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Law Of Civil Procedure > Chapter 3- Consultation, Legal Rep., Demand And Prescription > Flashcards

Chapter 3- Consultation, Legal Rep., Demand And Prescription Flashcards

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0
Q

What preliminary questions must the attorney ask when taking on a new client? -4 points

A

1) Does your client have a valid cause of action;
2) Does your client have the necessary locus standi in the matter;
3) Does it fall in the particular jurisdiction of your area;
4) Has the claim prescribed.

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1
Q

In deciding whether to represent a respective litigant, what circumstances will an attorney have to consider? - 4 points

A

1) Whether he may act on behalf of the client;
2) Whether to proceed by action or application;
3) Whether to appoint an advocate in the matter;
4) The cost implications of the proceedings.

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3
Q

In the first consultation, what does the 4 stage process consist of? - 4 points

A
  • Stage 1: Introduction/meet & greet
  • Stage 2: Listening
  • Stage 3: Questioning
  • Stage 4: Advice
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4
Q

What does Stage 1 consist of? -4 points

A

Intro/ meet and greet:

  • Be punctual
  • Introduce yourself to the client
  • Put your client at ease
  • Ensure that their is mutual respect
  • Explain to the client from the outset the purpose and reason for consultation.
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5
Q

What does stage 2 consist of?

A

Listening!!! This is the most NB of the stages, listen to your client and don’t interrupt.

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6
Q

What does stage 3 consist of? Check list- 5 points

A

Questioning: the checklist is as follows-

  • Facts: get all the facts of the case.
  • Cause of action: det. exactly the best cause of action for your client.
  • Locus Standi: det. whether your client has the sufficient locus standi in the matter.
  • Jurisdiction: det. where to list an action.
  • Dates: determine the prescription periods in respect of claim.
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7
Q

What does stage 4 of the first consultation consist of? - 4 points

A

Advice: NB- NEVER PROVIDE ANY GUARANTEES!!!

  • Advise the client if you require further time to research their case;
  • Give an outline of advice/options available to your client;
  • Use plain and understandable language;
  • Construct a letter outlining for your client.
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8
Q

After your first consultation, what must you include in the letter for your client? - 4 points

A

Your letter must include:

  • The facts of the case;
  • Application of law;
  • Conclusion/result
  • Recommend to your client the best cause of action.
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9
Q

What must the attorney take into account during a first consultation with a client? -3 points

A
  • Never overstate the merits of your client’s case;
  • Be honest about merits of his case;
  • Under promise and over deliver.
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10
Q

After the first consultation with a client, what duties does an attorney have? - 3 points

A
  • Continue taking instructions from your client;
  • Continually interact and communicate with the client;
  • Mandate.
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11
Q

What are the administrative arrangements that the attorney must make? -5 points

A

1) FICA
2) Fees
3) Open a file
4) Mandate letter
5) Manage file properly

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12
Q

What does it mean that you need to FICA your clients?

A

The Financial Intelligence Centre Act requires that you know your client (KYC), which includes confirming a client’s identity and residential address.

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13
Q

When making arrangements with a client regarding your fees, what must an attorney do? -3 points.

A
  • Discuss the possible cost implications with your client sooner rather than later;
  • It is customary to obtain a deposit in order to cover the initial costs;
  • With regards to invoicing, explain your invoicing arrangement with the client.
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14
Q

When opening a file for your client, what must the file include? -7 points

A
  • 1) The file must contain all documents in the matter;
  • 2) Put the names of the parties on front cover;
  • 3) An account number should be allocated to the client;
  • 4) All the info on the matter;
  • 5) Draw up columns on inside and outside pages so that all info is in chronological order, or use an electronic system;
  • 6) Categorize different folders into sub folders;
  • 7) Diarise all NB dates such as the prescription time of the claim, and write these dates at the front of the file.
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15
Q

What must the mandate letter addressed to your client include?
-4 points

A

It must confirm:

  • Terms and conditions
  • The mandate of the attorney
  • All the fee arrangements
  • Instructions and strategy
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16
Q

How must an attorney manage the clients file properly? -5 points

A
  • Take instructions
  • Keep client informed
  • Keep the file neat
  • Proper practice management- store in one place
  • File all your notes on the case
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17
Q

What happens when an attorney’s mandate is terminated?

A

Retention/lien- an attorney has the right to hold onto his own documents in respect of the client’s case until full payment has been made. However he must hand over all of the documents that were given to him by the client.

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18
Q

What is the cornerstone of SA law of civil procedure?

A

The principle of legal representation.

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19
Q

Is the right to legal representation entrenched in the Constitution?

A

Yes, it is entrenched in s35(2) and (3) of the Constititution.

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20
Q

What is the relationship between a client and attorney?

A

It is one of representation by agency, and it is governed by the law of agency.

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21
Q

What are the 2 kinds of power of attorney that an attorney may request, and what does it do?

A

1) Special power of attorney- this is requested in order to establish the attorney’s mandate, but such a power of attorney is not obligatory, except when commencing on appeal.
2) General power of attorney- this grants an agent a general mandate to conduct all legal acts on behalf of the principal.

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22
Q

What is the purpose of a request for a special power of attorney?

A

It authorises an attorney to institute or defend a specific legal proceeding on behalf of the client and to conduct any other function which is incidental to such a legal proceeding.

23
Q

What was the previous position in the High Court with regards to power of attorney?

A

In the past power of attorney was always required for legal representation in the HC.

24
Q

What is the present position regarding power of attorney in the HC?

A

Presently, HCR 7 provides for legal representation without the need to file for power of attorney.

25
Q

What should happen in the HC if the authority of an attorney to act on behalf of a client is disputed?

A

The attorney must satisfy the court that he has a mandate to act on behalf of the client. A matter may even be postponed to allow for the attorney to opportunity to present proof of necessary power of attorney. It should be raised in as a technical point in limine and not for the first time in the heads of argument.

26
Q

Is a power of attorney required in appeal cases?

A

Yes, it is essential for power of attorney in order to establish authority to proceed to with the appeal on behalf of the client.. It must be filed when the legal rep. applies for an appeal.

27
Q

Who must legally represent a party with locus standi in the HC?

A

A party with locus standi may instruct and be represented by an attorney and an advocate or by an attorney alone where the attorney has a right of appearance in the HC.

28
Q

Is it compulsory for a party with locus standi to have legal representation in the HC?

A

No, a party may conduct his or her own case and appear in person before the court.

29
Q

What sort of legal representation do juristic persons require in the HC?

A

A juristic person can’t be represented by an official employee and must be represented by an attorney and advocate or just by an attorney with right of appearance.

30
Q

What sort of legal representation do municipality/local authorities require in the HC?

A

A standing resolution usually delegates power to institute or defend legal proceedings to a specified official. The designated official, on providing proof of such relevant resolution, may instruct an attorney to act on the behalf of the municipality or local authority.

31
Q

In terms of HCR 16, what is an attorney acting on behalf of a party required to do?

A

The attorney is required to notify the opposing party of his name and address. In doing so, the attorney is placed “on record” as the representative of the client. The attorneys address must be within 8 km of the court and becomes address for service and delivery of all pleadings, notices and processes.

32
Q

When may a party terminate the attorney’s mandate?

A

At any stage of the litigation process, and appoint another attorney.

33
Q

Who must be informed by notice of termination of an attorney’s mandate?

A

A notice is delivered to the registrar, and all interested parties are informed by notice of termination of previous attorney’s mandate.

34
Q

When a new attorney is appointed to a matter by a party, how must the attorney notify all parties involved?

A

The newly instructed attorney is obliged to deliver a notice of entry as attorney on record to the opposing party and the registrar.

35
Q

When may an attorney withdraw as the attorney on record?

A

When the client doesn’t pay for legal services rendered or doesn’t furnish proper instructions.

36
Q

How must an attorney withdraw as the attorney on record?

A

He must notify the client, the opposing party and the registrar of his withdrawal. When the notice of withdrawal is served by hand, an acknowledgement of receipt will be sufficient proof of withdrawal. When done through registered post, the registered slip will serve as notice of dispatch.

37
Q

At what stage may an attorney withdraw as an attorney on record?

A

It is good practice to withdraw at an early stage of litigation to allow the previous client enough time to find a new attorney. It is unethical to withdraw a day before trial and only then to deliver notice of withdrawal to former client by registered post as he won’t receive it in time.

38
Q

What happens when a party to any proceedings does or becomes incapacitated?

A

In terms of HCR 15 it is possible to substitute such a party with an executor, curator, trustee or similar legal representative. The court may, on notice of application, set aside or vary any addition or substitution.

39
Q

How are are private persons represented in MC’s?

A

In terms of MCR 52(1)(a) A party may either personally or by means of a a practitioner institute or defend legal proceedings and carry it to completion. Practitioner includes an advocate, attorney or candidate attorney.

40
Q

Is it necessary for a party to file for power of attorney in MC?

A

According to MCR 52(2) it is unnecessary to file for power of attorney for the purposes of MC civil litigation.

41
Q

What happens when the opposing party challenges the authority of the practitioner?

A

Within ten days of becoming aware of a person acting on behalf of another person in litigation, with leave of the court and on good cause shown, challenge the authority of a person so acting. The person may not act further until the court is satisfied of his authority to do so.

42
Q

Who may represent a company, local authority or other inc. body require in a MC?

A

In terms of MCR 52(1)(b) such person may act through an officer nominated by it for the purpose.

43
Q

Who may represent a group of persons associated for a common purpose or a partnership require in a court?

A

In terms of MCR 52(1)(c) these persons may act through a member nominated by it for the purpose.

44
Q

What does MCR 52(1)(d) state with regards to persons acting on behalf of persons in MC?

A

It states that no person acting in terms of MCR 52(a)-(c) other than legal practitioners, shall be entitled to recover any costs other than necessary disbursements.

45
Q

May a candidate attorney appear in court?

A

S8(1) of the Attorneys Act, candidate attorneys may appear before a MC, board or tribunal but not before HC.

46
Q

In terms of MCR 52(2) which persons need not file for a power of attorney?

A

1) State Attorney
2) Deputy State Attorney
3) Professional assistant to State Attorney
4) Any attorney instructed by the SA or DSA in matter where they are acting in official capacity.

47
Q

What are the two types of proceedings that an attorney must choose to be used?

A

Application proceedings and Action proceedings.

48
Q

What happens if the incorrect procedure is selected?

A

The client may be penalized by time wasted and a cost order.

49
Q

In what case were the essential differences between an action and application set out?

A

Room Hire Co Pty Ltd v Jeppe Street Mansions Pty Ltd.

50
Q

What are the essential differences between an action and application?

A

CHECK TABLE!!!! Pg 32

51
Q

What is a letter of Demand?

A

An attorney usually sends such a letter to the opposing party before a summons is served trying to persuade the party to pay the amount claimed or to settle the dispute without having to go through litigation. A demand may also be made directly by a prospective applicant or plaintiff.

52
Q

When is a letter of demand sent?

A

It is usually the first act of the attorney acting on behalf of the prospective plaintiff.

53
Q

How is a demand made?

A

Usually made in writing but can also be done orally.

54
Q

Before the initial consultation, what duties does the attorney have? -4 points

A
  • The attorney must firstly make preparations for the first consultation.
  • He must also make a number of admin. arangements.
  • He must stick to a structured format
  • He must follow the 4 stage process.

Law Of Civil Procedure (8 decks)

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