CAN YOU SPOT A FAKE LAWYER?

It is quite astounding how many people get tricked by individuals masquerading or passing themselves off as advocates or qualified lawyers in Kenya. Of course, there are those who have been swindled by genuine bad apples as well. Yet the common factor is that these stories almost always never see the light of day.

At WMC Law, we recently had a client with a probate matter from 2014 come to us because the Unclaimed Financial Assets Authority in Kenya had alerted her of potential takeover of her father’s assets. Now probate matters should not take more than a year when non-contentious. It turned out the advocate she had retained was no advocate at all. Our Firm was able to have the succession matter reinstated before the High Court and prosecuted the matter up to the point of issuance of the grant.

The matter piqued our interest for various other reasons but left us with a keen awareness of how consumers of legal services, through a mix of the ingrained fear of lawyers and a cultivated mystique of the legal profession, are often times on the back foot when trying to find proficient and qualified advocates.

In this piece, we highlight the Dos and Don’ts when seeking to procure legal services in Kenya.

What the Law Says

The Advocates Act (Cap 16, Laws of Kenya), is the primary law regulating the legal practice and the conduct of Advocates. It sets out how a person can be qualified to be an advocate and the consequences of unqualified persons acting as advocates.

The Advocates Act makes it an offence for a person to pretend to be an advocate. Such a person is not entitled to recover fees or costs from a client in respect of services rendered.

The greater risk for the clients however is the status of certain documents drawn up by unqualified persons. Section 34 of the Act goes on to list a category of documents that can only be drawn by qualified advocates. These include:

• documents relating to the sale and purchase of property; or
• documents relating to the formation of a limited liability company; or 
• agreements of partnerships or the dissolution thereof; or             
• documents relating to grants of probate or letters of administration in succession proceedings; or
• documents relating to any other legal proceedings.

A person tempted to cut down on legal costs by having a clerk or law student or other unqualified person draw up their documents may find themselves with transaction documents whose validity is questionable.

Clients who find themselves duped by persons pretending to be Advocates or qualified lawyers can either forward the matter to the Police for criminal prosecution and/or institute a suit for the recovery of any monies paid to such person.

What WMC Law Says

While there are laws that can help in situations where a client is duped, it is much better to take steps to ensure that you are dealing with a qualified person before a matter progresses. In our experience, correcting mistakes in ownership of assets or transaction documents can cost double and take up significantly more time than getting things right the first time round.

Here a list of Dos and Don’ts when engaging a lawyer in Kenya:

1. Do the due diligence and ask the necessary questions – Every advocate licensed to practice in Kenya is issued with a practicing certificate by the Law Society of Kenya. As a starting point, when dealing with a lawyer you’ve never dealt with before, always ask for a copy of their practicing certificate. Go a step further because practicing certificates can be forged. The Law Society of Kenya maintains a search engine where you can search for an Advocate by name or admission number. You can access the same here. As an added measure you can also ask for a law firm’s professional indemnity cover and registration documents as well as recommendations from former clients. DO NOT trust a person on the basis of offices, a name plaque and well made suits.

• Get a retainer or engagement letter signed – once you are satisfied that a lawyer is a qualified advocate, ensure that there is an agreement in writing capturing key points such as:
  • The  scope of work the advocate is to do for you – this makes it clear what the instructions are so that if the advocate goes beyond the agreed instructions, you can have recourse; and
  • The agreed fees, whether a lump sum or hourly rates – this prevents a client from being lumped up with unverifiable fees and costs.

DO NOT deposit any funds or hand over custody of sensitive documents before you do the due diligence and sign an engagement letter.

• Get everything in writing – when sending original title documents such as certificates of title to land or shares or other assets, always ensure that the firm’s receipt of those documents is acknowledged in writing and the reason for the firm’s custody of those documents is well documented. Remember verbal contracts are not worth the paper they are written on!

Remedies for professional negligence

In instances where you do find yourself duped, misrepresented or aggrieved at the acts of an advocate, the Advocates Complaint Commission should be the first port of call. This is a statutory body set up to investigate and prosecute complaints of misconduct against Advocates and law firms.

However, the setup of lawyers judging complaints about lawyers has seemingly failed to command public confidence.

The Office of the Ombudsman is stepping up in instances where there is any perceived delay or unresponsiveness by the Advocates Complaints Commission to give timelines and ultimatums to precipitate swift action.

Should you have any queries or need any clarifications with respect to the above, please do not hesitate to contact WMC Law (info@wanjiramwanikilaw.com).