Discordant tunes over propriety of law practice, estate agency mix

Legal Practitioners’ Rules of Professional Conduct (RPC), which was made pursuant to the Legal Practitioners’ Act (LPA), provides that lawyers are not allowed to engage in any other trade that is incompatible with the legal profession. Also, a high court judgment, reinforcing this fact, held that lawyers are forbidden from combining legal practice with estate agencies. Notwithstanding the position of the rules and the court, practitioners are still generally divided about the propriety of this position, JOSEPH ONYEKWERE reports.

Although its prestige and nobility have continued to diminish over the years due to general moral decadence and societal ills, the legal profession is a highly regulated practice, and the fight to uphold some of the vestiges of its falling standard still subsists.

That’s the reason the Nigerian Bar Association (NBA), the umbrella body of lawyers in the country, through the Legal Practitioners Disciplinary Committee (LPDC), sued a lawyer who engaged in an estate agency.
 
Eventually, the legal practitioner was disrobed for engaging in a trade, which is outside legal practice, and so, incompatible with the provisions of the Rules of Professional Conduct (RPC).

That decision still resonates among practitioners, who either agree or disagree with the judgment, which has become known as NBA v. Ibebunjo in legal citations. 

Interestingly, despite the existence of this judgment, an increasing amount of lawyers are playing heavily in the real estate sector. Even though many of them hardly engage in advocacy, they are still qualified to engage in legal practice.
 
For instance, Dipo Davies, the Chief Executive Officer (CEO) of Realhouse Communications Limited, the Publisher of Castles Lifestyle & Highbrow Living magazines in Lagos has been in the real estate business since 1999 after qualifying as a lawyer. He is considered one of the influential players in the agency business.  

On the flipside, there are other estate managers, who were licensed to practice real estate, but later studied law and qualified as lawyers. These groups of individuals are practicing both professions without issues, an indication that only those who engage in malpractice attract attention, thereby exposing themselves to sanctions.
 
Ibebunjo, who was disrobed unfortunately entangled himself in professional misconduct that forced his client to petition the authorities.  Regardless of the lack of enforcement of the legal practitioners’ Rules on Professional Conduct as it concerns agency, if indeed it is prohibited, legal practitioners are simultaneously doing both. But Professor of Constitutional Law and Governance, Edoba Omoregie (SAN) believes that the law as espoused in NBA v. Ibebunjo is valid. 

He maintained that a lawyer is not allowed to practice any other profession incompatible with the legal profession. “There are some exceptions to what a lawyer is prohibited from doing other than legal practice. This authority also states those exceptions. 

“There have been efforts to argue against interpreting the decision in its widest sense, but those efforts may be considered academic arguments, which do not substitute for the substance of the decision. From the decision of the LPDC in the NBA vs. Ibebunjo’s case, a person may still be caught by the rule against unprofessional conduct. He has the option to elect out of the legal profession if he chooses to practice estate agency,” he argued. 

Although Omoregie noted that many lawyers do not agree with the decision, he, however, stressed that until a different decision sets the judgment aside, it remains the subsisting law.

Similarly, Lagos-based lawyer, Stephen Azubuike, explained that estate agency and estate management business are not within the realms of law practice.

“But a business-inclined lawyer can play within that space by establishing a distinct entity with a great structure to advance his business interests,” he suggested.

The position of the duo above notwithstanding, some disagree with them stoutly.  Kano-based lawyer, Abubakar Sani, believes that under the general law of agency, anybody can be an agent – including an estate agent. The prohibition against legal practitioners combining legal practice with estate agency, he said, is contained in the Rules of Professional Conduct, which is inferior to the Constitution.  He stated that where the rules detract from or are inconsistent with the Constitution, they must give way to the latter. 

“I believe that is the case vis-a-vis the provisions of Item 62 of the Exclusive Legislative List of the Constitution. That provision spells out the trade and commerce remit of the nation. In AG Ogun State vs. Aberuagba (1985), the apex court interpreted identical provisions in the 1979 Constitution to mean words of limitation, not emphasis. 

“The implication is that any power not expressly conferred on the parliament under those provisions is off-limits to it in terms of trade and commerce. The agency for reward (commission agency) is an incident of trade and commerce. 

“If the National Assembly is incompetent by itself to directly legislate on commission agency, it follows that it cannot delegate that power to anyone, as it cannot give what it doesn’t have (Nemodat quod non habet). To the extent that our Rules of Professional Conduct contain that restriction, they are ultra vires their makers,” he said. 

Sani argued that the same conclusion would apply even if the National Assembly enacted it, adding that it would be ultra vires and invalid because it would be inconsistent with the provisions of Item 62 of the Exclusive Legislative List of the Constitution.

According to him, the decision is too sweeping as it assumes that all estate agents must invariably demand a fee or commission for their services. An agent, he said, can choose to forego the fees or commission for his/her services.  He, therefore, stressed that the ban against combining business with legal practice (assuming it is valid) is only applicable to service for reward.

A Fellow of the Nigerian Institution of Estate Surveyors and Valuers, Sola Enitan, who is also a lawyer, believes there is nothing wrong with playing both roles.
 
According to him, one can be a practicing lawyer and a real estate agent at the same time, though there are things to consider to ensure that this dual role is managed effectively and ethically. 

Enitan, a Registered Surveyor and Valuer, noted that it is important to adhere to the Rules of Professional Conduct for lawyers.   He explained that the ethical standards of both professions demand compliance under their enabling Acts. This, he said, includes the avoidance of conflicts of interest. 

“For instance, as a lawyer, you should not represent a client in a legal matter where you are also the estate agent, or have a financial interest as a real estate agent. Always be transparent with clients about your dual roles.

“You must maintain separate licences for each profession. This involves meeting the continuing education requirements for both the legal and real estate professions, which can be time-consuming but is crucial for compliance and professional competence.

“Again, your legal skills can be advantageous in real estate, particularly in understanding contracts, negotiations, and property law. Similarly, your experience in real estate can provide practical insights into real property issues in your legal practice,” he said, pointing out that it is unlawful for a lawyer to be the estate agent to the same client, at the same time, on the same transaction. 

He advised that it is better for a lawyer, who wants to practice an estate agency, to incorporate a separate entity for it that is different from his/her law practice. This, he said, is because Rule 7(2)(b) of the Rules of Professional Conduct for Legal Practitioners, 2007, forbids a lawyer from practicing as a legal practitioner while personally engaged in the business of a commission’s agent. 

Enitan explained that what is forbidden is practising as a lawyer while engaging in the business of a commission agent. “In other words, the active part of the prohibition is – practice as a legal practitioner. You cannot be a legal practitioner and commission agent in the same land transaction. This approach is both logical and equitable.

“As a matter of fact, a legal practitioner’s involvement in the real estate business is unavoidable because S22 (1) of the Legal Practitioners Act, as well as, the Practice Guidelines of Estate Surveyors and Valuers Registration Board of Nigeria (ESVARBON), which governs real estate practitioners confer lawyers with the exclusive right of preparing land instruments, which is fundamental in the sale of land,” he said, citing Justice Helen Ogunwumiju of the then Appeal Court.

A registered Surveyor and Valuer, Mr Francis Okpaleke, who is also an arbitrator, thinks the judgment in NBA v. Ibebunjo was not really about whether a lawyer is qualified to act or play a role in an estate agency. 

This, he said, is because lawyers have their professional role to play, and the professional role of legal practitioners in consummating real estate transactions is not shared with any other profession. 

“Lawyers document these agreements, prepare conveyancing, sales transactions, and deeds of assignments. They do a whole lot of documentation, perfecting titles and carrying out searches.
“As an estate surveyor and valuer, we work together. We also know our limitations. When it comes to estate agencies, buying and selling of property, we play a prominent role. Our valuation skills, real knowledge of the market, education, training, and professional exposure place us in a prime position when it comes to estate agencies. 

“Yes, due to poor regulation, there is the tendency for estate agency to be an all-comer affair. We have had situations whereby contractors and others feel that they have a role to play in the sector. After all, it’s just about connecting people, anchored on the general rule of estate agency generally,” he pointed out, adding that the problem occurs when a lawyer leaves his primary role as a legal practitioner in real estate transactions for other things.  

According to Okpaleke, the actual role of buying and selling, acting as an agent, is outside the role of legal practitioners. “And I think that’s what that judgment is all about. Lawyers, just like estate surveyors and valuers, have their Rules of Professional Conduct and Code of Ethics, which guide how they run their affairs.

“So, the lawyers’ rules, to the best of my understanding, involving estate agencies, are not compatible with legal practice. So, if you want to practice estate agency as a lawyer, you are not expected to do it under the platform of your legal practice.

“The disbarred lawyer in question engaged in some illegal activities. I think he collected money from a client to buy a property. At the end of the day, he didn’t deliver, and he didn’t return the money.

“So, the client petitioned the LPDC and in the end, he was sanctioned for an infamous act. So, when as a professional you commit what is regarded as an infamous act, the fellow will be sanctioned by the body,” Okpaleke explained. 

On his part, the Second Vice President of the Nigerian Institution of Estate Surveyors and Valuers, Dr Emmanuel Mark, said although there’s no explicit ban on lawyers engaging in estate agency, the Rules of Professional Conduct emphasise maintaining professional integrity and avoiding conflicts of interest.

“Estate agency practice requires specific expertise, training, and registration with ESVARBON. Lawyers lacking proper training and registration in my humble opinion, may not possess the necessary knowledge and temperaments to provide competent estate agency services, potentially compromising professionalism and client interests.

“Therefore, I submit that lawyers should not practice estate agency without completing specialised training in estate management, registering with ESVARBON, and ensuring that there is no conflict of interest with their legal practice. This in most cases, ensures that lawyers maintain professionalism, integrity, and prioritise client’s interests,” he said. 

Mark, who is also a lawyer, said that the Nigerian Institution of Estate Surveyors and Valuers (NIESV) in recognition of the need for specialised training in estate agencies, established the Association of Estate Agents of Nigeria (AEAN) to provide training and mentorship for non-estate surveyors, including lawyers, engineers, and others, who wish to specialise in estate agency.

“Through AEAN, these professionals can gain the necessary expertise and knowledge to excel in an estate agency, ensuring that they provide top-notch services to clients,” he declared.