Is the profession ready for the full implementation of the LPA?

September 1st, 2018
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Once the Legal Practice Council (LPC) takes over the regulation of the legal profession later this year – when the Legal Practice Act 28 of 2014 (LPA) is fully implemented – various aspects of legal practice will be affected:

  • The legal profession will no longer regulate itself. The four statutory law societies will be replaced by a single unified statutory LPC, accountable to the Minister of Justice and Constitutional Development. The LPC will regulate the affairs of all legal practitioners, candidate legal practitioners and juristic entities.
  • The LPC will establish nine provincial councils, which will have delegated functions.
  • The regulatory functions of the Advocates’ Bar Councils and Associations (training, examination and disciplinary functions) will be transferred to the LPC.
  • Although the attorneys and advocates who will serve on the LPC and provincial councils will be elected by practising attorneys and advocates, the promotion of the interests of legal practitioners will not be an object of the LPC. The constituent members of the Law Society of South Africa (LSSA) (a voluntary organisation, which will not be abolished by the LPA) have agreed that the LSSA should provisionally continue to exist to carry on with its professional interest functions, including the operations of the Legal Education and Development (LEAD) division, De Rebus, communication and its specialist committees. Practitioners should support the LSSA as their professional interest organisation.
  • Effective and transparent procedures for the resolution of complaints against practitioners will be implemented. Lay persons will sit on disciplinary committees, which will be open to the public and the media and will be subject to the oversight of the Legal Services Ombud. The outcomes of disciplinary proceedings will be published on the LPC’s website.
  • Advocates will be able to accept briefs directly from the public, provided that they have trust accounts.
  • The Attorneys Fidelity Fund will become the Legal Practitioners’ Fidelity Fund, which will have the power to inspect trust practitioners’ books of account, apply for striking and suspension of transgressors and to levy contributions.
  • Maximum fee tariffs are due to be prescribed for litigious and non-litigious work, initially by the Rules Board for Courts of Law and later by the minister in the Regulations.
  • It will be compulsory for attorneys and trust account advocates to provide clients with fee estimate notices when taking instructions.
  • Continued practice development (CPD) and community service will become compulsory.
  • The LPC will prescribe minimum salaries for candidate legal practitioners.
  • Pupils will have the right of appearance similar to that of candidate attorneys and will be able to charge fees.

It is of the utmost importance that all legal practitioners familiarise themselves with the objectives and provisions of the LPA, the Regulations, Rules and Code of Conduct, in order to re-align their practices with the new requirements and opportunities. All these documents, including specimen fee estimate notices, can be accessed under the ‘Legal Practice Act’ tab on the LSSA website at www.LSSA.org.za.

The National Forum on the Legal Profession (NF), established in terms of ch 10 of the LPA as a transitional body to oversee the transformation of the governing structures of the attorneys’ and advocates’ branches of the legal profession into the new LPC, has completed most of its work. The NF and statutory law societies are still attending to practical transitional arrangements to be put in place before the effective date of transfer, which was intended for 31 October. This may be delayed for a month or two, pending the approval of the draft Regulations by Parliament.

Before the existing statutory law societies can be abolished, the new structures must be capable of regulating the legal profession. The transitional arrangements, which are still being finalised, include the transfer of staff, movable and immovable assets, liabilities, finances, databases and regulatory work in progress. The financial and operational (including disciplinary) procedures and systems currently in place at the various law societies have to be standardised and aligned with the new Rules and Regulations.

As soon as the Regulations are promulgated, ch 2 of the LPA can be implemented, in terms of which the establishment of the LPC can begin and the first election of Council members can be conducted.

The election of the ten attorneys and six advocates to serve on the LPC will be conducted under the supervision of the NF. The election of the legal practitioners to serve on the nine provincial councils is due to be conducted by the LPC. In order to participate in the elections, practising attorneys and advocates should ensure that their contact details are updated at their respective provincial law societies, Bar Councils and associations. Unaffiliated advocates should submit their particulars to the Executive Officer of the NF at CMhlungu@justice.gov.za.

In my view, the profession is ready for the full implementation of the Act, provided that all role-players continue to cooperate as they have been doing until now and problems are dealt with in a constructive manner. If the regulations can be promulgated timeously to enable the NF to conduct the election of the first LPC before the NF ceases to exist on 31 October, the transitional arrangements remaining at that stage can be finalised by the LPC in co-operation with the law societies, Bar Councils and associations.

Jan Stemmett is a member of the National Forum on the Legal Profession.

This article was first published in De Rebus in 2018 (September) DR 3.

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