the legal professions pointers towards structural reforms* · the legal professions pointers...

The Legal Professions shyPointers towards Structural Reforms

Introduction Lawyers in England and Wales experienced uncertain times in recent years In January 1989 the Lord Chancellors Department published three Green Papers in which a restructuring of the legal profession was suggested These consultation papers evoked a heated debate not only in legal circles but in society generally The Governments White Paper on legal services2 published six months later had some soothing effect on the professions for it indishycated that the reforms would not be as drastic middot as implied in the Green Papers and that Government had opted for an evolutionary approach to legal reform In November 1990 the Courts and Legal Services Act received Royal Assent However instead of it being the culmination of the reform process the Act is no more than the end of the beginning It proshyvides a framework within which legal services will be rendered and rather than restructure the work and the organisation of the legal professions Parliament was content with making the framework less rigid The pracshytical effect of the changes will depend upon the attitude taken by the legal professions and certain designated members of the judiciary In the past the legal professions but especially the Bar vigorously defended their privileged positions and every indishycation is that they will continue to do so Thus a real possibility exists that the Act may have introduced changes only to preserve the status quo

The provision of legal services in South Africa is closely modelled on the system prevailing in England prior to its reform although naturshyally variations exist to suit particushy1ar local circumstances It is not suggested that South Africans should follow slavishly the modifications introduced in England but it is short-

Or JR Midgley Senior Lecturer Faculty of Law

Rhodes University

sighted to ignore the experiences there The need to modernise the English system may well indicate that similar changes are necessary in South Africa 3 There is however another reason for suggesting a reconsideration of professional strucshytures and methods in South Africa The structure of the legal professions being an integral part of the system of judicial administration will not escape the general process of change which the country is currently experiencing and a legal system should reflect the social realities within which it operates 4 At present the traditions and backshyground of many South Africans are ignored In addition restrictive pracshytices and privileges are contrary to the ethos of an open and non-elitist society At the very least the legal professions should now seriously reassess their roles and investigate how they can best serve society A study of the English experience may help South Africans avoid the pitfalls associated with reforming the legal professions

The reforms in England The Courts and Legal Services Act 1990 concentrates on four key issues improving client access to legal sershyvices maintaining quality of services commensurate with societys needs stimulating new ways ofworking and judicial appointments In all these areas Parliament removed what it regarded as unnecessary restrictions on the supply of legal services The practice oflaw is no longer restricted to barristers and solicitors Now all persons with proper education and training and who adhere to approprishyate rules of conduct will be able to provide legal services It is thus not the profession to which a person belongs but his or her quality and conduct which determines the nature and extent of any restriction

The Lord Chancellor hoped to improve access to legal services by increasing the competition among the providers of such services In line with previous practice no restrictions are placed on persons giving legal advice The Acts purpose therefore is to remove restrictions on the proshyvision of advocacy litigation conshyveyancing probate and notarial services In future rights of audience and rights to conduct litigation will be determined by education and training appropriate to the court or the proceeding and membership of a professional body which effectively enforces rules of conduct which are appropriate in the interests of the administration ofjustice In addition all advocates must adhere to the cabshyrank rule 5 Conveyancers must comply with relevant regulations belong to the Conveyancing Ombudsman Scheme maintain satisfactory procedures for comshyplaints and compensation and ensure that clients are protected against risks associated with the provision of

CONSULTUS APRIL 1991 8

conveyancing services 6 In future banks building societies and insurshyance companies will be able to proshyvide such services Similarly probate and trust work are open to all pershysons including lending institutions and their subsidiaries who adhere to proper complaints procedures 7

Territorial limitations on notaries and the need for apprenticeship have been removed and the Master of the Faculties will in future determine the requirements for providing notarial services 8

The Act entrenches all existing rights and gives the General Counshycil of the Bar and The Law Society the power to grant to their members those rights which their existing members have always enjoyed Should either body wish to grant more extensive rights or should any other institution wish to grant rights authorisation therefor must be obtained Applications for advocacy and litigation rights are submitted to the Lord Chancellors Advisory Committee on Legal Education and Conduct and to the Director of Fair Trading who will ensure that they comply with the statutory objective and the regulations on competition Thereafter the applications are subshymitted for approval to the Lord Chancellor and four designated judges 9 The right to conduct conshyveyancing will be granted by the Authorised Conveyancing Practishytioners Board lO and the Lord Chanshycellor and the President of the Family Division will determine who will do probate and trust work 11 Notaries will be authorised by the Master of the Faculties 12

Rationale The rationale for the authorisation process is quality control but the procedure also renders participation in the administration of legal services less exclusive The Act retains the traditional quality control measures professional self-regulation and judicial supervision but these are supplemented by a system oflay parshyticipation Control will no longer vest solely in lawyers The Advisory Committee has a majority of lay members and the Authorised Conshyveyancing Practitioners Board will have an equal number of lay and practitioner members Thus in conshyveyancing matters the public is given ian effective right of participation but since the Advisory Committee

CONSULTUS APRIL 1991

has no decision-making powers lay participation in controlling court work - advocacy and litigation - is restricted The Committee could nevertheless play an important role in ensuring that quality of services suit the needs of society Its recomshymendations could temper the views of those who wish to set standards at too high a level

Other institutions which are intended to serve the dual purpose of lay involvement and quality control are the two Ombudsman offices the Legal Services Ombudsman which replaces the Lay Observer and the Conveyancing Ombudsman Howshyever like the Advisory Committee they are essentially monitors of professional conduct and procedures

Partnerships The provisions aimed at modernising the professions working methods evidence an attempt to balance client demand especially that of the large corporations and the fear of the independent bars demise The Act does not endorse any professional structure and leaves it to the professhysions to decide how their services should be provided Statutory restricshytions on forming multi-national and multi-disciplinary partnerships have been removed but professional bodies may continue to prohibit members from forming partnerships whether amongst themselves or with persons outside their professions 13

Indirectly therefore the Act has entrenched the divided bar system Fusion of the professions has neither been imposed nor facilitated It will occur only if and when barristers and solicitors so desire Nevertheless the Act introduces a structural flexibility which did not exist previously

The Act also provides for an additional method of remuneration in certain cases the conditional fee agreementl~ The parties can now stipulate that payment for fees and expenses either wholly or in part will be subject to agreed conditions usually the successful outcome of the litigation and the fees may be adjusted to compensate the pracshytitioner for the risk involved The innovation is interesting not only for its purpose which is to improve client access but also for the implicit conshyclusion that contingency fees remain unacceptable in England

The least controversial of all the reforms was the removal of the

restrictions affecting judical appointshyments 15 While experience in superior court advocacy remains the dominant criterion for appointment to the Supreme Court a background as a judicial officer in the lower courts will also suffice in future The effect of the changes is that solicitors are now also eligible for elevation to the Bench

Reasons for English reforms In opening the debate in the House of Lords on the reform proposals the Lord Chancellor Lord Mackay pointed out that they formed part of a comprehensive programme for securing a better and more costshyeffective service to the public from lawyers and the courts 1 6 The moral purpose therefore was to make the law affordable accessible and comprehensible to the ordinary person 17

For many years solicitors and barshyristers had been tolerant of each others restrictive practices and had been successful in persuading the public that lawyers alone knew how to ensure that the administration of justice was regulated in the public interest Despite rumblings in their ranks the majority of solicitors appeared to favour the status quo At least three events set the scene for change 18 the Glanville Davies affair where The Law Societys failure to deal effectively with complaints against a solicitor highshylighted its inability to regulate professhysional conduct 19 the ending of solicitors conveyancing monoshypoly 20 and the liberalisation of advertising restrictions 21

The second of these events was probably the most influential The Administration of Justice Act 1985 established a new profession of licensed conveyancers and removed the solicitors monopoly on conshyveyancing services Institutional conshyveyancing was accepted in principle Naturally solicitors began to lobby for the removal of barriers which prevented them from increasing the scope of their activities 22 Rights of audience was the obvious target and the issue was brought to a head in Abse v Smith 23 Parties to a libel action had agreed to settle their disshypute and approved a statement to be read in open court 24 The solicitor for Smith considered counsels fees

9

for reading out the statement to be unnecessarily expensive and sought the leave of the court to do so himself The Court of Appeal held that the judge had rightly refused the applishycation for although the Bar did not have a monopoly right in respect of Supreme Court appearance 25 no special feature existed in the parshyticular case to justify a departure from established practice Shortly thereafter the General Council of the Bar and The Law Society agreed to set up a committee chaired by Lady Marre to review the structure and practices of the legal professions and to suggest changes which were in the public interest In 1988 the Marre Committee recommended 26 amongst others an extension of rights of audience but in line with the dissenting report of the barrister members of the Committee the Bar refused to implement this proposal

Lord Chancellors view The inability of the professions to resolve their d ifferences became a facshytor which prompted the government proposals for reform 27 The Lord Chancellor took the view that the Committee would not have been established if the professions had not believed that reforms were necessary He was determined to find a way out of the impasse The Act addressed the above-mentioned issues It places great emphasis on proper complaints procedures being prerequisites for authorisation and the Ombudsman offices are primarily intended to monitor the complaints machinery The Bars virtual monopoly on rights of audience in superior courts has been removed

However by far the most importshyant reason for reform was the ideoshylogical stance of the Government in allowing market forces to determine what is best for society 28 The Lord Chancellor cited the 1987 Conservashytive Party manifesto in support of the Green Paper proposals 29

Competition forces the economy to respond to the consumer It promotes efficiency holds down cost drives companies to innovate and ensures that customers get the best possible value for money

In March 1988 the Department of Trade and Industry published its policy on restrictive trade practices which prohibited agreements restrictshying or distorting free competition 30 Exemptions could be claimed on

economic grounds only Th e Government believed that professhysions should be subject to the same tests as other sectors of the economy31 and that competition must be supplemented by legal proshytection for the consumers 32 Accordingly the structural reforms are intended to create a free and open market for legal services which are supplied by persons with the necessshyary expertise 33 Any restrictions on this policy would have to be justified in terms of first principles which would recognise that not only stanshydards of integrity and competence require protection but also the proper administration of justice

Market forces Commentators are concerned at the apparent contradiction in the applishycation of the market forces philoshysophy Abel for example feels that the professed allegiance to a laissezshyjaire ideology is contradicted by government control of the profession and the regulation of the market for legal services 34 Smith is concerned that the emphasis on competition does not conform with Government attitude on legal aid namely to restrict competition through the rationing of resources 35 However Cownie points out that Thatcherite economics is inherently contradicshytory whilst trumpeting its belief in the free market it is prepared to indulge in regulation to achieve what it believes is right 36 The reforms are thus a clear application ofThatchshyerite philosophy

Initially market forces dominated the reform proposals but in an attempt to achieve a proper balance between maximum availability of services and the proper standards of competence and conduct 37 the Act places an important constraint on the doctrines application measures to protect standards of services and the quality of the judicial administration are of prime importance and will determine the limits within which the policy is to operate Nevertheless in future the provision oflegal services although not entirely open will be more competitive For example conshyveyancing by lending institutions is now possible but the Act stipulates that client safeguards must be met imilarly in respect of advocacy and litigation services anyone with suitshyable training and who adopts proper complaints procedures will be able to

offer services to the public The Director of Fair Trading will also play a prominent role in ensuring that rules pertaining to the provision oflegal services are not unnecessarily restrictive Professional rules conshycerning multi-disciplinary practices will apparently be the first to receive the Directors attention but since the legislation empowering him to conshysider the issue is not part of the 1991 Parliamentary programme it may be some time before the rules are tested The proposed situation is not satisshyfactory According to the Governshyments White Paper on Restrictive Trade Practices rules approved by a government minister will not be subshyject to attack This could lead to an anomaly which may not be easily resolved in practice 38

[R]ules made by The Law Society and approved by the Lord Chancellor on the regulation of advocates which incorporate a ban on [multishydisciplinary practices] would escape the [Office of Fair Trading s] scrutiny while rules prohibiting solicitors engaging in non-contentious work would not Thus litigation and advocacy would be protected while non-advocacy and non-contentious rules will be exposed

Consumerism The reforms also reflect a response to the rise of consumerism in recent years On a practical level there has been increasing public demand to improve the system of purchase and sale of property Delays in and costs of the conveyancing process led to calls for one-stop shopping - in effect conveyancing conducted by large institutions which also provide mortgage facilities Consumers also called for improved complaints procedures Parliament responded to these calls Another catalyst for reform identified by White is the changing character of legal work 39 which is also a response to consumer demand He points to the enormous explosion ofwork involving corporate commercial and financial services This is confirmed by Chambers40 who notes a major rift between large commercial firms and other pracshytices Surveys into the work of soli~ citors indicate that while the range of work falling within the category of legal services has not differed much over the years the volume of work in particular sub-categories has changed 41 Ten years ago conveyshyanCIng dominated solicitors


practices especially as regards smaller firms42 Now in terms of volume business and commercial affairs commercial property and residential conveyancing are the most important areas of activity 43 Conshyveyancing and litigation provide 55 of gross earnings 44 The rise of commercial mega-firms in recent years is as much a response to the needs of major corporate clients as to the concern to reduce operating costs Although a recent survey of over fifty large companies shows that the comshymercial client prefers a horses for courses policy when choosing lawshyyers45 large firms are favoured for company and commercial work because of the full range of specialist services which is often required 46

As British companies increase their activities in Europe pressures on lawyers to add an international dimension to their work will also increase Since client demand and sound business practice demonshystrated a need to revise practice methods Parliament responded by removing restrictions on the formashytion of multi-national and multishydisciplinary firms 47

Lay participation On a more general level the Act emphasises the rights of consumers of legal services and endorses the view that the administration of justice is too important to be left entirely to the legal profession 48 In addition to government intervention lay particishypation is necessary In respect of advocacy and litigation services the Act introduces partial involvement monitoring by the Advisory Commitshytee with a lay majority and the Legal Services Ombudsman A structure closer to the ideal is proshyposed for the regulation of conshyveyancing services regulation by an independent board comprising of professional and lay members and monitoring by an Ombudsman The Act therefore addresses consumer concerns and renders the regulation of legal services more open and democratic

Closely linked to the increase in consumerism but not as obvious a factor in prompting reform is societys contradictory attitude towards professions The modern tendency among many bodies is to organise themselves so as to comply with the traditional characteristics which functionalists suggest pro-


fessions should evidence This popushylar desire to be classified professhysional has eroded whatever value the concept had The social exclusivity associated with being a professional is gradually disappearing in the light of societys reluctance to accept the perks which such a classification traditionally offers self-regulation particularly in respect of training and the setting of standards restrictive practices and privileges Parliament did not accept the Benson Commisshysion view that the practice of law is purely a professional activity The provision of legal services by advice bureaux and law centres for example could no longer be ignored Once the idea of non-professional provision of legal services was accepted the major justification for restrictive practices fell away Calls for elitism have given way to those promoting a classless society

Intellectual ability Another hidden reason was the change in attitude towards the professhysional structure particularly among solicitors Historically the relationshyship between barristers and solicitors had been that of the senior andjunior branches of the legal profession Zander explains 49

The solicitors have always been treated by the Bar as inferior and had accepted their position They were drawn from the middle classes whereas the Bar tended to be upper middle class The barrister had been to university which until the 1960s was relatively rare for solicitors The Bar was defined by the system as the senior branch (The solicitor always comes to the barrister and not vice versa A barrister is not even permitshyted to go to a solicitors office for a conference) Even highly competent and experienced solicitors would defer to counsel

However in recent years the edushycationallevel of solicitors improved and so many of the ablest graduates were becoming solicitors that the Bar had felt obliged to set up a commitshytee to inquire into the matter 50 The increase in intellectual ability led to an increase in confidence Ultimately the long tradition of deference ended and the solicitors profession was no longer afraid to stand up for itself and to claim its full entitlement 51

As early as 1972Justice the British section of the International Comshymission of Jurists suggested that

solicitors be eligible for judicial appointment 52 At first the eligibility debate concentrated upon whether solicitors had the necessary advocacy experience but the performance of judges who were formally solicitors in the Crown Courts indicated that this was no major deficiency 53 By 1988 the Master of the Rolls the Lord Chancellor and the Marre Committee54 had expressed support for solicitors to be eligible for High Court appointment 55 Given such strong support and no opposition the time had come for Parliament to remove restrictions on senior judicial appointments Nevertheless expershyience in advocacy remains the criterion upon which judicial appointments will be based

Needs of society One is tempted to analyse the reforms purely in terms of response to pressshyures However the legislation also offers more than a reactionary acknowledgement of perceived problems associated with the proshyvision oflegal services It is clear that Parliament intended to use the opportunity which presented itself for a more far-reaching purpose a major overhaul of the framework within which legal services are rendered 56

The system has been modernised shysomething which the legal professions were unable to do themselves - and the structure within which services are rendered is made more flexible and responsive to the future needs of society Prohibitory rules have made way for permissive ones leaving it to the professions to adapt according to the demands of the market place The Act is therefore also proactive in nature although admittedly nowhere nearly as proactive as the Lord Chanshycellor had originally intended in the Green Papers

No matter how great the pressures for change practical factors ultishymately determine whether reforms are implemented Reforming the legal profession would never be easy and only a confident and determined government motivated by an ecoshynomic ideology would consider removing the restrictions on the proshyvision of legal services in England Even so it is believed that the previous Lord Chancellor Lord Hailsham a traditionalist and a vociferous opponent of the Green Papers succeeded in preventing the reforms from being tabled during his

11

term of office 57 Given his backshyground and indeed that of most Lord Chancellors - barristers who subseshyquently become judges and who are steeped in the traditions of the Inns ofCourt - a contrary attitude would have been surprising And even if the notion of reform were to be accepted it would be unlikely that changes would affect barristers adversely Lord Mackay on the other hand although an advocate and a judge was not drawn from the London Inns and had experience of a different sysshytem of law in Scotland With his appointment a measure of objecshytivity in assessing the situation was introduced 58 But Lord Mackays personality proved to be a decisive factor He appeared impatient with the professions inability to agree on rights of audience and thereafter evishydenced a resolve not to be cowered by cdbcerted and often hostile opposhysition to his proposals Yet he remained responsive to the professhysions fears and tried to accommodate their views The White Paper which presented a compromise solution offering something to everyone without apparently deviating from the original purpose was a tribute to his diplomatic ability He accepted the argument for protecting the divided profession but a less detershymined person may well have conshyceded more fundamental points

Basic monopolies Not all shared the view that the reform proposals amounted to an honest attempt to improve legal services Lord Ackner a former Law Lord suggested that the driving force behind the proposals was the Treasurys desire to save money59 and Lord Lane the Lord Chief Justice regarded the Main Green Paper as one of the most sinister documents ever to emanate from Government 60 Judges perceived the initial proposals to represent a grave breach of the doctrine of separshy

61ation of powers The proposals they feared particularly the control of advocacy certificates 62 were intended to grant the executive enorshymous power and the right to interfere in the judicial process 63 Others saw the proposals as an attempt to undershymine the existence of the bar and to facilitate fusion of the two professhysions64 The existence of a strong and independent barristers professhysion it was suggested was dependent

upon two basic monopolies exclusive rights of audience and the source for judicial appointments 65 The extincshytion of these monopolies would cause the bar to diminish in size quality and range of skills66 and lead to its ultimate demise

There is no reason to believe that the Lord Chancellor had a hidden agenda in proposing the reforms He did not intend to promote executive interference in the judicial process nor the demise of the bar 67 but it is evident that the initial reform proposals could have had such effects By reverting to first principles without regard to existing structures the Lord Chancellor failed to give sufficient recognition to the merits and successes of the existing system The drafters of the Green Papers had failed to determine whether society wanted a theoretically sound logical but untried system imposed upon it without regard to the established framework which despite some idioshysyncrasies had earned universal respect for its quality Although society was ready for change it seems that such change had to be evolutionshyary not revolutionary in nature Paliament took this into account which is why the Acts provisions are far less radical than the Green Paper proposals

Conditions in South Africa Over the years there have been a number of calls for a reassessment of the professional structure within which South African legal pracshytitioners operate but it is only in the past year or so that the restructuring of the legal profession appears to be of some priority Given the current reformist mood sweeping the counshytry coupled with the likely effect of the changes to the English legal strucshyture over the past decade the desire to reconstruct the framework within which legal services are to be renshydered comes as no surprise However whether calls for restrucshyturing will be successful is another matter Although some of the conshyditions which played a major role in creating a climate for reform in England have a familiar ring when placed in a South African context other perhaps more important feashytures are absent For example the attorneys conveyancing monopoly is

still intact and although the South African Government professes to promote free enterprise it does not share the same ideological drive as the Government in Britain to impleshyment a market forces philosophy in all sectors of society 68 The influence of consumerism although on the increase 69 is not sufficiently strong to exert pressure while the changing nature of lawyers work70 has not been so financially disastrous to date as to jolt attorneys into seeking new areas of work Current attitudes in South Africa towards many of the reform issues lag far behind those in England

As was the case in England an impasse exists between attorneys and advocates over the question of rights of audience in the Supreme Court 71 At first the debate centred around the question of fusion an issue which received prominence in law journals approximately thirty years ago 72 In the middle 1980s the attorneys profession rekindled the debate and raised serious doubts about whether their exclusion from appearing in the Supreme Court and from being appointed judges was justified The Bar realising the threat which pubshylic pressure posed to its privileged position mounted a concerted effort to rectify what it considered to be a misconception of its role in ensuring the proper administration ofjustice Two influential British proponents of the divided bar the Chairman of the Bar for England and Wales and the Chairman of the Royal Commission on Legal Services were invited to South Africa 73 The Bars most sucshycessful public relations exercise was its conference in Cape Town inJanushyary 1988 where the fusion issue was confronted directly In the debate on the question of a fused or divided profession attorney representatives conceded that fusion was undesirable and concentrated their efforts on calls for increased rights of audience 74

Advocates refused to recognise that this was a change in substance which would lead to different results They zealously argued that the attorney s demand for increased rights of audience was merely a change in strategy and another way of achievshying their ultimate objective fusion 75 At the conference the Bar launched ajournal Consultus which since then has served as a major vehicle for promoting the cause of the independent bar


Bars argument The gravamen of the Bars argument has always been similar to that of its counterpart in England advocacy is a specialist service requiring regular and constant practice in order to maintain skills The goal ofimprovshying access must be pursued without compromising the standards efficiency and professional integshyrity 76 of legal practitioners The Bars consultancy status exclusive rights of audience in the superior courts and its status as the (almost) exclusive pool from which judges are drawn ensure the quality of services rendered and of the administration of justice Initially the Bars campaign to promote its views appeared to have been successful but the rights of audience issue has now resurfaced 77

In response to the request by the South African Law Commission for representations to be submitted on aspects of a new constitution for South Africa the Association of Law Societies has proposed a dual ladder structure for the provision of legal services 78 This model links rights of audience with qualifications and proshyvides a number of points of entry to the profession each corresponding to a right of audience rung on the court ladder Competence to appear [is] pegged accordingly with those entershying on the bottom rung having their access limited to the lowest courts and so on 79 A person will be able to move up the ladder by improving his or her qualifications 80 Although advocates have not rejected the idea outright their persistent championshying of the divided bar system implies disapproval 81

In addition to the rights of audience issue there are deficiencies in the current structure which require redress Most are in some way associated with either access to justice or to judicial appointments

Access to justice The access to justice movement aims to highlight two basic purposes of a legal system that it must be equally accessible to all and that it must lead to results that are individually and socially just 82 The movement is still in its infancy in South Africa and was for some time regarded with a certain amount of suspicion since many issues involving access to justice also have political overtones In the past only a small number of lawyers and


political activists with foreign and non-governmental financial support were willing to establish structures aimed at improving access to the legal system At first a number of advice offices and legal aid clinics were established while lawyers volunshyteered their services in the pass law courts Later public interest law firms were formed These are now on the increase and more are likely to be established in rural areas

Although one cannot deny that practitioners have attempted to redress some of the inequities in the provision oflegal services they have in many respects been most reticent in modernising their procedures and in improving access 83 On the plus side amongst others is the promoshytion of alternative dispute resolution the relaxation of restrictions on advertising the special fee arrangeshyment in damages claims calls for a Legal Services Ombudsman the liftshying of the two counsel rule and the waiving by most bar associations of the rule requiring the attendance of attorneys in respect of pro bono matshyters However some bar associations still insist that attorneys attend with advocates in pro bono cases even though no such assistance is necessshyary in Supreme Court pro Deo matshyters In fact in ajoint statement the Association of Law Societies and the General Council of the Bar called for a revision of the pro Deo system amongst others suggesting that the advocate should be assisted by an attorney in all such cases 84 In addishytion restrictive practices concerning rights of audience conveyancing and litigation for reward are zealously guarded While representatives of the profession are making the correct noises suggesting that restrictive practices should be reviewed and that access should be improved 85 no active measures by the professions to implement these ideas have been apparent Professional self-interest remains the criterion upon which laywers perception of public interest is based and rules promoting access which are seen to affect adversely either the existence of a profession or its financial prosperity is vigorously opposed 86

Governments attitude Government to its credit has recogshynised that access to justice needs to be improved 87 Already it has introshyduced a system of small claims courts

and the jurisdiction oflower courts is revised regularly The Minister of Justice has also responded to lobbyshying from various sectors of the comshymunity and is currently investigating the feasibility of a public defender system for all accused in criminal trials 88 However the legal aid sysshytem - in its widest sense incorporatshying assistance in civil and criminal matters - suffers from a chronic lack of funds 89 Only in Supreme Court criminal matters can a person rely on state funded legal representation90

and assistance in civil cases is severely limited by financial constraints 9 1

Although the Minister of Justice has shown an interest in legal reform and a willingness to address issues raised by the legal professions 92

attempts to improve access to justice have lacked a coherent pattern Changes have been piecemeal and in areas where lawyers economic interests could be improved or minimally affected There certainly has been no thorough and frank appraisal of the present organisation of the legal profession and the system within which lawyers operate nor has Government indicated in any way what it hopes to achieve with its reforms An assessment of its goals is therefore required and the results should be made public Even if Government believes that the present structure is justified society is entitled to know the Governments point of view

Appointment of judges The second aspect mentioned above is the appointment of judges The South African judiciary like its counshyterpart in England is technically of a high standard This is largely due to the Benchs extensive advocacy experience However it is no secret that there is a shortage of suitable candidates willing to accept judicial appointment93 and current popushylation trends indicate that the numshyber of judges will have to increase considerably in the not so distant future Projections show that there are not enough advocates to meet the expected demand94 and the proporshytion of advocates who become judges is much higher than is prudent 95

Another aspect is that the number of black and female advocates is not sufficient to redress the imbalance of white male judges Appointments from outside the ranks of advocates will have to be made 96 Already we

13

are experiencing attempts to redress this imbalance with increasing calls for the implementation of juries 97

Other than the need to ensure that judicial decision makers are represenshytative of all South Africans there is no logical reason for returning to the jury system

By far the most dominant catalyst for reforming the legal professions is the ultimate political reality that a government which is representative of all South Africans will consider it necessary to restore imbalances based on past discrimination For example Ed Southey the Association of Law Societies President accepts that [i]f economics does not force a change then politics will 98 and Milton Seligson SC Chairman of the General Council of the Bar recogshynises that the Bar needs to respond to modern challenges and examine its role in this rapidly evolving society which is characterised by momentous change 99 With the advent of majority rule both Zimbabwe and Namibia opted for a single fused profession and unless substantial structural changes are made in order to render the professions and the judiciary more representative of society as a whole South Africa will probably follow suit

To date however the rhetoric of reform has not gone much beyond the preliminary posturing stage Although the Minister of Justice requested the professions and the judiciary to comment upon the Green and White Papers in EnglandlOo the Bar has not approached the issue with a real sense of urgency This is perhaps understandable for the advocates restrictive practices are probably most at risk On the other hand attorneys who have more to gain have put forward a number of suggestions for consideration

Public input A striking feature of the reform debate in South Africa in contrast with that in England is the lack of public input whether formally or informally Control of the provision of legal services it appears is too important for lawyers to share with others Thus while the Minister of Justice is prepared to call for comshyment from the legal professions and the judiciary no similar call is made to consumer or political organisshyations or the public in general 101

Legal services reform is viewed

entirely from the perspective of those who supply the services little attempt is made to determine what society requires Audi alteram partern it seems does not apply in this sphere

The lack of urgency in the debate could be due to the perception that the majority rule D-day is some way off While the Minister ofJustice has in the past introduced reforms to the judicial process even against the professions wishes it is unlikely that the Government will adopt Lord Mackays hardline attitude ofbrowshybeating the professions into acceptshying changes to their structure On the contrary the Minister of Justice intends being guided by the professhysions and will not propose changes which do not carry the respective professional approval 102 Since the General Council of the Bar has adopted a substantially similar atti shytude to reform as the barristers profession did in England the English experience suggests that conshysensus on fundamental issues belongs to a Walter Mitty world

As in England it seems that the Sou th African professions are unlikely to evolve in response to the demands of modern society without substantial outside pressure Many practitioners believe that the current structure is in the public interest but this view is based either on outmoded traditions and the retention of restricshytive practices (ill-suited to a country in which discrimination will hopefully be outlawed) or on economic selfshyinterest or on both As in the past reform proposals will probably be clouded by allegations and countershyallegations of improper motive on the part of those who suggest them To some extent of course this may be true Advocates will always oppose the extension of rights of audience and similarly attorneys will not take kindly to suggestions that conveyancshying should be conducted by others Since the issues are so close to home the consensus approach adopted by the Minister of Justice is perhaps inappropriate Structural reforms should be imposed by a source outshyside the professions After all nemo iudex in causa propria sua

Conclusion The provision of legal services is a constitutional issue and a proper legal system geared to the needs of our society is as much a priority as is a just electoral framework The

structure of the legal professions and the services lawyers are expected to offer should reflect the values of the society in which the system operates Therefore in considering their role in a future South Africa the professhysions should ensure that they serve the requirements of the emerging society While a frank appraisal of the situation may well reveal that current structures are sufficient to deal with societys needs and aspirations it may also indicate on the other hand a need to revert to first principles and to establish a clean break with the past The necessity to improve the situation has been recognised by Government the professional bodies and other agencies but as was the case in England prior to the Green Papers the problems are not being addressed in a co-ordinated fashion Changes which have occurred have been piecemeal and have sometimes been regarded with suspicion by others involved in improving legal services There appears to be a lack of overall direction in setting out the objectives of the ongoing reform process in which the various parties are engaged However one does not need to be clairvoyant to determine which values will not be promoted in a non-racial democracy To the extent that those values are reflected in the professional structure and organisation changes could and should be made immediately

This article is the product of research conducted at the University of Leishycester I wish to thank Robin White and Fiona Cownie for offering me insights into some of the subtleties of the English legal system and I am especially grateshyful for the financial assistance I received from the Attorneys Fidelity Fund Rhodes University and The Ernest Oppenheimer Memorial Trust

The Work and Organisation of the Legal Profession Cm 570 (Main Green Paper) Contingency Fees Cm 571 and Conveyancing by Authorised Pracshytitioners Cm 572

2 Legal Services A Framework for the Future Cm 740

3 Milton Seligson SC End of the Green Paper Saga - A South Afrishycan Perspective (1990) 3 Consultus 76

4 Per Minister of Justice Debates of Parliament (Hansard) Second Session Ninth Parliament col 7283 26 April 1990

5 Section 15 6 Section 35(7)


7 Section 45 8 Section 47 9 Schedule 4 s 11

10 Section 37 11 Section 57 12 Schedule 9 s 2 13 Section 66 14 Section 58 15 Section 71 16 Hansard 5th Series HL Vol DV col

13077 April 1989 17 Evening Standard 26 January 1989 18 Robin CA White The Administration

oj Justice 2ed 252 Michael Zander A Matter ojJustice (1989) 24

19 For a full account see Zander op cit note 18 at 95ff

20 See generally Lee Marler A professhysion in turmoil 1990 De Rebus 312

21 See Law Societys Gazette 26 J anuary 1987 p 235 Zander op cit note 18 at 12

22 White op cit note 18 at 254 Zander op cit note 18 at 24 Marler op cit note 20 Although the Benson Comshymission had suggested maintaining the Bars monopoly in respect of Supreme Court advocacy services the decision was reached by an 8-7 majority (Report oj the Royal Commisshysion on Legal Services (1979) Cmnd 7648)

23 [1986] 1 QB 536 (CA) 24 In terms of procedure set out in RSC

Ord 82 t 5(2) 25 Judges as a collegiate body determine

what rules apply as was done subseshyquently in Practice Direction [1986] 2 All ER 226 which gave solicitors right of appearance in the Supreme Court in formal and uncontested matters

26 The Committee on the Future of the Legal Profession (The Marre Comshymittee) A Timejor Change (1988)

27 Per Lord Mackay Hansard supra note 16 col 1309 The Times 16 March 1989 The Times 21 August 1990 The Law Societys Gazette 1 February 1989 p 2

28 See the Main Green Paper op cit note 1 paras 14-110

29 The Times 16 March 1989 30 A Green Paper entitled Review of

Restrictive Trade Practices Policy Cm 331

31 Main Green Paper op cit note 1 para 110 Hansard supra note 16 col 1309 7 April 1989

32 Per Lord Mackay The Times op cit note 29

33 Main Green Paper op cit note 1 paras 11-13

34 Richard LAbel Contradictions in the green papers The Law Societys Gazette 22 March 1989 p 14 This comment applied to the Green Paper proposals The Act did not impleshyment all the control measures which were initially suggested

35 Roger Smith The Green Papers and Legal Services [1989] 3 Modern LR 527 at 530


36 Fiona Cownie The reform of the legal profession in The Changing Law by Fiona Patfield and Robin White (eds) (1990) 213 at 219

37 The Times op cit note 29 Hansard supra note 16 col 24420 December 1989

38 The Law Societys Gazette 13 December 1989 p 4

39 White op cit note 18 at 252 See also Lord Mackay Hansard 5th Series HL Vol DXIV col 125 19 Decemshyber 1989

40 Michael Chambers (ed) The Legal Projession (1990) 9-10

41 See David Podmore A Survey of West Midlands Solicitors 11 - The Work m Gerry Chambers and Stephen Harwood Solicitors in England and Wales in Private Practice (1990) Firms have also been severely affected by the poaching of tax conshysulting work by accountancy firms (Marler op cit note 20)

42 Report of the Royal Commission on Legal Services supra note 22 Table 61 p 117

43 Chambers and Harwood op cit note 41 at 19 and 32 Marler op cit note 20

44 General Council of the Bar Quality oj Justice The Bars Response (1989) 45 Chambers op cit note 40 at 26

45 Chambers op cit note 40 at 26 46 Chambers op cit note 40 at 27

Zander op cit note 18 at 41-2 47 In 1979 the Benson Commission

opposed the idea ofmulti-disciplinary practices but its Scottish equivalent held a contrary view which was endorsed in 1986 by the Director General of Fair Trading in a Green Paper (see note 30) The English solishycitors profession is divided on the issue but The Law Society of Scotshyland rejected multi-disciplinary pracshytices (Zander op cit note 18 at 19-24 and 307-8) Clearly this deadlock similar to the one on rights of audience needed to be addressed


49 Zander op cit note 18 at 27 50 Loc cit 51 Zander op cit note 18 at 28 52 Justice The Judiciary (1972) 53 Michael Zander A Matter ojJustice shy

The Legal System in Ferment (1989) 116 54 Marre Committee op cit note 26 at

170 55 Zander op cit note 553 at 115 Secshy

tion 9( 1) of the Supreme Court Act 1981 provided for temporary appointment of solicitor judges to the High Court Bench at the request of the Lord Chancellor

56 Per Lord Mackay Hansard supra note 39 col 125-6

57 The Times 27 May 1986 58 For a similar opinion see Roger

Henderson An illusion of choice for consumers [1989] 139 New LJ 140

59 The Law Society s Gazelle 7June 1989

p 6 See also Roger Smith The Green Papers and Legal Services [1989] 4 Modern LR 527 at 529-30

60 The Guardian 17 February 1989 61 The Green Papers Judges Response

p (ii) 62 Parliament did not implement this

Green Paper proposal 63 Per Lord Devlin The Times 10 March

1989 64 The Times 7 February 1989 65 Per Lord Ackner The Times 23 Febshy

ruary 1989 66 Per Sir Gordon Borrie The Times

8 March 1989 67 Lord Mackay believes that the Bar

ought to and will survive the compeshytition from others as a result of excellence however not because it is bu ttressed by legal restrictions ([1989] 139 New LJ 210)

68 Although the Minister of Justice believes that market mechanisms should determine where lawyers render their serVIces (Interview (1990) 3 Consultus 88)

69 Editors interview with Ed Southey 1990 De Rebus 839

70 Southey op cit note 69 at 841 71 Publicly however representatives of

the professions try to play down the differences (see Nico Coetzer Advokate en Prokureurs (1990) 3 Consultus 91-2

72 See amongst others AS Hoppenshystein Fusion - The Answer to the High Cost of Litigation (1959) 76 SALJ 296 G Colman The Cost of Litigation - The True and the False Remedy (1959) 76 SALJ 390 AS Hoppenstein Fusion - A Replicashytion (1960) 77 SALJ93 CJ Claassen Retain the Bar and Side-Bar (1979) 87 SALJ25

73 Robert S Alexander An Indepenshydent Bar (1988) 105 SALJ 54 and Lord Benson The Future of the Legal Profession in South Africa Is Fusion the Answer The English Experience (1988) 105 SALJ 421 (See also RH Zulman SC First National Bar Conference Cape Town 7-8 April 1988 (1988(2) 1 Consultus 8-10)

74 See the summary of the addresses by SW van der Merwe and Keith Wilshyson respectively the immediate past President and President of the Association of Law Societies at the time (Zulman op cit note 73 at 10)

75 Unfortunately persons skilled In

argument have allowed the kernel of the debate to be clouded by emoshytional side-issues The right of audience in superior courts is not a pillar upon which the advocacy profession rests it is a privilege which some lawyers have managed to annex for themselves The extension of the privilege to all lawyers will not affect the existence of the advocates professhysion As Zander points out (op cit note 53 at 24) The real basis of the distinction is that barristers have the

15

monopoly appearing as advocates and of being appointed to the bench in the higher courts whereas solicishytors have the monopoloy of the right of direct relations with the lay client Advocates are thus also within their rights to insist that all monopolies should be reconsidered

76 Seligson op cit note 3 at 79 See also the General Council of the Bars press statement of 23 July 1990 and Southey op cit note 69 Practitioners give little consideration to the fact that the standards which are set may be excessive Standards should corshyrespond to societys requirements and insistence on unnecessarily high standards oftraining and competence serves only to promote exclusivity and becomes a disguise for maintainshying restrictive practices

77 However one of the major pillars supporting the Bars argument no longer exists In England the Bar conceded albeit most reluctantly that modernisation of the system was necessary The current English legisshylation ably demonstrates that provishysions allowing solicitors to become judges and to appear in superior courts are compatible with the exisshytence of an independent bar Condishytions in South Africa are not so different as to warrant a contrary conclumiddotsion After all it was the similarity of the situations that led the South African Bar to rely so heavily upon the views and conditions in Brishytain in the first place

78 SeeALS proposes new legal dispenshysation for South Africa 1990 De Rebus 587 at 588 - 8

79 Editorial 1990 De Rebus 427 See also Barbara Lucatti Academics link up with practitioners 1990 De Rebus 592

80 This system is similar to the model adopted in England but at first blush it appears less bureaucratic and more suitable to South Africas needs

81 See Seligson op cit note 3 at 79 as well as the editorial comment in (1990) 3 Consultus at 71 and 79

82 Mauro Cappelletti and Bryant Garth Access to Justice VoIlA World Survey Bk 1 P 22

83 See for example the initial attitude of the Bar towards alternative dispute resolution (1990) 3 Consultus 86 at 88) its opposition to conciliation courts (CJ Claassen SC Annual General Meeting of the General Council of the Bar (1990) 3 Consultus 80 at 82) and the general scepticism towards the introduction of Family Courts

84 Joint statement by ALS and General Bar Council 1990 De Rebus 151 at 152 The present writer is well aware of the argument that advocates and attorneys perform separate comshyplimentary functions in the conduct of a trial but remains unconvinced

16

that a two practitioner rule is a necessary requirement for justice to be done in all cases In a country where most accused are unrepresenshyted such an arrangement is a luxury

85 Seligson op cit note 3 at 79 Southey op cit note 69 See also JJ Gauntlett A Next Generation of Jurists in a Just and Democratic South Africa (1990) 3 Stell LR 411 at 413

86 Editorial entitled Lawyers and the Courts - Where IS the Public Interest (1986) 136 New LJ 597 See for example Southey op cit note 69 at 841-2

87 Minister of Justice op cit note 4 col 7285

88 See the Minister of Justices press statement (1990 De Rebus 510) and the Legal Aid Boards announcement (1991 De Rebus 14) The Legal Aid Board disclosed that ten public defenders would be appointed to appear for indigent accused in the Johannesburg Magistrates Court as from 1 June 1991 (Eastern Province Herald 24 January 1991 Weekly Mail 25 January 1991)

89 DJ McQuoid-Mason Public Defenders and Alternative Service (1990) 2 WUSLR 99 Southey op cit note 69

90 Although not always as of right 91 During the 19881989 financial year

the Legal Aid Board was forced to suspend legal aid for criminal and civil appeals and civil matters where the quantum of the claim did not exceed R2 000 For the period 1 April 1988 to 30 November 1988 legal aid for actions justiciable in the industrial court was also suspended (SE van der Merwe Legal Aid Board 1990 De Rebus 607)

92 See (1990) 3 Consultus 86

93 See Corbett CJ Speech to the Johannesburg Bar (1989) 2 Conshysultus 73 at 75 Although two major reasons for refusal implementing capital punishment and apartheid laws may no longer be relevant

94 See generally the address by Mr Justice PJJ Olivier at the first National Bar Conference but conshytrast that ofViljoen SC (Zulman op cit note 73 at 14-5)

95 According to MrJustice Olivier the ratio between judges and senior counsel in 1988 was 16 (Zulman op cit note 73 at 14)

96 Professor David McQuoid-Mason believes that [t]he repeal of apart shyheid legislation will help to restore the legitimacy of the legal system but if the legal profession and judiciary are to have credibility it will be necessary to change their composition to reflect the broader South African community (Philip van der Merwe Thirteenth SA Law Conference challenges to attorshyneys 1990 De Rebus 456 at 457)

97 Note the support for Jules Browde SCs suggestion at the Thirteenth South African Law Conference (Van der Merwe op cit note 96 at 457) the editorial comment in 1990 De Rebus 507 and NG Woods letter to the editor (1991) De Rebus 6) but contrast L Rood A return to the jury system 1990 De Rebus 749 and Kannemeyer JPs address to the Law Society of the Cape of Good Hope (1991 De Rebus 18)

98 Op cit note 69 at 843 99 Milton Seligson SC The Bar and

Change A Roadmap for the Way Ahead (1990) 3 Consultus 6

100 Op cit note 68 at 88 101 Loc cit 102 Loc cit bull

Butterworths Prize

Advocate J eremy Gauntlett SC of the Cape Bar was awarded the 1990 Butterworths Prize for the article containing the most useful and best motishyvated law reform proposal namely Appointing and PromotingJudges Vhich way now (1990) 3 Consultus 23


conveyancing services 6 In future banks building societies and insurshyance companies will be able to proshyvide such services Similarly probate and trust work are open to all pershysons including lending institutions and their subsidiaries who adhere to proper complaints procedures 7

Territorial limitations on notaries and the need for apprenticeship have been removed and the Master of the Faculties will in future determine the requirements for providing notarial services 8

The Act entrenches all existing rights and gives the General Counshycil of the Bar and The Law Society the power to grant to their members those rights which their existing members have always enjoyed Should either body wish to grant more extensive rights or should any other institution wish to grant rights authorisation therefor must be obtained Applications for advocacy and litigation rights are submitted to the Lord Chancellors Advisory Committee on Legal Education and Conduct and to the Director of Fair Trading who will ensure that they comply with the statutory objective and the regulations on competition Thereafter the applications are subshymitted for approval to the Lord Chancellor and four designated judges 9 The right to conduct conshyveyancing will be granted by the Authorised Conveyancing Practishytioners Board lO and the Lord Chanshycellor and the President of the Family Division will determine who will do probate and trust work 11 Notaries will be authorised by the Master of the Faculties 12

Rationale The rationale for the authorisation process is quality control but the procedure also renders participation in the administration of legal services less exclusive The Act retains the traditional quality control measures professional self-regulation and judicial supervision but these are supplemented by a system oflay parshyticipation Control will no longer vest solely in lawyers The Advisory Committee has a majority of lay members and the Authorised Conshyveyancing Practitioners Board will have an equal number of lay and practitioner members Thus in conshyveyancing matters the public is given ian effective right of participation but since the Advisory Committee


has no decision-making powers lay participation in controlling court work - advocacy and litigation - is restricted The Committee could nevertheless play an important role in ensuring that quality of services suit the needs of society Its recomshymendations could temper the views of those who wish to set standards at too high a level

Other institutions which are intended to serve the dual purpose of lay involvement and quality control are the two Ombudsman offices the Legal Services Ombudsman which replaces the Lay Observer and the Conveyancing Ombudsman Howshyever like the Advisory Committee they are essentially monitors of professional conduct and procedures

Partnerships The provisions aimed at modernising the professions working methods evidence an attempt to balance client demand especially that of the large corporations and the fear of the independent bars demise The Act does not endorse any professional structure and leaves it to the professhysions to decide how their services should be provided Statutory restricshytions on forming multi-national and multi-disciplinary partnerships have been removed but professional bodies may continue to prohibit members from forming partnerships whether amongst themselves or with persons outside their professions 13

Indirectly therefore the Act has entrenched the divided bar system Fusion of the professions has neither been imposed nor facilitated It will occur only if and when barristers and solicitors so desire Nevertheless the Act introduces a structural flexibility which did not exist previously

The Act also provides for an additional method of remuneration in certain cases the conditional fee agreementl~ The parties can now stipulate that payment for fees and expenses either wholly or in part will be subject to agreed conditions usually the successful outcome of the litigation and the fees may be adjusted to compensate the pracshytitioner for the risk involved The innovation is interesting not only for its purpose which is to improve client access but also for the implicit conshyclusion that contingency fees remain unacceptable in England

The least controversial of all the reforms was the removal of the

restrictions affecting judical appointshyments 15 While experience in superior court advocacy remains the dominant criterion for appointment to the Supreme Court a background as a judicial officer in the lower courts will also suffice in future The effect of the changes is that solicitors are now also eligible for elevation to the Bench

Reasons for English reforms In opening the debate in the House of Lords on the reform proposals the Lord Chancellor Lord Mackay pointed out that they formed part of a comprehensive programme for securing a better and more costshyeffective service to the public from lawyers and the courts 1 6 The moral purpose therefore was to make the law affordable accessible and comprehensible to the ordinary person 17

For many years solicitors and barshyristers had been tolerant of each others restrictive practices and had been successful in persuading the public that lawyers alone knew how to ensure that the administration of justice was regulated in the public interest Despite rumblings in their ranks the majority of solicitors appeared to favour the status quo At least three events set the scene for change 18 the Glanville Davies affair where The Law Societys failure to deal effectively with complaints against a solicitor highshylighted its inability to regulate professhysional conduct 19 the ending of solicitors conveyancing monoshypoly 20 and the liberalisation of advertising restrictions 21

The second of these events was probably the most influential The Administration of Justice Act 1985 established a new profession of licensed conveyancers and removed the solicitors monopoly on conshyveyancing services Institutional conshyveyancing was accepted in principle Naturally solicitors began to lobby for the removal of barriers which prevented them from increasing the scope of their activities 22 Rights of audience was the obvious target and the issue was brought to a head in Abse v Smith 23 Parties to a libel action had agreed to settle their disshypute and approved a statement to be read in open court 24 The solicitor for Smith considered counsels fees

9



























11

























13















































































15











16


















Butterworths Prize





























11

























13















































































15











16


















Butterworths Prize



























13















































































15











16


















Butterworths Prize

















































































15











16


















Butterworths Prize













16


















Butterworths Prize



the legal professions pointers towards structural reforms* · the legal professions pointers...

Documents