EMERGING AREAS OF PRACTICE in the legal profession

Introduction

Legal profession encompasses various areas of practice. While some law practice areas are suffering at present, certain practice areas are thriving. Below are some areas that are gaining traction, prompting a demand for legal professionals with experience in these areas:

1.0 Oil and gas

With the recent discovery of oil deposits in Turkana, oil and gas law is an emerging practice areas for lawyers. It is a new area of law and not many lawyers have specialized in it. Lawyers are needed in the formation of contracts and agreements between the Government, the national and international oil companies. Moreover, lawyers will be needed to ensure the necessary licences are obtained and the essential regulatory requirements have been met.

2.0 Mining

Acacia Mining recently reported that they had struck gold in Western Kenya.[1] This new discovery poses an opportunity for lawyers to venture into this area of law. Lawyers will be needed in drafting the contracts and ensuring the regulatory requirements have been met by the companies carrying out the mining.

3.0 Employment and Labor Law

Article 162 of the Constitution of Kenya, 2010 establishes the Employment and Labor Relations Court that specifically deals with disputes regarding wages, hours, unlawful termination, child labor, workplace safety, workplace injury and disease, family and related leave, pension and benefit plans, the right to unionize, regulations of and negotiations with union employees, sexual harassment, discrimination based upon race, gender, age, and disabilities, and Government civil service systems. The establishment of the Court has therefore expanded the scope practice for advocates in Kenya.
4.0 Alternative Dispute Resolution:

Many individuals and corporations are now opting for alternative dispute resolution mechanisms as opposed to litigation mainly because litigation takes a long time and as a result, the cost increases. It is now a popular means for dispute resolution. Lawyers should therefore explore alternative dispute resolution mechanisms such as arbitration and mediation.

5.0 Immigration Law

This is another emerging area of practice in Kenya. The area deals with legal issues and Kenyan policies relating to foreign nationals who come to Kenya on a temporary or permanent basis, including the associated legal rights, duties, and obligations of aliens in Kenya; the application processes and procedures involved with registration of foreign nationals who wish to become Kenyan citizens; as well as dealing with legal issues relating to people who are refugees, people who cross Kenyan borders by means of fraud or other illegal means, and those who traffic or otherwise illegally transport aliens into Kenya. Specialization areas include Asylum/Refugee Law, Business Immigration Law, and Criminal and Deportation Defense Law. An advocate practicing in one of such areas may work for the Government, a law firm, a community-based organization, or in-house for a company employing foreign nationals.
6.0 Sports and Entertainment Law

This area of law is more common in other jurisdictions. It is however gaining popularity in Kenya. This is as a result of a growing entertainment scene in Kenya and informed entertainers. Artists are now more aware of their rights. This law is related to intellectual property as it involves the protection of brands and music.

7.0 Real Estate Law

This emerging area of law generally involves anything dealing with real property (land). An attorney practicing real estate law may focus on contractual issues by drafting and reviewing contracts; litigation issues, such as determining the ownership of land in Court, challenging or enforcing easements, seeking to allow the specific development of property, or trying to prevent or alter a planned development of real property.

8.0 Cyber Security

The Senate Committee on Information and Technology withdrew the Cyber Security and Protection Bill, 2016 to allow the public more time to give their views on the proposed law.[2] Cyber security law is a new area of law arising as a result of advancement in technology and concerns as to cybercrimes and privacy. This is a niche for lawyers since many lawyers are not experienced or specialized in this area.

9.0 Health/Medical Law

The practice of health law encompasses many different disciplines. Lawyers in the field representing hospitals, physician groups, health maintenance organizations and/or individual doctors, can be in the private bar or at Government agencies. Moreover, Government health lawyers can investigate fraud, deal with medicare policy and compliance, or oversee public health policy or otherwise, guide clients through intellectual property, biomedicine, bioethics, clinical ethics and telemedicine issues.

10.0 Cross-border/International transactions

The world is becoming a global village with many international commercial transactions taking place. Lawyers are needed in drafting contracts, ensuring compliance with the different laws involved and solving disputes that may arise.

11.0 Corporate and Securities Law

This is an emerging area of law in Kenya that helps corporate lawyers advise clients on proper conduct of clients’ business affairs in a manner that is efficient and consistent with the law. Moreover, it helps corporate lawyers in preparing initial articles of incorporation of a company, advising clients on formation, organization, and financing of corporations through securities such as stock, as well as mergers, acquisitions, and corporate takeovers.

12.0 Intellectual Property Law

This is an emerging area of law concerned with the protection of inventors’ rights in their discoveries, authors’ rights in their creations, and businesses’ rights in their identifying marks. Often, an intellectual property lawyer may specialize in a particular area of the law. For example, Patent Law which combines one’s scientific and legal background into one practice and Copyright Law that helps advocates to advise authors, composers and artists on the scope of their rights in their creations and personal identities; negotiates contracts; and litigates to enforce their rights. It is also focused on technological advances, particularly developments in electronic publishing. Additionally, in today's global economy, intellectual property issues are at the forefront of international trade negotiations.

13.0 Public Interest Law

This is an emerging area of law that serves low-income individuals, marginalized groups and social causes. Practitioners may work for advocacy groups, legal aid clinics and other organizations with the goal of advancing an interest of the public.

14.0 Tax Law

In the past few years, the importance and complexity of National and County imposed taxes have necessitated a specialty in this field of law. New regulations, Court decisions, and administrative rulings are issued frequently, and the tax advocate must be alert to such changes. Economic planning usually includes attention to taxes and a tax advocate often assists clients in understanding and minimizing their tax liabilities.

15.0 Maritime/Admiralty Law

This emerging area of law with a very distinctive niche covers topics such as shipping, navigation, waters, insurance, canals, marine commerce, marine salvaging, transportation of passengers and goods by sea and even piracy. Kenya, being one of the East Africa countries situated along the international waters, several legal issues i.e., breach of contracts, torts, offenses, or injuries arise in such waters which advocates need to address.

Get statistics on the state of discipline in the legal profession
Find some newspaper reports on public perceptions about the legal profession in Kenya

Below are detailed accounts highlighted in various newspapers on public perception on the legal profession in Kenya:
a)
Public complaints against lawyers in Kenya on the rise[1]-The Advocates Complainants Commission had expressed concern about the rise in the number of complaints raised by the public against advocates. Commission Chairperson Beauttah Siganga had said that the Commission received more than 600 complaints against the over 13,000 advocates practising in the country annually. The public complained that the accused advocates swindled them of their hard-earned money. The Chairperson of the Commission was however of the opinion that clients should gather enough required information regarding a lawyer before filing a case.

b) The changing face of the legal profession[2]- The homegrown legal profession in Kenya is over 50 years old. The legal education system has matured considerably with the proliferation of law faculties in Kenyan universities. Thus, it is gratifying to note that Kenya no longer relies on legal training from other commonwealth countries notably England and India. The local universities have now begun to produce high-level candidates all studying Kenyan law and jurisprudence backed by a developing and effective law reporting system.

c) Legal profession at crossroads[3]-Corruption: There are allegations in high legal quarters of advocates being conduits of such.

d) Githu Muigai strikes 20 lawyers off roll of advocates[4]:
· Thirty-two rogue lawyers were in January 2017 suspended or struck off the roll of advocates for professional misconduct following a public outcry about the rising number of rogue advocates who have continued to fleece the public while putting the legal profession in disrepute. The advocates were charged against breaching client confidentiality, misappropriating client money, undercutting than what is prescribed by law in the Advocates Remuneration Act and conviction for murder or manslaughter.

e) A case for the legal profession’s involvement in governance:[5] -Paradigm shift: Lawyers have traditionally been relied upon to provide technical advice on legal issues. However, there is now a paradigm shift in terms of what the role of a lawyer should be. The modern lawyer has a responsibility to counsel clients beyond the strictly legal challenges and provide advice about practical considerations i.e., public perceptions and reactions on a matter. This apart, lawyers are now addressing the governance problems in Kenya.

f) Nakuru lawyers under threat, ask LSK to intervene[6]
g) Dr Kagwe biography tackles modern challenges facing our lawyers[7]
h) I will endeavour to turn Judiciary into world-class institution of justice[8]-After passing the 2010 Constitution, the Judiciary, under the leadership of Dr Willy Mutunga, has been implementing an ambitious and successfully transformation agenda, which has been a benchmark for other public sector institutions.

References

[1] Robert Kiplagat, Public Complaints Against Lawyers in Kenya on the Rise, The Standard Newspaper, 14th March 2017, available at https://www.standardmedia.co.ke/article/2001232573/public-complaints-against-lawyers-in-kenya-on-the-rise.

[2]The changing face of the legal profession, The Standard Newspaper, available at https://www.standardmedia.co.ke/article/2000071108/the-changing-face-of-the-legal-profession, [accessed on 7th March 2017].

[3]Pravin Bowry, Legal Profession at Crossroads, The Standard Newspaper, 18th November 2015, available athttps://www.standardmedia.co.ke/article/2000182842/legal-profession-at-crossroads, [accessed on 7th March 2017].

[4] Peter Leftie, GithuMuigai Strikes 20 Lawyers Off Roll of Advocates, Daily Nation, Friday 20th January 2017, available athttp://allafrica.com/stories/201701200641.html, [accessed on 7th March 2017].

[5]Evans Monari, A Case for the Legal Profession’s Involvement in Governance,Friday 6 January 2017, African Regional Forum Publications, available atwww.bowmanslaw.com/insights/case-legal-professions-involvement-governance [accessed on 7th March 2017].

[6]Eric Matara, Nakuru Lawyers Under Threat, Ask LSK to Intervene, Daily Nation,Thursday 24th November 2016, available at http://www.nation.co.ke/counties/nakuru/Nakuru-lawyers-under-threat--ask-LSK-to-intervene/1183314-3462852-ax5qrez/index.html, [accessed on 7th March 2017].

[7] Dina Krigha, DrKagwe Biography Tackles Modern Challenges Facing Our Lawyers, Daily Nation, Friday 4th November 2016, available athttp://www.nation.co.ke/lifestyle/weekend/Dr-Kagwe-biography-tackles-modern-challenges-facing-our-lawyers/1220-3441130-yoyjd9/index.html, [accessed on 7th March 2017].

[8] David Maraga, I Will Endeavour to Turn Judiciary Into World-Class Institution of Justice, Daily Nation, Wednesday 19th October 2016, available at http://www.nation.co.ke/oped/Opinion/440808-3422862-10qsud1/index.html, [accessed on 7th March 2017].


[1]Jon Yeomans, Acacia Mining strikes gold in Kenya, The Telegraph, available at http://www.telegraph.co.uk/business/2017/02/27/acacia-mining-strikes-gold-kenya/.

[2]Kenneth Odero, Kenya's Cyber Security And Protection Bill Has Been Withdrawn From Debate So It Can Go For Public Consultations, Africa Digital Pvt. Ltd., available athttp://www.iafrikan.com/2016/12/21/kenyas-cyber-security-and-protection-bill-has-been-withdrawn-from-debate-for-public-consultations/.