By Simthandile Myemane
PUBLIC opinion in South Africa on legal practitioners often swings from holding them in the highest esteem to a lack of trust in these professionals.
This is due to the various encounters that the public experience when getting legal services from them. In fact, the reality is that, much like any other profession, legal eagles come in all shapes and sizes.
But what happens when, as an innocent, unsuspecting member of the public, you experience misconduct that ruins your experience with a legal practitioner? What recourse do you have and how do you protect yourself against being duped by a dodgy legal practitioner?
The Legal Practitioners’ Fidelity Fund (LPFF), previously known as the Attorneys’ Fidelity Fund, is an organisation that exists to protect the public against loss because of the theft of trust funds.
The protection provided by the Fund means that the public can use the services of legal practitioners with confidence and with the knowledge that there is someone out there to help if your money or property entrusted with a legal practitioner mysteriously disappears.
The primary purpose of the LPFF is to reimburse clients of legal practitioners who may suffer financial loss due to the theft of money or property entrusted to a legal practitioner, or where an attorney acts as an executor or administrator in a deceased estate, or as a trustee in an insolvent estate.
Members of the public have up to three months of becoming aware or suspicious of the theft of their money and/or property to notify the Fund of their discovery or suspicion.
During 2018 the Fund was notified of 1 025 claims, while claims totalling R171 million were paid out in rand terms. In 2019 the claims notified to the Fund dropped to 871, while claims paid totalled R180m. Claims notified to the Fund during 2020 rose to 936 while claims totalling R137m were paid out. The figures for 2021 are not out yet as the Fund’s financial period ends in December.
It’s clear from these figures that even during the pandemic activity within the Fund has not subsided — the problem of rogue elements in the profession is a historic one and it persists.
Typical losses covered by the Fund include the theft of:
· money from deceased or insolvent estates;
· money held pending registration of the transfer of immovable property;
· settlements in personal injury claims;
· deposits paid for litigation matters;
· deposits on commercial matters;
· any other matters where legal services are involved for which money was held in trust with a legal practitioner.
Provided that you can prove that you have suffered a financial loss because of theft committed by a legal practitioner, candidate attorney or employee of a legal practitioner while receiving legal services, you are entitled to establish a claim against the Fund.
The claims process begins with the submission of an affidavit to the Claims Executive at the Fund. This affidavit serves the dual purpose of proving a claim against the Fund and assisting the SAPS to institute a criminal investigation and prosecution.
My advice to claimants is that they ensure that they can prove that they entrusted monies or property with the legal practitioner; that the money and/or property is no longer with the legal practice; and that they did not benefit from its disbursement or disposal.
Consumers should always take the time to establish that they are receiving legal services from a legitimate legal practitioner before entrusting them with their money and/or property.
One of the things you can do is to ask to see a Fidelity Fund certificate and verify its validity. Fidelity Fund certificates are valid for a period of a year from the date of issuance to December 31 of that year. Members of the public can also contact the provincial council offices of the Legal Practice Council in the province where the legal practitioner practises to verify the legitimacy and good standing of the legal practitioner from whom they wish to source legal services.
In addition, the Fund and the Legal Practice Council are working to establish a platform that members of the public can access on their own to check if they are dealing with a genuine legal practitioner who is in good standing.
Once this platform is established, the public will be notified of legal practitioners that they can use in their area. However, should they source the services of a legal practitioner who has not been cleared, the Fund will not entertain the claim arising from the use of an uncleared legal practitioner, provided use thereof or continued use thereof is after the legal practitioner fails to get cleared.
Simthandile Myemane is a practitioner support manager at the Legal Practitioners’ Fidelity Fund .
*The views expressed here are not necessarily those of IOL or of title sites.