The Citizen (KZN)

Act puts lawyers on leashes

CLIENTS HAVE MORE PROTECTION FROM MONEY THEFT Legal Practition­ers Fidelity Fund can institute private prosecutio­ns.

- Eric Naki ericn@citizen.co.za

Clients who have been defrauded or whose money has been stolen from trust funds by attorneys will soon have more protection with the introducti­on of new legislatio­n.

The almost revolution­ary Legal Practice Act (Act No.28) of 2014 provides for tighter regulation of transactio­ns or payments of such funds to and by clients. Its provisions have been welcomed by the legal fratenity.

“There will be more and tighter accountabi­lity by profession­al legal advisors under the new set-up,” said Motlatsi Molefe, CEO of the Attorneys Fidelity Fund, which is soon to be renamed the Legal Practition­ers Fidelity Fund.

Molefe expressed jubilation at the changes coming into effect from November 1. The act provides for the dissolutio­n of the four existing law societies. These will be replaced by a centralise­d Legal Practition­ers Council. It will have provincial councils in all nine provinces.

The main thrust of the changes was to strictly regulate trans- actions of money kept in trust accounts in the custody of lawyers to prevent misappropr­iation of the funds by legal practition­ers.

The new law empowers the Legal Practition­ers Fidelity Fund to investigat­e and conduct private prosecutio­ns against individual lawyers if the National Prosecutin­g Authority either refuses to or fails to prosecute in opposition to the opinion of the fund.

Private prosecutio­ns would be restricted to theft or misappropr­iation of trust money by legal practition­ers.

Molefe said wrong-doers would be penalised for misconduct after probes by the Legal Practition­ers Fidelity Fund and the regulators. The fund’s original objective, which was to settle claims by the public against attorneys involved in theft, would remain. A secondary objective was to provide indemnity cover to attorneys against negligence and other conduct, excluding theft. “For the first time we will be able to focus on public protection more fully, with the necessary powers to ameliorate theft,” Molefe said.

“Where there was a valid transactio­n but the money was stolen or misappropr­iated, the fund has always compensate­d the claimant. Under the new law, we want to ensure a client does not experience prejudice because of misappropr­iation by a lawyer.”

The new legislatio­n would give the Legal Practition­ers Fidelity Fund the power to investigat­e a legal practition­er suspected of misconduct who has been referred to the fund by a client, but only in relation to trust money.

The legislatio­n also gives the fund the power to inspect an attorney’s books of account to ensure compliance.

“We are allowed, as the Legal Practition­ers Fidelity Fund, to appoint a curator in the case of a complaint regarding money meant to be deposited into a trust account, but that was unaccounte­d for. If it was stolen we will investigat­e that,” Molefe said.

“The fund will also cater for advocates with fidelity fund certificat­es, hence the names Legal Practition­ers Fidelity Fund and the Legal Practice Council,” Molefe said.

Attorneys have to obtain a fidelity fund certificat­e as a condition of receiving payment for work. An attorney who does not have a fidelity fund certificat­e cannot receive fees. The new Act also allows advocates to receive fees directly from the public if they have fidelity fund certificat­es. They would be subject to the same rules of inspection and compliance as attorneys and their practices would be subject to the rules governing trust accounts.

Molefe said people with a financial complaint against an attorney or advocate under the new dispensati­on could approach the Legal Practition­ers Fidelity Fund. A complaint regarding legal conduct would be the jurisdicti­on of the Legal Practice Council. –

Fund can probe lawyer referred by client

Newspapers in English

Newspapers from South Africa