Is your advocate deserving of his fee?

Is your advocate ripping you off?

‘Money first, work later’ is a catch phrase for the lead female character playing advocate in a Korean series, ‘Woman with a Suitcase’. K-Drama series may not be popular within the region but this particular one dealt with some of the controversial topics between clients and advocates. In the series, Cha Geum-joo played by Choi Ji-woo, first a paralegal who later becomes an attorney, handles most client related investigations, document preparations and yes, possible defenses for the clients. Her character exploits the thin line between paralegals who help attorneys prepare for case litigation and the attorneys who physically represent the clients in Court. This article will dwell on two matters.

‘Confidentiality and Advocate Fees’

Under the confidentiality principle, advocates and their employees cannot divulge clients’ information without regard to legal framework established to protect the client-advocate relationship.

Also, because of the weight of this principle and many other similar principles, advocates may be held in contempt and sometimes imprisoned while defending their clients. I am inclined to assume and allege that although he knew the consequences of defending his client; advocate #WillyKimani withstood the torture and bodily harm inflicted on him because he believed he had a duty to his client.

Confidentiality is like a perimeter wall. Without it, clients would not trust advocates to handle their matters at all. This clause enables clients reveal information they have, to the advocate; sometimes, to their detriment and often at the risk of the advocate’s life. Clients must trust that the advocate cannot reveal this information to a third party, no matter what.

 So, when does this veil drop?

Courts have gradually eroded this veil in circumstances necessitating revelation of information. Although regard is given to the sacred nature of relationship between clients and advocates, Courts understand and respect the fact that the only way they can compel an advocate to reveal secretive information must be through legal means.

These legal means depend on the case at hand and vary in different jurisdictions. They include among others:

  • Court order a.k.a Subpoena

A Subpoena is a sacred document within legal borders. To violate a subpoena is to disregard the authority of Court or the Judicial arm of government and therefore punishable.

Court orders usually require one to present himself/herself, respond to matters ordered to testify about or even attend Court proceedings, whichever role Court requires one to act upon.

An advocate who has previously acted on behalf of a litigant may refuse to appear in Court to testify about his/her client unless subpoenaed to do so.

But if the client-advocate relationship is severed, he/she may testify, usually with court consent.

  • Death of a client

The dead cannot physically testify but they can do so through another friend. An advocate is one of them.

  • Consent from the client

When a client allows his/her advocate to reveal information, the confidentiality clause is dealt away with. However, the revelation must be qualified if it is whole or partial.

I cannot presume that clients enjoy paying upfront for legal services yet to be received, but who knows?

For most part, the legal vocation has been faulted for ‘being greedy’ in monetary terms. However, which services come at no cost? Even government based medical facilities are paid for by the taxpayer. Pro bono services are also paid for by charity givers and civil society organisations, if not government through its mechanisms.

Often, the public is skeptic, rightfully so. But Courts have public interests at heart.

In 1964, Pennyak, J said;

‘One must envisage a hypothetical counsel capable of conducting the particular case effectively but unable or unwilling to insist on the particularly high fee sometimes demanded by Counsel of pre-eminent reputation. Then one must estimate what fee this hypothetical character would be content to take over on the brief.’ (Simpsons Sales (London Ltd) v. Herndon Corporation (1964) All ER 833)

This case touched on instruction fees. The learned bench rightly argued that the public usually evaluates the apparent costs to be paid to Counsel before handing him/her the brief. However, advocates also have rules to follow. These rules are envisaged within Remuneration Orders and charging anything below the allowed fee usually causes them trouble. This trouble is called ‘undercutting’ and yes, it is punishable.

So, ‘Money first, work later’: does this work?

No and Yes. I say this with reservation because circumstances differ.

If it is pro bono or agreed upon between the client and his/her attorney, it will not work. There is a status established at the on-set of the legal relationship.

However,

If you feel ripped off by your attorney, remember the same Court where he/she appeared to defend you will also determine whether or not he is entitled to the fee he/she seeks.

See for example:

Case Ref. no.1

*Nicholas Roussos v. Gulamhussein Habib Virani and Nasnindin Habib Virana [Civil Appeal No.b/95],

Justice S. Manyindo, as he then was D.C.J., considered and reduced the fees awarded by the taxing officer, from Ushs.36,000,000/= to Ushs.6,000,000 arguing that;

‘While it is important that advocates should be well motivated but it is also in the public interest that costs be kept to a reasonable level so that justice is not put beyond the reach of poor litigants… In the circumstances, I am of the view that the instruction fees as taxed by the Taxing officer were unduly excessive.’

Case Ref. no.2

Justice G.M Okello, J.S.C ruled in *Attorney General v. James Mark Kamoga & James Kimala, Civil Application No.02 of 2008, Scucorum.

‘It seems clear to me that the taxing officer was significantly influenced by the value of the suit land which was put in the valuation report at Shs.1,293,000,000/=. Even if that appeal was difficult, which I do not accept, I cannot imagine that a reasonable competent advocate would demand 70 million to handle it. This kind of award of costs is incongruous with the spirit to balance between keeping costs of litigation at a reasonable level so as not to restrict access to court to only the wealthy and the need to allow reasonable.’

Conclusion

It’s true that a valiant legal defense comes at a cost. What costs are you prepared to accept? Should you require concluding your matter, do these;

i) Settle outside of Court

ii) Pay upfront

iii) Keep a close watch on your matter. Follow up with your Counsel because honestly, chances are your case is not the only one or highly paying case. It is important, though.

Otherwise, K-Drama actress, Choi Ji-woo did a good job emphasizing the importance of paying for legal services which require an advocate to literally take your secret to jail, if not the grave.

BY ATUHAIRWE AGRACE

This article appears in our digital law newsletter, The Deuteronomy Vol 8, Issue 1 of August 4th, 2017

To receive The Deuteronomy in real time, click HERE

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