MASERU — When Qhalehang Letsika, the dean of the National University of Lesotho’s law school, threatened to sue the Law Society of Lesotho for failing to deal with advocates masquerading as attorneys the society accused him of stirring acrimony among legal practitioners.
The law society acknowledged the problem but chastised Letsika, an attorney, for bringing politics into a legal issue and failing to suggest solutions.
But now, High Court Judge Semapo Peete has delivered a judgment that clearly shows that the problem that Letsika mentioned in his letter of complaint to the law society has reached crisis level.
The nub of his judgment is that although cases of advocates appearing without instructions from attorneys have become so prevalent that the practice has gained acceptance in some quarters it remains illegal and the law society must start dealing with the problem before chaos engulfs the legal fraternity.
Justice Peete warns that if society fails to maintain high professional standards among legal practitioners “public confidence will undoubtedly ebb” and clients will “get a raw deal”.
Justice Peete’s judgment deals precisely with the issues that Letsika had complained about in his letter to the law society in March.
That the judgment is directed at a King’s Counsel who had been alleged to have appeared in court without instructions from an attorney makes it particularly telling.
On March 3, Advocate Karabo Mohau, who is a King’s Counsel, brought a civil case before Justice Peete.
His client was suing 13 people who were represented by Thulo Mahlakeng, an attorney.
But before the case could proceed Mahlakeng told the judge that Advocate Mohau was in breach of the law because he was appearing in court without an attorney’s instructions.
Mahlakeng challenged Mohau to prove that he had indeed been instructed by an attorney as stipulated by section 32 of the Legal Practioners’ Act (1983).
Mahlakeng argued that the case should not proceed unless Mohau proves that he had been properly instructed.
Justice Peete postponed the case to April 13 saying he wanted to issue a judgment on Mahlakeng’s demands.
When the case resumed on that date the judge ruled that Mahlakeng was right in demanding that Mohau proves that he had been properly instructed.
He then postponed the case to give Mohau a chance to present his credentials.
The judge ordered Mohau to “clarify his position and show that he received his instructions through an intervention of a practising attorney in the case before court”.
But it is Justice Peete’s general comments about the problem of advocates masquerading as attorneys that make the judgment crucial, especially coming at a time when some attorneys are beginning to speak openly about the issue.
In it he tacitly acknowledges that this practice has become a problem in the legal fraternity.
Because advocacy is traditionally a “referral practice”, Justice Peete said, “an advocate cannot meet a client without the intervention of an attorney who should receive direct instructions and fees from the client”.
“An advocate should not practise as an attorney behind closed doors of his chambers because in so doing he or she is violating the law and being deceitful and dishonest to the court”.
Advocates, the judge said, should not delight in acting unethically hoping to “get away with it”.
He also points out that it is the responsibility of the law society to clear the legal profession of the rot.
Like Letsika, Justice Peete is concerned that while advocates continue to illegally collect fees from clients they are not being forced to contribute to the fidelity fund and maintain trust accounts.
Under the Legal Practioners Act attorneys pay monthly contributions to the fidelity fund, a fund that is used to compensate clients in case an attorney embezzles money he keeps on their behalf in his trust account.
Because advocates are not obligated to keep trust accounts and contribute to the fidelity fund they can still abuse clients’ monies and get away with it.
Justice Peete said the law is very clear that even if an advocate is awarded the King’s Counsel title they still have to take their instructions from attorneys.
Advocates that have the King’s Counsel title are expected to adhere to high ethical standards, the judge said.