Meaning of legal ethics (5) - StudyNotesUnisa



Meaning of legal ethics (5)

Legal ethics combines two separate disciplines, namely law and ethics.

Ethics is about what we ought and ought not to do, it is also about setting priorities in human behaviour. Ethics is not always about what is absolutely right or wrong, acceptable or unacceptable, ideal or less than ideal. It is also about what is the best decision in particular circumstances, what is the lesser of two evils, what is the balance between doing good and causing harm. Ethics is therefore about working out the principles on which we make these sorts of decisions.

Legal ethics in the wide sense refers to the relationship between law and ethics. In the narrow sense it 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 for example, the question: “how ought a legal practitioner to behave in order to be a good, decent and proper legal practitioner”.

What is a profession? (8)

1) Professionals are required to have specialized intellectual knowledge and skills. This knowledge puts the professional in a position of authority over the client. The client puts his trust in the professional and should be able to rely on his integrity.

2) Professionals are expected to have a commitment to promoting the basic good of society.

3) Professionals are expected to have a commitment to serving the public

4) Professionals enjoy relative autonomy in the execution of their duties

5) Professionals should have a willing ness to accept personal responsibility for their actions and for maintaining public confidence in their particular 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

8) Professional conduct is enforces by the profession itself or by the courts.

On which grounds may civil disobedience or violent resistance be justified: (?)

When:

─ The laws are immoral

─ It is based on the individual’s religious beliefs

─ Positive law is unjust, and not worthy of respect

─ Utility: it would bring about the greatest good for the greatest number.

Ethics for attorneys in South Africa are regulated by the Attorneys Act. The law societies also lay down binding rules, for the members of the legal profession, which are intended to:

─ Protect and promote the legal profession

─ Protect the individual legal practitioner

─ Protect and safeguard the interests of the client in the context of the relationship between the lawyer and the client.

What is the purpose of professional codes: (7)

In summary we can say that comprehensive codes of legal ethics were adopted in an attempt to maintain the ethical basis of the legal profession. A code of legal ethics generally seeks to:]

─ Protect the professional nature of legal services by stressing the obligation of professionals to serve justice and the public

─ Correct the imbalance in the relationship between the professional and the client

─ Maintain public confidence

─ Protect the public against improper conduct or incompetence by prescribing and guaranteeing the standards of skill, learning and conduct required

─ Provide practitioners and newcomers with the broad parameters for making morally responsible choices in testing situations

─ Ensure fair competition between legal practitioners

─ Discipline unprofessional behaviour

Distinguish between canons, ethical considerations and disciplinary rules (15)

Canons:

Canons are statements of norms which express in general terms the standards of professional conduct expected of lawyers, and from which ethical considerations and disciplinary rules are derived. Some of these universal and timeless values are: integrity, objectivity or fairness, power of judgment, dignity and respect. They may furthermore be regarded as the qualities of morally good lawyers which distinguish them from other exceptional members of the profession.

Ethical considerations:

Ethical considerations guide a professional in specific situations. They set the standard for conduct towards which all those in the profession should strive.

Disciplinary rules:

Disciplinary rules are directional and prescriptive in nature. They state the minimum level of conduct required from a lawyer to avoid disciplinary action. Ethical “rules” contained in ethical codes provide only a framework and minimum standards for ethical practice of law.

Criticism against the legal codes of ethics:

Discuss insider criticism: (5)

Practitioners are suspicious of codes of ethics and this suspicion concerns two different aspects:

Practical concerns: Professional codes are not always enforced by law societies and those who transgress them are not always dealt with effectively. Some practitioners are afraid of upholding ethical values and sticking to the rules when their colleagues are not. They fear that by trying to encourage their clients to do the right thing, these clients may go to somebody else who is willing to carry out their wishes.

Theoretical concerns: The very idea that the practice of law is a profession and not merely a job counters the idea that legal ethics can be reduces to the “rules of professional conduct.

Discuss outsider criticism: (5)

Outsiders / the public feel that they have no access to a simplified, easily understandable professional code and do not know what conduct is regarded unethical or dishonest. They are therefore unable to lay complaints which may be investigated by enforcing agencies.

Some ethical rules are seen as protecting members of the profession against the public, or as serving only the interests of the members of the legal profession themselves.

Rules sometimes change over time.

Since complaints are handled by colleagues of the accused in the legal profession, the latter might be protected against accusations from the public.

Practitioners are also reluctant to report colleagues to the enforcing agencies and are often not willing to testify against them during hearings. If practitioners turn a blind eye to what their colleagues do, there is no way in which the profession may be disciplined.

Ethical rules of conduct governing the relationship:

Between lawyers and the state (5)

─ Legal practitioners must respect the legal order and the state

─ Legal practitioners are guardians of the law and trained servants of the public legal order whose aim should be to further the administration of justice. As officers of the court you must uphold the law and follow legal procedures diligently.

─ Practitioners should never deliberately contravene the law, nor incite or help others to do so. Lawyers whose avowed intention is to contravene the law in future are not fit and proper persons to practice law. (Prince)

─ Lawyers are bound by the content of law and must uphold the law and be loyal to it. But you should also strive to make the law more just. Once you have exhausted all lawful means of bringing about the desired change in the law or the unjust situation, the question arises whether you may then engage in civil disobedience or even the violent breaking of the law?

─ Understandably there has been some confusion in SA case law with regard to the need for legal practitioners not only to uphold law, but also justice.

─ A lawyer may feel morally compelled to engage in acts of civil disobedience and defiance of the law. You should, however, reflect very carefully before doing so. You should not advise a client to engage in civil disobedience, but may point out the consequences of such an action if asked about this.

Between lawyers or advocates and clients (10)

(Know differences between lawyers and advocates)

─ Attorneys should seek to balance the interests of clients with the interests of the community.

─ Attorneys should endeavour to reach a solution by settling out of court, rather than initiating legal proceedings, if it is in the client’s interests.

─ Attorneys should be honest in advising the client on the merits of his or her case and should tell a client when he is wrong, even if this might mean that the client goes elsewhere for advice.

─ Attorneys do not acquire a financial interest in the subject matter of a case which you are conducting. Should consider any possible conflict of interests and whether the mandate involves any illegality or other impropriety.

─ If the mandate is accepted, then you should carry out your work with the care, skill and commitment that may reasonably be expected from the average attorney.

─ Attorney: Not obliged to accept client’s brief.

─ Advocate: May not accept briefs directly from clients but must be briefed by an attorney. (Referral rule)

─ Attorney: Initiates contract between advocate and client; negotiates about and receives fees from client; instructs the advocate specifically in relation to each matter affecting client’s interest; oversees each step advised or taken by the advocate; keeps the client informed, and is present as far as possible during interactions between the client and the advocate.

─ Advocate: Are litigation specialists. They prepare pleadings and present clients’ in the courts.

─ Advocate: No fidelity trust fund for advocates.

─ Attorneys: Must keep a separate banking account in which all money held or received by them on account of other persons must be deposited.

─ Advocate: Fees may only be paid to advocate by or through the attorney.

─ Advocate: should be loyal to his client and should fearelessly promote the case of the clinet to the best of his abilities.

─ Attorney: Are committed to the aggressive single-minded pursuit of their client’s legal objectives, regardless of their personal opinion of the character or the moral merits of the client’s objectives. If something dishonest is required of the practitioner himself, he should refuse to co-operate and should even consider withdrawing from the case.

─ Advocate: Controls and conducts the client’s case in whatever way he sees fit and acts independently in the discharge of his professional duty. He may not be held liable for his errors of law or liable for fraud or malicious intent.

─ Attorney: Duty of confidentiality: Confidential communications made with a view to litigation, as well as all confidential communications made for the purpose of giving or receiving legal advice or assistance, are considered to be privileged information.

─ Advocate: Should act fairly towards the opposition, including their witnesses and council.

─ Attorney: Should act fairly towards unrepresented party to a contract.

─ Attorney: If he has accepted a mandate, he has to see the matter through; he may withdraw only with the client’s consent, or with good reason, such as the client’s improper or fraudulent behaviour.

─ Advocate: May charge only reasonable fees for services rendered.

Determining fee, consider:

1) Time and labour, novelty and difficulty, skill required

2) Customary charges by council of comparable standing for similar services

3) In cases regarding money, the amount involved in the controversy and it importance to the client

─ Advocate: May not enter into any partnership with colleagues and may not share their professional fees with anybody else.

Between lawyers and colleagues (3)

─ Treat professional colleagues with the utmost courtesy and fairness and always be honest in your dealings with colleagues.

─ Advocate and attorney must adhere to their professional guidelines for conduct. A failure to adhere to these may be proof of lack of integrity, which makes them unfit to practice.

─ Lawyers should not advertise expertise except to the extent and in the manner permitted by the rules of the profession. Lawyers should never solicit business.

Between lawyers and the courts (5)

─ Attorneys and advocates are officials of the court and should always give the courts their due respect.

─ They may not mislead the court, whether directly or indirectly, for example by making misrepresentations or false statements.

─ In ex parte applications, practitioners are obliged to act in the utmost good faith and to put all relevant facts to the court so that the court may have full knowledge of the circumstances of the case. In motion court proceedings, advocates should bring to the attention of the court any deviations from the usual forms and offer an explanation.

─ They should inform the court of all the relevant case law of which they are aware, even if this may be to the detriment of their client’s case.

─ They may not abuse court procedures or use delay tactics.

─ They may not act in contempt of court

─ Matters should be settled by the courts and not the media. Legal practitioners may not therefore make statements to the media with regard to cases in which they are involved.

Between lawyers and the public (5)

─ Practitioners are officials of justice and they should be available to render legal services to the public.

─ The public put their trust and confidence in practitioners to carry on their profession with integrity and honour, and the courts must therefore see to it that practitioners are persons of dignity, honour and integrity.

─ Attorneys who depart from the high standards of professional behaviour will not go unpunished

─ Witnesses who are subpoenaed to appear in court are performing a public duty in coming to court and should be treated with respect. Offensive, unreasonable or intimidating cross-examination should be avoided.

─ Advocates and attorneys have a qualified privilege in conducting a case in court. This privilege, which gives them great latitude to put their client’s case, is based on public policy to search for truth and justice. This privilege will lapse if they abuse the legal process. Only if an advocate or attorney is able to prove reasonable grounds for making defamatory statements, and to show that this promotes his client’s case, will he be able to rely on this privilege.

When may a judge be impeached? (10)

The impeachment and removal from office of a judge in terms of the Constitution is available in extreme cases only, namely incapacity, gross incompetence, or gross misconduct on the part of the judge.

Section 177 provides:

1) A judge may be removed from office if:

a) The Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and

b) The National Assembly calls for the judge to be removed by a resolution adopted with a supporting vote of at least two thirds of its members.

2) The President must remove a judge from office upon adoption of a resolution calling for that judge to be removed

3) The President, on the advice of the Judicial Service Commission, may suspend a judge who is the subject of a procedure in terms of subsection (1)

Section 174 (1) provides that judges must be SA citizens who are “appropriately qualified” and “fit and proper persons”.

Judges ought to be impartial and independent of government and outside financial interests.

A more formal mechanism is envisaged by Section 180 which provides that national legislation may provide for training programmes for judges and for procedures for dealing with complaints about judicial officers.

No code of ethics for judges is currently in force, and all complaints are referred to the Judicial Service Commission.

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