Legal profession faces dramatic transformation

By Apollo Mboya

Since Kenya’s Independence in 1963, the evolution of the legal profession has been fueled by the significant reforms.

The loud protestations of the Law Society of Kenya (LSK) leadership not only spurred the constitutional journey culminating in the Constitution of Kenya 2010, but also the dramatic ripple effect in the Judiciary including the vetting exercise in response to public demand for integrity, transparency, independence and competence in our law courts.

The new Constitution consequently unleashed the enactment of new laws to implement the new governance structures of devolution, which required the participation and vigilance by the Bar.

The infectious Constitution of Kenya also caught up with Bar when it abandoned the postal ballot system of conducting its increasingly competitive elections and adopted secret ballot under the management of the Independent Boundaries and Electoral Commission (IEBC).

The 1949 governing Law Society of Kenya Act has been reviewed and is awaiting enactment. The institution of Senior Counsel emerged as recognition either of former Bar leaders, or contribution to the development of jurisprudence or the legal profession.   From a small Bar composed of pioneer British and Indian lawyers to a ten thousand-strong membership with a changing demography of more young lawyers, the Bar gained two constitutional seats in the membership of the Judicial Service Commission influencing the appointment of judicial officers in addition to membership of a number of other institutions.  The top challenges to legal professionals include economic turbulence on the practice due to societal and economic changes; adaptive technology; compliance and ethical issues; and continuing professional development.

Clients continue to demand efficiency and responsiveness from their lawyers for less cost, by focusing more on the outcome and less on time spent on a legal matter. The legal profession faces unprecedented competitive pressures from accountants, realtors, financial advisors, and others — and the Internet is making it easier for them to compete.

There is competition from global legal service providers, as the doors to transnational practice by lawyers widen by the World Trade Organisation’s General Agreement on Trade in Services and regional integration frameworks. It is estimated that 80-90 per cent of legal fees spent on matters related to Africa are paid to global law firms not based in the continenet, and to beat barriers to cross border practice, networks and alliances of law firms such as SNR Denton, Miranda Alliance, Lex Africa, Africa Legal Network and DLA Piper Group have emerged.

Focus areas for the Bar are: Law Firm Structure and Billing, Educating and Training New Lawyers, Work-Life balance, and Technology vis-à-vis the Practice of Law.

Mentoring is still among the top concerns for the Bar. With fewer clerkships, internships, and hiring new law graduates — and access to mentors — many are joining the Bar with less experience often without having acquired practice basics such as understanding trust account requirements. Development of mentoring opportunities between experienced and new lawyers as a means of developing  the next generation falls on the shoulders of the Senior Counsel and Advocates.

Upon admission as an advocate of the High Court of Kenya, one is expected to possess basic skills such as articulate communication, core knowledge and understanding of applicable laws, jurisdiction authority and procedures of our courts and tribunals, good intellectual, analytical and problem solving acumen through evaluation of information, arguments, assumptions and concepts. 

It is also important to have good personal development and work management skills and lastly, exhibit professional values, behaviour, attitudes and ethics. Lawyers are trained to look backwards for precedent so it is difficult for them to see forward to how they will practice in future — how lawyers value and price what they sell.

Alternative billing strategies including fixed, contingent, results based, hourly, graduated, or any such combination is required, because apart from “legal services” and “time”, lawyers are also selling “knowledge”. Lawyers and firms are turning to firm and legal information managers to examine trends and identify competitive advantages.

As information becomes more and more available, and as technology allows individual or small groups of Advocates to “expand” their practice, it is likely companies will create or expand in-house legal departments for the efficiency of the service, and to save costs.  The enactment of the Limited Liability Partnership (LLP) Act, 2011 has encouraged firms to practice as LLPs rather than in the names of the current or former partners.

Every law firm  —  solo, small, medium, or large — is affected by technological change. Individual practitioners and firms will have to be more flexible, expeditious, and reasonable in terms of providing legal services. In a fast-paced, discontinuous change environment, the Bar, law schools and law firms are expected to adapt. These are terrifying times if you have difficulty accepting and dealing with change.