Attorneys fall under the regulatory jurisdiction of the provincial law society where they are registered. Complaints must be lodged with the relevant provincial law society.
YOUR RIGHTS AS THE CLIENT OF AN ATTORNEY
As the client of an attorney, you have the right
• to professional, honest and unbiased advice at all times;
• to be treated with professional courtesy, respect and fairness, regardless of your race, nationality, age, gender, sexual orientation or disability;
• to privacy and attorney-client confidentiality;
• to agree the type of service you can expect and receive;
• to clear explanations in terms you can understand;
• to find out from the start of the consultation what you are hoping to achieve, and aim to make sure that your expectations are realistic;
• to know who will be handling your matter;
• to be advised on the likely success of your matter and not to do unnecessary work that will lead to unnecessary expenses;
• to an explanation of the cost implications and how the costs are likely to be calculated;
• to be kept informed of costs, so that you can work out if a particular course of action is worth following financially;
• to be kept updated on developments and on progress as work on your matter proceeds;
• to responses to your letters and telephone calls within a reasonable time;
• to a clear bill which shows the work done and the amounts charged;
• to complain about your attorney if you believe the attorney is acting unethically or in an unprofessional manner;
• have the attorneys’ account assessed and taxed if you are of the view that it is too high; and
• subject to certain conditions, you have the right to cancel your mandate to the attorney at any stage and consult another attorney.
Please note: The legal duty to release information about money deposited with your attorney can override the duty of confidentiality (for example, in terms of the Financial Intelligence Centre Act) and the duty to court can override the duty to put your interests first.
YOUR RESPONSIBILITIES AS THE CLIENT OF AN ATTORNEY
As the client of an attorney you have the responsibility
• to treat your attorney with respect and courtesy;
• to give your attorney correct and complete information, and to disclose all the relevant facts to assist your attorney to give you the appropriate advice;
• to give your attorney clear instructions;
• to enquire about the cost implications and how the costs will be calculated;
• to pay a deposit if requested to do so;
• to respond timeously to all requests for information from your attorney;
• not to direct unnecessary enquiries to your attorney as your attorney may charge consultation fees for these enquiries, and this may increase costs unnecessarily;
• to settle bills from your attorney timeously; and
• to use the legal system, including the courts, appropriately and not abuse it.
YOUR RIGHT TO COMPLAIN
Attorneys are bound by a strict professional code. The profession is proud of its high standards and the low incidence of disciplinary action required against attorneys. Most people are satisfied with the service of their attorney, but things do sometimes go wrong. That is why there is a clear and effective complaints procedure in place.
Communicate with your attorney
Experience has shown that many complaints arise from a lack of communication between the attorney and the client. Before lodging a complaint with the Law Society, it is suggested that you make an appointment with your attorney and that you raise your problems with him/her and ask him/her to inform you in regard to your enquiries. Remember, however, that an attorney is entitled to be remunerated for consultations.
Alternatively you may send the attorney a letter, preferably by registered post, asking him/her for a full report if he/she has not reported to you to your satisfaction. An attorney is obliged to report to a client on progress in a matter.
It is only fair to allow the attorney a reasonable opportunity to report to you before filing a complaint.
In terms of the Attorneys Act, 1979, the provincial law societies will investigate all complaints of attorneys acting in an unprofessional manner.
What you can complain about
• Persistent delays in answering letters.
• Failure to account for money held on the client’s behalf.
• Improper, unprofessional or unethical conduct.
• Failing to give proper attention to a matter.
Where to complain
The provincial law society conducts investigations to decide whether disciplinary action is required. The law society cannot say how long an investigation will last, but all matters are dealt with as quickly as possible. Based on the facts presented, by both the client and the attorney, the law society will decide whether to refer the matter to a disciplinary committee. This committee will either take a decision or, if of a serious nature, may refer the matter to the law society’s council for a decision.
How to complain
• All complaints must be made in writing using a complaints form [affidavit].
• This form is easy to complete and will help you to provide all the information needed by the law society.
• Be brief, accurate and list the main issue around the matter e.g. the attorney has overcharged; has failed to respond to correspondence etc.
• A reference number will be issued and must be used in all correspondence about the matter.
• You will be kept informed about progress on the matter.
What happens next?
• The attorney will be given a copy of the form you have completed.
• The attorney will be asked to report to the law society in writing.
• The law society will send a copy of the attorney’s report to you.
• If there is anything with which you do not agree, inform the law society in writing.
• If the response clears up the matter, please advise the law society as soon as possible.
• If necessary your comments on this report will be sent to the attorney for a response.
What may happen at this time?
•You and your attorney are free to communicate directly with each other.
• You may meet to discuss the matter to try to reach agreement between yourselves. If the problem is resolved, please advise the law society in writing as soon as possible.
• You are free to consult another attorney and may end your relationship with the attorney that you have complained about after your complaint has been filed.
Possible steps around disciplinary action
The provincial law society will thoroughly assess all matters once the required correspondence has been exchanged.
If the law society believes that there has been misconduct by an attorney, the law society will continue its investigations even if your complaint is withdrawn.
The law society will close matters where there is no proof of allegations of unprofessional conduct. You and the attorney will be advised in writing.
Matters will be referred to a disciplinary committee
• if it appears that unprofessional conduct has taken place, or
• to confirm that there is no unprofessional conduct.
The disciplinary committee
• makes a decision based on the written correspondence presented by both you and the attorney;
• may call for an appearance before a committee to discuss the matter;
• conducts a hearing and makes a finding; and
• may, in serious cases of unprofessional conduct, refer the matter to council of the law society for a decision.
Where the attorney is found guilty of unprofessional conduct, appropriate punishment is imposed. The attorney may appeal the decision.All parties are advised in writing of the outcome.
The council of the law society has no power to order an attorney to pay compensation to a client. The council may also not give legal advice. If you wish to enforce your rights against your former attorney you should consult another attorney to assist you with an action in court.
Complaints about attorneys can be lodged with the relevant provincial law society:
For attorneys in Gauteng, North-West, Mpumalanga and Limpopo
Law Society of the Northern Provinces
E-mail: email@example.com Tel: (012) 338 5800 website: www.northernlaw.co.za
For attorneys in the Free State:
Law Society of the Free State
E-mail: firstname.lastname@example.org Tel: (051) 447 3237 website: www.fs-law.co.za
For attorneys in KwaZulu-Natal:
KwaZulu-Natal Law Society
E-mail: email@example.com Tel: (033) 345 1304 website: www.lawsoc.co.za
For attorneys in the Western, Eastern and Northern Cape:
Cape Law Society
E-mail: firstname.lastname@example.org Tel: (021) 443 6700. website: www.capelawsoc.law.za
THE ROLE OF THE ATTORNEYS FIDELITY FUND
In terms of the Attorneys Act, 1979, the primary purpose of the Attorneys Fidelity Fund is to reimburse members of the public who may suffer monetary loss as a result of the theft of money or property entrusted to an attorney
• in the course of his/her practice as such, or
• where an attorney acts as executor or administrator in a deceased estate, or
• as a trustee in an insolvent estate, or in any similar capacity; or
• pending registration of the transfer of immovable property, or settlements in personal injury claims.
The Fund does not reimburse loss suffered as a result of negligence by an attorney in the conduct of his/her practice. Business transactions are also not covered, or money handed to an attorney for investment purposes, nor loans to the attorney. Certain relationships such as family, business or partnership associations will preclude a person from claiming against the Fund.
Any person who believes that he/she has a claim against the Fund, should note the following:
1. Notice of the claim should be given to the Council of the Law Society concerned (i.e. in the province in which the practitioner practises) and to the Fund’s Board of Control within a period of three months after the claimant became aware of the theft, or by the exercise of reasonable care should have become aware of the theft.
2. Such proof as the Fund may reasonably require should be furnished within six months after receipt of a written demand requesting the submission of such proof.
3 The Fund may require a claimant to exhaust all available legal remedies against the attorney concerned, and against any other persons liable in respect of the loss suffered, before having recourse to the Fund. However, the Board of Control is empowered to waive compliance with this requirement and claimants are therefore requested not to take any steps for the direct recovery of what is owed by a defaulting attorney until such time as they are advised by the Fund to do so.
4. Claimants are strongly advised to ensure that in the interim period (i.e. before receipt of the Fund’s directions regarding action as in 3 above), any rights of action which they might have do not become prescribed. Where claimants endeavour to recover directly from a defaulting practitioner, without having been directed by the Board of Control to do so, they will run the risk of not being able to recover costs incurred in the event of the practitioner’s estate being insolvent.
4.1 The claim should be made by the way of an affidavit in which the facts giving rise to the claim are fully set out. Such an affidavit will serve a dual purpose in that it will be used, firstly, for the purpose of proving a claim against the Fund, and secondly, to assist the South African Police Service in instituting a speedy and effective criminal investigation and prosecution against the defaulting attorney. Guidelines can be accessed on the Fund website at www.fidfund.co.za under the heading “Framework for a sworn affidavit in support of a claim”.
4.2 The defaulting practitioner’s entire office file relating to the matter on which the claim is based (cover and contents) should accompany the affidavit.
5. Except where the Board of Control has directed that a formal enquiry in terms of the regulations framed under the Act should be held, consideration of the claim will be confined to the affidavit submitted. For this reason, therefore, any allegations in the affidavit in connection with amounts entrusted to the practitioner should, where possible, be corroborated by other means. In this regard, it is usual for the affidavit to be accompanied by a photocopy of the claimant’s ledger account or other relevant ledger accounts in the practitioner’s accounting records, which substantiate(s) the allegations in the affidavit. In addition, other evidence such as paid cheques, receipts or relevant correspondence should be submitted, and although photocopies will be accepted, the Fund will require the original documents where available, particularly paid cheques.
6. The Fund has a discretion to make a contribution towards the costs incurred by a claimant in establishing a claim against the Fund. As unnecessary correspondence and delays invariably result where a person who is not an attorney elects to attend to the submission of a claim, it is strongly recommended that a claimant should instruct an attorney to attend to the submission of a claim.
7. The Fund’s Board of Control has a discretion to pay interest on the amount of any admitted claim. In the event of such discretion being exercised, interest is normally paid from the date of first notification of a claim to the Fund’s offices. It is accordingly important for the Fund to be notified of a claim as soon as possible. Furthermore, failure to respond to any request from the Fund within a reasonable period of time may lead to such discretion being exercised less favourably.
Correspondence with respect to claims should be addressed to:
The Claims Director
Attorneys Fidelity Fund
PO Box 3062, Cape Town
Tel: 021 424 5351
Fax: 021 423 4819