Chapter 2 Flashcards
What new term was introduced by the Legal Practice Act 28 of 2014 in the South African legal system?
The term “legal practitioner” was introduced by the Legal Practice Act 28 of 2014.
When did the Legal Practice Act 28 of 2014 come into effect?
The Act came into effect on 1 November 2018.
How does the Legal Practice Act define a “legal practitioner”?
A legal practitioner is an attorney or advocate admitted and enrolled as such in terms of the Act (s 1.19).
How does the Legal Practice Act define an “attorney”?
An attorney is a legal practitioner who is admitted as an attorney under the Act (s 1.3).
How does the Legal Practice Act define an “advocate”?
An advocate is a legal practitioner who is admitted as an advocate under the Act (s 1.2).
How were legal professionals traditionally categorized before the Legal Practice Act?
Before the Legal Practice Act, legal professionals were divided into two groups: Attorneys
Advocates
What change did the Legal Practice Act introduce regarding legal practitioners?
The Act introduced a third category of legal practitioner, called a “trust account advocate.”
What is a trust account advocate?
A trust account advocate is an advocate who practices with a Fidelity Fund Certificate and may take instructions directly from clients, similar to attorneys.
What are the three types of legal practitioners recognized under the Legal Practice Act?
Attorneys
Advocates (counsel)
Trust account advocates
Which chapter of the Code of Conduct deals with the conduct of attorneys?
Chapter III of the Code of Conduct deals with the conduct of attorneys.
Which chapter of the Code of Conduct deals with the conduct of advocates?
Chapter IV of the Code of Conduct deals with the conduct of advocates (also referred to as “counsel” to distinguish them from trust account advocates).
Which chapter of the Code of Conduct deals with the conduct of trust account advocates?
Chapter V of the Code of Conduct deals with the conduct of trust account advocates.
What is the role of attorneys in the legal profession?
Attorneys are the “general practitioners” of the legal profession. They do legal work for the public, provide legal advice, draft legal documents, negotiate settlements, and prepare cases for court.
Why is an attorney’s office also called a law firm?
An attorney’s office is called a law firm because attorneys handle a variety of legal and administrative matters for individuals, businesses, associations, and corporations.
What types of legal work do attorneys handle?
Attorneys provide legal and personal advice, draft legal documents, negotiate dispute settlements, and prepare cases for court presentation.
Do all attorneys appear in court?
Some attorneys frequently appear in court, but most refer higher court cases to advocates.
How has legal specialization affected attorneys?
We live in an era of specialization, and some attorneys focus on specific areas of law, such as patents and trademarks.
What are the substantive requirements for admission as an attorney under the Legal Practice Act 28 of 2014?
A: To be admitted as an attorney, a person must:
Be a South African citizen or permanent resident.
Be a fit and proper person.
Hold an LLB degree or an equivalent foreign law degree recognized by SAQA.
Complete the requirements set out in the Regulations.
What additional requirements do the Regulations prescribe for attorneys?
The Regulations require that a candidate attorney:
Serve under a “practical vocational training (PVT) contract” with a practising attorney.
Complete a “programme of structured coursework” (PVT School).
Pass all four attorneys’ admission examinations.
What is a Practical Vocational Training (PVT) contract?
A PVT contract, also known as articles or clerkship, is a period of training under a practising attorney that provides practical skills and experience in the legal profession.
What are the two components of Practical Vocational Training (PVT)?
1) PVT contract – A candidate attorney works at a law firm to gain practical experience.
2) PVT programme of structured coursework – Also known as PVT school, this provides additional practical training and knowledge.
What is the purpose of the PVT school?
The PVT school supplements clerkship experience by providing structured training and knowledge required for legal practice.
What exams must a candidate attorney pass to be admitted as an attorney?
A candidate attorney must pass all four attorneys’ admission examinations.
What advice should be given to someone who wants to study law to become an attorney?
To become an attorney, they must:
Obtain an LLB degree.
Be a South African citizen or permanent resident.
Be a fit and proper person.
Complete a PVT contract (articles or clerkship).
Complete a structured PVT course (PVT School).
Pass all four attorneys’ admission exams.
Areas of specialisation by different departments in a law firm
* Conveyancing
* Debt collection
* Administration of estates - (and estate planning)
* Civil litigation - (High Court & Magistrates’ Courts)
* Criminal litigation - (High Court & Magistrates’ Courts)
* Accountancy
* Legal documents - (general and notarial)
* Commercial
* Matrimonial
* Labour disputes
Do attorneys automatically have the right of appearance in the High Court?
No, attorneys do not automatically have the right of appearance in the High Court, the Supreme Court of Appeal, or the Constitutional Court.
What must an attorney do to gain the right of appearance in the High Court?
An attorney must apply to the Registrar of a High Court to be granted the right of appearance.
What are the requirements for an attorney to successfully gain the right of appearance in the superior courts?
The attorney must:
Be admitted as an attorney.
Be in good standing with the Legal Practice Council (LPC).
If an attorney’s application for the right of appearance is successful, in which courts may they appear?
The attorney may appear in:
The High Court
The Supreme Court of Appeal
The Constitutional Court
How has the role of attorneys in superior courts changed in recent times?
Attorneys are appearing in superior courts more frequently, and some large law firms appoint specialist litigators as partners.
Which section of the Code of Conduct regulates the conduct of legal practitioners regarding court appearances?
Section 54.1 of the Code of Conduct.
What does Section 54.1 of the Code of Conduct regulate?
It regulates the conduct of legal practitioners and candidate legal practitioners in relation to appearances in any court where they have the right of appearance or before any tribunal performing a judicial, quasi-judicial, or administrative function.
: What are the two specialist qualifications that some attorneys can achieve?
: Attorneys can qualify as:
Conveyancers
Notaries
What is a conveyancer?
A conveyancer is an attorney who has passed the conveyancing examination and is enrolled as a conveyancer, allowing them to perform legal work related to immovable property.
What type of work do conveyancers perform?
Conveyancers handle the transfer of land and immovable property, including:
Preparing deeds of transfer for land transfers
Preparing mortgage bonds for the registration of mortgages
Issuing certificates of registered title for substituted title deeds
Drafting other documents related to immovable property
Why is a conveyancer considered a specialist attorney?
A conveyancer is trained and qualified to handle all transactions relating to immovable property that require registration in the Deeds Registry.
What is a notary (or notary public)?
A notary is an attorney who has passed the notarial examination and is enrolled as a notary, allowing them to perform notarial work in addition to general legal work.
: What types of deeds must be executed by a notary before being registered in the Deeds Registry?
Deeds requiring execution by a notary include:
Servitudes
Notarial bonds
Antenuptial contracts (before marriage)
Postnuptial contracts (after marriage)
What other functions does a notary perform?
A notary also handles:
Execution and/or registration of marriage contracts
Authentication of powers of attorney
Cessions of certain rights
What is a notarial protocol?
A notarial protocol is an official register maintained by a notary that records all deeds they handle. It contains original copies of these deeds in numerical and date order, serving as a public record that must be kept secure.
: How is a notary different from a general attorney?
A notary is held to a higher standard of care due to the ethical nature of their services and their specialist knowledge in drafting and legalizing documents.
Who was the main source of guidance on legal ethics before the enactment of the Code of Conduct?
Lewis was the main source of guidance on legal ethics before the enactment of the Code of Conduct.
What does the Code of Conduct prescribe regarding the ethical duties of legal practitioners?
The Code of Conduct prescribes that legal practitioners and candidate attorneys must adhere to ethical rules such as honesty, integrity, upholding constitutional values, prioritizing client interests within legal and ethical limits, and maintaining confidentiality, among others.
Why is there a belief that ethical principles should be emphasized at the tertiary level?
It is believed that there is a moral crisis in the legal profession, making it necessary to emphasize ethical principles from an early stage in legal education.
What are the four overriding considerations that limit an attorney’s duty to prioritize a client’s interests?
:
Duty to the court
Interests of justice
Observance of the law
Maintenance of ethical standards
According to the Code of Conduct, what must legal practitioners do to maintain professional integrity?
They must maintain honesty, avoid conflicts of interest, respect confidentiality, treat colleagues professionally, and not bring the profession into disrepute.
What is required regarding legal fees according to the Code of Conduct?
Attorneys must charge a reasonable fee for their work.
How does the Code of Conduct ensure legal practitioners remain competent?
It requires them to remain updated on the latest legal developments and only take on work they can competently and timely complete.
Why must legal practitioners respect a client’s choice of legal representative?
Because it upholds the principle of legal autonomy and ensures clients receive fair representation.
What obligation do attorneys have regarding their clients’ funds?
They must account faithfully, accurately, and timeously for their clients’ money.
What does the Code of Conduct state about generating unnecessary work for clients?
Attorneys must advise clients early about the merits of a case and not generate unnecessary work that would increase costs unfairly.
What ethical issue did AJ Shapiro highlight in Grundler N.O and Another v Zulu and Others?
He criticized the rising trend of legal practitioners showing disrespect to courts, launching baseless applications, and adopting a “win at all costs” mentality that harms the profession and justice system.
What ethical responsibilities do attorneys have beyond their clients?
Attorneys have ethical duties towards the court, witnesses, and the public.
How does disrespect towards the judiciary negatively impact the legal profession?
It undermines the justice system, promotes unethical practices, and sets a poor example for the public and future legal professionals.
Why is it unethical for attorneys to launch “spurious applications”?
Because such applications lack a factual or legal foundation and are designed to delay, obstruct, or achieve ulterior objectives rather than serve justice.
What separate duty do attorneys owe to the court apart from their duty to clients?
Attorneys must uphold justice, maintain integrity, and ensure that legal proceedings are conducted fairly and ethically, even if it conflicts with their client’s interests.
⚖️ What is an attorney’s duty regarding obeying a client’s instructions?
An attorney must obey their client’s instructions but not absolutely. They can refuse instructions that are unlawful, unethical, or breach statutory duties, court orders, professional rules, or ethical standards. 🚫⚖️
📜 What does paragraph 3.3 of the Code of Conduct state about an attorney’s duty to their client?
Attorneys must treat their client’s interests as paramount, but their conduct is always subject to:
✅ Duty to the court ⚖️
✅ Interests of justice ⚖️
✅ Observance of the law 📖
✅ Maintenance of ethical standards 📜
🤝 What does paragraph 3.4 of the Code of Conduct say about undertakings given by attorneys?
Attorneys must honour any undertaking given in the course of their practice, unless prohibited by law. ✅🤝
❌ Can an attorney rely on false statements in court?
No! Paragraph 57.9 of the Code of Conduct states that an attorney must not rely on any statement they know to be false. 🚫⚖️
⚖️ In a conflict between a client’s instructions and the attorney’s duty to the court, which takes precedence?
The attorney’s duty to the court always takes precedence over the client’s instructions. 📜⚖️
🔍 What key ethical principles were emphasized in the English case Rondel v Worsley?
A legal practitioner must:
📢 Not be a mere mouthpiece of the client
⚖️ Prioritize truth and justice over client instructions
📢 Never misstate facts or hide the truth
📖 Disclose all relevant legal authorities, even those against their case
📂 Ensure clients disclose relevant documents, even if damaging
🏛️ According to Rondel v Worsley, what is a lawyer’s highest allegiance?
A lawyer’s highest allegiance is to the cause of truth and justice 🏛️⚖️, not just to their client’s wishes
⚠️ What happens if an attorney knowingly breaks ethical rules?
They violate the rules of the profession, offend the code of honour, and can face disciplinary action. 🚨⚖️
🔥 Why must attorneys be fearless in choosing between duty to the client and duty to the court?
Because they must uphold the integrity of the legal system, even if it means disregarding a client’s direct instructions. 🏛️💪
⚖️ What does the duty of absolute honesty require from an attorney?
Attorneys must be open, frank, and honest in disclosing facts and law before the court. This duty prohibits:
❌ Deliberate lies
❌ Misleading statements
🏛️ What did the Supreme Court of Appeal (SCA) say in Vassen v Law Society of the Cape of Good Hope about attorneys?
Attorneys are part of an honourable profession that demands:
✅ Complete honesty
✅ Reliability
✅ Integrity
📜 According to section 3.1 of the Code of Conduct, what is a fundamental duty of attorneys?
Attorneys must maintain the highest standards of honesty and integrity. 💯⚖️
🚨 What happened in Motswai v Road Accident Fund when an attorney lied about a client’s injury?
The court described the attorney’s actions as:
❌ Legally untenable
❌ Iniquitous (morally wrong)
❌ Ethically unconscionable
📌 The case was referred to the Law Society of the Northern Provinces for investigation.
📅 What was the ethical issue in Mzayiya v Road Accident Fund?
A legal practitioner admitted to falsifying the date of an accident, claiming it happened 12 years later than the actual event. ⏳🚨
⚠️ What does Paragraph 82 of Mzayiya v Road Accident Fund state about misleading the court?
Attorneys must not:
❌ Mislead the court on evidentiary or legal points
❌ Offer or rely on false evidence
❌ Induce a witness to give dishonest testimony
❌ Draft documents containing false statements
💣 Suppressing evidence or suborning perjury is a serious attack on justice!
🔑 What was the main ruling in Kekana v Society of Advocates of South Africa?
Advocates must uphold:
✅ Unwavering personal integrity
✅ Meticulous honesty
📌 Those who fail to meet these ethical standards are unfit for the profession! 🚫⚖️
⚖️ What is the duty not to corrupt the administration of justice?
Legal practitioners must:
✅ Foster respect for the law 🏛️
✅ Never breach the law or help others do so ❌
✅ Ensure public confidence in the legal system at all times 👨⚖️
📜 What does section 3.15 of the Code of Conduct say about protecting the legal profession?
Attorneys must not do anything that:
❌ Brings the legal profession into disrepute
✅ Upholds the dignity of courts and court officers
⏳ What is the duty to conduct cases efficiently and expeditiously?
Legal practitioners must:
✅ Only accept cases they can handle properly ⚖️
✅ Avoid double bookings 📅❌
✅ Provide quality legal service to clients
📜 What does section 3.10 of the Code of Conduct say about advising clients?
Attorneys must:
✅ Advise clients early on case merits 🕰️
❌ Avoid generating unnecessary work just to increase costs 💰
💼 What does section 3.11 of the Code of Conduct require regarding legal work?
Attorneys must:
✅ Perform work competently and on time 📅⚖️
✅ Only take on work they can handle effectively
🏛️ According to paragraph 9.9, how should attorneys give legal advice?
Attorneys must:
✅ Give an honest opinion on case prospects 🎯
❌ Not mislead clients to fit their wishes 🚫
📌 If a case has weak prospects, the attorney can still present it properly upon the client’s insistence.
📄 What was the issue in Feni v Gxothiwe and Another?
The legal practitioner submitted poorly drafted heads of argument that:
❌ Failed to address key issues
❌ Showed no insight into the case
❌ Were not even proofread
📌 The court ruled that such poor work undermines justice! ⚖️
What is the duty of legal practitioners regarding the court’s process? ⚖️
Legal practitioners must not abuse or permit the abuse of court processes. They must act to promote the efficacy of the legal process and avoid delaying cases unnecessarily. ⏳🚫
What does paragraph 60.1 of the Code of Conduct state? 📜
Paragraph 60.1 states that a legal practitioner shall not abuse or permit abuse of the court process and must act to promote the effectiveness of legal proceedings. 🔍⚖️
What is the duty of legal practitioners under paragraph 60.2 of the Code of Conduct? ⏱️
✅ Answer: Legal practitioners must not deliberately prolong the duration of a case before a court or tribunal. ⌛🚫
❓ Question: How does paragraph 60.3 of the Code of Conduct address court punctuality? ⏰
✅ Answer: It requires legal practitioners to take reasonable steps to arrive promptly at court or tribunal appearances, considering potential delays. 🚗⚖️
❓ Question: What does paragraph 60.4 of the Code of Conduct require of legal practitioners regarding scheduling? 📅
✅ Answer: Legal practitioners must honour court commitments and organize other obligations to prevent interference with scheduled court hearings. 📜✅
❓ Question: What does paragraph 57.4 of the Code of Conduct state regarding ex parte applications? 📜⚖️
✅ Answer: In ex parte proceedings, legal practitioners must act with utmost good faith and disclose all material facts that could influence the court’s decision. 🏛️🛡️
❓ Question: Why must legal practitioners disclose all material facts in ex parte applications? 🤔
✅ Answer: Orders granted without notice to affected parties depart from the audi alteram partem principle, making full and fair disclosure essential to ensure justice. ⚖️🗣️
❓ Question: What did the court rule in Schlesinger v Schlesinger regarding incomplete information in ex parte orders? ⚖️
✅ Answer: The court held that it would frown upon ex parte orders obtained on incomplete information and would likely set them aside. 🚫📜
❓ Question: What does paragraph 57.7 of the Code of Conduct require from legal practitioners in legal proceedings? 📖
✅ Answer: Legal practitioners must disclose all relevant legal authorities they are aware of that could materially impact the court’s decision. 📚⚖️
❓ Question: What did the court say in Ulde v Minister of Home Affairs & Another about legal research? 📜
✅ Answer: The court emphasized that counsel must research and present an honest account of the law, never suppressing unfavorable case law. 📚🧐
Question: Can a legal practitioner appeal a referral of their conduct to the Law Society? ⚖️
✅ Answer: No, as held in Ulde v Minister of Home Affairs and Another, such referrals are not judgments or orders and cannot be appealed. ❌📜
❓ Question: Are legal practitioners allowed to bring hopeless cases to court? 🏛️
✅ Answer: No, paragraph 9.9 of the Code of Conduct states that legal practitioners must provide an honest opinion on case prospects and not pander to a client’s wishes. ❌⚖️
❓ Question: Under what condition can a legal practitioner present a weak case to court? 🤷♂️
✅ Answer: If a client insists, the practitioner may present the case but must do so to the best of their ability while advising the client of the risks. 🎭⚖️
❓ Question: What did the court decide in University of South Africa v Socikwa & Others regarding hopeless cases? 🏛️
✅ Answer: The court barred legal representatives from charging fees in a hopeless case, reinforcing the duty to advise clients against pursuing meritless claims. 💰🚫
❓ Question: Why should legal practitioners document advice given to clients on weak cases? 📜
✅ Answer: To protect themselves against complaints to the Legal Practice Council (LPC) or refund claims from clients for fees paid in futile cases. 🛡️💼
What is a legal practitioner’s duty to fair administration of justice? ⚖️
A legal practitioner must act in a way that upholds justice, ensuring fairness, integrity, and respect for legal processes. They must not mislead the court or abuse procedural rights.
What is the duty of confidentiality in legal practice? 🤫
Legal practitioners must keep client information private and not disclose confidential details without permission, except when legally required.
In the case of WDL and Others v Gundelfinger and Others, why was the lawyer’s move to a new firm not considered a breach of confidentiality? 🔄
The court found that under the specific circumstances, the lawyer’s move did not violate confidentiality, likely because safeguards were in place to prevent misuse of privileged information.
What is the duty of honesty and reliability towards colleagues? 🤝
Legal practitioners must be honest, reasonable, and reliable in their interactions with fellow lawyers, avoiding deceptive or unfair practices.
ccording to Section 61 of the Code of Conduct, how should legal practitioners handle ill-feelings between litigants or colleagues? ⚖️💬
They must not allow personal disputes to interfere with professional conduct and should maintain civility and respect in legal matters.
What does Paragraph 61.10 of the Code of Conduct say about personal remarks? 🗣️🚫
Legal practitioners must not make personal attacks on opposing lawyers or witnesses, whether inside or outside court.
According to Lewis, what kind of conduct should a legal practitioner avoid? 🚷
Any conduct that, if known, could damage their reputation as an honourable lawyer and citizen.
Name five duties an attorney must fulfil to uphold their honour and integrity. 🏅
Be honest and fair 🤝
Be loyal to the State 🇿🇦
Uphold and apply the law ⚖️
Provide the best service to clients 👩⚖️
Maintain the integrity of the legal profession 🏛️
What does Paragraph 3.14 of the Code of Conduct require from attorneys in their interactions with others? 🌍
They must behave with integrity, fairness, and respect, avoiding unfair discrimination and refraining from insulting or demeaning behavior.
❓ What does it mean for an attorney to be “fit and proper”?
✅ Answer: A person who displays the characteristics of honesty, integrity, and reliability. 💼⚖️✨
❓ Why must an attorney be “fit and proper” to be admitted to the legal profession?
✅ Answer: Attorneys must uphold ethical standards and avoid illegal, fraudulent, or dishonest conduct to maintain public confidence in the profession. 🏛️🔍💯
❓ According to Judge Legodi, what qualities define a “fit and proper” legal practitioner?
✅ Answer: Integrity, objectivity, dignity, hard work, respect for legal order, and a sense of equality or fairness. ⚖️🏆👏
❓ According to the Law Society of South Africa, name three essential characteristics of a good attorney.
✅ Answer:
Impeccable honesty 🏅
Decisiveness and objectivity ⚖️
Ability to handle stress and pressure 🔥
❓ What is the most important characteristic of a lawyer, according to the Law Society of South Africa?
✅ Answer: A well-developed sense of fairness and justice, along with a willingness to serve people. 💖⚖️
❓ Van der Westhuizen J identified seven qualities essential for legal practitioners. Name four.
✅ Answer:
Integrity (most important!) 🏅
Strong work ethic 💪
Respect for people 🤝
Sound value system 🎯
❓ Why is integrity considered “the first and last word” in legal ethics?
✅ Answer: Without integrity, other qualities like independence and intellect can become dangerous or meaningless. ⚖️🚫
❓ What must an applicant confirm in their application for admission as a legal practitioner? (Rule 17 of the LPC)
✅ Answer:
They are a fit and proper person. ✅
If they have any previous criminal convictions or pending investigations. 🚔
If they have been subjected to disciplinary proceedings. ⚖️
If their estate has been sequestrated. 🏦
❓ What does legal ethics involve?
✅ Answer: The minimum standards of conduct in the legal profession, covering duties to colleagues, clients, and courts. ⚖️📜
❓ What are the two disciplines combined in legal ethics?
✅ Answer: Law ⚖️ and Ethics 🏅
❓ What is an attorney’s lien?
✅ Answer: An attorney’s lien is the right to retain certain documents in their possession until they are properly paid for their work and expenses related to a specific mandate. ⚖️📑💼
❓ Why is an attorney’s lien important?
✅ Answer: It protects attorneys from clients who change attorneys without paying their costs. 💸🔒
❓ In Botha vs Mchunu, what did the court decide about an attorney’s lien?
✅ Answer: The court held that the lien extends not only over documents prepared by the attorney but also to all work, time, and labor invested in the matter. ⚖️⏳
❓ What are the documents subject to an attorney’s lien?
✅ Answer:
Documents prepared by the attorney for the matter until fees and disbursements are paid. 📄💼
Copies of letters written on behalf of the client to third parties. 📨✉️
Documents read, perused, or used by the attorney in their work. 📑📚
❓ What documents are NOT subject to an attorney’s lien?
✅ Answer:
Replies from third parties to letters written by the attorney on behalf of the client. 📨❌
Documents received from third parties. 📜🚫
Documents irrelevant to the matter and not used by the attorney. 🗂️❌
❓ What happens to the documents over which an attorney has a lien once the client has paid in full?
✅ Answer: The documents should be handed over to the client once the outstanding account is settled. 💵📂
❓ How does the LPC handle urgent matters regarding an attorney’s lien?
✅ Answer: The LPC balances the client’s interest against the attorney’s, and if the new attorneys are willing to pay the fees once received from the client, the file may be handed over to them. ⚖️💼⏰
❓ What are the documents subject to an attorney’s lien, as defined in the text?
✅ Answer: Documents on which the attorney has bestowed skill and labor. 📝💪
❓ Which documents may an attorney retain in their possession until the client pays the account in full? (Hint: See 2.9.3)
✅ Answer: Documents listed in paragraph 2.9.3, such as those prepared by the attorney, letters written on the client’s behalf, and documents used in the attorney’s work. 📜⚖️
Q: What are the two types of advocates under the Legal Practice Act? ⚖️
1️⃣ Advocates under S 34(2)(a)(i) – Traditional advocates who receive instructions only from attorneys.
2️⃣ Trust Account Advocates under S 34(2)(a)(ii) – Can take instructions directly from clients but must have a trust account and a Fidelity Fund Certificate.
Q: What is the key difference between traditional advocates and trust account advocates? 🤔
Traditional advocates (S 34(2)(a)(i)) cannot take instructions directly from clients, while trust account advocates (S 34(2)(a)(ii)) can take direct instructions but must have a trust account and a Fidelity Fund Certificate. ✅
Q: What document regulates the conduct of traditional advocates? 📜
Chapter IV of the Code of Conduct applies to traditional advocates (S 34(2)(a)(i)).
Q: What document regulates the conduct of trust account advocates? 🏦
Chapter V of the Code of Conduct applies to trust account advocates (S 34(2)(a)(ii)).
: Why are traditional advocates also called “counsel”? 🎓
To distinguish them from trust account advocates, who have a different mode of practice.
What is the primary role of an advocate? ⚔️
Advocates specialize in litigation and legal arguments, often appearing before judges in the High Court. They are specialist litigators.
Where do advocates usually work? 🏛️
Advocates often work in advocates’ chambers (shared office spaces) but do not form partnerships like attorneys.
How do traditional advocates (S 34(2)(a)(i)) receive work? 📂
they receive briefs (instructions) only from attorneys, not directly from clients.
Why can’t traditional advocates (S 34(2)(a)(i)) deal directly with the public? 🚫
The common law principle dictates that they must receive instructions from attorneys, who act as intermediaries between them and clients.
What is the role of an attorney in relation to an advocate? 👨⚖️➡️👨⚖️
Attorneys consult with clients first and only refer them to an advocate if necessary. The advocate then works with the client in the presence of the attorney.
What does Part IV of the Code of Conduct say about advocates? 📖
Advocates are independent practitioners and agents of the rule of law, resisting undue influence and serving all people, especially the indigent.
What is the fundamental vocational duty of an advocate? 🎯
Advocacy is a vocational profession that serves the public interest, requiring fiduciary duties towards the courts, clients, and colleagues.
Who admits advocates in South Africa? ⚖️
Advocates are admitted by the High Court after applying for enrolment under the Legal Practice Act. 📜
What must a candidate indicate when applying for enrolment as an advocate? 🖊️
They must indicate their intention to practise as an advocate in their application. ✅
What is a pupil in the context of legal practice? 🎓
A pupil is a candidate legal practitioner undergoing practical vocational training to become an advocate.
How long does pupillage last? ⏳
Pupillage lasts one year (12 months) under the supervision of a practising advocate or an advocate at a law clinic. 🏛️
What are the admission requirements for an advocate? 📋
A pupil must satisfy the court that they:
1️⃣ Are a South African citizen or permanent resident. 🇿🇦
2️⃣ Are a fit and proper person. ✅
3️⃣ Have an LLB degree (or an equivalent foreign law degree recognized by SAQA). 🎓
4️⃣ Completed 12 months of pupillage under a practising advocate. ⏳
5️⃣ Completed 400 notional hours of structured coursework. 📚
6️⃣ Passed the bar examinations. 🏆
What is “taking silk”? 🎭
“Taking silk” is the honour of being appointed as senior counsel (SC) after 10 years of experience. It refers to the silk robe worn by senior advocates. 👔
Who appoints senior advocates? 🤵♂️
The President of South Africa appoints senior counsel (SC). 🇿🇦🏛️
What does “SC” stand for in an advocate’s title? 🔠
“SC” stands for Senior Counsel, a title granted to experienced advocates who have taken silk.
What term does the Code of Conduct use instead of “advocate” for traditional advocates? 🏛️
The Code of Conduct uses the term “counsel” instead of “advocate” for S 34(2)(a)(i) advocates. 📖
What is the referral rule for advocates? ⚖️
Advocates (counsel) may only accept briefs from attorneys and not directly from any other person or entity. 🚫👤
What are the exceptions to the referral rule? 🔄
Advocates may accept briefs from:
1️⃣ Justice centres 🏛️
2️⃣ Foreign attorneys 🌍
3️⃣ State attorneys ⚖️
4️⃣ Attorney general or director of public prosecutions 👨⚖️
How should briefs be given to an advocate? 📝
Briefs must be given in writing or by email. 📧 If urgent, an oral brief may be accepted but must be confirmed in writing. ✍️
What must counsel do if an oral brief is accepted due to urgency? ⏳
Counsel must insist on a written or emailed brief as soon as possible. If not received, they must confirm the oral brief in writing. 📄
Where should consultations with advocates take place? 🏢
Consultations should be held in counsel’s chambers. Only in exceptional circumstances may they be held elsewhere. 🚪
When can an advocate consult outside their chambers? 🏠
: If circumstances make it impractical to consult in chambers, an advocate may meet at:
✔️ Attorney’s office 🏢
✔️ Client’s office 👔
✔️ Home of counsel 🏡
✔️ Location of witnesses 👥
✔️ Places distant from chambers 🌍
Must an attorney be present at all consultations with an advocate? ⚖️
Yes! An attorney, candidate attorney, or representative must always be present at consultations and court appearances. 🚫🔑
Can an advocate appear in superior court without their instructing attorney? ⚖️
No, unless the instructing attorney or their representative is immediately accessible. 📞
What happens if an attorney cannot attend a consultation? ❌
The attorney must:
✔️ Arrange for a partner, assistant, or candidate attorney to attend. 👥
✔️ If the client insists on the attorney’s presence, postpone the consultation. 📅
Can an attorney require an advocate to consult at the attorney’s office? 🏢
No, the General Bar Council rules prohibit this unless the advocate gets special permission. ✅
Is it advisable to agree on a fee with counsel in advance for their court appearance?
✅ Yes, it is both in order and advisable for an attorney and advocate to agree on a fee in advance. This avoids surprises and ensures the client is well-informed about cost implications. Proper arrangements should be made beforehand.
Can an attorney pre-mark the fee on a brief before discussing it with the advocate?
🤔 Yes, an attorney may mark a brief with a fee beforehand, but it is not advisable. If the attorney does so, the advocate has the right to either accept or refuse the brief. Ethically, it is better for the attorney to discuss the fee with counsel before instructing them.
How is a dispute over the fees charged by an advocate resolved?
If a dispute arises over an advocate’s fees, the following steps should be taken:
1️⃣ Discuss the fees with counsel and try to resolve the issue. 🗣️
2️⃣ If unresolved, refer the matter to the Bar ombudsman, who will mediate. 🤝
3️⃣ If mediation fails, lodge a complaint with the Secretary of the Bar Council, who will arrange a formal hearing to resolve the dispute. 🏛️
Who is responsible for paying an advocate’s fees?
The attorney is always liable for counsel’s fees. The obligation arises from an agreement between the parties, which may be express or implied. Counsel must only be paid by an attorney, not directly by a client. 🚫💵👨⚖️
Can an advocate send an invoice directly to a client for payment?
❌ No. Counsel must submit their invoice only to the instructing attorney. However, an exception exists: If there is an agreement between the attorney and client, counsel may send an invoice to the client—but a copy must also be sent to the attorney.
Can an advocate sue an attorney for unpaid fees?
✅ Yes. An advocate can sue an attorney personally for unpaid fees. The case Solomon and Another v Junkeepersad confirmed that an advocate may take legal action against an attorney without suing the law firm. If the attorney is part of an incorporated firm, all members of the firm may also be held liable.
What type of work may counsel undertake?
Counsel may undertake various legal tasks, but they cannot do work that is properly that of an attorney. The Code of Conduct provides a list of permissible work, but it is not exhaustive.
Why was Mr. Röseman suspended as an advocate in Röseman v General Council of the Bar of SA?
Mr. Röseman was suspended because he issued summonses and signed pleadings, which are functions usually performed by an attorney. The court reaffirmed that the legal profession for advocates is a referral profession. 🚫🖊️📑
What is the principle of independence of counsel?
Counsel must remain independent and act in the best interests of the client, without undue influence. They must not become personally associated with a client’s interests. If the instructing attorney or client disagrees with counsel’s advice, the brief may be surrendered.
Can counsel settle a case on behalf of a client without prior authorization?
❌ No. Counsel cannot enter into a binding settlement without express and specific instructions from the instructing attorney. This ensures that the client’s rights are protected and that the attorney remains in control of the legal strategy.
When can counsel refuse a brief?
Counsel is generally obliged to accept a brief, even if they dislike the client or their opinions. However, they may refuse a brief in certain cases, such as:
1️⃣ If they lack the competence to handle the case.
2️⃣ If an agreement on fees cannot be reached.
3️⃣ If a family member or close associate is presiding over a criminal case.
What were the common law rules regarding an advocate’s contractual relationship with a client?
A1: According to common law, the advocate had to:
Take instructions only through an attorney.
Have the attorney present during consultations.
Render accounts to the attorney, not the client.
Receive payments via the attorney.
Sue the client only if the attorney failed to pay.
What does Section 34 of the Legal Practice Act state regarding the distinction between attorneys and advocates?
Section 34 of the Legal Practice Act preserves the distinction between attorneys and advocates while introducing a third category—trust account advocates—who can take instructions directly from clients.
Q3: What are the two ways in which advocates can render legal services under the Legal Practice Act?
A3: Advocates can provide legal services:
1️⃣ Upon receipt of a brief from an attorney.
2️⃣ Upon direct request from a client or justice centre (subject to additional conditions).
What are the requirements for an advocate to take direct instructions from the public?
The advocate must:
Hold a Fidelity Fund Certificate.
Notify the Council of their status.
In what settings can trust account advocates legally practice?
Trust account advocates may practice:
Independently (for their own account).
At a law clinic.
As part of Legal Aid South Africa.
As a state advocate (full-time government employment).
With the South African Human Rights Commission.
What special rule applies when trust account advocates accept instructions from attorneys or the public?
A reference to a brief includes:
Accepting an instruction from an attorney.
Accepting an instruction directly from a member of the public or a justice centre.
Can trust account advocates appear in superior courts without their instructing attorney or client?
Yes, but only if they can maintain contact with:
The instructing attorney (if briefed by an attorney).
The client (if directly instructed by a member of the public).
Who is responsible for paying the fees of a trust account advocate?
If briefed by an attorney → The attorney pays the fees.
If directly instructed by a client → The client pays the fees.
Under what circumstances can a trust account advocate receive payment from a source other than the instructing attorney?
If the attorney is insolvent or unable to pay, the advocate may receive payment from another source with permission from the Council.
Can trust account advocates sue clients for unpaid fees?
Yes, if a client directly instructed them, they may recover outstanding fees through legal action.
How must trust account advocates determine and communicate their fees?
They must:
Charge only a reasonable fee.
Disclose their fees when accepting a brief.
Inform the attorney or client of their fee structure upfront.
What banking rules must trust account advocates follow?
They must:
Maintain trust banking accounts as per Chapter 7 of the Legal Practice Act.
Ensure all client payments go into the appropriate trust account.
