Annexure “C” Judge Roland Sutherland6 talk on Code of Conduct


The Code applies to Attorneys, Advocates (Counsel), Trust Account Advocates and employed legal advisers.5 The Code says nothing about so called ‘para-legals’ an omission which has been criticised. The code does not apply to anybody who 5 Code: 67; the idea is that a legal adviser who is an attorney or advocate ought to conform to these norms, not anyone who gives legal advice who is employed in a company. Thus, a LLB graduate who is not admitted as a legal practitioner is not covered. 4 4 gives legal advice as part and parcel of another calling. There are two obvious callings to which that the LPA does not apply in which it is unavoidable for a practitioner to give legal advice. The first calling is that of tax planner, which would include Chartered Accountants in public practice giving advice on the tax laws. The second calling is that of Labour Relations Consultants who are directly, and far more deeply, involved in habitual litigation than even tax advisors. Thus, it must be noted that the LPA and the code do not purport to comprehensively regulate the giving of legal advice per se. 6 The code therefore applies only to those legal practitioners who have the societal role of dealing with the managing of litigation and giving legal advice as their core vocation. The Code consists of several chapters which address distinct types of legal practitioners. Two of the chapters relate to all legal practitioners; ie attorneys and counsel; one of which sets out general principles, and the second deals with courtcraft. Another chapter deals purely with attorneys: I do not address that chapter, save insofar as the relationship with counsel is concerned, and for example, to note that there are some benign references about attorneys’ obligations to counsel in respect of payment of fees. One chapter deals specifically with counsel and a separate chapter deals specifically with Trust Account Advocates, although much of the content is duplicated. A chapter is devoted to employed legal advisers. This structure makes it plain that what applies to you as counsel is in chapters I, II, IV, and VI. 6 This policy choice might be contrasted with the unhappy prospect, currently an issue being litigated about, whether attorneys, who habitually demand on behalf of their clients that payments be made of what is due, might have register under the National Credit Act. 5 5 What is stipulated in the code about counsel is a fairly faithful representation of the traditional ethos of the Bar. Among other statements, you will find that in the Code there is a phrase which the GCB task team7 coined to describe counsel as ‘independent practitioners of advocacy’8 which captures the sense that the Bar wanted to import into this Code as a distinctive characteristic of counsel. By and large there is nothing substantial counsel need to relearn. The core substance that is, by now, second nature to you, has not changed.


A general theme of the LPA and of the code is a greater degree of public accountability, itself commendable, and a dimension of the impact on the institutional life of the Bar, a topic reserved for another day. What you still need to do, for the present, and are obliged to do if you are uncertain about what a rule in the code means, is to go to the Bar Council to get a ruling – an interpretative ruling – on what it means.27 But clearly it is important to make the distinction between interpreting a rule and inventing one to suit the circumstances. There shall be no more inventions on the trot, so to speak. Approaching the Bar Council is simply an interim arrangement because the institutions which the Legal Practice Council (LPC) have to set up do not exist yet. The Societies of Advocates will not retain their power to regulate and apply discipline when these new institutions have been established.28 Disciplinary powers will be handed over to sub-formations at a provincial level of the LPC. When this will happen is uncertain. It will not necessarily occur when the Code 27 Code: 14.7 28 Section 23 of the LPA. 10 10 comes into operation, because it is going to take a long time to put all these institutions in place. An interesting aspect of the disciplinary regime envisaged is that Section 44(1) of the LPA reserves the powers of the High Court to be the last word on what the conduct of lawyers will be.29 This has an interesting twist. The High Court will retain its de facto inherent jurisdiction to regulate the conduct of people who practice before it. One must assume that, obviously, the Court cannot ignore the Code, but to the extent that one can expect a judicial gloss to develop, there is room for a Court to say a great deal about issues that become controversial; eg, about who is fit and proper to be admitted to the Roll of Advocates, and no less, who is fit and proper to be reinstated. Moreover, the experiment with Trust Account Advocates will probably provide some early controversies.

Extract from a talk by Judge Sutherland, a former Johannesburg Bar member, delivered to Jhb Bar in May 2017