Robert Koch took up my offer to let me publish his comments on my Blog. So here they are, unedited below. Incidentally the Law Society have advised that, given he sent the letter to them also, "that the comments made by Mr Koch do not in my view warrant any official action or response from the Law Society" but will forward it to the MVA Committee, which is chaired by Ronald Bobroff, if I request so - which I have done.
Objectionable material on www.lawblog.co.za
Your website contains the following blog:
Experts get greedy
"I received a phone call from a well respected colleague today who is now being sued by an expert. I must say that experts involved in personal injury litigation are beginning to go a bit over the top. Unfortunately a lot of the time they are in fact misinformed by the RAF that the attorney has been paid when in fact it is only the Fund's own attorneys who have been paid on this matter."
The above text insinuates one untrue allegation, and one seemingly defamatory allegation as to the conduct of expert witnesses who engage in personal injury litigation:
You imply that an expert is only entitled to payment after the RAF has paid out to the claimant's attorney. That is indeed a false representation. My own terms of business, of which you have been reminded in writing on several occasions, are that payment is due when the claim is "settled, abandoned, or transferred to another attorney" and that my fee is payable after 3 years in any event regardless of what payments you may have received from the Fund. The terms of business of other experts may be different. There is certainly no general rule binding on experts that they must wait until the Fund has paid. Rule 68.4 of the code of conduct of your Law Society expressly states that an expert's fees must be paid within a "reasonable time".
You state that an expert is "greedy" if he issues summons for his fees before the RAF has made payment. "Greedy" is an unpleasant word. The expert has done the work and is thus entitled to his fee. If he is prepared to wait for his fee that is a decent thing to do. However, it does presuppose a relationship of trust between the expert and the attorney. There may also be a tacit arrangement that deferment of payment of fees is dependent on the attorney continuing to send a regular flow of work to the expert. If that trust relationship has broken down due to a refusal by the attorney to answer phone calls or other such conduct implying that the attorney is avoiding making payment, then it is the expert's right to issue a letter of demand and, if needs be, a summons. The same is true if the attorney takes an excessively long time with bringing the claim to finality. There is an implied term (confirmed by your professional code) that payment will be made within a reasonable time. If the deferment of fees is conditional on a continuing flow of instructions then the redirection of instructions to some other expert could also be a good ground for demanding immediate payment of fees.
The tone of your blog suggests that experts are second class citizens whose involvement in personal injury matters is a privilege which will be tolerated by lawyers for just so long as the experts do what they are told and accept what fees the lawyers see fit to pay them. Not so Mr de Broglio. We all have equal rights and work for our money and expect to be paid properly and timeously. Can you honestly say you have never sued a client for your own fees?
In truth the legal nature of an expert witness' relationship with his instructing attorney and the attorney's client is extremely complicated and thoroughly confusing, even for lawyers. It is high time that the professional bodies for the experts (notably the SA Medical Association and the Actuarial Society of SA) initiated negotiations with the Law Societies to a agree a fair and reasonable set of protocols governing the payment of expert fees.
One obvious problem area is the transferred claim file. There is no direct relationship between the new attorney and the experts who were briefed by the previous attorney. I have heard apocryphal reports of taking-over attorneys who have received expert fees from the RAF and then failed to pay over such fees to the experts.
I myself have fulltime staff who follow up on unpaid fees and it is quite remarkable how many attorneys we catch who closed their files without paying their actuary.
One benefit of agreeing to deferment of payment of fees is that the running of prescription is suspended. Time does not wipe the slate clean and the attorney remains liable, even after leaving the profession.
One simple solution is that experts insist on payment for their fees in advance. If advance payment of expert witnesses becomes widespread, and I have heared several attorneys complaining that it is increasingly frequent, then attorneys have only themselves to blame for having abused a trust placed in them in the past, and for having lost such trust.