Unit 2 – Legal Ethics

Question 1

Ethics

Answer 1

refers to the philosophical study of morality.

Question 2

Legal ethics

Answer 2

refers to the principles of conduct that members
of the legal profession are expected to observe. In South Africa we utilize the fit and proper standard as a benchmark of legal professionals.

Question 3

Does the 4 year LLB degree prepare one to be fit and proper?

Answer 3

 General view is that it does not.
 We focus on studying the law but don’t learn what it means to be ethical.

Question 4

Onus fpr proving fit and proper person

Answer 4

You as legal attorney bear the onus of proving that you are fit and proper.

Question 5

Define what The Rules of Professional Ethics are

Answer 5

➢ They are drawn from various sources.
➢ Failure to adhere to them is sanctioned through disciplinary steps that may include suspension or removal from the roll of
practitioners.

Question 6

The Legal Practitioner

Answer 6

➢ Refers to both Attorneys and Advocates.

Question 7

Fit and Proper Person

Answer 7

➢ Proving that you are a fit and proper person is usually proven by means of an affidavit, with attached letters of reference to confirm from the writers that they believe you to be fit and proper.

Question 8

Case on fit and proper person

Answer 8

Ex Parte Gunguluza
▪ A person who cheats on their admission exams is not Fit and Proper.

Question 9

Ethics vs Morals

Answer 9

➢ Ethics are the moral principles that govern a person’s behavior or the conducting of an activity. These are often baked into a
Code of Conduct of a business.
➢ Morals provides for what is considered right and wrong. Thus, morals inform ethics.

Question 10

Suspension and Removal from Practice

Answer 10

The Court will conduct a 3-stage inquiry:
➢ (1) Whether the offending conduct has as a matter of fact been established.
➢ (2) Whether such conduct, as a value judgment, renders the applicant unfit for practice.
➢ (3) If so, whether, in all circumstances, the person should be removed from the roll of practitioners or merely suspended.

Question 11

Def of misconduct

Answer 11

Generally refers to unprofessional, dishonorable or unworthy conduct by a legal practitioner that warrants disciplinary action.

Question 12

Different forms in which misconduct may take place

Answer 12

It can take the form of:
➢ Breaking a statutory law of the profession; or
➢ A contravention of the rules made by professional bodies; or
➢ Any conduct, even in a private capacity, which the court finds to be improper.

Question 13

Professional Negligence

Answer 13

❖ Legal practitioners are expected to possess special knowledge, skill and learning and must measure up to the standard of competence of a reasonable man profession such knowledge and
skill.
❖ Where the legal practitioner falls short of that standard they are guilty of professional negligence which is a civil offence.

Question 14

Where does the Legal Practice Council Code of Conduct apply?

Answer 14

➢ Applies to all legal practitioners, candidate legal practitioners and certain juristic entities.

Question 15

What does the Legal Practice Council Code of Conduct utilize?

Answer 15

It utilizes the general standards of honesty, integrity, adhering to the Constitution and the interests of justice, maintaining legal professional privilege and confidentiality, account honestly when billing clients, remain abreast of legal developments.

Question 16

Case law illustrating Practical Example of Legal Practice Council Code of Conduct

Answer 16

Rustenburg Platinum Mines v UASA obo Pietersen and Others
▪ Facts
* Pietersen was a manager.
* Ms Gotle is a up and coming technician.
* She works there for 7 years and Pietersen harasses her.
* Gotle complains to her husband consistently.
* Pietersen’s wife also works there.
* Husband complains on her behalf and it goes to CCMA.
* CCMA sides with Pietersen.
* Case then goes to court.
* Judge looks at the outlook of victims.
* Victims all respond differently to Harassment and sexual harassment.
* Court rules that it is improper conduct.

Question 17

Other Considerations

Answer 17

❖ Publicity and approaches
❖ Specializing
➢ Must ensure you are actually a specialist.
➢ It imposes a higher standard on the practitioner if they claim to be a specialist.

Question 18

Para 9.5.2 of the Code (confessions)

Answer 18

➢ The legal practitioner shall not put forward an affirmative case inconsistent with the confession of the client.

Question 19

Para 16 of the Code (reasonability of communication)

Answer 19

➢ An Attorney must:
▪ Within a reasonable time reply to all communications which require an answer unless there is good cause for refusing an answer.
▪ Respond timeously and fully to requests from the Council for information and/or documentation which he or she is able to provide.
▪ Comply timeously with directions from the Council.
▪ Refrain from doing anything that may hamper the ability of the Council to carry out its functions.

Question 20

Para 24.1 (counsel was performing another occupation that could bring the profession into disrepute)

Answer 20

➢ Must avoid engaging in any other occupation which interferes or may interfere with their work as an advocate.
➢ Cannot enter a relationship or arrangement which resembles a partnership.

Question 21

Cab-rank rule (falling under para 24.1)

Answer 21

➢ Generally, barring unavailability and lack of proper remuneration, counsel must accept the cases which they are competent to accept and cannot pick and choose which cases they take on

Question 22

Trust account advocates (falling under para 24.1)

Answer 22

➢ Must possess a Fidelity Fund Certificate.
➢ All the normal rules apply, with small amendments relevant to trust account advocates.
➢ Trust account advocates can accept their mandates from the public and not only attorneys.

Question 23

Relationship with the Court

Answer 23

Relationship with the Court
❖ Relationship of Trust
❖ Contempt of Court
❖ Duty of Disclosure
❖ Defending the Guilty .
❖ Abusing the Rules of Court

Question 24

❖ Relationship of Trust

Answer 24

➢ Courts must have complete confidence in the honor and good faith of legal practitioners

Question 25

❖ Contempt of Court

Answer 25

➢ Legal practitioners must show the necessary respect to the court and court officials or they will be held in contempt which is a form of unprofessional conduct.
➢ S v Mamabolo
▪ Constitutional Court ruled that the offence exists but should be weighed against freedom of expression.

Question 26

Duty of Disclosure

Answer 26

➢ Misleading the court is viewed in a very serious light as misconduct and includes:
▪ Making false statements to the court;
▪ Failing to direct the court’s attention to relevant authority; and
▪ Non-disclosure of material facts.

Question 27

Defending the Guilty

Answer 27

➢ It is not unethical to enter a plea of not guilty even where your client has confessed to you that they did commit the crime.
➢ The State bears the onus of proof that the accused is guilty and you are under no obligation to assist them

Question 28

Abusing the Rules of Court

Answer 28

➢ Legal practitioners must ensure that the Rules of Court serve their true purpose.
➢ Thus, they cannot manipulate and abuse the courts’ procedures as such an action will be met with a cost order and referral to professional bodies for disciplinary action

Question 29

General Approach ito Relationship with Clients

Answer 29

General Approach
➢ An attorney is not bound to do whatever the client asks of them.
➢ Rather, the law exacts from an attorney uberrima fides, that is the highest possible degree of good faith.
➢ A legal practitioner must duly and faithfully keep the secrets of their clients and on no account disclose them without the client’s consent.

Question 30

Accepting Instructions

Answer 30

Before accepting instructions, legal practitioners should consider:
▪ Whether there exists any potential conflicts.
▪ Whether they possesses the necessary skill to execute the mandate.

Question 31

The Mandate

Answer 31

➢ The services that legal practitioners render to their clients are mainly those which an agent renders to his/her principal.
➢ Thus the principles of the law of agency apply to the relationship between a practitioner and the client.
➢ The mandate need not be in writing.

Question 32

Settlements

Answer 32

➢ The duty to adhere to the mandate is nowhere as acute as in settlement negotiations.
➢ All settlement propositions must be presented to the client, even if the practitioner considers the proposal to be
inadequate.
➢ Practitioners may not compromise the client’s claim without instructions to that effect.

Question 33

Conflict of Interest

Answer 33

➢ The duty to adhere to the mandate is nowhere as acute as in settlement negotiations.
➢ All settlement propositions must be presented to the client, even if the practitioner considers the proposal to be inadequate.
➢ Practitioners may not compromise the client’s claim without instructions to that effect.

Question 34

Examples of conflicting interests

Answer 34

1. Acting for both the plaintiff and the defendant.
2. Acting for two clients with conflicting versions in criminal matters.
   * S v Jacobs
   * S v Hollenbach – One accused pleaded guilty and one pleaded not guilty.
3. Both Parties to a transaction
   * Ebersohn case: Sale of immoveable property. A certain attorney acted for both the seller and buyer.
4. Acting against former clients
   * Whilst practitioners are duty-bound to do the best for their clients, they may not use or disclose confidential information obtained from former clients in subsequent
   proceedings against such clients.
   * Such knowledge, even if seemingly unrelated to
   subsequent proceedings, may well place practitioner in a dilemma.
5. Road Accident Fund Claims
   * Cannot act for the driver and injured passengers.
6. Secret Commissions
   * Obtaining such benefits without disclosing this and obtaining the client’s consent may lead to a conflict.
7. Being a witness in your own case
   * Practitioners should avoid acting in matters where they
   may be called as a witness.

Question 35

Confidentiality and Privilege

Answer 35

➢ Practitioners must at all times preserve the confidentiality of their clients’ affairs.

Question 36

Liability for Negligence

Answer 36

➢ Practitioners must act with reasonable care and skill in the conduct of their clients’ affairs.

Question 37

Duty in Respect of Trust Funds

Answer 37

➢ These duties are varied and extensive.
➢ These rules only apply to attorneys, as advocates cannot deal with trust fund matters

Question 38

Examples of duties

Answer 38

▪ Keeping Records
▪ Investing Trust Funds
▪ Advising Clients of Options – Smith v Price case
▪ Acting Recklessly – Matthews case: Attorney failed to keep proper records.
▪ Ignorance of accounting duties – Holmes case: Court criticized an attorney’s woeful ignorance of the account duties expected of them

Question 39

What happens when legal practitioners break the rules?

Answer 39

❖ It often results in the following:
➢ Newspaper Articles highlighting the misconduct.
➢ Lawsuits against the offending practitioner.
➢ Fines and Jail Time, depending on the offence

Question 40

General rule on the Investigation Processes and Disciplinary Procedures of the LPC

Answer 40

➢ Numerous queries are received from members of the public
➢ The LPC has been the regulator for the entire, practicing and non-practicing, legal profession since 2018.

Question 41

Functions of the LPC

Answer 41

➢ The LPC has designated provincial councils who are tasked with investigations and disciplinary hearings in the event of
complaints received.
➢ The (national) LPC seems to have distanced itself from this function.
➢ Each provincial council is to gather information about complaints to ascertain whether grounds exist to pursue the
matter in question.

Question 42

Provincial Councils

Answer 42

➢ Provincial councils may appoint independent investigating and disciplinary committees which consists of practicing legal professionals who don’t serve on the national or provincial
councils.

Question 43

Disciplinary Committee Compositions

Answer 43

➢ Disciplinary committees must consist of at least one advocate if the complaint is against an advocate, and at least one attorney if the complaint is against an attorney.

Question 44

Process of Complaints

Answer 44

Once a complaint has been referred to an investigating committee investigates the complaint and, if satisfied, on the basis of available prima facie evidence, that the legal practitioner is guilty of misconduct, the complaint is referred to a disciplinary committee for adjudication.
➢ The complainant is entitled to be present at the disciplinary hearing, at which evidence will be led by the Provincial Council’s legal officer, or someone else appointed for that purpose. The complainant and witnesses will testify under oath, and may be cross-examined by the legal practitioner against whom the complaint is made or his/her legal representative. The legal practitioner may then testify in his/her
defense and call witnesses.
➢ Following the conclusion of the disciplinary hearing, the parties are advised of the outcome. Should either party be dissatisfied with the finding of the committee, it is open to the
dissatisfied party to lodge an appeal.

Question 45

List the various consoderations of Ethics and
Social Media

Answer 45

❖ There are various considerations such as:
➢ Legal privilege
➢ Legal professional and client relationship
➢ The general nature of legal advice. One sized shoe does not fit all.
➢ Nuances in the law
➢ When in doubt, consult the LPC’s resources

Question 46

Case study

Answer 46

❖ A woman is sexually harassed by a top-level senior executive in a large company. She sues the company, and during settlement discussions she is offered an extremely large monetary settlement. In the agreement, the woman is required to confirm that the executive did nothing wrong, and after the agreement is
signed the woman is prohibited from discussing anything about the incident publicly. Before the date scheduled to sign the settlement agreement, the woman’s lawyer mentions that she has heard the executive has done this before, and the settlement amount is very large because the company probably had a legal obligation to dismiss the executive previously. The
company however wants to keep the executive because he is a
big money maker for the company.
❖ What are the issues of integrity, ethics and law posed in the
case study?
➢
❖ What options does the woman have, and what should she do
and why?
➢