KEY PRINCIPLES OF THE LEGAL PRACTICE BILL,

2012

1

The Legal Practice Bill, which has been in Parliament since May 2012, was approved by the National Assembly on 12 November 2013.

It was then referred to the National Council of Provinces for in-depth deliberation by all nine Provincial Legislatures in terms of section 76 of the Constitution.

The Bill is intended to address the following:To rationalise the current fragmented legislative framework in terms of which the former RSA and former homeland laws, still in operation in various parts of the country, will be repealed and replaced by a single statute regulating the profession in its entirety;

transform and restructure (democratise) the regulatory bodies in the legal profession by establishing a single national body with Provincial Councils;broaden access to justice by making access to legal services easier in terms of affordability and by enhancing access to the legal profession;

promote and protect the public interest; establish an Office of Legal Service Ombud;

and make the legal profession more accountable in

terms of the disciplining of legal practitioners.

The Bill does not bring about fusion of attorneys and advocates.

The Bill recognises the two existing categories of legal practitioners, namely attorneys and advocates, with their own areas of expertise.

The Bill does not deal with paralegals. It was agreed that these persons will be regulated later.

Chapter 2 of the Bill establishes a single national South African Legal Practice Council.

The Council has numerous objects: regulation of, and jurisdiction over, all legal

practitioners (attorneys, advocates, candidate attorneys and pupils);

preserve and uphold the independence of the legal profession;

enhance and maintain the integrity and status of the legal profession, and appropriate standards of professional practice and ethical conduct ;

promote high standards of legal education and training, and compulsory post-qualification professional development;

promote access to the legal profession; and ensure accessible and sustainable training of

law graduates .

Clause 6 extensively sets out the powers and functions of Council.

Clause 6(1) sets out the powers and functions which are necessary for the operation of the Council.

The Council may delegate any of its powers and functions to its committees or Provincial Councils.

The Council may provide financial support to organisations providing legal education and training, to non-profit organisations and to institutions promoting access to justice for poor people.

The Council must establish a mechanism to provide appropriate legal education and training having due regard to our inherited legacy and the new constitutional dispensation.

Training is recognised in the Bill as a key transformational imperative, as legal practitioners are the main source of candidates for the judiciary.

The Council must report to the Minister on its activities, with particular reference to measures to enhance access to justice.

The Council must advise the Minister on multi-disciplinary legal practices, also with the view to promoting legislative and other interventions on multi-disciplinary legal practices.

The Council consists of -16 legal practitioners (10 practising attorneys and 6 practising advocates), elected by the profession;two legal academics designated by the law faculties;three persons designated by the Minister, who may not be public servants or persons with party-political affiliations, who can bring expertise and experience, relating to the objects of the Bill;

one person designated by Legal Aid SA; and

one person designated by the Board of the Fidelity Fund.

There are approximately 20 000 attorneys and less that 5 000 advocates in the country.

The Minister has the power to dissolve the Council if it becomes dysfunctional but only –on authority of an order of the High Court, after the Ombud has investigated the circumstances giving rise to the disfunctionality and suggesting that the Council be dissolved.

The legal profession (the Council and Board of the Fidelity Fund) is responsible for the financial implications arising from the implementation of the Bill.

The Department of Justice and Constitutional Development is responsible for the establishment and running of the Office of the Legal Services Ombud, which will only come into existence about three years down the line once the National Forum has completed its mandate.

Clause 23 requires the establishment of nine Provincial Councils, one for each province.

To start off with the Bill requires the establishment of at least four Provincial Councils, which must be increased progressively, as funds and capacity become available.

Representation of legal practitioners on these Provincial Councils is in proportion to the number of attorneys and advocates practising in each of the provinces in question.

The Provincial Councils have no original powers. The national Council must delegate its regulatory powers to the Provincial Councils, which are best performed at provincial level.

Chapter 3 requires all persons who wish to practise as legal practitioners to be admitted by the High Court, as is currently the position.

Before being admitted by the court, aspirant legal practitioners must comply with the following criteria:

• South African citizens or permanent residents;• At least an LLB degree obtained at a South

African university;• Provision is made for certain foreign legal

practitioners to appear in our courts and to practise here in terms of the GATS agreement, to which South Africa is a signatory and has international obligations;

• Fit and proper persons;• Completed practical vocational training –

pupillage in the case of aspirant advocates; and

articles of clerkship in the case of aspirant attorneys.

• Served community service as part of vocational training.

• Passed an admission exam, either for attorneys or advocates.

Admitted attorneys and advocate can practise throughout the country.

Attorneys must, as is the case at present, have been practising as such for at least three years before they can get the right to appear in our superior courts and they must apply at the High Court for a certificate to get such right.

Candidate legal practitioners must perform community service as a component of their practical vocational training.

The details of this, for instance for how long and where, must be spelt out by the Minister in regulations.

Practising legal practitioners are also required to perform community service each year.

Provision is made for them to apply for exemption, on good cause shown, for instance if they have small legal practices and performing community service could impact negatively on them.

Community service, may, among others, include – the provision of training on behalf of the Council, service, without any remuneration, as a judicial

officer in the case of legal practitioners, service at the South African Human Rights

Commission; and service to the State, approved by the Minister in

consultation with the Council.

• Advocates will no longer be able to be admitted as such, purely on the strength of having an LLB degree, as is currently the position.

After admission by the court, aspirant legal practitioners must then apply to the Council for enrolment (registration) with the Council.

They cannot practise as legal practitioners until they have enrolled with the Council, after paying the required fee.

Clause 32 deals with conversion of enrolment. A legal practitioner who has been enrolled as an

attorney or advocate may convert his or her enrolment from that of an attorney to advocate and vice versa.

The aim of this provision is to provide for an easier mechanism for legal practitioners to change direction in their careers, either as attorneys or advocates.

A similar conversion of enrolment is provided for in the case of advocates who practise with Fidelity Fund certificates and who wish to practise without a Fidelity Fund certificate and vice versa.

Clause 33 provides that no person other than a legal practitioner who has been admitted and enrolled as such may, in expectation of any fee, commission, gain or reward— appear in any court of law or before any board,

tribunal or similar institution in which only legal practitioners are entitled to appear; or

draw up or execute any instruments or documents relating to or required or intended for use in any action, suit or other proceedings in a court.

The Bill is premised on the general rule that advocates must take briefs from attorneys.

The Bill allows advocates to take briefs directly from members of the public but, in the public interest, only if they are in possession of a Fidelity Fund certificate and if they operate their practices with trust accounts, as required of attorneys.

Advocates must decide whether they wish to practise with or without Fidelity Fund certificates and they will be enrolled accordingly.

This is a significant departure from the current position and hopefully it will contribute positively to cutting legal fees.

In terms of clause 35, fees for legal services rendered will, as an interim measure, be determined by the Rules Board for Courts of Law, subject to approval by the Minister.

That is in respect of litigious and non-litigious matters.

At present the Rules Board already sets fees in respect of litigious matters.

When determining fees, the Rules Board must take into account a number of factors, for instance –the complexity of the matter at hand;the seniority and experience of the legal practitioner involved;the amount of work involved; and the financial implications involved.

Of importance is that this clause allows the Minister to set a cap in respect of fees payable by the State for legal services rendered, at all three levels of Government.

Of equal importance is that legal practitioners will be required to give their clients, up front, a cost estimate for the legal services required.

The cost estimate must include the processes involved, and mention the client’s right to negotiate fees.

Failure to comply with this on the part of legal practitioners, constitutes misconduct and allows the client to refuse to pay until the matter has been resolved by the Council.

Clause 35 further requires the SA Law Reform Commission to launch a comprehensive investigation into the question of fees and to make recommendations on how to address the current challenges.

The Rules Board measure will be in place, pending the outcome of the investigation of the Law Reform Commission.

Chapter 4 requires the Council to compile a code of conduct for all legal practitioners and candidate legal practitioners, recognising the differences between attorneys and advocates.

Three different structures, established by the Council, are envisaged, namely –

(a) investigating committees, which must – investigate complaints against lawyers;

and make recommendations to the Council on

whether to proceed with the matter or reject the complaint;

(b) disciplinary committees, which must adjudicate on matters that the investigating committees recommend be taken further, on the basis of available evidence; and

(c) appeal tribunals to which legal practitioners or complainants who are aggrieved by the outcome of an investigating committee or a disciplinary committee can appeal.

The disciplinary committees and appeal tribunals must consist of – legal practitioners; and lay persons, agreed to by the Office of the Ombud.

In order to enhance transparency and accountability, all disciplinary committee and appeal tribunal proceedings must be held in public.

The following must be made public:The allegations being dealt with;the members of the disciplinary committees and appeal tribunals;the legal practitioners involved; and the outcome of the proceedings, including any sanctions imposed.

These structures do not preclude the intervention of the High Court in serious allegations.

Chapter 5 of the Bill provides for the establishment of an Office of Legal Service Ombud.

The Ombud must be a judge discharged from active service.

The Ombud holds office for seven years which is renewable once.

The objects of the Ombud are to-protect and promote the public interest in relation to the rendering of legal services, ensure the proper investigation and disposal of complaints against legal practitioners, promote high standards of integrity in the profession; and promote the independence of the profession.

The Ombud will not have decision-making powers but recommendatory powers, similar to those of the Public Protector.

For instance the Ombud must investigate and make recommendations to the relevant authorities regarding any alleged maladministration in the profession or abuse of power.

The Ombud may also -

• mediate;• advise; and • assist

complainants in getting their matters resolved, for instance by taking matters to court.

Chapter 6 provides for the continuation of the current Attorneys Fidelity Fund under the name of Legal Practitioners’ Fidelity Fund.

The change of name is necessary because advocates may now also obtain Fidelity Fund certificates if they take briefs directly from members of the public.

The Fund, as is the case at present, is there to reimburse members of the public who suffer pecuniary loss as a result of theft of their money by legal practitioners.

The Fund is managed by a Board of Control. The Board consists of –

five legal practitioners elected in accordance with the procedure determined by the Council;

two persons designated by the Council; and two persons designated by the Minister who

have the required expertise and experience.

All legal practitioners who take briefs directly from members of the public must be in possession of a Fidelity Fund certificate.

They obtain this after paying the prescribed fee every year.

Chapter 7 spells out how legal practitioners who take briefs directly from members of the public must set up and manage their trust accounts.

The provisions of this Chapter are largely the same as those in this regard as in the Attorneys Act, 1979, which is being repealed by the Bill.

State Attorneys at present do not need to set up trust accounts and this position is retained in the Bill.

Of importance in this short Chapter is the clause dealing with offences and penalties.

It is an offence for a person to masquerade as a legal practitioner.

It is also an offence for advocates to take briefs directly from members of the public if they are not in possession of a Fidelity Fund certificate.

The Minister must make regulations on a number of aspects, in or after consultation with the Council, as indicated in the Bill.

These are aspects in respect of which Government has a legitimate interest to ensure that constitutional imperatives are complied with.

The Council must make rules on numerous aspects relating to the regulation of the profession, for instance the fees and charges payable to the Council.

Chapter 10 provides for the establishment of a National Forum on the Legal Profession.

The mandate of the National Forum is to deliberate and make recommendations on a number of aspects that still require resolving and in respect of which there has been no consensus to date, with the view to the full implementation of the Bill.

The National Forum has a lifespan of three years. In that three year period it must, for instance make

recommendations to the Minister on – an election procedure for purposes of

constituting the first Council; the establishment of the first Regional Councils,

their areas of jurisdiction and the manner in which Regional Councils must be elected; and

practical vocational training requirements for candidate legal practitioners, among others.

These recommendations must be converted into regulations by the Minister.

If the National Forum fails to make these recommendations within the two year time limit, the Minister can go ahead and make regulations on these aspects after consultation with the National Forum.

The National Forum consists of -16 legal practitioners (equal representation) (8 practising attorneys and 8 practising advocates);one teacher of law;two persons designated by the Minister, who may not be public servants or persons with party-political affiliations;one person designated by Legal Aid SA; andone person designated by the current Board of the Fidelity Fund.

 

The National Forum must negotiate and reach an agreement with the existing provincial and homeland statutory law societies in respect of the transfer of assets, liabilities, rights, obligations and staff to either the Council or Provincial Councils.

Non-statutory bodies existing in the legal profession are also given the opportunity to enter these negotiations regarding their assets, rights, liabilities, obligations and staff should they elect to do so but they cannot be forced to do so.

The National Forum must report on its activities every six months to the Minister and to Parliament.

The Chairperson and deputy chairperson of the National Forum are designated by the Minister after consultation with the members of the Forum.

The Department of Justice and Constitutional Development is responsible for the expenses arising from the operation of the National Forum.

Out-of-pocket expenses incurred by members of the Forum when carrying out their duties are to be borne by the body or person who designated that member.

The National Forum must, among others and in consultation with the Director-General –appoint an executive officer and supervise the staff of the National Forum; employ or second staff from existing governance structures in the legal profession;conclude agreements with any person or organisation for the performance of any particular act or any particular work or the rendering of services for the purpose of furthering the objects of the National Forum;

determine the remuneration and other conditions of service of staff members; and

pay an honorarium or an allowance to any person to cover expenses reasonably incurred by him or her in connection with any act performed at the request of the National Forum or in terms of its directions on behalf of the National Forum and the furtherance of its objects.

Chapter 10 also contains a variety of transitional provisions, for instance -existing legal practitioners will be deemed to have been admitted and enrolled under the Bill; advocates with senior counsel status (SC) will retain this status although the Bill is silent on the future conferment of this status, pending the eventual outcome of litigation in this regard; and pending disciplinary proceedings will be continued as if the Bill had not been passed but under the auspices of the Council.

The Bill is still not a consensus Bill in some respects. Hence the incremental approach provided for by means of the National Forum on the Legal Profession.

The National Forum will fulfil a key role in the first phase of implementation, paving the way for the establishment of the permanent South African Legal Practice Council and putting systems and procedures in place for the subsequent phases of the implementation process.

It leaves the destiny of the noble profession largely in the hands of the profession itself.

Thank you