‘Rules on professional advertising are too rigid and formalistic’

The Rules of Professional Conduct forbid lawyers from advertising to the public to attract job or business. But an intellectual property law expert, John Onyido in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, said rules on professional advertising should be relaxed to accommodate more modern media platforms and avenues for lawyers to advertise their services in new and more creative ways. He also spoke on Intellectual Property law, Piracy, Cybercrime Act, Data Protection Law among others.

Do you think the Legal Practitioners Act as it is today is a suitable guide for the modern-day practitioner and law firm?

Although the Legal Practitioners Act was promulgated in 1975, it has been updated on a few occasions and it still captures the essentials for the proper regulation of the practice of law in Nigeria.

Having due regard to the inception of new technological innovations and the opportunities they present, however, the rules on professional advertising are too rigid and formalistic in my view and may require being relaxed to accommodate more modern media platforms and avenues for lawyers to advertise their services in new and more creative ways.

So long as these are done in good taste and in accordance with the practice rules on posturing, exaggeration and excessive claims of professional superiority, or the peddling of clearly misleading information, such activities should be permissible.

On a more general note, extra attention should be given to creating a more inclusive profession that caters to the unique challenges and needs of the ‘young wigs’ in terms of their welfare and in providing the necessary opportunities for pupillage that is the hallmark of legal training.

The NBA is moving in this direction and it is hoped that this trend will continue.

Apart from these initial observations, I will only comment briefly on rules 10 and 11 of the Rules of Professional Conduct. Rule 10 imposes a requirement for the use of stamps and seals by legal practitioners.

This is a fairly recent development intended to weed out impostors and fake lawyers and other laudable objectives that cannot reasonably be faulted.

The knee-jerk fashion in which it was introduced and the absence of necessary infrastructure and modalities for its proper implementation nearly derailed the process, and indeed it remains a work in progress.

While we can appreciate the correlative need to utilize the process for revenue generation, verification of the authenticity of practitioners can be achieved otherwise than through an uncompromising requirement to utilize a professional stamp and seal.

Subsequent court decisions have sought to clarify some troubling aspects of the rule on whether for instance non-compliance is fatal to a lawsuit as filed or an irregularity that can be remedied.

Additionally, whether alternative verification of payment of practising fees alone is sufficient where the legal practitioner has complied but for reasons beyond his control, he’s unable to obtain the requisite stamp and seal.

We have addressed some of the issues arising from this topic in an article published on our website a few years ago which can be found here:http://www.spaajibade.com/resources/wp-content/uploads/2016/02/NBA-Stamp-and-Seal-Article.pdf.

Rule 11, on the other hand, deals with continuing legal education for licensed practitioners as part of the prerequisite for practising law in Nigeria.

Whilst the provisions of the rule are apposite and align with similar provisions in other countries, we do not yet have a way to enforce this rule and not merely for the sake of rote compliance but as a veritable tool for ensuring the proper practice of law at a high level of competence and professionalism.

Quite a number of the challenges here bother around the introduction and effective utilization of new technologies for storage, retrieval, authentication and verification similar to rule 10 above.

Another aspect of this is identifying suitable Continuous Legal Education (CLE) providers and online platforms for making the exercise meaningful and a successful undertaking.

A few providers are already taking steps to fill this gap and a couple of law firms are also playing their part in creating suitable courses for such CLE programmes.

We are currently partnering with one such innovator (www.tacora.ng) in the field of intellectual property which we hope would be of some benefit to students and practitioners alike.

Relying on available data, how current is Nigeria’s Intellectual Property (IP) laws?

Nigeria’s IP laws are in urgent need of an overhaul. The vast number of our IP statutes are decades old and are outdated in core areas.

As examples, the Patents and Designs Act though codified into the 2004 collection of extant laws was enacted back in 1970, the Trade Marks Act in 1965, the Trade Mark Regulations in 1967.

The Copyright Act appears to be the only one of the old brigade of laws to have received legislative attention in the past few decades, firstly in 1988, then in 1992 and 1999, respectively.

The Merchandise Marks Act continues to retain its 1916 structure and content.

As a response to these outdated laws, the Law Reform Commission made significant recommendations in 1991, directed at revamping the sector and bringing our laws in step with global trends.

Additional efforts from practitioners and other vested interests came in 2008 and updated in 2016 in the form of the Industrial Property Commission Bill (IPCOM) and the Trade Mark Bill also of 2016.

All these efforts are yet to yield the desired outcome, as some of our IP laws remain largely unaltered for over five decades.

Moreover, some unique fields like Trade Secrets and Franchising are not yet statutorily regulated but remain under the purview of general but inadequate common law principles.

In the meantime, new global developments continue to render our laws largely non-compliant.

We have highlighted a number of the projected adjustments to our IP laws in the Intellectual Property Expert Guide for 2019 to be published by Global Legal Experts.

Some very important anticipated provisions include the concept of famous marks in trademark law, protection for new plant varieties and the recognition of animal breeders rights, the protection of integrated circuits and undisclosed information and the introduction of criminal liability for patent infringement.

You practice in other jurisdictions, what is your IP experience compared to that of Nigeria?

There are some important differences between IP practice in Nigeria and in the United States where I have had the opportunity to practice law.

Firstly, in the area of specialization, we still have a large population of general practitioners – perhaps a fallout of the stage of economic development we currently occupy.

The global trend (at least after the pupillage period) is towards identifying areas of professional strength and skill and honing them more pointedly for enhanced, efficient and effective client services.

The level of sophistication in the provision of professional services is also markedly different.

We are only slowly grasping the benefits of technological tools utilized in the commercial world to streamline and render our work more efficient.

On the procedural side, our discovery processes are still narrowly focused and straight- jacketed.

In the US, the discovery process is a bit more diffuse and broad in the search for relevant and responsive evidence and documentation.

The US patent system is based on substantive examination, while we still practice a formal documentation system without guaranteeing the validity of patented inventions.

Even in the trademark filing process, most filings in Nigeria are for all the goods/services in the class.

This is discouraged in some climes like Canada and the United States, where evidence of actual use for each item in that class is a pre-requisite, forcing applicants to narrow the scope of protection which they may seek.

The registry practice is also highly automated, while we are only just beginning to head in this direction in the country.

To put this problem in perspective, until quite recently, we had an unbelievable number of trademark applications awaiting publication in the Trade Marks Journal.

Similarly, trademark oppositions have not been entertained at the registry for several years due in part to a lack of resources and skilled personnel to superintend these hearings.

A fully digitized registry would streamline the administrative processes, speed up and considerably enhance the quality of client service delivery.

The Intellectual Property Lawyers Association (IPLAN) and a few other local IP groups have been instrumental in turning the tide in a positive direction.

Lawsuits filed in the US and other developed countries are also expeditiously resolved for the most part and avenues for prolonged delays attenuated or effectively discouraged. Specialized courts are also more effectively utilized in most advanced economies, compared to our specialized courts (i.e., the Federal High Courts) which have ended up being inundated with diverse subject areas reminiscent of the once unlimited jurisdiction of the state High Courts, with attendant challenges.

Piracy and IPR theft is still a serious challenge for us as a country. How in your view should this be tackled? 

Piracy and IPR theft can be tackled, partly, from a comprehensive review of our legislative enactments.

As indicated above, most of our laws are outdated and the penalties and consequences for certain offences and infractions largely dissociated from present day realities and consequently having minimal deterrent effect.

More stringent penalties have been prescribed in the new IP bills awaiting legislative review and presidential assent.

Next, is the proper collaboration of various agencies of government with a role to play in this arena, i.e., the Customs, NAFDAC, NCC, NOTAP, SON etc. Exchange of information and the sharing of data among these agencies will place them in an advantageous position to carry out their duties and functions with an increased level of effectiveness.

The use of modern technological tools as well as social media platforms can be immensely beneficial in disseminating constructive ideas and aspirations.

We also need to continue to provide ongoing quality CLE training for our judges and introduce IP related subjects more broadly into our educational curricula.

At SPA Ajibade & Co., we have done quite a lot in the past 12 months in helping to increase the awareness of the public about IP related matters through regular publications in print and electronic formats.

We are also providing on-going support to some law faculties and budding lawyers in augmenting their knowledge of IP subjects whilst recommending a broad inclusion of related subject areas to the teaching curricula of our law faculties.

The proper training of law students at both the University and law school levels is a foundational requirement as this is the pool from which our law professors, judges, legislators and public servants would be sourced.

The fight against piracy and IPR theft is a complex one that requires a multi-pronged approach in addition to the traditional modalities of IP enforcement.

The average trader in Idumota or Alaba market, for instance, needs to understand and appreciate why it is cost effective in the long term to adopt unique and distinctive trade insignias from the outset rather than to peddle knockoffs of popular brands that hold the allure of immediate gratification.

These retailers need to come to terms with the fact that engaging in the sale and distribution of adulterated and counterfeit drugs endangers lives and should not be an option as a means of livelihood.

Lawyering in 21st century is becoming very sophisticated. Do you think the legal market in Nigeria is prepared for globalisation? 

I think Nigerian lawyers are acutely aware of the increasingly sophisticated environment in which they have to operate in order to thrive.

Apart from having an enabling environment in which to perform optimally in terms of more extant legislation and practice directions, there may be the perception that availing ourselves of more modern practice tools may be prohibitively expensive resulting in a shared reluctance to deploy necessary but limited resources in this direction.

It is however apparent that in order to continue to be relevant, certain vital adjustments need to be made by individual practitioners and the profession as a collective, to enable us provide the kind of quality and more relevant services which our clients require and expect from us.

As we begin to make these adjustments, we automatically attract global attention from larger international law firms who are currently seeking local law firms to interface with in order to achieve common goals.

Interestingly, a couple of local firms are already experimenting with loose partnerships with foreign law firms with varying outcomes and degrees of success.

Some such mega practice groups with increasing footprints on the continent and who harbour strong desires for more African presence include DLA Piper Africa, Baker and McKenzie, Bowmans, Eversheds, Kirkland & Ellis, Latham & Watkins, Linklaters, ENS Africa among others.

This trend is likely to pick up in the years ahead as these entities work out the modalities and parameters for such law practice collaborations.

What are the biggest trends in the global legal market today and how can Nigerian lawyers benefit from them? 

Some of the biggest trends include the use of legal technology tools like mobile applications, data analytics software, cloud computing, machine learning tools, artificial intelligence and the proper management of big data.

Other global trends include e-discovery methods to ensure the identification, discovery and admissibility of electronically stored information especially in complex multi-party and multi-jurisdictional litigations.

The use of social networking platforms for employee recruitment, networking, collaboration, advertising, branding and client development efforts, are trending at an exponential rate.

Still others are Legal Process Outsourcing, the use of virtual law firms and alternative service delivery methods that meet and exceed client expectations.

These developments are the direct consequence of a digitally mediated environment which Nigerian lawyers need to become familiar with to maintain our competitiveness on the global stage.

We can do this in phases and at manageable scales as long as we keep moving steadily in this direction.

The application of distributed ledger technologies (Blockchains) in the field of intellectual property law for instance could address a vast array of important matters like the verification of authorship in copyright law, prior art and novelty issues in patent law, the preservation of the integrity and confidential nature of trade secrets, data storage and retrieval in trademark portfolio management and easing the licensing process in connection with high technologies in the telecoms and other vibrant sectors of the economy.

A number of IT vendors and management training outfits exist nowadays that can provide the needed guidance on the best modalities suited for individual firms at affordable cost.

Some local pioneers in this largely uncharted terrain include outfits like NextCounsel (for legal tech tools) and TotalAscent (for corporate/personnel management and productivity) etc.

As technology evolves, new opportunities in Telecommunication, Media, Technology, (TMT) and finance emerges also. How can we make progress in these areas without comprehensive data protection laws? 

Obviously, with increased access and the ease of replication enabled by new technologies, the question of data security and the protection of personal information become imperative.

Apart from the general provisions contained in section 37 of the 1999 Constitution, there are no comprehensive laws regulating data protection in Nigeria.

The National Information Development Agency (NITDA) issued a set of very useful Guidelines in 2017 providing broad strokes in terms of standards and policy objectives regarding the personal identifiable information of Nigerian citizens.

Similarly, a couple of sector specific provisions can be found in NCC rules and regulations like the Registration of Telephone Subscribers Regulations of 2011 applicable in the telecoms industry.

It is vital as we begin to more fully migrate our data online and engage in electronic information transfers, that we put in place strong data protection laws that flesh out the NITDA rules in specific terms and give meaningful effect to the provisions of the Constitution on the right to privacy.

Multiple and duplicated efforts are currently being made to collate the personal data of citizens at great cost.

These efforts should be harmonized and integrated into a comprehensive database for effective national and economic planning initiatives.

Some stakeholders consider the Cybercrime Act deficient because it lacks a clear-cut enforcement provision. What are your thoughts on the Act?

I believe the Cybercrimes Act is an important piece of legislation that makes substantial provisions for fighting cybercrimes, promoting cybersecurity and protecting vital national security infrastructure.

Recent indications show a positive trend towards reining in wanton cybercrimes and fraudulent activities with the introduction of the Act and the Bank Verification Number (BVN) in recent times.

That said, our major shortcoming is lack of enforcement of the laws we have, lack of cooperation and coordination between related ministries and agencies charged with similar functions, duplication of functions and absence of necessary resources to carry out these assigned duties.

I would recommend that in terms of coordination and enforcement, the Office of the AG Federation should have supervisory functions over cybersecurity backed up by the office of the National Security Adviser and other supporting agencies as envisaged under the Act.

Furthermore, a separate specialized Court/Tribunal for cyber related offences should be established to attend to these matters and to expeditiously entertain applications for the issuance of arrest and search warrants.

No country is free of the threats of cybercrimes (as recent global trends bear out) and the varied ways in which hackers and those with criminal intent devise methods to circumvent digital securities are seemingly unlimited.

A robust and dynamic legal framework and cyber infrastructure are vital in keeping this menace fairly well contained.

In your opinion how progressive is the legal profession in Nigeria? And what factors could affect its development?

In my view, the legal profession in Nigeria has always projected a progressive outlook regarding the practice of the profession on the continent and has championed various courses emulated by comparable bodies in other African countries.

I believe Nigeria continues to hold the touch in this regard although a lot more still require the full attention of the leadership of the Bar.

The leadership of the Bar and the Bench understand what needs to be done and would have to work together as agents in the administration of justice for the benefit of Nigerians.

Some areas that require continued attention include the digitization of the courts and the Patents, Designs and Trade Mark registries.

The large-scale implementation of an automated filing system, and the introduction of legal apps sponsored by the profession and the judiciary to facilitate the availability of affordable/free legal services to indigent Nigerians is indicated.

Attention to these areas would improve the perception by members of the public of a profession sincerely interested in catering to their needs and upholding the Rule of Law.

SPA Ajibade & Co., hosted the very first ever global legal Hackathon on the continent early this year with the Nigerian team participating in the finals which took place in New York in April.

Incredibly useful mobile legal applications were developed over a 3-day weekend by enterprising lawyers, tech developers and coders as well as law students to address the challenges faced by the legal profession in Nigeria.

This and similar initiatives should be encouraged and supported by all stakeholders and justice administrators.

How can the profession advance in terms of leveraging on the experience and knowledge of lawyers practicing in-house at various local and global organizations to drive the growth and progress of the legal profession in Nigeria?

There is obviously a need for more collaboration and interface between in-house and external solicitors as they can both learn from each other.

It is vital for the external solicitor to understand and appreciate what the client (corporate entity) is trying to accomplish and this is usually filtered through the in-house lawyers.

Conversely, the in-house lawyers need to pay attention to what the external solicitor has counselled as a viable strategy based on practice experience and expertise. This interchange is essential in advancing the business goals of the client.

What we see in practice is a reluctance to take proper legal advice to avert looming legal problems often to the detriment of the corporate client.

Quite a number of these pitfalls can be side-stepped through proper legal guidance sought and received at the appropriate time.

In-house attorneys are also always keen on how to make the process of providing legal services more efficient and the billing process more transparent and competitive and the practising attorneys need to appreciate and work to assuage these needs.

Where do you see the Nigerian Legal Industry in another 10 years especially with regards to partnership in law firms?

In the next 10 years, I foresee the Nigerian Legal Industry significantly coming to terms with the demands of a globalized world economy that thrives on collaboration and efficient legal services delivery.

I also see more robust and ambitious partnerships between local law firms and international legal conglomerates (similar to current trends in Southeast Asia, the Middle East and Europe including some East and South African law firms) who have pioneered these massive integrated practices on a remarkable scale.

I expect that Africa as the most promising and viable investment destination of our time will continue to attract and retain the interest of mega law firms, with Nigeria playing a crucial role in that dynamic.

Coming closer home, I project an increased departure from family-based practices to more diverse forms of equity partnerships with a marked emphasis on specialization and the evolution of niche practice areas that set the more courageous law firms of the future miles apart from the competition.

Having worked at a few foreign firms, some of which are over two-centuries old, I do appreciate the role that a deeply ingrained practice culture and reputational style can play in a professional setting.

Some of our enduring local firms are now between 50 – 75 years old and with the proper leadership vision and guidance can equally attain such vistas.

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Nigeria’s IP laws are in urgent need of an overhaul. The vast number of our IP statutes are decades old and are outdated in core areas

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Our major shortcoming is lack of enforcement of the laws we have, lack of cooperation and coordination between related ministries and agencies charged with similar functions, duplication of functions and absence of necessary resources to carry out these assigned duties.