LSNP ordered to continue with disciplinary inquiry

July 1st, 2014
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Graham and Others v Law Society of the Northern Provinces and Others (GNP) (unreported case no 61790/2012, 15-4-2014) (Mothle J)

By Nomfundo Manyathi-Jele

In a recent decision, the North Gauteng High Court ordered that the Law Society of the Northern Provinces (LSNP) should resume its disciplinary hearing into the conduct of Ronald and Darren Bobroff of Ronald Bobroff & Partners Inc. The High Court judgment emphasised the role of statutory law societies. The question whether the LSNP had performed its duties was considered.

In June 2011, husband and wife Matthew and Jennifer Graham lodged a complaint with the LSNP of overcharging against their personal injury lawyers Ronald Bobroff and his son, Darren.

The Grahams, dissatisfied with the manner in which they allege the LSNP had dealt with their complaint, brought the application seeking relief, among others, that the court should take over the LSNP’s disciplinary inquiry or allow it to continue under the court’s supervision. The disciplinary inquiry instituted by the LSNP into the conduct of the Bobroffs, had been postponed indefinitely, pending the outcome of this application.

In this matter there were three applications for relief sought, namely, the main application, a counter application and leave to intervene in the proceedings.  In the main application the Grahams sought to compel the LSNP to perform its duties in terms of the law in dealing with the Graham’s complaint against the Bobroffs. In the alternative, and the court finding that the LSNP was unable to perform such duties, relief was sought for issuing of directives and placing the disciplinary inquiry concerning the Bobroffs under supervision or further in the alternative, directing that the inquiry be conducted by the High Court.

The Grahams also sought relief directing the Bobroffs to make certain outstanding information available and that the Bobroffs be suspended pending the conclusion of such proceedings. In the counter application, the Bobroffs sought relief that the Grahams be interdicted from interfering with the disciplinary inquiry of the LSNP and that the adjourned inquiry be allowed to resume.

Background

On 4 September 2006 Matthew Graham, a plumber and member of the Discovery Health Medical Scheme (Discovery), was involved in a motor vehicle accident in which he sustained serious injuries. Following the accident, Jennifer Graham lodged a claim with the Road Accident Fund (RAF), assisted by Darren Bobroff.

Mr Bobroff lodged the claim against the RAF in the amount of R 2 million. The Grahams and the RAF agreed to settle the claim in the amount of R 1 979 952,69 all-inclusive plus costs. Mr Bobroff deducted R 858 689,05 for fees and party and party litigation costs, and paid out R 1 187 971,61 to the Grahams.

Discovery, which paid for Mr Graham’s medical expenses, claimed payment for the expenses from the Grahams.

In October 2011 the Graham’s demanded that the Bobroffs make certain information relating to the complaint available such as copies of the law firm’s billing system and account transactions relating to the RAF payment on the Graham’s trust ledger account. The Grahams later requested that the LSNP assist them in obtaining the information.

In February 2012 the LSNP’s investigating committee held a hearing. The Bobroffs walked out of the hearing which proceeded in their absence. The investigating committee made recommendations to the LSNP council after its findings showed that there was a prima facie case of unprofessional or dishonourable or unworthy conduct that had been made against the Bobroffs and that the LSNP’s monitoring unit should conduct an inspection at the Bobroffs’ offices.

In June 2012 the LSNP issued charges to the Bobroffs and formally notified them of the hearing of its disciplinary inquiry scheduled for 25 and 26 July. On 25 July, at the commencement of the disciplinary inquiry, the Bobroffs requested the recusal of all members of the disciplinary committee because they had had prior sight of the evidence before the scheduled hearing. The Bobroffs applied for and obtained a High Court order that evening, interdicting the LSNP from proceeding with the hearing, pending the finalisation of a review of the refusal by the members of the inquiry to recuse themselves. As a result of the interdict, the inquiry was postponed indefinitely.

The LSNP agreed to appoint a new disciplinary committee and the Bobroffs abandoned the review. In August 2012, the Grahams sent the LSNP a draft report compiled by accountant Vincent Faris, which was based on an extract from the Bobroffs’ accounting records. In the report Mr Faris recommended that further inspection of the Bobroffs’ trust accounts be conducted.

The Graham’s case against the LSNP

In the main application, the Grahams sought relief against the LSNP, the first respondent, on the one hand and against the Bobroffs and their firm, the second to fourth respondents, on the other. The Grahams’ case against the LSNP included the following accusations –

  • the LSNP had ‘demonstrated an unwillingness, unbefitting its statutory position, to expeditiously and diligently comply with its duty to investigate.’ They stated further that the LSNP did not ‘immediately institute an investigation in accordance with the recommendations by Mr Faris in his report’, adding that the LSNP has failed to demand copies of documents from the Bobroffs including their electronic billing sheet records;
  • the LSNP failed to implement the recommendations of its investigating committee that its monitoring unit be instructed to conduct certain further investigations at the offices of the Bobroffs; and
  • the LSNP was conflicted on the question of common law contingency fee agreements. The Grahams accused the LSNP of taking Mr Bobroff’s side in Ronald Bobroff & Partners Inc v De La Guerre 2014 (3) SA 134 (CC) by supporting the validity of common law contingency fee agreements (see 2014 (May) DR 52). They submit that the LSNP entered the debate in the De La Guerre matter in defence of common law contingency fee agreements, in support of Bobroff as its prime mover. This, according to the Grahams, cast a shadow on the role of the LSNP as a neutral arbiter in the conduct of the disciplinary inquiry.

In his judgment delivered on 15 April 2014 Mothle J said that it appeared that the LSNP had accepted the Constitutional Court’s ruling that common law contingency fee arrangements were unlawful and there was no evidence to the contrary.

In defence of the charges, the LSNP contended that –

  • the Grahams’ application was premature;
  • the exercise of its disciplinary powers is subject to review only on the grounds listed in s 6 of the Promotion of Administrative Justice Act 3 of 2000 and the Grahams had not sought to establish any of those grounds;
  • the court, as a matter of policy, would not entertain an application by an aggrieved complainant for an attorney to be suspended or struck from the roll before the LSNP’s investigation and prosecution of the complaint had run to its finality; and
  • there were various flaws on which the application of the Grahams was based.

In terms of s 71 of the Attorneys Act 53 of 1979, the LSNP council may inquire into cases of alleged unprofessional, dishonourable or unworthy conduct on the part of any attorney, notary, conveyancer or candidate attorney. The council is empowered to summon any person who may be able to give material information concerning the subject matter of the inquiry or who has in his or her possession and under his or her control any book, document, record or thing which has a bearing on the subject matter of the inquiry, to appear before it at the time and place specified in the summons.

The Grahams also demanded that the LSNP should appoint a retired judge to conduct the inquiry as well as an advocate to prosecute, so as to ensure equality of arms since the Bobroffs had the benefit of senior counsel defending them.

Relief sought against the LSNP

The Grahams’ dissatisfaction with the LSNP was based mainly on four grounds, namely –

  • failure to deal with the Faris report;
  • the LSNP’s position on common law contingency fee agreements;
  • the electronic billing system; and
  • allowing the Bobroffs to play possum and delays in dealing with the complaint.

The court found that there was no evidence suggesting that the LSNP had refused to investigate the Bobroffs’ accounts as recommended in the Faris report. It said that the Faris report had come more than a year after the complaint had been lodged, and that the LSNP had referred it to the Bobroffs for their response which it had not yet received when this application was launched.

The court further found that the LSNP had discharged its duties regarding the Faris report as it had been referred to the disciplinary department to be dealt with ‘in the normal course of the pending disciplinary inquiry’.

Mothle J also found that where a court is asked to intervene in a law society’s disciplinary inquiry midway, that such intervention should be limited only to instances where there is sufficient evidence to justify the intervention. He said that this would be in instances such as where the disciplinary inquiry is unlawful, unreasonable or procedurally unfair to the extent that the aggrieved party may not receive relief in due course, should the disciplinary process by the law society be allowed to continue.

He stated: ‘On the evidence before this court, I am of the view that this is not one of the instances where an intervention or even supervisory relief would be appropriate. The law society is being assailed for failing to accede to the demands of the Grahams’ attorney. There may be merit in some of the concerns raised by the Grahams against the law society but most of these are premature.’

Declaratory order

The Grahams also sought a declaratory order against the LSNP to do all in its power to ensure that the public is protected from serious misconduct.

Outcome

The court ordered that –

  • the application for a declaratory order as well as the relief sought to have the court take over the disciplinary inquiry or place the inquiry under the court’s supervision be dismissed;
  • the disciplinary inquiry convene a sitting within 60 days from the date of the order;
  • the disciplinary inquiry conduct an inspection of the books of Ronald Bobroff & Partners Inc and compile a report for all the parties in the application, within thirty days from the date of the order; and
  • the Bobroffs must deliver the information and items to the LSNP and the attorneys representing the Grahams within 15 days from date of the order.
  • An application for leave to appeal was due to have been heard on 11 June 2014.  The Law Society of the Northern Provinces did not oppose the application.

Nomfundo Manyathi-Jele is the news editor at De Rebus.

This article was first published in De Rebus in 2014 (July) DR 40.