LJU4801 STUDY SUMMARY NOTES

LJU4801 STUDY SUMMARY NOTES. “Ethics” (Bryant et al)  Telling lies is wrong - Our relationships with each other only function well if there is a presumption that what we say to each other is true.  Trust is essential in human relationships and in public life.  Therefore, ethics is about what we ought and ought not to do, and also about setting priorities in human behaviour.  Ethics is not always about what is absolutely right or wrong, acceptable or unacceptable, ideal or less than ideal.  It is also about what is the best decision in particular circumstances, what is the lesser of two evils, what is the balance between doing good and causing harm.  Ethics is therefore about working out the principles on which we make these sorts of decisions.” “Legal ethics”  In the wide sense, it refers in general to the relationship between law and ethics (or morality).  For example may the law be used to enforce moral views on abortion, homosexuality, prostitution or human cloning?  in the narrow sense, the term refers to the ethical standards of professional conduct applicable to the field of law  Legal ethics in the narrow sense thus deals with the “oughts” of providing legal services: “How ought a legal practitioner to behave in order to be a ‘good’, ‘decent’ and ‘proper’ legal practitioner?”  In legal practice the term “legal ethics” is, understandably generally used in this narrow sense 1.2 WHAT IS A “PROFESSION” 2 1. Professionals are required to have specialised intellectual knowledge and skills before they will be granted access to their chosen profession. This knowledge, is not easily accessible to the lay person, and puts the professional in a position of authority in respect of the client. 2. Professionals are expected to have a commitment to promoting the basic good of society. In the case of the legal profession, the basic good is justice. 3. Professionals are expected to have a commitment to serving the public in matters related to their particular field. 4. Professionals enjoy relative autonomy in the execution of their duties. They use their discretion in the execution of their duties and do not blindly accede to their clients or other authorities. 5. Professionals should have a willingness to accept personal responsibility for their actions and for maintaining public confidence in their particular profession. 6. Professionals share a sense of common identity and an established moral community. 7. Professionals are self-disciplined and abide by a code of legal ethics based upon what the best thinkers in their particular profession regard as proper conduct for a member of that profession. 8. The above standards of professional conduct are enforced by the profession itself or by the courts, taking into account the views of the controlling body of the particular profession. 1.3 THE PRACTICE OF LAW AS A PROFESSION The rule-based approach to professional conduct has led to a very restrictive interpretation of three claims traditionally made in the name of a lawyer: o that he or she acts like a professional o that he or she always remains morally a fit and proper person for the legal profession o and that he or she has a duty to obey the law 3 The requirement of a good character or of being a “fit and proper person’’  The question of who can be a legal practitioner in South Africa is strictly regulated by legislation and by the inherent common-law right of the court to regulate its own processes.  Even those with all the relevant legal qualifications and degrees will be admitted to the legal profession only once they have proven that they are indeed “fit and proper persons” for the legal profession.  Membership is subject to extensive character screening.  Section 15(1)(a) of the Attorneys Act 53 of 1979: a court may only enrol an applicant if “such person, in the discretion of the court, is a fit and proper person to be so admitted and enrolled”.  Section 22(1)(d) of the Act: a practicing attorney may be struck off the roll, if that attorney “in the discretion of the court, is not a fit and proper person to continue to practice as an attorney”.  A similar character tests apply to membership of the advocates’ profession and is regulated by the Admissions of Advocates Act 74 of 1964.  Only persons of a certain character are allowed to practise as lawyers.  The requirement that you as an aspirant lawyer must prove to the satisfaction of the law society that you are “a fit and proper person” for the legal profession underlines the moral basis to the profession.  Throughout history, lawyers have been expected to possess a good moral character.  The reason for the character requirement is generally: Lawyers are entrusted with matters related to the affairs, honour, money, property, confidential information and lives of their clients, and should be worthy of this trust and confidence.  Lawyers of bad character may fail to uphold their duty either to the courts or clients, or may abuse their position of trust.  The public is protected when lawyers are honest, diligent and place both the rights of clients and the law above their own interests.  “Moral character” has been described as embracing truthfulness, a high degree of honour, a good sense of discretion, and a strict observance of fiduciary responsibility. 4  However, throughout history, it has been shown that the standard of a “good moral character” has often been applied in arbitrary and prejudicial fashion, favouring those of a particular race, gender, politics and economic worth.  The concept of a “good moral character” should not be used to stifle innovation, difference and social criticism - it should be retained as a powerful inhibitor of unethical conduct and as something to which to aspire.  Whether somebody is a “fit and proper person” to practise law as an advocate or attorney is essentially a discretionary value-judgment on the part of the court  In Prokureursorde van Transvaal v Kleynhans 1995: the court stated that although its judgment must be made on the totality of the facts before the court, judgment will in the end be based on the general impressions formed by the court and its own sense of appropriateness.  The court has an inherent common law power to regulate the legal professions and therefore remains the final arbiter of what is appropriate in this regard In South Africa the court’s judgment about who is “an appropriate person” has frequently been influenced by political considerations. (Political abuse of the “fit and proper” standard Examples:  When Mahatma Ghandi applied to be admitted as an advocate of the High Court of Natal, his application was opposed by the Law Society of Natal because he was a person of Indian origin and as such not a “fit and proper person” to practise law.  When Madeline Wookey wished to enter into articles of clerkship as a future attorney, the Cape Incorporated Law Society objected and refused to register her articles because she was a woman.  Bram Fischer, a brilliant, highly regarded, senior advocate attached for many years to the Witwatersrand Bar. Fischer was struck off the roll of advocates in 1965 because of his opposition to apartheid  The Law Society of the Cape of Good Hope refused to register a contract of community service of a prospective attorney (Prince). As a committed Rastafarian, he had in the past used dagga (which is illegal) during religious ceremonies and stated his intention to do so in future (Prince v President, Cape Law Society