Friday, 25 January 2019
NLS LAGOS ETHICS TASK AND ANSWER (GROUP 7 ) Week 8
PROFESSIONAL ETHICS AND SKILL
ADVERTISEMENT AND IMPROPER ATTRACTION OF BUSINESS;
(ii) CORRUPTION ISSUES
Advertisement and Soliciting and other illegal means of attracting business by a lawyer.
Use of agents and touts to attract business
Involvement in corruption by lawyers
At the end of the lesson, students will be able to:
Explain the meanings of advertisement and soliciting and other illegal means of attracting business by a lawyer.
Identify and discuss specifically what aspects of the legal system are affected by corruption and how these encourage or influence lawyers to behave in corrupt or unethical ways;
Suggest specifically what lawyers could do to make the legal system to be free from corruption
Professional Ethics and Skills
Advertisement and Improper Attraction of Business
Donald Henshaw was called to the Nigerian Bar in 2007. He practised in the Law firm of Banigo and Associates. Five years later, he believed he had paid his dues and decided to set up his own practice. He majored in Oil and Gas Law practice and ran his firm successfully until the recent crash in oil prices. Donald has now branched into Corporate Law Practice. He is quite desperate and needs to build his clientele in this area of Law. He remembers that at the time he was in the Law School, the RPC 2007 was introduced and the position of the law regarding advertising and improper attraction of business had changed. He recalled that under the 2007 rules, advertisement was now allowed.
With this knowledge, Donald has asked one of his juniors in chambers to go to Abacus TV station, his cousin’s TV house, to book a slot so that he can discuss issues involving Corporate Governance. He requested persons to call in to ask any questions to which he responded for free. In the course of responding to questions, he casted aspersions on Nigerian lawyers stating that 99.9% were bribe-takers and givers and were haters of Nigeria. He said he belonged to the 0.1% who were free from corrupt practice. He appealed to many of the viewers to come to his office, the address of which he stated on air and promised to give them a discount on their visit. He stated the location of his office describing it as a palace even bigger than the size of the Windsor Castle, belonging to the Queen of England. He told the listeners that he currently employs over 50 lawyers, 20 of whom hold a PhD degree and the rest, an LL.M. He said they were so good at handling corporate matters which caused the three major telecommunications companies to become their clients. He expressed to his cousin his wish to grant these interviews at least twice every week, which the cousin agreed to. Donald now grants interviews twice a week on Abacus station. Onyinye, your friend’s daughter thinks he is beginning to sound like a broken record.
For those that attended his office, he distributed flyers to them and on the flyers were inscribed “The God’s chosen chambers with the most brilliant and professionally qualified Lawyers in town. These clients confirmed that the office was very easy to locate as a result of the large and rainbow-coloured signpost placed at the main road three streets away from Donald’s Law firm. The inscriptions on the signpost read “Donaldson Chambers, Solicitors and Advocates, University of Swansea Graduate, Member of the IBA”
Now answer the questions that follow.
Comment on Donald’s position that advertising is allowed under the present Rules.
Discuss all the ethical issues that arise in the above scenario stating the general principles of law and exceptions to these where necessary.
All groups are to answer all questions and to submit task (hard and soft copies) by 9 a.m. Friday morning.
The issue bothers on advertising by a Lawyer under the Rules of Professional Conduct 2007 (referred to as RPC henceforth). Prior to the making of the RPC advertising was prohibited in the legal profession under the Old Rules.
In LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE V GANI FAWEHINMI, the Late Chief Gani Fawehinmi after editing a book advertised it in a newspaper known as ‘West Africa’ in the following words, “A New Book on Nigerian Constitutional Law titled Nigerian Constitutional Law Reports 1981 Vol One Edited by Chief Gani Fawehinmi the famous, reputable and controversial Nigerian Lawyer.” The office of the Attorney General of the Federation brought a two count charge of professional misconduct against Chief Fawehinmi on the grounds of contravention of the rules of advertisement under Rules 33 and 34 of the Rules of Professional Conduct 1979. The matter was however struck out but on the successful challenge of the composition of the tribunal, which had offended the rule of natural justice and fair hearing.
It was after then, that the RPC was made and, a lawyer may now engage in any advertising or promotion in connection with the practice of law so far as it is fair and proper in all circumstance; and complies with the provisions of the Rules. Rule 39(1) RPC 2007
The Rules in RULE 39 (2) then provides the circumstances where advertisement is prohibited as follows. A lawyer shall not engage or be involved in any advertising or promotion of his practice of the law which is inaccurate or likely to mislead; is likely to diminish public confidence in the legal profession or the Administration of Justice, or otherwise bring the legal profession into disrepute, makes comparison with or criticises other lawyers or other professions or professionals, includes statement about the quality of the lawyer’s work, the size or success of his practice or his success rate; or is so frequent or obstructive as to cause annoyance to those to whom it is directed.
Rule 39(3) RPC a lawyer shall not advertise his services or solicit professional employment either directly or indirectly by;
(a) Circulars, handbills, advertisement, through touts or by personal communication or interview;
(b) By furnishing, permitting or inspiring newspaper, radio or television comments in relation to his practice of the law
(c) 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;
(d) By permitting or inspiring sound recordings in relation to his practice of law; or
(e) Such similar self-aggrandisement.
The Rules of professional conduct also provides for circumstances in which a lawyer may be permitted to advertise and they include
Publishing in a reputable law list or Law Directory, a brief biographical or informative data of himself
print on his note papers, envelopes and business cards his:
(a) Name and address;
(b) Academic and professional qualifications and title including the words
“Barrister-at-Law”, “Barrister and Solicitor”, “Solicitor and Advocate”, “Legal Practitioner”,
(c) Any National Honours.
Display in front of his law office a sign or notice board which should be of reasonable and sober design.
A lawyer who has written a book or an article for publication may include his name and academic professional qualifications in the publication. Rule 42 RPC
A lawyer may publish in a newspaper or other periodical a notice of the change of his office address, phone number or other information relating to his office or practice. Also permissible to send to a client notice of a change of address or telephone number or other circumstances relating to his practice.
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 employment from the public. Rule 44 RPC
A lawyer to 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 such publication or programme to advice on inquires in respect of their individual rights. Rule 46(1) RPC.
Thus, Roberts’s assertion that advertisement is now permitted in the legal profession is not totally right as advertisement in the legal profession in Nigeria is allowed only to the extent to which the rules of professional conduct 2007 permits.
There are ethical issues arising from the scenario. These issues are:
Whether a lawyer can discuss details and answer questions of his legal practice on a television station
Whether a lawyer can give a derogatory opinion about fellow lawyers in comparison to himself on a television station
Whether a lawyer by means of a television station can advertise his services in order to invite clients to his office with promise of a discount
Whether a lawyer is allowed to appeal to his listeners by elevating the status of his office or himself
Whether a lawyer is allowed to grant frequent interviews on a television station on a frequent basis
Whether a lawyer can distribute flyers which advertise his services
Whether a lawyer can use loud colours and very large sizes for his signposts and the nature of information with regards to him that should be on the signpost
With regard to the first issue on whether a lawyer can discuss details of his legal practice on a television station the general principle of law is that a lawyer can engage in advertising where it is fair, proper and in accordance with the Rules of Professional Conduct. Rule 1, 39 (1), Rules of Professional Conduct (hereinafter referred to as RPC). In the scenario where Donald discusses issues concerning Corporate Governance and answered questions for free he has not breached any Rules of professional conduct. This is because it was fair and proper and did not breach any Rules of Professional Conduct.
In answer to the second issue as to whether a lawyer can give a derogatory opinion about fellow lawyers in comparison to himself on a television station the general principle is that a lawyer can engage in advertising where it is fair and within the rules. Some exceptions are that a lawyer should not make misleading statements, make statements that bring the legal profession into disrepute and affect the due administration of justice or make comparison with or criticise other lawyers. Rule 1, 39 (1), (2)(a)-(c)RPC. In the above scenario where Donald accused 99.9%(ninety-nine point nine per cent) of lawyers were bribe takers and haters of Nigeria and he was of the 0.1% of lawyers who were free from corrupt practice he made a misleading statement that brought the legal profession into disrepute, could affect the due administration of justice and he also made comparison between himself and other lawyers. Donald has breached these Rules of Professional conduct.
As to the third issue whether a lawyer can invite clients to his office by means of television advertisements the general principle is that a lawyer can engage in advertising where it is fair and within the rules. An exception to this is that a lawyer is not allowed to use television or radio interviews and comments in relation to his practice to solicit services. Also a promise to give discounts as a form of incentive also breaches the Rules of professional conduct. Rule 1, 39 (1), (3)(a),(b) RPC. In the scenario Donald, inviting clients to his office during television interviews and promising to give discounts amounts to a breach of the rule on the need to maintain a high standard of legal practice and a breach of the rule not to use interviews and comments to solicit for services.
On whether a lawyer is allowed to appeal to his listeners by elevating the status of his office or himself the general principle of law is that a lawyer can engage in advertising where it is fair and within the rules. However, an exception is that a lawyer is not is not allowed to make statements about his success rate, the quality of his work or success of his practice. Rule 39 (1), (2) (d) RPC. In the scenario, Donald stating that his office is like a palace even bigger than that of the Queen of England, and making boasts about his law firm employing a number of lawyers who hold either an LL.M or Ph.D and who were very good at handling corporate matters breaches the rule that lawyers should not make statements about their success rate.
In regard to the issue whether a lawyer is allowed to make frequent interviews the general principle of law is that a lawyer can engage in advertising where it is fair and within the rules. However, a lawyer is not allowed by the rules to advertise his services by interviews and it would not be fair and within the rules where it is frequent or obstructive as to cause annoyances to those to whom it is directed. Rule 39 (1), (2)(e), (3)(a) RPC. In the scenario because of the frequency of his interviews which he did twice a week my friend’s daughter Onyinye is annoyed and feels he is sounding like a broken record. Donald in this scenario has breached this Rule of Professional Conduct.
On whether a lawyer can distribute flyers which advertise his services the general principle is that a lawyer can engage in advertising where it is fair and within the rules. However, an exception to this general rule is that a lawyer cannot use circulars, touts or handbills to advertise his services. Also a lawyer is not supposed to boast about his success rate or quality of his work. Rule 39 (1), (2)(d), (3)(a) RPC. In the scenario the use of flyers which by Donald which contained statements about the quality of his work breached the Rules of Professional Conduct.
On whether a lawyer can use loud colours for his signpost and the nature of the information that should be on such signposts the general principle is that a lawyer or a firm may display at the entrance of or outside any buildings or offices in which he or it carries on practices a sign or signpost containing his or its professional qualifications. One exception to this general principle is that the signpost must be of reasonable size and sober design. Rule 41, RPC. In the scenario the signpost of Donald is referred to as being large and rainbow coloured. This does not correlate with sobriety as required under the Rules. The information as to qualification given however hinges on and is within the Rules of Professional Conduct.