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A case for the legal profession's involvement in governance

Lawyers have much to contribute to ensuring good governance in their country and it's vital that they make that contribution, writes Bowmans Kenya head of dispute resolution Evans Monari.

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Lawyers are expert technicians trained and knowledgeable in the law who, when coupled with their vast experience, offer wise counsel and the benefit of their judgement in solving legal challenges. Members of the legal profession have a responsibility to safeguard and abide by the Constitution of their countries, just as every other citizen does.

In the words of author Dr. Orison Marden: ‘[The] lawyer is the responsible professional and public citizen.’ If anything, lawyers have independent professional responsibilities and are expected to conduct all their affairs (including those of being a citizen) with reference to the standards of professional conduct by which they swore to abide.

On law and governance

Lawyers have traditionally been relied upon to provide technical advice on legal issues. However, there is a paradigm shift in terms of what the role of a lawyer should be. It is now universally accepted that the days of narrowly couched legal advice should be over. The roles and obligations of the legal profession under the International Bar Association lay testament to this fact.

In today’s world, the modern lawyer has an aspirational responsibility to counsel clients beyond ‘the law’ and into more practical considerations, such as likely public perceptions, potential reputational damage and generally about doing the ‘right’ thing. In additional to their clients, lawyers are accountable to multiple other stakeholders including the profession, the rule of law and wider society.

Legal practitioners can no longer sit back and adopt a defeatist attitude to the goings on in their country’s socio-economic and political landscape. Lawyers have expanded their roles from the traditional duels in court and must now face their obligation towards addressing the problems in their country.

The law and the just dispensation of justice form the solid foundation on which good governance can be introduced and sustained. Good governance means a people-oriented, people-monitored and people-introduced style of governance. Each nation’s Constitution facilitates this and supports the duty of the citizenry to play an active role in their country’s governance system. Lawyers owe it to themselves and to others to ensure that the law reigns supreme in a land that belongs to everyone and that justice is meted out to all.

The mandate for lawyers

In his book Towards One World – The Memoirs of Judge Weeramantry, the former judge and Vice President of the International Court of Justice notes as follows: ‘No one knows better than the lawyers the defects and loopholes in legal systems, through which injustice overcomes justice. Their collective experience in this field is vast, but this pool of experience lies untapped. There should be committees of the Bar entrusted with overlooking these areas and bringing them to the notice of legislative authority and the general public.’

Particularly, a case is made out for larger law firms to begin the revolution. This stems from the position they find themselves in interacting with government and the potential increase of the range of practice areas. Further, large law firms have influence in setting broader norms for the profession, in that they frequently the source of leaders in both private business and public life. They are also, almost invariably, the public face of the law and the legal profession.

The American model

The United States came to the realisation that lawyers ought to be active participants in the corporate governance processes more than a decade ago. To spur the active role of legal professionals, Congress passed the Sarbanes-Oxley (SOX) Act of 2002, which was intended to protect investors from the possibility of fraudulent accounting activities by corporations. Section 307 of the SOX Act requires the Securities and Exchange Commission to prescribe minimum standards of professional conduct for lawyers appearing and practicing before the Commission in the representation of clients.

The standards include a rule requiring an attorney to report evidence of a material violation of securities laws or breach of fiduciary duty or similar violation by its clients up-the-ladder within the company to the chief legal counsel or the chief executive officer of the company (or the equivalent thereof); and, if they do not respond appropriately to the evidence, requiring the attorney to report the evidence to the audit committee, another committee of independent directors, or the full board of directors.

The American model adopts a compulsory regulation-based approach towards lawyers’ involvement in curbing corruption and fraud activities within companies and corporate institutions. They are further limited in scope to an attorney-client relationship. The section also goes against the conventional rule of confidentiality between advocates and clients and allows the attorney to reveal confidential information related to his or her representation to the extent the attorney reasonably believes necessary to prevent that client from committing material violations likely to cause substantial financial injury to a company or investors, to prevent the company from committing illegal acts and to rectify the consequences of illegal acts in which the attorney’s services have been used.

Weak power, strong authority

In Japan, the progressive growth of the legal profession has necessitated the expansion of the provision of legal services in more novel areas of practice. Expansion of the scope of these legal services, it has been proposed, should be from a change of informal ‘administrative guidance’ to a rule-based form of administration in which businesses consult lawyers rather than bureaucrats for advice on permissibility of products and their actions.

This progressive shift comes in the context of weak bureaucracies. John O. Haley’s article ‘The Paradox of Weak Power and Strong Authority in the Japanese State’, in Asian States: Beyond the Developmental Perspective puts it as such: ‘State actors in Japan have generally not had the capacity to develop and direct policy or, more importantly, to compel compliance for its implementation typically enjoyed by either Japan’s East Asian neighbors or its American and European peers.’

A vision for lawyers in Kenya

Kenya now finds itself in a similar quagmire to Japan, wherein state regulators have been unable to enforce compliance with compulsory standards, nor laws necessitating the involvement of players such as legal practitioners to plug the gap.

In response to recent corporate scandals, many commentators have suggested that the US regulatory system is too focused on rules rather than principles. Kenya risks heading in the same direction, where statute books are saturated with regulations aimed at curbing fraud and corruption without the necessary monitoring and enforcement mechanisms. Lawyers are best placed to assist in promoting good governance and accountability.

In the words of Judge Christopher Weeramantry: ‘This work is a plea to lawyers individually and to legal professions as repositories of their exalted vocation, to shed this attitude of insularity, and to see the law as the most far ranging instrument of service available to society for the advancement of happiness and justice.’

Lawyers should adopt a broader scope of ‘the law’ to include ethics, reputation, and geopolitical risk and should function as experts, counselors, and leaders. The lawyer should aspire to be a responsible professional and a public citizen who asks first, ‘is it legal?’ but ultimately, ‘is it right?’.

Evans Monari is a partner at Bowmans in Kenya. Evans is an advocate of the High Court of Kenya. He is a past member of the Council of the Law Society of Kenya and currently a co- vice chair of the International Bar Association Africa Forum. He also represents the Law Society on the board of the Council for Law Reporting. Evans has recently been appointed as Adjunct Professor of Law at the Kenya School of Law. Evans is a highly rated senior litigation lawyer in Kenya. He has handled complex commercial, civil, judicial review and constitutional matters as well as high profile criminal briefs. 

Posted by:

Evans
Monari

08 November 2016

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