READING court judgments can be a very depressing business; among the worst are decisions about lawyers who have ripped off clients or something similar.
Take a recent judgment by the high court in Pretoria concerning an application by the Law Society of the Northern Provinces to strike off attorney Oniccah Nkoe who previously ran her own practice in Bronkhorstspruit. She closed her practice under inauspicious – even suspicious – circumstances to take up employment as a legal advisor with the Elias Motsoaledi Municipality in Grobersdal.
When the law society brought an action to have her struck from the roll she argued that the case should be thrown out since she was no longer practising as an attorney.
The law society responded that she was still enrolled and admitted as an attorney as the roll includes non-practising attorneys. The high court agreed she was still a member of the law society so the fact that she wasn’t in private practice any longer was immaterial to the application.
Why was the law society unhappy with her? She didn’t cooperate with them when they wanted to inspect her records and didn’t give the law society the files they asked for. When she stopped private practice she failed to provide a closing audit report.
It was alleged that she mishandled trust money: when a client was awarded R594 000 by the Road Accident Fund it took two years for her to pay over any money, and when she did she gave the client R142 000, keeping the balance for herself. She justified this by saying it was to cover her costs, though the court added that ‘it was not clear how she arrived at that’.
Acting JudgeN S Masango said the conduct complained of by the law society was ‘of a serious nature as the dignity and the integrity of the profession is being compromised’ and struck her from the roll.
As far as it goes, this is the right outcome. But it raises a number of other issues.
What has happened about Nkoe’s client? Will she get away with keeping R325 493.20? What kind of oversight is there in a case like this? If her decision to keep most of the money awarded by the Road Accident Fund partly motivated the law society’s application to have her struck from the roll, why doesn’t the law society also explain to the public what else is being done to rectify the situation? Moreover it’s intolerable that someone with such a record has been able to take a position as a civil servant giving legal advice – can you believe it? – to a municipality.
The court merely struck her from the roll. Why didn’t the judge ask what was being done about Nkoe’s failure to hand over the client’s money, or question the law society about whether charges had been laid?
When law societies – and, frankly, sometimes the courts – fail to speak or act robustly on misconduct by legal professionals it looks like closing ranks or not caring.
And when you add to the mix the fact that the law societies are incredibly secretive about disciplinary inquiries involving their members you get a situation in which the profession has created a whip for its own back.
For that secretive behaviour fails to meet with the standards of transparency demanded in a modern constitutional democracy – a shortcoming eagerly seized on by the deputy minister of justice, John Jeffreys, as further justification of the government’s controversial Legal Practice Bill. Speaking in KwaZulu-Natal this week he quoted investigations by journalist William Saunderson-Meyer on the refusal of the law societies to provide information about action, short of striking off, taken against transgressing lawyers.
Jeffreys made much of the law societies’ secret internal disciplinary procedures and general lack of transparency as he lobbied for the new Bill. Of course the question of disciplinary proceedings against professionals is a complex matter: there have been cases for example where the reputation of a doctor has not survived a public hearing, even if the doctor was cleared of misconduct. But the complete blackout on information about erring members imposed by the legal profession is unacceptable.
Lawyers, with their intimate knowledge and understanding of the constitution, should lead by implementing its values. So it’s a shock each time the public is reminded that the profession has very little transparency about its own affairs, and that it’s governed by an approach at least as rigid as the state’s proposed, much criticised secrecy law.