Ethical duty towards colleagues, the courts, the public and the state Flashcards
Overview of Practitioner’s Relationships with
other Practitioners
During undertakings lawyers must be able to rely on each other’s word
Specific Rules of Relationships with
other Practitioners
❖ It is improper for one attorney to contact the client of another attorney.
❖ You must negotiate personally with the attorney and not with his secretary.
Witnesses: Criminal
Shabalala v Attorney General
❖ There is a right to consult a state witness.
❖ You must approach the National Prosecuting Authority (NPA) for consent.
❖ You are entitled to be present and record what transpired.
Witnesses: Civil
Approaching Witnesses to a Civil Trial
❖ Before Court Date: Can approach any witness.
❖ During Proceedings: Cannot approach/rather stay away.
❖ After Testifying: Can approach with their legal
representative.
Can you approach your own witness?
(in both civil and criminal cases?)
❖ No, it is highly unethical.
❖ If it is absolutely necessary:
➢ As permission from a judge or magistrate.
➢ Give good reasons for doing so.
Overview of Practitioner’s Relationship with
Court
❖ You have a duty towards the court not to mislead.
❖ Non-disclosure of reported matters amounts to unprofessional conduct.
❖ Ex Parte Hay Management Consultations as Case law on Relationship with
Court
➢ Submission by a foreign defendant in an action for money brought by a local plaintiff was of itself sufficient to found jurisdiction
Ex Parte Hay Management Consultations on duty of care
➢ There is a duty of care by an attorney conducting litigation on behalf of a client towards:
▪ The Court; and
▪ His opponent.
➢ This duty on the part of an attorney is not a servile thing;
he is not bound to do whatever his client wishes him to do.
Ex Parte Hay Management Consultations (much of the act)
➢ However, much an act or transaction may be to the advantage, profit or interest of a client,
if it is tainted with fraud or is mean, or in any way dishonourable, the attorney should be not be party to it, nor in any way encourage or countenance it…
Pienaar v Pienaar on actions that will severly impair the courts
➢ If the courts don’t have complete confidence in the honour of practitioners and aren’t able to accept unreservedly any statements made by them, the administration of justice will be seriously impaired.
Pienaar v Pienaar on duty of the legal practitioner
➢ A legal practitioner has a duty to the judiciary to ensure the efficient and fair administration of justice.
➢ He or she is obliged to act with utmost good faith towards the court. If he or she is aware of a judgment material to issue before the court, he or she is under a duty to inform the court of such judgment even if the judgment is against the case he or she is presenting.
➢ A failure to do so constitutes a gross breach of such duty
Toto v Special Investigation Unit as case law on relationship with the court
➢ This is particularly so in ex parte applications and cases where the opposite party is not represented.
Ulde v Minister of Home Affairs decision of court
➢ The Court considered the presentation of argument and held that Counsel should never mislead a court through either ignorance or negligence. To do so deliberately is a very serious breach of that obligation.
Ulde case on the role of the judge
➢ A judge is entitled to take counsel at their word, and when an argument is advanced and authority is cited, there is a tacit representation by counsel that no contradictory authority is known to him.
Ulde on Restrictions to the role of the counsel
➢ While counsel is at liberty to try to persuade a court to prefer one decision over another, or to distinguish cases, or to offer novel interpretations, he or she may never deliberately suppress a reference to an authority that disfavours his case, or rely on a dictum in a decision which has to his knowledge been compromised by a superior court’s disapproval.
