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Legal Practitioners

All
God save your majesty!
Cade
I thank you, good people – there shall be no money; all shall eat and drink on my score, and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.
Dick
The first thing we do, let’s kill all the lawyers.
Cade
Nay, that I mean to do.

So wrote William Shakespeare in his stage play Henry VI, Act 4 Scene 2. Jack Cade was the traitor who espoused a kind of communistic social revolution. Dick, the one who uttered the famous phrase, was a butcher who offered nothing else in the play, and indeed is a character soon forgotten. Of course, Dick’s idea sounds great – that is, until you need a lawyer.

The Legal Practice Act 2014 regulates the profession of practising lawyers: attorneys,1 advocates,2 notaries3 and conveyancers.4 Until recently these professions had their own specific legislation, but in November 2018 those statutes were repealed, and replaced by the Legal Practice Act. The Act falls under the authority of the Minister of Justice, but for all intents and purposes, the policies and purposes of the Act are implemented by the Legal Practice Council and its provincial branches.

A. Authorization to practise

For the purposes of the Act, a ‘legal practitioner’ is an attorney or an advocate. To be able to practise as one, the High Court must give you permission to do so – this is called being ‘admitted to practice’.

  1. It is an offence for any no person other than a practising legal practitioner to represent someone in any court, tribunal or similar body in which only legal practitioners are entitled to appear in expectation of any fee, commission, gain or reward.5

  2. Also, if you are not a legal practitioner you may not draw up or execute any instruments or documents relating to or required or intended for use in any legal proceedings within the Republic in expectation of any fee, commission, gain or reward. It is a crime if you do so.6

  3. No person other than a legal practitioner may falsely pretend to be a legal practitioner, or make any representation or use any type or description indicating or implying that he is a legal practitioner, and it is a criminal offence to do so.7

  4. Certain services may only be rendered by an advocate, attorney, conveyancer or notary, as the case may be. Anyone who renders such a service in expectation of any fee, commission, gain or reward, directly or indirectly, commits an offence if he is not admitted by the Court as, respectively, an advocate, attorney, conveyancer or notary, as the case may be. It is an offence to do otherwise.8

  5. If a legal practitioner has been struck off the roll (or suspended from practice) he commits a crime if he renders services as a legal practitioner, directly or indirectly:
    • for his account,
    • or in partnership, or association with any other person,
    • or as a member of a legal practice.9

  6. Moreover, a person who has been suspended from practice or struck off the roll commits an offence if he is employed by, or otherwise be engaged, in a legal practice without the prior written consent of the Legal Practice Council.10

  7. It is also an offence for any person in a legal practice to employ someone who has been struck off the roll, or whilst he is suspended from practice, without the written consent of the Council.11

  1. Save for two exceptions, an advocate may only provide legal services for remuneration upon receipt of a brief from an attorney. He commits a crime if this provision is contravened.12 (The first exception is where he is in possession of Fidelity Fund certificate, and operates a so-called trust account practice. The second exception is where the instructions come from an Office of Legal Aid South Africa.)

  2. An advocate is not permitted to share his professional fees (in any way) with anyone else and commits an offence if he does.13

  3. An advocate may only practise:
    • for his own account; or
    • as part of a law clinic (for example, at a University); or
    • as part of Legal Aid South Africa; or
    • in the full time employment of the State (with NPA or the Human Rights Commission).

    Anything else is an offence14 – for example, an advocate cannot practise as an advocate as a member of a firm of attorneys.

  4. An attorney may only practise:
    • for his own account; or
    • as part of a juristic entity established to conduct legal practice; or
    • as part of a law clinic; or
    • as part of Legal Aid South Africa; or
    • in the full time employment of the State.

    Any other manner of practice is an offence.15

  5. It is an offence for an attorney to share his professional fees with anyone other than another attorney.16

C. Law clinics

There are only two permitted forms of law clinic. One is where the law faculty of a University operates the law clinic, and the other is where a Non-profit Organization is set up and the majority of its members are legal practitioners. Either way, the Council must approve the establishment of the law clinic.17

The clinic itself commits an offence if it does any of the following things:

  1. Provide legal services by someone other than an attorney, or under an attorney’s supervision;18

  2. Share its professional fees in any way with anyone;19

  3. Distribute any of its income to its members otherwise than as reasonable compensation for the services they provide;20

  4. Engage a candidate attorney (a trainee attorney) otherwise than according to the Council’s rules;21

  5. Provide certain legal services which are restricted by the Council in its rules;22

  6. Not make its services accessible to the public;23 and

  7. Charge for its services (although it can recover expenses actually paid on behalf of the person receiving the services).24

Note: if the clinic wins a case and its client gets a costs order in his favour, it is deemed to be ceded (transferred) to the clinic, and in which case it can recover fees for its services – but from the unsuccessful party.25

D. Disciplinary hearings

Now and again, the Council has to attend to complaints from the public about the conduct of legal practitioners. It has rules for dealing with such complaints, and invariably these involve disciplinary hearings – which, unless the chairman of the particular disciplinary committee decides otherwise, are open to the public.

  1. The committee investigating the complaint can order any legal practitioner to produce books, documents, objects etc for inspection. It is an offence to refuse to do so.26

  2. It is also an offence to hinder or obstruct any person carrying out a duty or performing a function in relation to the investigation of such complaint.27

  3. Any person carrying out that duty or performing such a function may not disclose any information which he obtains in the course of his duties and functions except as authorised by the statute (in other words, for purposes relevant to the investigation). It is an offence to disclose it otherwise.28

  4. If you have been subpoenaed to appear as a witness in a disciplinary hearing, it is important that you take note of the following. It is a crime:
    • to fail to attend the hearing (without a sufficient reason);29
    • to refuse to take the oath or to take the affirmation for the evidence that you give;30
    • to fail to answer all questions fully, unless you have a sufficient reason;31 and
    • if you have been required to bring any book or document, to fail to do so.32

  5. You must also remain at the hearing until you have been excused by the chairperson of the disciplinary committee. It is an offence not to do this.33

  6. If you give evidence (make any statement to the hearing committee) which you know to be false, you commit a criminal offence.34

  7. You commit an offence if you prevent another person from giving evidence to the committee or from producing any document or book or thing which he has been required to produce at the hearing.35

  8. Finally, if you hinder or obstruct any person performing a function in relation to a disciplinary hearing it is also an offence.36

E. The Fidelity Fund

The notion of a fund to protect the public against the loss of money entrusted to attorneys is not new, and it is not exclusive to attorneys. So-called fidelity funds operate in respect of most professions who take money into trust on behalf of clients – Estate Agents are a good example. However, one innovation of the Legal Practice Act is to allow advocates to take instructions directly from clients, as opposed to from attorneys only. They must be registered with the legal practitioners Fidelity Fund and operate a so-called trust account practice.

  1. Every attorney and every advocate who operates a trust account practice and who practises for his own account, whether in partnership, or as a sole proprietor, or as a director of an incorporated practice must be in possession of a Fidelity Fund certificate. It is an offence not to do so.37

  2. It is an offence for a legal practitioner to receive money or property into trust (in other words, hold it on behalf of someone else) unless that practitioner is in possession of a Fidelity Fund certificate.38

  3. If an attorney or advocate receives money on behalf of someone, and is instructed to invest the money in a specified investment (or an investment of the attorney or advocate’s choice) that attorney or advocate must notify the person giving the instruction that the Fidelity Fund will not protect the person in respect of those monies if they are stolen – whether by the attorney/advocate or anyone else. It is a crime not to give that notification, in a form which is determined by the Council.39

  4. If the Fund makes a payment in settlement of someone’s claim in respect of a legal practitioner, the Fund takes over (is ‘subrogated to’, so-called) the rights and remedies of that person. (Insurance generally works like this, too.) Such a claimant commits a criminal offence if he fails to cooperate with the Fund in the exercise of its rights – that is, in recovering the loss.40

  5. An attorney or advocate who operates a trust account practice can be called up by the Council (or the Fidelity Fund Board) to produce his books of account, documents and items in his possession for inspection. It is an offence to refuse or fail to do so.41

  6. Any person carrying out an inspection of such items may not disclose any information which he obtains in the course of his duties and functions except as authorised by the statute (in other words, for purposes relevant to the investigation). It is an offence to disclose it otherwise.42

  1. An attorney is who you go and see when you need to sue someone, have been sued, are about to get divorced, form a company, etc. Generally speaking, your ‘lawyer’ is an attorney. ↩

  2. The advocate is, generally, the one who presents the case in Court, especially the higher Courts, gives advice, and prepares opinions. This is why they are referred to as ‘counsel’. Advocates typically work on a brief from attorneys. ↩

  3. A notary is an attorney with an extra qualification in the preparation of certain legal documents and the performance of specific legal formalities. ↩

  4. A conveyancer is an attorney with an extra qualification, namely to do with the transfer of immovable property. He’s the one you go to see for the documents and advice when you are buying or selling a house, or registering a mortgage bond. ↩

  5. Section 33(1)(a) read with section 93(2). ↩

  6. Section 33(1)(b) read with section 93(2). ↩

  7. Section 33(2) read with section 93(2). ↩

  8. Section 33(3) read with section 93(2). ↩

  9. Section 33(4)(a) read with section 93(2). ↩

  10. Section 33(4)(b) read with section 93(2). ↩

  11. Section 93(1). ↩

  12. Section 34(2) read with section 93(3). ↩

  13. Section 34(6)(a) read with section 93(3). ↩

  14. Section 34(6) read with section 93(3). ↩

  15. Section 34(5) read with section 93(3). ↩

  16. Section 34(5)(b) read with section 93(3). ↩

  17. Section 34(8)(a). ↩

  18. Section 34(8)(b)i. ↩

  19. Section 34(8)(b)ii. ↩

  20. Section 34(8)(b)iii. ↩

  21. Section 34(8)(b)iv. ↩

  22. Section 34(8)(b)v. ↩

  23. Section 34(8)(c)i. ↩

  24. Section 34(8)(c)ii. ↩

  25. Section 34(8)(c)ii reads with section 92. ↩

  26. Section 93(9)(a) read with section 37(2). ↩

  27. Section 93(9)(c) read with section 37(2). ↩

  28. Section 93(9)(b) read with section 37(2)(c). ↩

  29. Section 39(7)(a)i read with section 93(4)(a). ↩

  30. Section 39(7)(a)ii read with section 93(4)(a). ↩

  31. Section 39(7)(a)iii read with section 93(4)(a). ↩

  32. Section 39(7)(a)iv read with section 93(4)(a). ↩

  33. Section 39(7)(b) read with section 93(4)(b). ↩

  34. Section 39(7)(e) read with section 93(4)(b). ↩

  35. Section 39(7)(f) read with section 93(4)(b). ↩

  36. Section 93(4)(c). ↩

  37. Section 93(8)(a) read with section 84(1). ↩

  38. Section 93(8)(a) read with section 84(2). ↩

  39. Section 56(7) read with section 93(6). ↩

  40. Section 93(7) read with section 80. ↩

  41. Section 93(9)(a) read with section 87(5). ↩

  42. Section 93(9)(b) read with section 87(6). ↩

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