By Ezekiel Obioma Ugwueze Esq.

ABSTRACT
“We belong to an ancient, to a great, to an honored profession. The practice of Law is a worthy calling. It has rewarded us with financial success and with prestige and leadership in our communities. It has given us much happiness and the good life. From it we have received the gratitude and respect of our friends and neighbors whom we have served. Our word affords intellectual pleasure with dignity and independence, in competition with our fellow Lawyers with whom we have cemented warm friendships and enjoyed happy companionships. For these blessings, we cannot but have a sense of gratitude and of obligation. The most productive, unselfish and wholly satisfying repayment of the obligation is constructive work to increase the effectiveness of our judicial system and the welfare of the profession.” – J. WESLEY McWILLIAMS.

The legal profession in Nigeria is a foreign import. This vocation has its origin traced to ancient Greece and Rome; in its modern form, Britain. A noble profession, comprising of lawyers, “The Bar” and Judges, “The Bench”-both ministers in the temple of justice.

Upon a lawyer’s elevation to the bench, his upkeep is automatically taken up by the government and in most instances, well remunerated. The reason for this “‘attractive” emoluments is not farfetched; the bench must be shielded from the temptations of bribery and corruption whose root causes can be mostly tied to penury.

On the other hand, save for those under government employ, the lawyer must ‘fend for himself’ and on that note, is expected to ply his trade as he deems fit to make ends meet. But the lawyer in the conduct of his practice must do so within the ambit of the law and the ethos of his profession. Unlike his British counterpart, whence we inherited our corpus juris, the Nigerian lawyer is licensed upon call to practice in all areas of law at the risk of being a Jack of all trade, yet, master of none. This is because the areas of specialization under our jurisdiction is limited. The economic realities of these jurisdictions are different too.

Unfortunately, some of these rules appears to restrict the lawyer’s ability to be visible to potential clients which would had in turn meant more briefs; ultimately translating to more money. The Nigerian lawyer therefore needs multiple streams of income to make ends meet. Yet again, the rules appears to be against that. These body of rules restricting his involvement in other businesses have been interpreted by many to be an outright ban from same.

This paper is therefore an attempt at enlightening and disabusing the mind of the Nigerian lawyer on: The Legal profession; practicing other professions and or doing businesses simultaneously.

INTRODUCTION
Over the years, I have watched lawyers, myself inclusive, struggle with their finances. This cannot be totally divorced from the fact the legal profession is a highly regulated one. Lawyers are restricted from advertising their trade ad cannot practice other professions or enagage in other businesses while practicing.

The economic challenges of lawyers was laid bare during the global pandemic of COVID19 and the attendant lockdown that ensued. Too many lawyers literally fed from hand to mouth. Again, the JUSUN strike, (still ongoing at the time of writing this) has further worsened the economic fortunes of the Nigerian lawyer and has brought this perennial question of whether lawyers can engage in other businesses to the front burner again.

To my mind, I’m constrained to conclude that the average Nigerian lawyer did not learn a thing or two from the Corona virus pandemic vis-a-vis his economic fortunes and may sadly not learn from the current JUSUN strike too. He cannot also completely rule out that there may be future occurrences that could potentially limit or prevent his practice of the law.

It is in this wake of this that I thought it wise to ink my thought on this important discourse.

It is hoped that the writer’s submissions on this issue will inspire and encourage more lawyers to diversify and think out of the box on ways they can can enhance their practice and make more returns.

LAWS GUIDING THE LEGAL PROFESSION IN NIGERIA
The legal profession is one of the oldest and noblest of professions in the world. All over the globe, the practice of same is guided by laws and Nigeria is not an exception.

ADEKEYE, J.S.C. in FBN Plc. & Others VS. Maiwada & Others, SC. 204/2002 enumerated about five laws guiding guiding the legal profession in Nigeria.

In the words of the fine jurist: “The legal profession in Nigeria is covered by the provisions of the Legal Practitioners Act with the Rules, Orders and Notices – which are (a) Legal Practitioners Disciplinary Committee Rules 2006, (b) Rules of Professional Conduct in the legal profession, (c) Senior Advocate of Nigeria (privileges or functions) Rules 1979, (d) Entitlement to practice as Barristers and Solicitors Order 1992, (e) Legal Practitioners (Remuneration for Legal Documentations) and other Land Matters Order, (f) Legal Practitioners (Bar Practicing Fees) Notice 2002.”

Upon call, the Nigerian lawyer is expected not to engage in any other profession or business. The advocates of this legal stand have further argued this rule from a black and white stance to wit, a barrister and solicitor of the Supreme Court of Nigeria cannot engage in any other profession or business. This position is not correct. The law is that a lawyer shall not practice as a legal practitioner at the same time as he practices any other professions.

The resultant effective of arguing this from a one-way traffic position is that smart, intelligent and industrious lawyers who are no less smart, intelligent and industrious in other endeavours are confronted with a take it or leave it situation. These proponents are apparently oblivious of the difference between restricting and prohibiting an act. The writer argues that the former is the correct position.

LAW PRACTICE OR LAW BUSINESS?
The Nigerian lawyer is more commonly referred to as a legal practitioner. It would be rather strange to hear a law practitioner being referred to as a ” law businessman” or “legal businessman”. Be that as it may, there is nothing out of place referring to a lawyer as “legal entrepreneur”. Personally, I like to think that I’m one and deliberately coined the nomenclature; lawtrepreneur.

The salient question is; as a legal practitioner, are you in practice or in business?

A retreat into oneself and a recollection of how you conduct your practice will answer the above question.

I have always frowned at the level of levity with which a greater percentage of Nigerian lawyers treat their law businesses. We give the best of business advice to SMEs, multinationals and transnationals yet treat our firms and its affairs like the average akara would. Even the average market sellers do better.

Before I rail off the mark, I must remind us that this discourse is not on how to conduct your practice. However, it is worthy of note that the lackadaisical approach of lawyers on how they conduct their practice have had, is having and will continue to have adverse effects on our collective economic fortunes.

The nexus being that if we have vibrant and successful practices, the need to engage in other businesses wouldn’t be taking the centre stage as it is today.

THE LAW PROFESSION AS A SERIOUS BUSINESS
As was earlier espoused, many lawyers do not even see the legal profession as a serious business nor appreciate why it should be treated so. These class, treat their firms as subsistence businesses. The attendant result is, save for the top tier firms and a few others, most law firms in Nigeria still struggle with payments of stipends/running costs and seldom outlive its founders to the second generation.

We have the older generation who see the profession as serious business but not from the stance of commercialization of the law practice. This class, in my opinion are a little extreme in their beliefs about the bar and hold unto same so strongly. For them, it is all about the preservation of the norms and conventions of the bar.

Allied to this, the rich history of the profession, some of which are no longer in tandem with today’s realities are still being tenaciously held unto by a few memebrs of the bar who are a chip of the old block. To this class, the legal profession is a refined one whose cultures and traditions must be guarded jealously even at the expense of progress. These lawyers have constituted themselves gatekeepers of the profession; warring against external influences that could taint the all hallowed reputation of the bar. Unfortunately, even innovations that could positively leapfrog the Nigerian bar to be at par with her international counterparts have been vehemently resisted by these very senior members of the bar.

For the avoidnce of doubt, I agree that the legal profession is a serious business and must be treated as such. But for some of us, the legal profession is more than just a serious business, it is a business in itself. We must therefore find a way to marry all the interests into a peaceful union.

Gone are the days therefore where a lawyer should be satisfied with a mere promise of a heavenly reward after rendering legal services. It’s no longer practicable like in the medieval era where the lawyer’s gown also served the purpose of an offertory bag where clients or litigants could simply “appreciate ” the lawyer for a job well done. Times are different now. The 21st century lawyer needs money, a lot of it at that to buy the ever exorbitant law books, law reports, pay for seminars and conferences, pay for a decent office and maintain same, pay the stipend of fee earners in the chambers and the para legal members of staff, buy stainonery and other miscellaneous office expenditures. The list is endless.

In addition to the above, the lawyer also has to deal with domestic expenditures to wit; pay for a decent accommodation befitting of his standing as a lawyer, pay the school fees of his kids, maintain his car, do charity and many more other areas competing for financial attention must be attended to as well.

The standing of the lawyer in the society puts him in such a peculiar position that a lot is expected of him financially too. It’s tantamount to creating artificial problems for the lawyer to shy away from this reality. Even to conduct pro bono cases involves money and a financially constrained lawyer is a professionally handicapped one.

So how will the lawyer meet up with these myriad of finance consuming responsibilities if he does not find other means of income? How can he improve his fortunes if he does not treat his practice as a trade where he is expected to make profits?

The writer argues that the legal industry is a commercial enterprise and must be treated accordingly.

MARRIAGE OF THE LEGAL PROFESSION, OTHER PROFESSIONS AND BUSINESSES
It is trite to state that to every rule, there is a likely exception. Furthermore, to effectively interpret a legal provision and judiciously apply same, one must make an attempt to understand the spirit of the law. A sojourn into the intention(s) of the drafters of this provision becomes imperative.

In the instance, it is the writer’s opinion that the Rules of Professional Conduct was created to shield the bar against acts capable of undermining and bringng disrepute to the profession. Simpliciter.

The all important question which begs answer remains: can a lawyer practice another profession while practicing law? The answer is, ‘No’. Lawyers are not allowed or permitted to practice any other profession or engage in other businesses apart from law.

Rule 7 of the Rules of Professional Conduct RPC) states;
“a lawyer shall not practice as a legal practitioner at the same time he practices any other profession”. This is the general rule.

The above provision of the rules is without equivocation nor ambiguity.

Consequent upon this, a lawyer cannot practice law simultaneously with other professions or businesses. The import of this is that if for any reason, a lawyer wants to practice another profession, the lawyer must give up his practice of the law before venturing into the other.

RULE 7 OF THE RULES OF PROFESSIONAL CONDUCT (RPC) EXPLAINED
As earlier stated, the writer argues that though lawyers as a general rule are not permitted to practice law and practice any other profession simultaneously, the law does not prohibit lawyers from practicing oher professions or engaging in other businesses. Just as there is a difference between tax evasion and tax avoidance, there is also a chasm of difference between the restriction of an act and the prohibition of an act.

Again, the question pops up; can a lawyer practice another profession or engage in other businesses while practicing law? This time, the answer is a “yes”. However, the rules provides for how the legal practitioner can go about this without being in breach.

RULE 7(1) OF THE RULES OF PROFESSIONAL CONDUCT:
“Unless permitted by the General Council of the bar (hereinafter referred to as the “Bar Council”), a lawyer shall not practice as a legal practitioner at the same time as his practice any other profession”.

The key phrase worthy of note is “UNLESS PERMITTED” which clearly shows that there is a condition precedent. It therefore means that a lawyer can practice other professions, IF he gets the permission of the General Council of the Bar. l am not aware of anybody who has such permission but I am also aware that the Bar Council is not a “Father Christmas” or a charity organisation that goes about giving consent to anybody without those who want such permission first applying for same.

It is not strange to see professionals from diverse fields returning to the classrooms just to study law. This trend is not peculiar to Nigeria. It is indeed common all over the world to see these professionals coming back to study law even after successful careers in their chosen fields. This trend made the writer to start referring to law as the “academic bustop”. For this reason, we now have lawyers who doubles as pilots, medical doctors, entertainers, mathematicians, astronauts, engineers, politicians, you name it.

As earlier posited, it will be tantamount to a an artificial braindrain syndrome to place on the table, a take-it-or-leave-it situation for the lawyer who is also a professional in a different field. Inavriably, the bar will lose some of her finest brains. This should not be encouraged.

Furthermore, some of these professionals who later followed their passion to study law are specialists in some of the rarest disciplines in the world. Such persons should be allowed to practice in so far as their practice of such profession does not undermine the high standing of the legal profession; which is one of the ills the rules seeks to remedy. For example, a medical doctor is in the business of saving lives. A lawyer is also in the business of saving lives. Now, a medical doctor who doubles as a lawyer should be allowed to practice both if he so chooses and meets the condition for obtaining leave to practice.

In the area of entertainment, the poor production of Law Series by Nollywood was abysmal in the last decades. The improvements witnessed now cannot be divorced from the fact that lawyers are now being consulted in the area of script writing, screenwriting, costumes, props & set etc. Stricto sensu, this is not legal practice, but consulting lawyers to do this unarguably helps the production team to put out the true position of the law in their productions which invariably advances the practice of the law. Again, consulting lawyers to do this brings extra cash to their pockets which is the crux of the wirters argument; that lawyers should be allowed to earn extra.

In furtherance of the above, we now have lawyers who are now personally involved in the entertainment industry; legal series, crime based movies, legal commentaries, comedy etc. In so far as these helps to advance the law, these lawyers should apply and such application granted and be allowed to practice simultaneously. What ever angle you may choose to look at this from, the fact remains that lawyers are the ones in the best position to bring such law based entertainment series to life.

We canot deny the positive impact that law series have had on the legal profession. Series like Suits, Eko Law Series, How to Get Away With Murder, The Devil’s Advocate and so many others have helped to develop and improve the advocacy, cross examination, speaking, analytical and even the writing skills of many lawyers. It won’t be out of place to grant leave to lawyers to be actively involved in this without having to sacrifice their practice of the law.

The writer believes that such applications for consent should not be turned down provided the applicant can adduce strong evidence to move the Council to give its nod.

The wirter also recommends that an Appeal Committee should be set up to review applications that would be rejected.

RULE 7(2) O10F THE RULES OF PROFESSIONAL CONDUCT:
“A lawyer shall not practice as a legal practitioner while personally engaged in — (A) the business of buying and selling commodities; (B) the business of a commission agent; (C) Such other trade or 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.”

Under this provision, the key phrase worthy of note is “Personally engaged ”.

This is one of the most misinterpreted provisions of the rules. The average lawyer says the RPC prohibits a lawyer from doing business. This is not correct.

From the wordings of this provision, the writer argues that a lawyer can own a business venture, but he should not be the one to personally manage it. To get around this, he has to engage the services of others to manage the business. In so far as the said lawyer is not personally engaged in it, no breach has occurred.

Can it then be said he can remotely manage it without being in breach of the rules? The answer is clear in the rules.

In summation, a lawyer who wishes to personally engage in business shall stop his practice of the law. But if he must go into business, then he shall not be personally engaged in it. Such a lawyer should engage the services of others to manage the business while he continues with the practice of the law.

The foregoing means that the Rules of Professionl Conduct does not stop a lawyer from engaging in business, the RPC only prohibits a lawyer from personally engaging in it.

RULE 7(3) RULES OF PROFESSIONAL CONDUCT:
“for the purpose of this rule, “trade or business” includes all forms of participation in any trade or business, but does not include — (a) Membership of the Board of Directors of a company which does not involve executive, administrative or clerical functions; (b) being secretary of a company; or (c) being a shareholder in a company”

This is self explanatory. A lawyer can be a Member of the Board of Directors of a company which does not involve executive, administrative or clerical functions, a secretary of a company, or a shareholder of a company.

Laws are not read in isolation. The combined effect of the provisions of Rule 7(1), 7(2) and 7(3) of the Rules of Professional Conduct allows a lawyer to own or run businesses but with certain restrictions therein. These restrictions have been x-rayed by the writer in the previous paragraphs.

For the avoidance of doubt, until a law is repealed, it remains the position. The writer believes that the submissions above are the only ways a lawyer can get around this without being in breach. Anything outside the permissible bounds of the rules is a violation and even the fabled 11th commandment of ” Thou shall not be caught” cannot avail the lawyer if caught.

CONCLUSION:
The law is made for man, not man for the law. This is essentially what Jesus was saying in Mark 2:27; “The Sabbath was made for man, not man for the Sabbath.” The Rules of Professional Conduct were made to meet the needs of the bar & barmen, and not the bar and lawyers to meet the requirements of the rules.

Wisdom demands that when a law ceases to serve its purpose, it is either amended or changed. In some instances, a new law is enacted to keep up with the realities of the times. The law is only a shadow or an antecedent of good things to come, not the realities themselves.

The body of Benchers, the General council of the Bar should from time to time review the rules and make necessary amendments in line with 21st century realities. Laws are dynamic and any law that have outlived its purpose should be expunged from the body of laws. The beauty of the law is its organic characteristic in that it changes with time. Anything short of this, it will atrophy and die.

It will be playing the ostrich to deny the economic woes of the Nigerian lawyer. There is no dignity in poverty and a lawyer in abject poverty will bring no less dishonour to the noble profession invariably occasioning the same disrepute the rules seek to prevent.

As a highly regulated industry, what the authorities needs to do is to come up with a new legal regime that will relax some of the moribund rules, cushion the lacunae in others and introduce new provisions that are in tune with today’s realities without watering down the seriousness and solemn nature of our practice as lawyers.

This is the writer’s recommendation and I so urge.

 

Ezekiel Obioma Ugwueze Esq.
Abuja-Nigeria
E-mail: [email protected]