THE PROS, CONS AND CHALLENGES OF ESTABLISHING AND ENFORCING A SCALE OF CHARGES FOR LEGAL SERVICES IN NIGERIA
Lawyers in Nigeria have been debating for a while; do we really need a scale of charges for our services? Will such a scale when established be enforceable? What advantages, disadvantages and challenges may likely follow such a scale? The Legal Practitioners (Remuneration for Legal Documentation and Other Land Matters) Order was made on the 15th of August, 1991 pursuant to Section 15(3) of the Legal Practitioners Act. Just over 19 years after, its relevance to most lawyers whose legal practice relate to land transactions seem to end at the Nigerian Law School. This notwithstanding, as we grapple with the need to project our profession properly for sustainable profitability, it is worth considering, the merits, demerits and challenges of establishing and enforcing a scale of charges for legal services in order to have a 3600 understanding of the need or otherwise of a scale of charges for legal services and how practical such a scale can be. It is worth emphasising as the topic of the essay clearly points out that, establishing such a scale is not enough, the level of enforcement will also be a critical measurement of its success or otherwise.
Without any iota of doubt, one of the advantages of establishing and enforcing a scale of charges is that there will be standardization in charges and reduce touting and/or undercharging to the barest minimum. The present reality in Nigeria’s legal practice space is that where a lawyer refuses to execute a brief because the client is unwilling to pay a standard fee, there are many other lawyers who perhaps for desperate economic reasons and/or need for experience in that area of law, that will gladly carry out the brief for a ridiculously low amount. Thus, a scale of charges that is enforced by the Nigerian Bar Association across the nation will ensure that prospective clients will be charged the same amount of money for the same legal service notwithstanding the legal practitioner they approach to offer such services.
In addition to the above, a scale of charges that is enforced by the profession will lead to increased respect by the general public for the profession. The term ‘charge and bail’ for instance has in recent times, in addition to being used to describe lawyers who specialise in bailing defendants from police custody and Magistrate’s Court, come to be used in describing lawyers whose services are considered by members of the public to be cheap. With an enforced scale of charges that covers almost all conceivable areas of legal services, the general public would not be able to disrespect members of the profession for charging ridiculously low fees. Equally, the general public will come to realise that the services offered by legal practitioners are valuable and thus should not be cheap and should be priced to correlate with the value they create and/or protect.
On the flip side of this debate however, an established and enforced scale of charges may stifle the operation of the rules of demand and supply via which cost of goods and services including legal services ordinarily should be determined. One of the rules in its basic essence says that: ‘An increase in the supply of a commodity will cause the price to fall and the quantity demanded to increase, while a decrease in supply will cause an increase in the price but a fall in the quantity demanded.’ This is the basic rule by which market economies which Nigeria proclaims to practice, operates. However, with a scale of charge enforced by the Nigerian Bar Association, ordinary market rules take a backseat. Flowing from the foregoing, legal practitioners may not have any motivation to distinguish themselves as experts in their areas of practice in order to command greater professional fee. Clients may thus not get full value for the services they need.
In addition to the con already underscored above, it goes without saying that a counsel-client relationship is contractual. Thus, parties to the contract are expected to bargain on fees as well as the services to be offered. It is thus disadvantageous to the bargaining process for a lawyer to insist that he would not be able to take up a brief not because the professional charges which the client is willing to pay cannot sufficiently carry out the service but because he is being compelled by a scale of charges defined by his professional association (which may not consider current economic reality as well as may not be readily amenable to changes) not to do so. A natural consequence of this is that lawyers may not be able to size up a proposed client and charge the client accordingly. Also, clients may get frustrated by such strong negotiating position.
Having noted some pros and cons of establishing and enforcing a scale of charges for legal services, it is worth observing that one challenge with establishing and enforcing such a scale is the difficulty of carrying out (and/or willingness of the relevant authority) to ensure regular amendment of the scale of charges to reflect current economic situation. Such difficulty and/or unwillingness to ensure regular amendments may leave Scale of Charges redundant. The 1991 Order that has already been referred to is obviously not in touch with current reality and has thus been ignored by most lawyers carrying out legal documentations in land matters. It is equally complex for computation. Therefore, there ought to be a standing committee whose scope of responsibility will be a constant consideration of present economic realities vis-à-vis existing scale of charges in order for necessary amendments to be made to bring the scale to reflect current realities. While Section 15(1) of the Legal Practitioners Act established the Legal Practitioners Remuneration Committee, it does not seem as if amendment of the Scale of Charges is a task the Committee is seriously considering. This despite the fact the quorum for its meeting is 3 persons.
Moreover, bearing in mind that the Nigerian Bar Association though a national body with a number of branches, it would be difficult to enforce a scale of charges that will be nationally applicable. This is because among others, all parts of the country are not on the same level in terms of business and economic growth, perception of value for legal services, acceptable mode of payment for legal services, etc. It therefore follows that a scale of charges for certain legal services in Lagos may not be appropriate for say Ebonyi and vice versa. Proposed scale of charges should therefore take into consideration the varying differences among the federating States.
Furthermore on the challenges already identified above, it is worth pointing out that it may prove difficult to define all conceivable services that clients may need as well as their economic value. Legal services extend from corporate fillings to legal and/or policy advisory, letter writing, preparation of and response to petitions, capital market services, securing governmental permits, legal representation in courts and/or other tribunals, etc. Other than non-negotiable charges by government agencies that lawyers may need to interact with in executing a brief as well as transaction cost including courier services, transportation, etc, it may prove difficult to define the expected scale of charges for the transactions identified in this paragraph as well as many others. Thus, for a scale of charges to be sufficiently comprehensive as a guide to legal practitioners, it must cover these as well as other conceivable service a legal practitioner can offer.
Also, it is worth pointing out that enforcement of a scale of charges should include disciplinary measures for lawyers who refuse to comply with the scale of charges in order to serve as a deterrence to others. Order 7(2) of the 1991 Order declares a legal practitioner who refuses to comply with its provisions guilty of a professional misconduct and should appear before the Legal Practitioners Disciplinary Committee (LPDC). Despite this, it is doubtful that any legal practitioner has been held guilty of a professional misconduct for failure to comply with its requirement. It is of course difficult to know what a lawyer agrees as his charges with his client because of the private nature of such a charge except for instance through monitoring of remittance of Value Added Tax.
In conclusion, it is submitted that analysing the pros, cons and challenges of establishing and enforcing a scale of charges is a good first step in determining its practicality. As a profession that relies a whole lot on precedent, we can definitely take a clue from professionals such as surveyors, etc.
PS: This essay was submitted as an entry to the essay competition organised as parts of activities to mark the 13th Annual Business Luncheon of SPA Ajibade & Co. and recognised as one of the top five entries.
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