CLIENT ADVOCATE PRIVILEGE

By: Innocent W. Otuma

Law is a noble career and it is a profession that is held in high regard across almost all the societies of the world. A lawyer, an attorney, a barrister, an advocate or any other name depending on the jurisdiction, is bestowed upon a person(s) who have been admitted to the bar and who have the privilege of being preachers of the law to the society and agents and interpreters of the law before a court of law.

Being a noble profession, advocates have to be guided by certain codes of conduct and among them is the client-advocate privilege. Client advocate privilege is defined under Section 134(1) of the Evidence Act as:

“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 and for the purpose of his employment as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course 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”.

The drafters of the Evidence Act CAP 80 Laws of Kenya must have had in mind, the judgement in the case of Conlon vs. Conlons Limited [1952] 2 All ER 462 with the court observing that the privilege has been zealously guarded by the courts as long as the history of the law goes and that there are only two instances in which it is lost; if something of a criminal nature is involved and if there is waiver by the client. In particular, the court observed that:

“What is the rule [as to privilege] and what is the meaning of the rule? …The object and meaning of the rule is this; that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentlemen whom he consults with a view to the prosecution of his claim, or the substantiating of his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communication be so makes to his should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enable properly to conduct his litigation.  That is the meaning of the rule.”

The wording of Section 134 of the Evidence means that advocates have been expressly prohibited from disclosing any information regarding what their clients disclose to them to any person whatsoever unless under the permission of their client. Such is the significance of client-advocate privilege that it proceeds even after the conclusion of the case and the advocate cannot go on speaking about the merits of a concluded case without the express permission of their client.

This was the holding in the case of King Woolen Mills Ltd & Another vs Kaplan & Stratton Advocates where the wording of the judgement was:

“… 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.  The fiduciary relationship exists even after conclusion of the matter for which the retainer was created.”

The only limitation of client-advocate privilege that exists in law and that can cease the advocates privilege is when:

The client uses the privilege and proceeds to commit a crime.

The communication between a client and an advocate furthers an illegal purpose.

The problem in the Law

On the 1st of September 2023, President Ruto signed into law the Anti-Money Laundering and Combating of Terrorism Financing Laws (Amendment) Bill Of 2023 that was aimed at ensuring that economic crimes are stemmed in the country and that perpetrators are brought to book. Cognizant of the effects of terrorism to our country, the bill also sought to stop funding of terrorism activities by placing heavy penalties on those who might be involved in the funding of terrorism. 

I applaud the provisions of this section since it will cure the problem of corruption and rising terrorism which have clouded and slowed down the socio-economic growth of our country. However, I take issue with the fact that the Act now requires that lawyers should report clients suspected of money laundering to the Financial and Reporting Centre. 

The rights of an arrested person is provided for under Article 49 of the Constitution and it involves the right to seek assistance from an advocate. It is general accepted practise in criminal law that the burden of proof lies on the prosecution and therefore the prosecution has the duty to prove beyond reasonable doubt that an accused person is guilty of a crime. Jurisprudence of law tells us that there is a power imbalance between an accused person and the state and that is why an accused person is the “favoured child of the court”.

For this reason, the fact that advocates who have been trusted with confidential information are the ones who are in fact supposed to report the accused person to the FRC is as ironic as much as it is illegal and it begs the question, why then look for an advocate? This is a direct violation to the right to fair trial provided for under Article 50 of the Constitution of Kenya. In as much as huge steps have to be taken to combat corruption and wage a war on terror, the rule of law and the fundamental principles of law have to be followed to ensure that a fair hearing which is a Constitutional right is accorded to all persons.

Article 24 of the Constitution recognizes that there are limitations to rights and fundamental freedoms and these limitations too have to be justified and done in a free and democratic society. It is my position that the violation of client-advocate privilege in the Act is not justifiable and violates the structures of a democratic society that believes in fair trial as a principle of natural justice.

Conclusion

It is my view that the LSK should be vocal in protesting the provisions of the same and seek a declaration in court that the said article is inconsistent with the constitution and it should therefore be rendered null and void. As per the words of Justice Nyakundi in the case of Manani Lilan & Mwetich Co. Advocates v Veronica Sum [2022] eKLR,  

“... it is clear that an advocate cannot claim the protection of the rule, as it belongs to the client and not the advocate. That is, the advocate-client privilege can only be waived by the client and not the advocate since that privilege belongs to the client and the right of waiving the privilege lies with the client and not the advocate as contemplated for under Section 136 of the Evidence Act.”