This, say experts, will change legal practice dramatically in South Africa.
The parliamentary oversight committee on justice and constitutional development called for this development this week as they continued to process the controversial Legal Practice Bill, which seeks to transform the legal profession.
The Bill currently proposes that an advocate may render legal services on receipt of a brief from an attorney or a request from a member of the public, provided the request complies with any regulation the minister may make after consultation with the Legal Practice Council, which will be established if the Act comes into force.
“So we are providing for direct briefs,”the ANC’s John Jeffery said.
Jeffery said it would be common cause that Attorneys Fidelity Fund certificates would be necessary for advocates taking direct briefs.
Professional negligence
All practising attorneys have to contribute to the fidelity fund, which covers professional negligence.
He said it was important for the Act to be prescriptive about this because, as the proposal stood in the Bill, it would be direct briefs without restrictions if the minister decided not to make regulations.
“The regulations here are optional on the minister, and the minister could decide he’s not going to make them and then it’s completely unregulated. That is not our intention.
“So, I think, the general consensus from the committee was allowing advocates to take direct briefs provided they have a fidelity fund certificate to protect the client. If you are an advocate and you don’t want to take direct briefs then you don’t have to get a fidelity fund certificate. That’s your choice.”
The Democratic Alliance’s Dene Smuts agreed, saying she believed there was room for relaxation of the referral rule, but she could foresee a “great deal of unhappiness” about the proposal.
She said that among the reasons she supported the relaxation was the fact that young women advocates were not being briefed by attorneys and the proposal would be one of the ways to “break the logjams”.
MPs say advocates who have fidelity fund cover would still take referrals as there is nothing stopping them from doing so, but those who take direct briefs from the public without a fidelity fund certificate will be committing a criminal offence.
Approach litigation
Jeffery said South Africa was possibly one of the few countries left in the world that did not allow direct briefs. “It’s crucial for those who want to maintain the status quo for their own interests,” he added.
Deputy chief state law adviser JB Skosana said, the provision had been included in the Bill, to address a concern “about people having to pay two lawyers for the service of one”.
“The bad part is that they don’t have any contractual arrangement with the second one so they pay the other one in absentia,” Skosana said.
Chief executive of the Law Society of South Africa, Nic Swart, said the body would support the proposal if it benefited the client and was in the public’s interest. The society would also be looking at how the public would be protected. “I don’t think it will dramatically change things overnight, though.”
Swart said the change would mean that a consumer or client could approach litigation experts directly.
But he warned about the financial implications for the advocate. The current relationship between an attorney and an advocate is that the attorney assumes responsibility for the client and administrative issues, including the management of the case from preparation to consultation, while the advocate is the service provider to the attorney.
“If this changes, the advocate takes direct responsibility and protections comes into issue.
“If you look at what’s on the cards for advocates, they’ll have to have infrastructure for a case, deal with administration, get support staff and will have to go for training, as they are not trained on things like bookkeeping,” said Swart. That might push the costs of seeing an advocate even higher, he said.