There are many aspects of the legal profession that the members of the public struggle to understand well like the above captioned heading. In this simple and non-legalistic article, I intend to shed some light on what exactly the Advocates and the Attorneys do in their legal practice career.
The article should be viewed as community outreach by my office to help the members of the public to understand the Lawyers’ work better.
Firstly, one cannot emphasise enough how crucial it is for a law graduate to attend or go through ‘the post university structured training’ for him/her to be competent in the legal practice career. Ideally, ‘the post university structured training’, which is to a large extent more practical than theoretical, is coordinated by the statutory regulatory bodies working in collaboration with the legal practitioners’ voluntary associations. In the South African jurisdiction, the most spoken about voluntary associations that spearhead this practical-oriented training are Advocates’ Bar Associations and the Law Society of South Africa, working closely with the Legal Practice Council (“the LPC”).
Before getting deep into the discussion on the Attorneys and the Advocates, during the period 2007-2012, amongst the tasks that consumed my valuable time, was holding motivational speaking seminars and tailor-made training sessions to government departments and the private sector. I do not have any formal education in this field. I can humbly state that I was born with the ability to teach people about the things that I understand well. In this other career of mine, which is presently put on the shelves until further notice, I learnt about personality traits. This is psychology field of study. The four types of personality traits are melancholy and phlegmatic (introverts), sanguine and choleric (extroverts). I must say that practical experience of more than 10 years in the legal practice career has taught me that one’s personality trait can have a huge impact on how good he/she could be in either practicing as the Attorney or the Advocate. However, I choose not to elaborate further in this subject for now. Perhaps I should reserve this part of discussion for paid consultations by the aspiring future learned friends!
People should understand that between the Attorney and the Advocate, no one is superior to another. They work as a team in equal footing. They have different strengths and different practical skills that are equally important to ensure proper and/or efficient handling of the client’s case from the beginning until the end. I will discuss their differences in turn and how they fit in the bigger scheme of things.
Attorneys
The Legal Practice Act 28 of 2014 (“the Act”) had introduced community service in terms of section 29 and the practical vocational training. The practical vocational training requirements were published in the Regulations in terms of section 109(1)(a) of the Act and gazetted on 31 August 2018. This article will not get into the details of the vocational practical training requirements. The potential candidates who intend to be admitted and enrolled as Legal Practitioners under the categories of Advocate and Attorney, are encouraged to read further on their own to know exactly what would be expected of them to be eligible for admission.
In summary, a law graduate who aspires to become the Attorney signs a Private Contract Vocational Training (PCVT) with an experienced practicing Attorney (“Principal”), Legal Aid South Africa or any other institution that has been approved by the LPC for the purposes of training and supervising the Candidate Attorneys (“CAs”). The CA can be eligible for admission as the Attorney after completing service under the Principal for a period of either 18 months or 24 months.
The Attorneys’ work: Traditionally, when the member of public seeks the services of the lawyer, the first point of contact is to consult with the Attorney and open the file at the Attorney’s office. However, we now have Advocates who practice with Trust Account and also have Fidelity Fund Certificate just like the Attorneys. Trust Account Advocates can also consult directly with the lay clients. Trust Account Advocates topic will be dealt with later in a separate article.
When do the Attorney and the Advocate normally work together in a case?
In a less complex high Court case, the Attorney briefs the Advocate to go to court and argue the client’s case. Some Attorneys who have a right of appearance at the high Court, prefer not to brief the Advocates and go to court to argue the case personally. In practice, the Attorney would have solely performed preliminary tasks like: drafting all the required court papers, service/delivery of the court papers to the opponent or opponent’s Attorney, pagination of court papers and producing the bundles, gathering relevant evidence (documentary and real), applying for a hearing date and logistical prior arrangements to make sure that the witnesses show up in court to testify etc.
Thereafter, the Advocate’s work, who would have received the file (brief) on time from the Attorney before the hearing date, would diligently prepare to argue the client’s case efficiently in court. The nature of preparatory work that the Advocate does for a trial (where witnesses testify physically in court) will differ from the one required when she/he deals with a case that is 100% on affidavits (application). Advocate’s preparatory work could entail: research on the applicable law, drafting advice on evidence document for Attorney’s attention, listing relevant authoritative decided cases, journals, books, plan examination and cross-examination questions, tactic to adopt when presenting the client’s case in court etc.
In a more complex case at the high court, appeal courts and constitutional court the Attorney and Advocate normally start to work together from the get go! Making mistakes on formulating a complex client’s case when drafting the court’s founding papers can be very costly in many ways in the long run. In some instances, a specialist Advocate could be briefed/instructed to give a legal opinion at a fee to advice the client on the prospects of success if she/he decides to institute a legal action.
Advocates
Prior to coming into operation of the Act, anyone who is in possession of Batchelor of Laws (“LLB”) degree would automatically be eligible to apply for admission to be Advocate of the high Court. Presently, an LLB graduate is required to undergo a compulsory practical vocational training. This is where the LPC, as a statutory regulating body, and the various voluntary Advocates’ Bar Associations work hand in hand for this practical vocational training to yield the desired positive results. The pupil Advocate is required to undergo the vocational practical training and pupillage for a period of 12 months. Thereafter she/he will be eligible to apply for admission as at the Advocate of the high Court.
The new regime had managed to curb a situation where we used to have many untrained and ill-equipped Advocates’ offices that would mushroom everywhere to the detriment of unsuspecting members of the public.
In the past, in so far as Advocates’ professions is concerned, we used to two categories called ‘the side Bar’ and ‘the Bar’. The side Bar was constituted by the Advocates who were practicing law without having undergone a rigorous pupillage training; whereas The Bar was constituted by those Advocates who underwent the rigorous pupillage training. I also practiced in the side Bar for a few years before I enrolled for pupillage training under the Johannesburg Bar in 2014. This differentiation of Advocates has left unintended bitter consequences in the legal profession especially from transformation point of view. That is the topic for another day. In short, these 2 categories of Advocates still exist side by side and practice law.
About Advocates pupillage training: Before describing it, it suffices to discuss a word ‘advocacy’. It can be defined as any action that speaks in favour of, recommends, argues for a cause or pleads on behalf of others. That is why the pupillage training for advocates has always been designed in such a way that Advocates are primarily trained how to present clients’ cases in courts and in other adjudicatory forums. Trial advocacy workshops and moot courts sessions are intended to achieve this objective.
Examinations by both pupil advocates and candidate attorneys
They both sit for competency-based examinations like they did at the Universities. The most demanding examination under pupillage is Legal Writing that lasts for 8 hours! If one fails, there are oral examinations that a candidate has to qualify for i.e above 40%, but below 50%. Others fail on the first sittings and others fail the oral examinations. Trust me on this one, it is not a good experience to witness old people who are already working fail exams!
Value chain in the life span of a case
The reader would have noted that once the case commences, it germinates step by step until it gets argued in court. The steps have been indirectly explained in describing various tasks that both the Attorneys and the Advocates perform in the case. The legal practice profession has been designed in such a way that each type of a legal practitioner, Attorney and Advocate, plays her/his part, based on the different types of skills acquired in practice. They are equally important. No one is more important than another! In closing, it is a sad reality that after having qualified as Advocates and Attorneys, the level of competence varies due to various factors. Others do not apply themselves hard enough. Some of the Legal Practitioners engage in unprofessional and unethical activities to the detriment of their clients. That is why the LPC has been established to protect innocent members of the public against unscrupulous Legal Practitioners, when a need arises.
