RESPONSE TO NADEL MEDIA STATEMENT OF 1st OCTOBER 2022

I respect NADEL’s right to express its opinion on my valedictory contribution to the General Council of the Bar’s (GCB) periodical, Advocate dated August 2022, but I do not believe that my piece bears out their criticism or provides any basis of their conclusions. The statement issued by NADEL is based on the premise that I seek to undermine the objectives of the Legal Practice Council (LPC), a body on which I serve as a Council member.

The objectives of the LPC are set out in section 5 of the Legal Practice Act (LPC) and read as follows:

5. Objects of Council

The objects of the Council are to-

(a) facilitate the realisation of the goal of a transformed and restructured legal profession that is accountable, efficient and independent;

(b) ensure that fees charged by legal practitioners for legal services rendered are reasonable and promote access to legal services, thereby enhancing access to justice;

(c) promote and protect the public interest;

(d) regulate all legal practitioners and all candidate legal practitioners;

(e) preserve and uphold the independence of the legal profession;

(f) enhance and maintain the integrity and status of the legal profession;

(g) determine, enhance and maintain appropriate standards of professional practice and ethical conduct of all legal practitioners and all candidate legal practitioners;

(h) promote high standards of legal education and training, and compulsory post-qualification professional development;

(i) promote access to the legal profession, in pursuit of a legal profession that broadly reflects the demographics of the Republic;

(j) ensure accessible and sustainable training of law graduates aspiring to be admitted and enrolled as legal practitioners;

(k) uphold and advance the rule of law, the administration of justice, and the Constitution of the Republic; and

(l) give effect to the provisions of this Act in order to achieve the purpose of this Act, as set out in section 3.

There is not a single one of these objectives which I do not wholeheartedly support. Indeed, my service to the profession commenced in the late 1990’s, well before the advent of the LPA and is a matter of record. I continue to serve the profession in pursuit of these objectives. Nothing in the valedictory piece published under the heading “Adieu” can in my view reasonably form the basis of a conclusion to the contrary.

Prior to the LPA being passed into law, the GCB opposed those aspects of the draft legislation then under consideration which tended to ignore the fact that advocates and attorneys practice quite differently to one another and are part of distinct branches of the legal profession.

All advocates were required to accept work only on the instructions of attorneys, and the work they may permissibly perform was and is limited to certain litigation related activities, and to the provision of legal advice generally. Attorneys on the other hand, take work directly from their clients, and are entitled to render the same services as advocates, but are also entitled to render a far broader range of services as well.

Although the GCB lost the battle to have attorneys and advocates being permitted to self-regulate (if needs be under a statutory regime, free of government influence), and to do so separately, the distinction between the advocates’ profession and the attorneys’ profession is given express recognition in various sections of the LPA.

The inaugural (previous) LPC served from 1 November 2018 to 31 October 2021. My opinion that the majority on the LPC as constituted - prior to my becoming a member with effect from November 2021 - attempted to blur the distinction between attorneys and advocates in a manner not contemplated by the LPA, is based on fact. They did so by imposing on pupil advocates training and assessment in relation to services that they as advocates are prohibited from rendering, at the cost of more time and attention being paid to the skills that they do require.

This is in my opinion anti-transformative because new entrants to the advocates’ profession are best placed to succeed in practice if they receive the optimum level of training and experience which is relevant to their intended practice as advocates, during their pupillage. By far the majority of new entrants to the profession which falls under the GCB are black, and approximately half are women. A dilution of advocacy-based training and assessment disproportionately prejudices them in their ability to build sustainable practices as advocates.

The previous LPC also dismissed out of hand attempts by the GCB and others to ensure that the obligation of attorneys to pay advocates’ fees within a specified, reasonable time, be regulated by the LPC via the Code of Conduct applicable to attorneys. The absence of this regulation is also anti-transformative because it disproportionately affects new, impecunious entrants to the advocates’ profession, and sometimes leads to their early departure from the profession.

The LPC was only able to sustain that position because attorneys far outnumber advocates on the LPC, and they were able to act out of self-interest, to the detriment of the transformation of the advocates’ profession. To the best of my knowledge, NADEL has never raised its voice in opposition to this anti-transformative stance taken by the majority on the LPC.

In my piece for Advocate, I bemoaned declining standards of professional conduct on the part of advocates. I am not alone in holding that perception. I did not, and do not ascribe that to the advent of the LPA.

The fact that I would like to see advocates held to a higher standard is entirely consistent with one of the core objectives of the LPC and LPA. I sit on the LPC’s Disciplinary Oversight Committee, one of the busiest LPC committees that there is. I pursue the objective of high professional standards from within. The suggestion that I seek to undermine the LPC is the polar opposite of what my record of service to the profession shows.

I remain of the view that this objective would be better served by attorneys and advocates being subject to separate disciplinary oversight. (Much of my time in the DOC is spent considering the conduct of attorneys. I have far less insight than my colleagues who are attorneys, into the nature and gravity of these disciplinary complaints. I have no doubt that the converse applies too.)

NADEL says that I am opposed to the “seamless fusion of the profession”, meaning the attorneys’ and advocates’ professions. In that they are correct. However, the LPA did not bring about fusion, nor is fusion amongst the listed objectives of the LPC. To the contrary, the LPA expressly recognises the distinction, as I have already remarked.

NADEL attaches a myriad of pejorative labels to my piece and the intention with which it was written.

I respectfully disagree and stand by every word.

Craig Watt-Pringle SC