Away from Doom and Gloom: What Are The Bright Sides of COVID-19 for Nigerian Lawyers? – By Olumide Akpata
Since 27 February 2020 when Nigeria recorded her index case of Covid-19, there hasn’t been a shortage of webinars, articles, notices and news items on Covid-19. The magnitude is such that most people, including me, have developed some fatigue from reading, listening to, or partaking in, those. Most of these webinars and news items have predicted and painted an ominous, and perhaps correct, picture of how life and activities will not be the same after Covid-19. The predictions range from massive job losses to revenue erosion and a global economic recession.
The legal profession, in Nigeria and around the world, is not insulated from these scary predictions. For instance, it has been suggested that on account of Covid-19, Nigerian lawyers and law firms may loss up to 30 to 35% of their projected revenue this year and in the several months to follow; that the firms may consider staff “rationalisation” or a reduction of already meagre salaries. It is also said that clients will become more aggressive in fee negotiation; and reluctant in settlement of agreed fees; and that there might be an embargo on hiring, promotions, salaries increase, bonus payments and several others.
While some of these concerns which affect the very core of our survival may be real and should keep us thinking, I believe that we should pause for a moment and look at the positives (however minimal) that the Covid-19 pandemic might have brought to the legal profession in Nigeria and the lessons that we can take away from it as a means of bettering our system. Five of such quickly come to mind:
Technology in law practice – The manner in which law is practised in Nigeria is, often times, considered old-fashioned and very traditional. Technology and process innovations are undoubtedly changing the world and will continue to do so, in ways that we have not yet contemplated. The legal profession cannot be left behind. So, out of Covid-19 will come a recognition that we can, and should, do things differently. There will be, and in fact we have started witnessing, an increased push towards the use of technology by lawyers and law firms as a means of transacting. Some courts across the country have also begun to encourage the use of technology for proceedings. Who would have thought that this day will come so “soon”?
The need to retrofit and digitalise our courts and eventually key into the use of modern technology in our justice delivery process cannot be over emphasised. Besides speed, convenience and other benefits that come with it, it would also reduce the indignity and embarrassment faced by many of our colleagues who are forced to announce their appearance and, in some instances, conduct their cases without the luxury of being able to sit in overpopulated and tiny court rooms in some jurisdictions.
I recently joined a webinar and listened to Justice Kashim Zannah, the Chief Judge of Borno State who doubles as the Chairman of the Judicial Information Technology Policy Committee of the National Judicial Council (the “NJC ICT Committee”). His Lordship spoke extensively about the work that he and other members of the NJC ICT Committee have been doing in revolutionising our court system through information technology. I left the webinar confident that if the commitment to continue to push those reforms remains, we will make significant progress in the near future. However, I am aware the NJC ICT Committee was inaugurated about eight years ago (10 July, 2012) and that the Committee has been working since then, but Covid-19 might, in fact, be a catalyst to speeding up the process.
It is not lost on me that not all lawyers may be able to access or effectively utilise technology for their practice and that infrastructure deficit might also be a challenge. But as with every new concept, there will be teething problems and as we spiritedly stay on course, we will overcome the challenges and lay a foundation for the future of our profession.
We will also need to look through the relevant laws and amend them, when necessary, to ensure that virtual hearings, particularly as it relates to trials, do not become a basis for appeals.
Work-life balance and flexible working –For lawyers (and of course, every other professional), work-life balance is important to ensure both our physical and mental well-being, improve our productivity and free up some of our time to attend to other personal but pressing issues like family. Unfortunately, we sometimes tend to neglect the importance of work-life balance and flexible working (on this, I must admit some self-guilt).
In any case, the Covid-19 pandemic has sent the message to most law firms and employers that, with slight adjustments and additional facilities, their employees can actually carry out some of their core functions from any location: something that most law firms either did not think was possible or would never have allowed in the past. In essence, the pandemic has hastened the move to a virtual workforce. So, thanks to Covid-19, work flexibility, flexible hours and remote working as a means to ensuring work-life balance and job satisfaction might become more permissible and tolerable especially for those who demonstrate sufficient capacity and discipline in working from outside the office.
An opportunity to diversify–It sometimes takes going through a difficult phase to realize our potentials and opportunities that we may have overlooked. During the recent lockdown of the courts on account of Covid-19, many lawyers were simply unable to carry on with their practice or to earn any income, but it appears that a number of others with more diversified practice areas were able keep up during the period. Admittedly, in an economy and legal system like ours, it might be difficult for lawyers in every jurisdiction to fully diverse their practices (after all, our practice is usually a question of the activities around us), but where possible, there should be a conscious push towards diversification. Lawyers with more diversified practices may fare better than those whose practices are limited. Covid-19 has, again, brought this point to the front-burner and to the extent possible, lawyers should not miss the opportunity.
A possible uptick in certain kinds of legal work/enrichment of our jurisprudence – Interestingly, Covid-19 would very likely present more work opportunities for certain kinds of lawyers. For instance, on account of Covid-19 and its impacts, many businesses (especially those that do not offer essential services) have experienced a sharp decline in revenue and this could result in several bankruptcy filings, insolvency proceedings and business restructuring. The value of certain business will also nosedive to an all-time low and could force many struggling businesses to undergo a merger or other form of business combination to avoid going bankrupt. Commercial lawyers will also see many of their clients attempting to refinance, redenominate or restructure their debt obligations.
Litigation lawyers, on the other hand, will also see more employment law related disputes arising from claims by employees who believe that their employers are not entitled to unilaterally reduce their emoluments, cancel their leaves (or convert the lockdown period to leave periods), terminate their employment or take some other drastic measures against them under the guise of dealing with the impacts of Covid-19. Non-litigation employment law experts will also be advising clients on various aspects of the employment space, including on how to structure redundancies and to deal with most of the employment law related issues that Covid-19 will throw up.
Similarly, litigation lawyers may receive more instructions from clients who want to understand how their rights under existing contracts might have been impacted by force majeure, frustration and material adverse changes, or from clients who may generally have contractual claims arising from such concepts.
On a related note, depending on the facts, the contractual challenges and other connected issues that will ensue will result in our courts deciding on issues that they may not have exhaustively dealt with previously and in which Nigerian lawyers have often had to resort to other courts in the Commonwealth for guidance. Ultimately, our jurisprudence will be better for it.
Improved business continuity plans- According to health experts, there is likely to be a second wave of the Covid-19, and the possibility of other pandemics of a related nature and magnitude is not completely ruled out. Hopefully, with the lessons learnt from the current pandemic, Nigerian lawyers and law firms will most likely be better prepared for other eventualities. I strongly recommend that post Covid-19, law firms need to create better systems and put in place contingent and business continuity measures to deal with threats to their practices, and to enable them continue operations and stay afloat in the face of the challenges that the Covid-19 pandemic and its like would create.