Business Daily (Nairobi)
13 February 2008
editorial
The move by the Law Society of Kenya (LSK) to try and relax the law on advertising is set to ignite debate in the legal industry and will herald a new dawn in the Kenyan legal sphere.
At the heart of the concern lies the fundamental paradox of the legal profession itself. The monopoly of the legal profession is sustained by its definition as a profession as opposed to a business.
Businesses are endeavours fuelled by the quest for gain; the legal profession is supposed to be fuelled by a desire to serve the public. The legal profession originally sought to ensure this distinction by not allowing business oriented practices such as advertising.
However, in order to serve the public, the members of the profession must be financially sustained by their practice of the law. Advertising, although seen as a 'sharp business' practice in the legal field, is needed to help ensure the continued existence of the legal profession. This is the grim reality.
There are, however, other ethical concerns regarding the marketing of legal services. For example, there is concern that in-person solicitation of a prospective client may lead to the lawyer overbearing the prospective client's will.
The two main reasons for this concern are because, first, a lawyer is specially trained in the art of advocacy, while the potential client is almost certainly not; second, the prospective client may already feel emotional and overburdened by the circumstances that occasion their possible need for legal advice.
Another concern regarding the marketing of legal services is that widespread marketing will lead to stirring up of frivolous lawsuits. Such behaviour is not only unprofessional, but also indictable at in law.
Thankfully, the proposals as set out by the LSK address such issues by setting strong penalties for lawyers who bring disrepute to the learned profession.
Love them or hate them, lawyers are an important segment of any given capitalistic society. While the new proposals are sure to initiate a lot of debate, they should not outrightly be dismissed.
In any case, the rapid growth of the Internet has given several large law firms in Kenya the opportunity to market their legal services on a previously unheard of scale by setting up Web sites and announcing what they do best.
This, strictly speaking is against the Advocates Act, but the LSK has decided to turn a blind eye on the transgression we believe because it is time for change, and resistance to change is always a huge challenge with major implications.
By opening debate on this subject , we believe that lawyers will arrive at a consensus on the issue, for the good of the profession and the public at large.
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