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Expanding the Frontiers of Pro-‐bono Work in Nigeria by Y.C. MAIKYAU, SAN, FCIArb. (UK)

EXPANDING THE FRONTIERS OF PRO-‐BONO WORK IN NIGERIA

BY Y. C. MAIKYAU, SAN, FCIArb. (UK) AT THE 2015 ANNUAL GENERAL CONFERENCE

OF THE NIGERIAN BAR ASSOCIATION. MONDAY 24TH AUGUST 2015

1.0 INTRODUCTION

1.1 I take the liberty to thank my good friend and brother, Mr.

Augustine Alegeh, SAN, FCIArb (UK), the President of our great Association, for extending this invitation to me, to speak on the subject of Pro-‐Bono, in no less a gathering of great legal minds, than the 2015 Annual General Conference of the Nigerian Bar Association, with the theme: “LAWYERS AND NATIONAL DEVELOPMENT.”

1.2 This theme could not have been more apt than in our present day Nigeria, where it is generally accepted that, unless and until something drastic is done to salvage not just a stagnant Nigeria, but one that is retrogressing. Posterity will judge us guilty of abdicating the duties/responsibilities placed upon our shoulders, to build and bequeath a lasting legacy for the next generation of Nigerians. Should this failure occur (and I am optimistic that we can stop it from happening), it would be catastrophic and we cannot afford to let that happen.

1.3 I say this because, almost, if not all the lawyers who are

attending this Conference are direct beneficiaries of the efforts and sacrifices made by the older generations (with some paying the ultimate price of death) to build, manage and keep the institutions, through which we all passed to become lawyers practising in diverse fields of human endeavor. Unfortunately, we have folded our arms, are laid back and complacent. We are comfortable with our personal and individual attainments and there appears, not to be any effort towards giving back to the society through the use of our skills and expertise as lawyers.


1.4 We seem to have lost sight of the fact that, over 90% of the effort put in by the older generation, to establish the structures we benefited and are still benefitting from, were provided or offered on a rather Pro-‐Bono basis. No doubt, public funds were committed in building some of these institutions but it took the statesman-‐heart with which they applied the public resources in doing so. They were selfless in the pursuit of the common good of Nigerians and some offered their lives pro bono publico. On the other hand, in contrast to that generation, we have become self-‐centered and have decided/chosen to plateau at various levels of our growth as individuals and at best, our extended families. The level of passiveness on our part is so horrific that, even the structures we enjoyed, which were partly and to a great deal responsible for our present moulding, have been abandoned. We not only have failed to give back even the exact of what we got or received, we offer so much less or nothing at all. We meet in the comfort of our homes, offices or gardens to grumble and complain about the absence of National Development and the collapse of the system, as our favourite past time. This should not be the case and we must consciously and deliberately take it further in this Conference by resolving that; this cannot remain the order of the day.

1.5 In our rather abdicated position, we talk about National Development only in terms of what we believe to be our entitlements and not in terms of our participation in the process as part of our responsibility towards the people arising from our professional calling. There is today the abuse of the sense of entitlement amongst all of us. A Priest, whom I consider my big Brother, Rev. Fr Felix Kumai, in his sermon of Sunday May 18, 2014 had this to say –

In a related issue, humans by nature feel a sense of entitlement, that by our very existence we are owed something -‐ and that includes by God. We live in a world that asks what you have done for me lately. I have read that many young people are growing up with a sense of entitlement: society owes it to them. Entitlement is when we feel that the world owes us something without having to do


anything to earn it. Entitlement mindset produces greed and ingratitude -‐ James 4:1-‐3 and 2 Thessalonians 3:6-‐12. A sense of entitlement is the opposite of the spirit of grace and gratitude as others should be at our beck and call and live at our pleasure. The sense of entitlement robs us of the sheer joy of recognizing everything as a gift from God. It makes us envious, angry and eventually unhappy. Worse, it can lead us to think that others do not deserve what we have.

David McCullough, an English teacher, in his commencement speech to the Wellesley High School Class of 2012, Wellesley Massachusetts delivered these sobering words: "None of you is special. You are not special. You are not exceptional." He called the graduating students "pampered, sheltered, doted upon, helmeted, bubble wrapped, nudged, cajoled, feted and fawned over. McCullough said these things because kids today are so pampered and spoiled that they have an attitude of entitlement. He urged them not to do things just for the sake of personal accomplishment or self-‐indulgence, but because you love and believe it is important. The CEO of a Fortune 500 company was in a commercial flight that developed some problems and had to make an emergency landing. Everyone was de-‐boarded and then got in a long line to rebook their flights. He walked by 50 people in the line and stepped up to the counter and began to blame the ticket agent for his missing an important meeting. She told him to get back in line whereupon he said, "young lady, do you know who I am? I could have your job with a simple phone call!" What a way to intimidate! What an attitude of entitlement! What is the impact of this sense of entitlement? Arrogance creeps in and exaggerating our importance; Dependence by trying to use the system


or others for personal gain; we think we are owed in life; we blame and never hold ourselves accountable; we become a burden to others; and raising ourselves above others. So how can we avoid an attitude of entitlement? Humble ourselves -‐ this is the opposite of entitlement; check our motives; understanding that everything we are and have comes from God as a gift. Thomas Akempis writes, "Do not be ashamed to serve others for the love of Jesus and even to seem poor in this world." This is how we can be useful.”

1.6 I am sure we can bring this sermon to our present situation. As

lawyers, whenever we complain about the lack of development in our society and point accusing fingers to the leadership is like the Biblical casting of the speck in another man’s eye when we carry logs in our own eyes. We are quick to remind the public of our status as lawyers. While that is not wrong in itself, we must remember that our society is only interested in knowing us as lawyers by the way we care and not by our verbal declarations of our status and membership of the legal profession.

1.7 In the context of this paper (Expanding the Frontiers of Pro-‐Bono Work in Nigeria) with emphasis on LAWYERS AND NATIONAL DEVELOPMENT, one may argue that, National Development, is not an exclusive preserve or responsibility for lawyers and that professionals in other endeavours, have a stake and must be carried along in this discussion for completeness. While this argument may be justifiable in a sense, its validity suddenly diminishes in the face of what I describe “the natural trail-‐blazing attributes of lawyers” in bringing about National Development.

1.8 Certainly, this is not intended to relegate other professionals to

the background. The point being made here is that, lawyers have the natural first-‐call duty to take the lead, chart the course while others follow. We have therefore come to remind ourselves that, the primary responsibility of developing this Nation rests upon us as lawyers and we must have a natural appetite to take the lead in National Development. National


Development for a lawyer is therefore more than just a civic duty or responsibility; it is a natural tendency arising from our unique and peculiar professional calling.

1.9 In the book, Professional Conduct of Legal Practitioners in

Nigeria, Chapter 2 of which dealt with the topic The Role of the Legal Practitioner in Society, the learned author Professor J. O. Orojo, referred to the following statements made on the roles of lawyers in developing Nations. (See pages 21 – 25)

a. At the opening of the Accra Conference on Legal Education

at the Ghana Law School on January 4, 1962, Kwame Nkrumah was reported to have said:

“In a developing country, the first priority is not for lawyers trained to conduct litigation between wealthy individuals…. The lawyers needed in a developing state are, in the first place, those trained to assist the ordinary men and women in their everyday legal problems and particularly in the new problems likely to arise through industrialization…Secondly, and perhaps most important of all, we need lawyers in the service of the state, to deal with treaties and commercial agreements and with questions of private and public international law….”

b. Also, President Kenneth Kaunda, in an address to the Law

Society of Zambia on 24th of April 1970 said that:

“The lawyer in a developing society must be something more than a practicing professional man; he must be more even than champion of the fundamental rights and freedoms of the individual. He must be, in the fullest sense, a part of the society in which he lives and he must understand that society if he is to be able to participate in its development and the advancement of the economic and social well-‐being of its members. The lawyer must go out beyond the narrow limits of the law, because… while the law


is the instrument through which society is preserved, in its shape and character, it is the reflection of the society.”

c. Professor L.C.B. Gower, a jurist and well-‐known legal

educator, warned that the public responsibilities of the legal profession in a developing country are even greater than in the highly developed industrial states. About the needs of developing countries, he said with characteristic forthrightness, inter alia:

“They need commercial, corporation, and property lawyers if they are to achieve an economic take-‐off. They need bilingual, international, comparative and constitutional lawyers if they are to survive as states and to enter into large unions which Pan-‐Africa sentiment and economic development demand…. They need courageous lawyers with the highest ethical standards if the atrophy of the rule of law and of personal and academic freedom and the corrosive growth of corruption, nepotism and elitism are to be arrested, and if military and police power is to be kept within bounds. Most of all, perhaps, they need constitutional lawyers sophisticated in other disciplines if they are to find a viable substitute for the Westminster model of parliamentary democracy.”

d. Professor Orojo, equally noted the remarks by Sir,

Adetokunbo Ademola, Chief Justice of Nigeria (Rtd) (of blessed memory), who emphasised the role of Nigerian legal practitioners as that of legal advisers to the government, commerce, industry and private citizens, as champions of reform and as defenders of human rights and concluded significantly that “the respect in which the Bar in any country is held is the best indication of freedom in that country.” The learned author finally stated thus:

“The Nigerian legal practitioner (as in other developing countries) bears a much heavier responsibility to his society than his counterpart in a


highly developed country. In the first place, the Nigerian legal practitioner has to face not only the problems of the developing society but also many of those of the developed one into which Nigeria is moving at a hectic rate; the present rate of change in every facet of life could not have been foreseen. Secondly, he is one among the very few privileged people in an environment where the vast majority are not only illiterate but also ignorant, superstitious and poor; his social and traditional environment clogs him and he requires to make a great effort not only to break through but to play his proper role of social catalyst. In the circumstances, Nigerian legal practitioners must be able not only to perform their traditional functions of catering for the professional needs of the citizens, of administering justice and manning the various legal institutions of the state, but they must also be involved in social change; they must be committed to law reform to ensure the harmonization of law with the culture of the people and they must strive to ensure a strict adherence to the rule of law and among other things, ensure that the newly acquired political power is carefully watched and controlled so that it is not used to protect or perpetuate the status quo or class domination. As the watchdog of the people, they must, through their independence and total commitment to social justice, provide the necessary support to sustain equally independent and fearless judiciary, the last hope of man for law and order, peace and progress.”

1.10 This virtue that we carry can be translated into National

Development but not through commercialized provision of our professional legal services. We must consciously and deliberately make ourselves available to offer or render professional legal services, pro-‐bono publico. This is why as lawyers, it is imperative to consider expanding the frontiers of pro-‐bono works in Nigeria, towards National Development. The “expansion” required may not necessarily entail the creation of


completely new areas where we need extend pro bono services. It would in my view, require a complete re-‐orientation of the legal minds through a “discovery” of who we truly are as lawyers. An understanding of who we are and what we stand for in our society, will as a natural occurrence, pull or drive every lawyer towards a deliberate and conscious application of his skills and expertise pro bono publico, leading to National Development. Put differently, ignorance of the true identity of the Nigerian lawyer has limited our horizon and consequently shut up the natural potentials that we carry for National Development, thereby leaving so much of the expectations of Nigerians unmet and unattended to. A side effect of this self ignorance is that society misunderstands who lawyers actually are or should be. Stereotyped beliefs such as all lawyers are liars, lawyers turn white into black, etc are all a product of the ignorance I talk of.

1.11 The worse of the stereotypes is that belief that law is not for the poor (reminiscent of the telephone is not for the poor cliché), something I heard when studying in the Law School. Today we see the fallacy of these assumptions given that many of us coming from very poor and humble backgrounds are proud to say we have made our mark in the profession and the society at large. But a typical Nigerian lawyer is primarily conscious of the commercial benefits that accrue to him, while the thought of being in the core of National Development by reason of his professional calling, flashes through his mind secondarily, if at all. It was once asked as to where the lawyers are who were in the fore front of the struggle against totalitarian regimes and who seemingly disappeared since the return to democratic governance – almost as if their task in nation building has come to an end simply because we now have civilian governance. This is an aberration and must be addressed and corrected. The struggle with the loss of identity of a lawyer is not only peculiar to our jurisdiction, but this should not be a consolation for our lack of participation in the dimension that we ought to be. For me therefore, this discussion must necessarily be about the “expansion” of our involvement/participation in pro bono works in all the Frontiers of our National life and not the other way round. All the frontiers belong to the lawyers or at the very


least, we have a stake in everything that goes on in this Nation and we must take charge.

2.0 SO WHAT IS PRO-‐BONO PUBLICO?

2.1 “Pro Bono Publico” which is often shortened ‘Pro bono’ is a

Latin phrase meaning “for the good of the people or public.” The phrase is generally used to describe professional work/services undertaken voluntarily and without payment.

2.2 Unlike volunteerism, pro bono uses the specific skills of professionals to provide services to those who are unable to afford them. In a sense however, there may be some elements of volunteerism in pro bono service. Where for instance, a lawyer takes up a cause which begins with a person who can afford to pay fees but decided to do so pro bono in order to satisfy the legal requirements of locus standi but the objective is to forestall similar injustice being inflicted on the less privilege. It must therefore be stated at the onset that, it is the clear intention ab initio, not to receive compensation that determines whether the services offered or being rendered, are done on pro bono basis. If a lawyer chooses to offer services to one who can pay but is not so charged for the obvious reason that compensation would come some other way in the future, this will not in my view be considered as pro bono service. A lawyer who is engaged by a client to pursue a certain cause at an agreed fee, but who was unable to realize the payment of his professional fees, does not by reason of failure to get payment said to have rendered pro bono service. This is because, in this situation rights and obligations have been created and these can be enforced by either of the Parties. A lawyer, who chooses not to assert his right to fees at the conclusion of a matter conducted by him at the instance of his client, cannot claim to have rendered pro bono service, in the true sense of that expression.

2.3 Now, even though in a general sense the expression “pro bono” can be used to describe the provision of free non-‐legal professional services for the good of the public e.g. in the area of health or where Engineers come together to construct


bridges for communities etc, the evolution of the concept of pro bono service, is directly connected with the legal profession. As a part of former British Colony, the Nigerian Lawyer is trained and fashioned along the common law traditions. Our concept of justice system of laws, as one that is equally applicable to all men, is rooted in the Magna Carta of 1215 and the subsequent Statute of Henry VII of 1495. In other words, the concept of justice flowing from the Magna Carta of 1215 is that, all men have equal access to justice. But it has also been agreed and accepted that, justice would only remain a myth and farfetched, unless and until there is equal access by all men to legal representation.

2.4 Hence, the expression equal access to justice means, equal

access to legal representation. The concept of pro bono publico as we know it is therefore, primarily concerned with the provision of access to justice by ensuring equal access to legal representation. This is in recognition of the fact that, legal representation is expensive and not readily affordable by all. The imperative of “expanding” the frontiers of pro bono services, is even more today than it had ever been; given the concrete economic realities in Nigeria. Consequently, the need to focus not only on the provision of pro bono legal services in its present scope and practice, but also to get involved in all frontiers of our National life for the purpose of National Development, cannot be over emphasized. Again as mentioned earlier, the emphasis must be on the re-‐orientation of the mind of the present day lawyer.

3.0 PRO BONO EFFORTS IN NIGERIA 3.1 Before looking at how we can re-‐orientate ourselves and by so

doing become effective providers of legal services, pro bono publico, towards National Development, it is pertinent to identify some of the worthwhile pro bono efforts already undertaken in Nigeria, by both the public (Federal/State Governments) and the private sectors (professional bodies, NGOs etc) either independently or in conjunction with each other.


4.0 STATUTES, RULES OF COURT AND INSTITUTIONS

A. We have the Constitution of the Federal Republic of Nigeria, as the grund norm and the document that binds us together as a people. (There are contentions about whether or not the Constitution as it is has attained that objective). This paper is not intended to address that debate, suffice it however to state that, the Constitution, has amongst other fundamental rights, recognized the right to representation by counsel of one’s choice. See Sections 36(6) (c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). This is again the influence of the Magna Carta, but as earlier indicated, access to Courts as the citadel of justice, though guaranteed by Sections 6(6), 36 and 46 of the Constitution, there is the need for equal access to legal representation before the Constitutional guarantees can have any meaningful effect.

B. Administration of Criminal Justice Act, 2015 (Sections 5(2)(c); 17(2)).

C. Court Rules

There is acknowledgement of the uneven opportunities with respect to access to justice.

ü Supreme Court Rules, Order 2 Rule 14(4)

14(4) Where the Court grants leave to a party under this Rule, the Chief Justice shall assign a legal practitioner to that party.

ü Court of Appeal Rules 2011, Order 13 Rules 5(2) and (3)

“(2) Where a person without means is not awarded costs in the proceedings, no fees shall be taken from him by a Legal Representative assigned to him.

(3) Where a person without means is awarded costs against his opponent he shall be entitled to include and receive in such costs the fees of any Legal Representative assigned to him and all other fees and costs remitted by his admission to proceed as a person without means.


ü Federal High Court (Civil Procedure) Rules 2009, Order 38 Rule 2 “(2) If the application is in the opinion of the Judge,

worthy of consideration it shall be referred to a legal practitioner willing to act and unless the legal practitioner certifies that in his opinion the applicant has good cause of action or good ground of defence, as the case may be, the application shall be refused.”

ü High Court of the Federal Capital Territory (Civil Procedure)

Rules, 2004

“5. On granting an application, a Court or Judge in chambers may assign to the applicant any legal practitioner willing to be assigned, and any legal practitioner assigned shall not be discharged by the applicant except with leave of the Court or Judge in chambers.

4.1 Establishment of the Legal Aid Council by the promulgation of

the Legal Aid Decree No. 56 of 1976, later Legal Aid Act Cap L9 LFN 2004 which was repealed to give way to the Legal Aid Act, 2011 Cap. L9 LFN, 2011. This Act came into effect on the 3rd of June 2011 and introduced certain provisions aimed at strengthening pro bono works in Nigeria. The efforts by Chief Chimezie Ikeazor, SAN, Chief Debo Akande, SAN and Chief Solomon Lar (all of blessed memory) and many others in starting what gave birth to the Legal Aid Council would never be forgotten. Section 18 specifically provides as follows:

“18 Pr0 bono cases and enjoyment of privileges

1) A legal practitioner who institutes or conducts pro bono cases on behalf of persons entitled to legal aid under this Act shall register such cases with the Council, which shall keep record of and monitor the progress of such matters.


2) A legal practitioner who applies to be appointed to the rank of Senior Advocate of Nigeria shall be required to show evidence of diligent conduct of not less than three pro bono cases in the legal year immediately preceding his application.

3) It shall be a professional misconduct for any legal practitioner to abandon or otherwise neglect such cases.”

5.0 OFFICE OF THE PUBLIC DEFENDER, LAGOS STATE

5.1 The office of the Public Defender in Lagos State was established

as an agency of the Lagos State under the Office of the Public Defender Law 2003 (as amended in 2008) to serve as an autonomous institution with the primary objective of providing free legal services to the indigent residents in line with the Lagos State Government’s Policy on access to justice for all. The official web site of the Lagos State Government records that:

“The OPD therefore epitomizes a transformation of the Justice Ministry from a defacto “Ministry of Law and Order” under the Ministry rule until 1999, when under the leadership of Professor Yemi Osinbajo, SAN, as the Honourable Attorney General and Commissioner for Justice, it became a Ministry of Justice where protection of the rights of the citizen is a core objective.”

6.0 THE NIGERIAN BAR ASSOCIATION (NBA)

6.1 Consistent with the sustained effort to enthrone the rule of law

in Nigeria, the Nigerian Bar Association made a Declaration on the 1st of January 2009, to wit: “PRO BONO DECLARATION FOR MEMBERS OF THE NIGERIAN BAR ASSOCIATION.” For ease of reference and to emphasise the importance of this Declaration as a recognition of the responsibilities of the members of the NBA to provide pro bono services, I consider it instructive to reproduce portions of this Declaration.


“WHEREAS, the legal profession has a privileged role and is uniquely positioned in matters of justice and therefore has the duty, means and opportunity to promote a fair and equitable legal system and respect for human and constitutional rights in collaboration with the State, the judiciary and legal services organizations; Members of the NBA have a responsibility to provide pro bono legal services. This responsibility stems from the profession’s role and purpose in society, and from its implicit commitment to a fair and equitable legal system.”

Food for thought: looking at the provisions of the Rules of our Court and the Legal Aid Act, in the context of the hurdles an indigent litigant need to sail through before he qualifies for the pro bono services suggested, do they really add any value?

6.2 Importantly, this Declaration has captured the unique and privileged position that we lawyers occupy in our society and the responsibility that is intrinsic in our calling as members of the Noble profession. In this Declaration, there is an identification of who we are and a recognition of our responsibilities to the society. The consequential actions that would translate these Declarations into benefits to our society must flow from our natural appetite for justice as lawyers.

6.3 Commendable efforts have been demonstrated by the NBA towards institutionalizing the provision of pro bono services amongst lawyers, but more needs to be done. I am pleased to note that, exactly 30 days ago, the Nigerian Bar Association Young Lawyers Forum, held a summit in Benin, Edo State between 22nd to 24th of July 2015 with the theme “IMPERATIVES OF PRO BONO WORK FOR YOUNG NIGERIAN LAWYERS,”

7.0 LAW FIRMS

7.1 The Global Network for Public Interest Law, established the Lagos Public Interest Law Partnership (LPILP). LPILP is a


platform for Lagos State to partner with private law firms in order to provide pro bono legal services to indigent residents of the State. The goal of LPILP is to extend access to justice and guarantee the right of every individual to access to justice, irrespective of his or her financial means. Between January 2013 and April 2014, LPILP had 65 partnering firms and organisations that provided free legal services to indigent residents of the State e.g. Olaniwun & Ajayi, Aluko & Oyebode, Simonscoopers Partners.

8.0 OTHER ORGANISATIONS

ü LEDAP -‐ Legal Defence and Assistance Project. Involved in Indigent and Human rights defence. NGO of lawyers working to promote the rule of law and the overall access to justice, Human Rights and Human Security.

ü DSS -‐ Duty Solicitor Scheme. Involves inter alia, the training of lawyers to offer pro bono advice and representation at Police Stations and to inmates in prisons.

ü CLO -‐ Civil Liberties Organisation. ü LANE -‐ Legal Assistance Network ü NADL -‐ National Association of Democratic

Lawyers

ü HURILAWS-‐ Human Rights Law Service ü CRP -‐ Constitutional Rights Project ü CDHR -‐ Commission for the Defence of Human

Rights ü HRM -‐ Human Rights Monitor ü IHRHL -‐ Institute of Human Rights and

Humanitarian Law ü SERAC -‐ Social and Economic Rights Action

Center ü FIDA -‐ International Federation of Women Lawyers


Generally, these orgnisations provide legal aid, training to lawyers and law reform programmes.

9.0 LAWYERS AND PRO BONO SERVICES

9.1 The fundamentality of the roles of lawyers from the perspective of the application of their legal skills or expertise pro bono publico, towards National Development/Nation Building, would be better appreciated or understood, in my opinion, if we look at the historical antecedents of pro bono service as we know it today. It should not be forgotten that in days of yore a lawyer could not even charge for his services. He merely makes do with whatever the litigant gives him in the nature of the stipend that was put in the back pocket of the gown, which unfortunately today we have even sealed. Could this be because we have shifted from the original ideal of the pocket on the gown to the ideology of “Ghana Must Go” sacks?

9.2 To do this, I propose to use an epigram; “BACK TO OUR FUTURE.” This is what I mean; we are today talking about pro bono publico as a means of providing access to justice by way of extending legal representation to persons who need one but cannot afford it or because of the cause involved. However, the concept of pro bono publico certainly did not begin today. For those who participated in this practice, about 5 decades ago, the realities of pro bono services in the year 2015, was in their future. Fifty (50) years ago, the players/practitioners could only have hoped or expressed optimism that, the pro bono works will continue to grow, but they were certainly not in a position to know such details like the exact types of challenges we are presently contending with; those to whom the baton in the race for pro bono service delivery was handed over to. On the contrary, we (in our present day pro bono works) have the privilege to look at the baton and through the beacons on the track on which it travelled to us, examine the different stages of the race, in order to appreciate the best way to carry on with the crusade without dousing or diminishing the potency of the concept in our approach to the practise. This is more so that, on the principle expressed in the latin maxim, nemo dat quod non habet, it is only what we received as the concept of pro bono


service, that we can give. What we give may even be less than what we received, if steps are not taken to jealously guard and protect what had been handed over to us.

9.3 Donald Trump, the American Billionaire and Republican Presidential hopeful, was quoted as having said “…. I try to learn from the past, but I plan for the future by focusing exclusively on the present. That’s where the fun is.”

9.4 I propose to adopt this approach in looking at pro bono service

for the purpose of this paper. I believe when we go back to our past i. e. when our present day experience was the future of that past, we would be able to properly plan the future of pro bono service as we presently take part in National Development through the provision of pro bono services. For us lawyers, it would be so much fun because that would simply be “living in and enjoying our natural habitat.”

10.0 SO WHAT DID WE RECEIVE AS THE CONCEPT OF PRO BONO PUBLICO?

10.1 As members of an organized society, there is nothing anyone

would do or seek to do, outside of a legal order. No development can happen in any nation without a legal framework within which such development can happen and that is why we must constantly remind ourselves of the fundamental role we all have to play towards the building of a Nation, we all desire to have. But, as citizens of Nigeria, who are privileged to be members of the only Noble profession, there is an expectation that we would play our fundamental role of providing services that will influence, engender, propel or nurture policies that would lead to the establishment of legal frameworks for nation building. This responsibility cannot be on commercial terms. This is why, our participation in National Development must primarily be offered on pro bono publico basis. Any benefits (pecuniary or otherwise) that would accrue to a lawyer in the process of Nation building should arise as a secondary consideration. It should be the benefit that we get from an effective system built through our participation on pro bono basis.


10.2 The concept of lawyers’ obligation to render service for the public good is an inherent future of the legal profession, thus, it is as old as the profession itself. The early appointments for pro bono services by lawyers were made only as deemed necessary by the presiding Judge in English Criminal Proceedings. Through the early part of the 19th Century, those charged with treason could request that legal representation be appointed on their behalf. The appointment of lawyers to offer representation was discretionary and there was no clear cut basis for the exercise of that discretion. In some cases, the appointments were not effective. Subsequently, it was noticed that in the early 19th Century into mid-‐20th Century, Counsel who happened to be in the Court room at the commencement of criminal proceedings were assigned by the presiding Judge to represent the accused person. But according to the Oxford University Press Dictionary of Legal Usage, the widespread use of the term pro bono or pro bono publico, dates only from the 1970’s. (See definition of pro bono public Dictionary of Modern legal usage 2nd Edition 1995).

10.3 It was reported in Martha Davi’s account of the Vera Institute of Justice’s plan in 1963, to mobilise volunteer lawyers for MFY (Mobilisation for Youths) Legal Services through Democratic clubs, suggests that, the option of seeking pro bono assistance through organized Bar, pro bono clearing houses or large firm pro bono departments, was not available.

10.4 The question which necessarily follows is; since pro bono

publico is quite clearly a recent coinage, in what form did the concept of free legal service exist before the advent of the expression, pro bono publico?

10.5 Professor Russell G. Pearce, (Professor of Law and Co-‐Director

of the Louis Stein Center for Ethics and Law, Fordham University School of Law, in a paper titled “Lawyer and Public Service, The Historical Perspectives on Pro Bono Lawyering,” suggested a framework for understanding the evolution of the concept of lawyers’ obligation to serve the public. In doing so, the learned Professor of law viewed the lawyers’ role from three (3) perspectives; (a) The Governing Class lawyer (b) The Cause lawyer and (c) The Pro Bono Lawyer.


a. The Governing Class Lawyer 1. The core of this approach according to the learned Professor is

that, lawyers in contrast to business people are above self-‐interest and accordingly are uniquely able to discern and pursue the common good. He went on to say that, as America’s governing class, lawyers manage the society in the interest of promoting the rule of law.

2. This idea he said, is central to the system of government where the people elect their leaders or representatives (the Republican type of Government) as opposed to a Monarchy. This, according to the learned professor, was the dominant ideology in the 19th Century. This system of Government is likened to our system of Democratic Government, where the representatives or leaders are elected by the people.

3. Professor Pearce proffered that by the turn of the 20th Century,

the dominant ideology of the legal elite became that of professionalism. Lawyers were described as the American Aristocracy; as “providing the enlightened Political leadership that protected life, liberty and property.” Louis Brandeis, in the paper titled “The Opportunity in the Law” published in 1914 stated that lawyers “hold a position of independence, between the wealthy and the people, prepared to curb the excess of either.” In the preambles to the 1908, 1970 and 1983 legal ethical codes promulgated for the American Bar Association there is a claim that “the very future of our system of Government depends, in significant part; upon the ethical conduct of lawyers.”

4. In our own context, the governing class lawyers can be equated

to those lawyers who held or hold positions in Government either as Public Officers or Political office holders. An understanding of their calling as lawyers, naturally drives or propels them into availing themselves every opportunity to improve the lot of the people. The motivation for this class of lawyers, is not the personal reward for what they do or would do. The impetus flows from the understanding of the obligation that comes with being a lawyer. Also the discharge of such


obligations for the common good of the people, is not triggered or influenced by the possibility of an external reward. It is intrinsic in their make up as lawyers and for them, it is simply a natural disposition to act, pro bono publico. Their fulfillment is achieved by the opportunity to stand for the common good of the people by share privilege of being a lawyer.

5. I am sure we can safely put Chief Jeremiah Obafemi Awolowo,

SAN of (Blessed Memory) in this class of lawyers. His contributions to the attainment of Independence in Nigeria and his policies in the then Western Nigeria, were clearly a demonstration of an understanding of who he was as a lawyer and what he stood for the people. I do not in any way make light or intend to relegate the contributions by other founding fathers of this Nation, who were non-‐lawyers, you will agree with me that, while they all contributed immensely to the realization of Independence, the contributions of the lawyer amongst them (Chief Awolowo, SAN) was seasoned with the nobility that is peculiar only to the profession of law. I can confidently cite, in this categorization, the likes of Professor Yemi Osibanjo (SAN) and now His Excellency, the Vice President of the Federal Republic of Nigeria. The transformation that was engendered during his time as the Honourable Attorney General and Commissioner for Justice, Lagos State, could only have been achieved by a person who knew himself beyond just being a Civil Servant, appointed to head the Ministry of Justice, Lagos State. It took an understanding of the peculiar and unique call, resident upon a lawyer, to transform the Ministry of Justice Lagos State, into a model Ministry of Justice for other States in Nigeria. The emergence of the office of the Public Defender in Lagos State, a worldwide recognized feature of pro bono service, was established during his time as the Honourable Commissioner for Justice, Lagos State. This singular act as reported in the official website of Lagos State gave birth to a “Justice Ministry” as opposed to the “Ministry of Law and Order” inherited from the Military regime. He is a Lawyer -‐ Statesman at heart with a good grasp of statesman ideals. There is no better way of saying that professor Yemi Osinbajo, SAN worked for the common good of the people, when he served as the Attorney General and Commissioner for Justice.


We cannot expect anything less from the Vice President of the Federal Republic of Nigeria.

6. Again, but for another “lawyer-‐statesman at heart” at the helm of affairs in Lagos State, Mr. Babatunde Raji Fashola, SAN, when Ebola threatened the world, the Nigerian story would probably not have been the same today. Remember too that, Lawyers were at the heart of the economic miracle of the Asian Tigers; and do not forget Lin Qua Yew of Singapore, was a first class holder of the LLB degree. Thank God for lawyers!!

b. The Cause Lawyers 1. Towards the middle of the 20th Century, it was noticed some

lawyers were beginning to put their financial interests above their professional duties. The Legal elites responded by organizing the bar and imposed ethical codes as a way of policing the proper conduct of lawyers. In Nigeria we have the Rules of Professional Conduct. This period saw the emergence of cause lawyers principally engaged in the pursuit of the rights of the people based on their moral commitment to a cause, set of issues or objectives. They work for and get paid by public interest organizations, which pursue the same cause as the governing class lawyers. Save that, whereas the governing class are concerned with the development of the legal system for the good of all, the cause lawyers are focused on the specific/particular cause they seek to achieve.

2. This sometimes led to conflicts with the ideals of governing class lawyers for developing the system as it was at that time. The conflicts were viewed as arising from the influence or impact of fees/compensation which the cause lawyers get from the public interest groups whose interests they represent thereby causing them to abandon the lawyer-‐statesman heart in preference for their personal financial interest, thus making regulation imperative. However, those lawyers who work for the public interest groups for no fee, are considered as part of the governing lawyers’ class. This was because, the absence of fees, reward or compensation for their services, was a demonstration of the true nature of a lawyer which required no


regulation. I would not be wrong to put Chief Gani Fawehinmi, SAN (of blessed memory) in this category.

C. Pro Bono Lawyers

1. Then came the Pro Bono Lawyers. We have earlier noted that

this phrase only surfaced from the 1970s. Professor Rob Atkinson, described how pro bono concept arose from the belief that lawyers have special obligation to the public. While this is similar in that regard to the governing class lawyers’ role, Professor Russell G. Pearce observed that:

“The traditional governing class lawyer is a public servant even in her (his) paying work always placing the good above self-‐interest. The pro bono lawyer serves the public primarily in her (his) pro bono work. Otherwise, she (he) is a hired gun for her clients. This distinction mirrors the shift in ideology among the elite lawyers in the past generation. As recently as the early 1960s, a survey of elite lawyers indicated that they saw themselves as members of the governing class first and as client advocates second. Twenty five years later, surveys published as a part of a Standford Law Review Symposium indicated that elite lawyers now saw themselves primarily as mouth pieces for their clients lacking in special obligations to the common good. Interestingly, the very concept of pro bono work arises during and perhaps in response to this shift in ideology.”

2. The conclusion therefore is that, the concept of pro bono work, as we know it today, emerged from what I would describe as a compromised or diluted posturing of the true heart of a lawyer. The lawyer-‐statesman ideal, has since been lost and the concept of pro bono work we celebrate today, is a product of the lost or fallen state of the lawyer. In a paper titled “RECOVERING THE LOST LAWYER,” by Professor Deborah M. Hussey Freeland, she noted the description of a lawyer by the author of the book titled THE LOST LAWYER –


Failing Ideals of The Legal Profession, by Anthony T. Kronman, and made the following observations:

“In his thoroughgoing, insightful study of the changing ideals of the legal profession, THE LOST LAWYER, Anthony T. Kronman describes lawyers’ evanescent professional identity as that of the “lawyer-‐statesman.” He begins with J. Rehnquist’s use of the term to refer to “wise and public-‐spirited lawyers” who contribute(d) to American political decisionmaking—a species exemplified by Thomas Jefferson and Abraham Lincoln “that, if it has not totally disappeared, is at least disappearing.” Noting that “few lawyers ever reached the level these hero lawyers occupied,”

Kronman frames the lawyer-‐statesman as a once-‐cherished ideal—an authoritative model of professional excellence. Kronman examines and regrets the loss of the lawyer-‐statesman ideal, because lawyers’ striving to embody this ideal elevated the profession. Consider the ballet dancer or swimmer striving for perfect form: while one’s performance ever may fall short of perfection, wholehearted commitment to its achievement can yield powerful results. As law schools, law firms, and courts lose sight of the lawyer-‐statesman ideal in favor of different objectives, Kronman sees us lowering the bar. In the closing chapter of THE LOST LAWYER, titled “Honesty and Hope,” Kronman confesses that he has little hope that the next generation of lawyers “will begin the work of rebuilding what we have torn apart”: his hope is that some will maintain this ideal and strive “to realize it in their own work,” thus saving themselves along with their profession’s most precious assets…………… Until lawyers like this and their supporters can reshape the legal profession so that the lawyer-‐statesman ideal is valued while the profession’s newly developing diversity is maintained, the keepers of the ideal will be marginalized…………………………. Like


the restoration of a natural ecosystem, the restoration of the social ecosystem in which the lawyer-‐statesman ideal thrives can only be achieved by moving forward in a way that re-‐establishes and sustains “those essential characteristics that defined” the professional identity of the lawyer in terms of the endangered ideal.

3. Though this passage was not examining the situation in Nigeria, it sure fits our circumstances. There is in my opinion a complete abdication by members of the legal profession of their primary responsibility to our ailing society. We cluster around and make our financial interests the number one priority with little or no interest shown for the use of our professional skills, pro bono publico. And I think with all due respect, the leaders of the Bar in Nigeria; the Senior Advocates of Nigeria, are largely to be blamed for this failure.

4. Let us for one moment, imagine having ten (10) Senior Advocates of Nigeria, appear before any Court to prosecute pro bono, a matter involving any or all of the Telecommunications Companies for short changing the Nigerian consumers of quality telecom services. This would constitute a clear signal that the representatives of the Nigerian people do not accept anything less than a good telecom service. Arising from such matters, decisions are reached by the Courts and such would form the basis for satisfactory telecom service in Nigeria with huge benefits to the entire people. That Nigerians carry four (4) to five (5) mobile telephone sets is not a matter of convenience or choice. It is simply an indication of the failure by the telecoms companies to provide the services for which Nigerians are paying so much to get. I should therefore remind us that, for every Nigerian we see with two (2) or more handsets (save for those who do so for show offs) it is an indication of the failure of lawyers to stand for the Nigerian society by refusing to engage our professional calling, pro bono publico.

5. Similarly, where for instance a person was employed by a multi-‐national and by the terms of his employment, he/she


becomes pensionable upon attaining five (5) years in that employment. The employer waits until the employee has served four (4) years six (6) months only to determine the employment. That way, several workers are laid off and sent back to the streets by an employer who obviously is avoiding pension responsibilities. While I agree that, it would not make commercial sense for lawyers to take up such matters because the value in terms of Naira and Kobo may not be much, the end result of a pro bono legal service to address such injustices, would translate to huge benefits to the society that cannot be quantified in monetary terms. Consider ten (10) Senior Advocates of Nigeria storming the National Industrial Court on a pro bono basis, to seek redress for such apparent injustice as opposed to standing on the side of the employer. This would no doubt constitute a strong voice that will lead to the emergence of decisions and Government policies that would positively impact on the Nigerian Society. This is an aspect of National Development via pro bono service.

6. Now, in this paper, I have been asked to speak on Expanding the Frontiers of Pro bono work in Nigeria, within the theme of this Conference, and identify the “current factors militating against pro bono works in Nigeria.” Let me begin by noting that in my opinion, there are no “factors” but only a “factor,” militating against pro bono works in Nigeria. That factor is; “the loss of identity of the lawyer.” All the issues we contend with as lawyers, either as members of the Bench or Bar (Private or Official) stem from either a complete lack of knowledge or partial understanding of who we are as lawyers and what we represent to the society. Every lawyer is fitted with what Kronman, called a lawyer-‐statesman heart. The quest for positive National Development should be a natural disposition of every lawyer and we must begin to deliberately and consciously allow our nature to find expression through the application of our professional skills, pro bono publico.

7. We however can only deliver on this “natural” obligations

placed on us (lawyers), if we constantly remind ourselves of


who we truly are. Interestingly, though we all appear to be in a “fallen” or “compromised state,” the Nigerian public has not ceased to look up to us for solutions and have instinctively placed demands on us on the basis of their expectations from the ideal lawyer-‐statesman. That is why certain communities can literally go to war if a lawyer says it is okay to do so. There is huge disappointment when a person who has breached a law or violated the sanctity of a societal value or norm, is later found to be a lawyer. A lawyer who knows who he is will naturally without any prodding, make himself available for pro bono works. A lawyer who knows and understands his true nature or identity will behave well from the mundane to the extraordinary. He will live an exemplary life.

8. We must find ourselves (identity) and remain determined to

have an expression of who we are as lawyers – which is naturally and principally to serve the common good without allowing Economic, Social, Political ethnic, religious or any prejudice whatsoever, to dictate the performance of our professional duties for the good people of Nigeria. These are the obvious challenges stirring at us, but we must resolve to be who we truly are.

9. We must do like the lion as the king of the jungle, who

publicly announced that “whatever the situation in the jungle, he (the lion) will not eat grass.” And to address those who might think that this is a statement of pride or arrogance, the lion quickly added, “this is not pride, it is who I am.”

10. Now, it is with this true identity of a lawyer, that we must

begin to get involved in all the frontiers of our National life through the use of our professional skills from the lawyer-‐statesman heart. Also, our involvement in pro bono works as lawyers is not only limited to pro bono legal services. PARAGRAPH 19(7) OF THE GUIDELINES FOR THE CONFERMENT OF SENIOR ADVOCATES OF NIGERIA, 2013 requires an applicant for the Rank of Senior Advocate of Nigeria to show evidence of involvement “in the provision of


pro bono legal services to indigent clients or some form of community service.” This clearly suggests that our participation in the affairs of our society is not limited to the application of our professional skills. A community reading of the provisions of Sections 14, 15, 16 and 18 of the Legal Aid Act, 2011, the Guidelines for the Conferment of the Senior Advocates of Nigeria, 2013 and the Nigerian Bar Association Pro Bono Declaration, will leave no one in doubt that, we have a professional call to do pro bono legal works and community services. Our historical antecedents actually reveal that we have a natural professional call to do so. The reality however is not the case.

11.0 RECOMMENDATIONS

a. To “expand” the Frontiers of our involvement or participation in

Pro bono works and Community Service in Nigeria. We need to rediscover ourselves and this will require a constant reminders of who we are through Seminars, Workshops, Conferences, Trainings that will culminate into a day or two of pro bono works or Community service.

b. For an effective rediscovery of the true identity of the lawyer, more emphasis should be given to the teaching of the concept of pro bono service as part of the tenets and as an integral make-‐up of the lawyer in our Universities and the Nigerian Law School.

c. An effective implementation of (a) and (b) above will naturally

feed the space provided for the Corp members in the Legal Aid Council. The level of preparedness of the Corp members taking part in the activities of the Legal Aid Council and similar other organisations would be enhanced.

d. The Legal Aid Council should be strengthened by provision of

adequate funding to cater for the statutory functions of the Council. This will enable the Council engage more personnel to attend to the growing demand for pro bono legal service by the Council.


e. There is the need for the leadership of the Nigerian Bar Association to liaise with the Body of Senior Advocates of Nigeria towards ensuring that, pro bono works are not reduced to mere requirement for application for the Conferment with the Rank of Senior Advocate of Nigeria. As applicants for the Rank, we frantically look for pro bono works to do in order to meet the requirements for the application. Thereafter, we literally resent pro bono works with the attendant consequence of having our colleagues who pay great attention to pro bono service, branded as “busy bodies.” There is the need to reconcile the regulations made by the NBA pursuant to Rule 11(6) (c) of the Rules of Professional Conduct for Legal Practitioners with regard to the number of credit hours for Senior Advocates under the CPD (Continuous Professional Development) and the NBA commitment to the provision of pro bono service of “more than 20 hours or three days of legal services per individual lawyer per annum or in the case of lawyers, institutions or other groups of lawyers, an average of more than 20 hours per lawyer per annum.” I believe that a discussion around these issues, would help a great deal in increasing our participation in pro bono legal works and Community services by lawyers.

f. The leadership of the Nigerian Bar Association should develop a template for partnership with Law Firms, for the purpose of pro bono works and Community services, similar to the Lagos Public Interest Law Partnership (LPILP) established by The Global Network for Public Interest Law.

12.0 CONCLUSION

12.1 PRO BONO LEGAL WORKS AND COMMUNITY SERVICES IS OUR

NATURE, LET US LIVE IT!!!

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