Thursday, 18 April, 2024
HomeMedico-LegalSlow process to hold medico-legal lawyers accountable for fraud

Slow process to hold medico-legal lawyers accountable for fraud

An attorney who received a R15.2m state medical negligence payout for a severely disabled child three years ago, but only deposited R50 000 of that into a trust for the now nine-year-old, is among hundreds of unscrupulous legal practitioners yet to face sanction.

News24 reports that attorney Steven Gqeba, is one of 310 lawyers suspended by the Legal Practice Council (LPC) on the basis of serious misconduct allegations in recent years, and currently the subject of an LPC disciplinary inquiry that could see him struck from the roll.

Whatever happens, it seems doubtful the severely disabled child client will get the full R15.2m settlement intended to keep her safe and cared-for.

With 14 Eastern Cape lawyers now under investigation over their alleged mishandling of multimillion-rand settlements for children left disabled by state negligence, it is apparent this little girl is not alone.

The complaints against the 14 lawyers emanate from an Eastern Cape Health Department investigation into the R3.4bn in medico-legal negligence payouts made by the province between April 2014 and March 2021.

That investigation was initiated as a result of ballooning medical negligence claims, exacerbated by the province’s notoriously poor record-keeping.

During that probe, conducted under the provisions of the Public Finance Management Act, officials received anecdotal evidence that the often poor and vulnerable plaintiffs in these cases were not getting the money paid out to their lawyers.

Now, after mounting evidence of blatantly criminal conduct by lawyers and concern that the Fidelity Fund that provides insurance against such abuses may be running out of money, the LPC insists it is doing everything possible to protect the public from unscrupulous legal professionals – and denies taking too long to take action.

Yet, of the 21 123 complaints levelled against the country’s lawyers from 2020 to 2023, only 175 resulted in those legal practitioners being barred from practising – just 0.8% of all those complaints.

This statistic is not an accurate measure of its effectiveness in dealing with allegedly crooked, incompetent or dishonest lawyers, according to the council, but rather, it’s because not all of the allegations of wrongdoing would warrant them being struck from the roll.

“For example,” said Kabelo Letebele, LPC spokesperson, “some of the complaints found that the legal practitioner did actually fully execute the mandate but the client’s case was not strong – such a complaint would be included in the 21 000 but we would find the lawyer did not contravene any rule to warrant action or sanction.”

The LPC does not, however, publish annual reports on its activities in investigating and disciplining practitioners, so it is almost impossible to ascertain how many of the complaints could warrant the barring of these lawyers.

Court applications launched by the LPC seeking the striking from the roll of legal practitioners frequently provide stark evidence of how long it can take for the council to investigate and then act against dodgy lawyers.

In a January ruling delivered by the Gauteng High Court, it emerged that attorney Isaac Mokgobi had publicly been facing allegations of wrongdoing since 2017, after he had failed to pay a client a R1.3m Road Accident Fund settlement.

The LPC had applied for Mokgobi to be struck from the roll in 2020, after 12 other complaints against him (including several that he failed to pay his clients the settlements due to them and had held on to R317 000 meant for a deceased client).

The LPC wanted Mokgobi to be barred from practising over his alleged misappropriation of trust funds totalling more than R2.1m – but it would take three years for that case to be finalised.

This was possibly due, in part, to Mokgobi failing to provide the LPC with relevant documentation by December 2020, but it otherwise remains unclear why the matter took so long to finalise.

For its part, the LPC insists that “on average, matters brought to our attention take between three and six months to finalise”.

“This is the duration for most of the 8 000 to 15 000 cases we deal with at any given time,” Letebele added.

However, while he admitted that the complaints against the 14 Eastern Cape lawyers were lodged in 2022, some 18 months ago, at the same time, he maintained that the LPC has been unfairly accused of taking too long to address serious allegations of wrongdoing.

“In a number of cases, a court ruling would be made but there is a delay elsewhere and then the matter is brought to our attention years later – and the delay is wrongly attributed to the LPC processes.”

Over the past few months, the LPC has been criticised for its apparent paralysis in protecting and assisting the poor and vulnerable victims of now-suspended Eastern Cape attorney Zuko Nonxuba – who, in just one case, is accused of fleecing R198n in medical negligence settlements from 11 severely disabled children.

Nonxuba repeatedly tried and failed to overturn the outcome of the LPC’s successful Western Cape High Court application to have him suspended, pending its case for him to be struck from the roll of attorneys.

That appeal campaign, which was roundly rejected by the Constitutional Court in August, appeared to stall the LPC from pursuing its striking-off application against the lawyer.

That inaction resulted in the LPC doing little to assist his alleged victims – 11 of whom have resorted to seeking his urgent sequestration in efforts to recover the money he owes them.

As a consultant for the Echo Pro Bono Legal Aid Clinic, retired judge Eberhard Bertelsmann threatened urgent legal action against the LPC should it not ensure that Nonxuba’s victims were granted access to the medical negligence settlements paid out to his firm.

On 17 August, the LPC responded that “an urgent investigation” into the affairs and trust account of Nonxuba was being concluded.

Attorney Armand du Plessis, representing 11 of Nonxuba’s victims, replied that this was not an answer from the LPC about when it was going to assist these disabled children.

“The delays cause incalculable harm to these desperate people and we urge that we are provided with practicable steps which… ameliorate their immediate needs.

“We are hard pressed to litigate and exhort you, as a cog in the wheel that is rule of law, to ensure these victims are recompensed as they are entitled.”

That, it seems, has not happened.

Instead, in attempting to explain the years of delays and inaction defining its response to the growing body of evidence against Nonxuba, the LPC said that “(i)n such cases, where there is also criminal investigation and/or prosecution, lawyers have been reluctant to co-operate with the LPC for fear of incriminating themselves”.

“However,” it added, “the courts have since clarified that the pending criminal cases …do not prevent the LPC from proceeding with its investigation.”

 

News24 article – 21 123 complaints against SA's lawyers – but LPC says only 175 have been barred from practising (Restricted access)

 

See more from MedicalBrief archives:

 

Lawyer linked to medico-legal fraud faces being struck off

 

Lawyers probed over millions due to disabled children

 

Eastern Cape Health interdicts attorney’s R79m payout move

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