Blog Details

1. Every Legal Practitioner (Advocate, Attorney, Conveyancer and Notary Public) is required in terms of the Legal Practitioners Act (LPA) to hold a Practicing Certificate which is valid for that year to be entitled to practice.
2. The Annual General Meeting (AGM) Resolved that names of Legal Practitioners who do not hold Practicing Certificates in each year and are therefore not entitled to practice, be published after the Opening of the Legal Year. The Resolution relates to publication and does not seek to extend or give a waiver to the provision of the LPA that practicing certificates expire on the 31st December of each year.
3. The Court of Appeal has confirmed the above position.
4. The AGMs of the Society have since 2011 resolved that the Society should in each year publish a list of practitioners who have not obtained a Practicing Certificate and are therefore not entitled to practice.
5. The Court of Appeal has also confirmed that the Society has a duty to advice members of the public of legal practitioners who are not entitled to practice in that year.

TRUST ACCOUNT

6. Section 45 (1) of the Legal Practitioners Act (LPA) requires that every legal practitioner in private practice, practicing on his own or in partnership, should open and operate a Trust Bank Account. No firm is therefore to operate without having first opened a Trust Account. Non-compliance with this provision of the LPA is both professional misconduct and an offence under the LPA. New law firms are therefore required to submit evidence that the firm has opened a trust account before commencing practice / operations.
7. The Trust Bank Account shall be used only for depositing moneys held or received by the attorney in connection with his practice. This has become especially important to note in light of the increased scrutiny on Anti-Money Laundering, prevention of Financing of Terrorism and illicit financial flows.
8. Section 45 (6) of the LPA requires that Trust Account Bank Statements be submitted to the Society once in every three (3) months. This is a very important monitoring tool and non-compliance will lead to a qualified audit.
9. Section 45 (7) of the LPA requires that a Trust Account be audited at least once in each calendar year. Members should particularly note that even if the firm has been operating for less than twelve (12) months an audit report showing that proper books of accounts have been kept (certifying compliance with provisions of Section 45 and Regulation 30) will be required as a prerequisite to issuance of a Practicing Certificate at the beginning of each year. The LPA only provides an exception to the requirement of an audit for first time applicants for a Practicing Certificate. Council does not have the authority to waive this requirement and resolved so in January 2017.
10. Section 45 (8) of the LPA provides that Council or a person nominated by it may inspect the accounting records of any legal practitioner to ascertain if the accounts are in compliance with Section 45(1). It is important to note that, in addition to its regulatory mandate given by the LPA, the Financial Intelligence Act (FIA) has also designated the Law Society of Botswana as a “supervisory authority”. In this role, the Society is required by Section 27 of FIA to regulate and ensure compliance by legal practitioners with provisions of the Financial Intelligence Act. In this regard, the Society will undertake adhoc examinations / inspections of law firms periodically.
11. Given the above, Legal Practitioners are encouraged to procure Practicing Certificates for 2024 timeously. Members who have since left private practice should write to inform the Society.
12. Please note that the Secretariat will be closed for the Christmas vacation from 1300 hours on Friday, 15th December 2023 and will reopen on Tuesday, 9th January 2024.