| 11.1 |
Unless otherwise stated or unless the context indicates otherwise, Part III of this code applies only to attorneys, candidate attorneys and juristic entities who are in private practice (all of whom, for purposes of this code, and unless the context otherwise requires, shall be referred to as "attorneys"). If Part III of this code conflicts with the provisions of Part II then the provisions of Part II will prevail and take precedence over the provisions of Part III. |
| 11.2 |
Part III of this code is applicable to the professional conduct of attorneys. |
| 12.1 |
An attorney or a firm shall not, directly or indirectly, enter into any express or tacit agreement, arrangement or scheme of operation or any partnership (express, tacit or implied), the result or potential result whereof is to secure for him or her or it the benefit of professional work, solicited by a person who is not an attorney, for reward, whether in money or in kind; but this prohibition shall not in any way limit bona fide and proper marketing activities. |
| 12.2 |
An attorney shall furnish the Council with an affidavit, within seven days of request, explaining the presence and function or position of an employee and manner or form of remuneration earned by such employee, or containing similar information relating to any person who is not an attorney who is apparently associated with the attorney's practice or who is continuously or repeatedly in, at or about the attorney's office. |
| 12.3 |
An attorney may not hold himself or herself out as practising as an attorney while in the employ of a person who is not an attorney otherwise than as permitted in terms of section 34 of the Act. |
An attorney, other than an attorney referred to in sections 34(5) (c), (d) and (e) of the Act, may not, without the prior written consent of the Council, share offices with a person who is not an attorney or an employee of an attorney.
| 14. |
Payment of commission |
An attorney or firm may not effect payment, directly or indirectly, of agent's commission in advance of the date upon which such commission is due and payable, except out of funds provided by the person liable for such commission and on the express authority of such person.
| 15. |
Naming of partners and practice |
| 15.1 |
Subject to paragraph 15.4, an attorney shall disclose his or her name on any letterhead used for the practice and, in the case of - |
| 15.1.1 |
a partnership, the names of all the partners; or |
| 15.1.2 |
a juristic entity, the names of all directors and, where the attorney has also been admitted as a notary or as a conveyancer, may disclose that fact on the letterhead of his or her firm. |
| 15.2 |
An attorney who discloses in his or her letterhead or in other publications the name of any person employed by him or her or his or her firm in any capacity shall indicate clearly whether or not such person is an attorney or his or her partner or fellow director; provided that, without prior written consent of the Council, such indication shall be made by using one or more of the following words and no others: |
| 15.2.1 |
where such person is an attorney, "consultant", "senior associate", "associate", "professional assistant" or "assisted by"; |
| 15.2.2 |
where such person is not an attorney, "candidate attorney", or in the case of professionals in fields other than law, such professional status as may be appropriate, or in the case of management employees, the descriptive management title. |
| 15.3 |
An attorney in private practice shall practise only under a style or name which— |
| 15.3.1 |
is his or her own name or the name of a former proprietor of, or partner or director in, such practice if he or she practises without partners; or |
| 15.3.2 |
contains the names of any or all of the present partners or directors or former partners or directors of or in such firm if he or she practises in partnership or as a juristic entity; or |
| 15.3.3 |
is a derivative of the names referred to in paragraphs 15.3.1 or 15.3.2, or is the name of a national or international legal practice of which the attorney is an employee or with which the attorney or his or her firm is associated or of which he or she or his or her firm forms part, unless the Council in the particular circumstances prohibits the use of that name; or |
| 15.3.4 |
the Council has first approved in writing, in the case of any other name. |
| 15.4 |
Notwithstanding the provisions of paragraph 15.1, it will be sufficient compliance with that rule: |
| 15.4.1 |
in the case of a partnership consisting of more than twenty partners, if the names of the senior partner and managing partner (and in the case of a branch office, the names of the senior partner of the partnership and the managing partner of the branch) are disclosed on the letterhead, provided the letterhead contains a note indicating the address at which the names of all the partners will be available for inspection; |
| 15.4.2 |
in the case of a juristic entity, if the names of the directors are disclosed in the same manner as if the directors are partners in a partnership. |
| 16. |
Replying to communications |
An attorney—
| 16.1 |
shall within a reasonable time reply to all communications which require an answer unless there is good cause for refusing an answer; |
| 16.2 |
shall respond timeously and fully to requests from the Council for information and/or documentation which he or she is able to provide; |
| 16.3 |
shall comply timeously with directions from the Council; and |
| 16.4 |
shall refrain from doing anything that may hamper the ability of the Council to carry out its functions. |
| 17. |
Naming in deed of sale or alienation |
An attorney may not act in terms of a deed of sale or alienation of immovable property in which the attorney's name or the name of the attorney's firm has been pre-printed or duplicated as the transferring attorney. This prohibition will not, however, apply if a separate written instruction is given to the attorney prior to the signature of the deed of sale or alienation or to an agreement prepared by the attorney on instruction from the client.
| 18. |
Specific provisions relating to conduct of attorneys |
An attorney shall—
| 18.1 |
refrain from accepting from any person directly or indirectly any sum of money or financial reward which it is agreed or intended should be used as payment or part payment for services to be rendered or for disbursements to be made in the future in the event of any future act or omission forming the basis of any criminal charge against the person by or for whose benefit such payment was made; |
| 18.2 |
issue and, on request, hand over or otherwise deliver to the person making payment, a receipt for any money received; |
| 18.3 |
exercise proper control and supervision over his or her staff and offices; |
| 18.4 |
not abandon his or her practice; |
| 18.5 |
not close his or her practice without prior written notice to the Council and to his or her clients and without arranging with the clients for the dispatch of their business or the care of their property in his or her possession or under his or her control; |
| 18.6 |
if he or she is practising as a sole practitioner, and intends to be absent from his or her practice for a period in excess of 30 consecutive days, give notice in writing to the Council at least 14 days prior to his or her departure of the arrangements which he or she has made for the supervision of the practice during his or her absence. The attorney may, in the case of urgency only, give the Council a shorter period of notice. In the notice the attorney must inform the Council - |
| 18.6.1 |
which other attorney will be supervising his or her practice; |
| 18.6.2 |
the extent of the supervision which the other attorney will exercise; |
| 18.6.3 |
what arrangements he or she has made for the payment of business and trust creditors; and |
| 18.6.4 |
the reason for the late notice, if applicable. |
This paragraph 18.6 applies also to attorneys who practise as partners or directors of a firm where all the partners or directors intend to be absent simultaneously from the firm for a period in excess of 30 consecutive days;
| 18.7 |
not overreach a client or overcharge the debtor of a client, or charge a fee which is unreasonably high, having regard to the circumstances of the matter. Any disputes about the quantum or rate of fees by an attorney or by work done by and value received from an attorney shall be subject to a fees enquiry conducted by the Council or an authorised sub-structure of the Council, and an onus shall rest on the attorney to justify the reasonableness of fees charged and that the work charged for was done and was reasonably necessary to do, or was done at the request of the client; |
| 18.8 |
submit an account for taxation or assessment, as the case may be, within a reasonable time after a request to do so by the Council, the client or the person purportedly liable for payment of the fee; |
| 18.9 |
not act in association with any organisation or person whose business or part of whose business it is to solicit instructions for the attorney; |
| 18.10 |
not buy instructions in matters from a third party and may not, directly or indirectly, pay or reward a third party, or give any other consideration for the referral of clients other than an allowance on fees to an attorney for the referral of work; |
| 18.11 |
use the services of a third party (including services for the purpose of gathering evidence) only where the attorney has established a bona fide attorney and client relationship with the client, such that— |
| 18.11.1 |
the client is free to elect whether or not to use the services of the third party; |
| 18.11.2 |
the attorney takes proper instructions directly from the client; and |
| 18.11.3 |
the attorney is mandated to engage the third party at the client's cost, |
in which event the attorney may issue an instruction to a third party whom the attorney considers will be competent to do specific work, and the attorney may, on the client's behalf, pay to the third party a fair and reasonable fee, consistent with the value of the work actually done by the third party;
| 18.12 |
when using the services of a third party, render an account to the client which discloses the payment to the third party as a disbursement; |
| 18.13 |
not accept a mandate— |
| 18.13.1 |
knowing there to be an existing mandate, or a freshly terminated mandate, given to another attorney without explaining to the client all the implications of his doing so, including in particular the cost implications; |
| 18.13.2 |
in a matter taken on a contingency fee basis where he or she knows or ought reasonably to know that there were no good grounds for the potential client to terminate the existing mandate; |
| 18.14 |
perform professional work or work of a kind commonly performed by an attorney with such a degree of skill, care or attention, or of such a quality or standard, as may reasonably be expected of an attorney; |
| 18.15 |
in any communication with another person on behalf of a client— |
| 18.15.1 |
not represent to that person that anything is true which the attorney knows, or reasonably ought to know, or reasonably believes, is untrue; or |
| 18.15.2 |
not make any statement that is calculated to mislead or intimidate that other person, and which materially exceeds the legitimate assertion of the rights or entitlement of the attorney's client; or |
18.15.3 not threaten the institution of criminal proceedings against any other person in default of that person's satisfying a concurrent civil liability to the attorney's client; or
18.15.4 not demand the payment of any costs to the attorney in the absence of an existing liability owed by the person to the attorney's client;
| 18.16 |
be in attendance, or immediately accessible, during a consultation with counsel or an attorney acting as counsel, or at court during the hearing of a matter (other than an unopposed application) in which he or she is the attorney of record, in person or through a partner or employee, being an attorney or a candidate attorney; |
| 18.17 |
take all such steps as may be necessary from time to time to ensure compliance at all times as an accountable institution with the requirements of the Financial Intelligence Centre Act, 38 of 2001; |
| 18.18 |
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 any legal practitioner, whether an advocate or an attorney, whom he or she 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 others to be absolved; |
| 18.19 |
dress appropriately when rendering services to or on behalf of a client; |
| 18.20 |
not have a branch office unless, at all times when practice is being conducted there, that office is under the effective supervision of a practising attorney. The decision of the Council as to whether or not a branch office is under effective supervision shall be binding on the attorney and, if negative, shall entitle the Council to order that the matter be rectified or that the branch office be closed; |
| 18.21 |
if he or she accepts appointment as an acting judge, adhere to the code of conduct applicable to judges; |
| 18.22 |
not tout for professional work. An attorney will be regarded as being guilty of touting for professional work if he or she either personally or through the agency of another, procures or seeks to procure, or solicits for, professional work in an improper or unprofessional manner or by unfair or unethical means, all of which for purposes of this rule will include, but not be limited to— |
| 18.22.1 |
the payment of money, or the offering of any financial reward or other inducement of any kind whatsoever, directly or indirectly, to any person in return for the referral of professional work; or |
| 18.22.2 |
directly or indirectly participating in an arrangement or scheme of operation resulting in, or calculated to result in, the attorney's securing professional work solicited by a third party. |
For purposes of this paragraph 18.22 "professional work", in addition to work which may by law or regulation promulgated under any law be performed only by an attorney, means such other work as is properly or commonly performed by or associated with the practice of an attorney.
19. Pro bono instructions
| 19.1 |
An attorney who accepts pro bono instructions shall not, after acceptance, seek to charge a fee except as may be permissible under section 92 of the Act. |
| 19.2 |
Attorneys who appear in court proceedings pro bono shall disclose that fact to all interested parties and to the court. |
| 20. |
Instructions involving court appearance
|
| 20.1 |
The provisions of paragraphs 28.1, 28.4, 28.5, 28.6, 28.8, 28.9, 28.10, 28.11, 28.12 and 28.13 of this code applicable to the acceptance of briefs by advocates apply, with the necessary changes required by the context, to attorneys who accept instructions to appear in court. |
| 20.2 |
An attorney who accepts an instruction to appear in court on behalf of a client shall not resile from the undertaking to carry out the instruction in order to attend to another instruction offered later, except for good cause, which shall be deemed to be present under either of the following circumstances— |
| 20.2.1 |
the interests of justice would otherwise be impaired; |
| 20.2.2 |
the instructing clients of both the initially offered instruction and of the later offered instruction agree in writing to release the attorney from the initially offered instruction. |
| 20.3 |
If, after an attorney has accepted an instruction to appear in court on behalf of a client, any circumstances arise that imperil the proper discharge of his or her duties of diligence, he or she shall, once such eventuality is apparent, especially in relating to trials, report such circumstances to the client to facilitate timeous steps to inhibit prejudice to the client and facilitate a successor to be instructed in time to take over the instructions. |
| 21. |
[Part III (Misconduct) deleted by the South African Legal Practice Council, Notice No. 2235, GG49833, dated 8 December 2023] |
Civil Aviation Act, 2009
