Aesop updated: lawyer loses all
REMEMBER the fable about finding a great treasure of gold and jewels? You could help yourself, but only take as much as you could carry. Drop anything and it would all disappear; you’d be left with nothing at all.
Strangely enough a lawyer out there is living proof of the fable’s continued potency.
Attorney T M Maieane has been litigating against Select Management Services – a housing microfinance company operating in a number of African countries among them South Africa and Lesotho, where the court action took place.
For a reason that doesn’t emerge from the judgments, Select Management was in dispute with 1382 people, clients of Maieane. The company lost the case and was ordered to pay costs.
Then followed a brief legal flurry over payment. To ‘take instructions’ from his clients over whether to oppose a related application by the company Maieane charged almost R500 000.
This bill was examined by the court’s taxing master who found it ‘excessive’ and cut it in half.
Select Management then took the matter to the high court, arguing that even the R241 850 proposed by the taxing master was too much.
In its judgment the high court said fee was based on the notion that each of the 1382 had been separately consulted. In fact however the ‘instructions’ were the same in each case. Select Management also argued that the fee was ‘shockingly excessive’ since the main application had already been dealt with and this bill concerned a minor matter at the end.
The high court applied the long-established principle – and this is perhaps where the fable becomes a morality tale – that attorneys who did work for ‘more than one client’ could charge a separate fee for each client only if separate work was in fact done for each client. But where one service was performed for all, just one fee could be charged.
On that basis the high court reduced Maieane’s fee even further, saying it was ‘persuaded and convinced’ that he carried out only one service. It ruled that a single application was lodged against the many clients; that Maieane performed a ‘simple’ ‘single service of taking instructions’ and that the appropriate fee to charge was ‘not more than R30 000’.
Unhappy with the turn of events, Maieane turned to the appeal court – now putting the entire cache of treasure in jeopardy. He said the high court had interfered with the discretion of the taxing master and that its figure of R30 000 was ‘an arbitrary amount’ with ‘no legal, factual or consensual basis’.
In its decision, just delivered, the appeal court said the central question was what fee should be allowed when an attorney took instructions from ‘multiple clients’.
To answer that question a court must establish whether the attorney’s service was ‘in fact rendered to each of the litigants’. Thus the ‘time frame’ was important. In this case the attorney’s bill indicated that he took instructions from his 1382 clients on 4 August 2011.
‘It hardly needs to be stated that it would have been impossible to take instructions from so many people on one day’, said the appeal court. It was even more impossible since the attorney also spent time that day consulting with other parties to the dispute, charging R400 per consultation for this work.
In addition the fee claimed was not for an involved or complicated matter and the interests of all 1382 clients were identical.
Since it was clear that the attorney had not taken separate instructions from all 1382 of his clients ‘only one fee for taking instructions should have been allowed’.
The appeal court agreed with Maieane’s argument that there was no basis for the high court’s figure of R30 000; similarly however there was no ‘logical or legal ground’ for the taxing master’s original, much higher fee.
The appeal court held both proposed bills were so out of kilter with what should have been charged that it was ‘entitled to intervene’ and substitute an appropriate amount’.
Since the taxing master originally allowed a R400 fee for consulting each of the other parties to the dispute this was also the appropriate amount for the single task of ‘taking instructions’ from Maieane’s 1382 clients.
Select Management may thus be billed just R400 while Maieane and his clients must bear the costs of the appeal. The hero has lost all the treasure and his actions have left himself and his clients worse off than before: Aesop, updated for modern times.
