By Kgomotso Ramotsho
On 26 and 27 September legal practitioners attended the practice management conference in Midrand. The theme of the conference was ‘Taking your practice into the future’, whereby different speakers touched on topics that are linked to practice management.
The legal practice of the future
In the keynote address, Head of strategy at Møller PSF Group, UK, Robert Millard, spoke about the future of legal practice. He said that in his opinion the topic is a difficult one to develop a view on, especially while technology is changing so quickly. He said that not only is technology changing for lawyers and law firms, but it is also changing for their clients.
Mr Millard, said some commentators say the legal profession is doomed and that lawyers will – in due course – be replaced by computers. He said according to research conducted three years ago by Oxford University, many professional occupations are going to be replaced by computers. He added that many legal occupations such as, judicial law clerks and paralegals, are some of the roles that are on the list to be replaced by computers. He said research showed the need for an interface between complex client environments and even more complex client’s needs, he added that legal solutions to those needs will continue to need the assistance of a lawyer.
Mr Millard noted that lawyers may need to think carefully when thinking about how the legal profession may change in future, in the context of the fourth industrial revolution the world is facing. He said the World Economic Forum, spoke about the fourth industrial revolution and how disruptive it is going to be. He referred to the industrial revolution that took place in the 18th and 19th century, when handmade manufacturers were replaced by machine manufacturers and with that massive society ills evolved, such as child labour and pollution on a great scale.
Mr Millard said the fourth industrial revolution will be a combination of humans and cyber physical systems that are emerging and are categorised by humans into humans, mechanical and digital systems. ‘We have to think to ourselves what impact this is going to have on our economies, our politics, on the nature of business, on the nature of professions, on the nature of legal services,’ he said.
Partner at Snail Attorneys, Sizwe Snail ka Mtuze, spoke about social media and attorney’s practice and their clients at the Practice Management Conference.
Social media and attorney’s practice and their clients
Partner at Snail Attorneys, Sizwe Snail ka Mtuze, spoke about the right to privacy on the Internet, which comes from the declaration of human rights. He said the right to privacy has been enshrined in different jurisdictions, with different norms and different definitions.
Mr Snail ka Mtuze said it is not only about the right to privacy, but also about the right to freedom of expression, like press freedom, freedom of speech on the Internet and safe guards for journalists to publish on the Internet and social media. He noted that freedom of expression should be used responsibly. ‘You cannot just say what you want to say, whenever you want to say it and however you want to say it,’ he said.
Mr Snail ka Mtuze said whatever people write, must have context and not be defamatory, he asked why there are so many issues in regard to privacy and freedom of expression on the Internet and said that the common problem people have is trust. Trust that if someone sends their pleadings and they are filed with the register, that they will have a proper e-justice system, trust that the government is not unlawfully surveilling citizens, and trust that if someone goes to a health provider, their health records will not be distributed to anybody in electronic format.
Mr Snail ka Mtuze, referred to the case of National Coalition for Gay and Lesbian Equality and Another v the Minister of Justice and Others 1999 (1) SA 6 (CC), he said the judgment does not entail what the right to privacy is and that it is more confusing than before, even to legal practitioners. He said it is not just difficult for legal practitioners to understand what the right to privacy entails, but even more difficult having to explain it to a young person. He said legal practitioners are going to have big problems defining ‘this’ right to privacy
Director at Hooyberg Attorneys, Pierre du Toit, speaking at the Practice Management Conference. Mr du Toit spoke about the value young candidate attorneys can have at a law firm.
Legal training and education: Effectively managing candidates
Director at Hooyberg Attorneys, Pierre du Toit, spoke about the value young candidate attorneys can have at a law firm. He said candidate attorneys are more valuable in billing than the ratio of their salaries. He said if attorneys asked themselves, what is effective management, their answer would be that, effective management will result in more profit and in young candidate attorneys to be inspired to bring more clients to the firm. He added that firms have an underling duty to develop, grow and make candidate attorneys ready for the role of being an attorney in South Africa.
Mr du Toit admitted that through that process, there are, however, many challenges, and a firm’s reputation could potentially be at stake, if an error occurs on the candidate attorney’s side, which may result in cost implications to the firm’s client. ‘This fear, however, should not limit the freedom allocated to candidate attorneys,’ he said.
Trust account management: How to reduce liability by implementing good trust accounting practices
Lead Financial Forensic Investigator at the Attorneys Fidelity Fund (AFF), Simthandile Myemane, said that she established through interaction with some of the practitioners at the conference that some confuse the AFF, with the Attorneys Insurance Indemnity Fund NPC (AIIF NPC). She said that the AFF is there to protect the public from the misappropriation of trust money by practitioners and those in their employment, while the AIIF NPC insures attorneys for professional negligence.
Ms Myemane said in the period from January to August 2016, the AFF received approximately 311 claims, and that the AFF have already paid over R 73 million in claims over the same period. She referred to statistics of defaulters between the years 2010 to 2016 for all four provincial law societies with defaulters recorded in the current year up to August standing at a combined number of 98. Ms Myemane explained that, a defaulter, is an attorney against whom a claim has been lodged and paid by the AFF. She said it was not a good reflection on the profession to see such numbers.
Lead Financial Forensic Investigator, at the Attorneys Fidelity Fund, Simthandile Myemane, speaking at the Practice Management Conference. Ms Myemane spoke about trust account management and how to reduce liability by implementing good trust accounting.
She referred to claims that have been notified to the AFF in the current year to August 2016, and explained that those are claims that have been lodged with the AFF. She explained that when claims are notified to the AFF, they are investigated before they get paid to ensure that only valid claims are paid. She said that the highest claims they receive, both in number and value, are from conveyancing, followed by Road Accident Fund, then deceased estate matters.
Ms Myemane, gave a few examples of how trust funds are misappropriated in conveyancing transactions. She advised that the money that is deposited in the trust account in conveyancing matters usually belongs to the purchaser until transfer, and it becomes the seller’s money once transfer has taken place. She said that the legal practitioner is entitled to take a fee on these matters once transfer has taken place. She added that the AFF has seen instances where the purchaser would pay money into the trust account and a few days later, out of the money that was paid in, the seller is advanced some cash without the purchaser’s knowledge.
Ms Myemane said the problem is that the owner of the money, in this case the purchaser, has not consented to the advance. She added that at times legal practitioners take the fees prematurely, before transfer is finalised. She said the main question is, what if the deal falls through? Then what is going to happen? She said that this is how misappropriation of trust funds may start.
Ms Myemane said, some legal practitioners go as far as lending themselves money from the trust account with the hope that there is going to be some money flowing in, and then it becomes a recurring issue and in the end, the legal practitioners find themselves in trouble as they cannot repay the money. These attorneys will either be reported to the provincial law society or the AFF will receive a claim.
Ms Myemane said that there are people who do not know about the existence of the provincial law societies or the AFF and go to the police to open cases against legal practitioners who misappropriated their money. The AFF identified that these institutions did not necessarily know how to deal with such cases, how the trust account should operate and the regulations surrounding these. For this reason, the AFF conducted training with these institutions in the period from 2014 to 2015 to ensure that reported cases of trust misappropriation are properly handled.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2016 (Nov) DR 16.
