Jul 27, 2012

PUPILLAGE (PART 1)

Paper delivered on Tuesday 24th July, 2012 at the Nigerian Bar Association (NBA) Ikeja Branch Young Lawyers’ Forum Seminar

By:

O. A. R. Ogunde Esq.
Senior Advocate of Nigeria and Attorney-General, Ogun State
Principal Counsel, Wemimo Ogunde & Co (on leave of absence)
(Former Chairman, NBA Ikeja Branch Young Lawyers’ Empowerment Committee)


Introduction
1. A lawyer, upon being called to Bar in Nigeria, can immediately begin to practise independently. This has been the case from the time Nigerian citizens became eligible to practise in Nigerian courts. It is therefore common to see many of the eminent lawyers in Nigeria who were called in the 1930s up till the 1960s not to have had any apprenticeship or employment before setting up their law firms.


2. It appears that at that time, attachment to a law firm or apprenticeship was either unnecessary or difficult to achieve. Many of the experienced lawyers in that colonial era were English lawyers who were reluctant to admit or employ Nigerians. Furthermore, the indigenous Nigerian legal system was still in its infancy and so the new wig did not find it too complicated since English common law and statutes were predominant in the legal system of that time and almost all the new wigs were trained in England.

3. It therefore appears that the Nigerian legal history has no record of pupillage, technically speaking. What that also means is that the young lawyer in Nigeria has not had the tradition of regulated apprenticeship whether imposed by law or by custom at the Bar. This position has prevailed till now except for a short interregnum.

4. For a brief period in Nigeria, i.e. between 1978 and 1984, this was not so. A lawyer newly-enrolled was compelled by law to be attached to a law firm for five years to gain practical experience before commencing an independent legal practice. The Regulated and Other Professions (Miscellaneous Provisions) Decree No. 5 of 1978 provides as follows:

“As from the commencement of this decree and subject as hereinafter provided, no citizen of Nigeria shall, after been qualified to practise any scheduled profession under this decree, be entitled to enter into the practice of such profession on his own or to practice in partnership or in any other form of association with any other person until after service by such professional as an employee in a recognized organisation for period of not less than five years after being so qualified as aforementioned.
(Section 1)

A strict interpretation of this section shows that it was not even an attempt at introducing pupillage since what the section compels is employment and not pupillage.

5. This section of the Decree was repealed in 1984 by the Regulated and Other Professions (Private Practise Prohibition Decree) No. 34 of 1984. It is not necessary to go into the controversy generated by these two decrees other than to point out that the attempt to regulate the practice of the young lawyer in Nigeria appeared to be a very short-lived one.

6. Similarly, the attempt to regulate the appearance of the young lawyer at the appellate court was also short lived. When the Court of Appeal was established in 1976, the law establishing that court prohibited any lawyer having less than five years post-call experience from appearing there. This restriction has now been swept away by a strong challenge from a lawyer (incidentally a member of this Branch) who, as a young lawyer in 1981 got the Court of Appeal Ibadan to declare this enactment unconstitutional. Technically speaking, therefore, there is no pupillage requirement in Nigeria.

7. It is important at this stage to understand what is meant in this paper by the term “young lawyer”. Most Bar Associations in the Commonwealth countries and even in the United States of America define “the young lawyer” as a lawyer enrolled to practise having post call experience of seven years or less or is under thirty-six years. The Canadian Bar Association defines a young lawyer as a lawyer who has been at the Bar for ten years or less or is under the age of forty irrespective of the year of call. In Queensland, Australia, the young lawyer is one who has less than five years post-call experience or is aged thirty-six. There appears to be no fixed age both chronologically or for post-call but it is safe to state that it varies from five to ten years post-call experience and thirty-six to forty years in chronological age. It is doubtful whether this definition can fit in into the Nigerian context. Furthermore, in these jurisdictions, the young lawyers’ associations are sometimes separated from the overall Bar associations unlike Nigeria.

8. In Nigeria, a young lawyer is simply defined as one having post-call experience of seven years or less without any restriction as to chronological age. Furthermore, the young lawyers’ association is always a section of the overall Bar association and not distinct and separate from it. For the purpose of this paper, I will leave out the perplexities in the definition of the young lawyer and restrict myself to defining the young lawyer as a legal practitioner having post-call experience of five years or less and who is under thirty years of age. For the purpose of this paper, I do not regard as a young lawyer a retiree who enters the law faculty at sixty and is called to Bar at sixty five or a mature student who simply has an interest in reading Law and enrols at probably forty years and is called to Bar at forty-five. I have left out this category for the obvious reason that for many of them, the pursuit of law as a career is ruled out and the vagaries of the profession encountered by those just graduating from the university in their twenties will not affect them.

The Perils of the Young lawyer
9. It is self-evident that the young lawyer as I have defined it is about the most vulnerable in the legal profession. I have diligently searched through the NBA Constitution and I cannot find any provision in that constitution that gives any special privilege or right or advantage to this class of lawyers. Immediately after being called to Bar, there is no programme that has been outlined for their development or career enhancement. Even a visit to the website of the Young Lawyers’ Association reveals how neglected they are. On my last visit on 22nd July 2012, the most recent events were those of mid 2008 with no resource material for the young lawyer or any information aimed at enhancing capacities.

10. This is not surprising. The Young Lawyers’ Forum was inaugurated less than a decade ago. Compared to other jurisdictions, the young lawyers’ forum in Nigeria is truly young. There are countries that have Young Lawyers’ Associations which are seventy years old or formed almost a century ago. These young lawyers’ associations are well structured and properly organised.

11. There is another form of peril being faced by the young lawyer, although that is not peculiar to Nigeria. This is the peril of global economic recession and decline which has resulted in high unemployment, layoffs and law firm closures even in the otherwise healthy economies. Just recently, precisely February 2012, a group of young lawyers filed law suits against their law schools claiming damages for offering false job prospects. Their claim was based on the fact that their law schools in their prospectus claimed that job prospects for their graduates was at the rate of 88 – 98% but that four years after graduation, they were still to be employed. Although one of the cases has dismissed, (others still pending are likely to be dismissed) the law suit underscores the frustration that the young lawyer now faces even in America. Similarly, there has been an attempt by some lawyers in England to organise an “Occupy the Inns of Court” which was brought by the failure to secure employment.

12. The young lawyer in Nigeria is not immune from the effects of the global economic downturn. It is with sadness that I see an army of young lawyers sometimes up to two hundred struggling for employment where probably only two vacancies exist. The plight of the young lawyer is also seen in the poor dressing and shabby appearance before our courts. Many have out of frustration resorted to establishing law firms immediately upon being called to Bar. Some who have not done so have become estate agents laying themselves exposed to worrying temptations that have signalled the doom of many before them. The number of complaints filed against the young lawyers before the Legal Practitioners Disciplinary Committee is increasing at an alarming rate.

13. I am not also aware of any systematic or compulsory programme of mentoring that has been outlined for the young lawyer. It does not even appear that we have an exact number of young lawyers in Nigeria. I will be very much surprised if we even have the exact number of legal practitioners on the roll of the Supreme Court engaged in active practice. This to my mind is a very perilous situation and exposes the future of our profession to grave danger if our young lawyers are unnumbered, unaided and disorganised.

14. It should be obvious to us that with time, our young lawyers lacking identity, organisation and motivation would eventually become disenchanted, unprofessional and incompetent. We must not allow this trend to continue since it is from this group that Magistrates, Judges, advocates and leaders will eventually emerge. What is the way out? As it has been suggested in the theme of this seminar, it is capacity building and to my mind, the plank of that capacity building is pupillage.
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