ILL121 Lecture Notes - Study Unit 4 - 2024 PDF

**STUDY UNIT 4** **THE LEGAL PROFESSION** - **Kleyn & Viljoen Chapter 14, 338-350** - **Extracts from the Legal Practice Act 28 of 2014** **LEARNING OUTCOMES** - **Define and explain the various traditional careers in the legal system** - **Define and explain the various careers in...

**STUDY UNIT 4** **THE LEGAL PROFESSION** - **Kleyn & Viljoen Chapter 14, 338-350** - **Extracts from the Legal Practice Act 28 of 2014** **LEARNING OUTCOMES** - **Define and explain the various traditional careers in the legal system** - **Define and explain the various careers in the public sector** - **Discuss the various forms of legal aid** - **Know the basics of ethics and the law** **Contents of STUDY UNIT 8** 8.1 Introduction 8.2 Traditional careers in the legal system 8.3 Professions in the public sector 8.4 Legal representation 8.5 Ethical questions **8.1 INTRODUCTION** One of the aims of the Legal Practice Act 28 of 2014 which came into full effect on 1 November 2018 is to restructure the legal profession and to make access to justice available to all. The discussion that follows focuses on the various professions in South Africa that service the rendering of justice. Many graduates believe that you can only become an attorney. This is not true as there are many other professions which you can pursue. This STUDY UNIT sheds light on this matter and also looks at aspects of law and ethics. **8.2 TRADITIONAL CAREERS IN THE LEGAL SYSTEM** **Kleyn & Viljoen Chapter 14, 338-343** The two professions that most people are aware of are the attorneys' profession and that of the advocate. However, there are other professional role players that play an integral role in legal practice, e.g. conveyancers. **8.2.1 Attorney** - Attorneys are the general practitioners in the legal profession. For most people this would be their first point of contact with the legal profession be it to seek legal advice or to initiate a legal dispute. - Most attorneys do the initial legwork consisting of **consulting** with a client and obtaining all relevant information and documents. - Most Magistrates' Court appearances are done by attorneys themselves. Sometimes attorneys may refer Magistrates' Court cases to an advocate because of, for example, the specialized nature of the matter. - Most High Court appearances are done by an advocate who is **briefed** by an attorney for this purpose. In this context it must be mentioned that in the past, attorneys could appear only in the Lower Courts. Today, it is possible for attorneys to have the **right of appearance** in the Higher Courts as well. - In terms of the Right of Appearance in Courts Act 62 of 1995, an attorney may apply to the Registrar of the High Court for the right of appearance in the Higher Courts (High Court, SCA and the CC). - Before the enactment of the Legal Practice Act 28 of 2014, the Law Societies in the various provinces under the auspices of the Law Society of South Africa, regulated the affairs of the attorneys within the province. - The affairs of advocates were regulated by the Bar Councils in the various provinces. - The Legal Practice Act significantly changed the regulatory landscape of legal professionals. The Act provides, *inter alia*, that the South African Legal Practice Council is the governing structure for both attorneys and advocates. **ADMISSION AS AN ATTORNEY** The Legal Practice Act 28 of 2014 lays down the minimum requirements for a person to be admitted as an attorney. The following are required for **ADMISSION AS AN ATTORNEY**: 1\. An LL. B degree; 2\. Service as a candidate attorney (previously known as articled clerk) doing Practical Vocational Training for: \- 24 months plus attendance a Practical Legal Training programme for 150 notional hours; or \- 12 months plus attendance of a Practical Legal Training programme for 400 notional hours. 3\. The **Practical Vocational Training** may be done with an attorney, firm of attorneys, state attorney or law clinics. 4\. A pass mark in the Attorneys' Admission Examination. In terms of the Right of Appearance in Courts Act 62 of 1995 for the right of appearance in the **HIGHER COURTS** (High Court, SCA and the CC), the attorney must prove that: 1. They are admitted as an attorney of the High Court; and 2. They are in good standing with the regulatory body (the Legal Practice Council, formerly the Law Society of South Africa.) **8.2.2 Advocate** - Advocates are **specialist litigators** whose main function is **TO APPEAR IN COURT**. - In the past, clients, as a rule, did not approach advocates directly. Clients would usually approach an attorney who does the initial legwork. - After all the relevant information has been obtained, the attorney may appear in the Lower or High Court himself/herself. - However, often the attorney would then brief an advocate (also called "counsel") to draft the pleadings, write opinions and appear in court on behalf of the client. By and large, this is still how matters are conducted today. - However, the Legal Practice Act has created two categories of advocates: i. (normal) advocates and ii. advocates with a fidelity fund certificate. The fidelity fund certificate allows the advocate to be approached by a client without the attorney acting as an intermediary. (Normal) advocates -- those without a Fidelity Fund Certificate -- practice in conjunction with an attorney. **ADMISSION AS AN ADVOCATE** The Legal Practice Act 28 of 2014 lays down the minimum requirements for a person to be admitted as an advocate. The following are required for **ADMISSION AS AN ADVOCATE**: 1\. An LL. B degree. 2\. A candidate must do Practical Vocational Training for 12 months - The Practical Vocational Training may be done under a practicing advocate, an advocate employed at a law clinic, or any other institution approved by the Legal Practice Council. 3\. A candidate (pupil) must complete a structured programme of course work of not less than 400 hours - The structured programme may be offered by a society of advocates, the National Bar Council of South Africa or the General Bar Council of South Africa. 4\. Successful completion of the bar examination. **8.2.4 Conveyancer** - To practice as a conveyancer the attorney must pass a **SPECIAL CONVEYANCING EXAMINATION**. A conveyancer is an attorney who does the specialised work of **transferring (conveyancing) ownership and other real rights in land**. - For example, if you buy a house you will, need a conveyancer to conduct the property transfer. - A **title deed** is a document that identifies a piece of land and reflects the identity of the owner of the land or the identity of the holder of a real right in that piece of land. It is like an identity document that contains all the important information of a person. - Each piece of land in South Africa has a title deed. These title deeds are registered in the **Deeds Office** and ownership is transferred from one person to the other only if the transfer of ownership is registered in the Deeds Office by the Registrar of Deeds. - The conveyancer is the attorney who does the work and prepares the documents for the transfer of ownership etc. - You will learn more about this in Property Law 211 in your second year of study and in the Law of Conveyancing elective in the final year. **8.2.5 Notary** A notary, like a conveyancer, is an attorney with an additional qualification. A notary does special work such as the **drafting of specialised documents** e.g. an ante-nuptial contract. A notary is authorized by the High Court to witness signatures, draw and attest contracts and authenticate validity of contracts. **8.2.6 Office personnel** These are support personnel, e.g. secretaries, in the offices of the professionals discussed above. A legal qualification of some kind is beneficial in their daily work. **8.2.7 Legal Advisor** These are persons who hold an LL. B degree who perform the services of legal advisor in commercial companies such as banks. An additional B. Com degree is advantageous. **Question 8.2** **Discuss the main difference between an attorney and an advocate.** **8.3 PROFESSIONS IN THE PUBLIC SECTOR** **8.3.1 Prosecutor** - The **Director of Public Prosecutions** (NPA) is responsible for instituting criminal proceedings. - This function is delegated to: - **PUBLIC PROSECUTORS IN THE MAGISTRATES' COURT** and to - **STATE ADVOCATES IN THE HIGH COURTS**. - An Office for Serious Economic Offences (OSEO) deals with the investigation of economic offences. **8.3.2 Presiding Officer** - The President appoints judges on the recommendation of the Judicial Services Commission. - They become official in the Department of Justice. In the **High Court**, they are referred to as "**My Lord**" and "**My Lady**". - In the **SCA** and the **CC** the judges are referred to as "**Justice**". - Magistrates are appointed by the Magistrates' Commission and are addressed as "**Your Worship**". **8.3.3 State Attorney** State attorneys do the work of ordinary attorneys for the various state departments. **8.3.4 State Legal Advisor** State legal advisors do specialised work for the state such as legal research, checking existing legislation (e.g. the constitutionality thereof) and drafting new legislation. **8.3.5 Registrar of the High Court** - Each High Court has a Registrar (similar to a secretary). - The Registrar is responsible for the administration of the High Court. - The Registrar, *inter alia*, receives and files documentation such as the pleadings in civil and criminal trials. It also issues documents such as summonses and notices of motion etc. **8.3.6 Clerk of the Court** Fulfills the same functions as the Registrar but in the Magistrates' Court. **8.3.7 Master of the High Court** Each High Court has a Master of the High Court who has specialised functions. E.g. i. the administration of deceased estates; ii. liquidation of companies; iii. controlling trust funds on behalf of minor children. **8.3.8 Registrar of Deeds** The Registrar is in charge of the Deeds Office -- see the discussion under Conveyancer above. **8.3.9 Family Advocate** This is a very important innovation in our law that came about in 1998. The family advocate plays a critical role in divorce cases especially where children are involved. **8.3.10 Public Protector** The Public Protector deals with maladministration at all levels of government. **8.3.11 Public defender** These are attorneys and advocates employed by the state to represent accused persons who cannot afford legal representation. **Question 8.3** Discuss the types of presiding officers and how they are addressed in court. **8.4 LEGAL REPRESENTATION** - As has become clear from the lectures throughout the year, access to justice is a problem in South Africa. - One of the reasons, highlighted on several occasions throughout the year, concerns the high costs of litigation. - We shall next look at the issue of costs and, thereafter, at steps that the state has taken to address this obstacle to making justice accessible to all. **8.4.1 Costs** - Fees that lawyers may charge are regulated by statute and by the professions. - Attorneys and advocates charge per hour for consultations and per day for court appearances. - Though the underlying requirement is that the fees must be reasonable and though such fees may be reasonable to the service-providers, the fees are often prohibitive to the general public -- in other words very high. - The Legal Practice Act now requires attorneys and advocates to provide clients with a **WRITTEN "COST ESTIMATE NOTICE"** setting out the tasks to be fulfilled by him/her and the costs in respect of each task. - At best such estimate **FOREWARNS A CLIENT OF THE APPROXIMATE COSTS** that the client will have to bear but it does not place the client in any bargaining position as far as the costs are concerned. Thus, it does not solve the problem of the prohibitive costs of litigation. **8.4.2 Existing Legal Aid** Whilst Section 35 of the Constitution provides that an accused person has the right to appoint a legal representative of his/her own choice, it also provides that legal representation must be provided at **state expense** if **substantial injustice** would otherwise result. The following forms of legal aid are available: ***1. Pro deo*** The Latin term literally means "for God"" meaning free. In serious criminal trials in the High Court, the state provides an indigent accused (who does not have sufficient finances) with *pro deo* counsel who is a practicing advocate. (Many new/young advocates gain their experience from *pro deo* cases. ***2. Pro amico*** This Latin term literally means "for a friend". The attorney or advocate provides free services for a friend or acquaintance. **3. Legal Aid Board** The Legal Aid Board is a statutory body that provides legal aid to indigent persons. **4. Law Clinics** - Some universities, such as UWC, run law clinics that provide free legal services to indigent persons, including women and children, pensioners, unemployed, rural poor and those on a disability grant. - Legal Aid for individuals - must earn less than R7 400 per month. - Legal Aid for households - must earn less than R8 000 per month. - Such clinics may also represent any person if substantial injustice would otherwise result. These clinics serve a dual function in that they also provide senior students with clinical legal education. - For example, some UWC law graduates do their 'articles' at the UWC Law Clinic. **5. Advice Bureau** These are non-governmental organisations, often staffed by **paralegals**, that provide free legal advice especially in rural areas. Paralegals are persons not in possession of an LLB but who has legal knowledge and experience. They do not have a right of appearance. **6. Public Defender** Public defenders are employed by the state and provide free legal representation to indigent persons in criminal trials. **Question 8.4** You are a practicing attorney. Your friend has committed murder but mentions that he will be raising a defence during the trial. You agree to be his defence attorney and that you will not charge him anything. With the above in mind, explain the difference between *pro deo* and *pro amico* legal representation. **8.5 ETHICAL QUESTIONS** Here we will consider some of the ethical requirements/norms that are expected of attorneys and advocates in their everyday practice of the law. The latter may be divided into three categories: **1. Interaction with colleagues** In this context, attorneys and advocates are required to be respectful and courteous towards one another. They should attack the content of the argument of their opponent and **not the character of their opponent**. **2. Court etiquette** In **both conduct and dress**, they should respect the **dignity of the court**. The Legal Practice Council may take disciplinary steps against an errant practitioner for unprofessional, dishonest or improper conduct. **3. Interaction with clients** a. Legal practitioners must always act in the best interests of their client(s). b. However, (a) above does not mean that a legal practitioner may fabricate information. The role of the legal practitioner is always to assist the court in arriving at the truth. \(c) If a client in court contradicts a version given to the legal practitioner during consultation, the legal practitioner will usually request the court's permission to withdraw from the case. **4. Broad Understanding** [Law and Norms] Religious norms, Individual morality, Community Mores - Law and norms are similar on the surface, but fundamentally different. - Law is the body of rules that governs society and usually results in punishment or penalty if disobeyed. - Ethics involves principles or guidelines that generally inform people on how to behave or a standard of conduct required in society, akin to the various norms as discussed in ILL111 unit 1, lecture 1. **[END]**