Smuts SC: Submission to Parliament on Legal Practice Bill

The constitutional context of the Legal Practice Bill

1. As with all post-democracy legislation, the Legal Practice Bill (LPB) must comply with the principles, prescripts and spirit of the Constitution. Section 1(c) of the Constitution provides that the Republic of South Africa is founded inter alia on the values of supremacy of the Constitution and the rule of law. Section 165(1) of the Constitution, which lays the foundation for an independent judiciary, provides that the courts are independent and subject only to the Constitution and the law.

The independence of the legal profession in the context of the rule of law

2. The International Bar Association (IBA), in its resolution on the rule of law adopted in September 2005[1], recorded inter alia, the following:

“An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportional approach to punishment, a strong and independent legal profession, strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law” (my emphasis).

3. In his 2009 commentary on the resolution, Francis Neate, co-chair of the IBA Rule of Law Action Group[2], stated the following regarding the separation of powers:

“The Rule of Law does not seek to diminish the power of the State. It seeks merely to assure its proper exercise. This is achieved by separating those who make the law (the Legislature), those who interpret and apply the law (the Judiciary) and those who have the power to enforce it (the Executive), each from the other. No-one has yet come up with a better formula. The three branches of government are not inherently hostile to each other. They work together under the Constitution and the Rule of Law, and at times their functions overlap. But the separation of their essentially different constitutional tasks must be jealously guarded.

The independence of both the Legislature and the Judiciary is, therefore, a fundamental requirement of the Rule of Law. …

In addition, an independent Judiciary requires an efficient, functioning court system and a strong, independent, properly qualified legal profession to support it. An independent legal profession is also fundamental to the maintenance of citizens’ rights and freedoms under the Rule of Law, so that they are guaranteed access to independent, skilled, confidential and objective legal advice. Similar principles are required to protect the independence of the legal profession as for the Judiciary.” (my emphasis).

4. This commentary is consonant with the views contained in the preamble to the IBA Standards for the Independence of the Legal Profession adopted in 1990[3], which records the following:

“An equitable system of administration of justice which guarantees the independence of lawyers in the discharge of their professional duties without any improper restrictions, pressures or interference, direct or indirect is imperative for the establishment and maintenance of the rule of law.”

5. The link between the independence of the legal profession and the independence of the judiciary is appropriately reflected in the Commonwealth (Latimer House) Principles on the Three Branches of Government agreed by the Commonwealth Law Ministers and endorsed by the Commonwealth Heads of Government Meeting at Abuja, Nigeria in 2003[4]. South Africa was a party to the adoption of the principles. Under Objective IV of the principles, relating to the independence of the judiciary, the principles record the following:

“An independent, effective and competent legal profession is fundamental to the upholding of the rule of law and the independence of the judiciary.”

6. Given the constitutional values of the supremacy of the Constitution and the rule of law, and the constitutional requirement of an independent judiciary, it is necessary to consider the provisions of the LPB to determine whether those provisions pose any threat to or restriction of the independence of the legal profession.

To the extent that the LPB does so, it will, in consequence of the concomitant undermining of the rule of law and independence of the judiciary, not meet constitutional scrutiny. This consideration is quite apart from a potential violation of the rights guaranteed in section 18 of the Constitution to freedom of association, in section 22 freely to choose one’s trade, occupation or profession, and in section 25 to be protected against the arbitrary deprivation of property, all of which are contemplated in the LPB.

The existence of two legal professions in South Africa

7. It is not a prerequisite for the operation of a legal system under the rule of law that there be two legal professions, as there are in South Africa. Through a combination of fate and history, that is, however, the prevailing state of affairs in this country. The common law recognises that fact. Existing statute law recognises that fact. And the Constitutional Assembly, which must be taken to have been aware of that common law and statute law position, recognised that fact when drafting and approving the Constitution.

In consequence, in determining the component elements of the Judicial Service Commission, the Constitutional Assembly recognised and provided representation for the two professions of advocates and attorneys in the provisions of section 178(1)(e) and(f) of the Constitution when it required the Judicial Services Commission to include two practising advocates nominated from within the advocates’ profession to represent the profession, and two practising attorneys nominated from within the attorneys’ profession to represent that profession.. In this country, accordingly, there are two legal professions.

Historical development of the bill

8. It is important to note that, over the more-than-a-decade-long evolution of the LPB, a document has emerged which originated in a quest for a “united” legal profession, and which originally envisaged the fusion of the constitutionally-recognised separate and independent professions of advocates and attorneys, under the control of a single regulatory authority. That authority was to exercise the control vested in it by a single act of parliament, over all persons and bodies working in the legal arena, including advocates, attorneys and paralegals.

9. As discussions and negotiations took place over many years, a new approach has developed. The current draft of the LPB recognises the separation of the professions of advocates and attorneys set out above, and has excluded from its ambit the operation of paralegals. Yet it clings to the idea of the “unity” of “the legal profession”, under a single regulatory authority, and the LPB accordingly retains the ghost of fusion of the two professions in itsstructure, while purporting to recognise two professions in practice. There remains no philosophical or rational underpinning of this quest for the imagined “unity” of one legal profession in this country while recognising the legitimate and indeed constitutional existence of two professions.

10. In the light of the more recent and inevitable recognition of the need for, and right of the advocates’ profession to continue to operate as a separate profession, I suggest that the authors of the LPB may legitimately be required to justify the contention inherent in the framework of the LPB that a single regulatory authority, which was postulated as the vehicle designed to merge the advocates, attorneys and paralegals into one body, remains an appropriate institution now that the LPB has developed to the extent that the it recognises the need for the retention of the two separate professions.

11. There is a further compelling reason to question the promotion of this over-arching single regulatory body which the LPB promotes to take charge of the separate professions operating within the South African legal framework. The proposed structure in the bill echoes that which emerged in consequence of the Clementi report in the United Kingdom, which led to the establishment of an over-arching regulatory authority in the form of the Legal Services Board (“LSB”). In that model, the Legal Service Act provides for two subordinate specialised regulators – the Bar Standards Board and the Solicitors Regulation Authority, which are the first-tier regulators of the two professions. In that respect at least, the English Act constitutes a better arrangement than the proposed South African model, which makes no provision for separate regulatory bodies for the two professions at any level.

12. The model in the United Kingdom has been in operation for just over half a decade. It has proven itself to be a failure. No wonder then that Baroness Deech, the chair of the Bar Standards Board, cautioned authoritatively at the World Bar Conference in London in June 2012, which I attended, against such an over-arching authority.

At the Middle Temple conference in Franschoek in September 2012, which I attended, she issued a simple warning to“those of you contemplating establishing a super-regulator – don’t”. I would strongly recommend that the portfolio committee seek an interview with Baroness Deech so as to ascertain the reasons for her opposition to the “super-regulator”. It appears logical and sensible to ascertain the pitfalls of the proposed model from practical experience before the administration of justice in this country is subjected to the proposed model.

13. No wonder either that Michael Todd QC, the retiring chair of the Bar Council of England and Wales, at the end of his term of office, in November last year stated “I think there is a very good case for disbanding the overarching regulator”, and criticised the “burdensome costs” it was creating for barristers, their clients and the public purse[5].

14. One may ask why, when a model has been tested and has failed elsewhere, we should seek to repeat that experience and condemn a generation of South Africans to a local experiment in pre-destined failure before we try to claw back what we have lost. In the area of legal practice, what is proposed is, as I shall argue hereunder, a decimation of our profession on a scale which is unlikely to permit of any clawing back.

The independence of the legal professions, and in particular, the advocates’ profession

15. At the eighth United Nations Conference on the Prevention of Crime and the Treatment of Offenders held in 1990, a document entitled
“Basic Principles on the Role of Lawyers” [6] was adopted, which recorded in its preamble that the principles set out in the document:

“which have been formulated to assist Member States in their task of promoting and assuring the proper role of lawyers, should be taken into account by Governments within the framework of their national legislation and practice and should be brought to the attention of lawyers, as well as other persons, such as judges, prosecutors, members of the executive and the legislature, and the public in general.”

I commend these principles to the portfolio committee.

16. Under the marginal heading “Professional associations of lawyers”, the following principles appear at paragraphs 24 and 25:

“24. Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training, and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.

25. Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized international standards and norms.”

17. In a policy document adopted by the IBA in 1990, entitled the “IBA Standards for the Independence of the Legal Profession” (the standards document)[7], the IBA recognised that the independence of the legal profession constitutes an essential guarantee for the promotion and protection of human rights, and that professional associations of lawyers have a vital role to uphold professional standards and ethics, to protect their members from improper restrictions and infringements, to provide legal services to all in need of them, and to co-operate with governmental and other institutions in furthering the ends of justice.

18. Clause 17 of the standards document records the following:

“There shall be established in each jurisdiction one or more independent self-governing associations of lawyers recognised in law, whose council or other executive body shall be freely elected by all the members without interference of any kind by any other body or person. This shall be without prejudice to their right to form or join in addition other professional associations of lawyers and jurists.” (my emphasis).

19. The LPB proposes the disestablishment of existing law societies and Bar associations, and imposes an obligation on the professions to negotiate the transfer of the assets, liabilities and staff of the professions to a transitional legal practice council.

Even if it were to be contended that these proposals in theory permit of the establishment of new professional associations to bring us in line with previously cited international norms, the reality is that, once the existing voluntary societies of advocates have been disbanded and their assets and staff removed, the prospect that new voluntary associations will be brought into being are remote, particularly in the light of the fact that the governance functions which are currently performed by the existing bodies will have been transferred to involuntary, statutory bodies.

Because it fails to distinguish between regulation of the legal professions and their governance, the LPB proposes to empower the Minister to issue regulations on a host of issues which will constitute precisely the kind of interference in the independence of the professions deprecated in the international instruments cited above.

20. In addition to the threat posed by the LPB to the independent practice of law in general, the independence of the advocates’ profession is further compromised by the proposal – also made in earlier versions of the LPB – that it should be regulated by a body composed of a majority of attorneys (the other profession) and three representatives of the Minister of Justice and Constitutional Development.

I was reminded at the World Bar Conference in London last year by a former leader of the General Council of the Bar of South Africa (GCB) that, at a time when he had served on the council of the IBA, an application for membership of the IBA by an Eastern Bar which was required in terms of its constitution to report annually to its government was rejected on the basis that it did not represent an independent profession.

21. What awaits us when we are governed by a council of 21 of whom 15 are not our members, five are not required to be practising lawyers, three directly represent the executive authority in the country, and when the Minister is empowered to dissolve that council if he sees fit?

It must be remembered that there is a cardinal difference between the approach adopted in the current GCB proposals and that prevailing in the UK situation – the Bar Council of England and Wales was not deprived of its independence and replaced by a statutory body. To do so as the LPB proposes, would remove us from the ranks of independent legal professions in the world, and would undermine the rule of law and the independence of the judiciary. It is unconstitutional and cannot not be permitted.

22. A further threat to the independence of the professions lies in another recurring feature, the proposed office of the Ombud as contemplated in Chapter 5 of the LPB, not because such an office cannot play a constructive role, but because there are grave questions behind the independence of that office in the form in which it is proposed.

The Ombud is afforded extensive powers, including disciplinary appeal powers, from which it appears there would be no further appeal. The Ombud is appointed by the President for a period determined by the President, may be suspended from office by the President, is required to report to the Minister, and is reliant upon the executive for her/his salary and funding. While conceptually a potentially positive innovation, the current proposal for the office of the Ombud would not establish an independent arm of regulation of the professions.

23. In an address delivered to the Cape Law Society on 9 November 2012 b the late former Chief Justice Arthur Chaskalson, under the title “The rule of law: The importance of independent courts and legal professions”[8], the following cautionary words are recorded:

“The legal profession has a duty to itself and to the people of our country to do all that it can to protect its independence. That involves ensuring that its rules and practices are in the public interest and facilitiate access to courts by the public and in particular by those whose need is the greatest, by promoting the culture of independence and professionalism in practitioners, by explaining to the general public the role of an independent legal profession in protecting democracy, and by raising its voice against measures calculated to erode that independence. The Legal Practice Bill in its present form is such a measure.”

24. Although a portion of this quotation appears in the submission of the GCB, the representatives of that organisation have, regrettably, not taken heed of the the charge conveyed to them by the late Chief Justice to protect the independence of the advocates’ profession. It is for that reason that this submission has been prepared.

The cost implications of the LPB

25. From the outset of the LPB project, through various draft bills all intent on controlling the legal professions, the issue of a lack of reflection on the cost of the proposals has repeatedly been raised. If the LPB were a policy proposal in any business venture, the first question would, very responsibly, have been – what will it cost? We have no idea.

There has not been any published attempt to cost the LPB. What we do know is that the legal professions are to be regulated in terms of this proposal, and that there will be a national legal practice council and regional legal practice councils beneath it. They will require staff, office accommodation and equipment, and running expenses. The responsibilities envisaged for these councils are extensive. Many of those responsibilities that affect the advocates’ profession are currently discharged on a voluntary basis by our members, at their own expense and in their own time, in an effort to promote the profession we value and seek to develop.

26. It is absolutely essential that a proper costing of the structures envisaged in the bill be done before its adoption is even contemplated. The experience in the UK has been that, even where some attempt was made to cost the operation of the new bureaucracy, it was hopelessly under-estimated. It is one of the complaints raised by the Bar of England and Wales which, there is little doubt, will inevitably be repeated here. There is no provision contemplated that the fiscus will foot the bill for the proposed bureaucracy.

Advocates and attorneys will have to bear that cost. Inevitably, given the disparity in numbers, advocates, who are significantly in the minority amongst the legal practitioners in the professions, will be subsidising attorneys, and the bureaucratic administration of aspects of attorneys’ practice which have no bearing on the practice of advocates. The cost will have to be passed on to litigants. The professed intention in the LPB to address the cost of litigation, and thereby access to justice, will be defeated, as counsel will have to increase their fees to be able to afford to subsidise the bureaucracy. I deal with the other consequential effects on the advocates’ profession hereunder.

The ‘marketing’ of this version of the LPB

27. I am advised that the public announcement of the current version of the bill was motivated substantially on the premise that the bill in its current form was essential to facilitate control over the cost of litigation. Some may suggest that this is an anti-competitive practice. But not in South Africa. When the then newly elected executive committee of the GCB met with the Minister of Justice and Constitutional Development in August 2009, a meeting that I attended, the Minister raised with us his concern about legal fees.

The then deputy chair of the GCB, who is now a judge of the High Court, advised the Minister that, whereas the constituent Bars had, in past years, published recommended fees guidelines for various categories of our members, the Competition Commission had indicated that, in terms of government policy, this was regarded as an anti-competitive practice, and the Bars were required to desist from this practice. This, recorded the deputy chair, bound our hands in seeking to regulate what fees were being charged by counsel within our ranks.

28. When the Minister queried this state of affairs with the then head of his department, Mr Menzi Simelane, who had recently served with the Competition Commission, he was adamant that our guidelines on reasonable fees constituted anti-competitive practice. The Minister instructed Mr Simelane to take the matter up with the Competition Commission.

The matter was not raised again with the GCB until legal fees were mentioned at the announcement of the current version of the bill as a motivation for its necessity. If government policy does not allow the advocates’ profession to regulate the fees of our members, because such regulation is anti-competitive, it is disingenuous to say that government policy requires this bill to regulate those fees, particularly when the bill then empowers the consumers of our services – the attorneys – to determine those fees. What happened to anti-competitive practice?

What is to be done?

29. The Constitution provides for professions to be regulated. And so they should be. The advocates’ profession has been tarnished by the fact that, contrary to previous experience, increasing numbers have seen fit to commence practice as advocates outside of the ambit of the GCB and its affiliate bars because there is no legal prohibition on their doing so, and increasingly with an inferior qualification.

30. But we, as a profession the members of which have participated actively and committed many hours to the preparation of draft proposals concerning the LPB, are entitled to know why the Department of Justice and Constitutional Development has withdrawn from the consensus previously reached with it whereby such regulating authority as was to be established would accredit professional associations such as ours, that would train and qualify, and thereafter govern their members, in accordance with internationally established and recognised practice.

31. We have been given no reason why that previously agreed approach has become unacceptable. There is no explanation why that approach, which is applied very successfully in the auditors’ profession in terms of new order legislation (the Independent Regulatory Board for Auditors has the power under section 5 of the Auditing Profession Act No 26 of 2005 to accredit professional bodies, and has accredited the South African Institute of Chartered Accountants), has now been rejected. That proposed structure is logical and constructive.

32. Furthermore, there is no rational justification, once the existence of two legal professions is inevitably recognised, as it now is, why a one-size-fits-all model of regulation should be introduced for the two professions. I propose the adoption of a Legal Practice Act that recognises appropriately the independence of the advocates’profession, as the Constitution does, and establishes a regulatory body for that profession, which may accredit professional bodies that meet the regulatory requirements determined by the Act and the regulatory body, permitting such accredited bodies the right of self-governance within the ambit of the Act.

If there is believed to be a need for individuals from outside the ranks of advocates to serve on such regulatory body, why not retired judges, who have insight into the functioning of the profession, rather than what a former leader of the bar from the ranks of Advocates for Transformation has described as “the Minister’s spies”? Under such circumstances, there would be far less scope for the prospect of improper interference in the profession. Whatever body is established should assist in the regulation of the profession, but should not be charged with governing it. That is the prerogative of the voluntary professional associations.

What may happen if the LPB is implemented in its current form? (the law of unintended consequences)

33. The LPB aims to dissolve our voluntary associations as they currently exist, and seeks to expropriate our assets, and transfer the responsibility of training members of the advocates’ profession and the governance of that profession to a body in which we are in the minority. I suspect that I will not be alone in being reluctant to render voluntary service in training new members for admission to a profession which is state-controlled, especially when I will be required to commit a significant portion of my income to subventing state-serving bureaucracy.

It is not apparent where the Legal Practice Council will find advocacy trainers, pupil mentors and lecturers in such a dispensation, unless they offer competitive remuneration. All of this will cost the LPC a great deal of money, which it will have to source, at least partially, from advocates. The cost of practice, and inevitably, the cost of litigation, will increase. The LPB will accordingly not promote access to justice, but impede it.

34. The advocates’ profession is constantly criticised for slow progress in the transformation of its demography. The nature of an advocate’s practice is financially burdensome – we practice as individuals, and there are no partners to share expenses. In addition, after an extended period at university, pupillage for a period of one year comes without remuneration, and it is only thereafter that advocates may hope to earn fees. Many new practitioners with talent and commitment find the early years of practice a financial burden too hard to bear, and leave the profession in consequence. Those who come from financially challenged backgrounds face an uphill struggle. The proposed structures will impose a greater burden on all practitioners. Inevitably, a greater proportion will fail. Transformation will not only be further retarded, but will probably regress.

35. Advocates who are required to bear the additional and as yet unquantified burden of financing the new bureaucracy will be compelled to increase their fees to survive. That is the empirical evidence to be drawn from the failed UK experience. How will the expressed purpose of improving access to justice as contemplated in the bill be achieved, when the cost of legal services will necessarily be increased?

36. There is a very real risk that, given the increased financial burden that implementation of the bill in its current form must inevitably occasion, the current practice of voluntary subsidy by more senior advocates of the rental and other practice expenses of junior members of the profession in the early phase of their careers will be reduced or disappear in a profession which would now to be governed by a statutory authority, rather than by a voluntary association in which professional values have been developed and nurtured over many decades.

There is no reason to believe that, compelled to focus on increasing income to facilitate the functioning of the bureaucracy, the current practice of investing in the development of the advocates’ profession because it is something in which we believe, will not be undermined, and replaced in no insignificant measure by the drive to maximise income. This is likely to lead to the formation of a few super groups of already established and successful counsel seeking to attract as much as possible of the lucrative work remaining at the Bar, and necessarily undermining the opportunities and support currently available to beginner members of the Bar. The potential threat to meaningful transformation of the Bar is clearly apparent. The LPB will accordingly not promote access to the advocates’ profession, but impede it.

37. The LPB in its current form poses a threat to a number of its own expressed objectives. It will destroy the bar as we know it, which would be a great disservice to our new democracy, and a violation of the Constitution.

38. Unstated in the promotion of the current bill is the underlying Thatcherite/Blairite philosophy that consumerism is everything, and that there is no difference between the rendering of professional services and the selling of a hamburger. That is the message contained inter alia in the marketing drive that the bill is a mechanism for controlling legal costs. As articulated above, it is government policy that refused our profession the right to regulate fees.

The purported motivation for promoting the LPB on the basis of a need to control legal fees is thus an excuse, and not a reason for seeking to control our profession. The consumerist approach to professional regulation ignores the fact that there may be, and in this instance, certainly is a distinction between consumer interest and the public interest – the cheapest legal services are worth nothing in a state-controlled advocates’ profession where members of a Bar that is not independent may be called upon to protect the public against invasions of their rights by organs of state.

39. We may learn from the message of Dame Helena Kennedy, recently appointed co-chair of the Human Rights Institute of the IBA, in her analysis of this trend in the UK[9].

“There are some areas of our lives – including the justice system – where a reliance on economic drivers or populist desires creates distortions, injustice and outcomes that take no account of the common good. Justice is not a commodity.”

40. The introduction of a regulatory statute provides an opportunity to improve the administration of justice by creating a model for constructive regulation of the legal professions. In its current format, however, it is likely to do incalculable harm to those professions, and certainly to the advocates’ profession.

Status of the author of these submissions

41. I am an advocate in private practice in Grahamstown, Province of the Eastern Cape, where I have practised as such since July 1982. I have, over various periods, served on the Bar Council of the Eastern Cape Society of Advocates, serving as its chair in 2008. I served on the executive committee of the General Council of the Bar of South Africa (GCB) from July 2010 until this morning, and represented the GCB at the meetings of the Council of the International Bar Association (“IBA”) at the annual general meetings of that association in Dubai in 2011 and Dublin in 2012. I have been involved in the advocacy training initiatives of the GCB since 1996, serving as chairman of the Eastern Cape advocacy training committee from 1999 – 2006, and teaching at advocacy training courses in the Eastern Cape, Johannesburg, KwaZulu-Natal and Stellenbosch. In addition, in consequence of the interaction between international Bars on the advocacy training front, I have taught on advocacy training courses in Oxford, Northampton and Hong Kong.

42. I set out the above summary merely to illustrate that I have some experience of the advocates’ profession both in South Africa and abroad. I wish to stress that I make these submissions in my personal capacity only. In my then capacity as deputy chairman of the GCB, I attended a meeting of the executive committee of the GCB held in Centurion over the weekend of 2/3 February 2013, which was convened to finalise a submission to be made on behalf of the GCB.

By the end of that meeting it had become clear that the proposal to be submitted on behalf of the GCB would result, as a necessary consequence, in the termination of the existence of the GCB and its constituent Bars as voluntary associations. It was further made clear to me that I could not make alternative submissions in support of the independence of the advocates’ profession and the continued existence of the voluntary associations of advocates while I occupied the position of deputy chairman of the GCB. I have consequently resigned from that position this morning, in anticipation of my presentation of this submission.

43. It must accordingly be understood that these submissions are my own, but premised on the experience and insight I have gained into the advocates’ profession over more than three decades of practice and administrative commitment. I am grateful to experienced and concerned colleagues for the time they have taken to provide comment on the text of this submission. The responsibility for the content thereof remains exclusively mine.

Izak Smuts SC

Equity House Chambers,

GRAHAMSTOWN

11 February 2013.

Footnotes:

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[1] Available at www.ibanet.org/Document/Default.aspx?DocumentUid…a0d7…

[2] Available at www.ibanet.org/Document/Default.aspx?DocumentUid…BD4A…

[3] Available at www.ibanet.org/Document/Default.aspx?DocumentUid…fd1f…

[4] Available atwww.cmja.org/downloads/latimerhouse/commprinthreearms.pdf

[5] Published in The Law Gazette of 12 November 2012, accessible at www.lawgazette.co.uk/news/lsb-must-be-go-now-says-bar-council-chief

[6] Accessible at www2.ohchr.org/english/law/lawyers.htm

[7] Available atwww.ibanet.org/About_the_IBA/IBA_resolutions.aspx

[8] Published inter alia in “Advocate” Volume 25, number 3, December 2012 at pages 51 – 55

[9] Article entitled “For Blair there is no such thing as legal principle” published in The Guardian, Saturday 27 November 2004.

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