Attorneys Act, 1979 (Act No. 53 of 1979)Rules for the Attorneys' ProfessionPart IV : General PracticePro bono services |
[RULE 25, IN ITS ENTIRETY, AS PER BELOW APPLIES TO THE LSNP, KZNLS AND FSLS ONLY]
| 25.1 | Definitions |
Pro Bono services shall include, but not be limited to, services approved in terms of rule 25.3 or recognised in terms of rule 25.4, relating to, the delivery, through recognised structures, of advice, opinion or assistance in matters falling within the professional competence of a member, to facilitate access to justice for those who cannot afford to pay for such services.
Recognised structures shall include, but not be limited to, the office of the Registrars of the High Court when issuing in forma pauperis instructions, small claims courts, community (non-commercial) advice offices, university law clinics, non-government organisations, the office of the Inspectorate of Prisons and circle and specialist committees of the society, approved in terms of rule 25.6 or recognised in terms of rule 25.8.
Those who cannot afford to pay shall be those who ordinarily qualify for assistance through recognised structures.
| 25.2 | Practising members who have practised for less than 40 years and/or who are less than 60 years of age shall, subject to being asked to do so, perform pro bono services of not less than 24 hours per calendar year, save that: |
| 25.2.1 | an attorney who becomes a practising member during the course of a year shall perform pro bono services equal to not less than two hours per month, or part thereof, of practising member status acquired in the first year of practice; |
| 25.2.2 | in the year of publication of this rule, practising members shall perform pro bono services equal to not less than two hours per month, or part thereof, from the month of publication to the end of that year. |
| 25.3 | Members may refer to the society, for approval by Council as pro bono services, a written description of areas of professional work proposed for recognition as pro bono services. |
| 25.4 | The Council shall, within 30 days of publication of this rule and thereafter from time to time, publish a list of services which, when performed by attorneys at no charge for those who cannot afford to pay, shall be recognised as pro bono services capable of being delivered in compliance with the provisions of this rule. |
| 25.5 | Pro bono services shall be delivered only through recognised structures to those who cannot afford to pay for professional services. |
| 25.6 | Members may refer to the society, for approval by Council as a recognised structure, a written description of a structure proposed for recognition. |
| 25.7 | The society is mandated by members to enter into partnership and joint venture agreements with recognised structures, the effect of which is that only matters that fall within the professional competence of attorneys are referred to practising members for advice, opinion or assistance; that briefs addressed to practising members are reasonably well formulated; and that potential language and cultural barriers are overcome. |
| 25.8 | The Council shall, within 30 days of publication of this rule and thereafter from time to time, publish a list of recognised structures, including structures with which the society has concluded partnership or joint venture agreements for the delivery of pro bono services. |
| 25.9 | Members shall submit to the society a certificate providing full particulars of pro bono services delivered, within 60 days of delivery thereof, failing which the service shall be treated as not having been rendered in terms of this rule. |
| 25.10 | The Council shall keep a record of services delivered by each member, which record shall be prepared from members' certificates. A report of all services rendered shall be extracted annually and shall be retained by the society, but individual member records substantiating the report shall be expunged. On 1 January of each year all individual members' records shall be refreshed to show an availability of hours for the new year. The record of hours served or not served in the previous year shall then be expunged. The society shall report to its members annually at the annual general meeting and shall make such report generally available on the total delivery of pro bono services by members. |
| 25.11 | The society shall cause particulars of pro bono hours still to be served by members in a calendar year to be published on its website and for reduced hours to be displayed against submission by members of certificates. This information will also be available from the society on request. It shall be the responsibility of members to ensure that the society's records as to pro bono services rendered are complete so that correct information is published on the website and generally made available. |
| 25.12 | Members may elect to deliver pro bono services through a single recognised structure and may also elect that pro bono services be delivered by his or her firm on his or her behalf. The society shall cause a member's election of the recognised structure through which he or she chooses to deliver his or her pro bono services to be published on its website. This information will also be available from the society on request. Members who make such an election may properly refuse calls through other recognised structures for the delivery of pro bono services. It shall be the responsibility of the member to notify the society of his or her election so that this information is published on the website and generally made available. |
| 25.13 | Members who travel a distance of more than 50km from their office in order to deliver pro bono services may, in special circumstances, make written application to the society to recover the actual cost of travel, excluding the first 100km. |
| 25.14 | Disbursements incurred, save for travel expenses referred to in rule 25.13, in respect of pro bono services shall be borne by the client. |
| 25.15 | It shall be unprofessional conduct for a practising member who has still to perform pro bono service hours in any year to refuse, without good cause, to deliver pro bono services. |
| 25.16 | In the event of the society receiving a complaint of refusal to deliver pro bono services, without good cause, it shall be entitled to treat its record of services rendered as complete, save only for services rendered within 60 days of the complaint that are not on record. The member against whom the complaint is made shall be responsible for providing the society with certificates, relating to such additional services, within 21 days of receipt by the society of the complaint, failing which, services alleged to have been rendered, but not on record, will be treated as not having been rendered for the purpose of investigating the complaint. Pending investigation of a complaint, the society shall refer the complainant to another practising member for assistance. |
| 25.17 | Professional standards applicable to services rendered by attorneys shall apply to pro bono services. |
| 25.18 | Notwithstanding the provisions of this clause 25, the Council may from time to time enter into arrangements with firms and with recognised structures, not inconsistent with this rule 25, for the delivery of pro bono services. In particular the Council may permit firms to establish structures within the firms themselves whereby pro bono services are provided by members within those firms on behalf of other members of the firms, but so that the aggregate of the pro bono services rendered by the firm in that manner shall always equal or exceed the aggregate of the quotas of pro bono services to be rendered by the individual members of the firm |
[RULE 25, IN ITS ENTIRETY, AS PER BELOW APPLIES TO THE CLS ONLY]
| 25. | (to be read in conjunction with the pro bono guidelines as amended from time to time by the society) |
| 25.1 | Definitions |
The Cape Law society shall be referred to as the society.
Pro bono is defined as legal work done free of charge, in the public interest for those who cannot afford it.
Pro Bono services shall include, but not be limited to, the delivery of advice, opinion or assistance in matters, falling within the professional competence of an attorney, to facilitate access to justice for those individuals, groups of people, organisations and small businesses who comply with the means test as determined and prescribed by the society from time to time, through recognised structures, or in accordance with sub rule 25.3 or 25.4. In forma pauperis applications from the Registrar of the High Court and acting as a Small Claims Court Commissioner also qualifies as pro bono services for which pro bono hours can be accredited to the member.
Recognised structures shall include, but not be limited to those approved in terms of sub-rule 25.7.1 and identified in terms of sub-rule 25.7.3.
Small business shall include, but not be limited to sole proprietors, partnerships, close corporations, incorporated or unincorporated bodies that aim to generate income and make a profit and that are in the start-up phase or not yet generating an income.
| 25.2 | The society may, at its discretion, issue guidelines in respect of any aspect relating to pro bono generally and in respect of the sub-rules of this rule. |
| 25.3 | Practising members shall perform pro bono services of not less than 24 hours per calendar year, save that an attorney who becomes a practising member during the course of a year shall perform pro rata pro bono services. |
| 25.3.1 | Where a member's pro bono hours exceeds the 24 hour minimum threshold, a member may elect to apply to the society for the excess hours rendered to be transferred to the following calendar year. The society may, in the event of good cause shown, approve the member’s application. Any excess hours may only be transferred for a maximum of one calendar year. |
| 25.4 | Members may refer to the society, for consideration by the pro bono committee subject to approval by Council, an application for any special project, programme or initiative proposed for recognition as pro bono services. |
| 25.5 | Pro bono work can be initiated by a member provided that an application is sent by the member to the society prior to the commencement of such work. The application will be considered by the pro bono committee subject to approval by Council. All work rendered after application but prior to approval will be taken into consideration as pro bono work. |
| 25.6 | The society may from time to time identify projects, programmes and initiatives to be undertaken on a pro bono basis by its members. |
| 25.7 | Recognised structures: |
| 25.7.1 | Organisations seeking to become recognised structures may apply for consideration as such from the pro bono committee subject to the approval by Council. |
| 25.7.2 | Once approved as a recognised structure, that recognised structure is required to enter into a joint venture agreement with the society. Only once the joint venture agreement has been executed can the recognised structure refer matters to the society’s members. |
| 25.7.3 | The society shall, from time to time, publish, on its website a list of recognised structures with which joint venture agreements for the delivery of pro bono services have been concluded. |
| 25.7.4 | Members may notify the society of their preferred area of interest and recognised structure/s of choice. Such preference may be taken into account by the society when allocating pro bono work. |
| 25.8 | Recording pro bono hours: |
| 25.8.1 | Members shall submit to the society, in prescribed form, a declaration providing full particulars of pro bono services rendered, irrespective of whether the matter has been finalised, by the end of each calendar year. |
| 25.8.2 | The society shall make the prescribed form available on its website. |
| 25.8.3 | The society, in accordance with its policy, shall keep a record of pro bono services rendered by its members. |
| 25.8.4 | It shall be the responsibility of members to ensure that the society’s records as to pro bono services rendered are complete by submitting their declaration, in prescribed form, for such pro bono services rendered annually. |
| 25.9 | Disbursements incurred in respect of pro bono services shall be borne by the client. |
| 25.10 | Cost orders |
Upon collection of the cost order in favour of a pro bono client:
| 25.10.1 | Any disbursement actually paid by the client should be reimbursed to the client and any disbursement covered by the member should be reimbursed to the member. Any balance shall be paid to the society for administration by the society for purposes of advancing the pro bono project. The member may elect to retain the balance or pay it to the society’s pro bono fund. In the event of the member electing to retain the funds, no pro bono hours shall be claimed for any services rendered. In the event of the member paying the costs recovered to the society, pro bono hours may be recorded by the member. |
| 25.10.2 | A member may apply to the society for any designated pro bono funds in the control of the society as a contribution towards any disbursement incurred in the execution of pro bon services. |
| 25.11 | Unprofessional conduct |
| 25.11.1 | It shall be unprofessional conduct for a practising member who has still to perform pro bono services, to refuse to deliver pro bono services without good cause. Where refusal is without good cause, such refusal shall be referred to the disciplinary committee of the society for further action. |
| 25.11.2 | In the event of the society receiving a complaint of refusal to deliver pro bono services, with no good cause, it shall be entitled to treat its record of services rendered as complete, save only for services rendered within 60 days of the complaint that is not on record. The member against whom the complaint is made shall be responsible to provide the society with a declaration, relating to such additional services, within 21 days of receipt by the society of the complaint, failing which, services alleged to have been rendered, but not on record, will be treated as not having been rendered for the purpose of investigating the complaint. Pending investigation of the complaint, the society shall refer the complainant to another practising member, for assistance. |
| 25.11.3 | Professional standards applicable to services rendered by attorneys shall apply to pro bono services. |