During a case it may become apparent to you or counsel that the assisted person has adopted an unreasonable attitude to the conduct of the case, possibly incurring unjustifiable expense to public funds.  It may also become evident that the assisted person has withheld relevant information or has given false or misleading information.  In such circumstances clearly if no action is taken there will be an abuse of legal aid.

Potential scenarios where abuse of legal aid should be reported

Regulation 24, therefore, imposes a duty on the solicitor or counsel to draw the matter immediately to our attention.  You must make a report to us in terms of regulation 24 where, for instance, the assisted person

  • for no good reason declines the advice of solicitor or counsel about acceptance of a tender, or
  • insists on prolonging the case solely on a question of expenses or with a view to procrastination, or
  • seeks to continue an appeal when they will gain no material advantage.

Regulation 24(2): client confidentiality and reporting abuse of legal aid

Regulation 24(2) provides that the duty of solicitor or counsel to report any abuse of legal aid or provide information to us as required by the Act and regulations, overrides any duty of confidentiality owed to the assisted person because of any privilege arising out of the relationship between solicitor, counsel and client.  This is an exception to the stipulation contained in Section 31(7) of the Act that legal aid is not to affect the relationship between solicitor, counsel and client or their respective rights.

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