More Questions Flashcards
What fees and disbursements may you recover from the debtor if DJ is granted in debt collection matter
May recover tariff stipulated in rules of Mag court for undefended actions
Or any attorney and client fees if debtor consented in writing
When may an attorney refuse to accept a mandate? When is an attorney obliged to refuse mandate and when is he even obliged to accept mandate?
1 an attorney may in principle refuse or accept any mandate
2 attorney must refuse if
- not have nec expertise
- not have sufficient time
- cannot come to a satisfactory arrangement about fees
- instruction is unlawful, immoral and contrary to public policy
- Attorney must accept a mandate from an existing client particularly in emergency situations
- Also accept mandate where limited number of attorneys in particular area with effect no other attorney to assist client
What documents may only be prepared by an attorney with expectation of a fee, gain or reward
S83(8) provides:
- agreement or deed iro immovable property or right in or to immovable property other than leases not exceeding 5 years, conditions of sale or brokers notes
- a will or testamentary writing
- memorandum and articles of association or prospectus of a company
- documents relating to the creation or dissolution of a partnership or any variation of the terms thereof
- any instrument or document required or intended for use in civil proceedings in the republic
How may one recover judgment debt from debtor who
1 earns a good salary
2 has a fully paid car
3 has a claim against brother for money lent
1 obtain emolument attachment order to recover part of salary directly from employers
2 attach the vehicle and have same sold in execution
3 attach the claim against the brother by way of garnishee order
Can you consult with client that is being cross examined
No once under cross examination you may not consult with client at all. This is for obvious reasons as you can advise him how to answer questions or react to evidence
May an attorney in any circumstances divulge information given by client in confidence
Yes in limited circumstances
For example to an executor after clients death or to curator if client placed under curatorship
Also if client waives confidentiality
can an attorney negotiate/reduce fees with client
May legitimately negotiate fees with clients provided does not constitute overreaching or touting
A reduction of charges may be justified if client gives a large volume of work
May you pay an estate agent or any agent commission due prior to transfer of property
This may be regarded as touting
If genuine transaction payment made at attorneys risk
Must be done out of own funds
May attorney mark the fee on a brief to an advocate without discussing it before hand?
Is entitled to but not advised
More correct to discuss it first with advocate
If he does the advocate may accept or refuse
May an attorney require advocate to attend consultations at attorneys office
Rules of Bar Council Prohibit an advocate from meeting in an attorneys office
But nothing prohibits an advocate under appropriate circumstances with special permission to do so
May attorneys request client to consult with counsel without attorney present
An attorney or representative must always be present when an advocate consults with client
How to resolve dispute of fees between attorneys and advocate
1 attorney arrange to discuss fees with counsel and endeavor to resolve dispute
2 if not possible refer matter to ombudsman at the Bar who will endeavor to mediate
3 if not successful lodge complaint with secretary of Bar Council who will arrange proper hearing and debate matter
What is a fidelity fund certificate
Certificate issued ito s42 of the Attorneys Act 53 of 1979- to any practioner practicing for his own account
It remains valid until 31 December every year - renewed annually
How and when is a fidelity fund certificate obtained
Applied to Secretary of Law Society concerned and against payment of prescribed fee and certain required info
Each practicing attorney must be in possession of such certificate before commencing practice
Certificate to be renewed annually
Consequences if fail to renew fidelity fund certificate annually
- may not continue to practice or charge fees for services rendered
- if continuing practice then commits offence ito law society rules
- may be suspended or removed from roll
- client still retains rights against fidelity fund
Can an attorney pick and choose between mandates (if one will produce more profit than the other)
General rule attorney may accept or refuse any work offered to him unless for special reasons there is some obligation to accept or refuse
Attorney enjoys delictus personae with respect to clients - the selection of a person in a position involving responsibility
Write a note on the admissibility in evidence of a letter written without prejudice by one attorney to another in course of litigation
- statements made expressly/impliedly without prejudice in course of bonafide negotiations for settlement of dispute cannot be disclosed in evidence without consent of both parties
- if object of letter is to settle dispute=not admissable
- considered public policy allow people settle dispute without fear that things said in negotiations will be held against them
- in order for statement to be privileged must form part of negotiations not merely labelled without prejudice
- content of letter =deciding factor
- statements made in privileged document not relevant to matter is admissable
- an acknowledgment of inability to pay is act of insolvency even if made without prejudice
- if offer of settlement accepted and dispute settled both letters become admissable
After you draft the clauses the client is satisfied with your work but feels your fees are too high. he asks for taxation. What Procedure is available and which considerations relating to yourself and the mandate will apply in arriving at a reasonable fee?
a) Make use of my local law society as different rules are applicable in different provinces which provide for the council or a committee appointed by it to assess my fees.
b) as regards to my self as a practitioner my skilll, knowledge applied, experience and seniority, possible over caution, negligence and possible mistake will be taken into account
c) As regards to the mandate the complexity importance novelty amount involved value to client documents time and place will be taken into account
May a practitioner share fees earned with his Candidate Attorney
No
May a practitioner pay the candidate a commission based on the fees the candidate attorney generates
yes
May a practitioner share fees with counsel?
No
You find that Letters of Demand sent by the firm do not comply with the NCA. Draft a short paragraph to include demands where the Act applies
Kindly take notice that in terms of Section 129(1)(a) of the National Credit Act no 34 of 2005, you may refer the credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud within jurisdiction, with the intent that the parties resolve any dispute under the agreement or develop and agree on a plan to bring the payments under the agreement up to date
Describe or define Overreaching as opposed to overcharging
Overreaching is abusing the ignorance of another in recovering excessive amounts from clients or debtors containing an element of impropriety
What is the legal relationship between an attorney and client? List four legal consequences arising from this relationship
- the relationship is one of mandate
- in common law the agent may not terminate without good cause
- is not entitled to reward until the mandate has been executed
- may not take secret commission
- must give a financial accounting to the principal on completion
