Law Society Rules, 2012

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LESOTHO

Government Gazette

Vol. 57                                Friday - 13th April, 2012                              No. 45

CONTENTS

No.                                                                                                           Page

LEGAL NOTICE 50

Law Society Rules, 2012 .......................................................................  739

OTHER NOTICES (See Supplement of the Gazette)

Published by the Authority of His Majesty the King

Price: M34.00


LEGAL NOTICE NO. 50 OF 2012

Law Society Rules, 2012

Arrangement of Rules

Rules

PART I - PRELIMINARY

1.                Citation and commencement

2.                Interpretation

3.                Office of the Society

4.                Membership of the Society

5.                Certificate fees

6.                Finance

7.                Annual financial reports, accounts and audit

PART II - MEETINGS OF THE SOCIETY

8.                Ordinary meetings of the Council

9.                Annual General Meetings

10.            Procedure at the annual general meetings

11.            Special General Meetings

12.            Procedure at the Special General Meeting

13.            Procedures common to all general meetings

14.            Rules of debate at all general meetings

PART III - PROFESSIONAL CODE OF ETHICS OF MEMBERS

15.            Duties of practitioners in connection with briefs and litigation

16.            Interviewing persons likely to be opponents witnesses in civil proceedings

17.            Interviewing persons likely to be opponents witnesses in criminal proceedings

18.            Interviewing judicial officer

19.            Ill-feeling and personalities between legal practitioners

20.            Judgement reserved - further material to be placed before court

21.            Appearance in court


22.               Allowances

23.               Tariffs

24.               Assessment of fees

25.               Accounting Records

26.               Generally accepted accounting practice

27.               Distinction between trust account and business account transaction

28.               Retention of accounting records

29.               Trust money to be kept separate from other money

30.               Accounting to clients

31.               Payments of amount due to clients

32.               Deposit of trust money

33.               Transfer from trust investment account to trust account

34.               Amount received in advance to be deposited to trust account

35.               Withdrawal from trust account

36.               Trust cheques to be made to a specific payee

37.               Trust Account Investments

38.               Notification of trust accounts and the furnishing of particulars

39.               Misconduct

40.               Disciplinary rule

41.               Practitioners who cease to practice and winding-up of abandoned practices

PART IV - GENERAL PROVISIONS

42.               Seniority

43.               Pupilage

44.               Pupil Supervision System

45.               Appearance by pupils

46.               Articles of clerkship and contracts of service

47.               Repeals


LEGAL NOTICE NO. 50 OF 2012

Law Society Rules, 2012

Pursuant to section 12 of the Law Society Act 19831 ,I,

ZWELAKHE MDA President of the Law Society, make the following rules -

PART I - PRELIMINARY

Citation and commencement

1.                   These Rules may be cited as the Law Society Rules 2012 and shall come into operation on the date of publication in the Gazette.

Interpretation

2.                   In these rules, unless the context otherwise requires - “Act” means the Law Society Act of 1983;

“articles of clerkship” means a contract in writing whereby any person is bound to serve an attorney for specified period in accordance with the Legal Practitioners Act 1983";

“articled clerk” means any person bound to serve under articles of clerkship or a contract of service;

“chairman” means the chairman for the time being of any meeting of members;

“Council” means the Council of the Society referred to in Section 9 of the Law Society Act 1983;

“disciplinary committee” means a committee established under section 35 of the Legal Practitioners Act 1983 to exercise such disciplinary powers as may have been assigned to it;

“firm” means -

                       

                        (a) a partnership of practitioners;

 

(b)               a sole practitioner practicing for his own account in Lesotho; or

(c)               a professional company who or which conducts the practice of a practitioner;

“inquiry” means an inquiry held by the Council or by a disciplinary committee;

“member” means a member of the Society referred to in section 7(1) of the Act.

“professional misconduct” means unprofessional or dishonourable or unworthy conduct;

“practitioner” means a person admitted to practice as an advocate, attorney, notary or conveyancer in terms of the Legal Practitioners Act 1983;

“Secretary” means a person elected under section 9(1) of the Act; and

“Society” means the Law Society of Lesotho established under section 2 of the Act.

Office of the Society

3.                   The Secretary’s office shall be the office of the Society and any place designated from time to time as such.

Membership of the Society

4.                   (1) A person shall, as soon as he becomes a member, give written notice to the Secretary of his full names, employment and business and postal address.


(2)                A member -

(a)                who may be carry ing on business in partnership or under a firm name for his own account shall send to the Secretary a written statement of the name or names of his partner or partners in such business, the firm name under which the business is carried on and also of any subsequent change in the particulars of partners and business;

(b)                shall, within one month of any change in any of the particulars mentioned under paragraph (a), notify the Secretary in writing of such changes;

(c)                who unreasonably neglects to comply or delays in complying with the requirements of this rule shall be guilty of professional misconduct;

(d)                who fails to pay his annual subscription within one month after it has become due, or within such further time as the Council may grant, will cease to be a mem­ber subject to the provisions of section 7(6)(b) of the Act; and

(e)                whose subscription fee is in arrear shall not be entitled to vote or be present at any general meetings.

(3)                The registers of members which are kept by the Secretary shall for all purposes of the Society be considered to contain a correct list of mem­bers and their respective business addresses, and any letter or notice which shall be sent by the Council or by the Secretary in terms of these rules by post to any member addressed to him at such business address shall be deemed to have been duly and properly sent and the member shall be deemed to have received the letter or notice at the time when such letter or notice would have reached him in the ordinary course of post.

(4)                A member’s subscription becomes due on the first day of the financial year except in the case of a newly admitted member in which case his subscription becomes due on the date of his admission as a member.


Certificate fees

5.                  The fees payable to the Society for any certificate issued by the Secretary shall be M 100.00 and no certificate may be issued unless a member has paid all his dues.

Finance

6.                   (1) The subscriptions, fees, levies or other charges payable to the Society shall be those fixed by the Council in terms of the Act, Legal Practitioners Act and these rules.

(2)               All monies due to the Society may be recovered by the Council by the institution of legal process.

(3)               The financial year of the Society shall end on the 31st day of March of each year.

Annual financial reports, accounts and audit

7.                   (1) The Council shall cause proper accounts to be kept of the income and expenditure of the Socicty, which accounts shall be closed annual­ly on the 31 st day of March where after the statements and balance sheet to be submitted to the next annual general meeting shall be compiled.

(2) If any vacancy shall arise during the year in the office of the auditor through death, resignation, absence or otherwise, such vacancy may be filled by the Council.

PART II - MEETINGS OF THE SOCIETY

Ordinary meetings of the Council

8.                  (1) The Council shall hold ordinary meetings at least once every month unless in the opinion of the President or the Secretary, there are suffi­cient matters on hand which require urgent attention or decision.

(2) Any 2 members of the Council may, in writing, request the Secretary to convene a special meeting of the Council stating the business to be considered and the meeting shall be called by giving at least 5 days' notice

Text Box: IIwm

in writing specifying the business to be considered at that meeting.

(3)                The President may at any time convene a special meeting on such notice and in such manner as he may determine.

(4)                A resolution passed at any meeting of the Council shall not be rescinded at any subsequent meeting unless notice of intention to propose such rescission has been given in the notice of the meeting.

(5)                The minutes of the proceedings of every meeting of the Council or any committee shall be kept by the Secretary or, in the event of his absence, by any person appointed for the occasion by the chairman.

(6)                A fair copy of such minutes shall be -

(a)                recorded in book form; and

(b)                signed by the chairman after confirmation at the next meeting of the Council or committee.

Annual General Meetings

9.                   (1) The Council shall convene an annual general meeting of its members between 1st April and 30th June (inclusive) every year.

(2)                The Secretary shall post to every member of the Society a writ­ten notice of ever)'' annual general meeting at least 7 days before the day appointed for the holding of the meeting such notice shall state the business to be transacted at such meeting.

(3)                The business to be transacted at the annual general meeting shall be -

(a)                the Council^ report for the past year;

(b)               the consideration and adoption with or without amend­ments of the income and expenditure account and the balance sheet for the past financial year;

(c)                the election of Council members for ensuing year;


(d)                the election of auditors and the determination of their remuneration;

(e)                any business which the Council may wish to submit to the meeting; and

(f)                 any special business of which due notice shall have been given by a member as provided under these rules.

(4)                Members of the Council shall be elected only from candidates who have been nominated as provided under this rule.

(5)                Only members of this Society who practicc within the Kingdom shall be eligible for election to the Council.

(6)                Any member who desires to nominate a candidate for election as a member of council at the annual meeting shall, after the notice convening such meeting has been posted as set out under subrule (2), but at least seven days before the date on which the meeting is to be held, lodge with the Secretary a written nomination form signed by him as the proposer and by another member as the seconder in which they nominate a candidate, specify­ing the position in respect of which he is a candidate,

(7)                The nomination form mentioned under sub-rule (6) shall be endorsed and signed by the candidate that he accepts such nomination.

Procedure at the annual general meetings

10.                (1) The proceedings at the annual general meeting shall, unless varied by the Chairman, be as follows -

(a)                the President shall preside over the meeting or in his absence the Vice- President or in his absencc a member of the Council nominated by the Council to act as chairman;

(b)                the minutes of the preceding annual general meeting and of all intervening special general meetings shall be read and confirmed subject to corrections and amend­ments;


(c)                the annual report shall be considered and matters aris­ing from the report shall be open for discussion;

(d)               the statements of account and balance sheet of the Society as signed by the auditors shall be submitted to the meeting for consideration and their remuneration shall also be determined;

(e)                the election of auditors shall take place and their remu­neration shall be determined;

(f)                any business or matter, which the Council may deem necessary to introduce, shall be discussed and dealt with and if necessary the opinion of the meeting shall be taken into account;

(g)               any member shall have the right to bring forward, for the consideration and decision of the meeting, any business or matter which may be lawfully dealt with at such meeting or to give notice of motion of, or relating to, any business which he intends to bring forward at a future general meeting; and

(h)               the chairman shall then announce the names of the can­didates nominated for election as members of the coun­cil and if the candidates so nominated are not more than the number of the vacancies the persons so nomi­nated shall be deemed to be duly elected and declared as such by the chairman.

(2)                Where the number of nominated candidates exceeds the num­ber of vacancies, any of the candidates in excess of the number to be elected, may withdraw.

(3)                Where candidates in excess of the number to be elected fail to withdraw7, an election shall be conducted by ballot papers as provided for under these rules or such other procedure which the meeting may adopt.

(4)                The chairman shall, before proceeding to an election by ballot papers, appoint two scrutineers from among the members present, not being candidates or proposers or seconders of candidates, to receive and examine the ballot papers and to certify to the results of election.

(5)                The ballot papers shall be in such form as directed by the Council and shall state the number of vacancies to be filled, the names of the candidates and the manner in which the voting shall take place.

(6)                Each member who votes shall vote for the number of vacancies to be filled.

(7)                The scrutineers shall report in writing to the meeting and the report shall be signed by them and contain the following particulars -

(a)                the total number of ballot papers received;

(b)               the number of the ballot papers rejected; and

(c)                the total number of votes in favour of each candidate.

(8)               The report of the scrutineers shall be read to the meeting by one of them and such report shall be conclusive notwithstanding any formal irreg­ularity.

(9)                In the event of a tie between two or more candidates the ques­tion as to which candidate shall be declared to be elected shall be decided by lot to be drawn in such manner and at such time and place as the chairman may direct.

Special General Meetings

11. (1) The secretary shall be bound to call a special general meeting of the Society when -

(a)                ordered so to do by the Council; or

(b)               requested to do so in writing by not less than 7 mem­bers of the Society stating the business to be submitted to the meeting.


(2)                The Secretary shall post notice of every special general meet­ing to every member at least 14 clear days before the day fixed for the holding of the meeting and the notice shall state the business for which such meeting is called.

(3)                The Council may, however, in urgent cases, in which it shall be the sole judge, call such a meeting at a shorter notice than is provided under subrule (2).

(4)                No business shall be transacted at any special general meeting other than the business for which meeting has been specially called.

Procedure at the special general meeting

12.                (1) The proceedings at a special general meeting shall as far as possible be conducted in a manner similar to those laid down for the conduct of an annual general meeting.

(2) The chairman shall have powers similar to those which he would have at an annual general meeting.

Procedures common to all general meetings

13.                (1) 40% of practicing members present at the meeting shall form a quorum.

(2) If on the day and at the time appointed for the holding of any general meeting, no quorum is present nor within 15 minutes after such time, no business shall be dealt with at the meeting, and the meeting shall be -

(a)                adjourned for a period of not less than 7 days;

(b)                if there is still no quorum the meeting shall be adjourned for a further period of not less than 7 days; and

(c)                if after 2 adjournments there is not a quorum present, the meeting shall proceed to business:

Provided, however, that if such meeting is a special general meeting requisi-

tioned by members in accordance with rule 9(1 )(b) and there is no quorum present at the meeting held after the first adjournment, the meeting shall be considered dissolved:

Provided further that if the day to which a general meeting shall be adjourned is a public holiday, the meeting shall be held on the next succeeding day not being a public holiday or Sunday.

Rules of debate at all general meetings

14. (1) In cases where debate arises on any subject, members shall not be permitted to speak more than once on that subject, except by way of expla­nation:

Provided that the mover of any motion shall be allowed to speak in reply, after which the debate shall be closed.

(2)               The mover of an original motion shall not without the consent of the Chairman speak for more than 15 minutes and no other speaker includ­ing the mover in reply shall, without the consent of the Chairman, speak for more then 10 minutes.

(3)               After the motion has been seconded, and any member who desires to speak on the motion has done so and the mover of the motion has replied if he so desires, the mover or any other member may request the Chairman without a speech to put the motion to the vote and the Chairman shall do so.

(4)               The mover of a motion for the adjournment either of the meet­ing or of the debate, or that the motion be put, or that the meeting so proceed to the next business, may speak for not more than five minutes and such motion shall be seconded without a speech.

(5)               Any one member (the mover of the original motion or amend­ment under discussion to have the preference) may speak for five minutes in opposition to any such seconded motion, which shall then be put by the Chairman to vote without debate.

(6)               Whenever an amendment to an original motion has been moved and seconded, no second or subsequent amendment shall be moved


until the first amendment has been disposed of and if an amendment is adopt­ed, the motion as amended shall -

(a)                take the place of the original motion; and

(b)                become the question on which any further amendment may be moved.

(7)                A member shall not move more than one amendment on any

motion.

(8)                The chairman may call the attention of the meeting to be con­tinued and any irrelevant tedious repetition, unbecoming language or any breach of order on the part of a member out of order shall be stopped on the directive of the chairman.

(9)                Whenever a notice of motion has been given by a member and included in the notice convening a general meeting and the member who gave the notice is not present and has not withdrawn it, any member then present may, with the consent of the chairman, adopt it as his own, and move it as if the notice had been given by him.

(10)            Except where otherwise provided in these rules, all matters dis­cussed at general meetings shall be decided by a majority of members voting.

(11)             Except in cases of a contested election of members of the Council, the chairman of the meeting shall, in the event of an equality of votes, have a second or casting vote in addition to his vote as member.

(12)            The Secretary' shall keep the minutes of the proceedings of every general meeting, or in his absence, by any other persons appointed for the occasion by the chairman.

(13)            A fair copy of which minutes shall -

(a)                be made in a minute book to be kept for the purpose; and

(b)                be corrected if necessary and thereafter signed as cor­rect by the Chairman at the next Council meeting.


(2)                 Only members present at such meeting shall be entitled to vote thereat and each member shall have one vote only save for the Chairman’s casting vote referred to under subrule (11).

(15) Except as provided for the election of councillors and, save if the meeting should require a secret ballot, the method of voting shall be deter­mined by the chairman.

PART HI - PROFESSIONAL CODE OF ETHICS OF MEMBERS Duties of practitioners in connection with briefs and litigation

12.               (1) Practitioners shall, at all times-

(a)                maintain the highest standards of honesty and integrity towards all those with whom they comc into contact;

(b)                make every effort to ensure that their conduct is above reproach in the view of reasonable, fair minded and informed persons;

(c)                behave in their professional and private life in a proper manner and refrain from any act that affects the trust in or respect for the profession;

(d)               treat the interests of their clients as paramount, subject always to their duties to the Court and the interests of justice, to observe the law and to maintain ethical stan­dards;

(e)                while acting with all due courtesy to the tribunal before which they are appearing, fearlessly uphold the inter­ests of their clients without regard to any unpleasant consequences either to themselves or other persons;

(f)                 in conducting a case on behalf of the client, maintain order, act in accordance with commonly accepted decorum, remain patient and courteous to the Court, other legal practitioners, parties and the public;


(g)               honour an undertaking given in the course of their practice, until the undertaking is performed, released or executed;

(h)               not place themselves in a position in which their clients’ interests conflict with those of themselves, their partners or another client;

(i)                 maintain confidentiality regarding the affairs of their present or former clients, unless otherwise required by law;

(j) respect the freedom of clients to be represented by the lawyer of their choice and give their clients unbiased opinion as to the likelihood of success of their case and shall not generate unnecessary work; r

(k) account faithfully for any of their clients’ money which come into their possession, and shall keep it separate from their own money;

(1)               uphold the integrity and independence of the profes­sion and maintain sufficient independence which allows them to give their clients unbiased advice;

(m) be accessible to any member of the public W'ho wishes to impart information relative to the protection of any accused person’s fair trial rights without hindrance and interposition of anyone, subject always to the interests of justice; and

(n) use their best efforts to carry out work in a competent and timely manner, and not take on work which they do not reasonably believe they will be able to carry out in that manner.

(2)                A practitioner has the same privilege as his client of asserting and defending the client’s rights and of protecting his liberty or life by the free and unfettered statement of every fact, and the use of every argument and observation, that can legitimately, according to the principles of law, conduce


to this end and any attempt to restrict this privilege should be jealoush watched.

(3)              A practitioner’s duty to divulge to the Court material facts o\ which he has knowledge is governed on the one hand by his overriding dut\ not to mislead the Court and on the other by his duty not to disclose to any per­son including in a proper case the Court itself, information confided to him as practitioner and the application of this principle in particular circumstances and the question of when a practitioner may be said to have knowledge of fact:- may be difficult to resolve, and in such cases a practitioner should refer to the Council for guidance.

(4)              The Society and its members shall at all times assist and pro­tect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness.

(5)               Practitioners are entitled to a reasonable fee for their wrork. A demand for fees should not be a condition of the lawyer carrying out the nec essary work if made at an unreasonable time or in an unreasonable manner.

(6)              A legal practitioner who reasonably believes that a colleague has been acting in a manner which is unbecoming of a lawyer should raise th, matter with that colleague and with the Council.

Interviewing persons likely to be opponents witnesses in civil proceeding*

16.                (1) A litigant’s legal representatives are entitled, at any time an. for the purpose of obtaining information which may assist the litigant to pre pare or to present any part, aspect or stage of his case, to interview any perso whom they have reason to believe is in possession of such information an . they cannot be deprived of this right by any of the circumstances that the othe side has -

(a)                subpoenaed such persons to testify in the litigation o: otherwise arranged for him to do so;

(b)               interviewed or arranged to interview him in connectio with the litigation; or

(c)                has obtained or arranged to interview7 him in connec-


tion with the litigation, or has obtained or arranged to obtain a statement from him in that connection.

(2)               The limitations to the right under subrule (1) are the following -

(a)                when the litigation has commenced, but before such person has testified, an interview with him may not be held or, if it has started, proceed further once it is dis­covered that the other side has taken any of the above steps, unless the other side’s legal representatives have been timeously notified by whatever means are ade­quate in the circumstances, of the intention to hold or to proceed with the interview; and

(b)    after such person has testified in the litigation as a wit- | ness for the other side, but before the litigation has

finally been determined, the witness shall not be inter­viewed in the absence of the other side’s legal repre­sentatives, unless the latter, having been timeously notified by whatever means are adequate in the circum­stances of the intention to hold the interview, have declined to attend the interview.

(3)                In both cases provided for in subrule (2), the other side’s objec­tion to the interview does not preclude the litigant’s legal representative from holding or proceeding with it.

Interviewing persons likely to be opponents witnesses in criminal proceedings

17.                (1) The legal representatives of an accused person shall not, at any time after the accused person has been arrested or charged and before he has been convicted or acquitted in respect of the charge against him, interview any other person in connection with such charge or the evidence relating to the case, whom they know to be a witness for the prosecution in relation to such charge unless they -

(a)                have obtained the permission of the Director of Public Prosecutions or of the prosecutor to do so; and


(b) comply with any conditions which either the Director of Public Prosecutions or the prosecutor may have imposed when granting such permission, unless the court orders otherwise as provided by subrule (2).

(2) In the event of the Director of Public Prosecutions or the pros­ecutor refusing permission sought or imposing conditions which cannot rea­sonably be fulfilled, the legal representatives of an accused person shall be entitled to interview a state witness if so authorized by a competent court ana subject to such conditions as may be imposed by that court.

Interviewing judicial officer

18.               It is undesirable, except in special circumstances, for a practitioner in a contested case in the absence of his opponent and without the latter’s con­sent, to seek to interview the judicial officer who is hearing or is about to hear the case.

Ill-feeling and personalities between legal practitioners

19.               The clients, not practitioners, are the litigants and the following per­sonalities should be scrupulously avoided -

(a)                personal colloquies between practitioners which can cause delay and promote unseemly wrangling;

(b)               the ill-feeling existing between clients which should not be allowed to influence practitioners in their con duct and demeanour towrards each other or towards suitors in the case; and

(c)                in the trial of a cause improper allusion to the personal history or personal peculiarities and idiosyncrasies of practitioner on the other side.

Judgement reserved - further material to be placed before court

20.               A practitioner shall -

(a)                not attempt to place further material, of whatever


nature, before the court after judgement has been reserved without the consent of his opponent which consent should not be unreasonably withheld, particu­larly when the request made is to refer the court to authorities which will assist it in giving a correct judge­ment; and

(a)                where consent is refused, request the court, through the Registrar, to receive the further material or, where appropriate, to make an application to re-open the case.

Appearance in court

13.               (1) A practitioner shall -

(a)                when appearing in Court, wear clothes which are suit­able to be worn under the gown and in court.

(b)               arrange to be introduced to the judge or magistrate before his first appearance before that judge or magis­trate and the introduction should be arranged with the judge’s registrar or clerk of court.

(2)                In attendance at the motion and divorce courts and pre-trial conference held in the Court new practitioners shall sit in the back row bench­es and the front row, in particular, should be left for the more senior members of the Bar.

Allowances

14.                (1) A practitioner shall not make over to, share or divide any por­tion whatsoever of his professional fees with any person other than a practi­tioner in Lesotho, either by way of partnership, commission or allowance or in any manner whatsoever.

(2)                The allowances on his fees or earnings which a practitioner shall be entitled to make to another practitioner in Lesotho with whom he may do business shall not either directly or indirectly exceed one-third of the fees or earnings charged or received on the particular business transacted by the practitioner making the allowance.


(3) Unless otherwise provided in these rules a legal practitione] shall be entitled to the same allowance on fees earned in respect of conveyanc­ing and notarial work, as are received by a notary and conveyancer.

Tariffs

23.               The Council shall issue a tariff of recommended fees from time to time? by means of a ruling as a guideline for the convenience of its members.

Assessment of fees

24.               (1) The Council or any committee appointed by the Council for that purpose shall -

(a)                at the request of any person or practitioner, assess the fees payable by such person to a practitioner;

(b)                on every assessment and with a view to affording the practitioner reasonable and adequate remuneration for the services rendered by him, allow all such fees as appear to it to have been reasonable for the perform­ance of the work concerned, and in so doing shall take cognizance of the following -

(i)                 the amount and importance of the work done:

(ii)               the complexity of the matter or the difficulty or novelty of the work or the questions raised;

(iii)             the skill, labour, specialized knowledge and responsibility involved on the pan of the prac­titioner;

(iv)              the number and importance of the documents prepared or perused, without necessarily hav­ing regard to length;

(v)                the place where and circumstances in which the services or any part of the services were ren­dered;

(vi)             the time expended by the practitioner and the quality of the work done;

(vii)           the importance of the matter to the client;

(viii)         the experience or seniority of the practitioner;

(ix)             any tariff of fees approved by the Society for the sole purpose of serving as a guide to prac­titioners; and

(x)               whether the fees have been incurred or increased through over caution, negligence or mistake on the part of the practitioner.

(c)                at the assessment of any practitioner’s fees -

(i)                 call for the production of such books, docu­ments, papers or accounts which in its opinion are necessary to enable it properly to determine any matter arising upon such assessment; and

(ii)               permit the practitioner and such person to sub­mit their representations and arguments either orally or in writing.

(d)                after receiving representations and arguments under paragraph (c), be entitled to reserve its decision; and

(e)                as soon as it has arrived at its decision, deliver to both the practitioner and such person either by hand or pre­paid registered post, a copy of the fee list submitted for assessment, duly endorsed with the allocatur of the Council or the committee, under the hand of the Secretary:

Provided that, where the decision is that of the committee, either the member or such person, if he objects to the decision of the committee, shall within 10 days after the date of the allocatur and after he has given written notice to the other party of intention to object against such a decision but before taking any esber steps, submit such decision to the Council with a view to having the deci-

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amended or withdrawn, stating in his submission, which shall be in writing, the respects in which he takes objection to the decision and the grounds upon which he claims that amendment or withdrawal of the decision is justified.

(2)               The Council shall, on submission to the Council of an objec­tion in terms of the proviso to sub-rule 1(c), consider the objection and if in its opinion a prima facie case for amendment or withdrawal has been made out, shall, after the objector has been given an opportunity to make further written representations, and the other party an opportunity of replying in writing to those further representations, with a further opportunity to the objector to respond to the reply of the other party, and after the committee’s comments on objection have been obtained -

(a)               reject the objection and confirm the decision of the committee;

(b)               amend the decision of the committee in such manner as the Council may deem just, and substitute its own allo­catur for that of the committee ; or

(c)               withdraw the decision of the committee and substitute its own decision and allocatur for those of the commit­tee.

(3)               The Council shall advise the objector and the other party of its decision in writing.

(4)               The submission to the Council of an objection in terms of the proviso to sub-rule 1(e) shall suspend the decision of the committee and the decision of the Council in terms of sub-rule 1 (f) and (g) shall be deemed to be the decision of the matter in question, and the date of the allocatur shall be the date of the decision of the Council in terms of these rules.

(5)               The Council or the committee shall be entitled in its discretion at any time, to depart from any of the provisions above, in extraordinary or exceptional cases, where strict adherence to such provisions would be inequitable.

(6)               The Council shall fix the maximum raising fee a member may charge for the arrangement and raising of finance.


Accounting Records

25.                (1) A practitioner shall keep in an official language of Lesotho such accounting records as are necessary to reflect in accordance with gener­ally accepted accounting practice the state of affairs and business of the firm and to explain the transactions and financial position of the firm.

(2) Without prejudice to the generality of sub-rule (1) the account­ing records shall -

(a)                show assets and liabilities of the firm;

(b)                contain day to day entries of all moneys received and paid by it on and from its own account; and

» *

(c)                contain particulars and information of all moneys received, held and paid by it for and on account of any person.

Generally accepted accounting practice

26.                In determining what is meant by “generally accepted accounting

practice” regard shall be had, inter alia,to any rulings of the Council pub­lished to members.

Distinction between trust account and business account transaction

27.                The accounting records shall distinguish in readily discernible form between business account transactions and trust account transactions.

Retention of accounting records

28.               A firm shall retain its accounting records -

(a) for at least five years from the date of the last entry

recorded in each particular book or other document of record; and

except with the prior written consent of the Council, or when removed under other lawful authority, at its main


office or a branch office and in the case of a branch office, the records must relate to any part of the firm’s practice conducted at that branch office.

Trust money to be kept separate from other money

29.               A practitioner shall in no circumstances deposit or credit trust money to a business banking account and money other than trust money which is in a trust banking account at any time shall be transferred to a business banking account without delay.

Accounting to clients

30.               (1) Every firm shall, within a reasonable time after the perform­ance or earlier termination of any mandate, account to its client in writing and each such account shall contain -

(a)                details of all amounts received by it in connection with the matter concerned, properly explained;

(b)               particulars of all disbursements and other payments made by it in connection with the matter;

(c)                fees and other charges charged to or raised against the client and, where any fee represents an agreed fee, a statement that such fee was agreed and the amount so agreed; and

(d)               the amount due to or by the client.

(2)              The firm shall retain a copy of each account under sub-rule (1) for not less than five years.

Payments of amount due to clients

31.               A firm shall, unless otherwise instructed, pay to its client any amount due to him within a reasonable time.


Deposit of trust money

32.               A firm shall promptly on the date of its receipt, or the first banking day following its receipt on which it can be banked, deposit in its trust banking

account all moneys received by it for the account of any person.

¥ •                             I

Transfer from trust investment account to trust account

A firm shall ensure -

(a)                prompt deposit of any amount withdrawn by it from a trust investment account in its trust banking account;

(b)                that trust balances do not exceed trust monies;

(c)                that no trust account is to have a debit balance;

(d)                the total amount of money in its trust banking account, in its trust investment account and held by it as trust cash is at no time less than the total amount of the cred­it balances of the trust creditors shown in its account­ing records; and

(e)                that no account of any trust creditor is in debit; save in so far as it relates to a trust investment account.

Amount received in advance to be deposited to trust account

34. A firm shall ensure that amounts received in advance to cover a prospective liability for services to be rendered or disbursements (including counsel’s fees) to be made are deposited forthwith to the credit of its trust banking account

Text Box: 35. (1) made only -Withdrawal from trust account

A firm shall ensure that withdrawals from its trust account are


 

 


(a)                to or for a trust creditor; or


(a)                as transfers to its business banking accounts, provided that such transfer shall be made only in respect of money due to the firm.

(2)                 No transfer from its trust account to its business banking account is made in respect of any disbursement, including counsel’s fees or fees of the firm until -

(a)                the disbursement has actually been made by the firm; or

V

(b)               the fee has been correctly debited in its accounting records.

Trust cheques to be made to a specific payee

36.               A firm shall ensure that any cheque drawn on its trust banking account shall be made payable to, or to the order of, a specified payee.

Trust Account Investments

37.               A firm which invests funds on behalf of any person without that per­son’s prior written instructions specific or general shall -

(a)                not invest such funds otherwise than in a trust savings or other interest- bearing account with a financial insti­tution in Lesotho; and

\

(b)               obtain that person’s written confirmation of the invest­ment as soon as possible or notify him as soon as pos­sible thereof in writing.

Notification of trust accounts and the furnishing of particulars

38.               Every firm shall, without delay, notify the Council in writing of the name and address of the bank or banks at which its trust banking account or accounts are kept and shall thereafter without delay notify the Council of any change in the name and address of such bank or banks.


Misconduct

39. (1) A legal practitioner or articled clerk shall be guilty of miscon­duct if he -

(a) “touts” which, without derogating from the generality of the meaning of the word “touting”, means -

(i)                 accepting or agreeing to accept or offering to accept remuneration for professional work at any tariff or scale of charges other than those fixed by law, regulation or rule, or docs any work gratuitously for any person for the sole reason that such person is a shareholder, part­ner, director, owner or employee of any firm, business, company or institution; or

(ii)               by his conduct directly or indirectly represent­ing or permitting the impression to be created that he is prepared to do professional work at any other tariff or scale of charges than those fixed by any law, regulation or these rules:

Provided that-

(aa) a legal practitioner or articled clerk

shall be entitled to act proamico for any employee of the firm;

(bb) it shall not be considered as touting if any legal practitioner negotiates with his client for another fee than the one prescribed by any tariff of fees; and

(cc) any legal practitioner or articled clerk may prove that he did not have the intention to attract work or business; or

(iii)             procuring or allowing his name or that of any firm in which he is interested to appear in any


client’s advertisement (other than a prospectus, offer for sale statement issued in accordance with the laws or regulations relating to compa­nies or the regulations of a recognized stock exchange) indicating that he or his firm holds the appointment of attorney, notary or con­veyancer to such client or any other person or company;

(b)               contravenes sections 30 and 31 of the Legal Practitioners Act 1983;  ^

(c)                contravenes any provision of these rules, including the Professional Code of Ethics;

(d)               enters into partnership with or being in the employ of any person who is not a practitioner for the perform­ance of any work or business proper to the calling of a practitioner or commonly associated with that busi­ness, or the holding or acquisition of shares in a com­pany established mainly for the performance of any work or business commonly associated with such call­ing:

Provided however, that for the purposes of this rule the performance of any work or business proper to the calling or business of an auctioneer or general agent shall not be commonly associated with the calling of a practitioner:

*

Provided further that the holding or acquisition of shares in a company as aforesaid shall be permissible so long as the member’s right to undertake agency work of any kind is not interfered with by reason of his holding or acquisition of such shares, and so long as the company does not bear the name of the member or the name of the firm under which such member is practicing;

(e)               knowingly in any way assists, allows or enables an unqualified person to charge, recover or receive any fee, or derive any remuneration for, in respect of or in connection with the preparation or execution of any document, or the performance of any professional work which only a practitioner is qualified by law to

prepare, sign, execute, attest or perform, or in any way conniving at any arrangement, agreement or under standing whatsoever whereby any such fee or remuner­ation is, or shall be, charged, recovered or received by any such unqualified person;

(0 withholds the payment of trust moneys without lawful

excuse;

(g)                publicises his practice except as prescribed in these rule;

(h)                inserts or allows to be inserted on his letterheads, pro­fessional cards or elsewhere any appointments he may hold or the name of his clients;

(i)                 makes use of any stationery or printed material of any description w'hich in the opinion of the Council does not befit the dignity, prestige and status of the profes­sion;

(j) without previous approval of the Council -

(aa) publishes under his name articles on legal subjects in any publication other than recognized legal journals; or

(bb) in his professional capacity appears on television or broadcasting on radio or television or lectures to lay audiences on any legal subject;

(k) opens or maintains any office which is not in the nor­mal course of practice continuously under the direct and personal supervision of a legal practitioner:

Provided that such requirement of continuous, direct and personal supervision may in its discretion be relaxed or waived by the Council on such conditions as it may determine:


Provided further that such relaxation or waiver may in its discretion be revoked by the Council;

(1) keeps the accounts of his business as a practitioner in the books of account utilized in connection with any other business in which he may be interested jointly with a person not being a practitioner;

(m) remunerates any employee, not being a practitioner, by way of a share in the profits of his business as a practi­tioner:                                                                ^

Provided that it shall not be deemed to be a contravention of this rule if a prac­titioner employs an unqualified person in connection with the non-profession­al part of his business and remunerates him wholly or in part on a commission basis;

(n) entering into or continuing to be a party to any contract or arrangement with a person not being a practitioner the effect of which is to place the practitioner under such control on the part of such unqualified person as may interfere with his independence as an Officer of the Court;

(o) practicing his said professions or any of them in any office of which he, his firm or his partners are not the sole lessees or owners, or in offices which have inter­communication with an office occupied by unqualifiec persons;

(p) willfully and persistently neglects or refuses to reply to correspondence in connection with matters entrusted to a practitioner and to the Secretary’s letters when called upon for an explanation of conduct;

(q) uses excessively signboards on which professional qualifications are displayed and discloses on the sta­tionery of his practice or a practice in which he is a partner, the name of any practitioner employed by him or a partnership in which he is a partner unless he indi-


cates that such employee is not a partner in the said practice by the use of the words “Assisted by” or “Consultant” immediately before or the word “Professional Assistant” or “Consultant” immediately after the name of such practitioner:

Provided that the word “Consultant” shall be so used only where the practition­er to whom it refers has been a partner of such practice or if such practitioner is an employee of such practice;

                         (r) fails whenever so required or called upon by the

Council to furnish to the Council within 14 days of receipt of such request, full information concerning the name, style or firm under which his or their practice is conducted, including the grounds upon which any name or names appearing in the name, style or firm of the said practice are used;

(s) acts for or in association with any organization or per­son, not being a practicing attorney or an assessor act­ing on the instructions of a registered insurance compa­ny, whose business or part of whose business is to make, support or prosecute claims resulting from death or personal injury and who solicits instructions to make, support or prosecute any such claim or receives any payment, gift or benefit in respect of that claim and knowingly with regard to any such claim acts for any f   person introduced or referred to him by any such

organization or person;

(u) does not make reasonable inquiry before accepting

instructions in respect of any claim for the purpose of ascertaining whether the acceptance of such instruc­tions will involve a contravention of paragraph (s);

(v) acts for a person mentioned under paragraph (u) while in the opinion of the Council he should have known that the organization or person who introduced or referred such person to him is an organization or per­son referred to in paragraph (s);


(w) unreasonably fails to pay an enforceable claim of a

practitioner in respect of work entrusted to such practi­tioner;

(x) employs or continue to employ in any capacity, without the written permission of the Council being first obtained, any person whom, to the knowledge of the member, the Council has found not to be a fit and prop­er person for purposes of being admitted as a legal practitioner or in respect of whom the Council has can­celled or suspended his articles of clerkship:            ^

Provided that the requirement of written permission, may, in its discretion, be waived wholly or in part by the Council, on such conditions as it may deter­mine; and

(y) exhibits contumacious dereliction of duty in the dis charge of a legal practitioner’s professional mandate.

(2)                Subject to the right of a party to the matter concerned to be present, a member shall not permit the taxation of a bill of costs to be handled by any person other than a person referred to in sub-rule (3).

(3)                The taxation of a bill of costs may only be handled by the member presenting the bill or on whose behalf the bill is presented or by his partner or full-time employee, being a member or an articled clerk, or by his correspondent or correspondent’s full-time employee, being a member or an articled clerk as aforesaid, and being in each case a person familiar with thu subject matter of the taxation; provided that the first-mentioned member or his correspondent, shall assume full responsibility for the contents of the bill sub­mitted and for the taxation.

Disciplinary rule

40. (1) The chairman of a disciplinary committee shall -

(a) subject to the provisions of this rule, determine how often it shall meet and the manner in which it shall discharge its duties;


(b)                fill any vacancy on any disciplinary committee;

(c)                subject to any limitation imposed by a resolution of the Council when assigning its duties or any variation, be charged with the following duties -

(i)                 to consider and investigate any complaint for­mally made against a practitioner;

(ii)               when it is of the opinion that a prima facie complaint has been made out against a practi­tioner, to determine such complaint in accor­dance with this rule;

(iii)             when upon the determination of a complaint it is of the opinion that prima facie the conduct of a practitioner constitutes misconduct and that a finding of guilt would warrant an application for the striking off of such practitioner from the roll, or his suspension from practicing, it shall not make a finding but it shall make a recom­mendation to the Council and simultaneously therewith the record of the enquiry to the Council for such action as the Council may deem proper;

(iv)             in all cases other than those referred to in sub- paragraph (iii) to impose such punishment as it deems fit and to cause it to be carried into effect;

(v)               to notify the Council, the complainant and the practitioner concerned of its finding, and when so authorised by the Council, whether general­ly or specially in any particular case, to publi­cise such information concerning the finding as may be determined by the Council;

(vi)             except as provided for in this rule to reserve the confidential nature of its proceedings;

(vii) to do all things necessary to ensure that disci­plinary proceedings are conducted justly, expe­ditiously and in accordance with this rule;

(d) subject to any limitation imposed by the resolution of the Council when assigning its powers, or any variation thereof, the provisions of the Act and Legal Practitioners Act, 1983, have the following powers -

(i)                 to determine the information if any to be fur­nished by the Secretary to a complainant; or t what assistance if any, shall be given to a com plainant who, for good cause, cannot lodge a complaint unaided;

(ii)               before it investigates any complaint, to require a complainant to make his complaint formally in writing, and to verify it by affidavit;

(iii)             to require the complainant to furnish such fur­ther evidence, written or oral, documentary or otherwise as it may require for the purpose of ensuring that -

(aa) the complaint has been formally made; and

(bb) the disciplinary committee is able to { ascertain the precise nature of the com­plaint;

(iv)              to investigate mew motuany complaint made by the Council;

(v)                summarily to dismiss a complaint where it is of the opinion that it does not disclose a prima facie charge of misconduct or where a com­plainant has neglected or refused to comply with the requirements of a disciplinary com­mittee;

(vi)             where in its opinion a prima facie case of mis­conduct on the part of a practitioner has been made out, to furnish the practitioner with such particulars of the complaint as may be neces­sary' to enable that practitioner to know the case he has to meet and to call on him to furnish a reply to the Secretary within a stipulated time;

(vii)           to require a practitioner to verify his reply referred to in paragraph (f) above by affidavit;

(viii)         when, upon a consideration of the complaint and the practitioner’s reply, it is of the opinion that no case of misconduct has been made out against the practitioner, to dismiss the com­plaint and to notify the Council, the com­plainant and the practitioner accordingly;

(ix)             when, upon a consideration of the complaint and the practitioner’s reply, the disciplinary committee is satisfied that the complaint dis­closes a prima facie;

(x)               case of misconduct on the part of the practi­tioner, it may -

(aa) determine the matter summarily with­out a hearing and impose a punishment; provided that at the same time as it notilies the practitioner in writing of the imposition of such punishment, it shall afford the practitioner the oppor­tunity of demanding within a stipulated time, an enquiry to be conducted in terms of this rule instead of submitting to such summary punishment; or

(bb) decide to hold a summary' enquiry, or a formal enquiry in the manner here­inafter set forth in this rule in which


event it may appoint a lawyer (other than from amongst the members of the Council) to present the case on behalf of the complainant, at the expense of the Society ;

(xi)             except in a case under paragraph c(iii) upon the summary determination of a complaint, or at the conclusion of a summary enquiry or the conclusion of a formal enquiry, to find the practitioner -

(aa)

not guilty;

(bb)

guilty of unprofessional conduct;

(cc)

guilty of dishonourable conduct;

(dd)

guilty of unworthy conduct; or

(ee)

guilty of any one or more of the above;

 

 

(xii)           if at the conclusion of an enquiry, the discipli­nary committee is of the opinion that the case is one which is contemplated by the provisions of paragraph c(iii), it shall not make any find­ing but it shall refer the matter to the Council for such action as the Council may deem prop^ er;

(xiii)         to dispense with any requirements of this rule respecting notices, affidavits, documents, serv­ice or time, in any case where it appears to be just so to do; and

(xiv)         extend the time for doing anything under this rule;

(e) hold a summary enquiry, or a formal enquiry, which enquiry shall be commenced by serving on the practi-


tioner concerned notice, requiring the attendance of the practitioner; and

(f) subject to provision of these rules, the chairman of the disciplinary committee shall determine the manner in which an enquiry, whether summary or formal, shall be conducted. In the event c f this rule not providing specifically for any matte he shall be guided by the practice and procedure pr vailing in a Court of Law.

(2)                At a summary enquiry the disciplinary committee may dis­pense with the attendance of a practitioner and in its discretion, determine the complaint on the basis of such written, oral, documentary, or other evidence as it deems necessary for a just and proper determination of the matter:

Provided that the practitioner may demand -

(a)                to be present during the hearing of any oral evidence;

(b)                to inspect any written, documentary or other evidence to be taken into consideration by the disciplinary' com­mittee;

(c)                the right to make written or oral submission in his own defense; or

(d)                that notice be issued and served at his expense, to pro- cure the attendance of any witness at any enquiry, save where the disciplinary committee is satisfied that such demand has been made for the sole purpose of causing delay.

(3)                A practitioner summoned to appear at any enquiry, whether summary or formal, before a disciplinary committee shall be entitled to legal representation

(4)                This rule shall apply mutatis mutandis to any proceedings against a non practicing member, an articled clerk or a pupil advocate:

Provided that such proceedings in the case of an articled clerk his principal, or


in the case of a pupil advocate his mentor shall also be present at the enquiry, unless excused.

Practitioners who cease to practice and winding-up of abandoned practices

41.                (1) A practitioner, who practices or has practiced for his own account in Lesotho shall, before applying for the removal of his name from the Roll of the Court -

(a)                advise the Council of that fact by delivering a copy his application to Court and to the Secretary at least one month before the date of the hearing of his appli­cation;

(b)                unless exempted by the Council, furnish the Council with a certificate by an accountant approved by the Council, or such other proof as the Council may require, that proper provision has been made for the winding up, taking over or protection of all trust money;

(c)                satisfy the Council by affidavit or as the Council may require that -

(i)                 all obligations to clients have been discharged or duly assigned with such consent as may be necessary;                                                      

(ii)               any other requirements which the Council deems necessary for the protection of trust money or other assets held in trust, the comple­tion of work on hand, attending to queries and, in general, the orderly winding up of his prac­tice or former practice, have been met; and

(iii)             state in his application that he has complied with the provision of paragraph.


(2)               A practitioner who has not practiced for his own account shall, before applying for the removal of his name from the Roll of the Court, advise the Council of the fact by delivering a copy of his application to Court and to the Secretary at least one month before the hearing of his application.

PART IV - GENERALPROVISIONS

Seniority

42.                      (1) The Council may recognize senior legal practitioners who have —/er the years rendered distinguished services to the law practice in the courts v<)f Lesotho and contributed to the advancement of the objects of the Society by conferring on them the honour and dignity of the title of “Senior Counsel”.

(2)                A legal practitioner -

(a)                shall not be conferred with the honour and dignity of the title of “Senior Counsel” unless his length of serv­ice as a legal practitioner is 15 years or more:

Provided that the Council has consulted with the President of the Court of Appeal on the matter; and

(b)                who qualifies and deserves such recognition may make application for senior status.

Pupilage

43.                (1) Pupilage will extend over a period of one year.

(2)              Pupilage registration shall be effected with the Secretary of the Council.

(3)              A person shall not be accepted as a pupil unless he is as at the date of commencement of pupilage an admitted advocate.

(4)              An applicant for admission to the Society who has not already been a practicing member for at least four years or an admitted attorney shall be required to complete pupilage before he can be admitted as a member:


Provided that an applicant who has been admitted as a member of any Bar Council in the Republic of South Africa shall be admitted without undergoing any pupilage.

(5) Notwithstanding anything contained in these rules, the Council has the power to exempt any person from the requirements.

Pupil Supervision System                                                   ^

44.               (1) Each pupil shall find himself a mentor who is a member of the Society and has been in practice for a period at least not less than five year^

(2)               The pupil mentor -

(a)                has an obligation and duty to ensure that the pupil obtains the requisite training and experience within the period of pupilage; and

(b)               may involve the assistance of other members of the Society in this regard.

(3)               All members of the Society shall have the duty to assist in the training of pupils.

Appearance by pupils

45.               (1) For the first six months of pupilage a pupil advocate may with the pupil mentor’s consent appear only in uncontested matters.                                                                                        ^

(2)               For the second six months of pupilage a pupii advocate may appear in contested interlocutory matters only if accompanied by his mentor.

(3)               Any appearance by a pupil advocate shall be subject to the fol­lowing conditions -

(a)                the pupil remains subject to the overall supervision and direction of the pupil mentor;

(b)               the presiding judge or judicial officer is informed beforehand of the fact that the pupil is a pupil; and


(c)             the pupil must in open court when placing himself on record state clearly his status as a pupil.

Articles of clerkship and contracts of service

46.                (1) Articles of clerkship and contracts of service shall contain the whole agreement between the parties and the Council shall have the right to reject articles of clerkship or contracts of service submitted to it for registra­tion which in its opinion do not comply with the Legal Practitioners Act 1983 or these rules or which contain any improper or objectionable clause.

(2)                An articled clerk shall be entitled to be released by his princi­pal from office duties in order to attend university or other law classes for not more than six hours per week:

Provided that during the month immediately preceding any examination for which such clerk is a candidate, he shall be entitled to be released by his prin­cipal from all office duties for a reasonable period not exceeding three weeks.

(3)               The hours during which an articled clerk shall be entitled to be released from office duties as aforesaid may be fixed from time to time by the Council.

(4)                   An articled clerk who has been released from office duties in order to attend university or other law classes or to attend examinations shall, when so requested by the principal, furnish proof to the satisfaction of the prin­cipal that he has attended all such classes or has attended such examinations.

L

Repeals

47.                Schedule to Law Society Act, 1983 is repealed.

Law Society Rules, 20113 is repealed.

ADVOCATE ZWELAKHE MDA PRESIDENT OF THE LAW SOCIETY

NOTE

1.                  Act No. 13 of 1983


2.                   Act No. 11 of 1983

3.                   L.N. No. 160 of 2011

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