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Cape Town - Allegations of misconduct and unlawful action continued this week regarding the saga between Discovery and its attorneys ENSafrica on the one hand, and attorneys Ronald Bobroff & Partners on the other.
Last week Fin24 reported that Discovery Health [JSE:DSY] said it always pays for the treatment of any member or dependent injured in a motor vehicle accident in accordance with the member’s specific plan type and "no questions asked", the medical scheme said in a statement.
READ: Discovery hits back about road accident claims
This was Discovery's response to various allegations by attorney Ronald Bobroff of Ronald Bobroff & Partners.
These claims include that Discovery does not adequately inform members of its rules and, as a result, has no right to be refunded Road Accident Fund (RAF) claims in respect of medical costs incurred by the scheme on behalf of the member.
READ: Bobroffs full statement here.
Bobroff also claims that Discovery Health members and their families are approached while in hospital and forced to sign undertakings to refund the scheme in respect of RAF reimbursements.
To this Discovery responded by saying no Discovery Health employee has ever approached a member in hospital in this regard.
Bobroff told Fin24 on Tuesday that he has had problems with power outages, server damage and computer and phone malfunctions, which have hampered his ability to respond to questions Fin24 has sent him. He undertook to respond as soon as his technological problems are solved.
Last week he responded to Fin24's article by saying that he and his law firm deny having done anything improper and that they have always complied with Law Society directives concerning common law contingency fee agreements "in common with thousands of other attorneys".
READ: Bobroff responds to Discovery 'attack'
As for Discovery saying in the Fin24 article that it no longer requires any member to sign an undertaking to reimburse medical expenses paid by both the RAF and the scheme, Bobroff still claims this is not true and told Fin24 he has proof of this.
"The bottom line is that I invite you to find a single Discovery member who was ever informed by Discovery’s brokers, as is required in terms of Regulation 28(1) of the Medical Schemes Act of the exclusions and conditions applicable to non-illness generated medical care," said Bobroff.
"Similarly, to find a single member who ever received Discovery’s detailed summary of its rules – not Discovery’s Benefit Booklet, which sets out the annual limits, how many pairs of specs a member is entitled to in a year, how many visits to a specialist and so on."
According to Bobroff he doubts whether Discovery has ever sent any member a detailed summary of its rules as is required, according to Bobroff, "in terms of section 30 (2)(a) of the Medical Schemes Act to the most recent 100 members admitted to the scheme".
In response to a query by Fin24 about Bobroff's claims regarding Law Society matters, Thinus Grobler, director of the Law Society of the Northern Provinces, wrote:
"I wish to confirm that a complaint was received by the Law Society from the Grahams against Mr R. Bobroff (and Mr D. Bobroff), which complaint is currently partly heard and was postponed, pending a court application brought by the Grahams, inter alia to compel the Law Society to undertake an inspection of the accounting records of Ronald Bobroff & Partners and for the Law Society to proceed to finalise the complaint."
Grobler said an order was made by the court that such an inspection be conducted and for the Law Society to proceed with the investigation within certain time limits. This could, however, not be done, as the matter was taken on appeal by Bobroff to the Supreme Court of Appeal.
The appeal was unsuccessful and Mr Bobroff has now referred the matter to the Constitutional Court, which application is still pending.
"By nature of its proceedings, it will not be appropriate for the Law Society to comment on specific issues relating to the disciplinary inquiry and further comments can therefore not be given in this regard, except to confirm that the Law Society will consider this complaint in a serious manner, as it does with all complaints," said Grobler.
Contingency fees
Grobler said with reference to the court orders against Ronald Bobroff & Partners, the initial decision of the Council of the Law Society in 2002 to accommodate its members to enter into so-called “common law contingency fee agreements” was based on legal advice obtained from Senior Counsel in this regard.
"Following on judgments given by a full bench of the South Gauteng High Court (the De la Guerre v Ronald Bobroff & Partners Inc. and Saapil v The Minister of Justice & Constitutional Development cases and confirmed by the Constitutional Court), it was unreservedly accepted by the Council of the Law Society that such agreements are invalid in law and members were thereafter on numerous occasions formally advised of this fact," said Grobler.
"It needs to be mentioned that even when such agreements were accommodated, it was subject to cautionary guidelines and it was never indicated by the Law Society that members who concluded such agreements could charge excessive fees - that is more than the 25% allowed for in terms of the Contingency Fees Act (CFA)). Such cases of overreaching were in fact sanctioned by the Law Society as unprofessional conduct."
Grobler said members were advised that all contingency fee agreements must be concluded with clients in strict compliance with the CFA and under the agreement which was prescribed by the Minister of Justice & Correctional Services.
"Attorneys who charged more than 25% contingency fees were, however, not summarily sanctioned by the Law Society, as a complaint relating to overreaching (charging excessive fees) would have been subject to an investigation as to whether the fees charged were reasonable and/or excessive, having regard to the facts of each and every matter and the specific terms of the agreement, before such a finding could be made," said Grobler.
In a statement issued this week in response to the various public statements issued by Bobroff about Discovery and its attorneys ENSafrica (Edward Nathan Sonnenbergs) last week, ENS has responded as follows:
According to George van Niekerk of ENS Bobroff has made defamatory allegations against Discovery and ENSafrica.
"We have requested the Law Society of the Northern Provinces (LSNP) to take steps against Ronald Bobroff & Partners," said Van Niekerk, adding that the purpose of ENS' press release in this regard is "to respond briefly, whilst reserving all our rights".
The issue at stake is very simple, according to Van Niekerk.
"It appears that clients of Ronald Bobroff & Partners have been grossly overcharged under the guise of what used to be called common law contingency fee agreements. The agreements have since been declared unlawful," said Van Niekerk.
"The agreements have never provided carte blanche to attorneys to overreach their clients. The fees charged by an attorney still have to be shown to be reasonable. In our clients’ matter the Grahams, the fee of R738 044.67 charged by Ronald Bobroff & Partners is manifestly excessive, considering that on an assessment of the work actually done, the fee could not have been more than R200 000."
The various disputes in which Ronald Bobroff & Partners is involved, relating to overreaching and other instances of alleged unprofessional conduct by the Bobroffs, are currently serving both before the Law Society in a complaint lodged by ENS' clients, the Grahams, and the courts.
"Despite the disputes being dealt with by the appropriate bodies designated under law to do so, the Bobroffs have sought outside those processes to make damaging claims against Discovery Health, their accusers (in the form of our clients, the Grahams), and this firm of attorneys – ENSafrica," said Van Niekerk.
"Several erstwhile clients of Ronald Bobroff & Partners have sued Ronald Bobroff & Partners based on overreaching. In consequence the Courts have made orders against Ronald Bobroff & Partners to repay the amounts with which it had overreached its clients."
Discovery
The recent public allegations concerning Discovery and its alleged vendetta against Ronald Bobroff & Partners and the Bobroffs are not new, according to Van Niekerk.
"They were pressed strongly by Ronald Bobroff & Partners in the pleadings and argument on
its behalf before the courts. The allegations enjoyed no purchase with the North Gauteng High Court or the Supreme Court of Appeal," said Van Niekerk.
"Ronald Bobroff & Partners omits to mention that the allegations against George van Niekerk
were expressly not pressed at the hearing of the matter by senior counsel who appeared for the Law Society, who placed on record that the LSNP did not contend that Van Niekerk had acted improperly in the dispute between our clients, the Grahams, and the Bobroffs."
Accordingly, the High Court made no finding to that effect.
"It is scurrilous to raise these issues after the contentions were expressly abandoned in court by the Law Society, and indeed ignored by the court in coming to its decision that the Bobroffs’ practice ought to be inspected without delay arising from serious allegations of impropriety by Vincent Faris, the country’s foremost expert on attorneys’ trust accounts," said Van Niekerk.
In public statements the Bobroffs allege that the Grahams’ complaint is contrived, but Van Niekerk said they make no reference to the various findings against them by the High Court, which include orders compelling them to make discovery of documents hitherto kept from the Grahams, to submit their practice and books of accounts to an inspection, and costs awards against them in both the High Court and the Supreme Court of Appeal.
As a result of the fact that Ronald Bobroff & Partners refuse to make discovery of all documents relevant to the Grahams’ complaint and refuse to submit their practice to an inspection by the Law Society, the disciplinary inquiry had to be postponed as it cannot proceed without such information, according to Van Niekerk.
"That is why the High Court found that such an inspection had to be performed, since such information is crucial for the Disciplinary Committee of the Law Society to decide the complaints against the Bobroffs.
In dismissing the Bobroffs' application for leave to appeal, the judge held that the Bobroffs’ application for leave to appeal is intended to “delay an inspection of their books of accounts and for no other purpose”.
Van Niekerk also pointed out that on August 25 2014 the Bobroffs were chastised by the Law Society’s disciplinary committee for "vitriolic comments" made by Darren [Bobroff] on social media directed against other attorneys.
The disciplinary committee described his conduct as a “disgrace” to the Society, and stated that unseemly engagement by attorneys in the media brings the profession into disrepute.
"Darren gave an express undertaking to the Law Society that he would not 'in any manner defame, demean or in any other manner attack the dignity' of the self-same attorneys targeted in the Bobroffs’ recent statement. He did so on the express understanding that
'it is not in the interest of the attorney’s profession as a whole to deal with conduct of fellow colleagues by commenting on their conduct in the media',” said Van Niekerk.
"It is unfortunate that the Bobroffs are intent on operating outside of the authority of the courts and the Law Society in this manner."
- Fin24
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