Chief Justice Willy Mutunga was recently on national television talking about the Judiciary and the manner it has reformed. He sought to deflect attention from the Judiciary by attacking the legal fraternity.
I wish to remind him that the Law Society of Kenya, which is a statutory body, effectively regulates the legal profession and advocates in Kenya will not agree to be supervised by him or the Attorney General. As a matter of fact, his hands should be full already, as he has big hurdles to manage in the Judiciary.
During the interview, he attacked the principle of advocate/client confidentiality, claiming that it has no place in “the current dispensation”.
Now, this principle is not a new one. It also applies to, among others, doctor/patient confidentiality. Its legal foundation is sound and there is no basis to disturb it now. It is not a principle for the protection of lawyers.
As a professional legal ethics precept, an advocate is not allowed to reveal a client’s confidence to others or use the same to the disadvantage of a client or for the benefit of himself/herself or someone else. It is easy to understand this rule.
If advocates were obliged not to keep it, the profession would die, as they would be required to become witnesses in the cases. Actually the origin of this rule is that an advocate should not be required to testify against the client and, thereby, violate a duty of loyalty owed to the client.
Because of the rule’s existence, the client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the advocate even when what he has to say is embarrassing. The advocate needs this information to represent the client effectively and, when there is need, advise the client to refrain from wrongful conduct.
Almost without exception, clients come to advocates in order to find out what their rights are, and what is, in the complex of laws and regulations, deemed to be legal and correct.
Dr Mutunga is therefore wrong to imply that doing away with this rule will hurt advocates: it will only hurt clients.
As a parting shot, let me remind Mutunga that there is a reason why doctors wear white jackets and agriculturalists green. Various professions have various rules of dressing and etiquette.
The good Justice may thus have to revise not only his views about advocate-client confidentiality, but also his views on advocates’ attire.
J T Makori, Nairobi
