Attorney ordered to pay client’s costs and instructed not to ask for a fee in ‘war of attrition’
By- Peta Krost
Billy Gundelfinger, Johannesburg’s answer to LA Law’s mega divorce lawyer. Arnie, was hauled over the coals by a High Court judge last year and reprimanded for approaching each divorce like “a war” Gundelfinger is a divorce lawyer who often serves South Africa’s rich und famous including Phillip Tucker in his divorce from Anneline Kriel-Bacon.
He is president of the Association of Family Lawyers, chairperson of the disciplinary committee and the fees assessment committee of the Transvaal Law Society, and a fellow of the International Academy of Matrimonial Lawyers. But it can now be revealed that last year, during a hearing for an urgent application regarding a divorce, Judge Percy Blieden said Gundelfinger was exacerbating his client’s problem by advising him to launch an unnecessary court application. The judge ordered Gundelfinger to pay all the costs of this “urgent application” and prohibited him from collecting any fee from his client in regard to the application. Judge Blieden said Gundelfinger was the type of lawyer who “approaches each divorce as a war between two litigants” and who used “the rules of the court and legal principles” as “weapons in a fight to destroy the opposition” Gundelfinger was the type of lawyer who created “permanent hatred between the parties” and ensured that “their joint assets have been consumed to pay legal fees”.
This case, heard by Judge Blieden in February 1999, involved a client of Gundelfinger’s who was divorcing his wife of 18 years and was claiming custody of their two teenage daughters. The divorce hearing is to resume soon. In the urgent application brought by Gundelfinger, he demanded that his client’s spouse return household goods she took when she and her daughters left the family home, The judge took offence at Gundel finger advising urgent relief, saying the case wasn’t even vaguely urgent and had no legal justification. He added that the only reason why Gundelfinger had advised that the application be brought was to harass and intimidate the man’s wife. Judge Blieden pointed out that people involved in divorces were traumatised and went to attorneys to “assist them in safeguarding their interests and the rights of their family”. But in this case, he said, the “attorney is not assisting in the resolution of his client’s problems he is exacerbating them”
“The attorney is not assisting in the resolution of his client’s problems- he is exacerbating them.”
Gundelfinger said yesterday, “With great respect to the learned judge, I do not agree that: his judgement was correct, his comment regarding me were warranted; or that there was any basis for him to order me to pay the costs.” Gundelfinger added that after the judgment, he had consulted four senior counsel, who confirmed his view.
He said subsequently launched the same application for spoliation (the material alteration of a document to render it invalid in the High Court and, despite appending Judge Blieden’s judgement, an order in his favour was granted by another judge. “I believe it is my duty to champion the rights of my clients without fear, and that is exactly what I was doing”Gundelfinger added. Law Societies of South Africa co chairman Julian von Kemperer said it was “unacceptable for attorneys to use intimidatory tactics aimed at getting an unfair advantage in the case”. He added he was surprised that the judge had not referred the case to the Law Society “Any transgression of ethical rules brought to as is dealt with accordng to the disciplinary rules of the society, and (the individual) would either be reprimanded, fined, suspended or struck off the roll.” said Von Kemperer: He said he had never before heard of a judge demanding an attorney, in a divorce case, to pay costs Piet Langenhoven, head of disciplinary matters for the Transvaal Law Society, said Gundelfinger was respected and held in high standing in legal circles. But, he said, he *expected attorneys to respect the rights of his client and well as his opponent’s client”. “We all know how court cases can destroy everything people have put together in their lives, and lawyers have to go about their business carefully to prevent that, as far as possible Langenhoven explained that in divorce cases, the lawyers are faced with a corpse which they have to ensure is dissected and divided up carefully fairly and appropriately, and they had to avoid, at all costs, seeing the case as a war of attrition. Twaranang Legal Centre’s Lebo Malephe said divorce could easily become spiteful and ugly, as well as extremely expensive when it went to litigation.
“The correct approach is to give clients the best advice to try to sort out the dissolution of property because they should know that the court won’t decide who gets what. If it is not decided by the two parties, the most expensive alternative is brought into play – that of selling it all off and dividing the proceeds. Both parties lose a fortune this way particularly in legal costs. Beth Goldblatt from the Centre for Applied Legal Studies said: Women often have fewer resources, and men go to expensive lawyers who advise them to do everything possible to scare the woman into accepting less than they deserve”. Urgent applications were more costly and thus more financially rewarding for lawyers.
