Summary Legal Skills 411 Semester Notes 2020

Contents
1 Comparative Law................................................................................................................................2
2 Practice and Procedure.......................................................................................................................4
Relationship with your Client.............................................................................................................4
Relationship with Other Practitioners..............................................................................................25
Relationship with the Profession and Community...........................................................................28
Relationship with the Courts...........................................................................................................37
3 Ethics................................................................................................................................................40
Introduction.....................................................................................................................................40
What are (Legal) Ethics?..................................................................................................................41
Importance of Legal Ethics...............................................................................................................46
Introduction to Ethical Theories and Major Ethical Philosophers....................................................48
Sources of Legal Ethics.....................................................................................................................50
Putting It into Practice.....................................................................................................................64




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,1 COMPARATIVE LAW

Meaning

- Comparative Law is the study of the relationship between legal systems, including their
differences and similarities
o On a macro level
- Macro-comparison vs. micro-comparison
o Macro comparison: difference between legal system
o Micro comparison: comparing different elements of different legal systems
- Foreign law
o The study of foreign law is a precursor to comparative law but simply considering a
foreign legal system does not encompass comparative law
o You need to compare the laws and draw conclusions from it
- Legal history
o Comparative law and legal history is closely related
o Comparative law typically needs a legal historical dimension to understand the laws,
processes and institutions it considers
o Legal history also needs a comparative law dimension to understand whether
certain phenomena are applicable only to a particular region or to understand
whether it is more common
 Eg the reception of roman law in Europe can only be understood if you look
at Europe as a whole
- Different lenses
o Legal historical lens
o Literature based approach
 Compare literature
 Case law, legislation and other sources
o Functional approach
 You assume that different jurisdictions have adopted different solutions to
the same problems
o Balanced approach
 Consider literature applicable to the topic, but in order to have a good
understanding of the topic you take legal history into account
 Different countries have different cultures
 Need to consider why we are comparing these legal systems

Purpose

- Informs national law-making
- Assist judges in resolving difficult questions
- Provide a basis for legal unification or harmonization
- Increase knowledge and extend awareness, especially in legal education


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,Problem

- Foreign system: nothing to report
- Rethink original question – avoid looking at it from perspective of own legal system
- Focus on concrete problem – don’t allow vision to be clouded by concepts of one’s own
national system
- Avoid limitations and restraints
o Applies particularly to the question of sources of law
- First look at South African system because you need to have a proper understanding of what
the problem is before looking at foreign jurisdictions




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, 2 PRACTICE AND PROCEDURE

- Legal practitioners
o Relationship with various individuals and institutions, commencing with client

Relationship with your Client


- Am I able to accept this matter?
o On what basis can you decline a mandate from a client?
- Crystallised grounds when you don’t need to accept client’s mandate, now codified in Legal
Practice Code of Conduct
- You can refuse to take on a client for any reason as long as it is not discriminatory
- Don’t act for client
o Lack of expertise
 To what extent must you be equipped before accepting instruction?
 Before you have done research
 Are there limitations to your ability to take on new clients depending on
your field of expertise?
 The discretion to take a client on is an important one because once you have
done this the mandate governs the standard of your work
 Code 18.14 “Any attorney shall perform professional work or work of a kind
commonly performed by an attorney with such a degree of skill, care or
attention, or of such a quality or standard, as may reasonably be expected of
an attorney”
o Potential conflict of interest
 For example, client has a case against Nedbank and Nedbank is one of your
clients
 Usually bigger firms send out a conflict notice asking whether it
would be a conflict of interest to provide advice to a specific
person/company
 If you have a personal interest in the issue
 Then you need to remove yourself from the litigation
o Client gives unethical, unreasonable, conflicting or fraudulent instructions
 Example, client gives you a brief overview of what happened over the
phone, but then at the first meeting your client gives you a different story
 What is the risk if you take on this client?
o Not clear what the instructions are that was given
 Rule 9.6 of the code “A legal practitioner shall, when a client gives
conflicting instructions, or attempts to retract earlier instructions,
withdraw from the matter if continuing to act for the client would
cause unavoidable embarrassment to the legal practitioner.”
o Time available
o Another mandate
 If another firm has given out a mandate then you cannot act on behalf of
that same client
 Code 18.13 “An attorney shall not accept a mandate knowing there to be an
existing mandate, or a freshly terminated mandate, given to another
attorney without explaining to the client all the implications of his doing so,
including in particular the cost implications”


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