‘The Power lies in the Bar Council, not the AGF’ – Oliver Omoredia
The Attorney-General of the Federation, Abubakar Malami, SAN (AGF) has amended the Rules of Professional Conduct for Legal Practitioners 2007 (RPC); and the new amendments have far reaching implications for the landscape of law practice in Nigeria! The Rules of Professional Conduct for Legal Practitioners (Amendment) Rules made on the 3rd of September, 2020, has deleted key provisions of the RPC, including the rule mandating the use of NBA Stamp and Seal by Legal Practitioners, and provisions requiring Lawyers acting for Government, Ministries or Corporations to pay Annual Bar practising fees.
This write up considers the powers to make the amendments to the RPC, and the far-reaching implications of the amendments to the landscape of law practice in Nigeria.
Power to Amend the RPC
It is unclear where the power to make and amend the RPC is derived, as some versions of the RPC says it is from Section 12(4) while others say it is from Section 11(4) of the Legal Practitioners Act, 1990 (LPA). The RPC in its commencement, notes that the power is vested on the AGF and derives from Section 12 (4) of the LPA. Similarly, the new amendment is stated to be made pursuant to Section 12 (4) of the LPA, Cap L11, LFN 2004. The RPC 2007 states in its commencement as follows:
“In exercise of the powers conferred on me by Section 12(4) of the Legal Practitioners Act 1990, as amended, and of all other powers enabling me in that behalf, I, BAYO OJO, Attorney-General of the Federation and Minister of Justice/Chairman, General Council of the Bar hereby make the following Rules”
Similarly, the 2020 amendment states in its commencement:
“In exercise of the powers conferred on me by Section 12(4) of the Legal Practitioners Act Cap L11, LFN 2004 and of all other powers enabling me in that behalf, I, Abubakar Malami, Attorney-General of the Federation and Minister of Justice and President, General Council of the Bar make the following rules”
However, Section 12(4) of the Legal Practitioners Act which is referred to by both provides that:
“(4) The Appeal Committee shall cause notice of any direction given by it under this section to be served on the person to whom it relates”.
However, Section 11(4) seems to be the Section 12(4) of some versions, and it provides that the power lies in the Bar Council, and not in the AGF.
It may be too late in the day, to argue that our hallowed RPC which portends that it is by the power conferred on the AGF, has shaky statutory basis, or perhaps, that is an argument for another day or another writer, or perhaps a judicial pronouncement. Since, the 2020 amendments contain similar provisions to the substantive 2007 RPC, we shall proceed with the assumption that the AGF has the powers to make, and also amend the Rules of Professional Conduct.
The New Amendments to the RPC
The Rules of Professional Conduct for Legal Practitioners (Amendment) Rules 2020 provides that “The Rules of Professional Conduct for Legal Practitioners 2007 is amended, by deleting the following rules namely; 9(2), 10, 11, 12 and 13.”
Lawyers For Government and Ministries no longer need to pay Annual Bar Practicing Fees: Rule 9(2) of the RPC 2007 provided that:
“A Lawyer shall not sign documents, pleadings, affidavits, depositions, applications, instruments, agreements, letters, deeds, letters memorandum, reports, legal opinions or similar documents or process or file such documents as a legal practitioner, legal officer or adviser of any Governmental department or Ministry or any corporation, when he is in default of payment of his Annual Practicing Fees”.
The implication of the removal of this rule, is that a legal practitioner, legal officer or adviser of any Governmental department or Ministry or any corporation can sign and file all legal documents, including court papers, without paying their Bar Practicing Fees. However, the amendment does not permit such legal practitioner to appear in court. This is because, the right of audience in court is not a matter of the Rules, but a matter of the Legal Practitioners Act. Section 8 (2) of the Legal Practitioners Act provides clearly that:
“No legal practitioner (other than such a person as is mentioned in subsection (3) of section 2 of this Act) shall be accorded the right of audience in any court in Nigeria in any year, unless he has paid to the registrar in respect of that year, a practising fee…”
It is noteworthy that, subsection (3) of Section 2 exempts two classes: A) Any person holding the office of the Attorney-General, Solicitor-General or Director of Public Prosecutions of the Federation or of a State B) Such offices in the civil service of the Federation or of a State as the Attorney-General of the Federation or of the State may specify by order.
Furthermore, the extant Law Officers Act provides under Section 3 that:
“Every person appointed as Attorney-General or Solicitor-General of the Federation, the Director of Public Prosecutions of the Federation, Legal Draftsman of the Federation, or State Counsel, shall, so long as he continues to hold such office be deemed to be, and every person who shall have been appointed to any such office shall have been deemed to be, a barrister, advocate and solicitor of the Supreme Court of Nigeria ex-officio and shall be entitled, and shall be deemed to have been entitled, to appear as counsel in all courts in Nigeria in which counsel may appear.”
Conclusively, by the Amendment to the RPC, a legal practitioner, legal officer or adviser of any Governmental department or Ministry or any corporation can sign and file all legal documents, including court papers, without paying their Bar Practicing Fees. However, except for the Attorney-General, Solicitor-General or Director of Public Prosecutions, Legal Draftsmen and State Counsels as have been specified by the AG under the Law Officers Act or such other officers as may be specified by the AG, any legal practitioner who does not pay his Bar Practising Fees is not entitled to be granted audience in court.
Removal of Mandatory NBA Stamp and Seal for Legal Practitioners
The Rules of Professional Conduct for Legal Practitioners (Amendment) Rules 2020 states in its explanatory memorandum, that the amendment is to bring the Rules of Professional Conduct 2007 in conformity with the Legal Practitioners Act, the Law Officers Act and the Constitution of the Federal Republic of Nigeria, 1999. However, the deletion of Rule 10, has far reaching implication beyond legal officers.
Rule 10 of the Rules of Professional Conduct 2007, was the only regulatory basis for the imposition and operation of the mandatory NBA stamp and seal. The Rule provided:
10 (1) A Lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Governmental department or Ministry of any corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association.
(2) For the purpose of this rule, “Legal documents” shall include pleadings, affidavits, depositions, applications, instruments, agreements, deed letters, memoranda, report, legal opinions or any similar documents.
(3) If without complying with the requirements of this rule, a Lawyer signs or files any legal documents as defined in sub-rule (2) of this rule, and in any of the capacities mentioned in sub-rule(1), the document so signed or filed shall be deemed not to have been properly signed or filed.
All judicial authorities holding affixing NBA Stamp and Seal to be mandatory, have had Rule 10 of the RPC as regulatory basis. Indeed, the National Executive Committee of the NBA made the requirement of Stamp pursuant to Rule 10 of the RPC. As contained on the NBA official website https://nigerianbar.org.ng/nba-stamp-seal (assessed on the11th September 2020):
“Pursuant to the provisions of Rule 10, Rules of Professional Conduct for Legal Practitioner 2007, the NBA introduced stamps for Lawyers as approved by the NBA NATIONAL EXECUTIVE COMMITTEE (NEC) meeting held on 14th November, 2014 at Uyo, Akwa Ibom State.
Lawyers are hereby required to affix their STAMP on every legal document prepared and/or endorsed in accordance with the law. The use of the stamps became mandatory from the 1st Day of April, 2015″.
Therefore, it is clear that with the deleting of Rule 10 of the RPC, all legal practitioners are no longer mandated to affix NBA stamp on any processes.
Whether, the AGF intended this far reaching implication, or intended to restrict it to law officers, remains a matter that needs to be subsequently clarified.
Other Rules Deleted
The new amendments have also removed Rules 11, 12 and 13 of the RPC. Rule 11 provided for Mandatory Continuing Professional Development, Rule 12 provided for Annual Practising Certificate for legal Practitioners and Rule 13 provided for Notification of Legal Practice. All three rules have indeed, become obsolete in modern times, as the NBA has given no attention to operating any of them over the years.
In the wake of the controversies rocking the NBA, with splinter groups and strong attempts to divide the NBA, the amendments of the RPC to remove what is perhaps, the most significant influence of the NBA in the affairs of all legal practitioners, is perhaps the last straw to break the ‘camel’s back’. Interestingly, the splinter group which referred to itself as the “New Nigerian Bar Association”, had written to the AGF for reasons yet to be understood. The argument of many was that, the NBA had been statutorily and judicially recognised as apex regulator having power to issue stamp and seal, which was mandatory for all Lawyers. Now, the stamp and seal are no longer mandatory! Is this just a long coming intervention, or should the conspiracy theorists sit on the edge? Only time will tell.