Attorneys and advocates must resolve differences

May 1st, 2012

By Kim Hawkey – Editor

At the Law Society of South Africa’s (LSSA’s) annual general meeting held at the end of March, Chief Justice Mogoeng Mogoeng called on attorneys and advocates to put aside their differences in order to expedite the Legal Practice Bill (LPB) and transformation of the legal profession.

‘The Legal Practice Bill has been hanging over our heads for too long. As I understand it, the critical challenges can only be resolved by the organised professions themselves. If this is correct, then I believe that the collective leadership of the LSSA and the General Council of the Bar (GCB) are possessed of sufficient wisdom to resolve the sticky issues,’ he said.

The Chief Justice added that the judiciary had decided not to get ‘entangled’ in issues that divided attorneys and advocates ‘to avoid being seen as taking sides’. But, more importantly, he said, ‘we choose not to interfere because we are confident that you are well able to resolve your differences, however difficult and frustrating they may be’.

There is a troubled history to the Chief Justice’s words, with little consensus having been reached by the two professions on the contents of the Bill in the past decade since the draft legislation was first mooted.

Major differences of opinion between the attorneys’ and the advocates’ professions resulted in two versions of the Bill being submitted to the Justice Minister in 2002. One draft was prepared by the task team set up by the Justice Minister, comprising various representatives of the legal profession, excluding task team member the LSSA, which prepared a separate draft of the Bill. This was followed by limited progress on the Bill for years to come.

However, the start of 2012 has hopefully signalled the year for progress on the Bill. Following a meeting between the LSSA and the GCB in January this year, it is clear that the legal profession is much closer to agreement on several issues relating to the Bill. The meeting resulted in a decision to set up a joint technical committee between the two bodies in order to work on a joint position paper on the Bill. It is hoped that this will not only assist in fast-tracking the Bill, but will also provide the groundwork for the Transitional South African Legal Practice Council that will operate for an interim period after the Bill is passed and before the South African Legal Practice Council is established.

Some of the issues on which consensus has been reached include that there should be a unified profession, but not fusion; that there should be two separate branches of the profession (legal practitioners with Fidelity Fund certificates and those who work on a referral basis); and that there should be an overarching national council to deal with policy and set standards for the entire legal profession. In addition, one of the major areas where progress has been made is the GCB’s agreement that the advocates’ profession should be governed by a statutory body.

Although much headway has been made, there are still a number of areas that the two professions differ on, including ministerial representation on the Legal Practice Council, which attorneys support, but advocates do not.

Another hurdle to be overcome is to ensure that attorneys do not dominate advocates on the Legal Practice Council. The chairperson of the GCB, Gerrit Pretorius, has said that there is a ‘deep-seated fear’ among many advocates that advocates will be outvoted on the council. He also said that the GCB was of the view that advocates had no interest in the regulatory affairs of attorneys and vice versa.

It is clear that attorneys’ and advocates’ respective positions on the Bill have moved much closer together, but resolution of the outstanding issues will require compromise from both sides. The legal profession as a whole cannot afford to have the Bill delayed for a further decade. As one of the law society councillors stated at the AGM: ‘Are we prepared to move forward and do away with the legacy that apartheid has bestowed on us?’

Addressing both the attorneys’ and advocates’ professions, Chief Justice Mogoeng ended his discussion on the Bill by stating:

‘My penny’s worth of advice is that you both focus on and allow yourselves to be driven by what would be in the best interests of the nation, rather than on what may be more beneficial to either of the two professions, if you have not already allowed yourselves to be so moved. Prioritise what is of mutual interest and benefit, what would allow both professional bodies to be more effective, and put aside what divides you for future attention.’

This article was first published in De Rebus in 2012 (May) DR 3.