Legal Professional Fees, Economic Prosperity And Social Security For Lawyers: Any Missing Link? By Yakubu Chonoko Maikyau, SAN, FCIArb (Uk)
Being a Paper presented on November 18th 2021 at the LAW WEEK of NBA Badagry Branch by Yakubu Chonoko Maikyau, SAN, FCIArb (UK), Notary Public, Fellow of the Chartered Institute of Arbitrators (UK), the Principal Partner of Y.C Maikyau & Co. (Legal Practitioners, Arbitrators and Mediators) and The Chairman of NBA, National Welfare Committee.
1. I am indeed grateful for the opportunity to share my thoughts on the above topic. My special thanks goes to the Chairman, other elected officers of the Branch and the members of the Law Week Organising Committee, for finding me worthy to speak on the topic while you enjoy your sumptuous dinner. Ordinarily, dinner is not an avenue for one to deliver long lectures or treatises but an opportunity for all and sundry to relax and make merry after an intense week of intellectual discourse.
2. However, the above topic is indeed apt and a reflection of the need for the Bar to address issues of declining professional standards and the welfare of lawyers. This is particularly key, given the current economic hardship being felt in all spheres of our economic life which has been exacerbated by the Covid-19 pandemic. Many businesses are laying off employees, there is default by individuals, businesses, and State Governments in paying salaries, Governments are borrowing to fund budgets; productive and manufacturing sector is recording losses, businesses are closing, foreign airlines are exiting the country, there is an exponential rise in the cost of goods and steady devaluation of the naira.
3. The legal profession cannot pretend to be insulated from all these factors. It is therefore pertinent to throw light on issues affecting law firms and lawyers from profitably delivering legal services to clients and managing their revenue streams, in a manner to keep the practice of law viable as a business . The organizers have aptly identified two major mechanisms that are likely to aid the economic prosperity and well-being of the average Nigerian Lawyer, that is, Legal Professional Fees and Social Security.
4. Though we belong to a noble and learned profession, we all run businesses. In fact, Robert W. Denney concluded by admitting that “Today, however, most lawyers realize that a law firm is a business. So the question for many firms—perhaps including your own—is what structure is most effective for management in a businesslike manner”. Professional Fees and Social Security for Lawyers in that respect are like Siamese twins as both are necessary for the economic prosperity of the Nigerian Lawyer.
Legal Professional Fees
5. A Lawyer worth his or her salt must indeed master the art of properly charging fees if he or she is to remain in business. This is indeed a key aspect of Law practice, that sometime is glossed over. The health of any business such as a law firm depends on the skills of its management team to raise enough revenue to keep it viable. We would all agree that the issue of establishing and enforcing a scale of charges for Legal services in Nigeria is an important subject and one that has been of immense concern to the bar.
6. It is however unfortunate that in the present-day Nigeria, Legal Practitioners have lost a significant level of respect in society because of our inability to regulate this aspect of the profession. This in turn has had a knock-on effect on the economic prosperity of our colleagues as many of them across the country are not receiving value for the services they render.
7. Admittedly, the Rules of Professional Conduct 2007 is a guide containing the way and manner a Lawyer must conduct himself in charging his fees. As such, there are actions expected of a Lawyer as well as those which are unacceptable. It also has codified in it, rules governing the emolument of a Legal practitioner, including the limitations of a Lawyer in charging a client; all of which shall be enumerated below as found in sections 48-54 of the Statute:
• All Legal Practitioners are entitled to remuneration just like any other professional who renders his services to man. However, Lawyers must be separately remunerated for each work they do and are prohibited from having a fixed salary for each case they handle.
• Legal Practitioners may accept general or special retainers. This means that a Lawyer can be retained but must not be involved in a case that will be detrimental to the interest of the client paying him
• A Lawyer is entitled to contingent fee; it is not against public policy.
• A Legal Practitioner is prohibited from bearing the expenses of litigation on behalf of his client. However, the Legal Practitioner can pay in advance as a matter of convenience but must be reimbursed subsequently.
• In charging a client, it is unlawful for a Lawyer to overcharge and even undercharge. The fact that such client can afford it shouldn’t be an avenue for exploitation. On the other hand, a client who is not financially capable of a good counsel may receive special consideration.
• A Legal Practitioner is prohibited from sharing his legal fees with anyone except with his co-counsel in a case.
• It is incongruous with the Law for a Lawyer to accept commissions, compensations, or gifts from his client’s opponent without the knowledge of his client.
8. Under the Rules of Professional Conduct, the following are the provisions of the Law regarding the determinations of Legal Fees (i) The time and labour required, the novelty and difficulty of the questions involved and the skill needed in handling the case (ii) Whether the acceptance of employment will prevent the Lawyer from making an appearance in other cases (iii) Whether the acceptance of the employment will involve the loss of other employment while employed in that case (iv) The customary charges of the Bar for similar services.(v) The amount involved in the controversy and the benefits resulting to the client from the services.(vi) The contingency or the certainty of the compensation(vii) The character of the employment, whether casual or for an established and constant client.
9. In essence, a legal practitioner from the foregoing has a bounden duty to ensure that the fee charged must be fair and reasonable as same also takes into account such things as the complexity of the matter and the value of the property or funds involved in the transaction. Every Lawyer concerned with a matter must try to keep a detailed note of meetings, telephone calls and time spent on every file or matter as same are relevant factors in ensuring appropriate renumeration for services rendered.
10. Nevertheless, the Bar for quite some time has been experiencing challenges in regulating this aspect of remuneration of Legal practitioners as there is no comprehensive scale of charges to guide our colleagues in charging fees. I am indeed elated that the NBA under Mr. Olumide Akpata has put this issue once more on the front burner via the various workshops and surveys organized by the NBA Renumeration Committee. My suggestion going forward is that the Bar presents a draft scale of charges for legislative adoption and approval following the feedback received from the various stakeholders. The Bar must also ensure that it creates avenues to monitor compliance by Legal practitioners with the extant rules as this ultimately will ensure in the long run that Legal Practitioners earn a fair renumeration.
11. Guaranteeing to everyone the right to social security is pivotal if we must significantly reduce poverty in the society and enhance the socioeconomic development of the nation. Social security refers to the schedule of reliefs, benefits, entitlements, and facilities that are accessible to and obtainable by citizens in any given community, in terms of the relevant municipal laws, and under the auspices and control of the State. These are usually deployed as viable and formidable palliatives to the endless social and economic risks to which the strong and young, as well as the feeble and old members of the community are exposed.
12. Social security is defined as the social protection, organized collective protection of the individual against want, poverty, destitution, disease, and idleness, which may be thrust upon him by the varied hazards and vicissitudes of social life, notably loss or suspension of income or means of sustenance resulting from sickness, maternity, accident injury, invalidity, old age, death of breadwinner or unemployment.
13. The concept of social security is rooted in welfarism, which is generally thought of as an application of social justice which entails that all persons, apart from their conduct or choice, have a claim to an equal share in all those things (advantages) which are generally desired and are in fact conducive to their wellbeing. This principle is not identical to the demand for equal treatment of all persons; it rather requires preferential treatment for the underprivileged who lack advantages possessed by others.
14. In the same vein, it is my humble belief that it is important for the NBA to provide social security for its members as there are peculiar risk factors commonly associated with our line of work. In my role as the Chairman of the Welfare Committee of the Nigeria Bar Association, under the able leadership of our performing President, Mr. Olumide Akpata, I have indeed come to realize that the Association must do more to protect the welfare of its members. Commendably, the NBA in 2014 under President Augustine Alegeh, SAN introduced the Life Insurance scheme which enable dependents of, financially up to date members to access as much as one million naira upon their demise.
15. However, I am of the firm belief that my colleagues should be able to reap some advantages of being members of this association while they are alive. In furtherance of this belief, the NBA Welfare Committee under my stewardship has introduced a pilot scheme called the NBA/NHIS Group, Individual and Social Health Insurance Program for selected 1000 members in all 126 branches of the NBA in conjunction with the National Health Insurance Scheme (NHIS). This scheme enables our members, upon payment of a subsidized annual fee to access medical treatment for primary, secondary and some aspects of tertiary cases (surgeries). Furthermore, Enrollees only pay 10 percent of the cost of listed drugs and same is available to family members of Legal Practitioners and non-legal staff of Legal Practitioners who have met their financial obligations to the Association. Such social security programs are indeed important to provide much needed support and amelioration of the financial burdens faced by members of the profession.
16. Other notable innovations introduced by the NBA include the collaboration with Law Pavilion to provide free subscription for young lawyers on some of its packages.
17. These measures are particularly important, given the almost non-existent social security provided by the Government to ordinary citizens and non-justiciability of Chapter 2 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). I have indeed not forgotten the final aspect of the topic assigned to me by the organizers which is whether there is any missing link towards sustainable economic prosperity for lawyers outside professional fees and social security.
18. My answer to this question is essentially that, beyond what Legal practitioners will get today, the long-term challenge is visionary and one that is calling for leadership. We need to think of what we can give more than what we can receive; we need to identify and pursue global standards in practice and in personal conduct. There are acute dangers to our professional future in incompetent, unethical and corrupt conduct. A certificate of qualification to practice law is not a viable ticket in itself for productive participation in the globalized legal market. We need to make a conscious effort to improve ourselves, go beyond our territory and circumstances to discover, predict, and ride on emerging legal trends in Nigeria and the world to affect and enhance productivity, validity and a future for the profession and the nation.
19. In concluding this paper, I must say that diversifying our practice is essential in not only surviving as lawyers and firms, but also to favorably compete in the global market and standard of practice. This will in turn offer the much-needed social security, viz – a – viz improving the well-being of legal practitioners.
20. Thank you all once more for listening and bon-appetite !!!!!
Yakubu Chonoko Maikyau, SAN, FCIArb. (UK)
Chairman, NBA Welfare Committee
Picture story from the event…