Are Intellectual Property Lawyers in Kenya Undercutting by Charging Less in Legal Fees?

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This blogger recently received the following communication from the Law Society of Kenya (LSK):

UNDERCUTTING

The Council of Law Society of Kenya wishes to draw the attention of members to the provisions of paragraph 4 of The Advocates (Remuneration) (Amendment) Order 2014 which provides as follows:-

“4. An Advocate shall not agree or accept his remuneration at less than provided for by this Order.”

It has come to the attention of the Council that some law firms and advocates are undercutting by charging less than what is provided for under the order.

We are in the process of investigating the various complaints. Any member involved should know that this amounts to professional misconduct.

APOLLO MBOYA, HSC
SECRETARY/CEO

As many may know, the Advocates Act empowers the Chief Justice and President of the Supreme Court to make orders relating to the remuneration of Advocates for both contentious and non-contentious work. This section is the basis for the Advocates Remuneration Order which sets the minimum charges that an Advocate may charge for services. The Order was recently amended through Legal Notice No. 35 dated April 11, 2014. Curiously, LSK have not uploaded a copy of the Advocates (Remuneration) (Amendment) Order 2014 on their official website available here. However a copy of the Order is available on the Kenya Law website available here.

From an intellectual property (IP) perspective, Schedules 4 and 12 of the Order deal with Trade Marks and Patents, Designs and Utility Models respectively.

For instance, with regard to trade marks, the Order provides that an advocate must not charge less than Kshs. 7,500 for “taking instructions to advise on registrability of a mark or on a point of law or practice”. In a previous post here, we discussed the heightened competition among Kenyan firms with regard to trade mark practice, particularly in light of the recent 2015 WTR1000 rankings. However, this blogger submits that the fee of Kshs. 7,500 is already too low for any of the IP law firms and advocates to be engaged in undercutting. This reasoning may easily apply to other types of trade mark work such as applications, registrations, assignments etc.

With regard to patents, designs and utility models, the Order provides that an advocate must not charge less than Kshs. 25,000 to advise on patentability of an invention or registrability of an industrial design or a utility model or on a point of law or practice. This blogger submits that given the complexity of this area of industrial property work and the duration it generally takes to complete such work, it highly unlikely that any advocate or law firm would consider undercutting. However, the increased awareness among Kenyan inventors and innovators on the need to protect their industrial property may be an important factor fueling undercutting.

This blogger invites readers to share freely their views and experiences with how advocates and law firms charge for intellectual property legal services in Kenya.

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