September 4, 2021

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The developments in the regulation of the legal profession since Bertelsmann v Per 1996 (2) SA 375 (T) have evolved the “professional or trade usage” that the attorney is liable for the fees charged by the advocate he or she has briefed to a hardened rule of law that must be implied in the contract between the attorney and advocate as a matter of law, if not so expressly agreed …, the Legal Practice Act 28 of 2014 (LPA) and the Code of Conduct for Legal Practitioners, Candidate Legal Practitioners and Juristic entities (Code of Conduct).

In the case of Richard Alan Solomon and Arlette Mary Macmanus v Vishal Junkerparsad, In the High Court of South Africa, Gauteng Division, Johannesburg Commercial Court Case No; 27003/2019 and Case No: 37456/2019, Johannes Meyer J discusses the advocates’ profession, the case law on instructions from attorneys and fees.

[13] ‘… [T]he Code of Conduct serves as a prevailing standard of conduct. Failure to adhere to the Code of Conduct will constitute misconduct and transgressors will be subject to disciplinary proceedings in terms of the rules promulgated under section 95 (1), 95 (3) and 109 (2) of the Legal Practice Act 28  of 2014 (LPA)’.

[15] ‘[P]aragraph 27.2 of the Code of Conduct provides that ‘[c] ounsel shall accept a brief only from an attorney, and counsel shall not accept a brief directly from any other person or entity for either litigious or non-litigious work of any kind, save that counsel may accept a brief … from a justice centre … or perform professional services on a brief from an attorney or legal practitioner in another country, including the equivalent of a State attorney or the attorney general or director of public prosecutions, without the intervention of a South African attorney’.’

[17] ‘[Paragraphs 34.2 and 34.3 of the Code of Conduct provide that ‘[c]ounsel shall render accounts to the instructing attorney … and shall receive payment only from the instructing attorney’ and ‘shall not submit an account directly to a client, except by agreement with the instructing attorney and client, on condition that the same account is simultaneously submitted to the instructing attorney, nor receive payment directly from a client’.’

[18] ‘[Paragraph 18.18 of the Code of Conduct provides that ‘[A]n attorney shall pay timeously, in accordance with any contractual terms or, in the absence of contractual terms, in accordance with the standard terms of payment, the reasonable charges of an advocate when he has instructed to provide legal services to or on behalf of a client, such liability shall extend to every partner of a firm or member of an incorporated practice, and if the firm is dissolved, or the incorporated practice is wound up, liability shall remain with each partner or member, as the case may be, the one paying the other to be absolved.’ … paragraph 21 provides inter alia that the failure of an attorney to comply constitutes misconduct’.’

[19] ‘[B]y virtue of the LPA and the Code of conduct made and promulgated in terms of section 36 thereof, an attorney, as a rule of law, is liable for the fees charged by the advocate he or she has briefed. What counsel is to charge is the subject matter of an agreement between counsel and attorney, not between counsel and the client. It is the attorney who offers the brief to counsel and counsel who accepts the brief or declines the acceptance of the offer of the brief, inter alia if an agreement between counsel and the instructing attorney cannot be reached on the fee to be charged by counsel. Fees owed to counsel are the indebtedness of the attorney. The attorney’s liability for payment of counsel’s fees, who he or she has instructed, also extends to every partner of a firm, and if the firm is dissolved or incorporated is wound up, such liability remains with each partner or member. Where such attorney … is unable to pay, counsel may, with the leave of the Provincial Council, receive the fees due to him or her from another source ‘in the discharge of the indebtedness of the attorney’.’

[20] ‘[T]he acceptance by counsel of an offer by an attorney of a brief, what counsel is to charge and the legal liability for payment of fees charged by counsel is the subject matter of a contract between the instructing attorney and counsel alone. The client for whom counsel is to render the legal services is not in privity of that contract, although counsel renders the professional services to the client, and to the instructing attorney.’

[22] ‘[T]he … (attorney) who instructed the … advocates to provide legal services to or on behalf of his or his incorporated firm’s clients, therefore, is liable to pay the reasonable charges of counsel, although his liability also extends to every member of his incorporated firm, if there are any other members or members thereof. He may legally be sued personally and a judgment can legally be entered against him.’

Please note that our blog posts are informal commentaries on developments in the law at the time of publication and not legal advice.

About the author 

Sipho Nkosi

Sipho Nkosi is an experienced Legal Professional with a demonstrated history of working in the legal services industry. A strong legal professional with a B Proc degree focused in Law from the University of Natal (Howard College), with a keen interest in corporate governance and a profound insight into Compliance Risk Management. Skilled in litigation and procedural law, and an affiliate member of the Compliance Institute Southern Africa.

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