Paper 3: General Ethics questions (past papers, GLR notes)

Question 1

what is the definition of fit and proper

Answer 1

A person who displays the characteristics of honesty, integrity and reliability

Question 2

what is a conflict of interest

Answer 2

anything which will likely affect your judgment adversely in advising or representing your client

Question 3

what is legal professional privilege

Answer 3

A rule of evidence that an attorney may not disclose to the Court without the consent of the client, information given to him for purpose of legal advice or representation.

Question 4

what are the circumstances under which an attorney may decline a mandate

Answer 4

(1) lack of expertise/qualification/experience
(2) danger of a conflict of interest
(3) mandate to do or assist in the doing of something illegal or improper

Question 5

Colleague A has a client who seems to have a good and substantial claim for damages arising from a motor collision but cannot afford litigation. What kind of arrangement can you recommend, what are the requirements and what is the maximum fee A can charge.

Answer 5

A contingency fee arrangement governed by the Contingency Fee Act 66 of 1997

An attorney may not recover more than double his normal fee, or up to a maximum of 25% of the total amount awarded, whichever is the lesser

Question 6

For what purpose was the legal practitioners fidelity fund established

Answer 6

The fund was established to reimburse members of the public who suffer financial loss due to theft by an attorney his employee or candidate of money or property entrusted to that attorney.

Question 7

It appears that the bank which held trust money ito s86(2) was liquidated. What is a client’s right of recourse against?

(1) the bank
(2) the LPFF
(3) the attorney who held the trust money
(4) Would the attorney have a claim against the LPFF?

Answer 7

(1) the trust creditor cannot claim against the bank as it is not the bank’s customer
(2) there can be no claim against the fund as this loss is not covered by the LPFF
(3) the attorney is liable to make good on any trust shortfall. If the bank goes insolvent, he would be liable to repay all the money due to the trust creditors
(4) No, the attorney must institute a claim as a concurrent creditor in the insolvent estate of the bank

Question 8

What should an attorney do if they discover that he has negligently allowed a claim for damages to prescribe?

Answer 8

(1) inform the client at once
(2) advise the client to consult another attorney on his rights in relation to the prescribed claim and subsequent action
(3) not admit liability in order not to vitiate insurance cover with LPIIF and private insurers
(4) report the full facts to the LPIFF and private insureers
(5) consider whether it may be wise to settle the matter himself if the amount is not too high and there may be contributory negligence
(6) co-operate with attorneys for insurers
(7) Do not need to report to LPC but if there is a complaint - must respond

Question 9

What should a client do if their attorney has negligently allowed a damages claim to prescribe?

Answer 9

(1) terminate the mandate immediately, collect file from attorney, get legal advice from a new attorney
(2) instruct new attorney to send letter of demand to previous attorney
(3) inform the LPC in his region of the claim
(4) await an approach from the attorneys or the LPIIF to seek settlement of the claim
(5) if there is an undue delay issue summons against the negligent attorney for damages
(6) consider any offers of payment or settlement from the attorney or the LPIIF taking into account contributory negligence

Question 10

In which of the following ways can an attorney assist a crucial but unsophisticated and indigent witness you intend to call in a culpable homicide trial

(1) provide her with money for fare to ensure attendance
(2) interview her before a trial so she will be more at ease when she testifies
(3) prepare an affidavit of her testimony which she will then verify before court
(4) give her examples of questions you might ask during a trial

Answer 10

All actions allowed

Question 11

X wishes to know exactly how to perform his duties when a person deposes to an affidavit before him in his capacity as Commissioner of Oaths

Answer 11

(1) satisfied to identity of the deponent
(2) ask whether D knows and understands content
(3) whether D has objection to taking prescribed oath
(4) ask D whether he/she regards oath as binding on conscience
(5) If the D cannot take oath, must make a solemn declaration
(6) Oath/ declaration signed in front of COO and COO also signs
(7) COO certificate added
(8) affidavit contains full names, physical address and authority of COO

Question 12

At which tribunal, forum or office would you or your client seek relief in respect of:

(1) excessive fee charged by an attorney in a criminal trial
(2) trust money stolen by an attorney
(3) loss due to professional negligence by an attorney

Answer 12

(1) The Law Society (Assessment Panel)
(2) the Attorneys Fidelity Fund and Law Society
(3) sue the attorney in the appropriate court, attorney may approach the LPIIF and his own private indemnity insurers

Question 13

Before the start of a criminal trial in which you will represent the accused, you discover that the magistrate is the mother of the complainant. How would you apply the applicable rule of conduct and what will you do if you are unsuccessful?

Answer 13

The magistrate must recuse herself.
First, inform her in chambers that you will apply for recusal.
If she declines, apply in open court
If she still refuses you, then you continue.
If your client is acquitted, there is no harm done, if the client is convicted - you will have grounds for review.

Question 14

You negligently allow a claim for damages to prescribe :

(1) what is the effect of prescription?
(2) what should you advise your client?
(3) what can you do for your own position?

Answer 14

(1) The claim is extinguished and becomes unenforceable. Payments may be validly received but a summons is open to a special plea.
(2) Client must seek independent advice but you must not admit liability
(3) you must inform the LPIFF and your private insurers of any claims and pay the excess deductible. You do not need to inform the Law Society but you must respond to any complaint

Question 15

What are the grounds that would entitle an attorney to withdraw as an attorney and terminate his client’s mandate

Answer 15

Lewis:

(1) improper conduct on the party of the client
(2) client deliberate fraud
(3) attorney personality clashes with client
(4) client does not accept attorney’s advice
(5) failure to pay
(6) failure to give instructions
(7) illness of attorney

Question 16

is it permissible for a legal practitioner to act as such in the collection of a debt due to a person of whom he/she is the curator bonis, defended not/defended

Answer 16

You may act unless some conflict is apparent. it is wiser to appoint an indpeendent attorney.

Question 17

is it permissible for a legal practitioner to defend a claim against a deceased estate in which he/she is the executor

Answer 17

You may but it is not desirable

Question 18

Is it permissible for a legal practitioner to act for both parties in an antenuptial contract

Answer 18

You may unless negotiations become tricky, bargaining power is clearly unequal or assets are vastly different

Question 19

Is it permissible for a legal practitioner to sue a colleague?

Answer 19

You may but professional courtesy requires you to personally inform the colleague beforehand.

Question 20

Is it permissible for a legal practitioner to start acting for a client who is unhappy with the services of a colleague in a litigious matter?

Answer 20

You should not start acting for the client until you have spoken to the colleague regarding release of the file, payment of costs unless the delay would cause irreparable harm.

Question 21

Is it permissible for a legal practitioner to divulge confidential information about a client to client’s executor, curator or trustee?

Answer 21

In the case of a executor or curator this would be permissible as it is normally in the interests of the client. But it is not usually permissible in the case of a trustee as it may be detrimental.

Question 22

Is it permissible for a legal practitioner to act for both parties in a divorce matter where the parties have separate assets, income, no children and occupy leased property if they consent in writing being aware of the potential conflicts?

Answer 22

Yes. There should not be a dispute about assets, custody does not arise. If unforeseen conflict does arise, you would withdraw from both parties. In principle you may act.

Question 23

what is the difference between overreaching and overcharging

Answer 23

overreaching is abusing the ignorance of another in recovering excessive amounts from clients or debtors containing an element of impropriety.

Question 24

what are the documents that are subject to an attorney’s lien/ hypothec for fees

Answer 24

documents on which the attorney bestowed skill and labour

Question 25

if you are not sure whether some or other step you propose taking is ethically permissible, how would you go about getting an answer?

Answer 25

(1) consult the relevant authorities
(2) consult a senior colleague
(3) consult your regional LPC

Question 26

what will happen if you fail to pay your membership fee to the LPC?

Answer 26

You will not be allowed to receive trust money because you will not qualify for a Fidelity Fund Certificate - s84(2) and s84(3)

Question 27

Why would you advise a client to draw up a will?

Answer 27

• It will ensure that the wishes of the deceased are known
• that the administration of the estate takes place speedily
• disputes are avoided

Question 28

Is it permissible for a legal practitioner to share fees earned with his or her candidate attorney

Answer 28

No they may not share fees with a candidate attorney

Question 29

Is it permissible for a legal practitioner to pay the candidate attorney a commission based on the fees that the candidate attorney generates?

Answer 29

Yes, they may pay the candidate attorney commission on the fees generated.

Question 30

Is it permissible for a legal practitioner to share fees with counsel?

Answer 30

No, they may not share fees with counsel.

Question 31

A client discovers you need to borrow a substantial amount of money to purchase new computers and software for your practice. The client’s husband convinces her to try to lend you money - how do you handle the situation?

Answer 31

It is improper to borrow money from a client unless

(1) the client is a money lender
(2) the client is independently advised

Question 32

A client is impressed with your performance and wishes you take over matters from a colleague, how do you take over such matters in a professional manner?

Answer 32

The colleague’s mandate must be terminated in writing by the client
You should inform you colleague
You should not act until the colleague’s fees have been paid
Keeping in mind that a colleague has a right of retention on documents on which he or she drew or which skill and labour has been bestowed

Question 33

Your client informs you that her son intends on going to university next year to study law so that he can become an attorney or advocate:

Advise her on the substantive requirements for admission of an attorney under act 53, 1979

Answer 33

s15:

• fit and proper
• 21
• SA citizen or permanent resident
• LLB
• passed board exam
• attended training course
• completed articles

Question 34

May an attorney consult with his or her own client in a civil case when that client is being cross examined?

Answer 34

Once your client is under cross examination you may not consult with him at all. The reason for this is namely that you may advise him how to answer questions or how to rectify evidence already given.

Question 35

May an attorney allow a secretary to consult with clients and take instructions during his or her absence

Answer 35

The secretary may only interview the client to take a formal instruction. In all other cases this should not happen because the client is entitled to professional advice and service.

Question 36

may an attorney under any circumstances divulge information given by his or her client in confidence?

Answer 36

Yes in limited circumstances:

(1) executor after death
(2) curator if placed under curatorship
(3) where a client waives his confidentiality, information may be disclosed

Question 37

You are consulted by a poor client who has a substantial claim for damages as the result of an assault committed on him. He does not have the funds to pay your feed but appears to have a good case. Advise your client as to how you can act for him in his action for damages and on what basis you can be remunerated, if at all?

Answer 37

Attorney can act on a contingency basis - if the client succeeds he will be entitled to a success fee which will not exceed twice his attorney and client fee and shall not be more than 25% of the amount recovered by way of a Court order or settlement. If the client is unsuccessful the attorney will receive no fees. The attorney must comply with the Contingency Fees Act and must enter into a written agreement with the client who must comply with the act.

Question 38

List the sources where you would find the rules of professional conduct

Answer 38

• The Attorneys Act,53 of 1979, as amended and the regulations
• rules of the law societies
• rulings of the councils
• common law
• south african textbooks
• foreign influences
• court judgements

Question 39

An attorney has been struck off he roll for dishonesty. After a lapse of 8 years, he applies for re-admission. What are the requirements the attorney must satisfy for the court to consider his application?

Answer 39

• onus on attorney to satisfy court on BoP that genuine, complete and permanent reformation
• defect in character no longer exists
• if readmitted he would conduct himself as an honourable member of the profession
• show he can be trusted to carry out duties
• show public would not be prejudiced by readmission

Question 40

To what documents and/or information in an attorney’s possession and or of which he has knowledge does the issue of privilege not apply

Answer 40

• documents which are not otherwise privileged
• communications made for the purpose of facilitating crime or fraud
• the name of your client
• facts learned by you with your own senses
• where a statute says privilege is inapplicable

Question 41

A client insists that you issue a summons on a claim that has clearly prescribed. How will you explain the situation to your client?

Answer 41

It is not wrong to issue a summons on a claim on which you believe it will not succeed as in the case of prescription.

The client must be informed fully of the implications ie the probability of a costs order against the client if the claim is unsuccessful.

It is wise to confirm your advice to client in writing.

If prescription is raised as a special plea, the claim can be withdrawn before too much costs are incurred and if it is not raised by the def, the court may not do so mero motu.

Question 42

Your partner has drawn up an affidavit in an urgent High Court application. No other Commissioner of oaths is available. May you administer the oath? would the position be different if it were a conveyancing matter and why

Answer 42

You may not administer the oath in a matter in which you have an interest. By definition, a court case in which your firm is involved is a matter in which you or your firm has an interest.
It is permissible to administer an oath in conveyancing matters as the act and regulations specifically exclude conveyancing matters from those in which you are regarded as having an interest.

Question 43

what does acting pro amico mean

Answer 43

free representation by an attorney of a client who is in a particular relationship to the attorney ie a relative or colleague, cannot charge fees but can recover disbursements

Question 44

what does acting pro bono mean

Answer 44

Representing indigent persons but also some services to poor communities without charging fees

Question 45

what does acting on a contingency basis mean

Answer 45

Contingency fees constitute %, not higher than 25% of a client’s successful claim or fees that are chargeable at a higher rate than normal (not more than double) if work is successfully concluded. Governed by Contingency Act. A common law contingency fee agreement is invalid.

Question 46

what are costs de bonis propriis

Answer 46

costs which a court may order the attorney to pay personally, either on a party and party or attorney and client basis as a mark of displeasure with the conduct of the attorney or other person.

Question 47

explain an order that the costs should be costs in the cause

Answer 47

interim order made by a court relating to costs incurred in a matter that is not finalised and means that these costs will follow the final costs order in the matter

Question 48

what are party and party costs

Answer 48

costs according to a tariff in which a successful litigant may recover from the losing party if the court makes a costs order in favour of the winner. If the costs cannot be recovered from the losing party, the successful party’s attorney may recover only the costs from his own client unless there is an agreement that he may charge more. If the attorney does not discuss fees with the client he may not charge him more than the party and party fees.

Question 49

your financial transactions increase and you appoint an experienced bookkeeper who recommends a computer program of which you have no knowledge. Discuss your responsibilities

Answer 49

It is quite normal and often happens that an attorney will not be familiar with accounting systems or computer programmes. This is why they would employ an experienced bookkeeper - for their experience in the field. However, an attorney must do his own research and satisfy himself that the program complies with the requirements ito the LPA and Regs. He could request testimonies of current users and make the necessary enquiries.

Question 50

Will it be in order to agree with counsel in advance on a fee for the latter’s appearance in a court?

Answer 50

It is both in order and advisable that an attorney agrees on fees in advance with an advocate. This will eliminate the surprise element and resultant problems if the fee is more than anticipated. It is the attorney’s duty to keep his client informed of the cost implications of each case. it can only be done if proper arrangements with the advocate are made beforehand.

Question 51

You have arranged a consultation between your client and an advocate and subsequently discover that you are unable to attend the consultation. May the consultation take place without you?

Answer 51

An attorney may not under any circumstances arrange a consultation if he knows that he will not be present.
Should unforeseen circumstances occur and the consultation must necessarily take place, the attorney must arrange that one of his partners , a professional assistant or candidate attorney or correspondent attend to the consultation. If it is necessary for the attorney to attend on the wish of the client, the consultation must be postponed.

Question 52

May an attorney mark the fee on a brief to an advocate without discussing the same with the advocate before hand?

Answer 52

An attorney is entitled to mark a brief beforehand but it is is not advisable to do so. If he does, counsel may accept or refuse the brief. It is ethically more correct for the attorney to discuss the fee with counsel before instructing him.

Question 53

May an attorney require an advocate to attend a consult at the attorney’s offices

Answer 53

The rules of the General Bar Council prohibit an advocate meeting in an attorney’s office but nothing prohibits the advocate under appropriate circumstances seeking special permission to do so.

Question 54

May an attorney request the client to consult with counsel in the attorney’s absence

Answer 54

An attorney or his representative must always be present when an advocate consults with his client. It often happens that an attorney is not available and requests his candidate attorney to accompany his client to consult with counsel.

Question 55

What happens in the instance where the attorney and advocate do not discuss fees before hand and there is a dispute?

Answer 55

The attorney must

(1) arrange to discuss the fees with counsel and endeavour to resolve the dispute
(2) if this is not possible refer the matter to the Bar Ombudsman who will mediate
(3) if unsuccessful, lodge a complaint with the secretary of the bar council who will arrange a proper hearing and debate of the matter

Question 56

What are the duties and obligations of an attorney?

Answer 56

Lewis:

• duty to be honest and fair
• be true and faithful to the state
• apply and uphold the law
• deliver the best possible service to your client
• uphold integrity and dignity of the profession
• not overcharge or overreach clients
• courteous to clients and deponents

Question 57

Which documents may an attorney retain in their possession until the client has paid an account in full?

Answer 57

• all documents which the attorney prepared in the matter

- letters written by an attorney on his client’s behalf to a third party in connection with the mandate

Question 58

You have a valued client who has to make an affidavit. He sends the signed document to you to attest. May you do this?

Answer 58

No - he has to come to me to sign it in my presence or I have to go to him to sign it in front of me. In either instance the document must be properly attested.
The reason for this is the regulations in terms of the Justices of the Peace and Commissioner of Oaths Act which requires that oaths must be taken in the presence of a COO and who must administer the prescribed oath.. This prevents the possibility of fraud and preserves the solemnity of the oath procedure which would otherwise be destroyed.

Question 59

How does one become a commisisoner of oaths

Answer 59

an attorney is automatically a commissioner of oaths ex officio