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by Richard Stokes
Currently, the conduct of attorneys is governed by the Attorneys Act and the Rules of the Law Society. Good news for consumers of legal services is that the much anticipated Consumer Protection Act (“the CPA”) will also apply to the attorneys profession. Consequently, attorneys will now be subject to the same stringent standards applicable to all other service providers governed by the CPA, which becomes fully operational on 1 April 2011.
The CPA states that it applies to every transaction occurring in the Republic… and to the supplier of any goods or services, within the Republic.
A “transaction” includes the performance by a person of any services for or at the direction of a consumer for consideration.
The CPA defines service as: “the provision of any education, information, advice, or consultation, except advice that is subject to regulation in terms of the Financial Advisory and Intermediary Services Act. It is clear therefore that the CPA will apply to the attorneys profession.
An interesting impact of the CPA on the attorneys profession can be found in section 19, which states that it is an implied condition of every transaction that the supplier is responsible to perform the services on the agreed date and at the agreed time or otherwise within a reasonable time after concluding the transaction or agreement, failing which the consumer may either accept the delivery or cancel the agreement without penalty, treating any performed services as unsolicited. In terms of section 21, a consumer has no obligation to pay a supplier for unsolicited services.
It could therefore be argued that where an attorney fails to perform at an agreed time, a client may reject such performance and will not be obliged to make payment in respect of the services already rendered. There is no such provision in either the Attorneys Act or the Rules of the Law Society.
Another important impact the CPA will have on the attorneys profession concerns a consumer’s right to be heard and obtain redress. Whereas the proceedings in terms of the rules of the Law Society are aimed at investigating complaints concerning the ethical behaviour of attorneys over whom it has jurisdiction, the CPA contemplates more than just unethical behaviour – it also contemplates administrative fines as well as potential claims for damages, which are not provided for in the Attorney’s Act or Rules.
It must be noted however that the Law Society can apply for an exemption from one or more sections of the CPA. Such an exemption will, however, only be granted in circumstances where the particular provision in the Attorneys Act or the Rules of the Law Society provides equal or better protection than a corresponding provision in the CPA. Although there are some provisions in the Attorneys Act and the Rules of the Law Society that do indeed offer equal or better protection than corresponding provisions in the CPA, there are many provisions which fall far short of the protection offered by the CPA and, consequently, the Law Society will probably not be able to obtain an exemption from the operation of those particular provisions.
Attorneys will clearly have to be on best behaviour from April 2011!
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