Billing for lawyers must, of necessity, be structured

Law Society of Kenya chairman Eric Mutua (centre) posed for a photo with newly admitted advocates on the 12th of July 2013. Debate has arisen over the way fees for lawyers should be determined. PHOTO /Emma Nzioka 

In Summary

• Lawyers offer specialised services, some quite complex, and there is a need for a structured way of determining the costs involved.
• Controlled legal fees are meant to actually protect poor litigants who may not afford legal services.
• The Advocates Remuneration Order has worked well in determining the costs of litigation

By James Aggrey Mwamu
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A series of articles has appeared in the local media on why the Law Society of Kenya is wrong in setting of the minimum legal fees to protect consumers of legal services.

The argument is that the proposed ceiling set by the LSK has the effect of reducing competition because firms that are capable of providing services at a cheaper rate are constrained from expanding business through providing cheaper services.

This kind of reasoning comes from those who think that providing legal services is like walking into Nakumatt to buy sugar, and while at it compare the prices of sugar in other markets like Naivas, Tuskys and Uchumi.

Lawyers offer specialised services, some quite complex, and there is a need for a structured way of determining the costs involved.

These arguments stem from a lack of understanding that controlled legal fees are meant to actually protect poor litigants who may not afford legal services.

The reasons why you have minimum wage to protect vulnerable workers are the same reasons why there has to be a controlled billing system. The moment you open legal fees to the market forces of supply and demand will be the moment when you open the floodgates that will injure the common man or woman.

The competition authority must understand that Kenya is a growing economy and we have not reached a level where you want to throw out all controls in the name of encouraging competition.

When litigants file cases in court, they seek damages as well as costs. The court, in assessing the costs, must be able to use a structured method of arriving at the figure.

The method that has been used in Kenya since time immemorial has been through the Advocates Remuneration Order. It has worked very well so far since it sets the costs for contentious and non-contentious matters. It guides the court and gives it power to maintain the cost at acceptable levels. 

After the taxation or assessment of cost is done, any party that feels aggrieved is free to appeal. You therefore have a fair system of checks and balances.

If you do away with the Advocates Remuneration Order, then what you replace it with ? What will the court use to make sure the issue of costs is not abused or litigants taken advantage of?

The highest court in the land has laid down the principles or standards for managing costs and advocate’ fees. According to the principles and standards, the cost must not be allowed to rise to such levels as to make courts accessible to the wealthy only.

A successful litigant ought to be fairly reimbursed for the costs he or she has incurred. The general level of remuneration for advocates must be such as to attract recruits to the profession, and there should be consistency in the awards made.

In arriving at a fair and well considered decision, the court has to consider the following: The nature of the matter, the complexity of the law involved, the importance of the matter to the parties, public policy, the time spent, the research and skills involved, the volume of documents studied, and the urgency.

It is, therefore, clear that a structured method of billing does not in anyway stifle competition, and anybody purveying such a false argument is simply ignorant of how the Advocates Remuneration Order works.

In conclusion, there has been a move in the western world to decontrol provision of legal services fee to the market forces of demand and supply. What is good for the American and British lawyers may not be necessarily good for our local lawyers.

In reforming the billing system you must take into account our economic development, the nature of training our lawyers get, the state of our legal development, and the general literacy level. 

Wholesome adoption of regulations from other jurisdictions without proper interrogation is likely to endanger the local lawyers and destroy talent in the name of “this is where the rest of the world is headed”