Presentation by:

LAW SOCIETY OF SOUTH AFRICA

on:The Legal Practice Billg

Background The Legal Practice Bill

April 2000 Task Team appointed by Minister of Justice and Constitutional Development The mandate to investigate and make proposals as regards the regulation of the legal profession in South Africa.

Principle representatives were:Advocates for Transformation Corporate Lawyers Association Criminal Law Bar

f SDeans of the SA University Law Faculties General Council of the BarIndependent Association of Advocates of SA pNational Paralegal Institute

Background The Legal Practice Bill

The National Community-Based Paralegal Association

Justice Department, and

The Law Society of South Africa representing the statutory law societies Black Lawyers Association and Nationallaw societies, Black Lawyers Association and National Association of Democratic Lawyers

At an early stage it became clear that there were significant differences between the LSSA and the restdifferences between the LSSA and the rest.The differences proved irreconcilable.LSSA and the rest of Task Team submitted different Draft Bills to Minister in March 2002.

LSSA’s Bill is the view of the majority of legal practitioners of South Africa

Major Points of Agreement

The Legal Practice Bill

The following fundamental points of principle were agreed on:

All legal practitioners should be regulated within a single statutory framework which makes provision for specialization of functionsspecialization of functions.

The purpose of regulation should be to serve the public interest.

The ultimate regulatory body should operate at a national level.

The national regulatory body should have a mixedThe national regulatory body should have a mixed membership of practitioners and non-practitioners of which the former should be in the majority.

Provision must be made for regional operational levelsProvision must be made for regional operational levels.

The office of Legal Service Protector should be created.

The Legal Practice BillMajor Points of Agreement

The Fidelity Fund should continue to exist under the control of the l tit t d b dnewly constituted board.

The four-year LLB Degree should continue to be the principle requirement for legal practice.q g p

There must be mandatory practical legal training.

Lawyers who do not render services to the public at large should not be registered legal practitioners nor have the right of audience in the courts.

A specialist qualification is required for the practice ofA specialist qualification is required for the practice of conveyancer and notary.

The development of paralegal work should be promoted and supportedsupported.

Major Points of Disagreement

The Legal Practice Bill

Most fundamental difference between LSSA’s Bill and Task Team’s Bill is the structuring and membership of the bodyTeam s Bill is the structuring and membership of the body which is to represent and govern legal practitioners on a national level.

The different conceptual approaches go to the heart of the matter. The LSSA’s main objective with its bill is “to promote on a national basis the common interest of members of the legal profession and the welfare of the profession having regarded allprofession and the welfare of the profession, having regarded all times to the broad interest of the public whom the profession serves… and secure throughout the Republic of South Africa, in so far as it is practicable, uniformity, simplicity and efficiency in the practice of law, in legal procedure and the administration of justice”

This underlying principle is clearly reflected in the LSSA’s draft bill.

Th T k T ’ Bill ill t t “th di id d b ” dThe Task Teams’ Bill will perpetuate “the divided bar” syndrome.

The Legal Practice BillMajor Points of Disagreement

LSSA Task TeamThe differences in two bills can be summarized as follows:

2. The sole and ultimate statutory 2. A Legal Practice Council (LPC)

1. Vision: As above. 1. None.

power to regulate the legal practice profession vests in the South Africa Legal Practice Society (Society) a body

which has no members a juristic person with limited statutory regulating powers.

corporate and of which all legal practitioners are members

3 The different branches of the 3 No clear distinction is made3. The different branches of the profession are recognised in a distinction between legal practitioners who practice with a Fidelity Fund Certificate and

3. No clear distinction is made between advocates and attorneys.

a Fidelity Fund Certificate and those who do not.

The Legal Practice BillMajor Points of Disagreement

4. Separate paralegal forum (the forum) is established and

4. A paralegal committee is to be t bli h d b t t

LSSA Task Team

(the forum) is established and all registered paralegals are members of this forum.

established as a substructure of the LPC.

5. The affairs of the Society are 5. The LPC is to be composed of ymanaged by National Legal Practice Council (NC) composed of:

pthe following persons appointed by the Minister:

24 Legal practitioners 12 legal practitioners24 Legal practitioners 16 with Fidelity Fund Certificates (attorneys) and 8 without Fidelity Fund Certificates (advocates).

12 legal practitioners designated by organizations representing legal practitioners.

2 persons designated by organisations representing paralegal practitioners.

2 paralegal practitioners.

Certificates (advocates).

1 Chairperson of the Board of Control of the Fidelity Fund.

1 teacher of law.

The Legal Practice BillMajor Points of Disagreement

2 Ministerial appointees being 1 legal academic and

2 persons representing the interest of users of legal

LSSA Task Team

being 1 legal academic and 1 consumer of legal services.

interest of users of legal services.

1 additional person appointed by the Minister.pp y1 person designated by the Legal Practice Fidelity Fund Board who does not have the right to vote

6. No separate body for paralegals.

6. The affairs of the paralegal forum are managed by the Executive Committee

the right to vote.

8 paralegal practitioners.

Executive Committee composed of:

2 legal practitioners appointed by the NC.

The Legal Practice BillMajor Points of Disagreement

2 Ministerial appointments at least 1 to be a consumer

LSSA Task Team

7. The Society and the Forum are separate legal entities, but close cooperation is ensured

7. No separate bodies.of paralegal services.

8. Any organisation of legal 8. To ensure the practical and ff f

close cooperation is ensured by members serving on each others governing bodies.

practitioners or paralegal practitioners may apply to the LPC for accreditation as an Accredited Professional

effective execution of its duties, the NC can create regional chapters and delegate some of its powers to these. Accredited Professional

Organisation (APO). Once accredited (which must be reapplied for every three years) an APO governs its

The chapters in turn will be composed of sectoral chambers catering separately for advocates and attorneys. years) an APO governs its

members independently and is responsible for inter alia:

These chapters/chambers in turn however will elect the legal practitioners to serve on the NC.

The Legal Practice BillMajor Points of Disagreement

LSSA Task TeamIts own Code of Conduct, the discipline of its membersdiscipline of its members, practical and continuing training of its members. The APO itself can determine who can become members and what the annual membership fee should be and furthermore it can prevent any of itsit can prevent any of its members from rendering legal services or appearing in any court with a member from any other APOfrom any other APO.

The APOs will nominate 12 legal practitioners and 2 gparalegal practitioners to serve on the LP, subject to Ministerial approval.

The Legal Practice BillMajor Points of Disagreement

9. All legal practitioners will be bj t t th NC’ t t t

9. Legal practitioners will be di i li d b th i APO d

LSSA Task Team

subject to the NC’s statutory disciplinary powers which will be delegated to the regional chapters / chambers.

disciplined by their APO and any legal practitioner who does not join an APO will be subject to the disciplinary powers ofthe LPC.

Advantages / Disadvantages-Proposed Structure

The Legal Practice Bill

Vocational training will be standardized, but with allowance for specialisation.

Vocational training will be determined by each different APO.Legal practitioners will beLegal practitioners can make Legal practitioners will be locked into their chosen APO.

Legal practitioners can make different career choices with-out additional training.Same Codes of Practice, procedures and Ethics will

Each APO will determine its own Code of Conduct andprocedures and Ethics will

apply to all legal practitioners. own Code of Conduct and Ethical rules.Each APO will have its own complaints procedures.

Complaints procedures against legal practitioners p pwill be uniform.

The LPC will only be representative of accredited PO’s

The NC will be representative of all legal practitioners.

PO’s.The LPC will have to maintain a separate infrastructure to deal with legal practitioners who do

The NC in conjunction with its chapters / chambers will form cohesive infrastructure. g p

not join an APO.The LSSA’s Bill regulates legal practitioners.

The Task Team’s Bill regulates legal services.

Disadvantages -Task Team’s Bill

The Legal Practice Bill

A fragmentation of the profession.

Different interest groups forming APO’s and vying / competing with each other to be represented on the LPC.

Different standards of Ethics within the professionDifferent standards of Ethics within the profession.

Different levels of training and competence of legal practitioners.

Perpetuating the exclusivity of certain APO’sPerpetuating the exclusivity of certain APO s.

The LPC not being representative of all legal practitioners.

The LPC having to maintain its own infrastructure (over and above e C a g to a ta ts o ast uctu e (o e a d abo ethose of the APO’s) to deal with legal practitioners who do not wish to become members of any particular APO.

It places the Minister of Justice in an inenviable position to decideIt places the Minister of Justice in an inenviable position to decide which APO’s to recognise for the purposes of nominating people to serve on the LPC.

The Legal Practice BillDisadvantages -Task Team’s Bill

An unnecessary drain on resources.

Regulating legal services instead of legal practitioners will takeaway certain existing rights.

Many legal practitioners will not join an APO and will relish the release from the constraints of a statutory body and welcome the y yadministrative inefficiency of a remote LPC.

Even with the safeguard that the accreditation of an APO can be withdrawn there will be a period perhaps lengthy while the APOwithdrawn, there will be a period, perhaps lengthy, while the APO is degenerating before the LPC can take over and put structures and mechanisms in place to take over the administration, regulation and discipline of the members of the now defunct APO.

Access to the profession will be severely curtailed.

The profession will be unable to speak with a united voice on tt f ti l d i t ti l i t h Th lmatters of national and international importance such as: The rule

of law, the upholding of democracy, human rights abuses, access to justice and access to the profession.

LAW SOCIETY OF SOUTH AFRICA