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Attorney’s Liability For Counsel’s Charges

The practice of an Advocate accepting instructions from an attorney on behalf of a client has been preserved by the Courts and in the interest of the public.

See: De Freitas & Another v Society of Advocates of Natal 2001(3) SA 750 (SCA)

Advocates are not legislated to have trust accounts that can make the public vulnerable to misconduct.

This arrangement raises the question of whether an attorney is liable for Counsel’s charges whom they has instructed. Our various Bar Councils have rules that may blacklist an attorney who fails to pay and advocate, although they have been briefed on behalf of a client. Where Counsel has reported a defaulting attorney to the Bar Council, Counsel may sue the attorney for fees, unless the attorney submits a dispute on Counsel’s fees within 30 days of demand.

See: Bertelsmann v Per 1996 (2) SA 375 (7). The Court observed that the practice that attorneys agree to guarantee payment of fees owed by client to Counsel, does not mean that the attorney has replaced the client as a contracting party with Counsel. The argument that this practice has become a hardened rule of law, and constitutes an implied term of the contract between attorney and Counsel, was considered unsustainable. The Court held that, for an attorney to be held liable for Counsel’s fees, such trade usage or practice had to be established by evidence before it can be implied into contract as a matter of law.

In Serrurier v Korzia 2010 (3) SA 166(W) at 181, the Court was of the view that an attorney will always in our law be liable for Counsel’s fees, whether he was paid by the client or not. This view implies that a client cannot be sued for Counsel’s fees, but in light of Bertelsmann’s case, it is possible to sue a client for Counsel’s fees.