By the prosecutions and the financial forensic units of the Attorneys Fidelity Fund

In today’s world, technology is changing so fast that attorneys can never catch up and from a cost-benefit point of view, perhaps they should not even try. For the tech savvy attorneys, there is usually a strong temptation to have the latest and greatest tools in their practice, but for all intents and purposes, one should not get caught up in the hype to the extent that it diminishes ones productivity and ultimately ones businesses.

Just as the saying goes, ‘guns do not kill people…’, the use of a mobile devices in a trial will not kill a court case. However, what it certainly can do is assist an attorney with presentation of evidence in a more professional and seamless manner than would have been possible, say ten years ago. One, however, should always be cognisant of the requirements for admissibility of electronic evidence as defined in the Electronic Communications and Transactions Act 25 of 2002 (ECT Act).

Section 11(1) of the ECT Act recognises information in electronic form and not simply computer printouts, as done by most of its predecessors.

Section 15(1) of the Act dealing with admissibility of data messages states:

‘In any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a data message, in evidence –

(a) on the mere ground that it is constituted by a data message; or

(b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.’

As pointed out in the Ndlovu v Minister of Correctional Services and Another [2006] 4 All SA 165 (W) case, this subsection facilitates admissibility by excluding evidence rules that deny the admissibility of electronic evidence purely because of its electronic origin. Section 15 places electronic information on the same footing as traditional paper-based transactions, and thus does not do away with the requirements governing the admissibility of documentary evidence, which are relevant, authentic and original.

Let us look at some of the main reasons legal practitioners should be up to speed with technology and related innovations:

• Increased productivity

If a long term approach is taken on the procurement of trust and business accounting packages, a lot can be gained through applications that allow room for innovation. For example, a trust and business accounting package may be further supported by a mobile application. The mobile application can be fully featured and allow its users to have real time access to all of their business’ core financial functions including fee books, inquiries, business reporting and accompanying documentation – yes, all completely mobile. The advantage of this feature is that practitioners need not be confined to an office in order to do their work or provide oversight, but can have access from anywhere, anytime.

Here are some of the benefits in which technology can increase productivity for practitioners:

– Transactions can be tracked and a proper audit trail can be maintained, that can tell what was done, by whom and when. This feature is very useful when one needs to retrieve past data and respond to specific queries. By entering a reference number/code, all information pertinent to a transaction is retrieved at the click of a button.

– Processing of transactions is uniform making it easy and quick to access to use for reporting purposes. For example, items get grouped and any potential clerical errors are eliminated.

– One person can perform more than just one function, functions which could have been performed by more than one person in a manual environment, while the system ensures that oversight is still provided without engaging a second person. This reduces the need for a large head count while at the click of a button more than one function is performed.

– While there is a lot of cybercrime and/or hacking into computers, there are companies of professional hackers who through their processes can evaluate the vulnerability of the firm’s computer environment and assist firms to secure their environment.

– Computers further enhance management oversight. This can be done through running of reports that can provide management with required information. Practitioners can define things that they would regard as exceptional and require attention when they programme their systems and monitor these in order to supervise productivity.

– Practitioners can build checks and balances into systems that will ensure that certain automated processes take place without the involvement of a physical person. This feature may further reduce the delays where, for example, one could be waiting for a signature in order to proceed with service offering.

• Increased footprint

While there are various ways in which a law firm may increase its footprint including word-of-mouth, billboards, etcetera. A law firm can also make use of innovative technology to improve or expand its footprint, for instance, by making use of a web application that helps large organisations to manage the distribution of content. Its application helps law firms to connect peers with the right content; and allows users to share via various social media platforms. With web applications, business professionals can share to LinkedIn, Twitter and other social networks without leaving their inbox. This may help law firms bring in more business through mass sharing of content, blogs and articles.

Sticking to social media, according to the World Wide Worx and Fuseware report ‘South African Social Media Landscape 2015’ (www.worldwideworx.com, accessed 4-11-2014), Facebook is the number one social platform in South Africa with over 11 million users as of August 2014. YouTube was second with around 7 million users. Twitter had over 6 million users while LinkedIn sat at just under 4 million users. These numbers cannot be ignored if a law firm is trying to increase its brand awareness and value via social media. The connection between social media and new clients or business may not be readily recognisable, and measuring the associated return on investment is particularly difficult. However, it is fair to say that social media plays an important role in the marketing of a law firm and the associated advantages in terms of recognition, referrals and relationships.

Another way a law firm can increase its client base is through the implementation of an interactive website that is not only user friendly, but tells the firm’s story and evidence of its expertise in an attractive way. For instance, video explanations and walkthroughs on websites may be used to achieve this and while many people may loathe videos, statistics do show it to be the overwhelmingly favoured choice for content consumption.

• Compliance

While the use of most technological innovations remains a choice for users, it is slowly becoming compulsory in other spheres. For instance, the 2016 Fidelity Fund Certificate (FFC) Application Form as gazetted on 30 September 2015 (GN R898 GG39239/30-9-2015), has been automated and applications are only accepted through an online process.

Attorneys are regulated through the Attorneys Act 53 of 1979 and the rules of the various provincial law societies, with the Act requiring them to hold an FFC in order to charge fees for legal services rendered. This is, therefore, a compliance issue but in order to comply, it is compulsory for them to interact with a computer system. Similar innovations have been seen with other institutions as well such as the South African Revenue Services (Sars), the Financial Intelligence Centre (FIC), etcetera.

From 1 March, it will become mandatory for practitioners to pay over trust interest to the Attorneys Fidelity Fund (AFF) via the relevant law society on a monthly basis. For some attorneys, the calculations and number crunching to determine the amounts to be paid to the AFF are an administrative burden, especially if it has to be monthly. The AFF has worked very closely with the banking industry and products are available for attorneys to automate their monthly interest payments in a seamless fashion, with little or no practitioner involvement, and recoverable bank charges are automatically set off against the interest earned. For a more in-depth study of the process see ‘Interest earned on trust current banking accounts: To be paid over monthly’ 2015 (Jan/Feb) DR 29.

While banks can offer this product to practitioners, this does not absolve the practitioners of their responsibility to pay over the interest but reduces the administrative burden on the part of the practitioner/firm. Readers are further advised to read the following articles –

– ‘Have you paid your dues?’ 2014 (April) DR 23; and

– ‘Interest earned on trust current banking accounts: To be paid over monthly’ 2015 (Jan/Feb) DR 29.

The Attorneys Insurance Indemnity Fund (AIIF) provides a computerised diary system to attorneys, a Prescription Alert system, which is a valuable tool offered to legal practitioners at no cost. It records particulars of all time barred matters (such as motor vehicle accident claims (MVA)) and more recently, other civil claims registered by practitioners in order to provide them with early notification of the impending prescription dates. These kinds of initiatives are there in order to assist practitioners to best manage their activities and practitioners are encouraged to take full advantage of them.

Conclusion

Like any other investment, investing in technology involves a financial injection for procurement of computers, the system/s required, security of the system/s and data stored in the system/s, etcetera. This injection may mean that the firm has to decide on what to set aside that could also require funding. A cost versus benefit analysis should therefore be conducted and an informed decision taken. It is imperative for practitioners to have and maintain proper backups outside of their offices in order to ensure continuity should disaster like fire, theft of computers, strike, etcetera. This will ensure that the practitioner can continue to service clients with very little disruptions experienced.

While we promote and encourage the use of automated systems, we caution practitioners to ensure that they have the proper checks and balances in place. An automated system is as good as its programming and vice versa. It is important to identify potential risks associated with information technology on time and put in place measures to reduce their likelihood and impact to acceptable levels.

While we acknowledge that one way to land new business and clients is from referrals based on excellent client service and personal relationships, it is important to take an all-round approach as the competition intensifies and the smarter use of technology becomes a key catalyst for growth. You may not be an early adapter to technology, but it is never too late to get into the mix and learn because, it is an essential and indispensable part of any modern business.

The prosecutions and the financial forensic units of the Attorneys Fidelity Fund in Centurion.

This article was first published in De Rebus in 2016 (March) DR 15.