Are you only a secretary/administration clerk/candidate attorney/paralegal?

July 1st, 2016
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By Ann Bertelsmann

Who should read this risk/practice management article? Practitioners who delegate or rely on assistants should first read it and then prescribe it as compulsory reading for staff.

Our article ‘Effective supervision in your legal practice’ (2015 (Dec) DR 26) was primarily aimed at practising attorneys. This article is the alter-ego of the previous one – primarily aimed at support staff. Each and every member of the law firm has a role to play in the management of risk.

The Attorneys Insurance Indemnity Fund NPC (AIIF) is a non-profit company established by the Attorneys Fidelity Fund (AFF) in 1993. It protects the profession and the public by providing automatic professional indemnity cover to all South African legal practices, in situations where errors in their practice of law have led to clients or the public suffering financial loss.

It may surprise readers to discover that, not only do attorneys and their staff often make mistakes, but clients are becoming increasingly aware of their rights to claim against attorneys and their practices. The AIIF annually receives notifications of a minimum of 400 such claims. The majority of these claims come from two areas of practice, namely, conveyancing and Road Accident Fund (RAF) matters. For more information on what goes wrong in conveyancing and RAF matters please read the following articles:

Many of these claims result from errors made by legal support staff who may have been –

  • delegated tasks for which they have little formal training or expertise;
  • ineffectively supervised;
  • given little or no training; and/or
  • unable to understand the implications of their role and appreciate the consequences of their actions or inaction.

Managing risk

Although all law firms do have Professional Insurance (PI) cover through the AIIF, (which includes cover for errors by support staff) you will appreciate that being sued by a client has more far-reaching consequences for the practice than simply having the insurer pay a claim and having to pay an excess. Think about it. If you were a client whose attorneys had messed up your case in one way or another, would you instruct them in other cases? Would you recommend them to other people? If you knew that a practice was being sued, would you instruct them?

The loss of clients and reputation can have serious consequences for everyone in the firm – from the senior partner/director through to the junior level of support staff. Reductions in the workforce – even retrenchments – could result. Responsible employees may well be subjected to disciplinary action and adverse performance ratings. All of these can change a positive working environment into a negative one and affect morale. At least for the above reasons, all legal practices need to ensure that they manage the common risks of practice.

How can you, as a legal support staff member help manage the risk of things going wrong with clients’ cases? Do you have any valuable role to play?

For things to run smoothly, your whole law practice must act as a team in which all members work together and rely on one another to properly fulfil their functions. (Think of yourselves as members of a soccer team – a bad goalkeeper can undo all the work that the rest of the team has done – no matter how good your strikers are, they rely on you to keep the sheet clean on your side, and to distribute the ball effectively.) Training, communication, insight, cooperation, and commitment are key for effective teamwork. As happens in life generally, we very often fail to see the bigger picture and, however, small our role may seem, we do not appreciate its importance – and the very big consequences of our actions or inaction.

What are the pitfalls you should look out for?

1 Legal ethics – this is possibly the single most important behaviour that an attorney is required to learn and practice and it is crucial that all staff in the practice have an understanding of what it entails – and behave accordingly. Put simply it is a code of conduct underpinning lawyers’ moral and professional duties to clients, colleagues, the courts and society.

2 Rules for the attorneys’ profession (GenN2 GG39740/26-2-2016) – any breach of these rules by your attorney is a source of risk. Ensure that you have access to and understand these rules, which may be obtained at www.lssa.org.za.

Some of the practical aspects of ethical behavior in the practice of law are:

  • Client confidentiality – ensure that your employers explain this to you in more detail. In essence, everything you find out about the client or the client’s case is covered by professional privilege and cannot be disclosed to anyone. You cannot even discuss the client or his or her case with your family. All clients documents and correspondence must also be regarded as privileged. Correspondence, documents or files should not be left lying around for all to see. These must be stored safely and disposed of in a way that ensures privacy – for example, by shredding. E-mails pose a threat to confidentiality. Make sure that each time, you send to the correct address. The reply to all button can be your worst enemy. There is also a host of legislation in South Africa dealing with the protection of data and this must be complied with.
  • You must clarify your role. As a non-attorney, you may not establish a lawyer/client relationship or give any legal advice or opinion or create the impression that you are acting in the capacity of a qualified attorney. You should not be doing work that should be done by a qualified attorney unless you are effectively supervised by an admitted attorney. It is your supervising attorney’s duty to supervise you and you need to ensure that this happens (see communication (point 7) and Beverly D Flaxington ‘Eight Ways To Manage Up Effectively’ (www.psychologytoday.com, accessed 2-6-2016) and Dana Rousmaniere ‘What everyone should know about managing up’ (www.hbr.org, accessed 2-6-2016)).
  • Conflict disclosure – if you are not sure, speak to your supervising attorney about what this means. You must disclose any conflict of interests you may have in relation to clients or their matters. An example of a possible conflict may be that a member of your family works for the company that the client is suing or where you have an interest (other than in your capacity as an employee of the practice) in the outcome of a matter.

3 Client relations and retention – this is the area where client-facing support staff can play a crucial role. A warm, friendly and helpful receptionist can influence potential clients to choose your firm – or keep existing clients happy. Likewise, a cooperative personal assistant who remembers your children’s names, listens and gets back to you when he or she says she will, can even persuade a dissatisfied client to overlook errors or delays.

4 Certification and witnessing documents – this is a red-flag area. Many claims arise from this not being done correctly. Should such a claim be made against your practice, an excess loading of 20% will apply. Copies of documents must not be certified without careful scrutiny of the original. Where documents must be signed in front of witnesses, the witnesses must actually see the signing. Too often the document is not signed in the presence of the so-called ‘witnesses’ who sign at a later stage. This exposes you to fraud. (In one claim against a conveyancer, the son had asked to take the documents for his supposedly frail, elderly father to sign on his sickbed. Some weeks later, the sprightly father discovered that his house had been sold by his son.)

5 Client identification – especially for financial transactions, you need proof that the person you are dealing with is who he or she purports to be and proof of his or her residence and banking details. (Always retain copies of the documents presented as proof.) Never change banking details on telephonic or e-mail instructions without verifying the instruction – for example, by telephoning the client at a number that you already have on file. Be aware that there is currently a scam doing the rounds – in which the scammer attempts to change banking details by e-mail. For more on this, see ‘Latest scams’ (www.aiif.co.za, accessed 2-6-2016).

Follow your practice’s Financial Intelligence Centre Act 38 of 2001 (FICA) policies to the letter, without exception. If the policy is inadequate or non-existent then draw your attorney’s attention to this – see Flaxington and Rousmaniere (op cit).

6 Communication with clients, colleagues, and outside attorneys/counsel must always be polite and professional. File notes detailing all important case-related discussions must be made when you communicate with these people. Messages for colleagues/supervising attorneys should immediately be written down with full details and given to them as soon as possible. You might wish to remind them to return the calls – to manage the risk of a claim or complaint by a dissatisfied client.

7 Communication with your employer should also be professional and polite. It is important that you learn to communicate constructively and openly with your employer or person that you report to, especially about client matters. If you are uncertain about any aspect of your work or any instruction given, you must clarify what is expected of you. Help your attorney to supervise you effectively (see Flaxington and Rousmaniere (op cit)). Whenever you are out of your depth or feel uncertain, for example about an ethical problem, ask your supervisor. If you have made an error never try to cover up rather own up immediately so that you can both find a way to fix it, before it is too late and puts the practice at risk. You will also build trust by doing this.

8 Drafting of pleadings, correspondence and other documents – is another red-flag area. You are probably aware of the danger of relying on precedents, but it is worth noting anyway. Many claims arise from this. Ensure that precedents are carefully adapted for the purpose and individual requirements of the matter concerned. Attention to detail is important. Knowledge of the specific area of law and the relevant facts is crucial. Successive drafts need to be numbered and retained for record and billing purposes. Common errors are, for example, conditions omitted from or incorrect erf numbers put into title deeds, references to incorrect party/parties or incorrect rentals or increase clauses in lease agreements.

9 Diary and calendar – here support staff can positively influence risk management and manage up (managing up (op cit)) effectively. Be proactive. Encourage your attorneys to diarise effectively and the practice to keep a centralised system of important dates, like court and prescription dates. Why not design a workable system? Bear in mind that a diary system is only as good as the people who use it. A file cannot come out of diary if it cannot be found in the filing cabinet or on the attorney’s desk.

10 Filing – the person who attends to the filing plays one of the most important roles in managing risk. It goes without saying that the file should be filed correctly, but if there is no way of managing the removal and return of files to the filing room/cabinet, there is a risk. The practice should keep a log of all client matters, which should retain it indefinitely. The practice must be familiar with the legal requirements and corporate best practices in respect of data storage and retention – in order to be effective and efficient.

11 Arranging service and filing – it may surprise you how often claims arise from problems in this area. Many claims prescribe because summons is issued at the last minute. Sheriffs cannot be relied on to serve by the requested date. The employee responsible for having applications and summonses issued can also not always be trusted to do it in time. Follow up if there are time issues. Remember that service means delivering a copy of the pleading to the opposing party/parties and filing the original at court. Delivery on the last permissible day may result in the late filing of documents at court. In certain instances (eg: Appeals, summary judgment applications and pleading under bar) this could have disastrous consequences.

12 Incoming correspondence – be alert and draw all important correspondence to your supervisor’s attention. For example, filing away a notice bar can and has led to judgments against clients and claims against attorneys.

13 Handling of trust money – space does not allow for a full discussion of this red-flag area. Ensure that you follow your practice’s and law society’s rules on this to the letter. Tactfully and confidentially report to your employer, any instances where rules are broken. Trust money belongs to the depositor and not to the practice.

14 Helplines – if you are unsure at any time about matters relating to trust money, call the Attorneys Fidelity Fund for advice. The AIIF will be able to give you advice about risk management issues and the law society should give you information about its rules.

Ann Bertelsmann BA (FA) LLB (Wits) HED (Unisa) is the legal risk manager for the Attorneys Insurance Indemnity Fund in Centurion.

This article was first published in De Rebus in 2016 (July) DR 21.

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