2016 0208-Clinical Law Notes rev 3 PDF

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notes made during class session in Clinical Law...

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Clinical Law Venue: MTB L2 Lecturer: Dave Holness Course Outline See the hand-out. Need to do consultations with the clients and produce a case file. There will be a test as well as continuous assessment during the semester. Focus is in assisting the indigent, make them aware of their rights, and try to provide them with legal advice under the guidance of the lecturer and the attorneys who are linked to the Law Clinic. Information is required: how do you obtain those data; How do you write a letter to other attorneys; how do you deal with issues in an ethical manner. “Socratic Method:” Discussion and learning from one another-participate in the class, have an opinion and present it with argument based upon research Learning: 1. How to be a lawyer-take notes from a client, work on a client file 2. Working on behalf of the poor-take a look at pro bono work, civil legal aid, etc. 3. “law for life”-looking at things such as how you apply law in your daily living-e.g. cell phones-put them off when in court! There will be 3 consultations-have to consider being available during late afternoon. At that time you will have to obtain the information from the client and prepare case notes. Need to indicate when you are able to do the consultations and check the roster for dates that you are scheduled to work. Financial means test-have to ensure that the persons who seek legal aid from the clinic are in fact qualifying clients, that is, they are indigent-they earn less than a threshold amount otherwise we cannot provie them with help. Can use the book: “Clinical Law in South Africa”. –may also find information in the Lexis Nexus or Butterworths online stores 2016/02/15 Considering the Legal Practices Act [Read as well the input to portfolio committee in 2013 by Smuts SC)

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Brainstorm the following: (Note: in the test will ask questions on the stuff that we have done in class-) “in December 2016, you get the news that you’ve met the requirements for the LLB degree (graduatedt) Q: how do you go from Chatsworth to become an attorney—30 min) i.e. you now want to become admitted-what are the requirements? Issues: 1 seek company to serve articles-usually 2 years> Pay the fee.-need references that you are a ”fit & proper” person 2. enroll in SLP-optional- will reduce time for serving articles if done at same time 3. Sit Attorney’s Admission exams-may do so in one sitting or separate sittings -4 exams August/February. 4. Notify Law society – apply to court Source is the Attorneys Act Logical progression: a. Start off with reviewing the Attorney’s Act- that will guide you in what the requirements are as this governs admission b. Seek options such as to what choice to make-consider the implications of going to School for Legal Practice or straight into Articles c. Articles of Clerkship depend upon i. what the Law Society has decided, but are usually two years. ii. It may be one year if you choose to attend the School for Legal Practice simultaneously to engaging in Articles. iii. It can be 1,5 years if you attend School first then do articles for one year or vice versa iv. It may be 3 or 5 years if you start articles during the study years v. Must apply to Law Society for articles to be registered which also requires that you have to provide references as to your character. d. Sit the Attorney’s Admission Exams i. May do so at different times of the year in either February or August ii. May sit the exams at the same sitting or may elect to sit one exam at a time. iii. Note that you must have served articles for at least six months before being allowed to sit the exams. iv. If you have successfully completed the School for Legal Practice you may sit the exams immediately, even before serving articles. i. Paper one deals with practice, whilst paper two deals with drafting

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e. Have to make an ex parte application (notice of motion with affidavits)to the appropriate High Court to be admitted i. Have to “tick the boxes”-see if you are a fit and proper person ii. Must give notice to Law Society that you wish to be admitted iii. Need to be South African or Permanent Reside nt iv. Need to be above 21 years of age v. “not have a pecuniary interest” in any other businessvi. Note that “Articles” when done at anything other than a legal firm, is called “A Contract of Service” –then you need to state in your application that you have done such a contract rather than Articles. (note terminology) f. Main difference between the two (Articles of Clerkship and Contract of Service) is that in a law clinic the principal may have more than one or two clerks, but in a firm there is likely to be only one per attorney. NOTE the Difference!!!! School for Legal Practice-may attend fulltime during the day or attend night classes or via correspondence offered by UNISA but accredited by Law Society (this is longer!! 9 months) . 2016/02/22 Recap: Need to have both the procedure and the substance!! S-source-where do you find the information about how you find out-you will look in the Attorneys Act which will tell you (s 1-24) relating to admission. C. Choice-next decision is choice-do I go for two years or for one year(articles or school or legal practice)-hopw do I do this? O. Options- how do we attend school-cannot do it during the day as you are not able to do articles at the same time that you do something else-not allowed-so you have to do it either at night classes or via UNISA. T-time-school for legal practice-could mention that there must be satisfactory performance-must attend, must register, must pay the fees. A-Articles of Clerkship-usual form or if you work at a Law Clinic it becomes “Contract of Service”- biggest difference is the number of clerks that a principal is allowed to have (up to ten at Law clinic but no ore than 3 at attorney’s firm) Articles MUST be registered with the relevant Law Society in the area where you will be applying for the admission. Ensure that your principal signs within no more than 2 months of beginning articles or that time is lost. Right of appearance-question is not about this-it is about HOW you get admitted Principal-cannot become an attorney working as a clerk at the NPA!!!!-they cannot issue you with a contract of service-same goes for working at any other company but Page 3 of 30

you need to have a principal who qualifies-has been practicing for not less than 3 continuous years. If you follow the 2 year route (Articles)you still have to go to School for legal practice [SLP] for a period of not less than 25 days during the two years that you are serving articles. 10 days in June then 15 days in November. During these periods you do: a. High court matters b. Admin of estates/accounts during the last period Note that the final option for SLP is that at some large firms they may run these courses under the aegis of the law society on an in-house basis. The reason for having to attend the school is in order to get the exposure and relevant training in ALL of the areas that you require in order to prepare you for the writing of the Board Exams. Costs/Fees for School for Legal Practice is around R11 000 (???) Admission Exams February and August a. Need to register in time b. Write any number at one sitting (i.e in February or in August) or write a singe exam at one sitting c. Note that you may qualify for an oral if you do not pass outright (don’t go for this, rather try to pass properly) Serving Articles P-Preclusions-you may not have any pecumiary interest in anything else other than Articles Absence is restricted-may not be allowed to be away from the practice for more than a few days-attendance at SLP/PLT is NOT an absence Power Balance-it is all on the side of the attorney; if they state that you as a clerk have not met the requirements then you have major problems Maternity leave-your articles are suspended until you return to the practice (it is not in the Act) Time of Articles-may be 2/1,5/1 years (no school for legal practice except for the 25 days ) Application-you have to go through the proper process-it is an “Ex-Parte application” brought on your behalf by another attorney, to the relevant provincial High court, on sufficient notice to the relevant provincial office of the law society for admission. The Law Society will give you a certificate to say that you have met the requirements for admission. Page 4 of 30

Court-applications are brought to Motion Court-Judge on duty will decide and if accepted, will take the oath. Requirements• greater than 21 years old • South African or permanent resident • Must pass exams • Must have done articles/contract of service • Must have done PLT • Meet academic requirement-typically LLB • Must have done articles • Must be a “fit and proper” person Supervision/ It is not allowed for your principal not to be present in the office where you are serving articles. If the principal is away, then someone else is able to stand in for your principal. De jure and de facto principal (one appointed in law, the other is a qualified attorney in the same firm that is able to oversee your work Cession Cession:-you start your articles at one firm, then move across to another firm-the articles should be formally ceded to the new firm so that you are able to serve continuously Termination That is when you actually give up the articles completely. Cease to be an articled clerk. Right to appear in Regional Court-you are able to appear if you are doing two years articles and only in your second year.

On 16th May we will do the actual consultation. We start at 15h30- with the induction. Then we go until 17h45 with the client by seeking information and trying to complete the relevant documentation properly.

There are rights which are limited by “progressive utilization of resources” Right to legal aid is limited only by section 36-the clause on limitations of rights. Page 5 of 30

According to Holness: 6. LIMITATIONS ON THE “RIGHT” TO CIVIL LEGAL AID An interpretation of section 34 would be incomplete without consideration of constitutional limitations on the right. Section 34 does not contain an internal limitation such as the ‘progressive realisation’ caveats in the sections relating to social and economic rights. It therefore falls upon section 36 to establish whether the rights in section 34 may be validly limited. For example, the Legal Aid Act80 provides a law of general application (along with the Legal Aid Guide) whereby current resources are focused on criminal as opposed to civil legal aid. However, Budlender uses the jurisprudence of the Canadian courts to argue that a budgetary consideration alone should not be used to limit a right in the Bill of Rights, unless of course the section provides for a financial limitation.81 He also argues that it is inherent in the nature of constitutional rights for those to have a higher priority in the distribution of the available resources than policies or programmes which are not constitutional rights

Read this section for exam Court is acting cautiously-mentions in the certification of the constitution that legal aid is an area that may have budgetary implications, but steers a course away from treading on the toes of the executive or parliament in terms of trying to dictate what must be one in terms of providing funding for legal aid (in our specific case for the purpose of civil litigation) Is it reasonable and justified NOT to provide legal aid in civil litigation???-EXAM Is it a constitutionally justifiable –to limit the right to such legal aid Look for example to the majority of the people who earn enough to NOT qualify, but do not have enough to pay for legal aid-they can afford only some legal aid-hence the argument might be made that it is justified on the grounds that they have more opportunity to get access than someone who has much less financial means…. Look for example at what has happened in the labour arena, and then look at where else we could consider –read this article and comment critically. NOTE: The question will require that you bring into the answer other aspects, not just constitutional right to legal aid, but for example also the issue of pro bono work and the use of paralegals to provide such support in the legal aid field.

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Section 29 –Community Service It covers both community service and pro bono work. Focus is post study community service-read about this. Too many poor people in SA-wage and income gap is too big-cannot afford private lawyers, state funded lawyers are not able to cope-legal aid (state funded) is doing most of its work in criminal context-need in civil context is great-how do you fill the gap. Can use students, but they need supervision which again requires some funding however there is an opportunity to use graduates to do such work which is possibly better way. Largely want to have post study community service to fill the need for poor people to have legal representation. Positives according to Holness is that by having such graduates properly trained doing such work means that you have multiplied the effect-similarly a legal secretary with several years in a company could be used to good effect as they have the necessary knowledge and experience to perform many tasks which are not at a high or complex level. In the terms of post study community service is that if a para legal can do work which is of a such relative difficulty, is that someone with a degree in law is more likely to be able to handle such tasks. There is a danger that persons who are nt properly trained may need better supervisionthen there is the second risk of having logistics problems-where will a person doing such community service be posted? These are issues that have not yet been dealt with in detail-issues that must be ironed out before we have this compulsory post study service. Another key element of the post study community service is the order-when should this service commence-before or after the articles? What about quality of the service provided? There has to be some system in place to ensure that what is provided is at a high level-the poor deserve good service just as much as the rest of the folk. We compare the current situation as a comparative study in how this post study community service will work…for example in the medical field. We need an analogy with a comparable country to South Africa or with a comparable legal system. It is the ability to fill the gaps that are lacking in your studies-this is another benefit of having such community service Page 7 of 30

Improving access to justice by post study community service. Most people cannot afford legal representation, but we are focusing on the really poor. Experience of making a meaningful contribution to society through your work is something that one has to consider as a benefit of doing such community service. Look at the considerations not favouring community service, and compare this with the reasons for doing community service-example it is coercive in nature, versus it gives you a meaningful contribution to society etc., etc. Lack of social, administrative support is counterproductive 2016/10/24 Paralegals Community based paralegal (CBP) is someone who assists people in a rural area of other low income community for no fee. They assist people with fairly simple advice or legal assistance.-in simple cases (such as for example the UIF claim) Commercial paralegal is different to the community based paralegal-thee are people who assist with legal research, usually have fairly good experience and sometimes may even have completed a legal degree but have not done articles. We are focusing on community based paralegals in terms of the “social security net” where indigent persons are being assisted for free. Constitutional justification-section 34 and section 35-estab;ishes the need for civil legal aid because of the poverty gap. Criticism is that paralegals have mostly not undergone the kinds of training required of the legal profession. There is then an argument made that attorneys, undergoing their pro bono contribution could easily act as supervision of suchCBP paralegals in the rural areas. CBP’s could also bring work to the law clinics as part of a community assistance programme. If not working for an NGO CBP’s are working for a “community advice office”. This is then a form of symbiotic relationship-the pro bono lawyer suprevisoes the CBP work, and then the CBP brings work to the law clinic or the pro bono lawyer (who thus is in a position to satisfy his mandatory requirements )

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According to Holness, CBP’s fit together nicely with both the law clinic approach and the pro bono work which lawyers are supposed to engage in.-He also sees a tie-in with post-study community serve ( as and when this commences). Note=there is a reluctance if not animosity of the legal profession against the CBP 1. Lack of training/education/knowledge 2. Lack of regulation.. they do not fall under the law society umbrella. Attorneys are disciplined by the law society if they do not provide alternative service to their clients (for example when on leave)-The argument then goes along the lines that CBP’s do not have this kind of regulatory control. This of course hides issues of bias, and fear of opening the profession to competition (often from cheaper alternatives) Remuneration of CBP’s Define what a CBP is-argument is that they should not earn an income from the client, but should be paid by the NGO or advice centre. Some are of course outright volunteers, however this is not an ideal situation as people need to sustain themselves. They are in general not remunerated at very high rates-rather they in general earn enough to maintain a modest household. It should be noted that CBP’s were referenced in the Legal Practice Bill until late 2000’sthen it disappeared because of adverse responses from the legal fraternity. There has been an undertaking made that regulatory framework will be developed in response to the claims that they are not under the same kind of regulations as the legal profession that ensures a set standard is maintained. We should, in corollary, be careful of “overregulating” this adjunct to the legal profession Current roles of CBP-there are a variety of roles in which they act, and the kind of training that they have received, but the focus has primarily been at the “low end” of complexity of the legal framework-taking statements, refrerring people to for example law clinic, assisting with UIF, etc. Should there perhaps be some kind of competency examination before CBP’s are “let loose”? Advantage in SA is that the CBP’s often speak the local language which is not necessarily the case of the average (white?) attorney-understanding the cultural issues, having knowledge of the community and its needs and so on. Government has set in place through the department of education a survey to determine whether the LlB is serving its purpose in educating lawyers. Page 9 of 30

Read about the arguments for and against the regulation of the CBP-costs (disbursements) – For-legal aid is more readily obtained by going to a CBP located in the rural area of in low income areas via advice offices-more accessible. There are gaps in what is being provided-legal firms for example very rarely work on UIF or COIDA matters. The running of community information sessions for low income persons in order for people to be made aware of their rights-street law focuses on this aspect, however the same could be said of using either the pro bono work and the PSCS, CBP as base for performing such information dissemination work.

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Consultation Skills A significant omission ... is any discussion of the correlation between clinical law and social justice issues in the South African context. Students are regularly exposed to the plight of poor and marginalized communities in their clinical law practice. That being the case, clinical programmes need to help students develop an understanding of the clients' language, ethnic, cultural, gender and socioeconomic backgrounds in order to learn the life skills attendant on servicing such constituencies. Failure to...