Consequences of misconduct

June 1st, 2023
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Being struck off the roll of legal practitioners is a serious consequence for a legal practitioner who has been found guilty of professional misconduct or has breached relevant rules or governing legislation of the profession. When a legal practitioner is struck off, they are no longer allowed to practice law in South Africa (SA). Before outlining several key factors, which legal practitioners should consider, it is worthwhile to highlight the roles of the relevant role players within the legal profession, namely, the Legal Practice Council (LPC) and the Legal Practitioners’ Fidelity Fund (LPFF).

The LPC is a statutory body established in terms of the Legal Practice Act 28 of 2014 (LPA). Its primary role is to regulate the legal profession in the country and to promote an independent, effective, and efficient legal profession.

Some of the key functions of the LPC include –

  • the registration of legal practitioners: The LPC is responsible for the registration of all legal practitioners in SA, which includes attorneys and advocates;
  • the maintenance of the roll of legal practitioners;
  • disciplinary proceedings: The LPC has the authority to investigate complaints against legal practitioners and to take disciplinary action against them if necessary. This can include suspension and striking off the roll of legal practitioners;
  • promoting access to justice;
  • setting standards for legal education; and
  • monitoring compliance with the LPA: The LPC is responsible for monitoring compliance with the LPA. This includes ensuring that legal practitioners are complying with the rules and standards of the legal profession.

The LPC plays a critical role in regulating the legal profession. By ensuring that legal practitioners adhere to ethical and professional standards, the LPC helps to maintain the integrity of the legal profession and promote access to justice for all South Africans.

The LPFF is a statutory body established in terms of the LPA. Its primary role is to protect the interests of the public by providing compensation to clients who have suffered a financial loss because of misappropriation by a legal practitioner. The LPFF plays an integral part in protecting the interests of the public and maintaining the integrity of the profession. By providing compensation to clients who have suffered financial loss due to dishonesty of a legal practitioner, the LPFF helps to ensure that clients have access to justice and that legal practitioners are held accountable for their actions.

The process for striking a legal practitioner off the roll varies depending on the circumstances, but it generally involves an inquiry by the relevant professional body or disciplinary committee. If the legal practitioner is found guilty of misconduct or a breach of the rules, the disciplinary committee may recommend that they be struck off the roll. Once a legal practitioner is struck off the roll, they are no longer entitled to practice law or offer legal advice to clients. They are also required to surrender their Fidelity Fund Certificate and to remove their name from any signage or advertising that suggests they are still practicing law.

Being struck off the roll of legal practitioners is a serious consequence and can have significant consequences for a legal practitioner, such as:

  • The loss of right to practice law: Once a legal practitioner is struck off, they are no longer entitled to practice law. This means they can no longer represent clients or provide legal advice.
  • The loss of professional reputation: Being struck off the roll can have a significant impact on a legal practitioner’s professional reputation. It may be difficult for a struck off legal practitioner to find employment or to be enrolled as a legal practitioner in the future.
  • Financial consequences: Being struck off can have significant financial consequences for a legal practitioner, particularly if they solely rely on income from their legal practice to support themselves or their family.
  • Possible criminal charges: Depending on the circumstances, being struck off may lead to criminal charges if the legal practitioner engaged in criminal behaviour.

Inversely, legal practitioners can avoid disciplinary action by, inter alia:

  • Adhering to professional standards: Legal practitioners must adhere to the rules and standards of the legal profession. This includes ethical standards, rules of professional conduct, and relevant legislation.
  • Maintenance of accurate records: Legal practitioners are required to maintain accurate records of their client accounts and finances.
  • Continuous professional development: Legal practitioners should undertake continuous professional development activities to ensure that their knowledge and skills remain up to date. This helps to ensure that legal practitioners are providing competent and effective legal advice to their clients.
  • Avoidance of conflicts of interest: Legal practitioners must avoid conflicts of interest and ensure that they are always acting in their client’s best interests.
  • Responding to complaints: If a legal practitioner receives a complaint from the regulator, it is imperative that they respond promptly and appropriately. This can involve providing a satisfactory response and resolution to the complaint, or a defence against any allegation made against them.

By adhering to the above non-exhaustive examples, legal practitioners can help to maintain the integrity of the legal profession and ensure that they are providing effective and ethical legal advice to their clients.

A further consequence of a practitioner being suspended or struck off is that an application will be made to the relevant High Court having jurisdiction to appoint a curator bonis to the practice. The effect of the application will be that the practitioner will be prohibited from handling or operating on the trust account subject to certain provisions of the sought order. The curator bonis responsibilities will be detailed in the order, and practitioners should note that a curator bonis is not appointed to ‘step into the shoes’ of the suspended or struck-off practitioner.

The curator bonis may also be responsible for winding up the affairs of the legal practitioner’s firm should it be determined that the practice can no longer continue to operate without the legal practitioner who has been struck off. This may involve transferring clients and files to another legal practitioner or firm, closing bank accounts, and disposing of assets as necessary.

Overall, being struck off the roll of legal practitioners is a serious outcome for any legal practitioner and is a strong deterrent against professional misconduct or breach of professional standards.

Arniv Badal LLB (UKZN) is a Practitioner Support Supervisor in the Risk Management Department at the Legal Practitioners’ Fidelity Fund in Centurion.

This article was first published in De Rebus in 2023 (June) DR 7.

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