To: The Law Society
Re: Mary/violation of standards of professional ethics.
Date: 4 May 2016
I. Statement of facts.
Mary Smith is an attorney in general practice and accepts the mandate of Sibongile, a client, who has a claim against a property development company, Twin City (pty) Ltd. Mary accepted the mandate after Sibongile paid R5000 deposit. In the first 6 months following the acceptance there is a lack of communication between Mary and Sibongile as well as no effort from Mary to research the issue at hand. After the last phone call with Sibongile, Mary did start researching Sibongile’s matter and spent 15 hours trying to learn about the subject but found that she lacks the knowledge and proper competence regarding the issue to help Sibongile. This leads Mary to consult with an attorney who specialises in property law, Bob, the same attorney with who Mary is romantically involved with and who has an uncle which is a director in Twin City. Without consulting Sibongile of who Bob is or about his assistance Bob agrees to assist for a Fee of R2000 per hour, which Mary consents to. Thereafter Mary notifies Sibongile of Bob (not of his uncle) and the hourly fee he expects as well as her 15 hour research costs resulting in R10 000.
II. Legal question.
Did Mary violate any standards of Professional ethics?
III. Short answer.
IV. Applicable law.
Legal Practice Act 28 of 2014
Attorneys Act 53 of 1979
M Slabbert “the requirement of being a “fit and proper” person for the legal profession” 2011 PER 212.
Law Society of South Africa
Rules of the Law Society of: the Northern Provinces, Kwazulu-Natal and Cape of Good Hope.
Professional ethics are the rules that govern the behaviour of the people who practice that profession.\’code of conduct\’ refers to ethical rules and standards of the legal profession set out in written form to regulate conduct and legal practice. An attorney is expected to comply with the code of conduct and to fulfil the “fit and proper person” test to aid the client and foster justice in the community.
V. Application of the law to the facts.
i. The attorney-client relationship between Mary and Sibongile.
Professional ethics in the legal profession is detrimental to the relationship between client and attorney. Communication, honesty, commitment from both sides is a necessity to establish this relationship.
Mary only returned 4 of the 8 missed calls from Sibongile after which no other form of communication was established from Mary’s side. While returning these calls Mary had no news of development or any information regarding Sibongiles questions. These serious delays in or lack of proper communication with Sibongile and the unsatisfactory attention to the problem is proof that Mary is not capable of the standard of professional ethics needed to uphold a relationship with her client.
Attorneys failing to pass the “fit and proper person” test can be struck from their roles. This test has no defined wording but is in essence commonly accepted as: upholding the law, reliability, honesty and integrity.
Mary included in each phone call to Sibongile that she was “busy researching the problem”. We know from the facts that Mary only started her research after the last phone call with Sibongile, which means more or less 6 months after accepting the mandate. With regards to professional ethics the abovementioned would constitute as major misconduct and disregard for the clients interest, time or the client-attorney relationship.
It was held in Jasat v Natal Law Society that section 22(1)(d) contemplates a three-stage inquiry:
“Secondly, it must consider if the person concerned is in the discretion of the court is not a “fit and proper” person to continue to practise.”
The test is therefore very important in the legal profession and if Mary’s actions were investigated one would find that she did act dishonestly towards her client and thereby harming the attorney-client relationship, but did not act dishonestly with regards to court or legal proceedings. Mary’s misconduct in this instance relates to the improper acceptance of Sibongile’s Mandate and unprofessional manner in which she has dealt with Sibongile’s query up to this point. Mary would pass the fit and proper person test if it is established on the basis of being fit and proper to practice law, but with regards to Sibongile and potential future clients this conduct would have to be analysed further in order to determine the intensity of this misconduct.
ii. Acceptance of the mandate
During the first meeting of Mary and Sibongile there were a few factors that should have been considered before Mary accepted the mandate. These include: whether Mary had the necessary competence to effectively assist Sibongile, whether there is a potential conflict of interest, potential fraud or illegality. An attorney does not have an obligation to accept the mandate and would be the proper and reasonable thing to do, to not accept the mandate if the before mentioned factors exist.
Mary did accept the mandate and it is obvious from Mary’s discouragement that she lacks competence regarding property law and that her knowledge and skill regarding Sibongile’s problem is limited. This together with the time it took for Mary to start her research (6 months) one could already say that this waste of both Mary and Sibonglie’s time could have been prevented had Mary acted in accordance with the reasonable/ expert attorney test. The test contemplates whether an attorney has the ability to fulfil the duty of care toward the client’s best interests and whether you possess the necessary skill and knowledge to provide for your clients interests.
Mary then seeks assistance from Bob, an attorney who specializes in property law. This would have been ideal since Sibongile’s matter is based on property. The correct manner in which this should have been done was not complied with by Mary, in order to seek legal advice she should have instituted an action so that Sibongile’s confidentiality could stay intact.
There is a distinction between an attorney’s private and professional life, except in the case where your private life has an intense influence on your profession and capacity to comply with the professions code of conduct. In Beyers v Pretoria Balieraad it was said that private and professional conduct must be considered by the court and if either is seen as unprofessional the penalty will have to be determined by court.
To determine whether Mary’s private life constitutes as unethical or professional misconduct the relevant facts will have to be analysed.
Firstly it is known that Mary and Bob is romantically involved and secondly Bob’s uncle is a director of Twin City (Pty) Ltd (the company which Sibongile has a claim against).
Two attorneys that are romantically involved is not misconduct but the fact that Mary is involved with Bob specifically, on the other hand, is ground for unethical conduct because of who his uncle is. Bob and Mary’s relationship generates conflict of interest between both Sibongile and Mary as well as between Sibongile and Bob. Attorneys should refrain from doing anything in a manner prohibited by law or by the code of conduct of the profession which place them in a position in which a client’s interest are incompatible with their own or those of other clients.
iii. Breach of confidentiality
Unethical and professional misconduct is evident in the breach of confidentiality. Mary discloses facts to Bob about sibongile without her consenting to third party assistance (an attorney should obtain instructions from the client before every possible action). The notion of confidentiality can only be waived by your client and Sibongile was neither informed beforehand nor given the opportunity to object to Mary communicating with Bob. Breach of confidentiality is a serious breach of ethics. As an attorney seeking advice from another attorney is not an uncommon occurrence, but because there is no confidentiality agreement between Bob and Sibongile, or any agreement at all, seeking advice from Bob (who may even be personally involved in the query) could seriously harm Sibongiles claim.
iv. Fees involved
The deposit of R5000 that Sibongile paid so that Mary would accept the mandate was legally correct as a client of an attorney has the duty to pay a deposit requested by the Attorney. Nevertheless taking into account that Mary was lacking competence of the subject, the conflict of interest and the potential illegality occurring, because Mary accepted the mandate, one could say it was a violation of professional ethics to accept the mandate. This could also be seen as negligence on behalf of Mary, who should have referred the case to a more competent attorney. This should have been done in light of the reasonable attorney/ expert attorney test.
The Legal Practice Act stipulates which formalities need be complied with by attorneys in respect of fees. Together with Mary’s own hourly fee, section 35(7) states that once Mary received instructions from Sibongile for legal services, or as soon as possible, Mary should have provided Sibongile with a cost estimate specifying costs of legal services as outlined in section 35(7)(a)(b). Although Mary wrote a letter stating these costs, it should have been done before Sibongile accrued any fees as to choose whether or not to terminate the mandate. Mary should have informed Sibongile of the possibility of engaging Bob and the expenses related to his assistance. This should have been provided to Sibongile in written form after which it is necessary for Sibongile to agree to/accept the costs also in writing. Furthermore the client is free to elect whether or not to use the services of a third party, Sibongile was deprived of her right to choose the third party (Bob).
Unlike the Attorney, the client may terminate the mandate at any time. Mary did not provide Sibongile with: a cost estimate pertaining to her instructions, Mary’s hourly fee or inform Sibongile of Bob (the third party). This results in the professional negligence of Mary and non-compliance with the Legal Practice Act. Section 35(10) states that anything contrary to this section constitutes as a misconduct.
Sibongile is not bound by the actions of Mary where they exceed the mandate given. This means that all fees mentioned in Mary’s letter to Sibongile may be declared invalid by court or be altered by courts discretion.
v. Summary and recommendation
The Law Society of South Africa informs the public that complaints of unprofessional attorneys will be investigated by the provincial law Societies in terms of the Attorneys Act. Unprofessional conduct includes: continuous delays in communication, unethical conduct and failure of properly attending to the matter.
When looking at valid reasons for Sibongile to complain in accordance with what unprofessional conduct entails, one finds that all three requirements of unprofessional conduct, in terms of the law society, are met resulting in clear violation of standard of professional ethics. It is in the courts circumspection to determine whether an attorney is guilty of unethical and unprofessional conduct but in order for me to formulate a recommendation the following three cases would have to be analysed:
The severity of striking an Attorney from role was discussed in Summerly v Law Society of Northern Provinces. It was found that the absence of dishonesty creates a circumstance that would not constitute as severe enough to strike from roll but rather to suspend from practicing for a period best suited with the interest of an attorneys clients.
Although the dishonesty that Mary portrays to Sibongile, there is no mention of dishonesty with regards to the courts or relevant jurisdictions, thereby concluding that striking Mary from role would amount in a harsh punishment and is therefore not applicable.
My legal opinion would border between suspension and reprimanding with penalty.
In Law Society Northern Provinces v Mogami , two attorneys were found guilty of unprofessional conduct but not to the extremity of being unfit to practice. The attorneys were rebuked to account properly, to abide by the Attorneys Act an in accordance with the jurisdiction and authority of the Law Society.
In Du Preez and Others v Zwiegers it was found that the attorney was negligent in his dealing with the money deposited into his trust account because he failed to establish a mandate with the client which is what the reasonable attorney would have done.
Establish: “to settle firmly, to fix unalterably”
The reason for this case to become applicable is that Mary did accept Sibongile’s mandate but the delayed commencement of Mary researching Sibongile’s claim and her incompetence in the subject field and the improper involvement of Bob could lead us to believe that as in the Du Preez case the attorney (Mary) did not establish a mandate with her client. The establishment of a mandate with Sibongile should have taken place prior to the acceptance and in the facts given it is evident that Mary did not firmly settle the mandate with Sibongile.
As evident from the facts, applicable law and cases Mary has definitely violated the standards of professional ethics expected from an attorney. Mary has breached the confidentially of Sibongile, and done this with a third party who may be biased towards Twin City. Mary has not complied with Sections of the Attorneys Act as well as of the Legal Practice Act with regards to accepting the mandate and fees.
Sibongile should not be liable for any fees regarding Bob and should not be liable for the fees incurred for Mary’s 15 hour research (the deposit, although valid, could be altered by the courts discretion). The breach of confidentiality and conflict of interest could constitute as reasons for suspension to act in favor of the best interests of her clients and future clients, but in light of the unethical and unprofessional conduct as an attorney, Mary should be reprimanded to adhere to the Attorneys Act, the Legal Practice Act and compliance with the Law Society of South Africa’s jurisdiction.
...(download the rest of the essay above)