ANALOGUE REGULATION IN A DIGITAL AGE: MY THESIS AGAINST THE DAILY USE OF THE WIG AND GOWN IN NIGERIAN COURTS

The world is changing quickly. We see this change everywhere. It reveals itself in technology: through developments in ICT, we are able to communicate instantaneously with people thousands of miles away; we are able to capture and share everyday moments directly and personally; and blockchain technology is increasingly making us question whether we need the implicit guarantee of the government to support currencies used as a store of value. It reveals itself in globalization and industrialization: our domestic businesses are more ambitious in attempting to break into external markets, whilst foreign businesses are increasingly looking to do business with us – leading to more political attention on indices such as the ease of doing business in Nigeria. It reveals itself in financialization: the world economy is increasingly moving from a production-based model to a services-based model as access to capital increasingly becomes an ever more important factor in determining the success of business, making the financial services sector a crucial agent of growth in the real economy. It reveals itself in the choices businesses make: delays in our courts are leading to broader acceptance of arbitration as a means of dispute resolution, making our courts increasingly unlikely to hear high-value commercial disputes at first instance. It reveals itself in the regulation of the legal profession: the Nigerian Bar Association has championed a move to maintaining an electronic database of lawyers qualified to practice law in Nigeria and the Supreme Court of Nigeria has rolled out a platform for electronic filing of processes. However, it does not seem to reveal itself in the dressing requirement of legal practitioners appearing before Nigerian courts. 

In this mid-length essay, I join the debate calling for a relaxation of the dressing requirement in Nigerian courts and offer a pragmatic recommendation that can be adopted as a first step in achieving the relaxation of the rules. Although I can argue that the wig and gown represent vestiges of our colonial past which we can (and should) do away with, and although I can show the diminished utility of the rule by reference to the simple fact that England (from where we borrowed the rule) has since fundamentally revised it; in this essay, I do not argue along these lines. I believe these points have been made extensively in previous arguments, and I cannot possibly make these arguments any more eloquently. Rather, I present my thesis against the daily use of the wig and gown by exploring broader issues and explaining how this can shape both the perception of, and aspiration to join the Nigerian legal profession. I do this by examining the dressing requirement through three lenses: the outsider's lens, the insider's lens and the aspirant's lens. In summary, my thesis is as follows: for different reasons, outsiders to the profession are likely to be either indifferent to or positively against the wig and gown; it does little to improve the nobility of the profession, and indeed comes with some inefficiencies of its own; and today, it has significantly diminished utility in attracting aspirants to the profession.

To be clear, my thesis is not that the wig and gown should be done away with altogether. Some readers with a more extreme viewpoint may call for the complete removal of the dressing requirement, and Pan-Africanists may go even further and argue for traditional attires to be permissible in court (after all, the wig and gown reflected formal/ceremonial dressing culture in England when it was introduced). I do not address these arguments but welcome the debates they inevitably raise. My more limited point is against the dailyuse of the wig and gown before superior courts of record. Of course, the views expressed in this commentary are entirely personal to me and do not necessarily represent the views of my employers or any organisation I may be associated with.

The Outsider's Lens

'Sometimes one wonders what is happening to the legal profession. In the tradition of the profession, one of the reasons for its being termed honourable is that counsel never complains of his fees. The tradition of having a small pocket in the Barrister's gown is that litigants used to put money there when arguments proceeded in court. It used to be five shillings and it was honourable to receive such recognition… Fees paid some two decades ago were only three guineas per case and it was an honour to receive such briefs.'

We may be sympathetic to the above point made by Hon. Justice Kayode Eso JSC (of blessed memory) in Udo v The State [1988] 3 NWLR (Pt. 82) 316. But as stated above, the world has changed significantly in the over 30 years since his Lordship made this statement (for present purposes, I leave aside the question of whether lawyers today complain of or seek to negotiate higher fees). The simple point is that however big the pocket in a gown is, it is simply too small to contain a lawyer's fees in modern times. Alas, even if the pocket were big enough, fitting such amounts of money into a lawyer's pouch will undoubtedly impair the lawyer's submissions as he/she will need to literally deal with the weight of this new-found 'recognition'. The client herself may need to attend court with an attachment of security operatives if she wishes to so ‘recognise’ the erudition of her lawyer. Boundless logistical problems would arise. But there is an additional reason she would not need to burden the lawyer with this weight in his/her gown: she can simply send the recognition using her mobile phone! 

An outsider to the legal profession is therefore likely to be either completely indifferent to or positively against the wig and the gown. Notwithstanding its beauty when it is worn right, the outsider is clearly aware that the wig does not confer wisdom on the lawyer nor does the gown represent libraries of books locked in the lawyer’s memory. Indeed, the outsider is aware that her interests will not be more competently represented on account of the lawyer's attire.

On the flip side, the wig and gown come with added risk. In the fast-paced world of modern business, perception is everything. Men and women of commerce prefer flexibility and commerciality to rigidity. They are unlikely to commit time and resources to rigid procedures they either do not fully understand or appreciate. As mentioned above, this tendency to eschew rigidity in favour of an open, less formal, more relaxed environment is one of the reasons for preferring arbitration to litigation. In the debate on the user-friendliness and approachability of the court, the wig and gown stand as emblems of rigidity and formality; emblems that are more likely to repel than attract users.

The Insider's Lens

Fierce debates have long arisen between members of the profession on whether to maintain the dressing requirement in the profession. It is impossible to comprehensively summarise the debates in this short essay. The strongest argument for the retention of the dressing requirement seems to be that it promotes the traditions, prestige, and nobility of the profession. Below, I briefly sketch an opposition to the nobility argument, and then offer some thoughts on how the dressing requirement promotes inefficiencies even amongst insiders.

The nobility argument suggests that the wig and gown promote the prestige of the profession and its estimation in the eyes of members of society. In other words, the wig and gown worn by the insider is meant to make the outsider look at the profession with respect and view the insider as learned, noble, virtuous and professional. The profession has maintained the requirement for a long enough period of time as to make it a tradition. This tradition ought to be maintained. 

The nobility argument is liable to fail for many reasons. The first and most basic is that the lawyer is precluded from wearing the wig and gown outside the court (see Rule 45(2) (a) of the Rules of Professional Conduct for Legal Practitioners). Consequently, the only time the wig and gown can contribute to the nobility of the lawyer is when he is in the court. Although it may be helpful, no lawyer burning with apostolic fervour can walk the streets on his/her wig and gown in a single-minded attempt to promote the prestige of the profession. But we have already seen that inside the court, the outsider knows the wig and gown does not improve the competence of the lawyer and is therefore indifferent as to whether or not the lawyer wears it. In addition, given Nigeria's climactic conditions (which come with an increased risk of heat and perspiration), the nobility of the wig and gown in the courtroom severely hinges on the personal hygiene of the user, in the absence of which, a day in court can quickly degenerate into a rather unpleasant experience.

Even if the wig and gown contribute to the nobility of the profession, this is insufficient reason to compel its daily use in superior courts. Although, in theory, the Imperial State Crown projects the nobility of the English monarch, there is a reason why it is only worn on ceremonial occasions: the over-use of even a valuable emblem diminishes its value. Consequently, assuming the wig and gown increases the prestige of the profession, its daily use is likely to diminish it. Items of value and prestige ought to only be in public view sparingly if the prestige they confer is to be maintained. The more the wig and gown are worn, the greater the risk that an outsider may see a brown wig and a torn gown. 

But the wig and gown also come with inefficiencies of their own. As stated above, since the lawyer cannot wear the wig and gown outside the courtroom, logistical problems arise when a court appearance is sandwiched alongside other business engagements. Thus, a Senior Advocate (and indeed any lawyer) who has to attend a client meeting before or after a court appearance may need to have a change of clothes handy. This leads to inefficient delays in service delivery as the lawyer cannot simply move from a meeting to court or from court to a meeting.

The dressing requirement can also have wider implications on the quality of advocacy in court. The Nigerian legal market is becoming increasingly specialised with a number of commercial law firms engaged in market-defining transactional work. This has led to a wider palette of matters now coming before Nigerian courts. Many of these matters require specialist advocacy from lawyers familiar with these subject areas (transaction documentation in a syndicated financing transaction being an easy but useful example). Given that the specialist practitioners in these fields are transactional lawyers, they face the unique risk that court appearances affect meetings and other client engagements, making the dressing requirement particularly problematic for them. This has led a number of transactional lawyers to stay away from litigation, causing, on the margin, a net reduction in the quality of advocacy on these specialised matters as the court is denied direct advocacy from the specialist practitioners in the field.

The Aspirant's Lens

It was the first day of lectures on the Deals Course for the Master of Corporate Law degree in the University of Cambridge. I arrived for lectures wearing sweatpants and a hoodie but waited outside the Law Faculty for my friend (I refer to him here as Tobi). Tobi and I had studied at the Obafemi Awolowo University together, although he was a few years ahead of me. A few minutes after I arrived, Tobi showed up at the Law Faculty on a black suit with a white shirt, black tie, black socks and a black shoe. I burst into hysterical laughter, barely able to mutter, "Oga, why you wear black and white". Rather bemused by the question, Tobi replied, "Dem no dey wear black and white for here"?

Tobi's dressing was hilarious, though reasonable. During our undergraduate days, we had all been compelled to dress in black and white as the regulation attire for law students. In recent times, the Nigerian Law School has introduced an extremely beautiful tie (for gentlemen) and scarf (for ladies) as an additional requirement. Although bar examination results have since improved since the introduction of the tie and scarf, this is a perfect example of correlation not meaning causation.

To be sure, the aspiration to one day wear the wig and gown may attract young people to aspire to be lawyers. But even this does not justify the requirement to wear the wig and gown on a daily basis when appearing before superior courts. If the attraction is with the wig and gown, it is doubtful that the attraction will diminish if it is only worn on specific occasions – the practitioner can always ponder upon the beauty of her attire if displayed prominently in her wardrobe. Nor is there any reason to believe that the requirement to wear the wig and gown only has positive attraction value and that young persons may not be put off from a career in law generally or litigation specifically if they consider the dressing requirement to be too burdensome. There is anecdotal evidence that, at the margin, the cost burden of the dress code may lead some people to reconsider a decision to study law. Taking together the additional cost of studying at the law school, the purchase and maintenance of the attire and the poor remuneration the lawyer is likely to receive in the early years of law practice (I have commented on this in a previous essay), the decision to study law is not always as attractive as theory seems to predict, and the wig and gown is of doubtful positive utility in this analysis. 

Moving Forward: A Practical Suggestion

The discussions above suggest that at present, the requirement to wear the wig and gown in Nigeria is an analogue regulation in a digital age. For emphasis, I reiterate that my argument is not that the wig and gown should be done away with altogether – I think this is a point on which different people may legitimately hold different views. My argument is much narrower: the requirement to wear the wig and gown daily when appearing before superior courts, is excessive.

Given its positioning as the commercial centre of Nigeria, the perception of its judiciary as visionary and forward-looking, the proliferation of commercial law firms and specialist transactional lawyers who are directly affected by the problems identified above, it is impossible to look beyond the Lagos State to provide leadership in rethinking the dressing rule. And this can be done easily, quickly and cost effectively.

Rule 45 of the Rules of Professional Conduct requires a lawyer to be fully robed when appearing before a superior court 'except with the permission of the court'. Therefore, the court itself is empowered to dispense with the dressing requirement if it so wishes.  In view of this power, the Lagos State judiciary can issue Practice Directions conferring a right of audience on lawyers who are not fully robed if they are appearing in restricted circumstances. The use of practice directions provides flexibility to calibrate the rule appropriately. For example, the Practice Directions can grant a right of audience to lawyers appearing on suits on all matters except matters slated for trial (in which case, they will need to be robed). Alternatively, the dressing requirement can be waived for civil matters but retained for criminal matters, or can be waived for specific divisions of the court. Given that this is a permissive right, in cases where the lawyer has a right of audience even when dressed on a suit, he/she may still elect to appear in formal robes if he/she so wishes. 

This recommendation has a number of benefits. First, as stated above, it can be achieved easily and cost-effectively as it simply requires Practice Directions which can carefully calibrate the rule to ensure that it does not go wider than necessary. Second, it does not do away with the wig and gown completely. The formal attire will still be worn on ceremonial functions and for non-exempt court appearances. This limited use of the wig and gown would better support its seriousness and prestige in the few instances it is required to be worn. Thirdly, Practice Directions of this nature will solidify Lagos State Judiciary's reputation as a visionary, inclusive and forward-looking bench, which other state judiciaries in Nigeria will continue to look up to (I strongly believe other states would follow its lead on this). In addition, it will provide clear and immediate benefits to the numerous specialised law firms and practitioners in the state. Finally, since the Practice Directions contemplated above will give lawyers an election on whether or not to wear the formal attire when they do not have to, it will permit a better assessment of the number of lawyers who consider the dressing requirement to be burdensome and thus elect not to be robed when they do not need to. This will provide data to fuel the broader debate on whether the dressing requirement should be done away with in its entirety.