What are the different types of advocates in South Africa?
There are different types of practising advocates (“Counsel”) who can assist client matters in South Africa. The Legal Practice Act 28 of 2014 (effective from 1 November 2018) governs all types of legal practitioners and divides advocates into 2 categories, namely “Trust Account Advocates” and “Advocates” without Trust Accounts.
Practising “Trust Account Advocates” are allowed to take instructions directly from the public and ask payment of a deposit into his/her Trust Account, similar to practising attorneys. It only became possible to become a Trust Account Advocate from 1 November 2018.
The advocates without Trust Accounts are not allowed to take instructions or deposits directly from the public. We refer to this category of advocates as “Referral Advocates” as they only receive briefs in a prescribed or agreed manner from practising attorneys. Referral Advocates generally specialise in legal matters relating to court proceedings, drafting of court papers and arguing in court.
Generally, it is not regarded appropriate for a Referral Advocate to consult alone directly with a client without the instructing attorney present. All communication between a client and a Referral Advocate generally flows through the attorney on record. The attorney on record is further generally responsible to provide an address for service, keep full records, attend to necessary administrative tasks, prepare the court’s files, assist the Referral Advocate as requested, pay the Referral Advocate and invoice the client.
Trust Account Advocates and Referral Advocates are only allowed to operate as solo practitioners for their own account. Practising advocates are not allowed to operate formal partnerships, companies or share fees or permanent offices with practising attorneys in working together on legal cases.
Most advocates in the same city or region become members of the same professional societies, commonly referred to as the “Bar”, which are led by the national General Council of the Bar, which operate similar to voluntary professional associations, subject to the Legal Practice Act. This allows advocates to share the same code of conduct, office facilities (commonly referred to as their “Chambers”) and other resources, act collectively, continue learning from each other and share expenses.
Prior to the implementation of the Legal Practice Act, the Bars were self-regulated. The Bars set standards to determine and recommend when a Junior advocate can become a Senior advocate (a “Silk”). The Legal Practice Council can now also set guidelines to approve a “silk recommendation”.
“Silk status” is an honour conferred by the President of South Africa (after referral by the Judge President of the applicable court and the Minister of Justice) to an advocate for exceptional skill, integrity and leadership.
Different roles and privileges attach to the status and seniority of advocates. Senior Advocates generally have more than 10 years court experience, take the lead in arguing in court, and can charge substantially more than a Junior Advocate. Some Senior Advocates are later invited or proceed to become acting or full-time Judges.
A Senior Advocate is generally unlikely to act in a major court case without the assistance of a Junior Advocate. An experienced practising advocate could further agree to act as Training Supervisor to candidate legal practitioners (“pupils”) who desires to become advocates.
It is roughly estimated (in 2020) that there are between 2000- 3000 practising advocates in South Africa. All practising advocates should appear on the roll of legal practitioners kept by the Legal Practice Council on their website.
South Africa can be proud of our various very talented advocates! We also invite and hope more advocates will join the “Lawyers Working From Home” platform soon to enable attorneys and clients to find and connect more easily with the right advocates fast in all regions.
In terms of the Legal Practice Act, the same professional rules (including marketing rules) and code of conduct apply to both, practising attorneys and practising advocates. It makes practical and business sense for all Trust Account Advocates, Referral Advocates and Practising Attorneys to join “Lawyers Working From Home” to make new connections, build stronger legal practices and go forward together!