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Wrong Client, Wrong Instructions – Making sure you have instructions

For a profession dedicated to providing, amongst others, well drafted contracts a lot of attorneys and firms neglect to conclude proper agreements with prospective clients. Often attorneys will proceed after having a brief consultation (whether in person or virtually) without first defining the exact terms of the relationship.

As attorneys are well aware, verbal agreements are binding but it’s always advised to conclude the terms in writing to prevent future complications.

Rule 35 of the Legal Practice Council Rules (“the Rules”) provides specifically for Attorneys when receiving instructions from a client and states as follow:

∞          Instructions by a client to an attorney may be in writing or may be verbal.

∞          When written instructions are given by a client to an attorney the attorney must ensure that they set out the intended scope of the engagement with sufficient clarity to enable the attorney to understand the full extent of the mandate. If the attorney is uncertain as to the scope of the mandate the attorney must seek written clarification of the intended scope of the instructions.

∞          Where the client instructs the attorney verbally, the attorney must as soon as practically possible confirm the instructions in writing and in particular must set out the attorney’s understanding of the scope of the engagement.

The South African Legal Practice Council Code of Conduct (“Code of Conduct”) provides under to Rule 18.11 which holds as follow:

  • An attorney shall -use the services of a third party (including services for the purpose of gathering evidence) only where the attorney has established a bona fide attorney and client relationship with the client, such that –

18.11.1 the client is free to elect whether or not to use the services of the third party;

18.11.2 the attorney takes proper instructions directly from the client; and

18.11.3 the attorney is mandated to engage the third party at the client’s cost, in which event the attorney may issue an instruction to a third party whom the attorney considers will be competent to do specific work, and the attorney may, on the client’s behalf, pay to the third party a fair and reasonable fee, consistent with the value of the work actually done by the third party;

Failure, therefore, to ensure a proper relationship has been established could have serious financial implications for an attorney or firm.

When concluding a Mandate and Fee agreement, ensure the following is covered:

  • The nature of the work to be done and the extent of your powers;
  • The deposit payable (if any);
  • The rates and fees applicable;
  • FICA documents required;
  • Personal Information of the client;
  • How the mandate can be terminated and the process that follows;
  • The Firm’s banking details;
  • That the Client is responsible for all third party accounts (such as advocates);
  • Under what circumstances may you withdraw as an attorney.

As with any agreement, a well drafted Mandate will provide reassurance for both you and your client.

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