The Sunday Mail
with Arthur Marara
Access to justice is one of the key pillars of rule of law. Getting to access the courts for remedy is not enough, if the parties do not fully appreciate their rights and the procedural steps that they need to take in order for them to enforce their rights.
Legal services are considered a Veblen product at times yet they are very essential. In the previous articles I have shared on why it is important for you to have a personal lawyer.
I do not mean a personal lawyer in the sense of the legal aid adverts, but as in the real sense where if you have a problem you can immediately turn to them without necessarily having to go through a cumbersome process of filling in claim forms. If you can work out a better set up with whoever your financier is, the better.
Daily you read of cases of people in the community who are being maimed or even killed in Road Traffic Accidents (RTAs) due to negligence from public transport operators’ employees. Their earning capacity sometimes is disrupted. In cases of those who die from these accidents, they leave behind families that have no one to look after, and sometimes very vulnerable children of school going age.
Some people are electrocuted to death from power lines that are on the ground in clear cases of negligence. Some people are injured at work due to the employer’s negligence. In many of these instances some people or their survivors do not even lay claims against the wrong doers either because of ignorance of their rights, or even if they know their rights.
Do you have a case where you feel you were dealt an injustice? Do you think that your case has merit? You cannot afford legal services? The good news is that there is a remedy in terms of the law if you cannot afford to pay for legal services, that is in form of contingency fee arrangement.
Pros and cons of contingency fee arrangements
There is always debate around the pros, and cons of a contingency fee arrangement. Before you decide whether this is a best route for you, you may need to consider its advantages and disadvantages. The proponents for contingency fees argue that contingency fees:
(1) improve access for indigent clients by enabling people who could not otherwise afford counsel to assert their claims;
(2) provide incentive for attorneys to seek client success; and
(3) enable clients to shift risk of losing to the lawyer.
On the other hand, the critics of contingency fees assert that contingency fees:
(1) encourage too many frivolous suits; (in other words since anyone can access a lawyer, too many cases will be filed)
(2) incentivise contingent fee lawyers to settle too soon and for too little; and that
(3) contingent fees are usually too high relative to the risks that attorneys bear in a particular case.
What is a contingency fee arrangement?
A contingency fee arrangement is an alternative form of payment to a lawyer for their legal services. Lawyers charge customarily using a fixed hourly fee provided for in terms of the Law Society of Zimbabwe tariff.
In a contingent fee arrangement lawyers receive a percentage of the monetary amount their client receives when they win or settle their case. That is, in a contingency fee arrangement, the lawyer only receives his fees if the lawyer has successfully represented the client.
The amount the lawyer receives is contingent upon the result the lawyer obtains and often on the phase of litigation in which the dispute settles.
If you follow American court dramas you will notice that there are some huge settlement claims facilitated by attorneys. This will also point you to the type of cases that are usually popular for such arrangements.
Contingency fee arrangements are particularly common in personal injury cases. They can also be used in any other cases where a lawyer concerned thinks that there is merit in the case. The percentage to be given to the lawyer has to be agreed in advance between the parties. There is no uniform percentage that is given to an attorney.
For a long time, contingency fee arrangements were considered illegal in Zimbabwe. Contingency arrangements only became legal after the promulgation of the regulations, S1 154/2014 Legal Practitioners (Contingency Fee Agreements) Regulations.
In terms of Section 4 of the Regulations a legal practitioner may enter into a contingency fee agreement with a client regarding the legal services that he or she provides to his or her client in connection with proceedings if in his or her opinion there is a reasonable prospect of success in such proceedings. The opinion of the attorney is important because it will be pointless to take a matter that has no reasonable prospects of success.
Legal requirements for a contingency fee arrangement?
A contingency fee agreement has to comply with the provisions of the Legal Practitioners Act as read with the regulations above. I will not be able to reproduce all the provisions of the regulations but I will take out a few critical ones.
The regulations are clear that the arrangement has to be in writing. Section 6 of the Regulations lay out the requirements for contingency arrangement. A contingency fee agreement shall be recorded in writing in a document which is signed by the legal practitioner and his or her client and a copy shall be given to the client upon signature.
In other words, a lawyer cannot agree with a client orally and call it a contingency fee arrangement. This is so for a good cause. Disputes are always likely to arise as a result of greedy of either of the parties to the arrangement.
Do not take this requirement for granted. Before the proclamation of the regulations there were some quarters which used to argue that they could enter into contingency agreements Section 22C of the Legal Practitioners Act provided that it is mandatory for the arrangement to be in writing.
The contents of what is supposed to be written in the agreement are provided for in terms of Section 6 of the Regulations which your attorney is supposed to explain to you before entering into the agreement with you.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email attorneyarthurmarara @gmail.com