How lawyers got green light to advertise services

By Wahome Thuku

Advertising companies now have new clients in town — the advocates. The High Court has finally cleared obstacles that made it unlawful for advocates to advertise their services. There are about 10,000 advocates in the country. But the question arising from last week’s High Court judgement is to what extent they can go in advertising.

Two advocates, George Okenyo Omwansa and Marclus Ndegwa Njiru, filed a petition at the High Court last year seeking determination of two issues.

One was constitutionality of Section 32 of the Advocates Act, which requires all newly admitted advocates to work for at least two years as employees in other law firms, or in Attorney General’s (AG) chambers or in other organisations approved by Council of Legal Education (CLE) before they can be allowed to open their own firms.

Ndegwa, who was admitted to the bar on January 20, last year put up a spirited fight to have this section declared unconstitutional on various grounds. The AG, the Law Society of Kenya (LSK) and CLE rebutted his submissions arguing Section 32 was not unconstitutional and asked the court to dismiss Ndegwa’s argument.

After thoroughly analysing the law and the Constitution, presiding judge David Majanja held that Section 32 of the Act was not inconsistent with or in violation of Articles 25(b), 27 and 30 of the Constitution. Ndegwa lost this side of the petition.

Access information

The second limp of the petition challenged Rule 2 of the Advocates (Practice) Rules which states, "No advocate may directly or indirectly apply for or seek instructions for professional business, do or permit in carrying on his practice any act or thing which can be reasonably regarded as advertising or as calculated to attract business unfairly."

Lawyer Omwansa argued that Article 46 of the Constitution provides for consumers rights to information to gain the full benefit of goods and services offered by either a public entity or a private person.

He reasoned that legal services were part of the definition and Rule 2 only suffocated and constrained customers’ rights to access information on where, when, how and from whom to get services of an advocate.

Omwansa submitted that Rule 2 effectively denied public access to justice as guaranteed under Article 48 as they were left in the dark regarding legal services. He argued that the rule led to violation of Article 35, which provides for the right to access information.

He told the judge that courts in the USA had declared such prohibition of advertising as unconstitutional and infringement of the freedom of speech.

The AG appeared to have lost the battle on this issue. He only responded that Rule 2 had been authorised by LSK exercising its legal power to regulate the profession and hence it should not be declared unconstitutional. He said LSK should be given liberty to change the rule if it so required.

Apparently, LSK’s chief executive officer Apollo Mboya, too, did not make any comments on the issue of advertising. Legal education council maintained that the ban on advertising by advocates was properly founded. It banished commercialisation of legal practice to preserve its dignity and efficacy.