CCASA, to the uninformed, was formed in 1982 to represent the interests of Corporate Counsel in South Africa, largely due to the fact that the in-house legal profession was not recognised nor regulated by the South African Law Society.
This state of affairs remained unchanged despite repeated appeals to the Law Society of South Africa over the past 35 years.
In response to this unsuitable state of affairs, CCASA, with reference to the “SAQA Policy and Criteria for Recognising a Professional Body and Registering a Professional Designation for the Purposes of the National Qualifications Framework Act, Act 67 of 2008”, (NQFA), made formal application to the SAQA in 2014 to be formally recognised as the professional body who represents the In-House Profession in South Africa.
CCASA has just received notice that its application has been successful.
This accreditation has given rise to a number of notable consequences:
About the Act
In simple terms, the Legal Practices Act, 28 of 2014 is an all-encompassing Act, which will regulate the entire legal profession, including Legal Practitioners, as defined.
The Act was signed into law on 22 September 2014. Only certain of the provisions of the Act have come into operation. The balance of the provisions will come into operation in a phased approach during 2018.
The Act’s stated purpose is to create a single regulatory body, to ensure that legal services are accessible to the public and entry into the profession is unrestricted in order to bring the legal profession in line with the Constitution’s transformative ideal.
Once in operation, the Act will repeal the Attorneys Act 53 of 1979 and the Admission of Advocates Act 74 of 1964.
In addition, it is envisaged that the current Provincial Law Societies will be disbanded.
Code of Conduct
A draft Code of Conduct for Legal Practitioners, Candidate Legal Practitioners and Juristic Entities was published for comment under Government Gazette Notice dated 3 February 2017, which Code will come into effect once the 2014 Legal Practice Act is fully operational.
Developed by the National Forum on the Legal Profession, it will apply to attorneys, advocates, candidate legal practitioners, defined juristic entities and, where the context requires, legal practitioners not in private practice.
A preamble to the Code notes that it is expected to contribute towards achieving a broad range of objectives relating to: an accountable, efficient, independent legal profession; transformation, transparency and restructuring; and promoting the public interest.
Issues addressed beyond those of the general conduct of an attorney include: publicity; specialisation and expertise; fee sharing; office sharing; commission payments; declaring partners; naming a practice; replying to communications; deeds of alienation; and misconduct. An entire section devoted to court appearances among other things deals with: interviewing witnesses in specific circumstances; disclosures and non-disclosures; conflicts of interest; and public comments.
Regarding the conduct of advocates, the code addresses issues including: work undertaken by counsel; counsel as prosecutor for the state; acting judicial appointments; commitment, independence, integrity and etiquette; accepting briefs, and related ‘cab rank’ and referral rules; pro bono work; advertising; continuing legal education; applying for silk; ‘the norm of a reasonable fee’; and various fee-related matters.
A separate section is dedicated to the conduct of Corporate Counsel.
Which leads to the question – does the Act apply to Corporate Counsel?
Does the Act apply to Corporate Counsel?
Last year we formally met with the National Forum on the Legal Profession, an interim body which has been established under the Act, to draft, develop and put in place the required structures, procedures, regulations and codes which are required to give effect to the purpose and objectives of the Act.
Following this meeting we were given the following advices:
i) The Act will only apply to Legal Practitioners as defined. i.e. persons who:
The register of legal practitioners will categorize the person, i.e. it will set out if the person is a non-practicing attorney, conveyancer or advocate or a practicing attorney, conveyancer or advocate.
ii) The Act will NOT apply to persons who have not been admitted to the High Court or who have not been enrolled with the Law Society.
In other words the Act will not apply to persons who have not:
Following the above, where a person has been admitted and enrolled, even if on the non-practicing role, the Act will apply, where indicated, to such person.
Following this, such person may, once the Act comes into operation, be subjected to certain provisions of the Act, including certain rules, disciplinary procedures and the requirement to pay a fee.
On perusal of the Legal Practices Act, 2014 we can confirm that the above position accords with the provisions of the Act.
The National Forum at said meeting advised that they were in the process of developing a Code of Practice which would apply to those professionals who make up the legal profession and who were to be regulated under the Legal Practices Act, namely attorneys, advocates and legal practitioners.
In addition, at said meeting the National Forum sought permission from CCASA to adopt and make use of the CCASA Code of Ethics, which would, if adopted apply to the Legal Practitioner under the Act.
This permission was granted.
About the Code
The Code of Conduct was drafted and approved by the National Forum on the Legal Profession, a transitional body established in terms of Chapter 10 of the Act.
The National Forum consists of representatives of various organisations representing attorneys, advocates as well as persons nominated by teachers of law, Legal Aid South Africa, the Attorneys Fidelity Fund and by the Minister of Justice and Correctional Services.
Various stakeholders were consulted in the drafting process, including CCASA.
The National Forum is confident that the Code of Conduct will contribute towards achieving the objectives of the Act, namely the transformation and restructuring of the legal profession.
The Code of Conduct should assist in the regulation of all legal practitioners, candidate legal practitioners and juristic entities in pursuit of the goals of an accountable, efficient and independent legal profession, the protection and promotion of the public interests, the provision of a fair, effective, efficient and transparent procedure for the resolution of complaints against legal practitioners, candidate legal practitioners and juristic entities, the creation of a framework for development and maintenance of appropriate professional and ethical norms and standards for the rendering of legal services by legal practitioners, candidate legal practitioners and juristic entities.
The code is made up of a number of parts.
The provisions of Part II of the code shall apply to, and be observed by, all legal practitioners, candidate legal practitioners and juristic entities including, where the context requires, legal practitioners who are not in private practice.
Of particular importance is part VII of the code – headed “Conduct of legal practitioners not in private practice”.
The preamble or staring paragraph to this Part VII states as follows:
“Unless otherwise stated or unless the context indicates otherwise, Part VII of this code applies only to legal practitioners who are not in private practice and who are employed by an employer for the purpose of providing that employer with a dedicated source of legal services and advice in exchange for a salary or remuneration (all of whom, for purposes of Part VII, and unless the context otherwise requires, being referred to as “corporate counsel”). If Part VII of this code conflicts with the provisions of Part II then the provisions of Part II will prevail and take precedence over the provisions of Part VII.”
On reading the Code, we can confirm that the Code is a duplicate or replica of the CCASA Code of Ethics, which CCASA introduced during 2016.