NOTES

Question 1

Ethical dilemmas

Answer 1

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.

Question 2

Spaulding v Zimmerman

Answer 2

-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

Question 3

Which model of ethical reasoning is found in the trolley dilemma and why

Answer 3

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

Question 4

What is Utilitarianism

Answer 4

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

Question 5

Deontology

Answer 5

Actions are moral if they follow the rules regardless of outcome
Underscores equality and human rights

Question 6

Virtue ethics

Answer 6

Actions moral if they abide by the virtues that maximise well being and fulfillment of individual

Question 7

Categorical

Answer 7

Focuses on quality and correctness of action regardless of the outcome and consequences
Rightness of action found in duties, rights and virtues

Question 8

Should ethics be taught (yes answer)

Answer 8

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.

Question 9

Should ethics be taught (no answer)

Answer 9

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.

Question 10

In the article Can Ethics Be Taught? - Insights from Nomfundo Manyathi-Jele what is stated

Answer 10

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.

Question 11

What characteristics does someone who is ethical have

Answer 11

one who is honest, one who is respectful, and one who can be
held accountable (amongst other things)

Question 12

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?

Answer 12

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.

Question 13

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?

Answer 13

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

Question 14

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.

Answer 14

bought cars in their names and then gave them to estate agents to use in exchange of transfers

Question 15

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

Answer 15

LSSA Code of ethics (or Ethical Code)

Question 16

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

Answer 16

1. Guidance to practitioners
2. Guidance to students and new entrants to profession
3. Protects professional nature of legal services
4. Protects public against misconduct and instils trust
5. Strengthens accountability
6. Strengthens the rule of law
7. Allows for holistic focus by considering broader justice issues

Question 17

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

Answer 17

…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.

Question 18

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.

Answer 18

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.

Question 19

How is ethics defined by Collins Concise Dictionary?

Answer 19

a moral principle or set of moral values held by an
individual or group

Question 20

How is ethics defined by the oxford dictionary?

Answer 20

moral principles that govern a person’s behaviour

Question 21

How is ethics defined by Herring

Answer 21

= 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?

Question 22

Does ethics = morals?

Answer 22

Merriam-Webster defines morals as = beliefs about what is right behavior and what is
wrong behavior

Question 23

Challenges of Absolute v Relative Morality

Answer 23

Absolute Morality Relative Morality
- Absolute or universal - Not absolute
- Objectively enforceable - Subjective
- Often religious, cultural or traditional -Emphasises
beliefs autonomy

Question 24

Does ethics = virtue and values

Answer 24

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.

Question 25

What did Bruce Weinstein on Ethics?

Answer 25

= the main takeaway from this video is the five principles of ethics that are presented by Weinstein which are =
1. do no harm
2. make things better
3. respect others
4. keep confidence
5. be fair and be loving

Question 26

Sticking to just the code of conduct to be ethical has problems of its own

Answer 26

Laws are enforced by courts, while norms are enforced by social pressure.

The Legal Practice Act defines norms as unwritten behavior accepted by society.

The enforcement of ethics raises questions, as legal and ethical considerations can differ.

Vicarious liability dictates that if an employee commits an unlawful act, the employer becomes responsible for the employee’s wrongdoing.

Question 27

The heart of ethics

Answer 27

what one ought to and ought not to do

Question 28

What is an outcome based approach

Answer 28

Decision is made based on what produces the best outcome

Question 29

What is the virtue based approach

Answer 29

The character reflected through the action

Question 30

Rule based approach

Answer 30

Decisions made based on the rules

Question 31

Pressure to ensure we make good ethical decisions we have to take note of 3 important factors, what are these 3 factors?

Answer 31

Context = what is the context in which this decision is made → one may be a new legal
practitioner, pressures and the environment.
Character = what is ones own background, beliefs and theories.
Calling = what is the
expectation of the profession of which one is called to be a part of.

Question 32

What type of ethics is legal ethics

Answer 32

Applied ethics

Question 33

What is the purpose of legal ethics

Answer 33

Explain general ethical principles to legal practice

Question 34

What does the wide approach to legal ethics entail?

Answer 34

General relationship between law and ethics

Question 35

What does the narrow approach to legal ethics entail?

Answer 35

Ethical standards applicable to the field of law

Question 36

Legal ethics operates on 3 different levels, name these 3 levels

Answer 36

1. Macro level- way society structures it
2. Micro level- Responsibilities of individual lawyers providing legal services
3. Wider social context-philosophical economic and sociological context in which lawyers work

Question 37

O’Grady = makes use of the description of two decision-making processes, what are these processes

Answer 37

System 1 = intuitive decision-making process → it is fast, effortless, automatic, and non
conscious.
System 2 = deliberative decision-making process → slow, difficult and conscious.
An ideal system has about seven steps namely;
Framing the problem to be solved.
Identifying and prioritising values, interests and objectives.
Identifying and resolving major uncertainties concerning the cause of the problem.
Generating a range of plausible solutions.
Predicting the consequences of each course of action generated.
Making a decision by selecting the course of action that optimises interests and
objectives.