ETHICS STUDY PACK
LJU4802 QUESTIONS AND ANSWERS 2021
Joseph
0784683517
,REVISION QUESTIONS AND ANSWERS
What is ethics? [3]
Ethics is about what we ought and ought not to do, but it is also about setting
priorities in human behaviour. Ethics is not always about what is absolutely right
or wrong, acceptable or unacceptable, ideal or less 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.
What is the meaning of “legal ethics” [5]
“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 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?”
What according to you is the relation between ethics and a code of conduct?
[3]
Ethical considerations guide a professional in specific situations. They set the
standard of conduct towards which all those in the profession should strive (eg
“a practitioner must avoid all conduct which, if known, could damage his or her
reputation as an honourable lawyer and honourable citizen”).
Clients are the basis of the legal profession. There is a difference
between advocates and attorneys where clients are concerned. Discuss
the lawyer’s relationship with clients and refer to:
1. The acceptance of a mandate from clients
2. The referral rule and its rationale
3. The need for a trust banking account
4. The duty of confidentiality owed to a client
5. Recourse for clients who are not satisfied with a legal
practitioner’s work. [30]
1. Although attorneys are considered to be officers of justice, they are
not obliged to accept a client’s brief. Before a mandate is accepted, the
attorney should consider whether he or she has the ability and knowledge
,to do the work. Attorneys should consider any possible conflict of interests
and whether the mandate involves any illegality or other impropriety. A
conflict of interests would arise, for example, if the attorney were asked to
represent both the claimant and the defendant. If there is a conflict of
interests, the mandate should not be accepted. An attorney who has
accepted a mandate has to see the matter through. An attorney may
withdraw only with the client’s consent, or with good reason, such as the
client’s improper or fraudulent behaviour. In this case, the attorney must
withdraw timeously so that the client can make other arrangements.
Advocates, on the other hand, are obliged to accept briefs if they are
available and able to do the work. The fact that the advocate’s political or
religious beliefs conflict with those of the client does not justify refusal of a
brief. Advocates generally may not accept briefs directly from clients, and
must be briefed by an attorney. This is called the
“referral rule”.
2. Advocates generally may not accept briefs directly from clients but
must be briefed by an attorney. This is called the referral rule. Direct
instruction is sometimes allowed, for example, from the Legal Aid Board.
Attorneys take care of matters such as the investigation of facts, the issuing
and service of process, and the discovery and inspection of documents
(Society of Advocates v De Freitas & Another 1997 (4) SA 1134 NPD).
Advocates are litigation specialists, and they prepare pleadings and present
clients’ cases in the courts. One of the reasons for the referral rule is that
the attorney and advocate can apply their respective skills for the benefit of
the client.
3. There is another more obvious reason why advocates should not
perform the duties of attorneys: unlike attorneys, advocates are not required
to open trust accounts for the keeping of clients’ funds. All attorneys must
keep a separate trust banking account in which all money held or received
by them on account of other persons must be deposited. No amount
standing to the credit of such an account is to be regarded as forming part
of the assets of the attorney. Any shortfall in the account may be recovered
from the Fidelity Fund in proper circumstances. If advocates were permitted
to handle clients’ money, the danger of material prejudice to the client
therefore exists. It is in the public interest for the courts to enforce the
referral rule: advocates may not handle any money on behalf of clients as
this is the task of the briefing attorney. A client who does not employ an
attorney, but instructs an advocate directly, does not have the same
protection, if any at all.
4. The contract between attorney and client brings about the duty of
confidentiality. The attorney may not divulge confidences or
communications made to him or her by the client in the course of their
professional relationship. This applies whether the communication is oral or
in writing, and even where the client admits that he or she has committed a
crime. The attorney’s duty of confidentiality and the client’s corresponding
right to confidentiality continue even after the attorney-client relationship
has come to an end, and only the client may waive this right. Apart from this
, contractual obligation, it is also an established principle of South African law
that confidential communications made with a view to litigation, as well as
confidential communications made for the purpose of giving or receiving
legal advice or assistance, are considered to be “privileged information”.
The privilege is the client’s, and not the practitioner’s. Privilege must be
claimed in court, and does not arise automatically. The attorney, in claiming
it, must not act in his or her own interest or behalf, but for the benefit of the
client. An exception to this principle would be where the legislature
expressly excludes this privilege, or where the client gave his or her
consent. Communications by a client in furtherance of a criminal purpose
are not protected.
Communications made between friends (and not in their professional
capacity as client and legal representative) are not protected.
5. When an attorney accepts a client’s mandate, the attorney should
carry out his or her work with care, skill, and commitment that may
reasonably be expected from the average attorney. This duty is a silent term
of the contract that came about between the attorney and the client on the
acceptance of the mandate. Apart from a claim for damages resulting from
breach of contract, an aggrieved client may institute a claim for professional
negligence against the attorney where, for example, he or she erred in
judgement or lacked the necessary skills. An attorney may be found
negligent if he or she did not exercise the necessary care in accepting a
client and dealing with him or her.
Write notes on acceptance of briefs by an advocate. (or)
An attorney approaches you as an advocate to represent his client who is
suspected of raping a 6 year old girl. Will you accept the brief or not? (or)
You are a practising advocate who receives a brief from an attorney’s firm
to defend a person accused of child molesting. Is there a duty on you to
accept the brief? [5]
Advocates are expected to accept briefs if they are available and able to do the
work.
The fact that an advocate’s political or religious beliefs conflict with those of the
client does not justify refusal of a brief. Advocates generally may not accept briefs
directly from clients but must be briefed by an attorney. Direct instruction is
sometimes allowed, for example, from the Legal Aid Board. Advocates may not
“cross over” to the opposition after having obtained information related to the
client’s case, or accept the opposition’s briefing for the appeal case, since this may
lead to an abuse of confidential information.
Write notes on the challenge in Rosemann v General Council of the Bar of
South Africa 2004 (1) SA 568 (SCA). [5]
LJU4802 QUESTIONS AND ANSWERS 2021
Joseph
0784683517
,REVISION QUESTIONS AND ANSWERS
What is ethics? [3]
Ethics is about what we ought and ought not to do, but it is also about setting
priorities in human behaviour. Ethics is not always about what is absolutely right
or wrong, acceptable or unacceptable, ideal or less 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.
What is the meaning of “legal ethics” [5]
“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 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?”
What according to you is the relation between ethics and a code of conduct?
[3]
Ethical considerations guide a professional in specific situations. They set the
standard of conduct towards which all those in the profession should strive (eg
“a practitioner must avoid all conduct which, if known, could damage his or her
reputation as an honourable lawyer and honourable citizen”).
Clients are the basis of the legal profession. There is a difference
between advocates and attorneys where clients are concerned. Discuss
the lawyer’s relationship with clients and refer to:
1. The acceptance of a mandate from clients
2. The referral rule and its rationale
3. The need for a trust banking account
4. The duty of confidentiality owed to a client
5. Recourse for clients who are not satisfied with a legal
practitioner’s work. [30]
1. Although attorneys are considered to be officers of justice, they are
not obliged to accept a client’s brief. Before a mandate is accepted, the
attorney should consider whether he or she has the ability and knowledge
,to do the work. Attorneys should consider any possible conflict of interests
and whether the mandate involves any illegality or other impropriety. A
conflict of interests would arise, for example, if the attorney were asked to
represent both the claimant and the defendant. If there is a conflict of
interests, the mandate should not be accepted. An attorney who has
accepted a mandate has to see the matter through. An attorney may
withdraw only with the client’s consent, or with good reason, such as the
client’s improper or fraudulent behaviour. In this case, the attorney must
withdraw timeously so that the client can make other arrangements.
Advocates, on the other hand, are obliged to accept briefs if they are
available and able to do the work. The fact that the advocate’s political or
religious beliefs conflict with those of the client does not justify refusal of a
brief. Advocates generally may not accept briefs directly from clients, and
must be briefed by an attorney. This is called the
“referral rule”.
2. Advocates generally may not accept briefs directly from clients but
must be briefed by an attorney. This is called the referral rule. Direct
instruction is sometimes allowed, for example, from the Legal Aid Board.
Attorneys take care of matters such as the investigation of facts, the issuing
and service of process, and the discovery and inspection of documents
(Society of Advocates v De Freitas & Another 1997 (4) SA 1134 NPD).
Advocates are litigation specialists, and they prepare pleadings and present
clients’ cases in the courts. One of the reasons for the referral rule is that
the attorney and advocate can apply their respective skills for the benefit of
the client.
3. There is another more obvious reason why advocates should not
perform the duties of attorneys: unlike attorneys, advocates are not required
to open trust accounts for the keeping of clients’ funds. All attorneys must
keep a separate trust banking account in which all money held or received
by them on account of other persons must be deposited. No amount
standing to the credit of such an account is to be regarded as forming part
of the assets of the attorney. Any shortfall in the account may be recovered
from the Fidelity Fund in proper circumstances. If advocates were permitted
to handle clients’ money, the danger of material prejudice to the client
therefore exists. It is in the public interest for the courts to enforce the
referral rule: advocates may not handle any money on behalf of clients as
this is the task of the briefing attorney. A client who does not employ an
attorney, but instructs an advocate directly, does not have the same
protection, if any at all.
4. The contract between attorney and client brings about the duty of
confidentiality. The attorney may not divulge confidences or
communications made to him or her by the client in the course of their
professional relationship. This applies whether the communication is oral or
in writing, and even where the client admits that he or she has committed a
crime. The attorney’s duty of confidentiality and the client’s corresponding
right to confidentiality continue even after the attorney-client relationship
has come to an end, and only the client may waive this right. Apart from this
, contractual obligation, it is also an established principle of South African law
that confidential communications made with a view to litigation, as well as
confidential communications made for the purpose of giving or receiving
legal advice or assistance, are considered to be “privileged information”.
The privilege is the client’s, and not the practitioner’s. Privilege must be
claimed in court, and does not arise automatically. The attorney, in claiming
it, must not act in his or her own interest or behalf, but for the benefit of the
client. An exception to this principle would be where the legislature
expressly excludes this privilege, or where the client gave his or her
consent. Communications by a client in furtherance of a criminal purpose
are not protected.
Communications made between friends (and not in their professional
capacity as client and legal representative) are not protected.
5. When an attorney accepts a client’s mandate, the attorney should
carry out his or her work with care, skill, and commitment that may
reasonably be expected from the average attorney. This duty is a silent term
of the contract that came about between the attorney and the client on the
acceptance of the mandate. Apart from a claim for damages resulting from
breach of contract, an aggrieved client may institute a claim for professional
negligence against the attorney where, for example, he or she erred in
judgement or lacked the necessary skills. An attorney may be found
negligent if he or she did not exercise the necessary care in accepting a
client and dealing with him or her.
Write notes on acceptance of briefs by an advocate. (or)
An attorney approaches you as an advocate to represent his client who is
suspected of raping a 6 year old girl. Will you accept the brief or not? (or)
You are a practising advocate who receives a brief from an attorney’s firm
to defend a person accused of child molesting. Is there a duty on you to
accept the brief? [5]
Advocates are expected to accept briefs if they are available and able to do the
work.
The fact that an advocate’s political or religious beliefs conflict with those of the
client does not justify refusal of a brief. Advocates generally may not accept briefs
directly from clients but must be briefed by an attorney. Direct instruction is
sometimes allowed, for example, from the Legal Aid Board. Advocates may not
“cross over” to the opposition after having obtained information related to the
client’s case, or accept the opposition’s briefing for the appeal case, since this may
lead to an abuse of confidential information.
Write notes on the challenge in Rosemann v General Council of the Bar of
South Africa 2004 (1) SA 568 (SCA). [5]
