The legal profession is changing. Multidisciplinary firms are rendering services once the exclusive preserve of law firms. Artificial intelligence and automation are making inroads into legal work. Lawyers are waking up to the importance of specialisation, professionalism and standardisation. The Nigerian Bar Association (NBA) is charting the path for the profession, hence, the theme of its 59th Annual General Conference (AGC), “Facing the Future.” Legal Editor JOHN AUSTIN UNACHUKWU, ADEBISI ONANUGA and ROBERT EGBE report.
The practice of law is no longer what it used to be.
A 2018 study in the United States of America (US) pitted 20 well-respected corporate lawyers against an Artificial intelligence (AI) in an error-spotting test. Responses were measured by time and accuracy.
The human right lawyers achieved an average accuracy of 85 percent, in an average time of 92 minutes. The AIs achieved a success rate of 92 percent in just 26 seconds!
Also, global consulting firms such as PriceWaterHouseCoopers (PwC) and others now regularly provide legal services.
“PwC’s Legal Services are committed to serving the best interests of our clients. Through efficient and precise management of our clients’ needs, we are able to provide practical legal solutions and advice,” it states on its website.
These are just two examples of the reality lawyers in Nigeria are facing or will face soon enough. How should the legal profession, shepherded by the Nigerian Bar Association (NBA), respond?
59th Annual General Conference (AGC)
Members of the legal profession, government officials and other stakeholders in the judicial sector converged on Lagos last week for the NBA’s 59th Annual General Conference (AGC) to address these and other issues.
The conference held from Friday, August 23 to 29, at the Eko Hotel and Suites/Harbour Point, Victoria Island, Lagos.
Described as the largest gathering of lawyers in the world, it recorded an attendance of over 12,000 lawyers, including President Muhammadu Buhari, who was represented by the Attorney-General of the Federation and Minister of Justice, Abubakar Malami(SAN); the Chief Justice of Nigeria (CJN), Justice Ibrahim Tanko Muhammad and President, International Bar Association (IBA), Horacio Bernardes Neto.
Lagos State Governor Babajide Sanwo-Olu, represented by his Deputy, Dr. Femi Hamzat, and Abia State Governor Okezie Ikpeazu, represented by his Commissioner for Justice and Attorney-General, Mr Uche Ihediwa, many heads of federal and state agencies, captains of industry and leaders of the Bar and Bench also graced the occassion.
The conference featured 42 sessions, 209 Nigerian and foreign speakers from the legal and business communities, academia, legislature and public sector.
Legal Profession Regulation Bill
One way the profession is responding to the challenges and opportunities of the future is to seek the enactment of the Legal Profession Regulation Bill.
According to Professor Fabian Ajogwu, SAN, the bill, if enacted, would give the legal profession the ‘fresh start’ and renewal of standards it deserves.
He said the bill will equip lawyers to handle diverse and competing roles required of a 21st Century lawyer in light of global occurrences and technological advancements while still maintaining the foundational principles of our noble profession.
He spoke as a panelist on: Future of the legal profession and the regulation of Legal Practitioners.
Ajogwu said: “There are growing concerns about falling standards in the legal profession, the quality of legal education, deteriorating standards of professional ethics and weak regulatory regimes for the legal profession as well as the threats that technology and globalisation have brought for legal practitioners.”
According to the Don, “the root of these concerns has been traced to failures in the regulation of our profession.
“As legal practitioners in this age, we belong to a time of fluidity, where traditional walls are collapsing and the world is being shaped as a global village. There exists free trade agreements and commerce on a large scale.
“Technology has also continued to develop with the advent of disruptions such as block chain technology and its use cases that include the provision of some legal services traditionally performed by lawyers (e.g. Regtech applications and smart and Ricardian contracts). Legal practitioners are now required to play ‘catch up’ with these advancements.”
He noted that lawyers of the future will be constituted of two tiers – “not the solicitors & advocates of today, but the legal specialists & legal information engineers of the information society.
“Legal practice and the administration of justice will no longer be dominated by print & paper in tomorrow’s legal paradigm. Instead, legal systems of the information society will evolve rapidly under the powerful influence of ICT.”
‘Change will require significant commitment’
Another panellist, Chief Anthony Idigbe, SAN, who spoke on NBA Legal Profession Regulation Review Committee (NBA LPRRC), said changes would require significant political commitment, partly to meet the expected criticism from some lawyers because reform will need primary legislation, which requires scarce Parliamentary time.
He said findings on the NBA LPRRC revealed that there is no clear regulatory objective and the regulation of the profession is fragmented.
According to him, “the HAGF, Body of Benchers, Bar Council, Legal Practitioners Disciplinary Committee, the Supreme Court, the Chief Justice of Nigeria, Legal Practitioners Privileges Committee, Council of Legal Education, Nigeria Law School and the Nigeria Bar Association have no central organisation and bodies are not subject to any central control.
“There are no licensing and supervision of practitioners and law firms, no practice licence, no inspection, no insurance, no mandatory continuing professional development, no annual report and the current NBA CPD programme has no statutory backing,’’ he said. This, he contended, must change.
He further noted that, the Legal Profession Regulation Bill will introduce licensing of law firms.
Idigbe added: “The bill seeks to introduce the system of pupilage in order to enhance the development of legal ethics and professionalism in young lawyers as well as seeking to make provision for licensing and accreditation of legal service providers such as para-legal.”
Cross-border legal services
Demand for cross-border legal services are bound to rise, especially as a consequence of the African Continental Free Trade Agreement (AfCFTA) which Nigerian State has signed (but is yet to domesticate.
How can Nigerian lawyers take advantage of this?
Solicitor General of the Federation Dayo Apata tasked the NBA to set up a committee to look into this. He stated this at the plenary session on “Cross- Border Trade in Legal Services: Current Reality and Future Possibilities”. The session was chaired by a former NBAPpresident, Mr Augustine Alegeh, SAN.
Apata, who was represented by Mr. C.A Elechukwu, observed that a new legal regime was emerging as new technology emerge, and lawyers must be able to key into this to facilitate cross-border practice.
He said: “Trade in services between states and citizens across borders is not uncommon. However, with the introduction of digital trade, it has changed the nature and operation of trade in services by reducing the relevance of traditional at-the-border barriers to trade like tariffs and licences.”
He charged the NBA to set up a committee to find a way of reviewing the Legal Practitioners Act to better position lawyers to take advantage of opportunities.
Apata said: “In view of this, there is need for regulatory mechanisms and domestic policy regulating trade in digital legal services in Nigeria. We shall see later if the signing of the African Continental Free Trade Agreement by Nigeria will help the quest.
“Currently, the Legal Practitioners Act is the chief legislation that provides the requirement for licensing a person whether foreign or not as a barrister and solicitor of the Supreme Court of Nigeria. It provides that such a person must be called to the bar to be able to practice as a barrister and solicitor in Nigeria.
“The only exception to that is provided by Section 2 (2) of the Legal Practitioner’s Act (LPA), which empowers the Chief Judge of Nigeria to grant a person warrant for purposes of specified proceedings and appeal brought under such proceedings.”
He said there was a need to constantly sensitise lawyers to the inevitability of the globalisation of the legal service and encourage them to adopt a positive attitude and take benefit of the trend.
Apata added: “The rules of professional conduct should be streamlined to encourage cross- border collaboration among firms. There is an urgent need to foster cross border liberation in creating free market, immediate domestication of the AfCFTA by the National Assembly and the NBA to propagate collaboration between itself and other regional bar associations in order to create a global regulatory framework.”
Incursion of multi-disciplinary (MD) firms
In his paper “Incursion of multi-disciplinary (MDP) firms: Any regulation?”, Attorney-General and Commissioner for Justice, Sokoto State, Mr Sulaiman Usman, SAN, examined the need for law firms regulation.
He considered the incursion of multidisciplinary firms, multidisciplinary practice and multidisciplinary partnership in the practise of law and provision of legal service.
Usman said there is “a need to regulate and govern their activities and put them in check so as not to disrupt the extant legal practice architecture in order to guarantee the future of legal practice in Nigeria.”
He identified multi-disciplinary firms as ones that “combine practise of law with non-legal services as one-spot service, thereby saving time and money.
“In multi-disciplinary law firms, there is joint practice between lawyers and other professionals to offer professional service including legal services.”
The Silk noted that at the global level, there are five major accounting firms which have all “expanded their professional practice from Accounting, Tax, Consultancy, Risk, Audi, Financial Advisory into provision of legal services except legal representation in court.”
According to him, MDP is becoming a front burner issue in professional legal practice.
“It demands the expansion or extension of legal services to include accountancy, estate valuation, facility management et cetera….
“Despite its incursions into professional practice, multidisciplinary practice is not being embraced in many jurisdictions including Nigeria because it poses a threat to lawyer client privilege, constitute a hindrance to age-long concept of conflict of interest and erosion of professional independent judgement that lawyers currently enjoy in the practice of law.”
The Sokoto AG advised the NBA to bear in mind that “while the legal profession sleeps in Nigeria by closing the door against multidisciplinary firms and multidisciplinary practice, other professionals are rendering legal service and hiring young lawyers to support them in providing legal services and unauthorised practice of law in contracts documentation, incorporation of companies, legal drafting and conveyancing, mergers and acquisitions and even litigation.
“This is evident from the presence of some of the big five global accounting firms in Nigeria’’.
He advised the Nigerian Bar to “rise to the challenge pose by the incursion of multidisciplinary practice and multidisciplinary firms and create the enabling environment for lawyers to compete favourably with them.
“It has been overserved that multidisciplinary partnerships (MDPs) between law and other types of firms may become major players in the market for worldwide capital growth and development.”
Investment in legal education
Former Chairman’ Section on Business Law of the Nigerian Bar Association, Mr. George Etomi called on African countries to invest in legal education to improve the capability and expertise of local legal practitioners
He said this will instill confidence in the legal sector and also equip lawyers with the requisite expertise to compete in the liberalised legal services market which is already happening, albeit unregulated.
Etomi said investing in legal education in Africa will liberalise legal services.
According to him, the aspirations of the African Union are similar to that of the European Union.
“The European Union was established in 1993 and has achieved political and social- economic integration and harmonisation across the member states. Member-states have been able to harmonise their qualifications requirements for EU lawyers, immigration policies and energy policies.
“It will not be out of place to draw lessons from the EU. The directive set model Uniform Rules pertaining to lawyers wishing outside their home jurisdictions on a scale that covers the entire continent. For Africa, these rules must encompass qualification and practice requirements such as the global standardisation of qualifiying certificates and discipline measures to be meted out to erring practitioners operating outside their own jurisdiction,” he said.
Etomi called for efforts to implement “a unified curriculum on business law at university level as foundation to encourage cross-border legal practice.”
Also, Mrs Kofo Dosekun, who examined the opportunities in cross border trade legal services, noted that it will increase the convergence between law and technology opportunities for lawyers to develop expertise knowledge in emerging technologies.
“We also have an opportunity to ramp up on the introduction of technology into courtrooms, witness delivering testimony via video, lawyers presenting cases on built-in monitors, using cameras and other technology to review evidence and e-filling systems.”
Bullying and sexual harassment
For the profession to boost equal opportunities, it must respect gender and boundaries.
In this light, a Senior Advocate of Nigeria (SAN), Mia Essien, decried sexual harassment of female lawyers by their senior colleagues. She urged that the Rules of Professional Conduct (RPC) should condemn sexual assault and bullying.
Mrs Essien, who was the chairman of the NBA Section on Legal Practice (NBA-LP), made the call at the Showcase Session with the topic: “Bullying and Sexual Harassment in the Legal Community”.
She noted that instances abound where senior lawyers would travel with junior female colleagues and make no hotel reservations for them. She said as a result, such females lawyers are left with no alternative but to sleep in the rooms of their principals, “who deliberately did so to sexually exploit them”.
The senior lawyer noted that while the RPC talks about ethical conduct for legal practitioners, it says silent on sexual harassment or bullying of lawyers by lawyers.
“I urge the NBA to ensure an amendment of the RPC to reflect these issues,” she said.
Mrs Essien observed that lawyers were expected to know that sexual harassment and bullying were condemnable and thus, should conduct themselves in the most ethical manner.
The senior advocate said that there was a difference between bullying and correction of a junior colleague, which she described as a key element of legal practice.
“It is important to be courteous as a lawyer; courtesy demands that you offer your seat to a senior colleague who is standing up in court, and also to speak with respect to seniors.
Another panelist in the session, Ogaga Emoghwaren, described sexual harassment as an unsolicited, unwelcomed, and unexpected sexual advance to elicit unwanted sexual relationship.
He defined bullying as the act of intimidating a weaker person to make him to do something against his will.
Mr Ogaga said that although sexual harassment of lawyers by their seniors in courtrooms was not common, there existed sexual harassment in law firms.
“I encountered a situation where a young female lawyer ran out of her principal’s office crying; when I interrogated her, she described her principal as a beast who just raped her,” he said.
According to Mr Ogaga, the unwillingness of victims to open up, made sexual harassment and abuse to be increasing.
He noted the young female lawyer who was allegedly raped, refused to formally complain for fear of sack.
Mr Ogaga also blamed the situation on poor enforcement of laws against sexual abuse.
“Although there is a law criminalising the offence of rape; more proactive measures must be put in place to tackle the menace,” he said.
Another panelist in the session, Awulika Osuigwe, said sexual molestation in workplaces had been going on unnoticed due to poor reportage. She advised females lawyers to report acts such as slapping of their buttocks by their male counterparts.
Chief Assam Assam, SAN, also a panelist in the session, said bullying also thrived in courtrooms and among judges.
“I encountered a scenario where two members of the Bench sitting on appeal, engaged in a face-off and rained abuses on each other before a full courtroom,” he said.
NBA President Paul Usoro gave the assurance that, in the next year, his administration would take steps to adequately address the issues. He advised lawyers complain about sexual harassment for measures to be taken.
Rule of law
Aside Buhari who, through AGF Malami, vowed not to protect any “sacred cows”, perhaps the most respected guest at the conference was Neto.
Neto, from Sao Paulo, Brazil, was on his first visit to the country.
In a session chaired bya former President of NBA Dr Olisa Agbakoba SAN, he urged the NBA to protect and promote the rule of law, stressing that it should not be traded for anything.
He stated this during the plenary of Rule of Law Symposium.
Neto warned that there was a great threat to rule of law globally. He suggested that many citizens and some lawyers may not fully understand what rule and law meant, hence, the need for it to be taken more seriously.
“Rule of law should not be taken for granted; it should not be traded for anything. It has to be pure because anything short of that is not it. Rule of law entails freedom of speech, free press, liberty of speech, independence of the judiciary and legal secrecy, among others,” he said.
Explaining the future of legal services, he said there was the need for lawyers to live in accordance with the dictates of the rule of law, as a commitment to promoting and safeguarding it.
Abuse of prosecutorial powers
In the same session, Stephen Cragg (QC), of the Bar Human Rights Committee of England and Wales, dwelled on abuse of prosecutorial powers as an example of infringement on the rule of law that lawyers should not engage in, if the profession must advance.
He observed that prosecutors play a crucial role in the administration of justice, adding that rules of performance and their important responsibilities should promote respect for and compliance with the right to fair trial.
Cragg said: “States shall ensure that prosecutors perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liabilities.
“The office of prosecutors shall contribute to fair and equitable criminal justice and the effective protection of citizens against crime. Prosecutors are to be strictly separated from judicial functions, perform their duties fairly, consistently and expeditiously.”
Code of Conduct Tribunal (CCT): A clash of Judicial and Executive Powers
One of the most exciting sessions at the panel was that chaired by Senator Ike Ekweremadu, focused on where the Code of Conduct Tribunal (CCT) derives its powers.
While some of the panellists argued that the tribunal is under the Executive Arm, others said it should be responsible to National Judicial Commission (NJC).
Andem-Rabana: For instance, Attorney-General of Cross River State Mrs Nella Andem-Rabana (SAN) noted that the CCT is not composed of lawyers but has powers to try public officers. She observed that by the Constitution the CCT should defer to NJC.
Andem-Rabana said it has been spelt out in the Constitution that if a judge errs, the NJC is the first port of call and the NJC is the only body that can recommend the removal of a judge.
“We as lawyers owe it a duty to protect rule of law and independence of judiciary.” According to her, this is only way to ensure judicial officers are not exposed to threats.
Jacobs (SAN): Senior Economic and Financial Crimes (EFCC) Prosecutor Rotimi Jacobs (SAN) argued that the CCT was a special institution which function is to see that public officers conform to high standards of public morality.
According to Jacobs, while the CCT was established in 1979, the Code of Conduct Bureau (CCB) and CCT were enacted in 1989 under the 1999 Constitution. He observed that when the law establishing the CCB and CCT were being made, the law stated that “once a public officer has admitted guilt, he would not be prosecuted”.
Jacobs noted that the CCT is not part of the Executive under the 1999 Constitution but it still depends on the Executive for funds.
“More needs to be done to make the Tribunal independent,” he said.
According to him, the tribunal is only being treated as an executive body because of provisions of Section 153 of the Constitution, “but it is not.”
The Silk stressed the need to review the CCT Act to make it more potent to fight corruption.
Adegboruwa: Ebun-Olu Adegboruwa (SAN) observed that the law setting up the CCT did not prescribe any mode for its funding. To him, the source of funding would determine whether it should be independent.
He suggested that there are two laws that claim to establish CCT, the 1991 Act and 1999 Constitution.
According to him, if a judicial officer commits and infraction, he should first be made to face the NJC before the court.
Adegboruwa contended that there is danger in equating the decision of the CCT with that of a superior court, adding that the Constitution should be amended to ensure that only judicial officers are members of the CCT.
He advised the NBA to set up a committee to look at infractions in the CCT Act and the 1999 Constitution and make recommendations that the CCT be composed of judicial officers and report to the NJC.
Ozekhome (SAN): Chief Mike Ozekhome (SAN) was categorical that the CCT “is not an appendage of the executive.”
The constitutional lawyer said the CCT Chairman is not a judge. According to him, the CCT chairman told the NJC so when it queried him on the decision it took on Onnoghen.
He, however, said the CCT, set up in 1991 to deal with corruption matters has enormous powers and that it can remove or ban a public officer.
“CCT has powers to punish people without being subjected to internal discipline by any order,” Ozekhome added.
Nevertheless, he suggested that the CCT is not a superior court of law but an inferior one.
Olanipekun: Chief Wole Olanipekun SAN contended, among others, that no matter how strong a tribunal might be, it should not be vested with powers of criminal prosecution, “otherwise, we as lawyers would be in trouble”.
NBA asks Supreme Court for declarative clarification on status of CCT
Responding to the discourse about the status of the CCT, the NBA tasked the Supreme Court to make an unambiguous determination on its status with a view to clarifying whether it is an organ of the executive or a quasi-judicial tribunal capable of being vested with criminal jurisdiction.
The request followed the controversy which still raging over the removal of the former Chief Justice of Nigeria (CJN), Justice Walter Onnoghen (rtd.)
The NBA noted that the status of the CCT has remained a gray area in Nigerian jurisprudence which has given rise to great contention.
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