The Marketing Claim and the Missing Retainer
A two-partner firm launches a website describing itself as 'Kenya's leading commercial litigation boutique' and advertising a '92% success rate in High Court matters'. The figure comes from the partners' recollection of outcomes over three years; there is no dataset. The site also lists 'free initial consultations' but the engagement letter the firm actually uses contains a fee clause, no scope description, no termination clause, and no complaints procedure. A prospective client, impressed by the site, instructs the firm on a KES 12 million claim, pays a KES 300,000 'deposit' on a handshake, and is given no receipt and no written retainer. Three months later the client disputes the fee and asks for the file. The firm has no signed engagement letter and cannot locate a receipt for the deposit.
1. Assess the marketing claims against professional-conduct requirements.
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Both claims are problematic.
'Kenya's leading commercial litigation boutique' is an unverifiable superiority claim. Marketing may be accurate and not misleading; a bald assertion of leadership that cannot be substantiated invites a complaint and is difficult to defend. It is also likely to be read by the regulator as an assertion of fact rather than opinion.
The '92% success rate' is worse because it looks like data. It is presented as a statistic but rests on recollection with no dataset, no defined population, no methodology and no time-bound sample. A client relying on it has been misled, even if the partners believe it. The fix is either to substantiate it properly - define the matters, the period, what counts as success, and keep the records - or remove it. The same applies to 'free initial consultations' if the firm's actual engagement terms charge for the first meeting: the website and the retainer must say the same thing.
Marketing is not a free-fire zone. Claims must be accurate, capable of substantiation, and consistent with the terms the firm actually uses. The firm should audit the whole site against its real engagement documents.
2. The client now disputes the fee and demands the file. What is the firm's position on the retainer, the deposit and the file?
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Retainer: there is no written engagement letter. The firm will have to rely on the handshake and any correspondence, which is a weak position. The fee clause in the firm's standard letter was never given to this client, so the firm cannot point to agreed terms on scope, billing or termination. The absence of a scope description makes it hard to say what was and was not included.
Deposit: KES 300,000 was received with no receipt and no ledger entry the firm can locate. That is a client-money and record-keeping failure. The firm must reconstruct the position from bank records immediately. If the money cannot be traced, the firm cannot demonstrate it was held or applied properly - a serious problem.
File: the client is entitled to the file. The firm should release it promptly, subject only to any genuinely outstanding lien it can substantiate - and a lien is hard to assert where there is no written retainer and the fee itself is disputed. Withholding the file to force payment in these circumstances is likely to be treated as improper.
The practical resolution: reconstruct the file and time records, render a transparent account of work done, credit the KES 300,000 against it, and negotiate the balance. Then fix the intake process so no client is ever taken on without a signed engagement letter, a receipted payment and a ledger entry.
3. What systemic changes should the firm make, and which is most urgent?
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Most urgent: a mandatory written engagement process. No instruction should be accepted - and no money received - without a signed engagement letter containing scope, fee basis, disbursements, termination, complaints procedure and client-money terms, plus a receipted payment posted to the client ledger. This single change prevents the dispute the firm is now in.
Next: a client-money protocol. Every receipt is receipted, posted to a client ledger, and reconciled monthly. The missing KES 300,000 is the clearest evidence the firm has no control here.
Then: marketing review. Rewrite the website to remove unsubstantiated superiority and success-rate claims, align 'free consultation' with actual practice, and require that any statistic be backed by a maintained dataset.
Then: a complaints procedure, both as a conduct requirement and as a pressure valve - clients who can complain internally are less likely to go to the regulator.
The sequencing matters. Marketing brought the client in; the missing retainer and missing receipt are what turned a fee query into an existential problem for the firm. Fix the intake and the money first.