William Saunderson-Meyer
William Saunderson-Meyer

How can you avoid a ‘corked’ lawyer?

Ordinary old people do ordinary old jobs. Doctors, lawyers, nurses, accountants, teachers and even – God help us – journalists and estate agents, “follow professions”. The very phrase has intimations of responding to a religious calling.

These aren’t the famous “wukkers” of South African trades’ parlance. Elevated above the herd, the manner in which these men and women toil resonates in the language we use. We accord the accolade of being “professional” to someone who is competent, effective, respected and respectable.

Since they are obviously superior to common nine-to-fivers, professionals are great believers in self-rule. Like ye olde Knights Templar, they don’t take kindly to being policed by their social inferiors. Professionals have self-authored codes of conduct, charters of commitment, declarations of ethics and oaths of integrity.

Astonishingly, society largely buys this self-serving gumph. The professions are generally allowed to regulate and discipline themselves, with the law interfering only in exceptional circumstances.

Given collegial ties and a comcomitant inclination towards compromise – the “there but for the grace of God goes I” phenomenon – it doesn’t work too well for society when peers police one another. An example is the media, where the limp-wristed Press Ombud only discovered some backbone upon the threat of a legislated media tribunal.

This week the Auditor-General reported that R25-billion of the provincial fiscuses went lost, stolen or strayed last year. The entire public service, national and provincial, employs 1.3-million people.

Also this week, the Board of Healthcare Funders revealed that that medical aid schemes are being defrauded to the tune R22-bilionn a year. There are approximately 27 500 doctors in SA and virtually all of the fraud was initiated or facilitated by dishonest medical practitioners. You know, the ones who take the Hippocratic Oath upon graduation, swearing by Apollo to avoid “intentional injustice and all mischief”.

Of course, the Health Professions Council of SA (HPCSA) promises a vigorous disciplinary response. No doubt much like what happened in 2012, when it found all of 19 doctors guilty of medical aid fraud, the penalty never being more than a fine, or a wholly suspended suspension.

Only one, a Dr SJ van Zyl, had to face criminal charges in addition to the disciplinary charges. He committed 1 947 counts of fraud amounting to some R400 000. The court fined him R200 000 and imposed a suspended jail sentence. The HPCSA gave him a wholly suspended five-year suspension.

Try getting away with that, if you are a wukker rather than a professional. Perhaps in SA we should call it the Hypocritic Oath?

To its credit, though, the HPCSA publishes its guilty verdicts online, wrist-taps though they might be, and names the offender. The legal profession, in comparison, is a much fiercer and more effective trade union.

Infused, no doubt, by the ancient legal precept that justice should be seen to be done, SA’s law societies – there are four regional ones and a national one – refuse to name members found guilty of disciplinary offences, except for those struck from the role or suspended. This is no laudable concession to public accountability. Since suspensions and strikings are formal court proceedings, open to public scrutiny, the law societies have no option in this regard.

The law societies, otherwise such staunch defenders of transparency and the public right to know, argue that a disciplinary hearing is of concern only to the complainant and member. Only two societies even condescended to respond to this journalist’s requests for information on their bad eggs.

KwaZulu-Natal played the stalling game, something lawyers are adept at. Initially it said it couldn’t provide the information because the clerk was on maternity leave. Then it said it couldn’t provide it without the authorisation of a full executive meeting. Eventually it revealed that in 2012 there were 11 law society inquiries, with four attorneys struck off the role. Another 29 were suspended for failing to lodge audit reports or fidelity guarantee certificates.

Free State was refreshingly and immediately forthcoming: 25 attorneys were fined for offences such as failing to appear in court, not executing mandates, or not answering correspondence. These drew fines of around R2 000 a time, infuriating and inconveniencing though these infractions no doubt were for the clients involved. In contrast, mere failure to respond timeously to a letter from the law society drew a standard R6 000 fine.

Neither society would name offenders. So any member of the public who harbours hopes of checking the competence of the attorney they need to engage, can forget it. It’s a blind tasting and if you get a corked “professional”, tough luck. Buy another one.

The Legal Practice Bill that the law profession is currenttly fighting on entirely legitimate fears that it will erode practitioner independence, provides for an ombud. The profession’s opposition on the Bill’s controversial clauses would be far more credible if it embraced not only the idea of an independent ombud, but insisted that such ombud hearings were open to the public and the judgments were published online.

Tags: , , , ,

  • Just trust me, I’m a lawyer…
    • Honest Estate Agent

      “Trust me I’m a doctor” – people beleive what they want to, they have very little sense of judging someone on their integrity.

      “Its harder to crack prejudice than an atom” – Albert Einstein.

    • The Creator

      noseWeek has its flaws, but it’s probably the go-to publication on South African lawyerly corruption; the kinds of lawyers who charge for 28 hours of work a day . . .

    • Charlotte

      What happened to the judge who opened a cork too many and drunk as a lord, hurling racial insults, drove into a wall?
      There are so many cases of negligence, corruption, misbehaviour, and behaviour unfitting to the professions (he’s a judge!!), one loses track …
      Is he off on sick leave with full pay? Or on permanenent leave with full pay? Suspended with full pay? Sentenced and appealing his sentence with full pay?
      – Or reinstated with even more pay?
      Whatever, he will face no equitable consequences …

      Do we still address him as ‘your honour’?
      Ethics, discipline, honour? You’re kidding!

      And what must surely be the ultimate irony … Jacob Zuma is planning to set up a department to teach ANC politicians about ethics!

    • john patson

      Journalists only started wanting to be “professionals” in the US when they realised the tax advantages were so much better than for “craftsmen” their previous classification.
      Similarly surgeons used to insist on being called “Mister” and not “Doctor” to distinguish the fact that they used their hands, knives and saws with craft rather than relying on the guesswork and book learning of the “Doctors”.
      Similarly barristers (advocates) insist on keeping an “apprenticeship” route open rather than only taking law graduates, leaving the book work to tongue-tied solicitors (attorneys).
      The best journalists still work on their craft (which is different from art), and a bit of craft will see the names of crooked lawyers safely in print….

    • Littlebobpete

      Self regulation does not work, never did, never will.

      Especially with lawyers and accountants. It would have been interesting to see what would have happend to Arthur Anderson if they had been left to the devices of their own after Enron. Both these professions used to be fairly nobel, like Bank managers, but no longer. Lawyers belong in the same team as estate agents, used car salesmen, pimps and drug dealers……..

    • Skerminkel

      Self-regulation is like capitalism: The worst possible system, except for all the alternatives.

    • ConCision

      _________________________________________________________________

      A Crop of Crooks
      or
      Wot a crock!
      ==================

      There was a crooked lawyer and he walked a crooked mile
      He met a crooked doctor against a crooked stile
      They knew an ANC official so they always wore a smile
      Because with all their dirty money, they were cleaning up in style

      And if the law caught up with them and they were sent to court
      They knew a crooked someone who could easily be bought
      And if perchance a politician were ever brought to book
      A crooked lawyer and crooked judge will say he’s not a crook..

      In fact, if any member of the ANC ever does land up in jail
      A crooked doctor saying he’s ‘terminal’ is available without fail
      And though the ‘death-bed certificate’ may take a little while
      The crooked ‘patient’ soon plays golf again and lives it up in style.

    • nguni

      I disagree, self-regulation works in the professions as long as high standards are maintained. The HPCSA’s predecessor the SA medical council was known for this, hence the top level reputation SA medicine had pre-1994. I’m sure lawyers were also held much more accountable back then. None of this revolting self-advertising and ambulance-chasing that one sees nowdays, much of it copied from the USA. Judges were way beyond scandals, being the pick of the SA legal profession.

    • COnfused

      Must say I am a bit confuse about the supposed medical aid fraud. First off the total industry is worth about R 80 billion per year. So the suggestion is then that a quater of money gets stolen. It sounds a bit much
      A simple calculation of 27 000 odd doctors into R 22 billion is just over R 800 000 per doctor.
      Maybe the person who made these calculations made a small whoopsy with the calculator. Maybe he does not really understand what he is doing and got confused. Maybe he can publish the detailed analysis online so that we can all have a look at where the money went.

    • Dr B

      @ COnfused.
      Great comment! Great auditing skills!
      Anybody care to answer with simple mathematics rather than inspiring sentiment-based moral panic?
      If “virtually all of the fraud was initiated or facilitated by dishonest medical practitioners”
      then if all practitioners were dishonest they stole R800k. if 50% were dishonest; they made an average of R1,6M.
      Kindly publish this report and let’s have a look.

    • Rodney

      As always, the truth of a matter is not complete until you hear the other side.

      “It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers.” ― Charles Dickens The Old Curiosity Shop

      “Politicians were mostly people who’d had too little morals and ethics to stay lawyers.” ― George RR Martin, Ace in the Hole