THE cost of legal representation in South Africa is higher than in the US capital of Washington DC because in South Africa three lawyers do the work of one, Inkatha Freedom Party MP Mario Oriani-Ambrosini said last week during discussion on the Legal Practice Bill.
He passionately urged that the bill, now before Parliament’s justice committee, should remove the distinction in law between attorneys and advocates.
One of the crucial issues that has dominated the formulation of the Legal Practice Bill has been whether to "fuse" the two professions or to "unify" them under a single Legal Professions Council.
The distinction between attorneys and advocates was inherited from South Africa’s historical connections to Britain, with its solicitors and barristers. In Britain, a prolonged transformation of the legal profession over more than 20 years has seen it retain the distinction.
At issue in the British developments, as in South Africa, was to make access to legal services easier and more affordable. It is common cause that services in South Africa cannot be afforded by ordinary people and that in a lawsuit with a large corporation, for instance, the latter would use its deeper pockets to win.
In the formulation of the Legal Practice Bill to transform the legal profession, consideration was given to the fusion of the professions. But vociferous objections from both the Law Society of South Africa and the General Council of the Bar caused the Department of Justice to adopt an approach of unification, while retaining the distinction.
In submissions to public hearings on the bill, the Independent Association of Advocates of South Africa and some individuals insisted that "the professions of attorney and advocate" should fuse. In reply, the department said initially the mandate was to merge or fuse the two professions. But due to fierce opposition from branches of the legal profession, the government made a concession.
Mr Oriani-Ambrosini said believing that lawyers would voluntarily make changes in the interests of the consumers of legal services was "like putting the fox in charge of the chickens".
He said legal services were more expensive in South Africa than in most of the world’s capitals, including Washington, basing his view on 13 years as a lawyer in the US and Italy.
He referred to the possibility that in a South African case an attorney could brief a junior counsel, and then senior counsel could become involved, meaning that "three people do the work of one". He also stressed the pace of legal work was slow and reminded his colleagues that all involved in the process charged by the hour, which sent costs skyrocketing.
"People who pay the legal bills are fed up and we should not betray them; we need to have the guts to do what is right," Mr Oriani-Ambrosini said.
In response, African National Congress MP John Jeffery said he had some sympathy with Mr Oriani-Ambrosini’s position. "Do we really need attorneys and advocates? It would be of interest to see what has happened in other countries."
Another point of contention is the retention of a senior level of advocates, known in the profession as having taken silk, but no provision is made in the bill for silk status. The court battle over whether the president has the power to confer senior counsel status on advocates is now headed for the Constitutional Court.
Democratic Alliance MP Dene Smuts noted last week that the debate in Britain over fusion had begun when Margaret Thatcher was prime minister and had been rejected. She said she was opposed to "legislated fusion" because this was an evolutionary process.
Ms Smuts also said there would be times when the skills of advocates would be needed in court, but that sight should not be lost of the urgency of controlling the cost of legal services.
African Christian Democratic Party MP Steve Swart said that as a member of the side bar, there were times "when I would rather have an expert advocate such as George Bizos argue my case".
The General Council of the Bar claims that the Legal Practice Bill gives no substance to the transformation of the legal profession.
When challenged, the justice department said the bill provided for one umbrella body to regulate attorneys and advocates and that this body, the Legal Professions Council, would be required to report to the justice minister regarding intervention to improve access to the legal profession and access to justice broadly.
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