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Law Society allowed Bobroff fee regime against advice

Bobroff implores LSNP Councillors to help him fight the battle to retain his dosh.

Ronald Bobroff continues to justify his illegal Common Law Contingency Fee Agreements (CLCFA) by imploring councillors of the Law Society of the Northern Provinces (LSNP) to rally behind him.

This is despite a ruling by the Constitutional Court earlier this year that declared Ronald Bobroff and Partners’ (RBP’s) controversial common law contingency fee agreement (CLCFA) to have always been unlawful. This judgment confirmed a judgment of the full bench of the North Gauteng High Court that declared RBP’s CLCFA to be unlawful. A request for leave to appeal was also denied.

In a letter to the LSNP, Bobroff asks the Council to support his appeal against the Mayat judgment, as it would “greatly enhance the prospects of a successful appeal”.  This refers to a judgement by Judge Haseena Mayat handed down in April this year, in which she concluded that RBP’s CLCFA agreement was unlawful and ordered the firm to repay R2.1 million to their former client and road accident victim Anthony de Pontes. RBP’s request for leave to appeal against this judgment was also denied.  RBP has now petitioned the Supreme Court of Appeal and now seeks the support of the law society.

In his letter Bobroff insinuates that his predicament could affect many more law firms. “As things presently stand, there are probably tens of thousands of LSNP members who are trapped in a situation from which there is no escape due to the Tjatji judgment.  The Mayat judgment dramatically compounds the catastrophe facing these members, who justifiably look to the Law Society to take all possible steps to alleviate this unacceptable situation. All the more so as they relied on the Law Society’s good faith rulings with regard to common-law contingency fees.”

Declaratory order

Bobroff also urged the Council to launch an application for a declaratory order declaring that the interest on the fees that had been unlawfully charged would only start running from the date of the Constitutional Court’s judgment. CLCFA agreements had been in use since 2002.  If such an application were to be granted it would mean that attorneys who had used CLCFA’s would avoid having to pay up to twelve years of interest on the illegal fee that they had taken.

Predatory attorneys and journalists

In the letter Bobroff also points fingers at “predatory” attorneys and two reporters who are “attacking” him. The attorneys to whom he refers are Norman Berger and Anthony Millar, both of Norman Berger & Partners (NBP) in Johannesburg. They deny that their conduct is “predatory”.  Millar told Moneyweb:  “It is astounding that even in the face of a decision by the highest court in the land that Bobroff refuses to accept the law. My experience is that very few firms of attorneys in fact utilised CLCFAs in the way that RBP did, and they are to be regarded as the rogue exception rather than the rule.”   

Read Millar’s letter to Moneyweb here and view his comment here.

Presumably, I am one of the two reporters Bobroff refers to.

Senior Counsel’s approval

Bobroff and the LSNP have always maintained that the use of CLCFAs was legal.   This view is based on a special LSNP determination, which was based on Senior Counsel’s Opinion.

Moneyweb can reveal that the LSNP approached Advocates Gilbert Marcus SC and Wim Trengove SC independently, but both silks were of the opinion that the CLCFA was not legal.

The LSNP however did not accept these views, but obtained a contrary opinion from advocate Etienne Labuschagne in 2004, and this became the official determination of the law society.

Bobroff response

In response to a draft verison of this article, Bobroff said: “You are aware that the Law Society of the Northern Provinces and the Free State specifically permitted their members to utilize such agreements from 2002 – 2013, and which type of agreement has been in the norm in America for 150 years. Given that the United States is widely recognised as the World centre of jurisprudential excellence, why should its tried and tested system which has “given the keys to the Court House” to millions of Americans who could otherwise not exercise their rights, not be similarly regarded as being in the public interest in South Africa?

“The Law Society will confirm to you that common-law contingency fees were welcomed by the public and that since its ruling in 2002 to date, negligible, if any, complaints have been received from clients relating to fees charged in accordance with such agreement.”

Bobroff said RBP’s legal team comprising Advocate Justin Erasmus and Advocate Nazeer Cassim SC, are of the firm opinion that the Honourable Mayat J erred in holding that interest should run against an attorney from the date on which a (bona fide) contingency fee was debited, and confirmed that an application for leave to appeal to the Supreme Court of Appeal has been lodged.

Bobroff also said it is irresponsible to suggest that the LSNP was irresponsible in its conduct. “Indeed, even the Constitutional Court recognized the wide divergence of opinion within the legal profession as to whether or not the Contingency Fees Act precluded common-law Contingency Fee Agreements when it noted ‘ Uncertainty reigned in the attorneys’ profession about the correct legal position in relation to contingency fees. Could these fees be charged only under the Act, or also outside its provisions? Bobroff was one of the firms which charged more than allowed for in the Act, as the rules of its professional association allowed.

“The prevailing view within the legal profession, as we understand it, is that how can it be valid, legal and proper for lay persons, who are totally unregulated, to fund litigation in which they have no direct interest, and in return for this receive an unlimited percentage of the proceeds of such litigation; but that that attorneys who are extremely tightly regulated may not do likewise at the request of clients?”

Read Bobroff’s email to LSNP Councilors here.

Read the Marcus Opinion here.

Read the Trengove Opinion here.

Read Bobroff’s contingency regime unlawful, Bobroff ordered to repay quadriplegic R2.1m and Bobroffs score own goal twice on one day.

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