By Allan Ong’ato, Esq

The world has seen remarkable transformation with the advent of social media. Nowadays, many people rely on social media for information and services. This trend is not expected to slow down soon especially with the ever-increasing globalization.

Concomitant to this phenomenal growth of social media is the fact that it has allowed people who sell goods and services to leverage on it to advertise and/or market to larger audiences. The legal profession has not been left behind in this regard. Increasingly, we have seen Lawyers take advantage of the social media to advertise and/or market their legal practice in many creative ways.

This article will however restrict itself to the now very common practice amongst Lawyers of sharing favorable decisions from the Courts on social media platforms gushing about how the Court agreed with their Submissions and found for their client.

Two critical issues arise from this practice which merit interrogation. Firstly, whether such conduct amounts to Marketing and/or Advertising and if so, whether the same is permissible under the rules or standards and guidelines in place and secondly, whether it should be permissible for Lawyers to share the decisions without the clients’ consent.

The Lawyers who engage in the said practice only highlight cases in which their clients got favorable decisions. It is common knowledge however that clients lose cases almost as much at they win them. How come these Lawyers never publicize those cases which their clients lost? There are no prizes for guessing why.

It is obvious that it as a marketing or advertising gimmick aimed at creating the illusion amongst their lay followers on their social media platforms that they are consummate lawyers who win all their cases. The effect on the consumers of legal services is increased faith in the said Lawyers’ abilities hence more work and more money!

Since the obvious objective of this practice is to attract more business, it is difficult not to consider it marketing and/or advertisement as contemplated under the Advocates (Marketing and Advertising) Rules, 2014 (“the rules”).

This practice falls afoul of the rules in several senses. Firstly, its intended or unintended consequence is that it leaves the illusion that the Lawyer who won a particular case is better than the next one who lost. Marketing or Advertising on the basis of this problematic premise is unfair because cases are never Lawyers’ but clients’. To the extent therefore that Advertising or Marketing on this basis produces an unfair result against fellow Lawyers, the same falls afoul of the rules.

Secondly, Rule 5 (2) of the rules expressly proscribes revealing of the name or the identity of a Lawyer’s client in an advertisement. In advertisements of this nature, it is extremely difficult for one to conceal the identity of their client.

Thirdly, by its very nature, this kind of advertisement in itself amounts to a promise to achieve a particular outcome for clients or prospective clients. To this extent it falls afoul of the rules in terms of Rule 5 (2) (d) of the Rules.

Where a Lawyer fails to market or advertise in accordance with the rules, the same amounts to professional misconduct in terms of Rule 10 (a) of the Rules.

The final issue to be interrogated is whether or not it should be permissible for a Lawyer to self-promote using a client’s case without the client’s consent. 

The Advocates Act Cap. 16 of the Laws of Kenya does not define with specificity what ‘Professional Misconduct’ is. Section 60 of the Act however states that “the expression professional misconduct” includes disgraceful or dishonorable conduct incompatible with the status of an Advocate.”

As acknowledged under Part C, Rule 11 of the Code of Standards of Professional Practice and Ethical Conduct, GN No. 5212 of 26^th May, 2017 (“the code”), the concept of Professional Misconduct is wide and the categories of behavior that would be considered as amounting to misconduct not closed.

Rule 12 of the code states further that generally, professional misconduct is breach of the rules, standards and ethics of the profession.

A distinction between ‘professional misconduct’ and ‘unsatisfactory professional conduct’ has sought to be made at Rule 13 of the code. For a claim of professional misconduct to arise, the rules and standards governing the behavior ought to be captured in text first, that is either in statutes, rules or standards and guidelines issued by the Law Society of Kenya. For instance, the provision against Marketing and Advertising otherwise than in accordance with the rules providing for the same has been specifically proscribed under the said rules.

For unsatisfactory professional conduct on the other hand, the threshold is lower. It is defined at Rule 13 of the code basically as conduct which falls below the standard of behavior that is expected of a practicing Advocate.

Using a client’s case to self-promote without the client’s prior consent is morally abominable. By all standards, it can’t be said to be the right or proper thing to do in the conduct of an Advocate’s duties. By reason of this therefore, the practice of sharing the details of a client’s case and using the same to self-promote is not proper.

In view of the developments highlighted in this Article, time has come for the Marketing and Advertising Rules, 2014 to be updated to regulate advertisement via social media, which many Lawyers have pursued with enthusiasm and verve.