LJU4802 SUMMARY STUDY NOTES & EXAM GUIDE FOR 2022

LJU4802 SUMMARY STUDY NOTES & EXAM GUIDE FOR 2022. Professional Ethics. Legal ethics” can be understood in a wide and a narrow sense. 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? However, in the narrow sense, the term refers to the ethical standards of professional conduct applicable to the fi eld of law (as opposed to the fi eld of medicine, for example, in which case we would speak of “medical ethics” to refer to the professional conduct required of medical practitioners). Legal ethics in the narrow sense therefore 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 its narrow sense.1 We shall follow the general and established usage of the term “legal ethics” in this module, which means that the subject matter will be restricted to the professional conduct expected of legal practitioners in South Africa. Ethics for attorneys in South Africa are regulated by the Attorneys Act 53 of 1979. The whole of chapter III of this Act (ie ss 56–77) is particularly relevant to legal ethics in South Africa. This Act governs the establishment of law societies. The law societies, in turn, lay down binding rules for the members of the legal profession on their registers. The law societies also lay down various rules which are intended to: (1) protect and promote the legal profession 1 See, for example, Lewis EAL Legal Ethics: A Guide to Professional Conduct for South African Attorneys (1982). 2 (2) protect the individual legal practitioner (3) protect and safeguard the interests of the client in the context of the relationship between the lawyer and the client The Supreme Court Act 59 of 1959 contains rules pertaining to the admission of advocates, their authorisation to practise and their conduct. In terms of section 11 of the Admission of Advocates Act 74 of 1964, the power to make rules includes the power to make rules in terms of the Supreme Court Act to give effect to the provisions of the Admission of Advocates Act. The Rules of the Code of Conduct of the various court divisions also govern the professional conduct of legal practitioners. PROFESSIONAL CODES Comprehensive codes of legal ethics were adopted in an attempt to maintain the ethical basis of the legal profession. In general, a professional code of ethics suggests a compilation of ethical values to provide practitioners in the legal profession with a framework for the ethical practice of law. A code of legal ethics generally seeks, among other things, to: • protect the professional nature of legal services by stressing the obligation of professionals to serve justice and the public • correct the imbalance in the relationship between the professional and the client • maintain public confi dence • protect the public against improper conduct or incompetence by prescribing and guaranteeing the standards of skill, learning and conduct required • provide practitioners and newcomers with broad parameters for making morally responsible choices in testing situations • ensure fair competition between legal practitioners • discipline unprofessional behaviour CRITICISM OF PROFESSIONAL CODES “Insider” criticism Practitioners are suspicious of codes of ethics and this suspicion concerns two different aspects, namely (i) practical concerns and (ii) theoretical concerns. (i) Practical concerns Professional codes are not always enforced by law societies and those who transgress them are not always dealt with effectively. Since many practitioners feel that the codes are not properly enforced, they argue that the profession might as well abandon them, or replace them with codes of business ethics. Others are afraid of upholding ethical values and sticking to the rules when their colleagues are not. They fear that by trying to encourage their clients to do the right thing, these clients may go to somebody else who is willing to carry out their wishes. (ii) Theoretical concerns The very idea that the practice of law is a profession (and not merely a job in which bureaucratic tasks associated with a business is executed) counters the idea that legal LJU4802/1 3 LEARNING UNIT 1: The Legal Profession ethics can be reduced to the “rules of ‘professional conduct’”. One justifi cation for the self-regulation of the profession is that the practice of law requires complex professional judgments, the reasonableness of which can be judged only by fellow professionals. Self-regulation presumes that the conduct of a practitioner will not be judged against a code, but by colleagues who exhibit those virtues inherent in morally good practitioners. The formalistic idea that legal ethics is no more than the compliance with a legal code makes, in our view, a mockery of this justifi cation, reduces law to another business enterprise, and exposes the continued existence of the law and bar societies as no more than agencies created to protect vested interests. “Outsider” criticism Outsiders (the public) feel that they have no access to a simplifi ed, easily understandable professional code, and hence do not know what conduct is regarded as unethical or dishonest. They are, therefore, not able to lay complaints which may be investigated by enforcing agencies (the various law societies or bar councils). Some ethical rules are seen as protecting members of the profession against the public or serving only the interests of members of the legal profession (eg the rules which create barriers against competition from newcomers to the profession). Nor are the rules regarded as having universal or timeless value. Rules sometimes change as times change. For example, the rule that practitioners who write articles may not be identifi ed in the press with reference to their fi rms (which could be considered a form of touting) no longer applies. The public furthermore feels that since complaints are handled by colleagues of the accused in the legal profession, the latter will be protected against accusations from the public. Practitioners are also reluctant to report colleagues to the enforcing agencies and are often unwilling to testify against them during hearings. If practitioners turn a blind eye to what their colleagues do, there is no way in which the profession may be disciplined. The legal profession is consequently sometimes regarded as “a conspiracy against the laity” or as an “unusually effective monopoly”. ACTIVITY 1 • Find the Code of Conduct of the Law Society or the Code of Conduct for Advocates in your area and read through it. • Find the Code of Conduct for Legal Practitioners, Candidate Legal Practitioners and Juristic Entities (this Code will only be implemented once the Legal Practice Act is in force) and read through it. • Are the arguments raised in the preceding section obvious in the different codes? 1FEEDBACK Cape Law Society: Kwazulu-Natal: Free State: Northern Province: National Bar Council of South Africa: (1) Government Gazette, 10 February 2017 No 40610 4 (2) It was expected that you would address this question based on the code that you would have had access to. WHAT IS A PROFESSION? The word “profession” is derived from the Latin professio which means “a public statement” or “promise”. From this may be inferred that a legal professional (whether an attorney, advocate, judge, magistrate, public prosecutor or legal adviser) should be worthy of public trust, and should carry out his or her professional duties with public-spiritedness and the highest standards of ethical conduct. Although members of professions are paid for their services and should manage their practices on sound business principles, the professions may be distinguished from other jobs, businesses or trades, by virtue of the following characteristics: • Professionals are required to have specialised intellectual knowledge and skills before they will be granted access to their chosen profession. This knowledge, which is not easily accessible to the lay person, puts the professional in a position of authority vis-à-vis the client. The client has no other option but to trust the professional and should therefore be able to rely on the latter’s integrity. • 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. • Professionals are expected to have a commitment to serving the public in matters related to their particular fi eld. • 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. • Professionals should have a willingness to accept personal responsibility for their actions and for maintaining public confi dence in their particular profession. • Professionals share a sense of common identity and an established moral community. • 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. • 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. To regard lawyers as no more than businessmen would mean that the idea of the law and the objectives of justice, such as the fair and equal distribution of privileges and responsibilities relating to property, liberty and life, would be thwarted. Only the most profi table cases would then be accepted by practitioners, and only the rights and privileges of those able to pay the high fees of legal services would be protected. Justice would be denied to those who cannot afford to pay for it. Consequently, public trust in the legal profession and the existing socio-political dispensation would be undermined if justice were no longer served. CORE VALUES IN THE MAKE-UP OF “THE GOOD LAWYER” Values are, in fact, ideals which we strive to achieve; in other words, a good we aspire to. The values we are going to discuss must be seen in this light; they are LJU4802/1 5 LEARNING UNIT 1: The Legal Profession aspirational values. Also, we cannot (cannot even hope to) compile and discuss a complete set of these values. The idea of the morally good or virtuous lawyer is in itself an aspirational value. All good lawyers need not look the same in terms of values and value strength. We can expect a core of values in all of them but we must allow for personal differences. We will discuss only three core values: honesty and trustworthiness, good judgment and objectivity. These should give you an idea of the values (virtues) we have in mind, what they entail, and how they are integrated into the lives of lawyers. Honesty and trustworthiness In acting on behalf of the client, you have the obligation to be honest to the client, to the court, to other lawyers, and to third parties and society in general. To be honest is to be willing to disclose not only a part of but the whole truth you know about a particular situation. Withholding some information, even for a good reason, does not measure up to the requirement of full disclosure. You can avoid lying by keeping silent, but in doing so, you fail to be candid. Consequently, you may not claim to have acted honestly where you deliberately avoided making a full disclosure. Furthermore, to argue that since professionals lie not in their own interests but in the interests of their clients and that it, therefore, does not amount to dishonesty, is problematic. In our opinion, to be an honest lawyer means to be ready and willing to make a full disclosure at all times. An exception to this is your obligation to protect the privacy of your client. The professional privilege of a client’s communications is a legal doctrine which provides that professionals cannot be required to reveal client confi dences in a court of law. Underlying this doctrine is the notion that clients would not be able to trust professionals who have violated the confi dentiality of their communications. In order to be trustworthy and honest it is important for you as a legal practitioner to foresee and avoid a situation in which there is a confl ict of interests. This may arise, for example, where you have a fi nancial interest in the subject matter of a case you conduct. The point, though, is that you are in the fi rst place under no obligation to accept a client’s mandate. Therefore, it is your choice whether or not to abide by the demands of trustworthiness and honesty in specifi c situations. There is an essential connection between honesty and truthfulness. To be honest is to be truthful. The obligation to be trustworthy and honest permeates all areas of your relationship with others. This includes your relationship with other practitioners, the courts and the public. Good judgment Recommended reading Kronman AT “Living in the law” 1987 University of Chicago Law Review 835–876 In addition to the above, you as a legal practitioner should have a sense of equity and fairness and be able to act impartially and exercise good judgment. (Equity refers to the application of general law to the individual case in such a way that justice may honest confl ict of interests 6 prevail). You should be able to judge matters objectively, carefully and deliberately. You should possess the decision-making skills necessary to arrive at equitable results. Kronman2 asks the following question: “Why should anyone care about being or becoming a lawyer, or leading the life to which the choice of law as a career confi nes one?” In answer to this particular question, Kronman proposes that you choose law as a career from among many other careers. You would choose neither the law nor any other career if the choice were immoral or contrary to the moral convictions of your community. For this reason Kronman suggests that it must be assumed that the choice of a legal career is a morally permissible one. Once this point has been established, Kronman focuses on why you would care to choose law as a career and not on what you ought to do once you are a lawyer. Let us now turn to Kronman’s fi ndings. He fi nds that many people enter the legal profession “because it offers great opportunities for wealth and prestige”. Thus it is often the quest for money and honour which prompts people to choose the legal profession. An honest admission by those who choose the legal profession as an instrument for the acquisition of wealth and honour may be criticised for being outright selfi sh. The core of this criticism is that such a lawyer does not really care about the law in the fi rst place. Rather his or her concern for the law is subordinate to using the law as an instrument to acquire those things that he or she values above all, such as a good life or prestige. It should be remembered that lawyers who admit to choosing the legal profession for this reason, do the same as many other people, whether or not they are in the legal profession. This makes such lawyers rather ordinary and less than interesting. In fact, they are in danger of working so hard in the pursuit of wealth and honour that they do not fi nd the time to live the kind of life they had envisaged. They often end up failing to achieve their original objective, which was to use the legal profession as a means or instrument for achieving their specifi c goals. Another reason why their using the legal profession for selfi sh ends is problematic is that they run the risk of losing their identity or personality. They would go through the motions of being lawyers simply as required. In that case, their personality would soon begin to suffer because they would be acting out of step with their true identity or personality. Kronman’s argument in this connection is that to practise law well requires not only formal knowledge of the law but certain qualities of mind and temperament as well. “To be a lawyer is to be a person of a particular sort, a person with a distinctive set of character traits as well as an expertise”. 3 By choosing the law as a profession, one tends to become a certain kind of person. Do you agree with this sentiment?