Lawyer: turning a story into a legal question

A client walks into a firm with a file under one arm and a story to tell. She talks for twenty minutes. What she describes is a dispute, a disappointment, sometimes an injustice. What the lawyer has to draw from it is something else entirely: a legal question, framed precisely enough for a statute, a court decision or a procedure to answer it. Moving from the story to the question is the first professional act of this trade — and the one least understood from the outside.

The first move: framing the facts

Framing means placing a lived situation into a legal category. The same event — a building site abandoned halfway through — may be a matter of breach of contract, of a failure to advise, of fault engaging the liability of whoever committed it, or of insolvency proceedings opened against the contractor. Each characterisation opens a different route, with its own conditions, its own evidence and its own time limits.

Getting the characterisation wrong is not a slip of vocabulary. It commits a file to a direction where the facts, however accurate, will produce no effect. That is why a lawyer spends as much time reformulating as pleading: looking for the angle from which the available facts stand a chance of being legally relevant.

The work requires knowing the law, but also accepting an occasionally unpleasant conclusion: some deeply unfair situations have no useful legal translation. Saying so early is part of the job.

Advising, far more often than pleading

Representation before a court is the visible part of the activity. It rarely takes up most of it. The bulk happens upstream: reviewing a contract before signature, securing a transfer of shares, structuring an estate, preparing a negotiation, assessing the prospects of a claim before bringing it.

Preventive advice follows the opposite logic to litigation. In litigation, the facts are frozen; in advisory work, the client can still change them. A clause moved, evidence gathered in time, a formality completed before it is too late are often worth more than a case won three years later.

Many firms are in fact built around this advisory activity and its continuity: a corporate client comes back several times a year, with questions that will never reach a courtroom.

Independence is not a pose

The independence of the lawyer is often presented as an abstract value. It is in reality a material condition of practice, and regional instruments describe it in very concrete terms.

The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, adopted on 29 May 2003 by the African Commission on Human and Peoples' Rights, require States to ensure that lawyers can perform their professional functions without intimidation, hindrance, harassment or improper interference, travel and consult with their clients freely, and suffer neither prosecution nor sanctions for actions taken in accordance with their recognised professional duties. The same text states that lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.

That last sentence is worth reading twice. Defending someone is not approving of what they did. It is the condition under which the least popular person in a case can still put their arguments forward — which is precisely what a trial is for.

Professional secrecy, and what it is not

The same text requires States to recognise and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.

A common confusion needs clearing up here. A lawyer's professional secrecy is an obligation attached to their status: it does not depend on an agreement signed with the client and is not negotiated clause by clause. It differs from a simple contractual confidentiality undertaking, which any service provider can sign and whose reach stops where the contract stops.

The exact scope of that secrecy, its possible exceptions and the people it covers are, by contrast, matters for each State's law and for the rules of the professional body concerned. There is no single definition valid everywhere, and anyone who needs to know precisely how far this protection extends should ask the question within their own legal system.

A profession with a controlled entry point

Becoming a lawyer is not a matter of deciding to be one. Almost everywhere, practice requires legal education, an examination or a professional traineeship, an oath, and registration with a professional body — bar, order or professional association depending on the country.

That body does more than keep a list. It carries professional discipline, controls entry, organises continuing education and, under the 2003 African principles, cooperates in organising legal assistance — in particular by ensuring that lawyers whose experience matches the nature of the case make themselves available. Those same principles encourage States not to obstruct collaboration between legal professionals from one country to another and to favour agreements enabling such cross-border cooperation.

The corollary of this framework is that a lawyer's title obtained in one country does not automatically authorise practice in another. Conditions for recognition, registration and rights of audience vary from State to State, and checking with the competent professional body is a prerequisite, not a formality.

Access to justice and legal assistance

A regulated profession is only worth something if it remains reachable. The 2003 principles establish the entitlement to be assisted and provide that legal assistance be furnished without payment where the interests of justice so require and the person lacks sufficient means to pay for it. They also require that an assigned lawyer be qualified for the case, have training and experience matching its nature and seriousness, and be free to exercise professional judgement, free of influence from the State or the judicial body.

The same text makes an observation that few instruments state so plainly: in many States the number of qualified lawyers is low. It accordingly invites States to recognise the role paralegals can play in providing basic legal assistance, to organise their training and the rules governing their activity, and to grant them appropriate legal recognition — without this replacing a lawyer's intervention where one is required.

Business law: the OHADA example

A significant share of advisory work takes place in business law, and the relevant scale there is not always national.

The Organisation for the Harmonisation of Business Law in Africa brings together seventeen member States around a body of directly applicable uniform acts: general commercial law, commercial companies and economic interest groupings, secured transactions, simplified recovery procedures and enforcement measures, collective proceedings for clearing debts, accounting and financial information, arbitration, mediation, cooperative societies, and contracts for the carriage of goods by road. A common court, the Common Court of Justice and Arbitration, handles cassation and the interpretation of that law and also acts in arbitration matters.

For a lawyer practising in that space, this changes the nature of the work: a single rule applies across national borders, and a decision of the common court sheds light on files handled in other member States. One obvious point still bears repeating: this law applies in its member States, and nowhere else. It is not "African business law".

Client data in the digital era

A firm today handles personal data in quantity: identities, family situations, health data, financial information, confidential exchanges. Email, file hosting and case management tools have become professional subjects in their own right.

At continental level, the African Union Convention on Cyber Security and Personal Data Protection, adopted on 27 June 2014 in Malabo, covers three areas: electronic transactions, personal data protection, and cybersecurity and cybercrime. Like any treaty, it produces effects only in the States that have ratified it, and its practical application runs through national laws and through data protection authorities where these exist.

For a firm, the practical consequence is easy to state and demanding to hold to: the obligations applying to client data are those of the country of practice, and they add to professional secrecy rather than replacing it.

Not to be confused with the notarial profession

Many people arrive at a lawyer's office with a request that belongs to another profession, and the reverse happens just as often.

In countries with a so-called Latin notariat, the notary is described by the International Union of Notaries as a legal professional and a public official appointed by the State to confer authenticity on the deeds they draw up, with a duty to advise those who call upon their services. They exercise that delegated share of public authority impartially between the parties. The lawyer, by contrast, is engaged alongside one party and for that party: their loyalty is not shared.

The exact division of competence between these two professions — and indeed whether a notariat of that kind exists at all — depends entirely on the country's legal system. No general rule allows anyone to say in advance which of the two is competent for a given instrument.

What a lawyer does not promise

This may be the most useful point for anyone discovering the profession. A lawyer does not announce the outcome of a case, because that outcome is not theirs to control: the decision belongs to a court, on the basis of evidence partly beyond their reach. They do not have a decision "overturned" by will alone, do not automatically recover a sum, and guarantee neither a timeframe, nor an amount, nor a result.

What they do commit to is something else: an honest assessment of the prospects, a reasoned strategy, rigorous execution of procedural steps, and a duty to keep the client informed throughout. A professional who promises victory is not describing their trade — they are describing a product that does not exist.

Finally, a discovery article replaces no consultation. The rules mentioned here vary from one State to another, and sometimes from one field to another within the same State. A real situation is handled with a qualified professional in the country concerned, and on the documents.