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SPONSORED
BY THE FORD FOUNDATION
JUSTICE FOR ALL Legal
aid Jeremy
Sarkin outlines the different options The provision of legal services to the poor1 is one of the greatest challenges to the legal profession all over the world, but particularly in Africa and South Africa, where there are enormous problems. Although democracy was supposed to level the playing fields, the exorbitant costs of legal services in South Africa still renders it the privilege of the few who are wealthy. The vast majority of people coming into conflict with the law are indigent and often unrepresented. Civil legal aid is almost entirely unavailable for the majority. In combination, these factors result in the vast majority of people being denied justice. South African’s access to justice is provided in a number of different ways:
While the first prize is a fully state-funded legal aid programme with as many well-experienced full-time salaried lawyers as are needed, and who provide a full range of legal services, this is highly unlikely, mainly because of lack of resources. Given the current constraints, what can be done to provide a service that reaches as many people as possible? Judicare Section 35(2) of South Africa’s new constitution states that:
Since 1994, the number of applications granted has grown dramatically. During the 1997/98 financial year, 196 749 people received legal aid at a cost of R210 million. Of these, 193 177 were represented by private lawyers. More than half a million case referrals have been given to private lawyers by the LAB over the last few years. However, in its 1995/96 annual report, the LAB indicated that approximately 700 000 people charged with serious offences were not legally represented. It has been estimated elsewhere that more than 100 000 accused persons a year are still being sentenced to terms of imprisonment without having had legal representation. Civil legal aid has been provided in very small measure over the last few years. The Constitution’s legal imperative is to provide aid for those accused of a crime and demand has outstripped the resources allocated by the state for this purpose. While the Constitution provides that “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing in a court or, where appropriate, another independent and impartial forum”, this is perceived to be a right of access and not the right to be assisted in actually being able to afford access. As it became clear that the judicare model was not providing optimum benefit, the LAB moved to a salaried model. Part of the reason was that the system had been under enormous pressure and the LAB had huge debts.8 Many private lawyers had opted out of legal aid work because the LAB had a backlog of unpaid work dating back years and because the tariffs paid to lawyers were significantly reduced. Besides using private lawyers, in the period 1995-2000 the LAB operated a public defender’s office. It currently uses a network of university law clinics to provide legal services. Each clinic receives funding to employ articled clerks and supervising attorneys. Justice centres The centres will provide a range of services, including defence in criminal trials and representation in civil matters. Justice centres will extend access to legal aid to far more people than was previously the case. In the short term, however, the majority will still not have access to these centres. In the long term, the lack of resources and appropriately qualified and experienced personnel will mean that the justice centres will not be able to cater for all the needs they are presented with. A range of additional measures are necessary to ensure that this project is successful.
Law clinics Candidate lawyers The project, which the LAB intends to expand, will have a profound effect on black lawyers being able to find employment and the availability of legal services in the rural areas. It will also assist in the provision of legal aid and training to para-legals and advice centres opening all over the country. Promoting the link between the para-legal movement and the advice offices would improve access to justice for a broad range of people. Community service The Minister may, on the advice of the
Council, prescribe legal community service, which may include: There are potential pitfalls. Because resources are limited and the number of cases overwhelming, lawyers in the field may be inclined to become impersonal and bureaucratic. These lawyers are likely to be newly-qualified and therefore inexperienced and the turnover rate will be high. The quality of service may be lower than the ideal, but this can be mitigated by taking steps to constantly supervise and train these emerging practitioners. An important advantage of a community legal services programme is the educative function that it would provide to many future corporate lawyers and prosecutors. Their legal skills would be honed within a short period of time while they provided a much-needed service. This type of legal practice would also expose and orientate these lawyers quickly to areas of the law with which they might never otherwise become acquainted and may result in some of them continuing to work in such fields. Such a programme would also assist in providing access into the profession, particularly for those from historically disadvantaged groups, as well as improving access to legal services. Para-legals Adequately trained para-legals, who should have some nationally certified training, possibly established in conjunction with the law societies and universities, could make a further impact by staffing advice offices which already exist in many parts of South Africa. These advice offices, set up to address grievances of the poor that are not necessarily specific to law, could also be partially utilised as legal education agencies which promote awareness of legal rights. Because many advice offices are located in rural areas where there are few lawyers, such a scheme would increase the access of people to the law. There seems to be agreement that the Legal Practice Bill will put the proposed Legal Practice Council under a legal obligation to promote and support the development of para-legal work to promote access to justice and that there will be a special committee of the council to promote the development and empowerment of para-legals. It seems also that there is agreement that registered legal practitioners will also be able to practice as part of a legal advice office accredited by the council and that an accredited legal advice office, which is a non-profit organisation, should be permitted to charge a fee for the services rendered by its para-legals. Obviously, fees charged will not be high and may be on a sliding scale. Certainly, this will help to fund these offices and assist them to reach more people. Law students Such student practice occurs at various law schools in the United States. For example, in the state of Massachusetts, students may appear in court, provided that they have completed courses in criminal law, criminal procedure, evidence and trial advocacy, have the client’s consent and are supervised by an attorney. At the University of Pennsylvania Law School, students in their second and third years of study are required to perform 35 hours of public legal service. At the Tulane Law School, students work at least 20 hours providing legal aid. In Papua New Guinea, LLB students who are certified by the Dean of the Law School, after consultation with the Magisterial Service, may represent complainants and defendants. In South Africa, there has been the suggestion that third and final year LLB students should be allowed to appear in court if they have passed criminal law, criminal procedure, trial advocacy and evidence and participate in the activities of the university’s legal aid clinic. There is no reason why compliance with such a requirement by South African law students could not be one of the grounds necessary for admission to practice. Legal insurance Pro bono work In South Africa, there is no code of conduct within the legal profession that advises or requires that legal practitioners dedicate a certain amount of time to working on behalf of the marginalised, vulnerable and indigent persons. While South African lawyers have provided
some pro bono services to clients who cannot afford their services,
the extent of this volunteerism in unknown. We do know that it is generally
young lawyers who provide such services. For major public interest cases,
more experienced lawyers have also played a role. Whether lawyers should be mandated to perform pro bono work is a contentious issue. It would also be controversial because, up until now, voluntary programmes have not really provided much in the way of access to legal services. The US experience should be instructive: voluntary pro bono programmes nationwide...failed to adequately address and remedy the increasing legal needs of the poor...it has been the trend for the strongest proponents of pro bono service to become frustrated with the ineffectiveness of these voluntary programmes and become ardent supporters of mandatory schemes. In reply to a question about how practising lawyers might be persuaded to render pro bono services on a regular basis, South Africa’s Chief Justice, Arthur Chaskalson, answered cautiously that some sort of structure was needed and that there were two ways in which it could work: One is where it becomes part of the ethic of a firm and where lawyers realise that it is part of their duty to make such a contribution to the practice of law. The second way would be to have links with schemes that can be set up either by the profession itself or by centres or public interest institutions. People who need legal services would come to a particular centre and then be referred to lawyers. I’m not sure which one works the best. Public interest centres identify lots of issues of importance and they may well be a base for extended relationships with the profession. A more direct and specific call has recently been made for advocates to provide free legal services. Gilbert Marcus SC, has proposed that a specific obligation be imposed on advocates to perform a stipulated minimum amount of work pro bono. While he acknowledges that the commitment to do pro bono work is “largely a matter of ethical choice and not a matter of ‘ethical obligation’”, Marcus says that if the Bar wishes to affirm its statement of intent of providing access to justice for indigent persons, it needs to do so via the creation of structures to implement and co-ordinate the system. He suggests that each of the constituent Bars set up pro bono committees to oversee the process. Implementation The draft Bill provides that:
Would a mandatory scheme be in conflict with the Bill of Rights or other provisions of the Constitution? There are countries with constitutional regimes which have such compulsory schemes. A study by van Dijk and van Hoof of these states found that the legal profession had not received much sympathy from the courts in its attempts to challenge the compulsory provision of legal services. In Belgium, for example, each Bar has a statutory duty to provide legal representation to those who cannot afford it. In Spain, all lawyers have a duty to represent indigent civil litigants free of charge. Cases are assigned to lawyers on an alphabetical basis. If a lawyer wishes to be excused from representing such a client, an amount must be paid by the lawyer. In the US, 18 states consider that there is a duty to provide representation to the indigent for little or no remuneration. Various options are available for the actual providing of such services. Firms could devote time to pro bono work each year, or offer financial contributions to assist in the provision of legal aid. Duty lawyers’ offices are another avenue for encouraging lawyers to engage in pro bono work. In New Zealand, there are duty solicitors in the district courts. In American Samoa, there are duty rosters to provide legal representation. Such offices could be set up to handle civil cases in justice centres or elsewhere. They could be staffed by lawyers on a rotation basis to provide free legal advice to indigent people. These programmes can be co-ordinated by means of a certification procedure whereby the annual listing of an admission to the bar licence would be contingent upon the lawyer providing proof of fulfilment of the statutory minimum hours of pro bono service to the community. Another possibility is a ‘public interest law clearing house’. A referral body would match disadvantaged and under-represented individuals and groups with legal practitioners who are members of the clearing house. Such a clearing house operates in Sydney, Australia, and is operated by a public interest advocacy centre run by an independent board: whose members include representatives of the legal profession, the law society and the bar association. Members pay an annual membership fee to the clearing house and, in turn and according to a roster system, they receive two to three cases a year which they conduct on a pro bono or reduced-fee basis.50 The LAB could play this role. Judge Navsa has already requested legal practitioners – “particularly large law firms” – to consider doing pro bono work co-ordinated by the LAB. Another example is the New York Legal Aid Society, which refers point-of-entry requests for legal representation to external law firms, in combination with employing legal practitioners to provide legal aid. The other way the legal profession can provide pro bono service is by making financial contributions for the provision of such services. Lawyers could be charged a fee for the issuing of an annual admission certificate. The amount could be set on a sliding scale depending on the type of practice, the type of law and whether the lawyer practices in an urban or rural area. A certain percentage of the fee award recovered through the provision of legal aid, which presently stands at only 5%, could be paid into the legal aid fund to ensure a larger funding pool for those who would not otherwise not have access to legal services. The provision of legal assistance could also be subsidised by levying a percentage tax on all legal services bills. In the state of California, there is a special provision in the Business and Professional Code which provides funding for legal aid. This scheme requires lawyers and firms to place client deposits in an interest-bearing trust account. The interest accrued is then transferred to the state bar and used to fund legal aid programmes. The scheme is similar to South Africa’s Attorneys Fidelity Fund, into which all the interest from attorneys’ trust funds is paid. The fund then guarantees the amount claimed by a client if an attorney who is sued by a client fails to pay. The fact that such money comes from the public makes it reasonable to expect that it should be made available to the public again through subsidised legal services. Another possibility is imposing licensing fees which could be used to pay for services to the poor. In the Canadian province of Ontario, all lawyers are obliged to pay an annual legal aid levy (this amounted to 175 Canadian dollars some years ago) to assist in paying for legal aid. In South Africa, licensing fees could be developed which differentiate on the basis of the number of years in practice, the size of the practice, location of practice and type of work done. The issuing of a licence to practice for another year could also be made contingent upon the lawyer providing proof of fulfilment of the statutorily required minimum hours of pro bono service to the community. Such a system is used in certain states in the US. Where lawyers do cases above the minimum prescribed amount, rather than being paid an hourly rate, they could be paid a standard rate per case. This is the situation in France. In Spain, lawyers who represent people in criminal cases are reimbursed by the Ministry of Justice, the amount being dependent on the complexity of the case.
Overcoming bias The only way to create greater access to justice is by the various initiatives outlined in this article. The legal profession must also take action. The time has come for the profession to arise, act and devise a system for ensuring that lawyers play their part in providing access to justice for the ordinary person in South Africa. If the profession does not take positive steps to impose legal aid obligations on its members, it will lose the opportunity to do so on its own terms. It is then likely to have to contend with a system designed by the state and imposed on the profession on the state’s terms.
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