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the last few years have confirmed that the current regulation of the attorneys’ profession is unfair, unpractical, and outdated with client requirements and technology.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!
posted by Reinhardt Buys at 5:16 am
68 Comments:
I agree. These laws and rules are bullshit. It only keeps rich lawyers rich!
Rome is burning...
South Africans have reason to be proud of their Constitution – it is one of the most modern and liberal constitutions in the world. Other new democracies are eager to learn from our experience and copy significant elements of our constitutional law.
However, after ten years of democracy, most South Africans still cannot afford to pay for the human rights we celebrate. The vast majority of our population has little or no access to justice and the courts. Legal fees are simply too expensive.
Why? Who should be blamed?
Firstly, most blame should be carried by the apartheid era Attorneys Act – one of those pieces of legislation that lost track of time and reality. A small colonial island in a sea of more realistic, practical, and modern laws.
Secondly, the Rules of the Law Societies are to blame. Yes, there is actually more than one Law Society, roughly covering the same territories as the four provinces in the old South Africa.
High legal fees that rob most citizens from justice are not the only legacy of the Attorneys Act and the Law Society Rules, they should also be blamed for the fact that South Africa’s legal profession does not represent the diversity of our nation and that young professionals are leaving the profession like rats.
While the wise old men of the attorney’s profession debate issues like court attire, younger members join corporations or auditing firms as in-house legal counsel. In terms of the Attorneys Act they cannot refer to themselves as attorneys but can use the term lawyers. As if anybody cares. As if anybody noticed.
In terms of the Law Society Rules attorneys cannot consult with clients outside their offices unless special circumstances warrants otherwise. Why? Who knows? Attorneys cannot receive retainers from clients and can only claim to specialize in a certain field of the law if the governing body agrees thereto. So it helps to buddy up with them. Attorneys are also not allows to market their services freely as a whole range of provisions restrict their freedom of speech and economic activity. One rule even states that the stationary used by attorneys must reflect the “dignity, prestige and status” of the profession. Get the picture?
Another ruling states that a sole practitioner may market himself or herself through gummed slips, Horters and letters. For those of us who grew up with email and the Internet and never heard of gummed slips (can you eat it?) the ruling is rather funny.
Although attorneys rely heavily on so-called paralegals to fill in the templates and keep the clients happy, very detailed Law Society Rules see to it that those paralegal never make it to the firm letterhead.
Attorneys are furthermore subject to disciplinary hearings and fines (not to mention the public embarrassment) if the market their services to members of the public who already have their own attorneys. Kid you not! Whether it’s an underhanded attempt to keep new attorneys from tapping into the legal market or some ill fated attempt at destroying healthy competition, nobody will know. Then there’s also the Rule that an attorney cannot criticise another attorney’s work. Like the proverb says, attorneys are the only ones not punished for ignorance of the law! Why provide good legal advice if you know you are above criticism and peer review.
The Attorneys Act prevents anybody not admitted as an attorney to become a director or own shares in a law firm or provide services to its clients.
Attorneys also cannot share fees or commissions with non-attorneys.
Fortunately the Department of Justice introduced the Legal Practice Bill a few years ago to liberate the legal profession and make justice through the courts more accessible.
However, the Old Boys Club of the legal profession saw the Bill as a threat to their status and whatever else and the Bill has since got stuck in debating rooms that failed to reach much consensus.
This is what the Minister recently said: "I am not starting the process from the beginning. I will take on from where my predecessor left off. The consultation process on this matter has been completed. I as Minister must decide what direction to take in this matter and accordingly draft a Bill. Obviously, views expressed by the legal profession and other interested parties will be taken into account before I make a final decision in respect of the new Bill."
Do you really think anybody will believe that you are willing to work for free or less; please. There is no such thing as a free lunch.
A Mercedes is expensive. A bicycle less so. Persian rugs are expensive, cement floors not. 'n Mont Blanc is expensive, a Bic pen not. Doctors are expensive - dolosgooiers not.
Some things just are more expensive - live with it. Look in the mirror and be honest with yourself - are you really concerned about the poor people out there who can't afford legal services (or doctors, dentists, houses, cars etc etc), or are you just pissed that the biglaw firms get all the paying customers?
Hi Complicator,
Am I really concerned or just mad? Neither. I know I can make more money by selling more sercvices to more people at lower prices. Simple as that. And by the way, what made you think the big law firm get all the paying customers?
Reinhardt
How do you want us to react, in favour, are you creating jobs or want more people in Law Societies to be without a job. I would like to see the majority replying to this gesture.
core values of the attorneys profession to which you so glibly and contemptuously refer are essential to retain professional independence, standards and ethical conduct which are in the public interest-attorneys are not commercial traders and should be responsible enough to recognise the need for proper regulation once again in the public interest.Will an unregulated profession be in the public interest?-be serious!
Have your Law Society taken you to task?sounds like it!
Hi Anonymous,
Your concern about the future of those currently employed by the Law Societies is valid. As far as I know the Legal Pract. Bill provides for entities to replace the current provincial Law Societies. Hopefully nobody will loose their jobs.
I really don't think that independnce, ethics and standards can only be maintained by retention of the provisions I would like to scrap. But who am I to make such a bold statement? Read the Bates v Arizona judgement and the OECD Report available as links from the links list (right) and get it from those in the know.
Have any of the Law Societies ever taken me to task? No, must admit that neither me nor anybody in my firm ever had the pleasure.
Mr buys
You should have known that you would step on many toes with this website. but people should also understand that you are just saying what everybody is thinking. sure - you may be wrong. but lets face it, the united states supreme judges, competition commission, oecd, dep. minister and more than helf the letter writers in derebus can't also be wrong. duh! we all know its going to chage anyway. this website will just speed it up. did anonymous ever heard the story about the deck chairs on the titanic? mr buys is not the iceberg...he's just poingting it our.
Touche Mr Buys.
Who is your.target market -- corporates or the man in the street?
Hi Anonymous,
Our target market is generally corporates and government institutions. In our field of the law (ICT, Media and IP)the restricting and prohibitive effects of the Act / Rules are probably more tangible and immediate than in others.
Do you honestly think that the current form of the rules are competative, constitutional and current?
No, but neither are the majority of most rules and regulations :-)
Remember the "mischief theory" taught at University......?
Complicator, can't we lift the quality of this debate a little? Have you looked at that US Supreme Court Case / OECD document?
This comment has been removed by a blog administrator.
hehehe... looking at the last post by anonymous about knitting of all things -- and you want ME to lift the debate!
Reinhardt - don't take my posts to serious. I am just trying to save the last few grams of "sense of humor" out there within the attorneys rank.
Oh, while I am at it -- congratulations with your headline on Legalbrief this morning! Well done young man, or should I rather say: "duik vir die koeëls!"
Mr. Buys,
I believe that at the very least your open letter will force a response from the Minister.In the absence of representation, you have bravely asked the questions that may/may not result in reform but still serves as a reminder that we should always question the status quo. Our clients rely on our critical thinking abilities and independent judgement. The contents of current legislation and rules as you have pointed out are outdated, no doubt and that is the most prevalent criticism of our profession: that we are irrelevant to the society in which we live. In my opinion we delay reform at our peril. The prohibitions on knowledge sharing and peer review impede the development of the profession especially in a society where information is the currency. Thank you for raising these issues, an effort most worthwhile and I look forward to the response.
Dear mr Buis,
You are just anti-touting because you and your stupid firm do not make enough money! Dentists and doctors have the same rules. Get a life!
Dear XXX,
The first part of your comment confirms why some stupid rules are not scrapped yet. Your right about dentists and doctors, yet their rules are not as outdated as those governing the legal profession. And what about bankers and financial advisors - they are professionals allowed to market themselves. Not true?
From Legalbrief newsletter:
Frustrated with the ‘colonial rules’ that restrict the legal profession, a Cape Town lawyer has issued a controversial open letter to the Minister of Justice in which he pleads for the scrapping of the Attorneys Act and the Law Society Rules. ‘The current regulation of the legal profession is slowly bleeding it to death’ says Reinhardt Buys, an IT lawyer. The open letter details how the Act and Law Society Rules exclude most South Africans from legal protection by punishing attorneys who undercut prices fixed by the Law Society. ‘How can any profession survive in today’s consumer economy if it is governed by rules that were developed in pre-colonial days, asks Buys. He also concludes that a significant number of the ruling provisions would probably fail constitutional scrutiny. Members of the legal fraternity and others are invited to express their opinions on a blog, operated by Buys.
In terms of the Attorneys Act, ONLY the following services are reserved for "attorneys":
1. Instructing advocates
2. High Court appearance
3. Appoint candidate attorney
4. Notary / Conveyancer
5. Draw up will
6. Administer estate
7. Draft sale of land agreement
8. Draft memorandum of association
9. Draft partnership agreement
10. Prepare court documents
Any other legal services like advice, opinions, drafting ect may be done by paralegals, lawyers, legal consultants and the like.
Dear Gatvol Nelspruit
Are you complaining or bragging?
Dear Mr. Buys - I suppose you would have no problem if your crusade results in no more work, of any nature, being reserved for the attorneys profession?
Hi Petere,
"I suppose you would have no problem if your crusade results in no more work, of any nature, being reserved for the attorneys profession?"
No. Why do you think the profession is currently loosing members and work? Because we compete with professions that do not have the same silly restrictions. Because we compete with professions that can market themselves. The status quo is the enemy of our profession. Not my proposals.
R
Why don't they allow anyone to perform surgical procedures? Or anyone to build a house? Because some people are experts in what they do - any I rather prefer the work being reserved thank you very much.
Rather prohibit the other professions to steal our work - then we can concentrate more on being professionals than on marketing like retailers. For some strange reason you just don't see specialist doctors and surgeons, advocates and other advertising like retail shops.
But I suspect It does go further than just plain old marketing...maybe you are more concerned about being able to give a discount to clients?
Hi Petere,
Your comments are valid. But they're not taking reality into account. Obviously it would be nice to prohibit other professions from stealing our work. That chances of that happening? o%
You're right that some people are experts. But how do you know whether they are experts or not? Do you smell it?
Does a person end up being less of an expert if you market? Why should the public not have the benefit of knowing who the experts are?
How do you link professionalism with silence. Do yourself a favour and read the Bates v Arizona judgment (link in right panel). Professionalism actually increases where there is a free flow of information, peer review and transparency.
Next Halloween I'm dressing up as the Law Society... even Dracula and Freddy Krugel will run away!
Hi Reinhardt
I have to agree with you on: "Professionalism actually increases where there is a free flow of information, peer review and transparency."
No problem there. I suppose what I am against is this "ambulance chaser" picture I have in my head whenever there is talk about "advertising" our services. It just "doesn't feel right".
What exactly are you prohibited from doing? Can you give some examples? (...a bit of advertising hehehehe, and they can't touch ye!)
Hallo Petere,
I totally agree that ambulance chasing and paying estate agents for work should be prohibited. But in doing so, the Law Societies currently also prohibit valid and truthful advertising.
R
Seeing that no else is interested in this topic and conversation any more, I will ask some more questions; so that you don't feel left out ;-)
What do you propose as "valid and truthful advertising" - give some examples please.
Valid and truthful advertising currently prohibited includes:
1. Sending a newsletter with legal content to a list of subscribers
2. Allowing our firm's IT manager to carry a business card
3. Making press releases about out firm's achievements / legal developments
4. Offering legal services at prices lower than those prescribed by the law society
5. Running advertisements in newspapers, on radio and YV
6. Paying referral commission to others who refer work to our firm (e.g. ISPs or web developers)
Number 1 is silly - they should allow it.
Number 2 I understand. IT people should be locked up in their IT cages - they shouldn't walk around.
Number 3. For sure - how can you blow your own trumpet!?
Number 4. No problem there - go for it (not IT - it).
Number 5. Eish man, thats not nice. You will look like a porn shop.
Number 6. Sies man, jy kannie dit doen nie. Dis omkoop.
mr buys - i dont know why you keep up with all this shit. operate as buys legal consulting and call youself a lawyer (god forbid, attorney!) and you a free from all this. why do you waste your time to rescue a profession that lost track with time. hallo, its 2005. and thanks to gatvol from nelspruit for pointing out the little crumbles of work that is actually still reserved for attorneys. i never realised the profession got that small. honey look, i shrunk the attorneys. mr buys - jump ship. nobody's going to give you a medal for trying to wake the old guard up. your not a hero, get out and let 'em hang themselves. but coming to think of it, they already did.
ek sien dat die opstel van n testament gereserveerde werk is vir 'n praktiserende prokureur. who knew. ek het sommer vir my en my vrou 'n testament by die bank gekry. mens kan dit ook aanlyn bestel. of jy kan sommer 'n kopie van jou golf buddy se testament maak. hoekom nou 'n prokureur gebruik - al wat ;n prokureur gaan doen is om aan te drink dat ek hom eksekuteur van my boedel maak. siestog.
IM STUDY LAW AT UWC AND MY LECTURER SAID WE SHOULD LOOK AT THIS WEBSITE. I DO NOT WANT TO STUDY LAW ANY MORE
Dear UWC student,
Remember that the attorneys profession is not the only option if you studied law. you can also become an advocate or a prosecutor or better still a corporate legal inhouse person.
Magde le Rouc
Hallo Petere,
I enjoyed your numbered comments on my previous post. I totally agree with you! The market (including you and me) should determine whether or not items 5 and 6 should be allowed. Not the Law Society. The market will very soon isolate attorneys who take the marketing thing too far. That's the core of my whole argument - the consumer (market) should benefit from the regulation of our profession and not the Law Societies.
HI ALL POSTERS,
SINCE YESTERDAY I HAD TO REMOVE MORE THAN THREE POSTS BECAUSE OF FOUL LANGUAGE AND RACIST REMARKS. IF YOU THINK I AM A K-BOETIE RARTHER FIND ABOTHER FORUM TO VOICE YOUR OPINIONS.
I CANNOT BELIEVE THAT SOME PEOPLE CONSIDER MY LITTLE CAMPAIGN IN A RACIST LIGHT. I REALLY FAIL TO SEE ANYTHING ON THIS BLOG THAT IS PRO BLACK AND ANTI WHITE. THESE PEOPLE ARE REALLY NOT DOING THEIR CAUSE ANY GOOD.
You know, you are actually fighting the wrong crowd here. The Law Societies are very positive re the Legal Practice Bill - ITS THE ADVOCATES THAT PLAY HARD BALL.
Anonymous said... ek sien dat die opstel van n testament ...etc and then ....al wat n prokureur gaan doen is om aan te dring dat ek hom eksekuteur van my boedel maak. siestog.
Liewe Anonymous hanswors
En jy dink nog al die tyd die bank stel verniet vir jou 'n testament op...gaan loer gou wie is aangestel as ekseketeur.
Gaan koop asb jou testament en ander kontrakte by die CNA of copy paste jou buddie s'n, dan sal ons litigasie prokureurs gelukkig altyd werk hê.
mr peter - if you think litigation lawyers will always have work, think again. Alternative dispute resolution over the Internet is making significant inrouds into traditional litigation work. in the uk contractual clauses referring disputes to such forums are becoming commonplace. it is faster than the normal court procedure, you can get a lawyer to represent you or you can represent youself, it is much cheaper and hey, you do it from your home or office. the udrp domain name dispute resolution rules have shown the world that diputes can be solved online. 6700 cases later, the only losers are litigation lawyers.
and hey, if that stupid oke above wants to buy his contracts from the cna, why not. since when is being stupid against the law?
Hi all,
I'm glad to see the standard of chatting picking up again after yesterday's dive into the mud!
Petere, I agree with you, but I think the point that anonymous testament guy wants to make is that certain stupid Law Society Rules cannot be enforced.
PTA guy (girl) - you make some very intersting and sobering comments.
Patere, what's your view on online arbitration? Good, bad, ugly? Stupid? Ban it? If you can't beat them join them?
Dear and beloved readers
I think online arbitration is wonderful. I also think it is like porn - some like it over the internet, some like it in person.
I like mine [litigation] in person.
;-)
Hi Petere,
Good to see you have a sense of humour.
This comment has been removed by a blog administrator.
I am in full support of your complaint, being a black candidate attorney, these draconian rules hit us the most and should be done away with to bring us in line with most First World Countries.
Dear Anonymous
It was never said that only an attorney can draft a will, the law says only an attorney can charge a fee for the drafting of a will, since we as attorneys are after all considered experts in drafting wills.
However if you are content with your Walton's will, so be it, to the detriment of your heirs and/or beneficiaries.
I'm one of those former attorneys who left practice because of disillusionment
Best step I ever took
I now work in the corporate sector where I can actually do legal work and provide other internal service that I have accumulated over time and traing, like marketing, human resources and communications skills.
These skills could never have been put to use if I had stayed in the legal profession.
I do not wish the any well in future.
I hope the old boys club falls eventually.
The problem is that the old country lawyers who actually have the time on their hands run the law society. The city lawyers are to busy or are not interested in a toothless hag that is better at whipping its members for disobeying ancient rules than it is at representing members.
Sorry
Reinhard
I specialise in ensuring our company is BEE compliant.
I feel strongly in favour of this and in my view the law society's applications to exclude themselves from things like BCEA, EEA and their belly searching about BEE is a very clear indicator that the profession wants nothing to do with Empowerment.
What is your view?
I believe eventually the government will have to step in and force a transformation charter on them.
As a joke, would it not be better for you to stay in the profession and not be bound by BEE Charters and Codes in providing your services to government and Parastatals?
Hallo Davids,
We all know that the legal profession is still very white and very male. Now that may benefit some of us, but its not good for the profession in the long run. It needs to change. Yet, those who want to change are practically preveted from doing so by the current Law Soc rules.
I don't know what the Law Societies' official view on BEE is. There might be some stuff on their websites.
Hi Charl,
Thanks for the post. Keem em coming!
Hello everyone! I don't know where to start but hope this site will be useful for me.
Hope to receive some help from you if I will have some quesitons.
Thanks and good luck everyone! ;)
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