Tuesday, January 21, 2014

RAF attorneys still not off the hook

Special Investigations

Author: Tony Beamish|
21 January 2014 00:22


Law Society’s investigation into errant attorneys making headway.

The Law Society of the Northern Provinces (LSNP) is still investigating 41 attorneys firms who were allegedly involved in 670 ‘professional offences’ of “double briefing” and “overreaching” in Road Accident Fund (RAF) cases. The number of individual attorneys involved is not yet known.

This investigation into their conduct commenced in 2011 after the Pretoria Society of Advocates and the General Council of the Bar took disciplinary action against some of its most senior members. The two professional oversight bodies asked the North Gauteng High Court to strike the names of errant members off the roll and that the rest be suspend from practice for a given period.

In September 2011, the full bench of the (NGHC) observed, “We write this judgment in sorrow and lament the loss of integrity, in the past the hallmark of the profession advocates. We sit in judgment on 13 senior members of the Bar, among them two silks, who by their action have brought the good name of the profession into disrepute. They are not novices. They are experts in their particular field of litigation, which are claims against the RAF for damages arising from personal injuries. They have been at the Bar for decades, some as long as 32 years. They were regarded as men of good standing.”

Double briefing and overreaching

The legal professionals are facing charges of “double briefing”, which occurs when an attorney or advocate has two full-blown trials running in court simultaneously. The attorney or advocate obviously cannot be engaged in both matters in different courtrooms at the same time.

Overreaching is when the lawyer overcharges the client. There are professional tariff guidelines. An attorney or advocate charges a fee commensurately with their seniority taking into account the nature and complexity of the matter.

A referral profession

The advocates’ profession is a referral profession. Members of the public cannot directly retain the services of an advocate who is a member of the General Council of the Bar without doing so through an attorney. An attorney who briefs such an advocate is also responsible for payment of that advocate’s fees.

Moneyweb wrote to the LSNP enquiring whether any disciplinary action had been taken against the attorneys who had briefed the errant advocates.

LSNP Director, Thinus Grobler, told Moneyweb, “We have indeed identified a total of 41 attorney’s firms together with numerous attorneys involved in approximately 670 cases of alleged double briefing.” The LSNP investigation is on-going.

The Road Accident Fund

This investigation is not the first into corruption surrounding RAF claims.

Fifteen years ago Noseweek magazine brought a class action Anton Piller (civil raid order) application against one of the largest RAF claims law firms in Cape Town, Hoosain Mohamed & Associates. Read Lawyers rattled after court raid on Cape firm.

The raid highlighted the abuses that were endemic in the RAF claims industry. Six weeks after the Noseweek raid, the Special Investigating Unit, then headed by Judge Willem Heath, started an investigation into countrywide corruption in the industry by lawyers and RAF officials.

This led to the formation of the South African Association of Personal Injury Lawyers (SAAPIL). It took the SIU head-on, and won its case on technical grounds in the Constitutional Court in November 2000. Read SAAPIL vs Heath & Others. SAAPIL’s website has a ‘Trophy Cabinet’ where it boasts of its forensic successes against the RAF and the SIU.

Moneyweb reported in November 2012 that SAAPIL President Ronald Bobroff was under investigation for “cooking the books” and “grossly overcharging” RAF claimants. Read Did Ronald Bobroff cook the books?

Can the Law Society cope?

The LSNP has proven that it has not been extremely efficient with investigations into the conduct of their members.

In 2012 Judge Eberhard Bertelsmann made this evident in a written judgement in case where the LSNP request that a member be struck of the roll.

In his judgement he highlighted information provided by Mr Thinus Grobler of LSNP, which casts a very sorry reflection upon the state of affairs in the legal profession. “There are no less that 4 590 complaints pending against practitioners under the applicant's jurisdiction, of which 4 117 were still under investigation at the date of the hearing; 473 of which still had to be heard by the applicant's disciplinary committee. 58 applications for suspension and 121 removal applications were pending with trial dates having been allocated to them.”

Bertelsmann said neither the applicant nor the court can be satisfied with these statistics.

Moneyweb will be following up on the progress of the Law Society’s investigation in a few months’ time.

Time will tell if any of the errant attorneys were on the committee of the LSNP.

Read the NGHC judgment here and the SCA judgment here.


No comments:

Post a Comment