Rules of Professional Conduct for Millennial Legal Practitioners
Any member of the legal profession called to the Nigerian bar post-2007 will be all too familiar with the Rules of Professional Conduct for Legal Practitioners 2007 (the “RPC”), being the most recent iteration of the codified rules of ethics that members of the legal profession in Nigeria are required to comply with. Without a doubt, the RPC would have been a welcome development to the then existing members of the profession, who, prior to 2007, had to comply with the rules of professional conduct that were in force since 1967 (as amended in 1979) (the “Old Rules”). The RPC introduced reform to the Old Rules in a significant manner and one of such reforms was in relation to the rules on the attraction of business.
Whereas the Old Rules practically prohibited the advertisement of legal business, the RPC provides a softer prohibition on advertisement. With the increasing rise in the popularity of social media and technology – particularly amongst millennials – it is no surprise that some of the rules set out in the RPC have either been forgotten or are blatantly disregarded by millennial Nigerian legal practitioners e.g. the rules on trial publicity and advertising. This article focuses on the latter and concludes by calling for a thorough review of the RPC to cater for the shift in attitudes and the change in the times.
The RPC on advertising
Section E (Improper Attraction of Business) of the RPC generally sets out the rules in relation to conduct for the purpose of attracting legal business. Rule 39 (Advertising and Soliciting) specifically deals with the issue of advertising and soliciting for business. Rule 39(1) states, amongst other things, that:
“… a lawyer may engage in any advertising or promotion in connection with his practice of the law, provided: (a) it is fair and proper in all the circumstances; [and] (b) it complies with the provisions of [the RPC].”
Although Rule 39(1) looks like a blanket approval of advertising or promotion of legal business provided that certain general principles are complied with, this is not necessarily the case because Rules 39(2) and (3) cut across Rule 39(1). Rules 39(2) and (3) set clear boundaries within which any advertising or promotion engaged in pursuant to Rule 39(1) must remain. These boundaries include (without limitation) restrictions to the effect that:
- there should be no comparison with or criticism of other lawyers or other professions or professionals (Rule 39(2)(c));
- there should be no statement about the quality of the lawyer’s work, the size of his practice or his success rate (Rule 39(2)(d));
- such advertisement or promotion should not be so frequent or obstructive as to cause annoyances to those to whom it is directed (Rule 39(2)(e)); and
- a lawyer must not solicit professional employment either directly or indirectly by advertisement, personal communication or self-aggrandisement (Rules 39(3)(a) and (e)).
These rules are simple, clear and straightforward; as such, they should be relatively easy to comply with and considering that as part of the legal education the rules of professional conduct feature rather pre-eminently, these rules should practically be second nature to every practising lawyer in Nigeria – especially those called to the Nigerian bar post-2007. Lawyers that were trained under the Old Rules were used to the more restrictive blanket prohibition under the Old Rules so compliance with the RPC hardly seems like a challenge to those generations of lawyers, as a decent number of them still abide by the more restrictive rules by choice or possibly because they are not aware that the rules have been relaxed under the RPC.
The impact of technology and social media on the rules on advertising
The emergence and growth of social media platforms like Facebook, LinkedIn and Instagram have introduced a general shift in the attitudes to businesses and professions, with the legal profession not being immune to such influence. The same can be said of technology – the use of applications to provide services that were once considered as “face-to-face” services (e.g. client interviews) and the increasing interest in the use of artificial intelligence for the provision of legal services that are considered routine or repetitive (e.g. document review and legal drafting) have also affected the way in which legal services are advertised, promoted and executed. Even more recently, the move by the Corporate Affairs Commission to allow non-lawyers commence and complete business registration/incorporation without the need for lawyers – using an e-platform as well – is another instance of the shift in attitude and approach. Whereas some may see such move as a new development, to others it is rather disappointing that Nigeria is only just playing catch-up as jurisdictions like the United Kingdom (from whom Nigeria tends to take most of its cue), have been doing the same thing for quite some time and Nigeria still has a long way to go, including having the corporate register readily available for public access at zero cost, online.
A holistic read of the RPC almost immediately reveals that it was drafted from a litigation perspective and outlook whereas, the legal profession as we know it, goes beyond litigation. The RPC is therefore somewhat myopic and does not appear to cater for scenarios that may come up in the context of a corporate/commercial legal practice. This short-sightedness is all the more relevant in the context of advertising or soliciting legal business. Some of the instances of such short-sightedness will be addressed in turn below.
- The use of websites: It is fascinating that the use of websites, e-mails or other electronic platforms was not featured in the RPC as at 2007, when these were already widely used. The RPC contemplates the use of old-fashioned media like circulars, newspapers, etc. (which can also be circulated by electronic means). It almost goes without saying that nowadays, every business (not just law offices) needs an online presence to thrive and the least expected is the maintenance of a decent website. But does having a website necessarily amount to advertising or soliciting for business considering that a quick (and possibly targeted) search on the internet for legal business in Nigeria can produce millions of results? What about the results that come up as the top results – have these firms paid a premium to the search engine provider to ensure or guarantee that their firms would be the top results of such searches? What about the website designs that are bright and modern and do not necessarily fit the description of “sober” required by Rule 42 (Signs and Notices) of the RPC? A cursory look at the website of any business-oriented Nigerian law firm will reveal the apparent breach of so many rules on advertising but technically, it would be difficult (if not near impossible) to assert that these websites breach the rules on advertising simply because these so-called breaches are online and technically do not fall within the ambit of the RPC.
- Pitches/responses to requests for proposals: To traditional litigators, the idea of pitching is alien and it will not be surprising if there are practising litigators who have never pitched for work in all their years of practice – and some may even be unaware of the concept/idea of pitching. On the contrary, to corporate/commercial lawyers, pitching is part of the job and usually the default means to win new business. The way that pitches are typically structured make a deliberate call for advertisement with the difference being that the advertisement is not initiated by the law firm – it is initiated by the potential client. Pitches generally request for information about the law firm’s experience/expertise on specified matters, members of the team and pricing, etc. More often than not, some clients specifically ask the law firms responding to say what advantages they have over other law firms and why they are of the view that they can do a better job than their competitors; in other words, some potential clients ask for comparisons with other lawyers. More so, in some circumstances, the would-be client may have retained lawyer X but are displeased with lawyer X’s work product and ask lawyer Y to review lawyer X’s work and say how they (lawyer Y) would go about improving it if retained by the client. Complying with such client’s request definitely goes against Rules 39(2)(c) and (d) of the RPC mentioned above. Should a lawyer approached to pitch for work therefore refuse to pitch in order to comply with the RPC or fail to comply in all respects with such request for proposal? Should clients be restricted in the manner in which they select their legal advisors simply because of the RPC, which one should add, is often more of a commercial decision than a legal one? As a corporate/commercial lawyer, you tend to win new business (and keep such client or get repeat business or referrals) if you can deliver the right quality of work at the right price (evidence of which is often displayed through the use of technology to cut costs) and within the time frame that the client requires it – you will struggle to effectively win new business if you are modest about your practice, expertise and success. Besides, a lot of law firms nowadays have business development teams dedicated and employed for the primary purpose of wining new business for the firm, keeping existing clients satisfied and securing referrals.
- Social media advertising: It is no longer news that social media has revolutionised the way in which business is conducted all over the world, across sectors and professions – including the legal profession. The new generation of lawyers who are active on social media have caught wind of this disruptive medium and are leaving no stone unturned by exploiting it as much as possible. The rules in the RPC which are most likely to be breached than any other through social media activities are Rules 39(2)(e), 39(3)(a) and 39(3)(e) of the RPC mentioned above.
- Rule 39(2)(e): This rule states that any advertisement or promotion should not be so frequent or obstructive as to cause annoyances to those to whom it is directed. One of the appeals of social media to any business owner is the idea that you can send a specific message to a target audience or the whole world – provided that they are following your page (knowingly or unknowingly). Some social media platforms can be tailored such that followers only see what they subscribe to see or pages that they frequently visit but even with such “tailored experience”, quite often, some of the notifications or information posted on such pages are not of interest to the follower or their frequency becomes irritating. One is also faced with the situation where they follow a page simply because it belongs to their “friend” or an acquaintance, not necessarily because they are interested in the substance of the posts. Nonetheless, if the owner of the page posts frequently (often repetitive especially if the same post is shared on the business page and the personal page of the owner), it can be irritating and annoying and obstructive to some but does this mean that because you continue to follow this page (regardless of the annoyance), it cannot rightly be said to constitute annoyance? If websites are technically acceptable as far as the RPC is concerned, can the same be said of social media platforms like Instagram, Facebook and even LinkedIn?
- Rule 39(3)(a) and (e): These rules provide that a lawyer must not solicit professional employment either directly or indirectly by advertisement, personal communication or self-aggrandisement. By having a profile that can be viewed on any social medium, it is not uncommon to state one’s profession. If a lawyer includes in his/her profile that s/he is a lawyer does this amount to indirect advertisement? By listing one’s professional accomplishments on a law firm’s website or other personal social media, does this amount to self-aggrandisement? What about LinkedIn – does having a profile on LinkedIn amount to indirect solicitation of professional employment considering that recruiters may contact you with potential job offers and that it will be ill-advised to not include details of any personal professional or academic accomplishments on one’s profile, which may be construed as self-aggrandisement? In present times, not having a LinkedIn page is almost considered as unprofessional/unserious as “every” professional should have a LinkedIn profile – indeed, some clients visit LinkedIn pages before deciding whether or not to retain a lawyer in order to see their academic and professional qualifications, experience, expertise, etc. and the lack of a LinkedIn profile is viewed by some establishments as a red-flag; it is no surprise that some law firms even have internal policies about the creation and maintenance of social media pages like LinkedIn as this is often a client’s first impression of the lawyer and/or his law firm and also because some establishments consider a LinkedIn profile as an electronic resume (indeed, some online job application portals offer applicants the option of using their LinkedIn page as their resume).
To ignore the influence of social media and technology on the legal profession will be tantamount to being under the impression that the sun does not always rise in the east. Social media and technology, disruptive as they may be, have arrived and are here to stay – to survive, every practitioner needs to catch-up with the times or find themselves rendered obsolete and redundant. Similarly, the rules that professionals are expected to abide by need to be updated to remain relevant otherwise, there is a risk that such rules may become barking dogs that cannot bite. If a survey is carried out on Nigerian lawyers active online (by websites and/or social media), the number of potential rule-breakers would probably be so alarming that the Legal Practitioners’ Disciplinary Committee will be too overwhelmed to take any disciplinary action, as it may reveal that majority of the members of the profession are guilty of professional misconduct and liable to punishment in accordance with the Legal Practitioners Act (Rule 55 (Enforcement of rules) of the RPC); if this is the case, then one wonders how enforceable some of these rules actually are in practice.
Reviewing the RPC with a fine tooth-comb will reveal the need for a reform to cater for the changes now being seen in the legal sphere – especially in relation to the conduct of legal business. This can be done now rather than waiting for some thirty odd years, at which point the relevance of human lawyers may even be questionable, in view of the speed with which artificial intelligence is taking the world by storm; at such point, regulation would probably be more focused on artificial intelligence than actual human legal service providers.
Food for thought: If a Nigerian lawyer uses a software like Kira (an artificial intelligence tool that helps with searching and analysing contracts), which can review hundreds of contracts in a matter of seconds, extract relevant information and prepare a report tailored to one’s specific requirements (which is then presented to the client as the “contract review report/summary”), as part of a due diligence exercise, does this mean that such lawyer is aiding the unauthorised practice of the law in breach of Rule 3 (Aiding the unauthorised practice of the law) of the RPC?