Advocates are lawyers with rights of appearance in all courts in South Africa, including in any tribunal where legal representation is permitted.
South Africa follows the English model of a dual Bar, consisting of attorneys (the Side Bar) and advocates. What is the difference between an attorney and an advocate? The quotes from the cases below capture these differences neatly, and also provide a rationale for the continued use of the dual (or divided) bar system in South Africa.
IN RE ROME 1991 (3) SA 291 (A) at 305I-306F:
“Here we have what has been described as ‘the divided Bar’ (see Joubert (ed) Law of South Africa vol 14 para 246). It is a legacy from Holland, and also from England. Legal practitioners thus fall into one or other of the two groups, the advocates and the attorneys. Each group has its professional bodies, which determine the rules by which their members must conduct their practices, take action to ensure that members adhere to the rules, scrutinise and, where appropriate, take action in regard to applications for membership of the profession and generally see to the interests of members and the profession. The advocate is, broadly speaking, the specialist in forensic skills and in giving expert advice on legal matters, whereas the attorney has more general skills and is often, in addition, qualified in conveyancing and notarial practice. The attorney has direct links (often of a permanent or long-standing nature) with the lay client seeking legal assistance or advice and, where necessary or expedient, the attorney briefs an advocate on behalf of his client. The advocate has no direct links or long-standing relationship with the lay client: he only acts for the client on brief in a particular matter and is normally precluded by Bar rules from accepting professional work direct from the client. The attorney is responsible to the advocate for the payment of professional fees due to the latter by the client and for the recovery of these and his own fees and disbursements from the client: the advocate has no direct financial dealings with the client. An attorney is responsible for the keeping of trust funds; an advocate is not. Duly instructed by an attorney, the advocate has the exclusive right of audience in the different Divisions of the Supreme Court and concurrent rights of audience, with attorneys, before lower courts and other tribunals. Attorneys may, and often do, practise in partnership with fellow practitioners; whereas partnerships between advocates at the Bar are not permitted. An attorney’s practice is a disposable asset: an advocate’s practice is not.
In broad outline these are the main features of and points of distinction between the two practising branches of the profession, as they are today and have been for many years in this country.” (Emphasis added)
LAWSA – Advocates
The word “advocate” is derived from the Latin advocatus, and means the person called to the side of another to render him assistance. Gradually the meaning became specialised and the term advocatus came to be applied to the person who undertook to assist litigants in court by speaking on their behalf.
Various writers have attempted definitions of the profession. According to Van Leeuwen, advocates are those who verbally, in writing or otherwise conduct the cases of others with their sound advice and according to law.
The advocates in South Africa, as the barristers in Great Britain, form a separate branch of the profession of lawyers. They are primarily experts in advocacy, which is the art of presenting the client’s case in court. There is, however, a good deal of further specialisation within their ranks with certain advocates specialising in, for example, taxation, the law of contract, company law, expropriation, criminal law, and so on. A considerable part of the work of these specialists consists in advising on matters that do not result in litigation.
Ideally there should be a duly qualified trial lawyer or advocate in every trial.
In a well qualified advocate legal knowledge, forensic skills, professional ethics and good court-room etiquette are combined in the furtherance of the administration of justice.
Once a client has placed the case in the hands of counsel, the latter has complete control of it.
Any party may appear at a trial in person but may be represented in the higher courts only by a person duly enrolled as an advocate of that court or by certain attorneys. The statutory provision that the court may permit an attorney to discharge the functions of an advocate in any proceedings pending before it if there is no advocate available or willing to act has become redundant. A company may not be represented by its shareholder or director.8
Generally speaking, advocates can be described as specialists in litigation whereas attorneys specialise in other fields. An advocate cannot appear in civil matters unless he or she is instructed by an attorney or is requested by the court to appear as amicus curiae or is permitted to appear pro amico. Even in the latter case the bar councils require a brief from an attorney. In criminal matters in the High Courts the advocate may accept instructions directly from the client in the case of dock briefs or he or she may be appointed pro deo by the court or be instructed by the Director of Public Prosecutions, for example, in criminal appeals or as a prosecutor on circuit. The normal position is, however, that he or she is also instructed in criminal cases by an attorney or the Legal Aid Board. In short, the essential distinction between advocates and attorneys is that the profession of the former is a referral profession and that of the latter not. Advocates who disregard this are subject to disbarment. The Magistrates’ Court Rules concerning the signing of pleadings were not intended to abolish the longstanding division between the professions. Dual practice as both advocate and attorney is not permitted.
Advocates and attorneys are as much a part of the courts in which they practise as the judges who preside over them. Their duty is not only to their clients but also to the court. Although they are not court employees and practise independently in private practice, they are often loosely referred to as officers of the court, to emphasise their duty to the administration of justice and the court’s disciplinary relationship with its practitioners.Joubert Ed et al Law Of South Africa – Legal Practitioners (Volume 14(2) – Second Edition) – Para 112 – Advocates
DE FREITAS AND ANOTHER v SOCIETY OF ADVOCATES OF NATAL AND ANOTHER 2001 (3) SA 750 (SCA)
[8] The referral practice that we know in this country is not that advocates may not under any circumstances accept instructions directly from clients. Various exceptions are allowed, one of which is that counsel may be instructed directly by the Legal Aid Board. In other matters the rules of the various Bars do not correspond in all respects. Advocates in the Western Cape may, for example, take direct instructions for opinions, from a restricted list of clients, which members of other Bars may not do.
[9] The practice clearly serves the best interests of the professions and the public in litigious as well as non-litigious matters. … In litigious matters the benefits to the client arising from this relationship are manifest. Although some attorneys have precisely the same academic qualifications as advocates, their practical schooling is markedly different since it is aimed at the acquisition of special skills to do different types of work. This in turn is so because advocates and attorneys occupy themselves with different kinds of litigious work. It is the advocate who generally prepares pleadings and presents clients’ cases to the courts, whereas it is the attorney who takes care of matters such as the investigation of the facts, the issuing and service of process, the discovery and inspection of documents, the procuring of evidence and the attendance of witnesses, the execution of judgments, and the like. In this way each of them applies his own skills for the benefit of the client. It is quite clear that, where an advocate is not briefed by an attorney, he will of necessity have to do some of the work which his attorney would otherwise have done. That part of the work cannot, as Mr Van der Spuy suggested, simply be left to the client. After all what does a lay client know about these matters? There are only two possibilities if an attorney is not employed: counsel will either have to do the work himself or the client, at the very least, will require counsel’s guidance in matters of which the latter himself usually knows very little.
[10] It is not without reason that Corbett CJ mentioned the absence of direct and possibly long-standing links between an advocate and his client. It is of the utmost importance that there should be some distance between them in order to ensure and preserve the advocate’s independence. In this regard (and also to emphasise what I have already said) I can do no better than to quote from a speech by Lord Benson who chaired the Royal Commission on Legal Services in the United Kingdom between 1976 and 1979. (The speech was delivered in Cape Town during 1988 and has been reported in (1988) 105 SALJ at 421 – 33.) Speaking on the subject of the possible fusion of the professions of advocates and attorneys he said at 422 – 9:
‘We [the Commission] based our conclusion [that there should not be a fusion] on three separate principles. First, any rule made by or privilege granted to a profession must be designed not for the private benefit of the members of the profession but to protect the interest of, or to enhance the level of service to, the public. Second, in every walk of life, particularly in the professions, there is a growing need to specialise in each of the many different types of work and activity. This is a duty which every profession owes to the public it serves. Third, one of the privileges and duties conferred upon a professional man is the ability to express an independent and impartial opinion in respect of his client’s affairs . . . .
The evidence put before us was overwhelmingly opposed to fusion. The Bar and the majority of the solicitors opposed it. Nearly all the witnesses, including the Judges, said that it would diminish the specialist services provided by the Bar. In particular it would lead to a serious fall in the quality of advocacy and, because of the nature of court proceedings, in the quality of judicial decisions. This would damage not only the interests of litigants but the administration of justice itself. . . .
Let us look at the practical issues. A mass of work is brought into solicitors’ offices by clients every day of the week. Many of the matters arising can be and are dealt with by the skill of the solicitor himself, but no solicitor is competent to deal with every matter brought before him. For example, large sums of money and property may be involved which require the advice of specialists in property and in taxation. Complex legal issues emerge which demand experience in the particular branch of the law. Advocacy of a high order may be needed to avoid a custodial sentence which imperils a client’s freedom. The solicitor may be too close as a friend or advisor of long standing or be so involved with the detail as to prevent him from taking a detached view. In these many situations the solicitor and the client are not content unless they can obtain the independent services of a specialist with the necessary skills at his command. It would be foolish, if not negligent, to do otherwise.
. . .
The Commission was satisfied that the independent view which is brought to bear by counsel often has the effect of defining and limiting the issues or bringing about a settlement, which represents important savings in time and cost.’
These remarks reveal the symbiotic relationship between the two professions and highlight the inherent dangers of an attorney acting without an advocate in deserving cases or of an advocate acting without an attorney and trying to do the latter’s work.
[11] There is, moreover, a more obvious reason why an advocate should not perform the functions of an attorney. It is that, unlike attorneys, advocates are not required to keep trust accounts. In terms of the Attorneys Act 53 of 1979 every attorney shall open and keep a separate trust banking account and deposit therein money held or received by him on account of any person. No amount standing to the credit of such an account shall be regarded as forming part of the assets of the practitioner or may be attached on behalf of any of his creditors; and, equally importantly, any shortfall in the account may, in proper circumstances, be recovered from the Fidelity Fund. A client who does not employ an attorney and instructs an advocate directly does not have the same protection or any protection at all. In the present case, for example, Mr De Freitas on one occasion acted without an attorney on behalf of a client who was in the process of a divorce. The parties were married in community of property and the assets had to be divided. With this in mind Mr De Freitas wrote to his client’s employer requesting it to pay half of a pension payable to the client into his (De Freitas’s) ‘business account’. Had the money been paid the client would have had no protection whatsoever in the event of his advocate’s insolvency or against the attachment of the money in the account by the latter’s creditors. Such a state of affairs is plainly not in the public interest.” (Emphasis added)
RÖSEMANN v GENERAL COUNCIL OF THE BAR OF SOUTH
AFRICA 2004 (1) SA 568 (SCA)
[25] The decision as to what constitutes the proper work of an advocate is, as pointed out by this Court in Beyers v Pretoria Balieraad (supra at 605D), largely a question of impression and experience. Speaking for myself, in more than 20 years of practice at the Bar, including more years than I care to remember in the environment of the magistrate’s courts, I never found myself in doubt as to where the boundaries should be drawn. The other members of this Court all share meaningful experience of a greater or lesser extent in the practice of an advocate. Reasons of public policy and practicality supplement experience and enable one to identify where the dividing lines naturally fall.
[26] A convenient starting point is the reality of two distinct professions engaged in different fields of legal expertise. People choose to become attorneys or advocates not because they are forced to select one profession or the other, but because of the different challenges which they offer: one, the attorney, mainly office-based, people-orientated, usually in partnership with other persons of like I inclinations and ambitions, where administrative skills are often important, the other, the advocate, court-based, requiring forensic skills, at arm’s length from the public, individualistic, concentrating on referred problems and usually little concerned with administration.
[27] The training of each profession is different and results in different skills. That of an attorney demands that a candidate serves lengthy articles and is exposed to a wide range of activities from accounting through drawing commercial documents to corporate takeovers. Insofar as litigation in the High Courts is concerned, the primary emphasis is not on forensic skills, but rather on case management. A candidate attorney is required to undergo a number of practical courses designed for the demands of the profession and which bear hardly at all on the equivalent demands of the profession of the advocate. The upbringing of an advocate, by contrast, is essentially directed to court skills and the paper- work that necessarily precedes the exercise of such skills. Even the extensive ethics training bears little relevance to the practice of any but the profession of advocacy. The result of this divergence is (or should be) the production of two classes of professionals, each skilled in its chosen field, but not substantially equipped to operate in the sphere of the other profession. It hardly needs stressing that attorneys usually provide the infrastructure appropriate to the nature of their practices. An advocate, by contrast, does not keep office hours or provide a secretary in attendance on the public and is not equipped to deal with debtors who arrive to pay or negotiate.
[28] At this point the referral rule and its implications (as to which see De Freitas and Another v Society of Advocates of Natal and Another 2001 (3) SA 750 (SCA) at 756C – 760I and 764C – 765A and Commissioner, Competition Commission v General Council of the Bar of South Africa and Others 2002 (6) SA 606 (SCA) at 620C) become significant. An advocate in general takes work only through the instructions of an attorney. The rule is not a pointless formality or an obstacle to efficient professional practice, nor is it a protective trade practice designed to benefit the advocacy. The rule requires that an attorney initiates the contact between an advocate and his client, negotiates about and receives fees from the client (on his own behalf and that of the advocate), instructs the advocate specifically in relation to each matter affecting the client’s interest (other than the way in which the advocate is to carry out his professional duties), oversees each step advised or taken by the advocate, keeps the client informed, is present as far as reasonably possible during interaction between the client and the advocate, may advise the client to take or not take counsel’s advice, administers legal proceedings and controls and directs settlement negotiations in communication with his client. An advocate, by contrast, generally does not take instructions directly from his client, does not report directly or account to the client, does not handle the money (or cheques) of his client or of the opposite party, acts only in terms of instructions given to him by the attorney in relation to matters which fall within the accepted skills and practices of his profession and, therefore, does not sign, serve or file documents, notices or pleadings on behalf of his client or receive such from the opposing party or his legal representative unless there is a Rule of Court or established rule of practice to that effect (which is the case with certain High Court pleadings but finds no equivalent in magistrate’s court practice). The advocate does not communicate directly with any other person, save opposing legal representatives, on his client’s behalf (unless briefed to make representations), does not perform those professional or administrative functions which are carried out by an attorney in or from his office, does not engage in negotiating liability for or the amount of security for costs or contributions towards costs or terms of settlement except with his opposing legal representative and then only subject to the approval of his instructing attorney. (This catalogue does not purport to be all-embracing. It is intended only to illustrate the sharpness of the divide and to point the answer to other debates on the same subject.)” (Emphasis added)
SOCIETY OF ADVOCATES OF NATAL v DE FREITAS AND ANOTHER (NATAL LAW SOCIETY INTERVENING) 1997 (4) SA 1134 (N)
“It has always been the case that the formal steps which have to be taken in litigation fall to the lot of the attorney – the delivery of pleadings and notices, the observation of time limits, the acceptance of service of process and other documents, the keeping of records, consultations, attendances, conferences, inspections, drafting of affidavits, discovery, instructions to counsel, correspondence, investigations and marshalling of evidence, tracing and interviewing of witnesses, obtaining the attendance of witnesses – etc, etc.”
COMMISSIONER, COMPETITION COMMISSION v GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA AND OTHERS 2002 (6) SA 606 (SCA)
[19] In the present case Roos J exempted the referral rule and two others from the application of the Act. I have no doubt that his decision relating to the referral rule was correct. The judgment in De Freitas was confirmed on appeal and the effect of the judgment of this Court is that our law recognises a divided profession coupled with a referral system. This is the law of the land and the Commission was not entitled to ‘bend’ it by refusing exemption. After all, the power to develop the common law vests in the Courts – not in the Commission – and any attempt by the latter to do so would be ultra vires. It was not contended for the Commission that the common law in this regard should be developed by this Court as envisaged in s 39(2) of the Constitution and no casefor development of that kind was made out on the papers. The law must be applied as it stands.” (Emphasis added)
Richard Du Cann, in his classic book Art of The Advocate, describes the differences between advocates (barristers) and attorneys as follows:
“The division between the two professions was well by the end of the sixteenth century and by the end of the seventeenth was quite firm. By the time the Law Society, the governing body of solicitors, was set up in 1870 and the Bar Council, which is not the governing body of barristers but which is the nearest equivalent, in 1895, the division had become hallowed by custom and regarded as one of the strengths of the legal system of the country. A minority argue that much of this strength is illusory in view of the right of audience of solicitors before so many tribunals. They ask: what can justify a system which decrees that a solicitor may appear before a High Court Judge in private but not in public, or present a claim in court if the sum involved is less than £20,000 but not if it is more?
All the answers to this question tend to ignore the basic difference in the roles of solicitor and barrister. The solicitor is at street level. As the general practitioner of the law his manner to the client is of greater importance than his method. For important or difficult matters there will inevitably be a class of specialists — the barrister who, dealing in one aspect of the law alone, is master of all its branches and intricacies in a way that a solicitor who has to deal in every aspect could not hope to be. Although some solicitors are very competent advocates, as some barristers are very incompetent advocates, generally speaking the barrister is also the specialist in advocacy. While the solicitor spends much of his time trying to keep his clients out of court, there inevitably comes a time when he needs the services of what the Americans call ‘the trial lawyer’. In England, this is the barrister, who not only presents the case in court but also reads all the papers beforehand with an eye to the eventual arrival of the case before a court with whose customs and peculiarities he is particularly familiar.
This does not justify the system, for a class of specialists could spring up just as well from the ranks of solicitors. The real justification lies in the intimacy which exists between the barrister and the courts before whom he appears, and the gulf between the barrister and his lay client. The solicitor is so close to his client, in a small community he is often in daily personal contact with him, that he cannot give dispassionate and unprejudiced advice either to the client or to the court before whom he appears. The barrister has no such personal ties with the client at all. He only meets him through the medium of the solicitor, and he is consequently in a much better position to advise him and to advise the court in front of which the client has to appear.”Richard Du Cann The Art of the Advocate, Penguin Books, Revised Edition, pp32-33.
From these passages, the following traits of an advocate can be distilled:
- Independence
- Specialist skills with limited application and restricted areas of work
- Prohibited from conducting attorneys’ work
- Focus on litigation and related forensic legal work, such as pleading, providing legal opinions and advice, etc.
To these traits can be added:
- Advocates enjoy rights of appearance before courts.
- These rights come with onerous obligations – advocates are officers of the court, tasked with assisting courts in upholding the administration of justice, and are obliged to be scrupulously honest with the court at all times.
- Where a conflict arises between counsel’s duty to the client and duties to the court, the latter duty overrides the former.
Legal ethics deals with an advocate’s professional ethical duties, which we bear towards various stakeholders: The administration of justice, the public, our clients, attorneys and colleagues. Balancing these varied and often conflicting duties is an onerous task. This balancing act is the main focus of the ethics course.
The UK Bar Standards Board summarises the core duties of an advocate as follows:
The core duties of an advocate
1. You must observe your duty to the court in the administration of justice.
2. You must act in the best interests of each client.
3. You must act with honesty and integrity.
4. You must maintain your independence.
5. You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.
6. You must keep the affairs of each client confidential.
7. You must provide a competent standard of work and service to each client.
8. You must not discriminate unlawfully against any person.
9. You must be open and co-operative with your regulators.
10. You must take reasonable steps to manage your practice, or carry out your role within your practice, competently and in such a way as to achieve compliance with your legal and regulatory obligations.
This is a useful list from which to start considering the detailed ethical rules applicable to advocates in South Africa. These rules have numerous (often overlapping) sources: Common law duties, confirmed and developed in jurisprudence; Bar rules (mostly codified in the Uniform Rules of Professional Conduct); and more recently, the Legal Practice Act and its Code of Conduct, which is effective from 1 November 2018.
Before delving into the details of the LPA, Bar Rules etc, it is worthwhile studying the extract from the English Court of Appeal’s judgment in Lumsdon v Legal Services Board (Lumsdon v Legal Services Board and Others, [2013] EWHC 28 (Admin), which summarises almost all of the key duties of an advocate. lumsden-others-v-lsb-others-extractDownload
Another classic English case that sets out the nature of an advocate’s duties, and the dilemmas often faced in executing these often contradictory duties, is Rondel v Worsley [1966] 3 All ER 657. A client, convicted for assault, sued his counsel for negligence. In finding that no claim for negligence in the performance of counsel’s duties arose, Lord Denning dealt with the nature of these duties in his inimitable style. While the law has developed since this decision and counsel no longer enjoys blanket immunity from liability for negligence in the performance of his or her duties, Lord Denning’s analysis remains relevant to modern practice. It is worth reading carefully, not least as a reminder that legal writing can also be entertaining. Consider the concise but humorous summary of the history of the matter by Denning LJ:
“During the night of Saturday to Sunday, 5 April 1959, there was a dance at a house, 13, St Stephen’s Gardens, W2. In the early hours, at 2.30 in the morning, a man named Manning was at the door. He was the doorkeeper. Norbert Fred Rondel, the plaintiff, went to the house. He went, he says, on behalf of Peter Rachman, the landlord. He spoke to Manning. There was an outburst of violence. Manning was severely injured. His hand was so damaged that it had to have nine stitches. And he lost the lobe of his right ear. The plaintiff admits that he did it, but he says that he was attacked by Manning. He was looking for prostitution and acted in selfdefence. When it was suggested that he used a knife, he hotly denied it. He claims to be an expert in judo and karate. It would be degrading, he says, for him to use a knife. He told the judge in chambers: “I tore his hand in half and bit part of his ear off.” Even
before this court he exulted in his achievement. He said: “It sounds difficult in cold blood, but I can demonstrate it.”
We did not accept the offer.…
After his conviction the plaintiff applied to the Court of Criminal Appeal for leave to appeal. His grounds covered fifteen closely written pages. His main concern was to show that the injuries to Manning’s hand were not caused by a knife but by his hands; but he also made complaints against the defendant, saying:
“My court brief barrister actually got minor facts mixed up and his knowledge of some quite important facts was inadequate for crossexamination purposes . my idiotic counsel, all I wanted him for is to get me an adjournment to call witnesses and arrange for his (Manning’s) hand to be examined. I gave these instructions to him in writing . I felt somehow my counsel did not believe in my complete honesty and therefore did not examine that night doctor. I would have examined him for hours if necessary . It seemed my barrister had another client waiting, for he seemed in a terrible hurry. He did not even ask Sergeant McCann whether he saw a bottle (broken) at entrance to porch. I can prove I was working for Rachman by ordering inspection of the firm’s books.”
If there was anything in these complaints sufficient to suggest there might have been a miscarriage of justice the Court of Criminal Appeal would no doubt have given leave to appeal; but they evidently thought there was nothing in them. They refused his application. So the conviction and sentence stood.”
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