Rules on professional standards and investigation of unsatisfactory standardsThe following rules established by the Law Society govern professional standards and investigation of complaints concerning unsatisfactory standards:
21. Professional standards
21. (1) The Council may from time to time publish to its members guidelines in the form of rulings concerning the professional standards to which it expects members to adhere.
21. (2) A member acting in his/her professional capacity shall be regarded not to comply with the required professional standards, inter alia, if he or she is guilty of a contravention of any of these Rules or of conduct in any of the following respects:
(a) A breach of faith or trust in relation to his or her client or any estate of which he or she is the executor, administrator, trustee, liquidator, receiver, or curator.
(b) Withholding the payment of trust money without lawful excuse.
(c) Failing within a reasonable time to respond to an enquiry from a person to whom he or she owes a duty to reply.
(d) Failing within a reasonable time to render to his or her client a detailed statement of account after being called upon to do so.
(e) Failing without good cause to wind up a deceased estate without undue delay.
(f) Doing or permitting in the carrying on of his or her practice anything which may reasonably be regarded as likely to attract business unfairly.
(g) Carrying on practice at an office which is not under the direct and personal supervision of a duly qualified legal practitioner: Provided that such requirement of continuous, direct and personal supervision may in its discretion be relaxed or waived by the Council on such conditions as it may determine: Provided further that such relaxation or waiver may in its discretion be revoked by the Council.
(h) Giving or taking allowances in contravention of these Rules.
(i) Sharing offices with, or practising in any office which has intercommunication with the offices of a person other than a legal practitioner who is the holder of a fidelity fund certificate or who is exempted under the Act from holding such a certificate.
(j) Failing to pay within a reasonable time the reasonable fees and disbursements of any legal practitioner, notary or conveyancer in respect of work entrusted to such practitioner by him or her, unless -
(i) at the time of giving initial instructions in regard to such work, he or she advised that practitioner that he or she will not be responsible for the payment of such fees and disbursements; or
(ii) payment is withheld for a reason which the Council deems good and sufficient.
(k) Claiming in a letter of demand payment of costs of demand or collection commission unless the debtor is under a legal obligation to pay such costs or commission.
(l) (i) Seeking to recover by reason of an agreement from a third party fees in an amount greater than the normal and usual fees which would have been reasonably recoverable from his or her own client if there had been no such agreement;
(ii) overreaching a client or overreaching the debtor of a client; or charging of a fee which in the view of the Council is unreasonably high, having regard to the circumstances of the matter.
(m) accepting or agreeing to accept or offering to accept remuneration for professional work at less than the rate or scale of charges fixed by statute or regulation or rule or by resolution of the Council, or does any work gratuitously for any person for the sole reason that such person is a shareholder, partner, director, owner or employee of any firm, business, company or institution: Provided that a legal practitioner is not precluded from acting pro amico for any of his or her own employees.
(n) Agreeing to charge or charging a contingency fee. For purposes of this Rule contingency fee means an agreement to charge a fee only if a matter is partially or entirely successful or otherwise based on the outcome of the matter.
(o) By conduct directly or indirectly holding himself or herself out or allowing himself or herself to be held out as being prepared to do professional work at less than any prescribed rate or scale of charges.
(p) Acting on the instructions of any organisation or person, not being a legal practitioner or an assessor acting for a registered insurance company, whose business or part of whose business is to make, support or prosecute claims resulting from death or personal injury or who solicits instructions to make, support or prosecute any such claim in expectation of any payment, gift or benefit in respect thereof, unless the relationship between the member and the person on whose behalf instructions are given to him or her is properly a relationship of legal practitioner and client and -
(i) instructions are thereafter received directly from such client; and
(ii) the legal practitioner's cost and charges are payable by such client; and
(iii) the member's independent professional judgement is exercised on behalf of such client without outside interference or control.
(q) Keeping the accounts of his or her business as a practicing member in the books of account utilised in connection with any other business in which he or she may be interested jointly with a person not being a practitioner.
(r) Practising contrary to any condition on which an exemption from holding a fidelity fund certificate was granted to him or her.
(s) Any material breach of the provisions of the Act or of these Rules.
(t) Touting, and without derogating from the generality of the prohibition against touting, the following shall be construed as touting:
(i) To solicit custom or work directly or indirectly from any person; or
(ii) To make unsolicited visits or telephone calls or to send unsolicited letters or printed material to any person except to an existing professional connection with a view to establishing a legal practitioner / client relationship with such person;
(iii) To permit, encourage or connive with another person to do any of the aforegoing on his or her behalf;
(iv) To enter into an arrangement with any person, whether an employee or not, for the introduction of clients to the legal practitioner, practising with a Fidelity Fund Certificate; but this will not apply
(A) any arrangement between a legal practitioner and another legal practitioner for the referral of work in the normal course of either's practice;
(B) any arrangement for the introduction to a legal practitioner of other legal practitioners with a view to their instructing him or her on an agency basis.
(u) Failing or refusing to pay annual subscription timeously.
(v) A breach of attorney and client privilege.
(w) Allowing any person who is not a legal practitioner exclusively employed by a firm to hold himself or herself out as an associate of that firm.
(x) Allowing any person who is not a legal practitioner in the employ of the firm and who has not been a legal practitioner for a period of not less that ten years to hold himself or herself out as being a consultant to that firm.
(y) Entering into any agreement, arrangement or scheme of operation, express or tacit, direct or indirect, the result of which is:
(i) to secure for the practising member the benefit of professional work solicited by an unqualified person; or
(ii) to enable an unqualified person to enjoy, share or participate in fees for professional work; or
(iii) knowingly in any way assisting, allowing or enabling an unqualified person to charge, recover or receive any fee, or derive any remuneration for, in respect of, or in connection with the preparation or execution of any document, or the performance of any professional work which only a legal practitioner is qualified by law to prepare, sign, execute, attest or perform, or in any way conniving at any arrangement, agreement or understanding whatsoever whereby any such fee or remuneration as aforesaid is, or shall be, charged, recovered or received by any such unqualified person;
provided that it will not be unprofessional conduct if a practicing legal practitioner grants to an unqualified person in his or her employ a share of earnings from auctioneering, the sale and letting of immovable property, insurance agency work and building society agency work.
(aa) Entering into or continuing to be a party to any contract or arrangement with a person not being a practitioner the effect whereof is to place the practicing member under such control on the part of such unqualified person as may interfere with his or her independence as an officer of the Court.
(bb) The practising under any name other than -
(i) His or her own name, if he or she practises without partners; or
(ii) The name of any of or all partners, if his or her practice is conducted in partnership; or
(iii) The name of any or all of the past or former owners of or partners in the practice; or
(iv) His or her own name and the names of any or all the past or former owners of or partners in the practice; or
(v) His or her own name and the words “and Company” or “and Co”; or
(vi) His or her own name and the words “and Partners” or in the name of any or all of the past or former owners or partners and the words “and Company” or “and Partners” if the practice is conducted in partnership; or
(vii) His or her own name and the words “Associates”, “In association with” or “Incorporated”, where applicable.
(viii) His or her own name together with a description of the nature of the office e.g. Attorneys, Legal Practitioners, Law Offices, Lawyers, Law Chambers.
(cc) Failing whenever so required, or when called upon by Council within fourteen (14) days of receipt of such request, to furnish to Council full information concerning the name, style or firm title under which his or her or their practice is conducted, including the grounds upon which any name or names appearing in the name, style or firm title of the said practice are used.
(dd) Failing to disclose on the letterheads of his or her practice or a practice in which he or she is a partner, his or her name or the names of all partners if the practice is conducted in partnership.
(ee) Disclosing on the stationary of his or her practice or a practice in which he or she is a partner, the name of any practitioner employed by him or her or a partnership in which he or she is a partner unless he or she indicates that such employee is not a partner in the said practice by the use of the words “Assisted by”, “Associate” or “Consultant” immediately before the name of such practitioner.
(ff) Holding out to be practising in association with any person of a profession or trade which is not that of a legal practitioner.
21. (3) Advertising and Publicity: Legal Practitioners, practising with a fidelity fund certificate shall be entitled to market and / or advertise their services subject to:
(a) the guidelines set out in Annexure “A” to these Rules; and
(b) any variation of and / or additions to the guidelines referred to in 3 (a) above, which Council of its own accord, or on recommendation of its Standing Committee on Advertising, Marketing and Promotion may deem fit to publish from time to time.
22. Investigation of unsatisfactory conduct
22. (1) There shall be a Standing Committee of the Council to be known as the Legal Ethics and Investigatory Committee, which shall consist of three (3) members of whom at least two shall be in private practice, appointed by the Council.
22. (2) The Legal Ethics and Investigatory Committee shall be responsible for advising the Council on all matters of ethics in the practise of law and shall investigate the conduct of any member which in their opinion may require disciplinary action against such a member and shall advise Council of their findings.
22. (3) If the Council reasonably believes, either of its own motion or on account of a complaint received, that any member is guilty of unsatisfactory conduct, it may cause an investigation to be made into the alleged conduct of such member in accordance with the provisions of this Rule.
22. (4) The Council may either itself conduct an investigation referred to in subrule (3) or refer the matter to the Legal Ethics and Investigatory Committee for investigation.
22. (5) Where a matter is referred to the Legal Ethics and Investigatory Committee, the Council may -
(a) give directions to the committee with regard to the manner in which the investigation is to be conducted by it; and
(b) determine any powers and duties which the Legal Ethics and Investigatory Committee shall have in addition to the powers and duties conferred by subrule (6).
22. (6) For the purpose of conducting an investigation referred to in subrule 22 (3), the Council or the Legal Ethics and Investigatory Committee, as the case may be, -
(a) where the investigation is to be conducted on account of a complaint received from another legal practitioner, shall require that any complaint received be made in writing on affidavit;
(b) may take statements from witnesses;
(c) may require the legal practitioner lodging the complaint to furnish such further evidence, written or oral, documentary or otherwise, as it may require;
(d) shall, by written notice to the member whose conduct is the subject of the investigation, inform him or her of the complaint and furnish such particulars of the complaint as may be necessary to enable him or her to reply;
(e) may direct the member concerned to -
(i) reply in writing to the Director within a stipulated time;
(ii) verify his or her reply by affidavit;
(iii) furnish such further evidence, written or oral, documentary or otherwise, as it may require;
(f) shall have access to all books of accounting, bank statements, client and financial records, files etc. of a firm and may invite any person whom it believes may be able to give any information, or has in his or her custody or under his or her control any document containing information, which may be relevant to the alleged conduct of the member concerned, to disclose such information or produce such document, either by way of a written statement or appearance before the Council or the Legal Ethics and Investigatory Committee as such person may elect;
(g) approach any judge in chambers or magistrate for a warrant to enter and seize the client records of the member concerned, the financial records of the firm / law practice of the member concerned or any other matters as in their reasonable opinion may be associated with or relate to or evidence the conduct of the member which is being investigated, without the necessity of making written application;
(h) may grant to any person who of his or her own motion offers to give any information or make available any document as contemplated in paragraph (e) of this subrule 22 (6) an opportunity to disclose such information in a manner referred to in that paragraph;
(i) shall, where a person contemplated in paragraph (e) or (f) of this subrule 22 (6) elects to appear before the Council or the Legal Ethics and Investigatory Committee, as the case may be, inform that person that he or she is entitled to appear before it either personally or by his or her legal practitioner or by any other person acting as his or her representative;
(j) may require the member whose conduct is the subject of the investigation to appear before it, in which event the member shall be informed that he or she is entitled to appear either personally or by another member or by any other person acting as his or her representative;
(k) shall in the conduct of its investigation not be bound by the rules of evidence applicable in a court of law.
22. (7) If the investigation is conducted by the Legal Ethics and Investigatory Committee, that committee shall upon completion of its investigation, compile and submit to the Council a report, setting out -
(a) details of the alleged unsatisfactory conduct of the member against whom the investigation was made;
(b) details of the manner in which the investigation was conducted, including the evidence given or obtained by it from whatever source, either orally, in writing, documentary or otherwise;
(c) particulars of the behaviour of the member whose conduct was the subject of the investigation or of any witness or other person in the course of the investigation, and which it considers necessary to bring to the attention of the Council;
(d) a summary of the facts which in its opinion are established, with details of the evidence which it considers to be in support of those facts;
(e) if in the opinion of the Legal Ethics and Investigatory Committee the facts referred to in paragraph (d) of this subrule 22 (7) show that the member concerned is guilty of unsatisfactory conduct on any ground other than or in addition to those alleged as contemplated in paragraph (a) of this subrule 22 (7), particulars of such conduct of the member.
22. (8) After completion of an investigation conducted by the Council or, where applicable, after consideration of the report of the Legal Ethics and Investigatory Committee submitted in terms of subrule 22 (7), the Council shall refer the matter to the Disciplinary Committee established by section 34 of the Act together with its report or the report of the Legal Ethics and Investigatory Committee under subrule 22 (7) and with such recommendations as it may wish to make in relation to the matter.
22. (9) The preceding provisions of this Rule shall not be construed as preventing the Council from referring any matter directly to the Disciplinary Committee established by Section 34 of the Act and as imposing on it an obligation first to conduct an investigation in accordance with those provisions.
22. (10) Where it appears to the Director that a person referred to in Rule 22 (3) is not able to formulate his or her complaint unaided, or if so requested by such a person, the Director shall give to such person all reasonable assistance to put his or her complaint in writing.
07 February 2013
Manager: Professional Affairs
06 February 2013
Commonwealth Law Conference 2013
05 February 2013
Free seminars on financial affairs for LSN members by Vincent Faris CA (SA),11.02 - 15.02
05 February 2013
Press release: Response to the statement in the Namibian newspaper on 23 January 2013
31 January 2013
Remarks on the opening of the High Court Year 2013