09 December, 2005

Watchdog called on to take stick to SA’s law societies

Legal Affairs Correspondent CAPE Town information technology lawyer Reinhardt Buys said yesterday he hoped the Competition Commission would force law societies to change some of their anticompetitive rules. Buys filed a complaint with the commission late last month, highlighting the anticompetitive rules of different law societies that prohibited law firms from marketing themselves and from offering legal services lower than the prescribed minimum. “The basis of our complaint is that the current South African regulation of attorneys fails to recognise the difference between regulation of the profession and representation,” Buys said. The country’s law societies are the professional bodies to which all practising attorneys must belong and by whose rules they must abide. There are four such societies: the Cape Law Society, the Free State Law Society, the KwaZulu-Natal Law Society and the Law Society of the Northern Provinces, which includes Gauteng. Buys said he was awaiting a response from Justice Minister Brigitte Mabandla to a complaint he filed with her early last month. In an open letter to Mabandla, Buys called for the scrapping of the Attorneys Act and the dissolution of the law societies. “We did not receive any response from the minister ... This is rather disappointing because we truly believed the minister shared our concerns.” The Law Society of SA dismissed Buys’ call, saying all professions need regulation. It said the interests of the public would not be protected without the Attorneys Act. It said issues Buys had raised would be discussed. Buys said representation and regulation should be two different functions. “Although it may be true that the law societies represent the legal profession, it is simply not correct to assume that they should also regulate the profession.” “Within our legal profession, these rules and functions are confused and the representative body is also the regulatory authority. Imagine if a group of liquor store owners replaced the Liquor Board to regulate and license liquor stores.” http://www.businessday.co.za/articles/topstories.aspx?ID=BD4A124985

04 December, 2005

Proud to be African

Our legal system should be Africanised, demands Judge John Hlophe. He's part of a whole chorus demanding that the South African economy, the universities, parliament, the civil service, the arts and the media in our country should now be Africanised, writes, Max du PreezI like Africa. I like the people and the cultures and the styles of African people in all the African countries I have visited. I have a deep respect for the history and heritage of Africa. I am proud to be an African. I see Africa as the Mother Continent where all spirituality, culture and civilisation have their roots.So on the face of it, I should also be in favour of a general "Africanisation" of our society. If only I knew what was meant by it. Judge Hlophe himself didn't help much. He gave one example which had nothing to do with the essence of a legal system or common law, and more about insufficient evidence put before a magistrate. Most of the other suggestions put forward represent pure nostalgia for a traditional, rural lifestyle of generations ago that would be completely impractical in our present largely urbanised society. Judge Hlophe's recent admonitions to attorneys on how they should walk and dress in court - white shirts and dark suits, no short skirts - in fact, seemed very British. Academic Malegapuru Makgoba also had a mouthful to say about Africanisation recently. White people should learn to eat, drink, dance, talk, dress and act like black people if they want to be "rehabilitated". It was just silly. An Afrikaner farmer from the deep platteland lives much more "like black people" than Makgoba himself or most of the new black elite from where the Africanisation calls mostly come. I do think there are some facets of our common law that should be adapted to our circumstances. We need to make provision for people to have more than one spouse, for instance. But if we declare that a man may have more than one wife but a woman only one husband, in accordance with African custom, we would be in breach of our constitution's stipulations on gender equality. The same problem pops up when the restoration of some of the powers of traditional leaders is considered: they were not democratically elected. "Africanisation" can never be allowed to contradict our constitution.I do think our parliament can be more "African". One example: It is a very old and respected African custom for the representatives of the ordinary people to address the king or the chief (the head of state). Yet in our new parliament the head of state is very seldom present. Another example: In the African tradition, people with problems or complaints went to their local chief or elder, who took the issue to the highest authority. This was the way the chief or king remained in touch with his people. That suggests we should have a constituency system where every citizen knows who his or her local representative is. LanguagesYet our ruling party is vehemently opposed to any form of constituency system.If we are serious about the Africanisation of our society, I believe the first place we should start is with the protection of our languages. We are fast becoming an English-only country. Speaking English is seen as proof of sophistication and success. We should have mother tongue education up to at least secondary school level and we should encourage people to converse with the state in their own languages - in the offices of the bureaucracy, the courts and the elected assemblies. But when we consider the Africanisation of our society, we should be very clear in our thinking. The South African nation consists of more than just black people. Among our "Africans" are also people of Indian extraction, Muslim people who call themselves Cape Malays, the diverse group formerly classified as coloureds, Afrikaners, white English-speakers, even Portuguese speakers and people of Chinese ancestry. The whole ethos of our new deal is that all communities are entitled to their culture, language and way of life. When we "Africanise", we have to remember these groups are Africans too; their customs, traditions and heritage are as valid to be accommodated as the majority grouping.In any case, which "Africa" are we talking about? It is a vast continent and cultures, lifestyles and customs differ vastly. We don't have all that much in common with the peoples of, say, Mauritania, or Burkina Faso. Shouldn't we be talking about our region only?After generations of colonialism and apartheid, most South Africans suffer from an inferiority complex bordering on self-loathing. We constantly look to the outside for validation.I believe it would be to our advantage as a nation if we could shift our own view of ourselves, if we could generate more pride in our history and heritage. We should stop trying to be like Europeans or Americans. If that's what is meant by Africanisation, I support it wholeheartedly. http://www.dailynews.co.za/index.php?fArticleId=2980633

Protect SA’s law from mawkish sentimentalism

IN THE Cape Argus ( November 15) respected journalist Michael Morris makes a bold attempt to give credence to Judge Hlophe’s controversial call for the “Africanisation” of the law, but fails. Mindful of the binary Eurocentric-versus-Afrocentric arguments that lead nowhere, he invokes much of the view of Prof Hugh Corder, dean of law at the University of Cape Town, that “it is fundamentally healthy that questions are raised about the values against which the law is interpreted,” but that this issue be separated from the controversy of racism within the judiciary. For him the latter is a managerial matter that should be dealt with in-house, the former has to do with the application of the law and is a valid concern. Both Corder and Morris sympathise with Hlophe’s view that South African law would do well with a good infusion of “African values”. As usual they haul out the hackneyed example of ubuntu, and then sink into the South African sin of “exceptionalism”, claiming that our extraordinary diversity inspired a legal system that has become “something of a prototype … in a developing country not shackled to one particular parent system”. Morris knows he is skating on thin ice, hence all the caveats and the use of Corder’s arguments to give legitimacy to a post-1994 obsession that everything should be Africanised, as though this notion imbues legal practice with a nobler quality. This romantic nonsense is at the heart of slovenly thinking dressed up as deep thought and inspires a populism disrespectful of the rule of law. What does it mean to Africanise the law, or to Americanise or Europeanise it for that matter? These words are used glibly when no one dares to define it, and it is on this score that Morris’ assumptions should be debunked. The flow of the law is no longer unidirectional, from developed to developing countries. Postcolonial societies and globalisation have had profound cultural and political influences on the interpretation of the law, hence the richness of jurisprudence internationally. The US Supreme Court cites cases from South African jurisprudence as they do from many countries across the world. Similarly, South African law draws on seminal judgments from all over the world. Human rights law in particular has had to deal with the challenges thrown up by cultural diversity, customary law, and gender equality in keeping with the demands of modern society. Conceived in patriarchy and racism, Roman Dutch law has undergone radical amendments over decades. Feminists from the Seneca Convention to the British suffragists, and from Amsterdam to Botswana, have contested the sexism and racism implicit in the law. As early as 1791 in France, Olympe De Gouge questioned the French Declaration of the Rights of Man with her Declaration of the Rights of Women, and had her head chopped off. The irony is that while France has moved on, many of its former colonies have remained static, still supporting sections of sharia law and its iniquitous impact on women. “To infuse with African values” assumes that the law will be kinder to the oppressed; it assumes that what is indigenous is kinder. And this is not always so. In the case of Amina Lawal, sharia law was deeply uncivil towards her rights as a woman. Similarly the idolised notion of ubuntu covers a multitude of sins in customary law against the rights of women — with regard to sexuality, marriages, inheritance, divorce, children, circumcision, virginity testing, etc. Throughout history African women have challenged customary laws that discriminate against them. Just to give a thing an African name does not “purify” or ennoble it. Where “African law” has not been codified or documented it can be invoked to mean anything. In the vacuum of definition, restorative justice in the mind of the victim, for example, can mean vigilantism, the necklace, the kangaroo court, etc. On the other hand, scholars such as Thandabantu Nhlapo have pointed to many examples of African customs that would do wonders for family law and the social welfare system, provided the values underlying the African family were properly understood and applied. Finally, the question of equal access to customary law is an aspect very few people have given attention to. Do only certain tribes have rights to customary laws or do we grant Ben Travato his wish to have two wives? Or is this the preserve of the indigene? If so, who is the indigene? We have to be careful what we ask for, or we might fall into the trap Orwell warns of — “that slovenly language and slovenly thinking begin to feed off and reinforce each other: the slovenliness of our language makes it easier for us to have foolish thoughts”. ‖Kadalie is a human rights activist based in Cape Town. http://www.businessday.co.za/articles/opinion.aspx?ID=BD4A117744

Cape Law Society welcomes judgment against the buying of work

In a Judgment of the Cape High Court, (Case No 3475/04), Judges S Desai and Erasmus H J ruled against the buying of work by attorneys which can exist in various forms. This decision confirms the Cape Law Society's view that the independence of the profession is non-negotiable. This offers members of the public the reassurance that their freedom to choose an attorney in all legal matters will enjoy the protection of the courts. Members of the public are advised to ensure that they appoint the attorney of their choice. The public is cautioned to question any referral by a third party to attorneys. It also is important that the public fully understand the relationship between the attorney and the person making the referral. The client must understand the fees payable, discounts and rebates which the attorney will grant. Clients must insist on total transparency in the way all payments will be affected with all parties involved. The trust between an attorney and the client is paramount and should not be subject to any interventions by a third party. Members of the attorneys' profession also welcome the considered judgment. As a profession, attorneys have always called for strong action against the buying of work. This is a landmark judgment and sets a new normative standard dealing with the buying of work at all levels. The precedent will accelerate the campaign nationally to stop the buying of work. Contact details Nalini Gangen Director Cape Law Society 021 424-8060 Waalburg 28 Wale St Cape Town Mobile Phone: 082 800 5093 Nalini.Gangen@capelawsoc.law.za Ashoek Adhikari Vice-President aadhikar@pawc.wcape.gov.za Cape Law Society 0836258695 http://www.mediaweb.co.za/ArticleDetail.asp?ID=2936

Transformation of the Legal Profession

Transformation of the legal profession is not only an economic and moral imperative but the maintenance of the rule of law is dependent on transforming the legal profession. Currently a little over a quarter of the country’s attorneys are black, even though approximately 88% of South Africa’s population is black. If law firms are destined to achieve success and gain strength through diversity, this can only be achieved by skills being transferred to black lawyers by proper mentoring and training. Skills transfer will ensure that a bigger pool of black lawyers develops the expertise that is necessary to take up judicial appointments. Without a transformed judiciary, the majority of our population will have little faith in the justice system. Law firms can play an instrumental role in the transformation of the judiciary, by ensuring that black lawyers are exposed to quality work and that the necessary skills transfer is occurring. Unfortunately for many years in South Africa, the bulk of black lawyers served individual clients while the institutional clients were serviced by white lawyers. Consequently many black lawyers developed little commercial legal experience. Fortunately this is beginning to change and a greater number of black lawyers are being exposed to challenging, quality commercial and governmental work. The large law firms, which have an impressive client base and the infrastructure to train and mentor young lawyers, are employing more and more black candidate attorneys. The challenge that remains for these firms is to ensure that these candidate attorneys do not, after qualification turn their backs on the profession. The commercial reality is that black lawyers with skills and expertise are a precious resource. Commerce and the major law firms are competing for the same pool of black lawyers. Unless young black lawyers are satisfied that they are being given equal opportunities to succeed and develop, the major law firms will struggle to retain them.When I was still an inexperienced young black lawyer, I was fortunate to be paired with an experienced attorney who treated me as a colleague, spent a significant amount of time on training and mentoring me, who appreciated my input and who exposed me to his clients and to quality commercial litigation work. As a result I have managed to develop an independent commercial litigation practice which has allowed me and my firm to measure my capability and more importantly allowed me to meet the criteria necessary to be invited as a shareholder in the firm. Even though apartheid was dismantled more than ten years ago, we must not lose sight of the fact that many black law graduates only had access to an inferior quality of education where English was not a first language. Furthermore, many young law graduates are at a disadvantage because their family environment has not exposed them to the commercial world. It is the recognition of these imbalances and a concerted effort to level the playing fields that will contribute to the successful training and mentoring of young black lawyers and more importantly their retention in the profession.Transformation of law firms has been described as transformation in the true sense because, in terms of legislation, a partner/shareholder in a law firm has to be an admitted attorney. In other words a black empowered company cannot be invited to become a partner/shareholder in a law firm to change the profile of the firm and to achieve the diversity much sought after by the market. In the light of this, the need to provide equal opportunities to work, training and mentoring and the transfer of skills cannot be overstated. Without a focused mentoring programme, large firms are not going to transform and will lose out on the opportunity of adding value to clients by offering a team of people from diverse backgrounds to deliver solutions.At Deneys Reitz we have made some strides in the sense that we currently employ 63 black professionals and we have 12 black directors. Notwithstanding the challenges faced by the large law firms in retaining black professionals, I take comfort from the fact that most of the firm’s black directors have been trained in house and have progressed through the firm’s structures. The process of transformation at the firm is, however, nowhere near completion. But I remain optimistic that if young black lawyers coming through the firm’s structures are given the same opportunities I was given and are properly trained and mentored, Deneys Reitz will become a truly South African law firm.The distribution of work by institutional clients to black firms must be encouraged, but the fact that black attorneys in the large law firms were also disadvantaged and should also benefit from empowerment initiatives should not be overlooked. The large law firms have the resources and the infrastructure to train black attorneys. But if the black attorneys at these firms are not supported by institutional clients, there will be no incentive for the black attorneys to remain with the traditional large law firms and this will perpetuate segregation between black and white attorneys and we will not move away from the notions of black and white firms. Institutional support for black attorneys at the large law firms will promote the success of black attorneys at these firms and will accelerate the transformation of the traditional large white law firms. Aslam Moosajee http://www.deneysreitz.co.za/news/news.asp?ThisCat=3&ThisItem=686

18 November, 2005

Buys Inc. Lodge Complaint with Competition Commission

The legal profession is yet again under close scrutiny, after a complaint about certain practices was lodged with the Competition Commission. Unlike previous complaints and investigations launched by the Commission itself, the latest complain originated from within the profession. “Our complaint is directed at a number of anti-competitive rules of the different Law Societies that prohibit law firms from marketing themselves, gain financial investment, establish staff incentive schemes and offer legal services at rates lower than the prescribed minimum fees” says Reinhardt Buys of IT law firm Buys Inc., who lodged a comprehensive complaint with the Commission on Friday morning. However, as far back as July 2004 the Law Society of South Africa filed an application with the Commission to exempt its rules from the operation of the Competition Act. The Act provides for the exception of the rules of professional bodies if such rules are aimed at the maintenance of professional standards or necessary for the ordinary function of the profession. The categories of rules the Law Society wants to exempt are also those targeted in the Buys complain and include rules on fee tariffs, advertising and marketing, organisational forms, multidisciplinary practices and reserved work. A similar application by the advocates’ profession to except the rules of the Bar Council ended up in the Supreme Court. In deciding whether or not to exempt a rule, the Commission should have due regard to international norms. Sir David Clementi recently published a full review of the legal services profession in the United Kingdom and Wales and concluded that a new regulatory framework is needed that promote competition and innovation. Such a framework should split regulatory and representative functions and allow for alternative business structures. “The basis of our complaint is that the current South African regulation of attorneys fails to recognise the difference between regulation of the profession and representation” explains Buys. “Although is may be true that the Law Societies represent the legal profession, it is simply not correct to assume that they should also regulate the profession. It is a well accepted international norm that representation and regulation are and should be two very different functions. Within our legal profession, these rules and functions are confused and the representative body is also the regulatory authority. Imagine of Vodacom, Cell C and MTN jointly regulated mobile communications. Thankfully and correctly so, mobile communications is regulated by ICASA, an independent statutory authority. Imagine if a group of liquor store owners replaced the Liquor Board to regulate and license liquor stores. Imagine if cabinet replaced the Constitutional Court to regulate government’s actions.” During a conference sponsored by the Law Society, the Chairman of the Commission on Gender Equality, Joyce Piliso-Seroke stated that the legal profession continues to discriminate against women and that sexual harassment and negative attitudes towards younger women attorneys continue. The comments by the Gender Commission echo the findings of a 1999 discussion paper on transformation in the legal profession conducted by the Department of Justice. Professor Cheryl Loots, who drafted the discussion document, concluded that “[t]he legal profession does not represent the diversity of South African society. The number of black lawyers in private practice and in the public service sector is comparatively low, as is the number of women. Black people and women are almost entirely absent from the ranks of senior partners in large firms of attorneys and senior counsel at the Bar”. “Disadvantaged law graduates experience difficulty in entering the legal profession and establishing themselves as successful legal practitioners. There is a lack of equality within the legal profession with regard to qualification requirements for admission to legal practice which leads to the undesirable perception that some lawyers have a higher status than others.” Restrictions on admission to the attorneys’ profession also come under fire in the Buys complaint. “Currently only those who completed certain degrees at a university and completed the admission examinations may be admitted as attorneys. However, the admission exams only test four very limited fields of legal practice such as bookkeeping. In today’s practices bookkeeping is done by software applications such as Pascal. Although we acknowledge that there should be control over the legal qualifications of attorneys, the current way in which such qualifications are measured is totally ineffective and only serves to restrict competition”. Although most admit that the majority of South Africans cannot afford the high legal fees charged by attorneys, rules remain enforced that prohibits attorneys from providing their services at fees lower than those prescribed by the Law Societies. During 2003 the Association of Pretoria Attorneys had to pay a R223 000 fine to the Competition Commission following distribution of so-called tariff guidelines amongst its members. “Recommended fees operate against the public interest. Consumers must be allowed to choose between goods and services in a competitive economy – one important choice is price. Competition between suppliers charging the same fee is necessarily diminished” said Diane Terblanche, manager of the Enforcement and Exception division of the Commission. The Law Society rules contain various provisions that prohibit or limit advertising and marketing by attorneys. “These so-called touting prohibitions prevent the free flow of legal information, peer review and transparency. Attorneys are not allowed to criticise others and may not even publicise their successes in court. Although the ‘old school’ argues that these limitations are necessary to preserve high standards, such an argument is factually incorrect. These rules developed from pre-colonial custom and nothing more. An attorney that markets his or her firm surely cannot be deemed less professional or of lower standard then an attorney who does not? Bankers market themselves without any dire effects for standards in the banking sector” claims Buys. South Africa is an indirect signatory to the United Nation’s code on the “Basic Principles on the Role of Lawyers” that provide, amongst others, that no law shall deny free speech rights to any member of the legal profession. “Advertising, as a form of commercial speech, is guaranteed in the Constitution. There is truly no legitimate reasons why attorneys should be excluded from free speech rights. As far back as 1977 the US Supreme Court found against the Arizona Bar and ruled that limits on how attorneys market themselves are unconstitutional and cannot be justified in any way” says Buys. One alternative to escape the onerous limitations of the Law Societies is to operate as a “lawyers” in a legal consulting practice and not as attorneys. A few years ago attorney Edward Nathan & Friedland chose this route and was subsequently sold to Nedbank. Today, the firm falls outside the scope of the Law Societies and operate as corporate legal advisors. Michael Katz, current chairperson of Edward Nathan, was incidentally also the person who provided a legal opinion to the Law Society’s Standing Committee on Competition on applying for exemption from the Competition Commission. In response to a posting on the ‘Scrap The Attorneys Act’ blog that he should stop moaning and just leave the profession because nobody likes a whiner Buys laughs: “Other lawyers considered moaning and whining in their time included Mandela and Gandhi – although I will never be as bold as comparing myself to these two world heroes in any respect, they proved that moaning and whining by attorneys sometimes serve the greater good”. The blog is available at: http://scraptheattorneysact.blogspot.com

16 November, 2005

A Difficult, Sad and Unnecessary Decision...

Within the next few weeks I will have to decide whether or not to leave the attorneys profession. I have informed my staff members of the various risks and benefits involved in staying in as well as leaving the profession. For the younger and more idealistic lawyers in our firm it is obviously a dramatic choice. They studied to be attorneys. Its not a new issue. Our firm has been struggling with the choice for almost two years now. But the risks and more so, the lost opportunities have just become to big to ignore any more. I am particularly guilty for having postponed a final decision. I guess I always hoped that I will open the newspaper one morning and read that the Minister decided to implement the Legal Practitioners Act. Her various public statements that it was imminent only served to give us false hope. My open letter to the Minister and her deputy (http://www.buys.co.za/downloads/openletter.pdf) was an act of final desperation. Two weeks since, we have not even received an acknowledgement of receipt. Not a word from the Minister of the Law Societies. Maybe her time is taken up by the racist fight between the Cape Bar and the judges of the Cape High Court... Admittedly a much more serious issue than the future of the attorneys profession. So, why will I probably leave the attorneys profession (and take my firm with me)? Let me explain. Buys Inc. Attorneys was established in January 2001 as one of the first law firms in South Africa to specialist exclusively in information technology law (“IT law”); IT law is a very recent area of expertise, mainly driven by the increased use of technologies such as the Internet for communication, business, entertainment and, unfortunately, criminal activity; Since the Internet is borderliness, electronic environment, we have no long standing set of precedents to apply and had to develop new and unique legal services to address the growing requirements and risks of our clients; The difference between IT law and more traditional fields of expertise is so significant that our firm currently provide none if the legal services that are reserved for attorneys[1], for example: the preferred method of dispute resolution is through online arbitration and litigation is the exception rather than the rule. In the few instances where we had to institute proceedings in a local court, woutsourcinged it to one or more advocates; The risks, sphere of application and benefits of pro-active action, care to IT law, are new and unknown to the local market. Before we can even consider providing our unique cocktail of legal services, we have to inform and convince clients of the related dangers and risks. For example, while most of our clients would not blink at spending millions to cover insurance against natural disasters, they would frown upon spending a considerable smaller amount to protect themselves against hackers and other electronic dangers such as viruses anspherere. Our success therefore, largely depends on extremely creative and successful marketing activities. Since we cannot afford full-page newspaper advertisements, prestigious marketing agencies and similar forms of traditional advertising, we focus on cost-effective electronic marketing campaigns conducted by ourselves. Our website is the biggest in Africa and was recently selected by Financial Mail as one of the Top 50 websites in South Africa (click here to view our website). We also established the South African ICT Law Blog (click here to view) and distribute a weekly newsletter in electronic format to a growing subscriber base (click here to view our most recent newsletter). However, these attempts at informing our clients and the public about IT law may (depending on your interpretation) breach one or more of the anti-touting provisions of the Law Societies – we operate under a constant risk of being classified as “unprofessionaldishonorableable” and subject to disciplinary action; Today, the legal services we offer differ significantly from whose offered by more traditional law firms and requires a specialistslised set of skills, knowledge and experience; Neither legal studies at local universities nor the practical admission examinations provided for in section 14 of the Attorneys Act[2] prepare student and newcomers to the profession to practice in the field of IT law; As a result, we have to provide the uniquespecialistslised training in-house; In 2003 we employed a very competent woman to open and operate a branch office in Johannesburg and since her employment, she gained significant experience, knowledge and expertise in the field of IT law. However, since she holds a BIuris legal qualification from the University of South Africa she does not qualify to become a partner or director of our firm and even suffers the disgrace of being disqualified from carrying a business card or appearing on our letterhead because of the publicity rules of the Law Societies; Since the legal services we provide are generally delivered and implemented through the use of custom developed software applications, we employed a full time IT manager since the start of 2004. He not only succeeded in automating our firm’s daily operations, but also enabled us to provide clients with secure communications and documents to protect their confidential information and intellectual property rights. To claim that he is the central pillar on which our success is based, would be an under statement. But as with our Johannesburg lady, he can never be a director of our firm, may not be show on our letterhead and may not carry a business card. We can’t even provide him with a share incentive scheme, since these are all prohibited by the provisions of the Attorneys Act and the Law Society rules; Our unique field of expertise resulted in the fact that we provide legal services to some of South Africa’s biggest corporates and public organisations such as Telkom, SAA, SARS, DBSA, Department of Justice, Cell C, Citibank, the SABC, the IDC and others. These organisations, for obvious reasons, demand the highest standards of corporate governance from ourselves and we attribute much of our time, resources and energy into compliance with the provisions of the King II Report on Corporate Governance. One of the main suggestions in the King II Report is the appointment of non-executive directors to our board. The corporate governance benefits of such directors include higher standards of risk management, legal compliance and business continuity. Notwithstanding the fact that an ex-judge and a high qualified e-commerce personality agreed to join our board, such attempts to improve our governance are yet again prohibited by the provisions of the Attorneys Act and the Law Society Rules; In addition to the above, most government tenders we are qualified to apply for, demand high BEE credentials from ourselves. Yet again, our attempts to involve previously disadvantaged persons in our management and control are frustrated by the Attorneys Act and the Law Society Rules; To improve our service delivery and ensure that we remain competitive in this fast changing environment we are in the process of developing and testing legal artificial intelligence applications and so-called virtual in-house lawyers. To finalise and roll these technologies out into the South African market requires rather substantial financial investment. Since our only assets intangible, securing financial assistance from local banks are impossible, for all practical reasons. Although we can proceed without such assistance, the result would be that our technological developments might only be ready in a matter of years, rather than months. Despite various investors that indicated their willingness and ability to invest in our firm, such investment is yet again prohibited by the Attorneys Act and the Law Society Rules; As stated above, many of our legal solutions are implemented through the use of proprietary third party software applications such as our email legal notice that is implemented by a company called XXXX and our workplace policies that are implemented with the Policy Distribution Manager developed by TSS. During the last few months we also co-operated with a local software development agency, Swist Group Technologies to enable us to provide a software application that totally automates a client’s compliance with the onerous provisions of the new Regulation of Interception of Communications Act 70 of 2002. Notwithstanding the obvious benefits to our clients and the industry at large, we are prohibited to conclude co-operation agreements with these software companies and cannot share our directly related fees or commissions with them; In our field of expertise, traditional law firms are not our competitors. Rather, we compete with international law firms, so-called virtual law firms and legal consultancies that escape the anti-competitive restrictions we are subject to; As a result of the onerous regulatory environment in which we operate, we cannot: Effectively compete with our competitors; Effectively market our services and inform our clients and the public about IT law; Properly reward or create proper incentives our key employees, nor allow them to share in the risks and benefits of our firm; We cannot publicise the names of our key employees on our newsletter and provide them with business cards; Implement the required procedures to ensure good corporate governance; Secure BEE ownership or management; Secure much needed financial investment; and Conclude partnerships or fee sharing arrangements with software companies.’ To escape the abovementioned restrictions and liberate our firm to achieve its full potential we can either establish a so-called legal consultancy as a company or close corporation or simply leave the attorneys profession and operate fully as legal consultants, corporate legal advisors or “IT lawyers”. However, such alternatives involve a re-branding exercise and loss of our current goodwill and regulation. Our tentative client surveys in this regard, also showed that implementation of any of these alternatives will result in general confusion. As Clem Druker rightly pointed out in a recent De Rebus article, these alternatives amount to nothing more but “leading a double life”;[3] In 2004 Buys Inc. Attorneys was selected as one of the Top 300 companies in South Africa – the first law firm of our size and age to receive such a high honour. In November 2004 our MD was selected as one of the top three technology directors in Africa. In April 2005 we were selected as one of a very small number of African law firms to join the prestigious Gerson Lehrman Law Council in Washington DC. We were also recently selected as one of the 2005 Top 100 Technology Companies in Southern Africa. All these awards resulted from passionate and committed and uninterrupted hard work – late nights and full weekends. We believe that we are good for the legal profession and that we are doing pioneering work to prepare the South African law and the attorney’s profession for the future (click here to visit our website). Nobody will benefit from our desperate last-resort decision to leave the profession for good. [1] High Court appearance, appointment of candidate attorneys, notarial work, conveyancing, drafting of wills, administration of estates, drafting of sale of land agreements, drafting memoranda of association, drafting partnership agreements and preparation of court documents [2] 53 of 1979 [3] Druker C, “Leading a double life”, De Rebus, October 2003

Representation v Regulation

It always bothered me thet the Law Societies had (have) the power to regulation the profession. It just does not sound right. Somehow (and I didn't before realise why) it always reminded me of Animal Farm. How can regulation ever be impartian, independant and reasonable if the profession regulate itself. A very clever young lawyer from Durban pointed me in the right direction by explaining the difference between regulation and representation. The Law Societies represent (and so they should) the members of the profession. But regulate... wait a second. The Law Society rules in general fail to appreciate the very important distinction between regulation and representation. Although is may be true that the Law Societies represent the legal profession, it is simply not correct to assume that they should also regulate the profession. It is a well accepted international norm that representation and regulation are and should be two very different functions and rules. Within the legal profession, these rules and functions are confused and the representative body is also the regulatory authority. Imagine of Vodacom, Cell C and MTN jointly regulated mobile communications! Thankfully and correctly so, mobile communications is regulated by ICASA, an independent statutory authority. Imagine if a group of liquor store owners replaced the Liquor Board? Imagine if cabinet replaced the Constitutional Court?

More Lessons...

I never knew this, but on 7 September 1990 (in Havana of all places), the United Nations High Commission for Human Rights adopted the "Basic Principles on the Role of Lawyers" (http://www.ohchr.org/english/law/lawyers.htm). These principles, amongst others, provide as follows (my comments in brackets): All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings [comments: currently most South Africans cannot afford the high costs legal services]. Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, colour, ethnic origin, sex, language, religion, political or other opinion, national or social origin, property, birth, economic or other status [comments: there are currently no procedures or mechanisms in place to address high legal fees and the rule against providing services at costs lower than those prescribed remain effective]. Governments and professional associations of lawyers shall promote programmes to inform the public about their rights and duties under the law and the important role of lawyers in protecting their fundamental freedoms. Special attention should be given to assisting the poor and other disadvantaged persons so as to enable them to assert their rights and where necessary call upon the assistance of lawyers [comments: the Rules contain various provisions that restrict the free flow and availability of legal information]. Governments, professional associations of lawyers and educational institutions shall ensure that there is no discrimination against a person with respect to entry into or continued practice within the legal profession on the grounds of race, colour, sex, ethnic origin, religion, political or other opinion, national or social origin, property, birth, economic or other status, except that a requirement, that a lawyer must be a national of the country concerned, shall not be considered discriminator [comments: the Rules continue to discriminate on the status of a person’s training and education by classifying such by name and not by content]. In countries where there exist groups, communities or regions whose needs for legal services are not met, particularly where such groups have distinct cultures, traditions or languages or have been the victims of past discrimination, Governments, professional associations of lawyers and educational institutions should take special measures to provide opportunities for candidates from these groups to enter the legal profession and should ensure that they receive training appropriate to the needs of their groups [comments: rather contrary to this provision the Rules act as barriers to allow more female and black persons to enter the profession]. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics [comments: some of the Rules may well be considered ‘improper interference’ with the duties of a lawyer.] Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession[comments: various Rules that prohibit advertising severely restrict the right to free expression]. Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics. Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognized international standards and norms [comments: many current Rules fail to comply with national law such as the Constitution and competition legislation and also generally fail to recognize international standards and norms].

06 November, 2005

Lessons Learned

A few days after I've started this "one man" campaign, I've learned a some lessons. But before I get to that I would like to thank everybody who responded with emails, postings to this blog, SMS, telephone calls and even Skype calls. Most expressed support, others tried to explain a contrary view and a small percentage was downright rude. So, what did I learn... Firstly, I've learned that RAF and property transfer work are the only areas of law firm work where the arguments in support of touting still made any sense. Those attorneys who buy work, are the main reason the touting rules are still enforced. These attorneys should be ashamed! I've also learned that most Law Societies would not enforce their current touting rules. If so, why have them at all? I've learned that some attorneys believe that the profession had (and should have) the power to create, enforce or scrap rules that govern the profession. Some of these attorneys advised me to resolve my concerns within the current structures e.g. take a list of resolutions to the next annual meeting of the Law Society and canvass support. They referred to this as the "democratic process". Now I've got some problems with the "democratic process". Firstly, I don't think the Law Societies represent the majority of members. I also do not believe that the current members should have the right to make rules for the profession - members will (and do) make rules to protect themselves and have little concern for clients, newcomers or competitors. I've also learned that this kind of protest is new to South Africa. A majority of commentators either admired my guts or expressed concerns that I will be victimised by the Law Societies. Almost all those who expressed support preferred to do so anonymously. Who are they afraid off? So much for a democratic process of people and law firms are afraid to express their concerns. Has our profession really spiralled this low? These are some of the emails I received: "I could not have said it better. Because we refuse to pay backhands to estate agents, very few transfers are referred to our firm. We are prevented from effectively advertising or offering discounts to the clients who deserve it! and thus we are struggling to grow our conveyancing department. Despite the fact that I refuse to pay bribes, I couldn't afford it. I can however afford to discount my fees as we are a smaller firm with lower overheads, but if I do that I am touting! As you would say, Its not right" "Well done Reinhardt! I know you are going to get a lot of flack from the "hoarders of wealth". If truth be told, a lot of us are for transformation. Happiness is not always about money & money does not necessarily rock everybody's world. Count me in." "I have just read your letter and fully support the contents thereof. To add to your list of archaic rules, take the following example: as General Counsel to one of major multinational companies in South Africa and an admitted attorney, I may not approach any advocate directly to, for instance, ask for a specialist opinion. I have to instruct a "practising" attorney first, which clearly increases legal costs significantly. Why? Apparently because advocates may not (do not want to?) take direct instructions from the "general public". The fact that I am also an admitted attorney does not seem to matter in this particular case. The worst possible argument I have heard to defend this rule is that advocates do not want to bear the burden of collecting fees, but want the comfort of an attorney "guaranteeing" their fees. Just one more archaic rule that serves no purpose other than protect the interests of a select few." "Good luck with your campaign. I support it wholeheartedly."

03 November, 2005

Welcome to the "Scrap the Attorneys Act" blog!

Welcome to the blog dedicated at the scrapping of the Attorneys Act and the implementation of the Legal Practice Bill! Unlike most other professions, attorneys are regulated by a number of laws and rules, such as the Attorneys Act and the rules of the various Law Societies. In South Africa, like in many other countries, developments over the last few years have confirmed that the current regulation of the attorneys’ profession is unfair, unpractical, and outdated with client requirements and technology. Some even argue that many provisions of the Attorneys Act and Law Society Rules are unconstitutional – raising free speech, equality and other concerns… colonial and apartheid era relics of a time gone by. The constitution allows the regulation of certain professions by law. Yet, such regulation should be directed at the protection of consumers and not the protection of the members of the profession. The Attorneys Act and the Law Society rules indeed show little regard for the consumer of legal services – the focus is on keeping legal costs high, protecting attorneys against peer review and the like. For example, one of the stated purposes is to protect the “dignity, prestige and status” of the attorney’s profession. Excuse me! Dignity? Prestige? Status? Have these people totally missed out on all the lawyer jokes? Although most will find the provisions of the Act and the rules pathetic, comic or even desperate, I (as a member of the profession) find them embarrassing and frustrating. The legal profession should be liberated. It should be regulated like in most other countries. The Attorneys Act should go. The Law Societies also. The sooner the better. See my open letter to the Minister of Justice below. Use the links on the right for access to more information on this subject. Maybe I’m the only attorney that feels our profession is a prisoner to rules that belong to history. Maybe many others share my concerns and frustrations. Maybe some have bad lawyer jokes to share with me (I know the one about the lawyer circling the shark!). Whatever… use the comment link below to post your views to this blog. You can even do so anonymously! It’s time to be heard!

Open Letter To The Minister of Justice

Dear Minister Mabandla, In 1979, when you completed your LLB degree at the University of Zambia I was 7 years old. It was in the middle of apartheid era. When I completed my LLB degree years later South Africa was a very different place - in my second year Nelson Mandela became President, in my final year a representative Parliament enacted the new Constitution. Our democracy was born. Because people like you fought for it! But the fight is not over yet… Ten years after liberation most South Africans can simply not afford to enforce the rights guaranteed in our Constitution - legal fees are simply too high. The legal profession remains mainly white and male. The uneven geographical distribution of lawyers remains. Paralegal practitioners still lack recognition. The public remains uninformed about their legal rights. Why? Because… The laws and rules that govern our profession have lost track of time and reality. During the last three decades, most countries like the UK, USA, Hungary, Canada, France, Japan and Ireland have liberated their legal professions by scrapping rules against advertising, fixed fees and competition. Other professions have also taken bold steps to ensure their relevance and retain their changing clientele. Our legal profession has changed little. Years ago Louis Brandeis said that if we desire respect for the law, we must first make the law respectable. Albert Einstein, better know for his contribution to physics than to law, once stated that nothing is more destructive of respect for the law, than passing laws that cannot be enforced. Recently Henry Kissinger observed, “the illegal we do immediately, the unconstitutional takes a little longer.” These three learned gentlemen commented on the most important pillars of any democratic legal system: respect, enforceability, and constitutionality. These are totally absent in the laws and rules that govern South Africa’s legal profession. Let me explain… Law firms, touting and promoting legal services Locally and internationally, the many benefits of truthful advertising and marketing are well documented – advertising informs consumers, it fuels competition, keep prices low. Advertising furthermore plays an important role in consumer protection. It is even a basic human right –since our Constitutional free speech right also protects so-called commercial speech. In the same year that you completed your LLB degree, five apartheid-era Supreme Court judges had the unique opportunity to review the unreasonable and self-serving Law Society touting rules in Cirota v Transvaal Law Society. They held that the court cannot look on transgressions of the marketing rules as “unimportant” and stigmatised touting as “a practice that cannot be dealt with leniently”. They agreed that law firm advertising is” the most disloyal and despicable conduct towards other members of the profession”. To this very day, the Law Society Rules consider touting (referred to as “advertising” in other professions) as unprofessional, dishonourable and unworthy conduct on behalf of a legal practitioner. For example, Ruling 3 of the Law Society of the Northern Province’s states that: “[n]othing in these guidelines shall be construed as authorising an attorney to tout, directly or indirectly, for work of a kind commonly performed by a practising attorney. Without limiting the generality of that expression, "touting for work" by a practising attorney will include the following: 1) soliciting custom or work directly from any person; 2) entering into an arrangement with any person, whether an employee or not, for the introduction of clients to the attorney; and 3) making unsolicited visits or telephone calls or sending unsolicited letters or printed material to any person, (other than to an existing professional connection) whom the attorney knows or should reasonably be expected to know has an existing attorney/client relationship with another attorney, where such conduct is carried out with a view to, or is calculated to, establishing an attorney/client or correspondent relationship with such person.” Who in a law firm may have business cards? (IT managers and paralegals are obviously excluded), newsletters, public comments by attorneys... these and other issues are regulated and restricted by the Law Society Rules in pedantic and desperate detail. Even the use of stationary could be “unprofessional or dishonourable” if it does not befit the “dignity, prestige and status” of the legal profession. While outsiders may consider these and similar rules as either funny or pathetic, I consider them embarrassing! Two years before the 1979 Cirota decision, the judges of the American Supreme Court also had the opportunity to express themselves on the issue of “touting”. But, unlike the South African Supreme Court (which had rather little regard for constitutional rights such as free speech back in 1979), the US judges had to determine if the touting prohibitions of the Arizona State Bar were valid in terms of the First Amendment of the American Constitution (free speech). Then Judge Blackmun delivered the judgment in Bates v State Bar of Arizona and made the following sobering comments still valid today: “The heart of the dispute before us today is whether lawyers also may constitutionally advertise the prices at which certain routine services will be performed. Numerous justifications are proffered for the restriction of such price advertising.” “Early lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on "trade" as unseemly. Eventually, the attitude toward advertising fostered by this view evolved into an aspect of the ethics of the profession. But habit and tradition are not in themselves an adequate answer to a constitutional challenge. In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind. Since the belief that lawyers are somehow "above" trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.” “It appears that the ban on advertising originated as a rule of etiquette and not as a rule of ethics.” “The State Bar places particular emphasis on the adverse effects that it feels advertising will have on the legal profession. The key to professionalism, it is argued, is the sense of pride that involvement in the discipline generates. It is claimed that advertising will bring about commercialization, which will undermine the attorney's sense of dignity and self-worth.” “Advertising is also said to erode the client's trust in his attorney: Once the client perceives that the lawyer is motivated by profit, his confidence that the attorney is acting out of a commitment to the client's welfare is jeopardized. And advertising is said to tarnish the dignified public image of the profession.” “The assertion that advertising will diminish the attorney's reputation in the community is open to question. Bankers and engineers advertise and yet these professions are not regarded as undignified. In fact, it has been suggested that the failure of lawyers to advertise creates public disillusionment with the profession. The absence of advertising may be seen to reflect the profession's failure to reach out and serve the community: Studies reveal that many persons do not obtain counsel even when they perceive a need because of the feared price of services or because of an inability to locate a competent attorney. Indeed, cynicism with regard to the profession may be created by the fact that it long has publicly eschewed advertising, while condoning the actions of the attorney who structures his social or civic associations so as to provide contacts with potential clients.” “Advertising is also said to have the undesirable effect of stirring up litigation. The judicial machinery is designed to serve those who feel sufficiently aggrieved to bring forward their claims. Advertising, it is argued, serves to encourage the assertion of legal rights in the courts, thereby undesirably unsettling societal repose.” “But advertising by attorneys is not an unmitigated source of harm to the administration of justice. It may offer great benefits. Although advertising might increase the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action. As the bar acknowledges, "the middle 70% of our population is not being reached or served adequately by the legal profession." “Among the reasons for this underutilization is fear of the cost, and an inability to locate a suitable lawyer. Advertising can help to solve this acknowledged problem: Advertising is the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange. The disciplinary rule at issue likely has served to burden access to legal services, particularly for the not-quite-poor and the unknowledgeable. A rule allowing restrained advertising would be in accord with the bar's obligation to "facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available." “It is at least somewhat incongruous for the opponents of advertising to extol the virtues and altruism of the legal profession at one point, and, at another, to assert that its members will seize the opportunity to mislead and distort. We suspect that, with advertising, most lawyers will behave as they always have: They will abide by their solemn oaths to uphold the integrity and honour of their profession and of the legal system. For every attorney who overreaches through advertising, there will be thousands of others who will be candid and honest and straightforward” Today, most democratic nations and even the authoritative Organisation for Economic Co-operation and Development (OECD) agree with the views of Judge Blackmen and his colleagues. According to the OECD report titled “Competition in Professional Services” released in 2000, restrictions on the advertising of legal services are “one of the most severe restrictions on competition in any organised profession”. The Report concludes that: “Studies about attorney advertising have illustrated these quality and price effects. Muris and McChesney tested the claim that legal firms following a strategy of advertised lower prices will necessarily produce lower-quality services, and found it unsupported. Rather, they concluded that legal “clinics” used advertising to obtain greater volume and hence lower average fixed costs, so they could charge lower prices without reducing quality. Others have documented how restricting attorney advertising affect prices. A study by the staff of the US FTC concluded that fees for a number of routine legal services were higher in cities where the time, place and manner of advertising were restricted. The price of legal services for an uncontested divorce, for example, averaged $33 more in cities with restrictive advertising regulations. That basic conclusion has been confirmed by others. These results are consistent with findings from other professions, that restricting advertising increase price but does not improve quality” “Where restraints on commercial dimensions of professional practice have been relaxed, prices are lower and new services appear in response to consumer demands. Ten comparative studies about price effects all showed that stricter regulation against competitive practices led to higher prices for services. This experience argues for extending reforms more broadly, because it shows that the professions’ exposure to market discipline can be increased while maintaining quality, performance standards and necessary consumer protections.” “Abolition of advertising restrictions has benefited consumers. The removal of price advertising restrictions appears to have resulted in lower prices and increased demand for some professional services. In the United States the relaxing of advertising restrictions appears to have facilitated the growth of alternative service providers and led to greater price competition and perhaps an increase in demand for some kinds of legal services. A Canadian study concluded that price advertising by professionals would improve consumer access to services, lower fees and increase efficiency and innovation.” Thankfully South Africa today is much more like the United States in 1977. We now have a new Constitution, a Bill of Rights and a Constitutional Court that ensure that all laws comply with the Constitution. Today our Minister of Justice is a black female, something not even remotely possible in 1979. South Africa is indeed a changed country. Or is it? On 9 June 2005 Desai J referred to the Cirota judgment as current authority on the status of the Law Society’s advertising prohibition: “ The scheme implemented by the respondent was a way of touting and displays a high level of disloyalty against other members of the profession. The practice of touting by legal practitioners is a serious contravention and should be eradicated” Twenty six years and a new Constitution later, nothing has changed for the legal profession or its clients. It’s not right. Cost of legal services and access to the law The fact that most South Africans cannot afford legal services was yet again confirmed by the findings of the Discussion Paper on the Transformation of the Legal Profession: “The broad middle class of South African society, although not indigent, is not able to afford the fees which practising lawyers charge” “A lawyer who operates under a sunshade on a sidewalk or under a tree in a rural village has no overhead expense and does not need to charge the same fees as a lawyer who occupies an expensive suite of offices and employs a large staff contingent. The Law Societies and Bar Councils have taken no account of this reality - practitioners who charge low fees have traditionally been regarded as being guilty of unethical conduct. This is a policy which needs to be reviewed. Deregulation would mean that the market would dictate the fee and practitioners would be able to offer appropriate services at competitive rates.” In terms of the Law Society Rules, it is “unprofessional, dishonourable and unworthy” for a lawyer to offer legal services at fees lower than those fixed by the Law Society. During the last four years, our firm has invested heavily in technology to automate our daily operations and keep overheads down. As a result we are in a position our lower of fees and reach out to those who can’t afford legal services. Unfortunately, doing so is prohibited by the Rules. In the Report mentioned above, the OECD finds that: “Even if only ‘recommended’, fee scales are a mechanism by which professionals’ incomes can be maintained at consumers’ expense”. Twenty six years and a new Constitution later, nothing has changed for those who cannot afford high legal costs. It’s not right. Black economic empowerment The Discussion Paper also concludes that: “The legal profession does not represent the diversity of South African society. The number of black lawyers in private practice and in the public service sector is comparatively low, as is the number of women. Black people and women are almost entirely absent from the ranks of senior partners in large firms of attorneys and senior counsel at the Bar. They were, accordingly, also largely absent from the controlling bodies of the Bar Councils and Law Societies until recently, when steps were taken to make these bodies more representative”. Furthermore “[d]isadvantaged law graduates experience difficulty in entering the legal profession and establishing themselves as successful legal practitioners”. Affirmative action and black economic empowerment are designed to address these and similar problems. But not in the legal profession. Section 23(1)(a) of the Attorneys Act “only natural persons who are practitioners and who are in possession of current fidelity fund certificates [may be] members or shareholders [of law firms]” The Law Society Rules give further effect to the chilling provisions of section 23 by branding the sharing of offices with non-practicing members and even receiving assistance from non-members as unprofessional conduct. As a result, many BEE deals in the legal profession fail to materialise and our profession stays white and male. Corporate governance To ensure good corporate governance, the King II Report provides internationally accepted guidelines for South African businesses. These include, amongst others, suggestions that companies should employ so-called non-executive directors. Such a director is “[a]n individual not involved in the day to day management and not a full-time salaried employee of the company or of its subsidiaries.” King II suggests the following: Non-executive directors bring an external judgment on issues of strategy, performance, resources and standards of conduct and evaluation of performance to the board. Courage, wisdom and independence should be the hallmark of any non-executive director acting in the best interests of the company. The role and function of a non-executive director is increasingly onerous and demanding. Non-executive directors should be individuals of calibre and credibility, and have the necessary skill and experience to bring judgment to bear independent of management, on issues of strategy, performance, resources, transformation, diversity and employment equity, standards of conduct, and evaluation of performance. Imagine what value and contribution non-executive directors could have for law firms. Such directors may be ex-judges, senior advocates, ex-magistrates, corporate lawyers or even people with non-legal qualifications, such as marketing and ICT. In today’s marketplace, a significant portion of law firm management has nothing to do with the law. But yet again and for reasons long lost in time, law firm are prohibited from appointing non-executive directors who are not attorneys. Unlike other professions, our governing laws prevent the implementation of most corporate governance guidelines. Those few law firms committed to good corporate governance and BEE have to create so-called legal consultancy firms as vehicles for BEE and governance. It’s costly, cosmetic and frustrating. It confuses our clients and dilutes our trade names. We fool nobody but ourselves. It’s wrong. Availability of legal information The general “[l]ack of information about the availability of legal services” is identified as a significant problem that undermines attempts to improve the public’s access to legal services and the courts. Access to information plays such an important role in correcting the effects of apartheid, that it is even enshrined as a basic human right in our Constitution. Yet, various provisions of the Law Society Rules restrict the free flow of legal information. For example, Ruling 13.4 provides that “attorneys may only communicate recent legal developments to current clients” and nobody else. Why should I be disbarred or fined if I am willing to create free legal material and distribute it to those who cannot afford it anyway? It’s wrong – morally, ethically and legally! Competition The anti-competitive provisions of the Attorneys Act and the Law Society Rules are well documented. The absolute extreme and measures employed to protect practicing attorneys from competition and even valid criticism is probably largely the main reason for the public’s negative perception of the legal profession. Ruling 5.2 states that an attorney may not compare the quality of his or her services with those of another, and may absolutely not criticise another attorney’s opinion, services or actions. For uncertain reasons, successful attorneys are prohibited from disclosing or publicising such in any format. As the old Russian proverb goes: “Lawyers are the only men in whom ignorance of the law is not punished.” Why do we protect bad attorneys from peer review and criticism? Why hide away our good lawyers? Why? Conclusion Louis Brandeis said that if we desire respect for the law, we must first make the law respectable. Albert Einstein once stated that nothing is more destructive of respect for the law, than passing laws that cannot be enforced. Henry Kissinger observed, “the illegal we do immediately, the unconstitutional takes a little longer.” The Attorneys Act and the Law Society rules are not respectable, not properly enforceable and generally unconstitutional. They suppress competition and creativity. They maintain a colonial system long ago rejected my most other countries and professions. They restrict transparency and peer review. They ensure that most South Africans never see the inside of a court or a law office. Regulation of a profession should be directed at consumer protection. At the moment, the Attorneys Act and the Law Society Rules protect some attorneys to the detriment of young, female and black attorneys. Consumer considerations are subject to preserving a colonial order where transparency, peer review and openness are frustrated and undermined at all costs. It’s wrong. Your predecessor has tabled various versions of a new law to liberate our profession. Its implementation is long overdue. The status quo is undermining those very issues you fought for most of your life. Every day you delay, is an opportunity lost. Twenty six years and a new Constitution later, the time has come. Repeal the Attorneys Act. Dissolve the Law Societies. Implement the Legal Practitioners Act. Liberate the legal profession. There is twenty six years of catching up to do! REINHARDT BUYS CAPE TOWN NOVEMBER 2005