The Legal Practice Bill: What will change for attorneys?

July 1st, 2014
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To many attorneys, the Legal Practice Bill – which at the time of writing was still awaiting assent by the President – has been the subject of political and academic debate for a number of years. These discussions do not appear to have filtered down to the average attorney, whose focus has been on running his or her practice on the basis that not much will change. Yes, there will be one national regulatory body for all legal practitioners – attorneys, advocates who take referral instructions, advocates who will take instructions direct from the public and candidate legal practitioners – and there will be a Legal Services Ombud to whom members of the public can turn when they are dissatisfied with the decisions made by the Legal Practice Council.

The focus of the Council will be on the public interest and greater transparency, with the inclusion of non-legal practitioners as Council members. In addition, legal practitioners will elect attorney and advocate representatives to the Council.

As regards practitioners themselves, the Bill provides that any person who has been admitted by the High Court and authorised to be enrolled as an advocate, attorney, conveyancer or notary when the Act comes into effect, will be regarded as having been unconditionally admitted to practice and authorised to be enrolled as a legal practitioner under the new legislation.

Attorneys are urged to ensure that their details and contact information are correct and kept up to date at their provincial law societies to ensure that the correct information is transferred to the new Council’s national database.

What else will change?

Legal practitioners will be able to practise and have right of appearance in any court across the country, with attorneys wishing to appear in the High Court, Supreme Court of Appeal or Constitutional Court having to comply with certain requirements.

A legal practitioner who has been enrolled as an attorney or advocate may convert his or her enrolment from attorney to advocate and vice versa. The aim of this provision is to provide for an easier mechanism for legal practitioners to change direction in their careers within the profession. A similar conversion of enrolment is provided for in the case of advocates who practise with Fidelity Fund certificates and who wish to practise without a Fidelity Fund certificate and vice versa.

Legal practitioners – like other professionals – will have to do compulsory post-qualification continuing professional development.

The concept of community service has been introduced and will be refined in the rules to be drafted by the transitional National Forum. This can include a minimum period of recurring service by legal practitioners on which continued enrolment is dependent – or, simply put, mandatory pro bono.

The Council will draw up a code of conduct which, in support of the principle of transparency, will first be published in the Government Gazette for public comment before being issued to legal practitioners.

Similarly, in the interests of transparency, disciplinary committees will include lay persons. Proceedings will be open to the public (and by inference, the media) and the particulars of all disciplinary hearings will be published on the Council’s website.

The Ombud can monitor the investigation of complaints, the conduct of disciplinary committees and the disciplinary appeal tribunal. The Bill notes that the clauses regarding disciplinary matters are transformational as the current regime does not provide for the oversight of disciplinary matters relating to legal practitioners by an independent body, except through a court process. The clauses relating to the oversight role of the Ombud provide for greater accountability on the part of the legal profession to the public.

And then there is clause 35, which changes the landscape as regards legal fees. The intentions of the Justice Portfolio Committee in including the clause close to the end of its nine-month deliberations on the Bill, were noble and driven by public dissatisfaction with what is perceived as excessive fees charged by legal practitioners. Clause 35 caught the profession off guard. It was left with no time or scope for comment or input.

Briefly, clause 35 provides that, until an investigation by the South African Law Reform Commission has been completed during the two-year transitional period, fees for legal services (litigious and non-litigious) must be in accordance with tariffs determined by the Rules Board for Courts of Law. The Rules Board must take into account the importance, significance and complexity of the service rendered, the seniority and experience of the legal practitioner concerned, the volume of work done and the financial implications of the matter must be taken into account when the fees are determined. Among other requirements, a legal practitioner, when first receiving instructions from a client, will have to provide the client with information regarding the envisaged costs of the legal services in question and the processes involved.

Exactly how this will work in practice is unclear. Practitioners have indicated that the system borders on the draconian and goes against the concept of a free-market economy. Also, the question has been raised as to how the Rules Board plans to accommodate the vastly different cost structures of small platteland (rural) firms as compared to the resource-hungry large city firms. The Law Society of South Africa (LSSA) is urged to engage with the Rules Board as a matter of urgency to seek clarity on the way forward.

As with any Curate’s Egg – some parts of the Bill can be interpreted as good, and others as less welcome, but in the eyes of many, necessary. However, the devil, as always, will be in the detail of the rules and regulations to be negotiated and drafted at the transitional National Forum. This is where some ‘bad eggs’ will have to be broken, some ‘good eggs’ preserved, ‘new eggs’ hatched and nurtured, and communications unscrambled to ensure the best possible outcome for the public and the profession.

A great responsibility rests on the shoulders of the eight attorneys nominated by the LSSA to the National Forum as the ‘negotiating team’ on behalf of the attorneys’ profession.

What do you think will be the impact of the Legal Practice Bill on you as a practioner? Tell us:

derebus@derebus.org.za

You can access the Bill on www.LSSA.org.za

This article was first published in De Rebus in 2014 (July) DR 3.

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