The Big Debate: Is Law Practice a Business, a Profession, or Both?
Introduction:
It is often disputed whether law practice is a business, a profession, or both. This note explores the various argues that have been advanced for each position and concludes that while law practice is a profession, it is organised and operated in accordance with business principles.
1. Law Practice as a Business:
A. Meaning of Business:
According to Parker [1], while the element of gain and service is present in both a profession and a business,
The chief end of a trade or business is personal gain; the chief end of a profession is public service
According to Bowie [2],
Traditionally, business has not been viewed as a profession. The chief characteristic that distinguishes it from a profession is the motivation of business people. Business people are egoistic; their primary motivation, according to economic theory, is to maximize their self-interest. This lack of altruistic spirit is sufficient to distinguish business from the professions.
Thus, a business often focuses on making a profit for the benefit of the owners of the business. In making this profit, public benefit may be sacrificed for private gain. For example, a business may charge exorbitant prices just to maximise gain for its owners.
B. Arguments for Law Practice Being a Business:
i. Lawyers are Statutorily Required to Register their Practice as a Business:
A lawyer may practice as a solo practitioner or team up with other lawyers to form a partnership or a company.
In practicing as a solo practitioner, the lawyer is typically required to register the name of the solo practice under the Registration of Business Names Act, 1962 (ACT 151). Act 151 provides the circumstances under which a person is required to register a business name under the Act. In Section 1(1) of Act 151, it is provided that
…there shall be registered in accordance with the provisions of this Act the following persons, that is to say,
(a) every individual having a place of business in Ghana who,
(i) carries on business under a business name which does not consist of his true surname without any addition other than his true first names or the initials thereof; …
The fact that Act 151 is an act regulating the registration of business names , and applies to every person, including lawyers, gives credence to the argument that a sole practitioner who registers under Act 151 is carrying on a business.
Further, a number of lawyers may decide to team up and register a partnership. According to Section 3(1) of the Incorporated Private Partnerships Act, 1962 (Act 152) , a partnership is an “…association of two or more individuals carrying on business jointly for the purpose of making profits.” Further, in Section 3(3) of Act 152, it is provided that “subject as aforesaid, the sharing of the net profits of a business shall, prima facie, be evidence of a partnership.” The express focus on profits in partnerships gives credence to the argument that a law practice that is carried out as a partnership is a business because businesses are focused on making profits. This argument is even stronger in light of the fact that most lawyers operate or work together in firms.
ii. Lawyers Charge Clients for Legal Services:
Generally, in a business, services are rendered in exchange for payments by clients. For instance, the approved hourly ratefor lawyers who are senior counsel (ten years or more at the bar) is between Ghc 1,000 and Ghc 2,000. Given that most business owners do not even make that amount in a month, it may be said that lawyers make a lot of profits.
iii. Operated Like a Business:
Law practice operates like a business in many ways, particularly in its organisational structure, financial management, and investments in growth. Beyond legal work, law firms require support staff, financial planning, asset acquisition, and business development strategies to remain competitive and sustainable. Among others, its support staff consist of several non-lawyers such as accountants, IT specialists, and other administrative staff who handle issues such as scheduling and office management. Secondly, law practice requires the maintenance of financial records and preparation of financial statements. In addition, law practice requires investment in growth, which may take the form of creating websites, sponsoring law-related events like moot court competitions, among others.
2. Law Practice as a Profession:
A. Meaning of Profession:
A profession is more focused on public service, and this may require reduction of personal gain in favour of the public. In the case of IRC v. Maxse [1919] 1 KB 647, a profession was defined as follows:
I am very reluctant finally to propound a comprehensive definition. A set of facts not present to the mind of the judicial propounder, and not raised in the case before him, may immediately arise to confound his proposition. But it seems to me, as at present advised, that a 'profession' in the present use of language, involves the idea of an occupation requiring either purely intellectual skill, or if any manual skill, as in painting and sculpture or surgery, skill controlled by the intellectual skill of the operator, as distinguished from an occupation which is substantially the production, or sale, or arrangements for the production or sale of commodities. The line of demarcation may vary from time to time. The word 'profession' used to be confined to the three learned professions-the church, medicine and law. It has now, I think, a wider meaning…
Three things can be deduced from the above:
In the case of Carr v. IRC [1944] 2 All ER 163, it was added that:
Before one can say that a man is carrying on a profession, one must see that he has some special skill or ability, or some special qualifications derived from training or experience.
Having defined the terms business and profession, the question now is, is law practice a business or a profession?
B. Arguments for Law Practice Being a Profession:
i. Statutory Recognition of Law Practice as a Profession:
Law practice is governed by the Legal Profession ( Professional and Post-Call Law Course) Regulations, 2018 (LI 2355), which was made pursuant to the Legal Profession Act, 1960 (Act 32). Throughout this instrument, legal practice is referred to as a profession. For instance, in Rule 2(4), it is provided that “While a lawyer is entitled to such personal advertisement as is a necessary consequence of the proper exercise of his profession , or of any act otherwise properly done by him, it is contrary to professional etiquette for a lawyer to do or cause or allow to be done anything with the primary motive of personal advertisement or anything calculated to suggest that it is so motivated.” In Rule 9, acts of dishonesty or moral turpitude are titled as “Professional Misconduct.” Finally, in Rule 9(11), it is provided that “It is the duty of a lawyer to maintain the honour and integrity of his profession …”
ii. Academic qualification requirements:
Before one can practice as a lawyer, he must have an LLB from a recognised university and must have passed all the required courses at the Ghana School of Law. Admission into the Ghana School of Law is regulated by the Professional Law Course Regulations, 1984 (L.I. 1296). In Regulation 2 of L.I. 1296, for instance, it is provided that:
A person shall qualify for admission to the Professional Law Course at the Ghana Law School, if—
(a) he is of good behaviour;
(b) he has a degree conferred by the University of Ghana or any other University or institution approved by the Council; and
(c) he has passed final examinations in the following subjects:
(i) Law of Contract;
(ii) Law of Tort;
(iii) Criminal Law;
(iv) Law of Immovable Property;
(v) Constitutional Law;
(vi) The Ghana Legal System and its History; and
(vii) Equity and Succession.
After one gains admission into the Ghana School of Law, he is required by Regulation 8 of the Legal Profession (Professional and Post-Call Law Course) Regulations, 2018 (LI 2355) to take and pass the following courses:
a. Civil Procedure.
b. Criminal Procedure.
c. Law of Evidence.
d. Conveyancing and Drafting.
e. Law Practice Management and Legal Accountancy.
f. Advocacy and Legal Ethics.
g. Alternative Dispute Resolution.
h. Company and Commercial Law Practice.
i. Family Law and Practice.
j. Law of Interpretation of Deeds and Statutes, and
k. any other subject that the Council may determine.
All these courses are designed to equip the legal practitioner with the intellectual skills required of a profession.
iii. Statutory Requirements to Satisfy Before Practicing:
A person who passes all the required courses mentioned above is not automatically qualified to practice as a lawyer. He/she must fulfil the following additional statutory requirements:
a. Be enrolled and called to the bar: In Section 7 of the Legal Profession Act, 1960 (Act 32), it is provided that “The General Legal Council shall from time to time hold formal meetings at which duly qualified applicants shall be enrolled and called to the bar , but the Council may at their discretion dispense with the formalities under this section in any particular case.” A person who practices as a lawyer without being enrolled and called to the bar is subject to a penalty for unlawful practice under Section 9 of Act 32. The section provides that such a person will be “liable on conviction to a fine not exceeding £G50, and for an offence committed after a conviction under this subsection for an earlier offence, to imprisonment for a term not exceeding six months, or to a fine not exceeding £G100 or to both.”
b. Obtain a solicitor’s licence: In Section 8(1) of Act 32 , it is provided that “A person other than the Attorney-General or an officer of his department shall not practise as a solicitor unless he has in respect of such practice a valid annual licence issued by the General Legal Council to be known as "a Solicitor's Licence" in the form set out in the Second Schedule to this Act. [deleted by Stamp Duty Act 2005 (Act 689) s.51(2)].” In the case of The Republic v. High Court (Fast Track Div.) Accra Ex Parte: Justin Pwavra Teriwajah And Henry Nuertey Korboe Civil Appeal No. J5/7/2013 , the Supreme Court cited with approval the case of Akuffo-Addo & Ors V Quashie-Idun & Ors [1968] GLR 667 CA [Full Bench] where it was said that “The interpretation of this section is not ambiguous. It simply means that one cannot sign documents or represent a party as a lawyer in court unless he has obtained a valid solicitor’s licence for that purpose. The section also sets the duration of the licence, which must be annual.”
c. Undergo Pupillage:In Section 8(3) of Act 32 , it is provided that “ A person who has not previously been entitled to practise as a solicitor in Ghana and who does not hold a qualifying certificate but has, after qualification, attended and satisfactorily completed a post final professional qualifying course approved by the Council, shall not be issued with a Solicitor's Licence unless he satisfies the Council that he has, since qualifying as a lawyer, read for a period of not less than six months in the chambers of another lawyer of not less than seven years' standing as a lawyer approved by the Council .” According to the Guidelines for Pupillage by the General Legal Council, “Pupillage offers an excellent opportunity to acquaint oneself with the procedural elements of the field of choice as well as the environment one would be expected to work in.”
All the above statutory requirements strongly affirm that law practice is a profession rather than a business. Unlike businesses that anyone can start with money and strategy, law practice requires strict compliance with statutory regulations.
iv. Statutory Prohibitions:
In their practice, lawyers are prohibited from engaging in certain acts. These include:
a. Acting dishonestly: In Section 16(A) of Act 32 (as amended), it is provided that “The General Legal Council may direct the Judicial Secretary to strike off the Roll of Lawyers without the holding of a disciplinary enquiry, the name of any Lawyer who has been convicted of an offence involving dishonesty or moral turpitude and the Judicial Secretary shall comply with any such direction…”
b. Procedure to Recover Fees: In Section 30 of Act 32 , it is provided that “A lawyer shall not be entitled to commence any suit for the recovery of any fees for any business done by him as a barrister or solicitor until the expiration of one month after he has served on the party to be charged a bill of those fees, the bill either being signed by the lawyer (or in the case of a partnership by any of the partners, either in his own name or in the name of the partnership) or being enclosed in or accompanied by a letter signed in like manner referring to the bill.” [see T. T. Nartey v. Godwin Gati (2010) SCGLR 745]
c. No Solicitation: In Rule 15(1) of the Legal Profession (Professional Conduct and Etiquette) Rules 2020 (L.I. 2423), it is provided that “A lawyer or a law firm shall not personally or through other means of communication solicit for professional employment from a prospective client where the motive for the solicitation is the pecuniary gain of the lawyer or the law firm unless the person contacted (a) is a lawyer; or (b) has a family, personal, or prior professional relationship with the lawyer or the law firm.” It is clear that most business must actively solicit clients to survive. They do this by active advertisements, going after clients/customers and making them offers including the offers of discount, among others. However, lawyers are prevented from doing same.
d. Avoid Conflicts:In Rule 2(2)(c) of L.I. 2423 , it is provided that “A lawyer in practice shall not—carry on a profession or business which conflicts or involves a risk of conflict with the duties of the lawyer as a lawyer in practice.” Further, In Rule 20(2) of L.I. 2423 , it is provided that “A lawyer shall not act in a matter when there is or is likely to be a conflicting interest unless, after disclosure adequate to make an informed decision, the client or prospective client consents.”
The above prohibitions are characteristic of a profession because they ensure ethical integrity, public trust, and accountability. Unlike businesses, which primarily focus on profitability and competition and may even be dishonest or place themselves in conflict of interest situations, professions operate under strict legal regulations that prioritise duty over financial gain. For example, lawyers could gain more revenue by representing clients with conflicting interests. However, they are prevented from doing so.
3. Which Side Wins the Debate?
Various arguments have been provided above for why law practice is a business and why it is a practice. However, the settled position is that law practice is fundamentally a profession that is carried out in accordance with business principles to ensure efficiency, sustainability, and growth.
While legal practitioners may adopt business strategies such as financial management, marketing, and client acquisition, their work is ultimately guided by statutory regulations and ethical obligations that prioritise integrity, justice, and the rule of law over pure commercial gain. This balance between professionalism and business efficiency ensures that the legal profession remains both sustainable and accountable to society.
References:
[1] Parker, J. J. (1955). A Profession Not a Skilled Trade. SCLQ, 8, 179.
[2] Bowie, N. (1988). Law: From a Profession to a Business, The. Vand. L. Rev., 41, 741.