Brian, Hezbon, Dave & Associates is an upcoming law firm in Nairobi. The three partners are young energetic and intelligent advocates in their mid-twenties. On the 17th November, 2012, they put an advertisement in the firms ‘wall’ in Facebook for their “legal clinic,” stating that they were offering “legal services at very reasonable fees,” and listing their fees (a maximum of 20% of the value of the subject matter) for certain services, namely, uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name.
The advert was again posted in Twitter on the 17th of November, 2014. Shortly thereafter, the law firm engaged Alliance Media, an outdoor advertising giant, to erect a giant billboard measuring 16 square meters (4 by 4 meters) at the Uhuru Highway — Haile Selassie roundabout with a similar advert. In the billboard a very attractive and somewhat sensually dressed female model proclaims the virtues of the law firm declaring it the undisputed law firm of the moment, thanks to its spectacular successes in and out of the court room. The law firm then ran an advertising blitz on citizen TV from 18th November, to 25th November 2014. In an attention-reverting 90-second commercial some very pretty female models proclaim the firm as the law firm of the future. Fcr good measure the adverts list the names of the firm members and their employees, highlight their areas of specialization, and give contact details of the firm.
The Law Society of Kenya reacted furiously accusing the law firm of violating the Advocates (Marketing and Advertising) Rules, 2014 LN No. 42 of 2014. The LSK instructs one of its advocates to institute disciplinary proceedings against the law firm. The law firm takes out judicial review proceedings to prohibit the Disciplinary Tribunal form proceeding action citing a violation of their ‘constitutional freedom of commercial speech’.
Justice Helen, the judge before whom the judicial review application is argued, is a former partner of the firm. As a former partner of the firm, Justice Helen, like all former partners, enjoys a very comfortable monthly pension from a pension scheme administered by Alexander Forbes on behalf of the law firm. The Law firm, as part of its regular corporate social responsibility programme, recently paid tuition fees for Winnie, Justice Helen’s granddaughter, who had graduated with a first class honours degree from the Catholic University of Eastern Africa and is proceeding to Oxford University. Winnie was competitively selected from a list of 50 eligible applicants.
The law firm is represented in the case by Leonora, one of its most promising associates who had scored over 90 in all units taken at the Kenya School of Law ATP Programme on first attempt. Dave acknowledges Leonora’s extraordinary competencies as a lawyer and is satisfied that she is equal to the task of representing the firm. Dave nevertheless insists on drafting the application himself. Dave also prepares written submissions for Leonora. Leonora is uncomfortable with some aspects of the averments in the statement in support of the application for leave.
According to Leonora the averments, though verified by affidavit are not factual. Leonora would also prefer to draft the submissions differently and is unable to follow the gist the argumentation as presented in the submissions. She calls the attention of Dave to her concerns during a pretrial bringing but Dave dismisses the concerns with a smile saying no one will ever find out about the ‘so-called factual inaccuracies’. As for the submissions Dave takes great exception to Leonora’s presumptuous attitude and maintains the submissions must be presented as dratted. Leonora is far from persuaded but nevertheless choses to prosecute the application as proposed by Dave because of her great respect for Dave. Dave is rated by Chambers 500 one of the most accomplished advocates in Kenya. Leonora nevertheless shares her concern with her best friend and former classmate Samrita. Samrita, a practicing advocate is concerned that an advocate of Dave’s caliber is actually capable of such indiscretions. She considers the story way too juicy to keep to herself. She immediately calls Divya and shares the story with her. Divya for her part posts the story on Twitter and soon word is out that something is not right with the application by the law firm. During the hearing Caroline, Maggie and Linet, who are representing the Law Society of Kenya raise the matter informally with Leonora. Leonora responds that she cannot discuss the matter as it is covered by advocate-client confidentiality. Justice Hellen is anxious to steer the debate away from those controversies as she is uncomfortable sitting in judgement over her former partners’ professional conduct. She therefore agrees with Leonora and rules that Leonora is under no obligation to discuss issues as they are covered by advocate-confidentiality. In the course of the hearing Leonora choses to steer clear of the controversial averments, much to the chagrin of Dave who accuses her of gross insubordination. Dave is particularly concerned that Leonora conceded a number of important points based on two recent decisions of the Supreme Court. Dave knows that these concessions have considerably weakened their case and is unable to understand why Leonora referred the decisions in her submissions when counsel for the respondents had not themselves raised the issues. According to Dave, Leonora had scored two own goals for no apparent reason.
The Chief Justice feels justice Helen ought not to have presided over the case and seeks your advice on whether or not there could be grounds for taking disciplinary action against Justice Helen.
- With the aid of decided cases, provisions of the digest, the Advocates Act and any other statues, identify the ethical issues raised in this hypothetical scenario and explain which of the disciplinary organs has jurisdiction to entertain a possible disciplinary action against Samitra, Divya, Leonora and her employers.
- Advice the Chief Justice on whether or not Justice Helen has committed any act of judicial misconduct and sequentially outline the process that can be used to discipline Justice Helen should the Chief Justice find that there are indeed grounds for disciplining Justice Helen.
(5 Marks)ATP 105 Professional Ethics_Nov 2014-1-2