• Saturday, May 18, 2024
businessday logo


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

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

Until 2007, all forms of advertising were banned for lawyers in Nigeria. This is because the revered law profession is a noble and honourable one and the overriding notion is that one’s work should speak for them. To buttress this, the Supreme Court in NBA v Ohioma, noted that the profession should be undertaken with seriousness and lawyers have the duty to maintain the very high standard required in the practice of the profession. This is why the Rules of Professional Conduct for Legal Practitioners in Nigeria (RPC) exists.

The prevailing thought was that advertising was a form of solicitation for business to be condemned together with outright soliciting or ‘touting’. Advertising was therefore considered unprofessional conduct and a body of rules regulating in detail what lawyers could and could not do to draw the attention of prospective clients to their services, was established.

The RPC, 2007 provides the current position on the issue. Rule 39 (1) of the RPC 2007 provides that a lawyer may engage in advertising or promotion in connection with his practice of the law provided it is fair and proper in all the circumstances and it complies with the provisions of the rules. Rule 39(2) further states that such advertising or promotion shall not be one that makes comparisons with or criticizes other lawyers or other professions or professionals; or include statements about the quality of the lawyer’s work, size or success of his practice.

The import of this provision is that while some form of advertising is allowed, soliciting by legal practitioners is expressly prohibited. According to Rule 39(3), it is unprofessional for a lawyer to solicit professional employment either directly or indirectly by circulars, handbills, advertisement, through touts or by personal communication or interview; by furnishing, permitting or inspiring newspaper, radio or television comments in relation to his practice of the law; by procuring his photograph to be published in connection with matters 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; by permitting or inspiring sound recordings in relation to his practice of law; or by such similar self-aggrandizement.

However, according to Rule 39(4), nothing precludes a lawyer from publishing a brief biographical or informative data of himself, including all or any of his name or names of his professional association; his address, telephone number, telex number, e-mail address; the schools, colleges or other institutions attended with dates of graduation in a reputable law list or law directory, journals, and so on.

Read also: Young Business Lawyer

The recent incident where Adekunbi Ogunde, a partner in the law firm of Wole Olanipekun and Co has been accused of soliciting a brief from SAIPEM, a multinational oil servicing company has brought about a lot of controversies, and along with it, debate on where the line lies between soliciting and business development.
Ogunde had sent a letter to Francesco Caio, a senior official at SAIPEM espousing the expertise of the firm 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 the founding partner, Wole Olanipekun, his position as the Chairman of the Body of Benchers – a body in which chief judges of states are members, and described him as “the head of the entire legal profession in Nigeria”. She concluded, “We are aware that another firm is currently in the matter but you will agree that highly sensitive and political matters require more influence… I hope you consider this so as to help SAIPEM avoid a huge payout in claims”.
This correspondence was brought to the attention of Ajumogobia & Okeke, the firm that was briefed to handle the matter and expansively to the entire Nigerian legal community. In a disclaimer letter by Wole Olanipekun and Co., the firm noted that Ogunde had acted in her capacity as a partner, without the firm’s instructions. In an apology letter as well, Ogunde affirmed that she acted without instruction and not being a litigator herself, she was not aware of the nuances in the practice area.

Advertising, soliciting, promotion: where is the line?
Over the years, the legal profession has witnessed a lot of changes, especially regarding the use of social media, technology and other communication platforms. It is now common for firms to have websites with information on successful transactions and litigation matters.

These include details of the parties, transaction amount, and the actions the firms took to ensure the successful outcome. And this information is further posted on their social media accounts, and sometimes reported in newspapers, radio and television, with the intention of displaying their expertise and drawing the attention of potential clients. All this is despite the prohibitions of Rule 39(3) and the strict restrictions of Rule 39(4).

If the provisions of Rule 39(3) of the RPC are to be considered strictly, it could be argued that providing detailed information about cases and clients, interviews, and announcements, inter alia, are prohibited by the rules. Given the prevalence of this practice, could it be that lawyers in Nigeria have come into the times when along with being considered esteemed members of society, they are also business people? And indeed the increasing presence of Business Development Professionals and administrators in law firms may corroborate this. Furthermore, given the impact of Covid-19 and the acceleration of globalisation, waiting for one’s work to speak for them, could be likened to 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, and even borderline solicitation. But the question is at what point would a practitioner be said to have crossed the line in actively engaging potential clients for work? And how far can practitioners go without bringing the profession into disrepute?

The United Kingdom from where Nigeria’s legal system sprang, only started to ease the traditional ban on solicitor advertising in 1984 when the Law Society Council by a majority vote granted solicitors a limited right to advertise. Prior to this, the rules prohibited any form of advertising by solicitors in the UK.

The essence of this long-standing principle was to eschew any form of competition within the legal profession. The law society was cautious enough not to allow for too much by imposing relatively restrictive advertising conditions on English solicitors. Historically, clergymen, and later specially trained laymen entered English courtrooms as advocates.

They charged no fee and claimed no stake in the outcome of a case. Later on, the role of advocacy fell on the wealthy in the society to act as representatives in disputes. Therefore, only wealthy men, often sons of aristocratic families, entered the early legal profession. These men did not depend upon their professional skills to earn a living. They only enjoyed the exalted position in society as esteemed public servants.

This public service orientation and the public esteem which it afforded necessitated the high standards of conduct and formed the main ideals upon which lawyers should carry on their practice, including that they refrain from trade and competition, concepts which the aristocrats at the time disdained.

Therefore, since advertisement engendered competition among practitioners, it was prohibited, as the legal profession was not to be a subject of commercialism. In the UK now, solicitors have less restrictive advertising regulations than barristers. This is because the bulk of a barrister’s work is obtained from solicitors.

As noted above, the dynamics that informed the ideals of the profession have changed. And while they should not be eschewed, room must be made for the times we live in. The basic distinction between advertising and soliciting as envisaged by the RPC is that while solicitation is asking for employment from clients either directly or indirectly, advertising and promotion are strategies of putting one’s legal practice out there without being misleading. Such promotion is also to be fair and moderate in all circumstances.

Looking at the Ogunde and SAIPEM incident three clear actions that crossed the line from promotion to soliciting have been pointed out by lawyers. The first is that Ogunde solicited by directly asking that a brief be given to her firm. The second is that she did this with the awareness that another firm had been professionally engaged on the matter while implying their lesser competence to handle the matter when compared to Wole Olanipekun & Co. Lastly, the suggestion that her firm’s founding partner could exert some influence over the matter not by his legal expertise but by his office in certain positions of trust, and the access granted him as a result. Thus, the prevailing view is that all of these not only exceeded the allowances in Section 39(3) but crossed strongly-worded boundaries of the Rules and the intrinsic essence of the profession.

One of the courses stipulated by the Council of Legal Education is solely dedicated to the Rules of Professional Conduct for lawyers in Nigeria. The essence of this is to ensure that any lawyer that attends the Nigerian Law School is aware of these rules regardless of their preferred practice area. Therefore, Ogunde’s defence on this count is largely received with scepticism, as even ignorance in many cases, is no defence in law.

The Rules of Professional Conduct regulating the practice of legal practitioners in a post-covid era was made fifteen years ago. A lot had changed before the pandemic and a lot is still changing. Law firms in various jurisdictions have extended their practices in not just their locality but to other jurisdictions too, utilizing merger and Verein structures to boost business potential. This has necessitated some of the actions earlier noted such as interviews, transaction announcements, and media coverage of their successes, which could be argued to be a contravention of the RPC 2007.

It is to be hoped that this unfortunate incident moves beyond being a scintillating bit of information to becoming a thoughtful and timely reevaluation of how the RPC can support the economic growth of the legal sector.