LJU4802 ETHICS MEMO
MAY/JUNE AND OCT/NOV 2020
Joseph
0784683517
,MAY/JUNE 2020 ANSWERS
QUESTION 1
1.1
No, it is not allowed for a lawyer to pass such remark towards witnesses or in court. This
shows disrespect of the court as the witness playing an important role in the court
mandate to administer justice. Offensive, unreasonable or intimidating cross-cross
examination is prohibited. Impropriate cross examination detracts from the court
procedure and creates an unfavourable image with the witnesses and general public.
1.2
Legal practitioners should maintain high ethical standards as the public put their trust and
confidence in practitioners to carry on their profession with integrity and honour, and the
courts must hold practitioners accordable who do not abide to the ethical standards of
dignity, honour, and integrity. The public should be shown that lawyers who do not hold
the high standards of professional behaviour required of them will not go unpunished.
Evidently, in Reyneke v Wetsgenootskap van die Kaap die Goeie Hoop1 it was decided
that the fact that an attorney had been found guilty of contravening the Insolvency Act
and committing statutory perjury, made his integrity and honesty questionable and
detracted from his fitness to practise as an attorney. Misconduct (such as a fraudulent
misrepresentation of facts) of such a serious nature that it shows defects in character and
a lack of integrity renders the person unfit to practise.
Another case in which an attorney was struck from the roll as a form of punishment for
not abiding to the ethical standards is Law Society of Good Hope v Swanepoel 2 the
attorney’s offending conduct was theft of monies entrusted to her. She was convicted of
theft in a criminal trial. In this case the court referred to the case of Hassim v Incorporated
Law Society of Natal 3in which it was stated that the fact that an attorney has been
1 Reyneke v Wetsgenootskap van die Kaap die Goeie Hoop 1994 (1) SA 359 (A).
2 Law Society of Good Hope v Swanepoel (1835/2013) [2015] ZAECGHC 82 (27 August 2015).
3 Hassim v Incorporated Law Society of Natal 1977 (2) SA 757.
, convicted of a criminal offence is prima facie proof that he committed the offence. She
persisted in denying the theft and thereby, according to the judge, displayed no insight
into the seriousness of her conduct. At times she suggested her accountant was
responsible for what happened. She was, therefore, struck off the roll of attorneys.
In conclusion, lawyers who act unethical are struck from the roll as form of punishment
as evident by the above cases. This is because unethical conduct brings the legal
profession in disrepute.
QUESTION 2
Role differentiated behaviour means that lawyers are expected to respond differently to
moral problems in their role as lawyers as they would as private individuals outside that
professional capacity. This gives the law and the judicial system a bad name since it is
either not linked to real life or it is nothing but a game which you should not trust. The role
of the lawyer necessitates one to ignore moral considerations that would otherwise be
imperative in determining one’s own actions. Lawyers are forced by the nature of their
profession, it is said, to disregard their own views on whether their client has acted
ethically or not. The lawyer is required to pursue with the utmost skill, aggression and
diligence the client’s objectives, as long as he or she does not violate the law. This is
sometimes called the “ethics of the hired gun”.
The hired gun approach cannot be justified based on the reasoning that for lawyers betray
their own moral standards in order to meet the objectives of their clients. Markovits4
contends that, in order to survive, legal practitioners have to defend their clients against
others in a way that would otherwise be immoral. For example, legal practitioners
sometimes cross-examine truthful opposition witnesses in an extremely aggressive way
in attempt to undermine their credibility or confuse them. They also take part in “sharp
practices” which include unnecessarily delaying a case, manipulating facts, making
statements they themselves do not believe, and pleading technical defences (such as
4 Markovits D “Legal ethics from a lawyer’s point of view” 2003 Yale Journal of Law & The
Humanities 209– 293.
MAY/JUNE AND OCT/NOV 2020
Joseph
0784683517
,MAY/JUNE 2020 ANSWERS
QUESTION 1
1.1
No, it is not allowed for a lawyer to pass such remark towards witnesses or in court. This
shows disrespect of the court as the witness playing an important role in the court
mandate to administer justice. Offensive, unreasonable or intimidating cross-cross
examination is prohibited. Impropriate cross examination detracts from the court
procedure and creates an unfavourable image with the witnesses and general public.
1.2
Legal practitioners should maintain high ethical standards as the public put their trust and
confidence in practitioners to carry on their profession with integrity and honour, and the
courts must hold practitioners accordable who do not abide to the ethical standards of
dignity, honour, and integrity. The public should be shown that lawyers who do not hold
the high standards of professional behaviour required of them will not go unpunished.
Evidently, in Reyneke v Wetsgenootskap van die Kaap die Goeie Hoop1 it was decided
that the fact that an attorney had been found guilty of contravening the Insolvency Act
and committing statutory perjury, made his integrity and honesty questionable and
detracted from his fitness to practise as an attorney. Misconduct (such as a fraudulent
misrepresentation of facts) of such a serious nature that it shows defects in character and
a lack of integrity renders the person unfit to practise.
Another case in which an attorney was struck from the roll as a form of punishment for
not abiding to the ethical standards is Law Society of Good Hope v Swanepoel 2 the
attorney’s offending conduct was theft of monies entrusted to her. She was convicted of
theft in a criminal trial. In this case the court referred to the case of Hassim v Incorporated
Law Society of Natal 3in which it was stated that the fact that an attorney has been
1 Reyneke v Wetsgenootskap van die Kaap die Goeie Hoop 1994 (1) SA 359 (A).
2 Law Society of Good Hope v Swanepoel (1835/2013) [2015] ZAECGHC 82 (27 August 2015).
3 Hassim v Incorporated Law Society of Natal 1977 (2) SA 757.
, convicted of a criminal offence is prima facie proof that he committed the offence. She
persisted in denying the theft and thereby, according to the judge, displayed no insight
into the seriousness of her conduct. At times she suggested her accountant was
responsible for what happened. She was, therefore, struck off the roll of attorneys.
In conclusion, lawyers who act unethical are struck from the roll as form of punishment
as evident by the above cases. This is because unethical conduct brings the legal
profession in disrepute.
QUESTION 2
Role differentiated behaviour means that lawyers are expected to respond differently to
moral problems in their role as lawyers as they would as private individuals outside that
professional capacity. This gives the law and the judicial system a bad name since it is
either not linked to real life or it is nothing but a game which you should not trust. The role
of the lawyer necessitates one to ignore moral considerations that would otherwise be
imperative in determining one’s own actions. Lawyers are forced by the nature of their
profession, it is said, to disregard their own views on whether their client has acted
ethically or not. The lawyer is required to pursue with the utmost skill, aggression and
diligence the client’s objectives, as long as he or she does not violate the law. This is
sometimes called the “ethics of the hired gun”.
The hired gun approach cannot be justified based on the reasoning that for lawyers betray
their own moral standards in order to meet the objectives of their clients. Markovits4
contends that, in order to survive, legal practitioners have to defend their clients against
others in a way that would otherwise be immoral. For example, legal practitioners
sometimes cross-examine truthful opposition witnesses in an extremely aggressive way
in attempt to undermine their credibility or confuse them. They also take part in “sharp
practices” which include unnecessarily delaying a case, manipulating facts, making
statements they themselves do not believe, and pleading technical defences (such as
4 Markovits D “Legal ethics from a lawyer’s point of view” 2003 Yale Journal of Law & The
Humanities 209– 293.
