RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 1 R U L I N G S THE LAW SOCIETY OF THE NORTHERN PROVINCES

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1 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 1 R U L I N G S THE LAW SOCIETY OF THE NORTHERN PROVINCES

2 2 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 1. ADVERTISING AND MARKETING FOR ATTORNEYS 1. ADVERTISING 1.1 NEWSLETTERS If a firm sends a newsletter to its client, and the newsletter contains any material, which has been contributed by a person other than a partner or a full-time employee of the firm, then the newsletter shall state: a.) b.) The name of the contributor of the material in question and the fact that the contributor is not a partner or employee of the firm; That the partners and staff of the firm do not necessarily claim any expertise in the field of law or practice which are dealt with in the article written by the contributor. C.M GUIDELINES FOR ADVERTISING AND MARKETING BY ATTORNEYS PRACTISING IN THE NORTHERN PROVINCES C.M. Item 8 : These guidelines for the advertising and marketing of attorneys' services have been approved by the Council and became effect on 1 April The incorporate draft guidelines on advertising and the guidelines on marketing of attorneys' services as published in the November 1989 and April 1989 editions of the De Rebus respectively. These guidelines were updated by the Council on 19 October 2001 and are no longer applicable in the Northern Provinces. 1.3 ADVERTISEMENT: KNOCK AND DROP PAMPHLETS C.M. Item U1: With reference to the publicity and advertising guidelines for attorneys, members should please note that an incorrect ruling was published as part of the advertising and marketing guidelines for attorneys, which is hereby formally withdrawn for the reason that a ruling of the Council which related to this type of advertising, was incorrectly interpreted and included in the publicity guidelines of the Law Society of the Northern Provinces. The ad hoc ruling referred to can be found in paragraph 1.3 of the advertising guidelines under the heading: Advertisement: Knock and drop Pamphlets In terms of which it is suggested that this type of advertising would be permissible and members should please note that his is in fact not the case as it would not be permissible for an attorney to generally distribute pamphlets advertising their services in this matter. 1.4 ADVERTISING BY ATTORNEYS WHO ARE INTENT TO PRACTISE FOR HIS/HER OWN ACCOUNT It will be appropriate for an attorney who wants to practise for his/her own account to inform other attorneys by way of stickers, or to write to the Hortors Diary.

3 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 3 C.M. Item 8: DESCRIPTION AS CONVEYANCER Circular 8/ "A practitioner shall be guilty of unprofessional conduct if: he/she, either in his/her own name or under any other style or name, or in partnership with any person or persons under their names or any other style or name, or an incorporated practice of which he/she is a member under any style or name holds out in any way whatsoever that he/she, or the partnership, or the incorporated practice, as the case may be, is entitled to do conveyancing work by describing himself/herself, or the partnership, or the incorporated practice, as the case may be, as conveyancers unless he/she, or a partner or co-director of such incorporated practice or any professional assistant in his/her exclusive employment or in the exclusive employment of such partnership or incorporated practice is qualified to practice as a conveyancer. This ruling shall apply mutatis mutandis in respect of notaries and patent attorneys. 1.6 CIRCULATING OF A LEGAL OPINION C.M. Item It will not be unprofessional conduct for an attorney to allow an association to circulate a legal opinion at was obtained from him/her to members of a particular association. 2. PUBLICITY FOR ATTORNEYS' PRACTICE Emil Boshoff Society News: August A practising attorney may in his/her discretion publicise his/her practice, or permit another person to do so on his/her behalf, provided that the publicity complies with the provisions of these guidelines and provided that in publicising his/her practice he/she shall not do anything which in any manner compromises or impairs or is likely to compromise or impair any of the following: the attorney's independence or integrity; the client's freedom to instruct an attorney of his/her choice; the attorney's duty to act in the best interests of the client; the good repute of the attorney or the attorney's profession; the attorney's proper standard of work; All publicity must be in good taste with regard to content, prominence and medium Publicity may not be misleading in any respect.

4 4 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 3. TOUTING NOT PERMITTED Nothing in these guidelines shall be construed as authorising an attorney to tout, directly or indirectly, for work of a kind commonly performed by a practising attorney. Without limiting the generality of that expression, "touting for work" by a practising attorney will include the following: 3.1 soliciting custom or work directly from any person; 3.2 entering into an arrangement with any person, whether an employee or not, for the introduction of clients to the attorney; but this will not apply to: any arrangement between an attorney and another attorney for the referral of work in the normal course of either's practice; any arrangement for the introduction to an attorney of other attorneys with a view to their instructing him on an agency basis; 3..3 making unsolicited visits or telephone calls or sending unsolicited letters or printed material to any person, (other than to an existing professional connection) whom the attorney knows or should reasonably be expected to know has an existing attorney/client relationship with another attorney, where such conduct is carried out with a view to, or is calculated to, establishing an attorney/client or correspondent relationship with such person. 4 PROFESSIONAL CONDUCT OF ATTORNEYS: TOUTING Society News: August 1998 The Property Rights Committee has given further attention to the proposed revision of the rules relating to ethics and in particular, the widespread incidence of practices indicating touting. There is much anxiety over serious malpractices in the property world, the latest being that kick-backs be paid to property agents, the advancement of property agents commission as well as the payment of money to bond consultants by banks to channel registration to firms. The committee feels that to negotiate a fee with an existing client under specific circumstances is in order, but to pay kickbacks to an agent or consultant to obtain a new mandate is totally unacceptable. It is not only unprofessional but indicates a bribe and can never be in the interest of the public. It is not only that amount to division of fees but is seen by the local public as improper and unprofessional in the crudest sense of the word. It is of the utmost importance that immediate action be taken as the situation can possibly deteriorate. What more must be done and allowed in an effort to canvass business? Even blackmail is probably acceptable. The committee is, with respect, of the opinion that the point of view of the Law Society and the Council on this is not conveyed vigorously enough to members. It is feared that a mentality may develop where virtually any action will be attempted because very little action has been taken up to now. Firms, which believe that the ethical way is eligible, fear that they will adversely affected by the fact that other practitioners do not adhere to the rules and thereby coax the client away from the honest firms. If no action is taken against this kind of conduct, every practitioner will be forced to go the same way. Not only will the esteem of the profession be damaged but the public also stands to suffer as a result.

5 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 5 5. THE CONTENT OF PUBLICITY 5.1 Statutory requirements The publicity of an attorney must comply with the Attorneys Act, 1979, the Rules of the Law Society and the general law. 5.2 Comparisons and criticisms of services Publicity may not compare the quality of service provided by an attorney with that provided by the attorneys' profession generally or by any other identifiable attorney or firm of attorneys, nor may it claim to be superior in any respect. Publicity may also not criticise the quality of service provided by any attorney or firm of attorneys. BEST LAWYERS THE CONTENT OF PUBLICITY Comparisons and criticisms of services Publicity may not compare the quality of service provided by an attorney with that provided by the attorneys profession generally or by any other identifiable attorney or firm of attorneys, nor may it claim to be superior in any respect. Attorneys rated or listed by any peer review organisation, such as Best Lawyers International, Chambers Global, Legal 500 or any such organisation, may refer to having been so rated or listed, but in the event of such rating or listing having been done by Best Lawyers International, the attorney so rated or listed may not use the words: Best Lawyers in reference to himself/herself or to the firm, in any way other than only as having been so rated by the said organisation. Members should please note that the previous ruling of Council dated 29 March 2012 relating to Best Lawyers, is hereby withdrawn. Council Meeting April Measure of success Publicity may not refer to extent of an attorney s achievements and success. 5.4 Naming clients An attorney may refer to the name of a client in the public media only with the client's consent on that client's behalf. The attorney may give no reference to the name of a client in and advertisement of his/her practise An attorney may use the name of a client with the approval and consent of the client when an advertisement is published by the selling of renting of a property on behalf of the client s Paragraph will not prevent an attorney from being named in the publicity material of a client or to be identified as the attorney of a client in publicity of another person relating to the business of that client still subject however to the Rules of the Law Society which may apply from time to time.

6 6 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 5.5 Naming of staff other than partners An attorney may not name any person in his/her publicity (including on his/her letterhead and stationery) that he/she is not permitted to name on his/her letterhead in terms of the Rules of the Law Society Attorneys are reminded of the danger of inadvertently holding out persons as partners in a firm by the inclusion of both partners' and non-partners' names in a list. The status of non-partners should be indicated clearly to avoid any doubt whenever a situation of inadvertent holding out might otherwise arise. 5.6 Attorney to be identified Every advertisement by an attorney must bear his/her name or the name of his/her firm. 5.7 Categories of work Publicity about an attorney's practice may state or imply that he undertakes a particular category of work only if that practice itself is in fact able and qualified to handle that work competently. In particular an attorney may not state that he undertakes conveyancing or notarial or patent work unless he/she or one or more of his/her partners, or an employee exclusively in his/her employ on a full-time basis has been admitted as a conveyancer or notary or patent attorney or patent agent, as the case may be. 5.8 Claims to specialisation of particular expertise Unless the context otherwise requires, in the interpretation of and for the purposes of t his paragraph 5.8: "Branch of the law" shall mean any branch or field of law, subject to such exclusions, if any, as the Council of the Society may from time to time designate; "Specialist" shall include the term "expert", and "specialise" shall bear a corresponding meaning, and the words shall be interchangeable, but shall not include a statement by a firm that it prefers to practise in any particular branch of the law A firm may hold itself out as a specialist or expert in any branch of the law A statement that a firm prefers to practise in any branch of the law shall be deemed not to be a claim by such firm to specialise in that preferred branch of the law A firm of attorneys may indicate specialisation in relation to categories of work in respect of which a specific qualification is required, by statute or otherwise, only if a member of the firm (partner/director) is duly qualified as such and holds the further qualification required in respect of such work (e.g. conveyancing and notarial work and the law relating to patents) if a firm of attorneys refers to a field or area of practice in the letterhead of the practice or in any publicity material or in a law directory or law list, such reference will be deemed to be a reference to specialisation in that field or area of the law.

7 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page The Council may, by notice in writing to a firm, require that firm to cease to hold itself out as a specialist or expert in any branch of the law if the Council is of the opinion that the firm does not have the requisite expertise in that particular branch of the law Cautionary notes Attorneys are advised that the standard of expertise, care and skill required by a firm holding out as a specialist or expert in a branch of the law must of necessity be higher than that of a firm which does not do so. Accordingly, a breach of the standard of expertise, care and skill required of a firm renders the firm the more readily liable for damages for professional negligence in relation to the specialty than a firm, which does not claim any specialty If a firm holds itself out as a specialist, the claim of specialty may render the attorneys who are partners or members of the firm liable to be disciplined by the Council for unprofessional, dishonourable or unworthy conduct, in accordance with the provisions of Rule 93 read with Rule 89 of the Rules, if the firm's action in so holding itself out is not justified. 6. STATEMENTS AS TO CHARGES 6.1 Clarity Although a statement by a firm that it prefers to practise in a particular branch of the law does not place that firm in the same position as one claiming to be a specialist, it may nevertheless indicate that a higher standard of care and skill will be required from such a firm than from one which does not hold itself out to have a preferred area of practice. A firm which expresses a preferred area of practice may, therefore, also render itself more readily liable to a claim for damages on the basis set out in above These cautionary notes are conveyed to attorneys in good faith, and are not intended to be a comprehensive list of the pitfalls, which an attorney or his/her firm may encounter if they claim to specialise or if they indicate a preferred area of practice An attorney may not state in any publicity that he/she will undertake specific kinds of work for a specific charge An attorney may publicise the basis on which he/she will charge for work, but such publicity must be clearly expressed. It must be stated what services will be provided for that basis of charging. Any circumstances in which the basis may be altered must be stated. It must be clear whether disbursements and taxes are included. 6.2 Comparisons and criticisms of charges Publicity may not directly compare an attorney's charges with those of any other attorney or firm of attorneys and publicity may not directly criticise the charges of any identifiable attorney or firm of attorneys. 7. HEADINGS IN GUIDES

8 8 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page CM An attorneys listing or advertisement in a guide or any other list, which will include the services of persons other than attorneys, may be used under a classification other than attorney subject to: 7.1 the publication under the classification may not be misleading 7.2 the attorney be defined as an attorney in the publication or advertisement 7.3 the classification do not require a specific qualification not held by the attorney 8. PROFESSIONAL STATIONERY The provisions of the Rules of the Law Society will apply in relation to the professional stationery of the attorney or his/her firm. 8.1 Disclosure of membership of a local Attorneys Association on letterheads of attorneys Information which may be disclosed on the letterheads of an attorney s practice is strictly regulated in terms of certain Rules of the Law Society and applied on a restrictive basis by the Council to ensure that all attorneys act in uniformity in this regard and do not obtain an unfair advantage with clients, by stating or disclosing additional information on their letterheads, in expense of colleagues. The provisions of Rule 89.13, Rule 78.8 and specifically Rule can be considered in this regard. It was resolved by the Council that in addition to the information which can be disclosed on letterheads in terms of the abovementioned Rules by firms of attorneys, it will by way of a ruling in future be permissible for attorneys to also refer to the fact that an attorney is a member of a local city or town attorneys association which has officially been approved by the Council for this purpose. Application by such associations may be directed to the Council in writing and the submission should also include a copy of the constitution of the association concerned as well as copies of an annual working programme and should include a copy of the most recent financial statements of the association concerned. 9 DESIGNATION OF AN ATTORNEY'S PRACTICE An attorney's practice may be designated only as that of an attorney or attorneys. In addition an attorney may use the designations "notary", "conveyancer", "patent attorney", "trade-mark practitioner", "administrator of estates", or "appraiser" but only where at least one partner in the firm or an employee in the exclusive and full time employment of the firm is entitled to be described as such. 10. "FLAG ADVERTISING" 10.1 Groups of attorneys It is permissible for independent firms of attorneys to act together in a group to publicise their services under a group name or group logo Definition of "flag advertising" In these guidelines any advertising which contains such group name, group logo or other group promotional material is called "flag advertising", which term is to include any advertising

9 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 9 containing a reference to membership of a group which conducts flag advertising Application to stationary The term "flag advertising" is to include the appearance on stationery of any of the items referred to above Flag advertising by a group Any flag advertising conducted by two or more firms of attorneys must be accompanied by: the names of the firm by or on whose behalf the advertising is conducted; and the word "attorney" or "attorneys" Flag advertising by a firm Any flag advertising conducted by an individual firm must be accompanied by: the firm's name; and the word "attorney" or "attorneys" General provision concerning flag advertising Any flag advertising must conform with all other provisions of these guidelines. 11. PROFESSIONAL ANNOUNCEMENT, ADVERTISEMENT FOR STAFF AND THE LIKE Any professional announcement, advertisement for staff, advertisement offering agency services, or any other like advertisement by an attorney (including any advertisement in De Rebus) must comply with the provisions of these guidelines. 12. INTERNATIONAL ASPECTS OF PUBLICITY No publicity for an attorney s practice may be conducted in a jurisdiction other than in areas which are subject to the jurisdiction of the Law Society of the Northern Provinces (Inc. as the Law Society of the Northern Provinces) in any manner that would contravene either: 12.1 the provisions of these guidelines; or 12.2 any restrictions in force in that other jurisdiction concerning lawyers' publicity. For the purposes of this paragraph, publicity shall be deemed to be conducted in the jurisdiction in which it is received. However, publicity will not be regarded as being conducted in a jurisdiction in which that publicity would be improper if it is conducted for the purposes of reaching persons in a jurisdiction where that publicity is permitted and its reception in the former jurisdiction is incidental. 13. SPECIFIC GUIDELINES REGARDING MARKETING 13.1 Brochures an attorney may display in his/her reception area brochures containing details about

10 10 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page his/her practice and the nature of the services he/she offers. Brochures may not, however: contain information, which is false in any material respect; contain information which is misleading or deceptive or which is likely to mislead or deceive; contain material, which is vulgar, sensational, or otherwise is such as would bring or be likely to bring the attorney or the legal profession into disrepute; claim or imply superiority for the attorney over any other attorneys; contain any testimonials or endorsements concerning the attorney; or contain any claim or words to the effect or implying that the attorney is a specialist, expert or leading practitioner in any field of practice, or generally, otherwise than in accordance with any guidelines issued from time to time by the Council of the Law Society, although it may contain a statement setting out the fields of practice in which he/she is prepared or is not prepared to accept instructions Such brochures may be sent or be made available to existing or former clients, except former clients whom the practitioner should reasonably know are not likely to return to him/her as clients. The brochures may include guidance on how clients can assist the firm to deal properly with their business, for example, by completing a questionnaire A prospective client who asks information about the firm may be sent or given a brochure The brochure may contain an offer to give an estimate of charges in relation to any proposed mandate Radio and television broadcasts, lectures and articles in the lay press The following principles apply to attorneys who take part in radio and television broadcasts, or who give talks or lectures to lay audiences, or who give interviews to the press, or who contribute articles to the lay press, on legal or non-legal subjects: Consent of the Council An attorney intending to take part in any of these activities does not require the consent of the Council. However, the attorney should ensure that he is properly qualified to speak or write on the topic at issue, and that what he does should not be construed as touting for work Designations Attorneys may be identified by name, by firm name (if desired) and by profession (if desired) Generally in relation to broadcasts, lectures and press articles

11 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 11 An attorney should not be permitted to publish anything identifying or likely to identify clients for whom he or his firm acts unless in connection with a specific matter and he has the client's permission An attorney must not, with a view to attracting or inviting instructions enter into correspondence with listeners, viewers or readers who are not already his client Telephone directories, law directories and the Yellow Pages It is permissible for attorneys to insert the names of their firms in bold print in directories It is permissible for an attorney to insert his/her name or the name of his/her firm in a law directory or in the Yellow Pages and in so doing to indicate the kind of work his/her practice, undertakes, or, subject to guidelines issued from time to time by the Council of the Law Society of the Northern Provinces, in which he/she claims that he/she has expertise Information to clients regarding development in the law An attorney may (and indeed is encouraged to) communicate with his/her clients either verbally or in writing with a view to advise him/her of the latest developments in the law or in regard to a specified area of the law and with a view to obtain instructions for professional business in relation to those developments, provided that: the content and nature of any material, whether printed, spoken or otherwise used by the attorney in the course of the communication complies with these guidelines; the form of the communication does not derogate from the dignity of the legal profession; the physical, emotional and mental state of the client is such that he is capable of exercising reasonable judgment in employing an attorney; the communication does not involve undue influence, coercion, duress, harassment or nuisance. 14 THE ATTORNEY'S RESPONSIBILITY FOR PUBLICITY It is the responsibility of an attorney to ensure that all his/her publicity, and all publicity for his/her services which is conducted by another person, complies with the provisions of these guidelines. This responsibility cannot be delegated. Where the attorney becomes aware of any impropriety in any publicity appearing on his/her behalf, he/she must forthwith use his/her best endeavours to have the publicity rectified or withdrawn as appropriate. 15 GENERAL 15.1 The Council may by notice in writing to an attorney: order the alteration, withdrawal or discontinuance of an advertisement; order the alteration or discontinuance of the use of any statement in any advertisement

12 12 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page Circular 4/ INTERPRETATION or material marketing; order the attorney to discontinue his/her participation in any lectures, talks, public appearances or publications, if in its opinion any of these guidelines have been or are being contravened. In these guidelines: 16.1 all references to the Rules of the Law Society in relation to an attorney are references to the Rules of the Law Society of the Northern Provinces; 16.2 "advertisement" and "advertising", except where the context otherwise requires, refer to any form of advertisement and include inter alia brochures, directory entries, stationery and press releases promoting an attorney's practice; 16.3 the expression "clients" will be interpreted strictly to refer to clients with whom the attorney has or is likely to have an on-going professional relationship. Singular or irregular instructions which arise, for example from the client's regular attorney being unable to represent the client on account of a conflict of interest, do not necessarily give rise to an on-going professional relationship. However, it must be recognised that clients frequently retain more than one firm of attorneys; any firm, which is retained in this way on an on-going basis, is entitled to regard the client as a client for purposes of these guidelines; 16.4 references to "an attorney" or "a partner" or "a practitioner" of "a firm" shall be deemed to 16.5 include a reference to a company conducting a practice in terms of Section 23 of the Attorneys Act, 1979 or to a member of such company, as the context requires. 17. USE OF PROFESSIONAL BUSINESS CARDS Members are referred to Circular No. 3 of 1998 issued by the Council on 26 May 1998 relating to the use of professional (business) cards and should please note that it has now been resolved by the Council to revise all previous rulings in this regard to be substituted for the following new ruling: 17.1 Professional cards may only be used by the partners/directors, consultants, professional assistants, candidate attorneys, office managers and internal accountants or bookkeepers of a firm of attorneys, provided that the name of a person used on the card is accompanied by a description of the official status of the person at the firm of attorneys concerned The following particulars may also appear on professional cards: i.) ii.) iii.) the private telephone number, cellular telephone number, and home telephone number and address of the person concerned; the name, physical and postal address of the firm of attorneys concerned; the telephone and telefax numbers and telegraphic address of the firm as well as the address of the firm.

13 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 13 Circular No. 4/ In the case of a director or partner, reference may be made on the card of any office held in the structure of the organised attorney s profession (e.g. member of the Council of a Law Society). 18 USE OF BUSINESS CARDS C.M Item DB3 C.M. Item USE OF PROFESSIONAL BUSINESS CARDS BY A PARTNER OR DIRECTOR OF A FIRM It was resolved by Council that the format of a business card to be used by Directors of an Incorporated Law Practice, the word Attorney or Partner may be used on a business card and it would not be compulsory to use the word Director on such a card as implied by the ruling previously made by Council in this regard USE OF BUSINESS CARDS BY EMPLOYEES OF ATTORNEYS It was resolved by the Management Committee and confirmed by Council that employees of attorneys not be permitted to use business cards and that the present ruling referred to in should still apply. 19. ADVERTISING: WHEN ATTORNEY'S NAME ALLOWED TO APPEAR C.M. Item C.M Council considered an advertisement reading as follows: "Be pleased to take notice that we have been instructed by the owner who proposes leaving for overseas to dispose of the following assets. For further information in regard hereto, contact attorneys A, B, and C. Address:... Telephone number:..." It was resolved that where an attorney receives specific instructions to act for a person in a specific matter, then he/she may at all times, mention his/her name to show that he/she is acting for the person in a matter such as mentioned above, but an attorney who in general engages in the selling of property, may not mention his/her name. 20. LAWYER'S WHO'S WHO Approved in principle that members may furnish information for publication in this book - such information to be factual. 21. PROMOTIONAL LITERATURE Pursuant to the provisions of Rule of the Rules of the Law Society of the Northern Provinces, the Council has ruled that it will be permissible for an attorney to allow his/her name or that of his firm to appear in any brochure or other promotional literature issued by his/her client to promote the sale of stands in a township development, or of units in a sectional title development, or of units in a retirement village, or any similar development, where the client gives details of other professional advisers. In the

14 14 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page Society News: October 1988 same brochure or promotional literature the inclusion of the name of the attorney or his/her firm must be in good taste, may contain no details other than his/her name or his/her firm name, as the case may be, and his/her physical and postal address, and may not be given greater prominence than that given to the other professional advisers. 22. AMENDMENT OF RULE LEGAL GUIDES C.M. Item G8: C.M It was resolved that the monetary limit which is referred to in Rule of the Rules of The Law Society of the Northern Provinces be abolished by way of a formal amendment of this Rule. 23. OTHER TERRITORIES The Council of the Law Society of the Northern Provinces adopted the following ruling: Disclosure of membership of a local Attorneys Association on letterheads of Attorneys Information which may be disclosed on the letterheads of an attorney s practice is strictly regulated in terms of certain Rules of the Law Society and applied on a restrictive basis by the Council to ensure that all attorneys act uniformly in this regard and do not obtain an unfair advantage with clients, by stating or disclosing additional information on their letterheads, at the expense of colleagues. The provisions of Rule 89.13, Rule 78.8 and specifically Rule can be considered in this regard. It was resolved by the Council that, in addition to the information which can be disclosed on letterheads in terms of the abovementioned Rules by firms of attorneys, it will by way of a ruling in future be permissible for attorneys to also refer to the fact that an attorney is a member of a local city or town attorneys association which has officially been approved by the Council for this purpose. Application by such associations may be directed to the Council in writing and the submission should also include a copy of the constitution of the association concerned as well as copies of its year working programme and should also include a copy of the most recent financial statements of the association. De Rebus Notwithstanding the provisions of Rule 89.1 (touting for work of a professional nature), the Council will have no objection to members disclosing on their letterheads the fact that they are also allowed to practise in other territories. 24 FASTFAX It was resolved by Council that the FASTFAX facility be made available to all members and outside organisations on the basis that, should the facility be utilized by members, no fees be charged but the member be responsible for payment of the actual costs and it was further agreed that, should the facility be used by outside organisations, a fee be payable to the Law Society of the Northern Provinces in addition to the actual costs. It was agreed that guidelines in this regard be finalized by the Management Committee.

15 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 15 C.M. ITEM: Only firms of attorneys and not individual members should be allowed to use the facility, provided that: a.) The notice to be transmitted should relate only to formal changes in the structure or composition of the firm of attorneys concerned; b.) The format of the notice will be limited to a letterhead of the firm of attorneys concerned and official Law Society letterheads will not be used for this purpose; c.) The full actual cost relating to the FASTFAX will be payable in advance to the Law Society; d.) An appropriate indemnity must be given by the firm of attorneys to the Law Society to indemnify the Law Society against any possible claim or damages which may arise from incorrect information being transmitted or the FASTFAX not having been successfully transmitted to all firms of attorneys.

16 16 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 2. COUNSEL 2.1 COUNSEL: BRIEFING OF It has come to the notice of the Council that attorneys are briefing advocates to appear in the Magistrate's court on behalf of clients where there is no reason or justification for such appearance by counsel. In most instances, this is done without the knowledge or consent of the client. The Council is, for example, aware of cases in which counsel have been briefed to appear in unopposed motions or even on behalf of judgment creditors in the debtors' court The Council has accordingly resolved that, in future, any attempt by a practitioner to recover from his/her client the fee (or any portion thereof) charged by counsel in respect of the appearance by counsel before any court, tribunal, administrative or like body before which the practitioner is himself/herself entitled to appear; or any other work performed by counsel, including, inter alia, the furnishing of opinions or advice, the settling of papers, the drafting of pleadings or documents (excluding, however, the appearance by counsel in a superior court or the drafting of pleadings, settling of papers of the furnishing of advice on evidence in matters in a superior court) on behalf of the client, without the express consent of the client to engage counsel at the client's expense for the appearance or work, as the case may be, shall be regarded as unprofessional conduct on the part of the practitioner Notwithstanding the afore going, it shall not be regarded as unprofessional conduct on the part of the practitioner if he/she engages counsel to perform any of the acts or the work specified in or above without the consent of the client where the total fee charged to the client (inclusive of the fee charged by counsel) for which act/s or work does not exceed the total fee which the practitioner would have been entitled to recover from his/her client had he/she personally performed the act/s or work This ruling shall apply with effect from 1 April CONSULTATIONS WITH ADVOCATES AND CLIENTS Only in the most exceptional circumstances should there be deviated from the general principle that consultations should be held in counsel's chambers. Attorneys or competent candidate attorneys should without exception always be present when advocates consult with clients. In regard to consultations with witnesses by counsel, it was decided that: consultations must be arranged beforehand at counsel's chambers, if possible; the attorney or his/her clerk should be present at consultations; and the procedure of handing over brief covers, which contain only the file, should cease. 2.3 LIABILITIES AS A PRINCIPAL FOR PAYMENT OF ADVOCATES FEES It was agreed that attorneys should not accept liability as a principal for payment of advocates fees and

17 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 17 AGM: 1/ (P23) encourage members to arrange with advocates that, at the time of giving the instruction, there should be definite discussions in regard to the basis of the relationship relating to fees. 2.4 PAYMENT OF COUNSEL S FEES AGM: 1/ (P23) The meeting agreed that payment of counsel s fees be made within a reasonable period, unless an alternative arrangement had been made. 2.5 DISPUTE RESOLUTION MECHANISM AGM: 1/ (P23) The meeting agreed that there should be no dispute resolution mechanism but that disputes should be dealt with by a court of law. 2.6 NON-PAYMENT OF ADVOCATE FEES AGM: 1/ (P23) The meeting agreed that the non-payment of the fees of an advocate by an attorney should not constitute unprofessional conduct. 2.7 ABSENTEEISM AT COUNCIL MEETINGS After consideration it was resolved by the Council that the following guidelines be adopted: that Councillors who are absent for more than three meetings per annum, without reasons acceptable to the Council (such reasons should be stated by the Councillor), should vacate office and that this ruling be enforced; that the existing decision with regard to the financial penalty for being absent be retained (that Councillors who are absent, not due to the affairs of the organised profession, forfeit honoraria R1 500 per meeting); that Councillors acting as Judges not be paid any honorarium during that period and that a pro rata honorarium payment be made until date of appointment; that a Councillor should not be allowed to act as a Judge for a period exceeding three months in a particular year. It was noted that the provisions of Rule 45 would have to be formally amended to conform to the decision taken by the Council. EXTRACT: COUNCIL MINUTES 28 MARCH 2009

18 18 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 3. NOMINATING THE CONVEYANCER 3.1 NOMINATING THE CONVEYANCER TO ACT IN A CONVEYANCING TRANSACTION Attention is drawn to the ruling of your Council that the seller is entitled to nominate the conveyancer to attend to a transfer. Different rulings however have been issued in other provinces Members are referred to the article by Mr. H E van Santen on conveyancing ethics, which appeared in De Rebus, April 1968 edition, page 18. The principles therein enunciated apply equally to the appointment of the conveyancer by purchasers and estate agents Although the right to appoint the conveyancer to attend to the transfer of the property, which is sold, can be regulated by agreement between the parties, the normal practice of allowing the seller to make the appointment should be followed. It certainly should be followed where any other arrangements will create conflicting interests for the conveyancer. Failure to observe these principles may result in unethical conduct. 3.2 ALLOCATION OF CONVEYANCING WORK BY BUILDING SOCIETIES Circular: 8/1984 In no circumstances may an attorney attract professional work by way of financial inducement. It need scarcely be said that the payment to anyone of any commission or benefit in consideration of procuring such work for him/her, is most improper and the offer of such a payment would be a serious form of touting. 3.3 APPOINTMENT OF CONVEYANCER C.M. Item 19: The seller has the right to appoint the conveyancer except where the purchaser and seller agreed in a Deed of Sale that a particular conveyancer should be appointed. Once such an appointment has been made in the Deed of Sale, another party cannot resile there from and the seller cannot unilaterally appoint some conveyancer other than the one mentioned in the Deed of Sale and agreed upon both by the seller and purchaser. 3.4 CONVEYANCING PRACTICE: TRUST CHEQUES The Council considered the request of a member that a strict directive is issued to all attorneys confirming the procedure to be followed when paying out trust funds, which have been received, by the attorney when cashing a guarantee in favour of the attorney. The Council noted that a practice had arisen for a conveyancer to receive the proceeds of a guarantee into his/her trust account and to simultaneously draw a trust cheque for the proceeds in favour of his/her client. As the guarantee is usually payable by a bank, building society or other financial institution, the conveyancer does not wait for the cheque to be cleared before issuing his/her trust cheque. The Council reaffirmed its previous ruling that any such payment would be unjustifiable and that any practitioner who effected payment in this matter would be doing so at his/her own peril. Council did not consider it necessary to issue any directive in this regard. C.M. Item B

19 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 19 C.M CHARGES FOR CONVEYANCING AND NOTARIAL WORK BY ATTORNEYS WHO THEMSELVES ARE NOT CONVEYANCERS OR NOTARIES There is nothing to prevent a qualified notary from assisting an attorney who is not a qualified notary with regard to memorandum and articles of association. The notary is not obliged to charge and may render the service free to the attorney. The notary may, however, charge the proper fee for the notarial work. If he/she does, he/she is permitted to give the attorney an allowance not exceeding 1/3rd of his/her fee. The attorney rendering his/her bill to his/her client should show the fee payable to the notary as a disbursement. 3.6 CONVEYANCING FEES C.M. Item A.47: It is the duty of an attorney to put his/her client s interests first and to minimise costs as far as possible In the light of this principle the drawing and passing of separate deeds of transfer for each of the transactions would not be justified save where the person liable for the payment of costs, presumably the transferee, were to have good reason to require more than one transfer and were to be fully advised as to the additional cost in which he/she would thereby be involved and were to agree thereto. Even then the comparative costs of passing separate transfers and taking out certificates of registered title in respect of individual properties should be weighed and the less expensive course followed. 3.7 CONVEYANCING: DRAWING OF DOCUMENTS IN ANTICIPATION (resolutive condition applicable) A conveyancer is not entitled to incur expenses by proceeding to draw transfer documents if the sale is subject to a suspensive condition. Whilst it is common practice that documents are in fact prepared notwithstanding a suspensive condition such documents are prepared at the risk of the conveyancer. Where the deposit for e.g. was not paid the attorney was premature in proceeding with the transfer. It depends on the facts of the case whether the conveyancer was entitled to proceed with the transfer and that he was not at risk. The purchaser is entitled to a refund of the costs: van Vliet vs Adler, Kessly and Salomon 1979(3) SA at CONVEYANCING - INVOLVEMENT OF ONE CONVEYANCER WITH VARIOUS FIRMS OF ATTORNEYS It has come to the Council's attention that a practice has developed whereby attorneys who are admitted conveyancers accept work from a multiplicity of firms who do not have an admitted conveyancer on their staff. This practice has become widespread The Council accepts that it is proper for an attorney who is an admitted conveyancer to carry out and complete conveyancing transactions on behalf of a colleague who is not an admitted

20 20 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page conveyancer, as long as the conveyancer acts bona fide in one of the following capacities - a.) b.) c.) as the partner of the non-conveyancer. as the correspondent of the non-conveyancer. pro amico; subject to the strict guidelines issued by the Council in relation to pro amico work The Council is concerned that the practice described in paragraph above does not comply with any of these requirements. The Council has received many complaints, and the Council is concerned that the capacity of the conveyancer, and his/her legal relationship with the attorney's firm, are unclear. The accounting aspects of the transaction are vague, as are the fee arrangements. It is also unclear as to who bears the responsibility for delays or errors. A matter of particular concern to the Council is that in most cases the client does not know about the arrangement, and assumes that the firm, which he/she appointed to do the conveyancing, is attending to the transaction The Council considers that this practice is undesirable, for the following reasons - a.) b.) c.) d.) It is misleading to the public - firms are holding themselves out as being qualified to do conveyancing work when they are not so qualified, in breach of Rule Furthermore the client believes that this matter is being dealt with by the firm whom he/she appointed, whereas someone else unknown to him/her, and over whom his/her appointed attorney appears to have no control, attends to the transaction; It reflects on the conveyancing process; It frustrates the efforts of the Law Societies of South Africa to encourage attorneys to become qualified as conveyancers. This will have serious long-term consequences for the continued reservation of conveyancing work to the practising profession; It is not in the public interest, in that it detracts from the service rendered to the public; the Council has received many complaints that the conveyancer often cannot be contacted to arrange simultaneous lodgement, queries go unattended, and clients and conveyancers involved in simultaneous transactions are frequently unable to establish what stage the transaction has reached The attention of members is drawn to the following rules of the Law Society, which have a bearing on the matter - a.) b.) c.) d.) e.) rule 71, which deals with the question of branch offices; rules 68, 69 and 89.5, which govern the question of accounting; rule 89.15, which provides that it is improper conduct for an attorney to neglect to give proper attention to the affairs of his/her client; rule 89.16, which deals with the failure on the part of an attorney to supervise his/her staff; rule , which makes it a requirement to disclose an association with another attorney.

21 RULINGS : LAW SOCIETY OF THE NORTHERN PROVINCES Page 21 f.) rule , which provides that it is improper conduct for one attorney to advertise in any manner in which the public is invited to entrust professional work to him/her or in which he/she holds himself or his/her firm out as being prepared or qualified to do such work (for example, providing on his/her letterhead that he s a "conveyancer" when he/she is not). Circular: 7/ It appears to the Council that many of the firms of attorneys who are involved in the practice described above are contravening one or more of these rules. Members are requested to ensure that they conduct their practices strictly in accordance with the rules. If these undesirable practices continue the Council may be forced to amend the rules so as to deal with the matter in specific terms. 3.9 MAKING USE OF OUTSIDE CONTRACTORS FOR THE DRAFTING OF DOCUMENTS Society News: April 1992 De Rebus Council has taken note thereof that some institutions render services to the profession regarding the preparation of transfer documents. Council is of the opinion that this practice is contrary to the provisions of Section 83(8)(a)(i) of the Attorneys Act, Council decided that it would be unprofessional and unbecoming for a practising attorney to become a member of a close corporation which renders such services CONVEYANCING TRANSACTIONS FOR ATTORNEYS AND ADVOCATES It has been decided for the information of members to republish the existing Northern Provinces practice in regard to charges for conveyancing transactions carried out for colleagues and advocates. The Law Society of the Northern Provinces decided that its ruling for attorneys also extends to articled clerks. The ruling reads as follows: It is customary not to charge fees for such services where the conveyancing relates to the personal residence of the colleague or advocate of their spouses. Where, however, the property is purchased or mortgaged for any other purpose, e.g. as an investment, normal fees may be charged COMMERCIALISATION OF THE DEEDS OFFICE Members should note that, with effect from 1 October 1994, the following fees would be imposed by the Registrar of Deeds: A fee will be charged by the Deeds Office for registration as follows Transfers from 0 to R no charge from R to R R75 per registration R upward - R100 per registration Cancellation of Bonds: a flat fee of R30 per bond to be cancelled will be charged