HEINRICH BÖHMKE: The role of lawyers in state capture

The country is in the midst of a judicial reckoning after a decade of corruption so insidious that 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 anticorruption crusades is that, after the beneficiaries go to jail, the infrastructure for a repeat performance remains in place.

Happily, some enablers of state capture, for example 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. But professional ethics also apply. Lawyers must avoid conflicts of interest and they mustn’t overreach in setting fees or let their trust accounts be used as a conduit for schemes. Lawyers also shouldn’t connive to substantiate witch-hunts or whitewashes, 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 the SA Revenue Service. Adding to that claim is the fact that a 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 it is appalled enough by the fees Biebuyck earned to renounce them is a question that has no-one holding their breath.

Former head of the Independent Police Investigative Unit Robert McBride also alleged that a "flawed" report by Werksmans legitimised a groundless case against him by state capturers. Werksmans disputes this claim, and argues it was at the "forefront of fighting corruption and state capture".

But Werkmans’ claim to reputation has a downside, as it exposes it to claims of hypocrisy, if it takes instructions from rogues.

Unlike advocates, law firms can turn away instructions. 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 with investigations right now, often done by law firms. These have been a lucrative, perhaps dominant, income stream for some firms. Consider that Werksmans charged the Passenger Rail Agency of SA (Prasa) about R200m to look into wasteful expenditure and mismanagement. It could earn three years’ fees investigating a case, but only one-hundredth of that litigating the matter.

The opinions and findings that the "Ivy League" firms produce are also integral to their clients’ public relations. A firm’s good name underwrites the objectivity, accuracy and ethics of its reports. If a transaction needs blessing or a CEO needs clearing, an obvious mob lawyer won’t do.

This imposes limits on the work such firms should be taking.

Legal missteps

Hogan Lovells proclaims the mission: "Righting injustices. Strengthening society". Yet, one wonders: by what olfactory deficiency could this firm have cashed all those Gavin Watson cheques over the years? Equally, how could Webber Wentzel have missed the red lights when it gave Prasa’s 1,064 locomotive deal the all-clear? And Cliffe Dekker Hofmeyr represented Eskom when it let Glencore become 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 are apparent.

These faults ought to be confronted by the many honourable women and men in the profession. It may mean fee refunds or censuring the conduct of colleagues.

Some of these lawyers 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 metastatise.

• Böhmke is a consultant to whistleblower organisation PPLAAF