William Saunderson-Meyer
William Saunderson-Meyer

Just trust me, I’m a lawyer…

Despite a stonewalling legal establishment, the issue of attorney misconduct is hard to fudge. The reality is that South Africa’s law societies place member interests above transparency, appear to discipline members inconsistently, and are indifferent to international benchmarks.

A few weeks back this column touched on the latitude granted to the professions to regulate themselves without state oversight. Strikingly, the only South African professionals to shroud this privileged process in secrecy are lawyers.

If one wants to check on one’s doctor’s reputation, the Health Professions Council website details all disciplinary hearings against a practitioner’s name, including the full charge sheet and sentence. But with attorneys there is simply no way of checking their vaunted professionalism on matters like failing to appear in court, not following client instructions, not responding to client correspondence, deliberate delays, financial mismanagement and overcharging.

Unlike, say, the United Kingdom where disciplinary rulings are searchable online by name of both practioner and firm, SA’s law societies simply won’t disclose the identity of disciplined attorneys. The exception is strikings from the roll, which openness has nothing to do with law society largesse but because a struck attorney’s name is automatically a matter of High Court record.

Professor Hugh Corder of the University of Cape Town’s law faculty describes such secrecy as ‘horrifying’. He says it flouts the Constitution, which governs the accountability of institutions that have ‘public power or exercise a public function’.

The public, too, is vociferously critical of what one person who responded to the column called ‘the charade of self-regulation’. A Durban man representing clients in fee disputes with lawyers, doctors and accountants, says that all professional disciplinary bodies share an identical modus operandi of ‘Delay, delay, delay! They know that most complainants lack the stomach or the wallet for protracted battle’.

Corder says that ironically the failure of the Law Society of SA (LSSA) to transparently regulate attorneys might ease passage of the Legal Practice Bill – much disliked by the LSSA and its members because it seeks to regulate both complaints and fees, and allows the Justice minister a substantial role in the governance of the profession – since a frustrated public eventually becomes tolerant of state intervention. ‘Despite its laudable accountability measures, the Bill also has some truly horrendous provisions that will sap the profession’s independence. Attorneys may yet find that in their resistance to credible oversight, they are letting in the wolf at the back door.’

So how bad is the problem? Given the obstructionism and obfuscation that meets inquiries, it is difficult to know. It took weeks of nagging to get any of the four provincial law societies to disclose information on disciplinary complaints. Then the grudgingly provided statistics differed so much in format that any comparisons are difficult. Nevertheless, let’s try.

In 2012 the Cape society received 3 269 complaints and upheld 229. Penalties ranged from warnings to a R23 000 fine. The Northern Provinces held 203 inquiries involving 603 attorneys. Some 425 complaints were upheld, leading to 25 warnings and 23 suspensions. Fines totalled R2.1-million, of which approximately R800 000 was conditionally suspended and R500 000 was unconditionally suspended. The Free State upheld 27 complaints with fines averaging R2 000. KwaZulu-Natal conducted 11 inquiries, suspended 29 attorneys and struck four from the roll.

The LSSA reports 78 attorneys nationally struck from the roll, strikings being the only disciplinary category it monitors. Contrarty to the KZN figures, LSSA counts only two KZN attorneys struck.

These limited numbers raise more questions than they answer. In fact, it’s perplexing that a profession proudly based on exactitude can be so cack-handed at statistics. But then the issue of attorney malfunction has never been very important to lawyers. For example not a single society annual report available online examines disciplinary matters in any detail.

Nor, after demanding to know the questions beforehand, would any of the law society chiefs deign to be interviewed telephonically. The questions were simple: Why does SA differ from best international practice? Does secrecy not flout basic legal tenets?

The average first-year law student could probably give answering those a credible bash, but not the law societies. Three of societies were never heard from again.

Cape director Rampela Mokoena sent a written response but then did not provide the necessary clarifications. He stated, however, that he did not believe ‘there is a general practice of secrecy around professional standards hearings’. Regarding the proposals in the Bill for greater transparency, layperson involvement, and an independent ombudsman, Mokoena wrote that he was ‘reasonably certain that the attorneys’ profession has broadly supported them’.

This appears to differ from the LSSA position. A brief statement from Nic Swart, chief executive of LSSA, reiterated that its members want disciplinary procedures excised from the Bill, allowing the retention of attorney-determined rules, ‘in which constitutional values … will be taken into account’.

In other words, ‘Just trust us, we’re lawyers.’ It is hardly reassuring that almost two decades after SA became a democracy, law societies are at last considering factoring the Constitution into their rules and regulations.

Tags: , , ,

  • South Africa’s lawyers should be desperately ashamed
  • Something rotten in the state of the law
  • How can you avoid a ‘corked’ lawyer?
    • Dave Haggis

      What! How dare you ask for such Eurocentric concepts like transparency, openness and freedom of information! Don’t you know that our glorious Big Brother society is founded on secrecy, lies and concealment, mainly so that we can bow and scrape to our infallible political leaders and tribal chiefs! Anyway, who needs professionals or the law – these are strange Western concepts alien to our society of repression, regression and the tyranny of the political elite and their lickspittle propagandists. After all, I wouldn’t have a job otherwise…

    • Honkie Tonk

      In a public survey of most loved and most hated professions, lawyers were near the bottom of the pile, while estate agents were half way up. Estate agents I guess have to be more transparent and honest than lawyers, and are perceived that way by the public. Time for lawyers and politicians to become more transparent, honest and accountable.

      PS. Last year I had two dodgy dealings with lawyers who should have been reported to the Law Society, but whats the use?

    • Lilian

      Dave Haggis,
      You are nearly as entertaining as Dave Harris.

    • Charlotte

      Dave Haggis for president!!

    • Frans Verloop

      ….. and allows the Justice minister a substantial role in the governance of the profession…… Can you imagine Jeff Radebe in that role? Judging by the number of court cases this government loses gives an indication of the quality of legal advise his department produces. Never mind the present shortcomings of the legal profession – which profession doesn’t have shortcomings – with Jeff Radebe it can only get worse.

    • ConCision

      Dave, Dave, Wherefore art thou, Dave?
      or
      Hurry up, Haggis
      – – – – – – – – – – – – – – – – – – – – – — – -.
      Dont delay, Dave
      Show us the way, Dave
      Thy comments urgently needed in another fray ….

      http://www.thoughtleader.co.za/garethsetati/2013/04/12/land-reform-is-it-that-simple

    • Joe Citizen

      Everyone hates a “dirty, rotten” lawyer……..until they need one.

    • Honkie Tonk

      Don’t expect too much on Saturday and Sunday, Dave H – ANC spindoctor usually takes weekends off. Just be patient guys, the political, anti-environment and free market fundamtlist spindoctors usually start on Moday mornings. They are not paid to work over weekends.

    • Asif

      The same can be said about the medical profession.

    • The Creator

      noseWeek is pretty good on this subject.

      Anyone who thinks that going to the courts is a good substitute for real political action should think seriously about the kind of people our lawyers and judges appear to be.

    • http://none Lyndall Beddy

      What I find revolting in our legal system is our Chief Justice being sanctimonious about restricting qualified White Judges in White South Africa, yet nothing wrong with NO qualified judges of any race in the Black Homelands which are still under the rule of Tribal Chiefs.

      What is to stop the Tribal Chiefs using Sangomas to sniff out the guilty (usually an enemy of either the Chief or the Sangoma) for the people to execute as witches as has been done for centuries?

    • NVG

      KZN Law Society- governed by the Mafia, certain members do NOT get investigated even after years of complaining and repeatedly claiming documents are mislaid etc including subtle threats…………….PS. excludes one dedicated member

    • Case Closed

      Of course, Lyndall Beddy is 100% correct.
      The ANC want control over the courts – to further their own self-centered ambitions, for their own self enrichment, and to save their own skins.
      Judges are chosen and directed by the ANC mafia. Those that bow down to their new black ‘massers’, are appointed.

      Unfortunately, in this country, it is not only ‘the law that is an ass’.
      The government is that and far worse.

    • ConCision

      The Similarity
      In the Inequity
      Of the Travesty of Justice
      ———————————

      When it comes to honesty, accountability and integrity
      Neither the presidency nor the law profession are guilty

    • http://none Lyndall Beddy

      To point out the obvious fallacies in Pravin Gordhin and Zuma’s latest speeches:

      1. The “Legacy of Apartheid” was the largest Economy in Africa which was a Socialist State and has now been asset stripped.

      2. There can be no “Normal Society” providing “Changes for the Marginalised” in a country which still has half the farmland lying fallow under a different legal system of rule by feudal tribal chiefs in ONE TRIBE ONLY ALLOWED TO RESIDE Black Homelands where there is NO rule of law in terms of the SA Constitution.

      Margaret Thatcher, like Winston Churchill, will prove to have been reviled when she spoke out, but recorded as accurate in terms of History when she said that anyone who thought the ANC could run the country was living in “Cloud Cuckoo Land”

    • Mad McMax

      Asif, the medical profession bury their mistakes, and can be heard to say “the operation was a great sucess, but unfortunately the patient died”.

      Honkey Tonk, where do bankers come on that list? Slightly below second hand car salesmen I would guess.

    • http://wheelsfanaticsa.co.za/ Malesela

      Well we all hate dirty lawyers, but wait until you need them

    • Prince

      This writer knows the LSSA very well. I could not agree more. All i can say is that the Public should beware of large legal firms in South Africa and their conflicts of interest.

    • http://www.attorneyport.com Attorney

      This is actually attention-grabbing, You happen to be a good overly experienced blog writer. We’ve registered ones rss feed in addition to crunch for trying to find a greater portion of your terrific article. On top of that, We’ve provided your site during my social networks

    • SARAS

      My Bother and I are being doped/robbed by a Lawyer and she is getting away with murder by using the legal system to legally rob innocent victims.I had sent complaints in December 2013 and they are still opening files for November (so i’m told) Someone sent them a complaint 2 years ago and still no response .In the mean time, this bully is still robbing unsuspecting people.I need to assist them but cannot as I am standing all alone. These individuals are afraid of being victimised and are afraid of further lawsuits and summons which this Lawyer is famous for.

      Who can I turn to for assistance?????

    • Filing is an Electronic Backup

      I am a foreigner (here better defined in a sentence below) and English is not my Native Language. I am a Data Scientist with null knowledge of the legal

      Attorney…

      A Divine Word that doesn’t need identification..

      Signing this comment with a full name,

      as the Author did being an inferior creature,

      is redundant and almost certainly irritating for such a divine caste.

      After the Pope…. no doubts, The Other Word is… Attorney.

      Attorney…. a creature superior to the human race,

      generously offering his grace to these inferior creatures..

      I am deeply honored and grateful

      for reading the Comment of The Attorney… without paying a Tariff…

      but I will understand and I will pay it with humility and reverence,

      should The Attorney wish to dictate so.

      —————————————————————————-

      I am a foreigner, but the best attribute here is immigrant

      with the additional attribute of being easy to abuse and to take advantage.

      allegedly victimized for failure of authorities to practice in good order..

      diagnosed,by one of the best professional world wide in the field, after months and among other effects, with:

      a severe secondary trauma involving THE POLICE and LEGAL SYSTEM

      And I do have a point. Yet, while slowly recovery,

      I came to believe more than almost certainly going to the LS would harm me even more,

      still including the probability to be wrong,

      but I don’t know that probability, I see on the wall 0.000001%

      but that’s the probability that a human being can be accused to be drunk

      because he wants to devolve a sum to protect a species extinguishing.

      I was advised many times to go to the Law Society to complain about a STARAttorney…

      as second step after ensuring one side of my protection with an Order…

      today I phoned the LS Olympus 7 times – blessed to score 3 calls that reached the stage after the receptionist.

      SAME TRIVIAL ELEMENTARY QUESTION, 3 DIFFERENT ANSWERS.

      I’m excited and impatient to broaden that spectrum tomorrow.

      The author of this exceptional article, disclosed his identity…

      but almost certainly the Attorney knows the true reason behind it…

      …self centered low caste blogger… hopelessly stammering out exotic combinations of digits… that will fade away while nothing changes

      Thank you HIS HONORABLE EXCELLENCY The Attorney,

      for your generosity to share with us human being your comment