1 November 2023 - Exam (Memo) - Professional Ethics (LJU4802)

QUESTION 1: THE LEGAL PROFESSION 1.1 Read the following advertisement and answer the questions that follow: ADVERT: VACANT POSITION FOR A LEGAL PRACTITIONER (2 POSITIONS) Unisa Law Clinic has just launched a branch in Makhado, Limpopo, which forms part of the College of Law. This newly launched Law Clinic is a justice center accredited by the Legal Practice Council and is statutorily recognised in terms of the Legal Practice Act 28 of 2014 (as amended). UNISA’s Law Clinic requires the services of a legal practitioner to fill a vacant position in its recently launched branch in Makhado, Limpopo. The ideal candidate should possess an LLB degree from a recognised tertiary institution, must be admitted as a legal practitioner and must be available to start immediately. The key responsibilities of the legal practitioner will be, among others, to represent clients on matters such as divorce, maintenance, domestic violence, labour, and impact litigation. The ideal candidate must be able to mentor and supervise candidate legal practitioners. Applications together with accompanying CV’s must be sent to: (a) You have recently been admitted as an attorney and you are desperately searching for employment. Your retired father who regularly reads the daily newspaper, shares the advertisement here above with you. He is, however, uncertain whether an attorney could be classified as a "legal practitioner". Briefly explain to him who will qualify as a "legal practitioner". (4) (b) Your father is also curious to know the difference between a "candidate legal practitioner" and a "legal practitioner". Briefly explain to him who will be regarded as a "candidate legal practitioner". (3) (c) Explain to your father the purpose and function of the Legal Practice Council. (5) 1.2 Explain what a professional code is and list any three general aims of a code of legal ethic. (5) 1.3 Discuss the core values of honesty and trustworthiness in the make-up of a good lawyer. (8) [25] 8 QUESTION 2: PHILOSOPHICAL APPROACHES TO ETHICS 2.1 Read the following statement and answer the question that follows: "Aristotle did not base his ideas about ethics on rules that had to be obeyed, but on excellence of character." Discuss Aristotle's understanding of "virtue" and explain how this relates to contemporary virtue ethics. (10) 2.2 Discuss postmodern ethics, with specific reference to the following aspects: (a) The main characteristics of the postmodern approach to ethics. (4) (b) How the postmodern approach differs from Kant’s categorical imperative. (3) (c) Whether it is possible to have law in postmodern times. (3) [20] QUESTION 3: THE SOUTH AFRICAN LEGAL PROFESSION 3.1 Read the following scenario and answer the questions that follow: You are very excited to have completed your LLB degree and you are looking forward to realising your dream of becoming an advocate. Your parents ask when you will start to practise as an advocate. You tell them that section 24(2)(c) of the Legal Practice Act 28 of 2014 determines that the High Court must admit a legal practitioner if the applicant satisfies the court that he or she "is a fit and proper person to be so admitted". Your parents are very surprised that you cannot merely start to practise as an advocate only based on your LLB degree. (a) Explain the reason for the character requirement in section 24(2)(c) in the Legal Practice Act 28 of 2014. (3) (b) Explain how the "fit and proper" standard and the principle of character screening have been constitutionally challenged in Law Society of the Transvaal v Machaka 1998 (4) SA 413 (T). (8) 9 3.2 Explain the notion "civil disobedience" and name two instances where this may be justified for a legal practitioner. (4) 3.3 Consider the following statement and answer the question that follows: "In terms of section 31 of the Legal Practice Act 28 of 2014, the [Legal Practice] Council must cancel or suspend the enrolment of a legal practitioner if the High Court orders that his or her name be struck off the Roll or that he or she be suspended from practice." Discuss this statement with reference to Law Society of the Free State v Radebe (5293 /2015) [2016] ZAFSHC 97 (June 2016) and indicate how the court determined whether a person is fit and proper to continue practising as a lawyer. (5) [20] QUESTION 4: ROLE MORALITY 4.1 Consider the following statement and answer the questions that follow: "The concern of moral and legal philosophers about the way in which lawyers approach legal ethics is compounded by a … problem known as 'roledifferentiated behaviour' of lawyers." Discuss this statement with specific reference to the following issues: (a) The meaning of the notion "role-differentiated behaviour". (2) (b) How the "role-differentiated" approach is used by legal practitioners in an attempt to justify their immoral conduct. (3) 4.2 Discuss African communitarian lawyering as an alternative to the dominant adversarial approach. (10) [15] QUESTION 5: EXAMPLES OF SITUATIONS OPEN FOR UNETHICAL CONDUCT 5.1 Read the following scenario and answer the question that follows: Thabo Mpaka is a well-known criminal attorney. He is currently representing John Dube, a shebeen owner who has been arrested for the murder of one of his business rivals. During one of their consultations, John informs Thabo that 10 he (John) had bribed a police officer to steal the murder weapon and the police docket that contains the evidence against him. 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 fee agreement", with specific reference to the following issues: (a) The definition of a "contingency fee agreement". (4) (b) The nature of the agreement between the attorney and the client in terms of the Contingency Fees Act 66 of 1997. (4) (c) 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 Explain the concept "conflict of interests". (5)