THE ATTORNEY’S TRUST ACCOUNT
An essential cornerstone of the Attorneys’ profession is the client-centric approach taken on all matters involving the public. Several indicators to support this approach are seen in the establishment of the various regional law societies, the mandatory registration of all attorneys with these law societies, the compulsory registration of all attorneys’ practices with the Attorneys’ Fidelity Fund and the statutory requirement for the opening and administering of the Attorney’s Trust Account.
In this article, we are going to focus on the Attorney’s Trust Account and the implications of such an account on the attorney and client relationship.
The primary piece of law that governs the conduct of Attorneys has been the Attorneys Act, 1979. The Legal Practice Act, 2014 has been put into law in recent times yet with a vast number of its provisions being suspended therefore we will not focus on the Legal Practice Act, 2014.
Section 78(1) of the Attorneys Act, 1979 (the Act) requires any attorney who intends to receive money from the public to have an Attorney’s Trust account opened with a banking institution within South Africa. Therefore, all legally operating attorneys’ firms, including Risenga Attorneys, have an Attorney’s Trust account opened at one or more banking institution in order to receive and administer funds received from the public.
It is important to stress that the capital amount deposited by a client into the trust account of an attorney remains the property of the client. The attorney merely is a custodian of the funds and invests the money in terms of the clients wishes. The attorney will only be entitled to access the funds held in trust once he has provided legal services to the client or has incurred expenses on behalf of the client.
Therefore, when we at Risenga Attorneys request you to deposit a certain amount of money for us to carry out your mandate we will place this deposit into our Trust Account and will only take the amount due to us for work we have executed and to pay any foreseeable immediate expenses. This ensures that we provide efficient legal services to you with minimal disruptions.
Section 78(2)(a) of the Act provides that an attorney may also place funds received from a client in any interest-bearing account with a financial institution. The interest accrued on an account opened in terms of this section must be paid over to the Attorneys Fidelity Fund through the relevant law society. In the instance of Risenga Attorneys, this would mean that the interest accrued in terms of this account will be paid to the Fidelity Fund through the Law Society of the Northern Provinces.
On the other hand, section 78(2A) of the Act provides that funds received from a client may be invested in any interest-bearing account with a financial institution for the benefit of the client. This essentially means that a client may request any attorney to invest her funds in an account opened and administered in terms of section 78(2A) for her benefit. The interest accumulated in this fashion may be utilized by the client indiscriminately.
In terms of the Act it is mandatory for an attorney administering funds in trust to have detailed records of how these funds were invested and utilized. This means that a client may request his attorney to provide her with a statement of account of her funds held in trust and the attorney is obligated to provide such a statement.
Should a client be convinced that funds held in trust by an attorney have been misused or stolen, the client has the right to report such an attorney to the relevant regional law society to which the firm is registered with.
Since all legally operating law firms have to also register with the Attorneys Fidelity Fund, which is essentially the attorneys profession insurance against professional negligence, any client who has been a victim of misappropriated trust funds can approach the Fidelity Fund to obtain relief for proven damages suffered as a result of the misappropriation of funds.
At Risenga Attorneys we are determined to ensure that all funds that you may want to place in trust with us will be administered with integrity, transparency and professionalism. With us you can have peace of mind knowing that your funds are taken care of and we will only take what is rightfully due to us.
In conclusion, you can have peace of mind that in us striving to provide just outcomes for you, your funds will be safe.
Law Society of the Northern Provinces:
Tell: (012) 338 5800
123 Paul Kruger Street
Attorneys Fidelity Fund: