Who pays my lawyer?

THE SHORT ANSWER

You do. But have faith; there is a “but” to be considered.

THE LONGER ANSWER

When approaching an attorney – few questions are important as how the attorney will charge you for the work they undertake on your behalf. This is however often forgotten and confusion over your liability to your attorney may leave you disillusioned.

Remember attorneys invoice their clients based on time. This means that the more your client does for you in a matter, or he longer something takes, the more it will cost (including all letters, telephone calls, consultations and research). The attorney should give you their hourly rate and bear in mind, most attorneys will also invoice you VAT.

There is an enormously common misconception that “the other side” must pay the persons legal fees. Many people feel that as they have been wronged by the person they wish to sue or who is suing them, it is for that person to pay their legal fees.

This is indeed not the case.

However provision is made in our law for a successful party to claim back certain amounts which were expended in the litigation process from the unsuccessful party. This is referred to as “costs”. Costs of a law suit are calculated on a tariff which is prescribed by law. The tariff also has different scales categories of costs such as Party and Party costs and Attorney-Client costs.

Party and Party Costs are those costs which were necessarily incurred in the course of prosecuting or defending a claim. Attorney-Client costs are similar to Party and Party costs except that have a broader scope than that of Party and Party costs. As such, all costs and not only the necessary costs of the litigation can be set down on the Bill of Costs.

HOW DO I GET MY COSTS BACK?

Once a determination is made by the court as to the category of costs awarded to the successful party, the attorney will draw up a Bill of Costs on the relevant tariff. Thereafter, the Bill will be sent to the unsuccessful party to consider and it will be set down for hearing at the court before a Taxing Master. The Taxing Master is vested with the authority to determine which items on the Bill are appropriate and to strike off those which are not allowed.

Once the Bill is taxed, the Bill has the effect of a judgment and if the unsuccessful party fails to pay the amount owed pursuant to the Bill, a warrant of attachment may be made.

DEPOSIT FOR FEES

Unfortunately attorneys are often not paid by their clients and as such, protect themselves by taking a deposit for fees and disbursements (such as sheriff or advocates fees) which will lie in their trust account until they have rendered you services. After a deposit has been paid, the attorney will certainly feel more comfortable with their relationship with you, and willing to commence acting on your behalf.

CONTINGENCY FEE AGREEMENTS

“Contingency fee agreements” (“no win, no fee”) used to be unlawful, and were considered an unethical form of touting for new clients. However, the ban no longer exists, and it is now possible in some instances to enter into an agreement of this nature with your attorney. These agreements are used by some practitioners where the client has no money to pay for the attorney’s fees, but has good merits of success against another party. Obviously these agreements do not apply when you are being sued by another party, unless you have a counter claim against them.

It is extremely important to address the issue of fees with your attorney at the inception of the matter in order that you are satisfied with all aspects of the conduct of your matter.

About the authorAndrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za