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Ruth Hopkins and Grethe Koen
The Minister of Justice, Jeff Radebe, caused an uproar recently when he said the Bar councils and law society would be scrapped and replaced by a Legal Practice Council.
This council, envisaged in the new Legal Practice Bill, will be the mandatory legal oversight body for the entire legal fraternity.
According to Radebe, one of the main reasons is to cap legal fees, because “for a poor man, access to justice is dependent on whether they have the financial resources”.
The bar councils and the law society are up in arms about the possible infringement of their independence.
However, what is overlooked in this debate is that advocates currently are not obliged to become members of any professional disciplinary body, which leaves the door open for murky enforcement of ethical standards and practice.
Attorneys do need to become members of the Law Society of SA to practise. And this provides crucial control over their legal practice, as the case of the “fake” attorney McDonald Marabo illustrates.
Alfred Khoali, an inmate in Groenpunt Maximum Correctional Centre in Vereeniging, realised something was wrong when Marabo, his attorney, stopped taking his calls.
In July, his brother Jacob had paid Marabo R1 000 to assist him with his leave to appeal.
When Jacob finally reached Marabo on his cellphone, the attorney promised to visit Alfred in prison.
But that never happened and the lawyer could not be reached on any of his supplied contact numbers.
The Bloemfontein High Court revealed last year that Marabo had been unlawfully representing four other accused in various legal matters. In all four cases the trials had to be stopped due to Marabo’s seeming ineptitude.
Questions arose over his credentials. The Law Society for the Northern Provinces was notified and it confirmed that “Mr Marabo’s contract of articles expired in June 2010”. He did not have any right of appearance, as he was still a candidate attorney.
The deputy judge president of the high court’s registrar division, Hans Rampai, who oversaw the review, ordered that the law society “speedily investigate the gentleman” and noted that he “take(s) a very dim view of this sort of unethical conduct by a prospective attorney”.
All four cases will now have to start from the beginning and the accused may receive compensation for any legal fees incurred.
According to Cape Town attorney Peter Baker, there are certain signs to watch out for before hiring an attorney. He warns that people should be wary of lawyers who hand out cards to those waiting outside courtrooms.
“A normal attorney would not do this as it is unethical to ‘tout’ for work,” said Baker.
Be sceptical of someone who claims to be a “paralegal”, “legal adviser”, or an “accountant who is a qualified attorney”.
Baker said that if people do not work at a law firm and cannot show you their credentials, it is unlikely that they are qualified to represent you. A quick check with the law society will shed light on their credentials, as it holds records of all registered attorneys in the country.
While the law society was founded as a legal oversight body for the about 25 000 attorneys in SA, there is no disciplinary organ for the estimated 3 200 advocates who are not members of bars associated with the General Council of the Bar of SA. All you need to practise as an advocate is a law degree (LLB) and a certificate of admission to the high court. Membership of a Bar is entirely voluntary.
The Wits Justice Project recently observed a murder trial pending at the Johannesburg High Court, which was marred by the frequent absence of the defence advocates, who claimed illness or vehicle problems, and often communicated through last-minute SMSes to the prosecutor. The judge, irked by their lax attendance, notified the Bar of one of the lawyers.
Later, he ordered another lawyer to his chambers with his Legal Aid official to explain his sketchy attendance.
He also openly questioned the credentials and qualifications of an advocate who was absent frequently and who was deemed incompetent by the judge.
Records shown to the Wits Justice Project reveal that there have been five “professional matters” instigated against this advocate at the Johannesburg Bar. But he stopped paying Bar membership fees years ago and he never returned their calls. The cases were dropped.
The accused are left to worry about their legal defence, because their lawyers hardly consult them, even though Legal Aid pay them consultation fees.
TM, a 32-year-old accused, said: “My advocate’s frequent absence is problematic, he has not been to prison to consult with me at all since he was appointed in 2009.
“But what can I do? I cannot afford a private lawyer.”
There is not much poor South Africans can do if they are dissatisfied with their advocate, as there is no mandatory independent legal oversight body that disciplines independent advocates if they infringe ethical or professional standards.
Gerrit Pretorius, chairman of the General Bar Council, an umbrella organisation of the 11 official Bars in SA, said: “Frequent absence and illness would be a big problem if the advocate was a member of a Bar, as it breaches our ethical standards.”
Accessing information about the credentials, qualifications and professional record of an advocate is an arduous task.
The Justice Department is supposed to keep a list of all registered advocates in the country, but it is not updated regularly.
The archives at the high court holds copies of qualifications, but in Joburg there is a backlog of three months when accessing the documents.
The Johannesburg Bar does investigate professional matters brought against non-members in the Joburg region, but it has no mandate to discipline non-members, other than applying for an advocate to be struck off the roll, which is an extreme measure.
Pretorius acknowledged this is a problem: “That advocates can legally practise independently, without accountability to a disciplinary body, is a systemic flaw.”
But membership of a bar is unattainable for many advocates because of financial reasons.
Once admitted, a prospective advocate has to undergo pupilage, which means a year of unremunerated work. Not only is there unpaid work involved, once the advocate starts practising, about R5 000 a month should be reserved for subscription and office rental fees at the chambers.
Advocates who cannot afford this have regrouped and branched off into “rebel” Bars, professional bodies that do not require their members to undergo pupilage or to pay high membership fees. Other advocates opt for an independent practice and are not affiliated with any professional body.
Piet Louw, an advocate and chairman of the membership committee of the Johannesburg Bar, said: “The legal profession has changed dramatically in South Africa. (In the past) advocates were mostly mature men and women from other professions – such as attorneys, academia, the Department of Justice – and they saved long for the financial shock.
“Nowadays, many advocates start immediately after university with no experience or standing in the legal community and they prefer to practice outside the Bar because they do not have to do a year’s pupilage and they do not have to pay subscriptions. They do whatever they want, tout for work outside courts or take on double briefs.”
Wilna Lambley, the Gauteng operations executive of Legal Aid, however, points out the flip side: “Advocates associated with the ‘rebel’ Bars – some of whom are excellent practitioners – and independent advocates can offer affordable rates to people who need access to justice.”
Affordable access to justice is exactly what Radebe is set on achieving. But, while the Legal Practice Bill might provide better access to affordable justice, it is not clear whether it will solve the gap in legal and ethical oversight for the legal fraternity.
All lawyers – including independent advocates – will be subject to the legal oversight of the Legal Practice Council, but the question remains whether this council, with only 21 members, will be able to exercise its control effectively.
l Ruth Hopkins and Grethe Koen work for the Wits Justice Project, which investigates alleged miscarriages of justice