The President of the Nigerian Bar Association, Mr. A.B. Mahmoud (SAN), at the beginning of the year inaugurated the NBA Legal Profession Regulation Review Committee charged with the task of tackling issues within the regulatory structure of the profession and proffering solutions to these issues. A draft bill based on the report of the committee has recently surfaced and will soon be forwarded to the National Assembly for its consideration and passage into law. The draft bill, if passed into law, will significantly alter the current state of the legal profession in Nigeria and will hopefully address many of the issues that have hindered the profession from reaching the loftiest of standards.
The long title of the bill is “A Bill for an Act to repeal the Legal Practitioners Act Cap C11 LFN 2004 and all amendments thereto; Legal Education (Consolidation etc,) Act Cap. L10 LFN 2004 and enact the Legal Profession Regulation Act which shall regulate the legal profession”. The short title reads “The Legal Profession Regulation Bill”. The draft bill is 120 pages long, divided into five parts and constitutes 108 sections. The draft bill also contains 2 schedules and other subsidiary legislation, rules and orders.
Part 1 & 2 – Regulatory Objectives & Professional Principles and Legal Professional Regulation Council of Nigeria.
Part 1 of the draft bill deals with the regulatory objectives of the draft bill, i.e., the aim or goal(s) the bill seeks to achieve. Nine of such objectives are listed under section 1 of the draft bill. Part 1 also deals with professional principles which every legal practitioner must adhere to, such as upholding the rule of law, acting with independence and integrity and keeping the affairs of a client confidential etc. These principles are not novel to the current regulatory structure of the legal profession in Nigeria and can be found in the Rules of Professional Conduct for Legal Practitioners 2007.
Part 2 of the draft bill provides for the establishment of the Legal Regulatory Council of Nigeria (LRCN), which shall be the apex regulator of the legal profession in Nigeria. Part 2 also provides for the functions, composition, committees and other council related matters. The functions/powers to be performed by the LRCN as proposed by the draft bill are currently being performed by a number of bodies in the legal profession. Section 3(2)(v) confers on the LRCN the power to issue Call to Bar certificates which under the Legal Practitioners Act is a function being performed by the Body of Benchers – Section 4(4) LPA Cap C11 LFN 2004. Also, the General Council of the Bar or Bar Council as established by Section 1 of the LPA has the function of making and revising the rules of professional conduct. Under the draft bill, this power has now been transferred to the LRCN. Section 3(2) of the draft bill consolidates all the functions that are currently being performed by a number of bodies under the LRCN which is a step in the right direction.
Section 4 of the proposed draft bill provides mainly for the composition of the LRCN including the qualifying criteria for members of the LRCN, the tenure of each member and the required quorum (one-third) expected to form a meeting of the council. Section 4(10) which provides for the funding of the LRCN states that the LRCN shall be funded by 30% of practicing fees paid by legal practitioners, licensing fees charged for licensing law firms, gifts & donations or grants, etc.
Section 8 provides for the establishment of a secretariat of the council, which shall be headed by a Chief Executive Officer who shall direct the administrative and secretarial functions of the Council through the Council Secretariat.
Section 9 provides for 11 standing committees to be established under the LRCN and further states that the LRCN shall have the power to create as many committees as required on an ad-hoc basis to carry out certain responsibilities as may be designated by the council.
Body of Benchers
The Body of Benchers has become a committee under the LRCN whereas under the LPA it was a body corporate with perpetual succession and a common seal. Furthermore, the constitution of the body of benchers as proposed in the draft bill is significantly different from the current composition under the LPA. Another significant difference is the abolishment of the distinction of life bencher. However, existing life benchers are to continue to hold such position. Also, the draft bill does not make provision for appointment as honorary members of the body of benchers. It is also important to note that the main function of the Body of Benchers, which is the formal call to bar of persons seeking to become legal practitioners, is still intact.
Professional Conduct Committee
Section 12 of the draft bill establishes the Professional Conduct Committee, which has the responsibility of determining cases of professional misconduct of legal practitioners. Under the LPA, the Legal Practitioners Disciplinary Committee is charged with this same responsibility. The composition of the Professional Conduct Committee under the draft bill is vastly different from the composition of the disciplinary committee under the LPA.
Remuneration and Welfare Committee
Section 14 of the draft bill establishes this committee. Under the LPA, the Legal Practitioners Remuneration Committee is established under section 15. The Remuneration Committee as it is now is charged with the responsibility of regulating the charges of legal practitioners with regard to clients and transactions. However, a look at the draft bill would reveal that the Remuneration Committee under the draft bill has broader responsibilities as compared to the committee under the LPA. In addition to regulating the charges/remuneration of legal practitioners, the committee under the draft bill also has the responsibility of determining the minimum remuneration of young lawyers in private law firms and advising the bar on pension and insurance issues amongst other issues. As with the other committees, the constitution is different from the committee under the LPA.
Legal Aid and Pro Bono Committee
Section 15(1) establishes this committee and sets out its responsibilities thereafter. Subsections 2 & 3 further stipulate that the composition of the committee shall be 30 and that appointment to the committee shall be election based. With regard to this committee, it is important to note that under the current legal profession regulatory framework there already exists, a Legal Aid Council established by the Legal Aid Act. A comparative analysis of the Legal Aid Act and Section 15(1) of the draft bill on the responsibilities of the both bodies is subject to different interpretation. One possible interpretation is that the responsibilities of the committee and the Legal Aid Council are one and the same, which would mean that the Legal Aid and Pro Bono Committee proposed under the draft bill is seeking to replace the Legal Aid Council. However, this draft bill seeks only to repeal the LPA and the Legal Education Act. The Legal Aid Council is established under the Legal Aid Act which is not subject to the draft bill. Another possible interpretation is that the committee proposed by the draft bill will render supervisory or support functions to the Legal Aid Council. Whatever the case may be, it is important that the relationship between the two bodies is clarified to avoid unnecessary confusion going forward.
Education and Training Committee
Section 16(1) establishes this committee and sets out its responsibilities thereafter. This committee is concerned with the education, training and continuous professional development of legal practitioners. Aspirants to the bar are not subject to the jurisdiction of this committee. The Nigeria Bar Association currently operates the Continuous Professional Development (CPD) Programme, which is recognised in the draft bill as Section 16(1)(iii), which stipulates that the committee shall liaise with the Nigerian Bar Association in conducting continuous legal education and professional development training for legal practitioners.
Section 20(1) establishes the “Privileges Committee” which shall be responsible for “recommending standard for recognition and awards of Senior Advocates of Nigeria and certified specialist in specialised areas of legal practice” – Section 20(4). The privileges committee under the draft bill has the same functions as the Legal Practitioners Privileges Committee (LPPC) under the LPA with a new responsibility. The draft bill has proposed the introduction of “certified specialist in specialised areas of legal practice” which is non-existent under the LPA. The privileges committee under the draft bill shall be responsible for the recognition and award of “certified specialist” in specialised areas of legal practice. Just like the award of Senior Advocate of Nigeria (SAN), any legal practitioner who wishes to be certified a specialist in a particular area of legal practice must not be less than 10 years post call and must have garnered sufficient experience in the area of law he/she wishes to be certified.
Law Reform Research Committee
Section 21 of the draft bill establishes this committee, which has as its main function, the proposal and development of law reform in Nigeria. The remaining provisions of the section set out the functions, constitution and appointment of persons in the committee. With regard to this section of the draft bill, it should be noted that there already exists the Nigeria Law Reform Commission (NLRC) established by the Nigeria Law Reform Commission Act 1979. However, the NLRC does not constitute part of the legal profession regulatory framework and is a stand-alone body established for the purpose of reviewing all federal laws with a view to making necessary reforms and developments where necessary. Given the fact that the committee and the NLRC have largely similar functions, it is highly likely that a working relationship will develop between these two institutions wherein the committee could make recommendations to the commission on law reform.
Part III – Council of Legal Education
Sections 23 – 58 of the draft bill deals with the Council of Legal Education and all related matters. Part III of the draft bill contains more detailed provisions regulating the CLE as opposed to the Legal Education Act. For example, provisions as to tenure of office, vacation of office, quorum, amongst others which are non-existent under the Legal Education (Consolidation) Act are proposed under the draft bill. However, the most noteworthy difference between the draft bill and the Legal Education Act is the independence of the CLE. Under the Legal Education (Consolidation) Act, the Minister for Justice/Attorney General had the power to give directives of a general character to the CLE and it was the duty of the council to comply with any such directives – Section 4. This section gave the Minister very broad discretionary powers and definitely curtails the independence of the council. Under the draft bill, this power has been removed. Specifically, Section 34 (Independence of the Council) is to the effect that the council shall not be subject to the control of any person or authority.
Part IV – Nigeria Law School
Sections 59 – 81 of the draft bill contain provisions regulating the Nigeria Law School. The LPA and Legal Education (Consolidation) Act do not currently regulate the operations and procedures of the Nigeria Law School. Part IV contains provisions stating the functions, structure, management and constitution of the Nigeria Law School.
Part V – Other Relevant Provisions
Part V covers other provisions of the bill that regulate the legal profession. Some of the noteworthy provisions are as follows:
Section 85 provides for the issuance of practice licence and payment of practicing fees. This incorporates Rule 12 of the Rules of Professional Conduct 2007 into the draft bill. The criteria for issuing practice licence to any legal practitioner (practicing certificate under the RPC) are the payment of the annual practicing fees and it shall be the responsibility of the LRCN to issue and renew such licences at prescribed intervals.
Section 86 of the draft bill introduces Pupilage and states that “every person called to the Nigerian Bar shall undergo a mandatory pupilage for two (2) years in the office of an experienced legal practitioner in active practice or a law firm with the requisite facilities to give such training as required during the pupilage period”. The issue of pupilage has one that been debated extensively for a while in the Nigerian Legal Profession. The draft bill seeks to introduce pupilage into the profession, which will mirror the practice in the United Kingdom.
Section 87 introduces and establishes the Legal Practitioners Fidelity Fund which shall be responsible for compensating persons who suffer pecuniary loss due to defaults by a legal practitioner or a law firm. Subsection 2 provides that every legal practitioner must make an annual contribution to the fund and shall be issued certificate yearly in respect thereof.
Another important provision in the draft bill is Section 91, which makes provisions regarding legal practice by foreign lawyers. Section 91 makes it unlawful for foreign lawyers to practice law in Nigeria and lists a number of prohibited actions that would be unlawful under the draft bill.
UK Legal Profession
Historically, the legal profession in Nigeria was based on the practice of English law and Jurisprudence which was imposed on the Colony of Lagos by virtue of Ordinance No 3 of 1863. In order to qualify as a legal practitioner in Nigeria, therefore, a person had to be called to the English, Scottish, or Irish Bar. Upon enrolment in Nigeria, he/she was entitled to practice as a Barrister and a Solicitor. However, Nigeria’s Independence in 1960 marked a change in the direction of the legal profession and there became a need to restructure the profession in a way that reflected Nigeria’s socio-cultural and economic needs.
The UK Legal Profession as it is now is quite different from the Nigerian Legal Profession, although we both operate the same common law system. One stark difference between the respective professions is the concept of a “Fused Legal Profession”. This is operated in the Nigeria where qualification as a legal practitioner is Nigeria entitles one to practice as a Barrister and Solicitor. However, in the UK the profession is separated and has separate qualification routes to becoming a Barrister or Solicitor. There are also separate regulatory bodies that regulate the dual nature of the UK Legal Profession. The Solicitors Regulatory Authority (SRA) regulates the practice of Solicitors while the General Council of the Bar (Bar Council) through the independent Bar Standards Board (BSB) regulates the practice of Barristers.
A comparative review of the current UK legal regulatory structure and the proposed regulation bill shows that the proposed regulation bill adopts the regulatory structure currently employed by the Bar Council and Bar Standards Board in regulating the practice of Barristers in the UK. Both organisations manage and perform their functions through several committees, which is what has been adopted by the proposed LRCN. The Bar Council performs its functions through the following committees:
- Law Reform Committee
- Education and Training Committee
- Remuneration Committee
- Young Barristers Committee
The Bar Standards Board (BSB) performs its functions through the following committees:
- Education and Training
- Governance, Risk and Audit
- Planning, Resources and Performance
- Professional Conduct Committee
A perusal of the terms of reference under each committee and the provisions of the draft regulation bill depict that these committees perform largely the same functions as their counterparts under the draft regulation bill.
The Legal Profession Regulation Bill seeks to address many issues that have hindered the development of the legal profession in Nigeria. The bill is substantially more detailed than the current Legal Practitioner’s Act and Legal Education (Consolidation) Act and many of the provisions improve and expatiate on elements of the legal profession not addressed in the current regulatory legislations. The draft bill also introduces new elements that are currently non-existent under the current legal regulatory structure such as Sections 86, 87 and 91. Perhaps most importantly, the draft bill also seeks to get more legal practitioners involved in the management of various committees under the LRCN. Membership of most of the committees is now election based as opposed to the current structure, which is usually by appointment by a single individual or by virtue of one’s government position. If passed, the Legal Profession Regulation Bill will be a vast improvement on the current legal framework and will certainly raise the standard of the profession in Nigeria.