LJU4802 PROFESSIONAL ETHICS S1 – 2019

LEARNING UNIT 1: THE LEGAL PROFESSION:

1. WHAT IS THE MEANING OF LEGAL ETHICS? (5 MARKS)

1.1. In a wide sense: general relationship between law & ethics.
1.2. In a narrow sense: ethical standard of professional conduct applicable
to field of law. How a legal practitioner ought to behave in a good, decent
& proper manner.
1.3. The narrow sense is applicable, we follow the general & established term
of legal ethics, which is subjected to the professional conduct expected
of legal practitioners.
1.4. Ethics for legal practitioners are / is governed by the Legal Practice Act,
the Legal Practice Counsel lays down the binding rules for members.
The rules intend to:
1.4.1. Protect & promote the legal profession;
1.4.2. Protect individual legal practitioners;
1.4.3. Protect & safeguard interests of clients in the relationship between
legal practitioner and client.

2. THE PROFESSIONAL CODES (7 MARKS)

Generally, professional ethics suggest a compilation of ethical values to provide
legal practitioners with an ethical framework to practice. The code seeks to:
2.1. Protect professional nature of legal services by stressing obligation of
professional to serve justice and the public;
2.2. Correct imbalance in relationship between professional and client;
2.3. Maintain public confidence;
2.4. Protect public against improper conduct or incompetence by prescribing
and guaranteeing standard of skill, learning and conduct required;
2.5. Provide practitioners and newcomers with broad parameters for making
morally responsible choices in testing situations;
2.6. Ensure fair competition between legal practitioners;
2.7. Discipline unprofessional behaviour.

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3. CRITICISM OF THE PROFESSIONAL CODES (10 or 15 MARKS)

Insider criticism AND Outsider criticism

3.1. Insider criticism:

Practitioners suspicions concern 2 aspects: Practical concerns and
Theoretical concerns:
3.1.1. Practical concerns:
- Professional codes not always enforced;
- Those who transgress the codes aren’t always dealt with
effectively;
- Since practitioners feel transgressions not always dealt with
properly, they argue to abandon or replace them with codes of
business ethics;
- Peer pressure not to follow the code;
- Fear of losing clients when encouraged to do the right thing.
3.1.2. Theoretical concerns:
- Idea of practicing law counters idea that legal ethics can be
reduced to rules of professional conduct;
- Self-regulation of the profession requires complex
professional judgment, the reasonableness of which can be
judged only be fellow practitioners;
- Self-regulation presumes conduct of practitioner will not be
judged against code, but, by colleagues who exhibit virtues of
morally good practitioners;

3.2. Outsider criticism:

3.2.1. Outsides (public) may not understand / have access to the
profession code. Therefore, may be unaware of what’s unethical
or dishonest;
3.2.2. As a result, may be unable to lay complaint for investigation;
3.2.3. Some rules viewed as protecting practitioners;
3.2.4. Public might view disciplinary actions against practitioners as
biased as practitioners are judged by their peers;
3.2.5. Practitioners are reluctant to report on their colleagues.
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4. WHAT IS A PROFESSION, INTRODUCTION AND BULLET POINT (10

MARKS)
Profession derived from Latin profession meaning “public statement” or
“promise.” Inferred that, professional should be worthy of public trust, carry out
duties with public-spiritedness, and, highest standard of ethical conduct.
Professionals paid for services should nonetheless manage practice on sound
business principles. Our profession distinguished from other professions by
following characteristics:
4.1. Specialised intellectual knowledge, not easily accessible to lay persons.
Client to rely on professional and his integrity;
4.2. Commitment to promoting basic good of society aka justice;
4.3. Commitment to serving public in specialised fields;
4.4. Use of discretion in execution of duties;
4.5. Willingness to accept personal responsibility for actions;
4.6. Sharing sense of common identity and established morality;
4.7. Self-discipline to abide to code of legal ethics;
4.8. Standards above enforced by profession itself and the court, considering
the view of the controlling body (LPC).

5. CORE VALUES OF A GOOD LAWYER (20 or 30 MARKS)

Honesty and trustworthiness; Good judgment (Kronman); Objectivity.

5.1. Honesty and trustworthiness:

Obligation to be honest to clients, courts, lawyers, 3rd parties and
society.
5.1.1. To be honest is to disclose the whole truth – do not withhold
information – full disclosure;
5.1.2. Lying can be avoided by remaining silent, but this isn’t candid. As
a consequence, cannot claim to have “acted honestly.”;

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5.1.3. To argue that practitioners lie in the interests of their client doesn’t
amount to dishonesty is against the principle of full disclosure;
5.1.4. An exception is privileged information, which, if breached violates
confidentiality of practitioner-client communication and trust;

Obligation to trustworthiness include foreshadowing conflicts of

interest, which may arise i.e:
5.1.5. Where you have a financial interest in the matter;
5.1.6. You are not obliged to accept a client’s instruction then;
5.1.7. It is your choice to abide by demands of honesty and
trustworthiness.

To be honest is to be truthful and should govern your practice in the field.

5.2. Good judgment – Kronman:

Legal practitioner should have sense of equity; fairness; act impartially;
exercise good judgment.
Judge matters objectively; carefully and deliberately.
KRONMAN:
5.2.1. Law as a career – Why become a lawyer:
[Link]. One wouldn’t choose a career which is immoral or
contrary to public convictions;
[Link]. Kronman assumes choice of a legal profession is
morally permissible;
[Link]. He finds that people enter law on the quest for money
and prestige – this is selfish, and person doesn’t really
care about law;
[Link]. Selfishly choosing law for money and prestige run the
risk of destroying your identity and personality;
[Link]. To practice law well requires knowledge of the law and
certain qualities of the mind and temperament.
5.2.2. Public spiritedness:
[Link]. The character trait of public spiritedness means you
choose law as a commitment to public good;
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[Link]. Practice law as an instrument to promote and protect

public good;
[Link]. To prescribe to notion of “public good” Kronman makes
3 points:
[Link].1. Failure of public spiritedness is an inability to
recognise your status should promote and
protect public good;
[Link].2. Being involved in politics, not contri boni
mores, is working towards public good;
[Link].3. Choosing legal profession purely for public
spiritedness is an instrument toward public
good.
5.2.3. Intuition:
[Link]. Is a form of direct insight or apprehension, where you
are able to arrive by reasoning alone;
[Link]. Intuition is to see something is a case and to apprehend
its obviousness;
[Link]. Intuition is a disposition / talent but judgment is not
based solely on intuition;

5.2.4. Double relationship:

[Link]. Kronman: Judgement demands that we picture the
situation, where we will make a particular decision;
[Link]. Projection situation is a picture of a double situation,
wherein we transition from imaginary to real
relationship to answer “Can I live with it?”;
[Link]. One must take own feelings as well as others feelings
into consideration – compassion and empathy.

5.2.5. Detachment:
[Link]. In the double relationship, one must still remain distant
aka detached;
[Link]. When faced with a difficult choice, give each alternative
consideration, entertaining all possibilities, feeling
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toward the most attractive outcome of each, while not

committing to any.

5.2.6. Deliberation:
[Link]. Deliberation isn’t deduction or intuition. It is a
compassionate survey of alternative viewed
simultaneously from a distance;
[Link]. Practitioners who meet the conflicting requirements,
and, endure the tension between them, show excellent
deliberation and whose judgment is valued;
[Link]. Deliberation is the culmination of making a specific
decision. By making this decision you are essentially
answering the question of whether you “can live with
it?”.

5.3. Objectivity:
5.3.1. Objectivity closely related to honest and good judgment;
5.3.2. No irrelevant considerations should be brought upon your
judgment;
5.3.3. Keen logical sense and good preparation;
5.3.4. Don’t allow your emotions to interfere;
5.3.5. Du Plessis: recognise your emotional subjectivity and distinguish.

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LEARNING UNIT 2: PHILOSOPHICAL APPROACHES TO ETHICS

1. RULE-GOVERNED (BASED) ETHICS (DUTY)

1.1. Idea that to judge human conduct it is fist necessary to establish the
ethical rule governing conduct;
1.2. Ethical rule take precedent – consequences of conduct etc;
1.3. Two qualities of the rule:
1.3.1. What ought to be done in order to qualify as morally good – the
rule must be accepted as a duty;
1.3.2. Once rule accepted as duty, there’s an obligation to obey it;
1.4. Kant: 1st principle in an ethical situation, act the same way you would
have acted in similar situation;
1.5. Universalising your actions are morally good if they are the same
actions of others; Universalising a morally good action imposes duty
on others;
1.6. Obedience becomes necessary for moral goodness as desired by all –
Categorical imperative;
1.7. Kant: 2nd principle when people act contrary to categorical imperative –
when a rule is secondary to moral goodness. People then act
according to Hypothetical imperative.
1.8. Professional Rules: practitioners are governed by them & obliged to
comply with them;
1.9. Morality of Duty: for practitioners to follow professional rules as they
have a morality of duty toward them;
1.10. Critics: The rule cannot prevent merely legalistic approach to the rules
it holds dear
1.11. In SA: legal system based on rule-based approach:
1.11.1. Practitioners follow rules, in order to act ethically aka the
traditional approach.

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2. THE TRADITIONAL APPROACH TO ETHICS (RULE-BASED)

2.1. Lewis: An entirely practical (code of rules) approach is needed for
legal practitioners;
2.2. This is the practical and positivistic approach to ethical conduct of legal
practitioners – and – the main reason for criticism;
2.3. Is the traditional approach to legal ethics ethically acceptable?
2.3.1. Shaffer: most of what Americans call legal ethics, isn’t. It’s
simply put rules made by administrative agencies. Regulatory,
it’s not to conscience but to sanctions, mandate rather than
insight. As a result, following questions:
[Link]. What is ethics, if not what practitioners speak of
when saying “legal ethics?”
[Link]. What is relation between ethics and a code of
conduct?
[Link]. Why does the legal professional adopt this narrow
view of ethics?
2.3.2. Coquilette: 2 important points:
[Link]. First: a lawyer with formalistic & positivistic approach
to law will understand ethical responsibility as a
question of complying with codified legal rules;
[Link]. Second: a formalistic approach tends to focus on
minimum standard & rules which could be enforced
by controlling bodies.
2.3.3. Ross: mentions that technical application of the law to ethical
rules leads to a narrow moral universe.
2.4. A legalistic (rule-based) approach leads to role-differentiated behaviour
between practitioner and client. Practitioner stripped of moral depth in
a pursuit of following the rules, and, ensuring they are enforced.

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3. UTILITARIANISM
3.1. One of the outcomes of ethics;
3.2. Ultimately, only one thing is relevant in determining if action is right or
wrong – the purpose which the action is intended to achieve;
3.3. The purpose is the end-result or consequence;
3.4. Jeremy Bentham: argues whole legal system should be based on
utilitarian idea.
3.5. All laws should aim to achieve the greatest good for the greatest
number.
3.6. The problem is there is no clear-cut criteria for usefulness;
3.7. Markovits: A dictator, hold 20 prisoners. Kill 1 and 19 can walk away –
greatest good for greatest number; Even if that puts one’s morality in
jeopardy;
3.8. Utilitarian version of consequentialism – each person self-sacrificial for
the greater good of the world;
3.9. In context of legal ethics, it’s useful to help practitioner avoid errors that
could lead to disciplinary action.

4. VIRTUE ETHICS
4.1. Aristotle: Idea that ethics not based on rules that had to be obeyed,
but on excellent character. Virtue allows virtuous person to flourish as
their ethic & personal success are intertwined;
4.2. Good moral character: What would a person of good moral character
do in the same circumstances?;
4.3. Two vices: A person will act with virtue in a moral crisis, the two vices
where the virtue of courage lies;
4.4. Public affairs: A virtue essential to perfect life is to be involved in public
affairs of the state;
4.5. Greek men: destined for a life as an active citizen;
4.6. Kronman: adopts virtue-based ethics because “life in law is not for
money / status, but rather a calling of character”;
4.7. Alas, virtue is cannot be learnt, you have to be gifted with it;
4.8. Critic: Virtue therefore cannot be a foundation for ethics or morality.
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5. FEMINIST ETHICS
5.1. Gendered approach to ethics, suggesting women approach ethical
challenges differently to men;
5.2. Once “male-dominated” now women bring a different approach to the
practice and ethics of law;
5.3. Problem with this argument is the potential to create dualistic &
oppositional conception of gender aka discriminatory treatment of
women;
5.4. Counter-argument is that the profession can change with the feminine
traits of empathy, care, nurturing and commitment.

6. POSTMODERN ETHICS
Contemporary thinks against Western scientific model.
6.1. Universal morality has come to an end. No more single, universal
ethical code applicable and binding on everyone;
6.2. Diversity confront the postmodern human on all aspects of life;
6.3. Uncertainty and unpredictability is the moral domain for the
postmodernist;
6.4. In short, the Characteristics of a postmodernist is:
6.4.1. Demise of belief in universal validity of a particular morality;
6.4.2. Celebration of differences;
6.4.3. Rejection of absolutes and universals;
6.4.4. Recognition of the necessity to accept uncertainty as way of life.
6.5. The uniqueness of every situation / person cannot be accommodated
by general / universal rules;
6.6. The ethical response to somebody’s otherness can’t be reduced to
legal response which law prescribed;
6.7. Ethics is no longer substance of law / politics and morality BUT rather a
warning flag;
6.8. No legal rule response to a new situation can ever be fully
accommodating;

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6.9. Ethics only points to what is not yet OR what is not justice;
6.10. Ethics as a result is the paradoxical nature of morality and law.

7. AFRICAN COMMUNITARIANISM
7.1. Traditional practices still form basis of the community;
7.2. Ubuntu – self only makes sense in relation to the community.
Encompasses values such as dignity, respect, compassion, justice,
fairness and conciliation. Anything that contravenes the spirit of
Ubuntu would be unethical.

8. FAITH-BASED ETHICS
8.1. Should religion have bearing on legal ethics? Debate goes to heart of
contest between positivists and natural lawyers iro relationship
between law and morality.
8.2. For faith-based: beneficial if conducted is rooted in religion;
8.3. Against faith-based: capacity to reduce everything to a morality
argument.

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LEANRING UNIT 3: THE SOUTH AFRICAN LEGAL PROFESSION

1. FIT AND PROPER PERSON

1.1. Regulated by legislation and inherent common-law right of court;
1.2. Applicant must prove they are fit and proper;
1.3. Membership subjected to character screening, a court may only enrol
applicant if, at court’s discretion the applicant is fit and proper;
1.4. If unfit and improper they may be struck from the roll;
1.5. Character screening is to ensure potential lawyer is able to handle
matters and is trustworthy to do so with best ability;
1.6. Moral virtues play a role, trust; honour; discretion observance of
fiduciary duties etc;
1.7. “Good moral character” criticised for being “unusually ambiguous;”
1.8. In SA “appropriate person” has been influenced by political
considerations:
1.8.1. Ghandi: Refused because he was Indian;
1.8.2. Wookey: Refused as she was a woman – at the time, further
exclusions included deaf; blind; pagans; Jews etc;
1.8.3. Fischer: Was struck from the role for being involved in the
apartheid struggle;
1.8.4. Prince: Refused because he was a weed smoking Rastafarian
by religion.
1.9. Admission should be clearly related to public interest and your fitness &
capacity to practice law – may be argued that character traits shouldn’t
affect performance and shouldn’t play role in decision of admission.

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2. CONSITUTION TESTED (KLEYNHANS-INTERIM); (MACHAKA-FINAL) (10

MARKS)
In light of above the character screening has been Constitutionally
challenged:
2.1. Kleynhans (interim Constitution):
- Court was asked to address the constitutionality of its statutory
powers to remove unfit & improper persons.
- Argued that this power violated s26(1) of the interim constitution
(free economic activity)
- Court rejected argument: Held that standard could be set for
practitioners as far as competence & unquestionable integrity was
concerned.
2.2. Machaka (final Constitution):
- Again the constitutionality was of a court to strike was challenged;
- Argued that the Fit and Proper standard violated right to dignity,
equality, freedom etc;
- Relying on Kleynhans, court again rejected arguments and held that
character screening prevented right to freely choose profession
from being abused by criminally minded attorneys.

3. SHIFT FROM CHARACTER TO RULE – COMPARATIVE QUESTION

3.1. Mandela & Krause (character) to Moseneke & Maqubela (duty/rule)

4. PRINCE AND POSTMODERNISM

Prince, Rastafarian who was refused admission on the basis of smoking weed
(religion) etc. Postmodern view by Sachs:
4.1. Judged by defiance of the law by Prince against the politics of open
democracy;
4.2. Prince shouldn’t be forced by the inflexible application of the law to
make the choice between his consciences and career;

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4.3. Prince was openly defiant (at the time), showing himself to be a person
of principle, willing to sacrifice career & material interests in pursuance
of belief.

5. CIVIL DISOBEDIENCE – WHEN, AND, IF PRACTITIONER MAY

Question as to when a legal practitioner may decide to participate in civil
disobedience:
5.1. Conscience: Immoral laws;
5.2. Religious: Against personal religious beliefs;
5.3. Unjust: Where positive law is unjust, appeal made to natural law;
5.4. Utility: Greatest good for greater number.

6. REMOVAL OF LAWYER FOR NOT BEING FIT & PROPER – JASSAT

6.1. Fit & proper to continue practising as an Attorney - In Jassat , court
held that there is a three (3) stage enquiry:
6.1.1. 1st Establish if alleged conduct was established on balance of
probabilities (factual enquiry);
6.1.2. 2nd is the person in question, in the court’s discretion, not fit and
proper to continue to practice;
6.1.3. 3rd Considering all circumstances, if person should be removed
from the roll, or, if suspending him practice would suffice.

7. BEING STRUCK FROM THE ROLL – SWANEPOEL; HASSIM; MABASO.

7.1. Swanepoel: was struck for theft of trust money – criminal offence;
7.2. Hassim: was struck for theft of trust money, which she alleged her
accountant was responsible. She was convicted for criminal offence;
7.3. Mabaso: Suspended in court a quo for misappropriation of rust funds.
Appealed. Instead of confronting allegations against him, he shifted
blame to others. Court found he lacked insight into wrongfulness &
disregarded rules – he was struck.

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8. RE-INSTATEMENT – HOW TO BE REINSTATED (KAPLAN).

8.1. Kaplan v Law Society involved re-admission application by attorney
who was struck from roll for unprofessional conduct. Court held that
the applicant must satisfy the court that he has undergone reformation
iro conduct and the court would investigate:
8.1.1. Nature & particulars of conduct that gave rise to striking-off;
8.1.2. The behaviour of applicant after such conduct; and
8.1.3. Question whether, with complete confidence, accept that
applicant is fit & proper person to be re-admitted.

9. PURPOSE OF THE LPA IN S3.

9.1. Provide legislative framework for transformation & restructuring of legal
profession – values of Constitution;
9.2. Broaden access to justice by placing:
9.2.1. Mechanisms to determine chargeable fees;
9.2.2. Measures to provide community service by CAs;
9.2.3. Measures for equal opportunities for all practitioners.
9.3. Creation of unified statutory body to regulate practitioners;
9.4. Protect & promote public interest;
9.5. Establishment of Office of Legal Service Ombud;
9.6. Provide fair etc procedure for dispute resolution;
9.7. Create framework for:
9.7.1. Development & maintenance of ethical norms & standards;
9.7.2. Regulation of admission & enrolment of legal practitioners;
9.7.3. Development of adequate training programmes for practitioners
/ CAs etc.

10. WHAT IS EXPECTED FROM LEGAL PRACTITIONERS?

10.1. Avoid conflicts of interest;
10.2. Maintain legal practitioner / client privilege;
10.3. Account faithfully & timeously for any client’s money;
10.4. Advise client earliest about likelihood of success of case;
10.5. Handle cases competently;
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10.6. Charge reasonable fees;

10.7. Remain abreast of developments in law;
10.8. Show respect to colleagues & public;
10.9. Refrain from bringing profession in disrepute;
10.10. Pay all fees to council timeously;
10.11. Comply with provisions of code.

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LEANRING UNIT 4: ROLE MORALITY

1. ADVERSARIAL SYSTEM: WHAT IS IT? WHO ARE THE PARTIES ETC (3

MARKS).
1.1. Two parties faces each other;
1.2. Roles of legal representatives and judges carefully separated. Judge
is impartial referee, who listens to both sides to ascertain true version
of facts and apply the law objectively to these facts;
1.3. While legal practitioners focus on their respective client’s interests;
1.4. In adversarial system, legal representatives aren’t independent or
impartial;
1.5. Judge independent should therefore equal protection of rights and
justice;
1.6. Markovits: adversarial system places lawyer in moral dilemma, it
requires that they particularly favour their client, but, subordinate their
own ethical ideals of honesty.

2. DETAILS OF ROLE-DIFFERENTIATED BEHAVIOUR:

2.1. DISCUSS ROLE-DIFFERENTIATED APPROACH (10 MARKS);

2.1.1. Practitioners are expected to respond differently to moral
problems in their role as practitioner v private individual;
2.1.2. Practitioners are compelled to disregard own views on whether
client acted ethically;
2.1.3. Practitioner should pursue client’s objectives, with utmost skill,
aggression and diligence, provided that pursuit doesn’t violate
the law;
2.1.4. Markovits: To survive, defend your client against others in
ways that would otherwise be immoral;
2.1.5. Play a role: Morally good practitioners argue that they only play
a role, their aggression and anger speaks to their role of a
practitioner;

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2.1.6. Markovits: Argues that practitioner will be uncomfortable with

role-based approach for 2 reasons:
- 1st: Practitioners are simply actors, not self-driven entities,
who are judged on their own merits;
- 2nd: this approach forces morally good lawyers to betray
personal moral ideals – resulting in loss of personal
integrity.
2.1.7. Wasserstrom: “Hired gun” – but this model can’t serve for
lawyers in general. The possible justification for the hired-gun
approach (4):
- Legitimacy of role-differentiated behaviour can only be
sustained if adversarial criminal law system is itself legit;
- R/D behaviour justifies “winner-takes all” competitiveness;
- Lawyers cannot adopt pure R/D perspective – esp where
portraying winning at all costs is the essence of justice;
- Lawyers will pay a price for their R/D as it’s often difficult to
divorce personal way of thinking from the matter.

3. THE RESPONSIBLE LAWYER (DUTY IN EX-PARTE APPLICATIONS) (3

MARKS).
3.1. In ex parte applications, practitioners are obliged to act utmost good
faith and to put all relevant facts to the court so that the court has full
knowledge of case;
3.2. Practitioners must bring to light any deviations from the usual forms
and offer explanations.

4. ARE LAWYERS ALLOWED TO SPEAK TO THE MEDIA (3 MARKS).

4.1. Matters should be settled by courts, not in the media;
4.2. Therefore, practitioners shouldn’t make statements to the media iro
cased they are involved in;
4.3. Doing so may result in being in contempt of court which is a statutory
and common-law offence.

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5. MORAL ACTIVISM – “QUALIFIED PRIVILEGE” – DEFAMATION IN OPEN

COURT (5 MARKS).
5.1. Ito Roman-Dutch Attorneys / Advocate have “qualified privilege” in
conducting a case in court;
5.2. This privilege gives latitude to present client’s case – their search for
the truth should not be hampered;
5.3. They may not however abuse the legal process by slandering
opposition / 3rd parties;
5.4. If privilege is abused by making false statements, the privilege lapses
and practitioners may be legally liable;
5.5. Only if practitioners can prove reasonable grounds, and, that it
promotes client’s interests, will he be able to rely on “qualified
privilege.”

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LEARNING UNIT 5: EXAMPLES OF SITUATIONS OPEN FOR UNETHICAL

CONDUCT:

1. THE REFERRAL RULE. WHAT IS THE REFERRAL SYSTEM? (5 MARKS)

1.1. Attorney is instructed by client;

1.2. Attorney accepts instruction from client;
1.3. Attorney initiates contract between an advocate and Attorney’s client
aka briefed;
1.4. Advocate elected is one with specialised knowledge in field;
1.5. Advocate’s fee negotiated with client;

2. DIFFERENT FUNCTIONS OF ATTORNEYS V ADVOCATES? (5 MARKS)

ATTORNEY: ADVOCATE:
Not obliged to accept instructions
Obliged to accept brief if available
from client
Takes care of administration:-
Litigation specialist:- prepare
investigation; issuing & service;
pleadings; present case in court.
discovery & inspection of documents.
Reports directly back to client Reports directly back to Attorney

3. FIDELITY TRUST FUND – WHAT ARE TRUST FUNDS? (2 MARKS)

3.1. Practitioner’s briefed by public must have a fidelity trust fund, which is a
separate bank account holding all money deposited obo another
person;
3.2. Does not form part of practitioner’s assets;
3.3. In proper circumstances, any shortfall in the account may be recovered
from the Fidelity Fund.

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4. FACTORS ADVOCATES SHOULD CONSIDER WHEN DETERMINING

THEIR REASONABLE FEES.

Advocate may charge only reasonable fees for services, proper consideration
to:
4.1. Time & Labour required; Novelty & difficulty of issues; and skill required
to conduct case;
4.2. Customary charged by counsel comparable for similar services;
4.3. Iro cases sounding money, the amount of money involved and its
importance to the client.

5. DUTY OF CONFIDENTIALITY AS BETWEEN ATTORNEY AND CLIENT (10

MARKS)

5.1. Duty not to divulge written / oral communication in course of attorney

and client relations;
5.2. Duty of confidentiality & clients corresponding right continue even after
relationship has ended;
5.3. Apart from contractual relationship, it is an established principle:- to
divulge confidential information wouldn’t promote proper functioning of
litigation process / legal system;
5.4. It’s client’s privilege NOT practitioner’s privilege;
5.5. Privilege must be claimed in court as it doesn’t automatically arise;
5.6. Attorney raising privilege does so obo client’s interest;
5.7. Exceptions to privilege:
5.7.1. Where legislature expressly excludes privilege;
5.7.2. Where client gives consent to disclose; or
5.7.3. Where practitioner cannot withhold access to document if client
was obliged to hand it over (Eg, SARS etc).

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6. STATUTES THAT SPEAK TO WHAT PRIVILEGE IS AND WHAT REMAINS

CONFIDENTIAL?

Statutes which compel disclosure of otherwise confidential information:

6.1. Financial Administration Laws Amendment Act;
6.2. Tax Administration Laws Amendment Act;
6.3. Children’s Act;
6.4. Criminal Law (Sexual offences and related matters) Amendment Act.

7. CONFLICT OF INTEREST. WHAT IS A CONFLICT OF INTEREST? (3)

SITUATIONS WHERE CONFLICTS OF INTEREST MAY ARISE? (2)

7.1. What is a conflict of interest?

7.1.1. Multiple competing obligations and or interest;
7.1.2. Lewis defines a conflict of interest as where it would be likely to
affect adversely the judgement of the lawyer obo his loyalty to
client / potential client, OR, which might prompt the attorney to
prefer interest of the client or prospective client.

7.2. Situations where conflicts of interest may arise?

Two situations:
7.2.1. First: Simultaneous representation of two or more clients;
7.2.2. Second: Where practitioner represents a client of a former client
In the 2nd, no actual conflict, but mindfulness of use/disclosure of
confidential information.

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8. CONTINGENCY FEE AGREEMENTS

8.1. What is a contingency fee agreement (5);

8.1.1. A fee agreement ito of the Contingency Fee Agreement Act, as
between practitioner and client;
8.1.2. Practitioner agrees to: “no win, no fee”;
8.1.3. Allows practitioner to recover a fee in excess of normal hourly
rate, to a maximum of 25%. Either double your hourly rate, or
25%, whichever is the lesser amount;
8.1.4. Practitioner entitled to the above, as the practitioner carries all
the risk;
8.1.5. Contingency fee agreement needs to reflect the Practitioner’s
hourly rate.

8.2. Pros and cons of a contingency fee agreement;

8.2.1. Pro: A contingency fee agreement, enhances access to justice
for litigants who would otherwise not be able to afford it;
8.2.2. Con: Parties aren’t on equal footing. A practitioner may abuse
position of power. Unethical behaviour may manifest.

8.3. Masango & Another v RAF.

Two issues (questions) addressed:
1. The Fees Question. Can a legal practitioner charge 25% of the
capital award as fee?
2. The VAT Question. Can 14% VAT be added to the 25% capital
amount?
1. The fee question:
1.1. Ito s2(1)(b) read with s2(2) of CFA, a practitioner may
charge his double his hourly rate. First he must decide
his normal base and may increase it by 100%.
1.2. “fees” – payment due to professional person for services
rendered;
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1.3. “normal fees” – for services actually rendered;

1.4. “success fees” – increased fees practitioner entitled to
recover in event of success, to extent as set in agreement
concluded ito CFA.
1.5. A practitioner cannot charge for anything other than
services actually rendered. There’s no basis in law to
charge 25% of the capital award. Practitioner’s charge
isn’t a percentage commission or share in injuries or
damages as that would be contra boni mores.

2. The VAT question:

2.1. VAT is not recoverable above the 25% cap imposed by
s2(2) of the CFA

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