Common pitfalls curators should watch out for– ‘learning from the past’

1. Common pitfalls curators should watch out for– ‘learning from the past’ Mr Godfrey Nyoni- Compensation Fund Trustee and -former Councillor of the Law Society of Zimbabwe -former deputy chairperson of Disciplinary & Ethics Committee 14 February 2019-Law Society Training Centre-Harare

2. Curatorship is increasing – firms catching fire “Dodgy lawyers cost law society $4 million” – The Chronicle 11 December 2018 “Dodgy lawyers cost LSZ $2 million in claims” –Sunday News 11 December 2016 “Lawyer on the run, law firm put under curatorship” – The Chronicle 25 June 2016 “$144 000 ‘fraud’ law firm goes under curatorship” –The Chronicle 1 April 2016 “12 law firms put under curatorship, 2 lawyers deregistered” -zimbabwe.shafaqna.com -12 December 2018

3. Calibre of Curators Integrity and good standing. Knowledge of practice management Knowledge of accounting for legal practitioners – accounting in law firms Foresight (investigative capabilities)-Law Society is slowly rolling out trainings on fraud detection. Curators should attend those. Desire to serve the profession

4. Benefits of being a Curator There is a general reluctance to take up curatorship work. Visibility of the curator and his firm. Guaranteed work and clients who will follow prefer to stay with the curator believing he is one of the best seeing s/he was chosen by LSZ. Consideration for exemption from CPD. Being on LSZ database – there are benefits attached to this. Learning from others’ mistakes. Some international best practices.

5. The practical steps – knowledge gap The need to appreciate what curatorship is all about (what does one need to do after being issued with letters of confirmation). Legal framework governing curatorships; the roles; responsibilities Lack of appreciation of powers that a curator has. The demands of the office of a curator (innovativeness; pro-activeness of a curator etc). Knowledge of accounts; detecting fraud or illicit transactions.

6. Challenges Curators face Distinguishing between the duties of a curator of a firm from those of an executor(trix) of a deceased estate. Mixing affairs of the law firm under curatorship with the deceased’s estate. Mixing the affairs of one’s firm with those of the firm under curatorship. Lack of expertise to deal with curatorship issues. Challenges in dealing with conflicts that arise between the firm under curatorship and other interested parties.

7. Challenges curators face (contd) Failure to recover debts owed to the firm. Delays in filing reports with the LSZ and the Master. Failure to timeous protect the trust account, data, files against theft by employees working with the suspended or deregistered lawyer. Collusion between suspended/deregistered lawyers and the firm’s employees. Lack of cooperation and resistance on the part of the suspended or deregistered lawyer. Not visiting and revisiting the TOR.

8. Curatorship fees Fees should come from the law firm that is under curatorship – need for moderation. Where fees exceed assets recovered ~ that is covered in the TOR. Threats to the Compensation Fund – the need for curators be aware of this Use of Professional assistants or associates in the execution of one’s duties as a curator.

9. Assets Disposal/Files Nothing to curate. All assets have to be disposed of before winding up. Files have to be distributed to respective clients. All cases that are pending have to be disposed of. Need to avoid dumping files and files at LSZ.

10. Reporting The TOR have a structure of how reports should be done. Curators are encouraged to follow that structure. There has been more narrative reports than financial. Both reports should make full disclosure. Reports are coming late.

11. Human Resources & Financial management The curators do not have manpower or human support to manage the curatorship Where curators feel capacity skills gap , need to discuss these with the Regulator and where possible arrange for complimentary skills to be added during the curatorship period In some instances employees of the firm placed under curatorship loyal to the member could secretly take out firm files to the suspended/deregistered member behind the curator’s back Curators would need to advise the Society on the human rights situation, implications of the curatorship to the human resources and statutory obligations arising from it and makenecessaryrecommendations.

12. Firm management Need to guard against unauthorised or secret visits to the firms or interference with firm files by suspended or deregistered member–curator may consider changing locks Security of documents – lockable cabinets for sensitive documents. Avoid mixing up of the two firms’ financial affairs Computers and information back up- need for curators to safeguard data. Curators need to aspire towards an improved appreciation of business softwares, ebookkeepingand accounting systems, Use of ICTs to be able to effectively manage curatorships in changing digital world e.g where a firm was using ebooksand e-accounting systems.

13. Duration of curatorship, reporting Taking too long to wind up the curatorship . Failing to produce reports on a monthly basis- in many instances curators would have a long silence without communicating with the LSZ. When they eventually do, their reports will not be having any timelines Curators would need to get to some point where the curatorship is wound up with clear recommendations on the viability of the firm, registration and licensing of the firm in cases other than those involving death of the member practitioner. Some final curatorship reports have been silent on the way forward with regard to these issues. Other processes dependant on the outcome of the curatorship e.g the member’s registration status may be subject to the recommendations from the curatorship report and any delays in such finalisation may result in prejudice to the member whose firm has been placed under curatorship or prejudice to the Law Society’s integrity

14. Exposure to the Compensation/ Fidelity Fund No mitigatory measures to reduce the exposure Most curatorship unable to settle liabilities. Curators need to guard against accruing liabilities e.g business operations costs such as rentals, storage and other statutory obligations. In some instances curators do not notify justice stakeholders upon assumption of duties or notify clients and in return clients would continue to deal directly with the member despite the curatorship placement

15. -The end - Happy Valentine’s Day