Attraction of Business and the Omission of Pro Bono Requirements from the Rules of Professional Conduct for Legal Practitioners in Nigeria: A Discussion

Attraction of Business and the Omission of Pro Bono Requirements from the Rules of Professional Conduct for Legal Practitioners in Nigeria: A Discussion

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Muhammed Mustapha Akanbi*

Abstract

This article muses on the subject of ‘attraction of business’ and ‘pro bono requirements’ within and outside the Rules of Professional Conduct for Legal Practitioners (RPC 2007 and the draft RPC 2012) in Nigeria. With increasing complexities in the practice of law and changing technology, these two areas under consideration, which affect the practice of law in our country, appear to present daunting ethical challenges that threaten to swamp the best-intentioned guidelines. This article reveals that although there is regulation of advertisement in the legal profession, the emergence of the internet might have presented new dimensions and challenges. It further posits that the provisions on pro bono services in the Draft RPC 2012 does express a preference for providing legal representation to those who cannot afford to pay, but there is no mandatory language or enforcement mechanism behind that expression.

1. What is advertisement in the legal profession?[1]

An essential aspect of any service that is to be provided to the public is that the public should be aware of the service and have a number of options to choose from. “Advertisement” in the legal profession thus means any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to existing clients or other lawyers.[2]

Advertisements for lawyers and law firms take various forms: print, television, radio, the yellow pages, and most recently online advertising. Among the most common type of legal advertisements are those by tort lawyers, whose branch of law includes personal injury, medical malpractice, negligence, and product liability cases involving compensation for harm or damages caused by another.[3]

2. Background to Regulation of advertisement in the legal profession

Before the United States’ Supreme Court decision in Bates v State Bar of Arizona,[4] advertisement of legal service was rare and generally prohibited.[5] It was an anathema to legal practice.

In that case, two practising attorneys, Bates and O’steen, placed an advertisement in the Arizona Republic on February 22, 1976. The State Bar suspended both Bates and O’steen from practicing law for six months in accordance with the regulations of the State Bar of Arizona. Bates and O’steen petitioned the Arizona Supreme Court to review their case on the grounds that a total ban on advertisement violated certain laws. The State Supreme Court rejected their claims, but did reduce their suspensions, in part, because the court believed that Bates and O’steen advertised as a way to test the constitutionality of the ban on advertising within the legal industry.

On appeal to the Supreme Court of the United States, the court ruled in favour of Bates and O’steen on the claim of the violation of free speech. The Supreme Court stated that Arizona’s ban on advertising “inhibited the free flow of information and kept the public in ignorance.” The Supreme Court therefore removed the ban on advertising. However, they still allowed the State Bar to “regulate” advertising in order to make certain that the information presented was true and did not mislead others or make false claims.

3. Information versus Advertisement: Recourse to the test of Commercial Speech Analysis[6]

Commercial speech is speech seeking a commercial relationship. Commercial legal speech is therefore speech seeking a legal relationship for profit.[7] It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product.[8] Hence, any publication, which by its content or its context seeks to develop a legal relationship for profit for a lawyer, is commercial speech that the law may constitutionally regulate[9] and/or have regulated in the codes of professional ethics for lawyers.[10] By contrast, non-commercial speech is the expression of ideas, opinions, or information that does not have the content or context of seeking a commercial relationship.

However, the expression of opinions by a lawyer is non-commercial speech even though the lawyer hoped that by publishing the opinions some readers would contact the lawyer to pursue legal representation relating to the opinions expressed in the publication.[11]

If the commercial versus non-commercial speech analysis is applied to the publications of lawyers, it is clear that newsletters, conference, symposium and workshop proceedings, books, law review, articles in newspapers, letterhead stationery, and television and radio programmes are non-commercial speech.[12]

In Bate’s case,the Court held that advertisement by a lawyer was a form of commercial speech and thus could not be completely prohibited. Specifically, the Court held that a state could not prohibit an attorney from listing the fees the attorney charges for routine legal services. Of course, like other commercial speech, the court made it clear that the full protection of the First Amendment was not given to lawyer advertising. For example, the court stated that advertising which was false, deceptive, or misleading could be prohibited.[13]

However, in a later discussion of Bate’s case, the Court made clear that a state did not have to treat legal advertisement exactly as it does other commercial advertisements. The Court noted as follows that:

The public’s comparative lack of knowledge, the limited ability of the professions to police themselves, and the absence of any standardization in the “product” renders advertising for professional services especially susceptible to abuses that the States have a legitimate interest in controlling.

regulation of legal advertising is allowable where the “form or method of advertising has in fact been deceptive” and that “claims as to quality or in-person solicitation might be so likely to mislead as to warrant restriction.”

The Court confronted the issue of in-person solicitation directly in Ohralik v Ohio State Bar Association.[14] In that case, the attorney went to the hospital to see if a recent accident victim would consider employing him as her lawyer in the matter. The prospective client, who had not yet graduated from high school, was in traction as a result of her injuries at the time. The Court stated that “in-person solicitation of professional employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services.” The Court went on to uphold the attorney’s discipline by the state bar for his actions.[15]

5. Game-Changer: How the Internet Has Changed Advertisement in the Legal Profession

Even though advertisement has been somehow regulated in the legal profession, the internet has been a game-changer for those engaged in the practice of law, like so many professional services.[16] With the advent of the internet, the history of advertising in the legal profession has taken a new turn. Lawyers are already using the Internet, and specifically the colourful part of it known as the World Wide Web (“Web”) as an advertising medium. The World Wide Web dramatically alters the economics of lawyers advertising while expanding its reach. It is estimated that over 100 million people have access to the internet and the number of people using it is growing explosively. New technologies have made internet access not only easier but also faster.[17]

Thus advertising on the internet presents numerous legal and ethical challenges. Some examples of these queries are:[18]

Is a web site on the internet actually advertising?
Is the informative nature of most web sites considered to be “giving legal advice”?
Will communicating on the internet disqualify a lawyer and/or the lawyer’s firm from representation of other potential litigants?
Does maintaining a web site on the internet constitutes advertising and thus within the category of commercial speech?
If a lawyer’s web site is considered a form of advertising, then must it conform to the lawyer advertising regulations of the jurisdiction of the lawyer and possibly of all other jurisdictions where the web site may be viewed?

Whether or not a lawyer or law firm’s web site constitutes advertising is a contested issue. Several lawyers with web sites or home page on the internet argue that their sites are to be viewed as informative sources and not advertising. This view is based on comparing the informative nature of a web site to the informative nature of a law review article. Like a law review article, a strictly informative web site or home page is generally not an advertisement. On the other hand, one could argue that even the submission of free information in a web site, home page or discussion contribution, if improperly used, is not only advertising, but in fact, illegal.

An existing internet maxim is that no one has to know you are a dog on the internet.[19] The maxim applies in all aspects of internet use. Commercially, it means a small business or solo practitioner can put up a site that eclipses those of much larger firms that make a lukewarm commitment to establishing themselves on the internet. However, that is not to say some internet “dogs” will not inevitably be more equal than others.[20]

Additionally some web sites or home pages “may create an image of the owner as an expert in a field, that the site owner is a lawyer, thus enhancing his/her image having legal expertise in a specific area.”[21] This also might be construed as misleading, unethical, and potentially illegal.

6. Need for Regulation: Ethical considerations

In Bates v State Bar of Arizona case, the Arizona State Bar argued against advertising by law firms because they believed that:

advertising would place too much burden on the legal system;
advertising may be too effective and dangerously increase litigation;
lawyers would raise the cost of their services in order to compensate for their increased overhead due to the additional cost of advertising;
the legal profession would be viewed as a common trade rather than the noble profession they believed they were part of;
the public could not protect themselves against false advertisements that they thought would go hand in hand with allowing advertising;
advertising would cause more and more people to pursue a career in law;
an increase in advertising would promote a larger client base and would make it harder for lawyers to serve their clients.

In the ‘Nigerian Law School, Course Handbook on Professional Ethics and Allied Matters,’[22] the following reasons against advertisements are given:

the legal profession is a noble and honourable profession thus requiring a special code of conduct on the practitioners;
the legal profession is a sober profession thus should not be cosmetic;
advertisement promotes unfair attraction of business and success will depend on the financial status of the lawyer to advertise and not competence;
advertisement tends to berate other members of the profession, which is not compatible with the legal profession

Over the years, lawyers have not been known to be tradesmen in the market place. As professional men, they have been known to live by certain high code of ethics and moral and educational standards. Thus in order to avoid a situation where the profession is denigrated by unsavoury advertisements, the highlighted challenges of advertisement in the legal profession indeed calls for its regulation.

7. Rules of Professional Conduct for Legal Practitioners, 2007 (RPC) and the Draft Rules 2012 (RPC 2012)

In furtherance of the aims and objects of the Nigerian Bar Association under the constitution of the association as referred to in section 1 of the Legal Practitioners Act[23] and for the maintenance of the highest standards of professional conduct, etiquette and discipline in terms of that constitution, the General Council of the Bar (the Bar Council) has made the rules of professional conduct in the legal profession. The extant code is the Rules of Professional Conduct for Legal Practitioners, 2007 (RPC 2007). The relevant part of the rules concerning advertisement is to be found in Part E (Improper Attraction of Business) of the RPC 2007, in particular Rules 39 to 47.

E —– IMPROPER ATTRACTION OF BUSINESS

39(1) Subject to paragraphs (2) and (3) of this rule a lawyer may engage in any advertising or promotion in connection with his practice of the law, provided it:

(a) is fair and proper in all the circumstances; and

(b) complies with the provisions of these Rules.

(2) A lawyer shall not engage or be involved in any advertising or promotion of his practice of the law which:

(a) is inaccurate or likely to mislead;

(b) is likely to diminish public confidence in the legal profession, or the administration of justice, or otherwise bring the legal profession into disrepute;

(d) includes any statement about the quality of the lawyer’s work, the size or success of his practice or his success rate; or

(e) is so frequent or obstructive as to cause annoyance to those to whom it is directed.

(3) Notwithstanding the provisions of paragraph (1) of this rule, a lawyer shall not solicit professional employment either directly or indirectly by:

(a) circulars, handbills, advertisement, through touts or by personal communication or interview;

(b) furnishing, permitting or inspiring newspaper, radio or television comments in relation to his practice of the law;

(c) procuring his photograph to be published in connection with matter in which he has been or is engaged, or concerning the manner of their conduct, the magnitude of the interest involved or the importance of the lawyer’s position;

(d) permitting or inspiring sound recording in relation to his practice of law; or

(e) such similar self aggrandisement

(4) Nothing in this rule shall preclude a lawyer from publishing in a reputable law list or Law Directory, a brief biographical or informative data of himself, including all or any of the following matters:

his name or names of his professional association;
his address, telephone number, telex number, e-mail address, etc;
the school, colleges, or other institutions attended with dates of graduation, degree and other educa- tional or academic qualifications or distinctions;

(d) date and place of birth and admission to practice law;

(e) any public or quasi-public office, post of honour, legal authority, etc;

(f) any legal teaching position;

(g) any national Honours;

(h) membership and office in the Bar Association and duties thereon; and

(i) any position held in legal scientific societies.

40. A lawyer may cause to be printed on his note-paper, envelopes and visiting cards –

(a) his name and address ;

(b) his academic and professional qualifications and title including the words “Barrister-at-Law,” “Barrister and Solicitor” “Solicitor and Advocate” “Legal Practitioner” “ Attorney-at-Law” ; and

41. A lawyer or a firm may display at the entrance of, or outside, any building or office in which he or it carries on practice, a sign or notice containing his or its name and professional qualifications. The sign or notice shall be of reasonable size and sober design.

42. Where a lawyer writes a book or an article for publication in which he gives information on the law, he may add his professional qualification after his name.

43. On a change of address, telephone number or other circumstances relating to his practice, a lawyer may send to his clients notice of the change and may insert an advertisement of such change in a newspaper or journal.

44. Where a lawyer is available to act as an associate of other lawyers either generally or in a particular branch of the law or legal service, he may send to lawyers in his locality only and publish in his local journal, if any, a brief and dignified announcement of his availability to serve other lawyers in that connection as long as the announcement is not designed to attract improperly.

45. (1) Except with the permission of the Court, a lawyer appearing before a High Court, the Court of Appeal or the Supreme Court shall do so in his robes.

(2) A lawyer shall not wear the Barrister’s or Senior Advocate’s robe:

(a) on any occasion other than in Court except as may be directed or permitted by the bar Council ; or

(b) when conducting his own case as party to a legal proceeding in Court ; or

46. (1) A lawyer may write articles for publications, or participate in radio and television programmes in which he gives information on the law, but he shall not accept employment from any publication or programme to advise on inquiries in respect of their individual rights.

(2) A lawyer shall not:

(a) insert in any newspaper periodical or any other publication, an advertisement offering as a lawyer, to undertake confidential enquiries ;

(b) write for publication or otherwise cause or permit to be published, except in a legal periodical, any particulars of his practice or earnings in the Courts or cases where the time for appeal has not expired on any matter in which he has been engaged as a lawyer ; and

(3) Where a lawyer is instructed by a client to publish an advertisement or notice, the lawyer may put his name, address and his academic professional qualifications.

47. (1) A lawyer shall not foment strife or instigate litigation and except in the case of close relation or of trust, he shall not, without being consulted, proffers advice or bring a law suit.

(2) A lawyer shall not:

(a) search the Land Registry or other registries for defects with a view to employment or litigation.

(b) seek out claimants in respect of personal injuries or any other cause of action with a view to being employed by the prospective client

(c) engage, aid or encourage an agent or any other person to follow up on accidents with a view to employment as a lawyer in respect of any claims arising there from ; or

(d) offer or agree to offer rewards to any person who by reason of his own employment is likely to be able to influence legal work in favour of the lawyer.

Draft RPC 2012 (Rules 103 to 109)

E —– IMPROPER ATTRACTION OF BUSINESS

103. (1) Subject to paragraphs (2) and (3) of this rule a lawyer may engage in any advertising or promotion in connection with his practice of the law, provided it:

(a) is fair and proper in all the circumstances; and

(b) complies with the provisions of these Rules.

(2) A lawyer shall not engage or be involved in any advertising or promotion of his practice of the law which:

(a) is inaccurate or likely to mislead;

(b) is likely to diminish public confidence in the legal profession, or the administration of justice, or otherwise bring the legal profession into disrepute;

(d) includes any statement about the quality of the lawyer’s work, the size or success of his practice or his success rate;

(3) Notwithstanding the provisions of paragraph (1) of this rule, a lawyer shall not solicit professional employment either directly or indirectly by any measure which is garish or unduly indiscrete.

(4) Nothing in this rule shall preclude a lawyer from establishing a web site on the world wide web and/or publishing by other means in any reputable law list or Law Directory, accurate brief biographical or informative data of himself.

104. A lawyer or a firm may display at the entrance of, or outside, any building or office in which he or it carries on practice, a sign or notice containing his or its name and professional qualifications. The sign or notice shall be of reasonable size and sober design.

105. Where a lawyer writes a book or an article for publication in which he gives information on the law, he may add his professional qualification after his name.

106. On a change of address, telephone number or other circumstances relating to his practice, a lawyer may send to his client’s notice of the change and may insert an advertisement of such change in a newspaper or journal.

107. Where a lawyer is available to act as an associate of other lawyers either generally or in a particular branch of the law or legal service, he may send to lawyers in his locality only and publish in his local journal, if any, a brief and dignified announcement of his availability to serve other lawyers in that connection as long as the announcement is not designed to attract improperly.

108. (1) Except with the permission of the court, a lawyer appearing before a High Court, the Court of Appeal or the Supreme Court shall do so in a lawyers wig and robe.

(2) A lawyer shall not wear any Barrister’s robe;

(a) on any occasion other than in court except as may be directed or permitted by the Bar Council; or

(b) When conducting his own case as party to a legal proceeding in court ; or

109.(1) A lawyer may write articles for publications, or participate in radio and television programs in which he gives information on the law, but he shall not accept employment from any publication or programme to advise on inquiries in respect of their individual rights.

(2) A lawyer shall not:

(a) insert in any newspaper periodical or any other publication, an advertisement offering as a lawyer to undertake confidential enquiries or other professional services;

(b) write for publication or otherwise cause or permit to be published, except in a legal periodical, any particulars of his practice or earnings in the courts or cases where the time for appeal has not expired on any matter in which he has been engaged as a lawyer; and

(3) Where a lawyer is instructed by a client to publish an advertisement or notice, the lawyer may put his name, address and his academic and professional qualifications.

7. Commentary on the RPC 2007 and the draft RPC 2012

A careful reading of both the RPC 2007 and the draft of the RPC 2012 rules shows that like it is the case in many jurisdictions; advertisement in the legal profession in Nigeria is not totally banned but rather regulated. Lawyers are allowed to advertise with certain restrictions: the advertisement must not contain inaccurate statements. Both Rules also prohibit inaccurate and misleading claims about the nature of legal services, the quality of legal services and comparisons between providers of legal services as well as a statement guaranteeing the outcome of a case. In summary the laws prohibit any form of advertisement that is capable of bringing the profession into disrepute.

With respect to the draft rules of the RPC 2012, the Bar Council needs to be commended for ensuring that RPC 2012 took cognizance of advancement in technology. (See Rule 103 (4) which allows a lawyer or law firm to establish a website). However, it is doubtful whether the RPC 2012 is equipped to tackle the ethical challenges that may arise from this new form of advertisement.

The flexibility of the internet and the World Wide Web in particular, forces a reconsideration of ethical boundaries. Lawyers are not limited to the equivalent of a newspaper advertisement. Lawyers also indirectly “advertise” by displaying their expertise in discussion groups and chat rooms.[24] The flexibility of the medium brings up novel concerns. Unlike newspaper advertisement, the internet is a new intricate medium which creates an entirely new way of communicating and conducting business. This inclination may be expected to accelerate to the point where it will be more important for a lawyer to be on the Web than it is to have a Yellow Pages or Martindale-Hubbell listing.[25]

The profession therefore faces a Herculean challenge in its effort to self-police the promotional efforts of its members over a medium that has no boundaries, and in a community that views any censorship as damage which can simply be circumvented. The legal profession will have to continue making efforts to understand this technology in order to preserve high ethical standards and avoid furthering the negative stereotypes of lawyers in the public’s estimation.[26] Thus quick steps should be taken in order to develop guidelines and rules so that both lawyers and the public are protected, because the Web is unfortunately already home to undignified legal practice advertisement.[27]

Part II

Pro bono Requirements under the Rules of Professional Conduct

8. Meaning and Concepts

As Watchtler[28] once puts it: “A system of justice that closes the door to those who cannot pay is not deserving of the name.” In the words of California Supreme Court Chief Justice Ronald George, “Our justice system must be there for all who need it.”[29]Pro bono publico[30] is a Latin phrase for professional work undertaken voluntarily and without payment or at a reduced fee as a public service.[31] Pro bono legal work is generally understood as activities undertaken without expectation of fees consisting of the delivery of legal services to persons of limited means or to charitable, religious, civic, community, governmental, and educational organizations.[32]

9. Sociological Basis in Nigeria

We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or adequate health services.[33]

In Nigeria, like most jurisdictions, the legal aid system only provides for a small number of legal services to low income individuals. However, because the Legal Aid Council is under-funded and under-staffed, very few clients are represented. Incidentally, majority of the representation done by the Legal Aid Council is in respect of criminal matters with little or no consideration for civil matters. As a result, many individuals and community-based organisations with low or modest income that qualify for legal aid are not represented.[34]

10. Constitutional imperatives: Chapter IV; Fundamental Rights in the 1999 Constitution FRN (as amended)

36 (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

…………………………………………………………………………………………………………………………………………

(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal….

Equality before the law demands that at least all people have access to legal assistance and the courts to enforce their legal rights and to protect themselves against injustice and exploitation. Consequently, it is argued that the right to a fair civil trial in section 36(1) and (4) of the 1999 Constitution as amended imposes duties upon lawyers to act pro bono.[35]

It is contended that where someone lacks money for civil representation, such a person’s rights are very likely to be denied in the absence of adequate free legal services, and as such cannot take advantage of the provisions contained in section 36(1) and (4). Section 36 thus provides a constitutional imperative for the provision of free legal services in civil matters for particular (indigent) litigants.[36]

11. Duty on lawyers: Mandatory versus Voluntary Pro bono work[37]

It is crucial to consider whether the responsibility for doing pro bono work is or should be an individual, moral decision to be undertaken voluntarily or whether it is or should be a professional obligation which can be imposed upon each member of the profession. Essentially, is there a professional obligation to ensure that the legal needs of everyone are met without regard to the ability to pay?

12. Arguments for Mandatory Pro bono services

It is argued that all citizens of a country are equally entitled to have their day in court. However, lawyers are the only members of the society who are trained and licensed to provide legal services and expertise. Therefore, in order to meet the legal needs of all citizens, lawyers have a moral duty to contribute back to society and share those benefits with others.
Secondly, by establishing stringent requirements of admission to the profession and in creating a duty for lawyers to prevent the unauthorized practice of law, lawyers have delegated the responsibility to themselves to practice law in a way that will serve the greatest good. Certainly, these standards serve as protections for the community against fraudulent or incapable representation. Thus the monopoly that lawyers hold on the legal market requires them to provide this service.
The third argument put forth is that lawyers have a moral duty to provide pro bono services as part of the obligations undertaken upon becoming a member of the Bar. It is argued that lawyers have a special responsibility to provide legal assistance to the poor because of the profession’s public commitment to justice. Their role as officers of the court requires legal practitioners to assist in the administration of justice by performing compulsory pro bono services.[38]
Fourthly, it is in the interest of the legal community to uphold and maintain the profession’s integrity. The public should know that lawyers have broader social interests beyond their own financial concerns. Public confidence in the legal profession might grow if citizens see that lawyers reach out to meet the needs of everyone, rather than a selected and fortunate few. By providing legal services to less fortunate members of the community, perhaps the legal profession can start to shed its “money-hungry” toga and gain the reputation of a profession that can be motivated by altruism.[39]
The fifth reason for mandatory pro bono is that a failure to engage in such work violates the right to access to justice expressed in section 36 of the 1999 Constitution, as argued above. Legal services are otherwise available only to those who are able and willing to pay relatively high professional charges. Low-income people are especially disadvantaged.[40]

13 Arguments against mandatory Pro bono

Critics of mandatory pro bono programs advance the following five basic criticisms:

13.1 Why lawyers?

It is argued that lawyers should not be held responsible for a pervasive social problem which requires a solution from society as a whole. This is because:

Firstly, it is unfair to impose such a duty upon lawyers if other professions do not have corresponding responsibilities.

Requiring lawyers to provide these services free of charge, without parallel requirements placed on other professionals to contribute their services, amounts to an excise tax on lawyers.[41]

The lawyer is likely to pass the cost of the tax on to the other clients.[42] While an increase in legal fees could probably be absorbed with relative ease by large companies, the increase in legal fees would be detrimental to those who are just above the pro bono services category.

Secondly, society as a whole should serve, not just lawyers. Mandatory pro bono programs would be unduly burdensome and unfair to lawyers.

It is impractical and inappropriate to think that constitutional rights and national needs can or should be met by the part-time volunteer efforts of one profession. A public responsibility requires a public commitment. A better suggestion perhaps would be to impose a legal tax on society as a whole rather than to put the whole burden on lawyers’ shoulders.

13.2 Unfairness of compelling charity

Some have argued that “any mandatory requirement that service be donated is seen as an effort to compel charity.”[43] Instead, public service should be completely voluntary on the part of individuals who wish to donate their services. If a lawyer refuses to place his professional skills at the service of his religious association or a Non Governmental or relief organization, it seems absurd to say that the lawyer should be professionally disciplined for failing to so do.

This attitude reflects a notion that you cannot and should not force someone to be charitable. After all, society has decided that no one has a duty to be a “good samaritan.”

13.3 Intrinsic definitions as to what time commitment is required and what constitutes “public service”

The third criticism is that mandatory pro bono service requirements are generally too vague. What is a lawyer required to do and how much time commitment is involved? What is public service exactly? The provisions detailing the requirements of that program are not specific. In Nigeria neither the NBA nor the Bar Council has provided a set standard of best practices for pro bono delivery programs for lawyers.[44]

13.4 Inefficiency

The fourth argument advanced against pro bono services by critics points to the limited resources, administrative burdens and inefficiencies of carrying out a mandatory pro bono program. It is argued that because of “the overwhelming nature of the need contrasted to the limited extent of resources available, the alleged lack of enthusiasm and competence for public service work, the unfairness of the mechanics, or the barriers of any number of administrative problems- mandatory public service will make an already poor situation worse.”[45]

14. Poor quality of representation

There is also the fear that the introduction of mandatory pro bono will result in a poor quality of representation of litigants.[46] These can manifest in two ways:

A reluctant or resentful lawyer may deliberately cause damage to the case of his client.[47] Representation without compensation or incentive may result in the provision of low-quality service to the assigned client, and as long as the lawyer performs in a way that is minimally competent, there can also be no recourse through disciplinary action.[48] Such representation technically provides “access to justice” for the client, but in form only – not in substance.[49]
Secondly, it may not be in the interests of justice, to subject the poor to a mass of lawyers who are inept to represent them.

15. Over loaded Dockets

Another suggested reason against the introduction of mandatory pro bono requirements is that if poor people have access to lawyers at the same level as paying clients, there will be an explosion of litigation which will force the already crowded dockets of the courts to collapse.[50]

16. Omission from the RPC 2007

Even though, the RPC 2007 does not contain any express provision on pro bono or its requirements, it is undisputed that members of the legal profession owe a duty of public service which embraces the provision of equal access to justice.[51] The provision of the RPC 2007 that can be said to confer a duty on lawyers to engage in pro bono services can be found in Rule 1 (Part A) of the RPC 2007; to the effect that ‘a lawyer shall uphold and observe the rule of law, promote and foster the cause of justice…’

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.[52]

Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfilment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation on lawyers is to maintain the highest standards of ethical conduct.[53] The lawyer exists to serve the public. He is a priest in the temple of justice. Consequently, inherent in the duty of ‘promoting and fostering the cause of justice’, is the duty to assist the legal profession in fulfilling its duty to make legal services available to all manner of men, irrespective of means and status. The rule incorporates the legal profession’s historical commitment to the principle that all persons in our society should be able to obtain necessary legal services.

16.1 DRAFT RPC 2012

Unlike the RPC 2007, the draft of the RPC 2012 requires lawyers to engage in pro bono services. The relevant provisions can be found in Part G of the draft rules (Rules 119).

G—–MISCELLANEOUS

Pro bono Publico Services

119. Every lawyer has a professional responsibility to provide voluntary legal services for the poor and indigent and each lawyer should aspire to render at least 50 hours of pro bono public legal services per year. In fulfilling this responsibility the lawyer should:

provide a substantial part of the 50 hours of legal services without fee or without expectation of fee to:
persons of limited means;
charitable, religious, civic, community, governmental and educational organisations in matters that are designed primarily to meet the needs of persons of limited means.
provide any additional services through:
delivery of legal services at no fee or at substantially reduced fee to individuals, groups or organisations seeking to secure or protect civil rights, civil liberties or public rights or to charitable, religious, civic, community, governmental and educational organisations in matters furthering their public or charitable purposes and where payment of customary legal fees would deplete the organisations resources or be otherwise onerous.
Participation in activity aimed at improving the law, the administration of justice, the legal system and the legal profession.
In addition a lawyer must voluntarily contribute financial support to organisations which provide legal services to persons of limited means.

16.2 Comments on Draft RPC 2012

An examination of the provisions on pro bono services in the draft rules reveal that while the Draft RPC 2012 may express a preference for providing legal representation to those who cannot afford to pay, there is no mandatory language or enforcement mechanism behind that expression. The provision is merely a theoretically part of the draft RPC 2012. A refusal by any attorney to perform his or her pro bono service hours without good cause cannot be sanctioned.

Interestingly in more advanced jurisdiction like the U.S, the duty on lawyers to engage in pro bono is also not mandatory. However, it is standard practice in America for law firms to partake in pro bono programmes and these firms take immense pride in their pro bono rankings.[54] Nigerian lawyers or law firms should emulate their American counterparts. As President Theodore Roosevelt aptly put it, ‘every man owe some of his time to the up building of the profession to which he belongs’. Indeed, this obligation is one of the great things that distinguishes a profession from a business.[55] Ruth B Ginsburg[56] aptly described the principles around pro bono work in the words of the former American Bar Association’s President Michael S Grego:

… a recommitment to the noblest principles that define the profession:

Providing legal representation to assist the poor, disadvantaged and underprivileged; and performing public service that enhances the common good.[57]

17. Conclusion

It has always been the claim of our profession that we gather together not for the purpose of promoting the pecuniary interests of our members, but to advance the public interest, promote cordial and pleasant relations between lawyers, advance the cause of legal education and law reform, and to encourage and maintain high standards and sound ethical principles in the profession. No good reason suggests itself for abandoning these worthy principles.

* LL.B, LL.M, Ph.d (KCL, London), ACIarb (London), Professor of Law and Deputy Director, Centre for Research Development and In-House Training (CREDIT), University of Ilorin, Ilorin, Nigeria. Principal Partner, Forum Conveniens Consult, Firm of Legal Consultants and Arbitrators, 10A Abdulwahab Folawiyo (Unity) Road, Ilorin, Kwara State; laroungbe@yahoo.co.uk; laroungbe@gmail.com; akanbi.mm@unilorin.ng.edu. This paper is a modified version of a discussion paper presented at the special session of the Academic Forum of the Nigerian Bar Association (NBA) on the theme: “What is wrong with the Rules of Professional Conduct for Legal Practitioners?” at the NBA, Annual Conference 25^th – 30^th August, 2013 at Tinapa Resort, Calabar, Nigeria.

[1] For the purpose of this essay, the phrase ‘attraction of business’ has been replaced with the more popular term known as ‘Advertisement.’ All or any reference to ‘advertisement’ in this paper means one and the same with the phrase ‘attraction of business.’

[2] New York Lawyer’s Code of Professional Responsibility, available at: http://www.law.cornell.edu/ethics/ny/code/NY_CODE.HTM, visited 28/08/13.

[3] Wikipedia, the free encyclopaedia, available at: http://en.wikipedia. org/wiki/Legal_advertising_in_the_United_States, visited 27/08/13.

[4] 433 U.S. 350 (1977).

[5] Lori Christman, Keith Porterfield & Brandon Unterreiner, “Ethical Considerations of Legal Netvertising,” available at: http:// www.kuesterlaw.com/netethics/brandy.htm, visited 13/08/13.

[6] The content in this part of the work are substantially culled verbatim from the work of Drew L. Kershen, “Professional Legal Organizations on the Internet: Websites and Ethics,” available at: http://www.legalethics.com/?page_id=412, visited 20/08/13.

[7] For general discussions of the commercial speech doctrine, see e.g., Will Hornsby, “Professional Ethics and Lawyer Advertising on the Internet,” available at: http://www.collegehill.com/ilp-news/ hornsby 2.html (Mar. 24, 1997); Joan C. Rogers, “How do Advertising Rules Apply to Lawyers on the ‘Net?” 12 ABA/BNA LAWYERS’ MANUAL ON PROFESSIONAL CONDUCT, 37, 43-45 (FEB. 21, 1996); Lori Christman, Keith Porterfield & Brandon Unterreiner, “Ethical Consideration of Legal Netvertising,” available at: http://www. computerbar.org/netethics/brandy.htm, pp. 2-5 of 15 (Aug. 1995), visited 23/08/13.

[8] Commercial Speech; available at: http://en.wikipedia.org/wiki/ Commercial_speech, visited 23/08/13.

[9] Zauderer v Officer of Disciplinary Counsel, 471 U.S. 629, 639 (1985). In that case, the attorney provided information about the Dalkon Shield device and pelvic infections to women but the content and context of the information clearly indicated that the attorney desired to establish a commercial relationship with the women who believed themselves injured by using the Dalkon Shield, it was held that the speech at issue is “commercial speech” entitled to First Amendment protection. Commercial speech that is not false or deceptive and does not concern unlawful activities may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest. For details, see, http://supreme.justia.com/cases/federal/us/471/626/,visited 23/08/13.

[10] For general discussion of the cases concerning commercial speech regulation of lawyer advertising, see Mitchel L. Winick, Debra Thomas Graves & Christy Crase; “Attorney Advertising on the Internet: From Arizona to Texas — Regulating Speech on the Cyber-Frontier,” 27 TEXAS TECH L. REV. 1487, 1497-1527 (1996); Brian G. Gilpin, “Attorney Advertising and Solicitation on the Internet: Complying with Ethics Regulations and Netiquette,” 13 J. MARSHALL J. COMP. & INFO. L. 697, 699-712 (1995).

[11] Texans Against Censorship, Inc. v State Bar of Texas, 888 F. Supp. 1328, 1342-1346 E.D. Tex. 1995). In that case, the attorney paid for a political advertisement about the issue of whether judges should be selected by election or another method; attorney testified that he wrote the advertisement to express his political opinion but also with the intent to acquire clients to challenge the judicial selection method used in Texas. The court ruled that the Texas Rules of Professional Conduct did not apply to this paid political advertisement because the Texas RPC only applied to commercial speech. The court also ruled that the attorney, despite his intent, did not by content and context solicit a legal relationship for profit.

[12] Drew L. Kershen, “Professional Legal Organizations on the Internet: Websites and Ethics,” available at: http://www.legalethics.com/? page_id=412, visited 20/07/13.

[13] Ethical Considerations of Legal Netvertising, above note 5.

[14] 436 U.S. 447 (1978).

[15] Reported in Ethical Considerations of Legal Netvertising, above note 5.

[16] Mark Hankins, “Ambulance Chasers on the Internet: Regulation of Attorney Web Page,” available at: http://jtlp.org/vol1/hankins.html, visited 23/08/13.

[17] Ibid.

[18] Ethical Considerations of Legal Netvertising, above note 5.

[19] Hankins, above note 16.

[20] Ibid.

[21] Ethical Considerations of Legal Netvertising, above note 5.

[22] (2001/2002 session).

[23] Legal Practitioners Act, Cap. L.11, Laws of the Federation of Nigeria, (LFN) 2004.

[24] Ethical Considerations of Legal Netvertising, above note 5.

[25] Hankins, above note 16.

[26] Ibid.

[27] Ibid.

[28] S. Wachtler, Symposium on Mandatory Pro Bono: Introduction, (1991) Hofstra L Rev 744.

[29] California Supreme Court Chief Justice Ronald George.

[30] In English it means: for the public good; usually shortened to pro bono.

[31] Available at: http://en.wikipedia.org/wiki/Pro_bono, visited 23/08/13.

[32] Robert Granfield, “The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers.” Available at: www.researchgate.net/…The_Meaning_of_Pro_Bono_Institutional_ Varia…‎ , visited 23/08/13.

[33] Soobramoney v Minister of Health, KwaZulu Natal 1998 1 SA 765 (CC) [8].

[34] Standards For Pro Bono Programs in Nigeria- UNICEF, Nigeria 2004.

[35] Brickhill, J. “The Right to a Fair Civil Trial: the Duties of Lawyers and. Law Students to Act Pro Bono” (2005) 21 SAJHR 293.

[36] D. Holness, Recent Developments in the Provision of Pro Bono Legal Services by Attorneys in South Africa, Potchefstroom Electronic Law Journal, available at http://www.saflii.org/za/journals/ PER/ 2013/5.html, , visited 23/08/13.

[37] Substantial part of the contents in this section was culled from the seminal works of Lisa Schwartz Tudzin, “Pro Bono Work: Should It Be Mandatory or Voluntary?” Pub. Journal of Legal Research, also in the Journal of Legal Profession, available at: http://www.law.ua.edu/pubs/jlp/files/issues_files/vol12/vol12art06.pdf , visited 23/08/13 and D. Holness, “Recent Developments in the Provision of Pro Bono Legal Services by Attorneys in South Africa.” Potchefstroom Electronic Law Journal, available at http://www.saflii.org/za/ journals/PER/2013/5.html, visited 23/08/13.

[38] Burke, Mechling and Pearce, (1996) Stetson L Rev 987.

[39] Strossen 1993 Mich L Rev 2132.

[40] Cramton 1991 Hofstra L Rev 1118.

[41] Humbach, Serving the Public Interest: An Overstated Objective, 65 A.B.A.J. 564, 565 (1979).

[42] Scully 1990 Hofstra L Rev 1262.

[43] Spencer, Mandatory Public Service for Attorneys: A Proposal for the Future 12 SW. L. REV. 501 (1981).

[44] Happily in 2004, the UNICEF has provided a template for pro bono service delivery for lawyers in respect of the rights of children. (See the UNICEF 2004 Template for Standards for Pro bono Programs in Nigeria).

[45] Ibid 508- 509

[46] Strossen 1993 Mich L Rev 2140; Scully 1990 Hofstra L Rev 1263; Burke, Mechling and Pearce 1996 Stetson L Rev 985.

[47] Jacobs 1998 Fla L Rev 509.

[48] Russel 2003-2004 UMKC L Rev 443.

[49] Jacobs 1998 Fla L Rev 520-521.

[50] Jacobs 1998 Fla L Rev 517.

[51] Burke, Mechling and Pearce 1996 Stetson L Rev 992.

[52] Rather curiously, the provision and spirit of Rule 1, RPC 2007 has been deleted from the Draft Rules of RPC 2012.

[53] New York Lawyer’s Code of Professional Responsibility; available at: http://www.law.cornell.edu/ethics/ny/code/NY_CODE.HTM, visited 23/08/2013.

[54] Russel 2003-2004 UMKC L Rev 441; D. Holness, Recent Developments in the Provision of Pro Bono Legal Services by Attorneys in South Africa.

[55] Arthur T. Vanderbilt, The Five Functions of the Lawyer in The Lawye’s Treasury (Eugene C. Gerhart Ed.), (New York: The Bobbs-Merril Company, INC, 1963), p. 213.

[56] Associate Justice of the United States Supreme Court.

[57] Ginsburg 2006 http://bit.ly/16gcnZd.

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