Durban law firm cleared

2008-09-05 00:00

High court judges have given the “green light” to the marketing methods of prominent Durban law firm Meumann White and said the firm is not guilty of any unprofessional conduct.

KwaZulu-Natal’s Deputy Judge President, Phillip Levinsohn, with Acting Judge Barry Skinner, yesterday set aside an application by the KZN Law Society to stike off the roll of attorneys six partners at Meumann White — Maria Davey, Robert Finlay, Bruce Forrest, Richard Grant, Angela Ness-Harvey (who has since left the firm) and Robert White — after accusing the firm of “touting” for conveyancing work.

Judge Levinsohn criticised the Law Society in particular for proceeding in its application to strike off Ness-Harvey (who managed the litigation and matrimonial family law department of the firm) and suggested the law society ought to have first carefully investigated her role and whether she could be held accountable for any wrongdoing.

The case is regarded as a test case by the legal profession, targeting as it does questions around what permissible marketing, advertising and promotional activities can be undertaken by attorneys.

The law society complained that Meumann White obtained conveyancing instructions in an improper manner which breached the society’s rules and the international code of ethics.

In particular the case focused on Meumann White’s long-standing relationships with mortgage originator and Wakefields estate agency.

Alfred Collen Rees of the law society maintained that the society got complaints about attorneys who “tout work” from estate agents, mortgage originators and other non-practitioners, and caused their own practices to “all but dry up”.

Levinsohn and Skinner rejected submissions by the society that “exaggerated, lavish and excessive” attempts to attract business are unfair, and aimed at eliminating competitors in the market.

“In an open democratic society which recognises free economic activity and free enterprise it is almost monstrous to suggest, for example, that multinational accounting firms and larger legal firms in this country would not be permitted to advertise on television or in the Sunday Times … simply because their smaller rivals cannot afford to do so,” said Levinsohn.

He found the scale of marketing and promotions in itself could never be the yardstick by which fairness or otherwise of advertising could be gauged.

The judges accepted further that statistics proved that from 2002 to 2005 Meumann White received under one third of Wakefield’s conveyancing work.

Judge Levinsohn said this was significant as it was “substantially less” than one would expect if there was an improper relationship.

He also commented that there is a “serious anomaly” in the law society’s rules regarding advertising and “touting”.

The drafters of the relevant rule appeared to accept that publicising of one’s practice is a permissible form of “touting”, he said.

Levinsohn said the word touting implies impropriety. Publicising one’s practice is not improper and should not be linked to touting, he said.

Meumann White commented in a statement: “We are delighted that the law society’s application … has been dismissed. We have always believed that we had not in any way breached any of the law society rules in our relationships with all of our clients and business partners.

“In particular the relationship with MortgageSA and Wakefields … has been endorsed by the court as being entirely proper.”

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