Fearful a former partner will “poach clients”, Gqeberha law firm Kaplan Blumberg has taken prominent family lawyer Lizette Ferns to court to enforce a restraint of trade clause.
Ferns, meanwhile, who is establishing her own firm, said clients who terminated their mandate with Kaplan Blumberg did so of their own volition.
In papers with the Gqeberha high court, Kaplan seeks to urgently enforce a restraint clause to prohibit Ferns from engaging with the firm’s clients for 12 months.
It relies on a contract Ferns signed when she was first employed in 2012.
Ferns claimed the contract became invalid when she was promoted in 2017.
She said she never signed the new contract as she did not agree with the restraint clause.
But the matter came to a head on March 5 when she resigned with immediate effect.
Anticipating a restraint of trade could be enforced, Ferns indicated to Kaplan that she would approach the labour court.
However, before that got under way, Kaplan turned to the high court.
Last week Kaplan’s lawyer, advocate Albert Beyleveld SC, said Ferns had violated the restraint as she had “solicited, canvassed and conducted business” with clients after she resigned.
In one example, Beyleveld said the firm emailed a client on March 10, informing him of the changes.
The shocked client said he worked with Kaplan because of Ferns.
The firm responded that she could not handle his case as she was bound by a restraint clause.
The client insisted his files be released.
In another example, a client was due in court shortly after Ferns’ resignation.
She then met the client to inform him that she could no longer represent him.
This prompted him to request his files so he could go elsewhere.
Ferns’ advocate, Olav Ronaasen SC, said it first needed to be established if a restraint existed.
He said Beyleveld had not proved solicitation.
The first client chose to leave the firm after he was notified of Ferns’ departure, while the second requested his file and never indicated where he was going, Ronaasen said.
He said while either of them could appoint Ferns in the future, there was no proof she had solicited them.
Judgment was reserved.
Kaplan wants the court to:
- Declare the restraint provisions of Ferns’ contract of December 12 2012 as binding;
- Interdict Ferns for 12 months from inducing Kaplan employees to terminate their employment; and
- Interdict Ferns from soliciting, canvassing or conducting business with its clients.
Kaplan equity partner David Nezar said in an affidavit that Ferns was initially employed as a candidate attorney.
She was later offered the position of professional assistant and a contract was signed.
“Not only are the terms of the restraint plain, but more so to an attorney,” Nezar said.
In November 2013, Ferns stepped up as family law department head.
“Without taking anything away from her, her success was made possible through the opportunity presented to [her].”
In June 2017, Ferns became a salaried partner.
“In performing her duties, [Ferns] acquired influence over clients.”
Nezar said sometimes Ferns would imply that she was motivated to start her own practice and “take her clients with her”.
“Ferns seems to hold the misguided view that the family law department is hers for the taking.
“Each time she was reminded that [it] would amount to a breach of the restraint.”
Nezar said on November 5 2024, things took a turn when a senior advocate sent a letter of demand pertaining to matters in which he was briefed by Ferns.
“I recorded that counsel ought not to have been briefed when adequate financial cover was not in place.”
She apparently never responded but instead advised that she would need to work from home in November and December 2024.
On November 28, she advised equity partner Grant Howard that she was “not coping” and was looking for another job.
The next day, she said she would work from home until then.
On December 6, a doctor booked her off until December 31.
“Ferns had previously arranged to take annual leave until January 15.
“So the cumulative effect was that she would be absent from December 6 2024 to January 15 2025,” Nezar said.
On January 14, Ferns emailed them.
“It is apparent that Ferns had adopted a complete [change of attitude], glossed over all the events of the preceding two months, and focused on largely inconsequential issues, like whether Howard and I responded to a WhatsApp wishing us well for 2025.”
Howard wrote back to Ferns to say she had made it clear she did not envision a future at Kaplan and referenced her Facebook post in which she had stated her desire to open her own firm.
On January 21, Ferns wrote back that should she be compelled to resign, she would not accept the restraint as legally binding.
Nezar said he never intended to prevent Ferns from practising.
“But she was not at liberty to appropriate Kaplan’s family law department.”
On February 10, Ferns’ attorneys told Kaplan that they would have the restraint issue resolved through litigation.
Nezar said Ferns was simply attempting to hedge her bets.
“Ferns opportunistically sought to reserve her rights to a purported constructive dismissal,” he said.
“[This] reflected a desperate attempt to advance an argument when it suited her against the enforceability of the restraint.
“Ferns deleted some 400 folders and 13,000 files.
“The only inference to be drawn is that Ferns deleted information that was either prejudicial to her or that, if deleted, would prejudice Kaplan.”
On March 5, Ferns’ lawyer wrote: “My client shall proceed to advise her clients that she has resigned and has a restraint clause which precludes her from acting for them.
“However, she will advise that she does not believe the restraint is enforceable.”
Ferns then attended court to postpone a matter and advise her client that she was no longer employed at Kaplan.
Nezar said this was insincere.
On urgency, he said family matters were personal, so Ferns had developed close relationships with clients.
“[She] is perfectly poised to persuade [them] to terminate their mandate.”
In responding papers, Ferns said she had been advised to refrain from dealing with evidence pertaining to her constructive dismissal dispute, which would be arbitrated by the CCMA.
She said she opposed the application because:
- Any alleged urgency is entirely self-created and contrived;
- There is no binding restraint of trade capable of being enforced; and
- Kaplan’s sole aim is to stifle competition.
She said on February 7, Howard informed her they could discuss her exit.
She said self-evidently, Kaplan wanted her to leave.
“Additionally, in terms of Kaplan’s stipulated procedure, I was to introduce clients to my successor.
“My attorney responded on February 10.
“In the absence of a response, and in the circumstances where Kaplan had made it clear it no longer wished to continue the employment relationship, on March 5, my attorney advised of my immediate resignation.”
She said the firm was advised of her intention to proceed with an urgent labour court application to resolve the restraint issue and that, meanwhile, she undertook to advise her erstwhile clients that until told otherwise, she could not act for them.
“While it transpired that there is no extant agreement containing a restraint clause, this does not derogate from the fact that Kaplan was advised that I had undertaken to comply.
“I agreed to hold matters in abeyance until March 10, and as such, we did not proceed with the drafting of labour court papers.
“However, Kaplan proceeded to serve this application without prior warning as a deliberate strategy to delay the issuing of papers in the labour court so that they could first issue papers.
“The urgency relied on is contrived to undermine my envisaged court application and to obtain an advantage.”
She said she only went to court for a postponement after her resignation because she could not abandon her client.
“I have noted that Kaplan states that I am ‘established as a successful and reputable family lawyer.’
“Consequently, clients may wish to continue a relationship with me.
“It is untenable for Kaplan to now revert to the 2012 contract, knowing [it’s] no longer enforceable.”
In any event, she said, the restraint was too wide and unreasonable.
“It seeks to prohibit me from dealing with my erstwhile clients even if they choose to terminate Kaplan’s mandate.
“I’m optimistic I can establish my practice without solicitation.”
She said if the court found a valid restraint clause in place, it should not give effect to it on the basis that it was unreasonable.
Ferns denied deleting the firm’s files and said those removed were personal documents.
The Herald
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