Definition:

Advocate is defined in terms of section 1 of the Legal Practice Act, a legal practitioner who is is admitted and enrolled as such.

Registration of already admitted advocates:

Advocates who are already admitted as an advocate prior to the commencement of the Legal Practice Act and the Legal Practice Council. Prior to the commencement of the Legal Practice Council, the National Forum called upon the various Bar Associations to provide their members list who would then be enrolled on the LPC roll, instead of the previous roll of advocates administered by the Department of Justice and Constitutional Development.

Advocates who were already admitted as an advocate prior to the establishment of the Legal Practice Act must register with the Legal Practice Council in terms of S114 of the Legal Practice Act. Registration forms in terms of S114 can be found on the LPC’s website.

Types of Advocates:

Section 34 of the Legal Practice Act defines three types of legal practitioners:

• Referral Advocate (section 34 (2) (i))
• Fidelity Fund/Trust Account Advocate (section 34 (2) (a) (ii))
• Attorney (section 34 (i))

Referral Advocates (section 34 (2) (a) (i))

A referral advocate or a traditional advocate receives briefs and/or their instructions from a practising attorney.

Referral advocates only consult with and engage with members of the public through their instructing attorneys who usually acts as a faciliatory role between the referral advocate and members of the public.

Section 34 (3) must make rules relating the briefing of advocates

Section 34 (6) states that an advocate may only practice

Rendering of Legal Services by Advocates:

Rule 33 of LPA: Legal services which may be rendered by advocates in possession of Fidelity Fund Certificate [section 95 (1) (2A) read with section 34 (2)(b)]

An advocate referred to in section 34 (2)(a)(ii) of the Act who is in possession of a Fidelity Fund all those legal services which advocates were entitled to render before the commencement of the Act and may perform such functions ancillary to his or her instructions as are necessary to enable him or her properly to represent the client.

Rule 34 of LPA: Briefing of Advocates by attorneys and by members of the public [section 95 (1) (2B) read 34 (3)]. All briefs to advocates as contemplated in section 34 (2)(a)(i) shall be subject to the terms and conditions contained in part IV and part V of the code of conduct made under section 97 (I)(b) of the Act applicable to that category of advocate, or under any code of conduct developed under section 36 of the Act.

Fidelity Fund Advocate

The NBCSA in its challenge to the status quo and in accordance with one of its founding principles:

The enhancement of the profession by allowing advocates to accept briefs directly from the public.

The NBCSA in pursuit of the above mentioned founding principle was involved in the following cases:

• General council of the Bar of South Africa v Van der Spuy 1999 (I) SA 577 (T) • Van der Spuy v General Council of the Bar of South Africa [2002] ZACC 17; 2002 (5) SA 392 (CC), 2002 (10) BCLR 1092 (CC).
• General Council of the Bar of South Africa v Roseman 2002 (I) SA 235 (C)
• Roseman v General Council of the Bar of South Africa 2004 SA 568 (SCA)
• Society of Advocates of Natal v De Freitas and Another (Natal Law Society) 1997 (4) SA 1134 (N)
• De Freitas and Another v Society of Advocates and Another 2001 (3) SA 750 (SCA)

In terms of section 96 of the Legal Practise Act, the NBCSA was provided with one seat on the National Forum established in terms of the Legal Practice Act. An important development couched in section 34 (2)(a)(ii) of the Legal Practice Act (Fidelity Fund Advocate) which allows an advocate to take instructions directly from members of the public.

How to convert from a Referral Advocate to a Fidelity Fund Advocate:

1. Conversion of enrolment is dealt with specifically in section 32 of the LPA. The section applies to all legal practitioners.
2. An advocate practising without a Fidelity Fund certificate who wishes to convert his or her enrolment to that of an advocate conducting a practice with a Fidelity Fund certificate must similarly satisfy the Council that he or she has the required knowledge of accounting. If the applicant has previously practised as an attorney, he or she will have the required knowledge of accounting.
3. In the case of an application for admission as an advocate intending to practise with a Fidelity Fund certificate, proof that the applicant has satisfied the requirements of the Council in terms of section 85(1)(b) of the Act in relation to a legal practice management course, and has passed the examination required to be passed by attorneys so as to reflect that the applicant has the required knowledge of accounting for the keeping of accounting records referred to in section 87 of the Act and for compliance with the accounting rules published by the Council from time to time; attendance report issued in respect of attendance of the applicant at a practical legal training course approved by the Council.
4. At any time, an advocate may apply to the Council to convert his or her enrolment to an attorney in terms of section 32 (1)(a) or to an advocate with a trust account in terms of section 32 (1)(b).
5. The Council has determined the rules and payment of fees for the conversion of enrolments.

Forms:

How to convert from an attorney to an advocate in terms of rule 30 read with section 95 (I)(X) read with section 32 (I)(a)

The application for conversion in terms of rule 30.1 shall be in writing and shall contain the following information in respect of the applicant:

• Full names, date of birth, identity number and residential address.
• Whether or not he or she practices or is about to commence practice
• If he or she does not practice, his or her business and personal address and telephone numbers, if any.
• The physical address of his or her main office and its postal address, and telephone number, mobile telephone numbers, fax numbers, email address and other electronic communication contact particulars, if any.
• Whether she or he conducts practice as an attorney.
• If he or she is employed by any person who does not practise, the nature of his or her employment and the name and business address and postal address and telephone numbers, if any, of his or her employer
• Every court in which he or she has been admitted, and a statement that he or she has not been admitted in any other court.
• The Legal Practise Council may require information referred to in rule 30.2 be submitted in a form to be determined by the Legal Practise Council.
• The conversion application from (rule 30) must be signed by the applicant, and must be accompanied by the following:
  • Proof of payment of payment of the prescribed fee.
  • Certificate signed by the registrar of every High Court to which the applicant applied for admission to practise that no proceedings are pending against or are contemplated to strike the name of the applicant off the roll or to suspend the applicant from practise.
  • Where the applicant is an attorney applying to convert his or her enrolment to that of an advocate, a statement indicating whether he or she intends to practise as an advocate, and, if so, whether he or she intends to practise with or without a Fidelity Fund Certificate.
  • Proof to the satisfaction of the Legal Practise Council that he or she has the right the right of appearance in the:
    • High Court
    • Supreme Court of Appeal
    • Constitutional Court

In terms of section 25 (2) of the LPA or in terms of any legislation in force prior to the coming into force of the LPA and has undergone such specialised training in advocacy as is required by pupils for admission as advocates, other than training in terms of a contract for the provision of practical vocational training under the supervision of a training supervisor, as provided for in the rules; such other requirements as the LPC may determine.