By Nomfundo Manyathi-Jele
During February and March the Law Society of South Africa (LSSA) held information session roadshows across the country. The immediate former Co-chairpersons of the LSSA, Walid Brown and David Bekker, as well as other members of the LSSA Management and Transitional Committees, spoke to practitioners about the changes that the full implementation of the Legal Practice Act 28 of 2014 (LPA) – coming into operation at the end of October this year – will bring.
To date, these sessions have been held in Pretoria; Kempton Park; Potchefstroom; Bloemfontein; Port Elizabeth; Kimberley; Rustenburg; and Pietermaritzburg with a total attendance of some 700 practitioners. Further sessions are planned to be held in the coming months.
Below is a summary of some of the questions raised by practitioners from the floor and discussed at the roadshows.
Interim structure for the LSSA in a transitional period
Practitioners that attended the roadshows indicated their support for the continuation of the LSSA for a three-year transitional period. During the three-year transitional phase from 2018 to 2020, the LSSA’s mission, role and core functions could be adapted to possibly create a professional body to support, promote and represent legal practitioners. This would form a counterweight to the purely regulatory Legal Practice Council (LPC), whose primary function will be to protect the public.
Practitioners present were generally of the view that it would be important to convert the LSSA into a new entity to speak for attorneys and it would be prudent to have regional representation rather than various voluntary organisations.
Practitioners were concerned with the status of the ‘circles’ and whether they will disappear once the provincial law societies do so towards the end of the year. A question was posed: ‘Who would represent the profession at the Portfolio Committee; who would comment on legislation?’
There was a question regarding what practitioners would gain from and what benefits there would be for practitioners who are members of the new professional body. It was explained that the new body would be able to speak on their behalf in a unified voice, and that it would represent the interests of legal practitioners.
Membership
Membership concerns were also raised, with attorneys posing questions on how any new body would monitor this issue. A question was posed as to what would happen if some practitioners pay the membership fees and others do not, with those who do not pay also benefitting from what that body does. ‘What will make the others want to pay if they will receive the same benefits anyway?’
The panel explained that this is why it was important for attorneys to spread the word and to tell their colleagues how important it is to join the new professional association and pay their dues so that the new body would be adequately capacitated. Attorneys are to encourage their colleagues to read the LPA and to attend meetings such as these, as significant numbers would give the new professional body leverage and status. An attorney suggested that it should be made a statutory requirement for attorneys to belong to a representative professional body and to pay a fee to a professional association, since voluntary fees would probably not be feasible.
Disciplinary representation
The panel said that a representative body would be able to assist attorneys with the LPC and the Legal Services Ombud regarding disciplinary issues. It was explained that an independent association would be in a better position to intercede and engage on behalf of members with these bodies rather than individual members. These bodies were more likely to take note of concerns raised by an association than by individual practitioners.
Representation with stakeholders
The panel also explained that as regards the specialist committees and making representations at various stakeholders, a unitary voice has a stronger impact than individual voices of practitioners. The panel added that an independent association should become involved in advocacy and be a prominent voice of the dispossessed in high-level cases.
Both advocates and attorneys?
A question was asked whether the association should represent attorneys only or if advocates should also be represented. The panel indicated that the feeling at this stage was that it should represent attorneys so it could get its house in order and later consider other legal practitioners. Advocates would continue to have their voluntary representative bodies once the LPC comes into operation.
Section 35 of the LPA
There was great concern regarding s 35(7) of the LPA which focuses on fees in respect of legal services and states: ‘(7) When any attorney or an advocate referred to in section 34(2)(b) first receives instructions from a client for the rendering of litigious or non-litigious legal services, oras soon as practically possible thereafter, that attorney or advocate must provide the client with a cost estimate notice, in writing, specifying all particulars relating to the envisaged costs of the legal services.’
A participant indicated that s 35 had been drafted by someone who knew very little about practice. He added that it was impractical and that it cannot be implemented. Another participant questioned why the LSSA does not challenge the constitutionality of s 35. In response, the panel said that the LSSA is not of the view that those aspects cannot be challenged but pointed out that it may not be the correct approach to challenge it. The LSSA has expressed the view that s 35 and s 26(2) of the code of conduct cannot be implemented and is waiting on the Department of Justice and Constitutional Development to come back to it on the changes. (See also LSSA AGM report on p 6 of this issue.)
Another participant wanted to find out if the contingency fee agreement would be affected by s 35, which speaks of a cost estimate in relation to normal fees. This has relevance to contingency fees in that one of the caps on fees refers to double the normal fee. The panel explained that it would not be affected at all as per s 35(12) of the LPA.
A question was asked whether attorneys should relook at their fees from 1 November when the other chapters of the LPA come into operation and it was explained that attorneys should continue with the current fees until new information becomes available.
The LPC elections
There was a question on how the election for the LPC would work. The panel explained that in the first round of elections attorneys would vote for attorney representatives and advocates for advocate representatives.
Fees
Many practitioners inquired what the subscriptions would be to the LPC in order to practise.
The panel indicated that the National Forum on the Legal Profession (NF) had calculated the LPC fees to be between R 3 000 and R 4 000. Attorneys were advised that they would also need to budget to pay for PI insurance, which was being phased in. The Attorneys Fidelity Fund (AFF) currently covers the insurance premium of the Attorneys Insurance Indemnity Fund.
Costs of the LSSA in transition
The LSSA is considering multiple funding streams for a new professional association, such as subscriptions, partnerships, sponsorships etcetera. The LSSA had hoped that government would fund the LPC since it had established it as the regulator, but government disagreed and said it should be funded by the profession. The LSSA has not taken that lying down and is engaging with the AFF. Membership to a future professional association could include government lawyers and corporate lawyers as their interests would also need to be protected.
Existing contracts of articles
A question was posed regarding existing contracts of articles on 1 November when the other chapters of the LPA come into operation. It was explained that there is a transitional committee in place at the NF that is dealing with those aspects, but that everything should continue seamlessly.
Legal education and training
The participants wanted to know whether the LPC would provide affordable and quality training like Legal Education and Development (LEAD) Division of the LSSA does at the moment. The current funding of LEAD by the AFF through s 46(b) was explained. Although the LPC did not have a similar section, the AFF was committed to funding legal education whether through the LPC or outsourced to the LSSA via the LPC (subject to accreditation).
Reserved work
The panel stressed that reserved work had been retained for attorneys (conveyancing and notarial work). It also explained that the LSSA had taken on matters such as the Proxi Smart matter (Proxi Smart Services (Pty) Ltd v the Law Society of South Africa and Others (GP) (unreported case no 74313/16, 16-5-2018) (Matojane J) (Van der Westhuizen J and Strijdom AJ concurring)), in the interest of attorneys and the public. It added that an LSSA committee was looking at amendments to the LPA and that the LSSA would continue to lobby for changes in the interest of the profession.
The LSSA urges all attorneys that have not yet attended any of the roadshows to be on the lookout for one taking place near them so that they can attend and participate in the discussions to ensure that maximum practitioner input is received.
See also –
Nomfundo Manyathi-Jele, Communications Officer, Law Society of South Africa, nomfundom@lssa.org.za
This article was first published in De Rebus in 2018 (July) DR 19.
