TOPICS:

A. CONFLICTS OF INTEREST
B. TERMINATION OF ADVOCATE-CLIENT RELATIONSHIP

A. CONFLICTS OF INTEREST

THE CAB RANK RULE

The Cab Rank originated from Britain, where operators of the black cabs in London would
have their lights on to show they are operating and off to show that they are unavailable. In
the taxi business, the longer the distance, the more lucrative the journey. The rule served to
impose obligations on the taxi drivers to ferry customers to their destinations in disregard of
the distance they were travelling.

Cab Rank and the Legal Profession.

This is a common law principle which places a professional obligation to a lawyer to accept
any work in a field in which they profess themselves. Cab Rank means that an advocate is
obliged to accept a brief unless he or she has some good reasons for refusing to do so. Lord
MacMillan used the words “on the cab rank” to mean that an advocate is obliged to accept a
brief unless he or she has some good reason for refusing to do so.

The Cab Rank Rule in Kenya.

Pursuant to article 50(h) of the Constitution, it is a constitutional right for an accused person
to have representation from an advocate. Lawyers are guided by this cab rank rule which
mandates lawyers to take briefs as they come without any bias. This rule is not well
developed in the Kenyan legal system. Part of the reason for this is that lawyers pursue all
types of cases: civil, constitutional, criminal commercial without regard of specialization.
Law society of Kenya has general standards regarding lawyers professional work;1-

-As soon as practicable after receipt of any brief or instructions a lawyer should satisfy
himself that there is no reason why he ought to decline to accept it.

-A lawyer is not considered to have accepted a client’s instructions, unless he has had an
opportunity to consider it and has expressly accepted it.

The cab rank rule is equivalent to justice should be accessed by all. The reason for this rule is
that every person who is charged before the court has a right to the services of counsel in the
presentation of his or her defense. Any action which is designed to interfere with the
performance of this duty to accept a brief is an interference with the course of justice. Where
an advocate refuses to defend an accused person on ground that they feel the person does not
have a good case or is guilty assumes the role of a judge and this undermines the fundamental
and constitutional principles of the Constitution of Kenya 2010, article 50(2).2

Exception to this Rule

An Advocate may refuse a brief where there are special circumstances which justify his or
her refusal. These are circumstances in which advocates consider themselves not competent
to take on a case following; a conflict of interest, successive representation, expected witness,
issue conflict.

CONFLICTS OF INTEREST

According to the The Law Society of Kenya [LSK] Code of Standards of Professional
Practice and Ethical Conduct, conflict of interest is defined as an interest which gives rise
to substantial risk that the Advocate’s representation of the client will be materially and
1
Rule 16 of the Law Society of Kenya Digest of Professional Conduct and Etiquette
2
Constitution of Kenya 2010
adversely affected by the Advocate’s own interests or by the Advocate’s duties to another
current client, former client or a third person. 3

Rationale for standard against conflict of interest circumstances: The Advocate’s ability to
represent the client may be materially and adversely affected, unless the Advocate’s
judgment and freedom of action are as free as possible from compromising influences and the
relationship between the Advocate and the client is not materially impaired by the Advocate
acting against the client in any other matter.4

In Serve in Love Africa (Sila) Trust v David Kipsang Kipyego & 7 others,

The judge explained that:

Conflict of interest may be described as a conflict of duties, or a conflict between interests,

or as a conflict between interest and duty. To act when you have a conflict of interest
involves breaching your fiduciary duty to your client or former client.

The four elements of the fiduciary duty are:

a. The duty of loyalty to the client.

b. The duty of confidentiality.

c. The duty to disclose to the client or put at the client’s disposal all information within your
knowledge that is relevant in order to act in the client’s best interests.

d. The duty not to put your own or anyone else’s interests before those of the client.

Conflicts of interest are categorised as actual, potential or perceived.

The courts when faced with a determination of conflict of interest they consider:

a) Whether the continued acting of the advocate is likely to cause real prejudice to the
other client.

b) That justice must not only be done but must be seen to be done.(will it meet the ends
of justice)

3
The Law Society of Kenya [LSK] Code of Standards of Professional Practice and Ethical Conduct, Part IV para
96.
4
Ibid, para 97.
 c) The public perception of the profession and the damage that might be done to that
important perception if an advocate acts having a conflict of interest.5

1) CONFLICT BETWEEN DUTY TO COURT AND DUTY TO CLIENT; WHICH

ONE SUPERSEDES THE OTHER.

Duty to court and that owed to clients may conflict. This may arise when a client confesses to
having committed a crime, when a client intends to give a false testimony or when an
advocate is in possession of Facts which may prejudice his client’s case.

Advocates duty to court overrides the duty to the client.

Reasons.

1. In Common law, duty owed to court is higher than that owed to client. The Rationale
is that the administration of justice in adversarial system depends largely on the
faithful exercise by an advocate’s independent judgement in the conduct and
management of the case. Court relies largely on the integrity of advocates as judges
decide cases based on the opposite views put forward by opposing advocates.

In Arthur Hall v Simons

Facts.

Involved appeals on a building case and two family proceedings. Clients raised claims in
negligence against firms of solicitors. In response the solicitors relied on the immunity of
advocates from suits of negligence. In all the three cases judges at first instance ruled that the
claims against solicitor were unsustainable. The issues that arose were whether the current
immunity of an advocate in respect of and relating to the conduct of legal proceedings to be
maintained in England and what is the proper scope in England of the general principle
barring a collateral attack in a civil action on the decision of a criminal court.

Lord Hoffman stated that lawyers conducting litigation owed a divided loyalty. They have a
duty to clients but not to win by any means. They also owe a duty to the court and the
administration of justice. The substantial morality of the English system of trial means that
the judges rely heavily upon the advocates appearing before them for a fair presentation of
the facts and adequate instructions in the law.

2. Public Interest/ Public Policy.

5
Serve in Love Africa (Sila) Trust v David Kipsang Kipyego & 7 others [2017] eKLR.
An advocate as much as it owes a duty to court and the client, it owes to the public. This is
because he is first a citizen before he becomes an advocate. The duty to the court tends to be
framed in such a way as to communicate public interest so that confidence in the institution
(court) be maintained, therefore overrides the other.

In Rondel v Worsley

It was stated that in addition to the duty owed to his client, a barrister owes an overriding
duty to the court; to the standards of his profession, and to the public.

3. The law provides that an advocate is an officer of the court. 6 And therefore duty
bound not to mislead the court regardless of the client’s interest. In acting the best
possible way for the client, the advocate must while being fearless in the cause of the
client, must be within the law.

Striking a Balance between these conflicting Duties.

Courts have attempted to strike a balance between these conflicting duties in a way which
will prevent the court from being misled or the client being placed in jeopardy.

In R v Davis7

The appellants appealed against their conviction on the ground that certain prosecution
witnesses had been kept anonymous from them. The witnesses had attended trial for cross-
examination and were observed by the judge and jury but had given evidence behind a screen
and their voices disguised to prevent the appellants identifying them. The counsels were
concerned about their conflicting duty.

- A duty to the court to keep the witnesses anonymous( breach- contempt of court)

- A duty to their client to describe the witnesses to them as relevant information.

The court held that the advocate could perform his duty by cross-examining from behind the
screen. However, if the client wished to obtain possible benefits of his barrister being able to
see the witness demeanor when cross-examining, then this could only take place if the client
consented to a limitation on the barrister’s usual duty to disclose all relevant information to
the client.

2) WHAT TO DO WHEN A CLIENT CONFESSES GUILT?

6
Advocates Act 2012, s 55
7
R v Davis[2006]EWCA 1155
Among the duties of an advocate to his client is to maintain confidentiality and to keep all the
conversations between him and his client private during the subsistence of their advocate-
client relationship and even after the relationship ceases This stems from the fiduciary nature
of an attorney-client relationship. This duty is premised on sections 134, 135, 136 of the
Evidence Act. Accordingly, no advocate shall at any time be permitted unless with his
client’s express consent to disclose any communication made to him in the course of and for
the purpose of his employment as an advocate by or on behalf of his client or to state the
content and condition of any document with which he has become acquainted in the course of
and for the purpose of his professional employment or to disclose any advice given by him to
his client in the course and for the purpose of such employment. 8 This privilege however does
not extend to communications made in furtherance of an illegal activity or to any fact
observed by any advocate in the course of his employment as such showing that any crime or
fraud has been committed since the commencement of his employment whether the attention
of such advocate was or was not directed to the fact by or on behalf of the client9.

Therefore if a client confesses to his guilt, his advocate is not obligated to notify the court of
this fact. The advocate may cease to act for the accused if there is enough time for the client
to get another advocate. The advocate may also decide to continue to act for the accused
where there would be limits to how he conducts the case. The advocate;

a) must not falsely suggest that some other person committed the offence charged;

b) must not set up an affirmative case inconsistent with the confession;

c) may argue that the evidence as a whole does not prove that the client is guilty of the
offence charged- the threshold in criminal cases is to prove the case beyond
reasonable doubt; the advocate then only has to raise doubt on the prosecution’s case

d) may argue that for some reason of law the client is not guilty of the offence charged;
and

e) may argue that for any other reason not prohibited by (a) and (b) the client should not
be convicted of the offence charged;

8
Evidence Act, s 134
9
Ibid
 f) Must not continue to act if the client insists on giving evidence denying guilt or
requires the making of a statement asserting the client’s innocence.10

3) SIMULTANEOUS REPRESENTATION

The Law Society of Kenya [LSK] Code of Standards of Professional Practice and
Ethical Conduct, states that an advocate shall not advise or represent both sides of a dispute
unless there is:

a) Adequate disclosure to the clients (full and frank disclosure)

b) Written consent obtained from the clients.11

Advocates are also instructed to nevertheless refrain from acting for more than 1 client even
when there is consent, if it appears that a contentious issue will arise or the interests, rights
and obligations of the parties will diverge.12

Conflict of interest may arise:

a. Where the interests of one client are directly adverse to those of another client being
represented by the Advocate or the firm, for instance in situations where the
representation involves the assertion of a claim by one client against another client.

b. Where the nature or scope of representation of one client will be materially limited by
the Advocate’s responsibilities to another client.

c. Where while representing a client there is a risk of using, wittingly or unwittingly,

information obtained from a current (simultaneous) to the disadvantage of that other
client.13

NB: An advocate may act in a manner that is adverse to the current client’s interests as long
as the matter is UNRELATED and there is NO conflict of interest.14

In Serve in Love Africa (Sila) Trust (Supra), A Ombwayo J. stated that:

An advocate will be deemed to be acting in conflict of interest when:

10
QueensLand Law Society, ‘What do I do if my client confesses guilt to me but wants to plead not
guilty?’https://www.qls.com.au/Knowledge_centre/Ethics/Resources/Delinquent_or_guilty_clients/
What_do_I_do_if_my_client_confesses_guilt_to_me_but_wants_to_plead_not_guilty accessed on 7th Mar
2021
11
(n 3) para 95,102 and 105.
12
Ibid, para 102.
13
(n 3), para 99.
14
Ibid, para 104.
 i) serving or attempting to serve two or more interests which aren’t compatible,

ii) serves or attempts to serve two or more interests which are not able to be served
consistently,

iii) honours or attempts to honour two or more duties which cannot be honoured
compatibly and thereby fails to observe the fiduciary duty owed to clients.15

Examples of how conflict may arise in simultaneous representation:

 2 or more parties to a conveyancing or commercial transaction;

In Clark Boyce v Mouat, a solicitor carried out a conveyancing transaction on behalf of 2

parties with conflicting interests. The court stated that a solicitor may act for both parties in a
transaction where their interests conflict if he obtains informed consent of both.

Informed consent means that the parties know there is a conflict and as a result the solicitor
may be disabled from disclosing the full knowledge he possesses as to the transaction or may
be prevented from advising one party whose interests conflicts the other’s.16

 for two parties on the same side of the record in litigation;

 for insured and insurer;

King Woollen Mills & another v. Kaplan & Stratton Advocates

The fiduciary relationship created by the retainer between client and advocate demands that
the knowledge acquired by the advocate while acting for the client be treated as confidential
and should not be disclosed to anyone else without that client’s consent. This principle
applies equally where an advocate acts for two or more clients in the same transaction or
subject matter because the retainer is specific between the individual client and the
common advocate.17

4) SUCCESSIVE REPRESENTATION

15
(n 5).
16
[1993]UKPC 34.
17
(1990 – 1994) E.A.244.See also, Firm 9B Class of 2017 KSL, ‘The Trial Lawyer and Conflict of Interest’ Nicco-
Law (Friday, 5 January 2018) http://quincykiptooslawsolutions.blogspot.com/2018/01/conflict-of-interest.html
accessed on 8 March 2021.
The relationship between the advocate and client continues even after the original instructions
have been completed. Therefore, the information shared remains confidential even after
relation has ceased.18

Example of how it may arise:

 An advocate acts against a former client having previously acted for that party in the
same or a related matter.

 In a current case, the use of confidential information obtained in a previous

engagement will be detrimental to the client’s interests if used directly or indirectly
against former client and vice versa.19

NB: An advocate can act in a manner adverse to former client for a fresh and independent
matter WHOLLY unrelated to any work advocate has previously done for such a person.20

In King Woollen Mills Ltd case (Supra),

The test is whether the continued acting of a partner in the firm against a former client of
another partner is likely to cause real prejudice to former client.21

In Prince Jefri Bolkiah v KPMG (a firm),

They acknowledged that before, the test was reasonable probability of real mischief. The
lords however changed this view in favour of a stricter test that requires the risk of disclosure
of confidential information to be REAL and not theoretical.

They held that no solicitor should accept such instructions without consent of former client
unless there is no risk that the confidential information of former client will pass to the
current client with an adverse interest.22

5) ISSUE CONFLICT

Here is whereby there are 2 clients, 2 different cases, common legal position, same court, or a
superior court whose decisions are binding and one advocate.

18
Oriental Commercial Bank Ltd v Central Bank of Kenya [2012] eKLR.
19
(n 3), para 99 (c), 103.See also, Gichohi Waweru , ‘Conflicting Duties of an Advocate: Kenyan Case’ Academia
https://www.academia.edu/22587640/Conflicting_Duties_Of_an_Advocate_a_Kenyan_Case accessed on 8
March 2021.
20
(n 3), para 103.
21
(1990 – 1994) E.A.244. See also Delphis Bank Ltd v Channan Singh Chatthe & 6 others.
22
[1999] 2 AC 222.
The determination of one case will directly have negative consequences for the other case. 23

6) PERSONAL INTEREST

Personal interest compromises the advocate’s independence and creates a situation where
bias may arise while giving advice or representing a client.

The following examples explain how this may arise:

a. Getting involved in a business transaction with the client, such as a debtor- creditor
relationship;

b. Acquiring an ownership, possessory or security interest in a property which is adverse to

the client’s interest in the same property;

c. Acquiring a financial interest in the subject matter of the case that the Advocate is
handling;

d. Having a personal or professional relationship with the adverse party or a close associate or
family member of the adverse party.

7) AN ADVOCATE AS AN EXPECTED WITNESS

Rule 8 of the Advocates (Practice) Rules makes certain provisions for the Advocate’s
conduct in the context of adversarial litigation. The rule prohibits the Advocate from
appearing as a witness before any court or tribunal in a matter in which he has reason to
believe that he may be required as a witness to give evidence24

In Uhuru Highway Development and others v Central Bank of Kenya and 4 others 25 the
issue of conflict of interest arose whereby the firm of Oraro and Rachier Advocates had acted
for Central Bank in the preparation of a charge over L.R. No. 209/9514 with the Defendants.
The firm and particularly Counsel George Oraro had then purported to act for the Defendants
when question of the validity of this charge arose. The issue in contention was that Counsel
had acted for both parties in the preparation of the Charge and he may not act for one against
the other as this was in breach of Counsel’s duty in acting for both in the same transaction
and therefore violating the principles laid out in King Woolen Mills Ltd and Anor v. Kaplan
& Stratton Advocate (Supra) where the court stated that:

23
(n 19).
24
“LAW SOCIETY of KENYA”(2016)
https://lsk.or.ke/Downloads/Code_of_Ethics_and_Conduct_for_Advocates.pdf [Accessed March 6, 2021]
25
eKLR(2002)
“The corollary to this cardinal principle is that the advocate having so acted for two or more
clients should be wary to act for one client against the other client or clients in a subsequent
action or litigation concerning the original transaction or the subject matter for which he
acted for the clients as their common advocate. The reason for this is not far-fetched.”

The second issue was the fact that Counsel was in breach of Rule 9 of the Advocates
(Practice) Rules which bars an advocate from acting in a matter where he may be called to
give evidence whether verbal or by affidavit.

In allowing the appeal, the court held that by Counsel acting for the Defendant, then he
would consciously, unconsciously or inadvertently use confidential information obtained
during the preparation of the charge and therefore resulted in the granting an injunction order
that restrained any partner in the respondents firm of advocates from continuing to act for the
defendants in the main suit or in any litigation or proceedings arising from the loan
transactions of 1981 – 1982.

In the case of National Bank of Kenya v Kipkoech Korat and another, 26the court held that
in the case of Rule 9 of the Advocates (Practice) Rules an advocate may be barred from
acting in a matter where he may be called to give evidence whether verbal or by affidavit.
However the court held that this did not disqualify the whole firm of advocates from acting
on a particular matter.

8) CONFLICT OF INTEREST IN RELATION TO OFFICE OR APPOINTMENT

Instances of where conflict of interest may arise in relation to an office or appointment that an
advocate holds:27

 Where an advocate is a company director, he should not accept instructions to act

for the company;

 Judges, advocates and commissioners of various tribunals should decline cases in

which they are likely to adjudicate.

26
eKLR(2005)
27
Niccolaw, “The Trial Lawyer and Conflict of Interest” (Blogspot.com March 6, 2021)
http://quincykiptooslawsolutions.blogspot.com/2018/01/conflict-of-interest.html [Accessed March 6, 2021]
‌
On taking up of a case, an advocate should ensure that it will not interfere with some office
that the advocate holds or in his duties as an advocate. An example to this is where the
advocate may be a commissioner of a tribunal which has jurisdiction to hear the case.

B. TERMINATION OF ADVOCATE-CLIENT RELATIONSHIP

1) TERMINATION BY CLIENT

A client has the right to terminate his/her relationship with their advocate at any moment.
This position was held in the case of Fracasse V Brent. In this matter, George Fracasse, a
lawyer, was retained by Brent to prosecute a claim for personal injuries in her behalf. They
entered into a written contingency fee agreement, under which Brent agreed that Fracasse's
compensation would be 33 1/3 percent of any settlement made at least 30 days prior to the
original trial date and 40 percent of any recovery obtained thereafter, whether by settlement
or judgment. Before the completion of the suit Brent informed Fracasse of her intention to
terminate his service. The attorney filed a complaint for declaratory belief alleging that the
termination was without cause and that the defendant had breached their contract. The
plaintiff wanted the contract to be declared valid and a declaration be made that he had a one-
third interest in any amount ultimately recovered in the personal injury action. The defendant
raised an objection to this claim. The trial court sustained the client's objection. It stated that
the relief action was premature as the compensation to the defendant had not yet occurred.
The court further stated that a client has a right to terminate an attorney client relationship
and upon such termination the attorney will only be paid an amount equivalent to the services
he had provided up until the time of termination and nothing more than that.28

2) TERMINATION BY OPERATION OF LAW

The advocate- client relationship will automatically be terminated in the event the advocate
dies or becomes incapacitated either physically or mentally. Despite the fact that one
advocate handles the matters of a client, the contract is between the client and the firm. The
firm is therefore obligated to carry on with the representation unless the client discharges the
firm. 29

This position was stated in the case of Little V Caldwell. The firm of Caldwell and little was
engaged in a written contract to conduct litigation to the final determination of the matter, pay
all expenses to be incurred and was the matter to succeed they would receive fifteen percent
28
Fracasse v. Brent (1972)
29
Steven Glickman, ‘Terminating the Attorney Client Relationship’ < Terminating the attorney-client
relationship (advocatemagazine.com)> accessed on 10th March 2021
of the estate that would fall to their client. An oral modification was done of the contract. The
firm then proceeded with the litigation but unfortunately Little died before the litigation came
to conclusion. Without informing the plaintiff whom Little represented, Caldwell entered his
name into the contract to prosecute on behalf of the clients to the completion of the suit. The
defendant further varied the compensation terms of the contract. The defendant then carried
the suit to a successful issue. The court held that the successive contracts were not separate,
distinct and independent agreements. They were merely an alteration of the original contract.
The consideration therefore moving to the attorneys that they were to prosecute to the
conclusion of the litigation always stood despite the death of Little. 30

When termination occurs by operation of law, the opposing counsel upon learning of the
termination is required by written notice to inform the client to engage a new counsel or to
appear in person before the proceedings continue.

3) WITHDRAWAL BY AN ADVOCATE

Withdrawal by an advocate from representation occurs when an advocate terminates his or

her relationship with the client.

There are two forms of withdrawal; Mandatory withdrawal and voluntary withdrawal

MANDATORY WITHDRAWAL; Mandatory withdrawal occurs when a client demands

that the attorney engage in conduct that is illegal or violates the rules of professional conduct
or any other law. However, the advocate has to file a motion of withdrawal to the court and
has to inform his or her client about the withdrawal before he or she withdraws from the
case.31

VOLUNTARY WITHDRAWAL; this withdrawal is voluntary to the advocate, the

advocate has the option to withdraw if it can be accomplished without material adverse effect
on the client’s interests.32
30
Little v Caldwell [1896]
31
ABA. Declining or terminating representation.2018www.amercanbar.com accessed on 13th March 2021
12:46 pm
32
ibid
 The following are the reasons why an advocate voluntarily withdraws from representing a
client;

 The client engaged in illegal or fraudulent activities

 The client fails to pay the advocates fees as agreed

 The financial burden on the attorney of continuing representation is too great

 The client refuses to follow the advice of the counsel or engages in acts relating to
representation without informing or seeking their advocates advice

 The attorney is engaged with the co-counsel of the client’s choosing and is unable to
work with the co-counsel. This is known as conflict of interest.

RULES GOVERNING WITHDRAWAL.

When an advocate withdraws from representation, he or she has the duty to;

 Maintain the confidentiality of the information provided by the client during

representation except to the extent where the advocate may need to reveal confidences
in a lawsuit to recover unpaid fees owed

 The attorney must notify the client of the withdrawal prior to ceasing his work on the
case

 The attorney must make reasonable effort to assist the client in obtaining a new
attorney and must cooperate with the new attorney during transition to new
representation

 The attorney must also deliver all the files to the new attorney

In the case of Eunice Wairimu Muturi and another vs. Ruth Nyambura Chuchu and 2
others, in this case the applicant was seeking leave to cease from acting for the defendants in
this matter. The grounds for the application are that the said firm of advocates having acted in
the sale transaction the subject of this suit cannot continue conducting the proceedings who
are better represented by a neutral counsel and the defendants have no objections. In this case
Justice P. Nyamweya stated that if the advocate wishes to withdraw from acting for a client 33,
the applicable rule is Order 9 Rule 13 which provides that

33
Eunice Wairimu Muturi and another vs. Ruth Nyambura Chuchu and 2 others [2013]eKLR
 1) where an advocate who has acted for a party in a cause or a matter has ceased so to
act and the party has not given notice of change in accordance with this order, the
advocate may on notice to be served on the party personally or by prepaid post letter
addressed to his last known place of address unless the court otherwise directs apply
to the court by summons in chambers for an order to the effect that the advocate has
ceased to be the advocate acting for the party in the cause or matter and the court may
make an order accordingly ; Provided that, unless and until the advocate has-:

a) Served on every party to the cause or matter or served on such parties as the court
may direct a copy of the said order

b) Procured the order to be entered in the appropriate court

c) left at the said court a certificate signed by him that the order has been duly served
as
aforesaid, he shall (subject to this Order) be considered the advocate of the party
to the final conclusion of the cause or matter including any review or appeal.

2) From and after the time when the order has been entered in the appropriate court,
any
document may be served on the party to whom the order relates by being filed in the
appropriate court, unless and until that party either appoints another advocate or else
gives such an address for service as is required of a party acting in person, and also
complies with this Order relating to notice of appointment of an advocate or notice of
intention to act in person.

3) Any order made under this rule shall not affect the rights of the advocate and the party
as
between themselves.34

4) COMPLETION OF ENGAGEMENT

hiThe attorney-client relationship comes to a natural conclusion when the attorney has
completed the services for which the attorney was employed. In litigation cases, this is
ordinarily the entry of judgment.35

34
Civil Procedure Rules ,order 9,rule 13
35
Maxwell v. Cooltech, Inc. (1997) 57, 632.
In Mungai Advocate vs New Kenya Cooperative Creameries,36 the honorable court citing
Halsbury’s Laws of England 94th Edition reiterated that the completion of business between
an advocate and his client can be a way of terminating the advocate-client relationship. In
Kenya Orient Insurance Ltd vs Oraro & Co advocates, 37the honorable court held that the
advocate-client relationship is terminated when the engagement ended or when the brief is
concluded.

At the conclusion of a case, it is prudent practice to send a termination letter to the client. The
letter informs the client that the retainer is over and anything that remains to be done. 38 After
the termination of the engagement the client’s file will be maintained for a certain time or
destroyed.39

In Merkosky vs Wilson40, the honorable court stated that the attorney- client relationship may
also terminate by a communication that the relationship has ended and that the
communication can be written or oral.

5) LAW FIRM BREAK-UPS

During a law firm break up, advocates leaving the firm are expected to cease engaging and
communicating with clients whom they have no personal relationships with. On the other
hand the advocates can continue communicating and engaging with clients whom they had
prior professional relationship with.41

Upon law-firm breakups, leaving advocates are not expected to persuade clients with the
intention of leaving with them. In Reeves v. Hanlon42 the honorable court held that a
departing firm lawyer who wrongfully persuades the firm’s clients to leave the firm and
switch to the departing lawyer’s new firm is exposed to potential tort liability for intentional
interference with contractual relations and interference with prospective economic advantage.

Attorneys and clients obligation upon termination of representation.

36
Misc. Civil Application 373 of 2007
37
Miscellaneous Cause 701 of 2012
38
Steven Glickman, ‘Terminating the Attorney-Client Relationship’ (2019)
https://www.advocatemagazine.com/article/2019-february/terminating-the-attorney-client-relationship >
accessed 14 March 2021
39
(n 36).
40
Merkosky vs Wilson (2008) Ohio 3252
41
(n 36).
42
Reeves vs Hanlon(2004) 33 Cal.App.4th 1140
The prime duty of an advocate is to avoid prejudice to the client. Thus, at a minimum, the
advocate should advise the client of such things as any upcoming dates and deadlines in the
client’s matter. Until the Substitution of advocate form has been filed or until the court order
granting withdrawal is effective, the advocate remains obligated to act competently to protect
the client’s interests.

Upon termination, the advocate does not need to provide additional services to the client once
successor counsel has been employed and the advocate has released the client’s files. Upon
termination for any reason, the advocate has a duty to release the client’s files. This rule
requires that all client materials and property be released and defines “client materials and
property” as “correspondence, pleadings, deposition transcripts, expert’s reports, and other
writings, exhibits, and physical evidence, whether intangible, electronic, or other form, and
other items reasonably necessary to the client’s representation whether the client has paid for
them or not.”

An unresolved question is whether or not work product of the advocate is within the
documents that need to be turned over. Work product that has previously been communicated
to the client needs to be turned over, but work product not previously communicated to the
client is an open question.

When turning over the files, the attorney has an obligation to release the items, not to create
them or change the application. The lawyer may charge the client for copying the file if the
fee agreement so provides. However, the lawyer cannot condition delivery of the client’s file
on the client’s payment of copying expenses.

Unreasonable delay in releasing or refusal to turn over the client’s file is grounds for
discipline. Additionally, where failure to return the client’s file results in damages to the
client, the advocate may incur civil liability for malpractice. The bottom line is that the
attorney cannot hold the files to extort a disputed fee or to create a lien that is contrary to
public policy.

Once notified of termination, the advocate must promptly return to the client any part of any
fee paid in advance that has not been earned. Keep complete records of any client funds held
in a trust account and other property of a client for a period of at least five years after
termination of the representation.
Confidentiality should also be maintained even upon termination as the advocate privilege
suffices to extend to oral communication from client, documentary, information received
from a client in the course of acting for a client. Any knowledge or fact derived from such
communication is also privileged. For privilege to exist, it is not necessary that a client must
have paid fees. It does not apply to any communication between the Advocate and Client
before he becomes a client. It lasts forever and survives the death of a client, so long as there
is an issue in which interests are in question.

ENFORCEMENT AND LITIGATION OF THE ATTORNEY’S FEE LIEN

Attorney’s lien is the right of an attorney to hold a client’s property until their legal fees for
services provided are paid.43 In that respect, an attorney may elect to hold the client’s official
documents or the sum awarded by the court until their payment is fulfilled.

The common law right to attorney’s lien may similarly be found in statute.

There are two types of lien;

i) Charging lien

ii) Retaining lien

The former confers on an attorney the right to a portion of the judgement award. 44 It is more
specific and is given as sum for a particular action. Section 52 of the Advocates’ Act
expounds more on the charging lien.

On the other hand, a retaining lien is more general as it secures payment for all outstanding
fees including those incurred while trying to recover payment of fees. In addition, a retaining
lien extends to all property that came into an attorneys’ possession in the course of the
employment.

Under section 78 of the Code of Ethics and Conduct for Advocates’, an advocates’ obligation
to return a client’s property post conclusion of engagement is subject to an advocates’ right to
lien.

43
https://www.law.cornell.edu/wex/attorney%27s_lien last accessed 14th March 2020
44
https://legal-dictionary.thefreedictionary.com/Attorney%27s+Lien last accessed 14th March 2020
The honorable judge in Booth Extrusions v Nelson Harun t/a Nelson Harun & Company
Advocates, 45 while expounding on the nature and extent of an advocates lien sought to quote
the case of John D Hope & Co v Gleddining whereby a lien was described as being
dependent on the contractual principle that one party to a contract cannot enforce
performance of obligations in their own favor without performing the obligations placed on
them.

In the case of Booth Extrusions, the plaintiff had hired the defendant in a conveyancing brief
to transfer property which they had bought from Kaluworks Ltd. To facilitate the transaction,
the defendant required the original title document which was subsequently sent to him.
However, the transaction did not go through with each party laying blame on the other. On
the question of whether the defendant had waived his right to lien, the court laid bare that an
advocate would be deemed to have waived their right to lien after taking security for costs

In the context of an advocate- client relationship, it would be unfair for a client to gain from
an Advocates' services and expect the advocate to gain payment from somewhere else when
they can easily attain it from the lien. It is to this effect that attorneys have the right to lien
which enables them to hold a clients’ papers, money or other forms of property which came
under their possession in the course of the advocate-client relationship. Noteworthy; an
advocate can only retain the above mentioned until the client pays the advocates’ fees.
Afterwards, the client is in a position to demand delivery of the retained documents, etc.

Although the attorney has been conferred a right which translates to being in possession of a
client’s property, the right only goes as far to the extent of retaining the property and no
more. Simply put, the right is merely passive as the attorney is restricted from active
enforcement of their demands. 46

The procedure for litigation of an attorneys’ fee lien can be found under order 52 of the civil
procedure rules.

1. One may apply for a charging order for a suit or matter

2. According to common law, a prosecuting or defensive attorney has an automatic

charge on the property that is to be recovered. The charge will exist once the property
in question has been recovered and will only be enforceable once the court grants a

45
2014 eKLR
46
Barrat v Gough Thomas (1950)
 charging order.47 The same has been reiterated under section 52 of The Advocates’
Act.

3. The application is made by filing of chamber summons which is accompanied by a

supporting affidavit.

4. The same is then served on the client

5. In order for the court to grant a charging order, an attorney is expected to make a
prima facie case which fulfills the following elements;

- Must have been retained to either prosecute or defend

- Must have prosecuted or defended in a court- related proceeding

- Property must have been recovered or preserved

- That he or she is bound to remain unpaid if order is not granted

47
Solicitors' Lien and Charging Order- Your fees and your Clients