Indigent people may soon gain wider access to legal representation, reports Justin Pearce
Contingency fees — where lawyers are only paid if they win the case — could soon be officially recognised.
This will enable the poor to invoke the power of the law without the financial risk of losing a case.
Although contingency fees have been a widespread practice for many years, the lack of official recognition has opened the way for unscrupulous operators to shoulder in on cases which are properly the work of attorneys.
The Association of Law Societies (ALS) has approached the Law Commission to consider the possibility of making the contingency fee system legal. ALS is a body that unites the provincially-based law societies, which are professional associations representing attorneys.
Human rights lawyers have welcomed the move by ALS, saying it will make the law accessible even to indigent people.
ALS has argued that with many claimants unable to afford the services of an attorney, the field is open for unprofessional operators such as debt collectors to perform some of the functions of attorneys — without the code of ethics that governs the legal profession. The introduction of contingency fees will open the services of lawyers to people who at present are forced to make use of unprofessional alternatives.
It is not the first time that law societies have moved to make contingency fees a possibility. In the early 1990s, the Natal and Transvaal Law Societies changed their rules to allow contingency fees. However, when the Cape Law Society tried to do the same, the matter was brought before the Chief Justice, who expressed the opinion that the practice was contrary to common law. Since then, the law societies have ceased to endorse the practice of contingency fees.
However, Roger Cleaver of the ALS believes that contingency fees might receive fresh consideration in the light of the changes in legal thinking that came with the adoption of a Bill of Rights. The new Constitution emphasises principles of justice and access to the law, a development which has seen the function of the Justice Department shift away from laying down the law, towards ensuring that abstract concepts of justice become a reality.
Cleaver emphasised that the ALS did not envisage the system practised in the United States, which tends to fill the courts with shot-in-the-dark lawsuits, by offering an attorney a percentage of the damages awarded in the case. The ALS is instead considering a system similar to the one in place in Scotland, which permits an attorney to charge a premium on the normal fee, provided that the court grants to the complainants damages which cover the increased fee.
Individual applicants would be permitted to make use of contingency fees, but not companies seeking a law suit.
Krish Govender of the National Association of Democratic Lawyers (Nadel) and Ahmed Motala of Lawyers for Human Rights both said they would welcome the introduction of contingency fees, since the system would regularise a state of affairs which exists anyway.
Motala said contingency fees were common practice in cases such as car accident claims, and that the law societies have simply “turned a blind eye” to the practice.
Govender pointed to the many cases brought against the police and other organs of the state during the apartheid era, which would never have happened if the attorneys had not agreed to write off fees if the suit were unsuccessful.