The Legal Profession and the challenge of

transformation and modernity

There is a deep reservoir of distrust from the
community, this requires a shift in not only
regulation but prevention of unethical behaviour.
The most important work of lawyers is problem
solving.
Lawyering is problem solving, this means perceiving
that the world we would like varies from the
world as it is and trying to move the world in the
desired direction. (Gerald Lopez, Lay Lawyering.
(1984 UCLA law review 1)
Who is a lawyer?
The ABA's Professionalism Committee has recently
in 1996 defined a professional lawyer as
"an expert in law pursuing a learned a rt in service
to clients and in the spirit of public service; and
engaging in these pursuits as part of a common
calling to promote justice and public good." 3
The ABA committee has further identified six
essential characteristics of the professional lawyer
as
 Learned knowledge,
 skill in applying the applicable law to the factual
context,
 thoroughness of preparation,
 practical and prudential wisdom,
 ethical conduct and integrity, and
 dedication to justice and the public g ood.
A lawyer as a member of the legal profession is:
• a representative of client - performs different
functions
• An officer of the legal system
• A public citizen having special responsibility for
the quality of justice.
• As advocate, he zealously asserts the client’s
position under the rules of adversary system
• As negotiator he seeks a result advantageous to
the client but consistent with the requirements
of honest dealings
• As an evaluator he acts by examining a client’s
affairs and reporting about them to the client.
• AS advisor he provides the client with an
informed understanding of the client’s legal
 rights and obligations and explain their practical
implications.
The New Lawyering now is
• Client centered rather than directive. Under this
new dispensation the autonomy of the client is
seen as of prime importance.
So the lawyers role here is:
• Facilitative
• Collaborative
• Evaluative
• Generating legal opinion for the client
• Rather than focusing on adversarial solutions to
the problem, the new lawyer will look to a
range of problem solving methods including
alternative dispute resolution options.
• He is a creative problem solver
• Empathises with the client
• Is conscious of the client’s needs
• Displays fidelity to the pursuits of a solution to
the client’s problem rather than concern to win
at all costs.

How do you see Lawyering? Is it a profession or

business? (Discussion/ debate)
Professionals are workers who are engaged in an
activity to earn a living.
Professionals like other workers are concerned
about the size and the security of their livelihood.
As a profession;
• Members exercise special skills not held by the
general public, based on organized learning,
imparted systematically by an institution
• Members usually enjoy some form of exclusive
right to provide their services to the public for
reward
• The profession avows obligations of service to
the community, and the community accepts
such obligations constrain their pursuit of self
interest
• Members are permitted , and actively pursue a
substantial degree of self regulations.
• There is tendency for members of the legal
profession to use their specialised knowledge
and skills to advance the good of the
community in preference to their own self
interest – this a contract between the
profession and the public.
 • According to L. Newton:

Perceiving a social need, and the professions

competence to handle it, the society negotiates a
deal with the profession: the society will confer
the benefits and privileges of a legal monopoly
upon the group in return for a promise of public
service, i.e a promise to carry on professional
practice in accordance with high standards of
performance, for the public good.

Business
• Aggressive billable hours
• Intense competition that is evident nowadays
which can shift focus from measured
professionalism to outright commercialisation
• Pursuit of commercial success – has always
been around
• Not service oriented but business
• Social justice and public service are the least of
their worries, social values are seen as
unrealistic goals.
Compare.
• A profession has an ethical dimension and
values justice, truth, and fairness.
• The market recognizes self-interest and self-
interest alone
• The operation of a market gives absolute
priority to a client’s interest
• A profession gives those interests substantial
weight, but it’s not an absolute weight.

Business goals have been blamed for making

modern day lawyers pressurised and feeling
insecure.
• It is now common to see practitioners
particularly, young wigs defecting from one firm
to another, and in some cases even ‘the
defection of whole departments or groups.
• Of particular concern is the claim that in many
cases, lawyer stress and dissatisfaction result in
high rates of mental illness, particularly
depression, addiction and substance abuse
among lawyers.
Commercialized professionalism positions the
provision of legal services in the market with other
providers.
This may whittle down a profession’s values,
historical traditions and social justice lawyering.

New Face of Legal Profession

 Increased competition both within and outside
the legal profession. This is as a result of
pressure from commercialization, this is
changing the way law is practiced.
 The change and other factors like introduction
of new technologies and marketing practices
have caused legal practices to prioritise
managerial, budgetary and entrepreneurial
skills.

Lawyers have overtime demonstrated a decline in

altruism - Shift from Public Good to Job Well or
expertly done for the paying client
(Commercialised Professionalism)
Altruism – Unselfish regard for or devotion to the
welfare of others.
charitable acts
ETHICS & VALUES.
There is demand for values from
• The community
• The legal profession regulators
• Statutory inquiries
That lawyers should not only be skilled but also
ethical in practice.
Nowadays lawyers don’t command respect like the
old generations.

WHAT IS ETHIC AND WHAT ARE THE VALUES OF THE

LEGAL PROFESSION.

The American Bar Association section of legal

education and admissions in 1992 issued its report
of the “task force on law school and the profession”
in 1992.
The report titled Narrowing the Gap is also known
as the MacCrate Report.
• The report listed 10 lawyering skills.
Problem solving
Legal Analysis
Legal research
Factual investigation
Communication
Practice management
Client counseling
Negotiation
Litigation and ADR
Professional Ethics

The report also identified four values that are

important to legal practice. These are:
• provision of competent representation;
• striving to promote justice, fairness, and
morality;
• striving to improve the profession; and
• professional self-development
Regulation and Discipline of lawyers
As a member of the Noble profession, a lawyer is a
noble, privileged and accountable person, his
conducts are role models for the society. His
conducts are therefore constantly regulated by the
society and the profession. Generally, lawyers are
subject to rules of ethics by virtue of their
admission to the Bar in a particular jurisdiction.
In addition, rules of civil procedure, rules of
appellate procedures, the Constitution and local
rules of court may impose ethical and professional
ob ligations on lawyers.
The Rules of professional Conduct for lawyers 2007
and other ethic regulating laws are aspirational and
represent the objectives toward which every
member of the profession should strive.
LAIBILITY OF LAWYERS AS OFFICERS OF THE COURT
• A lawyer is regarded first as an officer in the
temple of justice before being an advocate
representing his client.
 • The importance of the duty of the Lawyer as an
officer of the court is made clearer by the fact that
it is the very first rule in the Rules of Professional
Conduct in the Legal Profession in Nigeria. • Rule 1
of the RPC provides for the duty of the Lawyer to
the Court.
• Rule 4 of the RPC goes further to make specific
provisions on candour and fairness by counsel.
• The RPC goes further to impose on lawyers,
during the conduct of criminal cases, certain duties
to ensure that they uphold the cause of justice as
officers of the court.
• All the above stipulated duties are expected to be
observed by a Counsel as an officer of the court and
a minister in the temple of justice, every time he
has a case before the court. Failure to observe
these duties makes the lawyer liable to be
prosecuted before the Legal Practitioners’
Disciplinary Committee (hereinafter referred to as
the LPDC) set up under the LPA.
• The prosecution before the LPDC is different from
the liability to face the penalties that attach to
contempt of court.
RULES GOVERNING THE FIDUCIARY OBLIGATION
OF LAWYERS
• The Rules of Professional Conduct contains
provisions that impose fiduciary obligations on a
lawyer with respect to his relationship to his client.
• A lawyer shall not do any act whereby for his
personal benefit or gain, he abuses or takes
advantage of the confidence reposed in him by his
client.
• . A Legal Practitioner should not buy his client's
property as well as act as solicitor in the case.
• A legal practitioner should accept no
compensations, commission, rebates or other
advantages from a person against whom he has
been retained without the knowledge and consent
of his client after full disclosure.
• A solicitor has absolutely no right to convert the
client's property in his possession to his personal
use. He can only do whatever is covered by his
instructions.
• A legal practitioner must fully disclose to his
client, the compensation he has obtained for or on
account of the brief. He must also disburse such
money only on the instructions of his client.

Criticism Against the legal profession on ethics

Across the globe there has been deafening criticism
of the conducts and ignoble roles of the members
of the legal profession. From the water gate scandal
to the ongoing invasion of Kuwait by Russia, lawyers
have been accused of playing ignoble roles.
At the international stage, legal practitioners have
become object of high – level reproach. The
profession has been accused of ethically
questionable activities.
These attacks follow existing and sustained charges
levied against the profession in relation to
perceived facilitation of illicit financial activity,
enabling climate change and frustrating the
achievement of the United Nation’s sustainable
Development Goals.
In June this year, the International Bar Association
announced that it has embarked on a project to
examine the professional role of lawyers as ‘ethical
gatekeepers within wider society and to help clarify
the ethical responsibilities and obligations of
lawyers when providing legal services’.
According to a one time IBA President, Sternford
Moyo, the greatest challenge facing legal profession
today is how to respond to the ethical challenges
and criticisms that lawyers face in relation to our
profession’s core principles and the provision of
legal services.’.
While the IBA has dedicated resources to defending
the core principles of the legal profession through
comprehensive international response, The IBA
president has this to say:
If nothing is done, there is a real danger that the
vital importance of these principles will be eroded
and gradually forgotten in the eyes of wider society.
This would have disastrous consequences for the
future availability of independent legal advice, fair
legal systems, and access to justice for citizens
around the world.’
Professional misconducts are behaviours which is
outside the bound of what is considered acceptable
or worthy of its membership by the governing body
or council of the profession.
Professional misconduct refers to disgraceful or
dishonourable conduct not befitting a lawyer.
The Legal Practitioners Act has clear provisions on
when a disciplinary action may be commenced
against a member of the legal profession. According
to Osita Ogbu, any breach of professional conduct
could be held to constitute infamous conduct in a
professional respect. He is equally of the opinion
that the Disciplinary committee may find a person
guilty of unprofessional conduct on the basis of
conduct that has not been specifically mentioned by
the rules of professional conduct if such conduct
can reasonably be expected to affect the fitness of
person to practice.
The following instances are listed under Section 11
of the Act:
• Where a person whose name is on the roll
judged by the disciplinary committee to be guilty of
infamous conduct
• Where a legal practitioner is convicted by any
court with criminal jurisdiction in Nigeria of an
offence which is incompatible with the status of a
legal practitioner
• Where the Disciplinary Committee is satisfied
that the name of any person has been fraudulently
enrolled. – for instance, through misrepresentation
of facts in respect of conditions that must be
fulfilled to be called to the Bar.
• Where a legal practitioner is judged by the
Disciplinary Committee to be guilty of misconduct
not amounting to infamous conduct but which in
the opinion of the Disciplinary Committee is
incompatible with the status of a legal practitioner.
In Nigeria the sanctions for professional misconduct
are admonition, suspension and striking out of
names from the roll.

SANCTION FOR BREACH OF PROFESSIONAL

OBLIGATIONS
• By virtue of Section 11 of the Legal Practitioners
Act, a breach that amounts to misconduct attracts
disciplina ry procedure by the Legal Practitioners
Disciplinary Committee, which is an organ of the
Body of Benchers, and a finding of guilt may lead to
any of the following:
1.Striking out the person’s name off the roll or;
2.Suspending the practitioner from practice by
ordering him not to engage in practice as a legal
practitioner for such period as may be specified in
the direction; or
3.Admonish the practitioner, and any such direction
may, where appropriate, include a direction
requiring the refund of moneys paid or the
handing over of documents or any other thing as
the circumstances of the case may require.

Gate keepers of Professional Ethics

The term gatekeeper may be defined as the liability
imposed on parties who are able to disrupt
misconducts by withholding their cooperation from
wrong doers. Certain groups have been identified as
gatekeepers in terms of upholding the standards
and conducts that are expected of legal
practitioners. Some of these are discussed below.

The Court.
The court in Nigeria and different jurisdictions have
acted as gatekeepers of the ethics of the legal
profession in different ways and under different
circumstance. Some of these are discussed below.
Client’s money
In Eke Umazi Ndukwe v Legal Practitioner’s
Disciplinary Committee & Anor. the legal
practitioner was suspended for one year for
collecting client’s money and failing to deliver it to
the client despite her demands. The appeal by the
appellant to the Supreme Court was dismissed.
AKINGBOYE v Alao 1873 W.S. C. A (legal practitioner
with holding money due to his client)
A legal practitioner, placed in fiduciary position as
the appellant was, should be expected to behave
with transparent honesty. The action of this legal
practitioner would appear to be in fraud of his client
and we are surprised that he did not take the
opportunity allowed him by the solicitor acting on
behalf of the Respondent to settle the issues before
it went to court. It is the majority view that a matter
like this should be brought to the notice of the Legal
Practitioners’ Disciplinary Committee for whatever
action they may deem necessary a legal
practitioner.
Trustee acting as solicitor
Wintle v Nye
The solicitor was found guilty and suspended from
legal practice for 3 years where he was appointed
as executor of a will and a firm in which he was a
partner was engaged as legal practitioner to the
estate. The position of the court is that a solicitor
cannot receive renumeration for transacting
business on behalf of a trust, and if he wants to
benefit there must be a charging clause in the
instrument.
Inelegant and Poor writing style
The courts have frowned at poor writing styles
which requires judges to waste time deciphering
the document.
Lawyers who write unprofessional documents may
incur bar discipline or financial loss and also risks
losing credibility with the very judge who rules over
their cases. Sloppy research or Warped advocacy
tactics may lead a lawyer to omit an important case.
According to Daniel Webster, the Power of a clear
statement is the great power at the bar. Clear
writing is also a professional obligation because
both clients and the court rely on the lawyer’s
writing to clarify the issues. In Catellier v Depco Inc
a US case the brief also included personal attacks,
violated court rules on such matters as the content
of the statement of the case, page length and
typeface and failed to pinpoint citations. The court
therefore assessed attorney’s fees against the
lawyer personally.

The Bar and the Legal Practitioners Disciplinary

Committee and others
Once a complaint is made by an individual against a
lawyer, the complaint is juxtaposed with the rules
to see of it amounts to a misconduct, in which case,
the lawyer will be brought before the Legal
Practitioners’ Disciplinary Committee.
The Disciplinary Committee of the Bar in different
jurisdictions upon proven allegation against a legal
practitioner is seized of power to recommend the
removal of the name of a practitioner. The power of
the Disciplinary Committee is however subject to
the observance of the rule of Natural Justice - the
Supreme Court in LPDC v Fawehinmi
The name of a practitioner will be removed from
the Roll where the Act or omission is an infamous
Act which in the opinion of the Legal Practitioners
Disciplinary Committee is such that will bring the
Legal profession into disrepute.
• In NBA v Kayode Alabi the legal practitioner
recovered the sum of 2.3 M for the client but
refused to remit it to his client and willfully
converted the money to his own use.
• Prominent Ontario lawyer James Morton was
disbarred for bigamy, fraud and forging divorce
papers. A panel of the Law society found him guilty
and revoked his licence to practice law after fining
him 4500 dollars.
• Christopher Giomo’s licence was revoked in
Ontario more than 5 years after some investors
found out they had lost millions they collectively
invested in syndicated mortgages. The lawyer acted
on behalf of 84 clients who invested more than
7.7m dollars on real estate projects with a company
that was found to be controlled by a convicted
fraudster. The syndicated mortgage was found to
be of high risk because the agreements provided no
security for client’s investment.
The Bar and its members act as gatekeepers in the
appointment of judges and in reporting corrupt or
lazy judicial officers. The usual practice is for the Bar
through its local or national Branch to write a
petition to the Judicial service commission or
committee at the state level reporting the
improprieties of the affected judicial officer. Its on
note that many judicial officers have been sacked or
suspended on the account of this measure by the
Bar. While many have lost the opportunity of being
appointed to the Bench.
The Civil Societies
To protect the rights of the people and the public a
vigilant civil society is essential as a watch dog in
the justice sector, particularly in identifying erring
lawyers.