LSSA AGM: Envisioning the future of the legal profession

June 1st, 2024
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This second article of the Law Society of South Africa’s (LSSA) Annual Conference and Annual General Meeting (AGM), held on 19 and 20 April 2024, focuses on the panel discussions on the future of legal education and unity of the profession.

In the discussion on the future of legal education, University of Zululand Professor Desan Iyer, said some may ask if law students are there to learn the law or become legal practitioners. He added one may further ask if the traditional model is well aligned to the world today? And whether the profession has an idea of what the new model is?

He said that according to the Director at the Centre on the Legal Profession at Harvard Law School, David Wilkins, ‘we need to be clearer about the purposes of legal education and how those purposes have changed, both at the macro and the micro levels, as society, the world, and the profession of law have changed.’

University of Zululand Professor Desan Iyer spoke about the future of legal education at the Law Society of South Africa Annual General Meeting in KwaZulu-Natal.

Prof Iyer said that millennials want to feel that their work is meaningful and that it is contributing to something that is going to make the world better in some way, and that is the challenge for law. He added that the future of legal education, which some may have already witnessed, is being shaped by several factors, including technological advancements, the need for transformation and decolonisation, which is extremely important, and in alignment with the country’s constitutional imperatives. He pointed out that we hear more and more that we need to produce new age lawyers, that gone are the days where writing and speaking skills are sufficient to practice effectively.

Prof Iyer said a new age lawyer refers to a modern legal professional who embraces technological advancements, innovative practices, and progressive values to provide more efficient, accessible and client centred legal services. He added that this concept reflects the evolving nature of the legal profession in response to factors, such as globalisation, digital transformation, and changing client expectations. He pointed out that the key characteristics of a new age lawyer obviously would include technological proficiency. And legal practitioners must be adept at utilising technology in their practice, including legal research. That they must leverage technology to improve efficiency, accuracy, and accessibility.

Prof Iyer said that problem solving and critical thinking skills for the new age legal practitioner should possess strong analytical and problem solving skills to tackle complex legal issues and develop creative solutions for clients, there must be an entrepreneur mindset because lawyers need to embrace new and innovative ways of delivering legal services, such as virtual law firms, alternative fee arrangements and legal process outsourcing. He added that they should adopt a client centred approach where new age lawyers need to prioritise the clients’ needs and satisfaction by fostering open communication, providing transparent billing practices and offering tailored legal solutions in line with the Legal Practice Act 28 of 2014, they need to focus on building strong collaborative relationships with their clients.

University of KwaZulu-Natal lecturer, Devarasi Bellengere, focused her presentation on looking at the advent of technology, its impact on the profession and teaching methodology and specifically on how the university hopes to alleviate some of the problems and issues it has had by focusing on items such as curriculum development. She said that even before COVID-19 the law school business model, pedagogy, culture, faculty composition, marketplace detachment, poor student outcomes and ever escalating costs and student debt had drawn withering criticism. She pointed out that the pandemic had the effect of elevating our law schools’ challenges and accelerating their reckoning.

Ms Bellengere said that the law schools have staunchly until that point, resisted online learning until the COVID-19 pandemic rendered it necessary and the technology enabled a shift from the classroom to online learning, which occurred with such astonishing speed and was so seamless that the transition exposed technologies latent potential to support new models for delivering and consuming legal education and training. She added that law student engagement was most severely impacted by the COVID-19 related challenges of the years 2020 to 2022. She said, in addition to the intangible losses, COVID-19 also deepened ongoing disparities, and equities in legal education, as it did in society more generally, as student populations that were especially vulnerable pre-pandemic faced even greater challenges over the next few years.

Ms Bellengere added that with the advent of artificial intelligence (AI), a host of ethical implications are to be considered, especially as future legal practitioners, governments, and private sectors continue to delegate responsibilities and decision-making processes to automated systems under the assumption that it is neutral or that it is science based and therefore accurate. However, she said these technologies are vulnerable to discrimination, bias, and error. AI can replicate the biases of the individual who designed it or biases within its selected data, which can magnify patterns of discrimination that exist in society.

Ms Bellengere pointed out that given the impact of AI on justice and equality across all fields of law, AI should be addressed as an integrated manner in the law school curricula. The integration of the study of AI throughout the curriculum will prepare law students to tackle various challenges, which they are sure to meet in an AI driven world. There is general consensus that universities do not adequately prepare students for evolving technological realities, and the stagnant nature of legal education is often attributed to the legal profession being self-regulated, and that changes only occur when outside forces require them to do so.

Ms Bellengere added that there is need to emphasise that AI is a complementary and augmentation tool, not a replacement for human insight and due diligence.

‘We starting to look at things like online research tools, virtual courtrooms, and the fact that the students do need to be familiar with technological tools that shape their particular landscape. Many of our law schools are increasingly offering courses such as cyber law, law of technology, the law of the Internet and so on. It is a start, and it ensures that our graduates are in some way tech savvy and ready to leverage innovations in their legal careers’, Ms Bellengere added.

Fusion

During the discussion about the unity of the profession, the President of the Black Lawyers Association, Nkosana Francois Mvundlela, said the intention of the Legal Practice Council (LPC) was to assist in achieving fusion of the legal profession, integrating aspects of advocacy with the attorney’s role, and determining if we can produce lawyers who are fit for purpose from all perspectives. He said the question one should ask is whether this goal has been achieved in the past five or six years, or if the legal profession is heading in the right direction to achieve it?

The President of the Black Lawyers Association, Nkosana Francois Mvundlela, said the intention of the Legal Practice Council (LPC) was to assist in achieving fusion of the legal profession.

‘If we are indeed moving towards fusion, what steps should we take in order to effect change, and move towards that fusion? Maybe the question is, is it working? Is it happening? Does the profession need it?

From where we sit, do we even think that the profession actually espouses a situation in which the profession itself should be fused? Are we as lawyers not actually still perpetuating a scenario where we still find comfort that there are attorneys and advocates, and to what extent do we think that they must engage in similar activities in order to suggest that there is movement towards this. Are we even willing to do away with the title “attorney” and the title “advocate”. To what extent is the perception of the public going to assist us in reconstructing the image of lawyering as a lawyer, among ourselves and the public at large?’ Mr Mvundlela said.

He added that every time one talks about an advocate, somebody talks about a senior legal practitioner of some kind. Even if they are referring to someone younger and recently admitted, who goes to the same High Court, and appears with an attorney despite being ten years younger, the court still refers to them as ‘Counsel’; and when they look to the attorney, they say ‘Mr Mvundlela can you address me?’ He said that the reality of the fact is that perhaps society is not even ready to talk about the fusion that the profession is talking about, to the extent that legal practitioners have to improve it themselves. ‘We should be able to take deliberate steps to ensure that we improve, firstly, the education entry issues because I do not see how we can even imagine achieving fusion as long as we have the same education system that teaches advocates differently from attorneys, without necessarily instructing them on how best to address a judge or communicate with your client in a way that you are understood,’ Mr Mvundlela added

Mr Mvundlela said the question should be why there is a disparity while the profession is anticipating producing individuals with similar attributes, while teaching them different things. ‘We are continually blaming other people when we should be accepting responsibility ourselves. We can choose to break the system, work out a curricular that is going to produce similar persons. Nobody has ordained this thing that you are being taught. It is we who generated that curriculum. We who are actually endorsing it and everyday talking about it, as if it is cast in stone. It is we who are not willing to change in order to produce the type of lawyer or attorney that we want to produce,’ Mr Mvundlela added. ‘For all intents and purposes, no one has designed this curriculum that we are talking about.

Maybe it is you who must actually change it, particularly the curriculum of law schools and the nature of the Board Examinations that we are expecting people to write, in order for us to produce similar products as advocates, so that we are able to talk about similar things,’ Mr Mvundlela said.

Chairperson of General Council of the Bar, Myron Dewrance, spoke about unity and fusion in the profession. He added that in the GCB, the issue of fusion has been discussed since time immemorial. He said that from the GCB’s archives some records that deal with fusion show a discussion in Zimbabwe, when Zimbabwe changed from Rhodesia to Zimbabwe. Mr Dewrance said Zimbabwe and South Africa have a similar history. He pointed out that the legislature, those in charge of policy in Zimbabwe decided to fuse the legal profession, however, it was based largely on the fact that black advocates in Zimbabwe were receiving no work whatsoever and secondly, the economy at that stage was not big enough to entertain.

Mr Dewrance said those were the two big issues that the new Zimbabwean Government had to anticipate and deal with. He added that prior to the change of the Zimbabwean legislation, there was the attempted fusion, and they created an ‘animal’ called a designated advocate, which is similar to what we now call a trust account advocate. ‘Now it’s clear that the writers in Zimbabwe, were in favour of it because it would break the dominance of the white practitioners. It would break it and it would also ensure the transformation.’

Chairperson of General Council of the Bar, Myron Dewrance, was one of the speakers at the Law Society of South Africa Annual General Meeting.

Mr Dewrance said Zimbabwe cancelled articles training in order to facilitate transformation into the profession. Anyone with a degree could become an admitted legal practitioner. He added that they referred to them as referral practitioners and referring practitioners. He pointed out that it worked for them because of the particular situation and time, and that it was a political socio-economic instance, which forced the policymakers to fuse the profession. Speaking about Namibia, he said when it obtained its independence, they too decided to fuse the profession because of the social, economic and political circumstances in Namibia. Right after independence a new government came into play who decided to restructure the legal profession in order to fast track access to justice.

Mr Dewrance pointed out that unity is of course of utmost importance given the current climate in the country, given that the LPC has been established and governs the legal profession comprising both attorneys and advocates. He added that education with respect is something that the legal profession needs to work on together. He said education is quite important because without education one cannot improve the quality of life of practitioners.

National Association of Democratic Lawyers member, Krish Govender, said that the issue of fusion is a dying concept. He added that the Legal Practice Act, was the forerunner of putting in place all the processes that would evolve in a gradual way to ensure that the profession is properly fused. He said that that does not mean that advocates would not have a space to practice in the form that they may want. But it means that all the formalities and the barriers that have been put in place for a long time are being broken down.

Mr Govender pointed out that those who oppose the Legal Practice Act began their opposition when the first Minister of Justice was appointed, and that was the late Mr Dullah Omar. He said one of the many tasks that he performed, such as setting up the Constitutional Court, getting the judiciary rationalised and increasing access to justice and many other things, and also setting up the Truth and Reconciliation Commission, which was about dealing with this fragmented, racist divided, gender discriminating, legal profession, which extended right up to the judiciary. Mr Govender added that fusion is about breaking down not this ‘little privileged’ groups of advocates and so on, but it goes to the root of transforming society. It is about breaking down the barriers that have been put in place in society, but which is more pronounced in the legal profession.

‘The whole idea of fusion is about access to the profession, access to justice, and it is for the benefit of the people so that you would have cheaper, faster and maybe even more efficient legal services where you don’t have to have a layered process for any litigant to go through, which is slow, and more expensive. And the moment all of us are able to say a citizen has a right to choose, that’s their right,’ Mr Govender said.

Managing Partner at Cox Yeats, Andrew Clark spoke about the law of business. He said that in law school one does not learn the practicalities about running a business. He added that going into the business of law, one has to get it right pretty quickly. ‘And it does sadden me when I see particularly sole practitioners struggling in early practice, in terms of managing their own businesses. Not necessarily through any fault of their own, but simply because they haven’t necessarily had the right amount of training or it’s taken longer than anticipated to get to a position of just understanding accounting systems generally,’ Mr Clark said.

Mr Clark added that running a law firm these days is not an easy thing to do, and with the advent of modern technology, one has to approach it with balance. He pointed out that legal practitioners will always be expected to critically analyse matters. That it is better to seek consensus and to try and move forward by reflecting on what is ultimately in the best interests of their law firm. He said managing a law firm size is important and generally the bigger the firm, the more regulation is required. He said this goes without saying that one needs to try and achieve an environment where professionals are maximising time spent on being legal practitioners, rather than the time spent on producing the work that they have studied many years at university to produce, and minimising administrative time.

‘Obviously we do not have the time, but for me, if you were to say to me what keeps you up at night, what is the thing that worries you most about your law firm and what is not? The law firm that I am currently the managing partner of, I would say to you, it is the risk of reputational harm. So, if you end up on the wrong side of the wrong case your reputation as a firm is tarnished. That for me is the most critical risk to any legal practice these days, not just legal practice. We have seen it with accounting practices, other professional practices. We are not immune to this scenario and it is not a risk against which you have control,’ Mr Clark said.

Mr Clark pointed out that once your reputation is going in the wrong direction these days with modern social devices and media, its beyond one’s control. He advised attendees to be very careful about the matters that they choose to become involved in. Mr Clark further advised that legal practitioners need to take professional indemnity insurance cover. He said many legal practitioners grew up in an environment where they were told that there is big risk in running a law firm. He pointed out that it is still a risk, but it is a risk against which one can meaningfully ensure that they have a proper engagement structure. He pointed out that no one is perfect, but one needs to ensure that if there is professional negligence because there will be, it falls within your professional indemnity cover.

Chief Product Officer at LexisNexis, Terrance Naidoo, spoke to attendees on how they can remain competitive from a practice perspective. He said that there are many tools out there that are coming out. He emphasised that in the next two to three years, there will be massive change taking place in the legal industry and added that one needs to make sure that they communicate in a trusted environment. A very secure environment in terms of intelligent workflows in the traditional sense.

Mr Naidoo said legal practitioners need to be aware that there are things they need to be doing from a practice perspective, such as changing their skills and what they are doing in their environment. He added that, in terms of the future, legal practitioners should focus on the legal analytics space and intelligent workflows.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2024 (June) DR 5.

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