to-date record of its membership, currently practising
advocates, and those who have been struck off – or suspended – it is
recommended that the Law Society acquire a computer database to
record this information (para 455).
196
Recommendation 63: It is recommended that the prosecutorial powers of
the Law Society over those persons purporting to be advocates be
revived (para 456).
Recommendation 64: It is recommended that the powers of the
Disciplinary Committee be extended to include making orders for
supervision of practise by senior named advocate or advocates (para
457).
Recommendation 65: It is recommended that the Discipline Committee
publish the names of advocates against whom a final judgement has
been entered (para 458).
Recommendation 66: It is recommended that hearings should also be
publicised in the general press, to allow members of the public and of
the news media to be present if they so wish (para 459).
Recommendation 67: Although The Law Society of Kenya has actively
sought to collect fines from convicted advocates, it is clear that further
recommended (para 460).
Committee be assigned an independent budget and dedicated staff (para
461).
Committee be able to travel on circuit and hear cases away from Nairobi
(para 462).
Recommendation 70: It is recommended that Disciplinary Committee be
renamed the Advocates Disciplinary Tribunal (para 463).
Committee should be composed of five members from each branch of
The Law Society of Kenya, and sit quarterly in on circuit in each of the
branches (para 469).
Recommendation 72: It is recommended that the members of the Ethics
and Compliance Committee should be advocates of at least five years
standing, and that the conveners should be advocates of at least ten years
standing (para 471).
encouraging the regional ethics panels to act as de facto agents of the
Commission. They could act as repositories for complaints, which
would then be passed to the Commission in Nairobi. But, perhaps more
importantly, they can provide in the provinces the type of mediation and
197
alternative dispute resolution function carried out in Nairobi by the
Recommendation 74: It is recommended that the responsibility of the
ethics committees should include handling disputes between advocates
(para 473).
Recommendation 75: In order to strengthen the ethics committees and
allow them to operate in concert with the Advocates Complaints
Commission, it is recommended that rules of procedure for the
committees be adopted (para 474).
Recommendation 76: It is recommended that the regional ethics
committees be provided with simple information sheets, outlining for
inquirers the role of the committees, the Law Society, the Advocates
Complaints Commission and the Disciplinary Committee (para 475).
Recommendation 77: It is recommended that the Law Society provide
all advocates with copies of the current Advocates (Practice) Rules when
they are sent their next practising certificate, and that any amendments
are also sent, by the Law Society, to all advocates in practise whenever
these amendments are enacted (para 478).
Recommendation 78: The Advocates (Practice) Rules are comparatively
brief, with 14 rules – 12 of them substantive rules. It is recommended
that consideration be given to consolidating the Advocates (Accounts)
contemporary good practice (para 487).
Recommendation 79: Rule 14 of the Advocates (Practice) Rules
provides that “The Council of the Law Society of Kenya shall have
power to waive in writing any of the provisions of these Rules in any
particular case”. It is recommended that this be qualified (para 489).
Recommendation 80: It is recommended that this rule be amended to
read “The Council of the Law Society of Kenya shall have power to
waive in writing any of the provisions of these Rules in any particular
case where it is just and proper to do so” (para 489).
Recommendation 81: It is recommended that certain general ethical
requirements be included in the Advocates (Practice) Rules (para 492).
Recommendation 82: The draft code of ethics is offered as a starting
point for debate, and it is recommended that the views of the profession
be sought with respect to the specific content of the code (para 495).
198
Recommendation 83: It is recommended that only one set of enforceable
rules exist, either the Advocates (Practice) Rules – as amended in para
494 or otherwise – or the proposed Rules of Professional Practise
Conduct and Etiquette of the Council of the Law Society of Kenya (in
para 484, as modified) (para 496).
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11.3 REVIEW STRATEGY
Review strategy for the bar

506. The Law Society of Kenya has primary responsibility for the
maintenance of professional standards in the legal profession.
Following acceptance of this Report it is proposed that the following
action takes place:
 The Chairman of the Law Society or senior officer appointed

by the Council of the Law Society, proceed to implement the
Recommendations of this Report which are the responsibility
of the Law Society, and liaise with the equivalent officers
hereinafter mentioned;
 The Chairman of the Advocates Complaints Commission and

the Attorney-General or the de facto Chairman of the
Disciplinary Committee, proceed to implement the
Recommendations of this Report which relate to their
respective bodies, and liaise with their counterparts;
 That the three above officers report to the Attorney-General

(or if one of them is the Attorney-General himself, the
Minister of Justice and Constitutional Affairs), on progress in
the implementation of the Recommendations, six months
after the acceptance of this Report, and at six monthly
intervals thereafter until the Recommendations are
implemented.
507. The way ahead is clear. There is considerable potential for
improving the framework of professional ethics in the Kenyan legal
profession. The priorities now are the following:
 Additional independent funding for the Advocates

Complaints Commission and Disciplinary Committee
(primarily to ensure adequate senior staff are available, and a
robust case management system is instituted);
 Provision of computerised case-management systems and

advocates’ databases for the Advocates Complaints
Commission, Disciplinary Committee, and Law Society of
Kenya;
 Such statutory and regulation reform as recommended above.
200
XII ANNEXES
12.1 TERMS OF REFERENCE
1. Background
The Government of Kenya, through the Ministry of Justice and
Constitutional Affairs, has embarked on the implementation of the
Governance, Justice, Law and Order Sector Reform Programme (GJLOS),
whose objective is to address shortcomings in the formal justice system and
facilitate the implementation of reforms to strengthen institutions within the
sector. GJLOS was born of the Expanded Legal Sector Reform Programme,
whose precursor, the Legal Sector Reform Programme recommended the
improvement of training and professional standards of those in legal
practice. Through the GJLOS, the Ministry of Justice has identified a
number of priorities in relation to the legal profession, which priorities
include fighting corruption, promoting judicial reform, promoting legal
reform, improving access to justice, improving legal education, including
continuing legal education. In each of these areas, the legal profession can
play an important role in enhancing the legal and judicial reform process in
Kenya.
In order for the legal profession to be an effective actor in the legal and
judicial reform process, it is essential that the legal profession undergo an
internal evaluation process of each of the roles it is mandated to play, and to
identify areas in which it could improve the quality, accountability,
transparency and independence of the legal profession in Kenya.
The role played by the Law Society of Kenya in regulating the profession is
multiple and consists of:
(a) Regulation of entry into the Legal Profession
Every person who is duly qualified to be admitted as an advocate is required
by law to file a petition requesting admittance. The Law Society of Kenya
has the mandate to review such a petition and has a right to be heard with
regards to the person’s admission. Therefore the Society is able to advice
against the admission of a person as an advocate if it feels that the
individual lacks moral fitness.200
(b) Maintenance of a disciplinary system

200
Advocates Act (Cap 16 of the Laws of Kenya) section 15.
201
Every advocate is subject to the jurisdiction of the Disciplinary
Committee201 which is established by the Advocates Act, Chapter 16 of the
Laws of Kenya and mandated to deal with offences or misconduct by an
advocate. The Law Society of Kenya acts as the Secretariat of the
Disciplinary Committee and the Secretary of the Society is the secretary of
the Committee. Members of the Disciplinary Committee are elected from
the membership of the Law Society of Kenya and the Society is therefore
involved in the regulation of its own members.
The Disciplinary Committee receives complaints of professional misconduct
against advocates and prosecutes advocates if the complaint is merited. The
Disciplinary Committee has statutory powers to admonish, suspend, fine or
strike off an advocate’s name from the Roll if the advocate is found guilty of
professional misconduct.
The Advocates Complaints Commission, also established under the same
Act, receives complaints in relation to advocates from the public, and
investigates them where necessary. Once the Complaints Commission
establishes that the complaint constitutes a disciplinary offence, it refers the
matter to the Disciplinary Committee for the appropriate action.
While the Law Society serves the role of the registrar to the Disciplinary
Committee and the regulator of the legal profession, the Complaints
Commission is the main prosecutor of cases filed against members of the
legal profession.
In 2002 the Law Society of Kenya and the International Bar Association
commissioned Mr. Mark Stobbs, the then Head of professional standards
and legal services department of the Bar Council of England and Wales, to
undertake a review of the effectiveness of the Disciplinary Committee of the
Law Society of Kenya, and the Complaints Commission.
The report reviewed the legal provisions governing the system for looking
into complaints against advocates in Kenya, the existing institutions and
made a number of general recommendations for improvements to the
system. It also reviewed the wider factors that gave rise to complaints and
suggested ways in which some of the difficulties could be addressed. It also
reviewed in general the issues concerning self-regulation against co-
regulation, reviewed the costs and considered an action plan implementing
the recommendations. The Society reviewed the report and implemented a
large number of the recommendations that were made.
Significant improvement of the processes of the Disciplinary Committee is
evident following the recommendations of Mr. Mark Stobbs. However, the
Disciplinary Committee and the Complaints Commission still face a lot of
201
Advocates Act (Cap 16 of the Laws of Kenya) section 55.
202
challenges that we believe if properly reviewed can be addressed to make
both these statutory bodies more efficient and effective.
The World Bank through its Institutional Development Fund has undertaken
to assist the legal profession through the Law Society of Kenya in fulfilling
its mandate to strengthen the skills and professional conduct of the members
of the legal profession in the delivery of legal services to the Government
and the larger public in all matters relating to the administration of justice in
Kenya. This grant will further enhance the work already undertaken on this
programme and assist the Law Society to improve the regulation of the
membership and provide Kenyan lawyers, through the Law Society of
Kenya, with the knowledge, techniques and best practices required to ensure
that the Advocates Complaints Commission and the Disciplinary Committee
can adequately apply and enforce the standards provided in the Advocates
Act.
Professor Noel Cox shall therefore prepare a comparative study of relevant
commonwealth models of enforcement of ethical standards of the Legal
Profession and of assessing the level of professional ethics in the Kenyan
Legal fraternity. Professor Noel Cox will facilitate local chapter and national
workshops to asses the existing framework on professional ethics and to
develop a strategy for the review of the framework for the legal profession.
Professor Noel Cox will also work with a fellow International Professor
Noel Cox, contracted for under this Grant, in capacity-building activities for
members of the Advocates Complaints Commission and the Disciplinary
Committee with a twinning partner to be identified and contracted for
separately under the Grant.
2. Global Objective
To provide Kenyan lawyers, through the Law Society of Kenya, with the
knowledge, techniques and best practices required to ensure that the
Advocates Complaints Commission and the Disciplinary Committee can
adequately apply and enforce standards provided in the Advocates Act.
3. Specific Objective (Scope of Work)

This particular component of the grant seeks to provide the Law Society of
Kenya with information pertaining to best practices of other Commonwealth
jurisdictions on the enforcement of ethical standards of the Legal
Profession. The Grant also seeks to provide the Law Society of Kenya with
an opportunity to assess the existing framework for the enforcement of
professional ethics.
203
4. Technical Tasks
The tasks to be performed by the Consultants shall be, but no limited to:
(a) Preparation of a report on a comparative study of the
enforcement of ethical standards used by Commonwealth
Countries. The study should include the United Kingdom, South
Africa and Australia and any other countries Professor Noel Cox
deems relevant.
(b) Presentation of the findings of the report at a national workshop
to discuss the existing framework for enforcement of
professional ethics and to develop a strategy for the review of the
framework by the Bar. The role of the Kenyan Bar in the
adoption, implementation and enforcement of professional ethics
will also be discussed and comparative models will be compared
with the purpose of adopting best practices.
(c) A study of the existing capacity in Kenya’s legal profession to
enforce ethical standards within the profession.
(d) Facilitation of five local chapter workshops to discuss the
existing framework for the enforcement of professional ethics.
(e) Facilitation of one national workshop to discuss the existing
framework for enforcement of professional ethics and to develop
a strategy for the review of the framework by the Bar. The role of
the Kenyan Bar in the adoption, implementation and
enforcement of professional ethics will also be discussed and
comparative models will be compared with the purpose of
adopting best practices.
(f) The International Consultant will be expected to liaise with the
two local consultants in the undertaking of the above mentioned
work.
5. Expected Outputs
The main outputs of the consultancy will include the following:
a. A comparative study of the enforcement of ethical standards used by
other Commonwealth Countries will provide the Law Society of
Kenya with a resource of best practices from other Bar Associations
and assist the Society in reviewing its current system. A report, both
in hard and soft copy on a comparative study of the enforcement of
204
ethical standards used by other Commonwealth Countries will be the
indicator that this activity has been undertaken.
b. A presentation of the comparative study at a National Workshop will
provide the Law Society with an opportunity to review the best
practices of other Bar Associations and market possible change
strategies and systems to the membership. A presentation at the
National Workshop on a comparative study on the enforcement of
ethical standards used in Commonwealth Countries will be the
indicator that this activity has been undertaken.
c. An assessment of Kenya’s legal profession’s capacity to enforce
ethical standards will provide the Society with the relevant
information required to revamp the different structures in a bid to
making them more efficient and effective. A report, both in hard and
soft copy, on the assessment of the existing capacity of Kenya’s legal
profession to enforce ethical standards within the profession will be
the indicator that this activity was carried out.
d. Facilitation of three (3) local chapter workshops and one (1) national
workshop to assess the existing framework on professional ethics, to
develop a strategy for review of the framework, to discuss the role of
the Kenya Bar in adoption, implementation and enforcement of
professional ethics will enable the legal profession to improve its
level of professionalism. A report, both in hard and soft copy,
comprising recommendations of the workshops will be an indicator
that this activity was carried out.
6. Time Frame
The Consultants will be expected to follow the following time frame
i. Submission of draft report on evaluation of framework for
enforcement of professional ethics and standards twenty one days
(21) after the signing of the consultancy agreement.
ii. Meeting to review the draft report on Evaluation of framework for
enforcement of professional ethics and standards fourteen days (14)
after the signing of the consultancy agreement.
iii. Submission of draft report on the comparative study thirty days (30)
after the meeting to review the draft report.
iv. Meeting to review the draft report on the comparative study
fourteen days (14) after submission of draft
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v. Facilitation and presentation at three local chapter workshops as
detailed in the attached Work Plan.
vi. Presentations of the comparative study at a national workshop – not
later than sixty days (60) the signing of the consultancy agreement.
vii. Submission of draft report on local and National workshops seven
days (7) after the completion of the said workshops.
viii. Meeting to review the draft report above, (vii), seven (7)
days after submission of the reports.
ix. Facilitation and participation of the study tour as detailed in the
attached Work Plan.
x. Submission of final report on the assessment of the existing
capacity of Kenya’s legal profession to enforce ethical standards
within the profession – not later than ninety days (90) after signing
the consultancy agreement.
The Consultant will be paid as outlined in the main contract of agreement.
QUALIFICATIONS
To qualify for this consultancy the Consultants satisfied the following
criteria:
1) An experienced lawyer or professional regulator with over five
years experience, preferably with a mix of experience in
professional regulatory work as well as in supportive activities to
improve both individual practitioners and their institutions.
2) An appreciation for the variety of forms of professional regulation
and profession development.
3) Familiarity with a variety of professional regulatory structures,
approaches, and procedures.
4) Knowledge of different legal systems and regimes.
5) Knowledge of professional ethics, professional conduct and
regulatory processes for lawyer malfeasance.
6) An understanding of the structures for the delivery of legal services.
7) An understanding of comparative legal systems.
8) An ability to work in a new setting and to adapt to and accept local
cultural norms.
206
9) Ability to travel.
REPORTING ARRANGEMENTS
The Consultants will be accountable to the Secretary of the Law Society of
Kenya who will carry out the overall monitoring of the consultancy, advise
the Consultants and make all major decisions on the alteration of the
consultancy agreement, project time frame and any other substantial issues.
The Consultants will liaise with the Compliance and Ethics Director of the
Law Society of Kenya on routine requests.
207
OF THE ADVOCATES COMPLAINTS COMMISSION AND
THE DISCIPLINARY COMMITTEE – 12th May 2007, Imperial
Hotel, Kisumu
REPORT OF THE WORKSHOP ON CAPACITY BUILDING OF THE

ADVOCATES COMPLAINTS COMMISSION AND THE
12TH MAY 2007, IMPERIAL HOTEL, KISUMU
208
1.0. SESSION 1: OPENING SESSION
The participants having gone through the registration process and duly
registered, the workshop commenced at around 10:00 A.M. with a word of
prayer. The participants then observed a one minute silence in honour and
remembrance of the one hundred and fourteen (114) passengers who
perished in Duoula, Cameroon, following the tragic crash of the Kenya
Airways aeroplane on Saturday 5th May 2007. The participants were drawn
from western Kenya region including from such towns as Kericho, Kisii,
Bungoma, Kitale, Eldoret, Kakamega, and Kisumu (see Appendix I for the
list of participants).
To begin with, the Secretary/Chief Executive Officer of the Law Society of

Kenya, Betty Nyabuto, gave a summary of the project. She described the
project as a proactive initiative by the Law Society of Kenya and funded by
World Bank, to explore and review the disciplinary process within the legal
profession in Kenya. She explained that this particular project and/or Grant
was referred to as Component A and was aimed at building the capacity of
the Advocates Complaints Commission and the Disciplinary Committee in
addressing disciplinary issues in the legal profession. It is part of the series
of workshops that shall be held in various towns in the country notably
Mombasa and Nairobi, in a bid to collect and collate the views of the
advocates on the disciplinary process. She thus stated that the task of the
Consultants under the Grant was to test the existing capacity of the
Advocates Complaints Commission and to assess the rules and procedure
that govern the process in these bodies and thereafter male
recommendations for review.
She distinguished the said Component A with its twin Component B of the
Grant, which aims at strengthening the capacity of the legal profession by
improving the Continuing Legal Education (CLE) programme. The Local
Consultants under Component B are Dr. Elizabeth Muli, a senior lecturer at
School of Law, Moi University, and Rautta Athiambo of Rautta & Co.
Advocates, Nairobi. These two consultants are expected to assess the current
framework for professional development of lawyers.
She finally tendered the apology of Dr. Nightingale Rukuba-Ngaiza, the

World Bank Task Team Leader, who though scheduled to attend the
workshop, could not make it due to unavoidable circumstances.
Mr. James Aggrey Mwamu, the Chairman of the West Kenya Law Society
and Council Member of the Law Society of Kenya then made introductory
remarks. He warmly welcomed the participants to the workshop in
particular and to Kisumu City in general. He asked the members to be open
and candid in discussing the issues that the Workshop was posed to address.
209
Noting that the world had become hostile to lawyers and that indeed some
of the allegations levelled against lawyers were true, he challenged the
participants to consider whether the profession was treading on the right
path. He regretted that in Kenya, it was only the legal profession that had
allowed those who had failed in other professions to invade it. He therefore
called upon the participants in particular and lawyers in general to protect,
defend and promote the traditional nobility of the profession.
In conclusion, Mr. Mwamu strongly asserted that the Advocates Complaints

Commission (hereinafter “the Commission”) had outlived its purposes and
should therefore be scraped off. He observed that the Commission had been
established at a time when agitation for the introduction of multiparty
democracy in the country had reached its peak. The establishment of the
Commission, therefore, was a political move by the Government to “tame”
lawyers who were in the forefront of the struggle and thus viewed as being
against the Government of the day. With this understanding, he asserted that
the legal profession was, as at now, better placed to manage its affairs
including the discipline of its members.
Mr. Mwamu’s introductory remarks were followed by welcome remarks by

Mr. Eric Omogeni, the Chairman of the Law Society of Kenya. Like his
preceding speaker, he invited the participants to candidly and boldly discuss
issues that were the subject of the workshop. Speaking of the Advocates
Complaints Commission, he observed that the Commission was established
primarily on two grounds: First, due to the failures of the Boards of Inquiry
which had been established by Act No. 18 of 1986; and secondly, due to the
fact that the LSK had “fallen into the trap of becoming the official
opposition party.” Consequently, the Commission was established, as earlier
alluded to by Mr. Mwamu, to deal with lawyers who were considered strong
activists against the Government.
He nevertheless noted that the Commission had made significant progress

especially under the chairmanship of Mr. Joseph Kingarui who was in
attendance. In particular, the Commission has established preliminary
inquiries into all complaints that it received to ensure that only merited
complaints were addressed. He asked the participants and advocates in
general to promptly respond to inquiries or letters from the Advocates
Complaints Commission. This stems from the fact that a major setback that
the Commission faces currently is the failure or delay of advocates to
respond to inquiries instituted by the Commission. In summarizing his
speech, he opined that advocates and the Advocates Complaints
Commission should not view each other as enemies but as partners in
addressing discipline issues in the legal profession.
To conclude the opening session, Mr. Tom Ojienda made an opening speech
in his capacity as the President of the East Africa Law Society (EALS). He
210
thanked the participants for their cooperation during his tenure as the
chairman of the LSK and proceeded to note that he will continue to serve
them faithfully as the President of the EALS. He observed that it was the
expectation of the Consultants that the Worksop would generate viable
recommendations that would help strengthen the capacity of the Advocates
Complaints Commission, the Disciplinary Committee and the LSK in
dealing with disciplinary issues. This marked the end of the opening session
whereupon the participants broke shortly for tea/coffee break.
2.0. SESSION 2: AN ASSESSMENT/OVERVIEW OF THE

CAPACITY OF THE ADVOCATES COMPLAINTS COMMISSION
The second session, facilitated by Mr. Tom Ojienda, sought to assess or

make an overview of the Capacity of the Advocates Complaints
Commission. Mr. Ojienda took the participants through the historical
evolution of the disciplinary process within the legal profession leading up
to the establishment of the Commission in 1989. He particularly made
reference to the disciplinary process that obtained under the Advocates Act
No. 55 of 1949 and the Advocates Act No. 18 of 1986. Having laid down
the historical background, he proceeded to outline an overview of the
Advocates Complaints Commission under four main headings: a general
overview; the functions of the Commission; the powers of the Commission;
and the Advocates (Complaints Commission) (Structure and Procedure)
Rules 2003. These can be summarized as follows:
2.1. A General Overview of the Advocates Complaints

Commission
– Established under s 53 Advocates Act (Cap 16)

– It is a department of the Attorney-General’s chambers (State
Law Office)
– Sole purpose is enquiring into complaints against any
Advocate, firm of Advocates, or any member or employee
thereof (s 53(1) Advocates Act)
– It consists of such a commissioner or commissioners as shall
be appointed by the President
– If a single commissioner is appointed, he/she must be
qualified to be appointed a judge of the High Court
– If several commissioner are appointed, one commissioner
shall be qualified to be appointed as a judge of the High
Court
– Attorney-General appoints a secretary to the Commission
and provides such other public officers as are necessary for
the functioning of the Commission
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2.2. Functions of the Complaints Commission
– Generally to ensure that advocates conduct themselves

properly and that standards of legal services are rendered to
the public are improved and maintained
– Investigates complaints made by any person i.e. the
Commission receives and considers complaints made by any
person, regarding the conduct of any advocate, firm of
advocates, or any member or employee thereof
– Promote reconciliation and encourage & facilitate amicable
settlement between parties if the complaint is not a serious or
aggravated case)
– refers complaints to Disciplinary Committee
– Advice a complainant to refer a matter to the court when the
Commission considers it appropriate to do so
– prosecutes offences before the Committee
2.3. Powers of the Complaints Commission
– Reject or dismiss any complaint that appears to hold no

substance
– power to summon witnesses
– Examine witnesses on oath
– Order an advocate to produce a detailed fee note for the
purposes of taxation of the bill of costs
– Assess an advocate’s fee in case he declines to produce a
detailed fee note to the commission
– Investigate the accounts of an advocate and order the
advocate to produce all relevant books and documents to the
Commission or an accountant engaged by the Commission
– Make such order as it considers just and expedient in the
circumstances of the case
– Power to award, by order, compensation or reimbursement
not exceeding to Kshs. 100,000 to a complainant
– Order the surrender of all funds or property which an
advocate does not dispute in a matter relating to the surrender
of funds or property by an advocate to a client
– Issue a warrant for the levy of the amount of any sum
ordered to be paid on the immovable and movable property
– Generally take such steps as it may consider proper and
necessary for the purpose of its inquiry
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2.4. Advocates (Complaints Commission) (Structure and
Procedure) Rules 2003
– Made pursuant to s 54(3) which empowers the Attorney-

General to make rules regulating the structure and operation
of the Commission
– The rules only apply where two or more Commissioners are
appointed to the Commission
– The Attorney-General may, by notice in the Gazette,
designate one commissioner to be chairman of the
Commission
– The Commission shall have at least four meetings in each
calendar year though the secretary may convene a special
meeting
– The meetings are presided over by the chairman and in his
absence, the commissioners present shall elect one of them to
preside over the meeting
– The quorum for a meeting of the Commission is two
commissioners
– Decision of the Commission is made by a majority of the
votes of the members present with the chairman or presiding
person having a casting vote
– Commissioners are bound to declare their direct or indirect
interest in any matter before the Commission and
consequently barred from taking part in the
discussion/deliberation/voting inn that matter
– The Commission may determine its own procedure

CAPACITY OF THE DISCIPLINARY COMMITTEE
Professor Githu Muigai facilitated the third session which was designed to
make an assessment or overview of the capacity of the Disciplinary
Committee. His presentation was largely informed by his experience as the
chairman of the Disciplinary Committee. He began by attempting to dispel
the notions that advocates usually hold against the Disciplinary Committee.
He noted that the Committee does not purport to be self-righteous but more
often than not it tries to understand the situation and the practical
circumstances leading to the complaint. He therefore emphasized that
advocates and the Committee should be in partnership so as strengthen the
disciplinary process. In any event, the errant advocates are usually very few
as compared to the entire numbers of advocates in the country who carry out
their professional duties honestly and competently.
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Upon his election as the Chairman of the Committee, Professor Muigai tried
to revamp the operations of the Committee by bringing up all the cases that
initially lay in the shelves and clogged the disciplinary system. It was
realized, amongst others, that many complaints had either been abandoned
or the advocates against whom the complaints had been made had long
ceased to practice or had passed away. Currently, the Committee strives to
ensure that only the cases that merit determination are scheduled for
hearing. Indeed, noted Professor Muigai, out of twenty complaints, eight or
so are usually dismissed. This is sometimes done even without any reference
to the advocate against whom the complaint has been made. This ensures
that one is not subjected to the stigma of having appeared before the
Committee.
The Committee meets twice a week for hearing and determination of

complaints. Initially, the Committee was housed in the Attorney-General’s
chambers and though there was nothing wrong in principle in this
arrangement, the Committee was nevertheless viewed as lacking an element
of independence. As at now, the Committee holds its meeting in independent
premises.
It was noted that it is advocates against whom complaints have been made,
more often than not, who delay the determination of complaints by the
Committee. They appear before the Committee represented by their
colleagues who take the earliest opportunity to raise preliminary objections
against the complaint and seek for its dismissal. In such, circumstances, the
Committee usually seeks to put aside matters of jurisprudence so as to deal
with the substance of justice. If the complaint in question, for example,
concerns a sum of money that the advocate allegedly received on behalf of
the client, and he/she does not dispute the same, he is usually asked to
deposit that amount with the LSK pending the determination of the
complaint.
Professor Muigai also touched on the procedure of sentencing adopted by

the Committee. He noted that striking an advocate off the roll is usually
sparingly used and adopted only as a last resort against a chronic errant
advocate. Such is an advocate who is not only a repeat offender but also
shows no remorse at all and makes no attempt whatsoever to compensate
the client. The sentence of admonishment, he noted, is fluid in nature for its
meaning is not clearly understood.
Several weaknesses of the Committee were pointed at this stage. First, the
Committee is centralized in Nairobi and many advocates and complainants
find it difficult to access the Committee. Secondly, aged or senior advocates
appearing before the Committee usually view the Committee with contempt
and as lacking legitimacy to adjudicate over the complaint in view of the
Commissioners’ young age. Thirdly, the Committee lacks complete
214
autonomy especially in terms of finance. The Committee has no
autonomous fund. It can neither collect funds nor hold any funds in trust for
complainants before it. Fourthly, the lay men who sit in the Committee
contribute very little, if any, to the efficiency or operations of the
Committee.
In summary, the presentation of Professor Muigai touched on the

composition and jurisdiction of the Committee in addition to highlighting
the challenges it faces. A summary of the composition and jurisdiction of the
Committee is given hereunder.
3.1. Overview of Disciplinary Committee
– Established under s 57 of the Advocates Act

– Adjudicates upon alleged breaches of rules of professional
conduct by advocates and advocates’ clerks
– Comprises the Attorney-General, Solicitor-General, or other
person deputed by the Attorney-General; 6 Advocates
(elected by the Law Society); and 3 non-Advocates
appointed by the Attorney-General on the recommendation of
the Law Society
– The secretary of the Law Society is also the secretary of the
Committee
– The Committee may constitute itself into a tribunal of either
three or five members to determine a complaint
– Complaints may be made by any person – though the
majority are brought by the Complaints Commission, who
will then prosecute
– Proceedings of the Commission are deemed to be
judicial/legal proceedings
3.2. Powers of the Disciplinary Committee
– Refer any matter to the Advocates Complaints Commission

– Summon the advocate against whom the complaint has been
made and the complainant/applicant to give evidence or to
produce documents
– Refer the case to the Council of the Law Society
– Allow or refuse the withdrawal of any application
– Administer oaths or affirmations
– Dismiss summarily such complaint where it appears that the
same is frivolous or vexatious or does not disclose a prima
facie case
– Make a formal order discharging an advocate where the
complaint against him has been dismissed summarily
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– Make any such order as to payment by any party (including
the complainant) of any costs or witness expenses and of the
expenses of the Committee
– Admonish an advocate
– Suspend an advocate from practice for a specified period not
exceeding five years
– Order that the name of an advocate be struck off the roll
– Order an advocate to pay a fine not exceeding Ksh.
1,000,000
– Order the compensation or reimbursement of an aggrieved
person not exceeding Ksh. 5,000,000
3.3. Jurisdiction to Determine Costs/Fees
– Order an advocate to produce before the Committee a

detailed fee not
– Determine the fee payable to the advocate when he/she fails
to produce a detailed fee note before the Committee
– Adjourn the complaint pending taxation
– Make estimates of the costs due to the advocate and order
accordingly
– Determine that the costs to which the advocate or firm of
advocates shall be entitled be limited to such amount as may
be prescribed in its determination
– Direct an advocate to comply, or to secure compliance, with
the requirement to refund, remit or waive the whole or part of
any advocate’s costs or fee or amount already paid by or on
behalf of the client
– Direct the advocate or firm of advocates to secure the
rectification of any error, omission or other deficiency arising
out of their fault
– Direct the advocate to take at their own expense, such other
action in the interests of the client as it may specify
Professor Muigai’s presentation was immediately followed by a plenary

session.
4.0. SESSION 4: PLENARY SESSION
The plenary session was exhibited by concerted discussion amongst the

participants. In addition to making recommendations and comments,
questions were posed not only to the facilitators (local consultants) but also
to the chairman of the Complaints Commission.
216
Mr. Joseph Kingarui, the Chairman of the Complaints Commission, sought
to make some clarifications before the plenary session would kick off in full
swing. This, he said, would help dispel some of the questions that were most
likely to crop up in the discussions. First, he noted that in his visits to the
provinces as the chair of the Commission, he had come to the conclusion
that the legal profession is facing hostility from the general public. Many
Kenyans expressed their disappointment or dissatisfaction with the legal
profession. Secondly, he lamented that many advocates against whom
complaints are made, never reply to the correspondence sent to them by the
Commission. This had the import of delaying the disciplinary process.
Thirdly, he spoke of what he referred to as advocates holding their clients
ransom i.e. asking a client to pay a certain amount of money failure to
which the advocate would not attend court on behalf of the client. This
usually takes place on the eve or some few days before the case comes up
before the court. He advised that if the client is not paying the advocate’s
fees then the best option is to withdraw from representing the client rather
than holding him ransom every time the case comes up before the court. On
a fourth note, he noted that some advocates have allegedly bribed or
‘pocketed’ some of the junior officers of the Commission and as a result,
complaints against them never see the light of day. In this regard, he asked
the participants to desist from such corrupt behaviours. Finally, he clarified
that the Commission had established preliminary enquiries so as to ensure
that only merited complaints were dealt with.
Mr. Ochieng Ochieng (advocate, Kisumu) suggested that to enhance the

independence of the Complaints Commission, there should be a new
mechanism for the appointment of the commissioners to the Commission.
He suggested that such a mechanism should be independent of the
Government and in the event that the commissioners are appointed by the
Government, the appointment should be vetted by Parliament.
It was opined by one Mr. Onsongo Obwoge (advocate, Kisumu) that the
structure and composition of the Commission should be done away with. He
lamented that he had in the recent past received a letter from the
Commission in a matter which he was not concerned with. Further, he
complained that the letter had been posted to the wrong address. He noted
that lack of enough commissioners at the Commission was not sufficient
reason to absolve the Commission from such an error. If the problem was
the few numbers of the commissioners, he noted, the cure lied in appointing
more commissioners. In addition, he asserted that the Commission dealt
with non-issues. He cited the example of a case where a client had filed a
complaint before the Commission alleging that the advocate in question had
transferred a matter from the High Court to the subordinate court without
his consent.
217
In short response to Mr. Obwoge’s concerns, the chairman of the
Commission noted that the workshop was not the proper forum for one to
respond to a correspondence sent to him/her by the Commission. He stated
that what the Commission needs is not more commissioners as suggested,
but more officers to carry out the day to day operations of the Commission.
He also stated that the Commission had begun programmes for its
decentralization with Eldoret and Mombasa being its pilot projects.
Mary M. Wairagu, a Senior Principal State Counsel attached to the Ministry

of Justice and Constitutional Affairs commented that in discussing issues of
complaints against advocates, it would also be imperative to look at the
issues from the perspective or position of the public. She stated that the
Ministry of Justice and Constitutional Affairs also receives complaints
against advocates which it always refers to the Commission. She asked the
participants to employ the use of customer care skills in their officers. Most
of the complaints, she observed, arose from lack of information on the part
of the clients. Advocates should therefore take time to explain to their
clients the position of the cases in a simple way that they would understand.
The Chairman of the North Rift Law Society, Mr. Lelan (advocate, Eldoret),
questioned the constitutionality of the Commission in view of the
Commission’s role as an investigator and a prosecutor of complaints. He
inquired whether they are provisions for dealing with petty offenders before
the Disciplinary Committee. He suggested that in order to reduce backlog of
cases, there is a need to decentralize the operations of the Commission.
The chairman of the Disciplinary Committee was asked by one Mr. Siganga
to state how many cases were pending before the Disciplinary Committee.
Mr. Siganga also commented that to address the question of failing to
account, there was need to require advocates to file certificate of accounts
periodically and more frequently than is the case currently. He stated that
requiring advocates to file the said certificates only when they are applying
to be notaries public or commissioners of oath was not sufficient. He also
stated that there was need for a supervision mechanism that would ensure
that compliance with orders is achieved. As at now, he lamented, there is
high failure of supervision of compliance with orders of the Commission,
the Committee and the Ethics and Compliance Committee.
In response, Professor Muigai started by reiterating that the task of restoring

confidence in the profession was a collective task. He also raised concern
that the legal profession has allowed itself to be regulated from outside. He
cited numerous examples including that some banking institutions have
prepared a list or inventory of advocates from whom they can accept
professional undertaking. Another attempt to regulate the legal profession
from outside was the introduction of two-cheque system by the insurance
industry. Though this attempt failed, it points to the fact that the legal
218
profession has failed to regulate itself and as a consequence, forces from
outside are trying to regulate it.
He conceded that the Disciplinary Committee has no sentencing guidelines

and he therefore recommended that sentencing guidelines should be
prepared to guide the Committee on sentencing. He nevertheless noted that
the lack of sentencing guidelines notwithstanding, the Committee does not
strike an advocate off the roll on a first complaint made against him or if
he/she is a petty offender. As at currently, there are approximately one
thousand (1000) pending cases, three hundred of which are serious cases.
Professor Muigai also opined that the Ethics and Compliance Committee if
constituted properly can be of great help in sieving complaints. He
supported the idea of decentralizing both the Commission and the
Committee.
In addition, Professor Muigai observed that many complaints that arise

against advocates especially on failure to account, is a result of the
advocates’ lack of skills in financial and office management. Many
advocates, in a bid to meet their office expenditures, withdraw sums of
money from the clients’ account with the hope that the same will be
refunded back to the account in due course. Consequently, when clients
demand for their sums of money, many advocates are usually found without
the same. He thus observed that there was a need to train advocates on
financial and office management. As a final note, he conceded that the
weakest point in the disciplinary process is the supervision stage. He echoed
the need to strengthen the supervision of compliance within the Law
Society.
The plenary session ended at around 1:30 p.m. whereupon the participants
were divided into three groups for purposes of the next session which
involved group work.
5.0. SESSION 5: GROUP WORK/GROUP DISCUSSION
As already stated above, the participants were divided into three groups. The
first group was tasked to discuss and make recommendations on the changes
that they wished should be made in the operation of the Advocates
Complaints Commission. In doing this, they were guided by a brief manual
prepared for that purpose. In essence the group was meant to make
suggestions in reference to the composition, jurisdiction, location, funding,
enforcement, existence and autonomy of the Commission. The second and
the third group dealt with the Disciplinary Committee and the Ethics and
Compliance Committee respectively. They were similarly required to
comment on the above mentioned factors in regard to the institution in their
area of discussion.
219
After the discussions which were carried out in the individual groups, the
participants broke off for lunch. It is after the lunch break that the various
groups made presentations of the outcome of their discussions. A summary
of the recommendations is reflected in the table below.
GROUP INSTITUTION FACTOR RECOMMENDATIONS/COMMENT

GROUP Advocates Composition -there are too few commissioners
1 Complaints currently compared to the workload
Commission -there is need for more commissioners
one in each province and a
commissioner general to be based in
Nairobi which shall be the head office.
-this makes a total of nine
commissioners including the
Commissioner-General
Capacity -a commissioner should be qualified to
be an advocate of the High Court of
Kenya
-he/she must be credible and of integrity
-he/she must have been in active practice
prior to the appointment
-the commissioners should be
recommended by the LSK i.e. they
should be appointed by the President
from a list presented by the LSK
-commissioners to serve for two-years
term which can be renewed
-commissioners be provided with
security of tenure
-the appointment must be gender
sensitive
-at least two or at most three advocates
(state counsels) should be attached to
each commissioner
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Jurisdiction-receiving and investigating complaints
regarding an advocate; firm of
advocates; and their employees
-power to summon witnesses
-power to order production of documents
-not to hear the witnesses on oath (this
role should be the preserve of the
Disciplinary Committee)
-not to tax advocates bills of costs
-no power to execute award/judgment
-such necessary power to take such steps
as may be necessary for investigation of
complaints
-power to prosecute complaints before
the Disciplinary Committee
Location -located at provincial headquarters but
with provision for circuit hearings where
necessary
Funding From the consolidated fund
Enforcement -power to enforce personal service
-reconciliation to be encouraged
Existence -not to be called Advocates Complaints
Commission but Advocates Enquiry
Commission
-it should not exist in the Attorney-
General’s chambers but at the Law
Society of Kenya premises
-the issue of complaint against an
advocate not to be used as a bar to
appoint such an advocate to a public
office. it should only be a bar after
determination by the Disciplinary
Tribunal and upon conviction
Autonomy
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GROUP Disciplinary Composition -the provision for lay members should
2 Committee be repealed
-retain representation of the Attorney-
General and the Solicitor-General
-increase number of advocates in the
Committee to nine
-of the nine advocates, three of them
must have practiced for more than
twenty (20) years
-the other advocates must have practised
for ten (10) years
-serve for one term of two years with an
option for renewal
-there should be rotational retirement of
the advocates to ensure continuity
Jurisdiction -the current scope of jurisdiction should
be retained
-once a matter has been listed for
hearing before the Committee, the
requirements of service must be pursuant
to the Civil Procedure Rules
-the Committee has very wide
discretionary powers on sentencing.
therefore, the offences should be
stratified and classified and sentence be
stipulated for each group of offence or
each offence
-a draft schedule of the offences and
their stipulated sentences be circulated to
lawyers for comment before enactment
-the Committee should only deal with
cases that have been referred to it by the
Commission
Location -the Committee’s headquarters should be
based in Nairobi
-the Committee should also sit in
recognised LSK branches
Funding -from the consolidated fund
-LSK membership contributions
-donor funding
-fines
Enforcement -direct enforcement
-issue decrees
222
Autonomy-the Committee should run on its own
budget (i.e. be accorded its own vote
from the Consolidated fund)
-the AG and the Solicitor General should
not chair the sessions of the Committee
-the Committee should run a bank
account in its own name
Existence -must exist
GROUP Ethics and Composition -should be composed of five members
3 Compliance from each LSK branch
Committee -it should be gender sensitive
Capacity - one must have practised for ten (10)
years
-be of unblemished character
-serve for a term of two years with the
option of renewal
-provision for rotational retirement
Jurisdiction -mediation and conciliation is very
limited. It should be empowered to
receive complaints at the local levels
-mandate should be extended to handling
disputes between advocates
-should carry out public education on
ethics and ethics committee
Location -circuit sittings to be held on quarterly
basis in the LSK branches
Funding -funded solely by the LSK
-complainants to pay filing fees
-provisions for honoraria and
reimbursement of expenditure
Enforcement -no enforcement
Existence -desirable and should be strengthened
Autonomy -the issue of autonomy does not arise
because it is a creature of the LSK
The presentation of the Group Work recommendations was followed by a

short plenary session in which the participants discussed the
recommendations made by each group. Mr. Musomba inquired about the
possibility of bringing a complaint against a state counsel. He also sought to
know the position in law where a person whose name is in the roll of
advocates but has since been appointed a judge, elected a Member of
Parliament or appointed an ambassador. Mr. Ojienda stated that the
Disciplinary Committee is empowered to hear complaints of persons who
are in new positions in relation to complaints related to a period when such
a person was a practising advocate. This point was reiterated by Professor
223
Muigai who further noted that such persons should apply for their names to
be struck off the roll as the law provides for such applications. It was also
noted that if the person in question was a judge, then further problems
would arise because if such a judge was aggrieved by the decision of the
Committee he/she was entitled to appeal to the High Court. Would it then be
proper for a judge of the High Court appeal to the same court for redress?
Mr. Vincent Odunga sought to know how comes an advocate could be

struck off the roll of advocates severally as earlier stated by Professor
Muigai. The latter explained that such was a possibility in relation to an
advocate against whom various complaints has been brought against
him/her. In reference to the recommendation that a complaint should not be
a bar for an advocate to be appointed a public officer, a Mr. Ngeno
wondered what would be the position if such a person is appointed to the
office and then he/she thereafter is found guilty of the complaint. Mr. Kirosi
suggested that in appointing an advocate to a public office, the Government
should seek a reference not from the Advocates Complaints Commission but
from the Disciplinary Committee.
On the question of the Disciplinary Committee’s independence, Professor

Muigai opined that if the Committee is to be completely independent then it
ought to give up the funding from the Government. He also noted that with
the advent of globalization and regional integration, there is need to
consider new challenges posed by cross-border legal practice which will
ultimately impact on the disciplinary process. Further, he stated that in other
jurisdictions the public is allowed to buy shares in legal firms and that legal
firms are allowed to practice with bankers. In this regard, he observed that it
won’t be long before this trend is introduced in Kenya and there was
therefore to start considering the impact of these trends on the disciplinary
process. He also suggested that it is time that advocates be allowed to
advertise their services albeit to a limited extent.
6.0. SESSION 6: CLOSING REMARKS
The workshop ended with closing remarks from Mr. Aggrey Mumma, Mr.
Eric Omogeni and Miss Betty Nyabuto. Mr. Omogeni gave the vote of
thanks to the World Bank for funding the initiative; Mr. Joseph Kingarui the
Chairman of the Advocates Complaints Commission; Miss Wairagu from
the Ministry of Justice and Constitutional Affairs; the facilitators of the
Workshop, Professor Githu Muigai and Mr. Tom Ojienda; and the
participants. He invited the participants for the Commonwealth Lawyers
Conference to be held in Nairobi later in the year. He announced that each
of the participants had been awarded two (2) CLE points for participating in
the Workshop. Lastly, he handed a cheque of Ksh. 290,000 from the LSK to
the Treasurer of the West Kenya Law Society branch. The participants were
224
duly reimbursed their mileage expenses to and from Kisumu and the
workshop came to an end at around 1645hrs.
225
APPENDIX I
OPENING SPEECH BY MR. JAMES AGGREY MWAMU,

CHAIRMAN WEST KENYA LAW SOCIETY AND COUNCIL
MEMBER LAW SOCIETY OF KENYA
The President of East Africa Law Society, the Chairman Law Society, and
Council Members, Brothers and Sisters, welcome to Port Florence, the only
millennium city in the country.
The theme for today is discipline, standard and ethics. The legal profession
is noble profession and has stood the test of time for years. However, as we
approach the 21st Century, one big question we need to ask ourselves, “are
we really a noble profession?” The world has become hostile to lawyers.
The call us thieves, fraudsters and conmen. A lot of these terms are really
malicious but we need to ask ourselves whether they are far from the truth.
Indeed, many clients owe advocates a lot of money and although we have a
mechanism for recovery of money in civil matters but in criminal cases it is
most difficult.
When Advocates get admitted there is an oath of office we take to assist in

the administration of justice without fear or favour. The oath of office is the
very foundation of lawyering and advocacy.
The duty that this places on advocates is faithfulness, best ability, integrity
and interests of fellow citizens. We have a duty to the court, the country,
systems and public, clients, the profession and ourselves. Can we safely say
we have passed the test of integrity, competency and conflict of interests?
We need to look at another eyeball to eyeball and ask ourselves whether as

profession we are treading the right path.
Where did the rain begin to fall on us?
It is only in the legal profession that we have allowed people who have
failed in other profession to invade our profession and literally take over. We
have allowed journeymen, pseudo lawyers, tricksters to take over the
profession.
People who have totally no vision for justice, rule of law but have come into
the legal profession believing that there is a lot of money in legal practice
and if this profession collapses then we are to blame. We must protect that
we have.
We must now review the standards of practice.
226
Brothers and sisters, this profession is ours to destroy or to build. Are we
prepared to destroy it?
The responsibility is totally yours.
We must candidly speak about ourselves and tackle the serious problems of
misconduct and unethical behaviour.
Personally, I do not think punishment of lawyers is the way to cleaning the

profession. I think we must collectively and decisively change our attitude
toward the profession. Let us nurture it, let us protect and let us guard the
profession.
Finally, I believe we are now bold enough to deal with discipline of lawyers.
We do not need complaints commission.
As we reorganize ourselves something must die. To quote Brutus in Julius

Caesar by William Shakespeare, “Caesar must bleed for it. Gentle friends let
us kill him boldly but not wrathfully, let us carve like a dish fit for the gods.
Not hew him as a carcass fit for hounds.”
The Complaints Commission is an institution whose purpose and vision is

no longer relevant to lawyers in Kenya. What they are doing, we can do
better. The principle of the independence of the Law Society as a Kenyan
bar is that we should be free from government control in all areas including
the area of discipline.
227
APPENDIX II
GROUP WORK/ GROUP DISCUSSIONS
LOCAL CHAPTER WORKSHOP-KISUMU

STANDARDS & ETHICS
12 TH MAY 2007
Questions:
1) What changes would you wish to see made in the operations of the
institutions;
a) Composition
b) Jurisdiction
c) Location
d) Funding
e) Enforcement
f) Existence
g) Autonomy
We shall divide ourselves into three groups;
1. Complaints Commission
2. Disciplinary Committee
3. Ethics Committee
228
APPENDIX III
LIST OF PARTICIPANTS
NAME
1 MOGIRE KEFA OMBUHI PARTICIPANT
2 NYAMBATI GIDEON M. PARTICIPANT
3 JOSEPH SONYE ONDARI PARTICIPANT
4 SAGWE SAMSON MAUTI PARTICIPANT
5 VINCENT OBONDI NYAKUNDI PARTICIPANT
6 MARTIN T. NYAINGIRI MOMANYI PARTICIPANT
7 BEAUTTAH A. SIGANGA PARTICIPANT
8 GIDEON MUTAI PARTICIPANT
9 PETER KIRENGA PARTICIPANT
10 ZABLON ATULO PARTICIPANT
11 ANNE ABONG'O OMOLLO PARTICIPANT
12 GEOFFREY O. YOGO PARTICIPANT
13 PETER O. OKO PARTICIPANT
14 MOURICE C. OUMA PARTICIPANT
15 OCHARO KEDIRA PARTICIPANT
16 ONDIEKI SAMWEL KEROSI PARTICIPANT
17 CYRUS ONSERIO MINDA PARTICIPANT
18 GRACE AWINO PARTICIPANT
19 GEORGE O. MOGAKA PARTICIPANT
20 GEORGE N. AWINO PARTICIPANT
21 EVANS M. MOCHAMA PARTICIPANT
22 CHARLES S. KWEYU PARTICIPANT
23 JOSEPH MUSOMBA PARTICIPANT
24 KERARIO MARWA PARTICIPANT
25 ALBERT MUDEYI PARTICIPANT
26 OGUTTU JOSEPH MBOYA PARTICIPANT
27 JOHN MANDERE NYANDORO PARTICIPANT
28 ALEX OMAYA PARTICIPANT
29 AMOS OGUTU OYUKO PARTICIPANT
30 MUSA NANDWA PARTICIPANT
31 ERICK GEKONDE OMARIBA PARTICIPANT
32 ANZIYA A. LABAN PARTICIPANT
33 DENIS ODERO OKOYO PARTICIPANT
34 SAM M. ONYANGO PARTICIPANT
35 KEPHA OCHIENG ONYISO PARTICIPANT
36 MILDRED MUNYEKENYE PARTICIPANT
37 OYE ASHIOYA PARTICIPANT
38 ALWANG'A JOSIAH MUSUMI PARTICIPANT
39 JAMES AJIGO PARTICIPANT
229
40 ELIZABETH A. AYOO PARTICIPANT
41 NGOCHO MARY MUTHONI PARTICIPANT
42 KENNEDY O. OWITI PARTICIPANT
43 ISAAC MEROKA OYUGI PARTICIPANT
44 JOSEPH SHEM ELUNG'ATA PARTICIPANT
45 ALOYS OBUNGA ABOGE PARTICIPANT
46 JOHNSON MASINDE PARTICIPANT
47 H. K. ONYANDO PARTICIPANT
48 L. E. NANZUSHI PARTICIPANT
49 P. W. WANYAMA PARTICIPANT
50 HERBERT NYAMURONGI PARTICIPANT
51 SENISTER KHALWALE PARTICIPANT
52 BRIAN PRATT AYODO PARTICIPANT
53 M. KIVEU PARTICIPANT
54 E. M. MASHETI PARTICIPANT
55 KOWINDOH K. O. OUMA PARTICIPANT
56 OKUTTA W. OUMA PARTICIPANT
57 NEWTON INGOSI PARTICIPANT
58 BETTY MALOBA PARTICIPANT
59 ORONI P. ETTANG PARTICIPANT
60 SAMSON B. MBECHE PARTICIPANT
61 ERASTUS M. ORINA PARTICIPANT
62 TOM OJIENDA CONSULTANT
63 NJOGA ROBERT OUMA PARTICIPANT
64 BRUCE O. ODENY PARTICIPANT
65 A. OIRO OBARA PARTICIPANT
66 JAMES OBIERO PARTICIPANT
67 CHARLES O. NYAMWANGE PARTICIPANT
68 GEORGE A. MONGARE PARTICIPANT
69 MOGENI O. ERICK CHAIRMAN, LSK
70 OTIENO C. O. AYAYO PARTICIPANT
71 BEN NYANGA ADUOL PARTICIPANT
72 AMOS W. ORENGE PARTICIPANT
73 BIGOGO ONDERI PARTICIPANT
74 HENRY KABURI PARTICIPANT
75 DUKE S. ONYARI PARTICIPANT
76 PATRICK OCHIENG PARTICIPANT
77 GIDEON ODONGO PARTICIPANT
78 JOHN ODHIAMBO AKINYI PARTICIPANT
79 NYOLEI MICAH PARTICIPANT
80 BOGONKO ELIZAPHAN MOGAYA PARTICIPANT
81 BOAZ OTANGA OTIENO PARTICIPANT
82 ONSONGO WYCLIFFE OBWOGE PARTICIPANT
83 STEPHEN O. OMWEGA PARTICIPANT
230
84 PETER ONYANGO DANIEL PARTICIPANT
85 JOSEPH KING'ARUI PARTICIPANT
CEO/SECRETARY,
86 BETTY NYABUTO LSK
87 CHARLES MOGIRE AYIENDA PARTICIPANT
88 ERIC NTABO PARTICIPANT
89 PHILEMON OCHWANG'I PARTICIPANT
90 J. N. ONG'ELE PARTICIPANT
91 PAULINE N. SEWE PARTICIPANT
92 CAROLINE B. OMOLO PARTICIPANT
93 JACQUELINE INGITIAH PARTICIPANT
94 DANIEL AKWALA PARTICIPANT
95 GEORGE S. NYAKUNDI PARTICIPANT
96 AGGREY KIDIAVAI PARTICIPANT
97 MITCHELL MENEZES PARTICIPANT
98 JAMES NAMATSI PARTICIPANT
99 DAVE L. SIGANGA PARTICIPANT
100 LYNET ATIENO OLEL PARTICIPANT
101 WAMBUA MERCY PARTICIPANT
102 GERALD O. KIMANGA PARTICIPANT
103 S. SIMON LILAN PARTICIPANT
104 NYIGEI MAUREEN PARTICIPANT
105 KULECHO KWOBA PARTICIPANT
106 WAMBUA MUSEMBI PARTICIPANT
107 D. N. IKUA PARTICIPANT
108 E. M. JUMA PARTICIPANT
109 PATRICK J. O. OTIENO PARTICIPANT
110 OKAL JUDITH AUMA PARTICIPANT
111 ABUTA TOM PARTICIPANT
112 JAVAN J. MUKAVALE PARTICIPANT
COUNCIL
113 MWAMU J. A. MEMBER, LSK
114 RAYOLE OLEL PARTICIPANT
115 JOCELYN RIRO KIMETTO PARTICIPANT
116 LENARD N. OMBACHI PARTICIPANT
117 BENSON ONDIMU MASESE PARTICIPANT
118 MOSES J. A. ORENGO PARTICIPANT
119 FREDRICK MAUBE PARTICIPANT
120 E. K. NG'ENO PARTICIPANT
121 G. V. ODUNGA PARTICIPANT
122 DICK ANYUL PARTICIPANT
123 JUDE RAGOT PARTICIPANT
124 SIELE SIGIRA PARTICIPANT
125 GEORGE MAENGWE PARTICIPANT
126 MORRIS ONYINO PARTICIPANT
231
127 FRANCIS OMONDI PARTICIPANT
128 SHEM SANYA BALONGO PARTICIPANT
129 DENNIS MANONO NYAUNDO PARTICIPANT
130 NAMWANGE C. BICHANGA PARTICIPANT
131 LUGADIRU K. EDWIN PARTICIPANT
132 A. B. L. MIUSIEGA PARTICIPANT
133 WESLEY GICHABA PARTICIPANT
134 NYAWIRA O. CARILUS PARTICIPANT
135 LYNETTE OMOLLO PARTICIPANT
136 GILBERT O. GUSO PARTICIPANT
137 EVANS AYIEMA PARTICIPANT
138 INNOCENT N. MUMA PARTICIPANT
232
THE DISCIPLINARY COMMITTEE – 26th May 2007, Sarova
Whitesands Beach Resort, Mombasa
REPORT OF THE WORKSHOP ON CAPACITY BUILDING OF THE

ADVOCATES COMPLAINTS COMMISSION AND THE
26TH MAY 2007, WHITESANDS HOTEL MOMBASA
233
1.0. SESSION 1: OPENING SESSION
The opening session was preceded by the arrival and registration of the
participants who were drawn from Mombasa, Malindi and other towns
within the Coast region. Thereafter, Mr. Justus Munyithya, the Vice
Chairman of the Law Society of Kenya (LSK) made introductory remarks.
He welcomed the participants and laid out a general outline of the purposes
for which the workshop was convened.
The Secretary/Chief Executive Officer of the LSK, Ms. Betty Nyabuto, then
gave the project summary. She explained that the workshop is aimed at
generating ideas for the review of the enforcement of ethical standards of
the legal profession in Kenya. The workshop falls under a World Bank
funded Grant on Capacity Building of the Advocates Complaints
Commission and the Disciplinary Committee which is premised on the need
to assess and review the existing framework for the enforcement of
professional ethics.
Falling under this session too, was Mr. Eric Omogeni’s welcome remarks.
Mr. Omogeni who is chairman of the LSK, noted amongst other things, that
there are no mechanisms for passing sentence against advocates found
guilty of professional misconduct and/or unprofessional conduct. He thus
opined that such a sentencing mechanism should be put in place so as to
guide the disciplinary bodies. He also noted that the Ethics and Compliance
Committee constituted by the LSK is not anchored in the Advocates Act
(Cap 16 Laws of Kenya). He suggested that there is a need to consider and
entrench the Committee in the Act. As a final note, he observed that there is
a need to assess the advocate’s competence to compete in the now
modernizing and globalizing world. He challenged advocates to brace
themselves to meet the challenges that come with cross-border legal practice
in particular and globalization in general.
2.0. SESSION 2: FUNCTIONS AND MANDATE OF THE

ADVOCATE COMPLAINTS COMMISSION
The second phase of the workshop on the functions of the Advocates

Complaints Commission was facilitated by Mr. Joseph King’arui, the
chairman of the Advocates Complaints Commission. He commenced by
noting that there is a lot of distrust against the legal profession and as such,
issues of perception from the consumers of justice should be addressed. He
emphasized the need for the Commission and the advocates and all
stakeholders in the disciplinary process to work as a team.
In reference to the Advocates Complaints Commission, he informed the

participants that contrary to the practice in the past where files were opened
234
for each complaint brought before the Commission, the Commission now
institutes preliminary enquiries to establish whether a complaint merits
further action or not. It is only after the preliminary enquiry that a file can
be opened by the Commission. He noted that there are several challenges
that impede the success of the Commission some of which are:
 failure by advocates to respond timely to communications from the

Complaints Commission;
 failure by advocates to honour professional undertakings;
 failure by advocates to abide by client’s instructions;
 failure by advocates to release client’s documents in their custody;
 overcharging; and
 the centralization of the Commission in Nairobi

CAPACITY OF THE ADVOCATES COMPLAINTS COMMISSION
Mr. Ojienda facilitated the third session whose main purpose was to make
an assessment/overview of the capacity of the Advocates Complaints
Commission. He noted the following questions, inter alia, ought to be
addressed in reviewing the capacity of the Commission:
 The question of independence of the Commission especially

reflected against the composition of the Commission;
 The capacity (in terms of resources) of the Law Society to
institutionalize the dual system of the disciplinary process;
 The staffing of the various bodies involved in the disciplinary
process;
 The decentralization of the bodies involved in the disciplinary
process; and
 The competence of the panellists in the disciplinary process.
The presentation made by Mr. Ojienda in summary covered the

composition, functions and powers of the Commission. He also made
highlights of the Advocates (Complaints Commission) (Structure and
Procedure) Rules 2003. Table 1 below shows a summary of the presentation.
Table 1: Overview of the Capacity of the Advocates Complaints

Commission
235
TOPIC FEATURES
General Introduction -established under section 53 Advocates Act
(Cap 16)
-it is a department of the Attorney-General’s
Chambers (State Law Office)
-sole purpose is enquiring into complaints
against any advocate, firm of advocates, or any
member or employee thereof (section 53(1)
Advocates Act)
-it consists of such a commissioner or
commissioners as shall be appointed by the
President
-if a single commissioner is appointed he must
be qualified to be appointed as a judge of the
High Court of Kenya under chapter IV of the
Constitution
-if several commissioners are appointed, one
commissioner shall be qualified to be appointed
as a judge of the High Court
-Attorney-General appoints a secretary to the
Commission and provides such other public
officers as are necessary for the functioning of
the Commission
- section 53(3A) provides that it is an offence to
fail or refuse to assist the Commission when
required to do so
Functions of the -generally to ensure that advocates conduct
Complaints themselves properly and that standards of legal
Commission services are rendered to the public are improved
and maintained
-the Commission receives and considers
complaints made by any person, regarding the
conduct of any advocate, firm of advocates, or
any member or employee thereof
-reject a complaint if it appears that there is no
substance in the complaint
-refer the matter to the Disciplinary Committee,
where it appears that there is substance in the
complaint but that the matter constitutes or
appears to constitute a disciplinary offence
-where there is a substance to the complaint but
it does not constitute a disciplinary offence, the
Commission is to notify the person or firm
against whom the complaint has been made, of
the particulars of the complaint and require them
236
to answer to the complaint within a reasonable
period
-the Commission will then proceed to investigate
the matter upon the expiration of the period
specified above, and it will summon witnesses to
produce evidence as it deems necessary and after
hearing submissions from both parties, the
complainant and the person/firm complained
against, make an award it considers just and
proper in the circumstances
-advise the complainant appropriately, where
there is substance to the complaint, but the
circumstances do not disclose a disciplinary
offence that can be dealt with by the Disciplinary
Committee, or the Commission itself should not
deal with, but the proper remedy would be to
refer the matter to the courts
-promote reconciliation and encourage and
facilitate amicable settlement between parties if
the complaint is not a serious or of an aggravated
nature
-prosecutes offences before the Committee
Powers of the -reject or dismiss any complaint that holds or
Complaints appears to hold no substance
Commission -power to summon witnesses
-examine witnesses on oath
-order an advocate to produce a detailed fee note
for the purposes of taxation of the bill of costs
-assess an advocate’s fee in case he declines to
produce a detailed fee note to the Commission
-investigates the accounts of an advocate and
order the advocate to produce all relevant books
and documents to the Commission or an
accountant engaged by the Commission
-make such order as it considers just and
expedient in the circumstances of the case
-power to award, by order, compensation or
reimbursement not exceeding to Kshs. 100,000
to a complainant
-this order shall be registered with the courts and
shall be enforceable in the same manner as order
of the court
-order the surrender of all funds or property
which an advocate does not dispute in a matter
relating to the surrender of funds or property by
an advocate to a client
237
-issue a warrant for the levy of the amount of any
sum ordered to be paid on the immovable and
movable property
-generally take such steps as it may consider
proper and necessary for the purpose of its
inquiry
Advocates (Complaints -made pursuant to section 54(3) of the Advocates

Commission)(Structure Act which empowers the Attorney-General to
and Procedure) Rules make rules regulating the structure and operation
2003 of the Commission
-the rules only apply where two or more
commissioners are appointed to the Commission
-the AG may, by notice in the Gazette, designates
one commissioner to be chairman of the
Commission
-the Commission shall have at least four
meetings in each calendar year though the
secretary may convene a special meeting
-the meetings are presided over by the chairman
and in his absence, the commissioners present
shall elect one of them to preside over the
meeting
-the quorum for a meeting of the Commission is
two commissioners
-decision of the Commission is made by a
majority of the votes of the members present
with the chairman or presiding person having a
casting vote
-commissioners are bound to declare their direct
or indirect interest in any matter before the
Commission and consequently barred from
taking part in the discussion/deliberation/voting
in that matter
-the Commission may determine its own
procedure
4.0. SESSION 4: PLENARY SESSION
The plenary session was chaired by Professor Wanyama Kulundu-Bitonye,

the Director of the Kenya School of Law and the Secretary to the Council of
Legal Education. He commenced by stating that the Council of Legal
Education is currently seeking to strongly supervise the pre and post
university legal education. The Council has thus refocused the training
programme with the import that a new programme will be put in place with
238
effect from January 2008. Under the new programme, a total of nine (9)
courses will be taken at the School of Law by all students without exception
and regardless of which institution they undertook their undergraduate
studies.
He echoed the need to emphasize Continuing Legal Education (CLE) and

the introduction of certificate programmes for the paralegal staff. So far, he
observed, the programme for legal training has been too elitist and
consequently do not focus on support staff. He also suggested that there is a
need to bring on board more partners e.g. the judiciary, for purposes of
enhancing co-existence. On self-regulation, he questioned whether the legal
profession in Kenya is ready for same. He cited the lack of necessary
mechanisms as an impediment in the way of fully instituting self-regulation
in the country.
Mr. Mutungi, the Convenor of the Ethics and Compliance Committee

(Nairobi), raised three issues. First, he commented that the Ethics and
Compliance Committee faces negative perception from the stakeholders
especially advocates who view it as an irritant. Secondly, he noted that the
Committee lacks enforcement powers thus rendering it toothless. Finally, he
commented that the pupillage which is a programme administered by the
Kenya School of Law is not well coordinated and that it is not set out what
pupils are supposed to learn during the pupillage period.
Mr. Akide expressed the view that Advocates Complaints Commission

should be abolished. He expressed his concern that in addition to the
Commission being a Government body, the appointments to the
Commission are made without any regard to the legal profession or the Law
Society. Mr. Luganji inquired whether there is any redress in terms of costs
or otherwise for an advocate who has decided to challenge any complaint
against him/her. On his part, Mr. Obura, said that there is need to have
honest communication from the Commission i.e. the Commission should
not only portray the negative side of the complaints. He also stated that the
pupillage programme should be operationalized to deal with the oft cited
problems of lack of space to accommodate pupils and the payment of pupils.
He suggested that a mechanism to support the advocates’ capacity to absorb
pupils in their firms should be put in place.
Ms. Pamela Tutui expressed the concern that there is a lack proper training
at the university level. She reiterated that there is need for standardization of
payment to pupils. In addition, she commented that it should be made
mandatory that the Advocates Complaints Commission be composed of at
least two (2) advocates of longstanding in actual practice. Mr. Monari
echoed that pupils should be paid and that advocates must accept that there
is a problem in the profession and they should, therefore, consider how to
deal with the problem. He observed that the Ethics and Compliance
239
Committee was created as a political tool to protect advocates who did not
want to face the Complaints Commission and the Disciplinary Committee.
Mr. John Tuta, the representative from the Ministry of Justice and
Constitutional Affairs (MOJCA), stated that there is a need to consider the
place of the MOJCA in the disciplinary process. Further, he noted that a
challenge lies in the analysing the twin institutions (the Advocates
Complaints Commission and the Disciplinary Committee) to see if it is
necessary to enhance or reduce their powers. Another question, he observed,
involves the role of the LSK and the Kenya School of Law in ensuring that
pupils attending law school are guaranteed pupillage.
In response to the concerns and comments as elucidated above, Professor

Bitonye clarified that the Kenya School of Law and the Continuing Legal
Education programme under the LSK are complimentary. He, however,
conceded that for a long time the pupillage programme had collapsed and
supervision of pupils by the School was not been carried out. He informed
the participants that there are proposals to expand pupillage sites to other
institutions that undertake substantive legal work. He further observed that
there is a need to set clearance from the Law Society on persons proposing
to take students on pupillage programmes and that motivation strategies
should be adopted to encourage advocates to take pupils in their chambers.
He confirmed that under the Kenya School of law new curriculum, the
programme will last for eighteen (18) months divided into two parts of six
(6) months for pupillage and twelve (12) months for studies at the School.
Mr. Tom Ojienda dispelled the notion that the Ethics and Compliance
Committee was created for political purposes and clarified that the
Committee was to the contrary established in good faith to help promote
conciliation and reconciliation permitted under sections 4 and 81 of the LSK
Act (Cap 18) and the Advocates Act (Cap 16) respectively.
Mr. King’arui recommended that amendments be made to the law to provide

for costs for instituting or defending a complaint at the Commission. He
confirmed that frivolous complaints are always dismissed by the
Commission. On the question of autonomy of the Commission, he noted
that the institution is not autonomous for it relies on the office of the
Attorney-General for funding which funding is always not sufficient to
enable the Commission run its operations to the full. He noted that the
Commission is not well staffed. As of now the institution has only two (2)
commissioners and eleven (11) legally-qualified staff members. He
commented that the Commission and the LSK should compliment each
other.
Mr. King’arui’s comments marked the end of the plenary session whereupon
the participants broke for tea/coffee break.
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The fifth session on the assessment/overview of the capacity of the

Disciplinary Committee was facilitated by Mr. Tom Ojienda. He started by
noting that the Disciplinary Committee deals with all types of disciplinary
offences without making a distinction between unprofessional conduct and
professional misconduct. He stated that the involvement of laymen in the
composition of the Committee is not desirable. He also observed that there
is a lacuna in the manner of the proceedings of the Committee and cited the
example of Uganda where the Law Council cannot proceed with hearing of
disciplinary matters unless it is satisfied that service was effected. Further,
he suggested that it is appropriate to publicize any proceedings before the
Disciplinary Committee and the Complaints Commission before and the
after the completion of the hearing. Table 2 below gives the highlights of the
presentation during this session.
Table 2: Overview of the Capacity of the Disciplinary Committee
TOPIC FEATURES
General -established under section 57 of the Advocates Act
Introduction -adjudicates upon alleged breaches of rules of
professional conduct by advocates and advocates’ clerks
-comprises of the AG, Solicitor General, or other person
deputed by the Attorney-General; six advocates (elected
by the Law Society); and three non-advocates appointed
by the AG on the recommendation of the LSK
-the secretary of the Law Society is also the secretary of
the Committee
-the members are to elected at different times so that the
expiry dates of their different terms fall at different times
-the Committee may constitute itself into a tribunal of
either three or five members to determine a complaint and
may require the chair or vice-chair of the Society or both
or any other member of the Council of the Society to sit
as an additional member of the Committee to constitute
the tribunal
-complaints may be made by any person though the
majority are brought by the Complaints Commission,
who will then prosecute
-proceedings of the Committee are deemed to be
judicial/legal proceedings
Powers of the -any complaint against an advocate for professional
Disciplinary misconduct may be made to the Disciplinary Committee
Committee -the Committee then gives the advocate against whom the
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complaint has been made a chance to appear before it and
inspect any relevant documents not less than seven days
before the hearing date
-after hearing the complaint and considering the evidence
adduced, the Committee may either:
 Refer any matter to the Complaints Commission
 Refer the case to the Council of the Law Society
 Allow or refuse the withdrawal of any application
 Dismiss summarily such complaint where it
appears that the same is frivolous or vexatious or
does not disclose a prima facie case
 Make a formal order discharging an advocate
where the complaint against him has been
dismissed summarily
 Make any such order as to payment by any party
(including the complainant) of any costs or
witness expenses and of the expenses of the
Committee
 Admonish an advocate
 Suspend an advocate from practice for a specified
period not exceeding five years
 Order an advocate to pay a fine not exceeding
Ksh. 1,000,000
 Order that the name of an advocate be struck off
the roll
 Order the compensation or reimbursement of an
aggrieved person not exceeding Ksh. 5,000,000
Jurisdiction to -order an advocate to produce before the Committee a
Determine detailed fee note
Costs/Fees -determine the fee payable to the advocate when she/he
fails to produce a detailed fee note before the Committee
-adjourn the complaint pending taxation
-make estimates of the costs due to the advocate and
order accordingly
-determine that the costs to which the advocate or firm of
advocates shall be entitled to be limited to such amount as
may be prescribed in its determination
-direct an advocate to comply, or to secure compliance,
with the requirement to refund, remit or waive the whole
or part of any advocate’s costs or fee or amount already
paid or on behalf of the client
-direct the advocates or firm of advocates to secure the
rectification of any error, omission or other deficiency
arising out of their fault
-direct the advocate to take at their own expense, such
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other action in the interest of the client as it may specify
6.0. SESSION 6: AN OVERVIEW ON THE ENFORCEMENT OF

ETHICAL STANDARDS
Professor Noel Cox and Mr. Tom Ojienda jointly facilitated the sixth session
which sought to highlight the enforcement of ethical standards in other
jurisdictions notably Tanzania, Uganda, Australia, Canada, England and
Wales, New Zealand, and South Africa.
In Australia, each state and territory is responsible for regulation of legal

practitioners in its jurisdiction. Thus legislation, admission rules,
professional standards, disciplinary procedures and so on vary from one
jurisdiction to another. In 2004, under the initiative of the Law Council of
Australia, there was published the National Legal Profession Model Bill.
This was endorsed by the States’ and Territories’ Attorney-Generals. It is a
model law on the regulation of the legal profession in the various states and
territories. The standard model of regulation in Australia is hence co-
regulation with lawyers’ professional associations and independent statutory
authorities having a role to play in the disciplinary process.
Professional associations assist with disciplinary matters and are responsible

for admission procedures. They can reprimand and impose minor penalties.
Serious conduct matters are a adjudicated or determined by the courts.
Statutory bodies on the other hand, administer the rules, investigate
complaints and resolve consumer disputes. The rules are established by each
jurisdiction’s legislature. In New South Wales, for example, the Office of
the Legal Services Commissioner (OLSC) handles all complaints about
solicitors and barristers, investigates complaints and resolves consumer
disputes. It works as part of the co-regulatory system together with the Law
Society of New South Wales (the professional body for Solicitors) and the
New South Wales Bar Association (the professional body for barristers). The
OLSC is however independent of the professional associations. The
Administrative Decisions Tribunal (ADT) receives cases referred to it by the
OLSC. The ADT can order compensation, further training, reprimand, fine,
suspend, or strike off. Appeals from the ADT lie to the ADT Appeals Panel.
In Canada, which is a federal state with separate legal professions in each

jurisdiction, the Canadian Bar Association does not discipline lawyers or
mediate lawyer-client disputes. The Law of Upper Canada (the professional
association for the province of Ontario), for example, uses Law Society by-
laws and rules of professional conduct, both based in the Law Society Act,
to set out the professional and ethical obligations of all members of the
profession. Members failing to meet these obligations are subject to the
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society’s complaints and discipline process, governed by the rules of
practice and procedure. In essence the model of regulation here is self-
regulation. Several primary agencies conduct formal hearings of disciplinary
causes including the Hearings Management Tribunal, Hearing Panel, Appeal
Panel and Appeal Management Tribunal. Review of Decisions is conducted
by an independent Complaints Resolution Commissioner.
In South Africa, the Law Society of South Africa (LSSA) is the umbrella
body of the attorney’s profession. Complaints against attorneys are heard by
the Provincial Law Society, where the attorney is registered. This is
completely outside the ambit of the LSSA. The Cape Law Society, for
instance, investigates and refers cases to the Disciplinary Committee, which
makes recommendations to the Council. The Council imposes a fine,
reprimand, inquires, or apply to the court to suspend or strike the attorney
from the roll. Formal inquiries are conducted by the Disciplinary enquiry
Committee (appointed by the Council, and including lay members).
Hearings are private and confidential.
In Uganda, the governing body of the legal profession is the Uganda Law
Society. The Advocates Disciplinary Committee is charged with the duty to
hear any complaints made against advocates. The complaint against an
advocate can be made either directly by the complainant to the Committee
or by the Law Council or Law Society. After considering a complaint and
determining that a prima facie case has been established, the committee
fixes a date of hearing of the complaint and serves the parties with a copy of
the complaint. The committee can hear proceedings in the absence of a party
who was served but fails to appear on the hearing day. The Committee can
however, order a re-hearing where the part who failed to appear so applies,
but only upon proof that failure to appear was due to a reasonable cause.
7.0. SESSION 7: PLENARY AND GROUP DISCUSSION
The participants were divided into three groups to deal with the three
disciplinary bodies i.e. the Advocates Complaints Commission, the
Disciplinary Committee and the Ethics and Compliance Committee. Each of
these groups was required to make recommendation on their body of
specialty as regards its composition, jurisdiction, funding, location,
enforcement, autonomy and existence. Table 3 below makes a summary of
the recommendations of each of the groups.
Table 3: Recommendations of the Group Discussions
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GROUP Advocates composition -a minimum of three (3) and a maximum
1 Complaints of six (6) commissioners
Commission -the LSK should nominate at least two
(2) commissioners
-one (1) nominee by the Attorney-
General
-one (1) nominee by the Minister for
Justice and Constitutional Affairs
-one (1) nominee by the Civil Society
-one (1) nominee by the Business
Society
-the president to appoint the
commissioners with the approval of
Parliament
Jurisdiction -extended to punish vexatious and
frivolous complainants
Location -secretariat to remain in Nairobi but
sittings of the Commission be
decentralized to the Provincial level
-secretariat be set up in the provinces
where there is a large number of lawyers
or where need arises
Funding -the LSK to contribute towards running
of the Commission
-Government to continue funding the
Commission but outsourcing should also
be increased
Enforcement -enforcement rules should be formulated
setting out rules for execution of the
Commission’s decisions
Existence -it is important that the Commission
continues to exist
Autonomy -separate the Commission the Office of
the Attorney-General
-the Commission should get funds from
the exchequer directly
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GROUP Disciplinary Composition -three Committee members should form
2 Committee a quorum provided at least one of them
is an advocate
-no council members should sit in the
tribunal to avoid manipulation
-the composition of a panel which
commences to hear a complaint should
conclude the matter
-though the lay men play virtually no
role in the Committee they should be
retained for public relations
Jurisdiction -what constitute a complaint is not
defined. It is thus entirely left for the
Committee to determine what is a
complaint for determination
-rules be promulgated to permit the
Committee to handle matters summarily
Location -the Committee should be decentralized
i.e. it should conduct circuit hearings
across the country
Funding -be provided for by the exchequer
-the Law Society should facilitate the
accommodation and travelling of the
Committee members during circuit
hearings
-at least three (3) Committee members
should be on permanent basis and
remunerable
Enforcement -the Committee should be empowered to
enable it enforce its own orders
Existence -to continue existing
Autonomy -need to make the body more
autonomous by making it financially
self-sustaining
GROUP Ethics and Composition -the convenor should be an advocate of
3 Compliance not less than ten (10) years standing
Committee while the others should be advocates of
not less than five years standing
-before local committees are constituted,
the advocates in that area/region should
be consulted
Jurisdiction -the local committees should have
jurisdiction within the region/area where
it is constituted
Funding -the LSK to provide the funding
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Enforcement -the committees to apply alternative
dispute resolution (ADR) principles
-once an ADR award has been made it
should be referred to the Disciplinary
Committee for summary action
Existence -to exist and should be publicised i.e. the
public should be sensitized about the
existence of the ethics and compliance
committees
Location -situated in major towns
Autonomy -not required
The presentations by the three groups were followed by a brief discussion.

Mr. John Tuta suggested that the penalties levied by the Commission be
converted to Commission funds. Mr. Obura recommended that rules be
developed for the Ethics and Compliance Commission. It was suggested by
Professor Bitonye that the three lay men who sits in the Disciplinary
Committee should be drawn from specific professions e.g. medical
practitioners, accountants etc. he also recommended that fees for lodging of
complaints be introduced. Mr. Munyithya proposed that advocates under the
discipline of the either of the disciplinary bodies should be supervised by
other advocates and thereafter be given a certificate of good service. It was
also proposed that there is a need to establish an advocate compensation
fund in which monies held by banks in client’s accounts and have earned
interest be transferred to the advocates’ compensation fund.
8.0. SESSION 8: CLOSING REMARKS
The closing remarks were delivered by Dr. Nightingale Rukuba-Ngaiza, the

World Bank Task Team Leader. She underscored the need to adhere to and
observe high ethical standards by giving the example of the World Bank
President who was forced to resign following allegations of malpractice. Mr.
Wolfowitz allegedly irregularly promoted her girlfriend one Shaha Riza. Dr.
Nightingale also gave her own experience with the judiciary in Uganda in a
dispute involving her brother and herself over distribution of her parents’
estate. She painted a gloomy picture of how a corrupt judiciary can be an
impediment to the administration of justice, which can only be overcome
when all stakeholders in the administration of justice remain committed to
upholding discipline. Dr. Nightingale’s remarks marked the end of the
workshop.
247
APPENDIX I
GROUP WORK DISCUSSIONS
LOCAL CHAPTER WORKSHOP-MOMBASA

STANDARDS & ETHICS
26TH MAY 2007
Questions:
institutions;
a) Composition
b) Jurisdiction
c) Location
d) Funding
e) Enforcement
f) Existence
g) Autonomy

3. Ethics Committee
248
APPENDIX II
LIST OF PARTICIPANTS
NAME Designation
Mombasa
1 Justus Munyithya Council Member, LSK
Chairman, LSK Mombasa
2 Joel O. Obura Branch
3 Jayant Shah Participant
4 Obara J. Participant
5 Samuel Odhiambo Participant
6 Pamela Tutui Participant
7 Geoffrey Were Participant
8 Samuel Ouma Participant
9 Faith Vanani Participant
10 Samson Okong'o Participant
11 Maurice Mkan Participant
12 Michael Sangoro Participant
13 Hezron Gekonde Participant
14 Wamuti Ndegwa Participant
15 Justus Mulwa Participant
16 Shitakha Tom Participant
17 Martin Walela Participant
18 Henry Muranje Participant
19 Anne Ngugi Participant
20 Priscah Obura Participant
21 Mercy Ngugi Participant
22 Patricia Langat Participant
23 Denis Omari Participant
24 Bosire Jared Participant
25 Abed O. Abed Participant
26 Cecilia Mango Participant
27 Michael Mwanyale Participant
28 Timami Lewa Participant
29 Mwahunga Mtana Participant
30 Edward Gichana Participant
31 Caroline Odhiang Participant
32 Manase Ananda Participant
33 Veronica Maina Participant
34 Caroline Katunja Participant
Malindi
249
35 Alfred Omwancha Participant
36 Samson Gekanana Participant
37 Martin Walela Participant
38 Henry Muranje Participant
39 Jared Machuka Getembe Participant
40 Anthony Okuto Participant
41 Ananda Manase Participant
Kilifi
42 Henry Kazungu Luganje Participant
Voi
43 Charles Kioko Participant
44 Onesmus Mwinzi Participant
Migori
45 Rodgers Abisai Participant
Meru
46 Florence Kajuju Participant
Kisumu
47 James Mwamu Participant
Eldoret
48 Roseline Odede Participant
Nakuru
49 Tom Ojienda Consultant
50 Benard Akango Participant
Nairobi
51 Nightingale Rukuba-Ngaiza Project Team Leader
52 Professor Noel Cox Consultant
53 Professor Kulundu Bitonye Speaker
54 Eric Mogeni Chairman, LSK
55 Evans Monari Council Member, LSK
56 Florence Mwangangi Council Member, LSK
57 Lilian Renee Omondi Council Member, LSK
58 Kenneth Akide Council Member, LSK
59 Kanyi Kimondo Council Member, LSK
60 Betty S. Nyabuto CEO/Secretary, LSK
Chairman, Complaints
61 Joseph King'arui Commission
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Convenor, Ethics & Compliance
62 John Mutungi Committee
63 John Tuta Legal Officer, MOJCA
64 Stephen Mwenesi Participant
65 Osoro K. Omwoyo Particpant
66 Hassan Omar Participant
67 Antony Kuria Participant
Secretariat
68 Preston Kithome
69 Angela King'oo
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THE DISCIPLINARY COMMITTEE – 2nd June 2007, Sarova
Stanley Hotel, Nairobi
REPORT OF THE NATIONAL WORKSHOP ON CAPACITY

BUILDING OF THE ADVOCATES COMPLAINTS COMMISSION
AND THE DISCIPLINARY COMMITTEE
2ND JUNE 2007, SAROVA STANLEY HOTEL NAIROBI
252
1.0. SESSION 1: INTRODUCTION AND PROJECT
SUMMARY
The National Workshop on Capacity Building for the Advocates Complaints

Commission and the Disciplinary Committee was held at the Sarova Stanley
Hotel on Saturday, 2nd June 2007. To kick off the Workshop, Miss Betty
Nyabuto, the Secretary/Chief Executive Officer of the Law Society of
Kenya (LSK) set forth an introduction and the project summary. She
explained that the Workshop was the final leg of a series of three workshops
two of which had previously been held in Kisumu and Mombasa for
purposes of collecting and collating views from lawyers as regards the
advocates’ disciplinary process.
The Project, duly funded by the World Bank, is part of the initiative of the
Government of Kenya, through the Ministry of Justice, to implement the
Governance, Justice, Law and Order Sector Reform Program (GJLOS),
whose objective is to address shortcomings in the formal justice system and
facilitate the implementation of reforms to strengthen institutions within the
sector. the legal profession is thus an effective actor in the legal and judicial
reform process and consequently, it is essential that it undergoes an internal
evaluation process of each of the roles it is mandated to play, and to identify
areas in which it could improve its quality, accountability, transparency and
independence.
It is in this light that the World Bank through its International Development
Fund has provided the LSK with an opportunity to assess the existing
framework for the enforcement of professional ethics, as well as to allow the
Disciplinary Committee and Complaints Commission to benefit from best
practices and successful techniques adopted by other commonwealth
jurisdictions. Professor Noel Cox and Mr. Tom Ojienda have been
contracted as International Consultant and Local Consultant respectively to
assess the Disciplinary Committee and the Complaints Commission and to
provide the LSK with a concise review of the shortcomings of these two
institutions and provide ways and means to improve them.
In conclusion, Miss Betty Nyabuto welcomed the participants to the

workshop and asked them to participate actively in the discussions. She
meticulously captured the essence of participation through the following
quote:
“Tell me and I will remember it for an hour,

Show me and I will remember for a day
But
Let me do it and I will remember it forever”
253
Miss Betty Nyabuto’s address was immediately followed by welcome
remarks by Mr. Eric Omogeni, the Chairman of the LSK. He welcomed the
participants and explained too, that the Workshop was the final under the
Consultancy on Capacity Building of the Complaints Commission and the
Disciplinary Committee. He underlined that the workshop was convened to
get the input of lawyers on the way the two institutions involved in the
advocates’ disciplinary process should operate and to ultimately regain the
public’s fast waning confidence on the legal profession.
He also noted that the LSK desires that the lawyers take ownership of the
final product that will result from the consultancy and the workshops. In
2001, he recalled, a similar consultative and participatory process led to the
introduction of the Continued Legal Education (CLE) and the amendments
to the Advocates Act (Cap 16) with the effect of buttressing the powers of
the Advocates Complaints Commission.
He lamented that though the Advocates’ disciplinary process is a joint

venture between the Government and the LSK, the Government has
sometimes shown disrespect for the process. He particularly cited the case
of an advocate who had been struck out of the roll of advocates for failing to
account Ksh. 7,000,000 yet the Government had subsequently appointed the
same person to the East Africa Legislative Assembly (EALA). He regretted
that the EALA had been turned into a dumping ground for “thieves” and that
the Government was rewarding such persons by such appointments. He
therefore asked the Government to show respect for the decisions of the
Advocates Complaints Commission and the Disciplinary Committee.
Mr. Omogeni also invited the participants to be open in the deliberations. He

clarified that the chairman of the Advocates Complaints Commission, Mr.
Joseph King’arui, was not present in the workshop with the intention of
victimising any person who will make suggestions or comments adverse to
the Commission. Rather, Mr. King’arui was present to show that there was a
human face of the Commission. He referred to him as a progressive man
who has initiated some reforms at the Commission including deliberate
promotion of reconciliation between advocates and complainants.
Therefore, it is always not the case that a letter from the Commission
connotes the start of a protracted hearing of a complaint against the
advocate.
Finally, Mr. Omogeni noted that gone are the days that the LSK assumed the
role of the official opposition party in the country. He stated that the legal
profession is universally recognised as providing the first line of defence on
human rights abuse and erosion of the rule of law. As such, the profession’s
independence in accordance with the United Nations’ standards is
paramount. He thanked the participants for coming for the workshop,
254
wished them fruitful deliberations and declared the workshop officially
opened at 09:56 a.m.

CAPACITY OF THE ADVOCATES COMPLAINTS
COMMISSION
Miss Betty Nyabuto introduced Professor Noel Cox who facilitated this
session that was aimed at making an assessment or overview of the capacity
of the Advocates Complaints Commission. Professor Noel Cox took the
participants through the strengths and weaknesses of the Complaints
Commission in a bid to show the changes that may be effected to ensure that
the Commission works well in its contemporary role. Whilst appreciating
that no system of disciplinary process is perfect, he stated that the challenge
is in finding the most efficient disciplinary process. He highlighted, amongst
others, the following weaknesses of the Commission.
a) The Commission is faced with large numbers of complaints which it

cannot effectively handle. As a consequence, the process of
determining these complaints is slow and always delayed. Professor
Cox noted that to deal with this problem there is a need to increase
the resources of the Commission both in terms of personnel and
infrastructure. In this regard, there is a need for the computerization
of the process. The staff numbers and the staff experience or
competence must be increased. He noted that the system is capable
of significant improvement and that it is worth taking the burden to
improve it.
He suggested that there is need for additional training particular in

the unique task of prosecution before the Disciplinary Committee.
This is because the task of prosecuting a fellow advocate is a very
challenging. Consequently, the disciplinary process is the most
difficult in the legal profession. He observed that the profession must
be aware that there is a high public expectation that not only will
justice be done but it will also be seen to be done.
b) Lack of efficient communication between advocates and their clients

on the one hand, and advocates and the Commission on the other
hand. Failure of advocates to communicate efficiently with their
clients leads to a majority of the complaints and thereafter, failure of
the advocate to respond to communications from the Commission
delays the disciplinary process. In this regard, Professor Cox
observed that advocates should be able to communicate efficiently
with their audience which may include the Commission, their
clients, the Court and their fellow advocates. As such, he said, that
255
though one may not like the contents of a letter from the
Commission, as an advocate he is obliged to respond.
c) The Commission is perceived as been not independent considering

that it is a Government body and that historically, it was created to
punish errant lawyers who were seen to be against the Government.
Noting that the independence of the Commission is very important,
Professor Cox, emphasized that the Commission should be a
Governmental body which is independent. The process should be
transparent. He also observed that the transparency and
independence of the disciplinary process in Kenya is particularly
important as the nation approaches a national election.
Professor Cox then invited Mr. Ojienda to facilitate a discussion arising out
of the review of the capacity of the Complaints Commission. Mr. Ojienda,
noting that the powers of the Commission had been met with resistance,
invited Mr. Joseph King’arui to demystify the roles and mandate of the
Commission.
The chairman of the Commission began by clarifying that the Commission

was not just set up to punish lawyers but rather to instil confidence of the
public on the legal profession. He informed the participants that currently
the Commission is constituted of thirteen personnel two of which are
Commissioners. He conceded that this number is very small to serve the
whole country. As the chairman of the Commission, stated Mr. King’arui, he
has travelled to the countryside on official duties and the general view
emerging from the public is that the legal profession is not trustworthy. In
these visits, he has always tried to explain to the citizenry that it is their duty
to pay advocates their fees and that getting a judgment in a court of law does
not necessarily translate to getting money for the judgment must first be
executed which process might take long or sometimes completely unfruitful.
In addition, Mr. King’arui stated that Commission exists for the good of the
legal profession. The Commission does not invite people to make
complaints but receives complaints. He sought to rectify the misconception
that the Commission always commences proceedings against an advocate
when a complaint is made. To the contrary, the Commission institutes
preliminary enquiries to establish whether a complaint has merit or not.
Only when a complaint has merit does the Commission take further action.
The greatest problem that the Commission faces, he observed, is the failure
of the advocates to respond to correspondence from the Commission.
He also advised the participants to employ the use of customer care in their
offices. This will ensure that the clients are well aware of the situation of
their cases. He also invited them to report any malpractice in the
Commission which the advocates might be aware of. As a parting shot, he
256
observed that it is unfortunate that the “bad” lawyers rarely attend such
workshops.
Following Mr. King’arui’s presentation, the floor was opened for discussion
by the participants. Mr. Nyang’au, the first speaker, started by commenting
that the existence of the Commission is desirable, for if it were not there
some advocates would have been killed by their clients. He then raised five
issues pertinent to the operations of the Commission. First, he stated that the
Commission’s letterhead is printed in red colour which, in his view, is not a
desirable colour. He thus invited the Commission’s chairman to consider
changing the colour of the Commission’s letterhead. The Chairman of the
Commission responded that the issue was already under consideration.
Secondly, he observed that the language used in the letters sent to advocates
by the Commission always puts the advocates on their defence. The
language used always connote that the advocate is guilty of the complaint
contained therein.
Thirdly, he observed that some of the complaints are always raised long
after the alleged offence was committed or omitted. As such, the advocate in
question may have closed the files, destroyed the evidence or even died. In
any event, owing to the fact that the alleged offence was committed or
omitted, it will take the advocate in question quite a lengthy time to trace the
file yet he/she is only given twenty-one (21) days to reply to the complaint.
He therefore suggested that a time limitation for filing a complaint before
the Commission should be put in place to counter such problems. Fourthly,
he noted that the practice of requiring a reference from the Commission
before an advocate is appointed to a public office is erroneous. This is
particularly so when an advocate has a complaint pending before the
Commission and consequently cannot be appointed to a public office yet the
complaint has not been determined to establish whether the advocate is
guilty or not. This means that such an advocate is condemned unheard.
Finally, Mr. Nyang’au questioned the rational behind striking an advocate

off the roll of advocates. He based his argument on the fact that where an
advocate is struck off the roll of advocates and his firm is subsequently
dissolved, the client is left to suffer because his monies which was the
subject matter of the complaint remains unpaid. He suggested that in
situations where an advocate is struck off the roll of advocates, the LSK
should be mandated to run his/her firm so as to get monies to pay off the
client who suffered as a result of the advocate’s misconduct.
A second speaker lamented that despite the fact he had severally written to
the Commission about a case in which an advocate for the purchaser did not
forward the purchase money to him being the Vendor’s advocate, the
Commission has failed to reply or address the issue. He stated that his client
was now seriously threatening to consult the outlawed the Mungiki sect to
257
deal with him. In response Mr. King’arui whilst stating clearly that the
workshop was not the forum to raise such issues, he invited the advocate to
submit the reference number of the file for him and/or the Commission to
take action.
A third speaker sought to know the period within which a complaint found
to be frivolous is closed. In response, Mr. King’arui stated that like other
Governmental officers, the Commission’s staff was under performance
contracts and the Service Charter which requires them to complete their
tasks within a stipulated time frame.
Thereafter, Mr. Ojienda raised several questions regarding the powers,

mandate and functions of the Commission. He questioned the power and
capacity of the Commission to tax advocates’ bill of costs. He also noted
that the Commission has wide powers which allows it to investigate
complaints, determine those complaints, execute their decisions after
determination and also prosecute complaints before the Disciplinary
Committee. These powers, he said, were bound to be against the principle of
separation of powers thus rendering the Commission unconstitutional.
On commissioners being Presidential appointees, Mr. Ojienda wondered

whether the commissioners can be trusted to offer impartial decisions. He
also observed that it is high time that complainants swear affidavits on their
own. The current position allows the commissioners to swear affidavits on
behalf of the complainants. Another issue concerned the power of the
Commission to order costs as against the advocate but not as against the
complainants. He suggested that this position should be reviewed to allow
the commissioners to order costs as against complainants too. Finally, Mr.
Ojienda regretted that there are no rules of procedure and the commission
currently “gropes in the dark.” He suggested that rules of procedure to guide
the operations of the Commission should be promulgated.
At 10:48 a.m. the participants broke off for tea/coffee break.

Once again Miss Betty Nyabuto introduced Professor Cox who was
responsible for giving a review/overview of the capacity of the Disciplinary
Committee. He commenced by noting that unlike the Advocates Complaints
Commission whose main role is investigatory in nature, the Disciplinary
Committee’s role is to adjudicate over complaints. On the composition or
constitution of the Committee, he noted that there are significant numbers of
advocates who are the representatives of the legal profession. There are also
258
three lay members who sit in the Committee including the representatives
from the Attorney General’s chambers.
The Committee may hear and determine any complaint. Professor Cox
Observed that this power may raise questions as to what exactly constitutes
a complaint. There is therefore a need to succinctly define a “complaint.”
On the power of the Committee to order the punishment of an advocate,
Professor Cox observed that some punishments envisaged by the Advocates
Act (Cap 16) are theoretical in nature. This is because in its life, the
Committee has never employed the use of such punishments. The power of
the Committee, for example, to direct an advocate an error, has rarely been
used if at all by the Committee. Further, the Act stipulates that the
Committee may admonish an advocate without stating exactly what
admonishing means. In this regard, observed the Professor, the public do not
appreciate admonishment as a proper or adequate punishment or serious
sanction.
Still on the issue of punishments, Professor Cox observed that the

suspension or striking off an advocate off the roll of advocates lacks
efficient supervisory or enforcement mechanisms. Suspended advocates or
those who have been struck off the roll of advocates more often than not,
migrate to a new town, often an upcountry town, and continue practising
there albeit illegally. Nevertheless, Professor Cox noted that striking an
advocate off the roll of advocates is like a death sentence for it excludes one
from the profession and thus, whenever it is employed, it should be used
carefully and with a lot of precaution. Suspension or striking off an advocate
off the roll of advocates should promptly be followed by publicity of the
same to prevent such advocates from unleashing themselves to the
unsuspecting public.
Professor Cox then invited Mr. Ojienda to facilitate a discussion on issues

emanating from the review or overview of the capacity of the Disciplinary
Committee. Mr. Ojienda first lauded the composition of the Committee to
the extent that it allows the participation of the LSK in electing a majority of
the members. He also lauded the rotational retirement system which
guarantees continuity in the life of the Committee. He however lamented
that the three lay members only add to the number of the Committee by
their physical presence. He questioned whether the lay persons serve any
purpose at all.
Other issues raised by Mr. Ojienda include the role and the rationale of the
secretary of the LSK as the secretary of the Committee; the power of the
Committee over advocates’ clerks which it has rarely used if at all; criteria
for sentencing; and the lack of rules for taxation of advocates’ bill of costs.
Mr. Ojienda cited the example of Uganda where the Committee sits as a
panel and holds a preliminary enquiry to establish if a complaint has merit
259
for a formal charge to be instituted against an advocate. He also invited the
participants to think over whether the open door policy which allows the
presence of the media and the public during the Committee’s hearings is
desirable.
In addition, Mr. Ojienda, largely drawing from his past experience as a

prosecutor and a panellist in the Disciplinary Committee, stated that he finds
section 60 of the Advocates Act which allows any person to file a complaint
against an advocate erroneous. In his view, the phrase “any person” should
be strictly construed to mean any person who has a link or a fiduciary
interest in the complaint in question. In conclusion, Mr. Ojienda stated that
unprofessional conduct should be statutorily defined and that the LSK
Digest of Professional Conduct and Etiquette should be promulgated.
Following Mr. Ojienda’s introduction of the discussion session, the floor

was opened for discussion by the participants. Mr. Kenneth Akide raised
four concerns. First, he highlighted the provision that allows an LSK
Council member to sit in the Disciplinary Committee may serve the purpose
of serving the LSK interests thus creating a conflict of interest. Secondly, he
noted that there are no sentencing manual thus leaving the fate of an
advocate on the whims of the Committee. In this regard, he suggested that
sentencing criteria should be set up. Thirdly, he reiterated the need to define
unprofessional conduct. lastly, he proposed that a client protection system be
established to ensure that once an advocate has been struck off the roll of
advocates, the client can still be paid his monies.
Mr. Nyang’au made several proposals as regards the constitution and

mandate of the Complaints Commission and the Disciplinary Committee.
He proposed, in the first instance, that the Commission and the Committee
should be merged with the result being that the Commission will
subsequently be a department under the Committee. This will ensure that the
problem of parallel jurisdictions currently witnessed between the
Commission and the Committee will be solved. In the second instance, he
proposed that if the two institutions are to operate independently, then
section 60 of the Advocates Act (Cap 16) should be amended to bar parallel
proceedings before the Commission and the Committee. In essence, the
principle of res judicata should be applied in the disciplinary process.
In proposing that the Disciplinary Committee and the Complaints

Commission should be decentralized to other parts of the country in line
with the LSK chapters, Mr. Nyang’au observed that the Commission and the
Committee were established during the time when lawyers were few in
Kenya but since the number of lawyers has significantly increased there is
need for decentralization of the disciplinary process. Lastly, Mr. Nyang’au
proposed that the Commissioners of the Commission should not be
appointed by the President but by the LSK.
260
Mr. Tom Mutei who is currently sitting in the Disciplinary Committee
explained that it is possible for an advocate to be severally struck off the roll
of advocates when several complaints are brought against him/her. For each
of these complaints, the Committee may strike the advocate off the roll if he
is found guilty and striking him/her off the roll is deemed the best
punishment. He noted that though there is a tendency for advocates to raise
preliminary objections during the hearing of complaints before the
Commission, the panellists usually tend to look into the real issued for
determination before the Committee.
Mr. George Kimondo, who has served in the Disciplinary Committee for
three years and currently sitting in the Committee, asserted that the lay
persons do not significantly contribute to the operations of the Committee.
In most circumstances, they do not comprehend the proceedings. He also
stressed that the Committee’s lacks a sentencing guideline. On swearing of
affidavits by the Commissioners, Mr. Kimondo noted that in most cases the
Commission fails to trace the complainant so as to be cross-examined to
verify the contents of the affidavits compelling the Commission to withdraw
the complaint or the Committee strikes out the complaint. He thus
emphasized that the law should be reviewed to make it obligatory for the
complainants to swear the affidavits on their own. On execution of the
Committee’s decisions, he conceded that there are no monitory mechanisms
and stated that the onus lies on the LSK to set up such a mechanism. Finally,
he confirmed that the Committee has never made any
Mr. Ojienda observed that it would be important to determine first whether a

complaint is of a civil or criminal nature so as to determine the limitation of
actions. He also suggested that when a complaint is found to lack merit by
the Committee, then the Complaints Commission being the prosecutor
should be ordered to pay the costs of the complaint. A participant averred
that instead of fusing the Complaints Commission with the Disciplinary
Committee and thus dragging the Attorney-General into the new body, a
more radical approach of scrapping off the Complaints Commission should
be adopted. He suggested that a new body be established to be referred to as
the Complaints and Disciplinary Committee. In conclusion, he asserted that
by virtue of the fact that the public has historically judged lawyers harshly,
then the presence of lat persons in the Committee means that advocates
appearing before the Committee have already been judged guilty by the lay
persons. He also challenged the constitutionality of the Commission
asserting that the prosecutorial and decision making roles of the
Commission may be unconstitutional rendering the Commission void.
261
4.0. SESSION 4: A COMPARATIVE STUDY OF ETHICS
ENFORCEMENT SYSTEMS
Professor Cox took the participants through a comparative study of the

ethics enforcement systems in other commonwealth jurisdictions notably
Australia, Canada, England and Wales, New Zealand, South Africa,
Tanzania and Uganda.
In Australia the standard model is co-regulation with both the lawyers’

professional association and independent statutory authority involved in the
disciplinary process. The lawyers’ professional associations are responsible
for admission procedures, assist with disciplinary matters and reprimand
and impose minor penalties. Serious conduct matters are determined by the
courts. The independent statutory authorities on the other hand, administer
the rules, investigate complaints and resolve consumer disputes. New South
Wales, for example, has an Office for the Legal Services Commissioner
(OLSC) which handles and investigates all complaints against solicitors and
barristers. It resolves consumer disputes. It works as part of a co-regulatory
system together with the Law Society of New south Wales (the professional
body for solicitors) and the New South Wales Bar Association (the
professional body for barristers). It is however independent of the
professional associations.
There is also an Administrative Decisions Tribunal (ADT) which has power

to order compensation, reprimand, fine, suspend, strike off and order further
training. The option for further training is founded on the fact that the
problem may not always be the conduct of a lawyer but incompetence.
In Canada, the standard model is self-regulation. The Canadian Bar

Association does not discipline lawyers or mediate lawyer-client disputes.
This is the ambit of the Law Societies in each province or territory. For
example, the Law Society of Upper Canada which is the professional
association for the province of Ontario uses Law Society by-laws and Rules
of Professional Conduct, both based in the Law Society Act, to set out the
professional and ethical obligations of all members of the profession.
Members failing to meet these obligations are subject to the society’s
complaints and discipline process, governed by the Rules of Practice and
Procedure.
In England and Wales, regulatory and representative functions of the legal

professional association have been separated. There is a Legal Complaints
Service of the Law Society of England and Wales which Investigates
complaints and has equal numbers of legal and non-legal members. Appeal
from the Legal Complaints Service lies to the Legal Services Ombudsman.
The Legal Services Ombudsman investigates the handling of complaints by
professional bodies. On the other hand, Solicitors Regulation Authority of
262
the Law Society of England and Wales takes regulatory action and refers
prosecutions to Solicitors Disciplinary Tribunal. The Solicitors Disciplinary
Tribunal is independent of the Law Society, but funded by it. Three
members inclusive of one lay person hear each case.
In New Zealand, lawyers belong to lawyers belong to one of the fourteen

district law societies. District law societies are not branches of the New
Zealand Law Society; they are independent with their own separate powers
that require them to investigate complaints about their members. As from
2008, there will be a new system which will be comprised of three statutory
elements: Lawyers Standards Committees; Legal Complaints Review
Officer; and New Zealand Lawyers and Conveyancers Disciplinary
Tribunal.
In South Africa, complaints against Attorneys are heard by the Provincial

Law Society, where the attorney is registered. This is completely outside the
ambit of the Law Society of South Africa (LSSA) which is the umbrella
body of the attorney’s profession in South Africa. The Cape Law Society,
for example, investigates, and refers cases to the Disciplinary Committee,
which makes recommendations to the Council. The Council imposes fines,
reprimands, inquires, or applies to the Court to suspend or strike the
Attorney from the Roll. Formal inquiries are conducted by the Disciplinary
Enquiry Committee which is appointed by the Council, and includes lay
members. Hearings are private and confidential.
In conclusion, the common model is co-regulation, with governmental

agencies and professional associations being involved. Usually professional
associations are responsible for regulatory matters such as admission,
practising certificates, making practise rules, receiving and investigating
complaints, and resolving disputes. Independent, often statutory bodies are
usually responsible for disciplinary procedures per se, though they may
include investigation and mediation functions also.
After Professor Cox made his presentation on the comparative study,

participants were divided into three discussion groups. Group 1, 2 and 3
were meant to recommend on the changes to be made on the Complaints
Commission, the Disciplinary Committee and the Ethics Committees
respectively. Each group was to be guided by a work sheet which limited the
parameters to be discussed to the following: composition, jurisdiction,
location, funding, enforcement, existence, and autonomy. Having been
divided into the said groups, the participants broke off for lunch from
whence they proceeded to their respective groups for the discussion session.
263
5.0. SESSION 5: PLENARY AND GROUP DISCUSSION
Having had deliberations in their discussion groups, the participants made

recommendations that they wished should be effected in the three
institutions that are currently involved in the advocates’ disciplinary process
in Kenya. Their recommendations are summarized in the table below.

GROUP Advocates composition -the Commission should be composed
1 Complaints seven commissioners in total; two
Commission commissioners for Nairobi and one each
for the other LSK chapters
-a commissioner should be qualified to
be a judge
-there should be gender balance
Jurisdiction -promotion of reconciliation
-investigation of complaints
-preparing opinions and forwarding
them to the Disciplinary Committee
-all complaints to commence at the
Commission
-all affidavits and statements should be
sworn/done by the complainants
-the procedure of the Commission be as
per the Civil Procedure Act
Location -decentralized
Funding -from the consolidated fund
Enforcement -as per the Civil Procedure Act
Existence -no consensus but provided the
following options
 The Commission to be run by the
LSK
 The Commission be abolished
completely
 The Commission be delinked
from both the Attorney-General’s
office and the LSK
Autonomy -this will depend on the option adopted
on the existence of the Commission
264
GROUP Disciplinary Composition -the three lay men should be removed
2 Committee from the composition of the Committee
- the Attorney-General should only be a
member not a chairman of the
Committee
-the number of advocates should be
increased
-the chairman of the Committee should
be an advocate
Jurisdiction -professional misconduct and
unprofessional conduct should be
defined
-section 60 of the Advocates Act should
be amended to replace “any person”
with “the complainant”
-the parallel jurisdiction between the
Commission and the Committee should
be addressed
-decisions of the Committee should be
gazetted or publicised through the media
Location -decentralize the Committee to be in line
with the LSK chapters
Funding -funding be provided by the Ministry of
Justice
Enforcement -monitoring should be done by the LSK
and the courts
-enhance the capacity of LSK to monitor
enforcement through provision of
resources
Existence -it is relevant and provides self-
regulation for the profession
Autonomy -the Committee should be given
complete autonomy
-the powers of the Attorney-General in
the Committee should be removed
GROUP Ethics and Composition -a committee member should have seven
3 Compliance years experience in private practice
Committee -the committee members should be
proposed by the local chapters
Jurisdiction -the committees should not have
jurisdiction if a complaint is pending
before either the Complaints
Commission or the Disciplinary
Committee
-should be restricted
265
Funding -funding to be provided by the LSK
-LSK should establish secretariat for
each of the committees
-a poor man’s box should be established
to assist poor complainants
Enforcement -enforcement be effected through the
LSK e.g. by referring a matter to the
Disciplinary Committee where
appropriate
Existence -its existence is appropriate
Location -the current location under the LSK
chapters is appropriate
Autonomy -semi-autonomous
6.0. SESSION 6: WAY FORWARD AND CLOSING REMARKS
Professor Noel Cox reiterated that the purpose of the three workshops held
in Kisumu. Mombasa and Nairobi was to get the views or the opinion of the
lawyers concerning the disciplinary process. He said that so in general terms
the views received from the members was generally consistent with the draft
report prepared by the consultants prior to the commencement of the
workshops. He noted that the code of ethics currently guiding the legal
profession in Kenya is inadequate as compared to the international norms.
He finally concluded by saying that it is ultimately the profession’s role to
chart its own code of ethics and conduct and that the success of the
disciplinary process depends on the participation of all the members of the
profession.
Professor Cox’s concluding statements were followed by closing remarks

delivered by Miss Betty Nyabuto. She thanked the participants for choosing
to attend and actively participate in the workshop. She confirmed that the
input that the participants had made that day would be collated to form part
of the report of the consultancy. She announced that there will be another
national workshop on 9th June 2007 at the same venue (Sarova Stanley
Hotel, Nairobi) on component B of the World Bank Grant. Under
Component B, an international consultant, Dr. Venkat Iyer from the United
Kingdom and two local consultants, Mr. Rautta Athiambo and Dr. Elizabeth
Muli, have been contracted for the purposes of assessing the current
framework for professional development of lawyers, reviewing existing
local capacity for the conduct of Continuing Legal Education and preparing
a proposal of rules and regulations to be adopted by the profession.
Miss Nyabuto confirmed that the consultants under Component B had made
visits to the LSK local chapters to collect views from members and were
expected to deliver the results of the visits during the national workshop.
266
She also informed the participants that the consultants will develop a pilot
training syllabus which will be circulated to all LSK members for approval.
She invited the participants to register for the Commonwealth Lawyer’s
Conference to held in Nairobi in September and the Annual LSK retreat.
The country to be visited this year for the retreat is Mauritius. She thanked
the Chairman of the Complaints Commission, Mr. Joseph King’arui, the
LSK chairman, Mr. Eric Mogeni, the LSK Council members and Branch
officials and all participants for their contribution during the workshop. All
participants were awarded two CLE units and reimbursed their travel
allowances. The workshop was finally closed at 15:59 p.m.
267
APPENDIX I
GROUP WORK DISCUSSIONS
NATIONAL WORKSHOP-NAIROBI
STANDARDS & ETHICS
2ND JUNE 2007
Questions:
institutions;
a) Composition
b) Jurisdiction
c) Location
d) Funding
e) Enforcement
f) Existence
g) Autonomy

3. Ethics Committee
268
12.5 NOTE ON AUTHORS
PROFESSOR NOEL COX (International Consultant and Team

Leader)
LLB LLM(Hons) MTheol(Hons) PhD Auckland LTh Wales (Lampeter) MA

Lambeth GradDipTertTchg Auckland (Technology). Professor of
Constitutional Law, School of Law, Auckland University of Technology,
Auckland, New Zealand. Barrister of the High Court of New Zealand, and
of the Supreme Courts of the Australian Capital Territory, New South Wales,
the Northern Territory, Queensland, South Australia, Tasmania and Victoria.
Currently Convener, Public Issues Committee, Auckland District Law
Society, and Member of the Auckland University of Technology Ethics
Committee. From 2010 he has been Head of the Department of Law and
Criminology, and a Professor of Law, at Aberystwyth University, in the
United Kingdom.
TOM ODHIAMBO OJIENDA (Local Consultant)
LLB Nairobi LLM London (King’s College) Postgraduate Diploma in Law

Kenya School of Law Diplôme de langue Alliance Francais de Paris. Senior
Lecturer and Head of the Department of Legal Clinics and Externships,
School of Law, Moi University, Eldoret. Odhiambo & Odhiambo,
Advocates, Nakuru. President, East Africa Law Society, and past Chairman,
The Law Society of Kenya.
269
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275
INDEX
accounts, 10, 32, 63, 67, 82, 83, 135, 136, 138, 142, 143, 191,
90, 191 192, 193, 194, 196, 197, 199,
admission to practise, 10, 22, 31, 203, 204
32, 34, 46, 47, 58, 79, 80, 191, Advocates Training Programme,
202 8, 10, 25, 80, 189, 191, 270
Advocate’s (Deposit Interest) advocates’ practice rules and code
Rules, 18, 144, 177, 199 of conduct, 8, 12, 25, 112, 120,
Advocates (Accountant’s 144, 189, 193
Certificate) Rules, 18, 41, 125, American Bar Association, 31
144, 177, 199, 270 Attorney-General, 11, 13, 14, 41,
Advocates (Accounts) Rules, 18, 49, 56, 57, 77, 85, 87, 92, 100,
41, 125, 144, 149, 177, 199, 101, 102, 114, 116, 117, 118,
270 119, 120, 121, 123, 128, 131,
Advocates (Complaints 192, 194, 195
Commission) (Structure and Barristers Complaints Bureau, 56
Procedure) Rules, 11, 13, 100, Board of Inquiry, 85, 86
101, 102, 117, 192, 194 Canadian Bar Association, 52
Advocates (Complaints Cape Law Society, 67
Commission) (structure and case management system, 12, 16,
Procedure) Rules 2003, 100 104, 105, 106, 107, 137, 193,
Advocates (Complaints 197
Commission) (Structure and Chartered Institute of Patent
Procedure) Rules 2003, 11, Agents, 58
100, 102, 192 Chief Justice, 16, 133, 138, 176,
Advocates (Practice) Rules, 11, 197
18, 41, 99, 125, 144, 145, 149, Code of Conduct and Ethics, 78
177, 178, 188, 192, 199 Code of Conduct for the Bar of
Advocates Act, 10, 11, 13, 14, 22, England and Wales, 56
23, 41, 68, 77, 78, 80, 83, 84, code of ethics, 19, 177, 199
85, 86, 87, 88, 89, 90, 91, 92, Commission on Professionalism,
94, 100, 102, 110, 111, 114, 31
118, 120, 121, 122, 124, 125, Commissioners, Advocates
126, 128, 131, 144, 191, 192, Complaints Commission, 11,
194, 195, 202, 203, 204, 270 13, 88, 100, 101, 102, 103, 104,
Advocates Complaints 116, 192, 194
Commission, 10, 11, 12, 13, 15, Committee on Continuing Legal
16, 18, 22, 23, 25, 41, 59, 76, Education, 82
77, 80, 83, 84, 86, 87, 102, 105, complaints, 10, 41, 47, 49, 50, 53,
106, 108, 109, 110, 111, 112, 59, 60, 62, 63, 64, 67, 68, 80,
113, 114, 115, 116, 117, 118, 83, 85, 86, 88, 89, 90, 91, 92,
119, 122, 124, 125, 126, 128, 102, 104, 107, 108, 109, 111,
276
112, 114, 115, 119, 121, 125, Institute of Legal Executives, 58
126, 127, 128, 129, 130, 132, Institute of Trade Mark Attorneys,
134, 135, 136, 191, 203 58
Complaints Resolution Judicial Service Commission, 78
Commissioner, 53, 119 Judicial Services Commission, 14,
Consultation Paper on the Review 123, 195
of the Regulatory Framework Law Council of Australia, 46
for Legal Services in England Law Society of England and
and Wales, 58 Wales, 59, 107, 122
continuing legal education, 8, 10, Law Society of Kenya, The, 6, 7,
22, 79, 82, 189, 191, 202 8, 9, 13, 15, 16, 17, 18, 22, 23,
Council of Legal Education, 10, 24, 25, 27, 41, 76, 79, 84, 86,
80, 81, 191, 271 112, 114, 115, 116, 117, 120,
Criminal Bar Association of New 121, 124, 130, 134, 138, 139,
Zealand, 61 141, 144, 148, 149, 177, 179,
Digest of Professional Conduct 187, 189, 194, 195, 197, 198,
and Etiquette, 41, 144, 148, 272 199, 202, 203, 204, 205, 208,
Directions Officer, 15, 137, 196 272, 273, 274
Disciplinary Committee, 6, 9, 10, Law Society of New South Wales,
11, 12, 13, 14, 15, 16, 17, 18, 49
22, 23, 24, 25, 41, 59, 67, 68, Law Society of South Africa, 67
76, 77, 80, 85, 86, 88, 91, 92, Law Society of Upper Canada, 52
94, 95, 98, 103, 105, 106, 107, Lawyers and Conveyancers Act
108, 109, 111, 112, 113, 114, 2006 (NZ), 61, 64, 96, 98
115, 116, 117, 118, 120, 121, Lawyers Standards Committees,
122, 123, 124, 125, 126, 134, 64, 66, 73
135, 136, 137, 138, 140, 141, lay members, 14, 35, 54, 58, 62,
143, 144, 191, 192, 193, 194, 65, 73, 113, 116, 121, 122, 137,
195, 196, 197, 198, 199, 203, 195
204, 270, 272, 274 Lay Observer, 62
Disciplinary Enquiry Committee, Legal Complaints Review Officer,
68 65, 66, 73
District Disciplinary Tribunal, 62 Legal Complaints Service, 58, 59,
Ethics and Compliance 60, 73, 114
Committee, 12, 112, 193 Legal Ombudsman Victoria, 47
former practitioners, 10, 78, 191 Legal Profession Act 1987
frivolous appeals, 16, 137, 197 (NSW), 49
General Council of the Bar, 68, Legal Profession Act 2004
272 (NSW), 49
Governance, Justice, Law and Legal Profession Ombudsman,
Order Sector Reform 13, 118, 119, 194
Programme, 6, 8, 22, 189 Legal Services Division of the
inadequate professional services, Administrative Decisions
11, 91, 95, 98, 99, 108, 135, Tribunal, 50
143, 176, 192 Legal Services Ombudsman, 53,
Inns of Court, 55, 56, 57 59, 73, 114, 119
277
Lord Chancellor, 59 regulatory function, 13, 28, 41,
Master of the Rolls, 60 42, 46, 47, 49, 50, 52, 58, 59,
Ministry of Justice, 202 60, 61, 64, 73, 75, 108, 109,
National Practice Model Laws 113, 114, 115, 122, 194, 207
Project, 46 representational function, 13, 49,
New South Wales Bar 115, 194
Association, 49 Roll of Advocates, 10, 16, 78,
New Zealand Bar Association, 61 138, 139, 191, 197
New Zealand Law Practitioners Royal Commission on legal
Disciplinary Tribunal, 62, 98 services, 30
New Zealand Law Society, 61, Rules of Professional Conduct for
62, 63, 64, 66, 98, 274 Barristers and Solicitors, 61, 98
New Zealand Lawyers and Solicitor-General, 14, 85, 120,
Conveyancers Disciplinary 121, 123, 195
Tribunal, 65, 66, 74 Solicitors Regulation Authority,
Nova Scotia Barristers’ Society, 59, 60, 73, 113, 122
52 Solicitors Trust Account
Office of the Legal Services Regulations, 98
Commissioner, 47, 49, 50 Solicitors’ Fidelity Guarantee
practising certificate, 10, 18, 32, Fund, 63
80, 97, 99, 144, 178, 191, 199 State Law Office, 77, 87
professional misconduct, 11, 32, Statute Law (Miscellaneous
33, 44, 61, 62, 63, 81, 82, 83, Amendments) Act No. 2 of
85, 91, 95, 98, 99, 100, 108, 2002, 83, 89, 90, 110, 118
109, 111, 114, 124, 125, 126, Stobbs Report, 12, 15, 16, 76, 77,
134, 135, 136, 138, 141, 144, 100, 103, 104, 105, 106, 107,
176, 192, 203 108, 109, 114, 123, 124, 136,
Public Officer Ethics Act, 78, 271, 137, 138, 144, 193, 195, 196,
274 197
Public Service Commission, 78 Treasury, 13, 116, 194
regional ethics committees, 8, 18, Uniform Rules of Professional
25, 76, 102, 120, 140, 142, 143, Ethics of the General Council
189, 199 of the Bar of South Africa, 68
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The Enforcement of Professional Ethics and Standards in the Kenyan Legal

© The World Bank and The Law Society of Kenya 2010

Although the purpose of the project was to identify means of

Ms. Betty Nyabuto, 28th June 2007

Secretary/Chief Executive Officer,

EVALUATION OF THE FRAMEWORK FOR ENFORCEMENT

We have the honour to present the above Report.

Professor Noel Cox (International Consultant and Team Leader)

Mr. Tom Odhiambo Ojienda (Local Consultant)

cc. Dr. Nightingale Rukuba-Ngaiza, World Bank Task Team Leader

 The Chairman of the Law Society or senior officer appointed

 The Chairman of the Advocates Complaints Commission and

 That the three above officers report to the Attorney-General

 Additional funding for the Advocates Complaints

 Provision of computerised case-management systems and

 Statutory and regulation reform as recommended.

ADT Administrative Decisions Tribunal

1.1 Regulation of entry into the Legal Profession

1.3 Specific Objective (Scope of Work)

 Rautta Athiambo (Rautta & Co, Advocates, Nairobi, former

 Mrs. Violet Awori, Mr. Charles Kariuki, Mr. R. M. Chubi (Members

 Joseph N. King’arui (Chairman, Advocates Complaints

 Samuel K. Kiptorus (Senior Economist 1, High Court of Kenya);

 Professor Wanyama Kulundu-Bitonye (Director of the Kenya School

 Professor Githu Muigai (Mohammed Muigai, Advocates, Nairobi,

 Dr. Elizabeth Muli (Senior Lecturer, Head of the Department of

 Ms Bibiana Ndambuki (Administrative Secretary, Disciplinary

 Charles K. Njai (Registrar of the High Court of Kenya);

 Ms. Betty Nyabuto (Secretary/Chief Executive Officer of The Law

 Erik Omogeni (Chairman, The Law Society of Kenya);

 Tom O. Onyango (Ochieng’, Onyango Kibet & Ohaga, Advocates,

4.1 Theoretical background

Professional standards must ideally be kept in all societies,

One distinguishing feature of any profession, unlike other

 A governing body (or bodies) [that] represents a profession

 [Mastery of] a specialised field of knowledge. This requires

 Admission ... dependent upon a period of theoretical and

 [A] measure of self regulation so that it may require its

 [An understanding that a] professional person’s first and

50. The first of these elements is particularly important in the context of

 representatives of the public should participate in the

 investigative and adjudicative functions should be separate;

 procedures for hearings must be fair to both complainant and

 adequate provision must be made for appeal.39

4.2 Kenyan situation

At one point in time in this region, lawyers were a privileged

While members of the legal profession and some of their

Disciplinary processes aimed at maintaining standards deemed

The privilege given by the Evidence Act (Chapter 80) to the

78. The joint World Bank-International Finance Corporation Country

a. Strengthening public sector management and accountability;

Improving the ethical standards of the Kenyan legal profession

84. In a number of jurisdictions in the world today there are professional

Lawyers shall be entitled to form and join self-governing

92. Australia is one of the largest common law countries. It is not,

5.1.1 Regulatory authorities

5.1.2 Disciplinary authorities

5.1.4 Solicitors and barristers

5.1.5 Professional associations

 Provide legal advice or representation

In most cases it will not investigate complaints about practitioners

5.2.1 Federal system

5.2.2 Nova Scotia legal profession