The relationship between a Client and an Attorney is really the same as that of a principal and a special agent. The agent is entitled to be remunerated, but as an Attorney is an Officer of the Court, if called upon to do so, the Court retains the right to decide what a fair and reasonable remuneration would be.
In terms of the Rules, the Taxing Master has the discretion to at any time depart from any of the provisions of the tariff. This obviously gives the Attorney the freedom to enter into any remuneration agreement with a Client as long as it’s reasonable and not overreaching. Our Law Societies take a grim view on overreaching. Therefore, we always urge our clients to maintain a fair balance when billing a Client by considering the legal issues and complexity of the matter at hand, as well as the Client’s financial position. An example of this may be in the case of a matrimonial dispute.
An Attorney must also conduct a Client’s case with due diligence as certain actions and steps may well not be recoverable from the Client – even if, in the Attorney’s view, it was done in the Client’s best interest. Examples thereof are the unnecessary duplication of work, costs incurred without reasonable cause, default or misconduct on the part of the Attorney, unnecessary correspondence or disbursements incurred, and more.
Where claims sounding in money are handled on behalf of a Client, many Attorneys prefer to use the Contingency Fee Agreement Act as a means to determine remuneration. However, when doing so, do ensure that S4 of the Act is complied with fully. Otherwise the agreement may be rendered contra bones mores. Note also that despite such an agreement, Attorneys may be required to prepare and present a bill at any time to justify these charges.
In the final analysis it is our sincere advice to Attorneys to put in place a clear and uncomplicated mandate and fee agreement with a Client, no matter the nature of the matter. Also ensure that the Client understands his or her rights, especially where the Attorney contracts out of the prescribed tariff. Further, note that the tariffs prescribed in the various Rules will always form the basis upon which a Taxing Master will tax an Attorney and own client bill, should a proper fee agreement be absent.
We trust that these suggestions will come in handy when a Client engages your services and that they will assist in avoiding unnecessary disputes.
In our next article we will look at scenarios where more than one Attorney is employed by a litigant and how this affects both firms.