The Minister of Justice has announced a Legal Practice Bill to restructure the legal profession and ease restrictions on entry into the profession to make it more representative.
The Bill contains important provisions including mandating one governing body for the legal profession. Absent from the proposals is the need for institutional transformation, better legal education and access to legal education.
Institutional changes namely the dismantling of the quaint and antiquated split profession and the elitism that accompanies the Bar and its attendant system of silk are essential. The Bar provides advocates a degree of freedom such as not maintaining a trust account nor adhering to accounting practices which attorneys are required to adhere to. Its historical origins and the grave collateral damage from this system are too serious to ignore. If ever a death was desirable, it's time to pull the plug on the split profession coupled with the implementation of a better legal education model. The current system benefits a few, produces consequences and incubates a mindset, which are not tethered to our constitutional ethos.
Institutions are important in channeling human behavior in certain directions and achieving certain results. The advocate's profession historically was not anchored in moral bearings and played a supportive role in apartheid. If one chronicles its past, it produced many shallow leaders and a blighted history of acting against struggle lawyers, who were struck off the roll of advocates at the behest of the Bar. Black lawyers had difficulty-obtaining pupilage.
The Bar has not dealt with its demons nor adjusted to the realities of our new constitutional order. The addict cannot self-medicate nor is it going to self-heal. The attorney's profession is not without its demons and fusion ultimately needs to address transformation within the entire profession. The structural impediments at the Bar are more intractable. The idiosyncrasies and oddities of the Bar is a relic from the British system suited to perpetuating an elite and class based system. In England, it has been chronicled that entry into and success at the Bar largely depends upon social connections. The Bar in South Africa partakes largely of white and male elite. These elites have historically reaped great financial rewards. The Bar sets its own fee guidelines in an opaque way without any public consultation. The traditional albeit suspect justification for the split profession is an independent barrister/advocate provides the client a separate independent opinion. There is substantial evidence that this ends up costing clients more money, which was highlighted by Sir David Clementi in his review of the legal profession in England. In England, there is a trend of solicitors keeping litigation work in-house employing in-house counsel, which saves clients legal costs.
Even though the Bar is not a statutory body, the legal culture has created a de facto situation, produced over a century, which evaluates and validates trial lawyering skills through the established Bar. Those that practice at the alternate Bar/s are relegated to a second-class status. Professional associations like trade unions are prone to group advancement even if this is at the expense of the needs of the larger society. Our Constitution has discarded the British Westminster system. Our bill of rights has both horizontal and vertical application. Freedom of association or autonomy has no talismanic quality that allows for a system of subordination, particularly when it impacts on access to justice or the rights of others to practice their profession based on equality.
The Bar is not about the bright and savvy succeeding where others fail, and the less accomplished at the bottom of the food chain fighting over scraps. It is about those driven by self-interest who by virtue of dubious historical factors, who are invested in certain outcomes. They are able to control who enters the profession and who benefits in an optimal way, wanting to keep things the way they are. Vestiges of the past, even from private actors, which perpetuate subordination, need to be dismantled.
There is nothing wrong with a program for specialists, implemented rationally under uniform conditions as could be the case with the medical profession. Under the current system, a law graduate might be refused entry into the establishment Bar (which is the first level to practice as an advocate), given that the Bar controls the number of pupils and the placement of the pupils in any given year. This might be alright in the elite based British system but not in a constitutional state that values equality and the right to practice one's profession. The German Constitutional Court in the Pharmacy Case held that a limit on the number of practicing pharmacists was unconstitutional because this amounts to a limitation on the freedom to choose an occupation. In that case, qualified pharmacists were prevented from practicing their trade in order to control competition. The court held this also violates the principle of equality. The case of the Bar is more egregious because a private association, which has acquired a status because of dubious historical factors, is enforcing the validation and numerical limitations.
The Bar also controls who is recognized as a "super advocate" to merit being called a "senior counsel" which entitles them to charge higher fees. Our Constitution demands rationality. There is a great opaqueness, which surrounds the awarding of senior counsel status leading many to believe it is an old boy "buddy buddy" network.
After the appointment of the new Chief Justice, the General Council of the Bar asked the respective Bar Councils to scrutinize judicial nominees more closely. Elites from the Bar are not getting onto the bench in the numbers they were accustomed to. There has been an outcry from arguably the most untransformed Bar, the Cape Bar Council because several of their members were passed over for judicial appointments. It is at its core an incursion and attempt to influence the selection of judges from a special interest group. One cannot help but gawk at the spectacle of a group that collaborated and benefited from a repressive system and which remains largely untransformed, performing the role of the unapproving and self appointed head master, to vet and certify suitable judicial nominees.
At the JSC hearings, a lot of frustration has been vented on individual nominees that came out of the hierarchal system. Of late, the hearings have become demonstratively nastier. Those that came through and benefit from the opiate of the Bar are prone to defend their privileges and the mantra of the Bar's virtues in validating who are the "best and brightest" advocates. This mind set can infect white and the few people of colour within the Bar alike. We cannot afford to go through years of JSC hearings scapegoating individual nominees, usually white males. Progressives need to engage in deconstruction of the racial, gender and power tilt, which produces the hierarchies and the form of subordination and mind set that is incubated within the Bar. Ultimately, our democracy requires dismantling institutions, which do not capture and frame the deep paradigm and normative shift of our constitutional order.
The supreme irony is the Bar operates in the worse tradition of the British class and elite based system, and sanctions its members if they deal with the public directly. One cannot fathom the absurdity of this and how can this be in conformity with our new constitutional ethos? It is from this isolated group, which operates under a rarified existence, the Bar would want appointments to the bench to be made. Democracy involves a connection between institutions and people. The courts represent the third branch of government. Under most legal systems, lawyers are considered as officers of the court. Interaction between lawyers and the broader society has to produce a better understanding of people's struggles, emotions, euphoria, aspirations or hard luck. Even in England, the Public Access Scheme introduced in 2004 allows Barristers under certain circumstances to deal directly with the public. Ultimately, our struggle for social justice will benefit from a change in the institutions of the profession. A judge that comes from the ranks of a legal profession connected with the community and client they served is more likely to have the profile the new social contract mandates.
It is incongruous that we have kicked this can down the road for so long. The timidity and failure to deal with the elite based legal profession, which does not comport with the paradigm and normative values of our constitutional order, is no longer an option. The challenge is how to truly transform the universities and the legal profession into instruments of change, which serve the South African population as a whole. That is what a new Legal Practice Bill must address.
By Ziyad Motala, Professor of Law Howard Law School and Extraordinary Professor of Law University of Western Cape.
Source: Legalbrief
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