LJU4802 PORTFOLIO MEMO - MAY/JUNE 2023 - SEMESTER 1 - UNISA - (DETAILED ANSWERS WITH FOOTNOTES - DISTINCTION GUARANTEED!)

LJU4802 PORTFOLIO MEMO - MAY/JUNE 2023 - SEMESTER 1 - UNISA - (DETAILED ANSWERS WITH FOOTNOTES - DISTINCTION GUARANTEED!) QUESTION 1: THE LEGAL PROFESSION 1.1 Discuss the following statement: “Legal ethics can be understood in a wide and a narrow sense.” (5) 1.2 Read the following scenario and answer the questions that follow: Jimmy has just completed his LLB degree, and he is now working as a candidate attorney at a big law firm in Pretoria. One Saturday morning, Jimmy and his mother, who is a nurse, discuss their respective professions and how they are being regulated. Jimmy tells his mother that he (Jimmy), as a candidate attorney, is suspicious of codes of ethics. Jimmy’s younger sister, Annie, who is a first-year medical student, asks him what a professional code is. (a) Explain what a professional code is and list any three general aims of a code of legal ethics. (5) (b) Name and discuss the two types of concerns that Jimmy may have with codes of legal ethics and indicate whether these concerns are valid or not. (8) 1.3 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: (a) The characteristics of the rule-governed approach to ethics. (5) (b) Kant’s categorical and hypothetical imperatives. (8) (c) The criticism that may be levelled against the rule-governed approach to ethics. (2) 2.2 Read the following statement and answer the questions that follow: “Universal morality has come to an end.” Which philosophical approach to ethics is best described by this statement? (1) What are the main characteristics of the philosophical approach identified in (a)? (4) [20] The residents of Mahlangu are upset since they have had no running water for the past six months. The residents have unsuccessfully raised their concerns about this situation at various mass meetings which were called to address this issue. In addition, they held several marches to highlight their concerns, also with no success. You, as a well-known community leader and attorney living in Mahlangu, are approached by the residents to take up the matter on their behalf. They want you to be the face of their civil disobedience campaign aimed at forcing the mayor of Mahlangu to resign. You are keen to support the community’s efforts, but you are uncertain whether you, as a legal professional, should get involved in a civil disobedience campaign. The residents, however, remind you of the role that lawyers like Nelson Mandela and Mahatma Gandhi played in other campaigns of civil disobedience in the history of South Africa. In view of the above scenario, explain the following to the residents: (a) The duty of the lawyer to uphold the law of the Republic with specific reference to Matthews v Cape Law Society 1956 (1) SA 807 (C) and Society of Advocates of SA (Witwatersrand Division) v Fischer 1966 (1) SA 133 (T). (8) (b) The meaning of civil disobedience. (2) (c) The circumstances under which a legal practitioner may be justified to engage in civil disobedience. (4) 3.2 Read the following scenario and answer the question that follows: Mr Jones has been an attorney for the past 15 years. Because of a gambling addiction, which caused Mr Jones to lose substantial amounts of money, he has fallen into serious debt. Mr Jones decides to misappropriate trust funds to pay his creditors. The Legal Practice Council brings an application to the High Court that Mr Jones be struck off the role of attorneys. The Court decides in (a) (b) QUESTION 3: THE SOUTH AFRICAN LEGAL PROFESSION 3.1 Read the following scenario and answer the questions that follow: 8 favour of the Legal Practice Council and Mr Jones’s name is struck off the role. Three years later, after having received treatment for his gambling addiction, Mr Jones applies to be re-admitted as an attorney. With specific reference to case law, explain the test to be applied by the court to decide whether Mr Jones is fit and proper to practise as an attorney again. (6) [20] QUESTION 4: ROLE MORALITY 4.1 Explain the characteristics of an adversarial (accusatory) system, with specific reference to: The distinct roles of a judge and a legal representative in an adversarial system. (12) 4.2 Several alternatives to the dominant adversarial approach have been suggested. Discuss the “responsible lawyer” approach, with specific reference to: A legal practitioner’s responsibility not to mislead the court. (8) [20] QUESTION 5: EXAMPLES OF SITUATIONS OPEN FOR UNETHICAL CONDUCT 5.1 Read the following scenario and answer the question that follows: Jerry Seoka is a well-known criminal-law lawyer. He is currently representing a wealthy businessman, Richard Mason, who was charged with committing fraud. During one of their consultations, Richard asks Jerry if he (Jerry) could advise him (Richard) 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 Consider the following statement and answer the question that follows: “An advocate may charge only reasonable fees for services rendered”. Which factors are considered in determining the amount of the fee? (5) 9 5.3 Explain the following concepts: (a) “duty of confidentiality” (5) (5) [20] TOTAL: [100] (b) “conflict of interests”