Lawyers can be fierce and intimidating and it’s these qualities that we value when we need them to fight on our side. But what happens if they use those very same qualities against us? Or if they are negligent, reckless or don’t provide the service that we ask them to provide?
In every industry there are those rotten few who put the rest of the bunch to shame and leave consumers wondering: can they be trusted? If you don’t think your lawyer has done his or her job you do have ways to complain. In particular, you can refer their misdeeds to the respective Law Society that manages your province. Co-chairperson of the Law Society of South Africa (LSSA), Walid Brown, tells us more about how the complaints process works:
What are the typical complaints that you get from clients?
These range from a failure to reply to correspondence, a failure to attend to a matter diligently, a failure to carry out the mandate of a client, complaints relating to fees charged, complaints relating to conduct that brings the profession into disrepute and complaints relating to a failure to account for trust funds.
How quickly do you settle these complaints?
This is done by the statutory provincial law societies. It is very difficult to attach a time period as this would depend on the nature of the complaint. The process and timeframes followed are set out in the Rules for the Attorneys’ Profession. Simple matters can be dealt with relatively quickly if the timeframes are adhered to by both the complainant and the attorney. However, a more complex matter, which may involve a court application, can take much longer to resolve.
What types of attorneys get the most complaints laid against them?
Generally, debt collection, estates and conveyancing matters.
Do you get complaints about fees that attorneys charge?
Complaints relating to fees charged vary from a misunderstanding of the fee arrangement/agreement between the attorney and the client to an allegation by the client that the attorney has overcharged.
Some complaints could be avoided if attorneys were to enter into written fee agreements with their clients and to explain the terms to the clients. We encourage attorneys and their clients to reach a consensus about the fee upfront so that there is no dispute at the end of the matter.
Do you find that there are any major issues within the legal industry that need tackling in terms of reducing complaints?
There needs to be better communication between attorneys and clients to avoid misunderstandings later. The Legal Practice Act which will come into operation in 2018 will require attorneys to provide a written cost estimate to a client and also to explain the services and costs verbally. The client must, in writing, agree to the envisaged legal services and the incurring of the estimated costs.
Do you think that lawyers make their terms and conditions clear enough to their clients?
The complaints experience of the provincial law societies suggests that many complaints could be avoided if attorneys explained to their clients the nature of the legal services they have agreed to render to their clients, and the cost implications.
Most of the complaints arise from additional instructions or mandate provided by a client during a matter. We encourage clients to have a clear plan when they consult with their attorney and for the attorney to keep the client informed should there be any additional charges. Although attorneys may explain the cost implications upfront, clients can easily lose track of the impact that voluminous correspondence and many consultations can have on the costs.
Why does the law society not have regulatory powers?
The Law Society of South Africa is a voluntary association – not a statutory body – with six constituent members: the four provincial law societies, the Black Lawyers Association and the National Association of Democratic Lawyers. It does not have regulatory powers. In a new dispensation under the Legal Practice Act, the Legal Practice Council will have national regulatory powers.
Will the Law Society ever get regulatory powers or are there any calls for it to do so?
The provincial law societies have such powers now and once the Legal Practice Council comes into operation in terms of the Legal Practice Act (expected to be in 2018), it will have the requisite regulatory powers. The Legal Practice Council will be a national regulatory body that will regulate both attorneys and advocates. The Law Society will remain as a professional interest organisation.
What other bodies can clients appeal to if they are not happy with the service they are getting from their attorney?
Currently only to the provincial law societies and beyond that, to the High Court. Attorneys are, first and foremost, officers of the court. The Legal Practice Act makes provision for a Legal Services Ombud in the future dispensation. The LSSA has supported the office of an ombudsman for legal services.
What advice do you have for clients before they engage the services of a lawyer?
- Ask for a cost estimate, and enquire about the cost implications and how the costs will be calculated.
- If an advocate is to be briefed in the matter, ask for the cost estimate to also include an estimate of the advocate’s costs.
- Give the lawyer correct and complete information, and disclose all the relevant facts to assist your lawyer to give you the appropriate advice.
- Give the lawyer clear instructions.
- Respond timeously to all requests for information.
- Do not direct unnecessary enquiries to your lawyer as she or he may charge consultation fees for these enquiries, and this may increase costs unnecessarily.
- Use the legal system, including the courts, appropriately and do not abuse it for frivolous, vexatious or unnecessary litigation.
How to contact the Law Society
Attorneys fall under the regulatory and disciplinary jurisdiction of the provincial law society where they practice. As such, complaints about attorneys should be lodged with the relevant provincial law society.
- For Gauteng, North-West, Mpumalanga and Limpopo, go to northernlaw.co.za or call (012) 338 5800
- For Free State, go to fs-law.co.za or call (051) 447 3237 ⁄ 8
- For Kwazulu-Natal, go to lawsoc.co.za or call (033) 345 1304
- For the Western Cape, contact the Cape Law Society at capelawsoc.law.za or call (021) 443 6700
This article first appeared in City Press.