Law Society puts on gloss for Parliament's justice committee

It’s almost 20 years on but many of the “old” South Africa’s anti-democratic habits remain.

The ANC, for one, has developed an authoritarian streak similar to that of the National Party and then there are some in the legal fraternity, sworn to defend the new Constitution’s ethos of transparency and accountability, who have retained the Nationalists’ penchant for unhealthy secrecy.

The Nats, long after they had abandoned any intellectual pretext for apartheid, continued to implement an ideology that they could no longer pretend to justify. So, too, South Africa’s four provincial law societies and its national body, the Law Society of South Africa (LSSA), as regards the mechanisms by which errant lawyers are held accountable – a system of behind-closed-doors protectionism.

In months of exchanges with the law societies, no one has yet provided me with a remotely convincing explanation as to why their disciplinary proceedings are secret, unlike, say, medical practitioners; why the public cannot check an attorney’s record for serious and repeated professional failings and why the public, the fee-paying consumer of legal services should not be represented on disciplinary panels.

A stock answer was that to disclose details of attorneys disciplined for minor offences could irreparably harm their reputations. It seems not to have occurred to the LSSA that it could set public disclosure at a level that excludes trivial offences.

Stephen Logan, a Johannesburg public interest lawyer and founder of lawyers.co.za, says local lawyers have been “getting away” with a lack of transparency that now makes government intervention inevitable, in the form of the Legal Practice Bill. But a transparent regulatory system, he argues, actually benefits not only of the public but the practitioner.

Logan, who is also a member of the Law Society of England and Wales, says the British situation is admirably open. “If you have to answer to a charge of misconduct, it is very much a documented process and very transparent. For the past five years the independent Solicitors Regulation Authority (SRA) has been acting with extreme rigour, which means that both clients and practitioners have faith in the process.”

The LSSA reiterates flatly in a recent submission to the parliamentary justice committee that “self-regulation is not negotiable”. It doesn’t mention international best practice and it definitely doesn’t want any public involvement in the disciplinary process.

The LSSA also put a gloss on the statistics it presented by exaggerating the penalties. It told the committee that fines ranged between R2 000 and R50 000, and could reach up to R100 000.

However, from figures provided by the provincial societies, it appears that fines rarely exceed R2 000. The LSSA also omitted to mention that in at least some of the provinces, more than half of the fines imposed are routinely suspended.

The LSSA confidently told the committee that “the percentage of attorneys that are offenders is minuscule compared to the number of ethical and law-abiding attorneys. This is an important indicator for self-regulation”.

Let’s look at the statistics. South Africa’s 21 463 attorneys in 2012 faced 3 782 complaints of “unworthy or unbecoming conduct” which includes offences like failing to appear or doing shoddy work. There were a further 3 418 more serious complaints of “unprofessional conduct” which includes failure to respond to correspondence, overcharging and various financial and accounting transgressions.

In comparison, there are 126 064 solicitors in England and Wales and the SRA annually investigates approximately 10 000 complaints. So with six times the number of practitioners, England and Wales generate just over a third more complaints.

What’s the explanation? Does South Africa have an alarming number of rogue attorneys? Or are there relatively few bad eggs who happen to be serial offenders? One doesn’t know, since South Africa’s “transparent and accountable” societies won’t reveal details.

Alternatively, is it that the British public is just less prone to complaint? Or, perish the thought, could it be that their lawyers actually behave more professionally than ours because the SRA’s regulatory mechanisms are more effective? The LSSA is curiously disinterested in finding out.

But Joe Public needn’t worry. The law societies have your back, so they say. Although, for the moment, they won’t let you find out how. And they certainly don’t want you, the law consumer, taking responsibility for your own back.