NOTES Flashcards
Ethical dilemmas
Attorney conflicted between ethical duty and duty to client.
Saving a life by throwing your client under the bus
Considering the consequences of actions that that bring out most positive results without damage or recklessness.
Should right of life of a person weigh more ethically than client attorney confidentiality.
Spaulding v Zimmerman
-Spaulding went back to court after an aortic aneurism was discovered as a result from the accident with Zimmerman
-court found that there was no ethical dilemma in the fact that the defendants did not disclose of the plaintiffs life threatening condition-but, plaintiff would not have agreed on settlement had he known of the condition
Which model of ethical reasoning is found in the trolley dilemma and why
Utilitarianism and deontological theories
-its better to choose what will bring out the greater good
-risk the life of one to save the lives of many, then you have benefitted the greater good
What is Utilitarianism
Rightness of action found in the results
If it has a positive reaction, it is ethically right
If the consequences are good the action is good
Deontology
Actions are moral if they follow the rules regardless of outcome
Underscores equality and human rights
Virtue ethics
Actions moral if they abide by the virtues that maximise well being and fulfillment of individual
Categorical
Focuses on quality and correctness of action regardless of the outcome and consequences
Rightness of action found in duties, rights and virtues
Should ethics be taught (yes answer)
Importance of Ethical Thinking: Building a habit of ethical thinking, reasoning, and action is crucial.
Justice System Integrity: The justice system relies heavily on upholding ethics, suggesting the need for individuals to have the opportunity to develop ethical behavior, particularly in legal professions.
Career Safety and Ethical Thinking: Teaching ethics could provide reassurance for individuals hesitant to risk their careers and could further promote ethical decision-making.
Should ethics be taught (no answer)
Ethics and Background Context: Some argue that ethical behavior is influenced by factors such as upbringing and culture rather than being something that can be taught.
Focus on Code of Ethics: Rather than extensive ethical teaching, emphasis should be placed on ensuring legal practitioners adhere to a code of ethics.
Character Development: Ethical teaching goes beyond presenting moral dilemmas; it requires active efforts to instill good character.
In the article Can Ethics Be Taught? - Insights from Nomfundo Manyathi-Jele what is stated
Upholding Ethical Principles
Role of the Law Society: Krish Govender emphasizes the importance of lawyers embracing ethical principles in a developing nation.
Ethical Empowerment: Lawyers should practice ethically, ensuring fairness and justice, and avoiding exploitation, as outlined in the LSSA’s code of ethics.
Ethics vs. Upbringing: While ethics are influenced by upbringing, it’s argued that individuals can change and embrace ethical behavior.
Ethical Lawyering
Constitutional Understanding: Lawyers should understand and embrace constitutional values, treating all clients equally before the law.
Importance of Fair Trials: Ethical considerations include ensuring fair trials for all, irrespective of their wealth or social status.
Impact on the Profession: Corruption among lawyers undermines the integrity of the legal profession and judiciary.
Legal Ethics Education
Ethical Crisis: The legal profession in South Africa faces an ethical crisis due to new economic and social conditions.
Need for Ethical Education: Teaching ethics at universities is essential to instill ethical decision-making skills in future lawyers.
Course Content: A compulsory ethics course in LLB programs should cover formal ethical responsibilities, values, and the ability to recognize and address ethical issues.
Ethics in Practice
Fit and Proper Person: Being an attorney means being worthy of admiration, with non-ethical behavior having severe consequences.
Client’s Interest First: Ethical behavior involves prioritizing the client’s interests over personal gain.
Transformation and Ethics
Neglect of Ethics: In the pursuit of transformation, ethics have been neglected, leading to unethical behavior for personal gain.
Battle for Ethical Alignment: The legal profession struggles to align with the ethical standards prescribed by the Constitution.
Breakaway Session Insights
Cultural Impact: South Africa’s diverse culture and religious background influence the understanding of ethics.
Relevant Rules: Honesty, integrity, professionalism, and mutual respect for colleagues are deemed most relevant for the profession.
Education Methodology: Practical work is considered the best method for teaching legal ethics.
Conclusion
The article highlights the ongoing debate on whether ethics can be taught and emphasizes the importance of ethical education in the legal profession. It stresses the need for a comprehensive understanding of ethical principles, practical training, and ongoing awareness efforts to promote ethical decision-making among legal professionals.
What characteristics does someone who is ethical have
one who is honest, one who is respectful, and one who can be
held accountable (amongst other things)
In the article Can Ethics Be Taught? Attorney, Madoda Nxumalo, spoke on the impact of transformation on legal
ethics. He opined that “[t]he legal profession, and I have no doubt most
professions, was so engrossed in transformation and inadvertently neglected
ethics.” What was his main concern in this regard?
Hiring or absorbing firms owned by previously disadvantaged individuals solely to meet diversity quotas, without ensuring mutual benefits for both parties under the pretext of economic empowerment.
Former Constitutional Court Justice, Zak Yacoob, spoke on the importance of the
Bill of Rights and chapter 8 of the Constitution, which applies to the courts and
the administration of justice. What, according to him, is the most important
consideration for an ethical lawyer, and why?
Justice Yacoob said that living according to the Constitution was the most important thing for an ethical lawyer, because if you do not embrace constitutional values in your personal life, you cannot embrace them in your practice
Attorney and one of the chairpersons of the Law Society of the Northern
Provinces disciplinary committee, Chris du Plessis, explained that touting had
become a significant concern in the profession and furnished examples of
circumstances under which attorneys had been charged for this offence.
name one such example.
bought cars in their names and then gave them to estate agents to use in exchange of transfers
The Chairperson of the LSSA ethics committee, Krish Govender, said that he
believed that one cannot create an ethical lawyer as one cannot make a person
ethical, adding that ethics was about the values one is born and brought up with.
He referred to the work of the LSSA in developing a resource that applied to all
attorneys and could assist in keeping the profession more ethical. Name this
resource
LSSA Code of ethics (or Ethical Code)
Briefly list (no discussion required) the reasons why legal ethics should be viewed as
a crucial discipline for the legal profession and society in general
- Guidance to practitioners
- Guidance to students and new entrants to profession
- Protects professional nature of legal services
- Protects public against misconduct and instils trust
- Strengthens accountability
- Strengthens the rule of law
- Allows for holistic focus by considering broader justice issues
Robertson & Kruuse define legal ethics as “a form of applied ethics in which the central
question is…”. Complete the quote and briefly explain the meaning and relevance of
the word “applied” in this context
…what the good lawyer should do under circumstances of moral complexity and competing values.”
-Applied ethics involves the practical application of general ethical principles within specific professions like law.
-It helps to understand the behavior of lawyers by showing how they apply ethical principles in their practice.
-Legal ethics serves to explain how ethics are applied within the legal profession, particularly in terms of representing clients.
-It focuses on guiding lawyers on applying general ethical norms when representing clients within the legal system.
Briefly describe the process you plan to follow to ensure that you make ethical
decisions during your time in legal practice. List and number the relevant steps of this
process.
O’Grady speaks to the difference of System 1(intuitive decision making) and 2(deliberative decision making) thinking, and how good System 2 thinking should be conducted. She deals with decision-making in a broader context of System 2 – where one could follow this process to reach good decisions in just about any situation where you have the time to come to a considered solution.
Parker and Evans suggest the following 5-step process which emphasises the importance of ethical awareness on three levels: the issues inherent to legal practice, our own persona, and the relevant situational pressures. Then, one needs to identify the range of ethical solutions and implement the appropriate one(s).
The last model focusing on the process of understanding and resolving an ethical dilemma, and is more geared to System 1 thinking, is Rest and Narvaez’s four component decision-making model. They focus especially on the moral dimension of ethical decisions and found that there must be: 1. Moral awareness = the recognition of a moral situation and identifying that there is need for a moral decision. 2. Moral judgment = the evaluation of choices and outcomes leading to clear ethical reasoning that can reach a morally defensible decision. 3. Moral intention and motivation = choosing how one intends to act by identifying a formation and motivation that will assist in making the moral decision over competing interests, especially in keeping one’s integrity to keep self-interest from clouding your judgment. 4. Moral action = the actual behavior in the situation and the competence and courage to implement the moral decision, behaving in accordance with that intention.
SM suggestion: Research authoritative instruction. I.e. is there a Code, rule, Act, caselaw that dictates the professional expectations in the circumstance (deontological approach). Often this will be the case and will provide crucial guidance which you dare not ignore. Then, analyse the quantity and quality of consequences (utilitarianism). Consider the positives and negatives, for example, mental health and liberty is more important than buying a fancy car, betraying a client’s confidence is more harmful than an omission of truth (at least under normal circumstances, maybe not when client wants to kill someone). Thereafter, analyse the action itself. Is it good or bad (= virtue ethics). Some actions are inherently good, like keeping a promise. Some are bad, like stealing. Even if some good comes from a bad action, the action can never truly be right. You have now considered all of the ethical approaches that we will look at in more detail in the next section of the work.
Get more time.
Source opinions from ethical colleagues. This may also include seeking advice from the Legal practice Counsel itself on its interpretation of some rule or code in a given circumstance.
Finally, I think it is important that you reflect and analyse the results of your decision to learn the lessons and grow as person and legal professional.
How is ethics defined by Collins Concise Dictionary?
a moral principle or set of moral values held by an
individual or group
How is ethics defined by the oxford dictionary?
moral principles that govern a person’s behaviour
How is ethics defined by Herring
= goes broader into the idea of the role of ethics which is to provide us with
tools to reach reasonable answer, to live good and virtuous lives → what is the right
thing to do?
Does ethics = morals?
Merriam-Webster defines morals as = beliefs about what is right behavior and what is
wrong behavior
Challenges of Absolute v Relative Morality
Absolute Morality Relative Morality
- Absolute or universal - Not absolute
- Objectively enforceable - Subjective
- Often religious, cultural or traditional -Emphasises
beliefs autonomy
Does ethics = virtue and values
In the Sotho community: In the Sotho community, there’s no direct translation for “morality” or “ethics,” but the concept of ethical or moral life is conveyed through words like “maemo,” describing ideal behavior or character.
Individuals who lack morals or act unethically are referred to as having “maemo a mabe,” indicating bad character or unethical behavior in Sotho.
