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difference between advocate and lawyer

Introduction

In Kenya, the terms "advocate" and "lawyer" are often used interchangeably, but they refer to distinct roles within the legal profession. Understanding the differences between these two terms is crucial for anyone seeking legal services or considering a career in law. This article will delve into the distinctions between an advocate and a lawyer in Kenya, focusing on their qualifications, roles, and responsibilities.

Table of Contents

  1. Definition and Qualifications 1.1 Lawyer 1.2 Advocate

  2. Roles and Responsibilities 2.1 Lawyer 2.2 Advocate

  3. Legal Framework 3.1 The Advocates Act 3.2 The Law Society of Kenya

  4. Case Laws and Legal Precedents

  5. Conclusion

  6. TLDR

1. Definition and Qualifications

1.1 Lawyer

A lawyer in Kenya is a person who has successfully completed a Bachelor of Laws (LLB) degree from a recognized university. The LLB program typically spans four years and covers various aspects of law, including constitutional law, criminal law, civil law, and commercial law. After obtaining an LLB degree, a lawyer may choose to pursue further studies or enter the legal profession in various capacities, such as legal advisors, consultants, or researchers.

1.2 Advocate

An advocate, on the other hand, is a lawyer who has undergone additional training and has been admitted to the bar. The process of becoming an advocate involves:

  1. Completion of the LLB Degree: Just like a lawyer, an advocate must first obtain an LLB degree.

  2. Diploma in Law: After the LLB, the individual must enroll in the Kenya School of Law (KSL) for a postgraduate diploma in law. This program focuses on practical legal training and prepares candidates for the bar exam.

  3. Pupillage: Upon completing the diploma, the candidate must undergo a mandatory period of pupillage, which is essentially an apprenticeship under a practicing advocate. This period usually lasts six months.

  4. Bar Exam: The final step is passing the bar exam administered by the Council of Legal Education (CLE). Successful candidates are then admitted to the bar and can practice as advocates.

2. Roles and Responsibilities

2.1 Lawyer

The roles and responsibilities of a lawyer in Kenya are diverse and can include:

  • Legal Advice: Lawyers provide legal advice to individuals, businesses, and organizations on various legal matters.

  • Drafting Documents: They are involved in drafting legal documents such as contracts, wills, and deeds.

  • Research: Lawyers conduct legal research to support their clients' cases or to provide informed legal opinions.

  • Consultancy: They may work as legal consultants for corporations, NGOs, or government agencies.

2.2 Advocate

Advocates have a more specialized role compared to lawyers. Their responsibilities include:

  • Court Representation: Advocates have the exclusive right to represent clients in court. They present cases, examine witnesses, and make legal arguments before judges.

  • Legal Opinions: Advocates provide formal legal opinions on complex legal issues.

  • Negotiation and Mediation: They often engage in negotiation and mediation to resolve disputes outside of court.

  • Legal Drafting: Advocates draft pleadings, motions, and other court documents.

3. Legal Framework

3.1 The Advocates Act

The primary legislation governing the legal profession in Kenya is the Advocates Act (Cap 16). This Act outlines the qualifications, admission process, and disciplinary measures for advocates. It also establishes the Advocates Complaints Commission, which handles complaints against advocates.

3.2 The Law Society of Kenya

The Law Society of Kenya (LSK) is the professional body for lawyers and advocates in Kenya. It regulates the conduct of its members, provides continuing legal education, and advocates for legal reforms. Membership in the LSK is mandatory for all practicing advocates.

4. Case Laws and Legal Precedents

Case Law 1: Naphatali Radier vs. D. Njogu & Co Advocates

In this case, the court held that an advocate is obliged by law to honor their professional undertakings. This case underscores the ethical responsibilities of advocates in their professional conduct.

Case Law 2: Samuel Mainalema v. Director of Public Prosecution

This case highlighted the importance of recognizing the Constitution as a living document that defines the structure of governance and the relationship between the government and the governed. It emphasized the role of advocates in upholding constitutional principles.

Case Law 3: Miscellaneous Civil Cause 238 of 2013

This case involved a dispute over the taxing officer's decision on items in a Bill of Costs. It illustrates the procedural aspects of legal practice and the role of advocates in navigating these complexities.

Conclusion

In summary, while both lawyers and advocates play crucial roles in the Kenyan legal system, their qualifications, roles, and responsibilities differ significantly. Lawyers provide a broad range of legal services, including advice, research, and document drafting. Advocates, however, have the exclusive right to represent clients in court and are involved in more specialized legal tasks. Understanding these distinctions is essential for anyone seeking legal services or considering a career in law in Kenya.

TLDR

  • Lawyer: Holds an LLB degree, provides legal advice, drafts documents, conducts research, and works as a consultant.

  • Advocate: A lawyer who has completed additional training, passed the bar exam, and is admitted to the bar. They have the exclusive right to represent clients in court.

Sources

  • Victor Matara

  • Nairobi Mini Bloggers

  • Legal Link

  • Advocate Getter

  • Tuko

  • Kenya Law Reports

  • Business Daily Africa

Answered by mwakili.com