Pressure mounts on injury lawyer pair

Ronald and Darren Bobroff are faced with being struck from the attorneys’ roll for overcharging clients, euphemistically known among lawyers as overreaching, writes Laura du Preez

A case against two high-profile personal injury lawyers took a dramatic turn this week when the Law Society of the Northern Provinces filed an application in the Pretoria High Court to strike the fatherand-son pair from the roll of attorneys.

However, the same court has been asked not to wait for the Law Society's application to be heard, but to strike the pair off the roll immediately.

The applications to have Ronald Bobroff and his son Darren struck from the roll follows a series of cases in which the pair have been found to have overcharged accident victims for claims lodged on their behalf against the Road Accident Fund (RAF).

The pair this week sent their clients a letter stating that they had sold their practice to Rael Zimmerman, who practices as Taitz and Skikne Attorneys.

Earlier this month, the Law Society filed with the same court the report of an inspection carried out by its forensic auditors, who found that the Bobroffs had also abused trust fund money, failed to draw up bills for legal fees and failed to pay over to clients within a reasonable time money the firm recovered from the RAF. The audit concluded that the pair “pose a risk” to their clients.

The Law Society is asking the court to order the Bobroffs, as well as their partner Stephen Bezuidenhout, to surrender their certificates of enrolment as attorneys and to appoint a curator to run their law firm, Bobroff & Partners.

The society’s application asks for an order that would see the curator take control of the firm’s trust accounts, identify any incorrect payments from these accounts and pay out those who are owed money from the accounts.

The Bobroffs and Bezuidenhout are opposing the Law Society’s application to strike them off the roll, but the court has been asked to consider an amendment to a counter application asking it to strike the Bobroffs off the roll immediately.

The latest developments stem from a complaint laid with the Law Society of the Northern Provinces in 2011 by former clients of Bobroff & Partners, Jennifer and Matthew Graham.

Matthew Graham was injured in an accident in 2006, and Bobroff & Partners obtained a settlement of R1.9 million and a contribution to costs of R300 000 from the RAF for him.

The Grahams had signed a contingency-fee (no win, no fee) agreement with the Bobroffs, but they charged more than the Contingency Fees Act allows.

The Act provides for lawyers acting on a contingency basis to charge up to double their normal time-based fees or 25 percent of the settlement, whichever amount is lower.

But Bobroff & Partners kept 40 percent of the money recovered. The Grahams’ medical scheme, Discovery Health Medical Scheme, was alerted when it tried to recover the medical bills the scheme had paid for the Grahams.

A year after they complained to the Law Society, the Grahams, backed by Discovery, applied to the Pretoria High Court to take over the disciplinary process against the Bobroffs and strike them from the roll or oversee it.

The Law Society opposed the application, stating that it was in the process of holding a disciplinary hearing into the Grahams’ complaint.

In April 2014, the court ruled that the Law Society must be allowed to follow its process, but ordered it to inspect Bobroff & Partners’ books of account and trust accounts within 30 days and to hold a disciplinary hearing within 60 days.

The Bobroffs unsuccessfully appealed part of the order, and initially refused the inspectors access to their files, delaying finalisation of the inspection report until the end of January. The Law Society then filed its application to strike the Bobroffs from the roll late last week.

REQUEST FOR INTERDICT

The Grahams this week asked the court to interdict the Bobroffs from selling their practice on the basis that the sale was a disguised attempt to escape the effects of their suspension and striking.

The Bobroffs’ legal team argued that the Grahams’ application for their striking should be dismissed because the remedy they sought – to force the inspection of the Bobroffs’ legal firm – had been met.

The Grahams’ advocate, David Unterhalter, argued that the Law Society had not discharged its statutory mandate properly and had abdicated its role as custodian of the legal profession.

Unterhalter said there was “overwhelming and largely unanswered evidence” that Ronald Bobroff & Partners had engaged in “systemic and pervasive“overcharging “under the guise of so-called common-law contingency fee agreements”.

Ronald Bobroff, as the president of the South African Association of Personal Injury Lawyers, sought the court’s sanction of common-law contingency-fee agreements in 2012, but in 2013 three High Court judges ruled that there can be no common-law fee agreements, only those that comply with the Contingency Fees Act. The Bobroffs were denied leave to appeal to the Supreme Court of Appeal and the Constitutional Court.

Unterhalter pointed out that former clients of the Bobroffs, Juanne de la Guerre, Anthony de Pontes and Glen Vivian, had successfully sued and recovered illegal fees of R760 000, R2.7 million and R1.3 million respectively from the firm.

Another eight clients have lodged cases against the Bobroffs, the court papers reveal.

Unterhalter says the Law Society should have taken decisive action to investigate the firm’s pattern of misconduct and should have suspended those implicated pending a disciplinary hearing.

He says the society fails its statutory mandate and the public if it does not deal vigorously and quickly with misconduct.

Unterhalter told Judge Tati Makgoka and Judge Mahomed Ismail, who heard the matter, that the Law Society’s response so far had been inadequate, and for this reason the Grahams’ application for the court to take over the disciplinary process should be granted.

Two years after the court ordered it, an IT expert has yet to be appointed to examine the Bobroff & Partners’ computers and a disciplinary hearing has yet to be held by the society, the court heard.

“A simple question demands answering by the Law Society: what has it done to protect members of the public who have been overcharged under the guise of common- law contingency- fee agreements? From its answering affidavit, the answer is ‘nothing’. It remains silent, waiting for those members of the public to lodge complaints,” Unterhalter says.

He says the society should use its statutory investigation powers to speedily determine if, and to what extent, the Bobroffs’ former clients were overreached.

The Grahams amended their application following the Law Society’s application for the Bobroffs to be struck from the roll, and they are now asking the court to strike the Bobroffs from the roll immediately rather than wait for the Bobroffs to reply to the Law Society’s application.

The Grahams’ attorney, George van Niekerk, says the Law Society took six weeks after its inspectors had reported that the Bobroffs’ clients were at risk, to ask the court to strike them from the roll.

The court reserved judgment on all the applications.