The country is in the midst of a judicial reckoning after a decade of corruption so insidious an entire state was placed at its service. If the Zondo Commission is not mere spectacle, this should mean orange will be the new Armani for many politicians.
But the limitation of anti-corruption crusades is that, after the beneficiaries go to jail, the infrastructure for a repeat performance remains in place. Happily, some enablers of state capture such as PR companies like Bell Pottinger and auditors like KPMG have had their comeuppance. Yet, the actions of lawyers, without whom not a fraction of the damage could have been done, has gone unremarked.
Lawyers should, of course, be free to take on any client, no matter their notoriety. This is foundational to our democracy. However, professional ethics also apply. Lawyers must avoid conflicts of interest, they mustn’t overreach in fees, or let their trust accounts be used as a conduit for schemes. Lawyers also shouldn’t pander to their client’s whims, connive to substantiate witch-hunts or whitewashes, simulate transactions and they shouldn’t facilitate crimes.
Have lawyers lived up to this?
Lord Peter Hain, for one, thinks Hogan Lovells has not. He accuses the firm of facilitating state capture at SARS. Adding to that claim is the fact that one former partner, Brian Biebuyck, has been comprehensively Agrizzied at the Zondo Commission for his work for Bosasa. Hogan Lovells says it is appalled by the allegations. But whether the firm is appalled enough by the fees Biebuyck earned so as to renounce them, is a question that has no-one holding their breath.
Former IPID head, Robert McBride also alleged that a ‘flawed’ report by Werksmans legitimised a groundless case against him by state capturers. Werksmans dispute this claim, and argue they were at the ‘forefront of fighting corruption and state capture’.
But Werkmans’ claim to reputation has a downside, as it exposes them to suggestions of hypocrisy if they take instructions from rogues. Unlike advocates, law firms can turn away instructions. Locking eyes with clients over polished wood, attorneys develop a sense of the motives behind the instructions brought to them.
Top firms are able to exercise due diligence before attaching their brand to a client’s cause. They need to portray themselves as more than just tongues for hire because these firms also compete to perform quasi-adjudicatory functions.
What functions are these, you ask? Well, SA is awash in investigations right now, often done by lawfirms. These are a lucrative, perhaps dominant, income stream. Consider that Werksmans charged Prasa about R200m to look into wasteful expenditure and mismanagement. The reality is, they could earn three years of fees investigating a case, but only a fraction of that amount litigating the matter.
The opinions and findings that the ‘Ivy League’ firms produce are also integral to their client’s PR. A firm’s good name underwrites the objectivity, accuracy and ethics of their reports. If a transaction needs blessing or a CEO needs clearing, an obvious mob lawyer won’t do. This imposes limits on the work they should be taking.
Hogan Lovells proclaims the mission: ‘Righting injustices. Strengthening society’. Yet, one wonders by what olfactory deficiency this firm could have cashed all those Gavin Watson cheques over the years? Equally, how could Webber Wentzel have missed the red lights when they gave Prasa’s 1064 locomotive deal the all-clear? And Cliff Dekker Hofmeyr represented Eskom when it ran Glencore off a coal mine for the Guptas.
The legal missteps enabling state capture would normally have remained hidden within the folds of secrecy that cloak the accord between attorney and client. But look beneath the testimony to Zondo, and the profession’s mistakes and hypocrisy is apparent.
These faults ought to be confronted by the many honourable women and men in the profession. This may mean fee refunds or censuring the conduct of colleagues.
Some of the lawyers who enabled state capture are still assigned significant matters, not only to litigate, but also to investigate. Some are bound to be called to the bench. Any malignity in their marrow has the potential to dangerously metastatize.
This article first appeared in Financial Mail.