File photo: Some lawyers complained that a typical month comprised around 22 working days, therefore, the LPC’s call to do free duty on three of those days was not practical or economically sustainable. Photo: ANA
File photo: Some lawyers complained that a typical month comprised around 22 working days, therefore, the LPC’s call to do free duty on three of those days was not practical or economically sustainable. Photo: ANA

Lawyers opposed to extension of pro bono policy

By Mervyn Naidoo Time of article published Mar 7, 2021

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Durban - LAWYERS have warned that the Legal Practice Council’s (LPC) plans to transform their profession with the draft legal sector code, which is presently up for discussion, contains clauses that could potentially cripple legal practices.

Their biggest concern was the significantly increased number of pro bono (free of charge) hours lawyers must work annually, to be in good standing with the LPC.

Previously, legal practitioners (attorneys and advocates) were required to do 24 mandatory hours of pro bono service per annum but the LPC’s draft code has now suggested 200 hours.

Some lawyers complained that a typical month comprised around 22 working days, therefore, the LPC’s call to do free duty on three of those days was not practical or economically sustainable.

They also raised that pro bono stipulations were more taxing on smaller practices, including the LPC’s other proposed adjustments to Broad-Based Black Economic Empowerment (B-BBEE) requirements that governed their operations.

Practitioners have until March 15 to voice their concerns.

As a regulatory body, the LPC has jurisdiction over legal practitioners, including candidate practitioners, to ensure they enhance and maintain the integrity and status of the profession.

According to the draft document, the LPC found the profession, despite the dawn of democracy, challenged in achieving transformation.

They found that top law firms’ positions and senior advocates at the Bar were still largely occupied by white male practitioners, despite an increase in the number of admitted black practitioners.

And there were still not enough large black-owned legal firms around the country, able to compete with the established firms for work available in the government and private sectors.

This consigned black-owned firms and advocates to largely doing peripheral work.

To promote economic inclusiveness, the LPC drafted reforms for the profession,in keeping with the B-BBEE Act.

The LPC said the desired effect from adjusting practitioners’ hours of pro bono work was to ensure individuals from poor, rural and disadvantaged communities had access to quality legal services.

In developing the code, the LPC factored in race, women empowerment, ownership make-up, management demographics and skills development programmes at firms and practices, in accordance with the Act.

A steering committee consisting representatives from stakeholders in the profession was established by the LPC, and they consulted with various other affected and interested parties. Their input was used to draft the code.

The code will be binding on all attorneys – whether they operate as sole practitioners, in partnerships or associations – advocates, other entities, including organs of state, the private sector. Legal Aid is also included.

Basically the code will be binding on any entity that receives the bulk of their revenue from legal practice.

Policing and monitoring compliance with the code will rest with the “Charter Council”, once it has been gazetted.

The minister of justice will establish the Charter Council, which will consist of stakeholders from the legal profession.

B-BBEE verification certificates would be handed to compliant law firms and practices and would be valid for 12 months.

Previously, according to the Department of Labour, entities that employed 50 or more workers were subjected to Employment Equity Act number 55, which deals with achieving equal opportunity at the workplace.

Under the new code, enterprises with less than 50 employees will also be vetted.

However, the code’s proposal on pro bono hours has been a sore issue for practitioners interviewed by the Sunday Tribune.

The code suggested 200 compulsory hours for each attorney in law practices that generated annual revenue between R3 million and R15m.

Practices that earn beyond R15m annually must do a collective sum of 500 pro bono hours each year.

Advocates in practices that are in the above R5m revenue category are expected to provide 150 hours.

An attorney, who is a partner in a Durban law firm, who asked not to be named, described the code as having a harmless look on the surface but was a hard-hitting piece of legislation aimed at gaining control of the legal fraternity.

“The biggest problem is that legal practitioners are busy, under pressure and now under severe economic pressure, so many won’t read it thinking someone else will. Before you know it, it will become legislation,” the attorney said.

The source said the direction on pro bono hours was “unreasonable”.

“Apart from 200 hours being way too much, bigger firms are favoured over smaller ones. In my practice we have three attorneys. According to the code we have to do 200 hours each on an annual basis, which will amount to 600 hours for our practice.

“But a bigger firm with annual revenue of more R15m and has 10 legal practitioners for example will only be required to do 500 hours.”

The informant said such suggestions could not have been made by people with a legal mind.

“Presently many of us do more than 24 hours. If we don't speak out against this now, challenging in court will take years, many of our practices will be crushed by then.”

Attorney Anashya Jugmohan, an associate of law firm Pather and Pather Attorneys, said the sentiment behind the code was noble and she enjoyed doing pro bono work, but questioned how it would be regulated.

“The LPC has so many issues to deal with presently, which includes regulating the conduct of practitioners. Now they are proposing this new rule. Are they going to say practitioners won’t receive their fidelity fund for non-compliance. If so, how will they police it?”

She asked at what level will it be audited to ensure that implementing such a rule was feasible.

Mashudu Kutama, president of the Black Lawyers Association, said they supported the code because it was aimed at transforming the legal profession and that it brings back the issue of broad economic empowerment in the sector.

He said they had their own executive meeting yesterday to see how best the code could be improved.

One of the concerns he singled out was the contradiction between big and small firms regarding pro bono hours.

“Attorneys have been doing pro bono work for many years. We think 200 hours is too much because running a law firm is very expensive. It should never exceed 50 hours.

“Also, hourly rates are misleading because some matters require more hours. We are presently handling a matter where kids have been taken out of a RDP house because their mother is dead. That matter has gone to the Supreme Court of Appeal and extended beyond 200 hours.

“We need balance,” suggested Kutama.

Sthembiso Mnisi, the LPC’s communications manager, said the draft would be sent to the Department of Trade, Industry and Competition (DTIC) after consultation was completed.

Thereafter, practitioners will have another 60 days to comment once the DTIC publishes it, before gazetting.

“Although there were some queries and disagreements with some of the content, the majority of the engagements and submissions have been constructive,” said Mnisi.

Sunday Tribune

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