One of the unintended consequences of the new Lagos State High Court Civil Procedure Rules 2019 is that the fusion of the career paths of Solicitors and Barristers in Nigeria may have technically been broken.
In some other common law jurisdictions, lawyers train and practice either as Barristers or Solicitors. In this regard, the Solicitor is the first line of contact between a potential litigant and the justice system. The Solicitor provides advisory and transactional legal services, while the Barrister is the true advocate who appears in court to litigate matters on behalf of the client.
According to an online resource ‘’the basic difference between barristers and solicitors is that a barrister mainly defends people in court and a solicitor mainly performs legal work outside court. However, there are exceptions in both cases. When people talk about going to see their lawyer, it is usually a solicitor that they will contact. The basic difference between barristers and solicitors is that a barrister mainly defends people in court and a solicitor mainly performs legal work outside court. However, there are exceptions in both cases. … They also have specialist knowledge of the law and so are often called on to give legal advice’’.
Though the differences between Solicitors and Barristers has not been officially delineated in our jurisdiction since every Nigerian lawyer is trained and licensed as a Barrister and Solicitor of the Supreme Court of Nigeria, some Nigerian lawyers have all through their practice years remain as solicitors preferring to do other legal work rather than don the wig and gown to appear in court for client. Corporate lawyers fall in this category.
Courtroom advocacy is akin to legal battle. Anecdotal evidence also shows that the greater numbers of self-employed lawyers are primed for litigation irrespective of the nature of the case. In this cultural perspective, our justice system has remain bogged down, slow and needlessly expensive. The time, technicalities and court congestion this traditional method of lawyering has foisted on litigants has created a scenario of systemic injustice, as justice delayed is globally acknowledged as justice denied. Several earlier attempts by judicial hierarchy to rejig this has fallen flat because of the ways of legal practitioners who have seen every brief as an opportunity to do battle in court and showcase their legal sophistry. This was at the expense and comfort of the client. Neither the Case Management Conference (CMC) where judges sought to play some mediatory role nor the front loading of all processes could untie the justice jigsaw the nation found itself.
However with the new civil procedure rules which now compel all litigating lawyers to do ascertainable solicitor work through advice and efforts to resolve the bulk of matters in their dockets through the alternative dispute resolution process, the judiciary may have hit the bull’s eye in protecting society and itself from avoidable workload and systemic injustice.
If truth must be told the new rules is a major upset of the apple cart. A very significant numbers of lawyers who have pooh poohed the alternative dispute resolution process have now been caught off guard. In this regard, two things are bound to happen. Lawyers who feel not too old to learn will return to training seminars such as those of the Standing Conference of Mediation Advocates to take certification courses in mediation advocacy. Others who are consummate litigators would rather prefer to remain who they have been wired to be and await to be instructed whenever the opportunity for litigation comes up.
The foregoing scenario is a win-win for society and legal practice. Over time society will grow to appreciate that not all disputes need to be litigated. The drop in the legal fees of pursuing matters up to the ADR platforms will encourage more members of society to access lawyers and speak out about their hurts. The balm of amicable dispute resolution as fostered by the ADR processes will create greater bonding amongst people. Foreign investors who dread municipal laws of host countries will be encouraged to come in droves knowing that their issues will be resolved without stress.
I foresee a greater number of lawyers who will practice within the pre-action protocol loop – that is up until ADR has been utilized; whether successfully or otherwise. Several mature lawyers who have had glorious engagements working in other professions before crossing over to law will now bring their wide knowledge of life and law to bear. Never will they ever be restricted from practice because of their lack of knowledge of adjectival law and courtroom language and decorum. This would however mean that once they fail at ADR levels they will have no option but brief a barrister. This too will mean more work and premium fees for those who chose to play as Barristers only.
With a fewer number of fully dedicated Barristers to manage, their Lordships will have the time and full presence of mind to research into the law for any legal nuts that present themselves. Perhaps more lawyers will accept to take up jobs on the Bench knowing that an elevation to the Bench is not a sentence to early grey hairs.
Flowing from the above it should be obvious to discerning minds that the era of Barristers and Solicitors properly so called is here with us, courtesy of the Lagos State Judiciary.