Legal Ethics: Models and Application

Legal Ethics 214 - Admin

• Dr. Stephan van der Merwe can be reached at [email protected].
• The office is located at Office 1002, Law Clinic.

Legal Ethics

• Legal ethics concerns justice, goodness, and morality.
• David v Goliath is used as a case study in class.
  • This raises questions about the ethical implications and whether information should be disclosed to the court or plaintiff.

Models of Ethics

• Consequentialism (Utilitarianism) determines the ethical or legal rightness of an action based on its results.
  • Consequences dictate actions.
• Categorical reasoning determines rightness based on duties, rights, and virtues, regardless of consequences.
  • Deontology focuses on following rules and laws.
  • Virtue ethics relies on moral judgment of what is right and wrong.
• Determining ethical conduct requires weighing various factors.
• Ethical issues are applicable to daily life and legal practice (e.g., social justice, affirmative action).
• The David v Goliath example was applied in real life, referencing the Quimbee - Spaulding v Zimmerman Case Brief Summary available on YouTube.
• The court ensures the best interests of the child.
  • There is extra duty when dealing with the interests of a minor.
  • If the individual was not a minor, the same actions may not be considered unethical.
• Exam questions about medical negligence may require looking at doctors' actions and codes of conduct.

Approaches to Discussing Ethics

• Discussions should be appropriate and ethical.
• The goal is to create a code of ethics using E-CARE principles (excellence, compassion, accountability, respect, and equity).
• Individual assignments include drafting and uploading a memorandum of understanding (MOU) to form the basis of an agreement on the drafting and content of an ethics code.
  • The MOU is due on SUNLearn by 09:10 on 27 Feb 2024.
  • The MOU should be anonymized and named "MOU Legal Ethics 214."

Introduction to Legal Ethics (Topic 1)

• Legal ethics cannot be taught according to Group B.
• Key questions in legal ethics include:
  • Should legal ethics be taught?
  • What are ethics and legal ethics?
  • The purpose and relevance of legal ethics.
  • Structure of the legal profession and ethical state.
  • Importance of legal ethics.

Ethics Defined

• Ethics involves a higher standard of morality governing human conduct.
• It mainly consists of morals, values, and rules but is not straightforward.
• Morality is unique to an individual, while ethics is unique to a profession, but distinguishing between the two is complex.
• The Collins concise dictionary defines ethics as:
  • A moral principle or set of moral values held by an individual or group.
  • A code of behavior considered correct, especially in a profession.
  • The moral fitness of a decision or course of action.
• The Oxford dictionary defines ethics as moral principles governing a person's behavior or activity.
• Ethics comes from the Greek word 'ethos', meaning norm, habit, nature, or character, and studies moral behavior in humans.

Ethics vs Morals

• Morals are more personal, while ethics is a code that is developed.
• Merriam-Webster defines morals as beliefs about right and wrong behavior, or the degree to which something is right and good.
• Absolute morality is objectively enforceable and cannot be changed.
  • It is often religious or cultural.
• Relative morality depends on context and emphasizes autonomy.
• Defining unethical behavior can be problematic because of differing societal views.
• Morals can be defined as motivation based on ideas of right and wrong.
• Ethics can be a theory or system of moral values, the rules governing a person's conduct or profession.
• There is a substantial overlap between ethics and morals.
• Ethics deals with conduct.
• A difference is that being unethical from a legal stance is unprofessional.

Ethics vs Values and Virtues

• Some approaches see ethics as about character and virtues like honesty and kindness.
• The Constitution is founded on human dignity, equality, rights, and freedoms.
• Aristotle's 12 virtues: courage, temperance, liberality, magnificence, magnanimity, ambition, patience, friendliness, truthfulness, wit, modesty, and justice.
• In an African context, ethics is oriented towards community, stewardship, unity, and caring, exemplified by Ubuntu where someone is accountable in business and the community.
• Virtues can serve as the basis for ethical decisions, but are not definitive because of questions of whose virtues are most important.
• People often act virtuously when they are inherently selfish.
• Pluralistic society affects certainty in ethics/virtues.

Ethics vs Laws, Rules, Codes, Guidelines, Norms

• The Legal Practice Act 28 of 2014 (s6(1)(b)(i)) mandates the council to develop norms and standards for legal practitioners.
• The LSSA Code of Ethics, ABA, and IBA principles are also relevant.
• O'Dair notes that ethical lawyers need to be aware of applicable codes of conduct.
• Laws are enforced by courts, while norms are enforced by social pressure
• Ethics lies somewhere in between.
• Jessup states that no code can detail all lawyer duties.
• Du Plessis considers ethics a manifestation of one's inner self, not just rules.
• O'Dair argues that ethical difficulties cannot always be solved by reference to codes of conduct.
• Vicarious liability- holding one party responsible for a third parties actions.
• Norms and laws are not equivalent to ethics.
• Ethics involves difficult decisions about the distinction between right and wrong.
• Ethics involves complex, multi-dimensional considerations balancing interests and rights, requiring lateral thinking.
• Ethics involves what one ought and ought not to do.

Legal vs General Ethics

• More because there are general standards within legal ethics
• Action can be legally ethical but not morally ethical.
• Legal ethics is more specific.
• There is an idea behind a code, beyond feelings, and typically narrower.
• The codes conduct is important for legal ethics.

Legal Ethics Defined

• Legal ethics is a subdivision of [professional] ethics applicable within professions, then legal ethics.
• Robertson and Kruuse define legal ethics as a form of applied ethics, questioning what a good lawyer should do in circumstances of moral complexity and competing values.
• Legal ethics applies general ethical principles in legal practice.
• Legal ethics is not a narrow definition of legal professional responsibility.
• O'Dair considers arrangements for legal service delivery, roles/responsibilities of individual lawyers, and the philosophical/economic/sociological context they work in.
• There is no area of law without potential ethical issues.
• Examples of where ethics applies:
  • Law of persons and marriage—issues such as child marriages, mediation possibilities, abortion, and parental child abuse.
  • Law of delict—inflating damages, vexatious litigation, and non-disclosure.
  • Law of succession—irregular wills and influencing free will.
  • Criminal law—not advising the right to remain silent and coaching in evidence.
  • Law of contract—drafting unfair contracts, facilitating client fraud.
  • Law of property—transfer delays, touting, and evictions.
  • Labour law—emolument orders and union representation.

Professions Defined

• 'Professio' means a public statement, declaration, or promise.
• It involves acting in the public's interest.
• It is a paid occupation involving prolonged training and qualification.
• Professionals have specialized knowledge, are committed to promoting the public good, have autonomy and responsibility, a moral community, self-discipline, and abide by a code of legal ethics.
• It also encompasses a legal context in the interests of justice.

Legal Profession Structure in SA

• Narrow perspective: formal qualifications, training, and admission, leading to private practice (attorney/advocate) or the public sphere (state attorney/prosecutors).
• Broader perspective: others involved in administration of justice such as judges, magistrates, administrative roles, academics, advisors etc.
• RPB Davis in Foreword to Herbstein and Van Winsen The Civil Practice in the High Courts of South Africa (1954): barristers are not hucksters.
• Dr. C H van Zyl in Judicial Practice: tone of your professional character.
• Justinian: to live honourably, to injure no one
• The South African legal profession is currently undergoing an ethical crisis.
• This is a crisis.

What is the Importance of Legal Ethics?

• To provide legal practitioners with a firm indication as to what is expected of them
• To align with the foundational ethical values they should embody.
• Provides guidance to practitioners, students, and new entrants.
• Protects the professional nature of legal services and the public against misconduct.
• Strengthens accountability and the rule of law.

Complex Nature of Legal Ethics

• Legal Ethics supports nuanced decision making to consider various factors.
• It allows adaptability to changing norms and technological advancements.
• Detail ethics standards provide transparency.
• Legal Ethics safeguards to due process, fairness, and equality.

Complex Nature of Legal Ethics - The Cons

• Complexity may lead to confusion and uncertainty.
• Ethical frameworks are subject to interpretation and may lead to injustice.
• Regulations can be burdensome to navigate
• Enforcement may be insufficient.

Ethical Conduct in a Legal Context

• A complex issue fit for complex situations.
• Consistently emphasised conscience is also important
• Gandhi, Mandela and Fischer as practising lawyers during the struggle.
• Do Plessis, The ideal legal practitioner, De Rebus, Sept 1981: Legal practitioners ought not to be pale or colourless
• Deborah Rhode: reduced to codes, the result is legal ethics without the ethics."

Ethical Decision-Making: Nature & Dilemma

• Ethics ≠ morals but morality is part of ethics
• Right vs Wrong & Debate
• Challenges to laws in postmodernism
• More than just morals: extremist views
• Not absolute but Appropriate to Circumstances.
• Complexity
  • Influenced by real life and Legal Practice

Ethical Decision-Making: Different Approaches

• Utilitarianism: Morality depends on consequences /cost/benefit for most people eg: Good or Bad
• Greatest happiness theory, Consequentialism
• Critique/Oversimplified, Right or Interests, consequences and good or bad
• Deontology: What is the moral duty that needs adhering to?
• Kant: Act should be applicable
• Critique:
  • Clashing Duties
  • Ignore consequences

Ethical Decision-Making: Virtue ethics

• Not rule or consequence but perfecting
• Ethical or better than doing/ Balance
• Has advantage where a Gap between Uncertainty.
• Critique: is it Best as a supplement? Questionable In a Professional Setting

Introduction to Ethical Theories

• Consequentialism looks at consequences, the greatest thing achievable
• Bentham & Mill, and the Deontology to Kant
• Core of Ethical Theories
  • Look at Right and wrong which we weigh against General Legal/ choice

The Role of Lawyers

• Has one of many different Roles Morality
• Accusatorial. approach + what has to happen
• Look at Responsibly, moral and ethics + African Communitisation

Role Morality and Legal Ethics:

• What is right/ethical can be applied to justice, not be neutral
• Prof Charles good lawyer has many obligations
• The way you feel and express autonomy
• As there is a way a lawyer has to always be

Code of Conduct

• Can be both personal and private
• Lawyers: should always have a choice
• May not always help + how the other lawyers also look to this

Theories of the Role of Lawyers

• Adversarial or accusatorial. (traditional approach)
  • With the 2 opponents with/set of rules + common law -should advance Their interest/ be able to look after themselves
• Be in support.
• Responsible Lawyering: public /integrity: and look after all.
• Ethic and care: look from different points + what the outcome will be/ more for all those Involved

Ethical and Moral

• More for people to come together
• If so are the laws followed?
• Always think of more of all parties in general.
• To which should be always first.
• Always must what is happening/ think the full 3D vision in play