INTRODUCTION

In the world today, the practice of law has become multi-faceted and multi-dimensional. Diverse areas of law practice have emerged, and continue to emerge, in virtually every area of human activity. In the light of this diversity of legal practice areas, there is diversity in the specialization of legal practitioners.

Hence, various lawyers specialize in different aspects of the practice of law and legal practice has long gone beyond the four walls of the court rooms. However, despite the acceptance of the fact that there is diversity of practice in law, Nigeria’s legal privileges regime is yet to recognize the existence of such diversity, or perhaps avoids such recognition.

This write-up makes a case for the recognition of non-litigators for eligibility to the rank of Senior Advocate of Nigeria, and argues that the unduly restrictive eligibility requirement for the conferment of the rank should be amended to accommodate non-litigators.

LEGAL PRACTITIONERS & LEGAL PRIVILEGE

As an introductory point, Section 24 of the Legal Practitioners Act Cap L.11, LFN 2004 defines the term ‘legal practitioner’ as meaning a person entitled in accordance with the provisions of the Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings. The Act does not define the terms ‘barrister’ and ‘solicitor’, however, Black’s Law Dictionary (8th Edition) defines a barrister as ‘…a lawyer who is admitted to plead at the bar and who may argue cases in superior courts’. A solicitor on the other hand is defined as ‘a lawyer who consults with clients and prepares legal documents but is not generally heard in High Court’. Nigeria adopted the dual recognition of ‘barrister’ and ‘solicitor’ from England, however in Nigeria the entitlement to practice as a legal practitioner is fused and all practitioners, upon call to bar, are entitled to practice as both barristers and solicitors. Thus, the dichotomy between barrister and solicitor in Nigeria is blurred as all lawyers can act in both capacities.

The Legal Practitioners Act, also makes provision for the conferment of an honorific titled to distinguished legal practitioners in Nigeria. Section 5(1) of the Act provides that subject to subsection 2 of this section, the Legal Practitioners’ Privileges Committee established under subsection (3) of this section may by instrument confer on a legal practitioner the rank of Senior Advocate of Nigeria. Subsection (2) provides that a person shall not be conferred with the rank of Senior Advocate of Nigeria unless he has been qualified to practice as a legal practitioner in Nigeria for not less than ten years and has achieved distinction in the legal profession in such manner as the Committee may, from time to time, determine.

Indeed, the Legal Practitioners Act on its own had not imposed any restriction on non-litigation lawyers as it only requires number of years in practice and distinction in the legal profession (which we earlier submitted to be multifaceted and comprising both barristers and solicitors). However, one challenge which is imposed by the Legal Practitioners Act is that the determination of such legal distinction is to be determined in such manner as the Legal Practitioners Privileges Committee may from time to time set. In other words, it is the Legal Practitioners Privileges Committee that determines what amounts to legal distinction in the legal profession, and as we shall now see, the Committee has given that interpretation a restriction which permits it to exclude lawyers who are non-litigators. This is a sharp contrast with what now obtains in the conferment of a similar honorific title in England, where the title of Queens Counsel (QC) has since been expanded to permit its conferment on non-litigators involved only as solicitor-advocates.

It is incisive to add here that Section 5 (3) defines the constitution of the Legal Practitioners Privileges Committee to consist of: (a) the Chief Justice of Nigeria (b) the Attorney General of the Federation (c) One Justice of the Supreme Court; (d) the President of the Court of Appeal; (e) five Chief Judges of the States; (f) the Chief Judge of the Federal High Court; and (g) five legal practitioners who are Senior Advocates of Nigeria. Indeed, this very composition of the Committee which makes the rules for the determination of ‘legal distinction in the legal profession’ for the purpose of conferment of the rank of SAN is the first challenge for non-litigators. In my opinion, the constitution of the Committee largely reinforces a bias in favour of court room litigation as the basis for legal distinction, since all members are either Senior Advocates who have already been established as litigators, or judicial officers who are only likely to be aware of the competence of litigators who appear before them. This bias has been reflected in the Guidelines for the Conferment of the rank of SAN 2017, made by the Committee and approved by the Body of Benchers.

GUIDELINES FOR THE CONFERMENT OF THE RANK OF SAN AND THE EXCLUSION OF NON-LITIGATORS

The extant guidelines for the Conferment of the rank of SAN, 2017 provides the criteria for eligibility for conferment of the rank of SAN in Nigeria. Paragraph 1 provides that the Award of the rank of Senior Advocate of Nigeria (SAN) is a privilege awarded as a mark of excellence to members of the legal profession who— (a) are in full time legal practice ; (b) have distinguished themselves as advocates ; and (c) have made significant contribution to the development of the legal profession in Nigeria. While the section does not interpret the meaning of ‘advocates’ for the purpose, however a candidate who is applying for the award of SAN (i.e. non-academic SAN) is expected to have conducted to full conclusion 20 cases at the High Court or Superior Court of Record, 5 cases at the Court of Appeal, and 4 cases at the Supreme Court or 3 Supreme Court cases if the candidate (applicant) conducted the cases from the High Court to the Supreme Court. All these cases must have been conducted to full conclusion within a period of 10 years immediately preceding the date of application (See. Paragraph 14 (1) & (5) of the Guidelines). In fact, Paragraph 14(1) of the Guidelines provides that the applicant shall attach a certified true copy of all the judgments in the above cases, and a detailed table of appearances showing the pages in which his participation in the cases was recorded on the certified true copies of the record of trial proceedings. Hence, substantial participation as counsel in the conduct of the cases is vital in order to qualify for the rank of SAN.

According to I.L.I Ikimi,

“…there is no provision for cases or matters resolved outside the confines of courtroom litigation. Yet litigation is not the only means of dispute resolution recognized in Nigeria. Other dispute resolution mechanisms include inter alia negotiation, mediation, arbitration and conciliation….”

Therefore, the Guidelines seem essentially discriminatory to the large number of excellent non-litigators such as lawyers who specialize strictly as Corporate advisers, Arbitrators, Tax lawyers, Energy Law Experts, Fintech Lawyers and a plethora of other outstanding legal specialists who are shut out of the privilege of what Chief George Uwechue (SAN) described as the ‘ultimate achievement for all of us at the bar’, simply because their practice is not litigation focused.

SHOULD SENIOR ADVOCATE RANK NOT BE FOR ONLY ADVOCATES?

One major argument for the maintenance of the status quo and restriction of the rank of SAN to lawyers in litigation is that the rank is, and should be, meant for lawyers in litigation who advocate before courts and tribunals. These opinions consider that the essence of the rank is to recognize excellent court room advocates who can serve as mentors to junior lawyers. Hence, the requirements that a SAN must appear with a junior whenever he makes appearance in court.

However, the rationality of this argument proceeds on the misconception that advocacy is restricted to courtroom advocacy. Indeed, legal practitioners advocate in court rooms, in ADR, in negotiations and even in written legal opinions. In England, where Nigeria inherited its legal system, the honorific title for lawyers (i.e. the Queens Counsel) have been expanded to recognize both oral and written advocacy. Item 3 of the Queen’s Counsel Competition for England and Wales 2020 Guidance for Applicants clearly notes that:

“For the purposes of the QC appointment scheme, advocacy may be written or oral but must relate to developing and advancing a client’s case to secure the best outcome for the client in a dispute. That outcome may, for example, be secured through arbitration, court determination or a settlement agreement”.

Even though there remains argument that some restriction is still created for solicitor-advocates in the process, the English system has moved to recognize distinction in the diversity of practice and in 2019 four solicitor-advocates were appointed as QC.

Another factor which debunks this argument is the conferment of the award to Academics as provided in paragraph 22 of the Guidelines. It is difficult to justify that the award is meant for advocates yet is being conferred on academics who have never advocated the cause of any client. The only logic behind this may be the fact that their contribution to the legal jurisprudence enriches the knowledge of all, including the ‘Advocates’, and they should therefore be recognized. However, if academic titles like Professorship is not given to Advocates who argue cases and grow the understanding of the legal jurisprudence for the Academics, then why should Advocates title be given to Academics who have never been involved in advocacy? One plausible answer is that the Academics are involved in written advocacy and are therefore deemed to be advocates. If this answer is acceptable then there is no rational basis for the rank of SAN not to be also conferred on Corporate practitioners, Arbitrators, Negotiators and Legal experts, who without advocating within the walls of a court room, continue to expand our knowledge of law by the matters they handle on behalf of their clients.

It is also important to add that Section 5 (8) of the Legal Practitioners Act had hitherto shared the sentiments of these arguments by requiring that Senior Advocates should be confined to practicing as barristers (i.e. courtroom trial advocacy), except the rules of SANship provides otherwise, and provided it shall not preclude their continuation of legal practice with non-SANs. The section provides that:

‘Until the first rules made in pursuance of subsection (7) of this section come into force, a Senior Advocate of Nigeria shall not be entitled to practice as a member of the legal profession otherwise than as a barrister, but nothing in this subsection shall be construed as precluding Senior Advocate of Nigeria from entering into, or continuing in partnership with a legal practitioner who is not a Senior Advocate of Nigeria’.

The practicality of the restriction was to ensure that Senior Advocates are restricted to court room advocacy where juniors can learn from their wealth of knowledge. Hence Senior Advocates where not intended to continue as solicitors. Unsurprisingly, the Committee has since amended this under the Senior Advocates of Nigeria (Privileges and Functions) Rules Cap. 207 LFN 1990 which provide in Rule 5 that a Senior Advocate of Nigeria shall not be engaged or agree to engage in drafting any instrument where the appropriate or prescribed fee is less than N400. Rule 6 provides that ‘instrument’ includes any agreement, will, lease, mortgage, charge, power of attorney, settlement or any other document whatsoever having or intended to have legal consequences or effect.

Hence, while the Senior Advocates of Nigeria (Privileges and Functions) Rules Cap. 207 LFN 1990 permits Senior Advocates to act as solicitors and act in capacity outside litigation, the Guidelines for the Conferment of the rank of SAN only allows litigation lawyers and Academics to be given the rank. Thus, running against the notion that Senior Advocate rank is meant to promote advocacy in courtroom, and therefore against the argument for the maintenance of the discriminatory status quo

IN CONCLUSION

The award of the rank of Senior Advocate of Nigeria (SAN) is a privilege that is awarded as a mark of excellence to members of the legal profession who are in full time legal practice, who have distinguished themselves as advocates and have made significant contribution to the development of the legal profession in Nigeria. However, it is my opinion that the notion of advocacy should be given a wider interpretation than what currently obtains in Nigeria. In England where we inherited most of our jurisprudence, the honorific rank of QC has been expanded to include solicitor-advocates and advocacy has been considered beyond courtroom litigation. Nigeria’s continued rules which permit only litigation lawyers and academics to access the high rank has outlived its usefulness and is not in line with the modern recognition of the multi-faceted dimension of law practice.

This is a clarion call that the SAN Conferment Guidelines and Privileges Rules should be amended to permit the conferment of the significant amount of excellent lawyers in Nigeria who are non-litigators as they contribute immensely to our understanding of law and the building of the dynamic crop of lawyers who are the future of the legal profession. In the alternative, the rank of SAN should be restricted to litigation lawyers and upon conferment, such lawyers should be excluded from acting as solicitors. A similar award of the rank of Senior Solicitor of Nigeria (SSN) should also be created to reward the industry of excellent lawyers who are not litigators. This route may be more tedious but would ensure fairness in the conferment of honorific titles in our truly dynamic legal profession.

Oliver Omoredia, Email: [email protected] Tel: 08100193573