In order for legal assistance to be effective, it must be carried out independently.{{1}} To this end, international law establishes safeguards aimed at ensuring the independence of the individual lawyer, as well as the profession as a whole.
The UN Basic Principles recognise that lawyers are entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training, and protect their professional integrity. The executive body of the professional associations are to be elected by its members and are to exercise its functions without external interference.{{2}} The UN Special Rapporteur on the independence of judges and lawyers has also underscored the “importance of an organized legal profession, including an independent and self-regulated association, to safeguard the professional interests of lawyers”.{{3}}
Lawyers’ professional organizations’ functions in ensuring the profession’s independence include, among other things, maintaining the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession, as well as protecting the intellectual and economic independence of the profession; defending the role of lawyers in society; promoting equal access of the public to the system of justice; promoting and supporting law reform; promoting a high standard of legal education as a prerequisite for entry into the profession, while ensuring equal access for all persons having the requisite professional competence; and promoting the welfare of the members of the profession.{{4}}
International standards place a duty on the authorities of the State to abstain from interfering in the establishment and work of professional associations of lawyers. The Human Rights Committee has raised concern about requirements for the compulsory affiliation of lawyers to a State-controlled association and the need for authorization by the Executive as prerequisites for the exercise by lawyers of the legal profession.{{5}}
International standards also underscore that associations of lawyers must, however, cooperate with governments to ensure effective and equal access to legal services, and to ensure that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics.{{6}}
Lawyers’ associations are created to safeguard the professional interests of lawyers and to protect and strengthen the independence of the legal profession. As associations of essential agents in the administration of justice, they also have a key role in supporting law and justice sector reform. They should be able to engage in activities, and to initiate and participate in public discussion on the substance, interpretation and application of existing and proposed legislation. They should do so in a manner that is consistent with the protection and promotion of human rights, upholding the dignity of the legal profession and the legal system.{{7}}
In Swaziland, the Law Society is established under the 1964 Legal Practitioners Act.{{8}} The law requires that that every person admitted and enrolled as an advocate or attorney is a member of the Law Society.{{9}} It has a Council consisting of a President, Vice-President, Secretary, Treasurer and up to four other persons, all elected annually by the general annual meeting, plus a law officer{{10}} who is admitted and enrolled as a legal practitioner and appointed by the Minister responsible for justice.{{11}} The Council is vested with the management and control of the Law Society and may exercise the Law Society’s competences, except for those that are expressly required to be exercised by the Society in general meeting.{{12}}
The Law Society’s objects and functions – in general terms – are to regulate the legal profession, to uphold and improve the standards of professional conduct and qualifications and provide for the effective control thereof, to promote and represent the profession’s interests, and to initiate and promote reforms and improvements to the administration of justice.{{13}} The Law Society’s Council can publish rulings concerning the standards of conduct to which it expects the members to adhere and its bye-laws set out a non-exhaustive list of conduct or behaviour deemed “unprofessional or dishonourable or unworthy”.{{14}} The Law Society’s Council also has the competence to assess, at the request of any person, the fees payable to an attorney. The Council, or a committee it establishes for this purpose, reviews the fees and allows all those appearing reasonable, with a view to affording the attorney reasonable and adequate remuneration.{{15}}
[[1]]1. UN Basic Principles on the Role of Lawyers, [expand title=”Preamble para 9.”]
Whereas adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession,
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[[2]]2. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 24;”]
Lawyers shall be entitled to form and join self‐governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.
[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article I(l);”]
Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional association shall be elected by its members and shall exercise its functions without external interference.
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 97;”]
There may be established in each jurisdiction one or more independent and self-governing associations of lawyers recognized in law, whose council or other executive body shall be freely elected by all the members without interference of any kind by any other body or person. This shall be without prejudice to their right to form or join in addition other professional associations of lawyers and jurists.
[/expand] International Bar Association (IBA), Standards for the Independence of the Legal Profession (1990), [expand title=”Standard 17.”]
There shall be established in each jurisdiction one or more independent self-governing associations of lawyers recognised in law, whose council or other executive body shall be freely elected by all the members without interference of any kind by any other body or person. This shall be without prejudice to their right to form or join in addition other professional associations of lawyers and jurists.
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[[3]]3. Gabriela Knaul, Special Rapporteur on the Independence of Judges and Lawyers, Report on missions to Mozambique, UN Doc. A/HRC/17/30/Add.2 (2011), [expand title=”para 79.”]
The Special Rapporteur welcomes these developments, which are in accordance with international standards.16 She wishes to underscore the importance of an organized legal profession, including an independent and self-regulated association to safeguard the professional interests of lawyers, while protecting and strengthening ethics and the integrity and independence of the legal profession. She invites the international and regional community to explore ways of cooperating with OAM so that it can implement its Strategic Plan 2009-2014 and continue performing its important functions.
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[[4]]4. See International Bar Association (IBA), Standards for the Independence of the Legal Profession (1990), [expand title=”Standard 18.”]
The functions of the appropriate lawyers’ association in ensuring the independence of the legal profession shall be inter alia:
a) to promote and uphold the cause of justice, without fear or favour;
b) to maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession; and to protect the intellectual and economic independence of the lawyer from his or her client;
c) to defend the role of lawyers in society and preserve the independence of the profession;
d) to protect and defend the dignity and independence of the judiciary;
e) to promote free and equal access of the public to the system of justice, including the provision of legal aid and advice;
f) to promote the right of everyone to a prompt, fair and public hearing before a competent, independent and impartial tribunal and in accordance with proper and fair procedures in all matters;
g) to promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation;
h) to promote a high standard of legal education as a prerequisite for entry into the profession and the continuing education of lawyers and to educate the public regarding the role of a Lawyers’ Association;
i) to ensure that there is free access to the profession for all persons having the requisite professional competence, without discrimination of any kind, and to give assistance to new entrants into the profession;
j) to promote the welfare of members of the profession and the rendering of assistance to members of their families in appropriate cases;
k) to affiliate with and participate in the activities of international organisations of lawyers.
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[[5]]5. Human Rights Committee, Concluding Observations of the Human Rights Committee on Belarus, UN Doc. CCPR/C/79/Add.86 (1997), [expand title=”para 14.”]
The Committee also notes with concern the adoption of the Presidential Decree on the Activities of Lawyers and Notaries of 3 May 1997, which gives competence to the Ministry of Justice for licensing lawyers and obliges them, in order to be able to practise, to be members of a centralized Collegium controlled by the Ministry, thus undermining the independence of lawyers. In this regard:
The Committee stresses that the independence of the judiciary and the legal profession is essential for a sound administration of justice and for the maintenance of democracy and the rule of law. The Committee urges the State party to take all appropriate measures, including review of the Constitution and the laws, in order to ensure that judges and lawyers are independent of any political or other external pressure. The attention of the State party is drawn in this connection to the 1985 Basic Principles on the Independence of the Judiciary and the 1990 Basic Principles on the Role of Lawyers, adopted by the United Nations General Assembly.
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[[6]]6. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 25.”]
Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics.
[/expand] For a more elaborate list on the functions of lawyers’ associations, see International Bar Association (IBA), Standards for the Independence of the Legal Profession (1990), [expand title=”Standard 18;”]
The functions of the appropriate lawyers’ association in ensuring the independence of the legal profession shall be inter alia:
a) to promote and uphold the cause of justice, without fear or favour;
b) to maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession; and to protect the intellectual and economic independence of the lawyer from his or her client;
c) to defend the role of lawyers in society and preserve the independence of the profession;
d) to protect and defend the dignity and independence of the judiciary;
e) to promote free and equal access of the public to the system of justice, including the provision of legal aid and advice;
f) to promote the right of everyone to a prompt, fair and public hearing before a competent, independent and impartial tribunal and in accordance with proper and fair procedures in all matters;
g) to promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation;
h) to promote a high standard of legal education as a prerequisite for entry into the profession and the continuing education of lawyers and to educate the public regarding the role of a Lawyers’ Association;
i) to ensure that there is free access to the profession for all persons having the requisite professional competence, without discrimination of any kind, and to give assistance to new entrants into the profession;
j) to promote the welfare of members of the profession and the rendering of assistance to members of their families in appropriate cases;
k) to affiliate with and participate in the activities of international organisations of lawyers.
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 99.”]
The functions of a Bar Association in ensuring the independence of the legal professional shall be inter alia:
(a) To promote and uphold the cause of justice, without fear or favour;
(b) To maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession;
(c) To defend the role of lawyers in society and preserve the independence of the profession;
(d) To protect and defend the dignity and independence of the judiciary;
(e) To promote the free and equal access of the public to the system of justice, including the provision of legal aid and advice;
(f) To promote the right of everyone to a fair and public hearing before a competent, independent and impartial tribunal and in accordance with proper procedures in all such proceedings;
(g) To promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation;
(h) To promote a high standard of legal education as a prerequisite for entry into the profession;
(i) To ensure that there is free access to the profession for all persons having the requisite professional competence and good character, without discrimination of any kind, and to giver assistance to new entrants into the profession;
(j) To promote the welfare of members of the profession and render assistance to a member of his family in appropriate cases;
(k) To affiliate with and participate in the activities of international organizations of lawyers.
[/expand] Also see General Assembly, United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UN Doc. A/RES/67/187 (2012), [expand title=”Principle 10-11.”]
Principle 10. Equity in access to legal aid.
Special measures should be taken to ensure meaningful access to legal aid for women, children and groups with special needs, including, but not limited to, the elderly, minorities, persons with disabilities, persons with mental illnesses, persons living with HIV and other serious contagious diseases, drug users, indigenous and aboriginal people, stateless persons, asylum seekers, foreign citizens, migrants and migrant workers, refugees and internally displaced persons. Such measures should address the special needs of those groups, including gender‑sensitive and age‑appropriate measures.States should also ensure that legal aid is provided to persons living in rural, remote and economically and socially disadvantaged areas and to persons who are members of economically and socially disadvantaged groups.
Principle 11. Legal aid in the best interests of the child.
In all legal aid decisions affecting children, the best interests of the child should be the primary consideration. Legal aid provided to children should be prioritized, in the best interests of the child, and be accessible, age‑appropriate, multidisciplinary, effective and responsive to the specific legal and social needs of children.
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[[7]]7. UN Basic Principles on the Role of Lawyers, [expand title=”Principles 12″]
Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.
[/expand] and [expand title=”23;”]
Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 99(g);”]
The functions of a Bar Association in ensuring the independence of the legal professional shall be inter alia: …
(g) To promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation;
[/expand] International Bar Association (IBA), Standards for the Independence of the Legal Profession (1990), [expand title=”Standard 18.”]
The functions of the appropriate lawyers’ association in ensuring the independence of the legal profession shall be inter alia:
a) to promote and uphold the cause of justice, without fear or favour;
b) to maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession; and to protect the intellectual and economic independence of the lawyer from his or her client;
c) to defend the role of lawyers in society and preserve the independence of the profession;
d) to protect and defend the dignity and independence of the judiciary;
e) to promote free and equal access of the public to the system of justice, including the provision of legal aid and advice;
f) to promote the right of everyone to a prompt, fair and public hearing before a competent, independent and impartial tribunal and in accordance with proper and fair procedures in all matters;
g) to promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation;
h) to promote a high standard of legal education as a prerequisite for entry into the profession and the continuing education of lawyers and to educate the public regarding the role of a Lawyers’ Association;
i) to ensure that there is free access to the profession for all persons having the requisite professional competence, without discrimination of any kind, and to give assistance to new entrants into the profession;
j) to promote the welfare of members of the profession and the rendering of assistance to members of their families in appropriate cases;
k) to affiliate with and participate in the activities of international organisations of lawyers.
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[[8]]8. Legal Practitioners Act, Part IX.[[8]]
[[9]]9. Legal Practitioners Act, [expand title=”S. 35(1).”]
Every person admitted and enrolled as a legal practitioner shall be a member of the Law Society.
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[[10]]10. “Law officer” means the Attorney General, Crown Counsel or any other person delegated generally or specially by the Attorney General in terms of the Law Officers Act 1966 or any other law.[[10]]
[[11]]11. Legal Practitioners Act, [expand title=”S. 37(1).”]
The Law Society shall have a Council which shall consist of —
(a) the following persons elected annually by the general annual meeting of the
Society —
(i) a President;
(ii) a Vice-President;
(iii) a Secretary;
(iv) a Treasurer; and
(v) not more than four other persons from among the members of the
Society; and
(b) a law officer who is admitted and enrolled as a legal practitioner, appointed
by the Minister.
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[[12]]12. Legal Practitioners Act, [expand title=”S. 38(1).”]
The management and control of the Law Society shall be vested in the Council which may exercise all such powers and do all such things as may be exercised or done by the Society save for those which are expressly required by this Act to be exercised or done by the Society in general meeting.
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[[13]]13. Legal Practitioners Act, [expand title=”S. 36″]
The objects and functions of the Law Society shall be —
(a) to maintain and enhance the prestige, status and dignity of the legal profession;
(b) to regulate the profession;
(c) to encourage and promote efficiency in and responsibility in relation to the profession;
(d) to deal with all matters relating to the interests of the profession and to protect those interests;
(e) to uphold the integrity of legal practitioners;
(f) to uphold and improve the standards of professional conduct and qualifications of legal practitioners;
(g) to provide for the effective control of the professional conduct of practitioners;
(h) to promote uniform practice and discipline among practitioners;
(i) to encourage the study of law;
(j) to initiate and promote reforms and improvements in any branch of law, the administration of justice, the practice of law and in the formulation of legislation;
(k) to represent generally the views of the profession;
(l) in the interests of the profession, to co-operate with such other societies or bodies of persons as it may deem fit;
(m) to do all such acts and things as are incidental or conducive to the attainment of the above-mentioned objectives.
[/expand], which contains more detail on the Law Society’s functions.[[13]]
[[14]]14. The Law Society of Swaziland Bye-Laws, [expand title=”S. 15.”]
(1) The Council may from time to time publish to its members guidelines in the form of rulings concerning the standards of conduct to which it expects members to adhere.
(2) Unprofessional or dishonourable or unworthy conduct on the part of an attorney member shall, without restricting the generality of those terms, include —
(a) a breach of faith or trust in relation to his client or in relation to any estate of which he is the executor, administrator, trustee, liquidator, receiver or curator;
(b) withholding the payment of trust moneys without lawful excuse;
(c) failing within a reasonable time to respond to an enquiry from a person to whom he owes a duty to reply;
(d) failing within a reasonable time to render his client a detailed statement of account after being called upon so to do;
(e) failing without good cause to wind up a deceased estate without undue delay;
(f) directly or indirectly inviting or advertising or touting for instructions for professional business or doing or permitting in the carrying on of his practice anything which may reasonably be regarded as likely to attract business unfairly;
(g) carrying on practice at any office which is not under the direct and personal supervision of a duly qualified attorney;
(h) giving or taking allowances in contravention of these Rules;
(i) sharing offices with a person who is not a member;
(j) in any way assisting, allowing or enabling an unqualified person to charge, recover or receive any fee, or derive any remuneration for or in respect of or in connection with the preparation or execution of any documents, or the performance of any professional work which only an attorney, notary or conveyancer, as the case may be, is qualified by law to prepare, sign, execute, attest or perform or in any way conniving at any arrangement, agreement or under standing whatsoever whereby any such fee or remuneration as aforesaid is or shall be charged, recovered or received by any such unqualified person;
(k) failing to pay within a reasonable time the reasonable fees and disbursements of any attorney, notary, conveyancer or advocate in respect of work entrusted to such practitioner by him unless —
(i) at the time of giving initial instructions in regard to such work, he advised such practitioner that he did not hold himself responsible for the payment of such fees and disbursements; or
(ii) payment is withheld for a reason which the Council deems good and sufficient;
(l) claiming in a letter of demand payment of costs or demand or collection commission unless the debtor is under legal obligation to pay such costs or commission;
(m) failure to comply with a determination by the Council in terms of Bye-law 16(d) of a reasonable fee;
(n) any material breach of the provisions of the Act or of these Bye-laws, including the failure to pay an annual subscription to the Society within the period stipulated in Bye-law 19(3).
(3) It shall be regarded as unprofessional conduct for any attorney to act on the instructions of any organisation or person, not being a practising attorney or an assessor acting on the instructions of a registered insurance company, whose business or part of whose business is to make, support or prosecute claims resulting from death or personal injury or who solicits instructions to make, support or prosecute any such claim in expectation of any payment, gift or benefit in respect thereof, unless the relationship between the attorney and the person on whose behalf instructions are given to him is properly a relationship of attorney and client and —
(a) instructions thereafter are received from such client direct; and
(b) the attorney_s costs and charges are payable by such client; and
(c) the attorney_s independent professional judgement is exercised on behalf of such client without outside interference or control.
(4) Unprofessional or dishonourable or unworthy conduct on the part of an advocate member shall, without restricting the generality of those terms, include —
(a) rendering professional services other than on the instructions of an attorney admitted in Swaziland except in the following cases —
(i) Crown prosecutions and appeals;
(ii) pro deo defences;
(iii) matters undertaken at the request of the Court;
(b) practising in a relationship which in the least degree represents a partnership;
(c) directly or indirectly inviting or advertising or touting for professional business;
(d) accepting a brief as an advocate in Swaziland while, directly or indirectly, carrying on the business of an attorney or solicitor in any other country;
(e) practising as an advocate while actively engaged in the carrying on of any other professional, commercial or industrial undertaking; except that an advocate may be a director, but not a managing director, of a limited liability company engaged in such an undertaking;
(f) any material breach of the provisions of the Act or of these Bye-laws, including failure to pay an annual subscription to the Society within the period stipulated in Bye-law 19(3).
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[[15]]15. The Law Society of Swaziland Bye-Laws, [expand title=”S. 16.”]
(1) The provisions of this Bye-law apply only to members who are attorneys and wherever the word “member” is used in this Bye-law it means “attorney member”.
(2) It shall be competent for the Council or any committee appointed by the Council for that purpose, at the request of any person or member, to assess the fees payable by such person to a member in respect of the performance on behalf of such person of any work by a member in his capacity as such.
(3) With a view to affording the member reasonable and adequate remuneration for the services rendered by him, the Council or the committee, as the case may be, shall, on every assessment, allow all such fees as appear to it to have been reasonable for the performance of the work concerned, and in so doing shall take cognisance of the following —
(a) the amount and importance of the work done;
(b) the complexity of the matter or the difficulty or novelty of the work or the question raised;
(c) the skill, labour, specialised knowledge and responsibility involved on the part of the member;
(d) the number and importance of the documents prepared or perused, without necessarily having regard to length;
(e) the place where the circumstances in which the services or any part thereof were rendered;
(f) the time expended by the member;
(g) where money or property is involved, its amount or value;
(h) the importance of the matter to the client;
(i) the quality of the work done;
(j) the experience or seniority of the member;
(k) any tariff of fees approved by the Society for the sole purpose of serving as a guide to a member;
(l) any tariff of fees prescribed in terms of these Bye-laws;
(m) any contractual arrangement between such person and the member concerned and whether the fees have been incurred or increased through overcaution, negligence or mistake on the part of the member.
(4) At the assessment of any member_s fees, the Council or the committee, as the case may be, may call for the production of such books, documents, papers or accounts as in its opinion are necessary to enable it properly to determine any matter arising upon such assessment.
(5) The Council or the committee, as the case may be, shall not proceed to the assessment of the fees unless the Secretary of the Society has duly given notice by prepaid registered post to both the member and the person liable to pay the fees, stating the time and place of such assessment and recording that he is entitled to be present and represented thereat hut such notice shall not be necessary if both the member and such person have consented in writing to assessment in their absence.
(6) At the assessment the Council or the Committee, as the case may be, shall be entitled to reserve its decision.
(7) As soon as the Council or the committee, as the case may be, has arrived at its decision, it shall deliver to both the member and such person either by hand or prepaid registered post, a copy of the fee list submitted for assessment, duly endorsed with the allocatur of the Council or the committee, as the case may be, under the hand of the Secretary of the Society.
(8) Subject to the provisions of section 42(2)(l) of the Act, the fees determined in terms of the allocatur shall be deemed to be a reasonable fee payable to the member for the services rendered.
(9) The Council or the committee, as the case may be, shall be entitled in its discretion at any time to depart from any of the provisions of paragraph (2) of this Bye-law, in extraordinary or exceptional cases, where strict adherence to such provisions would be inequitable.
(10) This Bye-law shall not apply to any work pursuant to a mandate accepted by a member prior to the coming into effect of these Bye-laws whether the work is actually done before or after the said date.
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