The relationship between the principal and candidate legal practitioner is an important part of articles of clerkship

May 3rd, 2022
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De Rebus news reporter, Kgomotso Ramotsho, spoke to legal practitioner and Chairperson of the National Association of Democratic Lawyers for the Pretoria branch, Mhlangabezi Maliwa, regarding the challenges faced by candidate legal practitioners. Mr Maliwa spoke on five issues, which most candidate legal practitioners face, namely –

  • transport;
  • practice logistics and extraordinary hours;
  • entry into the profession;
  • the principal and candidate legal practitioner relationship; and
  • the transition from university to practice.

Transport

Mr Maliwa said that the Legal Practice Council (LPC) has issued a code of conduct for legal practitioners practising as attorneys. He pointed out that legal practitioners advertising posts for candidate legal practitioners to take up articles of clerkship with their law firms often give preference to candidates with their own vehicles. He added that although the code disallows the practice of giving such preference – as it is discriminatory and exclusive – in reality, hiring a candidate with their own transport is a cost-cutting exercise that is seen by most practitioners as an effective way to manage their practices with the least possible inconvenience from a candidate legal practitioner.

He said that several reasons exist as to why this exclusionary practice must be done away with, however, two reasons are obvious in any practice that exists today, especially in the towns/cities. ‘The first is that service of court documents by electronic means has become the norm. The second is that the nature of work since the COVID-19 pandemic and the lockdown restrictions, which were first affected has changed across various industries and professions, including the legal profession. This means that practice in general has become geared for practice by electronic and virtual means. This may not be the reality in all parts of the country but what is undeniable is that legal practice exists in a “new normal”,’ Mr Maliwa said.

Practice logistics and extraordinary hours

Mr Maliwa pointed out that the challenges of transportation to and from work for candidate legal practitioners is not only limited to travelling for the purpose of serving court documents, attending court and other day-to-day activities. He added that it is not uncommon in any practice to spend hours well into the night to meet clients’ needs and court deadlines, such as when the firm has been entrusted with a dispute that must proceed in urgent court. He said that the reality faced by candidate legal practitioners without own transportation is that they often rely on public transport. This includes taking taxis or using costly transport services, such as pre-paid taxi services and others.

‘In the context of a principal-and-candidate [legal practitioner] relationship, this begs the question, “who should bear the cost?” Should it be the candidate [legal practitioner] because they have an interest in gaining the experience offered by the firm or should it be the firm because it requires the services of a candidate [legal practitioner]? Each firm has methods to bridge the gap such as requiring candidate [legal practitioners] to keep logbooks and compensating them at month-end. It is important for each principal to apply thought to the most effective and efficient method of managing this process with an appreciation of the fact that although some candidate [legal practitioners] may be from backgrounds of financial means, the firm is an organised structure with a profit objective and clients that must manage its expenses including those associated with compensating its employees for disbursements, no matter how small they may perceive to be,’ Mr Maliwa added.

Entry into the profession

Mr Maliwa said that that the LPC appreciates the need to bridge the gap between the interests of legal practitioners and those of their candidate legal practitioners. He added that it is for this reason that through its initiatives it offers stipends to help candidate legal practitioners focus on the learning experience and their preparation for the profession as opposed to being concerned about day-to-day necessities, such as mobile phone connectivity, transport, food, and other utilities. He pointed out that legal practitioners must have an appreciation of the fact that, in gaining a candidate legal practitioner they are presented with an opportunity to mould a practitioner for the profession. Mr Maliwa said candidate legal practitioners must have an appreciation of the fact that a firm is in the business of generating profits and take the responsibility of learning as much as they possibly can in their environment. He added that taking advantage of a candidate legal practitioner in any way degrades the profession and erodes the reputation and good will of the firm. He pointed out that taking little to no responsibility for one’s own learning experience equally tarnishes the reputation of the firm, the profession ultimately shapes the candidate legal practitioner into a colleague with whom the firm may not necessarily wish to be associated with after they become admitted as an legal practitioner.  He said that testament to both these realities is the fact that after having signed a contract of articles, a significant number of candidate legal practitioners eventually take up work outside of the profession, whether as admitted attorneys or as a candidate legal practitioner who terminated their articles.

The principal and candidate legal practitioner relationship

Mr Maliwa further pointed out that to practice as a legal practitioner admitted as an attorney in terms of the Legal Practice Act 28 of 2014, articles of clerkship are the only route. He said that at the centre of this important period in vocational training is the relationship between legal practitioners, namely, principals and candidate legal practitioners. He added that in order for dignity and mutual respect to be maintained in such a relationship, legal practitioners – on the one hand – ought to keep the relationship professional and separate their personal needs from the learning experience required by the candidate legal practitioners. On the other hand, candidate legal practitioners ought to have an appreciation that the period of serving articles is a work experience and should thus maintain professional ethics and keep their personal life balanced with the understanding that a principal in the present will be a senior colleague in the future.

‘In order for order to rule the relationship, principals and directors of law firms must be deliberate enough to create programs that regulate how their firms’ function. [A] candidate legal practitioner must take it upon themselves to learn the firm’s culture and have an objective to meet the demands of a program while keeping balance between their work experience and their personal goals, including completing law school, getting admitted as attorneys and further personal development. The relationship between the firm and its employees must proceed with an understanding that there is mutual benefit to be drawn from respect and dignity on both ends. The respect must be mutual not only because candidate attorneys should be treated as assets rather than liabilities, but also because the candidate attorney’s introduction into the profession sets the tone for the kind of legal practitioner they will ultimately become in the future,’ Mr Maliwa added.

The transition from university to practice

Mr Maliwa said that the nature of university studies is a completely different experience from serving articles. He pointed out that this presents unique challenges and opportunities for candidate legal practitioners and their principals. He added that the classroom set-up is riddled with reading literature, interacting with lecturers, fellow-students and gaining limited to no exposure to practical, real-time problems which require legal solutions. ‘Both the principal and candidate attorney must have an appreciation of the need for a sensible transition from lecture halls, study groups, tutor sessions and examination rooms to a professional office with real clients, expenses, office equipment, professional standards and a profit motive,’ Mr Maliwa said.

Mr Maliwa pointed out that while a balance must be struck between dignity and the lack thereof, candidate legal practitioners ought to appreciate the fact that humility is an essential characteristic not found in any textbook. He said that mundane tasks, such as paginating bundles and making copies should, therefore, be seen as a necessary exercise to build a knack for routine, attention to detail and administrative skills, however, such tasks should not be used as a tool to assert indignity over a subordinate. He added that the articles period should be used effectively by both the firm and the candidate legal practitioner, meaning that while there are challenges in the experience, these should rather be seen as opportunities. Mr Maliwa said that depending on the nature of a firm’s practice, it is important for candidate legal practitioners to gain court experience and to make a meaningful contribution to the firm’s need for appearances at the lower courts and alternative dispute resolution forums, candidate legal practitioners must take on such a responsibility only after having been shown the ropes by their principal and other senior colleagues within the firm.

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

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