Code Of Standards Of Professional Practice And Ethical Conduct

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Code of Standards of ProfessionalPractice and Ethical ConductJune 2016

Law Society of KenyaLavington, Opposite Valley Arcade, Gitanga RoadP.O Box 72219-00200NairobiTel: 254 20 2625391, 254 20 8155295,Mobile: 254 720 904 983, 254 704 442154, 254 704 442166Code of Standards of Professional Practiceand Ethical ConductJune 2016

Table of ContentsPART I. INTRODUCTION . 2A. Background. 2B. Application of the Code . 5C. Defining “Professional Misconduct” . 6D. Effectiveness of the Code . 8E. Arrangement of the Code . 9PART II: OVERRIDING VALUES AND PRINCIPLES OF PROFESSIONAL PRACTICE AND ETHICALCONDUCT. 10PART III: THE STANDARDS OF PROFESSIONAL PRACTICE AND ETHICAL CONDUCT . 13PART IV: GUIDANCE ON THE INTERPRETATION OF THE STANDARDS . 161.Requirement for a practicing certificate . 162.Advertising and/or marketing . 203.Competence and diligence in handling of a client’s brief: . 234.Professional Fees . 305.Client’s property . 366.Conflict of interest: . 417.Confidentiality of Advocate-client communication: . 448.The Advocate as client’s representative . 499.Professional undertakings: . 5310. The Advocate’s use of Social Media . 5511. The Advocate’s outside interests . 5712. Honesty and integrity: . 60PART V: REFERENCES . 63Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, June 20161

PART I. INTRODUCTIONA. Background1.As in many other jurisdictions the legal profession in Kenya is governed undera regulatory framework comprising statutory provisions, various statutoryinstruments and guidelines issued by the Law Society of Kenya as theregulatory body. This regulatory framework is underpinned by theAdvocates Act, Chapter 16 as well as the Law Society of Kenya Act, Chapter18 of the Laws of Kenya.2.The regulatory framework also comprises a “Digest of Professional Conductand Etiquette” issued by the Law Society of Kenya in 2000 but, in the wordsof the Digest, “it was not an exhaustive treatise” and given that over 15years have passed since its issue, it is in need of updating to incorporatepresent day regulatory concerns and trends in the practice of law.3.Consequently, not only is the regulatory framework far from comprehensive,aspects of it are out of date as the various components have not beenrevised and updated. It is also not particularly coherent and many of its rulesand guidelines lack clarity, a feature which undermines compliance andmakes enforcement difficult. Furthermore, the framework does not extend toall aspects of the practice of law. Of particular concern is the fact that itdoes not address the management and administration of a law practice,client care and the relationship between the legal practitioner and the bodiesregulating the practice of law.4.The Law Society of Kenya (LSK) is the principal regulatory authority over thelegal profession. Its functions and powers are set out in sections 4 and 5 ofLaw Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, June 20162

the Law Society of Kenya Act provides that the functions and objects of theSociety are, inter alia, to:(a) Ensure that all persons who practice law or provide legal services inKenya meet the standards of learning, professional competence andprofessional conduct that are appropriate to the services they provide;(b) Set, maintain and continuously improve the standards of learning,professional competence and professional conduct for the provision oflegal services in Kenya;(c) Determine, maintain and enhance the standards of professionalpractice and ethical conduct and learning for the legal profession inKenya;(d) Facilitate the realization of a transformed legal profession that iscohesive, accountable, efficient and independent; and(e) Protect and promote the interests of consumers of legal services andthe public interest generally, by providing a fair, effective, efficientand transparent procedure for the resolution of complaints againstlegal practitioners.5.Section 5 deals with the general powers of the Society and states that theSociety shall have the powers to do all things necessary for the proper andeffective achievement of its objects and the performance of its functions.6.Thus, as is the case with other professions locally and abroad, the legalprofession is substantially self-regulated.In its Strategic Plan for 2012-2016, LSK recognized the need to formulate a comprehensive code ofstandards of professional practice and ethical conduct. Building on theexisting Digest of Professional Conduct and Etiquette, the revised code wouldset standards for the legal profession and be the authoritative guide to legalLaw Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, June 20163

practitioners, regulators and the public in determining what is expected of amember of the legal profession and judging professional misconduct.7.The Council of the Law Society of Kenya has therefore determined thestandards to apply to members of the LSK and approved this Code ofstandards of standards of professional practice and ethical conduct as aprincipal instrument of self-regulation of members. It articulates principles,sets standards and provides guidance on the standards of professionalpractice and ethical conduct expected of members of the Society.Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, June 20164

B. Application of the Code8.The scope of LSK’s regulatory mandate is over its members. Section 7 of theLaw Society of Kenya Act defines the categories of members of the Society.This consists of:(a) Any person who has been admitted as an advocate and whose namehas been entered into Roll of Advocates kept under section 16 of theAdvocates Act (Cap 16);(b) Any person admitted to membership under section 8 of the Act; and(c) Any person elected as an honorary member of the Society undersection 9 of the Act.9.The Advocates Act, Chapter 16 defines an advocate to mean any personwhose name is duly entered upon the Roll of Advocates. Section 9 whichdeals with qualification for practicing as an Advocate states that no personshall be qualified to act as an Advocate unless:(a) He has been admitted as an Advocate;(b) His name is for the time being on the Roll; and(c) He has in force a practicing certificate.10. The Advocates Act therefore draws a distinction between persons who areAdvocates by virtue of the fact that the person’s name has been enteredupon the Roll of Advocates and persons who qualify to practice asAdvocates, the main distinction being that the latter category are personswho have in force a practicing certificate. The certificate is issued annuallyand lapses at the end of the calendar year in respect to which it was issued.Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, June 20165

11. This Code of Ethics and Conduct is intended to apply to all members of theSociety, in this case all persons who fall within the provisions of section 7 ofthe Law Society of Kenya Act. Thus the Code is intended to guide practisingAdvocates, in-house counsel and others who, while not actively engaged inthe practice, are members of the Law Society.C. Defining “Professional Misconduct”12. The term “professional misconduct” is a widely used term in the context of thelegal profession. Section 60(1) of the Advocates Act Chapter 16 states that“the expression professional misconduct includes disgraceful or dishonourableconduct incompatible with the status of an Advocate.” The concept ofprofessional misconduct is wide and the categories of behavior that would beconsidered as amounting to misconduct not closed.13. Broadly speaking professional misconduct is conduct in breach of the rules,standards and ethics of the profession. The concept of professionalmisconduct therefore defines the standard of professional practice andethical conduct expected of a member of the legal profession. In regard tothe legal profession in Kenya the rules and standards governing the behaviorof Advocates are found in different texts, including the Advocates Act (whichdeals with admission and discipline), the rules made under it and standardsand guidelines issued by the Law Society.14. Professional misconduct is to be distinguished from “unsatisfactoryprofessional conduct.” The latter refers to conduct which falls below thestandard of conduct or behavior that is expected of a practicing Advocate,particularly when rendering legal services. It is conduct which falls below thestandard one may reasonably expect of a practicing Advocate in terms ofLaw Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, June 20166

competence or unbecoming behavior (i.e. behavior not becoming of anAdvocate but occurring outside of the context of legal practice).15. Whereas the categories of professional misconduct are not closed there is aneed to provide a comprehensive way of deciding what in a particularinstance will be treated as “professional misconduct” or unsatisfactoryprofessional conduct. This is the task of the Code which sets out the keystandards that govern the conduct of a member of the Society. Guidance onthe interpretation of the standards is equally necessary. Such guidance aidsin compliance by members of the Society and in enforcement.16. This Code of Standards of Professional Practice and Ethical Conduct isintended to be the authoritative standard, guide and reference point inconstruing professional misconduct and unsatisfactory professional conduct. Itdefines the minimum standards designed to assist the regulatory bodies andthe legal practitioner alike in determining whether, in a particular case, theconduct in question falls within or outside of the remit of professionalmisconduct.17. The Code however does no more than set minimum benchmarks forprofessional practice and ethical conduct, the breach of which amounts tomisconduct and might attract punishment. It is not the last word on the conductexpected of a member of the Society. In addition to regulating misconductthe role of LSK as the regulatory body is to encourage professionalism in thelegal profession.18. An aspiration to professionalism seeks to encourage within the legalprofession conduct that preserves and strengthens the dignity, honour andLaw Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, June 20167

ethics of the profession. Professionalism goes beyond avoidance ofmisconduct. It extends to matters of good professional practice, etiquette andethics, the breach of which do not amount to professional misconduct. Amember of the Society is expected to aspire to higher standards ofprofessional practice and ethical conduct, going beyond mere avoidance ofmisconduct. At this higher level the legal professional is to be guided byhis/her conscience, ethical beliefs and the overriding principles and valuesapplicable to legal professionals the world over.19. Typically the rules governing professional conduct are set within theframework of overriding principles, ethics and values which ought to guideand underpin the interpretation and understanding to be accorded to specificrules in specific contexts. The principles apply to members of the LSK whenproviding legal services and, in certain cases, even when not providing legalservices.D. Effectiveness of the Code20. Under Part XI of the Advocates Act, the Code may, pursuant to the provisionsof section 55, be enforced against an Advocate by the Society. The Codemay also be enforced by the Advocates’ Complaints Commission establishedby section 53 of the Advocates Act. The Chief Justice or a judge of the HighCourt may also, in exercising disciplinary powers over Advocates undersection 56 of the Act, resort to the Code. Its enforcement l

16. This Code of Standards of Professional Practice and Ethical Conduct is intended to be the authoritative standard, guide and reference point in construing professional misconduct and unsatisfactory professional conduct. It defines the minimum standards designed to assist the regulatory bodies and

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