ADIEU

Due to circumstances which are well documented in General Council of the Bar (GCB) circulars, my two-year stint as chair of the GCB has turned into four. I have enjoyed my time as chair but look forward to different challenges. I currently sit on the Legal Practice Council (LPC) which has a far wider remit than the GCB, and vast resources by comparison.

I am now more than ever persuaded that the Legal Practice Act sold both attorneys and advocates short by lumping us together in the LPC when in many respects our needs are quite different. This structure of governance affects advocates more adversely than it does attorneys, as attorneys are numerically superior both in the LPC and in the legal profession.

The main areas in which advocates' needs are unique are pupillage and training, discipline and recovery of fees. Let me deal with each of these issues in turn.

As a member of the LPC's Disciplinary Oversight Committee, I am able to say that the complaints against attorneys almost invariably relate to trust moneys, failure to report progress in matters to clients and failure to attend to matters on behalf of clients.

Most of the serious infractions leading to applications to strike the practitioner off relate to trust funds. The complaints against advocates, by contrast, typically relate to probity in their dealings with one another and with the court, and misconduct in court.

Rules governing the relationship between attorneys and their clients and concerning the manner in which they are required to conduct their practices and account for trust funds have no bearing on advocates. The only area of discipline which is common to attorneys and advocates relate to their duties to the court when appearing for a client. Those rules seldom feature in complaints against attorneys, but frequently arise in complaints against advocates.

The GCB's curriculum for pupils has for decades covered motion court, civil trials and evidence, criminal procedure, ethics and legal writing. Advocacy skills training has been part of pupillage since the late 1990s but is not assessed as part of the qualification criteria in the national Bar Examination.

For attorneys, appearance in court is but one facet of the qualification criteria but attorneys are not courtroom specialists like advocates. They practice in partnerships, hold trust funds, brief counsel, draft contracts and wills, wind up deceased estates and devise mergers, acquisitions and tax avoidance schemes.

Their practices bear little resemblance to ours as advocates, yet increasingly the LPC is moving towards a uniform curriculum and uniform assessment for pupils and candidate attorneys.

This is irrational and adversely affects the advocates' profession. As it is geared to the need of attorneys, it does not prejudice their branch of the profession at all. This move is also part of an ill-disguised attempt to achieve fusion, an objective which was pursued in the decade or so that preceded the passing of the LPC.

Advocacy training is a "must" for aspiring advocates. We are advocates principally because we choose to be courtroom specialists, able to lead and cross examine witnesses, and argue cogently. Advocacy training provides pupils and junior practitioners with the basic skills to perform well in court.

Specialist skills, such as the leading and cross examination of expert witnesses, and appeal court advocacy, are taught to junior practitioners who already have some experience as advocates.

While there may be a small minority of attorneys who choose to appear regularly in court and could benefit from these skills, this is not the position generally.

A thorough knowledge of how the motion court works, and what the requirements are for specific applications brought on notice of motion (liquidations, urgent interdicts, Anton Piller applications, for example) is essential to any junior advocate starting out at the Bar. So too the fundamental rules relating to civil trials, and the rules and laws relevant to criminal procedure.

The law of evidence traverses both the criminal and civil trial arenas. The ethics governing advocates are of paramount importance. Traditionally, the word of an advocate was considered reliable unless proven otherwise. So, for example, advocates do not depose to affidavits confirming facts given, or confirmed from the bar.

Advocates can place reliance on assertions made between colleagues. An advocate's probity in this sense is as central to an advocate' s reputation at the Bar, as their knowledge of the law and forensic ability. Unquestioned probity is an essential requirement for recommendation for the conferment of silk.

I do not for a moment suggest that attorneys are held to a lower standard. I do however emphasise that probity in an advocate's dealings with colleagues at the Bar and with the court is central to our ethical rules and standards, whereas attorneys have a different set of rules that predominate in the assessment of their probity. Self-reporting, and reporting by members of the Bar of other members has always been far more evident than in the attorneys' profession, and the LPC's Code does not impose any such obligation on practitioners, be they attorneys or advocates.

Thus the lumping together of attorneys and advocates in the governance structures of the LPC is not to the benefit of the advocates' profession. If you believe in the benefits of a referral bar, as advocates and the vast majority of litigation attorneys do - why else would they brief counsel in preference to appearing in court themselves - anything that adversely affects standards in the advocates profession is to the detriment of the profession as a whole, and to the provision of legal services to the public.

The political forces that work against recognising the advocates' profession as an independent branch which should be governed accordingly are probably too strong for us to overcome. That does not mean that we must resign ourselves to fusion, or to the effective dilution of our skills training as envisaged in the LPC's pupillage curriculum and assessment.

Rather, we need to bolster and fully utilise the substantial resources that we at the Bar have, to transfer skills to new entrants and junior practitioners, and to set and maintain our own fine traditions of collegiality and ethical conduct.

The good work that the GCB and constituent bars have been able to achieve over the years has depended entirely on the willingness of its members to get involved in lecturing, mentoring, training, serving on bar councils and bar committees and on the GCB Exco. I cannot emphasise enough that it is your duty to do so, and in your best interests too.

There is little doubt that our ethical standards are slipping.