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"We are in the midst of the biggest transformation of civilization since the caveman began bartering. The practice of law and the administration of justice are at the brink of change of an unprecedented and exponential kind and magnitude. This Age of Technological Revolution, together with globalization of business and competition, are transforming our profession and our system of justice with at least the same intensity,as they are everything else around us".

{American Bar Association, Working Notes, ABA Standing Committee on the Future of the Legal Profession, August, 2001}.

The conservatism of the legal profession is being gravely threatened by events that transpired in the later part of the Twentieth Century. As globalization and the wave of deregulation increasingly broaden the sphere of operations of companies, novel legislation in hitherto uncharted areas of commercial or business law has become very necessary in many developing economies. These events caught many practitioners, even in developed countries, napping. In developing countries, local attorneys, in spite of their brilliance in familiar areas of practice, lacked the professional knowledge, exposure or experience required for privatization and commercialization to ensure that restructured state monopolies do not transmute into private monopolies. While the need to employ experienced attorneys from any part of the world is self-evident in developing countries, there are no harmonized guidelines to cover the ethical dilemmas that may arise in the process.

Recognizing the fact that American legal practitioners may face accusations of unauthorized practice of law either in another state or internationally, the American Bar Association set up the ABA Multijurisdictional Practice Commission to review the Rules of Professional Ethics as they affect this issue. The Commission issued its final report and recommendations, which were considered and approved by the ABA House of Delegates on August 12, 2002, with some minor amendments. The approved rule amended ABA Model Rule of Professional Conduct 5.5 to permit U.S. lawyers to engage in certain types of practice in U.S. jurisdictions in which they are not licensed to practice without being deemed to be engaging in the unauthorized practice of law.

Be that as it may, lawyers worldwide may not have fully come to grips with the changing global nature of the lawyers' role not contemplated in traditional notions of law practice. Authority to practice law is primarily controlled by local legislation and what constitutes multijurisdictional unauthorized practice will naturally be the construction of the synthesis of two or more pieces of legislation by two jurisdictions in different continents. While the ABA Model rules regulate practice in states that adopt them, they represent only one leg in the two-legged requirement to practice in another state or internationally; the other leg being the local rules of that other state or country. Both rules must be read in conjunction with each other at all times. This is the problem every multinational law firm or practitioner must resolve before accepting any matter in another jurisdiction or country.

Drawing from real life experience, in July 1988, the Federal Government of Nigeria passed the Privatization and Commercialization Act to formally initiate the privatization and commercialization programmed for the furtherance of restructuring the Nigerian economy. The Act established the Technical Committee on Privatization and Commercialization (TCPC) as the implementation agency. The Bureau Of Public Enterprises (BPE) is the Secretariat of the National Council on Privatization (NCP) and is charged with the overall responsibility of implementing the policies and decisions of the Council. The functions of the Bureau as provided for in the Act include inter alia, implementing the Council policy on privatization and commercialization, preparing public enterprises approved by the Council for privatization and commercialization, making recommendations to the Council on the appointment of consultants and advisers, including Solicitors, for the purpose of either privatization or commercialization.

In 2000, the Nigerian BPE, in carrying out its legal mandate, advertised for both local and foreign attorneys. Reputable multinational law firms like Clifford Chance, Thelen Reid & Priest, and Cameron & McKenna were retained as legal consultants/advisers in very technical and complex areas like telecommunications, petroleum, energy and power supply. Unlike the email scam that promises millions in return for helping the scammer transfer millions of stolen dollars to a foreign account, these are genuine transactions financed by the World Bank, the United Kingdom Department for International Development (UK-DFID), and the USAID.

Local attorneys in Nigeria were incensed by the employment of these multinational firms. The most important legal issue raised was whether these firms were guilty of the unauthorized practice of law. To understand the dilemma faced by these multinational law firms, one must refer to the relevant sections of Nigeria's Legal Practitioner's Act, 1962 (hereinafter referred to as the LPA), which is the law that governs admission to practice law in Nigeria.

Section 2 (1) & (2) of the LPA provides:

(1) Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.

(2) If-

(a) an application under this subsection is made to the Chief Justice by or on behalf of any person appearing to him to be entitled to practice as an advocate in any country where the legal system is similar to that of Nigeria; and (b) the Chief Justice is of the opinion that it is expedient to permit that person to practice as a barrister for the purposes of proceedings described in the application, the Chief Justice may by warrant under his hand authorize that person, on payment to the registrar of such fee not exceeding fifty naira as may be specified in the warrant, to practice as a barrister for the purposes of those proceedings and of any appeal brought in connection with those proceedings.

Section 4 of the Act says:

(1) Subject to the provisions of this section, a person shall be entitled to be called to the Bar if, and only if

(a) he is a citizen of Nigeria; and (b) he produces a qualifying certificate to the Benchers; and (c) he satisfies the Benchers that he is of good character.

The combined effect of Sections 2 (1)(2) and 4 (1) of the LPA is that only citizens of Nigeria may be admitted to practice law as barristers and solicitors, but the Chief Justice may by warrant under his hand, grant any person appearing to him to be entitled to practice as an advocate in any country where the legal system is similar to that of Nigeria and who pays the prescribed fees to the Registrar, authority to practice as a barrister for the purposes of those proceedings mentioned in the application and of any appeal brought in connection with those proceedings.

By way of clarification, barristers (litigators) are members of the bar who appear before and plead cases in the superior courts while solicitors represent clients in the lower courts, prepare cases for barristers to try in higher courts, perform research, write opinions and advise clients generally as legal consultants. While this distinction is still maintained in Britain, it was abolished in Nigeria in 1960. Every Nigerian Attorney is both a barrister and solicitor. The foreign legal consultants/advisers are essentially solicitors by nature of their assignment. Though the Chief Justice may grant authority to foreign lawyers to appear pro hac vice as barristers, he has no such power to create temporary solicitors.

However, Section 7 (2) of the LPA authorizes the Attorney General of the Federation, after due consultation with the Bar Council, to enroll legal practitioners from any country in the Nigerian Bar if certain conditions exist. That section, in its relevant part provides:

"The Attorney-General may, after consultation with the Bar Council, by regulations, provide for the enrolment of the names of persons who are authorized by law to practice as members of the legal profession in any country where, in his opinion, persons whose names are on the roll are afforded special facilities for practicing as members of that profession; and, without prejudice to the generality of the power conferred by the foregoing provisions of this subsection, the regulations may-

(a) require persons seeking enrolment by virtue of the regulations to pass such examinations and to pay such fees as may be specified by or under the regulations;

(b) provide for the cancellation of enrolment having effect by virtue of the regulations where, in the opinion of the Attorney-General, the facilities aforesaid are altered or withdrawn.

Section 7(2) seems to have knocked the bottom off the argument of Nigerian local attorneys who charge their foreign colleagues with unauthorized practice and also rendered the powers of the Chief Justice in Section 2 sterile. This is because the final decision on whom to enroll from another country and under what conditions is at the discretion of the Attorney General after consulting the Bar

Counsel. Also, once enrolled under Section 7, the foreign attorney is accorded the same rights and privileges as a local attorney unlike the pro hac vice warrant granted by the Chief Justice.

While one may frown upon the wide powers given to the Federal Attorney General to enroll or cancel the enrollment of foreign attorneys to practice law in Nigeria, one must also recognize the expeditious need to attract practitioners with cerebral presence and in good standing who are afforded special facilities for practicing as members of that profession, to help the locals in navigating uncharted waters. This is where multinational law firms, especially American firms, have immeasurable advantage.

Further to the foregoing, before a prima facie case could be made for unauthorized practice, the local rules where the attorney is primarily licensed to practice must also be examined. The amended ABA Model Rule of Professional Conduct 5.5 now authorizes lawyers to engage in the following types of temporary practice activities in U.S. jurisdictions where they are not licensed:

1. When they are undertaken in association with a lawyer who is admitted to practice in the jurisdiction and who actively participates in the matter;

2. When they are in or reasonably related to a pending or potential proceeding before a tribunal in the jurisdiction or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

3. When they are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in the jurisdiction or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; and

4. When they are not within paragraphs 2 or 3 above, and they arise out of, or are reasonably related to, the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.

One may opine at this juncture that any foreign attorney who is employed by the Nigerian BPE as a legal consultant/adviser is engaging in unauthorized practice of law in Nigeria unless permitted to do so by the local rules of the foreign attorney. The foreign attorney must also fulfill the conditions precedent laid down in section 7 (2) of the LPA. It is not enough that the attorney works for or on behalf of the Federal government or its agency. Disregard for laws is mor the rule than exception in developing countries and attorneys from developed countries should discourage it. It behoves the attorney who desires to engage in multijurisdictional practice in any part of the world to study and comply with the local laws and rules governing admission to practice in that jurisdiction.

Finally, the legal consequences of multijurisdictional practice must be noted at all times; any lawyer authorized to practice, and who in fact practices in that jurisdiction, becomes subject to the rules of professional conduct of that jurisdiction. The attorney may be disciplined by any Bar where he or she is active for any unethical conduct irrespective of the jurisdiction where the violation occurred. This may raise the issue of conflict of ethical rules. For example, while the ultra conservative Nigerian Bar outlaws any kind of advertising by attorneys, it is narrowly permissible in the United States as within the purview of the First Amendment. Could an attorney admitted to and who in fact practices in both jurisdictions be punished in Nigeria for violating the non-advertisement rule if the office advertises on the internet or some other international medium as permitted by American law?

Another area that potent conflict is the terms of employment of the foreign attorney or firm. Using the terms of employment of consultants/advisers by the BPE as a case study, the Nigerian BPE guidelines provide for payments of all categories of fees. As a general policy, the BPE may pay a "success fee" to the privatization adviser. Such fee payment should implicitly reflect the advisers intellectual output (the transaction structure), project management, and the ability to attract a field of investors to bid for the privatized entity and thus generate competition. The success fee shall only be payable to the privatization advisers upon final receipt of proceeds from the successful bidder.

The objective of the success fee is to serve as an incentive to the adviser to "go the extra mile" in ensuring that the transaction is successful. In addition, in the negotiation of advisory fees, due regard is taken of the need to ensure that advisers also take a share of the risk in the event that a transaction does not succeed. BPE may also pay a finders fee of no more than 0.5% of the eventual purchase consideration to any agent that successfully attracts and advises the winning bidder. Fee splitting may be implicated in this transaction.

As geographical and jurisdictional limitations to legal practice are being dismantled by technology and legislation, multijurisdictional law firms and practitioners should ponder over these and other ethical issues.

Emeka Maduewesi is admitted to practice in California and Nigeria.,/b>