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KEY PRINCIPLES OF THE LEGAL PRACTICE BILL, 2012

KEY PRINCIPLES OF THE LEGAL PRACTICE BILL, 2012. INTRODUCTION. The Legal Practice Bill, which has been in Parliament since May 2012, was approved by the National Assembly on 12 November 2013.

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KEY PRINCIPLES OF THE LEGAL PRACTICE BILL, 2012

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  1. KEY PRINCIPLES OF THE LEGAL PRACTICE BILL, 2012

  2. INTRODUCTION • The Legal Practice Bill, which has been in Parliament since May 2012, was approved by the National Assembly on 12 November 2013. • It was then referred to the National Council of Provinces for in-depth deliberation by all nine Provincial Legislatures in terms of section 76 of the Constitution.

  3. Purpose of the Bill The Bill is intended to address the following: • To rationalise the current fragmented legislative framework in terms of which the former RSA and former homeland laws, still in operation in various parts of the country, will be repealed and replaced by a single statute regulating the profession in its entirety;

  4. Purpose of the Bill[cont] • transform and restructure (democratise) the regulatory bodies in the legal profession by establishing a single national body with Provincial Councils; • broaden access to justice by making access to legal services easier in terms of affordability and by enhancing access to the legal profession;

  5. Purpose of the Bill [cont] • promote and protect the public interest; • establish an Office of Legal Service Ombud; and • make the legal profession more accountable in terms of the disciplining of legal practitioners.

  6. Purpose of the Bill [cont] • The Bill does not bring about fusion of attorneys and advocates. • The Bill recognises the two existing categories of legal practitioners, namely attorneys and advocates, with their own areas of expertise. • The Bill does not deal with paralegals. It was agreed that these persons will be regulated later.

  7. South African Legal Practice Council • Chapter 2 of the Bill establishes a single national South African Legal Practice Council. • The Council has numerous objects: • regulation of, and jurisdiction over, all legal practitioners (attorneys, advocates, candidate attorneys and pupils); • preserve and uphold the independence of the legal profession;

  8. OBJECTS OF Council [cont] • enhance and maintain the integrity and status of the legal profession, and appropriate standards of professional practice and ethical conduct ; • promote high standards of legal education and training, and compulsory post-qualification professional development; • promote access to the legal profession; and • ensure accessible and sustainable training of law graduates .

  9. Powers and functions of council • Clause 6 extensively sets out the powers and functions of Council. • Clause 6(1) sets out the powers and functions which are necessary for the operation of the Council. • The Council may delegate any of its powers and functions to its committees or Provincial Councils.

  10. Powers and functions of council • The Council may provide financial support to organisations providing legal education and training, to non-profit organisations and to institutions promoting access to justice for poor people. • The Council must establish a mechanism to provide appropriate legal education and training having due regard to our inherited legacy and the new constitutional dispensation. • Training is recognised in the Bill as a key transformational imperative, as legal practitioners are the main source of candidates for the judiciary.

  11. Powers and functions of council[cont] • The Council must report to the Minister on its activities, with particular reference to measures to enhance access to justice. • The Council must advise the Minister on multi-disciplinary legal practices, also with the view to promoting legislative and other interventions on multi-disciplinary legal practices.

  12. South African Legal Practice Council [cont] The Council consists of - • 16 legal practitioners (10 practising attorneys and 6 practising advocates), elected by the profession; • two legal academics designated by the law faculties; • three persons designated by the Minister, who may not be public servants or persons with party-political affiliations, who can bring expertise and experience, relating to the objects of the Bill;

  13. South African Legal Practice Council[cont] • one person designated by Legal Aid SA; and • one person designated by the Board of the Fidelity Fund. • There are approximately 20 000 attorneys and less that 5 000 advocates in the country.

  14. South African Legal Practice Council [cont] The Minister has the power to dissolve the Council if it becomes dysfunctional but only – • on authority of an order of the High Court, • after the Ombud has investigated the circumstances giving rise to the disfunctionality and suggesting that the Council be dissolved.

  15. South African Legal Practice Council [cont] • The legal profession (the Council and Board of the Fidelity Fund) is responsible for the financial implications arising from the implementation of the Bill. • The Department of Justice and Constitutional Development is responsible for the establishment and running of the Office of the Legal Services Ombud, which will only come into existence about three years down the line once the National Forum has completed its mandate.

  16. Provincial Councils • Clause 23 requires the establishment of nine Provincial Councils, one for each province. • To start off with the Bill requires the establishment of at least four Provincial Councils, which must be increased progressively, as funds and capacity become available.

  17. Provincial Councils[cont] • Representation of legal practitioners on these Provincial Councils is in proportion to the number of attorneys and advocates practising in each of the provinces in question. • The Provincial Councils have no original powers. The national Council must delegate its regulatory powers to the Provincial Councils, which are best performed at provincial level.

  18. Regulation of legal practitioners and candidate legalpractitioners • Chapter 3 requires all persons who wish to practise as legal practitioners to be admitted by the High Court, as is currently the position.

  19. Admission Criteria Before being admitted by the court, aspirant legal practitioners must comply with the following criteria: • South African citizens or permanent residents; • At least an LLB degree obtained at a South African university; • Provision is made for certain foreign legal practitioners to appear in our courts and to practise here in terms of the GATS agreement, to which South Africa is a signatory and has international obligations;

  20. Admission Criteria [cont] • Fit and proper persons; • Completed practical vocational training – • pupillage in the case of aspirant advocates; and • articles of clerkship in the case of aspirant attorneys. • Served community service as part of vocational training. • Passed an admission exam, either for attorneys or advocates.

  21. Regulation of legal practitioners and candidate legal practitioners[cont] • Admitted attorneys and advocate can practise throughout the country. • Attorneys must, as is the case at present, have been practising as such for at least three years before they can get the right to appear in our superior courts and they must apply at the High Court for a certificate to get such right.

  22. Community Service • Candidate legal practitioners must perform community service as a component of their practical vocational training. • The details of this, for instance for how long and where, must be spelt out by the Minister in regulations.

  23. Community Service[cont] • Practising legal practitioners are also required to perform community service each year. • Provision is made for them to apply for exemption, on good cause shown, for instance if they have small legal practices and performing community service could impact negatively on them.

  24. Community Service[cont] Community service, may, among others, include – • the provision of training on behalf of the Council, • service, without any remuneration, as a judicial officer in the case of legal practitioners, • service at the South African Human Rights Commission; and • service to the State, approved by the Minister in consultation with the Council.

  25. Regulation of legal practitioners and candidate legal practitioners [cont] • Advocates will no longer be able to be admitted as such, purely on the strength of having an LLB degree, as is currently the position.

  26. Regulation of legal practitioners and candidate legal practitioners [cont] • After admission by the court, aspirant legal practitioners must then apply to the Council for enrolment (registration) with the Council. • They cannot practise as legal practitioners until they have enrolled with the Council, after paying the required fee.

  27. Regulation of legal practitioners and candidate legal practitioners [cont] • Clause 32 deals with conversion of enrolment. • A legal practitioner who has been enrolled as an attorney or advocate may convert his or her enrolment from that of an attorney to advocate and vice versa. • The aim of this provision is to provide for an easier mechanism for legal practitioners to change direction in their careers, either as attorneys or advocates. • A similar conversion of enrolment is provided for in the case of advocates who practise with Fidelity Fund certificates and who wish to practise without a Fidelity Fund certificate and vice versa.

  28. Regulation of legal practitioners and candidate legal practitioners [cont] • Clause 33 provides that no person other than a legal practitioner who has been admitted and enrolled as such may, in expectation of any fee, commission, gain or reward— • appear in any court of law or before any board, tribunal or similar institution in which only legal practitioners are entitled to appear; or • draw up or execute any instruments or documents relating to or required or intended for use in any action, suit or other proceedings in a court.

  29. Regulation of legal practitioners and candidate legal practitioners [cont] • The Bill is premised on the general rule that advocates must take briefs from attorneys. • The Bill allows advocates to take briefs directly from members of the public but, in the public interest, only if they are in possession of a Fidelity Fund certificate and if they operate their practices with trust accounts, as required of attorneys.

  30. Regulation of legal practitioners and candidate legal practitioners[cont] • Advocates must decide whether they wish to practise with or without Fidelity Fund certificates and they will be enrolled accordingly. • This is a significant departure from the current position and hopefully it will contribute positively to cutting legal fees.

  31. Fees • In terms of clause 35, fees for legal services rendered will, as an interim measure, be determined by the Rules Board for Courts of Law, subject to approval by the Minister. • That is in respect of litigious and non-litigious matters. • At present the Rules Board already sets fees in respect of litigious matters.

  32. Fees[cont] When determining fees, the Rules Board must take into account a number of factors, for instance – • the complexity of the matter at hand; • the seniority and experience of the legal practitioner involved; • the amount of work involved; and • the financial implications involved.

  33. Fees[cont] • Of importance is that this clause allows the Minister to set a cap in respect of fees payable by the State for legal services rendered, at all three levels of Government.

  34. Fees[cont] • Of equal importance is that legal practitioners will be required to give their clients, up front, a cost estimate for the legal services required. • The cost estimate must include the processes involved, and mention the client’s right to negotiate fees. • Failure to comply with this on the part of legal practitioners, constitutes misconduct and allows the client to refuse to pay until the matter has been resolved by the Council.

  35. Fees[cont] • Clause 35 further requires the SA Law Reform Commission to launch a comprehensive investigation into the question of fees and to make recommendations on how to address the current challenges. • The Rules Board measure will be in place, pending the outcome of the investigation of the Law Reform Commission.

  36. Professional conduct and discipline • Chapter 4 requires the Council to compile a code of conduct for all legal practitioners and candidate legal practitioners, recognising the differences between attorneys and advocates.

  37. Professional conduct and discipline [cont] • Three different structures, established by the Council, are envisaged, namely – • investigating committees, which must – • investigate complaints against lawyers; and • make recommendations to the Council on whether to proceed with the matter or reject the complaint;

  38. Professional conduct and discipline [cont] (b) disciplinary committees, which must adjudicate on matters that the investigating committees recommend be taken further, on the basis of available evidence; and (c) appeal tribunals to which legal practitioners or complainants who are aggrieved by the outcome of an investigating committee or a disciplinary committee can appeal.

  39. Professional conduct and discipline [cont] • The disciplinary committees and appeal tribunals must consist of – • legal practitioners; and • lay persons, agreed to by the Office of the Ombud. • In order to enhance transparency and accountability, all disciplinary committee and appeal tribunal proceedings must be held in public.

  40. Professional conduct and discipline [cont] The following must be made public: • The allegations being dealt with; • the members of the disciplinary committees and appeal tribunals; • the legal practitioners involved; and • the outcome of the proceedings, including any sanctions imposed.

  41. Professional conduct and discipline [cont] • These structures do not preclude the intervention of the High Court in serious allegations.

  42. Legal Services Ombud • Chapter 5 of the Bill provides for the establishment of an Office of Legal Service Ombud. • The Ombud must be a judge discharged from active service. • The Ombud holds office for seven years which is renewable once.

  43. Ombud [cont] The objects of the Ombud are to- • protect and promote the public interest in relation to the rendering of legal services, • ensure the proper investigation and disposal of complaints against legal practitioners, • promote high standards of integrity in the profession; and • promote the independence of the profession.

  44. Ombud [cont] • The Ombud will not have decision-making powers but recommendatory powers, similar to those of the Public Protector. • For instance the Ombud must investigate and make recommendations to the relevant authorities regarding any alleged maladministration in the profession or abuse of power.

  45. Ombud [cont] The Ombud may also - • mediate; • advise; and • assist complainants in getting their matters resolved, for instance by taking matters to court.

  46. Legal Practitioners’ Fidelity Fund and Board of Control • Chapter 6 provides for the continuation of the current Attorneys Fidelity Fund under the name of Legal Practitioners’ Fidelity Fund. • The change of name is necessary because advocates may now also obtain Fidelity Fund certificates if they take briefs directly from members of the public.

  47. Fidelity Fund [cont] • The Fund, as is the case at present, is there to reimburse members of the public who suffer pecuniary loss as a result of theft of their money by legal practitioners.

  48. Fidelity Fund[cont] • The Fund is managed by a Board of Control. • The Board consists of – • five legal practitioners elected in accordance with the procedure determined by the Council; • two persons designated by the Council; and • two persons designated by the Minister who have the required expertise and experience.

  49. Fidelity Fund[cont] • All legal practitioners who take briefs directly from members of the public must be in possession of a Fidelity Fund certificate. • They obtain this after paying the prescribed fee every year.

  50. Handling of trust monies • Chapter 7 spells out how legal practitioners who take briefs directly from members of the public must set up and manage their trust accounts. • The provisions of this Chapter are largely the same as those in this regard as in the Attorneys Act, 1979, which is being repealed by the Bill.

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