By
Ayuk Kure,
Lagos.
kureayuk@gmail.com.
The subject of entrepreneurship is visited with droopiness each time it is raised in the circle of lawyers. This is because the Rules of Professional Conduct for Legal Practitioners (RPC), 2007 restricts engagement in business or trade by legal practitioners in Nigeria. The consequence of this has been a lack of interest in entrepreneurship and a care free attitude towards business. Little wonder that not many profitable ventures in the country can be traced to lawyers.
It is in the light of the above that we have examined the relevant provision of the RPC and consulted books and experts in order to take an informed stance on the subject.
In the first place, a legal practitioner is defined by section 24 of the Legal Practitioners Act (LPA) as one entitled to practice law in Nigeria as a barrister and solicitor of the Supreme Court. This definition is further fortified by section 2(1) of the same Act which provides that a person shall be entitled to practise as a barrister and solicitor if, and only if, his name is on the roll. In our context therefore, every reference to a “legal practitioner” or a “lawyer” shall be a reference to a person entitled to practise as a barrister and solicitor and is in fact practising as such or either of the above.
That being the case, a scrutiny of the provision which forms the legal framework on engagement in business or trade by legal practitioners is germane in order to advance this discussion. The relevant provision is rule 7 of the RPC which provides thus:
“7(1) unless permitted by the General Council of the Bar (hereinafter referred to as the “Bar Council”) a lawyer shall not practice as a legal practitioner at the same time as he practices any other profession”
7(2) a lawyer shall not practice as a legal practitioner while personally engaged in-
The business of buying and selling commodities;
The business of a commission agent;
Such other trade or business, which the Bar Council may from time to time declare to be incompatible with practice as a lawyer or tending to undermine the high standing of the profession.
7(3) for the purpose of this rule, “trade or business” includes all forms of participation in any trade or business but does not include-
a. Membership of the board of directors of a company which does not involve either executive, administrative or clerical functions;
b. Being secretary of a company; or
c. Being a shareholder in a company”
From the above, two restrictions on business or trade are deducible: the simultaneous practice of law with any other profession and the combination of the practice of law and engagement in trade or business.
The Simultaneous Practice of Law with another Profession
The Oxford Advanced Learners’ Dictionary defines ‘profession’ found in rule 7(1) of the Rules as “the traditional jobs that need a high level of education and training, such as being a doctor or a lawyer” The Cambridge Dictionary also defines the term “as any type of work that needs special training or a particular skill, often one that is respected because it involves a high level of education”
In interpretation of statutes, the cardinal principle is that where words used in a statute are unambiguous, clear and unequivocal, they must be given their literal and ordinary dictionary meaning. It suffices to say then that rule 7(1) RPC precludes a lawyer from engaging in law practice concurrently with any other profession which requires high level of education or special training. For example, a lawyer cannot engage in legal practise and at the same time practice as a medical doctor or an accountant unless and until he is permitted to so do by the Bar Council.
It therefore appears from the foregoing analyses that endeavours which do not require special training or education may well be undertaken by a legal practitioner side by side his law practice without any fear of breaching rule 7(1) of the RPC notwithstanding that that endeavour brings him profit. For instance, we are of the opinion that if a practicing lawyer engages in an endeavour which is his hobby and which brings him profit, so long as it does not come within the ambit of rule 7(2), it should not amount to a breach of the Rules of Professional Conduct. E.g. a lawyer who loves photography and does that from time to time for profit should not be counted as a breach of the Rules.
Combining the Practice of Law with Trade or Business
What the Rules prohibits under rule 7(2) is the direct engagement in business or trade by legal practitioners. A lawyer is thus not precluded from doing business or trade through other persons. The learned author, Obi Okoye in his book “Law in Practice in Nigeria” supported this position when he said:
“A legal practitioner in practice is only restrained from carrying on such trade personally. He is therefore free to own such business provided the day-to-day running of the business is by his employees, business associates or his relations.”
It will be noted from rule 7(2)(a)(b)(c) RPC that engaging in business generally is not precluded by the RPC. The types of businesses or trades proscribed are the ones expressly provided which includes: engaging in the business of buying and selling of goods personally, acting as a commission agent and such other businesses as may be declared incompatible with the legal profession from time to time by the Bar Council. It means that any business which is not incompatible with the practice of law can be engaged in albeit not personally but through employees or business associates or relatives.
In spite of the above, Rule 7(3) RPC provides that a lawyer can engage in law practice as well as be a director or secretary or shareholder of a company.
Whether Rule 7 RPC Hampers Entrepreneurship?
The Rules of Professional Conduct for Legal Practitioners does not kill the entrepreneurial spirit as many erroneously believe. In our opinion rule 7 does not stop a lawyer from doing business at all, it only restricts him from engaging in it personally. The RPC in fact encourages entrepreneurship. There are four of such instances in Rule 7. They are:
- A lawyer can engage in any other endeavour where his passion lies and which sometimes bring him profit side by side law practice so long as it does not fall within the ambit of rule 7(2) of the Rules;
- A lawyer can practise any other profession side by side law practice so long as the Bar Council permits him;
- A lawyer can engage in business through his employees, business associates or relations;
- A lawyer can practice law and at the same time be a director, secretary or shareholder of a company.
This is quite relieving because under the aforementioned instances lawyers can engage in business or trade by evolving several profitable ventures which will not only improve their finances but better the lot of fellow countrymen. They need not exercise fear of not being able to manage the businesses effectively as they can always employ professionals to do that for them and reserve the power of supervision to themselves.
Further, at a round table meeting held by the Institute Of Advanced Legal Studies in 2012 and which report is available on the official website of the institute, the institute observed that although there are legal impediments to the practice of trade or business by legal practitioners in Nigeria, a legal practitioner can run a partnership for the purpose of legal practice. What this means is that a lawyer has several opportunities to be an entrepreneur under the Nigerian law. These entrepreneurial opportunities are not only available outside of the profession but they are much more available in the profession itself. The only challenge is that lawyers in Nigeria are not trained to be entrepreneurs or to even see these entrepreneurial opportunities. In fact, as the institute further observed, the Nigerian Law School and faculties of law in the country do not adequately train the students in entrepreneurial skills development. This is why at the end of the deliberations, the institute recommended among other things that:
- The Nigerian Universities Commission should review the curriculum of legal education in Nigeria to prepare aspiring lawyers for entrepreneurship or other enterprises and the curriculum for corporate law practice should be developed and expanded to include modern trends in corporate law practice especially optional law courses including entrepreneurial skills.
- In order to encourage entrepreneurship the Bar Council should be more flexible in developing the rules of professional conduct for legal practitioners.
From the foregoing, it is our conclusion that the RPC does not hamper entrepreneurship among lawyers, the lack of an understanding of the provision and the failure to encourage it at the higher institutions of learning has.
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