LJU4802 PORTFOLIO MEMO - MAY/JUNE 2022 - SEMESTER 1

LJU4802 PORTFOLIO MEMO - MAY/JUNE 2022 - SEMESTER 1 QUESTION 1: THE LEGAL PROFESSION 1.1 Define the term “legal ethics” in a narrow and broader sense. (5) 1.2 Read the following statement and answer the question that follows: “To regard lawyers as no more than businessmen [or -women] would mean that the idea of the law and the objectives of justice, such as fair trade and equal distribution of privileges and responsibilities relating to property, liberty and life, would be thwarted. Only the most profitable 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.” In view of the above quotation, explain how the legal profession is different from a normal job, business or trade, by referring to any 5 characteristics of a “profession”. (5) 1.3 Read the following scenario and answer the question that follows: Jimmy has just completed his LLB degree, and he is now working as a candidate attorney at a big law firm in Cape Town. One Saturday morning, Jimmy and his mother, who is a gynaecologist, discuss their respective professions and how they are being regulated. Jimmy tells his mother that he (Jimmy), as a candidate attorney, is suspicious of legal codes. Name and discuss the two types of concerns that Jimmy may have with legal codes and indicate whether these concerns are valid or not. (8) 1.4 Briefly explain the meaning of Kronman’s idea of “public spiritedness” as a character trait of the good lawyer. (2) [20] QUESTION 2: PHILOSOPHICAL APPROACHES TO ETHICS 2.1 Discuss rule-governed ethics (deontic ethics), with specific reference to the following aspects: • The characteristics of the rule-governed approach to ethics. (5) • Kant’s categorical and hypothetical imperatives. (8) • The criticism that may be levelled against the rule-governed approach to ethics. (2) 2.2 Consider the following statement and answer the questions that follow: “Universal morality has come to an end.” 2.2.1 Which philosophical approach to ethics is best described by this statement? (1) 2.2.2 What are the main characteristics of the philosophical approach identified in 2.2.1? (4) [20] QUESTION 3: THE SOUTH AFRICAN LEGAL PROFESSION 3.1 Thandi is currently a final-year LLB student. She plans to practice as an attorney specialising in family law. Her grandmother wants to know what the requirements are to be able to practice as an attorney. Thandi tells her grandmother that it is sufficient to have a thorough knowledge of the law and the relevant legal qualifications in order to be admitted as a legal practitioner. Indicate whether you agree with Thandi’s statement and motivate your answer with specific reference to the relevant statutory provision that is currently applied by the South African courts. (5) 3.2 In determining whether crimes committed because of deep-seated political convictions reflected adversely on the good character of a legal practitioner (who committed such political crimes), the South African courts applied either a character test or a duty test. Discuss how the court applied the character test and/or the duty test in Incorporated Law Society, Transvaal v Mandela 1954 (3) SA 102 (T) and Society of Advocates of SA (Witwatersrand Division) v Fischer 1966 (1) SA 133 (T). (15) QUESTION 4: ROLE MORALITY 4.1 Consider the following statement and answer the questions that follow: “Farrow asks: ‘should the lawyer be guided by her own sense of what is ethical, moral, just or good; or should she essentially be neutral to those moral or other issues in favour of simply following her client’s instructions within the boundaries set out by law?’ Part of the answer to this question lies in the rule- based system that is adversarial in nature.” Discuss this statement with specific reference to the following issues: • The nature of the adversarial system. (2) • The distinct roles of a judge and a legal representative in an adversarial system. (8) • How the role-differentiated approach is used by legal practitioners to justify their immoral conduct. (3) • The reasons advanced by Markovitz why a morally legal practitioner would be uncomfortable with the role-differentiated approach. (2) 4.2 Explain the principle that lawyers have a “qualified privilege” to conduct their cases in court. (5) [20] QUESTION 5: EXAMPLES OF SITUATIONS OPEN FOR UNETHICAL CONDUCT 5.1 Read the following scenario and answer the question that follows: Mike Zulu is a well-known criminal-law lawyer. He is currently representing a wealthy businessman, Nelson Scott, who was charged with committing fraud. During one of their consultations, Nelson asks Mike if he (Mike) could advise him (Nelson) on how to destroy the electronic evidence on his company’s computers, which will prove that he committed fraud. Explain the principle of “privileged information” and motivate whether the above conversation would be protected by this principle. (5) 5.2 Discuss the concept “contingency fees agreements”, with specific reference to the following issues: • The definition of a “contingency fee agreement”. (4) • The distinction between a “no win, no fee” agreement and a “success fee agreement” respectively, as explained in Masango and Another v Road Accident Fund and Others 2016 (6) SA 508 (GJ) (31 August 2016). (2) 5.3 Describe the following concepts: 5.3.1 “duty of confidentiality” (2) (2) (3) (2) [20] TOTAL: [100]