The Practitioner and his client

Question 1

Describe the treatment of clients
that’s important for the retention of clients

Answer 1

1. Client is the most important
2. You are dependent on the client
3. The client is doing you a favour
4. You should not fight with your client
5. Clients are the lifeblood of the firm (bring in the money)

Question 2

What can be said about accepting the mandate(instructions) of your clients

Answer 2

There is no obligation to accept your clients’ instructions

Question 3

Factors/reasons why a practitioner could deny a client’s mandate

Answer 3

Ø Potential conflict of interest
Ø Potential fraud and illegality
Ø Competence (Knowledge and Skill)

Question 4

Ebersohn v Tvl Law Society
on denying a mandate

Answer 4

If you don’t have the knowledge or skill to
complete an instruction from a client you don’t
have to carry it out and probably shouldn’t try.

Question 5

Ebersohn v Tvl Law Society
on denying a mandate

Answer 5

If you don’t have the knowledge or skill to
complete an instruction from a client you don’t
have to carry it out and probably shouldn’t try.

Question 6

Describe the process before accepting the client’s mandate

Answer 6

Satisfy yourself of the following:
Ø The client’s identity
Ø The client’s competence
Ø The authority of the holder of a power of attorney
Ø Scope of instruction (good communication is vital).
Consider FICA (Financial Intelligence Centre Act)

Question 7

Aim of FICA

Answer 7

Combat crime and money laundering

Question 8

Costs when considering FICA

Answer 8

Consider COSTS
Ø Must provide the client with a written cost estimate
Ø Explain the question of costs (breakdown)
§ Hourly fee
§ Charges
§ Disbursements
Ø Provide an outline of the work to be done
Ø Difference between party and party cost and attorney and client costs
Ø Fee agreement

Question 9

Explain the difference between party and party cost and attorney and client costs when considering costs under FICA

Answer 9

§ Party and Party=are those costs recoverable from the other side provided there is a costs order or agreement to pay the costs.

§ Attorney and Client=The costs of the party and
not the attorney, experience over the years has led to a well-established practice.

Question 10

Leite v Leandy & Partners
on unrepresented clients

Answer 10

Ø Attorney who is drawing a contract between a client and
an unrepresented party has a duty to act fairly to BOTH
parties
Ø Unrepresented party should seek independent legal
advice

Question 11

Execution of instructions under Leite v Leandy &Partners

Answer 11

Ø Duty to obey your client’s specific instructions
Ø Obtain instructions for every action you take
Ø Always act in the best interests of your client

Question 12

Describe the Washaya v Washaya on Settlements

Answer 12

§ Get instructions in terms of how to handle
settlements.
Ø Clients are not bound by the actions of lawyers where
the lawyer exceeds the mandate they are given.

Question 13

Describe costs ito Contingency fees

Answer 13

v Sometimes attorneys will do a “no win, no fee” agreement
with clients. If they don’t win the case, the client doesn’t have
to pay.
v Contingency fees are not allowed in Matrimonial matters and Criminal matters
v Common law agreement is illegal, as per the judgement in
De La Guerre v Ronald Bobroff

Question 14

what can be said about overcharging?

Answer 14

v Excessive Fees = Removal from the roll
Ø Pretoria Society of Advocates v Geach
Ø Law Society of Cape v Tobias
Ø Bitter NO obo De Pontess v Ronald Bobroff

Question 15

List the factors assessed in determining the appropriateness of funds by the Fee Assessment Committee

Answer 15

Ø Difficulty
Ø Seniority
Ø Expertise
Ø Urgency
Ø Time Spent
Ø Importance and Value (of claim)

Question 16

Overview on professional negligence

Answer 16

v It is an implied term of the contract between yourself and the
client that you are liable to your client in damages for
breach of contract.
v A duty of care exists.
v The necessary skill and knowledge are expected

Question 17

Mouton v Mynwerkersunie on the test applied for professional negligence

Answer 17

The test applied is a Reasonable Attorney/Expert Attorney test.
Ø Therefore, it is not a reasonable person test.
Ø It is stricter and more specific.

Question 18

Pretorius v McCallum 2002 on liability towards non-clients

Answer 18

Ø Facts: Beneficiaries of the deceased sued on the basis that the deceased had been misinformed that he was part of a group scheme when he was in fact omitted from the
scheme.

Ø Held: Liability to the beneficiaries was established and therefore the payment of what the life policy would have
been, had to be made.

Question 19

What’s your ethical duty when you discover that your client’s claim had become prescribed?

Answer 19

Ø Inform Client
§ They must seek legal advice.

Ø Never admit negligence
§ Professional indemnity insurance policy.

Question 20

v Attorney A settles a matter and pays the settlement amount (R10 ‘000.00) to his client Joe Soap. Joe discusses the matter with Attorney B, who advises Joe that the claim should have
been settled for at least R80 ‘000.00. Advise Joe

Answer 20

Ø Determine whether Joe actually gave instructions to Attorney B.
Ø Where Joe instructed him to settle for R10‘000.00, then there is nothing to be done.

Ø Where Joe did not give him any instructions, Joe does not need to accept the settlement and can ask for the remaining R70 ‘000.00.

Question 21

Reason for decision in Joe example

Answer 21

• Washaya v Washaya
• Clients are not bound by the actions of lawyers
  where they act beyond their mandate

Question 22

What does Confidentiality and Professionalism apply to?

Answer 22

All communications made:
Ø In your professional capacity
Ø Confidentially
Ø For the purpose of seeking legal advice (institute action)

Question 23

General rules of confidentiality and professionalism

Answer 23

v All communications between you and your client are
confidential
v It remains confidential even after the termination of the
mandate
v It can only be waived by the client

Question 24

(Case study on confidentiality and professionalism)
v Your client, Joe Soap, confesses to you that he murdered his wife.
v What do you do?

Answer 24

Ø Inform the police?
No, you are bound by privilege.

§ Crime/Fraud Exception If the client intends to
cover up or further achieve a crime then it privilege does not apply.

§ EXAMPLE:
* Guy says he killed his wife? Privilege applies.
* Guy says he killed his wife and that his son saw
him do it, so he’s going to kill his son to prevent
him from testifying? Privilege does not apply, as
this is said with intention to commit a further
crime/ cover up a crime.

Ø Represent him vs withdraw from the case?
§ Represent:
Remember, there is no obligation to carry out instructions of client. You can choose to represent if you want to.
§ Withdraw:
You may withdraw, but the privilege remains.

Question 25

Protection of Personal Information Act (POPI Act) in context of conflict of interest

Answer 25

There is a duty to protect personal information of clients.

Question 26

General rule ito conflict of interest

Answer 26

The man who undertakes to serve two masters may easily find himself false to one and possibly both.
v If there is a conflict of interest.
v Withdraw from the matter.

Question 27

Examples of conflict of interest

Answer 27

v Act for both plaintiff & defendant
v Borrow money from client
v Disclose information of prior client
v Act for two accused
v Represent both employer and employee
v Becoming sexually involved with a current client
v Commission
Ø What about property transactions or investments?
§ Conveyancing fees.

Question 28

Test to determine gift or bribe

Answer 28

Value of gift
Ø A bribe is a bribe
Ø Labour Court found that value of the bribe doesn’t matter.
Ø A Home Affairs official was fired for taking a single pack of Marie Biscuits to prove a faster and preferential service.

The ruling seems to suggest one must look at the reason behind gift.

Question 29

Duties of a Commissioner of Oath

Answer 29

v Shall not administer an oath if he has an interest
Ø Even if the interest is indirect it doesn’t matter

Question 30

Radue Weir v Galleus Investments on duties of commissioner

Answer 30

v Affidavit must be signed in the presence of a Commissioner of Oath
v No fees payable (NB)

Question 31

Rule on sworn translations.

Answer 31

Attorneys should not translate documents to be used on behalf of his client in litigation

Ø Why? à Conflict of interest

Ø Solution: Appoint an independent sworn translator

Question 32

What happens if clients don’t pay fees?

Answer 32

v Clients will play deposits
v Then you issue summons to them.
v Right of retention applies.

Question 33

Describe right to retention (lien)

When does it apply?

Answer 33

v Arises when a dissatisfied client terminates the mandate.
v The lawyer then has a right of retention over the file until compensated for work done

Question 34

case law on right of retention

Answer 34

KZN: Botha v Mchunu
Ø If entitled to charge a fee, the lawyer is entitled to exercise right of retention.

v Free State: Free State Agri v Mthembu & Mahommed
Ø Follows decision in Botha.

Question 35

When can the Client can Terminate the Mandate

Answer 35

At any time without reason.

Question 36

what are the conditions for when the Attorney can Terminate the Mandate?

Answer 36

v Must have good reason:
Ø Improper conduct of client
Ø Failure to provide funds
Ø Client does not accept advice
Ø Personality clash
Ø Illness

v Must withdraw timeously (NB)

v “I don’t have time” – is NOT an excuse

Question 37

Drake Flemmer & Orsmond Inc and Another v Gajjar
as case law on termination of a mandate

Answer 37

Facts
Contract – breach of mandate by first attorneys in under-settling RAF claim – breach by second attorneys
in allowing claims against first attorneys to prescribe –
damages to be assessed at the notional trial date of RAF claim.

Held: Client was entitled to payment for negligence of both firms.