Eckhard Rösemann v The General Council of the Bar of South Africa

The appellant, Rösemann, was admitted as an advocate in 1997. Instead of joining the Cape Society of Advocates, he became a member of the Independent Association of Advocates of South Africa and practiced from an office in Bellville. In 1999, the respondent brought an application to strike his name off the roll for accepting work directly from clients without an attorney's intervention. The matter was settled by consent order by King JP, prohibiting the appellant from accepting instructions directly from the public or undertaking work normally performed by an attorney without being instructed by an attorney. During 2000, complaints were received about the appellant's conduct in magistrates' court proceedings. The evidence showed that he: (a) signed two summonses initiating proceedings in magistrates' courts bearing his own name, address and in one case telephone number; (b) signed two notices of motion in magistrates' courts which did not reflect an attorney's name and address but carried his own details; (c) accepted instructions from an attorney in Pretoria to perform all administrative and preparatory work normally done by an attorney for clients in Cape Town. The instructing attorney gave broad instructions such as "do everything to bring the matter to finality" and to "issue summons if necessary" and handle the entire litigation.

• Whether an advocate may accept instructions from an attorney to perform all administrative and preparatory work normally performed by an attorney
• Whether an advocate may sign summonses and notices of motion in magistrates' court proceedings
• Whether an advocate may furnish his own address for service of process
• The proper interpretation and scope of the referral rule in the divided legal profession
• Whether professional conduct rules limiting advocates' practice constitute an unconstitutional limitation on the right to practice a profession under section 22 of the Constitution
• Whether the magistrates' court rules and Attorneys Act authorize advocates to perform the work of attorneys

The appeal was dismissed with costs, including costs of the application for condonation (unopposed basis) and the application to adduce new evidence. The two-month suspension from practice imposed by the court a quo was confirmed, but varied to commence on 1 November 2003 (instead of the original date).

1. An advocate may not accept instructions from an attorney to perform all administrative and preparatory work normally performed by an attorney. Such instructions are not "proper instructions" within the meaning of professional rules. 2. An instruction by an attorney to an advocate is not proper if it: (a) is not specific in identifying the work to be carried out; (b) confers general discretion to litigate on behalf of the client; (c) expressly or impliedly authorizes the advocate to bypass the attorney or run litigation without the particular participation of the attorney; or (d) purports to authorize functions not proper to an advocate or properly the function of an attorney. 3. Advocates may not sign summonses, pleadings, or notices of motion in magistrates' court proceedings, as the magistrates' court rules require such documents to be signed by the party or the attorney. This follows from Society of Advocates of Natal v De Freitas. 4. An advocate may not furnish his own address for service of process in litigation, as this is a function of the instructing attorney. 5. The referral system and division between advocates and attorneys serves important public policy objectives and does not constitute an arbitrary or irrational limitation on the constitutional right to practice a profession under section 22 of the Constitution. 6. Ignorance by an advocate that he cannot sign summonses and notices of motion itself constitutes professional misconduct, particularly where clear judicial authority exists on the point.

Heher JA made extensive observations about the benefits of the divided profession from the client's perspective, identifying six key advantages: (1) encouragement of independence of thought and action, and candour and objectivity in advice; (2) avoidance of emotional involvement or friction with the client which can undermine professional service; (3) clear division of responsibility allowing the advocate to serve expertly without conflict with the instructing attorney; (4) avoidance of financial involvement with the client and disputes about fees; (5) receipt of instructions filtered through the attorney for relevance and directed to an advocate skilled in the particular field; (6) effective, efficient and complementary pooling of skills where the client benefits by more than the sum of the parts. The Court declined to determine whether in pure financial terms the division benefits or prejudices clients, noting that no evidence was presented and that public interest cannot be determined by cost alone but must be assessed on an overall conspectus of relevant factors. Streicher JA observed that one of the objects of the referral practice is to ensure that administrative and preparatory work in litigation is handled by attorneys who are trained and organized to do so, thereby enabling advocates to concentrate their skills on the craft of forensic practice, and that this serves the public interest.

This case is significant in South African law for comprehensively defining the boundaries between the work of advocates and attorneys in the divided legal profession. It provides authoritative guidance on what constitutes proper instructions to an advocate and confirms that advocates may not sign summonses, pleadings or notices of motion in magistrates' court proceedings. The judgment articulates the policy rationale for the referral system and the division of the professions, identifying specific benefits to clients including independence and objectivity of advocates, avoidance of conflicts, clear responsibility division, and complementary pooling of skills. It confirms that professional practice rules are not an unconstitutional limitation on the right to practice a profession under section 22 of the Constitution where they serve rational policy objectives. The case serves as an important precedent for disciplinary proceedings against advocates who overstep professional boundaries.