Some members from our team recently participated in a webinar hosted by the International Bar Association, regarding the regulation of the legal profession in Africa. Below is a summation of what was discussed:
The topic for discussion centred on the issue of cross border legal services and the need to open up space and regulate. One view was that some areas of legal services such as transactions are more suited to be opened up as the work is already being done by non-locals. It was pointed out that L’Afrique Francophonie is already more standardised and they share a common language and the same common law so the practice of inter-regional legal practice is already there. In addition, when the regions were considering the issues of harmonisation across trade and other spheres, they included harmonisation of legal services as a focus point.
It was, however, pointed out that the diversity in language and systems should not be used as an excuse as the European Union model had worked efficiently. In terms of that system, legal practitioners can provide temporary cross border services without registering in another EU country. There are also EU directives which make it easier for a lawyer to register in another EU country. Whilst the overarching EU laws apply equally to all member states, local countries retain their own laws and practices, and therefore local lawyers do not necessarily face the threat of losing out work to non-resident lawyers.
Another view was that the discussion must not be centred around the protectionist desires of local lawyers but on the needs of clients, citizens and the need to grow economies. The danger of associating lawyers with court practice is dangerous because the transactional work goes beyond the bounds of traditional legal practice. That is why the skills may be lacking in Africa as the focus is on training lawyers for traditional legal roles, primarily court roles. It is possible to have cross-border legal services in a multi-lingual and multi-jurisdictional environment; all that is required is regulation.
Due to the focus of law firms in trying to retain clientele and our insistence on sticking to the traditional approach, legal practitioners are facing threats from other outside entities – such as the Big Five Accountant firms, who are far more advanced in respect of integration of accounting services across regions and internationally.
There has been some movement towards integration in Africa – for example, in respect of the African Continental Free Trade Agreement which came into force in May 2019. Whilst harmonisation of legal services was not included as one of the seven priority action points, we should be pushing for the same to be included.
In respect of the practicality of carrying out cross border services, the question was asked as to whether the international firms should bring in their own lawyers, set up offices or use the integrated model (best friend agreements). Establishing local firms is more expensive but the foreign Firms or clients need to trust the local lawyers and need to be assured of quality services. Many law firms are now looking to establish themselves in “hub countries” whilst looking for partner firms in other countries.
We have another scramble for Africa. In huge value transactions, African clients prefer foreign lawyers who tend to be more expensive. There is therefore the need to educate and reform the mind-set of clients, as well as working on promoting our law firms and legal systems.
How can cross border services be regulated? There cannot simply be a complete opening of borders and allowing anyone in. Local advice should be provided by local lawyers. However the phenomenon of fly-in fly-out by foreign lawyers seeking to advise on transactions coupled with the rush to partner in whatever form with local lawyers is clear evidence that the offering of cross-border legal services is not going away anytime soon.
In many transaction agreements enforcement procedures are usually agreed to take place outside the country in which the transaction itself is executed, usually arbitration in some European country. Part of this is the lack of reform in African justice sectors. African governments tend not to recognise the importance of having impartial and efficient systems of justice, and as such, African bar associations should lobby for the same.
There is also a need to look at the foundations of our legal systems. Student lawyers need to be trained in modern legal skills so that we can integrate into the modern legal practice systems once in practice.
The key take away was that it was agreed that there was a need to harmonise legal systems across the continent and open Africa up to cross border legal services. There is a need to regulate the same, however, in order to avoid the threat of big international firms (and even against big regional firms such as those in South Africa and Nigeria) taking over the market. It is therefore important to conceptualise a regulatory system that will assure access particularly when it comes to multinational transactions without necessarily allowing foreign lawyers the right of appearance in local courts. We must therefore brainstorm and lobby our bar associations and the legislature so that adequate regulatory measures are enacted.