Summary
The Applicant was seeking to strike off the First Respondent from the roll of attorneys on account of her not being a fit and proper person to practise as an attorney.
The First Respondent faced four counts of professional misconduct namely:
1. A contravention of s 70(2) of the Attorneys Act No. 53 of 1979 by failing to produce documents as requested by the Applicant’s inspectors.
2. A contravention of KwaZulu-Natal Law Society rule 14(b)(xx) in that the First Respondent borrowed money from her client, a Mr Theodore Charles Minnie without him being independently represented in the transaction.
3. A contravention of KwaZulu-Natal Law Society rule 20 in that the First Respondent paid business debts from her trust bank account.
4. A contingency fee agreement signed by Mr Minnie did not comply with the requirements of the Contingency Fees Act No. 66 of 1997.
The Applicant was required to establish the First Respondent’s offending conduct as a fact, furthermore whether the First Respondent was fit and proper to remain in practice, and in the circumstances should the First Respondent be removed from the roll of attorneys or be suspended from practice.
The Applicant received a complainant from a Ms Vijayluxmi Gengan that the First Respondent was handling a Road Accident Fund (RAF) matter for Mr Minnie who had granted Ms Gengan a special power of attorney to represent him. His accident had left him physically disabled without his right leg.
Ms Gengan and Mr Minnie met with the First Respondent, at which point the First Respondent requested Mr Minnie to sign documents pertaining to the claim. She confirms that it was on this occasion that the First Respondent also secured a special power of attorney and a contingency fee agreement from Mr Minnie.
Months later, Ms Gengan made several requests to the First Respondent for an update on the RAF matter. Ms Gengan argued that the RAF had settled the claim in February 2013 and that they had paid an amount of R560 000.00 to the First Respondent. Frustrated at not receiving any response from the First Respondent Ms Gengan approached the Applicant for assistance with proof that the RAF had paid the claim into the First Respondent’s trust account on 15 February 2013.
Two inspectors testified that on receipt by the Applicant of a complaint against the First Respondent the Applicant resolved to issue a notice in terms of s70 of the Act informing her that it intended to inspect her books, documents and records as a prelude to deciding whether to enquire into her conduct in terms of s 71 of the Act.
The notice required her to meet with the inspectors to provide records of her trust account investments in terms of s78(2) or s78(2A), interest and records of deceased or insolvent estates or estates under curatorship in which she was an executor or curator. She was also required to produce various accounting and other records to the inspectors.
The inspectors met the First Respondent only on 10 March 2014. The delay of more than six months occurred as a result of the First Respondent avoiding the meeting with the inspectors.
The documents that the inspection committee requested from the First Respondent included a purported contingency fees agreement, a paid cheque for R5 000.00 in favour of S Ramnarain, an extract from the First Respondent’s trust account for February to March 2013, an affidavit from Mr Minnie revoking his special power of attorney to Ms Gengan, terminating his mandate to Arvin Singh attorneys and confirming his mandate to the First Respondent to act on his behalf, and an acknowledgment of debt signed by the First Respondent in favour of Mr Minnie. During this period Mr Minnie had died.
The Applicant failed to produce the documents requested by the inspectors in terms of s70.
The Applicant’s inspectors ascertained from the First Respondent that by using the power of attorney that Mr Minnie had given her to accept the offer from the RAF she received the RAF payment into her trust account on 20 February 2013. She went to see Mr Minnie after she received the funds to discuss the offer and her proposal that he lend her the sum of R420 000.00. When she met Mr Minnie again he agreed to lend her the money and she prepared the acknowledgment of debt for Mr Minnie’s signature and Mr Minnie delivered an affidavit to the First Respondent, which she insisted she did not prepare.
The inspectors formed the view that her affidavit was an attempt to absolve her of any wrong doing.
The First Respondent initially stated that she had repaid the loan with interest. After further questioning she advised the inspectors that she had paid the loan into her trust account. The inspectors advised her then to place Mr Minnie’s funds in a separate interest bearing account pending appointment of an executor to wind up Mr Minnie’s estate.
Production of proof of that investment in terms of s70 of the Act formed the basis of the charges in count one which was a contravention of s70(2) of the Act by the First Respondent failing to produce documents as requested by the inspectors.
Held
In this instance, because the First Respondent declined to testify, the Judge found that the Applicant requested the documents and that the First Respondent failed to deliver before the application was instituted. This amounts to contravention of s 70(2) of the Act. Accordingly, the First Respondent was guilty of contravening s 70(2) of the Act.
In view of the Judge’s finding on count one and the First Respondent’s admissions in respect of the remaining three counts the Applicant had discharged its onus of proving on a balance of probabilities that the First Respondent had committed professional misconduct as alleged.
In considering whether the First Respondent was a fit and proper person to remain in practice the Judge considered her explanations on affidavit for contravening counts two to four which must be weighed against the case the Applicant made against her, which was that when she committed the contraventions above she had been in practice for about ten years. She was an experienced attorney who should have known the rules and the consequences of contravening them.
Furthermore, the nature of the contraventions were such that the First Respondent could not and should not have pleaded ignorance of the law. An attorney of this experience should have known that business and personal accounts cannot be paid out of the trust account.
The First Respondent’s chartered accountant appointed to audit the queried payments from her trust account confirmed that she paid her business debts from the monies she held for Mr Minnie in her trust account.
The contingency fee agreement manifestly failed to comply with the Contingency Fees Act. It was incomplete, undated and unsigned by the First Respondent. The Applicant also questioned Mr Minnie’s signature to the purported agreement because it appeared to be different from his signature to his affidavit, it was also not witnessed or commissioned.
The Judge therefore found that the four counts on which the First Respondent had been found guilty are serious enough to justify her striking off.
Not only was her competence to practice in issue, but also her honesty and integrity. The further affidavit she obtained from Mr Minnie on the day he burnt to death raised more questions especially as in that affidavit Mr Minnie purports to withdraw all charges against the First Respondent.
In all the circumstances the Judge was of the view that the First Respondent was not a fit and proper person to practice as an attorney.
The final question that arose was what sanction to imposed upon the First Respondent.
In the Judge’s view the conduct of the First Respondent demonstrated a lack of judgment, integrity and insight and it called for the removal of the First Respondent from the roll of attorneys.
Value
Study the Attorneys Act and the rules of your particular Law Society thoroughly to avoid contravention.
It is of paramount importance for an attorney to study the provisions and rules pertaining to the trust bank account and to know exactly how to deal with his or her trust bank account and business account.
Review your firm’s contingency fee agreements to ensure that they are not illegal and falling foul of the Contingency Fees Act.
