By: Erica Emdon
ProBono.Org is involved in discussions with stakeholders on the Legal Practice Act, and we are developing our own position on what we think “community service” dealt with in Section 29 of the Act should constitute.
Section 29 of the Act covers people within the legal profession, more specifically candidate attorneys (CAs) and practicing legal practitioners. In regard to CAs, community service must be “a component of practical vocational training” and in regard to legal practitioners “a minimum period of recurring community service by practising legal practitioners upon which continued enrolment as a legal practitioner is dependent”. The Act is not applicable to other persons, in particular LLB students. While many universities have community service programmes, if these are to be regulated, it would be necessary to do so through other legislation or curriculum requirements of university degrees.
Regarding CAs, the position is tricky and more questions arise than answers. The amount of time that should constitute community service during articles needs to be decided upon. Should it be thirty days, three months, six months or a year? What activity should constitute community service for CAs? The Act provides a list of possible activities that could constitute of community service. This list is also applicable to legal professionals. It includes, but is not limited to:
• Service in the state.
• Service at the SAHCR (this could possibly be extended to other Chapter 9 institutions).
• Service as judicial officers, including in small claims courts.
• The provision of legal education and training.
• Other service approved of by the Minister
Which of these would be appropriate for CAs? Where should CAs undertake their community service? Within the law firm that they are working? What if that law firm is a small firm without any community service options? If it were a large firm with a pro bono department would a compulsory period in that department constitute community service?
Perhaps a better option is that CAs should undertake a year long period of community service after they have completed articles in an institution given recognition by the state. This could be made a prerequisite for admission. If this form of community service provides a service to the state, albeit indirect, the state ought to pay for it. Examples that spring to mind are service in courts assisting the public, legal departments of different organs of state, parastatals, Legal Aid SA, community advice offices or legal NGOs. The advantage of this system is that CAs who have completed their articles would not require high levels of supervision.
The option of requiring CAs to undertake their community service within the time frame of their articles could be implemented by requiring CAs to do some legal clinic work as part of their Practical Legal Training component. This would require Practical Legal Training courses to incorporate a community service component. Or alternatively, what if a CAs community service were the same length of time as a legal professional’s – that is 24 hours per annum – and could be performed while under the supervision of the CAs principal? Or perhaps for CAs the amount of hours could be higher? And the CA would be expected to do this work within the period of articles, to be signed off by his or her principal.
The latter option would be the cheapest and the option that could be implemented immediately. The former option of one year’s community service would have to be phased in as it would require new job definitions and an assessment of appropriate institutions.
Regarding community service for professionals, ProBono.Org believes that the purpose of undertaking pro bono service is to make access to justice available to the most impoverished members of our society. For this reason we believe that the paltry 24 hours required per annum, should be skewed towards casework for impoverished clients, as this is where the need is greatest. We believe that while options, such as providing training, service to the state, acting as a commissioner at a Small Claims Court, and so forth are options to be considered, there should be an imperative in the regulations requiring that a substantial majority of the 24 hours should be devoted to case work and direct legal assistance to people unable to afford private legal fees. (A similar provision is provided for in Rule 6.1 of the American Bar Association’s Model Rules of Professional Conduct, but requiring 50 hours per annum not 24! See research paper by Daniel Sive, “Pro Bono/Community Service, commissioned by NADEL).
In essence the entire reason for providing pro bono service as a recurring service should be to ensure that every person is enabled to realise his or her constitutional right, provided for in section 34 of the Constitution, to have a dispute resolved, “in a fair public hearing before a court of law…”. Without legal representation, such right is rendered almost meaningless.
Erica Emdon is the National Director of ProBono.Org