By Barbara Whittle
At a meeting in April 2012 the Competition Commission and council members of the Law Society of South Africa (LSSA) agreed and committed themselves – as far as possible – to resolving all matters concerning the professional rules governing the attorneys’ profession in a manner that will ensure the continued professionalism and integrity of the profession, while addressing competition law concerns raised by the commission. The LSSA and the commission met to discuss the implications of the commission’s refusal, in March last year, to grant the LSSA an exemption for the professional rules of the statutory provincial law societies.
The parties acknowledged that some confusion might have arisen from the commission’s decision regarding the application of the existing professional rules and wished to clarify the position to both the legal profession and the general public. This was done in a joint press release issued by both the LSSA and the commission in mid-April. The press statement noted that, although it was important to appreciate that while the commission had decided that certain rules that restrict competition had not been exempted, such rules could not be dispensed with without promulgating new ones, as this would create an untenable vacuum. In addition, change in the rules required a change in legislation as the rules emanate from the Attorneys Act 53 of 1979. In view of the above, the LSSA and the commission agreed that until the ongoing process of finalising the new Legal Practice Bill has been concluded, the existing rules would be interpreted and applied in a manner that was not offensive to competition law.
In this respect, the parties agreed that the rules would be applied as follows:
Professional fees
The existing rules apply, provided that all minimum tariffs will not be enforced. In other words, attorneys may charge fees below the minimum tariffs where these are prescribed.
Touting
The existing rules apply, except that any restrictions on advertising that conforms with the general advertising standards, in that it is truthful and not misleading to the public, are lifted.
Reserved work and multidisciplinary practices
The commission’s decision would not affect the status quo pending the promulgation of the new rules.
The LSSA would cooperate with the commission in addressing any matters concerning competition issues until the promulgation of the Legal Practice Bill. In the event of doubt as to whether any conduct offended competition law principles, the LSSA agreed that the provincial law societies would consult the commission on such cases.
In addition, both the LSSA and the commission would work closely with the Department of Justice and Constitutional Development to ensure that a permanent resolution on these matters is found expeditiously.
Compiled by Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za
This article was first published in De Rebus in 2012 (June) DR 14.
