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Ethics > Random Questions > Flashcards

Random Questions Flashcards

1
Q

Discuss various factors taken into account when determining a reasonable fee for services

A
  • complexity of matter
  • importance to client
  • time spent doing the work
  • knowledge and expertise required
  • time and place work done incl consultations
  • urgency of matter
  • amount of money involved
  • seniority of practitioner
  • extent of perusal and consideration of documents
  • extent of work done by you and other staff
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2
Q

What type of transaction is subject to vat

A

VAT is payable ito S7 of Vat act

  • on supply by a registered vendor of goods/ services supplied by him in course of business
  • importation of goods into SA
  • supply of any imported services by a person
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3
Q

What are you required to do when administering the oath to affidavits?

A
  1. Satisfy self as to ID of deponent
  2. Deponent swear to affidavit or attest to or confirm content
  3. When administering attorney ask deponent
    - knows and understands contents of affidavit
    - any objection to taking oath or making affirmation
    - does he consider oath/ affirmation binding on his conscience
  4. Deponent sign in presence of commissioner who must certify below deponent signature that the latter has acknowledged and understands the affidavit
  5. Commissioner must indicate in writing the date and place of signature; print full names; designation; address below signature; state area for which he holds appointment
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4
Q

What does FICA require of an Accountable Institution?

A

Section 21 of Fica: an accountable institution may not establish a business relationship or conclude a single transaction with a client unless Accountable Institution has taken the prescribed steps:

  1. Verify ID of client
  2. If client acting on behalf of other person, ID of other person and other persons authority to act on behalf of client
  3. If another person acting obo client establish and verify ID of person and other persons authority to act obo client
  4. Different categories of clients to be identified and verified are as follows
    - natural persons
    - legal persons
    - partnerships
    - trusts
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5
Q

What duties towards the Centre ito FICA seem to breach the usual duty of confidentiality?

A

Accountable Institutions are obliged to keep detailed records of clients; business relationships and transactions for specified periods; also under obligation to
— make such records available to FIC on strength of a warrant
— inform centre on request of existence of a current or past mandate
— report cash amounts above prescribed amount
— report to centre conveyance of a transaction with a client of cash above a prescribed amount to or through a specified account or institution

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6
Q

Explain why it is not misleading the court to enter a plea of not guilty obo accused who admitted guilt

A
  • accused always entitled to plead not guilty
  • onus of proof on state
  • not equal to denying facts but putting the stare to proof thereof
  • presiding officer understands this and is not misled unless you call evidence or make submissions in conflict with version accused gave you
  • attorney cannot let client give evidence which he knows is untrue
  • attorney may test statewitnesses by cross examination iro matters of identification
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7
Q

Define conflict of interest

A

Anything which adversely affects judgment or loyalty in representing or advising your client

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8
Q

Clients of other attorneys want you to take over their mandate. What ethical considerations apply to both attorneys

A
  • client may have good cause or grounds to terminate a mandate at any time
  • attorney / agent have further rules of conduct :
    New attorney must get written letter of termination from client
    New attorney not act until costs of old attorney paid
    Old attorney has right of retention or lien for costs over docs drawn by him
    New attorney not use any docs until costs paid
  • good idea speak other attorney see if there are facts clients didn’t disclose
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9
Q

Consequences not discussing fees in magistrate court litigation

A
  1. Attorney be regarded acting for a reasonable fee which is assumed to be magistrate court tariff
  2. Cant charge interim fees as in comlaw only entitled to fee when mandate completed
  3. Difficult to recover as in dispute may have to tax your fees before issuing a summons
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10
Q

Mandate is complete. Render an account setting out the details of all work done

A

1 - fees for arranging appointments, consultation and taking instruction

2- perusal of your memorandum

3 - preparing first draft

4- copies of draft to client, other party , delivery

5- telephonic conversation with client about proposed changes to draft

6- discussion other party’s attorneys about amendments

7- preparation of second draft, copies to client and other attorneys

8- attendance at signing

9- correspondence, other telephone calls, postage

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11
Q

Attorney has never paid back amounts held in trusts, which may have been stolen. Explain what rights one has and what has to be done to exercise those rights

A
  • because you dealt with firm they are liable to repay you
  • inform law society and attorneys fidelity fund of theft and potential loss
  • the AFF may require you to exhaust all your remedies against the attorney as the fund is a fund of last resort
  • if attorney unable to pay, AFF will reimburse you and pay reasonable costs and interest
  • if AFF unreasonable or refuses, sue them
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12
Q

Difference between attorneys duty to keep affairs of client confidential and attorney client privilege

A

1 Attorney is in contract obliged keep affairs of client confidential

2 Provisions in legislation which compel attorneys in certain circumstances to disclose certain information

3 Legal Privilege belongs to the client and the attorney cannot be compelled to disclose evidence information given by client with view to legal action or advice

4 it is actually a rule of evidence

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13
Q

How to handle offer by a client to lend you money if you would like to borrow this amount

A

Improper to borrow money from client unless client in business of lending money or has been referred to take legal advice

In other instances it is improper

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14
Q

What is party and party costal

A

1 Costs according to tariff which a successful litigant may recover from losing party if court makes award in favor of winner

2 if costs cannot be recovered successful parties attorney may only recover the party and party costs from own client (unless agreement that may charge more)

3 if attorney fails to discuss fees may not charge more than party party costs

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15
Q

Attorney and Own client fees

A
  • fees attorney entitled to recover from own client
  • manner in which fees must be determined is incorporated in agreement between attorney and client
  • preferably the agreement be in writing or at least confirmed in letter
  • fees must be reasonable
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16
Q

May you commission an affidavit drawn up by your partner in an urgent application? And would it be different in a conveyancing matter?

A

You may not administer an oath in a matter which you have an interest
A court case is your firm is a matter a firm has a interest in
Permissible administer oath in conveyancing matter this is specifically excluded in the act

17
Q

Discuss the purpose of fica and your purpose and obligations as an attorney

A
  • fica impedes on the traditional role and independence of the attorneys profession and upon confidentiality of all communications between attorneys and their clients
  • duty to establish and verify identity of clients and of their authority
  • they are obliged to keep detailed records of clients business relationships and of transactions for a specified period
  • attorneys under obligation to:
    • make records available to financial intelligence centre on strength of a warrant
    • inform centre on request of the existence of current or past mandate
    • report cash transactions above a certain amount to centre
  • report to the centre the conveyance in terms of a transaction with a client of cash above prescribed amount or through specified account or institution
18
Q

What is your suggestion if a colleague charged a client of yours an excessive amount for work done

A

Advise individual to request the law society to have the fee determined by an assessment panel to establish if reasonable
Nothing prevents you from negotiating a fee with your colleague that you think is reasonable

19
Q

What is the effect of extinctive prescription on a claim/debt?

A

If a claim/ debt has prescribed it still exists as a natural obligation but becomes unenforceable

20
Q

What periods apply to most common law claims?

A

Normal prescription is 3 years

6 years from a claim arising from a negotiable instrument or notarial bond

21
Q

If you issue summons for a claim that has already prescribed what are the consequences

A

It is not unprofessional to sue even if prescribed as long as client is informed of following implications

  • any payment by debtor may be received
  • presiding officer may not mero motu raise issue of prescription
  • debtor may raise special plea of prescription which is likely to succeed
  • this may result in an order of costs against client
  • these costs will be relatively low if client withdrew his claim on receipt of plea
22
Q

Why is touting unprofessional?

A
  • an attorney must avoid giving the impression that his intentions are designed to touting his practice
  • a campaign of promotions by lavish entertainment is unprofessional and amounts to touting
  • touting detracts from the dignity of the profession and can lead to dishonesty
  • gives an unfair advantage to the immoral and causes problems with public expecting discounts
23
Q

When does legal professional privilege apply

A

It applies to all communication between you and your client:

  1. Where they relate to your professional relationship
  2. Made for purpose of seeking or giving legal advice or for use in legal proceedings
  3. Whether written or oral
  4. Even where client confessed to you commission of prior crime or fraud
24
Q

Professional privilege does not apply to

A
  1. Documents which are not otherwise privileged not merely privileged because client gives them to you
  2. Communications made for purpose of facilitating crime or fraud
  3. The name of your client- can be compelled to disclose
  4. Facts learned by you with own senses
  5. And where statute expressly or by implication provides that the privilege is inapplicable
25
Q

What fees are suitable for a debt collection

A

Various law societies have prescribed attorney and client fees for debt collection

You may also enter into a contigency fee agreement

Ethics (19 decks)

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