Advocates, why are they appointed and where do they fit in?

advocate

Most individuals consider the term “Lawyer” as a catch-all phrase for attorneys and advocates of legal profession. While they can both be considered lawyers, their jobs vary in many different ways and both have different authorities within the legal profession.

What is an attorney?

An attorney is a general practitioner and can perform many legal functions. A majority of legal professionals are attorneys. An attorney does not only represent their client in civil and criminal proceedings but can also be charged with the duty of drafting various documents such as wills, contracts, registering companies, trademarks and the transfer of immovable property. In part, an attorney may also be viewed as a debt collector. An attorney may be approached by any member of the public and operates within a firm.

What is an advocate?

Advocates are more focused and specialized in legal proceedings and writing up legal opinions. An advocate also works in chambers (which are generally close to the courts) and cannot directly be approached by the public. This means that an advocate must first be briefed by the attorney on any matter of a client and the client cannot approach the advocate directly.

Why the distinction?

In the past attorneys never had a right of appearance in the high court; only advocates did. This meant that any matter which had to be litigated on in the high court had to be referred to an advocate and argued by them after they were briefed by the attorneys.

 This is not the case anymore and an attorney may represent their client in court provided that such an attorney has a right of appearance. In practice, however, most attorneys will still brief the advocates as they are considered litigation specialists.

A further distinction can be seen in the acts that govern the two categories of lawyers. An attorney is regulated by the Attorneys Act 53 of 1979 and an advocate is regulated by the Admission of Advocates Act 74 of 1964 (although such regulations are not so strictly enforced).

The distinction is further extended by the fact that the client never pays the advocate directly. The attorney will pay the advocate first from their own account and later the client pays the attorney for such fees.

There may be additional legal expenses incurred as a result of such a distinction between attorneys and advocates. The client should always be aware that in any legal proceedings both the attorney and advocate must be paid. Dealing with a matter quickly and efficiently may avoid incurring hefty additional expenses.

Sources:

Theophilopoulos, C; et alFundamental Principles of Civil Procedure Second Edition (2012).