A wave of regulatory reform of the legal professions has been washing over the common-law countries. The reasons are always the same: affordability and access, choice, competition and consumer protection, especially against ineffective professional disciplinary mechanisms, and the need to depart from rigid practice models and explore new business structures.
These are the problems we should be addressing. The new regulators created elsewhere to address them are typically small bodies composed of laypeople with the relevant expertise, a few advocates and attorneys, and sometimes government representatives. Form follows function.
Instead, what is South Africa doing? The Legal Practice Bill forces advocates and attorneys into one governing body, the Legal Practice Council, and puts the attorneys in charge. Why has this happened? Because the ANC, to borrow the title of Professor Sampie Terreblanche's latest book, is lost in transformation.
There was some consideration given at transition, as advocate and chair of the General Council of the Bar Ishmael Semenya says, to "what might be called ‘naked fusion' [and] for so long as that was the case, the role for a Legal Practice Council in the governance and regulation of lawyers was clear".
The idea of fusing the professions of advocates and attorneys was abandoned, but the Legal Practice Bill survived through five justice ministries. It is fusion in disguise.
The thinking behind the Bill has been perfectly honestly stated by ANC members of the justice committee: it is still what it was five ministers ago, namely fusion – but now by other means.
Dr Mathole Motshekga cited the case of Zimbabwe, where he was present when fusion was effected at transition. But he does not say, or remember, that 99% of advocates in Zimbabwe were white and had sole right of appearance in the higher courts. To fellow MP Jonas Ben Sibanyoni, the divided legal profession is the inherited "old order". The logic and applicability of his argument are not clear, unless advocates are assumed to be the embodiment of the inherited old order.
That is why a unified profession was the stated goal of the Legal Practice Bill at earlier stages of the legislative process.
Because the Bill does not discontinue the statutory recognition of the professions of advocates and attorneys, a "unified regulator" was chosen instead and some attempts made to create tasks for such a regulator after the fact. But the essential goal remaining for the unified regulator is transformation and the reflection of diversity and demography.
The Democratic Alliance's attempt to ensure a constitutionally compliant broad reflection was unceremoniously deleted when the ANC exercised a unilateral choice among the multitude of options produced during a legislative period that was far too short for the time left in the life of this Parliament.
To all intents and purposes, the Bill as tabled is what now becomes law.
The truth is that significant progress has been made in deracialising the legal professions. As at March, 64% of our 21 463 attorneys were white and 36% black. Black law graduates started outnumbering whites from 2005, and black articled clerks from 2009. In April, in the General Council of the Bar, white males represented 1 379 of the 2 471 members.
The position of the General Council of the Bar is that there should be two separate chambers for advocates and attorneys at the national and regional level.
The position of the Law Society of South Africa is that policy should be set by the majority at the national level – that is, 10 attorneys against six advocates – but that given the significant regulatory differences characterising the two professions, there should be separate chambers at regional level for implementation.
The justice department's response to these submissions was a dead giveaway: the chambers "boil down to" the retention of the current arrangements. The department is of the view that this will perpetuate the issues that the Bill seeks to transform.
And so the ANC guillotine fell on all the DA options: there are no chambers at any level, not even the "committees" with original, non-delegated powers the party proposed as a compromise.
All that is left are committees at the provincial level where advocates and attorneys can talk about matters exclusive to themselves. The committees have no powers; neither do the provincial councils, which will now reflect the number of attorneys and advocates in the relevant province.
The policymaking and operational power lies at the national level, in the Legal Practice Council. This consists of two academics, a Legal Aid South Africa representative, someone from the Attorneys Fidelity Fund board, three ministerial representatives, 10 attorneys and six advocates.
There is no guarantee that advocates will be able to elect their own half-dozen. This is because the council will be preceded by an interim national forum consisting of the Law Society of South Africa, the Black Lawyers Association and the National Association of Democratic Lawyers on the one hand and the General Council of the Bar and Advocates for Transformation on the other, together with two ministerial appointments, an academic, Legal Aid and the Attorney's Fidelity Fund.
One of the first orders of business will be to create an election procedure for the actual council. It is thought that this will be based on a voters' roll of all legal practitioners.
Also on the order of business is to write one code of conduct for both professions. In other words, attorneys will by virtue of their majority make regulatory policy for advocates.
The minister chooses the chair and deputy of this interim body after consultation with the national forum and if the positions become vacant, he calls the shots again. The chair has a casting vote.
The DA's proposal that the chair and deputy should represent both professions – if an attorney was chosen as chair, the deputy should be an advocate, and vice versa – was guillotined at the last moment.
In addition, the further five members of the executive need only as far as is practicable be representative of both attorneys and advocates, gender and race.
We believe that South Africa needs the split or divided profession but that the forms of practice that are essentially perpetuated are too rigid and protectionist. An advocate practising on the traditional independent basis will take on politically or socially unpopular cases, and this remains as necessary now as it was in the old South Africa.
Attorneys, especially small firms (which make up 75% of South Africa's attorneys' practices) should be at the front line of access to justice. Fusion works against the interests of small attorneys because it is typical of fusion that law firms become enormous to offer a full range of services.
The government is paying the costs only of the transitional national forum and the new legal ombud. The Legal Practice Council will have to finance itself. It also becomes responsible for the practical vocational training that a candidate legal practitioner must undergo after acquiring an LLB, and for the introduction of remuneration, allowances or stipends, as well as for the assessment of competence of candidates.
An extra nasty surprise towards the end of the legislative process was the fact that recurring community service by enrolled lawyers as a condition of continued enrolment, previously warded off, is back: it is typical of the punitive and unproductive mind-set at work in this Bill.
Examples are serving as presiding officers in small claims courts and legal education, or service in the state. The concept and the practice of pro bono work is studiously avoided.
The only gains, and they are real gains, are a legal ombud, now a judge discharged from active service, thanks to the DA; and transparency in disciplinary proceedings.
But investigations of complaints are impractically placed at national level, with regions (the four existing law society seats, in effect) later to become provinces, performing disciplinary actions as delegated powers.
Other major obstacles include the possible incorporation of the Legal Services Charter of 2007 into the Bill, giving hopelessly outdated and undefined black economic empowerment arrangements (including ownership) to the status of law.
The minister will be allowed to dissolve the council and install seven hand-picked people for six months. No matter how many safeguards are built in, this power is in itself inimical to the independence of the legal professions, as former chief justice Arthur Chaskalson once said.
Legal costs are a problem in South Africa. We have made some proposals to empower clients but the government will move ahead with its own suggestion, that the Rules Board for Courts of Law will set tariffs for non-litigation work as it already does for litigation work.
This is a blunt instrument compared with the full inquiry into all factors harming the interests of clients and of lawyers themselves that should have been part of a proper regulator's task. The Law Reform Commission will undertake an inquiry in three or more years' time when the council is created.
On forms of practice the Bill does nothing except to perpetuate the status quo (except to relax the referral rule) and to require the Legal Practice Council to advise the minister on multidisciplinary practices.
We should be creating forms of practice suited to South Africa under which lawyers and clients can flourish. The possibility exists that the Legal Practice Council will simply recommend fused practices.
Dene Smuts is the DA's spokesperson on justice.
The sky will not fall if the law is for all?
It is quite telling that in most of the media coverage given to the Legal Practice Bill the focus has been on the perceived negative aspects, with little or no detail given on how the Bill will be of positive benefit to the public.
The Mail & Guardian, for example, initially described the Bill as "dubious". There is nothing "dubious" about it.
The public should be made aware that one of its main objectives is to address the question of the high costs of legal fees.
It seeks to do this by providing that the Rules Board for Courts of Law must set tariffs for legal work although, on the client's initiative, higher or lower fees can be negotiated. Furthermore, it is a requirement that a written costs estimate be given by the legal practitioner soon after they are instructed. In the longer term, the South African Law Reform Commission has been asked to undertake an investigation into the issue of costs.
In view of the many concerns raised by members of the public regarding the profession's perceived inability to take effective action against lawyers who are accused of rendering poor service, the Bill makes provision for more transparent disciplinary proceedings.
These proceedings will no longer take place behind closed doors and the requirements of information regarding disciplinary proceedings and complaints are to be freely available.
The Bill creates a legal ombud, who will be a judge discharged from active service, to consider complaints from the public against lawyers accused of rendering poor service.
The Bill does not fuse the separate professions of attorneys and advocates, although many commonwealth countries have opted for this.
Fusion – or convergence – has taken place in Namibia, Kenya, Singapore, New Zealand and parts of Australia and, contrary to what certain interest groups may want us to believe, the skies did not fall when this happened.
The distinction between attorneys and advocates remains. What the Bill does is establish the South African Legal Practice Council to exercise jurisdiction over attorneys and advocates. In other words, there will be one regulatory body for the legal profession.
The narrowing of the gap between advocates and attorneys started in South Africa in 1995 with attorneys obtaining the right to appear in our high courts, a function that was previously the preserve of advocates.
The Bill narrows the gap a little more by making the process of an attorney appearing in the high court a little easier, and it makes a slight change with advocates now being allowed to take briefs directly from clients. This should help advocates who are starting out and was done to reduce costs to members of the public, who now no longer have to pay attorneys to brief an advocate.
In addition, all advocates will have to do proper practical training before they can practise, unlike the current situation where a law graduate can be admitted as an advocate straight from law school without the necessary practical training.
Lawyers doing pupillage to become advocates will have to be paid (as is the case in the United Kingdom) and thus ends the practice of these pupils generally working for nothing, meaning that only the rich can afford to become advocates.
The Bill aims to enhance transformation of the profession by providing that the council must develop programmes to empower historically disadvantaged legal practitioners, and it is obliged to report annually on progress made in respect of these programmes and on measures adopted to enhance entry into the profession.
Instead of spelling out the many advantages of the Bill, the attention is focused on misrepresentations, in particular raised by those with vested interests in maintaining the status quo. Reform of the profession is happening on an ongoing basis in most countries whose tradition is rooted in the English legal system.
Possibly the biggest misrepresentation is that the Bill undermines the independence of the legal profession. It is difficult to understand how this can occur.
The Bill creates a new Legal Practice Council that will consist of 23 members, 20 of whom will be chosen by the grouping they represent – 10 attorneys and six advocates, two law teachers or academics, one person from Legal Aid South Africa and one from the Attorneys Fidelity Fund. This leaves three to be chosen by the minister of justice, none of whom may be politicians or public servants.
It is difficult to see how less than one-seventh of its membership (in other words, the three appointed by the minister) can control the council. Incidentally, ministerial appointees sit on the equivalent councils of Ireland and Singapore.
Another misrepresentation is that the minister can dissolve the board. This is not so. If the minister believes the board has become dysfunctional, the ombud must conduct an investigation. If the minister is still not satisfied, he or she must approach the court to get an order to dissolve the board. This dissolution clause is necessary because, as the council represents different components, it is not possible for the constituent members to dissolve the council.
The Bill has been accused of "punishing advocates". This is simply not true. This complaint seems to relate to the fact that advocates and attorneys will not have equal representation on the Legal Practice Council.
But how can approximately 2 000 practising advocates have the same levels of representation as more than 21 000 attorneys? There were arguments that attorneys and advocates should have separate chambers to deliberate on matters such as discipline, but as both advocates and attorneys can appear in high courts, shouldn't the same disciplinary rules and standards apply?
In any event, voluntary associations such as the Bar councils solely for advocates, or attorneys for that matter, can still exist. The majority of this country's judges are appointed from the ranks of practising advocates, so it would make absolutely no sense to disadvantage or prejudice the advocacy.
The Act, once passed, will only take effect after three years, as a statutory national forum of attorneys and advocates will be created to make recommendations on issues that have not yet been resolved by the profession. The Legal Practice Council will only be established after the conclusion of this process. In the interim, regulation will still be done by the various law societies and Bar councils.
The Bill has taken more than 15 years to finalise. The main reason is that there are vested interests among certain sectors of the profession and therefore they will oppose it at all costs. Meanwhile, the majority of ordinary, middle and working-class South Africans cannot afford the services of a private lawyer. They feel alienated from the legal profession and are often let down when they complain about the unprofessional conduct of lawyers. We have a duty to address these issues and so make justice accessible to all.
John Jeffery is the deputy minister of justice and constitutional development.