Panama Papers: Lawyers’ Ethical Dilemma

By Tayo Oke

Everyone who has ever set foot on Nigerian Law School premises remembers one thing from their first day to the last. It is that irrespective of how well one does in all the written and oral exams, there is one test that hangs on the head of every student like a sword of Damocles: the “fit and proper” test. It is one you cannot prepare for in advance, neither is it one you can revise for. Past questions and answers? No use. How about reading and jamming it all in, then, regurgitating later as you do with the other modules? No snowball chance in hell!

“Fit and proper” is a value judgment entirely in the gift of the Director General of the law school. He, and only he has to vouch for every single person called to the bar (in their thousands every year), that he is of good enough character to be admitted into the lofty ranks of barristers and solicitors of the Supreme Court of Nigeria. Why impose this extra endurance of pain on already overstretched students, you may ask? Well, they say it is because the law is a “noble” profession; more a vocation than a job; a higher calling of some sort. Also, those lawyers are “ministers in the temple of justice”. After all, a lawyer’s loyalty is not even to the client paying for his services; his loyalty, ultimately, is to the Court of the common cause of justice. Lawyers are, first and foremost, “officers of the court”, so goes the saying. This all sounds and feels rather a hogwash to the reasonable mind, I know, but, it is actually worse. It is a futile attempt at brainwashing for the uninitiated.

If you think this is a heartrending account of the law school’s effort, well, I invite you to cast your mind to the depressing scenes of the home of senior judges being subjected to dawn raids by the operatives of the Department of State Services in the last couple of months, for their alleged involvement in corrupt practices. There is mounting anxiety over lawyers’ deliberate use of the judiciary to frustrate the Economic and Financial Crimes Commission’s attempt at prosecuting high-level official corruption, so much that the Chief Justice of Nigeria, Justice Walter Onoghen, is currently putting together a special committee capable of cutting through the artificial logjam. Are all of these lawyers not “ministers in the temple of justice”? My guess is, a few will indeed be. Many others would not measure up even if they spent their entire professional life trying. Nonetheless, I am of the conviction that if only 10 per cent of Nigerian lawyers lived up to the billing of truly being “ministers in the temple of justice”, our judiciary would be such an envy of the world that people from across Africa would be clamoring to bring their cases before our judges. A clean judiciary does not require every one of its members to be clean; it only requires the barest critical number to make the barest critical input.

Let it be known, however, that what I am saying here does not amount to identifying yet another “Nigerian problem”, far from it. Lawyers’ indiscretion and complicity in high crime are universal phenomena. It is only noteworthy by its regularity and pervasiveness in our own jurisdiction. The “Panama papers” gives the world a one-in-a-million chance at witnessing lawyers’ duplicity in shielding people of questionable character and shady deals from scrutiny. It is the antithesis of “minister in the temple of justice”. “Mossack Fonseca” is a Panamanian registered law firm founded in 1977 by two friends; Messrs Mossack and Fonseca, to render legal services to corporate clients. The companies on their books soon grew from a dozen to over three hundred thousand within a couple of decades. The two partners were reported to have said in a casual television interview that they had created a “monster”. It employs close to one thousand personnel in about 40 countries around the world. Their focus is, strictly speaking, financial services for both corporate and individual clients. They do this by turning liquid investment into cash, put funds into an escrow (third party) account, then, transfer the same to an offshore company. They later restructure the same to reflect Mossack Fonseca as beneficial owner. All of this, they claim is done within the law, but for many people, it is a classic definition of money laundering (albeit) with a cloak of legitimacy.

Mossack Fonseca is in the fourth top tiers of firms in the world actively engaged in helping people “hide” their wealth. According to the American economist, Gabriel Zucman, about eight per cent of the world’s wealth ($7.6tn) is handled in this way. The loss in global tax revenues is estimated to be about $200bn per year, $35bn in the US, $78bn in Europe, $50bn in Africa, not to talk of Asia, the Middle East and the Caribbean. When the lid was blown off the client accounts of this law firm, it made a staggering revelation of sham companies and offshore accounts held by several figures from poor countries seeking to hide their wealth, to put it far away from the reach of their own economies while the governments in those countries go about with the begging bowl for “foreign assistance” and “foreign aid” of all types. The exposed list of the firm’s clients includes the who and who of Nigeria’s high society, over one hundred, in fact. In a situation like this, where does a lawyer’s loyalty lie? When a single law firm has 300,000 corporate “clients” on its books, many of which are “shell” companies, of course, where does a lawyer draw the line between truth and client confidentiality? Should lawyers go above their call of duty and become moral agents instead of simply applying the law, since they are “ministers in the temple of justice”?

This conflict of loyalties is a dilemma that runs through the life of a lawyer across jurisdictions, but more so on the continent of Africa with so much scarce resources and a daily struggle for survival by many. As I said earlier, the DG of the Nigerian Law School makes a judgment on every candidate for a call to the bar in this country. He is supposed to vouch for each and every candidate presented to the Benchers for the annual ritual. The “vouching”, of course, is more apparent than real; in other words, it is an illusion. It is difficult enough sometimes to vouch for the moral standing of every member in a nucleus family, let alone of faithfully doing so for thousands of strangers every year in the Law school. The DG is effectively being put in a position of having to carry the initial burden for the moral turpitude of lawyers later in practice. That is what happens when you vouch for somebody’s integrity; it rubs off on you if that person is subsequently found wanting.The DG should not be put in this invidious position in my view. The lawyers behind the “Panama papers” represent a challenge to professional standards. Candidates for the bar should be made to attest to their own honor and personal integrity ab initio, so they live or die by their own sword. The earlier the law school left policing of conscience out of its curriculum, the better for all.