*CASE LAW* PROFESSIONAL CONDUCT
### Advocate Responsibilities and Conduct
* **1. Conflict of Interest**
* **Uganda VS Patricia O (ACD) HCMC No 1/2014**: An accused person can choose a lawyer from a
firm representing her employer as their private lawyer in non-contentious matters. However, in
contentious matters, the employer's consent is required due to the fiduciary relationship between
lawyer and client. An advocate should not represent a client if it puts them in a position of conflict of
interest and breaches their fiduciary duty.
* **Excell High School and ors v John Paul Baingana HCMA NO 1019 OF 2014**: While Regulation 4
of the Advocates (Professional Conduct) Regulations bars an advocate from accepting instructions
involving a former client, clients can waive their right to object and be barred by estoppel from objecting
if they allow the representation to continue after knowing about the potential conflict.
* **2. Taking and Acting With Authority From Client/Instructions**
* **Mulenga Christopher v Stanbic Bank Misc Application No. 200 of 2013**: An advocate must
obtain instructions from the client before taking any action, unless the advocate is a recognized agent
under Order 3 of the Civil Procedure Rules.
* **Lakhman Bhimji versus Manor Developments Ltd MA 105 of 2010**: A lawyer cannot receive
court processes on behalf of a client unless they are a duly authorized agent under Order 3 of the Civil
Procedure Rules. A lawyer cannot take action without instructions.
* **Ayebazibwe Raymond v Barclays Bank and Ors HCCS No. 165 of 2015**: A notice of joint
instructions is required when two or more lawyers or law firms represent a client. It informs the court
about the representation and address for service of court processes.
* **Omulele and Tollo Advocates v Magnum Properties Ltd MISCELLANEOUS APPLICATION NO. 590
OF 2014**: A retainer does not have to be in writing but can be inferred from the parties' conduct or the
case's circumstances.
* **Nyakundi & Co. Advocates**: The court can infer the existence of a retainer from the actions of
the parties even without a written retainer.
* **Mayers and Another v Hamilton and Ors (1975) EA 13**: An advocate is entitled to an
instruction fee when they have instructions to sue or defend but not the entire fee they can ultimately
claim.
* **Kabale Housing Tenants Association Ltd v Kabale Municipal Council SC Civil Appeal No. 15 of
2013**: Pleadings filed by a lawyer without instructions are incompetent, especially when instructions
have been withdrawn, and the lawyer has no proof of re-instruction.
* **Buike Estates Coffee Ltd v S. Lutach and Anor (1962) EA 328**: A lawyer acting without
instructions is not entitled to costs and can be personally liable for the suit's costs.
* **Mugoye and Associated Advocates v Kiambu County Assembly Miscellaneous Application No. 18
of 2017**: Professionals offering services to public entities must comply with procurement laws and
procedures for contractual engagement, and previous payments without following the law do not
excuse future non-compliance.
* **3. Establishing Advocate Client Relationship**
The sources do not provide specific case law examples related to establishing the advocate-client
relationship. However, they establish that:
* Instructions are essential for representation, implying a client or authorized representative's active
engagement.
* The advocate-client relationship is contractual and requires evidence of instructions.
* A retainer, whether written or implied from conduct, can signify the relationship's establishment.
* **4. Advocate Client Privilege and When Can It Be Set Aside**
* **Larb (U) Limited & others vs. Greenland Bank (Liquidation) & Anor High Court, Miscellaneous
Application No. 420 of 2010**: The fiduciary relationship between lawyer and client mandates
confidentiality, and the advocate should not disclose information without the client's consent.
* **King Woolen Mills Ltd Vs. Kaplan &Station Advocates (1990-94) I EA 244**: A common advocate
acting for multiple clients in the same transaction should not disclose confidential information from one
client to another without consent.
* **Conlon v Conlons Ltd 2 All ER 462**: Instructions from the client to repeat communications to a
third party waive the privilege, as the communication is no longer confidential.
* **Peter Jogo t/a M/S Ayume, Jogo Tabu & Co. Advocates V The Registered Trustees Of The Church
Of The Province Of Uganda Hcca No. 0016 Of 2017**: Confidentiality extends to prospective clients who
discuss the possibility of an advocate-client relationship, and lawyers cannot represent other clients
against the prospective client in the same matter without consent.
* **Mohammed Salim Balala & another v Tor Allan Safaris Limited eKLR**: Advocate-client privilege
is breached when communication furthers illegal purposes or the client uses the privilege for fraudulent
activities.
* **Three Rivers District Council and others v. Governor and Company of the Bank of England (No 6),
3 WLR 1274, 1 AC 610**: Privilege only applies when legal advice is the central purpose of
communication.
* **Omar son/of Hassan vs. R (1953)23EACA 550**: Disclosure by a lawyer that the accused refused
their advice is a breach of professional confidence and should not be considered by the judge.
* **Anderson v Bank of British Columbia (2 ChD 648)**: Privilege allows unrestricted communication
between a client and their lawyer, ensuring effective representation.
* **Larsen & Toubro Limited vs Prime Displays (P) Ltd.,2002 (5) BomCR 158, 2003 114 a**: A
document created for communication with a lawyer to obtain advice or prosecute or defend an action is
privileged.
* **R Vs King (1993)1 ALLER 929**: Legal professional privilege protects communication between
solicitor and expert in criminal cases, allowing the Crown to subpoena the expert but not compel
disclosure of privileged documents.
* **Memon Hajee Harim Vs. Abdul Karim (1878) 3 BOM 91**: Communication between a lawyer and
client in the presence of other parties is not privileged.
* **5. Withdraw From Instructions and Procedure For Withdraw and Responsibilities**
* **Eunice Warimu Vs Ruth Nyambura Chuchu (2012)-eKLR**: A client can terminate a lawyer's
retainer at any time, and the court can grant leave for the lawyer to withdraw after all affected parties
receive sufficient notice.
* **Machira & Co. Advocates Vs Arthur Mabuka (Misc. App 358/2001)**: A client withdrawing
instructions without payment must be prepared to pay the lawyer's fees upon taxation of an advocate-
client bill of costs.
* **6. Duties of an Advocate to Court, Duties to Clients, and Duties to Society**
* **NG. Dastane v Shrikant S. Shivde and another case no 3453**: A lawyer abusing court
procedures by seeking numerous adjournments without making alternative arrangements for witness
examination is guilty of professional misconduct.
* **Chemonges Khamisi and Mosobo v Kapchorwa Referral hospital HCCS 27 of 2012**: An advocate
acting without due diligence contrary to Rule 2(2) of the Advocates (Professional Conduct) Regulations
commits professional misconduct.
* **Joseph Kawooya v Uganda SCCA No. 50 of 1999**: A defense counsel owes a duty to the client
to conduct the defense diligently and in the client's best interest, failure to do so is professional
misconduct.
* **Acaali Manzi v Nile Bank 1994 KALR 123**: Demonstrates the court's power to refuse an
adjournment requested by letter.
* **Nuru Kaaya v Crescent Transportation Ltd SCCA no. 6 of 2002**: The appellate court will not
interfere with a lower court's exercise of judicial discretion unless the discretion was not exercised
judiciously, highlighting the importance of allowing parties to present their cases fully.
* **R v Advocate Disciplinary Tribunal MA No. 459 of 2014 KLR**: Breach of a professional
undertaking is professional misconduct as it undermines trust between advocates and brings the
administration of justice into disrepute.
* **Equip Agencies Limited vs. Credit Bank Limited Nairobi HCCC No. 773 of 2004**: Undertakings
are a convenient method for advocates to conduct transactions smoothly, but their breach results in a
lack of trust and can damage the administration of justice. Courts have inherent power to punish
advocates for breach of undertakings to enforce honorable conduct.
* **Republic v Advocates Disciplinary Tribunal & 2 others Ex parte Mpuko Nahason Mwiti eKLR**:
Failure to honor a professional undertaking is professional misconduct and can be investigated by the
Tribunal.
* **Shell and 9 ors v Muwema SCCA NO.02 OF 2013**: Courts have inherent power to discipline
advocates for misconduct under Section 17 of the Advocates Act, including suspending them from
appearing in court, but the suspension should be limited to the specific proceedings where the
misconduct occurred.
* **7. Holding Out As An Advocate or Purporting to Be One**
The sources do not provide case law examples directly related to holding out as an advocate or
purporting to be one. However, they do outline the relevant legal provisions:
* **Section 71 of the Advocates Act**: Makes it an offense for anyone not on the advocate roll to
claim to be an advocate or use titles suggesting legal qualifications.
* **Section 76 of the Advocates Act**: Extends the prohibition to corporations, making it an offense
for them to act in a way that implies they are qualified to practice law.
* **8. Disciplinary Committee of Law Council, Procedure and Judgment and Remedies They Give and
People That Can Be Taken to It**
The sources provide information on the Disciplinary Committee of the Law Council but no specific case
law examples illustrating its procedures, judgments, remedies, or who can be taken to it.
* **9. Due Diligence**
* **Elizabeth Mokgothu Ramonyai v L P Molope Attorneys High Court of South Africa Case No.
2010/29310**: Professional negligence occurs when an attorney fails to act with the competence
reasonably expected of ordinary members of the profession. A lawyer must exercise reasonable care,
skill, and diligence and not abandon a case without a lawful reason.
* **Jacob Mathew vs State Of Punjab & Anr CASE NO.:Appeal (crl.) 144-145 of 2004**: This case,
while concerning medical negligence, is relevant for professional negligence in general. It highlights the
three components of negligence: duty, breach, and resulting damage. It also states that a professional
may be liable for negligence if they lack the requisite skill or fail to exercise their skill with reasonable
competence.
* **10. Ethical Pitfalls for Advocates and Professional Misconduct**
* **Re A Solicitor Ex Parte the Law Society (1912) 1 KB 302**: Professional misconduct includes any
action that would be considered disgraceful or dishonorable by professional brethren of good repute.
* **Myers v Elman AC 282, (1939) 4 ALL ER 484**: Misconduct includes wilfully misleading the
court.
* **Shambhu Ram Yadav vs Hanum Das Khatry Appeal (civil) 6768 of 2000**: The legal profession
demands honesty and integrity, and members should strive for justice without encouraging corruption.
Acts that damage the profession's credibility constitute professional misconduct.
* **State Of Punjab And Ors vs Ram Singh Ex. Constable 1992 AIR 2188, 1992 SCR (3) 634**:
Misconduct is improper or wrong behavior, unlawful behavior, or a transgression of established rules,
but not a mere error of judgment or negligence.
* **Noratanmal Chaurasia v. M.R. Murli Case No.: Appeal (civil) 5476 of 1999**: A lawyer can be
guilty of misconduct even when acting as a litigant and not in their professional capacity.
* **In Re: Vinay Chandra Mishra (The ... vs Unknown) AIR 1995 SC 2348**: Creating a scene and
making threats against a judge in court constitutes contempt of court.
* **Rajendra V. Pai vs Alex Fernandes & Ors Appeal (civil) 6142-6144 of 2001**: Soliciting
professional work from villagers, settling for contingent fees based on compensation, and falsely
identifying claimants in a bank account constitute professional misconduct.
* **Kenya Commercial Bank Limited v Stage Coach Management Ltd CIVIL CASE NO. 45 OF 2012
eKLR**: Filing a suit without a valid board resolution authorizing the action is grounds for dismissal, and
costs can be awarded to the defendant.
* **Bugerere Coffee Growers Ltd v Seraduka & Anor. (1970) EA 147**: Lawyers initiating legal
proceedings without the plaintiff's authority are personally liable for the costs.
* **Shell and 9 ors v Muwema and Mugerwa Advocates and Solicitors SCCA NO.02 OF 2013**:
Remuneration agreements that violate the law against champerty and maintenance are illegal and
unenforceable.
* **Active Automobile Spares Ltd v Crane Bank Ltd & Rajesh Pakesh**: Courts should not enforce
illegal contracts, especially when the party seeking enforcement is involved in the illegality.
* **In Re Trepca Mines Ltd 3 ALL ER 351**: Champerty is condemned because it can lead to abuses
such as inflating damages, suppressing evidence, or suborning witnesses.
* **Kituuma Magala &Co Advocates Vs Celtel (U) Ltd, HCB Vol 3 at 72**: Remuneration agreements
between lawyers and clients are enforceable as long as they comply with the requirements outlined in
Section 51 of the Advocate's Act.