By Nnadozie O. Ewelike ACArb
ENFORCEMENT OF THE NEW SCHEDULE OF FEES FOR LAWYERS PURSUANT TO THE LEGAL PRACTITIONERS (Business, Legal Service, and Representation) Order, 2023.
We are all aware of the recent developments concerning the new schedules of fees Order for legal practitioners in Nigeria. There have been various reactions towards it which is mostly positive and welcome. However the knotty party of it is the enforcement which most lawyers have taken a helpless point of view.
However, this article seeks to render insights on the possible and practicable ways of enforcing the new schedule of fees effectively; which if adopted by all branches will further reinforce the purpose and motive of the Legal Practitioners Business, Legal service and Representation) Order, 2023.
- KEY PROVISIONS OF LEGALPRACTITIONERS (Business, Legal Service, and Representation) Order, 2023.
Section 7 (1) –
A legal practitioner shall before commencing work on any business or service, and not later than 14 days from the date of receipt of the instruction, issue written terms of engagement to his client, setting out the scope of work and fees.
(2) – where a legal practitioner is under a specific retainer, such retainer agreement shall suffice as the terms of engagement covering the specific instruction.
(3) – where a legal practitioner is under a general retainer or it is agreed between the client and the legal practitioner it shall be sufficient for the purpose of ascertaining the work carried out by the legal practitioner and the fees chargeable thereon, to consider the documents, processes prepared or verifiable steps taken by the legal practitioner in the discharge of the assignment.
(5) – In the event that the legal practitioner fails to issue a written engagement letter or terms of engagement to a client and a dispute subsequently arises between the legal practitioner and the client regarding the fees payable for the services rendered, the provision contained in the scale specified in this Order shall apply to the transaction in question.
Section 8 (1) –
The fees chargeable for any business or services conducted by a legal practitioner are as prescribed in the scales set out in the schedules to this Order and they are not subject negotiation except as prescribed in this Order.
(2) – All legal practitioners are to adhere to the fees prescribed in the scales set out in the schedule to this Order, and any deviation therefrom shall be –
(b) – in strict compliance with the provisions of this Order.
Section 10 (1) –
Where a legal practitioner intends to charge or agree to any remuneration for any business or services in Scales 1 to 5, he shall within 2 days of receiving such instructions from the client –
- Apply to the Remuneration Committee of the Bar Association for an approval or refusal of the proposed remuneration; and
- Where the Remuneration Committee rejects the application, the legal practitioner shall –
- Issue to his client a written terms of engagement detailing the work covered by the clients instruction and the appropriate fees payable as prescribed in scales 1 to 5 set out in the schedule to this Order; and
- Attach a copy of the decision of the Remuneration Committee.
- Where the Remuneration Committee fails to reach a decision or convey its decision on an application made under this paragraph within the stated period, the application shall be deemed to have been granted.
Section 11 (1) –
A person, who has knowledge that a legal practitioner has charged or agreed to remuneration in contravention of the provisions of this Order, shall report such legal practitioner to the Remuneration Committee.
(2) – The Remuneration Committee shall investigate the report, and upon establishing a case, report the infraction to the Legal Practitioners Disciplinary Committee (LPDC).
(3) – The Remuneration Committee shall have power to delegate the investigation of any complaint to –
(a) the branch of the legal practitioner against whom the complaint is made or
(b) to such other legal practitioners in a team of not less than 3 and not more than 5 as it may deemed fit.
(4) The Nigerian Bar Association shall set guidelines to be followed by the Remuneration Committee in the performance of its functions under this Order.
Section 12 (1) –
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.
(2) – A legal practitioner may, in consideration of his relationship with his client by reason of consanguinity or affinity; charge no fees, and shall submit to the Remuneration Committee within 7 days of the instruction an affidavit disclosing the facts and circumstances justifying gratuitous services to the client.
- RULES APPLICABLE TO SCALE 4 –
Section 12 (b) –
Except as otherwise provided in this Order, no legal practitioner shall charge or accept any fees less than the prescribed rates for any business or services rendered to any client; and
- Any legal practitioner who charges or accepts remuneration less than as prescribed in his Order, shall be liable for unprofessional conduct as prescribed in the Legal Practitioners Act.
Section 13 –
Any legal practitioners who conspires with his client or any other person to falsely endorse or state the value of professional fee, consideration, purchase, price or value of a piece or parcel of land on an invoice, deed, or any other document presented to the tax office shall be liable for unprofessional conduct.
- ENFORCEMENT RECOMMENDATIONS:
On the issue of having record of Fees as agreed between the Client and the Lawyer –
- A flexible template of the terms of engagement should be developed and included among the forms (that clearly identifies the litigants with means of identification) in the High Court and other Courts that shall mandatorily be filed with originating processes and response to it therein.
- The said forms will capture the necessary data and workable information/clause. It shall also have provision for the litigant and the lawyer to sign; and also stamped before the commissioner for oaths as a deposition.
- Due to the delays often encountered in litigation, counsel can update their fees/costs by filing an updated form consistent with the fees revision charged to clients. Filing of inaccurate or misleading costs, or cost that differ from actual amounts charged to the client will make the legal practitioner liable for both criminal prosecution (perjury) and disciplinary action (misleading the Court); this incentivises the legal practitioner to charge properly as he/she will only be able to recover actual fees and costs while in the same breath bringing the standards to the knowledge of the clients.
On how to enforce the new scale on transactional services –
- The lawyer applies the approved scale to the transaction consideration and determines the amount payable as legal fees; the said fees is paid by the client to a designated account of the NBA local branch; the lawyer submits the original copy of the registerable instrument; including deeds, agreements, contracts or any document drafted by a lawyer with his or her seal affixed.
- The Local Branch upon receiving the document shall verify if the fees charged are in compliance with the approved scale and have the client deposit the appropriate fees to a bank account of the Local Branch designated for that purpose. And then affix a special seal of the Local Branch (which will have a serial number for the purposes authentication).
- One per cent (1%) of the Fees due to the lawyer will be deducted as service/administrative charges and the balance remitted to the account provided by the lawyer.
- However, it is important to liaise with land and other instrument registration authorities to recognise this procedure and ensure strict compliance and adherence by not registering any instrument without the Local Branch special seal.
- There may be need to further amend the NBA Unified Constitution empowering or rather giving the branches the discretion to generate unique seal for their branches for the purpose of ensuring compliance. This will serve as the legal backbone for the branches to build on her enforcement policies.
- It is important for the High Court, Magistrates’ Court, and Customary Court; in fact all Courts of first instance rules including tribunals to be amended to render any non-registreable instrument, or document prepared by a lawyer to be inadmissible in Courts if it is not bearing the Local Branch special seal. This will ensure that the lawyers charged the fees for any document they prepared; especially when it is not a registrable document.
- It is paramount that this procedure is given statutory flavour; by lobbying our law makers to domesticate the land instrument registration Act or amend any existing Law to recognise the Local Branch special seal as a mandatory requirement for any registrable document prepared by a lawyer.
- There will be a data base of the serial numbers of the NBA Local Branch special seal dispensed on any document with the details of the person who franked it; which shall be accessible in the NBA Local Branch website for authentication of documents bearing the NBA Local Branch special seal. This will checkmate adulteration and touting in that regards.
Written By:
Nnadozie O. Ewelike ACArb.
Franklike2001@yahoo.com
