BOARD EXAM PREPARATORY SESSION NOTES
PAPER 3
ATTORNEY’S PRACTICE AND LEGAL ETHICS
Just think of the exam as a chance to show off all the random facts you’ve learned!
Dear Lethabo
1
,You have already achieved so much in your journey, and I want to remind you that an LLB
degree is no small feat. The path you've walked through articles and beyond has not been
easy, but it has prepared you well. As you sit for these exams, remember that your
capabilities have brought you to this point. Trust in your preparation and knowledge. Go
out there and knock it out of the park!
I'm cheering you on every step of the way.
Best wishes
Shela
2
, ETHICS
Conflict of interest
• Occurs when an Attorney has competing professional or personal interests. These interests
can make it difficult for the Attorney to fulfill their duties impartially.
• A practical example of conflict of interest is when an Attorney is approached by two clients with
opposing interests in the same matter. If an Attorney has consulted with both parties to a
dispute, he runs the risk of having a conflict of interest. The general rule is that an Attorney
cannot represent both parties in a dispute. In divorce matters, if the dispute relating to the joint
estate is of such a nature that the involvement of the Attorney has not been compromised, he
may continue to act for both parties by mediating and attempting settlement. If the knowledge
is such that the Attorney’s honesty, impartiality, and independence are compromised, he must
withdraw as Attorney for both parties
Confidentiality vs Legal professional privilege
• Confidentiality is an ethical duty that requires Attorneys to keep all information related to
their client's cases private. This encompasses any communication or document shared
between the client and the Attorney within the professional relationship, extending beyond
legal advice to include any relevant information.
• The duty of confidentiality persists even after the termination of the attorney-client relationship
and the death of the client. However, there are limited exceptions, such as when disclosure
is mandated by law, when the client consents to it, or when it is necessary to prevent a
serious crime. Breaches of confidentiality can lead to professional disciplinary action against
the Attorney.
• In contrast, legal professional privilege is a narrower legal right specifically designed to
protect communications between a client and their Attorney from being disclosed without the
client’s permission. This principle is critical for allowing clients to seek legal advice and
prepare for litigation with the assurance that their communications will remain private.
• The privilege continues indefinitely, even after the transaction in question has been completed
and even after the client terminates the legal representative’s mandate and employs another
practitioner. The rule is ‘once privileged, always privileged’ except:
- Clients name
- Facts learnt by the attorneys own senses
- Where statute excludes it
- Documents not otherwise privilliged
- Documents or infor that was not given for legal advise
- after the death of a testator-client the position changes; an attorney who attested a will as
a witness can give evidence as to both its execution and content
- an admission of insolvency by the client to the curator is admissible in sequestration
proceedings, and
3
, - where legal professional privilege was waived by the client.
Duties of an Attorney
● Obey client’s instructions ● Confidentiality ● Reliability and honesty towards clients ● Uphold the
law ● Deliver the best service possible to client ● Don’t overcharge, overreach, or tout ● Be true to
the State
Authority to Render Legal Services
Section 33 of the Legal Practice Act sets out who is permitted to provide legal services for
compensation:
• Only legal practitioners who have been admitted and enrolled under the Act may render legal
services for any fee, commission, gain, or reward. This includes appearing in courts, tribunals,
or similar institutions where only legal practitioners can appear, and drawing up or executing
legal documents for use in civil or criminal court proceedings.
• No person other than a legal practitioner may present themselves as a legal practitioner or
imply that they are one.
• Only duly practicing Advocates, Attorneys, Conveyancers, or Notaries may perform acts or
render services that are legally restricted to those professions.
• Legal practitioners who have been struck off the Roll or suspended cannot render legal
services for their own account or in association with others, nor can they be employed in a
legal practice without prior written consent from the Council, which must not be unreasonably
withheld and can be granted with specific terms and conditions.
Forms of Legal Practice
Section 33 of the Legal Practice Act
• Attorneys may render legal services and charge fees upon receiving a direct request from the
public.
• Advocates can provide legal services and charge fees upon receiving a brief from an Attorney,
directly from a member of the public or a justice centre, subject to certain conditions:
- they must hold a Fidelity Fund certificate and comply with specific provisions. - they
must notify the Council as required.
• For criminal or civil matters requested directly from a justice centre, the conditions for holding
a Fidelity Fund certificate do not apply.
4
PAPER 3
ATTORNEY’S PRACTICE AND LEGAL ETHICS
Just think of the exam as a chance to show off all the random facts you’ve learned!
Dear Lethabo
1
,You have already achieved so much in your journey, and I want to remind you that an LLB
degree is no small feat. The path you've walked through articles and beyond has not been
easy, but it has prepared you well. As you sit for these exams, remember that your
capabilities have brought you to this point. Trust in your preparation and knowledge. Go
out there and knock it out of the park!
I'm cheering you on every step of the way.
Best wishes
Shela
2
, ETHICS
Conflict of interest
• Occurs when an Attorney has competing professional or personal interests. These interests
can make it difficult for the Attorney to fulfill their duties impartially.
• A practical example of conflict of interest is when an Attorney is approached by two clients with
opposing interests in the same matter. If an Attorney has consulted with both parties to a
dispute, he runs the risk of having a conflict of interest. The general rule is that an Attorney
cannot represent both parties in a dispute. In divorce matters, if the dispute relating to the joint
estate is of such a nature that the involvement of the Attorney has not been compromised, he
may continue to act for both parties by mediating and attempting settlement. If the knowledge
is such that the Attorney’s honesty, impartiality, and independence are compromised, he must
withdraw as Attorney for both parties
Confidentiality vs Legal professional privilege
• Confidentiality is an ethical duty that requires Attorneys to keep all information related to
their client's cases private. This encompasses any communication or document shared
between the client and the Attorney within the professional relationship, extending beyond
legal advice to include any relevant information.
• The duty of confidentiality persists even after the termination of the attorney-client relationship
and the death of the client. However, there are limited exceptions, such as when disclosure
is mandated by law, when the client consents to it, or when it is necessary to prevent a
serious crime. Breaches of confidentiality can lead to professional disciplinary action against
the Attorney.
• In contrast, legal professional privilege is a narrower legal right specifically designed to
protect communications between a client and their Attorney from being disclosed without the
client’s permission. This principle is critical for allowing clients to seek legal advice and
prepare for litigation with the assurance that their communications will remain private.
• The privilege continues indefinitely, even after the transaction in question has been completed
and even after the client terminates the legal representative’s mandate and employs another
practitioner. The rule is ‘once privileged, always privileged’ except:
- Clients name
- Facts learnt by the attorneys own senses
- Where statute excludes it
- Documents not otherwise privilliged
- Documents or infor that was not given for legal advise
- after the death of a testator-client the position changes; an attorney who attested a will as
a witness can give evidence as to both its execution and content
- an admission of insolvency by the client to the curator is admissible in sequestration
proceedings, and
3
, - where legal professional privilege was waived by the client.
Duties of an Attorney
● Obey client’s instructions ● Confidentiality ● Reliability and honesty towards clients ● Uphold the
law ● Deliver the best service possible to client ● Don’t overcharge, overreach, or tout ● Be true to
the State
Authority to Render Legal Services
Section 33 of the Legal Practice Act sets out who is permitted to provide legal services for
compensation:
• Only legal practitioners who have been admitted and enrolled under the Act may render legal
services for any fee, commission, gain, or reward. This includes appearing in courts, tribunals,
or similar institutions where only legal practitioners can appear, and drawing up or executing
legal documents for use in civil or criminal court proceedings.
• No person other than a legal practitioner may present themselves as a legal practitioner or
imply that they are one.
• Only duly practicing Advocates, Attorneys, Conveyancers, or Notaries may perform acts or
render services that are legally restricted to those professions.
• Legal practitioners who have been struck off the Roll or suspended cannot render legal
services for their own account or in association with others, nor can they be employed in a
legal practice without prior written consent from the Council, which must not be unreasonably
withheld and can be granted with specific terms and conditions.
Forms of Legal Practice
Section 33 of the Legal Practice Act
• Attorneys may render legal services and charge fees upon receiving a direct request from the
public.
• Advocates can provide legal services and charge fees upon receiving a brief from an Attorney,
directly from a member of the public or a justice centre, subject to certain conditions:
- they must hold a Fidelity Fund certificate and comply with specific provisions. - they
must notify the Council as required.
• For criminal or civil matters requested directly from a justice centre, the conditions for holding
a Fidelity Fund certificate do not apply.
4
