How can you avoid a 'corked' lawyer?

Ordinary old people do ordinary old jobs. Doctors, lawyers, nurses, accountants, teachers and even – God help us – journalists and estate agents, “follow professions”. The very phrase has intimations of responding to a religious calling.

These aren’t the famous “wukkers” of South African trades’ parlance. Elevated above the herd, the manner in which these men and women toil resonates in the language we use. We accord the accolade of being “professional” to someone who is competent, effective, respected and respectable.

Since they are obviously superior to common nine-to-fivers, professionals are great believers in self-rule. Like ye olde Knights Templar, they don’t take kindly to being policed by their social inferiors. Professionals have self-authored codes of conduct, charters of commitment, declarations of ethics and oaths of integrity.

Astonishingly, society largely buys this self-serving gumph. The professions are generally allowed to regulate and discipline themselves, with the law interfering only in exceptional circumstances.

Given collegial ties and a comcomitant inclination towards compromise – the “there but for the grace of God goes I” phenomenon – it doesn’t work too well for society when peers police one another. An example is the media, where the limp-wristed Press Ombud only discovered some backbone upon the threat of a legislated media tribunal.

This week the Auditor-General reported that R25-billion of the provincial fiscuses went lost, stolen or strayed last year. The entire public service, national and provincial, employs 1.3-million people.

Also this week, the Board of Healthcare Funders revealed that that medical aid schemes are being defrauded to the tune R22-bilionn a year. There are approximately 27 500 doctors in SA and virtually all of the fraud was initiated or facilitated by dishonest medical practitioners. You know, the ones who take the Hippocratic Oath upon graduation, swearing by Apollo to avoid “intentional injustice and all mischief”.

Of course, the Health Professions Council of SA (HPCSA) promises a vigorous disciplinary response. No doubt much like what happened in 2012, when it found all of 19 doctors guilty of medical aid fraud, the penalty never being more than a fine, or a wholly suspended suspension.

Only one, a Dr SJ van Zyl, had to face criminal charges in addition to the disciplinary charges. He committed 1 947 counts of fraud amounting to some R400 000. The court fined him R200 000 and imposed a suspended jail sentence. The HPCSA gave him a wholly suspended five-year suspension.

Try getting away with that, if you are a wukker rather than a professional. Perhaps in SA we should call it the Hypocritic Oath?

To its credit, though, the HPCSA publishes its guilty verdicts online, wrist-taps though they might be, and names the offender. The legal profession, in comparison, is a much fiercer and more effective trade union.

Infused, no doubt, by the ancient legal precept that justice should be seen to be done, SA’s law societies – there are four regional ones and a national one – refuse to name members found guilty of disciplinary offences, except for those struck from the role or suspended. This is no laudable concession to public accountability. Since suspensions and strikings are formal court proceedings, open to public scrutiny, the law societies have no option in this regard.

The law societies, otherwise such staunch defenders of transparency and the public right to know, argue that a disciplinary hearing is of concern only to the complainant and member. Only two societies even condescended to respond to this journalist’s requests for information on their bad eggs.

KwaZulu-Natal played the stalling game, something lawyers are adept at. Initially it said it couldn’t provide the information because the clerk was on maternity leave. Then it said it couldn’t provide it without the authorisation of a full executive meeting. Eventually it revealed that in 2012 there were 11 law society inquiries, with four attorneys struck off the role. Another 29 were suspended for failing to lodge audit reports or fidelity guarantee certificates.

Free State was refreshingly and immediately forthcoming: 25 attorneys were fined for offences such as failing to appear in court, not executing mandates, or not answering correspondence. These drew fines of around R2 000 a time, infuriating and inconveniencing though these infractions no doubt were for the clients involved. In contrast, mere failure to respond timeously to a letter from the law society drew a standard R6 000 fine.

Neither society would name offenders. So any member of the public who harbours hopes of checking the competence of the attorney they need to engage, can forget it. It’s a blind tasting and if you get a corked “professional”, tough luck. Buy another one.

The Legal Practice Bill that the law profession is currenttly fighting on entirely legitimate fears that it will erode practitioner independence, provides for an ombud. The profession’s opposition on the Bill’s controversial clauses would be far more credible if it embraced not only the idea of an independent ombud, but insisted that such ombud hearings were open to the public and the judgments were published online.