Thou shalt not advertise – the line between business development and solicitation

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Until 2007, all forms of advertising were banned for lawyers in Nigeria. Indeed, the revered legal profession is noble and honorable and the overriding notion is that one’s work should speak for them. To support this, the Supreme Court in NBA v Ohioma, noted that the profession must be exercised seriously and that lawyers have a duty to maintain the very high standard required in the exercise of the profession. This is why the Rules of Professional Conduct for Legal Practitioners in Nigeria (RPC) exist.

The dominant idea was that advertising was a form of commercial solicitation to be condemned along with pure and simple solicitation. Advertising was therefore considered unprofessional behavior and a set of rules regulating in detail what lawyers could and could not do to draw the attention of potential clients to their services was established.

The RPC, 2007 provides the current position on the matter. Rule 39(1) of the CPR 2007 provides that a lawyer may engage in advertising or promotion in the course of his practice of law provided that it is fair and appropriate in all circumstances and complies with the provisions of the rules. Rule 39(2) further states that such advertising or promotion must not be such as to draw comparisons with or criticize other lawyers or other professions or professionals; or include statements about the quality of the lawyer’s work, the size or success of his practice.

The significance of this provision is that while some form of advertising is permitted, solicitation by legal practitioners is expressly prohibited. According to Rule 39(3), it is unprofessional for a lawyer to solicit professional employment directly or indirectly through circulars, pamphlets, advertisements, canvassers, or personal communication or interview; by providing, permitting or inspiring newspaper, radio or television commentary relating to his practice of law; by obtaining the publication of his photograph in connection with matters in which he has been or is engaged, or concerning the manner of their conduct, the extent of the interest involved or the importance of the position of the lawyer; by authorizing or inspiring sound recordings in connection with his practice of law; or by such similar self-glorification.

However, according to Rule 39(4), nothing prevents a lawyer from publishing a brief biography or informational data about himself, including all or part of his name or the names of his professional body; his address, his telephone number, his telex number, his e-mail address; schools, colleges or other institutions attended with graduation dates in a law list or reputable law directory, journals, etc.

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The recent incident where Adekunbi Ogunde, a partner at law firm Wole Olanipekun and Co, was accused of soliciting a brief from SAIPEM, a multinational oil services company, has sparked much controversy and with it a debate on where The dividing line is between canvassing and business development.
Ogunde had sent a letter to Francesco Caio, a senior SAIPEM official, espousing the company’s expertise to handle the $130 million claim against them by the Rivers State government. The letter highlighted the firm’s reputation in the practice area, with particular emphasis on founding partner Wole Olanipekun, his position as chairman of the Body of Benchers – a body of which state chief justices are members, and described him as “the head of the entire legal profession in Nigeria”. She concluded, “We are aware that another company is currently in the case, but you will agree that very sensitive and political issues require more influence … I hope you will think about it in order to help SAIPEM avoid a huge claim payment.”
This correspondence has been brought to the attention of Ajumogobia & Okeke, the firm which has been appointed to handle the case and widely to the wider Nigerian legal community. In a release letter from Wole Olanipekun and Co., the company noted that Ogunde acted in his capacity as a partner, without instructions from the company. Also in a letter of apology, Ogunde claimed she acted uneducated and not being a litigator herself, she was unaware of the nuances in the practice area.

Advertising, canvassing, promotion: where is the limit?
Over the years, the legal profession has gone through many changes, particularly with regard to the use of social media, technology and other communication platforms. It is now common for businesses to have websites with information about successful transactions and disputes.

These include the details of the parties, the amount of the transaction and the steps taken by the companies to ensure success. And this information is further published on their social media accounts, and sometimes reported in newspapers, radio and television, with the aim of displaying their expertise and attracting the attention of potential customers. All this despite the prohibitions of Rule 39(3) and the strict restrictions of Rule 39(4).

If the provisions of Rule 39(3) of the CPR are to be considered strictly, it could be argued that the provision of detailed business and customer information, interviews and announcements, among others, are prohibited by the rules. Given the prevalence of this practice, could it be that Nigerian lawyers have arrived at a time when, in addition to being considered esteemed members of society, they are also businessmen? And indeed, the growing presence of business development professionals and administrators in law firms may support this. Plus, given the impact of Covid-19 and accelerating globalization, waiting for your work to speak for them could be like scooping the ocean with a teaspoon.

Indeed, advertising has become an essential part of business and one cannot build a business without some form of advertising, even borderline solicitation. But the question is, when would a practitioner have crossed the line into actively engaging potential clients to work? And how far can practitioners go without bringing the profession into disrepute?

The United Kingdom, where the Nigerian legal system originated, only began to relax the traditional ban on the advertising of lawyers in 1984 when the Council of the Law Society, by a majority vote, granted lawyers a limited right to advertise. Previously, the rules prohibited any form of advertising by lawyers in the UK.

The essence of this long-standing principle was to avoid any form of competition within the legal profession. The Bar has been careful enough not to allow too much by imposing relatively restrictive publicity conditions on English solicitors. Historically, clerics, and later specially trained lay people, entered English courtrooms as lawyers.

They charged no fees and claimed no interest in the outcome of any case. Later, the role of advocacy fell to the wealthy in society to act as representatives in disputes. Therefore, only wealthy men, often sons of aristocratic families, entered the legal profession. These men did not depend on their professional skills to earn a living. They only enjoyed high position in society as esteemed officials.

This public service orientation and the public esteem it provided necessitated high standards of conduct and were the primary ideals upon which lawyers should pursue their practice, including that they refrain from commerce and competition, concepts that the aristocrats of the time disdained.

Therefore, advertising generating competition between practitioners, it is prohibited, the profession of lawyer should not be subject to commercialism. In the UK, barristers now have less restrictive advertising regulations than barristers. Indeed, most of a lawyer’s work is obtained from lawyers.

As noted above, the dynamics that shaped the ideals of the profession have changed. And while they shouldn’t be avoided, space must be made for the times in which we live. The basic distinction between advertising and solicitation as contemplated by the CPR is that while solicitation is asking for employment directly or indirectly from clients, advertising and promotion are strategies to publicize one’s legal practice without misleading. This promotion must also be fair and moderate in all circumstances.

Regarding the Ogunde and SAIPEM incident, three clear actions that crossed the line from promotion to solicitation were highlighted by the lawyers. The first is that Ogunde solicited by directly requesting that a brief be submitted to his cabinet. The second is that it did so knowing that another company had been professionally engaged on the matter while implying that it was less competent to handle the matter compared to Wole Olanipekun & Co. Finally, the suggestion that the founding partner of his firm might exert some influence on the issue not through his legal expertise, but through his position in certain positions of trust, and the access granted to him as a result. Thus, the prevailing view is that all of these measures not only exceeded the indemnities provided for in Article 39(3), but crossed the strongly expressed limits of the Rules and the intrinsic essence of the profession.

One of the courses stipulated by the Council of Legal Education is uniquely devoted to ethical rules for lawyers in Nigeria. The essence of this is to ensure that any lawyer who attends Nigerian law school is aware of these rules, regardless of their preferred area of ​​practice. Consequently, Ogunde’s defense on this point is widely received with skepticism, as even ignorance in many cases is no defense in law.

The Rules of Professional Conduct regulating the practice of legal practitioners in the post-covid era were drawn up fifteen years ago. A lot had changed before the pandemic and a lot is still changing. Law firms in various jurisdictions have expanded their practices not only in their locality, but also in other jurisdictions, using merger and Verein structures to drive business potential. This required some of the actions mentioned previously, such as interviews, deal announcements and media coverage of their successes, which could be considered a breach of the 2007 CPR.

Hopefully, this unfortunate incident will turn into little more than scintillating news and become a thoughtful and timely reassessment of how CPP can support the economic growth of the legal industry.

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