The Legal Sector and Post-Covid-19: The Front Burner Issues

Yemi Akangbe

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It is no longer news that the Coronavirus pandemic continues to ravage the entire world since news of it broke in December 2019. While we thank our front liners and health workers for the assiduous and daunting, yet, life threatening, tasks that they embark upon everyday, we only pray that a cure/vaccine is found soon. But for now, there are predictions that these unprecedented times may remain with us for a longer time spanning into 2021 and beyond, and if that is the case, mankind would have to learn to live with what is now called “the new normal” way of life.

Over the past few months, every sector locally and internationally has been impacted by the knock-on effect of the infection. This has led to massive disruptions and sudden collapse of industrial and commercial activities. Certainly, the Nigerian legal sector is not left out and the existence and sustenance of most law firms have been threatened because of little or no work , largely  due to the fact that the judicial system, which is a major play point in the legal sector has had its functions and activities disrupted in a manner that is unprecedented..

There is therefore the need to work towards the so-called new normal and many epoch changes are being set in place by Law Firms, Lawyers, the Judiciary and the Alternative Dispute Resolution Bodies.  According to Albert Einstein, ‘in the midst of every crisis, lies great opportunity’, Covid-19 has certainly not been an exception to that saying. It is interesting to note, therefore, that Covid-19 has brought about some desirable innovations that most forward thinking legal practitioners have always been clamouring for. For instance, Courts are now talking about scheduling of cases that most progressive practitioners have been advocating for over time. Virtual hearings also now appear to be a real prospect.

Let us now consider how the legal sector has reacted to Covid-19 and its impact going forward.

 What is the Judiciary doing?

In the past weeks we have seen how the court systems have moved from being completely shut down to opening for skeletal activities to attend to urgent matters (like bail applications in criminal matters, fundamental human rights matters), adoption of final written addresses and delivery of judgments and rulings. Heads of Courts, under the directives of the National Judicial Council and the Honourable Chief Justice of Nigeria have risen to the task of filling the existent colossal gap that Covid-19 has both revealed and dented into our existing legal framework. Much as we would like to say that our legal system is evolving, it is not in doubt that this pandemic has exposed the fact that our legal system did not embrace digitalisation or the state of technology today until recently. Regardless, hereunder is a list of steps taken Post-Covid by the Judiciary:

1. Issuance of Practice Directions and Guidelines which supports the use of free and or cheap technology platforms in judicial service delivery. On 4th May 2020, the Lagos State Judiciary issued its Practice Directions to guide proceedings during the COVID-19 period. This was followed by Ogun State Judiciary and the High Court of the FCT, Abuja. Also, the National Judicial Council through the CJN released more of such Guidelines and Protocols following the Presidential Directives easing the lockdown set in place before now. Also, on 7th May 2020, the Lagos State Judiciary organised a virtual legal reform workshop which had stakeholders in attendance all in a bid to move the legal sector forward during these unprecedented times. These rapid developments are still in their crawling stages but it is certainly refreshing to see that the judiciary  is  awake to the reality that the so-called new normal has come to stay and business/institutions and the society at large must set bespoke mechanics to fit  the situation.

2. Virtual Hearings: Judges in Nigeria and indeed all over the world have now resorted to delivering justice virtually, through platforms like Skype, Microsoft Teams, Zoom etc. As far as Nigeria is concerned, such procedures seemed unlikely as at January 2020. However, recent judgments, rulings and proper court proceedings have held virtually in the past few weeks and the legal sector is the better for it.

3. A lot of Courts are now issuing protocols for physical hearing of matters by scheduling cases (allotting time slots for lawyers), in a bid to avoid having crowded court rooms. This welcomed development and is seen by practitioners as one of the desirable innovations brought about by Covid. This may be a lasting solution to the problems in some of our courts. In some Courts, in the Federal High Court, Lagos for instance, it is a rare privilege to find a standing space in Court, let alone, a place to sit down. But with scheduling, we may not experience this inconvenience going forward, as lawyers would have time slots and be able to plan their time better and not just sit in court for many hours. The opportunity cost of the way things were being done previously was obviously enormous and the effect could only have been detrimental to law businesses and their clients.

4. The above points made, a lot is still evolving, but it would be better for the Judiciary to see the Bar as their partners in this journey. There has not been as much engagement or consultation (in my opinion) in the steps taken by the Lagos State Judiciary, in issuing these Practice Directions and Protocols. Stakeholders engagement is always productive. Going forward, it would be advisable for the Judiciary to carry the Bar along, through the various NBA Branches within jurisdiction, as the Bar and the Bench are partners in the justice delivery sector. We need one another.

What are law firms and lawyers doing?

It is worth mentioning that, as a matter of strategy,  law firms and lawyers need to re-position themselves and have their value propositions (re) evaluated in order to position themselves to  retain  client’s trust on service delivery or make themselves attractive to potential clients who would be on the look-out for law firms who have displayed strong Business Continuity Plans during this period and cannot be considered to have rested on their oars. For law firms, the innovative steps taken, using the business model adopted by my firm, Sofunde, Osakwe, Ogundipe & Belgore and some other firms as an example are:

1.  Remote working: While some law firms are unfortunately unable to have any work done because they are unable to physically work from their offices, other forward-thinking law firms have (even before Covid-19) embraced “flexible and integrated working arrangement”. By this arrangement, the legal team are empowered to work from anywhere in the world on their work tools. This model enables law firms to provide real-time solution to clients and give the assurances that they are able to carry out their functions without necessarily being confined to their law offices. One crucial lesson from this pandemic for stakeholders in the legal marketplace is the need to have alternative means and methods for doing our jobs and the dynamism of the law and society should assist law firms to adapt to the changes that have come with the new world order and even after the pandemic is over, these changes/adaptive practices will become a larger part of our practice. For example, we, as a law firm have recently held many Virtual Preliminary Meetings to progress our clients’ arbitral reference. We have equally attended several video conferencing from the courts just to better prepare us for what is soon to become the new way of practising law.

2.  Ability to stay in touch with clients and assure them of your readiness to support and advise them during these times is essential. This is for the simple reason that lawyers thrive on patronage from clients and clients on the other hand, need lawyers for guidance and support.  The relationship should be predicated on  a synergy and one that is, at the very least, potentially rewarding . So, a forward thinking  law office will appreciate that client consideration and top-of-mind strategies are important for its existence. This is first, so that the client is guaranteed of a genuine trust/business relationship which transcends the bad times and second, so that  a client continues to know that its lawyers are available to render legal solutions as it may affect its business from time to time.

3.  The experience of the post 2008 recession which  triggered the launch of new businesses and several lawsuits for stakeholders who wanted to mitigate their losses is indicative of the fact that prioritizing knowledge acquisition and sharing in preparedness for emerging new opportunities  is key. It is safe to assume that there would be a lot of  contractual disputes post Covid, hence, lawyers should position themselves in a way to be able to take those opportunities. There are many low-hanging fruits that will emerge during and after Covid-19 due to strained, unfulfilled legal obligations and unmalleable business deals due to dwindling/receding or at best generally unstable market forces e.g. availability of FOREX to fulfill a supply chain distribution contract etc. Clients will require lawyers for legal advisory, dispute resolution, negotiations and compromise and everything in-between in order  to transition  into a better, leaner business structure, thus, the prospect of tackling such unprecedented cases  means  that a lawyer should  reposition himself or herself  for impact from a  place of knowledge and experience and must be seen to be responsive to the dynamics.

Conclusion

In conclusion, where this leaves the legal profession as a sector is a place of metamorphosis, transcending expectations as we have always known it. It is important to focus on strategy, functionality, management, leadership and a general repositioning of our legal sector and especially our legal framework to be better prepared for future crises (because crises will continue to plague the world and its economy), helping us to emerge from the ugly situations into an improved sector.  To achieve this, we need the common will to ensure that we do not throw away the positive gains of COVID-19. We should not see the positive achievements recorded as mere interim measures but as permanent solutions.

 


Yemi Akangbe is a Partner with Sofunde Ogundipe and Belgore (SOOB) and the current Chairman of the NBA Lagos branch.

 

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