Chapter 3 Flashcards
What is a common issue attorneys face regarding accounting systems?
Attorneys may not be familiar with accounting systems or computer programs.
This lack of familiarity can hinder effective financial management.
What is a recommended policy for attorneys regarding bookkeeping?
Employ a qualified or experienced bookkeeper.
A qualified bookkeeper can help navigate complex accounting requirements.
What should an attorney ensure when considering a new computer program?
The program complies with all requirements of legal practice bookkeeping.
This compliance is mandated by the Legal Practice Act and Regulations.
How can an attorney verify the effectiveness of a computer program?
Request testimonies of current users and make necessary enquiries.
Gathering feedback from current users can provide insights into the program’s functionality.
Fill in the blank: An attorney should do his own _______ regarding the compliance of a computer program.
research
True or False: It is acceptable for an attorney to solely rely on the bookkeeper’s recommendations without further investigation.
False
Attorneys have a responsibility to ensure compliance and suitability of any system used.
What is the purpose of employing an experienced bookkeeper?
To provide expertise in accounting and bookkeeping.
This expertise is crucial for managing financial transactions effectively.
Who does the Legal Practice Council’s Code of Conduct apply to?
✅ The Code of Conduct applies to:
All legal practitioners (attorneys and advocates) ⚖️
All candidate legal practitioners 🎓
All juristic entities as defined in the Code 🏢
When did the Legal Practice Council’s Code of Conduct become effective?
✅ The Code of Conduct became effective on 29 March 2019 📅
How many parts does the Code of Conduct have?
✅ The Code is divided into seven parts 📖
Which parts of the Code of Conduct apply to attorneys?
✅ The following four parts apply to attorneys:
1️⃣ Part I – Definitions 📖
2️⃣ Part II – General provisions ⚖️
3️⃣ Part III – Conduct of attorneys 👨⚖️
4️⃣ Part VI – Conduct in court and tribunals 🏛️
Which parts of the Code of Conduct apply to advocates?
✅ The following two parts apply to advocates:
1️⃣ Part IV – Conduct of advocates under section 34(2)(a)(i) of the Legal Practice Act 🏛️
2️⃣ Part V – Conduct of advocates under section 34(2)(a)(ii) of the Legal Practice Act ⚖️
Which part of the Code applies to legal practitioners who are NOT in private practice?
✅ Part VII applies to legal practitioners not in private practice 🏢
What is the purpose of the Code of Conduct?
✅ The Code sets ethical and moral standards 🏛️ that can be enforced by the Legal Practice Council 👨⚖️
Can the Legal Practice Council enforce the Code of Conduct?
✅ Yes! The Legal Practice Council enforces the Code ⚖️ and ensures compliance among legal practitioners.
Why is it important to consider the Code of Conduct as a whole rather than focusing on isolated paragraphs?
✅ Because the Code contains multiple interconnected provisions 📜 that apply to different legal practitioners, and understanding it as a whole ensures full compliance.
What can a legal practitioner do if they are unsure about the meaning or applicability of the Code?
✅ They can apply to the Legal Practice Council for a ruling ⚖️📜
What is the role of a Commissioner of Oaths?
✅ A Commissioner of Oaths assists the community by:
Administering oaths or affirmations 🙏
Taking solemn or attested declarations 📜
Certifying copies of documents as true copies of the originals ✅
Can a Commissioner of Oaths charge a fee for their services?
✅ No, a Commissioner of Oaths cannot charge a fee for:
Administering an oath or affirmation ⚖️
Attesting a declaration ✍️
Certifying a document as a true copy 📑
Is an attorney automatically a Commissioner of Oaths?
✅ Yes! An attorney is ex officio a Commissioner of Oaths ⚖️📜
When is a Commissioner of Oaths NOT allowed to administer an oath or affirmation?
✅ A Commissioner of Oaths cannot administer an oath or affirmation in matters where they have an interest ❌⚖️
What are the three exceptions where a Commissioner of Oaths may administer an oath despite having an interest?
✅ A Commissioner of Oaths can administer an oath in these cases:
1️⃣ When an attorney takes an affidavit for deeds registry transactions 📜🏡
2️⃣ When the document is submitted to the Minister of Justice ⚖️🏛️
3️⃣ When a non-attorney Commissioner of Oaths administers an oath as part of their employment duty 👨💼👩💼
What are the two options available when making a declaration?
✅ A deponent may either:
1️⃣ Swear an affidavit (Oath) 🙏
2️⃣ Affirm the contents of a declaration (Affirmation) ✍️
What are the exact words used to administer an oath?
✅ The deponent must say:
🗣️ “I swear that the contents of this declaration are true, so help me God.” 🙏⚖️
What are the exact words used to administer an affirmation?
✅ The deponent must say:
🗣️ “I truly affirm that the contents of this declaration are true.” ✍️📜
🕵️♂️ What is the first step a Commissioner of Oaths must take before administering an oath or affirmation?
🏳️ The Commissioner of Oaths must first satisfy himself as to the identity of the deponent.
📝 What three questions must a Commissioner of Oaths ask before administering an oath or affirmation?
👀 Whether the deponent knows and understands the contents of the declaration.
⚠️ Whether the deponent has any objection to taking the oath or making the affirmation.
⚖️ Whether the deponent considers the oath or affirmation binding on their conscience.
🌍 What must the Commissioner of Oaths ask the deponent to say in the case of an oath?
⛰️ The deponent must say: “I swear that the contents of this affidavit are true, so help me God.”
🧐 What must the Commissioner of Oaths ask the deponent to say in the case of an affirmation?
🎯 The deponent must say: “I truly affirm that the contents of this declaration are true.”
💊 What must happen immediately after the oath or affirmation is made?
: 📚 The deponent must sign the affidavit or declaration in the presence of the Commissioner.
📆 What must the Commissioner of Oaths do below the deponent’s signature?
🎓 Certify that the deponent knows and understands the contents of the affidavit/declaration.
📅 State the date and place of taking the affidavit/declaration.
📝 Sign the affidavit/declaration.
🏢 Print his full name and business address below his signature.
🏛️ State his designation and area of appointment or office held ex officio.
🚫 Can a Commissioner of Oaths attest an affidavit if the deponent has already signed it before sending it to him?
🔒 No, the deponent must sign in the presence of the Commissioner to prevent fraud and maintain the solemnity of the oath procedure.
🔒 May a Commissioner of Oaths attest an affidavit in a matter where they have an interest?
🛑 No, unless it is:
📃 An affidavit required for the registration of a transaction in the Deeds Registry.
💪 An affidavit required to be submitted to the Minister of Justice.
🤔 How does an attorney become a Commissioner of Oaths?
💼 An attorney is automatically a Commissioner of Oaths ex officio.
🧑⚖️ Can an attorney administer an oath for an affidavit drafted by their law firm for an urgent High Court application?
⛔ No, because they have an interest in the matter. However, an attorney may administer an oath in conveyancing matters as they are specifically excluded from this restriction.
What is a conflict of interest? 🤔
A conflict of interest is anything that is likely to affect an attorney’s judgment adversely in advising or representing their client. ⚖️
Define a conflict of interest and give three examples. 📌
A conflict of interest is anything that adversely affects an attorney’s judgment or loyalty in representing or advising a client. 🔍 Examples:
1️⃣ An attorney representing both sides in a litigation case. ⚖️⚖️
2️⃣ Using confidential information from a previous client to assist a new client. 🔐➡️📜
3️⃣ Acting in a matter where the attorney has a personal interest that conflicts with the client’s best interests. 💰💼
Can an attorney act for both parties in a non-litigious matter? Why or why not? ⚖️
Yes, an attorney may act for both parties in non-litigious matters, such as conveyancing. 🏡 However, if a conflict arises between the parties, the attorney must cease acting for one or both clients to avoid ethical breaches. 🚨
In S v Hollenbach, why was it a conflict of interest for the attorney to represent both father and son? ⚠️
The attorney represented both co-accused, where:
1️⃣ The son’s testimony contradicted the father’s defense. 🤯
2️⃣ The attorney had access to confidential information from both, which could not be fairly used. 🔐
3️⃣ This created an ethical and legal conflict, making the attorney’s position untenable. 🚫⚖️
When does a conflict of interest arise? 🤨
A conflict of interest arises when:
1️⃣ An attorney must use confidential information from one client to benefit another. 🕵️♂️🔐
2️⃣ An attorney must warn one party to make inquiries that would harm the interests of another client. ⚠️
What is the duty of confidentiality for an attorney? 🤫
An attorney is under an absolute duty not to disclose any confidential information obtained during a mandate. 🔐
This duty continues even after the termination of the mandate. 📜✅
What should an attorney do if a conflict of interest arises between clients? ⚖️❌
An attorney must immediately terminate the mandate for one or both clients. 🚨
If litigation is likely, each client must be separately represented. 🏛️👨⚖️👩⚖️
Can an attorney act against a former client in a new case? Why or why not? 🔄
No, because the attorney may have gained confidential information that could impact the new case. 🔎💼
This creates a conflict between loyalty to the former client and duty to the new client. ⚠️
Can an attorney represent both a buyer and a seller in a business transaction? Why or why not? 🤝
Yes, but only until a conflict arises. 🏢🏦
If disputes emerge (e.g., breach of contract), the attorney must withdraw from representing both parties. 🚨
Can you accept an instruction to sue a seller if you represented both the seller and buyer in the original transaction? 💼⚖️
No! 🚫
Because:
1️⃣ The attorney has inside knowledge of the negotiations. 🤝
2️⃣ There is a direct conflict of interest. ⚠️
3️⃣ The attorney may be a witness in future litigation. 👨⚖️👀
If an attorney represented a couple together for a divorce but later one spouse wants to litigate, what should the attorney do? 💔
🚨 Withdraw from representing both spouses! 🚨
If conflicts arise over assets, the attorney may be compromised and should refer both parties to separate lawyers. 👨⚖️👩⚖️
Can an attorney represent a wife in a divorce case if they previously represented the husband in a business transaction? 💰💔
No! ❌
Because:
1️⃣ The attorney gained financial knowledge that may be relevant in the divorce case. 🔍
2️⃣ This creates a conflict of interest between the previous and new mandates. ⚠️
Can an attorney represent a client in a case against an insurance company they previously worked for? 🏛️💰
✅ Yes, but with caution! ✅
If the attorney only collected debts and had no access to confidential internal policies, they can act against the insurance company. ⚖️
However, it may harm their business relationship. 🤝🚨
Can an attorney act against a long-term client in an unrelated case? Why or why not? 🔄
⚖️ Borderline case! ⚖️
1️⃣ If no confidential information was shared, the attorney may accept the mandate. ✅
2️⃣ However, it may damage their professional relationship with the long-term client. 🚨💼
Can an attorney represent both spouses in an uncontested divorce? 💍⚖️
✅ Yes, but only if the divorce is truly uncontested.
⚠️ If disputes arise, the attorney must withdraw and refer them to separate lawyers.
🔎 What is the relationship between common law and the Code of Conduct regarding conflict of interest?
📚 The common law rules on conflict of interest remain intact. The Code of Conduct provides additional guidelines and examples but does not replace established common law principles.
🏛️ What are the two main categories of conflict of interest in the Code of Conduct?
🤝 Conflicts of interest involving legal practitioners.
👥 Conflicts of interest among clients of legal practitioners.
📝 What does Rule 58.1 state about a legal practitioner’s personal involvement with a client?
⚠️ A legal practitioner must avoid personal (as opposed to professional) associations with a client’s interests.
📅 Can a legal practitioner stand bail for their client?
🚫 No, Rule 58.2 explicitly prohibits legal practitioners from standing bail for a client.
📲 Can a legal practitioner appear before a court or tribunal where they hold a membership position?
❌ No, Rule 58.3 states that a legal practitioner cannot appear before any adjudicative body where they are a member.
🔒 What should a legal practitioner do if they have previously advised another party in a case?
🅿️ Rule 58.4 states that they must refuse the brief if they received confidential information that could prejudice the previous client.
🤔 Can a legal practitioner argue a case for a party after giving an opinion to the opposing party?
📑 Yes, under Rule 58.5, but only if:
No confidential information was received that could prejudice the previous client.
Both parties (or their attorneys) consent.
📈 Can a legal practitioner accept a brief on appeal if they previously represented the opposing party?
⛔️ No, Rule 58.6 prohibits this to maintain impartiality.
👨⚖️ Can a legal practitioner represent an interested party after presiding over a company law inquiry?
🚫 No, Rule 58.7 prohibits accepting such a brief in related proceedings.
🏛️ Can a legal practitioner act for a liquidator and later represent another party in the same insolvency case?
❌ No, Rule 58.8 states that this creates a conflict of interest.
🌟 What relationships might compromise a legal practitioner’s independence under Rule 58.9?
👩🎓 Any personal, family, or other relationships with the client or opposing party that could compromise independence.
💼 Can a legal practitioner accept a brief if they previously held a position with a client or opposing party?
❌ No, Rule 58.10 prohibits this if it compromises their independence.
🎉 Can an advocate who was an attorney in a case accept a brief in the same matter?
⛔️ No, Rule 58.12 prohibits this if their prior role compromises their independence.
🎓 What must a legal practitioner do upon discovering a conflict of interest among clients?
👋 Rule 59.1 states they must withdraw from representing one or all clients as soon as possible.
🔍 What must a legal practitioner do if they gain privileged information about one client that could prejudice another?
⚠️ Rule 59.1.1 states they must not act in proceedings involving the prejudiced client.
💼 Can a legal practitioner continue representing one client if they learn of a conflict but do not have privileged information?
🤔 Yes, under Rule 59.1.2, they may continue representing a client as nominated by the instructing attorney.
🌱 Can a legal practitioner act for both adversaries in drafting a settlement agreement?
✅ Yes, under Rule 59.2, but they must advise both parties of their right to independent legal advice.
👶 What must a legal practitioner ensure in cases involving children’s care and residence?
🏞️ Rule 59.2 requires them to take active steps to ensure fairness and the best interests of the children.
🤔 Why do conflict of interest rules exist for legal practitioners?
🏆 To uphold professional integrity, ensure impartiality, protect client confidentiality, and maintain trust in the legal system.
What was the common law stance on contingency fees before the Contingency Fees Act? ⚖️
👉
Under common law, contingency fee agreements (including pactum de quota litis) were illegal, meaning legal practitioners could not charge fees dependent on the outcome of litigation. ❌⚖️
What legislation made contingency fees legal in South Africa? 📜
👉
The Contingency Fees Act 66 of 1997 was enacted to legitimize contingency fee agreements between legal practitioners and their clients. ✅📜
What are the two types of contingency fee agreements allowed under the Act? 🤔
👉
The Act allows for:
1️⃣ “No win, no fees” agreements – The client only pays if they win the case. 💸❌
2️⃣ “Increased fee in case of success” – The legal practitioner charges a higher-than-normal fee if the case is successful. 📈💼
What did the court rule in De La Guerre v Ronald Bobroff & Partners Inc regarding contingency fees? ⚖️
A: The court confirmed that any contingency fee agreement not complying with the Contingency Fees Act is invalid and unenforceable. 🚫⚖️
What does Section 2(2) of the Act say about increased fees? 📜💰
A: If a legal practitioner charges an increased fee in a successful case, it:
✔️ Cannot exceed 100% of their normal fees.
✔️ Cannot exceed 25% of the amount awarded or obtained by the client (excluding costs).
How does the Act impact speculative litigation? 🎲⚖️
The Act makes speculative litigation possible by allowing “no win, no fee” agreements, which means clients can pursue claims without upfront legal costs. 🎰💼
What caution did the court give in Masango v Road Accident Fund regarding contingency fees? ⚠️
The court warned that contingency fee agreements must be strictly supervised to protect clients and ensure that their rights are not compromised. 🔍⚖️
What was the ruling in Price Waterhouse Coopers Inc v National Potato Co-Operative Ltd regarding contingency fees? 🥔📜
The court held that any contingency fee agreement not covered by the Act is illegal and unenforceable. 🚫⚖️
What is the basic idea behind a contingency fee agreement according to Mfengwana v Road Accident Fund? 🤔⚖️
The attorney takes on the financial risk of litigation, hoping for a successful outcome. If the case is unsuccessful, they receive no payment. If successful, they are entitled to a higher-than-normal success fee. 💸📈
What does Section 2 of the Contingency Fees Act allow attorneys to do? 📜💼
👉
Section 2 permits attorneys to enter contingency fee agreements, allowing them to charge a higher-than-normal fee as compensation for the risk of not getting paid if the case fails. ⚖️💰
What incentive does Section 2(1)(b) of the Act provide for attorneys? 🎯
It authorizes attorneys to charge a success fee that is higher than their normal fee as a reward for taking on the financial risk. 🏆💼
How does the Masango case describe the purpose of a success fee? 📢⚖️
The court held that the success fee is an incentive for attorneys, allowing them to charge a higher fee, but subject to legal caps to protect clients. 🔍🛡️
What is the definition of “normal fees” under the Contingency Fees Act? ⚖️📜
According to Section 1.11 of the Rules under the Act, normal fees are the reasonable fees that an attorney would charge on an attorney-and-own-client basis, without a contingency fee agreement. 💼💰
How does the Act define a “success fee”? 🏆💸
Section 1.12 states that a success fee is the total amount an attorney may charge in case of success, which includes:
✔️ The normal fee 📜
✔️ An additional amount as a success reward 💰
The total of these two amounts makes up the success fee. 📈
What does Section 2(1) of the Act say about contingency fee agreements? 🤝⚖️
Attorneys can enter into agreements where:
1️⃣ They charge no fee if the client loses. ❌💼
2️⃣ They charge a normal or higher fee if the client wins. ✅💰
What are the legal limits on success fees under Section 2(2) of the Act? ⚖️🚫
A success fee cannot exceed:
✔️ 100% of the attorney’s normal fee 📈
✔️ 25% of the total amount awarded to the client (excluding legal costs) 💸
What sections of the Contingency Fees Act regulate contingency fee agreements? 📜⚖️
The Act regulates agreements through:
✔️ Section 3 – Agreement requirements 📝
✔️ Section 4 – Settlement procedures ⚖️
✔️ Section 5 – Client’s right to review 📢
💡 Agreements not complying with the Act are illegal! 🚫
What are the formal requirements for a contingency fee agreement? 🖋️📄
The agreement must be:
1️⃣ In writing ✍️
2️⃣ In the prescribed form as per Rules under Section 6 📜
3️⃣ Signed by both parties 🤝
📌 A copy must be given to the client on the date of signing 📅
What essential details must a contingency fee agreement contain? 🔍📃
The agreement must specify:
✔️ The proceedings it applies to ⚖️
✔️ That the client was advised about alternative financing options 💰🔄
✔️ That the client understands they may have to pay opponent’s costs if they lose ❌💸
✔️ That the client will pay a success fee if they win ✅💰
✔️ That the client fully understands the agreement 🧠💡
What must happen before a settlement offer is accepted under a contingency fee agreement? ⚖️🤝
The legal practitioner must file an affidavit with the court confirming compliance with the Act. 📜✅
What can a client do if they feel aggrieved by a contingency fee agreement or its fees? 🤔🆘
👉
The client may refer the matter to the Legal Practice Council (LPC) ⚖️📢
✔️ The LPC can review the agreement 🔎
✔️ It can set aside any unfair provisions or excessive fees ❌💰
What is the purpose of the Contingency Fees Act? 🎯⚖️
The Act aims to encourage attorneys to take on speculative cases where clients might otherwise lack legal representation. 👨⚖️💼
💡 The legislature believed that potential conflicts of interest would not lead to abuses and that this system helps more people access justice. ⚖️💪
What are the formalities required for a contingency fee agreement under the Contingency Fees Act? ✍️📜
A contingency fee agreement must be:
✅ In writing 📝
✅ In the prescribed form as per the Rules under Section 6 of the Act 📃
✅ Signed by both parties ✍️
✅ A copy must be delivered to the client on the date of signing 📩
What key content must be included in a contingency fee agreement? 🧐
The agreement must state:
📌 The proceedings it relates to ⚖️
📌 The client was advised of alternative ways to finance the case 💰
📌 The client was informed about liability for party-and-party costs if unsuccessful 🚨
📌 The client understands they must pay the success fee if they win 🏆
📌 The client fully understood the agreement before signing 🤝
What happens when a settlement offer is made in a case with a contingency fee agreement? 🤔
The legal practitioner must file an affidavit with the court 📑
👉 Certain requirements must be met before accepting the offer ✅
What can a client do if they feel aggrieved by the terms of a contingency fee agreement? ❓
📌 The client may refer the agreement or fees to the Legal Practice Council (LPC) ⚖️
📌 The LPC can review and set aside any unfair provision or excessive fees 🚫
What are the substantive arrangements and formalities for contingency fee agreements in debt collection? 💼
📌 Attorneys may enter into a contingency fee agreement 🤝
📌 The agreement must be:
✅ In writing 📝
✅ In prescribed form 📃
✅ State the contingency conditions and how fees are calculated 💵
✅ Inform the client about all available financing options 📢
📌 Attorneys cannot charge more than double the normal fee or 25% of the recovered amount, whichever is lower 📊
How can an attorney act for a poor client with a strong case but no funds? 🆘
📌 The attorney can act on a contingency basis ⚖️
📌 If the client wins, the attorney can charge a success fee (not exceeding double their normal fee or 25% of the recovered amount) 🏆
📌 If the client loses, the attorney receives no fees ❌
📌 The attorney must enter a written agreement that complies with the Contingency Fees Act 📜
What are the cost implications if a client cannot afford litigation, does not qualify for legal aid, and the attorney does not want a contingency fee agreement? 💸
📌 The attorney must charge a reasonable fee for services ⚖️
📌 If the client wins, the court may order the defendant to pay costs but only on a party-and-party basis 🏛️
📌 The client must pay any additional attorney fees out of pocket 💵
📌 The attorney can offer payment in installments or a deposit plan to assist the client 💳
What rules apply if an attorney agrees to act on a contingency basis for a client in a car accident case? 🚘
📌 A written agreement in the prescribed form must be signed 📝
📌 The agreement must explain when fees are payable and how they are calculated 📊
📌 The client must be fully informed of all options before signing ⚠️
📌 The attorney cannot charge more than double their normal fee or more than 25% of the capital award 🏆
📌 If a summons is issued, the court must approve the settlement 📜
📌 If no summons is issued, the Legal Practice Council must approve the settlement ✅
If a client’s damages were apportioned due to 20% negligence, what is the maximum contingency fee an attorney can charge? 🤔
📌 Client’s damages: R500,000 💰
📌 Defendant’s damages: R600,000 💰
📌 Apportionment:
✔️ Client’s damages = R500,000 × 80% = R400,000
✔️ Defendant’s damages = R600,000 × 20% = R120,000
✔️ Net award to client = R280,000
📌 Attorney’s maximum fee:
✔️ 25% of R280,000 = R70,000
Mrs. Gold suffered injuries in a motor vehicle accident and has no funds to pay upfront. What type of agreement should be made, and how will the fee be determined? 🚑
📌 The attorney should enter into a contingency fee agreement 🤝
📌 If the case is successful, the attorney can charge a success fee 📜
📌 The fee cannot exceed double the normal fee or 25% of the court award 💰
📌 In Mrs. Gold’s case:
✔️ Court award:
🔹 Special damages: R325,000
🔹 General damages: R250,000
✔️ Attorney’s normal fee: R65,000
✔️ Maximum fee allowed: R130,000 (double the normal fee)
✔️ Not allowed: R143,750 (25% of R575,000), since it exceeds double the normal fee 🚫
Question: What is a correspondent attorney? 🤔
A correspondent attorney is an attorney in another city who performs legal tasks on behalf of the instructing attorney. They act as the local representative for legal matters in the jurisdiction where the case is being heard or a service must be executed. ⚖️📍
What ethical rules must a correspondent attorney follow? 🧐
A correspondent attorney must comply with the same ethical rules as the instructing attorney. This includes professionalism, diligence, and avoiding direct communication with the client. ⚖️🔍
List three duties of an instructed correspondent attorney. ✍️
1️⃣ Must perform tasks with care, diligence, and professionalism like the instructing attorney. 🏛️
2️⃣ Cannot communicate directly with the client or settle matters without instructions. 🚫💬
3️⃣ Is usually entitled to a one-third fee allowance unless agreed otherwise. 💰🔢
Can an attorney consult with their client while they are under cross-examination? 🚫👨⚖️
No! ❌ Once a client is under cross-examination, their attorney may not consult with them at all. This prevents the attorney from advising them on how to answer or rectify evidence already given. 🎤⚖️
What must an attorney consider when cross-examining a witness? 🎤⚖️
1️⃣ Must respect the dignity of the witness. 🤝
2️⃣ Can only put forward facts that can be substantiated by evidence. 🔎
3️⃣ Cannot make unfounded allegations against a witness. 🚫🗣️
When can an attorney impugn a witness’s character during cross-examination? 🤨⚖️
1️⃣ If the instructing attorney is satisfied that the allegation is well-founded. 🏛️
2️⃣ If the information comes from a reliable source and the attorney has reason to believe it is true. 🔍📜
3️⃣ The allegation must be material to the credibility of the witness or relevant to the case. 📌
What is the Browne v Dunn rule in cross-examination? 📜👨⚖️
The Browne v Dunn rule states that if an attorney intends to challenge a witness’s credibility, they must put the challenge to the witness during cross-examination. This ensures the witness has a chance to respond, defend their character, or clarify contradictions. ⚖️💡
Can a lawyer recklessly accuse a witness of a crime during cross-examination? 🚫⚖️
No! ❌ A legal practitioner must not recklessly accuse a witness of a crime unless:
✔️ There is reasonable suspicion supported by evidence. 🔍
✔️ The available facts allow for a rational inference that the witness may be involved. ⚖️
May an attorney defend an accused person who admits that he is guilty of an offence charged? Motivate your answer.
Yes, it is not unethical to defend a person whom the attorney knows to be guilty. ⚖️ Every person has the right to legal representation, and the onus is on the State to prove guilt beyond reasonable doubt. However, the attorney must not mislead the court or allow the client to give false evidence. The attorney may cross-examine State witnesses to test their credibility. 🏛️
Is it unethical to defend a person whom you believe to be guilty? Motivate your answer.
No, it is not unethical because an attorney’s duty is not to determine guilt but to provide the best defense for their client. 🏛️ The onus remains on the State to prove the Accused’s guilt beyond a reasonable doubt. The attorney must not mislead the court but may test the State’s case through cross-examination.
Why is it not misleading the court if an attorney enters a “not guilty” plea for an accused who has admitted guilt in private?
Entering a plea of “not guilty” does not mean denying the acts alleged—it simply places the burden on the State to prove the case. 🔍⚖️ The court understands this principle, so it is not considered misleading unless the attorney presents evidence or arguments that contradict what the accused privately admitted.
Can an attorney continue to represent a client who insists on pleading “not guilty” despite admitting guilt in private? How should the trial be conducted?
Yes, every accused person has the constitutional right to plead “not guilty” and have legal representation. ⚖️ To remain ethical, the attorney must:
✔️ Ensure the accused gives no plea explanation.
✔️ Avoid making false statements during cross-examination.
✔️ Test the credibility of State witnesses without misleading the court.
✔️ Apply for a Section 174 discharge if appropriate.
✔️ If discharge is denied, close the case without leading evidence and argue that the State failed to prove guilt beyond a reasonable doubt.
What should an attorney do if they discover that the magistrate in a criminal trial is the mother of the complainant?
The magistrate must recuse herself due to a conflict of interest. ⚖️ If she does not:
1️⃣ Inform her in chambers about the recusal request.
2️⃣ If she refuses, apply for recusal in open court.
3️⃣ If she still refuses, continue with the trial.
4️⃣ If the client is acquitted, no issue arises.
5️⃣ If convicted, grounds for review exist. 🔄
What does Paragraph 18.1 of the Code of Conduct prohibit regarding attorney payments?
It prohibits attorneys from accepting money intended to pay for future legal services related to anticipated criminal charges. 💰❌ This prevents conflicts of interest and ensures attorneys do not encourage or become complicit in criminal behavior.
Under what conditions may an attorney interview a state witness?
An attorney may only interview a state witness if:
✔️ The prosecution consents.
✔️ A court grants permission.
✔️ If conditions are imposed, the attorney must strictly follow them. 🔍⚖️
When may an attorney pay an estate agent’s commission in advance?
An attorney may not pay an agent’s commission in advance unless:
The funds come from the person liable for the commission. 💰
The attorney has express authority from that person. ✍️
The agreement of sale should specify when payment is due. 🏡
Normally, payment is due on registration of the transaction in the Deeds Registry, unless another date is specified. 📜
What is the standard rule for the timing of an estate agent’s commission payment?
The normal practice is to pay commission on the date of registration of the transaction in the Deeds Registry. 🏛️
If the agreement specifies another date, the payment must follow that. 📆
Advance payment is only allowed if rule 14 of the Code is followed. 📜
What does rule 14 of the Code of Conduct say about payment of commission?
Attorneys cannot pay commission in advance unless:
The money comes from the person liable for it. 💰
The person has given express authority. 📝
Attorneys must not use their own funds for this purpose. ❌
What does paragraph 18.22 of the Code of Conduct say about touting?
An attorney is guilty of touting if they:
Solicit work in an improper, unprofessional, unfair, or unethical manner. 🚫
Pay money or offer financial rewards for work referrals. 💸
Engage in arrangements where a third party secures work for them. 🤝
Why is it unethical for an attorney to pay someone to secure professional work?
The attorney loses objectivity and independence. ⚖️
It compromises the attorney’s professional ethics. 📜
It may create conflicts of interest in legal matters. ❌
What does section 7 of the Code of Conduct for Estate Agents say about attorney recommendations?
An estate agent cannot recommend an attorney without good and sufficient cause. ⚠️
This rule prevents biased referrals and maintains professional integrity. ✅
What is the general principle regulating legal fees?
Legal fees are regulated by the principle of reasonableness. ⚖️
Any agreement charging unreasonable fees is invalid. ❌
Who may determine the reasonableness of legal practitioners’ fees?
The registrar of the High Court or clerk of the magistrates’ court can tax fees in litigation. 🏛️
The Legal Practice Council can tax fees in non-litigious matters. 📜
Courts can determine reasonable fees in disputes. ⚖️
What is the role of the taxing master in assessing legal fees?
Assess, quantify, and certify costs. 💰
Ensure a moderating balance between parties. ⚖️
Prevent excessive charges against the losing litigant. 🚫
Ensure the winning litigant is not under-compensated. 🏆
What are the factors considered in determining reasonable legal fees?
Fees charged by other legal practitioners in similar cases. ⚖️
Seniority of the attorney. 🎓
Time taken to complete the work. ⏳
Nature of the work performed. 📝
What did the court hold in Coetzee v Taxing Master regarding reasonable fees?
Clients do not owe attorneys full indemnity but must pay reasonable fees. 💰
Reasonable rates are based on time spent, seniority, and industry norms. ⚖️
What are the two primary aims of taxation by a taxing master?
To assess, quantify, and certify costs. 🏛️
To balance the interests of both litigants fairly. ⚖️
What is the role of a cost consultant in taxation?
A cost consultant who drafts a bill acts as an expert witness. 🎓
They must have the right of appearance at taxation hearings. 🏛️
Is the tariff in Rule 70 of the Uniform Rules of Court binding? (2)
Yes, but only for party and party costs. 📜
The taxing master still has discretion in applying the tariff. ⚖️
What is the general principle governing legal fees? 🤔
Legal fees are regulated by the principle of reasonableness ✅. Any agreement to charge unreasonable fees is invalid 🚫.
Who can determine the reasonableness of an attorney’s fees? ⚖️
Attorney and client fees – Registrar of the High Court or Clerk of the Magistrates’ Court upon client request. 🏛️
2️⃣ Party and party fees – Must be taxed before a writ of execution is issued. 📜
3️⃣ Non-litigious matters – Fees may be reviewed by the Legal Practice Council. 📖
What did the court hold in Coetzee v Taxing Master regarding reasonable fees? ⚖️
The payment by a client to their attorney is not a full indemnity but rather a reasonable recompense for services rendered 💰.
When determining reasonableness, courts consider:
1️⃣ Fees charged by other legal practitioners ⚖️
2️⃣ Seniority of the attorney 👨🎓
3️⃣ Time spent on the work ⏳
4️⃣ Nature of the work performed 🏛️
What are the two primary aims of taxation by a taxing master? 📜
1️⃣ Assess, quantify, and certify costs. 💰
2️⃣ Ensure an equitable balance between:
The losing litigant (who should not pay excessive charges). ❌
The winning litigant (who should not be inadequately indemnified). ✅
Who presents a bill for taxation, and what is their role? 🧐
A legal practitioner must have the right of appearance to present a bill for taxation. ⚖️
The cost consultant who drafted the bill acts as an expert witness during taxation. 👨💼
What does Rule 70 of the Uniform Rules of Court regulate? 📖
Rule 70 binds the taxation of party and party costs. 📜
The taxing master still has discretion in determining fees. ⚖️
Why are disputes between attorneys and clients over fees common? 🤷♂️
Not necessarily because attorneys overcharge, but because they fail to explain fees adequately upfront. 💬❌
How can attorneys avoid disputes with clients over fees? 🛑
1️⃣ Clearly explain estimated fees at the outset. 📢
2️⃣ Discuss disbursements (e.g., counsel’s fees). 💰
3️⃣ Clarify who will be responsible for paying the fees. 🤝
What happens if an attorney does not arrange a fee agreement? 🤨
The attorney is assumed to charge a reasonable fee, which is the magistrate’s court tariff. ⚖️
Cannot charge interim fees, only entitled to payment once the mandate is executed. ⏳
How should attorneys structure fee agreements? 📝
Negotiate a fee agreement with the client. 🤝
The agreement should specify:
1️⃣ Hourly rate or other fees. 💰
2️⃣ Terms of payment. ✅
3️⃣ Scope of work covered. 📜
What is the procedure for disputes over fees in non-litigious matters? ⚖️
Before the Code of Conduct: Legal Practice Council assessed fees. ✅
After the Code of Conduct: Fees inquiry by an authorized sub-structure of the Council. 🔍
What is the attorney’s burden in justifying fees in non-litigious disputes? 📑
The attorney must prove the fees are reasonable and that the work was:
1️⃣ Necessary to be done. 📜
2️⃣ Requested by the client or instructing attorney. 💼
What happens if a magistrate’s court attorney never discussed fees with clients? ⚠️
The attorney is assumed to charge the magistrate’s court tariff. ⚖️
Cannot charge interim fees, only entitled to payment after completing the mandate. ✅
What should an attorney do if they believe a colleague’s fee for a lease agreement is excessive? 🤯
1️⃣ Advise the client to request taxation by the Legal Practice Council. 📑
2️⃣ Negotiate a reasonable fee with the colleague. 🤝
What factors determine a reasonable legal fee? ⚖️
1️⃣ Complexity of the case 🤯
2️⃣ Skill and knowledge required 🎓
3️⃣ Time spent on the matter ⏳
4️⃣ Length and importance of documents 📜
5️⃣ Value of money/property involved 💰
6️⃣ Location of service rendered 🌍
7️⃣ Importance to the client 👤
How can Mrs. B challenge excessive legal fees for a non-litigious matter? 👩⚖️
1️⃣ Approach the Legal Practice Council for fee assessment. 📜
2️⃣ Council will consider:
Complexity of the matter
Time spent
Urgency
Amount involved
Seniority of the attorney
What happens if a client asks for “taxation” of fees for drafting legal clauses? 📜
1️⃣ The Legal Practice Council assesses the fee. 🔍
2️⃣ Considerations include:
Attorney’s experience and skill 🎓
Possible overcautiousness/negligence ⚠️
Complexity and importance of the matter 🤯
Amount of work done 📑
What does Paragraph 12 of the Code of Conduct say about the sharing of fees?
An attorney may not enter into any agreement, directly or indirectly, that results in securing professional work through a non-attorney for a reward (money or kind). However, this does not limit bona fide and proper marketing activities
🚫 Can an attorney enter into a partnership or scheme to secure work from a non-attorney for a reward?
No. An attorney cannot enter into any agreement, arrangement, or partnership—whether express, tacit, or implied—where the result is securing professional work through a non-attorney for a reward.
📜 What must an attorney provide if requested by the Council regarding an employee or an associated person?
An attorney must submit an affidavit within seven days explaining:
The presence and role of an employee,
The nature of their remuneration,
Details of any non-attorney associated with the practice or frequently present at the attorney’s office.
⚖️ Can an attorney claim to be practicing as an attorney while employed by a non-attorney?
No. An attorney cannot present themselves as practicing while employed by a non-attorney, unless permitted under Section 34 of the Legal Practice Act.
💰 Can an attorney share their fees with a candidate attorney?
No. An attorney cannot share fees earned with a candidate attorney.
💸 Can an attorney pay a commission to a candidate attorney based on the fees they generate?
Yes. An attorney may pay a commission to a candidate attorney based on the fees the candidate attorney generates.
🤝 Can an attorney share fees with counsel?
No. An attorney cannot share fees with counsel.
📜 Who must comply with the Legal Practice Act’s requirements regarding fee disclosure?
Attorneys and advocates practicing with a Fidelity Fund Certificate must comply with the fee disclosure requirements. Advocates practicing on a referral basis are not required to comply.
📄 What must be included in a cost estimate notice when an attorney or advocate with a Fidelity Fund Certificate takes on a client?
The cost estimate notice must include:
1️⃣ The likely financial implications, including fees, charges, and disbursements.
2️⃣ The attorney’s or advocate’s hourly rate and the client’s right to negotiate fees.
3️⃣ An outline of work to be done for each stage of litigation (if applicable).
4️⃣ The possibility of engaging an advocate and the factors affecting their fees (seniority, expertise, etc.).
5️⃣ The legal and financial consequences of client withdrawal from litigation and the cost recovery process.
⚖️ Are referral-based advocates required to provide cost estimates to clients?
No. Referral-based advocates are not required to provide cost estimates to clients directly. However, they may need to provide a cost estimate to the instructing attorney, who must disclose costs to the client.
📜 Who is required to have a Fidelity Fund Certificate (FFC)?
The following legal practitioners must have an FFC:
1️⃣ Attorneys or trust account advocates practicing for their own account, either alone or in a partnership.
2️⃣ Directors of incorporated law firms.
👨⚖️ Who is NOT required to have a Fidelity Fund Certificate?
The following individuals do not need an FFC:
Professional assistants
Candidate attorneys
Associates
However, they must be employed or associated with someone who has an FFC.
💰 Can a legal practitioner without an FFC hold funds or property for a client?
🚫 No! A legal practitioner without an FFC cannot:
1️⃣ Receive or hold funds or property belonging to any person.
2️⃣ Allow any person they employ or supervise to receive or hold such funds.
⚖️ What happens if an attorney does not have a valid Fidelity Fund Certificate?
If an attorney does not have an FFC:
❌ They cannot hold funds or property in trust.
❌ Their clients are not covered by the Legal Practitioners Indemnity Insurance Fund (LPIIF).
❌ They are not entitled to fees, rewards, or disbursements while acting without an FFC.
📆 How long is a Fidelity Fund Certificate valid?
A Fidelity Fund Certificate is valid for one year, from January to December.
🏛️ Who issues Fidelity Fund Certificates?
The regulators of the Fund issue Fidelity Fund Certificates annually through an online system provided by the Fund.
🔒 What is the primary purpose of the Attorneys Fidelity Fund?
The Attorneys Fidelity Fund protects clients by reimbursing them for pecuniary losses suffered due to:
💰 Theft of money or property entrusted to an attorney.
⚰️ An attorney acting as executor or administrator of a deceased estate.
💼 An attorney acting as a trustee in an insolvent estate.
💻 When was the online Fidelity Fund Certificate Application Form introduced?
The online Legal Practitioners Fidelity Fund Certificate Application Form was published on 30 September 2015.
🖥️ How does an attorney apply for a Fidelity Fund Certificate online?
1️⃣ First-time login: The attorney must enter their ID number and email address (same as provided to the regulator).
2️⃣ Verification: The system verifies the details against the regulator’s records.
3️⃣ Activation: The attorney receives an email/SMS to activate their login.
4️⃣ Access & submission: The attorney can then access the secure portal, complete the application, and submit it.
📊 What financial information must an attorney provide when applying for an FFC?
Attorneys must have financial information for the previous four calendar quarters (from 01 October to 30 September of the following year).
They must also provide:
📌 FICA registration number
📌 Financial Services Provider (FSP) number (if running an investment practice)
📌 Firm’s Registration number (for incorporated law firms)
📖 Where can attorneys find guidance on the Fidelity Fund Certificate application process?
Attorneys can find a step-by-step user guide on the Fidelity Fund’s website to assist with the application process.
🔎 What is the purpose of the Legal Practice Fidelity Fund? (2)
The Legal Practice Fidelity Fund was established to reimburse members of the public who suffer financial loss due to the theft of money or property entrusted to an attorney, their employee, or candidate attorney. 💰⚖️ (2)
📜 What is a Fidelity Fund Certificate? (2)
A Fidelity Fund Certificate (FFC) is a certificate issued in terms of Sections 84 and 85 of the Legal Practice Act 28 of 2014 to any legal practitioner who practices:
1️⃣ For their own account, either alone or in a partnership.
2️⃣ As a director of an incorporated law firm.
🔹 The certificate remains valid until 31 December each year. 📆✅
👨⚖️ What does the Legal Practice Council require from an attorney applying for their first Fidelity Fund Certificate? (6)
⚠️ What are the effects of failing to renew the certificate? (2)
🔹 Requirements for First-Time Application:
1️⃣ The attorney must apply to the Legal Practice Council for an FFC (s 85(1)(a)).
2️⃣ They must complete and submit the prescribed electronic or hard copy application form (Rule 47.1).
3️⃣ The form must be submitted by 1 December of the year it was sent (Rule 47.3).
4️⃣ Not receiving the form does not exempt the attorney from applying (Rule 47.4).
5️⃣ The attorney must pay the required contribution set by the Council (s 85(2)).
6️⃣ First-time applicants must complete a Legal Practice Management Course and provide proof (s 85(1)(b), Rule 47.7.1). ⚠️ Consequences of Failing to Renew:
🚫 Without an FFC:
1️⃣ The attorney may not continue practicing or receive trust funds.
2️⃣ They commit an offence if they continue to practice without an FFC.
🏛️ As a newly qualified attorney opening your own practice, how do you handle Fidelity Fund Certificate requirements? (10)
1️⃣ What is a Fidelity Fund Certificate? (2)
🔹 A certificate that permits attorneys to hold trust funds and practice law legally.
2️⃣ How and when is it obtained? (5)
✅ Apply via electronic or hard copy form before 1 December.
✅ Ensure all financial obligations to the Legal Practice Council are met.
✅ Pay the required contribution.
✅ Complete the Legal Practice Management Course (if first-time applicant).
✅ Submit proof of course completion. 3️⃣ Consequences of Failing to Renew the Certificate? (3)
⚠️ Legal consequences include:
1️⃣ Cannot practice or charge fees for services.
2️⃣ Committing an offence if practicing without it.
3️⃣ Suspension or removal from the roll of practitioners.
🏦 If the bank holding Attorney C’s trust funds is liquidated, what are the rights of the trust creditors and Attorney C? (7)
🔹 Client’s Right of Recourse:
1️⃣ Against the bank? 🚫 None. The client is not the bank’s customer. (2)
2️⃣ Against the Legal Practitioners’ Fidelity Fund (LPFF)? 🚫 None. The LPFF does not cover bank insolvencies. (2)
3️⃣ Against Attorney C? ✅ Yes. Attorney C is liable for any trust fund shortfalls. (2)
4️⃣ Does Attorney C have any rights against the LPFF? ❌ No. Attorney C can only claim as a concurrent creditor in the bank’s insolvent estate. (1)
📜 What are attorneys and trust account advocates obligated to do regarding final accounts to clients?
Attorneys and trust account advocates must account to clients for their fees and disbursements. If they fail to do so, the Legal Practice Council (LPC) can discipline them. ⚖️🚨
🔹 A common complaint from clients is a lack of transparency in how fees are calculated, leading to confusion about amounts owed. 🤷♂️💰
📖 What does Rule 54.12 say about “accounting to clients”?
📌 Rule 54.12: Attorneys must provide clients with a written account within a reasonable time after completing or terminating a mandate.
📂 Firms must retain copies of these accounts for at least five years.
🔹 Each account must include:
1️⃣ All amounts received in connection with the matter, with explanations. 💵📄
2️⃣ All disbursements and payments made. 💳🧾
3️⃣ All fees and charges raised, including agreed-upon fees. 💰📝
4️⃣ The amount owing to or by the client. 🔄💼
💰 What must happen after an attorney provides an account to the client?
📤 Any amount due to the client must be paid within a reasonable time after the account is issued. ⏳💵
🔹 Failure to do so could result in disciplinary action by the Legal Practice Council (LPC). 🚨⚖️
✍️ You have completed the mandate for drafting a sale of business agreement. How do you render an account to your client? (10)
📜 Example of a Final Account Rendered to a Client:
🔹 To fees for:
1️⃣ Arranging an appointment and consultation with the client and purchaser. 👥📅 (1)
2️⃣ Perusing the client’s memorandum detailing the transaction. 📄🔍 (1)
3️⃣ Drafting the first version of the contract and sending copies. 🖊📤 (1)
4️⃣ Telephone consultation with the client regarding contract changes. ☎️🔄 (1)
5️⃣ Discussions with the purchaser’s attorney about amendments. 🏛💬 (1)
6️⃣ Preparing the second draft and delivering copies to both parties. 📑📨 (1)
7️⃣ Receiving telephonic instructions to finalize the contract and drafting the final version. 📞📜 (1)
8️⃣ Telephone calls with all parties to arrange the contract signing. 📲✅ (1)
9️⃣ Attending the contract signing. ✍️🏛 (1)
🔟 Handling correspondence, phone calls, postage, and other sundry expenses. 📩📞✉️ (1)
📌 (Note: This is a guideline; attorneys should tailor the account based on actual work performed.)
Would you like me to add GIFs for more engagement? 😊
⚖️ If you are unsure whether a step you propose taking is ethically permissible, how do you find an answer? (2)
1️⃣ Consult relevant legal authorities, such as Lewis. 📖🔍 (1)
2️⃣ Seek guidance from a senior colleague. 👨⚖️📞 (1)
3️⃣ If still uncertain, ask the Legal Practice Council. 🏛❓
⚖️ You encounter an ethical dilemma. How do you determine the correct course of action? (3)
1️⃣ First, research legal sources like Lewis. 📚🔍 (1)
2️⃣ Consult a senior colleague for their expertise. 👨⚖️📞 (1)
3️⃣ Seek guidance from the Legal Practice Council if still uncertain. 🏛✅ (1)
🏪 You are a qualified attorney and are offered a partnership in a grocery business. May you accept the offer and continue your legal practice? (5)
✅ Yes, an attorney may engage in any lawful business apart from legal practice. 🏛💼
📌 They may:
🔹 Be a sole proprietor, partner, or director of a company. 👨💼🏢
🔹 Act as an agent for a business. 🤝
⛔ However, care must be taken to avoid conflicts of interest with legal practice. ⚖️🚨
💻 You have just qualified as an attorney and started your own practice. A friend offers you a partnership in a computer business. May you accept the offer and continue with your practice? (4)
✅ Yes! Attorneys can participate in any lawful business alongside their practice. 🏛💻
📌 They may:
🔹 Be a partner, director, or agent in a business. 🏢🤝
🔹 Continue practicing law, provided no conflict of interest arises. ⚖️🚫
You recover a large sum of money for a client. Would it be ethical to:
1️⃣ Borrow the money to buy office equipment? (2)
2️⃣ Advise the client to lend the money to a property company in which you have an interest? (3)
3️⃣ Refer the client to a broker who will pay you a commission? (3)
1️⃣ No! 🚫 Borrowing from a client creates a conflict of interest unless they are in the business of lending. ⚖️💵 (2)
2️⃣ No! 🚫 Advising a client to lend money to a business you have a stake in is a direct conflict of interest. 🏢❌ (3)
3️⃣ No! 🚫 Attorneys cannot take secret commissions unless they obtain client consent. 🤝💰 (3)
⚖️ Is it permissible for an attorney to:
1️⃣ Act in the collection of a debt for someone they are a curator bonis for? (3)
2️⃣ Defend a claim against a deceased estate in which they are an executor? (2)
3️⃣ Act for both parties in an antenuptial contract? (2)
4️⃣ Sue a colleague? (3)
5️⃣ Take over a client’s case from another attorney? (2)
6️⃣ Divulge confidential client information to their executor, curator, or trustee? (3)
7️⃣ Represent both parties in a divorce if they consent in writing? (5
1️⃣ ✅ Yes, unless a conflict of interest arises. However, appointing an independent attorney is advisable. ⚖️👨⚖️ (3)
2️⃣ ✅ Yes, but it is not desirable due to potential ethical concerns. 💼🛑 (2)
3️⃣ ✅ Yes, unless negotiations become unfair due to power imbalances. ⚖️💍 (2)
4️⃣ ✅ Yes, but professional courtesy requires informing the colleague before filing the lawsuit. 📜🤝 (3)
5️⃣ ❌ No! Before taking over, the attorney must contact the previous lawyer to ensure the file is properly transferred and costs are settled. ☎️💼 (2)
6️⃣ ✅ Yes, but only if it is in the client’s best interests. 🚨🔏 (3)
7️⃣ ✅ Yes, but if a dispute arises, the attorney must withdraw from representing both parties. 🚫⚖️ (5)
