Professional Ethics For The 21st Century Lawyer (2)
By Mike Ozekhome, SAN
Some readers wrote to me, wondering why I was writing on issues concerning lawyers alone in this three-part thesis. I explained to them that professional ethics apply not only to lawyers but to all professionals: doctors, engineers, the military, nurses, architects, surveyors, pharmacists, even vendors, shoemakers and panel-beaters. Every professional must observe certain ethics. Even in madness, there is order. Some tips can, therefore, be borrowed by other professionals from this dissertation. Today, come along with me on my journey to unravel this tropical issue.
Professionalism has been defined to mean, “The practice of some profession as a business: opposed to amateurism.” To be more emphatic, professionalism also means “the competence, or the correct demeanour, of those who are highly trained and disciplined.”
This definition clearly states that every profession involves specialized training, usually set out and monitored by the instrument establishing the association. Again, “Professionalism” has been defined as – “The practice of a learned art in a characteristically methodical, courteous, and ethical manner.”
Consequently, from the totality of the definitions of the key words for this article, a profession must first be recognized by law. One of the prerequisites for the recognition, therefore, is that, it must be a practice of a learned art, as a result of recognized methods of training spanning period of time with unique character and accepted methodology. For any person to qualify, therefore, he must have acquired the required skill or training, in addition to being a person of good standing. He or she must be a fit and proper person to be admitted as a professional in a particular profession both in character and learning.
Professionalism has its roots in legal acceptance of the set standards for its creation or existence and that being so, it can neither be practiced nor established for one person alone. It must be for all those who meet the minimum standard set for admission into the profession.
Professional associations, thereby, evolve to press for legal recognition, control and discipline of members to maintain the set standards. We shall then proceed to see the legal effect and or consideration in professionalism.
Need for professional ethics
The first legal consideration in professionalism in Nigeria is the establishment or registration of professional associations in Nigeria. Section 40 of the 1999 Constitution provides –
“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any association for the protection of his interest.”
The legal profession is necessarily the keystone of the arch of government. If it is weakened, and allowed to be a subject of the corroding and demoralizing influence of those, who are controlled by craft, greed or gain or another unworthy motive, sooner or later the arch must fall. Borrowing the words from the book titled, “Advocacy needs the king-becoming graces: devotion, patience, courage, fortitude.” Advocacy is a form of combat where courage in danger is half the battle.
The future of the Nigeria depends upon the maintenance of the Temple of Justice, pure and unrolled by the Bar and the Bench. It cannot be so maintained, unless the conduct and motives of the members of the legal profession are what they object to be.
Therefore, it becomes the plain and simple duty of the lawyers to use their influence in every legitimate way to help and make the Bar what it is ought to be.
Furthermore, members of the Bar, like judges, are officers of the court and, like judges, they should equally hold office only during good behaviour and this good behaviour should be defined and measured by ethical standards, however high, as necessary to keep the administration of justice, pure and unsullied. Such standard may be crystallized into a written code of professional ethics and the lawyer failing to conform thereto, should not be permitted to practise or retain membership in the particular organisation he/she belongs to.
Objectives of professional bodies
Thus, the primary objective for the formation of professional associations is to promote the welfare of members and protect the integrity of the profession against abuse by outsiders and members. There are over 50 (or even more) professional associations in Nigeria. To give effect to the constitutional right of freedom of association, the law requires that every association must either be established by statute or registered under Part C of the Companies and Allied Matters Act, 2020, with the Corporate Affairs Commission.
Thus, any group of persons that operates as an association that is not established by statute or registered with the Corporate Affairs Commission is an illegal association. The main benefit of the establishment or registration of an association is that the association is recognised as a person in law and confers with legal personality. Legally speaking, an association is said to have legal personality when the association has separate existence from its members, hence, the association can sue and be sued in its corporate name, the association has perpetual succession and it has powers to own land.
The main purport of this laid down rules was established in the celebrated case of GANI FAWEHIMI vs. NIGERIAN BAR ASSOCIATION is instructive. The brief facts of the case are that the Nigerian Bar Association had been established in 1958 as a voluntary professional association; it was neither established by statute nor registered with the Corporate Affairs Commission even though the association was recognised by the Legal Practitioners Act. The Supreme Court held that the Nigerian Bar Association lacked the legal personality to sue and be sued. In response to this decision, the Nigerian Bar Association is now registered under Part C of the Companies and Allied Matters Act 2020 with the Corporate Affairs Commission. Ordinarily, an association established by statute is not superior to an association that is registered with the Corporate Affairs Commission. In fact, it is more convenient to register as association with the Corporate Affairs Commission than to sponsor a bill in the legislature to establish an association. However, the main distinguishing factor, which has both legal and constitutional consideration, is contained in Section 36(12) of the 1999 Constitution, which provides:
“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and a penalty therefore is prescribed in a written law; and in this subsection, a law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.’
A professional association registered under Part C of the Companies and Allied Matters Act, 2020 is a voluntary association having trustees and a constitution. The Constitution provides, among others, for its name, trustees, membership, aims and objects, meetings, executive committee, funding, discipline, amendment, etc. But in the case of a professional association established by statute, in addition to providing for the foregoing, it provides for professional offences, penalties and establishment of the disciplinary tribunal or committee.
Article 17 of the NBA Constitution which provides for ‘Discipline’ in a way to avoid conflict with section 36(12) of the 1999 Constitution. This is because any provision in any other law and or rule in conflict with any provisions of the Constitution shall be void to the extent of the inconsistency. The constitution provides thus: –
1(3) “If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of its inconsistency be void.”
Basically, this is to avoid any conflict with the provision of the Constitution particularly Section 36(12) of the 1999 Constitution, that Article 17 of NBA Constitution provides –“the branches shall have the powers to investigate reports of professional misconduct against their members and if need be send a report of the finding to the chairman of the Disciplinary Committee as provided under the Legal Practitioners Act and the Secretary of the Association’’.
The above underscores the main reason why professional associations go through the rigor of finding a sponsor of the bill to establish the professional association and lobby for its passage. Of course, the Association of Professional Bodies in Nigeria being an umbrella body for other recognised associations would not have to seek a statute to validate its existence, as it can always refer the issue to the relevant professional body for necessary action, if it so desires, in accordance with its rules or code of ethics, if issue of professional misconduct is alleged.
Importance of professional ethics in the legal profession
Rules of Professional Conduct for Legal Practitioners and The Legal Practitioners Act (Cap. 20 LFNL.11 2004) popularly known as “RPC” is a rule book that serves as a guide for a legal practitioner called to the Nigerian Bar.
Rule A of the RPC reads thus:
A—-PRACTICE AS A LEGAL PRACTITIONER
1. “A Lawyer shall uphold and observe the rule of law, promote and Foster the cause of justice, maintain a high standard of professional conduct, and Shall not engage in any conduct which is unbecoming of a legal practitioner”.
2. “A lawyer shall not knowingly do any act or make any omission or Engage in any conduct designed to lead to the admission into the legal Profession of a person who is unsuitable for admission by reason of his moral Character or insufficient qualification or for any other reason”.
Professional ethics are important in the legal profession because the projectors of Law must be seen to be of utmost good character and practise, as well as being orderly. Professional ethics help to boost the confidence of the society and dependability on the judicial processes. As stated earlier, every statute establishing a professional association in Nigeria provide for membership, discipline, professional misconduct, offences, penalties and trial of members who are in breach of the code of conduct or rule of professional conduct or engaged in any kind of unethical conducts. It is clear that each profession has its own standard, accepted rules or codes of conduct (ethics) that is peculiar to it, depending on the nature of its operations. The code or rules of professional conduct, by whatever name it is called, are prepared and revised by the appropriate authority pursuant to powers conferred on the appropriate authority in the statute establishing the professional association. So, the making and or review of the code or rules of professional conduct must be guided the legal considerations guiding the making of subsidiary legislation also known as delegated legislation. A typical code or rules of professional conduct provides, among others issues, for relation with client, relation with colleagues – fellow professionals, duties to the state, etc. The offences and penalties are contained in the statute establishing the professional association; the offences unlike the typical criminal offence are often drafted in wide language and they emanate from breaches or failure of a member to comply with the code or rules of professional conduct. This for instance, is seen in, Rules 55 of the Legal Practitioners Rules of Professional Conduct 2007 provides, “If a lawyer acts in contravention of any of the rules in these Rules or fails to perform any of the duties imposed by the Rules, he shall be guilty of a professional misconduct and liable to punishment as provided in the Legal Practitioners Act.”
(To be continued)