It has now become ostensible that COVID-19 pandemic together with the restrictions imposed by governments around the world will affect everyone, every profession and business. The nature and financial muscles of businesses have been tested to the greatest extent. This has proved to be true for the legal profession and, will continue to be so as the pandemic shows no sign of yielding. Many law firms have been hit hard by the effects of the lockdown. Hard lockdown, which commenced late March 2020 until end of April 2020, saw many firms closing down – although the Regulations allowed legal services under very strict conditions like urgent matters. Firms, like other businesses, did not have adequate time to prepare for the lockdown and its concomitant repercussions. This means that certain instructions could not be attended to at all or timeously; inability to take proper instructions; inability to access relevant sources of law to execute instructions; inability to serve documents at all or timeously; inability to institute legal actions; etc. Naturally, this would open wide possibilities of matters prescribing; also, due to time and financial constraints, end up un/knowingly under settling matters, etc. For lawyers, this does not only risk their reputation but also risks professional negligence claim against the relevant firm/attorney. Under Alert Level 4, May 2020, legal services were permitted, however, not much could be done as most businesses were still closed which meant that either the clients’ businesses or “opposition” were still closed. To re-stabilize their respective practices, there is a possibility of unethical conducts occurring, for example, using trust monies for business purposes; “robbing” clients of their monies; over-reaching; concealing prescribed cases, etc. For justice to be served properly and to maintain the integrity of the profession, it is imperative to zoom into some of the forms of professional negligence and possible recourse for the concerned individuals who may be on the receiving end of such unethical conduct.
From the onset, it is fundamental to briefly explicate what professional negligence means in the attorneys’ profession. There is a plethora of cases that have sought to define professional negligence including that of Ramonyai v LP Molope Attorneys where the court provided that “professional negligence is the failure by the attorney to act with the competence reasonably expected of ordinary members of the attorney’s profession. An attorney must be meticulous, accountable, he or she must serve his client faithfully and diligently and must not be guilty of any unnecessary delay.” It went on to state that “in the performance of his or her duty or mandate, an attorney holds himself or herself out to his or her client as possessing the adequate skill, knowledge and learning for the purpose of conducting all business that he she undertakes. If, therefore, he or she causes loss or damage to his or her client … he or she is guilty of negligence giving rise to an action for damages by his or her client against him or her”. From this definition, it is apparent that the attorney must execute his client’s instructions with utmost diligence. Although it is yet to be seen whether lockdown will qualify as a defence for attorneys in such cases, chances are that it will not qualify as a “standard defence” i.e. merits of each matter will dictate the outcome. For example, where the attorney has had a case for a long time but did not issue summons timeously, then in that case, it will probably not succeed.
Professional negligence come in many forms. It is thus apposite, at this juncture, to explore some forms of professional negligence:
- Prescription – generally, this is regulated by the Prescription Act although other legislations regulate their own prescription periods. Due the lockdown, there may have been matters prescribing between 27 March to 3 May 2020 and the attorneys could not serve summonses.
- Under-settlement – this is when the attorney, without fully advising the client what his/her claim is worth, settles the matter for way less than what is realistically due to the client. Important to note, it will not be under-settlement where the client, having been adequately advised, insists on accepting the offer as is. As stated above, in order to resuscitate the destabilized practices, attorneys may be prompted to under-settle cases in order to make fees.
- Undercharging – offering a discount (which is legal) is distinguishable from undercharging (illegal) – this has a recurring pattern as one of its characteristics – aimed at “killing off the competition”. These are usually unreported as the clients benefit from it. Wholistic approach is utilized in determining “undercharging” – factors such as the going tariff rate; complexity of the matter compared to the fees charged; etc. are all considered. The lockdown would may undercharging as attorneys would be trying to get as many cases as possible to revive their practices.
- Overreaching – this is over-charging and, naturally, factors considered for “undercharging” would be considered herein – albeit with the ‘reversed purpose’. The lockdown would influence this as attorneys are trying to recover and compensate for the fees lost during the hard lockdown.
- Other forms would include failure to act timeously or at all; failure to take necessary steps to serve the client’s legal interests, accordingly; etc.
Where a client has not heard anything from the attorney regarding progress in the matter for a while, he should contact his attorney and enquire, accordingly. The attorney, who values integrity and upholds the standards of the required professionalism in the profession, will be honest enough to tell the client the truth – the progress or that there may have been professional negligence. The attorney, however, need not admit negligence (particularly under the lockdown where the lockdown itself may negate negligence) but should advise the client to see another attorney and give the client his or her entire file contents. The client may then sue the relevant attorney for professional negligence. In line with the ethical duties of attorneys, where the attorney suspects professional negligence, he should be proactive and not wait for the client to enquire before entertaining the matter/advising of the factual truth.
Although professional negligence cases are common, there may be more coming due to the lockdown. Most smaller firms, with no established proper check systems, run a higher risk of such claims and, unfortunately, some will not survive “the storm”. Further, most of the smaller firms do not have adequate facilities and systems to operate smoothly from home and this exacerbates their financial distress. Despite everything, it is imperative for attorneys to not part take in any unethical activities in an effort to resurrect their practices, as this may, in fact, collapse the very same practices.