There are many variations of the proverb ‘the final straw that broke the camel’s back’ used to emphasise how a series of challenging or intolerable events can push one over the edge. In the context of a law firm, taking on instructions that exceed the available capacity can lead to important deadlines being missed, over-worked practitioners and staff, burnout or other distressing consequences. If chasing profitability is the firm’s sole objective, legal practitioners may take on more work than they can realistically handle with the requisite care and attention. There is a risk that taking on too much work may even be the catalyst for a law firm’s demise. Some may dismiss the concerns raised in this article as being akin to saying that firms must limit the amount of work they take on and thus the profits they generate. The points raised below will address that.
In explaining why a plea was not filed timeously, the defendant’s attorney in Nu-Shop Holdings (Pty) Ltd v Kasle Properties (Pty) Ltd (KZD) (unreported case no D9608/2021, 14-8-2024) (Nkosi J) provided a lengthy explanation of numerous matters she had to attend to in different courts across two provinces, and an unfortunate incident that had befallen a member of her family, during the relevant period that required her attention. After setting out the attorney’s explanation, Nkosi J observed that:
‘[19] …, the convoluted explanation provided by [the attorney] for her delay in delivering the defendant’s plea is indicative of the prevalent practice amongst some attorneys, especially in sole practitioner practices, who tend to take on more work than they can possibly handle. While I fully empathise with any such attorney’s need to generate income to sustain his or her practice, I think the court is justified to express its displeasure at the conduct of any legal practitioner who sacrifices the diligent discharge of his or her duties at the altar of profitability.’
There is a delicate balance between taking on sufficient work from which sufficient income can be generated to sustain a practice, on the one hand, and, on the other, taking on too much work that can ultimately be properly executed by the available personnel in a firm. A sole practitioner must multi-task and fulfil roles such as the marketing officer, being the entrepreneurial strategic business leader, compliance officer, IT specialist, human resource functions and being the financial manager. This is over and above being the legal practitioner who must provide the legal services, which ultimately enables the firm to generate income. If the multi-tasking is not properly managed it can lead to the sole practitioner being thinly spread across all the roles and being ineffective at most, if not all. Many legal practitioners do not have either the appropriate academic training or experience to fulfil the multiple roles and thus learn by trial and error.
Missing legislative and other timelines is often a result of practitioners taking on too much work and thus being unable to closely monitor whether all matters in their practice are being attended to timeously. The perennial proliferation of prescription related professional liability claims are just one consequence of this.
Taking on too much work is a risk to the mental health of the practitioner and the staff in the firm. It also becomes difficult to attend to all matters with the required diligence. Practitioners in such situations often resort to having to apologise to clients for missing promised delivery timelines and requesting postponements or indulgences from opponents and even the courts. The professional fulfilment that can be gained from a dynamic legal practice is lost as the practitioner’s energy is sapped by constantly putting out proverbial fires and operating in perpetual crisis mode. It is not possible in such circumstances to –
These are fertile grounds for errors to occur that can ultimately result in professional liability claims against the firm and complaints lodged with the Legal Practice Council alleging that the practitioner concerned has not paid proper attention to the clients’ matters. It will also be difficult to retain staff in such circumstances as the strain of a heavy workload will take its toll on them. It is demotivating to work in perpetual crisis mode with no signs of the mountain of work abating. Resignations of key personnel will only increase the risk as the workload of those left in the practice increases.
Constantly assess the status of active matters in the practice against the available capacity. If there is no time or capacity to deal with new matters, learn to say ‘no’ to clients. Develop measures to share the workload. Establish relationships with colleagues in the profession who you can refer matters to. Conclude fee sharing agreements with other firms if necessary. Clients will appreciate your uprightness and the colleagues you refer instructions to may reciprocate in future. Put a conscious effort into building a professional network with other attorneys and advocates. Do not limit the network to the geographical area where you primarily practice or only to those with similar types of work to your firm. If the firm is growing, consider the possibility of merging with another firm or taking on new partners.
Litigation is an area of law commonly practiced by smaller firms. Where the firm regularly has multiple matters (trials, motion court proceedings or even taxations) in different courts, the practitioner responsible for the matters will be out of the office for extended periods. The same will happen if there is a long-running trial or arbitration. Other matters in the firm will not receive the appropriate level of attention while the practitioner is away. Lengthy trials also affect the firm’s income if a practitioner is focussed exclusively on those matters for extended periods and then must wait to be compensated for the time spent on such matters when other potential income generating work was not attended to. Overheads and other expenses cannot be put on hold while payment from clients is awaited.
Delegate work to others in the firm. Set realistic targets and goals. Increase the staff compliment with appropriately competent personnel if the workload is growing. Consider employing additional resources on a temporary or part-time basis if necessary. Some work may be cyclical, and the temporary peaks may not justify employing more resources on a full-time basis. The point is to spread the load and have capable internal resources to assist. Properly supervise staff and monitor their workloads. In Nu-Shop Holdings the attorney had requested an associate in her office to serve the plea, but only discovered more than two weeks later that this had not been done (see para 14-17). Adequate supervision would have prevented this.
Implementing time management measures and planning how time and resources will be distributed across matters in the firm will assist in ensuring that they are timeously and efficiently carried out and forecasting fee income projections accurately. Not every instruction will bring substantial income into the firm. Some steps involved in executing mandates are tedious, labour intensive or the effort involved in executing them is not proportionate to the income they generate. Where the firm is heavily reliant on manual execution of tasks, investigate whether there are suitable technological solutions available. Many practitioners express their surprise that the level of their income is not commensurate to the heavy workload.
Establish internal processes and systems to reduce bottlenecks and ensure a smooth workflow. Checklists and regular file audits assist in ensuring that you do not become so engrossed in other matters that an important step such as the timeous filing of a plea slips through the cracks as happened in the Nu-Shop Holdings matter. Where deadlines are missed, look at the underlying reasons therefor and implement measures to mitigate recurrences.
An awareness of your own mental well-being and that of your staff is important. Be alert to signs of fatigue, burnout and other conditions associated with overwork. Working very long hours for extended periods is unhealthy and unsustainable. Reliance on medication or other stimulants to function over long periods is another red flag. Some physical ailments may also be symptoms of overwork. Keep records and obtain assistance from the appropriate healthcare professionals as early as possible. In South African Legal Practice Council v Halles and Another (GP) (unreported case no 35117/2022, 5-6-2024) (Davis J, Mooki J and Matthys AJ) a suspension, rather than a striking off, was found to be the appropriate sanction for a practitioner suffering from a major depressive disorder of a temporary nature. There were no acts of dishonesty in that matter.
Practitioners in need of counselling can use the service made available through the collaboration between the Law Society of South Africa and a specialist counselling service provider. The details can be found at: www.lssa.org.za.
Contact details of the South African Depression and Anxiety Group are available on its website: www.sadag.org.
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Thomas Harban BA LLB (Wits) is the General Manager of the Legal Practitioners Indemnity Insurance Fund NPC in Centurion.
This article was first published in De Rebus in 2024 (October) DR 14.
