Podcast
Questions and Answers
When determining a reasonable fee for legal services, which factor primarily considers the client's perspective?
When determining a reasonable fee for legal services, which factor primarily considers the client's perspective?
- Amount of money involved
- Complexity of the matter
- Seniority of the practitioner
- Importance of the matter to the client (correct)
Under which circumstance is VAT payable according to Section 7 of the VAT Act?
Under which circumstance is VAT payable according to Section 7 of the VAT Act?
- The supply of goods by any vendor.
- The importation of goods into South Africa. (correct)
- The supply of services by a non-registered vendor.
- The supply of exported services by a registered vendor.
What critical step must a commissioner of oaths take to ensure an affidavit's validity?
What critical step must a commissioner of oaths take to ensure an affidavit's validity?
- Verify the deponent's identity and understanding of the contents. (correct)
- Witness the deponent signing the affidavit, irrespective of understanding.
- Confirm the deponent's religious beliefs.
- Ensure the deponent can write in the language of the affidavit.
According to FICA, what must an accountable institution, including an attorney, do before establishing a business relationship with a new client?
According to FICA, what must an accountable institution, including an attorney, do before establishing a business relationship with a new client?
Under what condition can an attorney proceed with a plea of not guilty for a client who has confessed guilt?
Under what condition can an attorney proceed with a plea of not guilty for a client who has confessed guilt?
Which scenario exemplifies a conflict of interest for an attorney?
Which scenario exemplifies a conflict of interest for an attorney?
What ethical consideration primarily dictates the actions of both the previous and new attorneys when a client seeks to transfer their mandate?
What ethical consideration primarily dictates the actions of both the previous and new attorneys when a client seeks to transfer their mandate?
What is the likely consequence if an attorney neglects to discuss fees with a client in a magistrate's court litigation?
What is the likely consequence if an attorney neglects to discuss fees with a client in a magistrate's court litigation?
When must an attorney render a detailed account of all work done to a client?
When must an attorney render a detailed account of all work done to a client?
In a case where a client is found partly negligent, how does this affect the damages awarded?
In a case where a client is found partly negligent, how does this affect the damages awarded?
An attorney has misappropriated funds held in trust. What immediate action should a concerned party take to exercise their rights?
An attorney has misappropriated funds held in trust. What immediate action should a concerned party take to exercise their rights?
What is the fundamental distinction between an attorney's duty of confidentiality and attorney-client privilege?
What is the fundamental distinction between an attorney's duty of confidentiality and attorney-client privilege?
Under what specific circumstance is it ethically permissible for an attorney to borrow money from a client?
Under what specific circumstance is it ethically permissible for an attorney to borrow money from a client?
How are 'party and party' costs best defined in legal contexts?
How are 'party and party' costs best defined in legal contexts?
If an attorney fails to properly discuss fees with a client, what is the implication regarding costs?
If an attorney fails to properly discuss fees with a client, what is the implication regarding costs?
What is the key determining factor when the Law Society considers striking an attorney from the roll following a criminal conviction?
What is the key determining factor when the Law Society considers striking an attorney from the roll following a criminal conviction?
Under what condition is it permissible for an attorney to commission an affidavit drawn up by their partner for an urgent application?
Under what condition is it permissible for an attorney to commission an affidavit drawn up by their partner for an urgent application?
What is the primary duty of an attorney to their client and to the Financial Intelligence Centre (FIC) under FICA?
What is the primary duty of an attorney to their client and to the Financial Intelligence Centre (FIC) under FICA?
What is the most appropriate initial step when a colleague has overcharged a shared client?
What is the most appropriate initial step when a colleague has overcharged a shared client?
What condition must be met for an attorney to ethically borrow money from a client?
What condition must be met for an attorney to ethically borrow money from a client?
If a claim prescribes, what is the effect on the underlying debt?
If a claim prescribes, what is the effect on the underlying debt?
What is the normal prescription period for most common claims, and how does it differ for claims arising from a negotiable instrument?
What is the normal prescription period for most common claims, and how does it differ for claims arising from a negotiable instrument?
What must an attorney do to ethically issue a summons for a prescribed claim?
What must an attorney do to ethically issue a summons for a prescribed claim?
Why is "touting" considered unprofessional conduct for attorneys?
Why is "touting" considered unprofessional conduct for attorneys?
What communications are protected by legal professional privilege?
What communications are protected by legal professional privilege?
When does professional privilege not apply?
When does professional privilege not apply?
What is a suitable fee arrangement for debt collection?
What is a suitable fee arrangement for debt collection?
In a debt collection matter where default judgment is granted, what fees and disbursements can be recovered from the debtor?
In a debt collection matter where default judgment is granted, what fees and disbursements can be recovered from the debtor?
When is an attorney legally obligated to refuse a mandate?
When is an attorney legally obligated to refuse a mandate?
What types of documents can only be prepared by an attorney with the expectation of compensation?
What types of documents can only be prepared by an attorney with the expectation of compensation?
How can a judgment debt be recovered from a debtor who earns a good salary?
How can a judgment debt be recovered from a debtor who earns a good salary?
When is it permissible for an attorney to disclose confidential information provided by a client?
When is it permissible for an attorney to disclose confidential information provided by a client?
When must a Commissioner of Oaths ensure the deponent knows and understands the contents of the declaration?
When must a Commissioner of Oaths ensure the deponent knows and understands the contents of the declaration?
Can an attorney negotiate or reduce fees with a client?
Can an attorney negotiate or reduce fees with a client?
What should an attorney do immediately upon discovering that a matter has prescribed?
What should an attorney do immediately upon discovering that a matter has prescribed?
What happens to a matter referred to Attorney Indemnity Insurance Fund?
What happens to a matter referred to Attorney Indemnity Insurance Fund?
What action should an attorney take when they are unable to agree on suitable fees with a Barrister.
What action should an attorney take when they are unable to agree on suitable fees with a Barrister.
Flashcards
Reasonable Fee Factors
Reasonable Fee Factors
Factors include complexity, importance, time, expertise, amount involved, urgency, seniority, perusal, and staff contributions.
Transactions Subject to VAT
Transactions Subject to VAT
VAT is payable on supplies by registered vendors, importation of goods, and supply of imported services.
Administering Oaths
Administering Oaths
Verify identity, confirm content understanding, check for objections to oath, get signature and have certificate of acknowledgment
FICA Requirements
FICA Requirements
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Client Identity Verification
Client Identity Verification
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FICA Duties to Centre
FICA Duties to Centre
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Plea of Not Guilty
Plea of Not Guilty
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Conflict of Interest
Conflict of Interest
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Mandate Termination
Mandate Termination
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New Attorney Conduct
New Attorney Conduct
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Fees in Magistrates Court
Fees in Magistrates Court
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Stolen Trust Funds
Stolen Trust Funds
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Confidentiality v. Privilege
Confidentiality v. Privilege
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Borrowing From Clients
Borrowing From Clients
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Party and Party Costs
Party and Party Costs
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Attorney and Own Client Costs
Attorney and Own Client Costs
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Conviction Consequences
Conviction Consequences
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Commissioning Affidavits
Commissioning Affidavits
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Purpose of FICA
Purpose of FICA
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Excessive Fees
Excessive Fees
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Borrowing
Borrowing
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Extinctive Prescription
Extinctive Prescription
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Most Common Claims
Most Common Claims
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Already Prescribed Claim
Already Prescribed Claim
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Work unprofessional - An attorney must avoid giving
Work unprofessional - An attorney must avoid giving
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Legal Professional Privilege
Legal Professional Privilege
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Fees suitable to debt collection
Fees suitable to debt collection
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Default Judgement Fees
Default Judgement Fees
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An attorney may not under any circumstances arrange a consultation if he knows that he will not be able to be present.
An attorney may not under any circumstances arrange a consultation if he knows that he will not be able to be present.
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litiation in the magistrates
litiation in the magistrates
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In the process.
In the process.
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Fidelity Fund
Fidelity Fund
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The duty of an attorney to withdraw
The duty of an attorney to withdraw
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A conflict of interest - the honest.
A conflict of interest - the honest.
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recover debtors' client
recover debtors' client
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clients relationship.
clients relationship.
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to market firm
to market firm
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Professionalality of
Professionalality of
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Attract bond application
Attract bond application
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It applies for all
It applies for all
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Study Notes
- Discuss the various factors taken into account when determining a reasonable fee for your services (non-litigious)
- Complexity of matter
- Importance of matter to client
- Time spent in doing the work
- Knowledge and expertise required
- Time and place at which work was done including consultations
- Urgency of matter
- Amount of money involved
- Seniority of practitioner
- Extent of perusal and consideration of documents
- Extent of work done by you and by other non-qualified staff
- What type of transaction will be subject to VAT?
- VAT is payable
- On the supply by a registered vendor of goods or services supplied by him in the course of any business
- On the importation of goods into the RSA
- On the supply of any imported services by a person
- Attorney = commissioner of oaths. What are you required to do when administering the oath ito affidavits?
- Satisfy self as to identity of deponent
- Deponent may either swear to an affidavit or attest to or confirm its content
- When administering an attorney:
- Must ask if he knows and understands the contents of the affidavit
- Must ask if he has any objection to taking the oath or making affirmation
- Must ask if he considers the oath or affirmation binding on his conscience
- Thereafter deponent must sign the affidavit in presence of commissioner who must certify below the deponent's signature that the latter has acknowledged that he knows and understands the affidavit
- The commissioner must in writing indicate the date and place of signature; print full names, designation and address below his signature; and state the area for which he holds his appointment
- What does FICA require of an "Accountable Institution" which includes an attorney regarding a person you deal with?
- An Accountable Institution (incl all attorneys) may not establish a business relationship or conclude a single transaction whith a client unless the Accountable Institution has taken the prescribed steps
- To verify the identity of the client
- If the client is acting on behalf of another person, to establish and verify the:
- Identity of that other person
- Client's authority to establish a business relationship or to conclude the single transaction on behalf of that other person
- If another person is acting on behalf of the client, to establish and verify:
- The identity of that other person
- That other person's authority to act on behalf of the client
- The different categories of clients to be identified and verified are as follows:
- Natural persons (regs 3-6)
- Legal persons (regs 7-12)
- Partnerships (regs 13-14)
- Trusts (regs 15-16)
- What duties toward the Centre seem to breach usual duty of confidentiality?
- Accountable Institutions are obliged to keep detailed records of clients, business relationships, and of transactions for a specified periods; they are also under an obligation to:
- Make such records available to the Financial Intelligence Centre on the strength of a warrant
- Inform the centre on request of the existence of a current or past mandate
- Report cash transactions above a prescribed amount to the Centre
- Report to the Centre the conveyance of a transaction with a client of cash above a prescribed amount to or through a specified account or institution
- Accountable Institutions are obliged to keep detailed records of clients, business relationships, and of transactions for a specified periods; they are also under an obligation to:
- Explain why it is not misleading the court to enter a plea of not guilty on behalf of accused who admitted guilt to you
- An accused is always entitled to plead not guilty
- Onus of proof is on prosecution/Stae
- Pleading not guilty doesn't equal denying acts alleged but putting the State to proof thereof
- Presiding officer and prosecution understand this and are not "misled" unless you call evidence or make submission in conflict with the version the accused gave you
- However, attorney may not allow client to give evidence which the attorney knows is untrue
- Attorney may test state witnesses by cross examination in regard to matters of identification cannot mis lead the court
- Define conflict of interest and give 3 examples
- Anything which adversely affects judgment or loyalty in representing or advising your client
- Egs judged by examiners
- Clients of other attorneys want you to take over their mandates. What ethical/professional considerations apply to both attorneys?
- Client/principal may terminate a mandate at any time
- Attorney/agent have further rules of conduct
- New attorney must get written letter of termination from client
- New attorney should not act until costs of old attorney paid
- Old attorney has right of retention or lien for costs over docs drawn by him
- New attorney should not use any docs until costs paid, neither attorney should be held to the rules if it would be unconscionable to the client
- Usually a good idea to speak to old attorney to see if there are facts clients didn't disclose
- What are the consequences of not discussing fees in mag court litigation with client?
- Attorney will usually be regarded as acting for a reasonable fee, which is assumed to be the mag court tariff
- Can't charge interim fees as in common law only entitled to fee when mandate has been completed
- Difficult to recover as in dispute may have to tax your fees before issuing summons
- Your mandate is complete. You must render an account setting out the details of all work done
- TO fees for arranging the appointment, consultation with you and the purchaser (1), perusal of your memorandum and particulars about the transaction (1), preparing the first draft, copies for you and purchaser, delivery or faxing thereof (1), discussions with purchasers attorney about amendments to the contract (1), preparation of second draft, copies thereof, delivery to yourself and to purchaser's attorney (1), receipt of telephonic instruction to finalise the contract, final amendments and draft final draft (1), telephone calls between you, the purchaser and his attorney to make arrangements for the signing of the contract (1), attendance at signing (1), correspondence, other telephone calls as well as postage and sundry expenses (1)
- Examiners can use discretion
- Examples of work done for account to client
- Fees for arranging appointment, consultation and taking instructions
- Perusal of your memorandum
- Preparing first draft
- Copies of draft to client, other party, delivery or telefax
- Telephonic conversation with client about proposed changes to draft
- Discussion with other party's attorney about amendments
- Preparation of second draft, copies to client and other party, delivery of copy
- Preparation of final draft
- Telephonic consultation with other attorney to arrange for signing of contract
- Correspondence, other telephone calls, postage and sundry expenses
- You act on basis will get 15% of A's award. Court awards A 60k damages to car but finds your client 20% negligent. B gets 20k on counterclaim but found to be 80% negligent
- A's claim: 80% x 60k = 48k
- B's claim: 20% x 20k = 4k
- Award to A: 48k - 4k = 44k
- 15% fee: 44k x 15% = R6 600
- Attorney has never paid back amounts held in trust, which may have been stolen. Explain what rights one has and what has to be done to exercise those rights
- Because you dealt with the firm, they are liable to repay you
- You must inform the law society and the attorneys fidelity fund of the theft and potential loss
- The AFF may require you to exhaust all remedies in particular against the attorney, as the fund is a fund of last resort
- If attorney is unable to repay, the AFF will reimburse and pay reasonable costs and interest
- If AFF unreasonable refuses, you may sue them
- Difference between attorneys duty to keep the affairs of a client confidential and the attorney-client privilege
- Attorney is in contract obliged to keep affairs of client confidential
- Provisions in legislation which compel attorney in certain circumstances to disclose certain information
- Legal privilege belongs to the client and the attorney cannot be compelled to disclose in evidence information given by client with view to legal action or advice
- It is actually a rule of evidence
- How to handle an offer by client to lend you money if you would like to borrow this amount
- Improper to borrow money from client unless client in the business of lending money or has been referred to take legal advice
- In other instances = improper
- Party and part costs
- Costs according to tariff which a successful litigant may recover from losing part if court makes award in favour of winner
- If costs cannot be recovered, successful parties attorney may only recover the party and party costs from own client (unless agreement that may charge more)
- If attorney fails to discuss fees, may not charge more than party and party
- Attorney and own client fees
- Fees attorney is entitled to recover from own client
- Manner in which fees must be determined is incorporated in agreement between attorney and client
- Preferably, the agreement should be in writing or at least confirmed in letter
- Fees must be reasonable
- You are convicted of driving under the influence of liquor. Law society applies to have your name struck off roll. What is high court likely to do and why? would it be different if offence involved dishonesty?
- High court not likely to strike off
- Test to be applied is whether individual is fit and proper to practise as an attorney
- Court will prob award costs to the society as it is performing a fiduciary duty
- If offence were to include dishonesty, would clearly affect the fitness and would prob be struck off
- May you commission and affidavit drawn up by your partner in urgent application? would it be diff in a conveyancing matter?
- You may not administer the oath in matter in which you have an interest
- By definition, court case in your firm is matter firm has interest in
- Is permissible to administer oath in conveyancing matter as the Act and Regulations specifically exclude(conveyancing matters from those in which you have an interest
- Discuss the purpose of FICA and your purpose and obligations as an attorney
- FICA impedes on the traditional role and independence of the attorneys' profession, and upon the confidentiality of all communications between attorneys and their clients
- Duty to establish and verify identity of clients and of their authority, they are obliged to keep detailed records of clients, business relationships, and of transactions for a specified period
- Attorneys under obligation to:
- Make such records available to Financial Intelligence Centre on the strength of a warrant
- Inform the centre on request of the existence of a current or past mandate
- Report cash transactions above a prescribed amount to the Centre
- Report to the centre the conveyance in terms of a transaction with a client of cash above a prescribed amount to or through a specified account or institution
- You are of the opinion that a colleague has charged a client of yours an excessively high amount for work done. What is your suggestion to your colleague?
- Advise individual to request the Law Society to have the fee determined (taxed) by an Assessment Panel to establish whether it is reasonable
- Nothing prevents you from negotiating a fee with your colleague that you think is reasonable
- Can an attorney borrow money from a client if offered?
- It is improper for an attorney to borrow money from his client unless he is a money-lender or is independently advised
- Unless these requirements are met, you must decline the offer
- What is the effect of extinctive prescription on a claim/debt?
- If a claim/debt has prescribed it still exists as a natural obligation but becomes unenforceable
- What periods apply to the most common claims
- Normal prescription period is 3 years but 6 years in respect of a claim arising from a negotiable Instrument or a notarial bond
- NB: If you issue a summons for a claim that has already prescribed, what are the consequences
- It is not unprofessional to sue even if prescribed as long as client is informed of the implications as follows:
- Any payment by the debtor may be received
- Presiding officer may not mero muto raise the issue of prescription
- debtor may raise special plea of prescription which is likely to succeed
- this may result in order of costs against client
- these costs will be relatively low if client withdraws his claim on receipt of plea
- It is not unprofessional to sue even if prescribed as long as client is informed of the implications as follows:
- Why is touting for work unprofessional?
- An attorney must avoid giving the impression that his intentions are designed to touting his practice
- A campaign of promotions by lavish entertainment is unprofessional and amounts to touting
- Touting detracts from the dignity of the profession and could lead to dishonesty
- Gives an unfair advantage to the immoral and causes problems with the public expecting discounts
- Remember: subtle difference between touting and legitimate marketing
- Legal Professional Privilege
- Legal professional privilege applies to communications between you and your client:
- Where they relate to your professional relationship
- Made for purpose of seeking or giving legal advice or for use in legal proceedings
- Whether written or oral
- Even where client confesses to you the commission of a prior crime or fraud
- Documents which are not otherwise privileged (not privileged merely because client hands them to you)
- Communications made for purpose of facilitating a crime or fraud
- The name of your client - you can be compelled to disclose it
- Facts learned by you with your own senses
- And where statute expressly or by implication provides that the privilege is inapplicable
- Legal professional privilege applies to communications between you and your client:
- What fees are suitable for a debt-collection?
- Various law societies have prescribed attorney-and-client fees for debt collection
- You may also enter into a contingency fee agreement
- What fees and disbursements may you recover from the debtor if default judgment is granted in debt collection matter?
- May recover the tariff stipulated in the rules of the magistrate's court for undefended actions
- Or any attorney-and-client fees if the debtor has consented in writing
- In the Northern province Rule 81 will apply
- When may an attorney refuse to accept a mandate? When is an attorney obliged to refuse a mandate and when is he ever obliged to accept a mandate?
- An attorney may in principle refuse to accept any mandate
- Attorney MUST refuse:
- If he does not have necessary expertise
- Does not have sufficient time
- Cannot come to a satisfactory arrangement about fees
- Instruction is unlawful, immoral and contrary to public policy
- Attorney must accept a mandate from an existing client particularly in an emergency situation
- Also accept mandate if limited number of attorney's in a particular area which has effect that there is no other attorney to assist client
- What documents may ONLY be prepared by an attorney with the expectation of a fee, gain or reward?
- Section 83(8) provides that only an attorney may prepare the following documents with the expectation of a fee, gain or reward:
- An agreement or deed in respect of immovable property or rights in or to immovable property, other than leases not exceeding 5 years, conditions of sale or broker's notes
- A will or testamentary writing
- Memorandum and articles of association or prospectus of a company
- Documents relating to the creation or dissolution of a partnership or any variation of the terms thereof
- Any instrument or document required or intended for any use in civil proceedings in the Republic
- Section 83(8) provides that only an attorney may prepare the following documents with the expectation of a fee, gain or reward:
- How may one recover judgment debt from a debtor who:
- Earns a good salary:
- Obtain emolument attachment order to recover part of salary directly from employer
- Has a fully paid car;
- Attached the vehicle and have same sold in execution
- Has a claim against brother for money lent.
- Attach the claim against brother by way of garnishee order
- Earns a good salary:
- Can you consult with your client while that client is being cross-examined?
- No. once under cross examination you may not consult with your client at all
- This is for obvious reasons as may advise him on how to answer questions and react to evidence etc
- May an attorney in any circumstances divulge information given by client in confidence?
- Yes, in very limited circumstances
- For example, to an executor after client's death or to a curator if client placed under curatorship
- Also if client waives confidentiality
- NB: Procedure to be followed by a Commissioner of Oaths to attest to an affidavit
- Know that there is a difference between an affirmation and an oath
- Before administering oath or affirmation, the Commissioner must:
- Ensure deponent knows and understands the contents of the declaration
- Ask deponent whether he has any objections to take prescribed oath or affirmation
- Ask deponent whether he or she regards the oath or affirmation as binding on his conscience
- Affidavit or solem declaration is then signed in presence of Commissioner of Oaths, who must also sign it
- Certificate to be added to bottom of affidavit, confirming that doc was signed and attested to before him
- Affidavit must contain the full names, physical address, and authority of the Commissioner of Oaths
- Also state designation and area for which he holds appointment of office
- DEPONENT TO SAY:
- "I swear that the contents of this statement or declaration are true so help me god" OR "I truly affirm the contents of this declaration"
- NOTE: an attorney is automatically a Commissioner of Oaths ex officio
- Can an attorney negotiate fees/reduce fees with a client?
- May legitimately negotiate fees with clients provided does not constitute overreaching or touting
- A reduction of charges may be justified if client gives you a large volume of work
- What to do should a matter prescribe
- On discovering claim had prescribed, inform client of the position
- Don't admit liability but advise client to consult with another attorney to assert his rights
- You may no longer act in the matter
- Client to get new attorney to send letter of demand, and this is to be passed on to Attorney Indemnity Insurance Fund
- Generally covered for amounts in excess of R20000o
- AIFF normally instructs own attorneys to handle matter and to either defend or settle same as they may be advised in consultation with you as the attorney
- May you pay an estate agent or any agent the commission due prior to transfer of the property?
- This may be regarded as touting
- If genuine transaction, payment made at attorney's risk
- Must be done out of own funds
- May attorney mark the fee on a brief to an advocate without discussing it beforehand?
- Is entitled to but not advised
- More correct to discuss it first with advocate
- If he does, advocate may accept or refuse
- May attorney require advocate to attend consultation at attorney's office?
- Rules of General Bar Council prohibit an advocate meeting in an attorney's office
- But nothing prohibits an advocate, under appropriate circumstances, with special permission, to do so
- May attorney request client to consult with counsel without attorney present?
- An attorney or rep must always be present when advocate consults with client
- How to resolve dispute of fees between attorney and advocate:
- Attorney to arrange to discuss fees with counsel and endeavour to resolve dispute
- If not possible, refer matter to Ombudsman at the Bar who will endeavour to mediate
- If not successful, lodge complaint with Secretary of Bar Council who will arrange proper hearing and debate matter
- What is a fidelity fund certificate?
- Certificate issued ito s42 of the Attorneys Act 53 of 1979 to any practitioner practising for his own account
- It remains valid until 31 December of every year (renewed annually)
- How and when is such a certificate obtained?
- Applied for to Secretary of Law Society concerned and against payment of prescribed fee and certain required information
- Each practising attorney must be on possession of such certificate BEFORE commencing practise
- Certificate to be renewed annually
- Consequences should attorney fail to renew certificate?
- May not continue to practise or charge fees for services rendered
- If he continues to practise - committing an offence ito law Society Rules
- May be suspended or removed from the roll
- Client still retain rights against the Fidelity Fund
- Can an attorney pick and choose between mandates? (if one will produce far more profit than the other etc)
- General rule: attorney may accept or refuse any work offered to him UNLESS for special reasons there is some obligation to accept or refuse
- Attorney enjoys a delictus personae with respect to clients.
- Write a note on the admissibility in evidence of a letter written without prejudice by one attorney to another in the course of litigation
- Statements which are made expressly or impliedly without prejudice in the course of bona fide negotiations for the settlement of a dispute CANNOT be disclosed in evidence without the CONSENT of both parties
- Letter written by one attorney to another with object of settling dispute is not admissible
- Considered public policy to allow people to try settle dispute without fear that they may have said things which will be held against them if negotiations should break down
- Statement to be privileged must form part of the negotiations and is not privileged merely by having been labelled "without prejudice."
- Thus, the content of letter etc is the deciding factor
- HOWEVER: if statements are made in a privileged document (defamatory statements etc) which are NOT relevant to the matter, such statements are admissible
- An acknowledgment of an inability to pay debts is an act of insolvency even if made without prejudice
- When offer of settlement is accepted, and dispute is settled, both letters written without prejudice offering and accepting such settlement will become admissible
- NB: Is an Attorney entitled to Contingency fees?
- Prior to 23 April 1999 an agreement to charge fees only if proceedings are successful was regarded as against public policy and thus unenforceable
- Now- Contingency Fees Act 66 of 1997
- Now possible for attorney to conclude a contingency fee agreement with client subject to onerous conditions
- Agreement must:
- Be in writing, in prescribed form
- Client enjoys 14 day "cooling off" period
- Agreed fees may not be more than twice the 'normal' fees of the attorney
- Claims may not be more than 25% of the amount obtained by client
- Agreement to be counter-signed by advocate, if applicable
- Client has right to claim a review of the agreement or the fees charged in terms thereof
- NB: Can loss be recovered by attorney's trust creditors in the event of theft from trust monies by attorney's employee?
- Yes
- Any trust creditor who has suffered loss as a result of theft of trust monies has a claim against the Fidelity Fund
- Can claim for balance of his loss after deduction of any money or benefits recovered from any other source (ie attorney's personal estate)
- Attorney's to replace trust money immediately
- If not possible, give Fidelity Fund TIMEOUS notification of loss suffered and claim from them Last
- Resort-exhaust other options first
- May an attorney give an employee a share in profits by way of remuneration?
- No
- May an attorney interview a witness subpoenaed for a civil trial by other side?
- Yes, but only if believed that witness possesses relevant info to assist attorney's client
- Must notify practitioner representing other side of interview
- Consent by practitioner is NOT required
- Acting in what looks like conflict of interest
- No, because in the course of the acquisition of the business you have obtained financial information which could be relevant in divorce proceedings between the parties
- Yes, because in this case you have not obtained information which could prejudice your erstwhile client. It should however be borne in mind that it may not be good business to act against the company concerned but there is nothing ethically wrong from doing so
- Termination of mandate by practitioner
- He may only terminate his mandate on good cause shown. For example, failure by the client to provide him with funds, being asked to do something dishonorable or being hindered by the client or prevented from conducting the case or failure to furnish instructions
- Sign away
- You should insist that he comes to you and signs in your presence or you go to his office and have him sign in front of you. In either instance the document must be properly attested
- The reasons for this is that the regulations in terms of the Commissioners of Oaths and Justices of the Peace Act provide that signature must be in the presence of the Commissioner and so as to avoid the possibility of fraud
- In addition the solemnity of the oath procedure would otherwise be destroyed
- Giving evidence during trial
- It is inadvisable for an attorney who is acting in a matter to give evidence in the case
- If this situation arises the attorney should withdraw and arrange for another attorney to act
- The position may be different where the attorney's evidence is to be given on formal and uncontentious matters
- If however the attorney's evidence relates to the actual disputes between the parties he must withdraw
- Information given in an interview
- The attorney's conduct is not acceptable. Interviews with the media about a client's affairs are precluded without the client's consent under the general rule of confidentiality
- Even with that consent the attorney may not publicise his practice by way of press interviews unless this is in the clear interest of the client or in the public interest.
- The confidence of the client is absolute and must be preserved by the attorney with certain exceptions i.e. the death or disability of a client where information may be given to executors, administrators, trustees etc
- FEES reduced in completion
- Clearly the intention of the new attorney in reducing fees is to attract more work and is not based on the attorney's financial structure which would permit reduction in fees
- This could be construed as touting and such conduct is consequently improper
- Duties of attorney
- A duty to be honest and fair
- A duty to be true and faithful to the State
- A duty to apply and uphold the law
- A duty to deliver the best service possible to your client
- A duty to uphold the integrity and dignity of the legal profession
- A duty not to overcharge or overreach clients
- A duty to be courteous to clients and deponents.
- Withdraw, civil case
- When an attorney withdraws from a case he should do so timeously and should inform his client timeously that he is doing so to enable his client to make alternative arrangements or to appear in person
- He must withdraw at the correct moment (opportune stage) or take the risk to continue with the brief and to fulfil it
- Borrow money, lend to company with huge interest; financial broker pay you commission?
- You may not borrow from a client unless client has taken independent advice or is a money-lender, due to the conflict of interest
- An agent may not take a secret commission vis-a-vis a principal but may accept it with client's consent
- Authority against you
- The court assumes that you have read the applicable authorities and that you will disclose supporting and adverse authority
- You should obviously emphasise what supports you
- Client owes you funds before a trial
- Since it is foolish to enter a trial without either funds or instructions you should place the client on terms so that client can have no doubt of your intention to withdraw which you must then do at an opportune time (i.e leaving client time to find another attorney)
- Sheriff attaching purchaser's property in trust
- Although the seller is the attorney's client, the money is held in trust on behalf of the purchaser and remains the purchaser's property until transfer is registered
- The sheriff will therefore not be entitled to attach the money in satisfaction of the writ issued against the seller
- Sign in which has an interest
- No, unless it is an affidavit taken by an attorney for purposes of the registration of a transaction in the Deeds Office or required to be submitted to the Minister of Justice
- Not sure about the ethically permissible step
- Do the necessary research eg read Lewis and any relevant cases
- Guidance could also be obtained from the Law Societies or from colleagues
- Agreeing on fees with counsel before
- It is not only in order but also advisable that an attorney agrees on a fee in advance with the advocate as this will eliminate the surprise element and resultant problems if the fee is more than anticipated
- It is the attorney's duty to keep his client informed of the cost implications of each case
- Consult client and counsel
- An attorney may not under any circumstances arrange a consultation if he knows that he will not be able to be present
- Should unforeseen circumstances occur and the consultation must necessarily take place, the attorney must arrange that one of his partners, a professional assistant or a candidate attorney in his employ, attend the consultation
- If it is necessary for the attorney himself to attend because it is the wish of his client that he does so, the consultation should rather be postponed
- Position regarding costs
- Like all professional people you are expected to charge a reasonable fee for your services unless the client is entitled to be assisted pro-amico I pro-bono
- While you must not overreach your client the fee must be adequate to enable you to practise profitably
- Explain to the client that if he is successful the court is likely to award costs against the Defendant on the party and party basis
- This does not purport to cover your costs, which will be calculated on an attorney and client basis and is likely to be substantially more
- The client is liable for your entire fee and disbursements and will have the benefit of any costs recovered from the Defendant
- Under no circumstances can you look to the other party for payment
- You can assist your client by accepting a deposit or payment on instalments or on extended payment
- When you wish to act on a contingency basis a written agreement in prescribed form must be entered into setting forth exactly on what contingency you will become entitled to a fee and how such fee will be calculated and that client was fully informed on all options. You may not recover more than double your normal fees or more than 25% of the capital award whichever is the lower amount. You cannot settle the matter without lodging affidavits by yourself and client with the court if summons has been issued or with the Law Society if summons has not yet been issued. The client may ask for your fee to be reviewed by the Law Society
- Issue summons, but you feel there is no case
- An attorney is not a judge of his client's case
- An attorney has however, a duty to advise his client properly with regard to the merits of his case and to give a considered view as to the client's prospects of success
- If notwithstanding the attorneys advice to the contrary the client insists that a summons should be issued the attorney may carry out the instruction provided the attorney is sure that:
- To do so would not be an abuse of the court process or that he will not be able to do justice to the client's case
- In the latter events he should refuse to accept the instruction
- The attorney should, if he accepts the instruction, ensure that the client understands all the implications
- The attorney should therefore write the client a letter setting out his negative opinion and confirming that notwithstanding this the client has instructed him to proceed
- Payments by the Fidelity Fund for the direct benefit of individual practices
- The Fidelity Fund contributes to bank-charges on trust bank accounts; the cost of annual examination by accountant (auditor) and pays the premiums to the AIIF
- Payments by the Fidelity Fund for the benefit of the profession generally
- The Fund contributes to the administration of the LSSA; Finances De Rebus; subsidises schools for legal practice and Practical Courses and Seminars
- The right and duty of an attorney to withdraw from a mandate
- The way the withdrawal should be implemented if it arises from the failure of the client to give instructions
- The client can terminate his mandate at any stage.
- On the other hand, after an attorney has accepted his brief, he cannot withdraw without sound reasons e.g.
- Failure to pay deposit
- Or to give instructions
- Conflict of interest
- Illness
- Before withdrawal the attorney must place client on terms and withdraw at an opportune time
- Rights of retention and the professional duty of any new attorney
- The attorney has a lien on documents on which he bestowed skill and labour
- New attorney should not act until first attorney's cost have been paid/secured
- Fit and proper person
- A person who displays the characteristics of honesty, integrity and reliability;
- A conflict of interest
- Anything which is likely to affect your judgment adversely in advising or representing your client
- Overreaching v overcharging
- Bookkeeper stolen money and absconded
- Since she was in our employ my partner and I are liable to replace this amount to your trust account, which we shall do the moment we have established the exact amount
- We have reported the trust shortfall to our law society which will also exercise supervision that we act correctly in this matter
- If it appears that we are unable to pay the amount you will be entitled to recover any shortfall as well as your reasonable costs and reasonable interest from the Attorneys Fidelity Fund
- They will require you to have given timeous notice of the possibility of a claim and will want to be satisfied that you were unable to recover from us or from any other source
- Whatever the position, you should not suffer any loss. Please feel free to obtain independent representation in prosecuting your claim against us and the Fidelity Fund.
- Acting prom amico
- An attorney may act pro amico for a friend or relative without charging fees
- There must be a genuine friendship or family relationship between the attorney and his client to avoid there being any suspicion of touting
- Colleagues are often regarded as friends for this purpose
- The attorney need not charge fees but may recover disbursements incurred in carrying out the mandate;
- Party and party costs
- Party and Party costs are costs according to tariff which a successful litigant may recover from the losing party if the court makes a costs award in favour of the winner
- If the costs cannot be recovered from the losing party, the successful party's attorney may only recover the party and party costs from his own client unless there is an agreement that he may charge more
- If an attorney fails to discuss fees with the client he may not charge him more than the party and party fees
- Attorney and own client fees
- Attorney and own client fees are fees which an attorney is entitled to recover from his own client
- The manner in which these fees must be determined is incorporated in an agreement between the attorney and the client, preferably the agreement should be in writing or at least confirmed in a letter
- The fee must be reasonable
- Claim prescribes, claim good for R200 000
- On discovering that the claim of A had prescribed due to our negligence I called A in and informed him of the position. While not admitting liability I advised him to consult another attorney to assert his rights. As you know we cannot continue to act in this matter (e.g. by taking the chance that the defendant will not raise a plea of prescription).
- The client will no doubt get his new attorney to send us a letter of demand which I shall pass on to the Attorney Indemnity Fund. We are covered for amounts in excess of R200 000,00 and should be out of pocket in the worst case by no more than the excess payment of R20 000,00
- I understand that the AlIF normally instructs their own attorneys to handle the matter and either to defend or settle same as they may be advised in consultation with us
- Explain what procedure is available to have a fee determination made what considerations apply in arriving at a reasonable fee
- Drawing agreements is non-litigious work and there are no tariffs or officials empowered to tax bills
- The parties must use the rules of the law society (there are some differences as to when they may be used) which provide for the council or an assessment panel appointed by it to determine a reasonable fee. They will consider the following factors:
- The complexity of the matter
- The importance of the matter to client
- The time spent in doing the work
- The knowledge and expertise required
- The time and place where the work as done including consultations
- The urgency of the matter
- The amount of money Involved
- The seniority of the practitioner
- The extent of perusal and consideration of documents
- The extent of work done by, professional and non-professional staff
- All work must have been reasonably necessary
- What is the effect on current civil litigation in the magistrates' court if he does not take any steps for a year after issuing summons; for a year after service of summons; for a year after obtaining judgment and if any adverse effects can be counteracted
- If A should issue summons and be unable to prosecute the matter, the consequences are that- (8)
- The summons will lapse if it is not served within a year of issue
- The summons also lapses if plaintiff takes no steps within a year of service
- Judgement remains valid for thirty years i.e. no real effect.
- Under Rule 10 the plaintiff may apply before the year expires for extension on affidavit if the defendant has requested extension
- If the summons has lapsed plaintiff may apply under Rule 60 for the revival of the summons subject to an order for costs.
- If A should issue summons and be unable to prosecute the matter, the consequences are that- (8)
- Note: this is somewhat technical and examiners should be lenient.
- How are periods (days or months) calculated in terms of Rules of Court and Interpretation act respectively
- The Rules of Court (Mag Crt R2.2; High Crt R 1) provide that Saturdays, Sundays
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