CONDUCT
89. Unprofessional or dishonourable or unworthy conduct on the part of a practitioner shall include, inter alia, the following acts and omissions:
89.1 touting for work of a professional nature;
89.2 the sharing of offices with or the occupation of offices having direct communication with any office occupied by any person who is not a practising member or in the employ of a practising member in the course of his or her practice: save that the council may, in the case of a person who formerly was a practising member, permit such sharing or occupation subject to such conditions as it may impose;
89.3 in any way directly or indirectly assisting, allowing or enabling an unqualified person to charge, recover or receive any fee or derive any remuneration for or in respect of or in connection with the preparation or execution of any document or the performance of any professional work which only a practitioner is qualified by law to prepare, sign, execute, attest or perform, or in any way conniving at any arrangement, agreement or understanding whatsoever whereby any such fee or remuneration is or shall be charged, recovered or received by any such unqualified person;
89.4 the giving of or receiving an allowance in excess of the maximum allowance which a member is permitted to make in terms of rule 83;
89.5 the failure to keep books of account and records in rules or otherwise in accordance with law, in respect of all the financial transactions relating to the practice of the firm of which he or she is the proprietor or a member;
89.6 the failure at all times to retain and preserve such books of account and records as required by rule 68.1.3;
89.7 without lawful excuse delaying the payment of trust money after due demand;
89.8 non-payment after demand of any subscription or any fee, levy or other charge payable to the society;
89.9 accepting from any person directly or indirectly any sum of money which it is agreed or intended should be used as payment or part payment for services to be rendered or for disbursements to be made in the future in the event of any future act or omission forming the basis of any criminal charge against the person by or for whose benefit such payment was made;
89.10 failure to issue and on request, to hand over or otherwise deliver to the person making payment, a receipt for any money received;
89.11 any contravention of the provisions of the Act or of these rules-
89.12.1 advertising or canvassing in relation to any business in which he or she has an interest, including estate agency and auctioneering in any way which is in the opinion of the council unbecoming a practitioner or calculated to lower the dignity or standing of the profession, or calculated to attract professional work;
89.12.2 advertising by any business in which a practitioner has an interest shall be deemed to be advertising by him or her unless he or she proves that he or she did not authorise such advertisement and that he or she could not have prevented it;
89.12.3 nothing in rule 89.12 shall be construed as prohibiting a practitioner, in relation to any business in which he or she has an interest, from advertising or canvassing in any manner which would be permissible if he or she were doing so in relation to his or her practice;
89.13 practising under any style or name other than one which consists solely of the name of names of any of the past or present members of the firm of which he or she is the proprietor or a member, or of persons who conducted, for their own account or in partnership or as a professional company, any practice which may reasonably be regarded as a predecessor of the firm; provided that-
89.13.1 subject to section 23(1)(c) of the Act and rule 78, the words "and company", "and associates" and "and partners", or any contraction thereof, may be included in the name of the firm only during such time as there shall be two or more members of the firm;
89.13.2 the name of any former member who has been struck off the roll shall in no circumstances while he or she remains struck off form the name or part of the name under which a practice is conducted;
89.13.3 any member who practises otherwise than in accordance with this rule 89.13 immediately before the date of promulgation of these rules shall be deemed not to have contravened this rule 89.13 should he or she continue so to practise for a period not exceeding six months after that date;
89.14 making use of any stationery or printed material of any description which in the opinion of the council does not befit the dignity, prestige and status of the profession;
89.15 neglecting to give proper attention to the affairs of his or her clients;
89.16 failing adequately to supervise his or her staff;
89.17 abandoning his or her practice without previous notice to his or her clients and without arranging with them for the dispatch of their business or the care of their property in his or her possession or under his or her control;
89.18 departing from an apportionment of fees laid down by law or by ruling of the council;
89.19 failing to disclose his or her name and the names of all his or her partners or, where he or she is a member of a professional company, the names of all its directors on the letter heads of his or her practice;
89.20 disclosing in the letterheads of his or her practice-
89.20.1 the name of any practitioner employed by him or her without clearly indicating thereon by means of the words, "consultant" or "associate" or "professional assistant" or "assisted by" that such practitioner is not a partner of his or her nor a co-member of a professional company of which he or she is a member; provided that the word "consultant" shall be used only where the practitioner to whom it refers has been a former sole proprietor of or partner or member of a professional company in that practice or its direct predecessor;
89.20.2 the name of-
89.20.2.1 any practitioner, who practises anywhere within the Republic; or
89.20.2.2 any person who carries on the practice of a lawyer outside the Republic, with whom he or she practises in association other than as a partner or employee or co-member of a professional company, without clearly indicating thereon by means of the use of the words "in association with" that such is the case;
89.20.3 the name of any person other than a person referred to in rules 89.19, 89.20.1 or 89.20.2 or a person who is employed by him or her in his or her practice as an office manager, internal accountant or bookkeeper; provided that the name of a person so employed is accompanied by the description of the capacity in which he or she is employed and is not placed in close conjunction with the name of any person referred to in rules 89.19, 89.20 or 89.20.2;
89.21 failure, without sufficient reason, to be in attendance during a consultation with counsel or at court during the hearing of a matter in which he or she is the attorney of record in person or through a partners or employee, being a member or candidate attorney or a clerk as defined for the purposes of rule 79;
89.22 failure, in the opinion of the council, to perform his or her obligations in terms of Articles of Clerkship or a Contract of Service to which he or she is a party;
89.23 failure to answer or appropriately to deal with within a reasonable time any correspondence or other communication which reasonably requires a reply or other response;
89.24 overreaching a client or overreaching the debtor of a client; or charging of a fee which in the view of the Council is unreasonably high, having regard to the circumstances of the matter;
89.24A if his client requires him or her to do so, failing to prepare and submit an account for taxation or assessment, as the case may be, within a reasonable time or within a time fixed by the council, unless there is sufficient reason for the account not being taxed or assessed;
89.25 failure to comply with an order, requirement or request of the council or a request of the secretary
89.26 referring work, the performance of which is reserved by law to an attorney, notary or conveyancer, to any person prohibited by law from performing such work, or assisting or co-operating with any such person in relation to the performance of such work by that person;
89.27 acting for or in association with any organisation or person, not being a practising practitioner or an assessor acting on the instructions of a registered insurance company, whose business or part of whose business it is to make, support or prosecute claims resulting from death or personal injury and who solicits instructions to make, support or prosecute any such claim or receives any payment, gift or benefit in respect thereof;
89.28 with regard to a claim referred to in rule 89.27 knowingly acting for any person introduced or referred to him or her by any such organisation or person;
89.29 failing to make reasonable enquiry before accepting instructions in respect of a claim referred to in rule 89.27 for the purpose of ascertaining whether the acceptance of such instructions will involve a contravention of rules 89.27 or 89.28;
89.30 without reasonable cause on excuse, failing to perform professional work, or work of a kind commonly performed by a practitioner, with such a degree of skill care or attention, or of such a quality or standard, as in the opinion of the council may reasonably be expected.
90. A practitioner who has acted for a person referred to in rule 89.28 while in the opinion of the council he or she should have known that the organisation or person who introduced or referred such person to him or her is an organisation or person referred to in rule 89.27 shall be deemed not to have complied with the provisions of rule 89.28.
91.1 For purposes of rule 89 the expression "touting for work of a professional nature" includes:
91.1.1.1 accepting or agreeing to accept or offering to accept remuneration for professional work at less than the tariffs of fees fixed by statute or regulation or rule; or
91.1.1.2 by his or her conduct directly or indirectly holding himself or herself out or allowing himself or herself to be held out as being prepared to do professional work at less than such tariff, unless he or she proves that he or she did not do so with the object of attracting work or business;
91.1.2 advertising, save as permitted under these rules or by the council, in any manner in which the public is invited to entrust professional work to him or her or in which he or she hold himself or herself or his or her firm out as being prepared or qualified to do such work;
91.1.3 procuring or allowing the appearance of his or her name or that of any firm in which he or she has an interest in any client's advertisement (other than a prospectus or any statement, circular or notification issued in accordance with the laws or regulations relating to companies or the regulations or requirements of a stock exchange, or any report or notice to shareholders of a company or the members of an institution for which a practitioner acts in such capacity, or such other document as the council may approve), indicating that he or she or his or her firm holds the appointment of attorney, notary or conveyancer to such client or any other person or company;
91.1.4.1 inserting his or her name or allowing his or her name to be inserted in any directory or law list unless-
91.1.4.1.1 such directory or law list is open to all practitioners practising in the Province;
91.1.4.1.2 the charge per insertion in such directory or law list, if published in the Republic, does not exceed the sum of R75 or if published outside the Republic, does not exceed the sum of R150 or other respective sums as may from time to time hereafter be determined by the council;
91.1.4.2 inserting or allowing his or her name to be inserted in any directory or law list in type other than ordinary type or inserting it or allowing it to be inserted in such manner as to give it prominence; provided that such an insertion in a telephone directory may be placed in bold type which is not significantly larger than ordinary type, and not elsewhere than within the ordinary alphabetical listings;
91.1.5 inserting or allowing to be inserted in any directory or law list, or on his or her letterheads, professional cards or other stationery of any description, any qualifications he or she may hold other than-
91.1.5.1.1 a university degree;
91.1.5.1.2 a university diploma in a legal subject.
91.1.5.2 the words "Attorney", "Notary", "Conveyancer", "Patent Attorney", "Patent Agent", "Trade Mark Agent" or "Administrator of Estates";
91.1.5.3 that that a practitioner has been admitted to practise in any country other than the Republic of South Africa;
91.1.5.4 that he or she or his or her firm specialises in any branch of the law (but subject always to such conditions as may be designated from time to time by the council);
91.1.6 inserting or allowing to be inserted on his or her letterheads, professional cards, or other stationery of any description the names of any of his or her clients or any appointments he or she may hold other than that of justice of the peace, appraiser or deputy-sheriff;
91.1.7 publishing under or over his or her name in the lay press any articles on legal subjects, addressing any audience on a legal subject or, whether directly or in any filmed, taped, duplicated, or other transmitted form, broadcasting on radio or television or otherwise communicating with the public or a section thereof on a legal subject, without the previous permission of the council;
91.1.8 making a donation in any form, whether by way of a formal presentation or otherwise, to a public official or public office otherwise than at the request or through the medium or under the authority of a circle of which he or she is a member or under the authority of the council.
91.2 Notwithstanding anything in rule 91.1 a practitioner shall not be deemed to be guilty of touting if he or she-
92.2.1 affixes to or paints on doors or walls of his or her office premises, or otherwise displays in the proximity of is or her office premises, nameplates or office signs of reasonable size and of such form or design as are not, and in such manner as is not, in the opinion of the council, unbecoming a practitioner;
92.2.2 when acting for any client, insert in the Government Gazette or other necessary newspaper any advertisement required by law and indicates that he or she is acting on behalf of that client.
91.2.2 when acting for any client, insert in the Government Gazette or other necessary newspaper any advertisement required by law and indicates that he or she is acting on behalf of that client.
91A A practitioner whose estate has been finally sequestrated shall-
91A.1 notify the Council thereof immediately and in writing and furnish the Council with a copy of the application for his or her sequestration or voluntary surrender as well as a copy of the relevant court order;
91A.2 notify those persons with whom he or she incurs debt in the course of his or her practice (for example a correspondent or advocate) beforehand and in writing of his or her insolvency;
91A.3 be guilty of unprofessional or dishonourable or unworthy conduct if he or she fails to comply with the provisions of rules 91A.1 and 91A.2.
92. Unprofessional or dishonourable or unworthy conduct on the part of a candidate attorney shall include any conduct which would be unprofessional, dishonourable or unworthy had it been perpetrated by a practitioner.
PART XIII
DISCIPLINARY PROCEEDINGS
93. The council shall have disciplinary jurisdiction over all practitioners no matter where the conduct which is, or allegedly is, unprofessional or dishonourable or unworthy is perpetrated.
94.1 The council shall consider any complaint made by or on behalf of any person feeling aggrieved by reason of any alleged unprofessional or dishonourable or unworthy conduct on the part of any practitioner, whether such conduct took place before or after the promulgation of these rules.
94.2 The council may, of its own motion, exercise its powers under these rules notwithstanding the absence of any complaint, in which event the provisions of rule 95 shall mutatis mutandis apply.
94.3 A complaint shall be in writing and in the form of an affidavit with sufficient particulars of the conduct complained about and shall be lodged with the secretary: provided that the head or acting head of the disciplinary division of the Council may accept a complaint in any other form.
94.4 The council may require a complainant to provide on affidavit further particulars on any aspect of the complaint.
94.5 The council shall not be obliged to disclose the source of a complaint.
95. Upon receipt of a complaint, the council may-
95.1 where it is of the opinion that the complaint does not disclose a prima facie case of unprofessional or dishonourable or unworthy conduct or where a complainant has neglected or refused to comply with the requirements of the council under these rules, dismiss the complaint and inform the complainant accordingly;
95.2 where it is of the opinion that a prima facie case of unprofessional or dishonourable or unworthy conduct on the part of the practitioner concerned has been made out-
95.2.1 furnish the practitioner with particulars of the complaint and shall upon him or her to furnish the council in writing within such time as the council may direct, with his or her explanation in answer to the complaint, and may require such explanation to be verified by affidavit; or
95.2.2 at any time and whether or not it has also proceeded or also thereafter proceeds under rule 95.2.1, call upon him or her to appear at such time and place as it may determine to explain or elucidate or discuss the matter; Provided that the referral of the complaint to the practitioner shall be in writing with a copy thereof to the most senior person at the relevant firm in years of admission according to the records of the Law Society, who shall likewise respond to the complaint;
95.3 when, upon a consideration of the complaint and the practitioner's explanation in answer thereto or elucidation of the matter, it is of the opinion that no prima facie case of unprofessional or dishonourable or unworthy conduct has been made out, dismiss the complaint and notify the complainant and the practitioner accordingly;
95.4 when, upon the consideration of the complaint and the practitioner's explanation in answer thereto it is satisfied that the complaint is justified but of a trivial nature, inform the complainant and the practitioner in writing of its decision and may issue a written warning to the practitioner;
95.5 when, upon a consideration of the complaint and the practitioner's explanation in answer thereto or in the absence of or failing such explanation, it is of the opinion that a prima facie case of unprofessional or dishonourable or unworthy conduct has been made out call upon the practitioner concerned on not less than 10 days notice to appear at such time and place as the council may determine in order that further enquiry under section 71 of the Act may be conducted, in which event it may appoint a member, whether or not he or she is also a member of the council, or the secretary to conduct the examination.
95A.1 The enquiry in terms of rule 95.5 is conducted by the Council or by a committee appointed by the Council in terms of the provisions of section 67 of the Act.
95A.2 Where the committee consists of three or more members, two members will form a quorum: provided that where the Committee consists of three or more members, any decision made or order granted must in such event be made or granted by way of a majority decision.
96. During the course of proceedings conducted under rule 95.5 the council shall afford the practitioner concerned an opportunity of adducing evidence relevant to the subject matter of the enquiry and of making such other relevant representations as he or she may wish.
97. At any stage during the course of an enquiry when it appears to the council that there is prima facie evidence justifying a charge or charges of unprofessional or dishonourable or unworthy conduct and the practitioner concerned is then present before the council, it may inform the practitioner thereof and ask him or her whether he or she wishes to be charged forthwith and have the matter summarily disposed of and, if he or she assents, the council may thereupon dispose summarily of the matter, but if he or she does not asset, the enquiry shall be adjourned to such time and place as the council may determine when it shall be continued and concluded as in these rules provided.
97A.1 The Council or the committee conducting the enquiry, may at any stage prior to or during the course of the enquiry summon any person as a witness and interrogate or re-interrogate him: provided that
97A.1.1 such witness may be cross-examined by the practitioner concerned or his or her legal representative;
97A1.2 the relevant practitioner concerned may only be examined if he or she has already testified in the enquiry or if a statement deposed to by him or her has been accepted as evidence in the enquiry.
97A.2 If a practitioner or his or her legal representative is not present during the enquiry and the Council or the committee, as the case may be is satisfied that the practitioner is aware of the enquiry, the enquiry shall be proceeded with in his or her absence and a plea of not guilty shall be entered, unless the practitioner has in writing pleaded guilty to the charge against him or her, in which event that will be noted in his or her plea.
97A.3 If a practitioner desires a postponement of the enquiry, he or she shall apply for such postponement to the Council or the committee conducting the enquiry: provided that the head of the disciplinary division of the Council may in extraordinary or compelling circumstances grant such postponement either telephonically, or by way of telefax or by way of a letter. At the hearing of the matter, the Council or the committee shall decide whether the wasted costs occasioned by such postponement should be paid by the practitioner or not.
97A.4 Evidence by way of affidavit or other document is admissible, but the Council or the committee is entitled to adjudicate the evidential value thereof by taking into consideration the fact that the evidence contained therein has not been tested in cross-examination.
97A.5 The record, or any part thereof, of a legally appointed court, an inquest court or a statutory body, is accepted as prima facie evidence if the document has been certified as a true copy.
97A.6 If the practitioner pleads guilty to a complaint and the Council or committee conducting the enquiry is satisfied that the act or omission amounts to misconduct on the part of the practitioner, the Council or the committee may find the practitioner guilty and after consideration of the practitioner's reply or explanation impose an appropriate sentence.
97A.7 After a letter with particulars of the complaint has been served on the practitioner, and before the enquiry commences, the practitioner may in writing notify the Council or the committee which will conduct the enquiry that he or she pleads guilty to the complaint set forth in the letter. If the Council or the committee is convinced that the complaint can be disposed of without further enquiry, it notifies the practitioner and the complainant (if there is one) in writing that the enquiry will not be proceeded with, and it finalises the matter in accordance with the provisions of rule 97A.6.
98.1 If as the conclusion of an enquiry the practitioner is found guilty in terms of section 72(1) of the Act and an order is made that practitioner is to pay the costs incurred by the council in connection with such an enquiry in terms of section 72(1) (a) (iii) costs shall be calculated in accordance with the Supreme Court tariff applicable to civil litigation.
98.2 Without derogating from the generality of any such order for the payment of costs, such costs shall include-
98.2.1 the costs of recording, transcribing and preparing copies of any records;
98.2.2 the costs incurred by the council in respect of the person appointed to conduct the examination and the accountant or accountants or other person appointed to investigate and report on the practitioner's books of account and of any person appointed by the council to investigate and report on any other documents or records or things relating to the practitioner's practice or former practice;
98.2.3 the cots of procuring the attendance of witnesses and their witness fees, including those of the complainant.
98.3 With the consent of the president the practitioner concerned may be furnished by the secretary with copies of the record of the enquiry or extracts therefrom against payment by him of the cost of the making thereof calculated according to the said tariff.
98.4 Where a fine is imposed and/or an order made that a practitioner shall pay a certain amount of money and he or she is granted permission to make payment by instalments, the total outstanding amount of the fine and/or the amount of money becomes payable if the practitioner should fail to pay any one instalment on the due date. The amount owing from time to time bears interest at the mora interest rate determined by the Minister of Justice from time to time in terms of the Prescribed Rate of Interest Act, 55 of 1975.
99.1 At the conclusion of the enquiry, the Council or the committee which conducted the enquiry shall consider the evidence and the argument of both parties in order to rule on the practitioner's guilty or innocence and the appropriate punishment (if any) and the costs of the proceedings. The Council or the committee may adjourn the proceedings for the purpose of considering its findings.
99.2 As soon as possible after the conclusion of an enquiry the practitioner and the complainant (if there is one) shall be informed verbally or by registered post of the Council's or the committee's judgment and the sentence imposed, (if any).
99.3A A certificate signed by a person in control of the Society's records, containing reasonable particulars of a practitioner's previous convictions and sentences shall be deemed conclusive evidence of such convictions and sentences, on presentation thereof to the Council or the committee.
100. Subject to the provisions of these rules, the person presiding at the enquiry shall determine the procedure according to which the enquiry shall be conducted.
101.1 Should an enquiry be held before a committee appointed by the council in terms of section 67 of the Act and at the conclusion of the enquiry the practitioner be found guilty of unprofessional or dishonourable or unworthy conduct in terms of section 72 of the Act, the committee may impose any punishment in respect thereof which is permitted in terms of section 72 of the Act; provided that if at any stage during the enquiry the committee is of the opinion that the conduct of the practitioner is such as to warrant an application by the society in terms of the act for suspension from practice or the striking from the roll of the practitioner it shall-
101.1.1 as soon as possible submit a written report on its findings to the council together with its recommendations regarding the suspension from practice or the striking the roll of the practitioner;
101.1.2 at the same time deliver a copy of its report and recommendations to the practitioner and call upon the practitioner to furnish the council with representations in writing, within such period as the committee considers reasonable but in any event within not less than 7 days, why application should not be made for suspension from practice or, as the case may be, for the striking from the roll of the practitioner.
101.2 On receipt of the report and written recommendations of the committee in terms of rule 101.1.1 and the written representations of the practitioner in terms of rule 101.1.2 the council shall consider the matter and shall-
101.2.1 if it shall decide to proceed with an application for suspension from practice or for striking from the roll, advise the practitioner accordingly and take such further steps as may be necessary in that regard; or
101.2.2 if it shall decide not to proceed with an application for suspension from practice or from striking from the roll, refer the matter back to the committee, together with a copy of the written representations of the practitioner, for the committee to dispose of as it deems fit; or
101.2.3 if it considers it appropriate, call upon the practitioner on not less than 7 days notice to appear before the council at such time and place as the council may determine to show cause why application should not be made for suspension from practice or for striking from the roll of the practitioner; provided that if the practitioner does not furnish written representations to the council as requested, or fails to appear before the council, as the case may be, the council shall be entitled to consider the report and recommendations of the committee in the absence of such representations or in the absence of the practitioner; or
101.2.3 deal with the matter in any other manner that it thinks fit.
102. Subject to the provisions of the Act, the provisions of this Part XIII shall apply mutandis in respect of a candidate attorney whose alleged conduct is being enquired into; provided that-
102.1 the council may require the member with whom the candidate attorney is serving articles or under a contract of service to report in writing to the council on any aspect of the matter or to attend during any stage of the enquiry and, there, inter alia, to make such verbal report or give such explanation relating to the matter as the council may deem fit;
102.2 if the enquiry is held by a committee appointed by the council under section 67 of the Act and it appears to the committee at any stage during the course of its enquiry that the evidence then before it is likely to warrant the suspension or cancellation of the articles of clerkship or contract of service, the committee shall refer the matter to the council and inform the candidate attorney and the member with whom he or she is serving articles or under contract of service accordingly and the council may then itself continue and conclude the service accordingly and the council may then itself continue and conclude the enquiry or may refer it or any aspect thereof back to the committee.
103.1 The council may, for the general information of members or of the public or of both, in such manner and to such extent as it may deem fit, public or allow or arrange for the publication of information relating to an enquiry under section 71 of the Act, provided that if the enquiry was conducted by a committee appointed by the Council in terms of the provisions of section 67 of the Act, the powers granted by this rule may be exercised by that committee.
103.2 No individual and no group of individuals, and no body corporate or other association, not having, in the opinion of the council, an interest in the subject matter of an enquiry, shall be entitled to information relating to it.