CLC Stream B: Legal and judicial profession

June 1st, 2013
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By Kim Hawkey

Who guards the guardians? Regulation of the legal profession

In a session chaired by South African attorney Max Boqwana, the chairperson of the United Kingdom (UK) Bar Standards Board, Baroness Ruth Deech; South African advocate Jeremy Gauntlett SC; and Canadian general counsel Malcolm Mercer spoke on the regulation of the legal profession.

The Canadian experience

Mr Mercer outlined four possible regulators – or selectors of regulators – for the legal profession, namely:

  • Government.
  • The courts.
  • The legal profession.
  • A combination of the above.

He then highlighted the advantages and implications of each of these options.

Government as regulator

Mr Mercer said that if the government was well run, it would follow that regulation would be done in the public interest rather than in the interest of lawyers and that there would be a focus on regulating legal services as opposed to lawyers. However, one risk associated with government regulating the profession related to the control of the profession in the political interest of the government.

Courts as regulator

Mr Mercer said that having the courts regulate the profession lessened the risk of regulation being in the interest of the profession rather than in the public interest. However, there was the possibility of a limited perspective, focusing on litigation rather than legal practice generally. There was also limited institutional regulatory ability, he said. One risk associated with this option was a possible compromising of ‘zealous representation’, as some lawyers may not want to risk offending their regulator.

The legal profession as regulator

Advantages of this option included that the profession had strong expertise and interest, and this would promote professionalism. However, it came with the risk of ‘protectionism’ and regulation in the interest of the profession rather than in the public interest, as the perspective would be that of the profession rather than clients and society.

Canada

Mr Mercer said that regulation was a provincial matter in Canada, with the law societies as regulators in each province.

‘The law societies regulate in the public interest rather than in the interest of the profession. Advancing the interests of the profession is not the role of law societies,’ he said. He added that the role of the Canadian Bar Association was to advance the interests of the profession, with concern for the public interest.

Mr Mercer said that most directors were elected by the profession, while some non-lawyers were appointed by the government. They are responsible for setting regulatory policy and rules, while the staff is responsible for the regulatory operations, including investigating and prosecuting in relation to disciplinary matters, he said. However, the situations in Quebec and Ontario are different.

Mr Mercer discussed several court cases to illustrate challenges posed by administrative agencies, the courts and government, as well as future challenges in Canada.

Challenge by administrative agencies

Mr Mercer said that the United States had ‘substantial regulation’ of lawyers by agencies, such as the Securities and Exchange Commission, before whom lawyers appear, which was not currently the case in Canada. However, Mr Mercer said that this may change and referred to a 2001 case in which the Ontario Court of Appeal rejected the law society’s position that the Ontario Securities Commission had no jurisdiction to reprimand a lawyer for misconduct and that the commission’s action ‘collided’ with the law society’s authority to discipline lawyers and also infringed the constitutional principle of the rule of law.

Challenge from courts

In respect of the second category of challenges, Mr Mercer referred to several decisions relating to client conflict. He noted a January 2013 Supreme Court of Canada appeal in which judgment had been reserved, where the Canadian Bar Association had intervened and argued that the courts should not regulate lawyers in competition with law societies by establishing rules of professional conduct for lawyers rather than applying principles of fiduciary law.

Challenge from government

Mr Mercer said that the third category of challenge was an indirect one in the form of a series of legislation. He said that the Proceeds of Crime (Money Laundering) and Terrorist Financing Act SC 2000 (c17) imposed a duty on lawyers and law firms to report suspicious transactions to a government agency. The Federation of Law Societies of Canada and the Canadian Bar Association responded with litigation, claiming that the reporting regime was unconstitutional, which was upheld by the British Columbia Court of Appeal earlier this year.

In doing so, the court found that the solicitor/client privilege and the independence of the Bar were principles of fundamental justice, which Mr Mercer described as a ‘significant’ finding, although he noted that government may still appeal the decision.

Future challenges

In conclusion, Mr Mercer set out some of the challenges Canada was expected to face in the future. He noted that the country did not experience the same difficulties as some countries in respect of a challenge to self-regulation. He said that there was increasing awareness that the regulation of the profession and of legal services were different matters.

He questioned whether the law societies would recognise that not all legal services were best delivered by lawyers and, if they did, that public interest required a principled determination of which legal services should be provided by lawyers only. It was likely to be in the public interest, he added, to allow non-lawyers to compete with lawyers and to increase competition and innovation.

Mr Mercer noted that there were advantages to having legal services regulated by members of the profession ‘who care deeply about the rule of law’ and the administration of, and access to, justice; although he said that concern for effective competition and innovation was not ‘obviously intrinsic’ to the profession. He said that the Canadian challenge was thus to develop sufficient support for the latter in order to better achieve the former by continued self-regulation.

The UK experience

Baroness Deech began her presentation by stating: ‘One thing that binds the Commonwealth is an understanding of the rule of law, which is extremely important to all of us.’ She added that it was essential to the public interest and the rule of law to have advocates who were independent.

In response to Mr Mercer’s presentation, she said that the profession was currently ‘more under attack’ due to cuts in legal aid and fees and an increase in self-representation than in terms of regulation, adding that self-regulation was ‘outdated’.

Baroness Deech spoke about the UK’s Legal Services Act 2007 (c29) (the Act), under which she operated as chair of the Bar Standards Board, and noted that it bore similarities to South Africa’s Legal Practice Bill (B20 of 2012).

The Act created the board to regulate barristers in England and Wales and oversee the legal approved regulators, the Bar Council and solicitors.

The board is responsible for:

  • Education and training requirements for becoming a barrister.
  • Barristers’ continued development.
  • Setting standards of conduct for barristers.
  • Monitoring the service provided by barristers to assure quality.
  • Handling complaints against barristers and taking disciplinary or other action where appropriate.
  • Making decisions about the ways barristers may work under the Act.

The Act also established an Office of Legal Complaints, with a new ombud serving as a single-entry point for complaints. However, the board continues to deal with professional misconduct, she said. The Act also facilitates new working structures, legal disciplinary practices and alternative business structures.

‘The new Act has added to complications, duplication of regulation and it is expensive [to implement],’ Baroness Deech said.

She added that a ‘super regulator’ was not suitable for a small organisation or profession like the Bar.

She said that there was concern that some would like to see the end of the Bar as a separate profession, but she did not support a fused profession. There was also fear of an increase in the power of government to control the legal profession.

‘A separate advocacy profession is essential to the rule of law,’ she said. ‘We are fighting to save the cab-rank rule and to stop the payment of referral fees. The public should have a free choice. All issues bear in mind the rule of law,’ she added.

Also essential was the need for a separate regulator for the Bar, Baroness Deech said, adding that the Bar Standards Board played an important role in guaranteeing the independence of the profession.

The South African experience

In his address, Mr Gauntlett highlighted features of the Legal Practice Bill (the Bill) that he believed would undermine and weaken South Africa’s legal profession, which in turn would negatively impact on the independence of the judiciary.

‘Without independent courts, there are no rights in the country; without independent lawyers, there are no independent courts,’ he said at the outset.

Mr Gauntlett queried how best to strike a balance between the regulation and the independence of the profession, both of which were contemplated by the Constitution.

He said that the Bill failed to strike this balance.

‘What is now mooted is, effectively, the profession will pass from being an aspect of civil society, vital to South Africa, like the media,’ he said, adding that the profession would thus cease to be a part of civil society and would instead be replaced by an organ of state in the form of a statutory body at the top, with the Justice Minister having the power to appoint members of this body, and regional bodies under this top structure, including what are currently the law societies and Bar councils.

Mr Gauntlett questioned whether such changes to be brought about by the Bill were necessary. He said that, despite the common perception, the profession was not in an unregulated state and had, in fact, been regulated for many years, and had been under both judicial and statutory control.

In addition, he responded to several justifications that had been provided for the Bill. One of these was to promote access to justice; however, he questioned exactly how the Bill would achieve this and for whom. ‘There is nothing in the Bill promoting access to justice,’ he said.

Another justification provided was to increase access to the profession, he said; however, he did not believe that the Bill would provide the solution:

‘The profession has taken a number of steps to promote more women and black people to join the profession. The achievements have been staggering, but are they enough? No. But what will be the talismanic thing in the Bill to achieve this?’

In addition, Mr Gauntlett dismissed the justification that the Bill would result in more affordable legal fees.

‘It will not be cheaper to go to court because this Bill goes through,’ he said. He added that the ‘wedding cake edifice structure’ the Bill proposed for the profession had not been costed and ‘the reality’ was that the cost of implementation would ‘bear down heavily’ on young members of the profession.

He added that, currently, members of the profession, inter alia, sat on committees, funded libraries, provided training and dealt with disciplinary matters voluntarily.

Mr Gauntlett indicated his preference for a regulator similar to that in the UK, with institutional autonomy and which is at ‘arm’s length with those at the Bar’. He said that economic issues should be dealt with separately.

‘It is we who have to do this, not some big brother in Pretoria,’ Mr Gauntlett said in conclusion.


Access to justice: Poverty and legal aid in the Commonwealth

By Mapula Sedutla

A session with a question and answer format considered legal aid in Kenya, South Africa, England and Malaysia. The session was chaired by Professor of Law at the Centre for Socio-Legal Studies at the University of KwaZulu-Natal, director of Street Law South Africa and President of the Commonwealth Legal Education Association, David McQuoid-Mason, who posed questions to Kenyan consultant on Human Rights and Governance, Violet Mavisi; South African Gauteng Judge President Dunstan Mlambo; President of the Law Society of England and Wales, Lucy Scott-Moncrieff; and Malaysian Chief Justice of Sabah and Sarawak, Richard Malanjum.

Below are some of the questions and responses that emerged from the session.

How is legal aid provided in your country?

Responding to the above question, Ms Mavisi said that legal aid in Kenya was primarily ‘provided through faith-based non-governmental organisations’ (NGOs). She added that government had also started a pilot project of providing legal aid. However, she said this pilot project had only been implemented in some areas, such as major cities, and not in the poorer parts of the country, and had it few staff members.

In respect of South Africa, Judge Mlambo noted: ‘South Africa has a functioning legal aid scheme that ensures that people without means are represented.’

He said that this included the right to have an attorney at the state’s expense. He said that Legal Aid South Africa had centres in all nine provinces of the country, with a total of 64 justice centres that employed salaried lawyers. He added that university law clinics and NGOs also formed part of the legal aid system. Legal Aid South Africa is mandated by s 35 of the Constitution and the Legal Aid Act 22 of 1969, he said.

Ms Scott-Moncrieff said that, in the United Kingdom (UK), legal aid had been widely used for the past 60 years due to the application of the means test and its connection to the welfare system. She said that, currently, legal aid was provided for those in the greatest need, and that large law firms also supported legal aid clinics by providing pro bono services.

Due to government cuts in funding, students were also providing legal aid services. In other instances, litigants were advised to deal with matters themselves instead of being part of the legal aid system. The UK also has an immigration adviser system that is funded through philanthropic means, said Ms Scott-Moncrieff.

Justice Malanjum said that in Malaysia the National Legal Aid Foundation was ‘well utilised’ as there was a great need for it by the poor, and NGOs also provided free legal aid. Government has granted the foundation 5 million Malaysian ringgits, which will, among others, be used to retain lawyers at a cheaper rate, he said.

Justice Malanjum added that legal aid involvement could be seen in the urban areas, but not as much in the rural jungle areas.

What is the role of legal aid in your country?

Ms Mavisi said that, among other things, the role of legal aid in Kenya was to disseminate legal awareness information and give advice to the public; it also conducts prison visits. She added that Kenya does not have a public defender organisation and, therefore, the community relies on NGOs and universities to provide legal aid. A ‘huge contributor’ to legal aid in the country are faith-based NGOs that have law clinics in churches, she said. She added that there were also federal government bodies in the country that assisted individuals to represent themselves.

Ms Mavisi added that the Legal Aid Bill, 2012 would establish a formalised legal aid scheme funded by the Ministry of Justice. She added that the current pilot legal aid scheme rendered by government had no budget and was running ‘on the goodwill of the Minister of Justice’. The Bill also seeks to accredit NGOs that provide legal aid, monitor them and ensure that their work is standardised.

Justice Mlambo said that Legal Aid South Africa assisted the public with criminal and civil matters. He added that Legal Aid South Africa had 13 civil legal units and had established a call centre two years ago, which allows the public to phone in and receive legal advice.

Ms Scott-Moncrieff said that in the UK legal aid incorporated civil and criminal matters.

With regard to the question posed, Justice Malanjum said that legal aid covered criminal and civil matters. He said that a mobile court had been introduced to render legal aid to people who live in the jungle. The judges and officials who service the court do so on a voluntary basis, he added.

How is legal aid funded?

Currently, legal aid in Kenya is mainly funded by donations through NGOs. In future, once the Legal Aid Bill is enacted, government will be able to fund legal aid and render ‘much-needed’ access to justice for the poor, said Ms Mavisi.

Justice Mlambo said that Legal Aid South Africa was fully state funded by the treasury through the Justice Department. He said that the scheme used a salaried-attorneys model; ‘their quest is to cover every court in the country and this model enables them to have a presence in every court’.

‘Legal Aid South Africa is accountable to parliament and the Minister of Justice; however, this does not mean it is told what to do; it is functionally independent, Justice Mlambo said.

In terms of who can access legal aid, Justice Mlambo said that Legal Aid South Africa was governed by the Legal Aid Guide, which contained a means test. In terms of the means test, he said that those who have access to legal aid must earn a net monthly salary not exceding R 5 500. He added: ‘There is a category we have termed “the not so poor”, meaning they fail the means test yet they cannot afford legal fees. There is a new policy where that category of people will be given legal aid and asked to contribute what they can.’

Ms Scott-Moncrieff said that the UK spent an equivalent of R 28 billion each year on legal aid. She said this amount would drop to a third in the next two years. She added that pro bono services and volunteer help by students made a smaller contribution to legal aid in the country. Also, she said, there was no constitutional right to legal aid in the UK.

Justice Malanjum said that legal aid was state funded.

What is the public’s perception of the legal aid services offered?

Answering the above question, Ms Mavisi said that an assessment was conducted to gauge how the public perceived the legal aid they received from NGOs. She said that the assessment showed positive results.

‘In future, once the law comes into place, NGOs will be monitored according to the new Act that will ensure that industry standards are kept,’ she said.

Justice Mlambo said that, as part of Legal Aid South Africa’s strategic plan, it consulted with the public to receive comments and feedback.

He said the public had criticised the quality of work rendered by government attorneys. To combat this, he said, Legal Aid South Africa evaluated all judicare practitioners and salaried in-house attorneys each year to ensure quality assurance. He added that Legal Aid South Africa also had an accreditation model for attorneys who perform outsourced work.

‘Legal Aid South Africa supports the appointment of paralegals, as they cover a lot more work at a lesser amount. This also helps in-house attorneys in that their workload remains sustainable,’ said Justice Mlambo.


Perspectives on legal education and vocational training in the Commonwealth

By Mapula Sedutla

Aspects of legal education in South Africa, the United Kingdom (UK) and Scotland were discussed in a session chaired by the dean of commerce, law and management at the University of the Witwatersrand, Professor Nqoso Mahao. The session’s speakers were Professor of Law at the Centre for Socio-Legal Studies at the University of KwaZulu-Natal, director of Street Law South Africa and President of the Commonwealth Legal Education Association, David McQuoid-Mason; UK Secretary-General of the Chartered Institute of Legal Executives, Diane Burleigh OBE; and Scottish Professor Stewart Brymer of the University of Dundee.

Overview of legal education in the Commonwealth

Giving a statistical overview of legal education in the 54 Commonwealth countries, Professor McQuoid-Mason said that university law schools and law faculties in 35 Commonwealth countries offered the LLB or an equivalent degree, while vocational training is offered in 23 countries. Articles of clerkship or internship placements are required in 23 Commonwealth countries, while graduates have to pass the Bar examination in addition to their law degree in 13 countries.

Ms Burleigh said that work-based learning at the Chartered Institute of Legal Executives looked at the legal landscape and its impact in order to determine what form of training was needed in the market, both currently and in the future. She said that there had been debates in the UK on the professional law qualification. She added that the debates had gone as far as questioning if one needed a qualification to be a lawyer.

Professor Brymer said legal practice had evolved and, therefore, ‘so must its teaching’. He added that legal education needed to adapt and embrace new growth areas. However, he said that there should not be change ‘for the sake of change’.

Legal education regulation

Ms Burleigh said that legal education businesses were regulated in the UK and a wide range of business models, as well as alternative business structures, were regulated. She added that the regulatory objectives included protecting and promoting the public interest; supporting the constitutional principle of the rule of law; improving access to justice; protecting and promoting the interests of consumers; and encouraging an independent, strong, diverse and effective legal profession.

Challenges of legal education

Professor McQuoid-Mason said that the South African schooling system was not delivering students who were ready for university: ‘Law students need to be taught how to communicate efficiently, orally and through writing,’ he said, adding that law students must be taught ‘lawyering skills’ at university before they undergo practical legal training.

Adding to the above challenges, Professor McQuoid-Mason said that constraints on legal education and vocational training in developing Commonwealth countries included:

  • Limited spaces available for legal education in state-funded universities.
  • Too many private universities offering law degrees, causing bottlenecks at vocational training schools.
  • Limited places for vocational training, with too many students in vocational training programmes.
  • Outdated curricula.
  • A lack of –

–        effective teaching methods;

–        training in interactive teaching methods;

–        training in e-teaching methods; and

–        skills training for students.

Ms Burleigh said that legal educators should bear in mind that attorneys were ‘products to be sold’ and were at the retail end of the business of law. She added that firms employ attorneys with the skills that enable them to compete in the market currently and in the future. Therefore, attorneys need to have the skills that the law firm requires and also need to develop skills for services the law firm may provide in future.

Adding to the challenges, Professor Brymer said that legal educators needed to have a broader perspective in legal education, while meeting the demands of the legal profession. Legal educators need to ‘produce trainees with commercial perspective and awareness of other areas of business’, he said.

Effective teaching methods

Professor McQuoid-Mason said that, in Nigeria, a class can have as many as 1 500 law students. To address the issue of overcrowding in law classes and to offer students a better chance of understanding study material, he said that examples of effective e-learning methods that could be used were e-tutorials, chat rooms, virtual worlds (computer-based simulated environments), wikis (websites that allow users to add, modify or delete content), blogs and social networks. He said that providing free short courses involving thousands of students in discussion forums was another e-learning method that could be used. The only challenge would be to establish an electronic connection, said Professor McQuoid-Mason.

Curriculum development

According to Professor McQuoid-Mason, law faculties must develop curricula that reflect the rapid changes in the Commonwealth legal landscape by recognising ‘the richness of the Commonwealth jurisprudence’. In addition, faculties should add courses that are relevant to the contemporary legal practice of their specific countries, which are also relevant to lawyers’ interaction with the global village, said Professor McQuoid-Mason.

Perspectives on legal education

Professor Brymer said that, in Scottish universities, the public and the profession had different perspectives on the role legal education should fulfil. In terms of the universities’ perspective, he said:

‘Universities want students to have a broader understanding of legal methods and jurisprudence, while promoting a more rounded graduate and, hopefully, [one] who is more employable in law and elsewhere. However, universities are not a training ground for the profession.’

With regard to the profession’s perspective, he said that the profession required graduates to be proficient in core disciplines. He added that the profession also required graduates who were ready for the challenge of modern business life.

He said that the public’s perspective was that there were too many lawyers in the market.

Conclusion

In closing, Professor McQuoid-Mason said: ‘The production of increasing numbers of law graduates, particularly in the private sector, is putting pressure on vocational training institutions to teach large numbers. The artificial dichotomy between legal theory and legal skills should be addressed by introducing interactive clinical law methods of teaching. Measures should be taken by Commonwealth law faculties and law schools to update their teaching methods by embracing the digital revolution. Curricula in the universities and vocational law schools should be updated to make them relevant to contemporary legal practice at home and abroad.’

Ms Burleigh said an attorney’s core knowledge needs to demonstrate competency in writing and drafting. She added that attorneys also needed to demonstrate the ability to apply values and to have the necessary commercial skills, including networking, managing and leading an organisation.

Finally, Professor Brymer said that the practice of law was about ‘more than making money’. He added: ‘It is essential for attorneys to be aware of social pressure and the many opportunities that exist.’


Junior lawyers: Business as usual – an inconvenient truth

By Kim Hawkey

The challenges younger members of the legal profession face are in some instances shared by their colleagues in other countries, while some are country specific, as was revealed in a session on junior lawyers.

The session, which took a question and answer format, was chaired by South African advocate Steve Budlender. The panel was made up of Ajit Sharma, counsel at the Supreme Court of India; Hannah Kinch, the chairperson of the Young Barristers’ Committee of the Bar Council of England and Wales; and Chigozie Anyanwu, a senior associate in Nigeria.

General challenges

On the major challenges junior lawyers face once they have entered the profession, Mr Budlender asked each panel member to briefly discuss the situation in their country in respect of whether they received enough work to sustain themselves and whether there was sufficient work in different areas for junior lawyers to get adequate exposure. Further, he asked to what extent training was provided to junior lawyers.

Ms Kinch said that the main challenge as a junior lawyer in her jurisdiction was largely dependent on the area of law in which he or she practised.

A particular challenge for those at the publicly funded Bar, Ms Kinch said, was in respect of the fees they were paid: ‘Many students entering the profession are saddled with enormous amounts of debt and, if they are not earning much because fees are constantly being reduced by government, their ability to meet debts and sustain themselves financially is certainly difficult.’

Another challenge was that an increasing number of solicitors were doing advocacy work, often at a level where young barristers would usually be taking on work in the Crown Court. ‘This would previously have been the main diet of many young lawyers,’ she said.

Ms Kinch added that the recent relaxation of the prohibition on taking instructions from lay clients, which now allows direct access to clients, was a positive development for younger attorneys as it provided them with more opportunities.

In terms of training, Ms Kinch said that young lawyers had ‘lots to be pleased about’. She said that continuing professional development (CPD) was a requirement and there were plenty of programmes to support this.

Ms Anyanwu said that the main challenge for young lawyers in Nigeria was that the money they earned was insufficient to sustain them. Further, the ability to attract work was dependent on their location and the specialisation/expertise of the firm for which they worked.

However, she emphasised that younger members of the profession had a duty in respect of their own development.

‘Young lawyers should be proactive and get work on their own for their self-development,’ she said.

In terms of training, Ms Anyanwu said that training opportunities were limited as there was a perception by some that, by providing training, they were training competitors in the profession. She added that this perception was, however, changing.

She added that a young lawyers’ forum had been established with the mandate to deal with the welfare and development of young lawyers.

Mr Sharma said that a large challenge for young lawyers in India was a lack of institutional support. ‘Effectively, a young law graduate would have to approach several lawyers to check where he could be accommodated as a junior lawyer. It is not clear how he should get into the advocates’ chambers he wants to be in, for example,’ he said.

Adding to this, Mr Sharma said that there was a lack of institutional support in terms of what a junior lawyer could expect after entering the profession.

In terms of monetary benefits, he said that there was previously a view that young lawyers ‘should not expect too much’ in terms of earnings if they were getting good training; however, there had been an improvement.

‘We are more outspoken about financial support than we were in past,’ he added.

On the topic of training, Mr Sharma said that this was not institutionalised or consistent in India and there was no mandatory CPD requirement. However, senior lawyers did spend significant time on training their younger counterparts. In particular, when a junior member joined a chamber, he would receive training from seniors in the chamber, adding that lawyers were often identified according to the chamber in which they were trained.

In conclusion on this point, Mr Sharma suggested a possible solution to the unpredictability that law students face in India in terms of where they could start their careers:

‘I suggest that, because there is no predictability for junior lawyers, the state Bar councils should act as intermediaries between advocates and students,’ he said, adding that what was envisaged was that the Bar councils approach senior advocates to ascertain how many junior attorneys they planned to train and if there were any monetary benefits attached to this training, with such information being passed on to students, who could then apply accordingly.

Gender and race challenges

Mr Budlender asked the panel to highlight any challenges in their countries that junior lawyers faced in terms of race and gender. He asked panel members to elaborate on issues related to access to the profession; whether the distribution of work was skewed in terms of race and/or gender; whether there was any bias on the part of judges along these lines; as well as what arrangements were in place in their countries for maternity and paternity leave, and whether parents could easily be integrated back into practice after having children.

Ms Anyanwu said that race was not a barrier to accessing the profession in Nigeria; however, the same could not be said of gender.

Ms Anyanwu added that the situation in terms of gender was improving, as children of both genders now had an equal opportunity to receive education. This had resulted in an increasing number of women being admitted to the legal profession, she said.

‘Gender issues are gradually dissipating and we have more females at the top rank of the legal profession,’ she said.

Ms Anyanwu said that, although paternity leave was not recognised in Nigeria, she supported the notion. She added that maternity leave was provided for and that there was ‘no bias against new parents’.

Mr Sharma said that, similarly, race was not a major issue in India, but gender was – both in law firms and in litigation.

He said that his country had no gender or diversity requirements and that firms ‘by and large hired on merit’.

On gender, Mr Sharma said: ‘Gender is an issue in that the statistics indicate that there are very few senior counsel and judges in India who are female. There is, however, increasing awareness about this.’

Ms Kinch said that in her jurisdiction ‘significant strides’ had been made in terms of gender and race representivity in the profession over the last 20 years. ‘There is more that can be done, but great strides have been made. Gender is not a barrier to entry and neither is race,’ Ms Kinch said.

However, she added that ‘the question becomes more complicated’ in terms of representivity in various practice areas and there was a need to encourage more applications to chambers that do commercial and chancery law, which were ‘traditionally done by white males’.

In terms of gender, Ms Kinch highlighted that an area of concern was that after approximately ten years in practice the number of women practitioners decreased. ‘Retention is an issue being considered for some time now to ensure that the best candidates stay in the profession,’ she said. She added that a recent development supporting this was the establishment of a nursery for barristers and others at the Inns of Court, which allowed parents to ‘balance their child care and professional commitments’.

‘I hope that such developments will help particularly women, but men too, to be able to stay in the profession; otherwise we lose highly trained and skilled people because they have parental responsibilities,’ Ms Kinch concluded on this aspect.

In response to a question from the floor on whether quota systems should be implemented in order to advance minority groups in terms of race and gender, Ms Anyanwu said that she had ‘mixed feelings’ about quota systems, while Ms Kinch was against their implementation and Mr Sharma believed they were ‘absolutely imperative’.

In closing the session, Mr Budlender said that issues related to junior lawyers raised ‘real challenges’ and the legal fraternity needed to come up with proactive measures to address these.


Managing modern law firms: Ensuring transparency and accountability

By Mapula Sedutla

David Barnard, founding partner of law firm Blaqwell Inc in the United States (US), was the main speaker in a session focused on managing modern law firms.

The chairperson of the session was the chief executive officer of South African law firm ENS, Piet Faber; while other speakers were senior partner at Nigerian law firm Prime Solicitors and council member on the Nigerian Bar Association’s section on legal practice, Oluseun Abimbola; and chief executive officer of South African law firm Cliffe Dekker Hofmeyr, Brent Williams.

Evolution of the legal industry

In opening his address, Mr Barnard said: ‘In order to understand the context of small and large law firms, we need to understand what law firm managers are concerned about. We need to ask ourselves: Why do law firms grow and develop? Also, what is the new competition about? There is a dramatic change in the market in which law firms are fighting to be the most competitive.’

Mr Barnard said that modern law firms were ‘palaces’ on which firms’ names appear and which employ hundreds of lawyers who aspire to be partners. He paraphrased a quote by 1991 Nobel Peace Prize winner in Economic Sciences, Ronald Coase, and said:

‘Generally, the distribution of resources in a market is organised by the price mechanism. Organisations such as firms come to exist where the cost of arranging transactions in the market (via the price mechanism) can be reduced by directing activities, instead, within a firm. A firm becomes larger as additional transactions (which could be exchange transactions coordinated through the price mechanism market) are organised by the entrepreneur, and becomes smaller as he abandons the organisation of such transactions.’

He added that it was more economical to bring the services into the control of the organisation than it was to purchase them in the outside market. Therefore, law firms should employ more in-house specialists. He said that, as soon as the reverse happened, law firms would shrink ‘because firms rise and fall according to laws of economy’.

Mr Barnard said that the evolutionary trajectory of modern law firms began as what he termed a ‘cottage industry’. As the law firm becomes richer, it enters the ‘rich get richer phase’ and starts to resemble other law firms at the same stage. This then leads to the ‘differentiated’ phase, which leads to an ‘oligopoly’.

‘The law firms that do not evolve in this manner do not disappear; they just do not become part of the top small number of law firms that are highly paid, which is where money in the law market is concentrated. The firms that do not evolve compete for what little money is left in the law market and do not make the most money,’ said Mr Barnard.

Globalisation of law

Mr Barnard presented a graph to delegates that represented the concentration of profits in United Kingdom (UK) markets in the past 15 years. He said that, in 1996, 60% of profit in the market was concentrated in the top 25 firms, compared to 80% in 2011. He said the graph also showed that the growth in profit of the top 25 law firms was interrelated with the growth of the real gross domestic product of the UK. He said that this was ‘a clear indication of how the market works’.

Mr Barnard said that, in the past, law used to be a local business and attorneys could only practise in their own countries. With the advent of the information age, attorneys can use the internet to apply solutions from one jurisdiction to another. This levelled the playing field, he said, adding that the law was moving from a local to a global market.

He added that the global landscape had a ‘huge disadvantage’ for law firms still at the cottage stage, as the oligopolies that drove the initial stage of law globalisation had dominated the international law cross-border landscape.

Mr Barnard said that 33 of the top 50 global law firms were situated in the US while 11 were in the UK. He added that Chinese law firms were making inroads in the law market and were emerging as the new ‘super power’ and rival of firms in the US and the UK.

He advised attorneys to ensure that they had good networking skills, as he believed the global market could be conquered through referral mechanisms.

Options for local firms

In view of globalisation and its effects on domestic law firms, Mr Barnard said that, in his view, local firms had three options:

  • Opt out of cross-border work:

Attorneys need to believe that there is sufficient domestic work available to sustain their firms. The quality of work produced by the firm should be sufficient and lucrative enough to attract and retain the best talent. Importantly, the work should sustain the firm beyond a single generation.

  • Become a national champion:

Attorneys need to believe that they possess the expertise and services to compete against global firms and that they can attract high quality work to generate value and retain talent. Also, attorneys need to believe that they can sustain the fabric of the firm while doing what is necessary to compete.

  • Join a global network:

Firms that select this path can either join a referral network or an exclusive network with no shared profit pool, or they can integrate fully with a single global pool.

Challenges facing law firms

Mr Barnard said firms that are part of the oligopoly needed to constantly regenerate to continue to attract the best clients and the best talent. They need to find new avenues for growth because they need to replace their engines for growth. He added that they also needed to identify existing services that could be obtained more cheaply in the market. Other firms needed to identify a niche market that would last and sustain their firms, he said.

What all law firms need to do

Mr Barnard said that attorneys practising in the private sector needed to be transparent with their clients. He added that, to empower themselves, attorneys needed to be aware of what was going on in their firms, as well as their strengths and their vulnerabilities.

He said that firms needed to set goals, while assessing the firm’s current market position and tracking the progress of their competitors. Firms should also have a closer look at the advantages the firm has in order to leverage the bridge between their current position and the goals they wish to achieve, said Mr Barnard.

Mr Abimbola said that attorneys needed to identify management models that could be adopted to best suit their firms. He added that all attorneys should benefit from the volume of legal work that was available. He said that attorneys needed to formulate a strategy to enable them to ‘chase’ work because, if they do not know that the work exists or know where it is, they will not benefit from it.

He added that, with visionary management and a focused strategy, small law firms could achieve great profitability and sustain it. He added that small law firms had an advantage in that they were able to have better client management and maintain client relationships. Mr Abimbola said that lawyers should always keep in mind that a good lawyer does not necessarily make a good manager; sometimes it is better for firms to employ professional managers. A law firm could also outsource management. ‘Lack of proper firm management often causes partners to slide further to being administrators. Partners should be more concerned with strategic issues on management and with driving the business forward,’ said Mr Abimbola.

Failure to trust other attorneys in a firm had led to many firms not performing succession planning, which could be detrimental to the future of any law firm, said Mr Abimbola.

Law firm size

In respect of large firms, Mr Abimbola said: ‘Large firms have a robust capacity to deploy resources for large transactions; they domicile a wider skills set in the firm and generally overwhelm with their market presence. However, they compete over a broader practice area and they need to have an ability to raise substantial financing for operations.’

On mergers, Mr Williams said that the firms Cliffe Dekker and Hofmeyr Herbstein & Gihwala had merged as ‘it made more sense for the two firms to work together as one firm and remain sustainable’. Both firms employed in excesss of 100 people, he said, adding: ‘This enables us to attract lager clients and have better sustainability and profitability.’

Mr Williams said that smaller firms do not need to attract big clients, but medium firms compete with big firms and struggle to attract clients. ‘The real pressure is in the middle of the market, ’ he said.


Judicial appointments

By Kim Hawkey

South African attorney and member of the Judicial Service Commission (JSC), CP Fourie, chaired a panel discussion on judicial appointments. The panel was made up of Ugandan Chief Justice Benjamin Odoki; Dr Karen Brewer, the Secretary-General of the Commonwealth Magistrates’ and Judges’ Association; and Krish Govender, former JSC commissioner, outgoing co-chairperson of the Law Society of South Africa and KwaZulu-Natal state attorney.

In opening the session, Mr Fourie spoke about the ‘natural tension’ between the executive and the judiciary, noting that the absence of this should ‘start setting off the alarm bells’, as the tension was an indication of an independent judiciary.

Mr Fourie said that the most important phase in ensuring an independent judiciary was the appointment process of judicial officers. He referred to the Latimer House Principles on the Three Branches of Government, which require an independent, impartial, honest and competent judiciary, integral to upholding the rule of law, engendering public confidence and dispensing justice.

‘To secure these aims, judicial appointments should be on clearly defined processes,’ Mr Fourie said, adding that there should be equality of opportunity for those eligible for appointment, as well as provision for appointment on merit, the progressive attainment of gender equity and the removal of discrimination.

The Latimer House Principles

Dr Brewer spoke on the need for independent functioning appointment systems for judicial officers. In doing so, she spoke about key elements for an independent and transparent system of judicial appointments.

Dr Brewer started her presentation with the words: ‘We live in a world where respect for the separation of powers is slowly being eroded and respect for the independence of the judiciary is suffering.’

She said that the Latimer House Principles called for the relevant institutions to exercise responsibility and restraint in the exercise of power in their respective constitutional sphere, so as not to encroach on the legitimate discharge of the constitutional functions of the other institutions. She noted that the principles set out the overall criteria for judicial selection committees and left the detail up to the individual committees.

In respect of the judiciary, she said that the appointment process was a ‘key element’ and that there was an increasing number of instances of this process being used to exert control over the judiciary. This could, for example, take the form of the unconstitutional removal of judges from posts and/or the deliberate appointment or promotion of judges through improper means.

Dr Brewer said that, although most modern constitutions contained provisions related to judicial appointments, they were not consistent.

‘Currently, there is no harmonised view of what a judicial appointment process should be,’ she said.

Dr Brewer referred to a project that was scrutinising judicial appointments in the Commonwealth, in which she was involved, and noted that there had been debate about the best method for making such appointments. She added that not all Commonwealth countries were in favour of an institutionalised system.

Dr Brewer said that the principles provided that an appropriate independent process should be in place for judicial appointments. Where no independent system exists, appointments should be made by a judicial services commission (established by the constitution or by statute) or by an appropriate officer of state acting on the recommendation of such a commission.

Dr Brewer emphasised that it was important that judicial appointments were made on ‘clearly defined criteria’ and that the process provided for equality of opportunity for all, merit, gender equity and the removal of discrimination. She said that an appeal process should also be provided for in all appointments.

Further, Dr Brewer said that the clearly defined judicial appointment system should be provided for in a statutory provision. She added that most constitutional provisions in this regard related to senior judicial appointments, but should apply to all judicial appointments, including magistrates, which was often not the case.

‘A holistic approach is recommended. Although the appointment of the Chief Justice may require a special procedure,’ Dr Brewer added.

In terms of the body responsible for making judicial appointments, Dr Brewer said that the composition of judicial selection committees varied among the Commonwealth countries, and that transparency was key in such institutions.

‘It is important to have a transparent system for the appointment onto the panel of decision-makers who decide who should be judicial officers,’ she said.

In addition, the executive should have no role in the committee’s resources, and the committee should have an independent secretariat.

She added that, ideally, the executive and parliament should have no role in selection committees for judicial officers, which should rather include lay persons, law teachers and representatives of the legal profession. It had been proposed that the latter be nominated via the relevant law society and/or Bar council to ensure the ‘best representation’, Dr Brewer said.

‘Each commissioner is appointed in his or her own right and his or her loyalties do not lie outside,’ she added.

In conclusion, Dr Brewer said: ‘It is impossible to have a one-size-fits-all approach for judicial appointments in the Commonwealth. It is high time governments recognised that democracy can only be achieved if the right people are selected for the jobs. The Latimer House Principles are not aspirational, but they are the basic requirements for membership of this club. Judicial independence is the right of every citizen, [exercised] by a judge independently selected.’

Judicial appointments in the Commonwealth

Chief Justice Odoki reflected on judicial appointments in the Commonwealth in general and also spoke about the process for such appointments in his home country.

Chief Justice Odoki said that the judiciary was ‘an organ to be reckoned with’ and it held the power to ensure that the other two branches of government were in check and peoples’ rights were protected.

He said that at the heart of an independent, accountable judiciary was the process of appointing judges and magistrates.

‘The independence of the judiciary is promoted by ensuring judges can be relied on to impart impartial decisions,’ he added.

The Chief Justice said that Uganda had reformed its processes to make the appointment of judicial officers more transparent and equitable. ‘The process is working well. … I think we have done a good job,’ he said.

Chief Justice Odoki said that previously the country’s Judicial Service Commission (JSC) had the Chief Justice acting as ‘investigator, prosecutor and judge’; however, the amended composition of the JSC now reflected an independent commission, which was not headed by the Chief Justice or his deputy.

He said that there were currently three judges on the commission and, while he believed this number should be higher, there were also two lawyers on the commission, which was a composition he could ‘live with’.

The Chief Justice said that the commission was independent and its functions included recommending judicial candidates for appointment, disciplinary matters and the terms and conditions for judges.

In conclusion, the Chief Justice highlighted a dilemma the commission faced in the form of how to balance merit with issues of diversity in respect of religion and gender, for example, as the Ugandan constitution requires that all institutions should reflect the national character of the country.

No crisis in the South African JSC

Mr Govender began his presentation by highlighting the important role of the judiciary, which necessitated appropriate protection.

‘Simply put, in my opinion, the judiciary is often the last line of defence between a turn to anarchy, civil war or military rule. The judiciary should be given its proper place; it needs to be protected, promoted and treated with dignity at every level of society,’ he said.

Mr Govender said that a credible judiciary depended on a number of factors, including having ‘good judges’ and an appointment process that was respected and understood.

He said that in South Africa it was necessary to review ‘the whole process of appointing judges’.

‘The dream of the rainbow nation has to be sustained; we need to be progressive, be revolutionaries, and look at our Constitution and see whether some of the constitutional provisions need to be further addressed,’ he said.

Mr Govender referred to s 174 of the South African Constitution, which he said ‘essentially’ gave the country’s President the power to appoint the Chief Justice, Deputy Chief Justice and the President and Deputy President of the Supreme Court of Appeal, after consultation with the JSC.

‘A lot of controversy flows from these key appointments and Constitutional Court appointments,’ Mr Govender said, noting that the President was required by the Constitution to appoint a Constitutional Court judge from a list containing a minimum of four names prepared by the JSC.

He said that the Constitution provided for the President to appoint all other judges on the advice of the JSC and there had never been an instance where such a recommendation by the JSC had not been followed.

However, Mr Govender said that s 174 of the Constitution was ‘a problem’ and the ‘President should not be in a position to make decisions that should not be in the preserve of the President’.

In response to a question from the floor about what lessons could be learnt from South Africa in relation to ‘the crisis in the JSC’ as indicated in recent media reports, Mr Govender said that there was no such crisis.

He said that South Africa had a ‘young and restless democracy’, and citizens should not ‘be afraid to confront issues. ‘It is about recognising that the revolutionary spirit that took us to 1994 will be with us for a while. We should be able to ask questions and challenge institutions and old legal ideas and the manner the legal profession projects itself,’ he said, adding that ‘the legal profession and law are both conservative’.

Mr Govender said that since becoming a democracy, the country had ‘moved a lot and fast’, but that there was ‘a sense of impatience’, including in respect of ‘a few people not getting to where people should be at the top of the pile in judicial leadership’.

‘The JSC is not in crisis. There is political tension in this country; everyone has an axe to grind and the media are very powerful and a very important aspect of our democracy. They are a very important component, even if we do not agree with what they are reporting on.’

In conclusion, Mr Govender said: ‘The JSC has been subjected to many difficulties because the people appointed to the JSC are part of this restless, vibrant democracy. It is subject to all of these tensions.

This article was first published in De Rebus in 2013 (June) DR 28.

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