What to pay candidate attorneys?
The Legal Practice Council distributed a notice dated 5 September 2023 referring to regulations published in Government Gazette on 11 August 2023 which calls legal practitioners to submit comments relating to proposed minimum remuneration for candidate legal practitioners. The deadline to submit comments via email to the Legal Practice Council is 11 September 2023.
LLB graduates cannot get admitted as attorneys in South Africa without serving vocational training (previously articles) for 1 or 2 years. Most LLB students graduate with owing student loans and are understandably eager to start their first jobs and earn good salaries. Currently many candidate attorneys are not paid a good entry level salary. Out of desperation to get admitted, some candidate attorneys even apply to serve vocational training for zero salary.
The statutory requirements for admission as attorney, large volumes of LLB graduates wanting to enter the profession at the same time, and other factors, currently create a scarcity of vocational training opportunities in the private sector.
Vocational training is not the same as a normal employee appointment for law firms, as law firms as employers of candidate attorneys must comply with additional statutory requirements in terms of the Legal Practice Act 28 of 2014. In particular, hiring a candidate legal practitioner fresh from varsity requires a senior attorney to commit professional time supervising and training the employee on legal matters. This means that hiring a candidate attorney also includes the risk of exposing a firm’s proprietary information and client matters to a candidate attorney, often without having a commitment from the candidate attorney to commit long term to the law firm. Law firms are very competitive and invest a lot of time to develop their processes, precedents and relationships with clients.
It is arguable whether vocational training should be regarded as an extension of studies, as it requires a lot of further self-study to start dealing with client matters, study leave and passing the admission exams. Notwithstanding this, many law firms manage to involve candidate legal practitioners on a basis which do not run at a total loss for the firm. Law firms should be encouraged to continue hiring candidate attorneys as strategies to grow their firms and help build the legal profession.
The proposed minimum remuneration for candidate attorneys up for debate is as follows:
Large and medium firms who can afford and are already paying candidate attorneys above this rate should not have a problem approving the above proposal or complying. However, in my view, this proposal only impacts law firm owners who are currently paying candidate attorneys less than the proposed amounts above. I propose the question why many law firms are currently paying candidate attorneys less than the proposed amounts should be investigated, understood and debated.
It is noted that Legal Aid South Africa (according to their website) hires around 300 candidate attorneys per year to serve vocational training. These candidate attorneys are apparently paid between R20 000 – R25 000 per month. The funds of Legal Aid are governed and allocated by the Legal Aid Board and Minister of Finance in terms of the Public Finance Management Act 29 of 1999. Generally, only large law firms can afford to compete with the same high salaries for candidate attorneys. Large firms further qualify for certain tax benefits to do so.
The above notice regarding the proposed minimum remuneration of candidate legal practitioners was published on the same date, namely 11 August 2023, the new Regulations 4A and 4B of the Legal Practice Act were published in the Government Gazette and came into force. These new Regulations require attorneys and candidate attorneys to perform minimum community service hours (free legal services) per annum. As about 48% of the adult population in South Africa is unemployed, the need to offer legal services as community service and Legal Aid are clear.
In my experience as former law firm owner (15+ years experience), and now professional business coach to attorneys (5+ years experience), many issues are raised by my law firm owner clients, in confidence, against hiring candidate attorneys. More than 85% of law firms in South Africa are sole practitioners. Many of these sole proprietors do not have financial support to grow their firms fast. They are surviving and growing their practices on a month-to-month basis, with little certainty of fixed sustainable income without setting good plans in place. They remain in start-up mode longer than other types of commercial businesses. This means that they may be slower to start hiring people. For a small law firm, hiring a new person often does not only involve committing to paying an extra salary. In many instances, it also involves immediate costs and additional monthly expenses relating to renting possible additional office space, furniture, equipment and software licenses. To become a good principal to a candidate attorney, an attorney must also have worked at least 3 years for their own account. In small firms like these, the owner often sacrifices own income to afford to hire someone, investing in the person, until the person can help increase the income of the firm. Also, hiring extra hands, means marketing and the work volume must also increase, to ensure vocational training is possible, as there can be no training without legal matters to work on.
I am not against setting a minimum remuneration requirement for vocational training for attorneys. However, my concerns with the proposed fixed minimum amounts are as follows:
- Affordability of small firms: Many law firms are willing to hiring candidate attorneys as they are willing to invest in talent and take the risk, but only if they will be able to afford it. Many small law firms regrettably are paying candidate attorneys less than proposed, as they cannot afford it. However, if they will not be able to afford the proposed required fixed remuneration of a candidate attorney, they may opt for hiring other support staff.
- Reduced vocational training opportunities for candidate attorneys: Most small firms start by hiring from entry level and seek people to grow with the firm and commit long term. Entry level positions, such as a candidate attorney appointment, also increasingly compete with options to hire students, temporary staff, virtual assistants or AI platforms. With more options, and less restrictions to hire such support, I suspect fewer firms may prioritise hiring candidate attorneys.
It is crucial that we strive to strike a balance between ensuring fair compensation for candidate attorneys and preserving opportunities for law graduates to serve vocational training.
I propose consideration to the following:
- Keeping to the requirements for minimum remuneration and leave as provided for in the Basic Conditions of Employment Act 75 of 1997 and taking disciplinary action against law firms which do not abide to these minimum provisions to protect exploitation of candidate attorneys as employees.
- Alternatively, adjusting the big pay gap between the salaries for candidate attorneys paid by Legal Aid and small private law firms by applying to the relevant minister/s for funding to be made available for (start-up and) small private law firms to afford paying candidate attorneys higher minimum salaries.
The goal of vocational training should be to ensure candidate attorneys become well-rounded attorneys and keep professional standards and ethics high. It is my observation that candidate attorneys who receive higher salaries during vocational training do not necessarily continue to improve their salaries fast further. It should further be borne in mind that receiving a higher salary as candidate attorney does not mean that vocational training is provided on a higher level.
I appreciate the opportunity to submit these comments and trust that this helps to bring attention to the concerns of small law firms. If there are options to participate in further brainstorming or debates relating to this aspect, or if it can be helpful to set up a direct discussion, please feel free to connect with me at email@example.com