Paper delivered at the Third Faculty Public Lecture, Faculty of Law, Ajayi Crowther University, Oyo.
Monday, 27th May. 2019
Oluwemimo Ogunde, SAN, Principal Counsel at Wemimo Ogunde & Co.
The legal profession is traditionally, a profession of seemingly conflicting interests. There is the personal interest of the lawyer to practise law as a means of livelihood. In achieving this end, the lawyer looks no further than himself- the sustenance and expansion of his law firm, the improvement of the tools of his trade, his prestige and fame, the creation of a monopoly and the exploitation of all available resources to make this selfish aim possible. There is also the interest of the client, the primary provider of the platform and financial resource for the practice of law. The disputes of litigants make the courts necessary and ensure the usefulness and relevance of lawyers. It behoves the lawyer therefore, to defend the interests of his client with maximum zeal and fervour. The third interest is that of the public, that is the administration of justice. It is expected that whilst the lawyer is concerned with his personal interest of earning income from legal practice or zealously protecting the stand of his client, he must not forget to also ensure that justice is done. Thus, it is the duty of the lawyer not just to see that his client wins a case but that his client wins within the bounds of the law.
In seeking to understand how a lawyer can conveniently combine and coordinate these interests, it is necessary to determine what the overriding guiding principle of the lawyer should be. Should lawyering be business-oriented or service-oriented? When a lawyer puts self first, before his client or the quest for justice, is that approach business-oriented? When the lawyer seeks as a priority the pursuit of justice, is that being service-oriented? The debate has raged on as to which of the interests a lawyer has to consider should have priority. In order to avoid any speculation or uniformed conjecture, it is best to take a cue from history. Legal practice, as we know it today has its roots in the old Roman Empire. Though the Romans also inherited some rudiments of advocacy from the Greeks, it was the Romans that laid the foundation of modern advocacy. Under Roman law, there were two types of advocates. The first was the professional ‘advocatus’, who assisted with advice on points of law in return for a fee. There was however, another type of ‘advocate’, the patronus causarum, or simply the “patron”.
The patrician, or patron was the head of a large household who had members of his house and slaves as dependants. He was also, by virtue of his wealth and learning an orator and statesman who had many people who thronged around him as a father-figure even though they were not part of his household, but some of whom might have been his freed slaves who still needed his influence and help. These dependants were called his ‘clients’ and the patron was bound to appear for them in court since knowledge of the old customary law was a monopoly of the heads of patrician households. The patrons charged no fee as they considered it demeaning to their status as household heads to receive a fee from their dependants. Furthermore the patrons were from wealthy and prestigious families and could well afford to act as advocates without receiving any fee. Needless to say, the professional advocatus were despised by the people whilst the patrons were held in high esteem.
Roscoe Pound, in a seminal and very useful lecture on the history of the legal profession stated that as early as 204BC, remuneration for lawyers was frowned at and even prohibited by law
“It remains to speak of the remuneration of advocates. In the beginning, the patron advised his client and supported his client’s case or defended him because these were duties the patron owed to one dependent upon him. In consequence, when regular advocacy arose the assistance rendered to suitors in the forum was gratuitous. Of necessity, however, as there came to be a profession of advocates, requiring time and study and preparation if one were to undertake another’s case, and as the client was no longer a dependent of a patron but one who sought to employ the skill and training and experience of an orator who stood in no relation to him, a practice sprang up of paying a gratuity to the advocate. It was natural also that those who had trained themselves for forensic exertion should, in a changed social order, employ their skill and training and experience as a means of making money. But the old idea was so strong that this was felt to be an abuse and a statute known as the lex Cincia (204 B.C.) forbade any one from accepting money or gift on account of pleading a case”.
When, according to Pound, the Lex Cincia became unenforceable, the Emperor Claudius was persuaded to permit remuneration for legal services but with a maximum fee set at 100 aurei (the equivalent of $12,000 today). It was not only in the Roman Empire that the practice of law for a fee was resisted. In the State of Virginia, in the 1640’s, lawyers were perceived as “troublesome encouragers of needless legal suits, as men more interested in fees than in the good of their community”. Thus the Virginia House of Burgesses, (like a Parliament) passed a law in 1645 which ordered all lawyers practising for a fee to be expelled from office. After experiencing some difficulty in the implementation of this Act, it was amended in 1656 to limit the prohibition of fees to actual court work and rendering of legal advice.
Poor Reputation from Antiquity
There appears therefore even from the early times to be an irreconcilable conflict between the dignity of the legal profession and the practice of law in return for a fee. Indeed it appears as if the disdain the society has had for lawyers has been as a result of the view that much of the ills of the legal profession are attributable to its business orientation. The practice of law, on the whole, was socially unacceptable. The greatest shapers of culture, literal art writers, have for centuries portrayed lawyers as crooks and the practice of law as selfish and unhelpful to society. More than 400 years ago, Shakespeare wrote of lawyers thus:
“O perilous mouths!
That bear in them one and the self-same tongue
Either of condemnation or approof!
Bidding the law make court’sy to their will
Hooking both right and wrong to the appetite,
To follow as it draws”
Bernard Mandeville, continued the censure in an even more damning manner
“The lawyers of whose art the basis
Was raising feuds and splitting cases
Opposed all registers that cheats
Could make more work with dip estates
As were’t unlawful that one’s own
Without a lawsuit be known
They kept off hearings wilfully
To finger the refreshing fee
And to defend a wicked cause
Examined and surveyed the laws
As shops and house burglars do
To find out where they’d best break through”
The hostility towards lawyers, which existed since the days of Socrates continues till today, surprisingly for the same reasons. Lawyers are still being accused of keeping ‘off hearings wilfully’ ‘raising feuds and splitting cases’ defending ‘a wicked cause’ and ‘ hooking both right and wrong to the appetite’. We should not expect that the hostility will come to an end. It must be noted that lawyers, first and foremost act for clients and are thus expected to seek the protection of selfish interests. Very rarely are lawyers needed when things are going well. It is true that in the last decades, the advisory role of lawyers, in order to prevent or discourage legal disputes, is becoming more prominent.
The increasing costs of resolving legal disputes by litigation or even the much vaunted ‘alternative dispute resolution’ methods have necessitated the development of the evolving role of lawyers as “preventive advisers”. Notwithstanding this new role of lawyers, the traditional stigma attached to them have not gone away. Lawyers are almost always called upon to render services when litigation is properly anticipated or has begun. As a result, the need to assist clients secure victory comes in conflict with what the adversary or even the society sometimes view as ‘truth’ or ‘justice’. It often happens, usually in criminal matters, that a lawyer is engaged to defend a criminal defendant whose cause is unpopular: accused of running over an only child of a widow with his car, a very wealthy businessman hitting his domestic servant and killing him in the process, or a spouse killing another spouse. It may be a Governor accused of embezzling “billions of naira” meant for development of infrastructure or a Minister accused of collecting millions of dollars in bribes. The acceptance of such briefs immediately puts the lawyer in the spotlight and since his client has been adjudged guilty by the people even before trial, the lawyer’s integrity is also impugned simply because he accepted the brief.
In view of this precarious position of the lawyer, it is important to determine what should be the guiding principle to follow when a lawyer practises his profession. It is clear, of course, that popular opinion is not one of them. Whilst a lawyer who lives and works within a society cannot ignore completely the sentiments of that society in all cases, a lawyer is expected to be guided by rules that transcend the changing opinions of the crowd. Law is an “adversary calling, a taking of a side in order to earn a living” At the same time, law seeks to serve the interest of justice. That end of justice cannot be properly served if it continually leads to that which the community affected disagrees with. Thus, the lawyer works within the tension of client satisfaction, interest of justice and community approval. Can the legal profession properly operate within this tension by pursuing law as business or as service?
Legal Practice as a Profession
When we say law is a profession, what do we mean? The reason for seeking an answer to this question is because our understanding of what a profession connotes may give a clue to what constitutes the dominant factor in determining what a profession is. It was also Roscoe Pound in the article referred to earlier who said that ‘ historically, there are three ideas involved in a profession- organisation, learning and a spirit of public service.
The remaining idea, that of gaining a livelihood, is incidental.’Pound, quoting Professor Palmer, further opined that the distinction between a trade and a profession is that a trade aims primarily at personal gain while a profession aims at the exercise of powers beneficial to mankind. The point, in my view that Pound sought to emphasise is that a professional is driven by ideals. The doctor seeks to advance and increase knowledge in the practice of medicine. The pursuit of fame, excellence and advancement in learning are much more important than the money that the patient will pay.
Before Roscoe Pound, an American doctor, Abraham Flexner, in 1915, set out six criteria for determining what professionalism entails. According to Flexner, a profession is an occupation that possesses six key ingredients.
- An intellectual operation with large individual responsibility
- Derives its raw material from science and learning,
- The material is worked up to a practical and definite end
- Possesses an educationally communicable technique,
- Tend to self organisation and
- are becoming increasingly altruistic in motivation
Flexner identified medicine, engineering, the clergy, law and architecture as professions whilst rejecting pharmacy, banking, plumbing, journalism and social work as professions. The six-way test propounded by Flexner as recast and modified over the last century provides a useful guide in determining whether the practice of Law, properly so-called must focus primarily on gain or on serving the needs of the public. It is necessary to dwell a bit more on Flexner’s six-way test.
The Importance of Extensive Learning
It is very common in Nigeria to hear that by being described as ‘learned’ lawyers are distinguished from other occupations as their members are ‘not learned’. Nothing can be further from the truth. Flexner dismissed this assertion this way.
We are accustomed to speak of the learned professions. What is the significance of the word ‘learned’ in this connection? Does it imply that there are unlearned as well as learned professions? I suspect not, for the intellectual character of professional activity involves the working up of ideas into practice, involves the derivation of raw material from one realm or another of the learned world. Professions would fall short of attaining intellectuality if they employed mainly or even largely knowledge and experience that is generally accessible,-if they drew, that is, only on the usually available sources of information. They need to resort to the laboratory and the seminar for a constantly fresh supply of facts; and it is the steady stream of ideas, emanating from these sources, which keeps professions from degenerating into mere routine, from losing their intellectual and responsible character. The second criterion of the profession is therefore its learned character, and this characteristic is so essential that the adjective learned really adds nothing to the noun profession.
Roscoe Pound consolidated the conclusion of Flexner about 30 years later, proving without doubt that the adjective ‘learned’ is an attribute of a profession generally and not the exclusive distinguishing mark of the legal profession.
A true profession, both in idea and as a matter of history, is a learned profession. An unlearned profession is a contradiction in terms. Learning, the pursuit of a learned art, is one of the things which distinguishes a profession from a calling or vocation or occupation. Professions are learned not only from the nature of the art professed but because they have historically a cultural, an ideal side which furthers the effective exercise of that art. Problems of human relations in society, problems of disease, problems of the upright life guided by religion are to be dealt with by the resources of cultivated intelligence by lawyer, physician, and clergyman, and to carry on their tasks they must be more than resourceful craftsmen, they must be learned men.
As a professional therefore, a lawyer must be a man or woman of learning. In some jurisdictions, the possession of a first degree in another field is a sine qua non for admission into the Law Faculty. In Nigeria, no person can be admitted to the Nigerian Law School for the 12-month professional training for the call to the Nigerian Bar without a first degree in Law from an accredited university. Aside from this basic qualification, a lawyer is obliged by the Rules of Professional Conduct for Lawyers in Nigeria to attend continuing professional development programmes operated by the Nigerian Bar Association. Every day, new laws are promulgated and old laws amended or repealed. Judicial decisions are reversed, overruled, affirmed or doubted. New fields of human endeavour are brought under legal control.
These developments make university knowledge, and consequently university degrees obsolescent and thus compel the need for continuing legal education. The lawyer is thus an intellectual, whose raw material is the possession of abstract thinking and reasoning. The advice he gives, the decision he takes, the strategy and tactics he adopts and his opinions depend entirely on the currency and depth of his knowledge of the written law. The law certificate is obtained only for the purpose of qualifying for practice. It cannot make one competent for practice. The lawyer must therefore leave the certificate behind and confront the ever-evolving legal system with a new capacity for continuing in learning. It must be noted that the aim of continuing legal education is not for the mere acquisition of knowledge. It is to help the lawyer cultivate an analytical mind. An analytical mind examines something in detail in order to understand it better and draw conclusions from it. It enables the lawyer to separate into constituent parts, facts and circumstances, judicial decisions, legislations, arguments, documents and other material traded in the legal world, examine similarities, differences or contrasts and link them to form a structure.
In this way, law is similar to engineering or architecture or any of the science professions. The task of the lawyer, whether in preparing for litigation or arbitration, drafting commercial agreements, rendering opinion or interpreting legislation or judicial decision involves the analysis of facts, reconciliation of divergent circumstances and application of rules and principles to these facts and circumstances. Once any foundational or preliminary step is faulty, the task to be performed would be riddled with errors. It is often amusing to find a law student in Nigeria grounding his choice of Law as a course of study in the university on his deficiency in the knowledge of physical sciences or even mathematics. Thus in Nigeria, the view is prevalent that Law is for the mathematics or science dropout. This is most regrettable indeed. This may well account for the discouraging level of scholarship in the Nigerian legal profession. The escapee from mathematics or science has already closed his mind to critical thinking and would consequently struggle with logic when required in legal arguments. Such a lawyer would be at sea when required to confront an expert witness in medical or engineering litigation. Eventually the quality of his service will become mediocre.
The pertinent question that arises from the foregoing is this: can a lawyer who directs his total attention on cultivating an intellectual mind constantly and sufficiently capable of solving the complex problem of his client put profit first and still claim to be practising law as a professional in the proper sense of the word? To return again to Roscoe Pound, the ‘ lawyer is not bartering his services as is the artisan nor exchanging the products of his skill and learning as the farmer sells wheat or corn’. The lawyer puts his intellect at the service of the public and thus receives his reward not in the wealth he is able to use his profession to amass but in the prestige and honour bestowed on him by reason of the value his community places on his competence and character. It is such a great reward to be counted as a man of learning, particularly when the society benefits directly or indirectly from the wealth of that learning.
A Career Orientation
Professionals always have a career orientation that leads them to high personal involvement in their work. One of the hallmarks of professionalism is that it cannot be mechanized or routinised. Those who copy precedents in contracts or other commercial agreements have done so at their peril. There is high personal involvement in professional services. The rendering of legal or professional advice or advocacy in courts cannot be performed by robots. Professionals therefore are invariably careerists. There are stage developments and hierarchical professional progression. Professionals can also practice outside of a bureaucracy and continue in the same field throughout life. However, those who satisfy this criterion only cannot claim to be professionals unless they go beyond monetary rewards and also seek tokens of prestige such as titles and awards. This was what Abraham Flexner meant by a professional becoming “increasingly altruistic in motivation”.
Flexner opined that all activities must be prosecuted in the genuine “professional spirit” which he contrasted with a “mercenary or selfish” spirit. The professional must not be induced by commercialism, the maximization of profit for service rendered. The pecuniary interest of the professional must gradually yield “before an increasing realization of responsibility to a larger end”. The youth who is looking for a fortune or the parent who seeks for his son a remunerative occupation should not look to a profession properly so-called. Flexner believed that commercialism functions as an environmental force and has a negative impact on professionalism. Professions strive to minimize personal profit as a motive. In contemporary thinking, Flexner’s link of altruism (unselfish devotion) and professionalism may appear outdated or at best controversial. However, a close examination of the professions and their need for a genuine regard for public interest would show how valid Flexner’s views still are even today.
The legal profession and indeed all other professions have a social contract with society and that is why the public recognizes the authority of the professional to speak out on broad matters of public policy and justice, going beyond duties to specific clients. The professional cannot therefore be driven by commercialism as by so doing, there may be a compromise on the duty to do public good. The professional who is faithful to the social contract is rewarded by the public acclaim and respect bestowed on him, the title and rank from peers and the social (or sometimes political) influence that he wields. Professionalism should be people-oriented and public service, if it is to be so indeed cannot co-exist with commercialism. The legal profession has long had the tradition of altruism as defined by Flexner. Lawyers were barred from suing for professional fees unless some conditions were met. Pro bono work has now been made a condition for seeking elevation to some ranks within the profession. The future of professions can only be secured if altruism is inculcated into young entrants. Flexner’s view is as true today as it was in 1915.
An Ethical Code
Lon Fuller and John Randall , in a report of the Joint Conference on Professional Responsibility made this insightful statement
“A profession to be worthy of name must inculcate in its members a strong sense of the special obligations that attach to their calling. One who undertakes the practice of a profession cannot rest content with the faithful discharge of duties assigned to him by others. His work must find its direction within a larger frame. All that he does must evidence a dedication, not merely to a specific assignment but to the enduring ideals of his vocation. Only such dedication will enable him to reconcile fidelity to those he serves with an equal fidelity to an office that must at all times rise above the involvements of immediate interest”.
In a profession where the client sees his lawyer as no more than his mouthpiece paid to advance the client’s case, but where the society views the same lawyer as occupying an office that is obligated to further the course of justice, the lawyer’s responsibility to hold this tension is daunting indeed. The lawyer must fully understand the nature of his office and the reasons behind the solemn obligations of that office. What makes the lawyer’s role more intricate is that the role is dynamic, always changing and increasingly complex. The traditional role of an advocate is now giving way to that of mediation and negotiation. The difficulties of the Nigerian democracy are now exposing the lawyer to a growing audience, as political cases, particularly election petitions, brings the lawyer’s performance under greater public scrutiny. In Nigeria, the position of the lawyer is even made more intricate by the public confidence in the adjudicative process. The public’s view of the adversary system, at best is suspicious, at worst, cynical. It is the lawyer’s duty to help build confidence in the adversary system by ensuring that the system serves its true purpose, which is to give both sides to the case a veritable opportunity of presenting their respective positions fully, credibly and competently and in such a manner as to satisfy each party that it has been truly heard.
A worthy ethical code must ensure that the lawyer’s highest loyalty is not to persons but to institutions and procedures. A lawyer, must above all, recognise that he is a trustee of the procedures and institutions that secure the integrity of the administration of justice. Whatever else may be the meaning of ‘due process of law’, its most useful meaning to the public is that ‘the law functions according to how it has been held out, achieving the end of truth, equality before the law, without fear of or respect of any person’. The code of ethics creates and supports this trusteeship. This may also involve a lawyer standing up for an unpopular cause. Everyone, rich or poor must be given an opportunity of a fair hearing in court. Sometimes, public disfavour may be morally justified, but sometimes it may not. A proper adherence to ethics is required at this time to explain to the public that no person should be condemned by the weight of public opinion. The due process of law compels a fair hearing for every cause, however unpopular it may be in the eyes of the public or even the Government.
What is meant by Business and Service?
We have now set up our points for discussion by examining in some detail the implications of professionalism. We have looked at the legal profession in particular and considered its main ingredients that warrants its being regarded as a profession. The important question will now be answered: what should be the orientation of the legal profession in Nigeria? Profit or service? Commerce or pubic-spiritedness? In answering this question, I wish to clear immediately another that may be asked. Why an all-or -nothing approach? Is it not possible for the legal profession to achieve both ends? To seek to be business-oriented whilst at the same time serving a public end? Can a law firm even survive without being profit-oriented? If it survives, can it thrive and expand? In clearing the way, it is necessary to define what I mean by ‘business’ and ‘service’ in this paper.
I take the word ‘business’ to mean ‘ commercial activity’, ‘ a trade considered in terms of volume and profitability’. The lawyer who considers the legal profession as “business” is therefore ‘ commerce or profit-driven’. For such lawyer, every brief is viewed as an addition to profit. Every client and contact must increase the profit margin. The lawyer need not be unscrupulous or exploitative. Being commerce or profit- driven does not necessarily tantamount to being cruel or mean. No one who is such is worthy of being called a lawyer. The profit-driven lawyer still gives his best for the client. The difference is that the client’s purse is more important than the client’s pursuit. The cash takes priority over the case. The overriding motive is not justice but the client’s ability to pay fees. Where the client’s case is meritorious but the ability to pay fees is lacking, the client would be shown the door.
I use the word ‘service’ as the action of helping or assisting someone. The lawyer who is ‘service-driven’ is motivated by the desire to help above all else. The desire to solve the client’s legal problem takes priority over the perception of the legal problem as a means of earning fees. In other words, the focus is more on rendering the service than on earning the fees. The legal profession that is ‘service-driven’ derives great satisfaction from solving the legal problem and giving value for fees received. The lawyer is not under any pressure to do the client’s bidding and thus fall into the trap of seeking to justify the fees earned. There is no desire to win the case at all costs or ingratiate oneself with the client. The ‘service-driven’ lawyer still does everything legally permissible to protect and vindicate his client but retains his independence to set proper bounds of what is professionally acceptable. The ‘service-driven’ lawyer looks more into redressing wrong. The poor oppressed client is assisted even when he has no fee to pay. The wealthy client is billed for work done fairly and equitably rather than on the basis of affordability. Having explained the meaning I have assigned to the key words in this lecture, ‘profession’, ‘business’ and ‘service’, we may now look critically to the main issue to be examined: Is the legal profession in Nigeria “business-oriented” or “service-oriented”?
The Atrophy of the Legal Profession in Nigeria
What is the bedrock of a developed nation? What is the distinctive quality that separates an advanced society from an undeveloped one? In my opinion, it is the existence of a political, social and economic framework in a nation by which its citizens and residents are enabled to give full expression to their natural abilities and capacities. The bedrock is not to be found in the beauty of road network, or in the skyscrapers or schools or hospitals. It is not to be found in the army battalions or naval armada or police formations. Even the most corrupt and unstable countries have all these. However, development is measured by the quality, strength, and competence of the systems by which the talents and capacities of that nation’s inhabitants find their fullest expression. How well are the laws respected and obeyed? How efficient is the Police in ensuring public safety? How deterring to external aggression is that nation’s army? How public-spirited is that nation’s civil service? How patriotic are its politicians? How well is life valued? How loathsome is impunity? How well protected are the weak and vulnerable? How strong are its mores, ethos and culture? How proud of its flag and anthem are its citizens? How revered is the national passport? How adored are the shapers of the national culture and civilisation- the teachers, writers, inventors, philosophers and statesmen and women?
The Police of any nation can only function effectively when there is a very low crime rate. The lower it is, the more effective and efficient the Police becomes. Thus, the larger, unknown framework in which the Police function is the national culture of respect for the sanctity of life, learned dispositions to respect property, keep promises, pay taxes and refrain from private violence to settle disputes- a cultural infrastructure of orderly ‘citizen neighbourliness’. The Army, to be effective in preventing external aggression must be certain that the citizens and residents of the nation it protects are not “fifth columnists”. There must be sufficient citizen participation in frustrating and resisting enemies of the nation. Prompt information about enemy presence, voluntary surrender of property to support the war cause must be matters that are taken for granted. There is also the economic sphere. In developed societies, the great bulk of human relations are set not by government regulations but by the voluntary action of the affected parties. These private collaborative efforts give rise to large companies and conglomerates which permit massive employment opportunities, scientific inventions, wealth creation and consequently national development.
This is the framework into which the lawyer enters, the system of law and the system of custom supporting and strengthening each other. The lawyer who takes his client’s case to court for adjudication expects a quick, just and orderly legal system to resolve the dispute. He is a trustee for the effective administration of that justice system. In addition there is an unseen broader system of custom which also lubricates the system of law by keeping disputes to a tolerable level in order to make dispute resolution by a court or any other tribunal useful and meaningful. Robert Gordon captures the interaction of these two systems in these words
“The law without the custom supporting it doesn’t work, because no legal system can maintain order against persistent and pervasive violations or evasions. Without social conventions in place to maintain the framework, no state can be legitimate or strong enough to supply one. There will be no reliable system of contract enforcement, no effective safeguards against theft, fraud, and violence, no protection of consumers or labour against being cheated or abused, no effective protection of the environment, no way of extracting taxes to pay for the public goods like law enforcement. Yet custom also needs the support of law. Norms of cooperation and mutual trust create openings for opportunists and free riders to abuse them, an outside of close-knit communities nonlegal social sanctions will not adequately police against such abuses. Although compliance with the framework norms has to be largely voluntary, you need coercive law to demonstrate the costs of abuse and also to reaffirm the norms against the moral “outsiders”, the amoral calculators who would otherwise profit from everyone else’s trusting law abidingness”
Tragically, the legal profession in Nigeria appears blind to this reality- that the lawyer-client relationship is not only subsumed into a larger justice system but also into the more encompassing system of custom. An illustration of the intersection of these three relationships by an elementary Venn diagram would depict the lawyer-client relationship as the moon, the legal system as the earth and the custom system as the sun, the three systems connected in the rotation-revolution manner that geography teaches. When a lawyer views his relationship with his client as a commercial one aimed at meeting the client’s demands in exchange for pecuniary reward, such a lawyer is comparable to the moon that seeks to exist without the earth and the sun. To my mind, this appears to be where the legal profession is in Nigeria today. The legal profession, if properly understood as comparable to the ‘entombment’ of the moon in the earth and the earth in the sun, is like a culture or a language. The lawyer must not only learn the grammar of the language, but must also learn the life of the language. The R lawyer may still be speaking the grammar and be retaining semantics and syntax of the language of the law, but the habits, ethos and culture that give vitality to that language is dying.
It is best to begin from how a person makes the decision to become a lawyer. This has been touched upon earlier in this paper. The summary is that education in Nigeria, for the aspiring lawyer, and indeed for everyone else is not aimed at building a cultured, patriotic and analytical citizenry. It is not aimed at mind cultivation or soul elevation. It is not imparted for the purpose of conquering the forces of nature or destroying superstitions. It is not to deepen thought, inculcate the respect for life and property, build a national identity, teach the dignity of labour and foster good neighbourliness. It is not aimed at wealth creation, individual or national prosperity. With all due respect to the few, dedicated and conscientious teachers who, against all odds, still exist as endangered species in our primary, secondary and tertiary institutions, education in Nigeria today does no more than hand over a certificate to a student who has been taught some things over a period of time no more, no less. Since there is no longer a national goal of education, in line with what I have described above, there is no sacrificial national investment in it. The pupil is therefore from the nursery school put in the hands of a cynical, despondent and unhelpful teacher who rams into the mind of the hapless pupil education content that had stood untouched since the 60s or 70s, using teaching methods that have also stood unchanged from that time.
The result is that when a pupil who has undergone primary and secondary education of this sort is admitted to university to study Law, he cannot be expected to view the legal profession in any other way than a ‘meal ticket’. The ideals of the profession would be strange to him since he has not been schooled in them. It is true that he might have been fortunate to have come in contact with dedicated teachers, but their influence on him would be drowned in the flood of the cynical majority. The Nigerian lawyer will therefore only speak the language of the law but will not have imbibed the life of the law. I am one of those who complain about the quality of many of our young lawyers, particularly those called to Bar in the last five to ten years. However the subject of the complaint has been about the lack of basic skills- writing, reading, reasoning and listening skills. I want to admit that I may be wrong. The real problem is not about skills but about perception. The Nigerian lawyer still perceives the legal profession as just limited to his client without bearing in mind that the lawyer -client relationship cannot be viewed in isolation of the machinery of justice and the social system of custom. This is the root of crass commercialism in the legal profession in Nigeria.
There is also the additional problem of rapid and uncontrolled growth in the number of lawyers being admitted to the Nigerian Bar annually. Between 1886 and 1987 (about 100 years) just slightly above 12,000 persons were enrolled as legal practitioners. However, in the last 10 years alone more than 35,000 persons have been enrolled, about thrice the number it took us 100 years to achieve. Regrettably, this population explosion of lawyers has engendered serious professional, social and economic problems. The sudden, unregulated and exponential growth in quantity have resulted in poor quality of lawyers. Many are no longer fit for their role as officers in the temple of justice, defenders of basic human rights, drafters of just and equitable legislations and advisers in the structure and process of commercial transactions. As many lawyers became unemployable, their attempt to establish their private law firms degraded the standards of law practice, turning it into an object of scorn and ridicule. It is no coincidence that as the population of lawyers grew out of control in the last ten years, so also the incidents of professional misconduct amongst lawyers.
The Nigerian Bar Association and the Legal Practitioners Disciplinary Committee had to rise up to protect the image, sanctity and integrity of the Bar by instituting disciplinary proceedings against the erring lawyers and meting out sanctions for such misconduct. In the last ten years, not less than fifteen lawyers have had their names struck off the roll of legal practitioners in Nigeria. Some others have been suspended from law practice for periods ranging between two years and five years. The reasons for the suspension or disbarment are indeed troubling, not least because they reveal either a lack of understanding of basic ethical principles or an obdurate decision to violate them. One was disbarred for a refusal to incorporate a company after collecting fees for that purpose. Another was suspended for refusing to prosecute a civil suit after collecting professional fees. A lawyer was disbarred for inflating the purchase price of a piece of land and pocketing the difference which he refused to refund. It appears therefore that it may well be necessary to look again into how the Nigerian Lawyer perceives the legal profession. The assumption is that if lawyers understand what law as a profession truly means, they will be in a position to determine how to avoid the pitfalls of bad legal practice. Indeed, the Legal Practitioners Disciplinary Committee echoed this view in a recent case.
“The respondent though facing a one-count complaint appeared to have believed that he was not doing the wrong thing. This is due to miseducation and lack of knowledge on matters of professional ethics. We urge stakeholders such as the Nigerian Law School to give the teaching of professional ethics greater priority and make it a sole core subject on its own, with a high pass mark threshold so that aspiring lawyers may appreciate the importance of their responsibility to the profession, their clients and the society when they begin their sojourn in the legal profession. The Council of Legal Education is also enjoined to consider the introduction of Professional Ethics in the universities that offer Law as a first degree.”
The Rules of Professional Conduct for Legal Practitioners 2007appear to be the means by which the Law seeks to change the perception of the Nigerian lawyer and broaden his vision of law as a profession. The Rules set the standards of dignity and integrity in organising his firm as a business, relation of the lawyer with his client, with other lawyers, with the court, how the lawyer attracts business and how he bills his clients. It is unnecessary to embark upon a detailed examination of the 57 rules in this paper. Suffice it to say that the overriding objective of the Rules is that the legal profession in Nigeria should not incline towards commercialism but be service -oriented. A lawyer in Nigeria must not do or omit to do anything that would permit a non-lawyer to take any benefit from his legal practice. He must not allow a lay agency to ‘intervene between him and the client’, assist any person not suitable for admission into the legal profession to be admitted to practise, or form a partnership with any such person. A lawyer shall not practise as a lawyer at the same time as he practises any other profession unless permitted by the General Council of the Bar or practise as a lawyer while personally engage in the business of buying and selling commodities, commission ‘ agent or any other business ‘ which the Bar Council may from time to time declare to be incompatible with practice as a lawyer or as tending to undermine the high standing of the profession’
In his representation of his client, a lawyer shall not file a suit, assert a position, conduct a defence, delay a trial on behalf of his client when he knows or reasonably ought to know that such action would serve merely to harass or maliciously injure another. A lawyer must not knowingly use perjured or false evidence, fail or neglect to inform his client of the option of alternative dispute resolution mechanism before resorting to or continuing litigation. A lawyer shall not handle a legal matter which he knows or ought to know that he is not competent to handle without associating with him a lawyer who is competent to handle it. A lawyer’s office shall be the only place for taking instructions and not the client’s house or place of business except in special circumstances. A lawyer shall always treat the Court with respect, dignity and honour. With regard to fees, a lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee. A fee is deemed ‘clearly excessive’ if it fails to take into account the customary charges of the Bar for similar services, the time and labour required, novelty and difficulty of the questions involved but is imposed arbitrarily and with a view to exploiting the weakness or ignorance of the client.
Whither the Legal Profession in Nigeria
The letter of ethics in Nigeria has been stated in the Rules, but the compliance rate is very poor indeed. Many lawyers still violate the Rules of Professional Conduct with impunity. They still use false evidence, convert clients’ money, pursue worthless litigations, charge excessive fees and attempt to bribe judges. The Rules are violated because there is no proper education as to the overriding objective of legal practice- that lawyers are trustees of the legal system and thus are also promoters of the system of custom by which the legal system is made effective. A lazy teacher who permits an unprepared and unscrupulous student to graduate as a lawyer weakens the systems of law and custom. A careless parent who helps his child to cheat at examinations contributes to the underdevelopment of our nation, Nigeria. If I am asked a direct question of who has contributed most to the underdevelopment of our country, politicians will rank lower than these three groups: parents, teachers and lawyers. However, lawyers have the greatest blame because they possess the wherewithal to correct the ills of parents and teachers. Lawyers ultimately become judges. They are very influential in the legislature and the Executive arms of Government. They can by legislation and judicial decisions check the excesses of parents and teachers. It is because we have lost focus that our nation is suffering today. Chief Gani Fawehinmi vindicated this standpoint of mine as to the weapon of change in the lawyer’s hands.
Who checked the excesses of the military? Unarmed civilians led by lawyers! Who drafted the Constitution that we are complaining about today? Lawyers! If Nigerian lawyers redirect their orientation and begin to see the legal profession as service-oriented, our development will be accelerated. For as long as we adopt the ‘every-man -for -himself’ attitude, we shall have nobody but ourselves to blame for our nation’s woes. Let the law lecturer vow never to permit an unsuitable law student to get to Law School. Let the Law School lecturer do the same. Let the lawyer at the private Bar vow to seek redress for violation of rights. Let the lawyer at the public Bar vow never to be used for State oppression. Let the lawyer at the ‘commercial Bar’- the corporate bodies vow to prevent insider abuse and violation of customer rights. Let the ‘lawyer-legislator’ not sponsor bills only for the purpose of recouping election expenses. Let the Attorney-General protect citizen rights. If we all do this, lawyers alone will restore to their rightful positions the system of law and the system of custom.