Rule 16 of the Rules of Professional Conduct for Legal Practitioners provides that a lawyer has a duty to represent his client competently and must bring to the representation the legal knowledge, skill, thoroughness, and preparation necessary for the representation. Ordinarily, this rule is technology-neutral when considered explicitly. However, as the practice of the legal profession has increasingly become dependent on technology, thoroughness and preparation must, of necessity, include proficiency with the instruments needed to prosecute or defend a client’s cause of action efficiently and provide competent legal advice. Although no modification is made to the text of the rule itself, the environment within which it operates has evolved significantly, and interpretation of the provisions must be against this background and context.
Throughout our court system, rules now presume that legal practitioners have access to technology. The Court of Appeal Rules, 2021, under Order 20 established an electronic filing system, required all Divisions to have an e-filing unit, permitted Notices of Appeal to be served by electronic mail, and envisioned the electronic transmission of records. Consequently, these are no longer desirable, but are established procedures of the court’s business. Hence, a practitioner who cannot file or serve electronically will risk missing jurisdictional deadlines, breaching the rules of service, delaying appeals, and thereby directly prejudicing clients.
At the trial level, the High Court of Lagos State (Civil Procedure) Rules 2019, under Order 9 (5), alongside similar rules, permit substituted service by electronic mail where personal service is not possible. Practically, judges have found ways to invoke these powers to allow cases to proceed when defendants are evasive or when physical service is impracticable. Legal practitioners who fail to capitalise on electronic service or advise courts on its suitability risk having their cases stuck in limbo due to service-related problems.
The courts of law have also adopted virtual proceedings. When COVID-19 broke out, the National Judicial Council released Guidelines on the responsible utilisation of technology in virtual or remote proceedings, and most courts have subsequently made remote proceedings a norm in appropriate cases. When legal practitioners fail to meet basic virtual-proceedings requirements, such as maintaining a stable connection, handling electronic bundles efficiently, facilitating screen sharing, and ensuring confidentiality in remote environments, the client pays dearly in lack of persuasiveness as well as procedural irregularity and non-compliance.
At the Supreme Court level, the Supreme Court Rules, 2024 Order 17 provides for electronic filing, virtual hearings, and a digital system of case management, setting out a future where practice is assumed to be digital at the highest echelon of the judiciary. The effect is clear and unambiguous: procedure is now significantly digitally conditioned. Professional competency must accordingly be.
The effectiveness of even the most skilled advocacy is diluted if evidence is not admitted. By Section 84 of the Evidence Act 2011, computer-generated documents are admissible only when certain foundational requirements are fulfilled, such as regular usage, the regular supply of similar information in the ordinary business, and proper functioning, among other requirements. By the Supreme Court’s decision in Kubor v Dickson (2013) 4 NWLR (Pt. 1345) 534, it is clear that courts would insist on strict compliance with section 84 when materials from website sources, emailing systems, or social media pages, among others, are sought to be tendered in evidence. Failure to appreciate how to establish the foundational basis, draft the appropriate certificates, or plan discovery to procure compliant electronic records could result in the exclusion of important evidence of clients. This is an issue that goes beyond a matter of tactics and strategy; it is an issue of professional skill and competence.
The practical consequences are tangible. Lawyers must be capable of inspecting a client’s information systems to determine custodians and sources of information; preserving electronic evidence to prevent destruction; acquiring authenticatable information pursuant to Section 84 of the Evidence Act, 2011; and impugning the other party’s electronic evidence on grounds of non-compliance. These are no “IT” jobs to be outsourced to others. These are foundational litigation competencies prescribed by the Evidence Act.
Previously, confidentiality of clients was primarily ensured through professional discreteness and secure filing systems. However, since the coming into force of the Nigeria Data Protection Act (NDPA) 2023, the standards have been heightened. The Nigeria Data Protection Act 2023 regulates the processing of personal information by most law firms and requires them to ensure the security, integrity, and confidentiality of such information as outlined in Section 39. It further mandates notification of breaches and appointment of Data Protection Officers in enumerated circumstances under Section 40. Law firms that possess large amounts of sensitive information are subject to these obligations. Failing to put in place appropriate technical and organisational measures has ceased to be merely “bad practice” and is now itself illegal. Hence, while it may have been difficult to hold legal practitioners legally accountable when they deny having basic cybersecurity knowledge in the past, with the reinforced professional duty of confidentiality through the NDPA, 2023, legal practitioners can no longer rely on technological incompetence as a defense when client data is compromised.
This is very important to legal practitioners and clients in very practical ways. The loss of an unencrypted device containing sensitive information or ransomware attacks will activate breach-notification provisions, attract regulatory attention, inflict reputational damage, and incur tangible losses. Furthermore, when legal practitioners are not able to identify evolving patterns of phishing, inspect cloud service vendors, activate multi-factor authentication, or create data-processing terms that are NDPA-compliant, their clients are more vulnerable. “I’m not an IT guy” is no defense against a preventable breach. The statute was intended to effect behavioural change; accordingly, legal practitioners’ responsibilities must mirror it.
As a counterpoint, it is worth noting that, unlike some Western and American jurisdictions, there is no Nigerian law that specifically requires technological competence for legal practitioners. That is correct and irrelevant. Our “catch-up” system is unlikely to micromanage lawyering to that degree of particularity, especially at this time. Rather, it establishes general obligations of competence, confidentiality, and diligence that evolve in response to changing circumstances, including procedural rules, standards of evidence, and general regulatory framework, so that compliance with the established duties and obligations requires new skills. Hence, when a class of current obligations is no longer capable of being fulfilled without a set of contemporary skills, those skills come to be included in what those obligations entail. This is not regulatory excess; it is doctrinal realism.
Whether we like it or not, the Nigerian legal practice has already incorporated technology literacy as part of day-to-day practice. The RPC’s competence rule did not change; everything around it did. Appellate rules presuppose e-filing and email service; High Court rules authorise service by electronic means, and the entire judiciary has normalised remote hearings. The Evidence Act makes electronic evidence literacy an important subject in terms of admissibility, and the NDPA 2023 makes client confidentiality an enforceable data-security programme for law firms and legal practitioners. Putting these pieces together, one conclusion follows: a duty of technological competence is already embedded in the framework that regulates legal practitioners in Nigeria.
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