EFCC lacks power to regulate lawyers’ fees, ban foreign currency charges

The Chairman of the Nigerian Bar Association (NBA), Anaocha Branch, Dr. Uzoma Charles Dioha, has faulted a recent warning by the Economic and Financial Crimes Commission (EFCC) threatening to prosecute lawyers who charge professional fees in foreign currencies.

In a Monday statement, Dioha said the EFCC must not overstep its statutory mandate by attempting to regulate how legal practitioners are paid.

On Friday, September 11, Acting Zonal Director of the Lagos Zonal Directorate 2 of the EFCC, Bawa Usman Kaltungo, called on legal practitioners in the country to desist from charging clients in foreign currencies, describing the practice as illegal and unethical.

Kaltungo spoke when he received a delegation of the NBA Lagos Task Force on Illegal Practice of Law led by its Head, Moshood Abiola, on a courtesy visit to his office.

He expressed concern over the activities of lawyers who engage in illegal and unethical practices, stressing that the commission would not hesitate to prosecute anyone found culpable.

Reacting, Dioha argued that the regulation of legal fees is exclusively the job of the Legal Practitioners Remuneration Committee, established under Section 15 of the Legal Practitioners Act, Cap L11 LFN 2004.

He cited the Legal Practitioners Remuneration (For Business, Legal Service and Representation) Order 2023 as the current enforceable framework for lawyers’ charges in Nigeria.

“Accordingly, the EFCC cannot, by press statement, administrative warning or threat of prosecution, assume the statutory functions specifically vested by the Legal Practitioners Act in the Legal Practitioners Remuneration Committee,” he stated.

Dioha drew a distinction between denominating fees in foreign currency, receiving foreign currency through lawful banking channels, and receiving proceeds of crime or money laundering.

He noted that the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act recognises “professional fees” as a legitimate source of foreign currency.

He also referenced the case of Osun State Government v. Dalami Nigeria Ltd where awards were made in US dollars.

While acknowledging that the CBN Act 2007 makes the Naira legal tender and criminalises refusal to accept it, he said that does not mean “every agreement between a lawyer and client which references or involves foreign currency is automatically a crime.”

Citing Section 36(12) of the 1999 Constitution, Dioha said a criminal offence must be defined by written law.

“Where prosecution is threatened against a lawyer merely because his professional fee is denominated or received in foreign currency, the fundamental question must be: What specific written law creates the offence?” he asked.

The NBA Anaocha Branch said it fully supports EFCC investigations into money laundering, terrorism financing and proceeds of crime.

But it “respectfully but firmly rejects any suggestion that the EFCC possesses a general supervisory jurisdiction over the professional fees charged by legal practitioners,” the statement reads in part.

“The fight against economic and financial crime is indispensable. Equally indispensable is fidelity to the rule of law. Professional regulation cannot be achieved by prosecutorial intimidation,” Dioha stressed.