Chapter 1 - Ethics Flashcards
Explain the concept of professional conduct
- rules of conduct regulating the legal profession
- norms of a Fit and proper person
- Regulate persons conduct and personal life
Where does one find the rules of professional conduct
Legal Practice Act
Code of Conduct
Legal Practice Rules
Common Law
Textbooks (South Africa)
Repealed Attorneys’ Act
Foreign Influences
Where do professional conduct rules apply
Relationship with:
1. client
2.other Practitioners
3. Courts
4. Public
5. State
6. LPC
What are professional legal ethics
- concern themselves with the rules of conduct regulating the attorneys’ profession
- norms in terms whereof practitioners are judged to be fit and proper
name two types of Advocates
- Trust account Adv
- Referral Adv
What if the Fidelity Fund
- protects the public from property fraud and corrupt practitioners
- ensures that funds are handled responsibly
Reimburses the public if money or property is stolen from a trust account
how long is a fidelity fund certificate valid
one year. From Jan - Dec
Who needs a Fidelity Fund certificate
Attorneys, Adv and trust account holders
Explain Section 15 of Attorneys Act
Require that an Attorney must be
- a fit and proper person
- be over 21 or older
- SA citizen
- has an LLB
- passed board exams
- attended approved training course
- has completed articles
What are the duties of an Attorney
- obey your client’s instructions
- absolute honesty
- not corrupt the administration of justice
- not to abuse the court process
- to confidentiality
- to be honest and fair
- not overcharge or overreach
what is an attorney’s Lien?
seeks to protect attorneys from clients who change their attorneys without paying their costs.
a Lien = the attorneys right to retain documents in his possession until the client has paid the account.
What is the role of a commissioner of oaths?
to assist members of the local community by administering an oath or affirmation and certify documents as true copies of originals
what question to ask when administering the oath / affirmation
- Whether he knows and understands the contents of the declaration
- whether he has any objection to taking the oath
- whether he considers the oath to be binding on his conscience.
what is a conflict of interest in an attorneys practice?
anything which is likely to affect your judgment adversely in advising or representing your client
what are the two ways you can have an contingency fee agreement
- no win no fee
- increased fee agreement- must not exceed 25% or 100% of fee which ever is less
key element of contingency fee
- must be in writing
- signed by both client and attorney
-must state that the client was properly advised in respect of fees - client understands the agreement
- amount due
with who can an attorney share fees with?
only other attorneys
what is FICA?
Financial Intelligence Centre Act 38 of 2001
purpose of FICA
the act was instituted in order to fight financial crime such as money laundering, fraud, tax evasion, terrorist financing activities and identity thefts
can an attorney receive cash payments?
yes- must report cash transactions above a prescribed amount within 72 hours.
this includes cash received in hand or cash deposited in bank account.
where to go when you are not sure whether conduct is ethical
consult with- Lewis
- own research
- LPC
- consult with Snr Counsel
what is the purpose of LPC
- admission / enrolment of legal practitioners
- regulates the professional conduct of legal practitioners
- establishment of an office of a legal service ombudsman
provides for fidelity fund certificate
can an attorney refuse any mandate
yes if-
- he does not have the expertise to do the work
-he does not have sufficient time
-he is in a conflict of interest situation
-cannot come to a arrangement about fees
- the instructions is unlawful, immoral or contrary to public policy
when can an attorney terminate his mandate
- failure to pay fees and/or disbursments
- improper conduct
- request from the client to do something illegal or dishonourable
-failure to provide attorney with instructions - client’s deliberate fraud
- illness of the attorney
- where client does not accept the attorneys advice
what is misconduct
- a breach of the act or code
-failure to comply with act or code - any conduct which is considered to be misconduct
-prevailing standard of conduct
what is overreaching
abuse the ignorance
charging client more
what is POPI?
Protection of Personal Information
what is the purpose of POPI
- aims to protect the personal information processed by public and private bodies
What is touting?
attorney procures or attempts to procure professional work in an improper or unprofessional manner or by unfair or unethical means
what is section 86(4)
when an attorney invest monies on behalf of client in an interest bearing account
5% interest goes to LPFF
95% interest goes to client
what is Edictal Citation
servicing not in South Africa
Ex parte application
what is Substituted Service
Service in SA but whereabouts not known
Ex Parte application
what is pro amico
free representation by an attorney for a friend
what is pro bono
to perform legal services for the public good or poor communities without charging fees
what is costs de bonis propriis
out of one’s own pocket
are awarded by our courts against attorneys, trustees or executors.
what is party and party costs
costs that have been incurred by a party to legal proceedings and that the other party is ordered to pay to him
what is attorney and client costs
costs which an attorney is entitled to recover from his or her client for the disbursements made by him on behalf of his client and the professional services rendered by him
what is attorney and own client costs
the remuneration that the attorney is entitled to in terms of the agreement / mandate
what is a fit and proper person
A practitioner is a fit and proper person if they possess qualities that reflect integrity and reliability.
Fit and proper means fit and proper in every respect and not only honesty and reliability.
Judge Legodi described a fit and proper person as someone possessing integrity, objectivity, dignity, capacity for hard work, respect for legal order and a sense of equality or fairness
List two sources of income for the Fidelity Fund
Interest on trust money
Income from own investments
What are the consequences of practicing without a Fidelity Fund Certificate?
Contravention of the Act and you may not claim fees for that time period. Can also be struck from the roll
You allow a client’s claim to prescribe. What steps must you take to Protect yourself
- the attorney must, immediately after the fact that the claim has prescribed becomes known, advise his professional indemnity insurer and the Attorneys Indemnity Insurance Fund of the potential claim.
-If a formal demand or summons is received, this must also be handed to the insurer(s) before entering a notice of intention to defend or taking any further step.
You allow a client’s claim to prescribe. What steps must you take to Protect the client
- The attorney must advise his client in writing that the claim has become prescribed.
-He must, however, not admit to negligence as this may vitiate his rights under his professional indemnity policy and the master policy issued by the Attorneys Indemnity Insurance Fund.
- The attorney must also advise his client to consult another attorney regarding the original claim and the prescription of that claim.
Discuss the concept of “Without Prejudice”
Without Prejudice – bona fide attempts of both parties to a matter to settle the matter.
What are the obligations of an attorney pertaining to FICA?
-Make such records available to the Financial Intelligence Centre on the strength of a warrant;
-Inform the centre on request of the existence of a current or past mandate;
-Report cash transactions above a prescribed amount (currently R50 000 and over) to the Centre; and
-Report to the Centre the conveyance in terms of a transaction with a client of cash above a prescribed amount to or through specified account or institution.
May an attorney defend an accused person who admits that he is guilty of an offence charged?
It is not unethical to defend a person whom the attorney knows to be guilty.
The onus is on the state to prove guilt.
The attorney may not mislead the court or allow the client to give evidence which the attorney knows to be untrue.
The attorney may, however, test the state witnesses by cross examination in regard to matters of identification, etc.
Before the start of a criminal trial in which you will represent the accused, you discover that the magistrate is the mother of the complainant. How would you apply the applicable ruses of conduct and what will you do if you are unsuccessful?
The magistrate must recuse herself.
Firstly, I will inform her in chambers (1) that I will apply for recusal.
If she declines, I will apply in open court (1).
If she still refuses I will continue with the case (i.e. no review/appeal) (1).
If my client is acquitted, then no harm had been done (1); however, if my client is convicted I will have grounds for review (1).
