The applicant was a practising advocate who sought to recover fees of nearly R500 000 from the Legal Practitioner’s Fidelity Fund Board of Control where the money due to the advocate had been held in trust by the attorney and misappropriated. The court found that the money entrusted to the attorney by the clients was held by the attorney on behalf of the client and the client had no obligation towards counsel who could therefore not have a claim to the money.
The client’s sole obligation is to the attorney. The client has no obligation towards counsel. The purpose of the deposit is to ensure that the disbursements for which the attorney is liable as against counsel would be covered, which is a sensible arrangement for an attorney not wishing to be out of pocket. The advocate had not suffered pecuniary loss due to the theft of the client’s money entrusted to the attorney. The advocate’s claim for outstanding fees lay against the attorney and, if sequestrated, against the insolvent estate of the attorney.
This has been the law as stated in a number of cases. It seems to overlook the principal of agency that where there is a known principal, in this case the client, where the third party has a direct action against the principal. It is not normally the third party who takes the risk of a dishonest agent but that is the approach adopted regarding advocates charges.
[Leysath v Legal Practitioners Fidelity Fund Board of Control 2021 JDR 0037 (GP)]
