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Section 35 Fees in respect of legal services

Section 35 Fees in respect legal services
 
  View and download the presentation by Ettienne Barnard at the LSSA Conference on 24 March 2018.

 

 

 


35. (1) Until the investigation contemplated in subsection (4) has been completed and the recommendations contained therein have been implemented by the Minister, fees in
respect of litigious and non-litigious legal services rendered by legal practitioners, juristic entities, law clinics or Legal Aid South Africa referred to in section 34 must be
in accordance with the tariffs made by the Rules Board for Courts of Law established by section 2 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985).
(2) The Rules Board for Courts of Law must, when determining the tariffs as contemplated in subsection (1), take into account—


(a) the importance, significance, complexity and expertise of the legal services required;
(b) the seniority and experience of the legal practitioner concerned, as determined in this Act;
(c) the volume of work required and time spent in respect of the legal servicesrendered; and
(d) the financial implications of the matter at hand.


(3) Despite any other law to the contrary, nothing in this section precludes any user of litigious or non-litigious legal services, on his or her own initiative, from agreeing with a legal practitioner in writing, to pay fees for the services in question in excess of or
below any tariffs determined as contemplated in this section.
(4) The South African Law Reform Commission must, within two years after the commencement of Chapter 2 of this Act, investigate and report back to the Minister with
recommendations on the following:


(a) The manner in which to address the circumstances giving rise to legal fees that are unattainable for most people;
(b) legislative and other interventions in order to improve access to justice by the members of the public;
(c) the desirability of establishing a mechanism which will be responsible for determining fees and tariffs payable to legal practitioners;
(d) the composition of the mechanism contemplated in paragraph (c) and the processes it should follow in determining fees or tariffs;
(e) the desirability of giving users of legal services the option of voluntarily agreeing to pay fees for legal services less or in excess of any amount that may be set by the mechanism contemplated in paragraph (c); and
(f) the obligation by a legal practitioner to conclude a mandatory fee arrangement with a client when that client secures that legal practitioner’s services.


(5) In conducting the investigation referred to in subsection (4), the South African Law Reform Commission must take the following into consideration:

(a) Best international practices;
(b) the public interest;
(c) the interests of the legal profession; and
(d) the use of contingency fee agreements as provided for in the Contingency Fees Act, 1997 (Act No. 66 of 1997).

(6) The Minister may by notice in the Gazette determine maximum tariffs payable to legal practitioners who are instructed by any State Department or Provincial or Local Government in any matter.
(7) When any attorney or an advocate referred to in section 34(2)(b) first receives instructions from a client for the rendering of litigious or non-litigious legal services, or
as soon as practically possible thereafter, that attorney or advocate must provide the client with a cost estimate notice, in writing, specifying all particulars relating to the
envisaged costs of the legal services, including the following:


(a) The likely financial implications including fees, charges, disbursements and other costs;
(b) the attorney’s or advocate’s hourly fee rate and an explanation to the client of his or her right to negotiate the fees payable to the attorney or advocate;
(c) an outline of the work to be done in respect of each stage of the litigation process, where applicable;
(d) the likelihood of engaging an advocate, as well as an explanation of the different fees that can be charged by different advocates, depending on aspects such as seniority or expertise; and
(e) if the matter involves litigation, the legal and financial consequences of the client’s withdrawal from the litigation as well as the costs recovery regime.


(8) Any attorney or an advocate referred to in section 34(2)(b) must, in addition to providing the client with a written cost estimate notice as contemplated in subsection (7), also verbally explain to the client every aspect contained in that notice, as well as any other relevant aspect relating to the costs of the legal services to be rendered.
(9) A client must, in writing, agree to the envisaged legal services by that attorney or advocate referred to in section 34(2)(b) and the incurring of the estimated costs as set out
in the notice contemplated in subsection (7).
(10) Non-compliance by any attorney or an advocate referred to in section 34(2)(b) with the provisions of this section constitutes misconduct.
(11) If any attorney or an advocate referred to in section 34(2)(b) does not comply with the provisions of this section, the client is not required to pay any legal costs to that
attorney or advocate until the Council has reviewed the matter and made a determination regarding amounts to be paid.
(12) The provisions of this section do not preclude the use of contingency fee agreements as provided for in the Contingency Fees Act, 1997 (Act No. 66 of 1997).