Judge: Lawyers to answer if linked to a crime committed by client

Lawyers’ professional privileges and immunity do not extend beyond the accountability line, the High Court has ruled.

While dismissing a case filed by the Law Society of Kenya (LSK) against the Director of Public Prosecutions, Inspector General of Police, Director of Criminal Investigations and Attorney General, Justice Lawrence Mugambi said that lawyers must account for their actions while practising law.

According to Justice Mugambi, it would be an abuse of the law and the Constitution to give lawyers blanket and absolute immunity, unless there is clear evidence that the DPP is not acting within the prosecutorial powers given to him.

“In my view, the privilege accorded to advocates is subject to the law and the Constitution. It is not meant to protect them from accountability and would thus not be cited to curtail the powers of the first respondent under Article 157(4), (6), (10) and (11) of the Constitution unless it can be demonstrated that the same are being abused,” said Justice Mugambi.

At the same time, the judge said that the society had not cited, with specificity, who among its members were victims of harassment by the police and those who had been illegally charged.

He said that it would be an absurdity for lawyers to invoke the Advocates Act where a crime is being investigated. The judge further said that advocate–client confidentiality could only be invoked if a client does not waive it.

“Given the generalisation that characterises this petition, which is wanting in facts regarding specific instances, the Court cannot objectively assess and determine if indeed the first, second and third respondents unlawfully exercised their authority as in interfering with the privilege accorded to advocates by dint of Section 134 of the Evidence Act. Such a determination can only be arrived at upon evaluation of specific facts and on a case-by-case basis, not the general averments as contained in the petition,” he ruled.

In the case, LSK argued that State agencies had allegedly prevailed upon its members, seeking to have them provide confidential information concerning their clients.

The society, in its 2019 case, claimed that its members had been subjected to negative legal consequences such as arbitrary arrest and prosecution for standing their ground and refusing to give the information.

“An advocate who is properly instructed, sitting on a board or in private practice, could be arrested for the conduct of business of his client where the only link between the fraud and the advocate is the client.

The Constitution, under Article 50, grants a client the right to be represented by an advocate, including in cases where the client may have committed fraud, and even in such cases, the advocate is not to be treated as an offender. The only way to pierce the confidentiality veil is once the Court has ascertained that there was a fraudulent transaction,” argued LSK’s lawyer Boniface Akusala.

In reply, the DPP urged the court to dismiss the case. He argued that the case lacked evidence to show that a lawyer had been unlawfully arrested or charged.

Prosecution Counsel Alex Akula further stated that advocates’ privilege does not extend to the furtherance of a crime, even when the same is being committed by a client.

“The advocate–client privilege is not an absolute right where investigations reveal that there exists some criminal activity done by the client and/or by the advocate during the course of the employment of an advocate by his client,” replied Akula.

He further argued that LSK was seeking to place advocates on a higher pedestal than ordinary Kenyans in relation to investigation and prosecution of a crime.

The AG, IG and DCI also supported dismissal of the case.

In their joint reply, they argued that there were no minutes or resolution to show that LSK had been authorised to file the case on behalf of its members, nor was there any evidence that any of the advocates had raised a complaint with the society concerning violation of their rights.

“Petitioner’s allegations were generic and academic, as they failed to specify the particular person who acted ultra vires or specific persons whose rights were violated. The petitioner failed to demonstrate the alleged violations of its members’ constitutional rights,” the AG replied.