By Michele van Eck
Earning a living and charging reasonable fees is not inherently problematic, except when it is linked to frivolous processes that intend to generate unnecessary fees. Such conduct is an encroachment on the ethical and professional boundaries of an attorney. An example of this can be found when an attorney requests reasons for a judgment in instances where a written judgment has already been given by the court. At first glance, such conduct may not appear to be one of significance, but Strydom highlighted the extensive negative consequences on the courts and clients when attorneys ask for reasons for a judgment unnecessarily.
Overview of the Strydom case
On 16 November 2023, the court provided a written judgment and shortly afterwards, on 30 November 2023, the attorney of the applicants requested reasons for the earlier judgment (paras 1, 4, 9). Reid J expressed concern, as the request was made when a written judgment had already been provided (para 5). This was particularly problematic as the written judgment included the courts rationale for its decision. The court highlighted that such conduct places a burden on the administrative functions of the courts and results in an unnecessary strain on the already limited resources of the judiciary (para 7.1). Unnecessary requests for reasons effectively increase the workload of the judiciary (para 9). Added to this, there is a likelihood that clients would be invoiced for such unnecessary requests, and, consequently, pay for work done that was not necessary (para 7.2).
Reid J noted that it was ‘grossly unfair to expect a layperson to pay his/her attorney for frivolous, thoughtless and/or mindless processes conducted by his/her attorney’ (para 11). The court deemed the matter of such importance that it was necessary to put measures in place to protect the ‘interests of justice’ by refusing to allow the attorney from charging a client for the drafting and filing of a request for reasons for a judgment where reasons had already been given (paras 11, 13). The rationale of the court was that such an order would motivate attorneys to apply their minds to a judgment handed down (para 13).
Impact on ethical and professional duties
The court recognised two possibilities for the attorney’s request for reasons. The first possibility was that the attorney had intentionally intended to generate additional (but unnecessary) fees for the request for reasons (para 8). The other possibility was that the attorney simply acted out of negligence or carelessness in a so-called ‘knee-jerk’ reaction having either not –
- properly applied their mind to the matter (para 6);
- read the written judgment (para 5.1); or
- inquired from the registrar whether a judgment had been handed down (insofar as there was an order without a judgment) (para 5.2).
The court did not indicate which of these were applicable but rather alluded to the possibility of all of them. Although the court also did not directly reference the Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities (GN168 GG42337/29-3-2019) (Code of Conduct), it is useful to note that the Code of Conduct addresses all three of the possibilities the court had highlighted.
Firstly, r 3.1 of the Code of Conduct requires that an attorney must ‘maintain the highest standards of honesty and integrity’, which addresses any intentional ‘fee-generating schemes’ on the part of an attorney. Insofar as the attorney’s conduct was of a negligent nature, r 3.10 of the Code of Conduct requires an attorney to ‘advise their clients at the earliest possible opportunity on the likely success of such clients’ cases and not generate unnecessary work, nor involve their clients in unnecessary expense’ (my italics). Requesting reasons when a written judgment has already been provided would certainly fall within the ambit of generating unnecessary work. Finally, insofar as an attorney acted out of ignorance or carelessness by not having verified the status of the judgment, r 3.11 of the Code of Conduct requires an attorney to ‘use their best efforts to carry out work in a competent and timely manner and not take on work which they do not reasonably believe they will be able to carry out in that manner’. In all three instances the Code of Conduct provides sufficient guidance so as to avoid the questionable conduct that the Strydom case described.
Concluding thoughts
Although requesting reasons for a judgment may not, at a cursory glance, appear to be a significant ethical or professional issue, it has both direct and indirect consequences on the judiciary (eg, clogging up the system, draining the limited resources of the judiciary and adding to the judiciary’s workload) as well as negatively impacting clients (eg, resulting in paying fees for unnecessary work). The Strydom case highlights the need for an attorney to remain vigilant in their legal practice, even in the smallest of processes – such as requesting reasons for a judgment. A lack of interest (carelessness) or the failure of applying one’s mind to a matter (negligence) is equally problematic to that of acting with intentional intent of generating additional (but unnecessary) fees. Ultimately, the Strydom case serves as a reminder that there are no shortcuts to an ethical and professional legal practice.
Michele van Eck BCom (Law) LLB LLM (UJ) LLD (UP) BTh (SATS) BTh (Hons) (SATS) is an Associate Professor at the School of Law at the University of Witwatersrand.
This article was first published in De Rebus in 2025 (March) DR 45.
