Legal profession transformation: Law Society of South Africa briefing

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Justice and Correctional Services

09 August 2010
Chairperson: Mr N Ramatlhodi (ANC)
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Meeting Summary

The Law Society of South Africa (LSSA) briefed the Committee on its background, current status, and introduced the principles underpinning the draft Legal Practice Bill, which had been submitted to Cabinet and was presently with the State Law Advisors. Statistics around the legal profession were set out, and the LSSA noted that these indicated a need for transformation to reflect gender and racial demographics. The Legal Services Sector Charter had been introduced and was outlined.

The current split profession, where lawyers chose to practice either as attorneys or advocates, no longer served the interests of the public nor accorded with international practice. LSSA believed that an
independent unified legal practice profession (LPP) would be the solution. However, it was still recognised that there was good reason to retain referrals for legal opinions or court work, and the rule that only those dealing with public money must have a trust account. All legal practitioners would be admitted as officers of the Court, and would be subject to the ultimate power of the Court in respect of suspensions or strikings and some disciplinary sanctions. The profession should be organised and regulated through a national legal practice society, of which all legal practitioners should be members. Councils of the profession would be elected democratically by the practitioner members by secret ballot, with built-in mechanisms to promote and ensure transformation. Whilst the national body would set uniform policy and rules, the provincial councils, which must reflect the provinces in the Constitution rather than the former four Law Societies, would undertake service delivery at grass-roots level. There should be a State-funded ombud, independent of the profession, with the power to review, and if necessary, overturn and substitute rulings of the LSSA. The public would have recourse to this body although members of the profession would have internal appeal mechanisms. Finally, it was stressed that the draft Bill sought to promote and protect the national public interest. The professions’ interests could be served by voluntary associations.

Members sought clarity on the gender and race demographics, asked for more detail on the monitoring of the Legal Services Charter and self-regulation, as well as the statistics around, and procedure for dealing with, complaints. Members asked how the current LSSA differed from the former Association of Law Societies, asked whether there were links between the LSSA and the Department of Correctional Services, called for more detail on the outreach programmes, and asked about the fears that attorneys’ civil work was threatened by Legal Aid South Africa and the Small Claims Court. A Member suggested that it was necessary also to look at reform of certain Court rules. Members asked about the language use policy of LSSA, asked whether lawyers were now permitted to advertise, questioned the value of forensic psychology to the legal profession, asked what form the advocacy work took, and noted that there was still some referral discrimination.


Meeting report

Legal Profession Transformation: Law Society of South Africa (LSSA) briefing
Mr Raj Daya, Chief Executive Officer, Law Society of South Africa, briefed the Committee on the background, functions and operations of the Law Society of South Africa (LSSA). He noted that from 1938 to 1996 the organisation, then known as the Association of Law Societies (ALS), consisted of the four provincial law societies of KwaZulu Natal, Free State, Cape and Transvaal (as they were then named). In 1996, the Black Lawyers Association (BLA) and National Association of Democratic Lawyers (Nadel) entered into discussions with the ALS to encourage transformation, leading to the launch of the Law Society of South Africa (LSSA) in March 1998, which now included those two bodies. The LSSA Council consisted of 50% ALS, 25% BLA and 25% Nadel representatives.

The Legal Education and Development (LEAD) unit was the largest business unit within the law society and was responsible for practical legal training of candidate attorneys and continuing legal education for attorneys.


Other divisions of LSSA included the CEO’s and financial offices, human resources, internal and external communication, De Rebus journal and the office of professional affairs. The professional affairs unit served on 32 specialist national committees and acted as an advocacy interface with a range of stakeholders. It also performed oversight on various pro bono national projects.

In 2007, after consultation with stakeholders in the legal profession, LSSA took the lead in drafting the
Legal Services Sector Charter (LSC), which aimed to protect of the rights contained in the South African Constitution and Bill of Rights, as well as to promote the right of access to justice for all people. He quoted that “The unanimous adoption of the Charter by the LSSA’s constituent members illustrated the commitment of the attorneys’ profession to transformation and the Charter as a binding and guiding principle to provide for an independent legal profession and to eradicate the inequalities of the past.”

Mr Daya stressed that the key component of the LSC was access to justice. The Charter included recognition by the legal profession of the ethical obligation to enhance pro bono work, with a view to making it compulsory for all practitioners, a commitment to implement pro bono programmes, to define and establish a community-service programme, and to enhance access to legal services in rural areas. There was also a commitment to investigate the need for legal insurance, to investigate the affordability of services, including review of legal fees, and to co-operate with university law faculties, legal aid clinics and outreach programmes. The LSC further gave a commitment to improve access to legal work as well as to the courts to ensure the expeditious completion of cases and the reduction of backlogs.

Scorecards and a compliance kit were implemented for attorneys, to facilitate implementation of the LSC. The key scorecard areas were ownership, management, employment equity, skills development, procurement, enterprise development and socio-economic development. Although the LSC had not yet been gazetted, it had been presented to the Department of Justice and Constitutional Development (the Department) in October 2008.

LSSA also undertook to address challenges of entry into the legal profession which had an impact on the Draft Legal Practice Bill (the draft Bill). Mr Daya noted that at present, 24% of attorneys practices were fully female owned, 66.9% were fully male owned and 9.1% were mixed. Fully white-owned practices made up 80.2%, fully African owned practices accounted for 6.5%, fully Indian –owned practices for 6.2%, fully Coloured-owned practices for 1.4% and mixed ownership for 6.5%.

The majority of law practices (61.7%) earned up to R1 million per annum and 29.1% earned between R1.1 and R6 million.

Mr Daya thus noted that the ongoing challenges for the LSSA were that 8
0% of attorneys' practices were still owned by white practitioners, and two thirds of attorneys’ practices were still owned by men only. The latest statistics showed that 46% of the legal profession in South Africa was made up of women, but it was a challenge was to retain these women.

The Attorney Development Fund (ADF), a joint-venture Section 21 company between LSSA and the Attorneys Fidelity Fund (AFF) was formed with start up capital of R30 million from LSSA, in order to promote sustainability, growth and success of newly established and deserving attorney firms.

LSSA initiatives included publication of the South African Attorneys’ Journal De Rebus, the National Attorneys’ Week and various outreach projects.

Mr Max Boqwana, Co-Chairperson, LSSA, said that in future it was important to unify the legal profession. Cabinet had adopted the LSSA’s principles that underpinned the draft Legal Practice Bill, which had been submitted to the Minister of Justice.

He outlined that certain critical issues were hindering the desired LSSA outcomes for the legal profession. The Competition Commission had taken decisions regarding conveyancing and fee tariffs. LSSA felt it was important that transfers of immovable property should be reserved to the attorneys’ profession, both so that the members of the public would be protected by the Fidelity Fund insurance, and to ensure certainty in the deeds office practice. LSSA also believed that it was important to have a limit and guidelines on fee tariffs to protect members of the public.

LSSA was engaging successfully with Southern African Development Community (SADC) countries and was already successfully sharing expertise and setting up functioning legal relations with Angola and Mozambique. This was important for facilitating efficient trade between the SADC countries. LSSA was also engaging with the Democratic Republic of Congo (DRC) in a similar way.

LSSA wished to encourage engagement with the Committee and have a space for debate, rather than being reflected in media reports as reactionary in its engagement with the Department and the legislative processes.

Draft Legal Practice Bill and related professional issues
Mr David Macdonald, Attorney and Consultant for LSSA, explained that transformation initiatives had originated in 1996, following discussions with then-Minister of Justice Mr Dullah Omar. In 1998 the Vision 2000 document was published, which set out the vision for transformation of the legal profession. Negotiations had continued until May 2010, when the draft Legal Practice Bill (the draft Bill) was presented to Cabinet. This draft Bill was presently with the State Law Advisors. LSSA had been requested by the Department to make submissions again, and by the end of August 2010, LSSA would be delivering certain amendments which would improve the draft Bill and hopefully would achieve the objectives of transformation.

Mr Macdonald outlined some of the principles underpinning the draft Bill. Firstly, LSSA sought to introduce an independent Legal Practice Profession (LPP). This would be an essential adjunct to the courts, and would fall completely under the judicial sphere of the State, as opposed to the legislative or executive sphere. The courts had recognised that they were dependent on the LPP to identify and bring cases to court, so the two were part and parcel of the independent judiciary.

Secondly, LSSA sought to have a unified profession. South Africa was alone on the African continent in still having a separation of the two professions of attorney and advocate, and this was rare elsewhere in the world. This was a legacy of the past, and it no longer served the interests of the public. The attorneys’ profession had no doubt that a united legal profession was the cornerstone to a better system. The advocates’ profession was presently divided into at least four voluntary associations, which did not communicate adequately with one another, and a large number of advocates did not belong to any association. LSSA had impressed upon the Department that this was not a beneficial model to impose upon the legal profession as a whole.

The current practices of holding a trust account, and the practice of referrals, would be recognised and enforced, and would exist distinctly within the unified legal practice profession. Those holding a trust account would deal directly with the public and must hold the public’s money in a trust account. The referral practice, which mainly applied to court work, where one practitioner would brief another to deal with the matter in court, meant that the briefed practitioner did not deal directly with the public and would not handle public money.

All legal practitioners would be admitted as officers of the Court and would ultimately be subject to the discipline of the Court, so that the Court would have the power to suspend, sanction or strike off legal practitioners.

LSAA was still debating with the Department whether the LPP could be organised and regulated through a corporate national legal practice society, to which all legal practitioners would belong. Currently, the LSSA was the driving force of the profession, and volunteer legal services by legal professionals were responsible for the life force of the profession and society. Hence it was vital to continue to have a national statutory society, to which all legal practitioners were aligned.

Mr Macdonald noted that the sole objective of the national statutory structure was to promote and protect the national public interest. Whilst an earlier draft of the Bill had included another objective of protection of the profession’s interests, this would essentially be legislating for conflict between the public and the profession, and so the LSSA had given advice to the Department that this objective should be removed. Instead, practitioners who wished to protect their own interests could form voluntary associations. This principle was now incorporated into the current draft of the Bill.

LSSA believed that the councils of the profession should be elected democratically by the practitioner members, through secret ballot. The election process should have built-in mechanisms to promote and ensure transformation and to reflect the demographics of South Africa and the rightful position of women and people with disabilities. The current principle, whereby the Minister appointed council members, was not acceptable and had serious practical difficulties.

LSSA believed that the National council should set policy and rules nationally. However, the administrative functions would be delegated through provincial councils so that service delivery was performed at grass-roots level in each province. The new Provincial councils would reflect the present Constitutional dispensation, as distinct from the current legislation, which still retained the four Colonial provincial law societies. The profession would be structured in each province in order to relate to other entities of government, particularly the High Court.

LSSA believed that there was a need for a State-funded ombud, independent of the profession, and the Department had agreed with this principle. The ombud appointed would have to meet the same standards as any judicial appointment, and would have the power to review disciplinary actions taken by the legal practice society, to give direction as to how inequalities or miscarriages of justice would be remedied, to overrule a decision of the legal practice society and substitute his or her own decision where appropriate, and to ask the Court to sanction or strike off a practitioner if appropriate, where the legal practice society had not believed that this was necessary. Thus, members of the public would have recourse to the ombud if they were not satisfied with the outcome of the disciplinary proceedings of the statutory society. Legal practitioners would not have access to the ombud, but would have an internal appeal mechanism where necessary.

Mr Macdonald concluded that the LSSA believed that an independent and unified LPP could address not only the inequalities of the apartheid system, but finally put aside the Colonial baggage. It would enable legal practitioners to serve the public interest, to elect their council democratically and to administer nationwide service delivery through provincial councils and an independent ombud. LSSA would continue to consistently work toward this model in its interactions with the Department.

Discussion 
Mr J Jeffery (ANC) requested more detailed information on the racial and gender divisions within the various occupational levels, as well as within the annual fee income of attorneys’ practices.

Mr Boqwana said that LSSA would provide the Committee with the relevant statistics.

Mr Macdonald said that the fee income table in the presentation showed the gross income of firms, and included the fee income of more than one attorney within the firm, before deduction of operating expenses. It did not represent personal income of attorneys.

Mr Daya said that the figures were obtained from a compulsory survey, but many firms were reluctant to disclose information on race classification. This was a challenge for the LSSA.

Mr Jeffery asked for more detail on monitoring of the LSC, self-regulation of the legal body, and how ordinary complaints and disciplinary matters would be dealt with.

Mr Boqwana said that the LSSA was the co-ordinator of all the present law societies. One of the reasons why there had to be transformation within the profession was that it was necessary to have one national regulating standard. At present standards and rules differed between provinces. High volumes of complaints on “soft issues”, such as alleged overcharging, a legal representative attending Court late, or perceived conflicts of interest were received on a fortnightly basis. Every matter was investigated, and apparently simple issues often had more complex underlying issues. LSSA was currently engaging in compiling statistics on a monthly basis and this information could be made available to the Committee.

He added that LSSA had embarked on a programme in KwaZulu Natal to determine how best the law society could intervene in law firms outside of the auditing process, as auditors themselves often did not pick up regulation issues. The regulating process had to be an accountable and open process, so that it could be subject to outside oversight by an ombud, and so that it would include input from members of the public who had an interest in the matter.

Mr Macdonald added that there was a tremendous volume of disciplinary action. The public was very quick to complain, and the LSSA and provincial societies were inundated. More than 50% of the LSSA budget was spent on disciplinary functions. Sentencing was the most difficult part of a matter, and there could be instances where an attorney might have been fined up to R10 000, yet the public was invariably not satisfied. Some of the public felt that the courts and law societies were too lenient, and some attorneys felt that the courts were too strict.

Mr L Ndabandaba (ANC) asked what the distinction was between the LSSA and the former ALS.

Mr Boqwana said that when the LSSA was formed 12 years ago by legislation, it was intended to be a structure that would last for a year, with transformation following. It was a completely different association from the ALS. The LSSA was focused on transformation and had developed a life of its own.

Mr Macdonald added that the former ALS was, in terms of the legislation, comprised of the four then-statutory law societies. The LSSA was a new association which now comprised of the Black Lawyers Association, Nadel and the four societies, as six equal members.

Mr Ndabandaba asked for clarity on the interaction between LSSA and the Department of Correctional Services.

Mr Boqwana said that indeed some of the problems of overcrowding in correctional centres were actually caused by South African lawyers’ culture of postponing matters. Reports and strategies to deal with this problem had been developed and these would be made available to the Committee.

Mr Ndabandaba asked how the outreach programme ‘adopt a school’ was implemented.

Mr Daya said that attorneys in various towns lectured, held seminars and assisted parents and teachers and shared knowledge in the broadest sense of the schooling process, on a pro bono basis.

Mr J Sibanyoni (ANC) asked for clarity on rumours that attorneys’ civil work was threatened by Legal Aid South Africa and the Small Claims Court.

Mr Boqwana said that it was true that there was stress on the profession, especially the small law firms. In the past some lawyers had relied heavily on doing administration of estates, but this was now mostly handled by the banks. Furthermore, Legal Aid work was not always given to lawyers in private practice, and in the Small Claims Court lawyers did not appear. About 60% of the small law firm clientele were given advice free of charge. In large firms, clients were obliged to pay.

Mr Macdonald said that Legal Aid South Africa offered an indispensable service. However there were occasions when some people within that structure saw themselves as competing with the legal firms. Whether Legal Aid South Africa could take on matters on a contingency fee basis was under discussion at present. LSSA felt that this was inconsistent with the concept of Legal Aid. Under the present legislation, attorneys performed contingency fee work. Where Legal Aid South Africa was substantially reducing practitioner Judicare work, young lawyers were being affected. These issues were important, as the viability of the profession was part and parcel of the capacity to serve.

Mr Sibanyoni asked why LSSA remained quiet when media reports seemed to indicate that witnesses offered valuable information.

Mr Boqwana said that when matters were still under consideration by the court (sub judice), the public was entitled to information, but was inclined to analyse statements, which could have untold consequences on people who were, on conclusion of the trial, found not guilty.

Dr M Oriani-Ambrosini (IFP) said that it was encouraging that the driving aspect of the draft Bill was not the interests of the profession but the interests of the public. He asked for comment on a suggestion that rules reform in the judiciary - through introduction of a process of discovery of witnesses - was required for transformation of the LPP in South Africa. He noted that in United States of America (USA) and Canada, the bulk of the trial took place in the lawyers’ offices, where both lawyers examined witnesses. The judge would then be presented with a simple set of facts for judgment in court. This process could reduce the cost and time of hearing matters in court from six months to three days.

Mr Macdonald said that he shared Dr Oriani-Ambrosini’s views on the legal procedure. It may well be that an overview of litigation procedures was needed. It was also questionable if there was still pace for depositions in court. South Africa had inherited an adversarial system, which originated in a different jurisdiction two hundred years ago. The South African Law Reform Commission could be mandated to go back to the basics and question what system would best serve South Africa in 2010. South Africa was not locked into traditions of the past.

Dr Oriani-Ambrosini agreed that the split bar in South Africa should be abolished and added that rules of ethics needed to be reviewed. Irrespective of who enforced the rules, legal conduct that had often been permitted in South Africa would be regarded as highly unethical and grounds for disbarment in countries such as the USA, Canada and Germany. Ultimately, the legal profession was a service provider. Because it was operating in an international market, it should be in compliance with international standards.

Ms N Michael (DA) asked how issues of language were being addressed by LEAD, as her law lectures had been in Afrikaans only.

Mr J Van der Merwe (IFP) countered that in his experience, all correspondence was being done in English.

Mr Boqwana said that LSSA was grappling with the issue of language. All languages needed to be accommodated.

Mr Macdonald added that the challenge was finding the correct language balance to keep pace with the changing times. The Cape Law Society communicated in Xhosa, Afrikaans and English. A national body with national standards and policies would acknowledge the language policies of the Constitution.

Mr Daya said that the National Legal Practice Council would set national standards and norms in the new draft Legal Practice Bill to deal with issues of language. For the past five years, lectures had been offered by LEAD in English, although on request, material was obtainable in Afrikaans. Since there were 11 official languages in South Africa and since all law courses were compulsory, it was necessary to find a process whereby everyone was comfortable with the way in which communication was offered.

Ms Michael said that law firms were now advertising both on television and in the newspaper. She asked whether this was ethical.

Mr Macdonald said that the LSSA had relaxed the rules that had formerly prohibited advertising some time ago, and in the present dispensation the Competition Commission had held that there were no restrictions for advertising. Such advertising was not in contravention of any disciplinary rules.

Mr M Gungubele (ANC) asked what form advocacy took when a particular law was not compliant with the Constitution.

Mr Boqwana said that advocacy work espoused differing ideologies amongst the members of LSSA. Advocacy issues needed to be raised and shared at the various levels of law and government and all views were put on the table for discussion, ultimately for the benefit of the public.

Mr Gungubele asked if forensic psychology assisted in the administration of justice.

Mr Boqwana said that this was used for criminal cases, as well as for the assessing injuries to persons and quantifying damages claims in civil matters.

Mr Gungubele asked what had been the experience of the LSSA was with referral discrimination in areas of
conveyancing and commercial law in South Africa.

Mr Boqwana said that this was a key issue and that LSSA would be engaging with the Department on how to deal with the lingering psychological stigma that white law firms were special.

Mr Daya thanked the Committee for accommodating the LSSA and took all criticism in positive spirit.

The meeting was adjourned.

 

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