The landscape of the legal profession in England and Wales has been redefined, severing its ties with the past. This cutting of the umbilical cord was made possible by the passing of the Legal Services Act 2007 by the British Parliament. The act has brought unprecedented changes in the traditional practice of law to the attorneys’ profession in England and Wales.
It has liberalised the practice of law in those countries in that solicitors/attorneys and non-legal professionals, such as chartered accountants, HR practitioners, financial advisers, town planners and other professionals, can now work in partnership under one roof, an alien concept to the South African legal profession.
Such partnerships are referred to in the act as Legal Disciplinary Practices (LDPs), although they are not different from other Multi-Disciplinary Practices.
The act limits ownership of LDPs by non-legally qualified professionals to 25 percent. Time will tell how many professionals such as HR practitioners, chartered accountants, town planners, engineers and others will join forces with solicitors.
Existing law firms have since been able to restructure themselves into Alternative Business Structures (ABSs) since 2011, redefining the traditional practice of law.
Certain law firms have already opted for this model of legal practice by inviting private equity partnerships to take shareholding in their firms. PricewaterhouseCoopers (PwC) in the UK has established an ABS and is practising under the brand, PwC Law.
Financial institutions, such as commercial banks, insurance companies and investment banks can take a 25 percent stake in a law firm and introduce non-legally trained professionals into the firms. The 25 percent stake or shareholding is not limited to financial institutions. Corporations and individuals can also take a financial interest after approval by the Solicitors Regulation Authority, which regulates LDPs and ABSs and issues licences to new ABSs. The Law Society of England and Wales, on the other hand, promotes and support the interest of solicitors.
This complete and drastic transformation of the legal profession in England and Wales was introduced as a safety belt to guarantee the survival of the legal profession, which was facing competition from in-house counsel, accountants, financial advisers, investment bankers and estate agents employed by financial institutions and big companies. In South Africa, attorneys and advocates are also facing similar competition challenges. However, LDPs and ABSs are currently not permitted, but this may change in the near future.
Any attorney would be guilty of unprofessional conduct if they practised in partnership with advocates, chartered accountants or any other non-legally trained professional.
South African law does not permit attorneys and advocates to practise in partnership or even share offices or fees.
The South African legal profession has been discussing transformation for about 20 years. The discussion gave birth to the Legal Practice Act which was passed last year.
It provides for the establishment of multidisciplinary practices within two years from the establishment of the Legal Practice Council.
The Legal Practice Council is expected to be established in February 2017. The provision for the establishment of multidisciplinary practices is a recognition of the threat and competition faced by South African legal practitioners from major competitors in private practice, such as the members of Corporate Lawyers Association of SA, attorneys and advocates employed by justice centres around South Africa, accountants and paralegals.
The delay in the establishment of multidisciplinary practices is not doing the economy any good, and the public is denied the benefits enjoyed by the first-world countries.
The sad thing is the country has failed to prioritise transformation, be it the land question, economic empowerment or the transformation of the legal profession which is a feeder of the judiciary.
It is a daily discussion that the legal profession has remained largely untransformed despite a pre-1994 agreement by the Black Lawyers Association (BLA) and National Association of Democratic Lawyers (Nadel) that the legal profession will be transformed under a democratic South Africa.
The agreement was that the attorneys and advocates would be fused and mirror other African countries. This was before the formation of Advocates for Transformation.
It was for this reason that the Constitution of the Republic of South Africa Act, 1996, made provision for the appointment of judges from the attorneys, advocates and legal academics.
This historical achievement is a contribution made by the black legal professional organisations at Codesa.
In East Africa, the economic powerhouses of Kenya, Tanzania and Uganda already have a fused legal profession. They choose to call themselves advocates rather than attorneys, the latter terminology being viewed as less elitist. Most European countries use the term advocate.
The fused profession in African states has also led to cost savings, given the fact that, unlike in this country, all legal professionals appear in all courts. In South Africa, an unsuccessful litigant is mulcted with a cost order on an attorney and advocate, sometimes including two advocates depending on the complexity of the matter.
Very few attorneys have availed themselves to appear in the superior courts despite their right of appearance in all superior courts in terms of Act 62 of 1995.
This failure to appear in the superior courts by most attorneys has created a perception that appearance in superior courts is a turf reserved for advocates only.
Transformation requires that attorneys should compete with advocates, given the fact that the Judicial Service Commission recommends appointment on the bench by fit and proper South Africans from both these professions.
One hopes that on the implementation date of the Legal Practice Act, which is two years from the appointment of National Forum that was in February this year, and if things work according to plan, a respectful number of advocates will choose whether they will continue with the status quo or take direct instructions from the public.
At the end of the day, the South African public should make a choice of the best model to adopt, one that best suits the needs of the country; An African model, such as that adopted in Kenya, Tanzania, Uganda, or the colonial model.
Ultimately, South Africa is part of Africa and should therefore perhaps make the African choice, which is a fused and expanded legal profession.