Opinion

Reforming the rank of Senior Advocates (2)

By Ebun-Olu Adegboruwa, SAN

I have read many comments on this topic highlighting different opinions on the reformation of the Rank of Senior Advocates of Nigeria. The goal of this exercise was originally to commend the Legal Practitioners Privileges Committee for the good work it has accomplished through the Rank and also to offer useful suggestions on the exercise. In this way, many commentators misunderstood or misinterpreted the purpose of the write up. No one faulted the review of the procedure adopted by the LPPC over the years for the selection of candidates for the Rank as most people who commented dwelt on the suggestions that I have proffered. I will now attempt some clarification, in the hope that this will provide the needed understanding of the issues.

My earlier write up did not suggest that advocates are better than our colleagues in the academic community. I was taught by some of the best teachers in the world and I owe my little and modest efforts to the great impact of their teachings and mentorship. Indeed, I was greatly assisted by many of them in the process of my application for elevation. It is my fervent belief however that what goes on in the classrooms of the various faculties of law in all universities in Nigeria is way different from what obtains in real legal practice in the courtrooms. Both exist to complement each other no doubt but they should never be mistaken as being the same. Most of what we do in the courtrooms is plain advocacy which of course can be and is most usually aided by research. The art of cross-examination of witnesses, admissibility of documents, of the general conduct of trial and the settlement of pleadings all have no bearing with the academic exercise of mentoring students to pass their examinations. Thus, in asking legal practitioners in the academic community who wish to apply for elevation to front load court cases, one was only seeking to benefit from their knowledge and experience. Without mentioning names, there are fantastic law teachers who have distinguished themselves in the Rank of SAN. You need to listen to some of them when they appear in court. Their methodology, their penetrating research and mastery of language all go to show that they deserve the Rank.

By constantly appearing in court, the law teacher gets to impact lawyers in no small measure, but for a law teacher to apply for the Rank with no intention to ever practice law other than to earn the mere title is to make a mockery of the Rank, with all due respect. This is why I find the suggestions of my Learned Brother Silk, Jibrin Okutepa, SAN, very apposite, to the extent that the LPPC should consider creating the honorary title for those who do not seek to practice law with the Rank. Please permit me to share with you some portions of Okutepa SAN’s thoughts on the topic.

“RE: AWARD OF SAN TO ACADEMICS THE RANGING DEBATES

There have been many reactions to the issues raised by my learned friend of the Inner Bar Ebun-Olu Adegboruwa SAN and my support for his stand of a need to review the award of the Rank of SAN to our learned colleagues in the academics.
Many in the academics and some of legal practitioners see the arguments as needless and have held the views that myself and Ebun-Olu Adegboruwa SAN and others are generating needless controversies. Unfortunately, we are being misunderstood. But is Adegboruwa SAN and myself wrong in the concerns we raised. I do not think so. Let us go to the place where we borrowed the concept of this Rank from. It is from the UK. It is called QC there and now KC. Are academics and lawyers not in practice as Advocates awarded the Rank in Uk. Yes. What name does the UK call them? Let us see the 2022 UK Guidelines on this issue. In the Gazette, the Official Publication of the UK in 2022 which you can Google and see, the following are discernable.

Those who are not Advocates in court are awarded the Queen’s Counsel Honoris Causa. Let me quote the Gazette in extensio. It reads: “Nominations open for the Queen’s Counsel Honoris Causa. The Ministry of Justice (MOJ) is inviting nominations for the Queen’s Counsel Honoris Causa award. The honorary award recognises those in the legal profession who have made a major contribution to the law of England and Wales outside the courtroom.

Queen’s Counsel Honoris Causa Award

“What is the Queen’s Counsel Honoris Causa? The Queen’s Counsel Honoris Causa (QC Honoris Causa) is an honorary award unique to the legal profession. Made by royal prerogative, the award recognises those in the profession who have made a major contribution to, and impact on, the law of England and Wales outside the courtroom. The award is not a working rank and is separate to substantive QC appointments administered by Queen’s Counsel Appointments. Where someone is eligible to apply for substantive QC in their role, the Ministry of Justice (MOJ) would not normally consider them for an Honorary QC award.

What is the QC Honoris Causa for? The QC Honoris Causa is awarded to those in the legal profession who have had a significant, positive impact outside the courtroom either on the shape of the law of England and Wales, or on the profession. According to the MOJ, this criterion can be interpreted broadly, either as: a major contribution to the development of the law of England and Wales – for example, by dedicated research, influencing case law/legislation and promoting initiatives to how it is advanced – for example, by positively impacting the shape of the profession.Examples Influencing legislation Making an impact on the law by influencing legislation or case law – for example, through outcome of research, creating awareness or campaigning, pro bono work or other advocacy outside the courtroom.

Social Mobility and Diversity

Making a considerable impact on the legal profession – for example, through initiatives that have an impact on social mobility or diversity and increase the competitiveness of the sector. Innovation: Making an impact through a standout achievement or through innovation – for example, by breaking through into new territory, such as making an impact through work on Lawtech, innovation in legal education, or that promote UK legal services overseas. Academic work: Making an impact through outstanding academic work that makes a positive contribution to the law and/or legal system. You can see examples of previous successful nominees by viewing their case studies.

Who is Eligible for the QC Honoris Causa Award?

To be eligible for the award, the individual must be a qualified lawyer or legal academic and the nomination must be for achievement outside practice in the courts. In other words, an award would be made for non-advocacy work. The award is open to foreign qualified professionals. There is no residency requirement. Examples of those eligible may include (but are not limited to): solicitors without higher rights of audience. legal executives in-house lawyers, including Counsel, non-practising lawyers, legal academics
Holding a fee-paid judicial office in addition to normal practice would not exclude lawyers who meet the eligibility criteria above.

However, it should be noted that someone who has been honoured in the main honours system within the last two years, or who has been nominated for such an honour this year, would not be eligible to receive an Honorary QC award.
How are awards made? Nominations are considered against the criterion by a panel of representatives from the legal profession, civil service, judiciary, and academia, which is chaired by MOJ. The panel of representatives provide the Lord Chancellor with recommendations of appointable nominees. The Lord Chancellor, whose role is to ensure that the process has been carried out in a fair, open and transparent way, will then consider and decide the final recommendations.
The recommendations are then referred to the Queen for agreement, who grants the awards under the royal prerogative.

How to Nominate Someone for the QC Honoris Causa Award

Anyone can make a nomination. You do not need to have a legal background or reside in the UK and you may nominate as many people as you like”. Find out more about the Honorary Queen’s Counsel Nomination Form (GOV.UK). Publication date: 29 June 2022. The arguments or suggestions by myself and my learned friend of the Inner Bar, Ebun-Olu Adegboruwa, SAN and others are not intended to undermine, denigrate, rubbish, abuse or belittle those Nigerian academics who had been awarded the Rank of SAN. But we as well-meaning legal practitioners are interrogating the appropriateness of awarding the Rank of SAN to law teachers who strictly speaking are not Advocates in the Courtrooms. My concern and others is that the present mode of giving the award to academics in some cases, is in no way in line with the provisions of the Guidelines for giving the award. The Guidelines only empowers Legal Practitioners’ Privileges Committee ((LPPC) to confer the rank on academics in exceptional cases on academics who have made “substantial contributions to the practice of Law, through teaching, research and publications that have become major source of reference by Legal Practitioners’, Judges, Law Teachers and Law Students”.

Not only are most of the academics on whom the rank is conferred largely unknown, their publications are either not well-known or have become major sources of reference by Legal Practitioners’, Judges, Law Teachers and Law Students. In violation of the provisions of the Guidelines, academics are appointed based on the Point system. The points are given based on the quantity of publications submitted by the Applicant rather than on the requirement that the publications must be major reference material by legal practitioners, judges, law teachers and students. So, all that an academic needs to do to qualify is to bring a bagful of publications and score more points than other Applicants. This is totally unacceptable. This explains why many of the academics as well as their publications are largely unknown. Of equal importance is the fact that even though the academics do not go through rigorous process advocates go through to take Silk, they utilize the Rank in court. If the LPPC must continue to approve the award of the Rank on academics then it must be done honoris causa as done in the UK as shown above.

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