Monday, January 28, 2013

Make the Code Objective, not Subjective.

The Law Society of Kenya is surely right: advocates must conduct themselves in such a manner as they earn respect, protect and enhance the dignity of the legal profession, and avoid anything that would cause them to be treated with disrespect or bring the profession into disrepute. However, the argument that the revised Dress Code for Advocates cannot be challenged on free-expression grounds is preposterous. The proper response should have been whether a challenge can be sustained.

Every law student is taught to appreciate the special place of advocates in the grand scheme of things. Advocates, and lawyers generally, play an important role in the society. They are called upon to act in instances where there is a dispute or a conflict. They are, ideally, problem solvers, and their role in the resolution of disputes and the untangling of untenable situations must not be jeopardised because they are perceived as non-serious or frivolous. In St Paul's First Epistle to the Corinthians, we are called upon to put away childish things. In effect, St Paul asks us to grow up. It is the same with the practice of law. It is such a noble and honourable undertaking that it must be treated with dignity and respect, and the manner we dress demonstrates whether we take it seriously or not.

However, the Dress Code suffers from uncertainty. Some of the phrases used in the Code may be interpreted broadly or narrowly, depending on the person and the circumstances. For example, the words flamboyant and garish are terribly subjective; the Dress Code would have profitted from precision, which, contrary to legal orthodoxy, does not arise from using the most complex sentence structure or prolixity. Simplicity is the key to making the Dress Code understandable and capable of being applied without accusations of bias. It would benefit greatly if the Code simply stated what could and could not be worn and in what colours, rather than delving into the minutiae of particular styles and patterns.

It is for this reason that one must accept that the Code could be challenged on the ground that it is an unwarranted assault on the advocates' right to expression protected under Article 33. To accuse an advocate of professional misconduct, as a violation of the Code is, the advocate must act in a disgraceful and dishonourable manner that is incompatible with the status of an advocate (s. 60(1) of the Advocates Act). The manner in which an advocate dresses may be considered disgraceful and dishonourable and might bring the advocate into disrepute if it is so outrageous that a person may feel that the advocate is not acting like an advocate should. The standard for what constitutes disgraceful or dishonourable, and what might bring the profession into disrepute, have been laid down by decades of precedent. However, because of the provisions of Art 33, it may be time to re-think these standards, especially as the standards of society have undergone a great evolution since the time when it was improper for female advocates to be seen in trouser suits.

The Law Society has every right to regulate how advocates dress and act, but it must exercise its power in a manner that will not only instil confidence in the profession, but will also allow the advocates to express themselves in manner they feel enhances the dignity of the profession. Rules such as the one prohibiting the wearing of shoes that expose the toes seem capricious and ill-informed, especially in light of the fact that, especially for women generally, shoe fashions evolve faster than there are seasons in a year. The Law Society would benefit greatly from a plainer drafting of the Dress Code; this would protect it from accusations of stodginess. Indeed, many would argue that since the Law Society published the revised Dress Code, it has been the object of ridicule, lowering its dignity and making it the laughing stock of the public. If its intention was to enhance the dignity of the profession, it has failed in its attempt. Erick Mutua, the chairperson, Apollo Mboya, the secretary, and the Council of the Law Society should withdraw the revised code and publish a new one that considers the changes that have occurred in Kenya, especially when it comes to matters such as fashion and good taste. Indeed, if the Code was applied against the stud-wearing Chef Justice, it is likely that he would be accused of professional misconduct, would it not?

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