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Letters to the Editor

 

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Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

 

The Legal Practice Bill: No consultation on clause 35

 

Your editor’s note in the July 2014 issue of De Rebus (2014 (July) DR 3) has reference.

 

I have interacted with Portfolio Committees (primarily that of Safety and Security and subsequently the Police) on an ongoing basis since 1997.

 

It appears to be a typical tactic of government to introduce amendments to proposed legislation at short notice and without consultation, particularly where such amendments are going to be contentious and strongly opposed.

 

Coupled with this, is a tendency of government, to publish draft legislation of a contentious nature over the December holiday period when less attention is given to legislation, until the period for consultation and discussion has passed.

 

The manner in which clause 35 of the Legal Practice Bill was introduced appears to be typical of this approach by government.

 

Our current government appears to see the Constitution as an impediment and not as a vehicle for creating and enhancing democracy.

 

I am reminded of the content of a radio show I shared with an extremely senior police official debating the then Firearms Control Bill. That policeman said that it was not for the government to act in accordance with the Constitution, but rather to test the parameters of the Constitution.

 

I trust that the organised legal profession will challenge clause 35 of the Legal Practise Bill on the basis of a lack of consultation and that it may contravene s 22 of the Constitution.

 

 Martin J Hood, attorney,

Woodmead

 

Ethical position when client terminates mandate

 

I act for a client who was seriously injured in a motor vehicle accident, in respect of his claim against the Road Accident Fund (RAF). The trial has been set down for hearing in the High Court, Gauteng Division, Pretoria on 12 October 2014. I am fully prepared for this trial and have briefed counsel and experts. Notices and reports have been timeously filed and as matters presently stand, at the time of writing, counsel and I are actively involved in trial preparation.

 

Most unexpectedly and without prior warning, I have just received a letter from another firm of attorneys intimating that my client has terminated my mandate to act and has instructed that firm to continue the matter. My file of papers has been requested. I would only be prepared to release my file and permit the attorney to continue the matter on payment of my taxed attorney-and-client bill of costs.

 

I undoubtedly recognise that the client has the inalienable right to be represented by an attorney of his own choice and in whom he has confidence. However, by the time my bill – which has to be prepared – is taxed and I am paid, there will be precious little time for the new attorney to acquaint himself with the matter, brief counsel and handle the matter appropriately. It occurs to me that clearly it is not in the client’s bests interests at this late stage for a new attorney to enter the litigation. It seems to me that there would be an ethical duty on both myself and the new attorney to apprise the client of the pitfalls he faces should he change attorneys at this advanced stage and that it is not in his best interests to do so. If, on being apprised of these consequences, the client is insistent on changing attorneys then he must suffer the consequences of his choice.

 

I would be most interested to hear the viewpoint of colleagues on this issue.

 

Leslie Kobrin, attorney,

Johannesburg

 

• Readers wishing to respond to Leslie Kobrin can e-mail their responses to derebus@derebus.org.za

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