I have taken time to review the proposed Legal Practitioners’ Bill during the holidays.
In this review, I would assume that the reader is conversant with the provisions of the current Act and would make a comparison where necessary. I am also going to use the word “clause” in reference to the proposed section per the Bill.
At the outset, I should state that there is a discrepancy between the Bill and the Memorandum proposing the amendment of the Act. One should therefore read the Bill itself to really appreciate the proposed amendment. The Bill does not propose many amendments. Most of the sections would not be affected by the Bill, therefore this presentation focuses on sections which are proposed to be amended.
Qualifications for practising as legal practitioner
Clause 3 of the bill remains as is except that the exemption of legal practitioners who are employed in government to hold a practicing certificate is removed. In other words, subsection (2) of section 3 would be repealed. It is however surprising that the same Bill at clause 26, allows legal practitioners employed in government and government-related entities to practise without practising certificates. In a way, they are exempted from holding practising certificates.
Clause 26 therefore defeats the amendment as postulated in the memorandum, as legal practitioners in government are still exempt from holding practising certificates. They remain members of the Society with rights and interest, but without obligations. They do not contribute to the administration of the society whereas they have the same rights and interest as legal practitioners who contribute through payment of subscriptions and payment for practising certificates.
Clause 26 is therefore discriminatory as it places an obligation on legal practitioners who are in private practice to fund the Society established to regulate legal practitioners. Government and its employees are exempted from the said obligation. The said exemption cannot be justified in that we do not see similar provisions in Acts of Parliaments relating to other professions such as accountants, nurses, doctors and engineers. This has been the LSB’s main contention over the years and there was some form of agreement between the Ministry / Government and LSB that the exemption was due to be removed.
The LSB is struggling financially due to the said exemption. More than a third of legal practitioners in the country are employed in government and are not contributing anything towards the Society. Due to its financial constraints, the Law Society is not able to deliver on its mandate effectively as the government does not contribute anything towards its costs. Even more surprising is that the Memorandum to the Bill does not disclose this exemption as it gives an impression that the exemption is removed. In terms of the Bill, person employed in government would be exempted from furnishing certified copies of audited accounts when applying for certificates.
The suggestion made in the Bill is welcome as persons employed in government are not required to open and manage trust accounts. I would also suggest that the same exemption as mentioned in the Memorandum be extended to persons employed in the private sector other than law firms.
10. Section 4 is amended by clause 4 to the effect that
- any person who has graduated from any accredited institution in Botswana shall qualify for admission as legal practitioner.
- All persons wishing to be admitted regardless of where they graduated, would have to sit and pass a bar examination provided they have graduated from a jurisdiction with an analogous system of law and have reciprocal provisions for admissions of citizens of Botswana.
- Pupillage shall be served and completed before admission.
Sections 6 and 5 which dealt with admission of commonwealth citizens and non-citizens are repealed. Everyone would therefore have to satisfy the requirement of Clause 4
Admission of Advocates
The memorandum speaks of an amendment restricting admission of non-resident advocates to persons qualified as judges of the High Court or Court of Appeal, however, the bill in silent on the said restriction.
Clause 17 is silent on the number of years of practice for one to be admitted as a pupil master. Section 18 of the current Act prescribed 7 years of continuous practice. Therefore, in terms of the Bill any legal practitioner who is admitted, may apply to be registered as a Pupil Master. The Memorandum is silent on the removal of the said requirement.
In addition to Attorney General and Director of Public Prosecutions, Judges of the High Court, Industrial Court, the Master and Registrar, Director of Military Prosecutions and Judge Advocate General would be pupil masters by operation of law.
Provisional Certificates for pupils would be issued by the Secretary of the Society as opposed to the Registrar of the High Court as per the current Act.
The Memorandum suggests that even Practicing Certificates would be processed by the Secretary of LSB, but the Bill provides otherwise as stated above.
Practice on own account
In terms of clause 26(3) a legal practitioner shall not practice on his own account if he has not practiced for
All those who intends to practice shall have to obtain a practicing certificates except employees of government and government associated entities. I have already commented about this clause above.
Clause 27 introduces the following requirements for a practicing certificate over and above the existing requirements:
- A legal practitioner should have undertaken such pro deo or pro bono work as may be prescribed (please note that this requirement is contained in the current Act but not yet enforced);
- The legal practitioner has attended the minimum number of continued development courses or workshops as may be prescribed;
- The legal practitioner has procured professional indemnity insurance in terms of clause 39 (but it is supposed to be clause 38). The requirement is that a legal practitioner should procure and maintain a professional indemnity policy. This requirement therefore introduces another expenditure to attorneys in private practice. The Bill does not address the plight of legal practitioners who are employed by private entities and are at the moment not allowed to procure practicing certificates. All impediments cited by the Society for its refusal to give them fidelity certificates and issue them with supporting letters still remains.
Fidelity Guarantee Fund
The following amendments are proposed with regards the Fidelity Fund
- The board of the fund is given a wide discretion to invest monies held in the fund.
- Complainants may claim from the fund for loss suffered as a result of theft of the practitioner. Previously claims were limited to dishonesty. Please note that dishonesty was interpreted as theft as it was difficult to see any other dishonest, therefore this amendment maybe for clarity.
The following amendments are proposed with regards trust accounts:
- Interest made in the trust shall be paid to the Fund without deductions, however, practitioners would have a right to submit a claim for actual loss incurred in the performance of any duty. The society would have a right to reject the claims made by Legal Practitioners.
- Trust accounts should be audited by a certified auditor registered with Botswana Accountancy Oversight Authority established under the Botswana Reporting Act.
Members of the DC are increased from 5 to 9. The 4 added members shall be from professional and civic society or organisations as determined by Council. The Chair and vice Chair shall be appointed from Legal Practitioners in the committee. Clause 46(3) allows the Council to facilitate resolution of a dispute, before referring the same to the DC. The said resolution should be done within 30 days. This is a welcome development as some complaints do not warrant discipline of members and it would provide a quick remedy for members of the public. The Bill specifies timelines for every process, for instance, investigations should be done within 60 days and explanation by legal practitioner should be delivered within 30 days of notification of the complaint.
The maximum fine has been increased from P10, 000.00 to P50, 000.00. Legal Practitioner may be ordered to compensate the complainant, however such compensation ought to be confirmed by court. 28. Where the disciplinary committee fails to take action in respect of a complaint which relates to a professional misconduct or council fails to carry out any recommendation made by the DC, the Attorney General shall, where there is reasonable cause, apply to court for suspension or removal of the legal practitioner.
Clause 54 excludes persons employed in government and government associated industries from paying annual subscriptions and such fees as may be prescribed. The same arguments raised above would still apply here. Persons employed in government and government associated industries are full members of the Society without contributing anything towards the upkeep of the society. They are entitled to attend meetings, stand for and participate the election of council and enjoy all other benefits which accrues to members of the society without contributing anything.
Contingency Fee Agreement
Clause 70 (1) now allows legal practitioners to enter into contingency fee agreements with clients. You will note that contingency fee agreements in terms of the current Act are unlawful. The contingency fee that may be agreed between client and the legal practitioner shall not exceed 25% of the total amount awarded and recovered by the client.
No contingency fee agreements should be concluded with a client who qualifies for legal aid and legal aid is available to assist him/her. This clause would provide a difficulty in that most clients who require such agreements are indigent and would naturally qualify for legal aid except for companies.
All contingency fee agreements shall be registered with the Society upon conclusion.
*Paul Muzimo is managing partner at Paul and Partners