By Nomfundo Manyathi-Jele

The Candidates, a recently formed forum for candidate attorneys, was launched in Johannesburg on 2 October.

The inaugural meeting and launch was addressed by the Deputy Public Protector, advocate Kevin Malunga; former acting Judge in the South Gauteng High Court advocate Herman van Eeden SC and masters scholar in psychology Jennifer van den Dool who spoke about the legal responsibilities and ethical duties towards justice, the role of candidate attorneys in the legal profession and the benefits and choice of positive thinking respectively.

The Candidates was formed by Pierre du Toit (24) with the intention for it to be a representative forum or gathering for young 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).

Mr Du Toit told De Rebus that the forum is intended to be a voice for those who are afraid to speak up, as well as to provide the opportunity to promote and encourage integrity and uprightness. ‘It is ultimately intended to be a “think tank” for young minds equipped with the knowledge to effect change, by sculpting a unified direction – the fruit of our tree will truly be tasteful, multicultural and multidirectional.’

Mr Du Toit stated that The Candidates is intended to 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. ‘I feel that [candidate attorneys] can often, as a result of their unequal bargaining power, be subjected to various forms of abuse, which must be seen not to be tolerated. I believe it is only once these ideals are made known, that those who are too afraid, or worse yet too tailored not to speak, will come forward. If one considers the letters to the editor and the responses thereto published in the February, March and April 2013 editions of De Rebus, it is easy to infer the need for such a gathering,’ he said.

Mr Du Toit said that candidate attorneys will get the opportunity to raise their concerns, experiences and lessons learnt freely and that should any notions raised become collective concerns, it is intended that the forum will file a report to the respective law society to consider, comment on and act on these concerns if the need arises.

Academics, practitioners, retired judges and arbitrators will be invited to address the forum on concerns raised. The Candidates will meet every six weeks or alternatively when the need arises to discuss issues or problems encountered in the profession.

Mr Du Toit said that the forum will also go into townships and, inter alia, educate the community on basic rights such as consumer protection, education, medical treatment and procedurally adherent arrests. ‘We will make it known that candidate attorneys are more involved, more powerful and more valuable than the ratio of our billables in comparison to our salaries’, he said.

In his address Mr Malunga explained the difference between juristic responsibilities and ethical duties. He said that juridical duties are duties that may be coercively enforced by external forces such as civil or criminal laws or other social pressures, while ethical duties are not externally enforced. Instead, the subject, through his or her own reasoning, feelings and motives must compel himself or herself to follow them.

Mr Malunga said that against this background it is clear that ethics are about something more than rules. He said it is a personal commitment to doing what is right, adding: ‘To the legal profession our ethics represent our commitment to do what is right by the law, our clients, our colleagues and by the community.’

Mr Malunga said there were four fundamental ethical principles for lawyers, namely fidelity, honesty, propriety and competency. He explained each principle as follows:

• Fidelity primarily describes the loyalty owed by a lawyer to his or her clients. A lawyer must ensure that the advice and service offered serve the client’s best interests uninfluenced by any other motivation.
• Honesty means telling the truth through both commissions and omissions. The emphasis is on what is said but also on the absence of deceit with an emphasis on what is not said.
• Propriety is derived from the same root as ‘proper’ and relates to how a lawyer conducts himself or herself in relation to the external stakeholders in the administration of justice.
• With regard to competency there is general consensus that there is no obligation on a lawyer to take on every matter that presents itself and instructions should only be accepted by a practitioner confident of his or her competency in regard to the matter presented.

Mr Malunga said that lawyers occupy a critical position in the administration of justice and the rule of law. He said that in most legal systems the role that lawyers play in the proper functioning of civil society are so critical that mere legal qualifications or membership of a professional association are not enough to equip them to practise law.

‘As officers of the court, lawyers have a fundamental duty to assist and promote the administration of justice and to serve the community to that end. That is why the practice of law is unlike any other business and will always be far more than a mere industry’, he said.

Mr Van Eeden spoke on the role of candidate attorneys in the legal profession. He examined it 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.

Mr Van Eeden said that law firms have great expectations for candidate attorneys. He said that candidate attorneys play a very important role in the litigation team and that this role was certainly not something that should be underestimated. He highlighted three major expectations that the litigation team would have of the candidate attorney.

‘The first one is attention to detail,’ he said. ‘If you perform at 80% of your ability, I think that it is just not good enough. In litigation you enter a zero-tolerance zone where only 100% is good enough.’ Mr Van Eeeden said that the biggest reason for the postponement of trials was because the attention to detail was not what it should have been. He advised candidate attorneys to ensure that they equip themself to pay proper attention to detail. ‘Read the rules, read the practice manual and ask for advice’, he said. ‘The expectation of attention to detail includes a number of things. It includes the photostating process, trial bundles, discovery process and pagination. We still work in an era where we use hard copies in court. Do not think yourselves above those issues. You are put in charge of them; rise to the occasion,’ he urged.

Mr Van Eeeden said that the second expectation the litigation team has of candidate attorneys is that they should be the master of the brief. ‘You are typically involved from the beginning. You consult with witnesses, you prepare the discovery and you will assist in the preparation of the trial bundle. All of that qualifies you as the first port of call and if you equip yourself as master of the brief, everyone will turn to you with their questions,’ he said. He added that without that kind of assistance the team was invariably in trouble.

‘The third expectation is the participation of the candidate attorney as a young professional,’ he said. He added that if a candidate attorney has done all of the above, then he or she has equipped himself or herself to participate. ‘I believe that there are some obstacles in your way, you may think that your lack of experience operates as an impediment. I know there sometimes are firms that discourage candidate attorneys from participating; in my experience I have learnt that it is the wrong thing to do,’ he said. He encouraged candidate attorneys to take their rightful place as young professional members of the litigation team. ‘Do not be shy to share your views, have faith in your own ability if you have paid the proper attention to detail and have mastered the brief; you should participate, that is your right,’ he said.

Mr Van Eeden said that he is aware of the fact that candidate attorneys have their own expectations but encouraged them to adopt two further expectations. The first one was experience: ‘Everyone understands that candidate attorneys may lack experience, but that is why you are a candidate attorney and it is the ideal time to learn and ask questions at every opportunity. Do not be afraid to make a mistake, just do not make the same mistake twice,’ he said.

Mr Van Eeden said that the second expectation was that of networking. ‘I believe it is very important to meet people in the profession and your two-year stint as a candidate attorney gives you the ideal opportunity to do just that. It starts with your equals, but it is not limited to members of the profession. It is also important to meet those you interact with on a daily basis. Do not under estimate the importance of court personnel; you will need to familiarise yourself with them and building good relationships with them will help you a lot. The more people you can include in your network, the better,’ he advised.

He concluded by saying that competent candidate attorneys make competent practitioners.

Nomfundo Manyathi-Jele, nomfundo@derebus.org.za

This article was first published in De Rebus in 2013 (Nov) DR 12.