STUDY UNIT 1
Define the term “legal 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?
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.
Explain how a profession differs from an ordinary job (10 marks).
m
er as
The word “profession” is derived from the Latin professio which means “a public
co
statement” or “promise”. From this may be inferred that a legal professional
eH w
(whether an attorney, advocate, judge, magistrate, public prosecutor or legal
adviser) should be worthy of public trust, and you should carry out your
o.
professional duties with public-spiritedness and the highest standards of ethical
conduct.
rs e
ou urc
1. Professionals are required to have specialised intellectual knowledge and
skills before they will be granted access to their chosen profession. This
o
knowledge, which is not easily accessible to the lay person, puts the professional
aC s
in a position of authority vis-à-vis the client. The client has no other option but to
v i y re
trust the professional and should therefore be able to rely on the last
mentioned’s integrity.
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.
ed d
3. Professionals are expected to have a commitment to serving the public in
matters related to their particular field.
ar stu
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.
sh is
5. Professionals should have a willingness to accept personal responsibility
for their actions and for maintaining public confidence in their particular
Th
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.
Discuss the practising of law as a profession
This study source was downloaded by 100000815306272 from CourseHero.com on 05-24-2021 15:01:44 GMT -05:00
https://www.coursehero.com/file/24397884/Q-A-Legal-Ethicsdocx/
, According to Ackerman a sound moral character is essential to professionalism. A
legal professional’s conduct should justify the trust placed in you by your clients,
adversaries, and the courts and the whole of society. Law is practised as a
profession and is not merely a job. You must find it a calling. Most importantly,
the law must call upon the highest exercise of your highest selves”
Formalistic and legalistic philosophy of law, focuses exclusively on rule-based
approach to professional conduct has led to a very restrictive interpretation of
three claims or assumptions traditionally made in the name of a lawyer:
that he or she acts like a professional,
that he or she always remains morally a fit and proper person for the legal
profession, and
that he or she has a duty to obey the law.
Explain the content and constitutionality of the standard of a “fit and
proper person”
Section 15(1)(a) of the Attorneys Act 53 – a court may only enroll an
m
applicant if “such person, in the discretion of the court, is a fit and proper
er as
person to be so admitted and enrolled”.
co
Section 22(1)(d) of the Attorneys Act 53 - a practicing attorney may be
eH w
struck off the roll, if that attorney “in the discretion of the court, is not a fit
o.
andprope r person to continue to practice as an attorney”.
rs e
Section 3 of the Admissions of Advocates Act - if you wish to be
ou urc
admitted as an advocate you need to satisfy the court that you are “over
the age of twenty-one years and is a fit and proper person to be so
admitted and authorized”.
Section 7(1)(d) Admissions of Advocates Act - authorises a court to
o
remove an advocate from the roll if the court “is satisfied that you are not
aC s
a fit and proper person to continue to practice as an advocate”.
v i y re
Section 22 of the South African Constitution - recognises the right to
choose your trade, occupation or profession freely, although subject to
regulation by law.
Section 36 of the Constitution – Limitation clause
ed d
Section 26(1) of the interim Constitution – The right to free economic
ar stu
activity
sh is
The “fit and proper person test”
Th
A character test (“good moral character”) applies to membership of the
advocates’ profession.
Section 3 of the Admissions of Advocates Act - if you wish to be
admitted as an advocate you need to satisfy the court that you are “over
the age of twenty-one years and is a fit and proper person to be so
admitted and authorized”.
Section 7(1)(d) Admissions of Advocates Act - authorises a court to
remove an advocate from the roll if the court “is satisfied that you are not
a fit and proper person to continue to practice as an advocate”.
This means that only persons of a certain character (“good moral character”)
are allowed to practise as lawyers. The reason for the character requirement is
This study source was downloaded by 100000815306272 from CourseHero.com on 05-24-2021 15:01:44 GMT -05:00
https://www.coursehero.com/file/24397884/Q-A-Legal-Ethicsdocx/
Define the term “legal 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?
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.
Explain how a profession differs from an ordinary job (10 marks).
m
er as
The word “profession” is derived from the Latin professio which means “a public
co
statement” or “promise”. From this may be inferred that a legal professional
eH w
(whether an attorney, advocate, judge, magistrate, public prosecutor or legal
adviser) should be worthy of public trust, and you should carry out your
o.
professional duties with public-spiritedness and the highest standards of ethical
conduct.
rs e
ou urc
1. Professionals are required to have specialised intellectual knowledge and
skills before they will be granted access to their chosen profession. This
o
knowledge, which is not easily accessible to the lay person, puts the professional
aC s
in a position of authority vis-à-vis the client. The client has no other option but to
v i y re
trust the professional and should therefore be able to rely on the last
mentioned’s integrity.
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.
ed d
3. Professionals are expected to have a commitment to serving the public in
matters related to their particular field.
ar stu
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.
sh is
5. Professionals should have a willingness to accept personal responsibility
for their actions and for maintaining public confidence in their particular
Th
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.
Discuss the practising of law as a profession
This study source was downloaded by 100000815306272 from CourseHero.com on 05-24-2021 15:01:44 GMT -05:00
https://www.coursehero.com/file/24397884/Q-A-Legal-Ethicsdocx/
, According to Ackerman a sound moral character is essential to professionalism. A
legal professional’s conduct should justify the trust placed in you by your clients,
adversaries, and the courts and the whole of society. Law is practised as a
profession and is not merely a job. You must find it a calling. Most importantly,
the law must call upon the highest exercise of your highest selves”
Formalistic and legalistic philosophy of law, focuses exclusively on rule-based
approach to professional conduct has led to a very restrictive interpretation of
three claims or assumptions traditionally made in the name of a lawyer:
that he or she acts like a professional,
that he or she always remains morally a fit and proper person for the legal
profession, and
that he or she has a duty to obey the law.
Explain the content and constitutionality of the standard of a “fit and
proper person”
Section 15(1)(a) of the Attorneys Act 53 – a court may only enroll an
m
applicant if “such person, in the discretion of the court, is a fit and proper
er as
person to be so admitted and enrolled”.
co
Section 22(1)(d) of the Attorneys Act 53 - a practicing attorney may be
eH w
struck off the roll, if that attorney “in the discretion of the court, is not a fit
o.
andprope r person to continue to practice as an attorney”.
rs e
Section 3 of the Admissions of Advocates Act - if you wish to be
ou urc
admitted as an advocate you need to satisfy the court that you are “over
the age of twenty-one years and is a fit and proper person to be so
admitted and authorized”.
Section 7(1)(d) Admissions of Advocates Act - authorises a court to
o
remove an advocate from the roll if the court “is satisfied that you are not
aC s
a fit and proper person to continue to practice as an advocate”.
v i y re
Section 22 of the South African Constitution - recognises the right to
choose your trade, occupation or profession freely, although subject to
regulation by law.
Section 36 of the Constitution – Limitation clause
ed d
Section 26(1) of the interim Constitution – The right to free economic
ar stu
activity
sh is
The “fit and proper person test”
Th
A character test (“good moral character”) applies to membership of the
advocates’ profession.
Section 3 of the Admissions of Advocates Act - if you wish to be
admitted as an advocate you need to satisfy the court that you are “over
the age of twenty-one years and is a fit and proper person to be so
admitted and authorized”.
Section 7(1)(d) Admissions of Advocates Act - authorises a court to
remove an advocate from the roll if the court “is satisfied that you are not
a fit and proper person to continue to practice as an advocate”.
This means that only persons of a certain character (“good moral character”)
are allowed to practise as lawyers. The reason for the character requirement is
This study source was downloaded by 100000815306272 from CourseHero.com on 05-24-2021 15:01:44 GMT -05:00
https://www.coursehero.com/file/24397884/Q-A-Legal-Ethicsdocx/
