July 28 2011 at 11:13

If you want a desk job, don’t become an attorney. That’s the message from a high court judge, who says lawyers must be willing to do essential fieldwork when it’s in the interests of a client.

Judge Neo Rampai of Bloemfontein has found that a client was treated negligently by an attorney who sat at her desk and wrote letters, rather than going out to get the documentation she thought was needed.

His ruling has enormous financial implications as the firm involved is liable for the amount that would otherwise have been paid by the Road Accident Fund to Yoliswa Mlenzana, widow of Zamile Mlenzana, who died in an accident in Mpumalanga in June 2004. The widow met Stella Smith of Goodrick and Franklin in Bloemfontein two months later and asked that a claim be made on her behalf with the fund.

Her lawyers did not meet the deadline, however, and the claim lapsed. Now the widow wants the attorneys to pay her compensation instead, saying they failed her.

Goodrick, on the other hand, disputed these allegations, saying Mlenzana was negligent because she didn’t produce the information needed to launch her claim.

Rampai had to answer key questions in his judgment. Was it likely that the claim against the fund would have been successful? Who was negligent, Mlenzana or Smith? If he found the firm was negligent, the amount due to Mlenzana would have to be decided in a separate hearing.

From the evidence of crash witnesses Rampai concluded the widow was likely to have been successful, had her claim been lodged in time. Going through the firm’s files he found that Smith had enough information to launch an initial claim in time to avoid prescription, and that anything outstanding could have been added later.

The attorney had “lamentably misconceived” the law by thinking that this was not possible. “As knowledgeable practitioners often do”, Smith could have made a rough calculation of Mlenzana’s claim “for the time being” since a “simple mathematical exercise” would have been enough to prevent the claim from being extinguished. 

When Mlenzana gave her address as “37739 Freedom Square, Bloemfontein”, alarm bells should have rung: Smith should have realised her client lived in a shack settlement where the postal system was notoriously poor or non-existent. But instead of trying to establish a more reliable form of communication, Smith went ahead as though her client lived in a formal area, writing her 14 letters.

When eventually the two had a second consultation, the problem of the communication breakdown was not addressed. Instead, Smith continued to ask her client to provide documents and information which she could have obtained herself. Because of “poor knowledge, skill and care”, Smith made demands of Mlenzana “that would probably have discouraged and frustrated even a very prudent and co-operative client”.

To obtain the information she needed, Smith told the court, she expected her client to travel to towns far from Bloemfontein to get documents. “And the poor client did,” noted the judge. “I was amazed,” he said, and asked why a poor woman would appoint a lawyer if she still had to travel to faraway places to gather information.

Merely writing letters wasn’t good enough, Rampai held. The lawyer failed to exercise the skill, knowledge or diligence expected of an average attorney. Because of this “disturbing lack of skill, knowledge, diligence and care” she failed to appreciate the value of the information given to her by her client almost three years before the claim expired. “I have to say, and it is not pleasant saying it, that the plain truth about this whole problem was not of Smith’s own making,” Rampai said.

As a newly-admitted attorney, “a virtual novice”, she was given the huge responsibility of handling all the firm’s claims against the fund, as well as its conveyancing department. “She was put in the deep end and left all by herself to navigate the stormy waters of the deep ocean.”

An ordinarily competent attorney would have known that mail to a shack settlement was likely to go astray, the judge said. “There comes a time when a diligent attorney has to leave the comfort zone of his or her air-conditioned office and venture out to do some fieldwork to safeguard the interests of a client.”

It’s a nice thought – the attorney-sleuth. Stand by for an increase in the genre.


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