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Ethics 2024

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Ethics 2024

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grateful mabunda
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© © All Rights Reserved
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Pct ea eso Paper 3 ATTORNEY'S PRACTICE (ETHICS) Gawie le Roux Johan van Stade g GAWIE LE ROUX REGSINSTITUUT INSTITUTE OF LAW oO REGSINSTITUUT INCaanU ola) AUTHOR » ‘Gane te funder and executive recto ofthe Gawlee Rout Insitute of Law previously knowns fhe Contre for Conveyancing Since 1994 he has developed various highly successful y ourzesinsudng Hscourses in conveyancing nota practi tat hs enabled many lee profesor to pepe for and pas the LPC exams Over the past few years, the Inet he ao been fering exam preparation courses forcaddte attorneys who ae tenting o write thee competency-based exams. Besides exam preparation courses, the Inette ako offer various webinars and werkshapson topics tat ol practi value for legal profesianas Gawie pasionate about high-quality ya traning. Hels a nowpactsng sitemey, conveyance, and enroprener In 2002. heeft his busy conveyancing pacts OUTEUR behind te purse hs passion for lea raring ulti ‘Sawie se ster en ltvoerende drekteur van de Ga e Roux Reginstiu, vorheenbeken se Sentrum vr [Altea Sedert 1994 het Gawiebekendheidvrwert i hursuss In ak: en nota praktyk wearer menige ‘espraktiynslksesvel vier ebsamens kon voorbarel- en daarmoe slag het. Onder Gawe seeing bed cle Inst vr ie afte antl jae ok afrondingskususe aan fanldaat prokurcrs om ve ie aadsetsarens voor te bre Benewenscksarengerge kunusse, bid dle Regsnstiuut ook versie webinare en werkswinkls an in Prats ondererpe wat ve bosgepaktsyn van raise waar kan wees. Gavel passe or gehalte ‘epsopedng. Hy i'n le praltiserendeprokares, twansporbesogeren entrepreneur wat sy beige atepraktyk in 2002 ie vty epsopliing veri het. n van Stade CO-AUTHOR AND PRESENTER | Johan va Sade san adit ator, conveyancer an notary pull. He was a practic “tomey fr tre years before ning or lecturing team ry 2019. He presets eso asses for candidate sttomeys who are peeping forthe attorneys aciisson examination ‘Van Sadi the sl author and presente of two of these courses, namely bookkeping and ‘amination of estates and he th co-author and presenter of wo ole courses fr the ‘ame eaination: court proceduesand attorneys practice ethics. Ties th by to presen these nbjectsina way thtie enjoyable nd ey to understand MEDE-OUTEUR EN AANBIEDER Johan van Stade isn toelte poker, akteberorge en nota Hy was dejar lank prktseren peokuror ‘root hy in 2089 by ns pan sangeet het Hy bie herleningsase san vir kandsatprokrers wat vorberel Vir de prolareustocltingseisaren. ‘Yan Stade sc ergs skye en cnblader van we van ere krsuse naam bekhoudig en adits van boedels en hy die mede-outeurer onbeger van twee ander rst videseldeeksamen:hafresodres en rokurcurspaltyk (tl. Hy het de vermotom ere vakeaan e bie an manier wat aangenaam on makikis om te versa, ©) Our purpose Tous, the hw not cold and persona. ts pure and esata We ai to leave legacy by produc a generation of competent legal profesional, empowering them to practcalyappy the a. The golden tres that runs through al our products and services isthe exceptional quality legal materi and traning we delve that spt students by opening tei eyes to the beauty ofthe kw lAbout us ‘The Gawiele Roux Insitute of Lawisa privat provider ofhigh-quaty legal training to attomeys, candidate attomeys ad legal support sa warkng naw fms. The lstitute offers various curses, webinars and ‘worshops aimed at improving the professional conduct and poducty of ttf working in aw frm. We are celebrating 29 years of unirtrrupted professional waning. The Gavi le Rowt Institute of Last the biggest private conveyancing and notarial practice traning institutionin South Afra, and now extends its services tovvarious spheres of gal tiie. |What we offer Tet oa arnt cas VOCATIONALTRAINNG] EXAMTRAING — | PRACTICAL TRAININ nN kiincaaers | emmtasan Tl shocay Mole tsa pice Pepechecndéstestioneys —— Netbletn Pri omen Modle2- Sout Thane atoneyuntcr Mtn aisoneom + Weis de 3: Pct sie oa + Werte. "Tommtleerctto + Spun couse’ ‘Gavearingwoisep spose cme derededbyteleplPacies — Nebbivenstop Sects aston oo Wig ets Coney forsee Trae Deen. Leconte Our core values A we lo € 4 Attorney’s Practice (Paper 3) TABLE OF CONTENTS © Author's page Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Legal practice and ethics Litigation Family law Agreement of sale Lease Contract law - Cession - Surety - Business enterprises Chapter 10 - Sale of business Chapter 11 - Insolvency Chapter 12 - Prescription Chapter 13 - FICA Chapter 14 - Labour law Issue 8 - January 2024 Published by Gawie le Roux Practical Legal Training (Pty) Lid registration number 2005/007909/07 trading as the Gawie le Roux Institute of Law 451 Flinders Lane, Lynnwood, Pretoria PO Box 74047, Lynnwood Ridge, 0040 Telephone: (012)361-1715 /2 E-mail: aloulse@[Link] Website: [Link] edition June 2018 2 edton: November 2018 3° edition: dune 2018 4° edition: February 2020 5° edition: sanuary 2021 6° edition: slenusry 2022 Tediton: “amuary 2023 8° edition: ‘lanuary 2024 ‘Set up on a personal computer by the Gawle fe Rows Instuto of Law and photocopied by Kitskopie, Pretoria, Copyright vests in Vellige Vesting (Pty) Ltd proprietor ofthe acing name ‘and brand Gawe le Roux institute of Law. Copyright subsists this work, ALL RIGHTS RESERVED, No part ofthis work may be copied, adapted, duplested, reproduced or used in any form or by any meane (graph, electron, or mechanical, including photocopying, recording, taping or information storage and rotvival systems) or otherwise dost with without por writen consent of VEILIGE VESTING first being ‘obtained. Any suck unauthorised acts constitute copyright infingement and ‘expose the infringe to an action under the civ ta and in cartain CGroumstances to ciminal sanctions. I any material requiring copyright has been used inthis text itis unintentional and the copyighteris requested to bring the matter to the attention of the author so that due acknowledgement can be made. Chapter 1 LEGAL PRACTICE AND ETHICS Page 4 Introduction : 2 Accounting 3 3 Advocates 4 S41 Goreral ethics 4 32 Agreements about foes ® 32 Anew category advocotes practising with FFC 7 4 Attorneys 8 4.1 Adnission requirements 9 42 —Dutts ofan atorney 9 5 Attorn 2 6 Code of Conduct 13 7 Commissioner of Oaths “ 7 Role of tho Commisionor of Oathe “ 72 Twooptons avaiable “ 73 Administering an oath or affimation 6 8 Conflict otintorost 1° © Confict of interost and the Code of Conduct 23 10 Contingency fees m 11 Gorrespordent 26 42 Cross exanination 28 43. Criminal work Ea 4 Fe ot 4:1 The gonoral principle: reasonableness a 442. Common aw ethics 3t 443 Disutes about fe in norttigious mations 32 184 Sharing of feos 38 448 Foca undor the Logal Practice Act 36 45 Fidelity Fund Cortitieate 3 151 Purpose a7 152. Ontne applications 38 46 Final acceunt a anu 2037 a F Gawie le Roux Institute of Law. 2 2 m 28 26 2 2 30 4 2 33 Pr 38 a” 8 Legal advice Legal Practice Council Legal services Litigation ethies 214 Faitadminisation of use 212 Giving evidence in he case 243 Duty to maintain confidentiality 214 Intoriewing ofa wines 21'5 _Intendawing of winasses of opposing party 21.8 _Interiowing of a State witness Mandate 221. Acceptance or decine of mando 22.2 Acceptance or decline of mandate Lo the Code 223 Terrination of mandate Misconduct Name in dead of sale National credit act Non-togal staff overreaching Prescription Privilege Relationship with client ‘Sources ofthe law ‘Struck off he rll ‘Taking over of work outing “Theft of trust funds ‘Trust funds wits Withdrawsl as attorney Page a 4s 46 “ a7 a a a 40 0 a 51 5 54 54 59 50 0 ot 63 63 oo 67 6s 0 70 n 8 7 Ea 7 Teme anuary 2078) Legal practice and ethics Chapler 1-3 4 Introduction 1.4. This chapter deals with the practical and ethical sige ofan altomey’ prac. 4.2. Tree sources were consulted, narly 1) Hoffmann DM Lewis and Kyrou's Handy Hints on Legal Practice, 2 South ‘Atican Edtion, Less Nexs, 2011. For easy relerence this source le moray referred to 68 “Lov” in the footnotes, 2) Elis P andLamey AT The South African Legal Practitioner A commentary ‘on the Lega Practice Act, LexisNexs, 2017 3) Model answers forthe Allomey’s Practice paper ofthe Board's exam, prepared ard used by the examination panel fortis exam 413. As ar as mode! answers to questions are concered, the note tothe examiners ‘ead as follows: This guideline records the vows of tho drafters. There may be juste variations o practice which ar brought out the answers. When tis ‘happens, the exariner should apply his discretion in marking the answer 44 Model answers reered to above were merely used 36 8 guide and have been ‘modiied according othe autho’ disretion where necessary 4.5. The various opis below are belng dealt with in alphabetical order 2 Accounting 2.4 Itquito is normal an often happons that an attorney wil not be fia with accountng systems or computer programas. Thats why it wil aways be good polcy to employ aqualifed or an experienced bookkeepar. In considering a new program an attorney shoud alvays satsty himself thatthe computer program compiles with al fe requirements of legal practic bookkeeping required bythe Legal Practice Ac and Regulations. He can, for example, raques testimonies of current users andmake the necessary gules. ‘Guwston’ -Vaur ancl anssclions noease ard you apport an exporenced bookkoeper who recommends a computer program of which you haven kevowledge Discuss your esponsibits 6 5 gebrnry 2015 queston 2: February 2007 question Tan 22 Chapter 1-4 ‘Aterative wording forthe same question’ - The frm employs an experienced bookkeeper wh recommends now computor sys of which you have knowledge. Discuss your responibilos © Answer t's quite normal ané often happens that an attorney will not be fami: with aecouning systems or computer programmes. That's why an experienced boakleper was employed in the fist place, or hr expertise in this la. However. ta atlomey must do his own search and satisfy himself thatthe ‘computer program complies wth al he requirements olga practice ‘okkaopig in tors of the Legal Pract Act and Regulaions. He can requost for testimonies of current users and make the necessary enquies. ©, Advocates: General ethics When briefing counts both inorder and advisable to agree ona foe in advance. “That il eliminate the surprise element and resultant problems ifthe fee is more than anicpated. Its the atorney’s duty to Koop his cont informed ofthe cost Implcations of each case. It can only be done f proper arcangements wth the ‘advocate were made beforehand “Thin attorney would always be lable forcounc's foes in view of the flowing: 1) The obigaton to pay fos had to ow from an agreement between the parties, 2) This agrooment could other be an expross agreement or by necessary implicaton™ Consultations shoud always be held in coune!'s chambers. Oni inthe most exceptional drcurstances may there be a devation ftom this general principle. Furthermore, atlorneys or competent candidate atorneys should, without exception, always be present when advocates consult wih clents.* ‘Givstion = Wi ibe a ardor fo age wih counsel in advance on aToo ortho Agus 205 uetion3.2 a 20H Legal practice and ethiss Chapter 1-5 ‘Tay 20087 lator appearance ina court? @ ‘Alternative wording ofthe same question - Your lent enquires fom you ‘whether it woul be possible to agree wih counsa on a fe in advance fo the laters sppearance bfere a tibunal “ ‘Anawer Its both in orc and advisable thst an attomay and advocate aore0 on ‘fee in advance, That wil efiinste the suprise element and resutant problems if te feo is moce than anipated. Its the atoenoy's duty io keop is client Informed ofthe cost implications of each case. Itcan eny be donaif proper arangemors wih the advocate were made beforehand eauy ‘Question 2'- You have arranged a consitaon between your cent and an advocate and subsequently discover hat you are unable to sto the Coneultafor. May the consultation ako plac without you? o ‘Answer An attomey may nt undor any circumstances arange a consutaton ho knows that he wil ot be presen Shou unfeeseen ckcumstaneas oocur and the consultation must tke place, {he attorney must range that one of his partors, a professional assistant or & candidate loa in his employment, ora correspondent, attond othe ccnsutaton Ifitis neceseay forthe atlomey hms to attend because itis the wish f Ne lent hate does 2, the consuitaion should rather be pestooned. © ‘Question 2 May an stoney mer the fe ona bit to an advocate without lscussing same with the acvocatebeforohand? ° Anewer- io allery seit to mark abr beforchae but itis not advisable todoso, ithe dove so, however, counsel may copter rfuso the rit wil be theme correct rth attorney to seuss a fee with counsel bore inating tm ° CCunetion ay anatomy requita an advocate to ttond a 2 inarsin 208 andr 2008. ach 202 question .2 Part Bl Aug 2015 ution 2.4; ut 200 gueston 87, oat 2098 question 62. og 2098 unston 8.2. aT Chapter 1-6 Gawie lo Roux Instituto of Law, 32 coneuatontmeting tthe attemey’ ofc? ° _Anawor-The rule of the Genera Bar Coun prohibit an advecate maoting a an attorney’ ffs but nothing prhiits en advocate under appropiate iroumstaness seoking special permission to do so. e ‘Question 5" - May an attorney roques the clan Yo consul wih counsel in the ‘atomey's absence? ° Answer A atomey oc his representative must aay be present when ‘advocate consults wih his lent Itoten happens thatthe ate snot ‘avalable ar roquest his candidate attomey to accompany his cent to consult wth cours. @ ‘Question 6° Discuss brefy he manner in which a pute of the fos charged bythe advocate is resolved © _Anawor- Is the duly ofthe advocate an the stoma to ciscuss advocate fs atthe caries possibe fe, This often does nathappen wich means the two ‘ase thal reasonable fees be charged. Ifthe cscusson about eos does nat coccurboforehand and there is a dspute, te attorney shoul d the folowing: 1) Arargo' discuss fees with counsel and endeavour to resave the spate, i) IftReisnot possible, coer the matior tothe ombudsman atthe Bar who will endeavour to meat, i) tft dos not succeed, odge a complaint wth the Secretary of he Bar Counc who wl arrange a proper hearing and debate ofthe mater. (8) Agreements about fees “The Code of Conduct contains the folowing new provision “ian atorey offers a brief to counsel which is already marked with a fee, counsel upon acceptance ofthe brief tacty agrees to that fe; f counsel choasos to refuse ‘the brief on those terms, counsel and the instructing attorney must expressly eares Inuiing o by mailto a diferent fe, oberwise, if counsel performs the work ‘mandated bythe bi, the inital marked foe shall bind counso”| Tianaany 2028) Legal practice and ethies hepter 1-7 3.3 Anew category: advocates practising with a Fidelity Fund Certiicate 3.3.4. In terms ofthe common law an advocate has implied the flowing terms into his contractual elatorship: 1) the advocate may nt take instructions from the cent drcty without tho Intervention ofthe attomey, 1 the attorney must be present tal imes during consutations; 'R) the advocale does not render his or her account to tha cnt, but to the atlomney, iv) the ellentis obliged to make payment ofthe advocates foos tothe attorney; V)__ the advosaie may not receive payment from the cent ther than trough the Intervention ofthe atomey, ‘W)_ inthe case of non-payment offs by the attomey, the sdvocete may sue the lent for his or her fos. 33:2. Under the Legal Piallce Ac, this common law poston has not changed. The Act, however, crates « third category of practitioner, namely an advocate practising witha Fidelity Fund Certificate, who may take instructions rect from cents. 3.83. The distretion betveon an atlornoy and advocate is expressly reserved by section ‘34 ofthe Logal Practice Act 3.34. Section 24(2) provides that an advocate may render logal services in expectation of {2 foe, commission gan of rove ') upon receipt ofa brlf from an attorney; OR |) upon receipt ofa request directly from a member of the public or from a Justice contre for hat servic (subject os 24(2)), 3.35 Advocates of this latter category may render those legal sences (rondored by advocates before he commencement ofthe At), ony ihe or she: ’) isin possession of a Fidelity Fund Certificate; and 1) has notified the Council thereat - (6 94(2\(). sévocates may only practice 1) for their onn account, as such, may not make overo, share or dvds any potion of tier professional fee whather by way of partnership, commission, ‘alowance a otherwise Mee andtamey 5:2 ane 2008 Chapter 1-8 Gawie le Roux Instituto of Law 8) as part of ataw ctinie;* 1H) a8 part of Legal Ald South Africa; or Iu) as an advocatein the fulkime employment ofthe Stale as a State advocate ‘or the South Aican Human Rights Commission. % exablened interme cteecton 8) = 2 Legal practice and ethics __ _—_____Chavter=9 4 44 Tanwar a0m) Attorneys. ‘Admission requirements ‘A dstincton should be made betwoen the requirements for admission as an attonay under te old Atoreys Act 83 of 1979 and the new Logal Practice Act 28 of 2014, The dstintn is ce from the questions and answor bolow. ‘Question rs informe you that her son ions going to univers next yor to stu tw ‘0 thato can become an attorney or advocato. Adie heron 6.1 Thesubstanve requirements for admission as an attorney under Act e378; 0 62. Howin principle the poston wil 200n change (or has recently changed) und the Legal Practice Act. “ ‘Answer 6.1) Sector 18 ofthe Atlomeys Act 63 of 1979 requires that, en application fo be _adiitod as an tty, the court must be slid thal such @ parson i, inthe ‘cretion othe court - 8) @filand proper parson fo beso admited an enoled b) fs 2t years of age or olde, ©) isaSouth Afrloaneiizenorhlds parmansntrosidoncoandis ordinal resigentin te Repub: 4) hagoblained an LLB dogre: fe) haspassod the praca board examinations 4) _haBattended and completed an approved taining couse: {2} hascomplted the required sanico under a contact of ares; or 1h) aerha has bean exemplod in terms of te Act fom sarvice under ates of clerkship, hy has revouely een admited as an advocate. 0 162) Under the new Legal Pracce Acta National Forum of advocates and ‘tem must agree on tho implemontaton ofthe above requirements, Bot advocates and attorneys become legal practtloners; those who ake ‘movey om the public must have trust accounts; practioners who act on referal naed not, ® February 2008 uns 6. a 1-10 Gawie le Roux In Law. 4.2. Duties of an attorney Lewis mention, among others, the following duties of an attorney: 42.1 A duty to obey your client's instructions. “Yow are your client's agentin reiation to the matters fling within your retainer... Your duty to obey your clients instructions, however, is not absolute. For example, you can refuse to comply wth instructions requiring you todo something whic is unlawful or unethical, or wbich would invaive ‘| broach ofa statutory duty, a rule of professional conduct and practice, a cout ‘otder duty tothe court or an undertaking you have given” 422 Aduty to absolute honesty. “Your duties to the court, which are sometimes referred to asthe uly to the administration of justice’. inch the outy of honesty. .. The duty of absolute honesty requires you to be open, rank and honest In the disclosure of bot facts and law before the court and precludes not only

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