The role of candidate attorneys in the legal profession

July 1st, 2014
x
Bookmark

By Clement Marumoagae

The purpose of this article is to acknowledge the launch, in October last year, of a forum for candidate attorneys, ‘The Candidates’ (the forum). The formation of this forum is a positive step towards the sustainability and growth of the attorneys’ profession. This forum is competent to engage in the debate regarding the quality of the LLB degree. However, the forum should be structured in such a way that it does not become elitist, but is an inclusive body with adequate representation of candidate attorneys from public interest law firms, small and medium private law firms and commercial law firms. I specifically wish to address comments made by the guest speaker at the launch of the forum (2013 (Nov) DR 12). I will be arguing that those comments may perpetuate the stereotype that certain law firms employ candidate attorneys to advance their administrative duties without real effort to provide them with hands-on practical legal training to become well-rounded legal practitioners.

The Candidates

The forum was launched in Johannesburg on 2 October 2013. The objectives of this forum have been reported, among others, to:

  • be a representative forum for candidate attorneys who want to be actively involved in the profession and not just be mere professional ‘go-fers’ (go fetch this and go fetch that);
  • be a voice for those who are afraid to speak up, as well as provide the opportunity to promote and encourage integrity and uprightness;
  • be a ‘think tank’ for young minds equipped with the knowledge to effect change, by sculpting a unified direction;
  • provide hope and comfort that there are other candidate attorneys out there who are struggling too and that it is acceptable to ask for help;
  • provide a platform for candidate attorneys where they can raise their concerns, experiences and lessons learnt freely, so that the forum can file a report to the respective law society to consider, comment on and act on these concerns if the need arises; and
  • go into townships and educate the community on basic rights such as consumer protection, education, medical treatment and procedurally adherent arrests (DR op cit).

The legal fraternity at large is in a transitional period and debates regarding the weight and value of the current LLB degree are intensifying. As academics and practitioners are concerned about the LLB curriculum and its efficiency in producing competent candidates worthy to practise law, the forum will be well-suited to engage in this debate. Partners and directors of influential law firms have continually complained about graduates who leave universities with seemingly good grades but lack the substantive knowledge necessary to practise law. Some went as far as to point a finger at university law schools for failing to produce ‘ready-made law graduates’. Nonetheless, ‘the law society accepts that the LLB graduate will not emerge from university as a “ready-made” practitioner. However, it believes that all law graduates should be able to demonstrate an acceptable level of “generic” skills for application in all subject areas’ (D Hawker ‘Law degree crisis: five-year degree proposed’ ENCA 31-5-2013 (www.enca.com/south-africa/law-degree-crisis, accessed 2-6-2014)). There has been a concern about the quality of skills the LLB degree provides to students (Franny Rabkin ‘Quality law graduates preferred to large numbers of ill-equipped graduates’ (www.ru.ac.za/latestnews/name,102969,en.html, accessed 2-6-2014). It has been argued ‘that there is a need to address issues of equality, particularly at LLB level, and to develop the higher-education system in order to produce knowledgeable, skilled and value-driven law students and professionals’ (‘Report on LLB Summit: Legal Education in a Crisis?’ 29-5-2013 held at Johannesburg (www.lssa.org.za, accessed 2-6-2014)).

Bridging the gap between theory learnt at university and practice, will continue to be one of the most spoken about issues for years to come. As such, the creation of a forum where candidate attorneys are able to meet and share their experiences with regard to the training they receive from their respective law firms could not have come at a better time. Both academics and legal practitioners have adopted a paternalistic approach to the debate regarding the efficiency of the LLB degree by not adequately engaging law students and graduates who are entering the legal profession. If indeed the LLB curriculum has a problem, such a problem cannot be fixed without proper engagement with the main stakeholders thereto, namely students. It is against this background that I believe the forum will play a pivotal role in providing a real platform for law graduates who are pursuing the attorneys’ profession to engage issues that concern them. Neither the legal profession nor academia is willing to take the blame for the so called LLB crisis. Perhaps candidate attorneys, through this forum, can assist in pointing out where the problem really lies so that – if there is a problem at all – a solution can be found.

Furthermore, with reports compiled from the candidate attorneys’ deliberations, law firms could develop a better understanding of their role as far as bridging the gap between theory and practice is concerned, which is a moral legal duty if we are concerned with the standard and quality of the legal profession.

Even though the forum is a welcomed positive step that can yield substantive results, one needs to caution against this forum being used as a gathering of elites from major law firms, thereby effectively excluding candidate attorneys at public interest law firms and small private firms. For this forum to have a dignified reputation – as an institutional voice of all candidate attorneys in South Africa – it should be as broadly representative as possible. It is imperative that the agenda of the forum should be broad enough to discuss the varied challenges experienced by candidate attorneys at their diverse workplaces. Although the forum should not be turned into a trade union for candidate attorneys, it must nonetheless position itself to engage the profession through the law societies regarding issues of concern relating to candidate attorneys.

Candidate attorneys throughout South Africa are encouraged to affiliate themselves to the forum. They should be able to discuss challenges they are experiencing with regard to the legal training they are receiving – or not receiving – from their firms. Through this forum, one hopes that candidate attorneys will have the opportunity to discuss broad themes relating to practical training issues in order to compare the level and quality of legal training they are receiving from their principals including:

  • how to consult properly with a client;
  • an adequate way of recording client’s instructions;
  • management of client’s expectations;
  • research techniques;
  • file arrangement and management;
  • briefing counsel;
  • how to conduct a trial properly;
  • court etiquette;
  • how to correspond properly with opponents;
  • ethics required in legal practice;
  • how to run a practice effectively;
  • how to bill a client properly; and
  • preparing for the admission examination.

In order for candidate attorneys to have adequate time to engage and share their views, it might be advisable to have fewer prominent speakers when the forum convenes. If this forum is truly for candidate attorneys, then candidate attorneys should spend more time discussing things among themselves as opposed to listening to keynote speakers who might not understand the working conditions that some candidate attorneys may be subjected to. Furthermore, those who are invited to speak should add value to the discussion, rather than give well-structured abstract views on the circumstances of candidate attorneys that are not founded on any practical basis.

At the launch of the forum, the speaker was reported to have spoken about the role of candidate attorneys in the legal profession. He is reported to have examined their role from two angles: ‘First, what firms expect from candidate attorneys and, secondly, what a candidate attorney expects from himself or herself and what he or she wants to get out of it’ (DR op cit). He is reported to have advised candidate attorneys to ensure that they equip themselves to pay attention to proper detail. I believe that this is sound advice that candidate attorneys should take to heart and ensure that they take their articles seriously in order to maximise their learning. Attention to detail should involve the proper taking of clients’ statements, interest based discussions with principals about the applicable law, keenness to learn, capacity to improve all the time, minimising silly mistakes and continual reading and studying current law in all the areas of law. I do not agree with the speaker’s view that the expectation of attention to detail includes the photocopying process, trial bundles, discovery process and pagination (DR op cit).

In my view, even though administrative work is part of the candidate attorney’s learning process, it should nonetheless not be seen as the most decisive part of it. This perpetuates a stereotype that there are law firms that are not particularly interested in adequately training candidate attorneys, but rather use them as part of their administration work system. Candidate attorneys at these law firms become masters of photocopying machines. They run around serving and collecting documents without any real practical legal training. Further, these candidate attorneys are employed to boost these law firms’ BEE ratings. However, I agree fully with him that the period of articles is an ideal time for candidate attorneys to learn and to ask questions at every opportunity, and they should not be afraid to make mistakes. However, they should avoid making the same mistake twice. Probably, the most important advice the speaker gave at the launch was that candidate attorneys should start networking, interacting with a variety of people and building good relationships.

Finally, in order for candidate attorneys to become efficient legal practitioners, law firms have a great responsibility to create a conducive learning environment that will allow for the smooth transferring of skills from principals to candidate attorneys. It is important, therefore, that when such an environment is created, candidate attorneys take full advantage of it and learn to the best of their abilities.

Conclusion

A forum for candidate attorneys can play a leading role in safeguarding the interests of candidate attorneys in South Africa. It should be used to address concerns about the inadequate training of candidate attorneys by some law firms which may not be providing them with the practical training they need. The efficient training of candidate attorneys is a legal necessity for the survival of the attorneys’ profession. As such, the legal profession and university law schools need to join hands to ensure that measures are put in place to capacitate new graduates to deal with the demands of the profession.

Clement Marumoagae LLB LLM (Wits) LLM (NWU) Diploma in Insolvency (UP) is an attorney at Marumoagae Attorneys in Itsoseng.

This article was first published in De Rebus in 2014 (July) DR 54.