Legal consultant: a profession that starts by drawing its own limits

A managing director sends over an eighteen-page distribution agreement and asks for "a quick view". The professional answer rarely starts with the view. It starts with three questions: which law governs this contract, what exactly is the feared risk, and does the work being asked for fall within what the consultant may legitimately do. That last point is not a stylistic precaution: it is the first skill of the trade.

What legal consulting actually covers

A legal consultant steps in where a business needs to understand its position before acting. That covers very concrete tasks: reading and negotiating contracts, mapping the obligations attached to an activity, preparing internal documentation, structuring a commercial relationship, supporting entry into a new country, training teams on the rules that apply to them.

What these assignments have in common is that they sit upstream of conflict. The consultant does not work on a pending dispute but on the things in the organisation of an activity that will produce or prevent that dispute.

This position explains the rhythm of the work: assignments rather than case files, work usually carried out on the company's timescale rather than a court's, and a permanent obligation to make intelligible a subject that is not spontaneously so.

The boundary with the legal profession depends on the country

This is the most important point, and the one on which no general answer is possible.

In many States, representation before the courts is reserved to professionals registered with a professional body. In some, giving legal advice itself, or drafting instruments for others, is regulated. In others still, advising businesses is carried on freely, subject to the ordinary law of liability.

In other words: the exact scope of what a legal consultant may do is not a question of professional practice but a question of national law. A serious professional checks it before opening for business, and says it again to clients whenever a request falls outside that scope.

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, indeed recall that a party is entitled to consult and be represented by a legal representative or other qualified persons chosen by the party at all stages of the proceedings — what counts as a qualified person being a matter for each legal system.

The contract, raw material of the trade

Reviewing a contract is not hunting for typing errors. It is reconstructing, clause by clause, what will happen if things go wrong.

The work consists in identifying the points where the text is silent, those where it says the opposite of what the client believes was negotiated, and those where it creates an obligation whose cost nobody has measured. The most discreet clauses are often the heaviest: governing law, dispute resolution, termination, limitation of liability, ownership of deliverables, confidentiality.

The consultant then delivers that work in a usable form: what is acceptable as it stands, what must be renegotiated as a priority, what can be conceded. An opinion that merely lists risks without ranking them is of no use to someone who has to sign on Monday.

Compliance, a hands-on activity

Compliance means making sure an organisation actually does what the rules applicable to it require. The word suggests procedures; the reality is far more concrete.

A compliance assignment starts by establishing which rules apply, which depends on the sector, the country, the size of the business and its customers. It continues with a comparison between what those rules require and what actually happens inside the company. It ends with a ranked action plan, with named owners and deadlines.

The classic mistake is producing a perfect document that nobody applies. The skill here is as organisational as it is legal: turning an obligation into a daily gesture for a team with no legal training.

The OHADA area as a working framework

For businesses active in seventeen African States, part of the applicable law is shared.

The Organisation for the Harmonisation of Business Law in Africa brings those States together around 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. The Common Court of Justice and Arbitration handles cassation and interpretation, and also acts in arbitration matters.

For a consultant this is a real advantage: one analysis can serve in several countries, and the case law of the common court sheds light on situations met elsewhere in the area. Two caveats apply nonetheless. This law does not cover everything — taxation, national labour law and sector-specific regulation remain national. And it applies only in its member States: presenting it as the business law of the whole of Africa would be false.

Personal data: a subject that has become central

Almost every economic activity now handles personal data: customers, employees, prospects, suppliers. It has become one of the most frequent reasons for calling on a legal consultant.

At continental level, the African Union Convention on Cyber Security and Personal Data Protection, adopted on 27 June 2014 in Malabo, structures three areas: electronic transactions, personal data protection, and cybersecurity and cybercrime.

An international convention, however, produces effects only in the States that have ratified it, and the concrete obligation resting on a given company flows from the applicable national law and, where relevant, from the competent data protection authority. Serious support therefore starts from the law of the country concerned, not from a regional framework presented as universal.

Electronic signatures and evidential value

The question comes up as soon as a business moves its contracts online: will something signed electronically carry the same weight?

The UNCITRAL Model Law on Electronic Signatures, adopted on 5 July 2001, rests on two principles: functional equivalence, which lets an electronic signature satisfy a legal signature requirement provided it offers the required guarantees, and technological neutrality, which avoids imposing any particular technique. The text also provides for the recognition of foreign certificates and signatures on the basis of substantive equivalence, regardless of where they were issued.

The nuance to pass on to the client is essential: a model law is not a treaty. It has effect only where a State has enacted it, and the concrete requirements — accepted method, retention, excluded instruments — are found in national law. Some instruments do remain subject to particular formalities in many systems.

Paralegals and access to justice

Legal advice is not only a matter for businesses. In several countries, part of basic legal support is provided by paralegals, particularly to populations far removed from the established professions.

The 2003 African principles address this head-on. Noting that the number of qualified lawyers is low in many States, they invite those States to recognise the role paralegals can play in providing basic legal assistance, to establish, together with the legal profession and non-governmental organisations, their training, qualification procedures and the rules governing their activity, and to grant them legal recognition. The same text underlines that paralegals can be the link with the legal profession, particularly in rural communities.

That framework says two things at once, and says them clearly: basic support by non-lawyers has a recognised usefulness, and it presupposes organisation, training and rules — not improvisation.

Contractual confidentiality and professional secrecy

The distinction is fundamental and often glossed over in sales pitches.

A consultant generally undertakes confidentiality by contract: a non-disclosure agreement, a clause in the engagement letter, sometimes an internal policy. That undertaking has the reach the contract gives it, and the remedies for breach are those of contract law.

The professional secrecy of certain regulated professions is of another nature: it flows from status, applies regardless of any stipulation, and enjoys specific protection in several systems. Presenting a confidentiality clause as equivalent to that secrecy would be inaccurate — and an inaccuracy that can cost a client dearly if they rely on it.

What a legal consultant cannot promise

No professional can guarantee that a contract will never be challenged, that an inspection will go well, that a company will be incorporated within a given time, or that an authorisation will be granted. Those decisions belong to third parties — counterparties, administrations, courts.

Nor can a consultant promise a favourable outcome in a dispute, or stand in for a qualified professional where representation or certain instruments are reserved. Recognising that limit and directing the client at the right moment is part of the work, and is in fact one of the marks of a serious practice.

What can be committed to, by contrast, is identifiable: a documented analysis, ranked recommendations, an understandable explanation of the risks, and an honest statement of what was not verified.

Finally, a profession-discovery article is not a consultation. The rules mentioned here vary from State to State, and any real situation is handled with a competent professional in the country concerned, on the basis of the documents in the file.