Terms of Engagement
1. GENERAL
1.1 Unless otherwise determined in writing, in respect of our engagement as the attorneys of a client, in both current and future matters, the following terms and conditions of engagement will apply.
1.2 We are entitled to change these terms from time to time without notice. We will endeavour to notify you accordingly.
1.3 These terms are not comprehensive in all respects as there are several legislative and other interventions relevant to an attorney-client relationship and exceptions occur due to the complexity of legal practice. For instance, these terms are modified to the extent that the Consumer Protection Act is applicable.
1.4 By agreeing to our Terms of Engagement, you agree to having concluded a mandate agreement with Barnaschone Attorneys (also referred to as the “firm”).
2. DUTY OF CARE
2.1 We are committed to doing our best to ensure that your legal needs are met.
2.2 By agreeing to our Terms of Engagement, you authorise us to take all measures we believe appropriate to protect your interests, unless you instruct us specifically to the contrary.
2.3 Our duty of care is to you and not to any other person. Before any other person may rely on our advice, we must expressly agree to that in writing. In addition, our advice is to you and is not to be disclosed to any other person without our agreement in writing.
2.4 Kindly be advised that we retain all ownership rights in all intellectual property of any kind created by us for you.
3. CONFIDENTIALITY AND CONFLICTS OF INTEREST
3.1 We place the highest possible value on client confidentiality. We wish to advise that legislative and other legal interventions, in addition to our obligations to court, could necessitate exceptions to this provision.
3.2 We regularly provide legal services to participants in various industries. Your confidential information is safe with us.
3.3 We go out of our way to avoid conflicts of interest. If a conflict of interest does arise, we will promptly advise you of the conflict and follow the appropriate procedure to address such an issue.
4. FEES POLICY AND DISBURSEMENTS
4.1 We are flexible and are willing to consider different methods of charging fees. These methods include fees calculated by reference to hourly rates, fees determined under a tariff, fixed fees, retainer fees, and, if appropriate, percentage fees based on the value of the transaction. Unless we have specified another fee structure, we will charge fees primarily by reference to the amount of time spent by our Professional Practitioners (“Practitioner(s)”) on your work.
4.2 Our fees will be charged on a basis that is fair and reasonable having regard to the circumstances of the matter and the nature of our work for you. Factors that may be taken into account in setting our fees include time and resources involved; the urgency with which the matter is required to be completed; the skills, specialised knowledge and responsibility required to perform the services properly; the degree of risk assumed by us in undertaking the services, including the value of any property involved; the complexity of the matter; and difficulty or novelty of the questions involved.
4.3 In appropriate circumstances we require cover before commencing with legal work on your behalf.
4.4 In providing legal services to you, you hereby authorize us to incur disbursements and engage the services of third parties on your behalf, the costs of which are for your account. Kindly note that we usually require cover before incurring disbursements and/or engaging third parties and we may require certain costs to be paid in advance. Costs which we may require to be paid in advance include advocates fees, sheriff’s fees and tracing agent costs. If we incur disbursements on your behalf without cover, we will invoice for the disbursements.
4.5 Unless you specify otherwise, we limit in our discretion the extent to which we engage advocates on your behalf.
4.6 We render interim accounts for fees on a monthly basis while work is in progress with a final account on completion unless otherwise agreed on. The account of the Practitioner is due and payable on presentation with the clear understanding that expenditures incurred by the Practitioner will be payable against the prescribed interest rate(s) in terms of the relevant legislation, calculated from the date that the expenditure(s) was incurred by the Practitioner. The Practitioner retains the right to charge interest at a rate of 9% per annum or as specifically amended from time to time on any outstanding and arrear amounts, excluding expenditures.
4.7 Time based attendances are determined in accordance with the national and international standard for billing of legal fees, per 6 minutes or part thereof.
4.8 The Practitioner is entitled to request a deposit upon the acceptance of the mandate from you and also to request additional deposits from time to time.
4.9 The Practitioner may utilise the deposit paid to him/her by you, wholly or partially, to cover any payments due by you either during or upon the termination of the period of mandate.
4.10 You hereby irrevocably authorize the Practitioner to claim back any fees and/or expenses payable, or any portion thereof, from any funds belonging to the client as held in a trust account.
4.11 In providing legal services to you, you hereby authorise us to incur disbursements on your account.
4.12 Unless otherwise specified, we may at our discretion, engage advocates on your behalf.
4.13 Our accounts are payable on presentation.
5. PERSONNEL
You are at all times welcome to contact the Practitioner responsible for your matter and any Practitioner at our firm, even if he or she is not directly personally involved in a particular matter.
6. FEE ESTIMATES
6.1 We will gladly provide fee estimates upon your request. Kindly note that fee or cost estimates serve as a guide to assist you in budgeting and we do not bind ourselves to the amounts contained therein. An estimate is not a quotation for work to be done on a matter unless this is specifically agreed in writing.
6.2 If the actual fee is less than a fee estimate, we charge the actual fee. If it transpires that a fee estimate is too low, we will advise you timeously.
7. TRUST ACCOUNT
We maintain a trust account for all funds that we receive from clients (except money received for payment of our invoices). In the event that we hold significant funds on your behalf and, upon receipt of your instruction and if you provide the required documentation, we will lodge such funds in an interest bearing deposit with a bank, the interest accruing to your account. In appropriate circumstances, we will charge an administration fee.
8. INFORMATION
In providing our services we rely upon information and instructions provided by you without independent verification. It is vital that you make us aware of anything that may affect our services. We will also be relying upon the accurateness and completeness of all information that is available from public sources and information that may be furnished to us on your behalf or at your request by third parties.
9. CONSENT REGARDING THE PROCESSING OF PERSONAL INFORMATION
9.1 By signing these Terms of Engagement, you consent to –
9.1.1 the collection of your personal information by us or for us by a third party for purposes of performing our obligations in terms of this agreement, complying with the Financial Intelligence Centre Act 38 of 2001, or complying with any other legal obligation imposed on us;
9.1.2 the processing and further processing of your personal information by us, any of our subcontractors, or any third party which includes, but is not limited to, counsel, correspondents, sheriffs, court staff, Master of the High Court, banks, South African Revenue Service, tax practitioners, taxing consultants, consulting attorneys, tracing agents or Company and Intellectual Property Commission search works, as is required by law, or for performing of our obligations in terms of this agreement or as is required for the applicable legal process;
9.1.3 the collection of your information from any other source to confirm and/or supplement the personal information that you have provided to us;
9.1.4 the retention of your personal information (even after your matter has been completed) for as long as permitted, for legal, regulatory and marketing purposes;
9.1.5 authorise us to make use of the personal information provided by you for purposes of collection of debt in the case of non-payment of fees; and
9.1.6 you agree to comply with our firm’s Privacy Policy, where it imposes an obligation on you.
9.2 Notwithstanding any of the provisions contained in clause 9.1, our firm’s Privacy Policy and the Protection of Personal Information Act no. 4 of 2013 (“POPIA”) always apply when we process your personal information.
9.3 Save in the event of our gross negligence, you indemnify us against any and all liability whatsoever arising from our failure to comply with any statutory obligations contained in POPIA.
10. LEGAL SYSTEM
10.1 Our relationship with you is governed by South African law.
10.2 We are only qualified to practice South African law. We are on occasion called upon to express a view on foreign law and documents governed by foreign law and/or to prepare documents to be governed by foreign law. If we do assist you in relation to a matter governed by foreign law, such assistance does not constitute legal advice and we do so on the basis that we do not accept responsibility in relation to your position under that foreign law, or otherwise. In this regard, we advise you to obtain legal advice from a legal practitioner duly admitted to practice law in the relevant jurisdiction.
10. LEGAL SYSTEM
10.1 Our relationship with you is governed by South African law.
10.2 We are only qualified to practice South African law. We are on occasion called upon to express a view on foreign law and documents governed by foreign law and/or to prepare documents to be governed by foreign law. If we do assist you in relation to a matter governed by foreign law, such assistance does not constitute legal advice and we do so on the basis that we do not accept responsibility in relation to your position under that foreign law, or otherwise. In this regard, we advise you to obtain legal advice from a legal practitioner duly admitted to practice law in the relevant jurisdiction.
13. COMPLAINTS
13.1 If you have a complaint about our services or charges, you may refer your complaint to any Practitioner at our firm.13.2 We confirm that our firm’s procedure for handling complaints by clients is designed to ensure that a complaint is dealt with both fairly and promptly.
14. DISPUTES
14.1 We support alternative dispute resolution.
14.2 In the unlikely event of a dispute of whatsoever nature arising from, or in connection with, our engagement, the following will apply:
14.2.1 We will promptly engage with you in order to mediate the dispute;
14.2.2 If mediation is not suitable in the circumstances or in the event that mediation is unsuccessful, the dispute will be determined by way of arbitration and in accordance with the rules of the Arbitration Foundation of Southern Africa (“the rules”). The arbitration proceedings will be conducted by an arbitrator or arbitrators nominated in respect of the rules and such arbitration will take place in Cape Town.
16. OUR DETAILS
Shields Attorneys, a personal liability company, regulated under the Attorneys Act 53 of 1979.
Practice Registration number: 61964
VAT number: 4820146563
Registered address: Suite 3005, Third Floor, One Thibault, Thibault Square, Corner Long Street and Hans Strijdom Avenue, Cape Town, 8001