Beating the blacklist

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                                                            Beating the blacklist 

                                                                                                                    Ronnie Selvan se
I   take the above heading from an arti­
   cle which appeared in De Rebus,
January 1997. In the introduction to the
                                                                                                                    Johannesburg Bar

article the editors say ­                          True and the False Remedy" which ap­               that, in South Africa, at any rate, both
    "Attorneys have long been unhappy with         peared in (1959) 76 SAU at 390. In re­             branches of the profession enjoy equal
     the 'Blacklist', a monopolistic tool used     sponding to an article entitled "Fusion            status. Each has its own important and
     by advocates to ensure that their fees        - The Answer to the High Cost of Liti­             difficult role to play in the administra­
    are paid. However, they differ on the          gation" George Col man wrote that the              tion of justice, and each is governed by
    means that should be employed to get           author of the article "presents his case           a high ethical code. Neither represents
    rid of the Blacklist."                         with a degree ofpassion rarely found in            a higher or lower form of legal life."
What prompted that article was the re­             the pages of a legal publication" and              That such a misconception about the
jection at the 1996 AGM of the Law                 went on to say ­                                relative status of the two branches of
Society of the Transvaal of a proposal               "What has generated thi s heat? The an­       the profession still exists and that at
that would have permitted of a commit­               swer perhaps is to be seen on page 297,       least in part it is responsible for the
tee of the Law Society negotiating with              where the writer refers, with some bit­       strength or the feelings evinced in the
the Pretoria and Johannesburg Bar                    terness, to the concept of the solicitor      discussion of what is after all a prag­
Councils an alternative to the present                as 'a lower form of life than the barris­    matic question appears from the follow­
blacklisting system. What was decisively              ter ' . The words are taken from Mr ep       ing passage in Or Burrell 's expression
rejected at the AGM was the proposed                  Harvey's stimulating and provocative         of views:
basis for such negotiations which in­                 work The Advocate's Devil. But if one         "Why should counsels' fees be allowed
volved the acceptance by the attorneys'               has regard to the vein in which that book       to assume a position which is above the
profession of principles which in the
view of the Bar would constitute an al­
                                                      was written , one can hardly treat it as
                                                      authority for the proposition that, among
                                                                                                      normal working of the law ? Why should
                                                                                                     non-payment by attorneys of counsels'
ternative system to ensure payment of                 any responsible body of persons, the sta­      fees constitute 'unprofessional conduct',
counsel's fees.                                       tus of solicitors is so grossly misjudged.     as the proposal would have it, when, one
   Attached to the article is a summary                    The point is worth pursuing, in case       assumes, the non-payment by attorneys
of the views of law society councillor                there are other solicitors who tend to          of, for example, medical practitioners'
John Neaves who at the AGM spoke to                   take seriously what is no more than a          fees would not? Why are counsels ' fees
the proposal and Centurion attorney Or                threadbare joke heard at some legal din­       to be elevated to so pre-emjnent a cat­
Tim Burrell who spoke against it.                     ners. Lest such an error should cloud          egory?
   In putting forward his views, John                 their judgment on the serious and so­               The answer to these questions is
Neaves commences by saying the fol­                   cially important question of fusion, it        that there is no reason. The explanation,
lowing:                                               should be said without equivocation            for what it may be worth, seems to lie>
    "The debate was highly emotional with
    strong views being expressed by those
    in favour of the proposals as well as by
    those against the proposals."
Or Burrell starts by saying:
    "At the AGM of the Transvaal Law So­
    ciety it was, if nothing else, at least com­
    mon cause that the blacklisting system
    is to be abhorred: It has to go. "
   Why such strong emotions? And why
such pejorative language in the intro­
duction to the De Rebus article and from
the mouth of an intellectual property
lawyer from whom one would expect a
more dispassionate approach? The an­
swer I beg leave to suggest is given by
George Colman QC (later Colman J) in
an article, "The Cost of Litigation - The

NOVEMBER 1997, CONSULTUS                                                                                                                  109

   deep in the archaic concept that coun­         movement between the two branches of              are not paid and there is no bona fide
   sel (and counsels' fees) are of an order       the profession; attorneys give up prac­           dispute between the member and the
   to which attorneys are subservient."           tice as such and come to the Bar and              practitioner, which shall have been noti­
    It may I think be safely assumed that         vice versa. A further circumstance which          fied to the Secretary, and if the Secretary
such thinking colours the views of most           now more than ever before should con­             shall have received no written request for
if not all of those who would do away             vince attorneys that they are not a lesser        the exercise by the Bar Council of the
with the blacklist, without going on to           breed under the sun is the fact that not          hereinafter mentioned right to grant a ex­
consider what the possible conse­                 only are attorneys now eligible for ap­           tension, the Secretary shall notify to each
quences would be of such a step and               pointment to the bench but that some              member in writing the fact of such de­
the strength of the case which may be             who have been appointed generally re­             fault. From the date of such notification
put forward in favour of, if not the re­          garded by attorneys and advocates alike           and until such fees together with all fees
tention of the blacklist, at least some           as filling such offices with distinction.         which shall have been notified the Sec­
other mechanism which would assure                    Let us then in a cool and dispassion­         retary by members as being owing to
counsel of being paid. For instance, in           ate manner consider in turn what rea­             them by the said practitioner shall have
a letter published in 1997 March De               son there may be for the abolition of             been paid, the said practitioner shall be
Rebus 156, attorney Mike Rafferty of              the blacklist without substituting                barred. Provided that the Bar Council
Bothaville, Free State, and former                therefor so other system which would              may in its discretion grant to the practi­
President of the Free State Law Soci­             assure counsel of payment of his fees,            tioner in question on his application an
ety writes:                                       what fun the blacklist serves and                 extension time for payment."
  "South African jurists must rid their           whether as I will submit there are sound           I draw attention to the saving pro­
   minds of that ill-conceived and incor­         reasons the blacklist should be retained.      vision "and there is no bona fide dis­
   rect idea imported from Britain centu­             I accept that it is hurtful for an at­     pute between the member and the
   ries ago that attorneys belong to a 'side      torney to be told that because he had          practitioner". If there is such a dispute
   bar ' and that we are inferior to the 'bar'.   not paid an advocate his fees, no other        there are procedures in existence for
   After all, many of us today have the           advocate belonging to the order will           such to be resolved. The Johannesburg
   same academic qualifications as mem­           accept his briefs his default has been         Bar has an ombudsman who endeav­
   bers of the bar and in fact we are better      purged.                                        ~urs to resolve any such dispute ami­
   qualified because of our training under            However, if such fees were due and         cably. Should he fail so to do and the
   articles and the very stiff practical ex­      payable, I suggest that the consequence        matter has to be adjudicated upon, ar­
   amination which we have to pass."              is not, unusually harsh. Says Dr               rangements are made for a member of
                                                  Burrell, however, why not make use of          the attorneys' profession to take part
Attorneys not inferior                            the ordinary laws of the land; these are       in the adjudication. So far as I am
I accept unreservedly that any idea that          reasonably satisfactory "when a dispute        aware, these procedures have not given
attorneys are inferior to counsel is not          to the payment of moneys arises be­            rise to complaint among the attorneys,
only archaic but self-evidently not so.           tween A and B".                                but if I am wrong in this and misgiv­
What George Col man wrote twenty                                                                 ings do exist as to the impartiality of
years ago cannot be less true today when,         Procedures                                     those who decide such matters, I am
as Mike Rafferty points out, many if not          The short answer to Dr Burrell is that         sure that the Bar would be willing to
the majority of attorneys have the same           the function of the blacklist is not to        make the necessary changes.
qualifications as counsel but attorneys           resolve disputes between counsel and               It should not be thought that an ad­
also have the right of audience in the            attorneys as to whether or not fees a          vocate who in obedience to the rule no­
High Court. I add this. In my experi­             due. Rule 7.8 of the Rules of the Jo­          tifies the Secretary of the Society of the
ence and I think in the experience of             hannesburg Society of Advocates which          name of the defaulter does so with any
my colleagues, there is no uneasiness in          is quoted in the article in De Rebus           pleasure. The stresses which may be in­
the relationship between members of the           prescribes what is to happen when a            volved on counsel in reporting are
Bar and attorneys. Considering that               member of the Society reports to the           poignantly expressed by Horace Kent,
when involved together on the same side           Secretary the fact that fees due to him        who although he practised as an advo­
in litigation the advocate and the attor­         are unpaid after the expiration of 97          cate, was not a member of the Order, in
ney is each intent upon doing the best            days from the end of the month in              a letter published in 27 (1910) SAU at
he can for the client, it would be sur­           which the became due. It is as follows:        427:
prising if confidence in each other would           "On receiving such notice of default the       "Many members of the bar have relatives
n6t be engendered and bonds of friend­               Secretary she immediately notify the           and intimate friends at the side-bar, from
ship forged. Moreover, what is lost sight            practitioner concerned that he is in de­       whom they derive much of their prac­
of by those still incensed at the supposed           fault and that failing payment within          tice. Does anyone suppose that if A is
superior airs assumed by advocates is                seven days of such notification he will        owed fees, by, say, his brother or bosom
that there has been and always will be a             be barred. If within that period the fees      friend B, and the latter is in default for

110                                                                                                 CONSULTUS, NOVEMBER 1997

   seven days, A is likely to 'blacklist' and     existence of the advocates' profession          money held in trust? One sees of course
   ruin his brother or friend and perhaps         as it is presently constituted under the        that with some clients the attorney may
   his own practice too? Then , again, take       aegis of the General Council of the Bar         feel justified in engaging counsel with­
   the case of a young practitioner who has       and its various constituent societies. I        out having cover; but then of course the
   received his maiden brief from some            speak not of advocates who choose to            responsibility and risk of so doing in all
   eminent firm . At the end of the month         practise independently.                         fairness should attach to the attorney and
   the fee list is diffidently despatched, but,       The different roles of the advocate         not to the advocate. After all the advo­
   alas! seven days pass away and no              and the attorney are succinctly de­             cate is not consulted on the question as
   cheque arrives. Under the rule the young       scribed by Corbett CJ in his judgment           to whether credit should be given in any
   practitioner: 'is bound to notify the sec­     in the case of In Re Rome 1991 (3) SA           particular case.
   retary or treasurer'; the eminent firm is      291 (A) at 306B:                                    In an ideal world one would not need
   called upon to pay within three days or          "The advocate is, broadly speaking, the       the sanction of the blacklist to ensure
   be 'blacklisted', and with that little epi­       specialist in forensic skills and in giv­    that all attorneys would arrange that they
   sode vanishes the seductive vista which           ing expert advice on legal matters,          were in funds to pay counsel and that
   the maiden brief opened of success,               whereas the attorney has more general        they punctiliously pay counsel on due
   fame, wealth in the foreground and the            skills and is often, in addition, quali­     date. The experience of the English Bar
   'woolsack' of the Union - the Chief               fied in conveyancing and notarial prac­      however demonstrates that such is not
   Justiceship of the Appellate Court - in           tice. The attorney has direct links (often   the world in which we live. The failure
   the distance."                                    of a permanent or long-standing nature)      by English solicitors to pay counsel is a
    However, it is must be remembered                with the lay client seeking legal assist­    perennial problem in England, where it
that there is provision in Rule 7.8.12.              ance or advice and, where necessary or       is traditional also that barristers should
for the Bar council in its discretion to             expedient, the attorney briefs an advo­      not sue for their fees. If it comes to the
grant to a petitioner an extension of                cate on behalf of his client. The advo­      knowledge of a barrister that his fees
time for payment. That provision is fre­             cate has no direct links or long-standing    have been collected by a solicitor who
quently invoked and I believe sympa­                 relationship with the lay client: he only    has not paid them over to him, he may
thetically applied.                                  acts for the client on brief in a particu­   invoke the assistance of the Law Soci­
    What also should be remembered is                lar matter and is normally precluded by '    ety who will consider such conduct un­
that the procedure for blacklisting is in            Bar rules from accepting professional        professional. It is of interest that some
lieu of the right of counsel to sue for his          work direct from the client The attor­       years ago when this topic was discussed
fees. According to the rules of the Or­              ney is responsible to the advocate for       at a meeting of the English Bar, some­
der, counsel may not sue without the                 the payment of professional fees due to      one suggested that the South African
permission of the Bar council and such               the latter by the client and for the re­     system of blacklisting be introduced.
permission is granted only exception­                covery of these and his own fees and
ally. So, unpleasant as being blacklisted            disbursements from the client. The ad­       Essential
may be for an attorney, at least he or she           vocate has no direct financial dealings      By asserting that in order to give effi­
is saved the embarrassment of being the              with the client."                            cacy to the arrangement whereunder the
defendant in civil litigation and possi­              The case ofBertelsmann v Per 1996           attorney and not the lay client is respon­
bly being called upon to undergo exami­           (3) SA 375 (t) even if correctly decided,       sible for payment of counsel's fees, the
nation in the Section 65 Court.                   is not an authority to the contrary.            existence of the blacklist or a substitute
                                                      I suggest that it is intrinsic to the re­   therefor is essential, I do not mean. to
What is its function?                             lationship between the advocate and the         suggest that in the absence of such no
If then the blacklist is not designed to          attorney and each of them with the lay          attorneys would discharge their obliga­
bludgeon attorneys into paying the fees           client that the advocate makes no ar­           tions. Quite obviously this is not so.
charged by counsel, however unreason­             rangements with the lay client for pay­         Many attorneys pay counsel long before
able, what is its function? On a superfi­         ment of fees and relies upon the attorney       the fee is overdue, some on receipt of
cial approach, the answer may seem to             to see that he receives what is due to him.     counsel's brief. Nor do I suggest that the
be to enforce payment of debts due to                 Once this is granted, it is readily un­     sanction of the blacklist is necessary in
counsel, in other words, to serve as a            derstood that some mechanism is nec­            order that fees be collected. On the con­
debt collecting procedure. To a degree            essary in order to ensure that attorneys        trary, the rule is invoked in what must
this is true, but I suggest it is only one        will have funds at their disposal to dis­       be a small percentage of matters in
facet of its true function. As is under­          charge counsel's fees when such fall due.       which fees are due to counsel. However,
stood by John Neaves, the existence of            This they would generally do by not in­         apart from the relatively small number
the blacklist or of some other system             structing counsel in any matter unless          of instances where the blacklist ensures
which gives advocates comfort that their          they have money on hand from the cli­           payment to counsel of his fees, the fact
fees will be paid as and when they are            ent. And when the client pays money to          of its existence gives credence to the rule
due is a sine qua non of the continued            an attorney to pay counsel is this not          that it is the attorney and not the lay

NOVEMBER 1997, CONSULTUS                                                                                                                 III

client who undertakes liability to coun­      occur. Now that attorneys have the right             ents will lose their access to the com­
sel for his fees and that the attorney is     of audience in the High Courts and                   bined and independent resources of
under a duty to pay such. Indeed, by          there exists in addition a so-called in­             counsel. The attorneys who do not wish
briefing counsel, does not the attorney       dependent bar, the claim that blacklist              to be responsible for the payment of
impliedly hold out to counsel that the        is "a monopolistic tool" rings hollow.               counsel's fees or be governed by the
attorney has funds to pay his fees or at          And what about this further thought?             blacklisting system can, if they wish,
least that the attorney has assumed the       In the summary of his views attached to              instruct the independent advocates who,
risk of the lay clients not paying? And       the De Rebus article, John Neaves ex­                as far as I am aware, have no recognised
if the answer to this question is in the      presses the view that it would be unfor­             professional body governing their con­
affirmative, it surely provides the rea­      tunate if counsel were to be obliged to              duct."
son for the existence of the rule for which   take work from members of the public                  I do not need to recapitulate the rea­
Dr Burrell seeks and for which he gives       without the interposition of attorneys            sons why the organisation of the advo­
the fallacious explanation that the rule      and goes on to say:                               cates' profession in societies with their
exists because there is a notion among          "In my view, this would be not only to          own rules of conduct should continue.
counsel that they belong to an Order to          the detriment of the public but also to        The very fact that notwithstanding its
which attorneys are subservient.                 the detriment of the attorneys' profes­        loss of sole right of audience in the High
    At a time when the Bar had the ex­           sion - in particular the smaller firms         Courts the advocates' profession contin­
clusive right of audience before the             who cannot employ in-house counsel             ues to exist and the service of advocates
High Courts, it could more plausibly             and who cannot provide the multitude           belonging to the societies continue to be
have been argued that the implications           of services presently available to the at­     used by attorneys is proof enough that
of an attorney being put upon the black­         torney and his client through the use of       the advocates' profession as presently
list were Draconian. Even then I would           counsel. Attorneys have a choice as to         organised serves a purpose. If this is ac­
have responded by saying that in a               whether they accept the principle that         knowledged, surely those who on behalf
world where strikes and lock-outs are            they contract with counsel as principals       of their clients wish to continue to make
regarded as acceptable industrial prac­          or whether they will live with some sys­       use of the services of counsel belonging
tices and where persons whose names              tem which gives the advocates comfort          to the societies should have no objec­
are listed by credit monitors are refused        that their fees will be paid as and when       tion to the existence of the 90 day rule
credit even by medical practitioners, the        they are due. The alternative is that the      and those who do not are not affected
practical reasons for the retention of the       advocates will abandon their rules and         by the 90 day rule. Why then should any
blacklist outweigh the unfortunate con­          compete with attorneys as attorneys, the       members of the attorneys' profession
sequences which might occasionally               consequence of which will be that cli­         wish to change the status quo?         W

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112                                                                                                CONSULTUS, NOVEMBER 1997

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