Legal insurance companies are presenting a new challenge and concern to the legal fraternity because some of them have started providing legal services.
“The insurers need to note that they cannot determine fees for professionals, and on the other hand, attorneys also need to be made aware that agreeing fees with a third party who is not your client is misconduct,” said chairman of Law Society of Botswana (LSB), Lawrence Lecha, at the opening of the legal year on Tuesday.
He said that even though business has not been good recently, anticompetitive behaviour and misconduct should not be allowed, as it may cause irreparable damage to the image of the profession. “In this regard, the society is looking to the Attorney General, statutory corporations and banks to spread work evenly through the law firms in order to improve market conditions,” he said.
Lecha asserted that there is need for a comprehensive amendment of the Legal Practitioners’ Act that would address the changed environment under which lawyers operate.
“Successive attempts have been made by the Law Society to have a comprehensive amendment to the Act that would address amongst others the changed environment of the practice of law. These attempts have failed,” he said.
He stated that the latest attempt to amend the Act started in 2011 and a draft was prepared and discussed with the then Minister of Defence Justice and Security Ramadeluka Seretse. “The principles contained in the draft were agreed in 2013 and the society was assured then that the bill would be placed before cabinet and Parliament during 2013 or 2014 at the latest.
Regrettably, the draft has, despite best efforts by the society, not reached any of the two milestones. In the absence of any plausible explanation, the only conclusion reached by the society is that, at best, this matter is not a priority for government or there is some covert opposition to the amendments,” he said.
He stated that one of the main amendments in the Act would ensure that all members pay annual subscriptions and fees for practicing certificates. Lecha said that it is a clear anomaly that while all members enjoy the same benefits, including voting and standing for office attorneys working for government and statutory corporations are exempted.
“This amendment would greatly improve the financial viability of the society and therefore, increase its ability to discharge its mandate. What is however noteworthy is that government has managed to move through Parliament, at impressive speed I should hasten to add, amendments that serve its interests and not necessarily those of the profession.
One such example being the amendments that will require legal practitioners to serve their pro bono with Legal Aid Botswana, a statutory corporation,” he said.
The LSB chairman emphasised mutual respect between judges and lawyers as it is critical for fair dispensation of justice.
“Disrespect or perception of same by a judicial officer to a legal practitioner translates eventually to disrespect by the judicial officer to the client, a member of the public,” he said.
The hot potato that is the appointment of judges did not escape Lecha’s attention.
He cautioned that appointments of Court of Appeal judges can be hijacked by anyone at any time for personal benefit. “The concern of the society however is that while the Court of Appeal is the highest court of the land and therefore requires a stricter and more robust appointment process, the opposite seems to be the case.
Vacancies of judges of the Court of Appeal, unlike all others are not advertised. The appointment process is shrouded in such secrecy that even the LSB, which is represented in the JSC, is sometimes faced with considering a candidate without the background of how the application came about. Such an approach impacts negatively on perceptions of independence of the court,” he said.