Breaking the Shackles Off Lady Justice

ome of the most challenging yet vital skills of a leader, is the ability to read signs, see ahead and to influence others to follow. Leaders take risks, followers maintain the status quo. Leaders seize the moment; followers clutch tight to their seats. Leaders are “first movers,” followers “play catch up.” Followers ask, “why?” Leaders ask, “why not?” Whether it is in dealing with non-performance, getting a buy-in to a new strategy, negotiating a contract, or changing the direction of an otherwise conservative profession, etc. In having these influence-based conversations, the question, “why?”, is important but if we do not tackle the question “WHY NOT?”, it will be tougher to exact change. “Why not” gets us to push the envelope. Rather than staying with the “why”, the “Why Not” – may unblock barriers to progress and may influence positive change quicker.

My aim with this piece, is to unblock barriers to perceived progress in a beloved profession. My mantra has always been to seek to understand, before you seek to be understood. To listen well and gain the perspective of the other, is key to influencing change. So, for almost 25 years, I had sought to understand several perspectives of management in the legal profession. In this piece, I hope to paint an idealistic picture of the law profession, as I arrange a number of anecdotal stories of its persistent restrictions. To my mind, what the Law needs now is a dose of freedom. What I themed, “Breaking the Shackles off Lady Justice.”

The Scales

It is common to find the image of a blindfolded lady, with a sword in one hand and scales in another, in most law firms and courthouses. This imagery clept the “Lady Justice”, is the symbol of the law profession. This powerful imagery of Lady Justice, is reminiscent of the power of reason and fairness upon which law thrives. From the literature, the Scales of Justice represents the balance of the individual against the needs of the general; and a fair balance between the interests of one individual and those of another. The blindfold, the scales, the sword are all symbolic of the concepts of neutrality, impartiality, equity and equality in law. Lady Justice, a blindfolded woman carrying a sword and a set of scales, symbolises the fair and equal administration of the law, without corruption, favour, greed, or bias. Blindfolded, she regally holds the scales, assessing evidence on its own merit, blind to wealth, power, gender and race.

This personification of justice, reminds me of the concept of the persona in law. It is used in the sense of a living person – having the rational quality of a human being, capable of having rights and duties, worthy of protection and also of legal responsibility. The persona is extended – to not just humans, but to a body of persons, institutions, corporations, associations, unborn children, animals and even inanimate objects. – In law, arguably, all these and probably more, can be treated as a legal person. Every time I see Lady Justice, I also see her chains, invisible chains. I see her need of freedom. Freedom from rigid and closely guarded dogmatic systems that impedes her growth potentials. The term is liberalisation.

Freedom

Liberalisation is a broad term used to denote the removal or loosening of restrictions. It is essential, in the transformation of any sector. Liberalisation is the precondition for globalisation and it refers usually to economic activities aimed at increased international competitiveness, wider collaboration and of course cutting edge technology. For some sectors, like the Telecoms sector, it implies a reduction of direct government interference, i.e. a shift from hands-on control to provision of market infrastructure. Regulators take on an umpire position – an innovative role of creating a stable and enabling environment in which players play according to the rules – rights are protected and rules enforced. All players have a degree of freedom to respond to price signals and to settle prices.

Liberalisation is certainly one of the major trends, in the Legal Market today – This subject has long been contentious – partly for lack of understanding and agreement over what is meant by the term, and differences over the merits and consequences of the subject. Some critics take issue with the idea of the opening of the legal space to global markets, viewing it as an excessive focus on strengthening the influence of outside market forces, at the expense of arguably a domestic market that is not prepared

Which begs the question – after 58 years why is Nigeria not ripe enough to open its doors to foreign lawyers and law firms? That is actually a wrong question; it is a question with an answer already – they are here – Nigeria is not impervious to foreign Lawyers or firms. A market of almost 60 years should be ready to compete globally. If not at 60, when? In recent years, the Nigerian IBA representation at the international conferences are about the largest compared to other regions – we are global in this sense. So, global best practices should not remain a nice to have, but a must have. Firms lukewarm about upscaling their service delivery and staff welfare, need to consider restructuring. Lawyers are key players in facilitating cross-border trade, capital inflows and investments that are helpful for economic growth. They are advocates for proper regulatory standards, for global investors and financial institutions coming into new jurisdictions. Law cannot play these roles adequately, if it remains in shackles.

In line with international best practices and in collaboration with the foreign and domestic players, there is a need for a freer profession –. what the amiable Managing Partner of Dentons ACAS-Law, Felicia Kemi Segun, phrased “the end of legal protectionism, taking extra jurisdictional steps out of a closed mindset to go where the clients want to go” – Indeed the Protectionism crafted into the Nigerian Legal System keeps it in shackles. In 2015 it was reported that about 70,000 students had graduated from the Nigerian Law School(s) since its inception 1962. The number is rising yearly – presently it is estimated that the Nigeria law Schools had produced over 102,000 Lawyers.

Breaking the shackles off Lady Justice may expedite the mergers of indigenous law firm and foreign law firms with indigenous firms and targeted efforts to improve opportunities for all. And why not? Historically, the legal professionals in Nigeria have advocated and managed the liberalisation of several sectors of the Nigerian economy – Telecommunication, Power, Transport and Aviation, etc. Why is law exempt? The fear that liberalisation will lead to an invasion of our space and unfair competition, diminishing the legal pie is untenable – Rather freeing Lady Justice will allow for fairer competition and for opportunities especially for the huge number of upcoming lawyers. Good competition does improve the field of play, and creates choices. One of World Bank’s parameters on the “Ease of Doing Business” is directly tied to accessibility of a global pool of legal counsel, which goes hand-in-hand with legal services sector liberalisation. Breaking the Shackles off Lady Justice will contribute immensely to improving Ease of Doing Business in Nigeria.

Traditionally, the legal services industry is not viewed as a significant driver of foreign direct investment (FDI), but it should be. Law firms and lawyers are often at the forefront of several commercial transaction, mergers & acquisitions, enforcing contracts, resolving insolvency, etc. Typically, markets with a positive FDI also see significant economic activity generated by law firms and lawyers. Not for the scale of their capital investments, but for what they represent. Law epitomises open markets.

Nigeria is considered as one of the Frontier Markets countries. As a growing number of companies around the globe decides to shift focus here, lawyers have always and will continue to play an important role in the planning and execution of these multi-million dollar decisions. Ensuring that these businesses can access their preferred lawyers is critical in moving investment forward when legal issues arise.

To be or Not to be?

About 14 years ago the UK enacted the UK Legal Services Act; giving law firms in the UK the option of registering as Alternative Business Structures (ABSs). Amongst other things, an ABS is a law firm that can be led, co-owned and managed by non-Lawyers. These firms are multidisciplinary in nature and can be quoted on the stock exchange, conquering the challenge of underfunding and placing the profession in a better position to compete and participate meaningfully in global growth. While others struggle to protect the sanctimonious monopoly of Lawyers, frowning at the thought of injecting the capital of the “gentiles” into the revered industry. I imagine a big scowl on the forehead of some protectionist, at the contemplation of the sacrilege of a co-ownership of law firms by non-Lawyers . The vital question however, is whether in the long term, the protectionism of the law profession will be advantageous or damaging. Data shows over 700 law firms registered as ABSs, including the “legal arms” of the big4 accounting firms. Typically most ABSs are firms known to be innovative, make huge investments in technology and show pricing transparency and flexibility which appeals to most clients.

Liberalisation advocates are well aware of the safety that wholesome boundaries provide in any given profession or jurisdiction, and they are certainly not saying “throw caution to the wind.” The call is to step out of the boat, leave your comfort zone – there is a raging global storm that could sink that comfort zone. Like the Biblical Saint Peter, if you do not push your boat a little away from the shore and launch into the deep – you may catch little or nothing.

There is a sense in which protectionism produces fat cats. The argument is that only a free market will provide the conditions in which suppliers (Lawyers, paralegals, Legal BSPs) in this market are adaptive and innovative and are able to proactively respond to the continuously changing market dynamism. Ultimately, the umpire of this argument will be the question of what is more beneficial – for the majority of both lawyers, their clients and the global community? What will ensure the continuous independence of the lawyers’ role and the protection of clients’ need. Again, I will quote Felicia Kemi Segun on ACAS-Law’s recent combination with Dentons, “Our combination with Dentons means that our clients benefit from continuing to be served by Lawyers that they know and trust, while also having access to an unrivalled talent pool around the globe”.

Breaking the shackles off lady justice, is an interrogation of a framework to provide law firms with adequate freedom to develop in line with market requirements. If that is not guaranteed, law firms may in the end lose out against legal providers that are nimble. Continuous rigidity may lead to stagnation, or slow paced progression of a beloved profession.