Affordable Legal Fees: Fact or Fiction? Part II

Previously, in Affordable Legal Fees Part I: While lamenting the Zuma family’s suspiciously good fortune, we also questioned the broader moral fibre comprising the fabric of our society. Is our humanity indeed measured by the BMWs we drive? Is the charging of exorbitant fees indeed justified because “everyone does it”? Is there anything that can stem the increasingly apparent ethos of feathering one’s own nest at the expense of others? The future of our nation may well rest upon the shoulders of one unassuming yet unassailable savior: the South African Constitution.

Every so often, when our media pauses between the various soap operas playing across our country, they glimpse the light. Like the recent reports about excessive fees charged by attorneys in MVA claims. In two separate cases recently, our High Courts have ruled that lawyers who work on a no-win, no-fee basis, commonly used in Road Accident Fund cases, cannot charge more than the law allows. The Contingency Fees Act sets limits on the fees that lawyers can deduct from any award made to a claimant, for example by the RAF. It was introduced to make justice accessible to the poor who might otherwise not have access to it. The Act states that lawyers acting on a no-win, no-fee basis can charge up to double their normal time-based fees, or 25% of the settlement, whichever amount is lower. Many lawyers have been routinely charging fees greater than the Act allows, confidently (if erroneously) claiming that they’re entitled to do so in terms of the common law.

In one of these cases the North Gauteng High Court declared a contingency fee agreement entered into between an accident victim and her attorneys to be invalid. To express its disapproval of the law firm’s actions, the High Court also ordered the recalcitrant attorneys to pay all of the claimant’s legal costs. The self-same attorneys are also facing another, similar case in the Pretoria High Court in which a former client is asking for them to be struck off the roll of attorneys. In another case three judges in the North Gauteng High Court dismissed an application contending that the Contingency Fees Act took away lawyers’ common law rights to conclude contingency fee agreements and was unconstitutional.

These recent rulings are expected to clear the way for many accident victims to claim back excessive fees charged. Contrary to popular belief, not all attorneys are greedy money-grabbing ogres, and accordingly there are many cases where the fees charged were fair and lawful. But it may be prudent for past RAF claimants to unearth their papers and review what they were charged, particularly in the event of larger claims.

There is, of course, the possibility that these judgments will land up in the Constitutional Court. Which brings us to question: what is the stance of the Constitutional Court judges, and what is the likely outcome? While the media only recently alerted the public to these RAF-related cases, the Constitutional Court has, in fact, been quietly and studiously slogging on for years, meting out judgments against those found to be in contravention of the most beloved, albeit oft-misunderstood law of the land – our Constitution. The Constitutional Court has already addressed the matter of over-charging in a number of cases (and not only in RAF cases) and has on previous occasions made known its disapproval of those seeking to take advantage of the general populace.

In one case no less than six advocates were disbarred and seven suspended for unprofessional conduct relating to fees. In another case pertaining to a dispute over building plans, the Court reduced the fees of counsel by more than half the amount originally charged. In reaching their decisions, the judges concerned were required to balance the interests of the legal practitioners in receiving fair compensation with the public’s right of access to justice. In handing down their judgments, the judges made no bones about their disapproval:

  • No matter the complexity of the issues, we can find no justification, in a country where disparities are gross and poverty is rife, to countenance appellate advocates charging hundreds of thousands of Rands to argue an appeal.”
  • No doubt skilled professional work deserves reasonable remuneration, and no doubt many clients are willing to pay market rates to secure the best services. But in our country the legal profession owes a duty of diffidence in charging fees that goes beyond what the market can bear. Many counsel who appear before us are accomplished and hard working. Many take cases pro bono, and some in addition make allowance for indigent clients in setting their fees. We recognise this and value it. But those beneficent practices should find a place even where clients can pay, as here.”

Such castigation is not limited to the contents of our law reports. While bad lawyer jokes abound and the media happily shines the spotlight upon various rogue attorneys, the role of lawyers in our society is being seriously considered and questioned in legal circles. To paraphrase Judge Bosielo of the Black Lawyers Association: How do we drive our shining cars past these tin shacks and remain unmoved and untouched by the plight of our people? How do we turn a blind eye to children hustled together under a tree desperately trying to access education? How do we keep quiet when eight months into the year children have not been given textbooks? What about the right to education? How do we keep quiet when the poorest of the poor go without water? Is water not essential to life and human dignity? Where are our consciences as a collective, or it is a case of Animal Farm: Other people are more equal than others? He also suggested that lawyers do a critical introspection and self-assessment, asking themselves why they became lawyers. Do they do so for self-enrichment and aggrandisement, or to become useful members of society who are there to make their mark and contribution towards improving people’s lives? He adds that there is nothing wrong in making money and enjoying it, but while doing so lawyers should not forget their social responsibilities to South African citizens.

The average attorney’s predilection for phenomenal, blow-the-budget-out-the-water bills is well-documented, regularly bemoaned, and the butt of many a joke. But it is only of late that the public is becoming aware of and equipped with a suitable weapon to fight back. The latest assault against outrageous legal fees begs two questions:

  • What can Joe Public do to avoid becoming embroiled in the battle-of-the-bills?
  • And who’s next in the Constitutional Court’s firing line?

We will be back with the third and final installment.

To be continued…

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.