Topic: THE BUSINESS END OF LAW PRACTICE.
Salutations: Distinguished Chairman of our great Branch. Members of the Executive Council. All past Chairs and former members of past Executive Councils here present. My Learned Seniors. Distinguished Colleagues. Ladies and Gentlemen.
When I received your Order served on me by text message on May 21, 2021, personally served by my friend, my distinguished colleague and Chair of our great Branch, Abimbola Ojedokun Esq., my initial reaction was to write a reply and say that by the grace of God I will do everything to be here. But then I suddenly realized that what I had in my hands was actually an Order! You don't reply an Order, do you? You obey it and show up where you are commanded so to do. The only other option open to me would have been to appeal the Order. But alas there was, and still is, no court in the whole nation! So, my distinguished seniors and my colleagues, I am here in obedience to your Order!
On the 6th day of March, 2017 I was summoned before this august body on this same platform to discuss the topic: “Competency In Advocacy”. It feels like yesterday but it’s exactly 4 years and 3 months today. Wao! How time flies!
Today, kindly accept my humble invitation to us to be business-like. This paper shall be brief so that we can have time to interact in a question and answer session. Please permit me to begin by steering your imagination with this Food For Thought:
Half of your financially very successful colleagues: your seniors, your mates and your juniors; do not know half as much law as you know but they are financially more successful than you because you also do not know half as much of the business end of law practice as they know.
Law is a conservative and noble profession. The Legal Practitioner is a learned, noble, class-conscious and conservative gentleman. The practice of law in Nigeria, to be successful, is a business to be conducted primarily under the provisions of the Legal Practitioners Act Cap. L 11 Laws of the Federation of Nigeria, 2004 (the LPA) and the Rules of Professional Conduct (the RPC) made thereunder pursuant to s. 12(4).
The largest part of any sound law firm business development strategy is relationship building. Referral networks, mentorship opportunities, networking opportunities and client development are all contingent on your ability to meaningfully engage with professional colleagues and other human beings.
There is for me in this paper no better way to succinctly capture the laws that regulate the practice of law as a business in Nigeria than through the judgment of the Supreme Court in First Bank Plc. v. Maiwada 2013 5 NWLR Part 1348 page 444 at pages 507-508 where the learned law lord, Olufunlola Adekeye JSC stated:
“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 Advocates of Nigeria (Privileges and 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.”
If we practice law as a business within the confines of these statutes in addition to the funs et origo, which is the Constitution of the Federal Republic of Nigeria 1999 (the CFRN), there is no limit to how far we can grow our business, how high we can reach in the echelon of importance in the society and how legitimately wealthy we can become.
The most important key I know to a successful professional practice as a lawyer is to run your practice as a business. In business - as it was in the beginning of time, as it is today and always will be - the 5 keys to success that I know are:
(1). Character: Who you desire and ought to be in relation to who you actually are.
(2). Competence: Your abilities, your training, your skills and your drive needed to attain your set heights.
(3). Competition: Challenging yourself continually in relation to others in the same profession.
(4). Endurance: Never giving up, constantly innovating and reinventing yourself to remain relevant; and
(5). Diligence: Seeking out opportunities and giving every opportunity your all.
Please permit me to refer you to the Bible. Do not be surprised the Bible talks about business too. In the book of Proverbs Chapter 22 verse 29 the Bible says ~
“Have you seen a man diligent in his business? He shall stand before kings; he shall not stand before ordinary men.”
To successfully practice law as a business this paper submits that we must pay appropriate attention to the foregoing 5 keys and imbibe them as best we can.
Please permit me to lead this discussion using subheadings in order to fossilize each piece of thought in your noble mind.
1. Value your time.
Again, permit me to have a little recourse to the Bible in an attempt to develop this thought. The Bible says in Ecclesiastes Chapter 9 in verse 11: I returned, and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance (opportunity) happens to them all.
Time is life. Time is life in effluent state. Your time is an out flow of your life. Everything in life is measured in relation to time. Life itself is measured in time. Value your time very highly. Value your time as highly as you value your life. Place an invaluable premium on your time. Take your chances. Seize each chance with both hands. The status of our individual lives today, whether successful or otherwise, is an aggregate of how we have spent our time and how we have handled all the chances that life has offered to us in the past.
2. Train yourself and hone your skills continuously. The office of a lawyer is the office of a perpetual student. A financially successful lawyer is a lifelong student of the law; of financial economics; and of the complex dynamics of the huge theatre that is called society. You must be a lifelong student of the law to enable you to constantly be on top of the manifold sets of often complex facts together with statutory and judicial authorities to obtain judgments (Justice if you like!) for your clients. You must be a lifelong student of financial economics to enable you to constantly channel your hard-earned money into productive ventures in your law practice in order to grow continuously. You must be a lifelong student of the complex dynamics of the huge theatre that is called society to enable you to constantly know which roles to accept in the unfolding drama scenes and which roles to reject because they do not fit into what you need to attain your set heights.
You must Read. Read. And read. Every book on any subject matter whatsoever is important. The law: statutory and judicial law, economics, medicine, engineering, architecture, chemistry, politics, biology, geography, psychology, religion, diplomacy, information technology, oil, etc etc, all increase your learning and improve your earning capacity.
You just keep reading. That’s why you are called learned anyway! Your legal advice and representations in the courtroom cannot be correct unless you are current. The more you know through study, the better equipped you are as a lawyer and the better your chances of earning good fees from the quality of your legal opinion, legal advice, legal drafting and legal representation in the courtroom.
A very serious challenge of our present day as lawyers is that of fidelity to the continuing study of the law. The lack of fidelity to the law manifests itself in various forms, notably the quality of legal advice we offer to clients based on “learned ignorance”, the quality of legal correspondence we write, the quality of court processes that we file, together with our filing of frivolous claims and appeals that clog rather than advance the wheels of judicial progress. I venture to posit that this is the raison detre for what Lord Halifax 1881-1959 (former Governor General of India) intoned in his famous philosophical work Political Thoughts And Reflections:
“If the laws could speak for themselves, they would complain of the lawyers in the first place.”
You are not required or expected to know all the law. You must, however, know where to find the law at all times. The more you read the easier it is for you to know where to find the relevant law, whether statutory or judicial, whenever a set of facts are presented to you as a brief. In the famous case of Montriou v. Jeffreys 1825 C & P page 113 @ 116 James Abbot CJ. inscribed his memorable thoughts in the time-tested theory that:
“No attorney is bound to know all the law. God forbid that it should be imagined that an attorney is bound to know all the law or that an attorney should lose his fair recompense on account of an error, being such an error that a cautious man might fall into.”
The famous Alexander Pope (English poet and satirist, 1688-1744) is, however, credited with quipping in one of his many academic treatises that:
“A little learning is a dangerous thing; drink deep or taste not the Pierian spring. There shallow draughts intoxicate the brain and drinking largely sobers us again.”
In studying as a lawyer, however, we must be diverse and broad minded enough to cover a wide spectrum of fields. I believe that this line of thinking led Lord C. J. Radcliffe in his book “The Law And Its Compass” 1961 to say:
“We cannot learn law by learning law alone. If law is to be anything more than just a technique it is to be much more than law itself: a part of history, a part of economics, and sociology, a part of ethics and the philosophy of life.”
3. Place a high premium on your professional service. Some of us are not successful in the practice of law as a business because we place little or zero premium on our professional service. Law as a business is the marketing of your skills. It is the sale of a service. You are never going to have any tangible goods displayed on shelves or supermarket for sale. You are the shelf. Your learning and skills are the goods for sale. I learnt this from Chief FRA Williams SAN (of blessed memories) long ago. He refused consistently to give legal advice on television programmes and at public fora. The revered Learned Silk always insisted that legal advice would necessarily task his learning and ought to attract a professional fee. You were either ready to pay him a professional fee or you couldn’t get his legal advice.
In our hurry to flaunt our learning we often give free legal advice that deprives us of potentially lucrative briefs. The client, whether existing or potential, hardly finishes stating the facts constituting his grievance before we start giving invaluable legal advice without asking for a professional relationship or a fee. Never hurry to flaunt your credentials, achievements etc. Trust me, the potential client will run a check on you.
I don’t advise lawyers to do their best. If your learning and intellect are shallow your best will be shallow too and far less than adequate. I always advise lawyers to be the best and do the best.
Now, just imagine for a moment, God forbid though, that you had a malignant tumor in the depth of your entrails that needed surgery to restore your health. If, after a correct diagnosis of your ailment, you were presented to a medical doctor and informed in hospital that the doctor knows nothing about surgery or your type of ailment but you were assured that this ignorant doctor would do his best in that complex surgical procedure on your entrails would you submit yourself to him? The ignorant doctor’s best can just result in your death. So his best is not enough! So is the lawyer who does not do the best but his own best. His best that is rooted in ignorance may just send his client to an avoidable prison term, the hangman’s noose or the electric chair! His ignorant best may just cost his client several millions or even billions in damages if the claim is a civil one!
If you are the top notch best and you do the top notch best for your clients that means they will never get better legal service anywhere else. That means they will remain with you and that means they will pay you handsome fees!
4. Choose your clients carefully and Choose your briefs very carefully. Do not accept just anyone as client just so that you can be busy or just because they can pay you some money. The other name for “brief” is “employment”. Always interrogate yourself before accepting a client whether as a lawyer if you were going around seeking employment you would submit your curriculum vitae or application to the kind of a person before you for employment.
As for choosing or accepting briefs, I still haven’t had the opportunity to handle a celebrated brief. But I have been very careful in choosing or accepting briefs. I have ventured to handle every brief that life has offered to me and that I have accepted as if it were a celebrated brief. I have poured my all into each brief, whether litigation or non-litigation. Of course I give, not my best, but the best knowing that someday one of the owners of those briefs will bring me a celebrated brief. I urge you to do the same. Choose your briefs carefully. Give every brief you accept your all. Give every brief the best!
In accepting briefs consciously elect to not become everyone’s lawyer by accepting everyone’s brief irrespective of whatever is involved. If you elect to be everyone’s lawyer you would be so busy engaged in unproductive labour with unproductive briefs that when a truly productive and financially rewarding brief comes along you may not recognize it or you may not even be available altogether to accept it.
5. Reward and retain your clients. They are your signboards and referrals. Show keen interest in their affairs beyond their patronage of your services. Show interest in their business, their families, their relationships, etc. To a service oriented profession as ours the client is the customer. As it is the case with any other business, how you treat a client determines whether or not they will come back and whether or not they will direct others in need of legal service to you.
The numerous statutes regulating the conduct of business in our profession, particularly Rule 39 RPC, forbid advertisement of our business in the electronic or print media. Not even on a signboard erected on your business premises or any other communication channel can you post anything in the semblance of an advertisement without the inordinate risk of severe sanctions.
One of the late Gani Fawehinmi SAN’s numerous battles with the NBA remains a locus classicus on this point. In Legal Practitioners Disciplinary Committee v. Gani Fawehinmi 1985 2 NSCC 998 Gani advertised his then new book. Reference was made to his abilities and competence thus:
“A new book on Nigerian Constitutional Law titled: Nigerian Constitutional Law Report Volume One, edited by Chief Gani Fawehinmi, the famous, reputable and controversial Nigerian lawyer....”
That could easily have passed as an innocuous statement in a published magazine. The Nigerian Bar Association, however, latched on it as an advertisement of Gani’s qualities as a lawyer and pounced on the firebrand Gani to severely sanction him. Thanks to Gani’s learning and inimitable industry. He wriggled out through the courtroom.
That is why you must cherish and consciously advance person-to-person advertisement of your services and competence by satisfied clients. Reward your clients with refreshments, memorabilia, mementos etc. Sometimes they cost a great deal but they are worthwhile investments and a veritable tool for keeping the door to future financially rewarding engagements open.
6. Invest in your Practice: Office, Staff, Books, Computers, The internet, Furniture, General ambience of your office, Sanitation, Your appearance and carriage, Court apparels: your dirty or old court bags, torn case files and Robes: tattered wig, worn out or torn gown, smiling shoes, worn out collars and bibs, weather-beaten suit, etc can never prove to anybody that you are an old lawyer. They can only prove that you are a financially unsuccessful lawyer.
The point is well settled that a professional in any field or calling can never be better than the tools of his trade available to him. Clients, potential and existing, can never value you beyond what they see around you. Equip yourself with dignity. Invest consciously and deliberately on how you look, how your office looks and how your practice looks. Be dignifying even in humility.
The cheering news, which sadly we often ignore, is that our profession encourages mentorship and synergy to help us to become the best. Whatever you lack you can ask for from your colleagues. But we don’t ask because we fear that our colleagues will poach our clients. My colleagues in our Firm are here as my witnesses. Even though I pay their salaries religiously I still permit and even urge them to take their private briefs. Since their private briefs would be done in the name of our Firm I encourage them to present the briefs for joint brainstorming sessions, analysis and synergy so that the quality of work done in the name of our Firm remains the same.
The location of your office matters a great deal. It can make all the difference to your practice. If your office is in a place where there are no parking spaces for your clients’ cars then what kind of clients are you primed to serve? Trekking clients? You will also receive a trekker’s professional fees which may keep you also trekking all your life. Your office may be small, never despise your days of little beginnings, but please try to locate your office in a conducive environment. We studied factors that determine the location of industries in our O’Level economics. Those factors apply to our business too!
7. Collect your fees without litigation. This paper submits that one of the skills most needed for a lawyer to be financially successful in this our difficult clime is the skill to collect professional fees from clients without a quarrel and without recourse to litigation. Oftentimes quarrels do occur which sometimes result in litigation. The reason is easily discernible. Intellectual property into which legal service fits is intangible and still at its primary stage of development in our, regrettably primitive, economy. The average client hardly sees your professional service the same way he would see a bag of rice and pay for it.
This paper counsels that quarrels and litigation over professional fees should be avoided at all cost because our clients ought to become our friends, our referrals and our advertisement neon signboards to fetch us more briefs. If we path ways with clients through quarrels or litigation we would at best close a door to potential clients and at worst send out screaming negative advertisements against ourselves. Either of these would hurt our economic fortunes grievously.
In my humble view the suggested approach is to agree to a definite fee ab initio for the professional service required. Next, collect a down payment before engaging. Then collect a substantial part of your fees in course of rendering the service, and your balance when you finally deliver on the brief - which balance by then should be a negligible or insignificant or even dispensable part of your fees.
Sometimes in spite of our best efforts quarrels will arise and litigation may become inevitable in order to collect our professional fees. Let us briefly interrogate the question whether a lawyer has a legal right to sue for his fees. If yes, then where and how?
In Mabogunje v. Odutola, In Re: Chief Babatunde Olusola Benson (SAN) 2003 1 NWLR Part 802 page 570, the issue was a claim for N11’500’000 as professional fees accruing to our own dear Chief BOB. The question was whether the lawyer is entitled to sue for his fees. The Court of Appeal held that a Legal Practitioner can and has a right to sue for his professional fee. Whether Chief BOB ever recovered the fee, how much of it; how long it took him; and at what cost is still anyone’s guess at this point. Suffice it to agree that we have a legal right to sue for our fee.
The next huddle is Jurisdiction. This vexed issue of the proper court to approach to commence litigation also affects the lawyer’s action for his unpaid fees. Jurisdiction has a direct, if not decisive, bearing on the success of a lawyer’s claim for fees and cannot be lightly wished away. By virtue of s. 19(1) LPA, the High Court of a State where the Legal Practitioner practices or where his client carries on his principal business is vested with exclusive jurisdiction to hear disputes arising from the fees of a Legal Practitioner: See the Supreme Court decision in Oyekanmi v. NEPA 2000 15 NWLR Part 690 page 414 which inscribed this point on granite.
When all else fails and the lawyer must approach the court with a claim for his professional fee what are the conditions precedent that he must fulfill in conjunction with the general requirements laid down by the Supreme Court in the celebrated case of Madukolu v. Nkemdilim 1962 1 All NLR 581 in order to properly commence action? Section 16 LPA stipulates the mandatory conditions precedent for a Legal Practitioner to commence an action in court to recover his fees viz:
(i). He must prepare a Bill of Charges which must particularize every item of his claim;
(ii). He must serve his client with the Bill; and
(iii). He must allow a period of at least one month to lapse from the date the Bill was served: See the decision of the Court of Appeal in Guinness Plc v. Onegbedan 2012 15 NWLR Part 1322 page 31; and the Supreme Court in Savannah Bank Plc v. Opanubi 2004 15 NWLR Part 896 page 437. Do not lose sight also of the provisions of s. 17 LPA on taxation of the Bill of Charges where litigation is inevitable to recover your professional fee.
Now, let us be clear on this point. We are not contesting the Lawyer’s right to sue for his fees. It is settled that he has that unbridled and unfettered right. At least the Court of Appeal so held in BOB’s case. We are only venturing in this paper to examine the propriety thereof in the face of the viable options available and the stack realities confronting litigation in Nigeria today.
Litigants freely travel from the Customary Court to the Magistrates Court, to the High Court, to the Court of Appeal, and end up at the Supreme Court with untrammeled rights of appeal against any final decision pursuant to Sections 233(2), 241, 244(1), 245(1) and 246(1) & (2) of the Constitution of the Federal Republic of Nigeria 1999 (CFRN) even with the most frivolous of grounds of appeal or issues for determination! What is more, with effect from April 6, 2021 which is to say for the third month running now all the courts in Nigeria have been under lock and key. If a lawyer desperately needed to win his case in a Nigerian court for unpaid professional fees in order to apply the accrued fees to solve a life threatening problem you can imagine what his fate would be by now.
In Braithwaite v. Skye Bank Plc 2013 5 NWLR Part 1346 page 1 @ page 22 (By the way, this case went up to the Supreme Court and was struck out on a mere technicality). The writ of summons in this claim for professional fees was erroneously taken out and signed in the name of the Law Firm of Oloyede & Oloyede & Co. in 2005 and contrary to s. 24, LPA which defines a Legal Practitioner who can validly sign court processes. The matter came before the Supreme Court, 8 years later, in 2013. The apex court held that a writ of summons is an originating process by means of which actions are commenced. The competence of such process is a pre-requisite for a valid and litigable claim. Where that process fails to comply with the minimum requirements of the law regulating its procedure it is incompetent. The appeal was struck out. See also the Supreme Court decisions in Okafor v. Nweke 2007 10 NWLR Part 1043 page 521; First Bank Plc. v. Maiwada 2013 5 NWLR Part 1348 page 444 and JVC Ltd v. Famiyide 2020 14 NWLR Part 1744 page 334 on this statutory technicality.
The sore thumb here is that, 8 years after providing the professional service the lawyer was just about to properly commence the fight for his fees because he chose litigation over other available and probably more viable options!
The lawyer too must help his client concerning any claim for the refund of his fees from opposing parties. He must issue a receipt for every payment received. In First Bank Ltd v. Owie 1997 1 NWLR Part 484 page 744 the Court of Appeal held that a lawyer’s professional fee is not something to be proved by mere ipse dixit. This is because everybody knows that lawyers issue receipts for any money paid to them. Thus, an averment of payment of fees to a lawyer can only be proved either by tendering the receipt of payment or by calling the lawyer paid to testify as a witness.
By the statutory provisions s. 15(3)(d) LPA, and the decision of the Supreme Court in Oyekanmi v. NEPA (supra) a lawyer is entitled to make a written agreement with his client in respect of any professional business done or to be done by him for a fee. I respectfully submit that the part of legal practice where this is most needed is real estate briefs.
8. Give back to Society. Whether rightly or wrongly, it remains debatable, members of the society think that lawyers owe them a great deal in reciprocation of the honour and respect they accord to lawyers. Incidentally, I believe so too. The lawyer ought to give back in one way or another to the society. However, the lawyer must be careful here. In giving back the lawyer is supposed to be offering a helping hand. Simple philosophy teaches that any help that inordinately transfers an unbearable burden to the helper should be avoided. Don’t concern yourself with unnecessary, time wasting, complex and resourece-tasking pro bono briefs when you cannot yet feed yourself. When you have not yet reasonably stabilized financially. If a tree decides to grow large and long branches in different directions before it has anchored itself in deep roots, of course, the wind will soon blow down that tree. Never permit that to be your fate. Anchor your practice in deep and strong roots first.
In this regard I strongly recommend the group initiative of the NBA Ikorodu Branch. You can, you should, and in fact you ought to key into the numerous segments of the Annual Law Week and other periodic outings where pro bono services are offered as a team. It is, in my humble view, a good starting point and veritable tool for learning the ropes for pro bono work.
Thank you for listening. Long live NBA Ikorodu. Long live Nigeria. God bless you all.
07/06/2021.
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