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.