Of Scape-goats, and Silk Gowns... Where lies Culpability?
“IF THE CLIENTS ARE NOT FACED WITH THE THREAT OF PENALTY JUST AS THE LEGAL PRACTITIONERS WHO SERVICE THEM, THEY WILL NEVER HAVE AN INCENTIVE TO JOIN EFFORTS AND RESOURCES WITH THE REGULATORS, TO ROOT OUT SYSTEMIC ROT IN THOSE PRACTICE AREAS”
Withdrawal of SAN Rank
When a prominent legal practitioner was recently stripped of the rank of Senior Advocate of Nigeria (SAN), the development sent ripples of shock, particularly through the legal community. It is not often that a member of the prestigious Inner Bar, is so publicly and forcibly returned to the rank and file of the legal trenches, as it were. This, after a finding by the Legal Practitioners’ Privileges Committee (LPPC) of professional misconduct against him. Not having had the benefit of the full facts and evidence turned up during the investigation, it would be improper; and it is certainly not my intention, to comment on the personality of the erstwhile Silk involved, or his culpability in the matters alleged, and eventually found as proven against him.
It will be more apt to start by saying that such severe sanctions, while not commonplace in this jurisdiction, are perhaps more so in the United Kingdom, (at least amongst solicitors who come in contact with the public), where a betrayal of the public trust by those in regulated professions is viewed in the harshest and most unforgiving light. For those familiar with the practice within the ‘insolvency and receivership Bar’ as well as what I will loosely refer to as the political Bar (adjudication in political cases), the issues raised by the occurrence alluded to in opening, are far more nuanced than they first appear.
Ethical Standards
Members of regulated professions round the world, belong to an elite club. Their services extend beyond the ordinary bounds of commerce, to touch on public safety and interest as a whole. They function as curators of modern civil society. Gate-keepers of sorts. They therefore, undergo a combination of rigorous training and statutory licensing, before they are permitted to practice their profession. The ethical standards are supposedly extremely high. They must be, it is often said, fit and proper persons. A violation of professional ethics for a Lawyer, is accordingly akin to professional suicide, and erring members are quickly and publicly ex-communicated; if only to maintain the special bond of trust and respect for the legal profession, in the eyes of the public
Insolvency and Political Bar
Despite its lofty ideals, and the prestige which should ordinarily be ascribed to the legal profession in Nigeria, it is no longer hidden that our entire system of justice administration is challenged. This is more so in certain sectors of practice which have over the years proven more susceptible to systemic corruption, maladministration, and infrastructural decay. Among these, the ‘insolvency and receivership Bar’, and the ‘political Bar’ rank among the highest. The challenges in these sectors are not of practitioners’ making, but there can be no denying that some practitioners’, and many big-name clients, have become the main beneficia- ries of the dysfunction in the system.
The entire legal infrastructure in these sectors seems to have been so undermined, to the point where there is virtually no possibility of an end user of legal services, receiving a desired service, without cutting corners and playing fast and loose with the rules. Professed experts in these areas are therefore, not always those with the most superior command of legal principles, (at least that is not what secures result), but those who have developed a penchant for a more cavalier approach to the rule of law. The result – for big ticket clients and transactions, there are only a few household names that can be trusted in the legal community to get results, and quickly in these areas. It is not surprising that a few who have been sanctioned, have their practices entranced in insolvency or political related cases.
This is understandable. Most big clients, are businesses and institutions who are concerned with getting value for their shareholders. They have neither the desire, nor the patience for engaging with a system which has abdicated its statutory role, and has no regard for their legitimate grievances and/or aspirations. The same can be said of political parties and politicians. Indeed, they often stretch the system to its breaking point. Rather than fight the system, they would rather take their chances with a senior counsel, usually Silk, who is an expert at manipulating this same system, to achieve a desired result. The victim becomes not only the adversary to such a big client (or a competing end-user for
the same service); who has no desire to compromise (or otherwise cannot afford the services of such senior counsel), but also the society itself. Similarly, the hard working and brilliant lawyer, who is unwilling to stoop to conduct unbecoming of a legal practitioner, simply to win results for his client within a compromised system, finds himself at a disadvantage, and unable to win the confidence of his potential client.
It is obviously a sad state of affairs, when selfprofessed ministers in the temple of justice, justify unsavoury means of achieving results, by the results themselves. What is worse, they are publicly celebrated by their clients, and rewarded with more briefs and public accolades. Such a system is simply unsustainable, and poised to implode. It is only a matter of time.
Sanctions for Misconduct Institutions like the Legal Practitioners Privileges Committee (LPPC) and the Legal Practitioners’ Disciplinary Committee (LPDC), were established, largely to serve the purpose of monitoring and prescribing appropriate sanctions for such, and other types of conduct, unbecoming of a legal practitioner. They must therefore, be applauded whenever they seem to be alive to their responsibilities, and display a willingness to take decisive action.
However, the yardstick determining application of any of these sanctions, is far from clear. The LPPC ordinarily applies one of three sections. It is either a warning, a suspension of the rank or a demotion. In an extreme situation, it may require striking out the errant practitioner from the role of practitioners. It will instil further confidence in the public, if the LPPC were to disclose the criteria that influences the application of one sanction rather than another. At this moment, the erring applicant is penalised simply on the whims and caprices of members of the Committee; it appears like, ‘guess work.’
Those clientele who benefit from the current state of affairs, may naturally kick against any move by statutory bodies to sanitise a system, which has long been rigged in their favour. They are more often than not, aware of the means by which their counsel secure outstandingly favourable results, within a severely damaged system.
Suggestions for Reform It therefore, seems imperative to not only thoroughly revamp the errant system(s), but also sensitise the end-users that there is to be a departure from the old way of doing things. Even more than that, rather than go after wrong-doers who are legal practitioners, alone, these statutory bodies of the legal profession, could make recommendations to the professional associations of the clients (i.e. chartered bodies regulating the top management of such clients), to investigate and possibly sanction erring members of their respective professions. If the clients are not faced with the threat of penalty just as the legal practitioners who service them, they will never have an incentive to join efforts and resources with the regulators, to root out systemic rot in those practice areas. Experience has proven that it is only a synergy between the end-users of the product/service, and the providers, that can bring about true reform. This is what all stakeholders should seek, and if effectively undertaken, can serve as a template for other legal service areas.
In this instance, financial institutions as well as political parties/politicians that seek to deliberately instruct counsel to circumvent the process to secure a particular result, must also be a reference point for sanctions. This is necessary if we are to see any significant reforms in the administration of justice. The case of the former Governor of Nigeria’s oil rich Delta State, James Ibori, comes to mind; not only was he sentenced to thirteen years in jail by a Judge in a court in London for stealing government funds in Nigeria, but his Lawyer and accountant (business associates, wife, sister and mistress), were also sentenced on money laundering charges. It is unlikely that such bold steps could ever be taken in Nigeria.
Osaro Eghobamien, SAN and Ayokunle Ogundipe, Perchstone and Graeys, Lagos