By: Soliat Disu
Islamiyyat Balogun
Makanjuola Mariam
Introduction
In Nigeria’s legal landscape, young lawyers clamour for improved remuneration, while their senior counterparts voice concerns over the inadequate payment of fees by clients for legal services rendered. These parallel narratives highlight a complex challenge within the legal profession, where the pursuit of fair compensation intersects with the growing economic pressures faced by both aspiring and seasoned legal practitioners.
On one hand, young lawyers in Nigeria find themselves grappling with the daunting task of establishing their careers amidst a backdrop of limited financial reward. Conversely, senior lawyers, who have spent years honing their expertise and building reputations, encounter a distinct set of challenges. Despite their vast experience, these seasoned professionals frequently face clients who undervalue their services, resulting in inadequate payment of fees. These unfortunate trends not only undermine the financial well-being of lawyers but also threatens the sustainability of their practices.
Although, the Rules of Professional Conduct for Legal Practitioners, 2007 (the Rules) and Legal Practitioners (Remuneration for Legal Documentation and Other Land Matters) Order 1991 (Order 1991) made provisions for remuneration and fees for legal practitioners, the provisions were insufficient and often not adhered to by lawyers. While Part F of the Rules was silent on the specific fees to be charged as remuneration, Order 1991 only encompasses provisions for compensation related to legal documentation and land matters. However, these provisions are no longer suitable or adequate to address the current economic realities.
The Legal Practitioners Remuneration Order, 2023
As a result of persistent agitation for a better welfare package for both lawyers in employment and remuneration for lawyers for legal services rendered, an ad hoc committee – ‘the NBA Remuneration Committee, was constituted by the Nigerian Bar Association with a mandate to recommend adequate remuneration for legal services in Nigeria. On the 7th of February 2022, the Committee formally handed over its report to the NBA. The report made far reaching recommendations on the earning capacity of legal practitioners, the salary and emoluments of legal practitioners in salaried employment and the new scale of charges for the Nigerian legal profession with creative enforcement solutions.
Following through with the process, the National Executive Committee of the NBA (NBA-NEC) constituted a White Paper Committee to review the Report and harmonize divergent views on the recommendations and map out modalities for its implementation. On the 9th of June 2022, the White Paper Committee issued a report which was adopted by the NBA-NEC. The result of the Committee is the Legal Practitioners Remuneration (for Business, Legal Service and Representation) Order, 2023 (the Order) which was passed on the 16th of May 2023 under Gazette No. 0102 in Vol. 110, Government Notice No. 58. Rules of Professional Conduct for Legal Practitioners, 2023.
Further to the above, the Federal Ministry of Justice on the 15th of May, 2023, re-constituted and inaugurated the Legal Practitioner’s Remuneration Committee (LPRC) to amongst other things, regulate and standardise the remuneration of legal practitioners in Nigeria.
Rule 48(2) of the amended Rules of Professional Conduct for Legal Practitioners, 2023 provides that any fee for service rendered by a legal practitioner shall not be in violation of the Remuneration Order. And by virtue of Paragraph 1 of the order, pursuant to the powers vested on it by Section 15(3) of the Legal Practitioners Act, the LPRC can issue orders pertaining to the remuneration of legal practitioners in respect to consultation and legal opinion, incorporation or registration of companies and business names, litigation, property transactions, as well as commercial or other transactions or services.
According to Paragraph 1, the prescribed fees are divided into scales 1, 2, 3, 4 and 5 respectively. Sub-paragraph (1) states:
(1) The remuneration of a legal practitioner for business and service rendered shall in respect of-
a) any consultation and legal opinion, be as prescribed in Scale 1 set out in the Schedule to this Order;
b) incorporations, or registration of Companies and Business Names be as prescribed in Scale 2 set out in the Schedule to this Order;
c) litigation, be as prescribed in Scale 3 set out in the Schedule to this Order;
d) property transactions, including Mortgages and related transactions be as prescribed in scale 4 set out in the Schedule to this Order.
Sub-paragraph (2) however provides that: “Without prejudice to any arrangement reached between a legal practitioner and his client on a percentage-based fee in respect of commercial or other transaction or service not covered in Sub-paragraph (1) of this paragraph, the remuneration of a legal practitioner shall be as prescribed in Scale 5 set out in the Schedule to this Order, provided that no percentage-based fee arrangement shall be lower than the minimum hourly rate prescribed in Scale 5 of the Schedule to this Order.”
Paragraph 2 of the Order stipulates that the scale of charges for any business or service not explicitly provided for in the Order shall be determined based on several factors, including complexity of the matter; skill, labour, experience, specialised knowledge and responsibility required on the part of the legal practitioner; the number, diversity and importance of the documents prepared; time expended on the business or service; location and circumstances in which the business or service is transacted or performed; value of property involved and the importance attached to the business by the client.
By the foregoing provisions, legal practitioners in Nigeria now have a fixed minimum amount to be charged as professional fees. These amount divided into Scale 1 to 5, are equally categorized based on three State Bands under the Schedule. Under Paragraph 14, which is the interpretation part of the Order, State band 1, 2 and 3, with respect to a legal practitioner’s remuneration, means the state where the legal practitioner carries on his practice or the state where the business or service is to be carried out. Hence, State band 3 includes the Federal Capital Territory and Lagos state. State band 2 includes Akwa Ibom, Bayelsa, Benue, Cross River, Delta, Edo, Ekiti, Kwara, Kogi, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau and River States. While State band 1 includes Abia, Adamawa, Anambra, Bauchi, Borno, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Kastina, Sokoto, Taraba, Yobe and Zamfara States.
However, according to Paragraph 3 of the order, professional fees to be charged by legal practitioners are to the exclusion of certain expenses, unless as may be agreed by parties. Such expenses include;
“…
a) stamps, auctioneer’s or valuer’s charges, travelling expenses, fees
paid on searches, fees paid to government or its agencies on registrations, costs of extracts or certified true copies from any register, court filing costs or other disbursements reasonably and properly paid;
b) any extra work occasioned by changes occurring in the course of any business such as the death, insolvency or winding up of a party to the transaction;
c) any application for first registration under any enactment relating to registration of any title to land or any other interest in land and associated filing costs necessitated by a transaction for which a scale of fee is payable to the legal practitioner and;
d) any application for consent required under the Land Use Act but shall include any engrossing charge and allowance for the time of the legal practitioner and his support staff and copying and parchment and all other similar disbursements.”
In any event, according to Paragraph 5 of the Order, a lawyer may, before undertaking any business or service, by writing under his hand and communicated to the client, elect that his remuneration shall be in accordance with Scale 5 as provided in the Order and such remuneration shall not be lower than the minimum set out in the relevant or appropriate Scale. In furtherance to Paragraph 5, Paragraph 8 states to the effect that fees prescribed in the scales set out in the schedule to the Order are to be adhered with and not subject to negotiation. Hence, any deviation from its provision shall be agreed by both the legal practitioner and the client; and in strict compliance with the provision of the Order.
Therefore, a legal practitioner who intends to charge or agreed to a fee for any business or services which is lower than the amount stipulated in the Schedule to the Order, shall apply to the Remuneration Committee of the Bar Association for approval or refusal of the proposed remuneration within two (2) days of receiving such instruction from a client. The process for getting approval or refusal in such circumstance is provided under Paragraph 10 of the Order.
According to Paragraph 11, any legal practitioner who contravenes the provisions and such violation comes to the attention of the Remuneration Committee, the Committee shall report such infraction to the Legal Practitioner’s Disciplinary Committee. The Remuneration Committee also has the power to delegate the investigation of any complaint to the branch of the legal practitioner against whom the complaint is made or to such other legal practitioners in a team of not less than three and not more than five as it may deem fit.
The Order unfortunately, does not specify any prescribed punishment for such violations of the provisions of the Order. It is then assumed that upon the report to the Legal Practitioner’s Disciplinary Committee, the likely punishment would be according to Section 11(1) of the Legal Practitioner’s Act which provides that the Disciplinary Committee, may if it thinks fit, give a direction; a) ordering the Registrar of the Supreme Court to strike off the name of a person from the roll of Practitioners in Nigeria, b) suspend that person from practice as a legal practitioner for such period as may be specified in the direction; or c) admonish that person.
However, the Order does not seek to be against lawyers taking up pro bono work as Paragraph 12(1) states to the effect that; “Notwithstanding anything contained in this Order, a legal practitioner is entitled to carry out pro bono work or legal aid matters recognised under the Legal Aid act, 2011”
By implication, a legal practitioner can also carry on gratuitous service to a client after submitting an affidavit disclosing the facts and circumstances justifying same to the Remuneration Committee within seven (7) days of receiving the instruction from client. The establishment of the Legal Practitioners Remuneration Order is a crucial aspect of the legal profession. The provisions of this Order is a better improvement from what was formerly contained under Part F of the Rules of Professional Conduct for Legal Practitioners, 2007, as it has the power of influencing the fairness, accessibility, and sustainability of legal services in Nigeria.
While some lawyers are of the opinion that providing a scale for remuneration or fees for legal practitioners in Nigeria is like putting them in a box, others are wondering about how effective the implementation would be. It however remains that by understanding its provisions, challenges, and implications, legal professionals may be on the right path to a just and balanced approach to remuneration for legal services.