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Questions that should be asked before appointing an attorney.

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  • What obligations does an South African attorney have to you?

    • Lawyers are not immune to legal actions and dissatisfied clients can exercise their rights to take lawyers to court in South Africa. The law has set out various scenarios where an aggrieved client can pursue an action against a lawyer.
      The provisions move to hold lawyers accountable and further the interests of the clients to adequate and competent representation. For instance, clients are protected from the incompetency of a lawyer by ensuring that the lawyer has the required experience in the field they intend to practice.

      The number of professional negligence claims against legal practitioners (attorneys and advocates) have increased considerably in the past few
      years. In certain circumstances clients are justified in seeking legal action against legal practitioners for their negligence in dealing with
      their matter.

      Allegations of unprofessional conduct on the part of certain legal practitioners negatively affect the public’s perception of the profession.
      For this reason it is important to ensure accountability of the legal profession to the public.

      Every attorney is bound by his/her profession to ensure that their duties are discharged faithfully and unfailingly. There are different duties of
      attorneys to their clients, and these are clarified as follows:

      • Legal professional privilege and confidentiality – attorneys must not disclose any form of communication or reveal the contents of
      the documents provided by a client without the client’s consent to do so.

      In order for legal professional privilege to apply there are four requirements that must be present, namely, the attorney must
      have acted in a professional capacity, the client must have consulted with the attorney in confidence, the communication must
      have been made for the purpose of obtaining legal advice, and the advice given must not facilitate the commission of a crime or fraud.

      • To uphold the interests of the client – attorneys have a responsibility to exercise due diligence and ensure that they keep
      their clients informed of any developments and progress as the matter proceeds.

      • To render proper accounts – an attorney must explain the cost implications to the client from the outset and how the costs are
      likely to be calculated.

  • Obligations a lawyer has

    • What is attorney-client privilege?

      • Lawyers are required to act and behave ethically towards clients and failure to do this opens the lawyer to disciplinary proceedings.
        The ethical standards include but are not limited to having separate accounts for their office and the clients to ensure they are not attempted to use client's money for personal use.
        If a lawyer fails to do this and uses a client's money for personal use, the client can take a legal action against the lawyer. The rules are found in a code of conduct that regulates the behaviour of the lawyers.

  • Complaint about a legal practitioner

    • In terms of the Legal Practice Act 28 of 2014 legal practitioners fall under the regulatory and disciplinary jurisdiction of the Legal Practice Council (LPC).

      The LPC has a duty to act in the public interest and is committed to protecting the public against unprofessional and irresponsible conduct
      by legal practitioners.

      The first step to resolving an issue that a client has against his/her legal practitioner is by lodging a complaint with the relevant office of the
      LPC, whereafter an investigation will be conducted.

      Depending on where the legal practitioner is practicing, the client can lodge the complaint at one of the relevant offices listed below:

      • Gauteng, North West, Limpopo, Mpumalanga:
      ProcForum Building, 123 Paul Kruger Street Pretoria.
      Tel: 012 338 5800.

      • Eastern Cape, Northern Cape, Western Cape:
      29th Floor, Absa Centre, 2 Riebeek Street, Cape Town.
      Tel: 021 443 6700.

      • Kwa-Zulu Natal:
      200 Hoosen Haffejee Street, Pietermaritzburg.
      Tel: 033 345 1304.

      • Free State:
      139 Zastron Street, Bloemfontein.
      Tel: 051 447 3237.
      The LPC recommends that a client first raise their problem with their legal practitioner in an attempt to resolve the problem, failing which they
      can then approach the relevant LPC for assistance.

  • Where a lawyer improperly handles the case

    • One of the other reasons clients can take legal action against the lawyer is whether the lawyer acts negligently in the cause of the case. Negligence can be in terms of the lawyer failing to
      disclose they lack experience in the nature of your case. The lawyer is also required to communicate the progress of the case to the client. If a lawyer fails to act diligently and
      eventually lead to the client's case being dismissed, the client can take an action against the lawyer for negligence.

  • If a lawyer promises to win the case and fails

    • This does not mean that a lawyer should win all cases. In certain circumstances, even the best lawyers can lose a case even where they acted diligently. However, a lawyer should not mislead
      a client that the case is a sure winner and the client will win the case. As such, a lawyer should be honest with the client and avoid misleading a client.

  • Conflict of interest

    • A conflict of interest is a situation that hinders an attorney’s ability to provide his/her client with undivided loyalty.

      An attorney should be cautious when representing two or more parties at once, such as a divorcing couple, multiple plaintiffs in a personal injury
      matter, or a buyer and seller in a real estate transaction. Even though representation in these situations is ethically permissible, an attorney
      should fully disclose to each client any potential or actual conflicts which could arise and advise them further of their right to independent legal advice.
      A conflict of interest would arise if an existing client’s interest is in direct conflict with the interests of a prospective client. This includes the
      following:

      • providing advice on opposite sides of a dispute or a transaction;

      • providing advice where confidential facts are known to the attorney
      which would affect their judgment.

      Attorneys should generally avoid situations where there is a high probability that a conflict will occur.

      One of the other reasons the client can take a legal action against the lawyer is where the lawyer is conflicted. A lawyer is not allowed to act in the event they have a conflict
      of interest. For instance, a lawyer cannot represent you and another client who has similar adverse interests to yours. If a lawyer is to find themselves in such a situation, they
      should not proceed and should cease acting for the person who came after. The rule moves to protect the client from potential biasness by the lawyer who may favour the other client.
      If a client finds himself or herself in such a situation, they may either fire their lawyer or take legal action of they discover later in the case when the damage is done.

  • Attorney Client privilege

    • One of the other reasons a client can take an action against their lawyer is where the lawyer makes information public that falls within the client-privileged rules. While the lawyer is
      allowed some exceptions to the client-privilege rule, what is said between a lawyer and a client should remain confidential. As such, if a lawyer discloses the information to another
      party in circumstances that do not allow the disclosure, a client can take legal action against the lawyer.

      If a client is of the view that the lawyer has mishandled their matter and have an unfavourable outcome, they should lodge a complaint and take a legal action against the lawyer. It is however
      essential to take into consideration the veracity of the matter and whether it is just a misunderstanding between the client and the lawyer. If it is a misunderstanding, the same can
      be resolved. However, if it is not, the lawyer can b held accountable for mishandling the case.

  • Holding documents in lien

    • An attorney has the right to retain a client’s file for as long as their account has not been fully paid. Attorneys are entitled to charge interest
      on amounts outstanding up to the legally allowed rate, or exercise a lien over any documents or monies they possess for the bills that are not
      paid within that time.

      The following documents in a client’s file belong to the attorney:

      • Letters addressed to the attorney by the client;

      • Copies of letters by the attorney to the client;

      • Notes that the attorney made in a file for their own use and for which the attorney does not charge the client, such as office
      memoranda, consultation notes and diary entries.

      Once an attorney’s account is paid in full the attorney must hand over the file to the client. The attorney is allowed to make copies of the
      documents subject to the lien and may charge the client for those copies.

      In the event that a client is having difficulty in paying the his/her previous attorney’s account and requires the file for his/her matter to proceed,
      then the client’s new attorney can provide an undertaking that all costs will be paid to the previous attorney. Upon receiving the undertaking the
      previous attorney can hand over the file to the new attorney so that the client’s matter may proceed.

      The client can also take legal action if the lawyer holds in lien property such as a logbook or title deed of the client. While there are instances where a lawyer can hold in lien
      the property of the client, if the client is of the view that his documents are being held in an unjustified manner, the client can take a legal action against the lawyer.
      Lawyers are allowed to hold in lien documents of the clients for instance of they are after their fees and have not been paid by the client. However, if it is unjustified,
      legal action can be taken.

  • Where a lawyer overcharges a client

    • A client who is unhappy with an attorney’s fees should query such fees with the attorney, there may be a simple explanation for the amount
      being charged. Should this method fail to provide sufficient results then the statement of account should be taxed.

      The attorney must prepare a statement which lists every item for each charge. Each item must be dated and coupled with a short explanation
      for the charge. The principle is that the fees charged must be in accordance with the prescribed fees by the Legal Practice Council.

      The statement is taxed by the taxing master, an employee of the court (taxing masters are found at both the High Courts and Magistrates
      Courts. To tax a bill entails that you and the attorney can argue about the items on the statement in front of the taxing master. The taxing
      master makes the final decision as to whether the attorney is entitled to charge for the item or not.

      Should a client remain unsatisfied after taxation of the statement of account he/she can refuse to pay the account. This will result in a
      summons being issued against the client by the attorney. Clients should ensure that they are justified in withholding payment for an attorney’s
      fees. The court will not easily rule against an attorney’s statement, unless the client has sufficient proof that the attorney is not entitled to the fees.

      The LPC can be approached in situations where the attorney refuses to provide a statement of account, or does not agree to taxation. The LPC
      will then deal with the matter on the client’s behalf. However, this will take time and may not result in the desired outcome.

      Clients should be mindful that there are numerous situations where an attorney receives a negative result for a client’s matter despite his/her best efforts.

      A client can also take legal action against the lawyer if the lawyer overcharges him. While in most of the instances the legal fee is agreed beforehand, lawyers have at
      times reviewed upwards the figures in an unjustified way. Also, where there is no prior agreement, the lawyer may overcharge the client. Where a client is of the view that the
      lawyer has overcharged them, the client can lodge a complaint at the provincial offices of the society to have the issue corrected. The lawyer will have the opportunity to justify the fees charged and if it is deemed excessive, the client can have the fee
      reviewed downwards.

  • When a client is unhappy with a lawyer

    • Where the client is unhappy with a lawyer, they are required to fire him and file a notice of change of lawyer. The client can proceed to hire another advocate. The Client can file
      their displeasure with the conduct of the lawyer at various offices of the society in their provinces. The society has powers to investigate the conduct of the lawyer.
      In the event the lawyer is found to have acted negligently or breached the code of ethics, disciplinary proceedings can be taken against the lawyer.

  • How to get a lawyer pro bono?

    • The Legal Practice Council will refer you to an attorney who will assist you free of charge (pro bono), provided that you comply with the ‘means
      test’ (a maximum monthly or no income). If you qualify for pro bono assistance you will only be responsible for the actual expenses, such as
      sheriff’s fees. The attorney you are referred to will not charge any fees for the work and legal services provided.

      To get a referral for pro bono assistance by an attorney visit the website of The Legal Practice Council and fill out the application form based on the province you reside in.

  • lawyer vs attorney?

    • The term ‘lawyer’ is generally used to refer to a broad spectrum of legal professionals. A lawyer is anyone who has been trained in law, or has
      attended law school and attained a Bachelor of Laws degree.

      On the other hand, an attorney is someone who has attained their Bachelor of Laws degree, completed their articles in a law firm, written
      the board exams and attended a practical legal training course. While all attorneys can be referred to as lawyers not all lawyers are necessarily attorneys.