Legal Practice Act 28 of 2014

Preamble
 Regulates the profession in the public interest
 Ensures the Constitutional values
 Ensures affordable legal services
 Provides a legislative framework REEPER
 Ensures accountability of the profession
 Removes barriers for entry into profession

Purpose of the Act

 Restructures and transforms the profession
 Broadens access to justice by fees chargeable and community service

Regulation of Legal Practitioners

 Must be admitted in HC if duly qualified and must be a
- South African citizen / permanent resident
- Fit and proper person
 Minister may determine the right of foreign legal practitioners to practice in South Africa

Right of appearance
 Legal practitioners are entitled to practice throughout South Africa
 Right of appearance in HC, SCA and CC if in practice for longer than 3 years and has an LLB degree
 Candidate attorneys may only appear in the regional division of the Magistrate Court if previously practiced as an advocate for
a year or completed a year of vocational training

Requirements for admission

 LLB degree
 Practical vocational training
 Community service
 Legal practice management course
 Passed examination / assessment

Registration as legal practitioner

 Must apply to the Council once admitted for enrolling your name on the Roll of Legal Practitioners – attorney or advocate
 Possible to cancel or suspend registration
 Conversion of registration possible at any time: attorney > advocate > attorney

Authority to render legal services

 Only legal practitioners may, in expectation of any fee:
- Appear in any court / tribunal / board
- Draw up pleadings
 No person may hold themself out as a legal practitioner or imply to be one if not qualified
 If suspended or removed, may not render legal services

Forms of legal practice

 An attorney may render legal services upon receipt of a request directly from the public
 An advocate may render legal services upon receipt of a brief from an attorney or upon receipt of a request directly from the
public if in possession of a Fidelity Fund certificate
 Council must make recommendations regarding:
- Multi-disciplinary practices
- Recognition of paralegals
Fees in respect of legal services
 SA Law Reform Commission must within 2 years report back to the Minister regarding determining fees:
- Maximum tariffs
- Access to justice

Code of conduct & Disciplinary bodies

 The Council must develop a code of conduct and establish disciplinary committees

Legal Services Ombud

 Protect and promote the public interest
 Ensure fair and effective investigation of complaints
 Promote high standards of integrity
 Promote the independence of the profession
PEPP
Legal Practitioners’ Fidelity Fund
 Fund is liable to reimburse persons who suffer pecuniary loss:
- As a result of theft of money or other property given in trust to a trust account practice
- In the course of the practice of the attorney or advocate
 Fund is not liable in respect of any loss suffered:
- If practitioner in employment of non-practitioner (e.g., bank, insurance company)
- By the wife / husband of practitioner
- By partner in the trust account practice
- If person has received warning from Legal Practice Council against continued use of the legal services of the trust account
- If person instructed attorney to invest money on their behalf
 No person has a claim against the Fund in respect of any theft, unless:
- Written notice of claim is given to Council within 3 months after claimant became aware of theft or, by exercise of
reasonable care, should have become aware of the theft
- Within 6 months after a written demand has been sent to them by Board, claimant furnishes Board with proof as Board
may reasonably require
 Any action against the Fund in respect of loss suffered because of theft, must be instituted within one year

Trust monies
 Must be in possession of a Fidelity Fund certificate
 Every attorney must operate a trust account
 Interest accrued must be paid to the Fund
 Accounting records

The South African Legal Practice Council

Rules
Lodging and registration of practical vocational training contracts
 The original of a practical vocational training contract must be lodged within 2 months by the principal with the Council
 The Council shall, on payment of prescribed fee, examine practical vocational training contract lodged with it and, if satisfied
that it is in order, and Council has no objection to its registration, register contract, and shall advise principal and candidate
attorney in writing of registration
 If a practical vocational training contract is not lodged for registration within 2 months, service under such contract will be
deemed to commence on the date of registration

Supervision over candidate attorneys

 A candidate attorney shall, during the term of service specified in the practical vocational training contract serve:
- in the office of their principal
 - under the direct personal supervision of principal or under direct personal supervision of an attorney who is a partner or
other admitted attorney in the office of the principal;
 "Branch office" means an office from which the firm practises, but which is not its main office

Absence of candidate attorneys

 A candidate attorney may, with consent of their principal, absent themself from office for no more than 30 working days in
any one year of the practical vocational contract
 A court may, on the application of a candidate attorney –
- where the principal refuses to grant the candidate attorney leave of absence from office;
- where the period of absence exceeds 30 working days in any one year of practical vocational training contract
- grant an order authorising leave of absence from office, if court is satisfied that principal and Council received due notice
of application and that sufficient cause for absence exists
 The period in excess of 30 working days in any one year of the practical vocational training contract, shall be added to the
period for which the candidate attorney is bound to serve under the contract

Restriction on pecuniary interests of candidate attorneys

 A candidate attorney shall not have any pecuniary interest in practice and service of an attorney, other than bona fide
remuneration for their services as a candidate attorney, and shall not, without prior written consent of Council, hold or occupy
any office of which they receive remuneration, directly or indirectly, or engage in any other business other than that of
candidate attorney, where holding that office or engaging in that business is likely to interfere with their proper training
 Otherwise, contract concerned shall be void ab initio and service rendered thereunder shall be ineffective

Cession of practical vocational training contract

 A practical vocational training contract may, with consent of principal and candidate attorney, be ceded to any other principal
willing to accept such cession
 The Council may, in the event of death, mental illness, insolvency, conviction of a crime, suspension from practice, striking
off the roll or discontinuation of practice of principal under whom candidate attorney is serving, direct that practical vocational
training contract be ceded to any other principal willing to accept such cession
 A practical vocational training contract may be ceded even if the principal who accepts the cession will, as a result of that
acceptance, have more than the maximum allowable number of candidate attorneys in their employment
 An agreement whereby a practical vocational training contract is ceded must be lodged with the Council within 2 months

Termination of practical vocational training contract

 Principal with whom the candidate attorney is serving must notify the Council in writing of cancellation, abandonment or
cession of practical vocational training contract
 Court may in its discretion, on application of person who served under contract, order that period served be added to
subsequent period served under a practical vocational training contract entered into after first was cancelled or abandoned

Registration of practical vocational training contract by advocate

 Advocates shall not be allowed to register a practical vocational training contract with a candidate attorney unless their
enrolment as an advocate has been converted to that of an attorney

Remuneration
 Every candidate attorney undergoing practical vocational training shall be entitled to reasonable remuneration, allowances or
stipends for their service under the practical vocational training contract as may be determined from time to time by the
Council, which shall be payable at least monthly
 Every pupil undergoing practical vocational training in terms of a practical vocational training contract shall be entitled to
reasonable remuneration, allowances or stipends (if any) as may be determined by the Council and as may be appropriate
having regard to the nature of the pupil's activities in terms of the practical vocational training contract

Legal services which may be rendered by advocate in possession of Fidelity Fund certificate
 An advocate who is in possession of a Fidelity Fund certificate may render legal services which advocates were entitled to
render before the commencement of the LPA

Instruction of attorneys
 Instructions by a client to an attorney may be in writing or verbal
 When written instructions are given by a client to an attorney, the attorney must ensure that they set out the intended scope of
the engagement with sufficient clarity to enable the attorney to understand the full extent of the mandate
 If attorney is uncertain as to scope of the mandate, they must seek written clarification of the intended scope of the instruction
 Where the client instructs the attorney verbally, the attorney must as soon as practically possible confirm the instructions in
writing and in particular must set out their understanding of the scope of the engagement
 Also applies to an advocate who is in possession of a Fidelity Fund certificate

Disciplinary proceedings
 The Council shall have disciplinary jurisdiction over all members no matter where the misconduct which is perpetrated
 The Council is empowered to enquire into and deal with any complaint of misconduct

Commencement of enquiry into alleged misconduct

 If an allegation of misconduct against a respondent comes to attention of executive officer or legal officer, they must refer
allegation to investigating committee
 Members of public who wish to lodge a complaint of misconduct against a respondent must do so in writing. A complaint shall
set out clearly and concisely the specific acts or failures to act which give rise to the complaint of misconduct

Mda v Cape Law Society

 Power of Law Society to inspect for purposes of misconduct enquiry are wide and not limited to documents relating to specific
complaint – Law Society may inspect all records

Case law pertaining to Legal Practitioner’s Fidelity Fund

SVV Construction v Fund
 Victim must give notice within 3 months after they became aware of the theft
 Must exercise reasonable care

Industrial & Commercial Factors v Fidelity Fund

 Liable for money entrusted in the course of practitioner’s practice

King v Fidelity Fund

 Theft of trust money in factoring scheme for estate agents’ commission
 Not in the course of practice, thus claim excluded

Attorneys Fidelity Fund v Mettle Property Finance

 Claim against Fidelity Fund
 Money entrusted to attorney in course of his practice
 Bridging finance that supplied for mortgage or property sales, thus claim dismissed

The South African Legal Practice Council

Regulations
 Any person intending to be admitted and enrolled as an attorney must, after satisfying requirements for a degree, serve under a
practical vocational training contract with a person —
- for 24 months —
o during the service under a practical vocational training contract; or
o within 12 months after termination of practical vocational training contract, must complete a programme of
structured course work. If they fail to complete structured course work within 36 months after date of registration of
practical vocational training contract, they will be required to repeat the course work programme; or
- for 12 months if, prior to registration of a practical vocational training contract, they have completed a programme of
structured course work of no longer than 6 months
 A person who has entered into a practical vocational training contract for 24 months may, after having served 12 months under
that contract, apply for admission and enrolment as an attorney if they have, during course of that period, outside of their
normal working hours in terms of that contract, completed a programme of structured course work
 Any period of service before a candidate attorney has satisfied the requirements of the degrees is not regarded as good or
sufficient service in terms of a practical vocational training contract
 A candidate attorney may be engaged or retained under a practical vocational training contract by an attorney —
- practising for their own account
- practising as a partner in a firm of attorneys
- practising as a member of a juristic entity
- practising as state attorney
- who has practised as a professional assistant in a firm of attorneys for 5 years within the preceding 6 years
- in the full time employ of, or who is a member of —
o Legal Aid South Africa; or
o a legal aid institution which has been approved by the Council for the purpose of engaging candidate attorneys and
who is responsible for supervising the training of candidate attorneys
 An attorney engaging a candidate attorney must have practised as an attorney for at least 3 years
 Service by candidate attorney to any attorney not practising, is not deemed to be service under practical vocational training
contract
 Attorney may not have more than 3 candidate attorneys and a Legal Aid attorney may not have more than 6 candidate
attorneys
 When an attorney dies, retires from practice or has been struck from Roll, any of their remaining partners may take cession of
practical vocational training contract of candidate attorney, despite fact that cessionary may then have more than 3 or 6
candidate attorneys, under contract

Practical vocational training requirements pupils must comply with before being admitted by court as legal practitioners
 A person intending to be admitted and enrolled as an advocate must—
- serve under a practical vocational training contract for 12 months after having satisfied all the requirements for a degree
- prior to or during service under a practical vocational training contract, complete a programme of structured course work
 An advocate may not have more than one pupil
 Pupil may be engaged or retained under a practical vocational training contract by an advocate who have practised as an
advocate for at least 3 years

Rafoneke v Minister of Justice:

 The declaration made by the HC that s 24(2) of the LPA is unconstitutional and invalid to the extent that it does not allow
foreigners to be admitted and authorised to be enrolled as non-practising legal practitioners, is not confirmed

 Court held that s 22 of Constitution preserves rights of citizens to choose their trade, occupation or profession freely and
empowers State to enact legislation to regulate freedom of trade, occupation and profession
 Through enactment of s 24(2) of LPA, regulatory competence of state has been exercised in a manner that is consistent with a
citizen’s right to choose their profession
 Regulatory competence exercised cannot be said to extend to non-citizens and their choice of profession as s 22 is a right in
the Constitution, that does not extend to them
 Fact that non-citizens do not have rights that accrue under s 22, does not mean they are not entitled to enter into certain
professions in South Africa
 Differentiation between citizens and permanent resident on one hand and foreign nationals on the other does not amount to
unfair discrimination
 Citizenship is not one of listed grounds in s 9(3) of Constitution nor was Court convinced that citizenship may be classified as
falling under the listed ground of social origin
 Limitation created by s 24(2) is tailored to admission of legal practitioners and does not operate as a blanket ban to
employment in profession
 Activity which applicants sought constitutional protection for is enjoyment to choose one’s vocation, which does not amount
to unfair discrimination, because this right is not protected by a constitutional right available to foreign nationals

Ethics
What are professional ethics?
 Concerned with the rules of conduct regulating the Attorneys’ profession

 Provide the norms in terms whereof practitioners are judged to be fit and proper persons to practice
 Standards of right and honourable conduct which should be observed by members of learned professions in their dealings with
each other and in protecting the interests and handling the affairs of their clients
 Designed to provide lawyers with an understanding of ethical context in which law operates and teach them to become aware
of limitations of rules determining ethical behaviour
 Legal Practice Council, an independent regulatory body, plays a substantial role in control of professional standards
 Among main principles of ethical conduct expected of a lawyer are that, in relation to his client, he will maintain confidential
about everything revealed to him during professional relationship, will always use his skills and knowledge to best of his
ability to secure client’s interests, but will not knowingly be a party to any fraud, dishonesty or underhand dealings
 In relation to other members of the profession, a lawyer must deal honestly with them and implement undertakings to them
 In relation to courts, a lawyer should not participate in any fraud on court as by putting forward false evidence or withholding
evidence, should not put forward any misleading arguments or misrepresent or conceal any authorities, relevant to his case,
whether in favour of or against his client, and must honour any undertakings he gives on behalf of his client

Why professional ethics?

 The legal practitioner is part of a system involving directly and primarily the State

 They fulfil a dual function by assisting the client and by promoting justice in society
 The two functions may come into conflict
 Constitution enshrines rights of all people in country and affirms democratic values of human dignity, equality and freedom
 There is a great need for lawyers to ensure that a proper balance between human rights and the more general interests of
society and the state is maintained
 The public is entitled to a fair administration of the judicial system, to insist that lawyers act responsibly and ethically in the
public interest and that they will not abuse the law for the benefit of their clients
 Lawyers must not take unjust advantage either of the opponent’s or of the public purse
 To ensure that public will have confidence in administration of justice, a high standard of these qualities must be maintained
 The purpose of ethical training is to develop:
- an understanding of the foundations of the ethical standards applicable to the legal profession

- moral reasoning skills aimed at empowering professionals to develop moral autonomy and moral decision-making skills
that withstand scrutiny

- ethical awareness and a heightened ethical consciousness of impact and consequences of one’s actions, both personally
and professionally, on the broader society.

What is a profession?
 A profession is a career (occupation) which complies with six requirements:
- an intellectual basis

- a private practice

- an advisory function

- a tradition of service

- which has a representative body

- which has a code of conduct.

The five most important characteristics of a profession

 It has a central organization formally recognised to represent it

 Its primary function is to give advice or service in a specialised field

 Admission is restricted to a certain standard of education
 It is afforded a certain measure of self-regulation and can, as a result, require its members to observe much higher standards
than could be successfully imposed by outside sources
 A professional person’s first and foremost responsibility is to his client.

What is a fit and proper person?

 A practitioner is a “fit and proper person” if their personal qualities reflect integrity and reliability

 “Fit and proper” means fit and proper in every respect and not only honesty and reliability
 An attorney’s avowed intention of contravening the law in future does not square with the requirement
 Needs to be contextualised within context of legal challenges, for example where courts are called upon to consider whether
‘extent to which laws that prohibit use of cannabis and possession, purchase of cultivation thereof for personal consumption
exclusively are valid’
- Prince v President Cape Law Society & Others

- Kaplan v Incorporated Law Society Transvaal

 The profession of an attorney is an honourable one and as such demands complete honesty, reliability and integrity from its
members (Vassen v Law Society of the Cape)

 Legal practitioners serve the interests of their clients, which require a case to be presented fearlessly and vigorously

 On other hand, as officers of Court, they serve interests of justice by acting as bulwark against admission of fabricated
evidence

 Both professions have strict ethical rules aimed at preventing their members from becoming parties to deception of Court

 Unfortunately, the observance of rules is not assured, because what happens between legal representatives and their clients or
witnesses is not a matter for public scrutiny

 The preservation of a high standard of professional ethics has been left almost entirely in hands of individual practitioners,
thus absolute personal integrity and scrupulous honesty are demanded and a practitioner who lacks these qualities cannot be
expected to play his part
- Kekana v Law Society of Advocates of South Africa
 An attorney is unfit to practise if the misconduct in question is of such serious nature that it manifests character defects and a
lack of integrity rendering the person unfit to be on the roll

Instances where the Courts have ruled that a practitioner is not a fit and proper person to practise:
 Attorney has failed to be frank and open in their dealings with their (Law) Society and with the Court, and had attempted to
deceive her Society and the Court (Law Society of the Cape of Good Hope and Another v Holmes)

 An applicant for admission as an advocate cannot on the one hand plead they were wrongly convicted, or that they had
reformed. Reformation can only begin when a person acknowledges that he has committed the wrongful act (Ex parte
Ngwenya: In re Ngwenya v Society of Advocates, Pretoria and Another)
 Where a person having two previous convictions for the possession of cannabis declared their intention of continuing to break
the law due to their religious beliefs (Prince v President, Cape Law Society and Others)
 Where an attorney, apart from instances of under-banking trust monies, also stole monies by convincing an insurance company
to pay proceeds due under a life insurance policy to himself instead of beneficiary and then withdrew money for personal
purposes and denied doing so despite clear evidence to the contrary (Vassen v Law Society of the Cape)
 An attorney convicted of a criminal offence, and who during the course of trial not only committed perjury in raising a false
alibi, but also suborned another to do so to support his alibi and who persisted in lies for four years during the appeals process
was found unfit to practise as such conduct constituted a protracted attempt to deceive the courts . (Jasat v Natal Law Society)

Uphold the law

 Because a legal practitioner is associated with administration of law, he is under a positive duty to maintain the law at all
times, which means that he must not break the law
 Being convicted of a criminal offence (other than merely trivial offences such as a minor traffic infringement) usually amounts
to unprofessional conduct even if no dishonesty is involved because it may indicate that practitioner has disrespect for the law.
(Prince v President, Cape Law Society)

Dishonesty not required

 There may be unprofessional conduct without positive dishonesty

 If an attorney, by what they have done, evidences that they do not understand nature and extent of obligations to clients which
profession imposes, or if they do not observe them, then, given sufficient gravity of impropriety, they may be held guilty of
unprofessional conduct
 Prokureursorde van Transvaal v Kleynhans
 General Council of the Bar of South Africa v Van der Spuy

Do not assist your client to break the law

 A legal practitioner’s duty to uphold the law also requires that they must not assist a client to break the law

 If client proposes to break the law, legal practitioner must alert client to consequences of such action and seek to dissuade
them
 However, it is not improper for a legal practitioner to advise a client on how to take advantage of a loophole in the law
 A legal practitioner’s responsibility towards his client can never override their duty to uphold the law
 Legal practitioner must not do anything that is dishonourable, even if it is in interests of client and they are pressed to do it
 HEG Consulting Enterprises (PTY) Ltd and Others v Siegwart & Others

Personal life
 The standards of behaviour expected of a legal practitioner are very demanding and extend also to his personal life. Rationale
is that if you do something which brings you into disrepute, then profession will be brought into disrepute and further, the
administration of justice – of which you are an integral part – will be brought into disrepute

 Even though personal misconduct may have less weight than professional misconduct, it may still be a ground for striking a
practitioner off the roll of attorneys because it may show that they are not a fit and proper person to practise law
 Transvaal Law Society v Kleynhans
 Cape Law Society v Reyneke
 Law Society, Transvaal v Blumberg

Lewis’ golden rule

 Practitioner must avoid all conduct which, if known, could damage his reputation as honourable lawyer and honourable citizen

The practitioner and their client

Contingency fees
 “No win, no fee”
 Not allowed in Matrimonial matters & Criminal matters
 Not 100% more than normal fees or 25% of capital
 Common law agreement is illegal. Some lawyers felt contingency fees weren’t enough and entered into a common law
agreement to get higher fees, which is unethical ( De La Guerre v Ronald Bobroff)

The treatment of clients

 Client is most important
 You are dependent on client
 The client does you a favour
 Should not fight with your client
 Lifeblood of your firm
 Client retention is vital

Accepting the client – considerations to be taken into account

 It is absolutely essential to know with whom you are dealing before you take on a new client

 Satisfy yourself of the following:

- The client’s identity

- The client’s competence

- The authority of holders of a power of attorney
- The client’s knowledge of the scope of the instruction
 Any failure in this respect will have consequences attendant upon negligence and will not necessarily amount to misconduct,
however, it could arise if failure has sting of impropriety inherent in recklessness or indifference to duty

 A practitioner is under no obligation to accept a client’s instructions and before doing so he must consider following aspects:
- Potential conflicts of interest

- Potential fraud, illegality or other impropriety

- Competence
 Ebersohn v Prokureursorde van Transvaal: attorney should have necessary knowledge and expertise, and in executing his
mandate, he should display the care that is to be reasonably expected of the average attorney.

 Must also have a sound knowledge of the Financial Intelligence Centre Act, 2001 (FICA)
 FICA’s aim is to combat organised crime and deter money laundering activities and in introducing this legislation, South
Africa has joined those countries that are facing similar threats to their economies
 It places onerous duties on all Accountable Institutions which are prerequisites for establishment of business relationships or
for conclusion of transactions
 Identification and verification requirements not limited to client, but extend to each person with whom transaction is
concluded
 Once accepting instructions, discuss with client costs as well as all ethical implication, which could arise from the acceptance
of your mandate
 Provide them with an example in simple terms. If you are charging an hourly rate, make the client sign an agreement
 Apart from wisdom of acting for one client only, it is also necessary at outset to define clearly to all concerned, when dealing
with more than one party, who your client is and for whom you are acting
 This is necessary to avoid “non-clients” incorrectly assuming you are protecting their interests
 Leite v Leandy & Partners: legal practitioner who is drawing a contract between a client and an unrepresented party has a duty
to act fairly to both parties

Execution of the instructions – rights and duties of an attorney

 You are under a duty to obey your client’s instructions and you must not substitute your own judgment for the specific
instructions of your client

 Although your client may not prescribe manner in which services are to be rendered, you must at all stages of the matter act
according to his instructions (subject to the limitation that you must not carry out improper instructions)
 Attorney-client relationship imposes a duty on an attorney to advance interests of his client, even where such a course of
action will cause harm to the opposite party
 This relationship and duty owed to client do not protect attorney civilly or criminally against unlawful conduct such as fraud
 The attorney is not entitled nor obliged to advance his client’s interests at all costs.
 However, where an attorney failed to counsel his client on the benefits of mediation and, in the course of the pre-trial
conference positively rejected its use, he was severely criticised for failing to properly serve the client’s interests as mediation
would have been a better alternative and should have been tried
 Consequently court limited attorney’s fees and ordered that he could only recover from his client his taxed party and party
costs:
- Goodricke & Son v Auto Protection Insurance
Road Accident Fund v Shabangu and Another
 It is particularly important to observe this rule when it comes to settlements

 Obtain written instructions from client to accept an amount in settlement and explain to him exactly what settlement offer
entails

 Washaya v Washaya
- no instructions to settle had been given and counsel had settled on his own initiative

- In an application for the setting aside of the judgment it was held as to the conduct of counsel that he had acted in an
irresponsible and grossly negligent or reckless manner, misleading the Court and needlessly wasting its time

- Had to bear the costs of his conduct

Professional negligence
 If we are unable to contain the incidence of claims, the continuing increase in professional indemnity premiums will diminish
the profession’s capacity to service clients effectively and threaten the very viability of some practices

 Professional negligence claims are often caused by a poor flow of information between attorney and client or between
attorneys, with the result that the decisions made are not the right one
 Letters of engagement containing the following essentials/checklist:
- Identity of client. Engagement letter should be backed by required FICA process in case of new clients. Make sure you
know and record whether client is acting in their personal or a representative capacity

- Any additional parties to be included in the representation

- Primary responsible attorney and any other attorneys/assistants to be associated with the matter

- Details of mandate/scope of work to be done. Specific areas to be included in order to avoid any misunderstanding about
responsibilities and deliverables. Any unusual or specific instructions should be recorded

- Specific areas not to be included

 If you are found to be negligent by Courts you can be liable to your client in damages for breach of contract because it is an
implied term of contract between yourself and client that you are obliged, personally or through others, to exercise knowledge,
skill and diligence to be expected of an average practicing attorney
- Mlenzana v Goodrick & Franklin Inc

- Mouton v Die Mynwerkersunie: attorney can be guilty of negligence where error of judgement is due to lack of required
degree of knowledge, skill or care
 Pretorius v McCallum: can be held liable toward non-clients if they suffered damages based on your lack of duty of care and
knowledge

 When client’s case prescribed, you must inform the client – never admit negligence!

Confidentiality
 Implied term of contract between you and client that you will preserve confidentiality of all communications between you and
client

 The confidence of the client is absolute and must be preserved by his attorney except to the extent that disclosure may be
rendered necessary or permissible
 It embraces all oral and documentary information respecting the client’s affairs gained in acting for him whether from the
client himself or from any other source whatsoever
 Information covered by ethical duty of confidentiality must be regarded as confidential by client and lawyers are advised, if in
doubt, to regard even matters that are generally known as confidential unless client advises legal practitioner to the contrary
 Revealing a client’s whereabouts to a third party without their permission can be a breach of confidentiality and as such may
constitute professional misconduct
 Confidentiality continues to remain in existence after termination of attorney-client relationship. Can only be waived by client
Legal professional privilege
 Doctrine in our law that confidential communications between you and your client are “privileged” from disclosure.

 Whereas FICA does not protect confidential communications between attorney and client, it does expressly protect attorney
and client privilege
 It is important that practitioners are fully conversant with precise nature and scope of professional privilege, and of
confidentiality, and, most importantly, with distinction between the two and the differing protection afforded to each in law
 Privilege is the protection from evidential use of certain confidential matter
 It has its true basis in a fundamental right to give and take legal advice with complete confidence that communications
between legal practitioner and client are protected
 Legal professional privilege applies to confidential communications passing between client and legal adviser (counsel,
attorney or in-house professionally qualified legal adviser), for the purpose of giving and receiving legal advice generally; or
for the purpose of existing or contemplated litigation
 Legal Professional privilege can also lawfully be claimed in respect of confidential communications between Government and
its salaried legal advisers when they amount to the equivalent of an independent adviser’s confidential advice
 It applies to disclosure in judicial and quasi-judicial proceedings, and to all forms of compulsory disclosure – such as search
warrants and statutory notices to produce documents – except where clear language in a statute overrides such privilege
 Information is protected by privilege. If such information is contained in a document, the document is privileged
 If the document is contained in a file containing a number of documents, the entire file does not become immune to protection
 Professional privilege does not apply to:
- Documents which are not otherwise privileged. They do not become privileged merely because your client hands them to
you

- Communications made for purpose of facilitating a crime or fraud ( Harksen v Attorney-General Cape and Others)
- The name of your client – you can be compelled to disclose it
- Facts learned by you with your own senses and where a statute expressly or by implication provides that privilege is
inapplicable
- Where confidentiality of oral evidence is destroyed when such evidence, or confidentiality is likewise destroyed

Without prejudice
 Statements without prejudice are usually said to be privileged, but this involves a rather different use of the word “privilege”
from its usual meaning in the law of evidence

 Privilege generally means the right of a witness to refuse to disclose evidence, but in connection with statements without
prejudice, it means the right of a party to make statements which cannot be proved against them
 Negotiations conducted without prejudice are designed to encourage parties to a dispute to avoid litigation and all expenses,
delays, hostility and inconvenience it usually entails, by resolving their differences amicably in full and frank discussions
 If the negotiations result in a settlement, then evidence about the settlement and the negotiations leading up to it should be
made available to the trial Court because the whole basis for non-disclosure has fallen away.
 Mere fact that a communication carries words “without prejudice” does not per se confer upon it privilege against disclosure

Conflict of interest
 A conflicting interest is one which would affect judgment of lawyer on behalf of or his loyalty to a client or prospective client

 Virtually all difficult ethical problems arise from a conflict between a lawyer’s duty towards his client and legal system and his
own interests in remaining an upright person while trying to earn a satisfactory living. In other words by putting his personal
interests ahead of his professional responsibilities.
 By virtue of privilege attaching to communications between practitioner and their client, existence or gravity of a conflict will
not, in many cases, become known to anyone besides himself and his client and, in some cases, to the practitioner alone
 Examples of conflict of interest situations are:
- Where practitioner is requested to act for both plaintiff and defendant. You cannot act for 2 opposing parties in actual or
contemplated litigation, but in most jurisdictions there is no absolute rule precluding you from acting for both parties in
non-litigious matters

- Not proper to act for both parties to a transaction because they consent or even insist that you act for both of them. A
client can never be arbiter of what professional propriety requires. Knowing problems involved, you should decline to act
for both parties
 - Where the instructions or versions of the clients differ ( S v Hollenbach) (S v Jacobs and Another)
- In certain circumstances where different relief is sought
- Where from alleged facts the conclusions drawn favour the one client and do not favour the other
- You should not act for a person in a transaction to which you are yourself a party with an adverse interest. E.g., do not
borrow from a client, or arrange a loan from a client to a person or a company with which you are associated unless your
client obtains independent advice or is in business of money lending
- Where a lawyer acts for a client and it appears that there is a conflict of interest with regard to another client for whom the
lawyer or his partner is acting. (The Law Society of the Cape of Good Hope v Tobias and Another )
- Where you may be sued by a client
- You should not act contrary to interests of a prior client because, apart from fact that you have a duty not to disclose
confidential information you obtained while acting for X, you also have a duty to do best for your new client which
includes reliance on any relevant information in your possession, irrespective of its source
- Becoming sexually intimate with a current client, because it may involve unfair exploitation of lawyer’s fiduciary position
and impairs lawyer’s ability to represent client adequately
- It is undesirable for an attorney appointed as a curator ad litem for purpose of conducting legal proceedings to handle
those legal proceedings themself or through their firm
- Represent both employer and employee simultaneously

Affidavits
 Commissioner of oaths shall not administer an oath or affirmation relating to a matter in which he has an interest ( Radue Weir
v Galleus Investments)

 Carolus and Another v Saambou Bank Ltd; Smith v Saambou Bank Ltd : independence and objectivity of counsel was
compromised if they identified themselves with issues by also being a witness. The proper and desirable practice required
practitioners to have and maintain an arm’s length association with merits of matters handled by them
 Affidavits must be signed in the presence of a Commissioner of Oath
 Once you are admitted as an attorney, you become a Commissioner of Oath – remember you cannot take the oath of your
clients because of conflict of interest. Otherwise affidavit is null and void.
 Cannot charge fees for acting as Commissioner of Oath

Non-payment of fees
 Deposit

 Issue summons when they fail to pay your fees. Last resort

 Right of retention over the file until compensated for work done (when they terminate your mandate)
- Botha v Mchunu: if entitled to charge a fee, entitled to exercise right of retention

- Free State Agri v Mthembu & Mohammed: followed the Botha decision

- Applies to all documents in the file

Sworn translations
 Westdeutsche Landesbank Girozentrale v Horsch: undesirable that attorney of record for plaintiff in an action for provisional
sentence should translate documents to be used on behalf of his client in litigation, even though attorney is a sworn translator
of the Court

 Where a practitioner is faced with a conflict of interests, it will be his duty to avoid it

Termination of mandate
 The relationship between an attorney and his client is based on mandate

 The client can terminate his mandate at any stage, but after an attorney has accepted his brief, he cannot withdraw without
sound reasons
 When there is good cause for an attorney to withdraw:
- Improper conduct on the part of the client

- The client’s deliberate fraud

 - If the attorney finds that his own personality clashes with that of the client

- Where client does not accept his attorney’s advice and persists in pursuing or defending an action when his attorney most
strongly advises settlement

- Illness

- The failure to provide funds to enable the attorney to continue

Ethical Duties towards colleagues, court, public

and state
Relationship with other practitioners
 Undertakings – must be able to rely on each other’s word
 Improper for one attorney to contact the client of another attorney – must discuss matter with your colleague
 Negotiate personally with attorney and not with his secretary

Witnesses: Criminal
 Shabalala v Attorney-General (Tvl):
- Have a right to consult a state witness
- Must approach the Attorney-General for consent
- Someone from attorney-general’s office entitled to be present and record what transpired

Witnesses: Civil matters

 Before court date – allowed to interview any witness (even if you know they are going to testify for opposing party)
 After court proceedings commenced – Must avoid interviewing any witnesses
 After they have testified – can approach witness with their legal representative

Witnesses: Own (criminal/civil)

 Unethical to consult with your own witness if they are currently testifying (on the stand)
 If absolutely necessary, ask permission from judge/magistrate & must give good reasons

Relationship with Court

 Duty towards court not to mislead the court
 Non-disclosure of all reported matters amounts to unprofessional conduct
- Pienaar / Toto / Hay Management 2000
- Ulde v Min of Home Affairs 2008
 Punitive cost order was awarded is awarded in such matter: Cost de bonis propriis (advocate / attorney in the matter is
responsible for the payment of all legal cos)

Relationship with public

 Duty to provide legal services within their community
 Duty to do pro bono work
 Compulsory Pro bono work is to be introduced – 24 hours per year
 Exemptions: Older than 60 or in practice for more than 40 years

Relationship with the state

 As an officer of the court, you have a duty to uphold the law

Marketing and Advertising

Publicity
 Attorneys may give publicity to their practice
 Requirements: Advertising Regulatory Board (ARB)
- Must be in good taste
- Must not be misleading

Content of Publicity
 May not compare the quality of your services with that of another firm
 May not criticise other law firms
 May not refer to your success rate
 May only refer to the name of a client with their consent
 Attorney to be identified in every advertisement
 May state categories of work
 Attorneys are prohibited from any reference to them having been rated by “Best Lawyers”
 Directories – Yellow Pages, Hortors

Newsletters
 May inform clients of new developments in the law, case law, legislation etc.

Knock and drop pamphlets

 Not permissible to distribute pamphlets advertising your services

Specialisation
 A firm may hold itself out as a specialist or expert in any branch of the law
 Caution: Higher standard of expertise & skill required

Brochures
 May be displayed in reception
 May not be misleading
 May not claim or imply superiority
 May be sent to existing clients
 May be sent to former clients only if you know that they are likely to return

Radio & Television

 May appear on TV or take part in radio broadcasts
 Consent of Legal Practice Council not required
 Only requirement: must be qualified

Statements as to charges
 May not state specific kinds of work for a specific charge
 May only specify basis of charges (R2000 per hour)
 May not compare your fees with other attorney’s fees

Legal Costs
Magistrates’ Court Rule 33 and Annexure 2; High Court Rules 67, 68, 69, 70
Dates of tariff changes for the HC, MC, and SCA according to Magistrate’s Court Rules and High Court Rules
 24 February 2015 – 30 October 2017
 1 November 2017 – 10 September 2020
 11 September 2020 – 7 July 2022
 8 July 2022 – present
Legal Practice Act section 35
 Until the investigation of SALRC has been completed and recommendations have been implemented by Minister, fees in
respect of litigious and non-litigious legal services rendered by legal practitioners, juristic entities, law clinics or Legal Aid
South Africa must be in accordance with the tariffs made by s 2 of Rules Board for Courts of Law Act
 Rules Board for Courts of Law must, when determining tariffs, consider –
- the importance, significance, complexity, and expertise of the legal services required
- the seniority and experience of the legal practitioner concerned
- the volume of work required, and time spent in respect of the legal services rendered
- the financial implications of the matter at hand

Legal costs the concept of legal costs

 Legal costs: costs payable for legal work in execution of a mandate done by a legal practitioner which costs are payable in
terms of a bill of costs delivered by a legal practitioner either in terms of an agreement or in terms of a court order
 Legal costs comprise fees charged for, and disbursements (expenses) incurred during course of legal work
 A legal practitioner should already during first consultation, inform his client in detail regarding the aspect of legal costs

Anatomy of a Bill of costs

 Normal header like on a court document

E.g. of HC tariff that is in operation from 8 July 2022:

Item Date Particulars Fees Disbursements

1. 15 Consultation with client when taking instructions for attachment of motor 1 785.00
Sept vehicle
2021 (1 hr 15 min)
2. Perusing credit agreement 720.00
(10 pgs)

Magistrate’s Court: Table A Part I General Provisions

 Folio: 100 written or printed words, figures or part thereof
 Four figures shall be reckoned as one word.
 Unless otherwise provided, a charge for perusal is allowed at R12,50 per folio (was R11,50 before 8 July 2022).
 Tariff for copying is: R5,00 for a copy of a page, regardless of the number of words. (was R4,50 before 8 July 2022).

High Court Rule 70(9)

 Page: a page shall contain at least 250 words
 Four Figures shall be counted as a word.

P.116 - HC Rule 70 C 1
 Can charge R72 per page for attending the receipt, entry, perusing, considering and filing of—
(a) any summons, petition, affidavit, pleading, advocate's advice and drafts, report, important letter, notice or document;
(b) any formal letter, record stock sheets in voluntary surrenders, judgments or any other material document not elsewhere
specified;
(c) any plan or exhibit or other material document which was necessary for the conduct of the action,

Civil litigious matters

 Party and party
 Attorney and client
 Attorney and own client (assessment by a subcommittee of Council. In Gauteng = Gauteng Legal Practice Council)
 All are taxable by a taxing master

Party and party costs:

 Prescribed Tariffs:
- Suppose A institutes a claim against B
- Court eventually decides in A’s favour and gives a party-and-party scale costs order in A’s favour
 - B will have to pay bill of A’s attorney in respect of all costs that are necessary, suitable and properly incurred in order to
do justice and to protect A’s rights
- Tariff promulgated in Rules of Court must be used
- If his attorney, for example, make a telephone call to A which relates to matter but cannot be regarded as strictly
necessary, A will not be able to recover the costs of the telephone call from B.

Correspondence - letters, faxes, e-mails

 In your Bill of Costs you group them together with the total amount for all of them – “sent” & “received”
 HC:
- Particulars of dispatched letters telegrams and facsimiles need not be specified. Number of letters written must be
specified as well as the total amount charged.
- Same with attendance and perusal of letters.
 MC
- For each necessary letter or telegram, {drafted} per folio.
- All-inclusive fee for each letter of telegram received, and no further fee for perusal allowed.

Attorney and client costs

 All costs may now be allowed, not just the necessary costs.
 The Taxing Master has a discretion and can allow some higher fees
 A institutes a claim against B. The court grants judgment in favour of A as well as costs on Attorney-and-client scale
 B must now pay the account of A’s attorney with regard to all costs that the attorney would be justified to recover from A
 If his attorney thus, makes a telephone call to A which relates to the matter but cannot be regarded as strictly necessary, B will
have to pay for that call because in terms of attorney-and-client scale he must pay all the costs which A’s attorney would
justifiably have been able to recover from A.

Attorney and own client costs

 This is what you will charge your own client in terms of an agreement (fees agreement – probably in your mandate)
 This is therefore a special arrangement between you and your client and comes down to a contract on fees.
 You yourself decide what you are worth – there is no prescribed tariff, and the client must accept this in writing.
 In effect this means that where A and his attorney agreed that attorney may charge at higher hourly fee than prescribed by the
rule-based party-and-party tariff, for consultations for instance, A will have to pay that higher agreed tariff.
 The High courts will only order this type of fees to be paid by a losing party to a winning party under exceptional
circumstances which means the taxing master will have to tax on the agreed tariff as set out in the fees agreement
 Magistrates’ court may not make such an order

Costs de Bonis Propriis

 Court can grant costs de bonis propriis in respect of a person who acts in a representative capacity, e.g., an attorney or executor
 Usually granted where there is a substantial deviation from the responsibilities of the person’s offices, e.g., in case of mala
fides, gross negligence or unreasonableness.
 In cases where the practitioner pursues a matter that is obviously lacking in merit, a costs order de bonis propriis is usually not
warranted unless there is evidence that calls the practitioner’s bona fides into question
 However, such a costs order would be competent where practitioner has a history of a propensity to pursue such matters and
delay the finalisation thereof with incompetent technical points
 Where the improper is vexatious use of language directed at opponents or other participants in the process, the fact that the
document complained of was drafted on the client’s instructions is no defence

Wasted costs
 Costs are “wasted” when the services for which those costs are charged are of no use anymore to the parties to the action.
 E.g. Where a party serves a notice of set down for trial on the counterparty and the matter is then postponed, the current notice
of set-down serves no purpose anymore
 Preparation costs for the trial also becomes wasted costs.

Costs reserved / to stand over

 Means that court indicated that a costs order in respect of a specific matter that was heard, will be made at a later stage.
 In the HC the trial court will then e.g. hear argument on the costs of an earlier interim application.
 In the MC it becomes costs in the cause

Who determines whether an attorney’s Bill of Costs is fair and reasonable?

 After a court case, an officer of court known as “Taxing Master”, will check account in presence of both parties in order to
ensure that account does not contain unnecessary or defective cost items
 An attorney is allowed to agree with his own client on a tariff that is not based on the Court Rule tariffs. If the attorney then
gives a bill of costs to his own client, and the client is not happy with it, this can be submitted to the Provincial Legal Practice
Council for “Assessment” by a “Fees Assessment Committee”. This procedure also carries the force of law.

Non-litigious matters
 Where no tariff is prescribed by any law, a legal practitioner may negotiate any reasonable fee structure to be paid by the client
 Government Official not empowered to tax or assess:
- Legal Practice Council may assess fees and disbursements to be paid to their members.
 Sometimes no statutory tariff is prescribed.
- Registration of a Company;
- Appearance before Tribunals;
- Estate planning;
- Draughting of Contracts;
- Agreements for the Transfer of Shares;
- Other correspondence or negotiations.
- Interrogations Section 73 of the Insolvency Act Enquiries ito Section 417 & 418 of the Companies Act.
- Criminal Court
- Maintenance Court
- Children’s Court
 You may agree to a fee (structure) with client
 However, LPC may interfere with agreed fees: “Assessment”.

Balancing duties
 Ethical duties of practitioner to:
- Client (and non-clients)
- Profession
- Interests of justice (public interest)
- Public
- Colleagues
- Employees
 Legal Practitioner’s right: to charge reasonable money for professional services rendered.

Mandate
 Preferably written.
 Malcolm Lyons & Munro v Abro and Another
 Written fees agreement.
 Insert your own specific higher tariffs for certain items of work done, or raise the party and party tariff by a percentage.

Deposit
 May ask cover for fees and disbursements.
 A deposit may not exceed reasonable costs for the case.

Contingency fees
 Common law agreement: never allowed
- Fees only if the case is successful and part of the amount recovered in the case.
- Pactum de quota litis; or champerty [agreement to finance litigation] – this was a crime until 1997.
- Unenforceable: Unprofessional conduct
 Now a contingency fees agreement i.t.o Contingency Fees Act is allowed.
 Tjatji and others v RAF: Contingency fee agreement that does not comply with the Act is invalid.
 Contingency Fees Act:
- Fees only recoverable if the case is finalised successfully.
 - Criminal Law and Family Law cases are excluded.
- Normal attorney and own client tariff is placed on record and the higher tariff is also recorded in writing.
- Normal fee would be normal attorney and own client fee that could be taxed in absence of a contingency fee agreement
- Higher fee may not exceed the attorney’s normal fees by 100%
- Higher fee may not exceed more than 25% of the total capital obtained with the claim
- Advocates if used, must also sign and become party to the agreement
- Copy of the agreement must be delivered to the client on the date of signing.
- Legal Practice Council promulgated a specific set of rules
 The agreement may not provide for an alternative fees agreement in event that main agreement is found to be invalid: Such an
agreement is not authorised under the CFA. The alternative agreement in itself is based on an inflated fee because the quoted
fee is R 2 000.00 per hour, regardless of whether the work is performed by an attorney or any other staff member
 There is no basis in law for services of people who are not legal practitioners to be charged for as if they were qualified legal
practitioners. The provision is unreasonable and departs from an important principle that applies to the professional fees of
attorneys described as “the age old approach of reasonableness assessing chargeable fees”.

Office administration
 File notes of what?
- Consultations; meetings; phone calls
- Date, duration, nature of attendance, summary of issues dealt with, telefax receipts, e-mail confirmations (read receipts?)

Overreaching
 Deliberate excessively high fees = misconduct.

Undercharging
 Lower fees than normal is "touting” which is prohibited
 But only if a prescribed fee exists
 Only pro Deo / pro amico / pro bono may be free

Fee sharing
 “ALLOWANCE" to a correspondent attorney is allowed. Usually one third off your fee. (Not compulsory though.)
 No sharing (discounts/allowances) allowed with a non-practitioner
 Keep accounting records

Criteria to be considered
 Criteria for assessment of non-litigious work:
- the amount and importance of the work done;
- the complexity of the matter or the difficulty or novelty of the work or the questions raised;
- the skill, labour, specialised knowledge and responsibility on the part of the member;
- the number and importance of the documents prepared or perused, without necessarily having regard to length;
- the place where and circumstances in which the services or any part thereof were rendered;
- the time expended by the member;
- where money or property is involved, its amount or value;
- the importance of the matter to the client;
- the quality of the work done;
- the experience or seniority of the member;
- any tariff of fees approved by the society for the sole purpose of serving as a guide to the members;
- any tariff or fees prescribed by the Council in accordance with the provisions of the LPA;
- whether the fees and disbursements have been incurred or increased through over-caution, negligence or mistake on the
part of the member.

Qualifying (‘fees’) expenses: Expert witnesses.

 Make it part of your court order if you want to enforce it
 Expenses incurred by a witness who has to qualify himself to be able to give evidence
- Expert witness that has to make experiments, investigations or research or observation of persons and places.
- Refers to evidence of technical nature.

Civil litigious matters

 Summons / Application may be issued but even if it did not reach that stage yet, still taxable by taxing master.
 Rules relating to costs orders:
- Magistrate’s court may not order attorney-and-own-client costs orders