JAPA TO CANADA: “Lawyers Must Manage Their Expectations” – Immigration Expert, Johnson Babalola
Johnson Babalola is a lawyer licensed to practice in Ontario, Canada and Nigeria. He was called to the Nigerian Bar in 1989, having attended the University of Ibadan, where he obtained his LLB in 1988, and was called to the Ontario Bar in 2004. Before then, he was an immigration consultant (since 1998) before he was called to the Bar and practised purely immigration law in Canada. He is the Group Managing Attorney of TopMarke Attorneys in Toronto, Canada, a law firm that handles various areas of law, including litigation, real estate and workplace issues. He is a certified specialist in immigration law in Canada, a workplace issues consultant and a leadership trainer. In this exclusive interview with TML’s Ogechukwu Ochuba and Teyojesam Seb-Eko, Babalola delves into the realities of Nigerian lawyers’ immigration to Canada.
You practice in both Nigeria and Canada. Can you address the significant differences between the legal systems of both countries? What should a young lawyer who wants to move to Canada have in mind?
One of the significant things I say to anyone who wants to move to Canada is, “Do your homework!”. When I left Nigeria for the UK as a young lawyer many years ago, I did not do my homework, so I was not prepared at all. When I got there, I had no clue what was expected of me. I didn’t even know that I had to regularize my stay, and that’s being honest. I got there with a visiting visa, and I thought things would just work out, but they didn’t. These days, lucky enough, we have the internet. So before you leave, do your homework about where you are going, and talk to people beforehand so that you know what you are getting into. As part of doing your homework, you must manage your expectations. Another consideration is whether you want to continue to pursue law or not. Let’s face it: many young people study law for the sake of studying law, some to please family members. I’ve seen quite a number of them come to Canada, and they change professions to do what they really want to do. But the beauty of practising law in Canada is that you can specialize in so many things that you can still follow your passion even within the legal field, e.g., entertainment law, sports law, medical malpractice law, engineering, and construction law.
How does a Lawyer get called to the Bar in Canada?
The practice is different. Whereas you get called to the Nigerian Bar here, in Canada you are called to the Provincial Bar. These Provinces are more like the States here. For instance, I was called to the Ontario Bar, while others have dual/multiple qualifications even within Canada, called to two or three Provincial Bars. Most people only have one though, because you have enough to do within that one Province that you have choosen.
So, decide which Province you would want to be called but as a foreign-trained lawyer, you must go through the process of having your qualifications assessed. There is a body over there that would assess your qualifications and determine the number of subjects you would need to write for your degree from Nigeria to be adjudged an equivalent of the Canadian law degree. You either pay for the exams and study on your own, or you pay for lessons to prepare you for your exams. Finally, you can also enrol for a Master’s Degree because there are some Master’s Degrees that have those subjects as part of the curriculum/teachings. Some lawyers opt for the latter, which is like killing two birds with one stone…you have a Master’s degree and a qualification to practice law in Canada. After that, you would have to write the Bar exams for the Province you are focusing on, and if you pass and are called to the Bar, the next decision is whether you want to article or not.
So, the system is completely different from what we do here, from what you are saying?
Yes, it is. Canada has law schools, but different from what we call the law school here. Canadian law schools are what we call the law faculties that we have within the universities here. Like I studied law at the University of Ibadan, so my faculty is the law school. The law societies in Canada organize Bar exams and call successful students to the Bar at various times of the year.
What is articling?
Articling is the time that you spend with another lawyer to learn the ropes of law practice, like an internship… what we call chambers attachment or so. Young lawyers who qualified in Canada usually article for one year before they get called. A number of experienced foreign lawyers will ask for waivers of articling, while others will go ahead to know how things are done. I, for one, did not article before I was called. I started my practice within a pool of about 20 lawyers, with me being the newest in practice among them. But I was able to garner experience from every one of them. It was like an informal articling, so to speak. After that, you go ahead and decide what to do with your practice, just like we do here. But in Canada, we specialize far more than we do in Nigeria. There are so many areas of law that are not so popular here in Nigeria but are highly specialized in Canada, such as adoption law, medical malpractice law, etc. For example, a lot of lawyers who do real estate law here will also add construction law, but over there, we have lawyers who concentrate on construction law.
On the Japa syndrome, is it advisable for lawyers to leave Nigeria to seek employment abroad, with particular reference to Canada?
That is an interesting question, but I would say it depends on the individual. Having represented possibly hundreds of people from all over the world, including Nigerians, I would say immigration is one of those issues that you need to look at your particular situation. You should ask yourself, “Is it good for me or not?” Not because your neighbour or some others are going to Canada, then you have to go. You also look at other factors like your age, your position in life, your family situation, your ability to adapt to a new environment, and so many others. Going overseas, obtaining new qualifications, enhancing your qualifications, enhancing your experience, and being exposed to international practice is always a good thing, so if I’m to speak from that angle, it is advisable. But not everyone can adapt to a new environment; not everyone can cope. Whether it is a lawyer or not, it depends on individuals whether to go or not to go, based on some of the factors I’ve mentioned.
Any other thing a young lawyer looking to migrate to Canada should do?
The lawyer needs to be intentional. You should know what you want, be very focused and go for it. Also, it would help if you were prepared for the culture shock. Read widely before you even leave here. You try to know about the weather, the communication system, pronunciations, etc. These are some of the things that lawyers, professionals, and, in fact, anyone who is moving to a foreign country should be prepared for. Very important! I had some funny experiences with my pronunciation when I also left Nigeria years ago for the United Kingdom. I could also not understand a lot of what the people were saying because, as I said, I jumped into the system without doing my homework. So, it’s a severe situation you would find yourself in when you go over there, and you can’t understand the accent, yet you want to be of service. Sometimes the, people get angry or call you names and stuff like that. So, preparation is key. It can be embarrassing, you know, when you are in open court, and you are mispronouncing something. You need to prepare ahead.
Having practised in both Nigeria and Canada, is it more lucrative to practice in Canada, hence the japa syndrome?
No, I wouldn’t say so. Like everything else, the kind of culture we have in Nigeria doesn’t help in many things. A friend of mine was telling me a story many years ago about when he was called to the Bar and was practising as a young lawyer. The first time he went to court, the lawyers on the other side were his father’s classmates (his father was also a lawyer); they knew when he was born and everything. When he got to court, it was like he had to prostrate before them and all that and he was put off. So, this culture of someone looking down on you because of their age, title, years of experience and so on is very significant when you are looking at reforms in the Nigerian legal profession.
First, in most Canadian jurisdictions, we don’t have the KC (King’s Counsel), which is equivalent to the SAN in Nigeria, so everyone is on the same level, and that helps a lot in the legal practice. Secondly, the law society (the body which regulates lawyers in Canada) is on top of things. There is a proper structure. For instance, if I have any confusion or questions about my practice, there is a department dedicated to clearing any such confusion or answering any such questions. So, I can pick up my phone and call for support on any issue, whether conflict of interest or anything else. That goes a long way unless you don’t want to use the support. They also have a mental health department that also helps lawyers. You know, lawyers go through a lot of mental health challenges for different reasons. You work long hours, you have demanding clients, and you have various other issues, so you can call the mental health department confidentially to work you through those issues with a lot of counselling and support. The Law Society also makes sure you conform to the rules of professional ethics. Regulation is essential to the practice in Canada. You have to know these regulations, and you have to conform. Some little things that we don’t take note of here. The practice there is very well regulated. Sometimes, you can even say it’s choking, but it’s good.
For instance, if a lawyer is not competent in representing a client and that client later comes to me, I have to take it up with that other lawyer. You cannot just take over the case and go to court on appeal. You would have to write to the initial lawyer, pointing out the areas you thought he would have done better/addressed, and ask for an explanation of why the case was handled the way he did.
In my immigration law practice, I’ve had many such instances where a client would come with such complaints. If a lawyer did not attend court, for example, and the case was dismissed summarily, you know that has impacted the case. That is improper representation. If the client changes counsel, the new counsel has to inquire into the reason for the improper representation, and the former counsel could be sanctioned. So that puts us on our toes all the time. I have to represent my client correctly, to the best of my ability and knowledge. It doesn’t mean that I have to be perfect or win a case at all times. No! But I must do my due diligence, follow the right procedures and submit all the evidence that would help my case, except there are reasons not to do so, and for those reasons, I must have adequately communicated with my client. Sometimes, clients are also not truthful, so it is essential to document everything the client shares with you and make sure to email them everything that transpired between you during your meeting. Practice management software is essential in this instance because improper representation is huge in Canada, but there’s a process to that. You have to put the other lawyer on notice as you can’t just go to court and allege that the other lawyer did not represent your client correctly. The lawyer must respond to the issues, and if they don’t, you can report them to the Law Society, and the lawyer can be sanctioned.
These are some of the significant differences that I see.
The other thing is the Spot Audit of firms. This is basically where the Law Society writes to a law firm of its intention to come and check its books. A date will be given, and the law firm will prepare itself for the audit by balancing its books…the Trust Account especially. Whatever money comes in from clients has to go into the trust account first, unless the lawyer had performed that work before he was paid. The lawyer would draw from the trust account to the general account if the work had yet to be done initially, whenever he needs to do any work for the client. If the Trust account is in proper shape, you can avoid getting into trouble with the Law Society.
CPDs (Continuing Professional Development), what we call CLE in Nigeria, is also very important in Canada. You have to complete a designated number of CPD points in a year; otherwise, you can be administratively suspended. It is technologically structured on the lawyers’ portal so that you cannot cheat the system, and if you don’t have your complete points at the end of the year, you will be sanctioned. Technology coupled with human support has really helped in the advancement of legal practice in Canada and the differences we see there. It is not perfect; we have our concerns and issues about certain things, minority lawyers, but, generally speaking, there is a whole lot of difference in the way we practice there and in Nigeria.
A new schedule of fees for lawyers has been introduced by the NBA, is there a similar practice in Canada?
There is no schedule of fees in Canada. Lawyers are free to charge as they please, so basically, it’s the same as what used to be obtainable in Nigeria.
I don’t think it is right to legislate on the issue of schedule of fees for lawyers, e.g., 5% for a particular type of work. Let’s say I’m reviewing a contract, and the schedule of fees says 5%…as a client I’m faced with a lawyer who just graduated yesterday and another with 30 years’ experience and both are to charge the same 5%, who would I go for? Of course, it would be the experienced lawyer. In my opinion, that schedule of fees will stifle the growth of young lawyers.
For instance, in my office where we have junior lawyers and senior lawyers, we have different rates of fees. So I give my clients the option of choosing who you want to handle your case, depending on your financial ability. That helps the client to be able to manage the finances at their disposal. I always say, with due respect that you could have a junior lawyer who is far more knowledgeable than a senior lawyer, it’s not about years of call or anything but in terms of fees, I think it has to be graded. So over there in Canada, you choose what your fee should be and you try to stick with it.
We have quite a lot of lawyers that leave law school and immediately set up on their own and start law practice. In order not to stifle these young lawyers, in your words, do you think there should be a rule or regulation that makes it compulsory for new wigs to intern for a stipulated period after call to the Nigerian Bar? So that when a client approaches a law firm, the client is sure that the lawyers there are experienced enough to handle their matter.
Yes, articling is very important. For me I think this idea of law school internship of three months attachment to a law firm is not enough to prepare the lawyer for what is out there in terms of practice. So yes, over there in Canada, that is one major difference.
You article for one year. But there is a relatively new program that has been introduced, whereby new graduates can go for short term trainings with some law schools and then finish off with articling in law firms within the remaining months to gain the same experience. This was introduced because it was becoming a bit difficult for new graduates, especially the minority lawyers, to get places to article, since they had to be paid a minimum wage for the period.
What they are trying to emphasize is the importance of having that practical experience. So, I don’t think three months as a law student here when you have probably not even finished your studies is good enough. I think they need to find a way for students to have a proper articling for about one year to gain some experience and confidence, before they can launch out on their own.
I know you said the decision to leave Nigeria for greener pastures should be made in consideration of one’s situation in life, but in your informed opinion, would you say that young lawyers who are practicing here in Nigeria and have a steady income but who also have the option to leave Nigeria for Canada to practice, fare better there than here?
I would say follow your passion, follow your path, and I will explain.
I mentor a lot of young lawyers in Nigeria. While I see some who are passionate about leaving the country, I also see some who would definitely say, I want to build my practice in Nigeria, I want to become a SAN, I want to become a judge…. So, you need to ask yourself what you want in life, in your profession, etc. I was talking to a senior friend recently, and he said he was listening to a program where the presenter said if you want to become a billionaire, there are some professions you do not go into. He gave the example of a brain surgeon. How many brains can you operate on to become a billionaire? Same thing with law, in my opinion.
When we talk about financial success in the law profession, there are lawyers here who are doing exceptionally well, and they started from somewhere. Imagine if they had picked up their bags when they were young at the Bar and left. It may have been a different story. How many of their mates who had left have been as successful financially and with respect to name recognition as those who had stayed behind? So that’s why I say people have to ask themselves what they want. If they want peace of practice, yes, practicing overseas is good, though there are limitations to that also. It has been recognized that there is racism within the profession, so minority lawyers go through a lot of headaches in that aspect, and that could be a challenge. In fact, that is one aspect that people don’t really pay attention to before they pack their bags and leave Nigeria, and they are dealt a heavy blow when they get there. In Nigeria, to a considerable extent, we are all the same. There is no racism.
The peace of practice I am talking about which is guaranteed there, is knowing that your case will be heard on the days they are slated for, you will round up your case in court within a reasonable time, you will be paid for your services and if not, you can go to court to enforce your payment. In that aspect, it is better. You might not be a multimillionaire, but you will be comfortable at least be able to pay your rent, mortgage, go on vacations, etc. But at the same time, if you are good in what you do and want to be extremely rich, stay home because you can make it here.
In a nutshell, it is rare to be a millionaire as a minority lawyer abroad. By the time you start earning about one hundred thousand dollars () a year in Canada, your tax will be about 40-50 % of what you earn, so your take-home pay will be about half of what you earn. Then do the math of your staff salaries, rent/mortgage and other living expenses. How, then, can you be a millionaire there? But if you have rich clients there, you can make money there; same here too, with all the multinationals coming in to invest in the country.
Do you have to specialize in any aspect of law to practice law in Canada?
No, you don’t have to. You can be a gbogbonishe lawyer, as is also obtainable here in Nigeria. But frankly, no one will tell you before you start specializing because it’s tricky, and you cannot be as effective as you should be.
Let’s be honest: a lawyer who deals in ten areas of law cannot be as effective as one who is focused on one area alone. That one area is what you are thinking and breathing, so you would be the best at it, unlike one who does a bit of everything.
I started practising in about four or five areas of law when I first came to Canada as a young lawyer, and it was tough. You know, when you are younger, you will want to try your hands at everything, but over the years, I chose to focus on immigration law. In my experience, if you focus on one area that you are good at, you will have enough clients if you manage your resources very well in that area. So that is why we tend to specialize, but it’s optional.
There are many areas of law that one can specialize in, even here in Nigeria; the only thing that makes it difficult is the fact that lawyers cannot advertise here. That’s another difference we have. Over there, we can advertise. You can even have a billboard advert if you want, though there are some words or phrases you may not add to your adverts. But that’s the extent to which adverts are regulated in Canada.
