Cybercrime is increasing around the world, and businesses, governments and private persons are all at risk of falling victim to it. South Africa has some of the highest incidents of cybercrime and cybercriminals are using increasingly sophisticated social engineering tactics to defraud unsuspecting victims.
Law firms are no exception and must therefore adopt strategies to repel incidents of cyberattacks and online fraud. Legal Practitioners have a duty to execute their mandates with the required standard of diligence, skill and care to guard against such incidents.
Conveyancing firms especially are targets of cybercrime, due to large sums of money that are involved in property transactions. Most of the correspondence exchanged between conveyancing firms and clients is also by way of electronic communication, which makes it very attractive for cyber criminals.
Attorneys and support staff must exercise extreme caution when dealing with conveyancing transactions. Failure to exercise requisite skill, knowledge and diligence of average practising attorney, and thus failure to discharge fiduciary duty to client will result in a legal practitioner being sued for negligence.
The High Court case of Fourie v Van Der Spuy & De Jongh Inc and Others highlights the risk posed by cybercrime to the legal profession and the duty to employ safeguards when transacting online. In this matter, the Respondents, practising attorneys were held jointly and severally liable for the Applicant, their client’s trust balance, which the Respondents deposited into an account they believed was the Applicant’s without verifying first after receiving an email purporting to be from the Applicant, instructing them to deposit the trust balance.
The court held that by transacting via email without employing any measures to ensure that both Respondent and Applicant would not fall victim to fraud, knowing full well that it was prevalent in the legal profession, acted negligently and failed to exercise the requisite skill, knowledge and diligence of average practising attorneys, and thus failed to discharge their fiduciary duty to their client, the Respondents were liable to the Applicants for the financial loss suffered.
Conclusion
It is therefore vital for legal practitioners to employ cautionary measures to minimise the risk of falling victim to cybercrime such as verifying accounts before making payments, and educating their staff about cybercrime and cybersecurity, to prevent being caught out by cybercriminals and thereafter be held liable for losses that ensue, for further guidance, individuals can contact Schoemanlaw Inc.
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