| 38.1 | The rules of conduct in Part V of this code of conduct are applicable to, and binding upon, every person who has been admitted and enrolled to practice as an advocate in South Africa in terms of section 34(2)(a)(ii) of the Act, called in Part V of this code "a trust account advocate". |
| 38.2 | The provisions of paragraphs 18.1, 18.2, 18.3, 18.10, 18.11, 18.13, 18.15, 18.17, and 18.8 which apply to the attorneys, and paragraphs 22 to 22.3 inclusive, which apply to counsel, will apply, with the necessary changes required by the context, to trust account advocates. |
| 38.3 | For purposes of this Part V a reference to a trust account advocate accepting a brief shall include his or her accepting an instruction from an attorney or directly from a member of the public or from a justice centre. |
| 39. | Nature of work undertaken by trust account advocates |
| 39.1 | The provisions of paragraph 23.1 and 23.2 of this code apply, with the necessary changes required by the context, to trust account advocates. |
| 39.2 | A trust account advocate shall comply with the requirement to be in possession of a Fidelity Fund certificate and shall conduct his or her practice in accordance with the relevant provisions of chapter 7 of the Act and the rules relating to the opening and keeping of trust accounts and the handling of trust monies. |
| 39.3 | The provisions of paragraph 23.3 of this code apply, with the necessary changes required by the context, to trust account advocates. |
| 40. | Trust account advocate's commitment to the practice of advocacy |
The provisions of paragraph 24 of this code apply, with the necessary changes required by the context, to trust account advocates.
| 41. | Independence of trust account advocates |
| 41.1 | The provisions of paragraph 25.1, 25.2, 25.7 and 25.8 of this code apply, with the necessary changes required by the context, to trust account advocates. |
| 41.2 | A trust account advocate shall upon acceptance of a brief, whether from an instructing attorney or from a client directly, exercise personal judgment over all aspects of the brief and shall not permit any person to dictate how the matter is to be conducted. If the decisions made or advice given by the trust account advocate are not acceptable to the instructing attorney or to the client, the trust account advocate must offer to surrender the brief, and if the instructing attorney or the client elects to accept the surrender, the trust account advocate must forthwith withdraw. |
| 41.3 | A trust account advocate shall not appear in any superior court in the absence of his or her instructing attorney or instructing attorney's candidate attorney, or the client where the trust account advocate has taken an instruction directly from a member of the public, save as provided below. |
| 41.4 | A trust account advocate may, when appearing in a matter before any court or tribunal of any kind, appear unaccompanied by the instructing attorney or the instructing attorney's representative, or the client where the trust account advocate has been instructed directly by a member of the public, provided that the trust account advocate is able to remain in contact with the instructing attorney (or where the trust account advocate has been instructed directly by a member of the public, the client) at all times. |
| 41.5 | The trust account advocate shall not bring about a binding settlement of any matter without an express and specific mandate by the instructing attorney or by the client, as the case may be, as to the terms and conditions of an agreement of settlement. |
| 42. | Acceptance of briefs and instructions and the cab-rank rule |
| 42.1 | The provisions of paragraphs 26.1, 26.2, 26.3, 26.8, 26.9 and 26.10 of this code apply, with the necessary changes required by the context, to trust account advocates. |
| 42.2 | A trust account advocate may decline offers of briefs in matters in which the trust account advocate believes he or she is not competent to render professional services at the appropriate standard reasonably expected of a trust account advocate in such matters or to discharge his or her duty of diligence, and when declining such offers the trust account advocate must disclose those reasons to the instructing attorney, or to the client where the trust account advocate has accepted an instruction directly from a member of the public. |
| 42.3 | A trust account advocate may decline the offer of a brief if agreement between him or her and the instructing attorney or the client (where the trust account advocate has been approached directly by a member of the public) cannot be reached on a fee to be charged in the matter; provided that the fee proposed by the trust account advocate must satisfy the norm of the reasonable fee, as dealt with in paragraph 29 of this code. |
| 42.4 | A trust account advocate shall, once he or she is alerted to the fact that the court or other adjudicative body is to be presided over by a member of his or her family or other person with a close personal relationship with him or her, disclose that fact to the instructing attorney, or to the client (where the trust account advocate has received an instruction directly from a member of the public), and to opposing counsel. |
| 42.5 | A trust account advocate shall, once he or she is alerted to the fact that a family member or other person with a close personal relationship to him or her is opposing counsel or is an attorney in the opposing party's attorneys' firm, notify the instructing attorney or the client (where the instruction has come directly from a member of the public) of such relationship. |
| 43. | Acceptance of briefs and instructions |
| 43.1 | A trust account advocate shall perform legal professional services in court-craft and knowledge of the law only upon the offer and acceptance of a brief. |
| 43.2 | A trust account advocate may accept a brief from an attorney or from a member of the public or from a justice centre. |
| 43.3 | Where a trust account advocate accepts a brief from an attorney or from an arbitration body as contemplated in paragraph 27.3, the trust account advocate shall receive deposits and payment of accounts only from or through the instructing attorney or from or through the arbitration body which gave the brief to him or her, except where the attorney or arbitration body, for reasons of insolvency or for any other reason, is unable to pay, in which circumstances, with leave from the authorised sub-structure of the Council, a trust account advocate may receive payments due from another source in discharge of the indebtedness of the attorney or arbitration body. |
| 43.4 | Where a trust account advocate receives instructions directly from a member of the public or from a justice centre, he or she may receive fees from that member of the public or justice centre or from any other source, subject to his or her complying with chapter 7 of the Act. |
44. Acceptance of briefs: implied undertaking of diligence
| 44.1 | The provisions of paragraphs 28.1, 28.4, 28.5, 28.6, 28.8, 28.9, 28.10, 28.11, 28.12 and 28.13 of this code apply, with the necessary changes required by the context, to trust account advocates. |
| 44.2 | A trust account advocate shall, upon accepting a brief, not resile from the undertaking to fulfil the brief in order to attend to another brief offered later, except for good cause, which shall be deemed to be present under either of the following circumstances— |
| 44.2.1 | the interest of justice would otherwise be impaired; |
| 44.2.2 | the instructing attorneys or the instructing clients of both the initially offered brief and of the later offered brief agree in writing to release the trust account advocate from the initially offered brief. |
| 44.3 | A trust account advocate shall not pass on a brief to another advocate except on the express prior agreement of the instructing attorney or of the client where the trust account advocate has been instructed directly by the client. |
| 44.4 | If, after a trust account advocate has accepted a brief in any matter, any circumstances arise that imperil the proper discharge of his or her duty of diligence, he or she shall, once such eventuality is apparent, especially in respect of trial briefs, report such circumstances to the instructing attorney or to the instructing client, as the case may be, to facilitate timeous steps to inhibit prejudice to the client and facilitate a successor to be briefed in time to take over the brief. |
| 45. | Advocate's fees: The norm of the reasonable fee |
The provisions of paragraph 29 of this code apply, with the necessary changes required by the context, to trust account advocates.
| 46. | Agreements about fees |
| 46.1 | The provisions of paragraph 30.1, 30.4 and 30.5 of this code apply, with the necessary changes required by the context, to trust account advocates. |
| 46.2 | A trust account advocate shall at the time of accepting a brief or an instruction, stipulate to the instructing attorney or to the client, as the case may be, the fee that will be charged for the service or the daily or hourly rate that will be applied to computing a fee. |
| 46.3 | A trust account advocate shall, in respect of every brief, expressly agree with the instructing attorney (or with the client, where the trust account advocate is instructed directly) the fee or the rate of fees to be charged, unless there is a tacit understanding between the trust account advocate and the instructing attorney or the client, as the case may be, about the fees or the rate of fees usually charged by the trust account advocate for the particular kind of work mandated by the brief or instruction. |
| 46.4 | The following standard terms, which the trust account advocate must draw to the attention of the instructing attorney and to the client where the instruction comes from a member of the public, shall be implied in a brief or instruction offered to and accepted by the trust account advocate: |
| 46.4.1 | no amount agreed upon shall exceed a reasonable fee; |
| 46.4.2 | the trust account advocate may charge a reasonable fee for a reserved hearing date unless the instructing attorney or the client, as the case may be, releases the trust account advocate on reasonable notice; |
| 46.4.3 | a trust account advocate who charges a fee for a reserved hearing date shall deliver to the instructing attorney or to the client, as the case may be, a certificate to the effect that the trust account advocate did not undertake any other brief for a hearing for the reserved date. |
| 46.5 | A trust account advocate may expressly, in writing or in an email, conclude an agreement with an instructing attorney, or with a client, as the case may be, which includes a provision for any or all of the following: |
| 46.5.1 | that payment of fees or a specified amount as cover for the fees must be made prior to the performance of any obligation in terms of the brief; provided that in such a case the payment shall be held in a trust account in accordance with chapter 7 of the Act and the accounting rules applicable to a trust account advocate; |
| 46.5.2 | that a special collapse fee shall be payable to the trust account advocate in the event that proceedings in a court or before a tribunal, for which the trust account advocate has, at the request of the instructing attorney or the client, reserved a number of dates, not proceed as envisaged, whether as a result of the matter being settled, postponed by agreement between the parties or by a court order, or concludes earlier than the end of the period reserved by the trust account advocate, provided that the fee actually charged is a reasonable fee. |
| 47. | Pro bono instructions |
Paragraphs 31.1 and 31.2 of this code apply, with the necessary changes required by the context, to trust account advocates.
| 48. | Prohibited fee agreements |
The provisions of paragraph 32 of this code apply, with the necessary changes required by the context, to trust account advocates.
| 49. | Acceptance of gifts by advocates |
| 49.1 | Trust account advocates shall guard against compromising their independence by the acceptance of gifts from a client or an attorney, and whenever it is not inappropriate to accept a gift from a client it shall be received by the advocate through the agency of the instructing attorney, where the advocate is briefed by an attorney. |
| 49.2 | The provisions of paragraph 33.2 of this code applies, with the necessary changes required by the context, to trust account advocates. |
| 50. | Marking briefs and submitting fees accounts |
| 50.1 | The provisions of paragraphs 34.1, 34.4, 34.5 and 34.6 of this code apply, with the necessary changes required by the context, to trust account advocates. |
| 50.2 | A trust account advocate shall render accounts to the instructing attorney or accredited entity and shall receive payment only from the instructing attorney or accredited entity. Where a trust account advocate receives an instruction directly from a member of the public or from a justice centre accounts shall be rendered to the client directly, and payment may be received from a client or from a third party. |
| 50.3 | A trust account advocate shall not submit an account directly to a client nor receive payment directly from a client where the trust account advocate has been instructed by an attorney. |
| 50.4 | A trust account advocate shall maintain banking accounts in accordance with chapter 7 of the Act and the accounting rules applicable to trust account advocates, and shall cause payments in respect of accounts to be paid into the appropriate banking account in accordance with chapter 7 of the Act and the accounting rules. |
| 51. | Recovery by trust account advocates of fees owing and payable |
| 51.1 | The provisions of paragraph 35 of this code apply, with the necessary changes required by the context, to trust account advocates in respect of accounts owing arising from briefs from attorneys. |
| 51.2 | A trust account advocate acting in terms of an instruction received directly from a member of the public or from a justice centre shall be entitled to recover directly from the client any accounts owing and payable by that client. |
| 52. | Professional etiquette |
The provisions of paragraph 61.3 of this code apply, with the necessary changes required by the context, to trust account advocates.
| 53. | Abandonment of practice |
| 53.1 | A trust account advocate shall not abandon his or her practice. |
| 53.2 | A trust account advocate shall not close his or her practice without prior notice to the Council and to his or her clients and to attorneys by whom he or she has been briefed without arranging with the clients and the attorneys for the despatch of their business or the care of their property in his or her possession or under his or her control. |
