Professional Legal Ethics 2021 PDF

PROFESSIONAL LEGAL ETHICS Syllabus The syllabus is compiled by practitioners with experience in...

PROFESSIONAL LEGAL ETHICS Syllabus The syllabus is compiled by practitioners with experience in practice. Training Guide The guide for 2021 was revised Version 005 Learning Resources No 034 by Megan Smit, Associate at LS Publish date: 01/01/2021 Incorporated (Centurion) and reviewed by an independent practitioner. This training guide is intended as a supplementary tool for purpose of the training at L.E.A.D’s Practical ____________ Vocational Training Programme which includes the PVT Notes on Content School’s and Structured Short Courses, as per the LPA The document records the views The publishing of this training guide (“guide”) was made of the drafters. There may be possible through financial support of the Legal Practice justifiable variations in practice. Council (via the apportionment by the legal Practitioners ____________ Fidelity Fund). The content may not be a correct The Law Society of South Africa brings together the Black reflection of the law and/or Lawyers Association, the National Association of Democratic practice now of reading due to Lawyers and the provincial attorneys’ associations in legislative changes after printing. representing the attorneys’ profession in South Africa. Lifelong learning towards a just society © Law Society of South Africa Copyright subsists in this work in terms of the Copyright Act of 1978, as amended. Subject to the Copyright Act, no part of this work may be reproduced in any form or by any means without the Law Society of South Africa’s permission. Any unauthorised reproduction of this work will constitute a copyright infringement and render the doer liable under both civil and criminal law. Whilst every effort has been made to ensure that the information published in this work is accurate, the editors, drafters, publishers and printers take no responsibility for any loss or damage suffered by any person as a result of the reliance upon the information contained therein. Training Guide Topics The following training guides are updated annually and can be purchased from Legal Education & Development [L.E.A.D®] Alternative Dispute Resolution Practitioners Accounting (LPBK) High Court Practice Business Writing Skills Legal Accounting Insolvency Law Constitutional Law Practice Magistrate’s Court Practice Criminal Court Practice Introduction to Practice Matrimonial Matters and Divorce Management Customary Law Personal Injury Claims Labour Dispute Resolution Drafting of Contracts Professional Legal Ethics Forms of Business Enterprise Legal Costs Wills and Estates For more information LSSA L.E.A.D Quality Assurance (QA) Section. Tel: (012) 441-4600 | Fax: 086 550 7098 | e-mail: [email protected] Address Legal Education and Development Law Society of South Africa Tel: +27 (0)12 441 4600 Tel +27 (0)12 366 8800 Address: P O Box 27167, Sunnyside, 0132 Address: P O Box 36626 Menlo Park Docex 227 Pretoria 0102 Docex 82 Pretoria Physical Address: Old Main Building, Unisa Physical Address: 304 Brooks Street Sunnyside Campus, 145 Steve Biko Street, Menlo Park Pretoria Sunnyside, Pretoria Website www.LSSA.org.za Website: www.LSSALEAD.org.za E-mail: [email protected] E-mail: [email protected] TABLE OF CONTENTS A. AIM OF THE COURSE....................................................................... 1 B SYLLABUS....................................................................................... 2 1. THE CONCEPT OF PROFESSIONAL CONDUCT................................................. 2 2. SOURCES OF PROFESSIONAL CODE OF CONDUCT FOR LEGAL PRACTITIONERS... 2 3. REQUIRED CHARACTERISTICS OF AN ATTORNEY – LEWIS’ GOLDEN RULE.................... 3 4. COMPOSITION, PURPOSE AND FUNCTION OF THE ORGANISED PROFESSION.................... 3 5. ASPECTS OF THE ATTORNEY’S PROFESSIONAL DUTIES................................... 3 6. THE ATTORNEY AND HIS PRACTICE.............................................................. 4 7. THE ENFORCEMENT OF PROFESSIONAL RULES OF CONDUCT........................... 4 8. DRAFTING CERTAIN DOCUMENTS................................................................ 4 9 BRIEF OVERVIEW OF FORMS OF BUSINESS ENTERPRISE................................. 4 10 LABOUR DISPUTE RESOLUTION................................................................ 4 11. MATRIMONIAL MATTERS......................................................................... 4 12. BRIEF OVERVIEW OF CERTAIN PRESCRIBED ACTS AND REGULATIONS.................. 4 C. PRACTICE NOTES........................................................................... 5 1. INTRODUCTION........................................................................................ 5 1.1 WHAT ARE PROFESSIONAL LEGAL ETHICS?............................................. 5 1.2 WHY STUDY PROFESSIONAL LEGAL ETHICS?........................................... 6 1.3 WHAT IS A PROFESSION?..................................................................... 7 1.4 FIVE MOST IMPORTANT CHARACTERISTICS OF A PROFESSION................... 8 1.5 WHAT IS A FIT AND PROPER PERSON?.................................................... 8 1.6 LEWIS’ GOLDEN RULE........................................................................ 16 2. WHERE DOES ONE FIND THE RULES OF PROFESSIONAL CONDUCT?................ 16 2.1 MAIN REFERENCE SOURCES OF THE RULES OF PROFESSIONAL CONDUCT. 16 3. THE STRUCTURE OF THE ORGANISED PROFESSION...................................... 21 3.1 LEGAL PRACTICE ACT NO 28 OF 2014 (LPA).......................................... 21 3.2 CONVERSION OF ENROLMENT............................................................. 27 3.3 REQUIREMENTS FOR ADMISSION AS AN ATTORNEY............................... 28 3.4 FEES............................................................................................... 28 3.5 TRUST ACCOUNTS & TRUST MONEY..................................................... 28 3.6 CODE OF CONDUCT........................................................................... 29 3.7 DRESS IN COURT & STATUS............................................................... 29  3.8 LEGAL PRACTITIONERS FIDELITY FUND................................................ 29 4. THE LEGAL SERVICES SECTOR CHARTER.................................................... 35 4.1 ATTORNEYS DEVELOPMENT FUND........................................................ 36 5. WHERE DO PROFESSIONAL CONDUCT RULES APPLY?.................................... 36 6. THE PRACTITIONER AND HIS CLIENT......................................................... 36 6.1 THE TREATMENT OF CLIENTS............................................................. 37 6.2 ACCEPTING THE CLIENT – CONSIDERATIONS TO BE TAKEN INTO ACCOUNT........................................................................................ 37 6.3 EXECUTION OF INSTRUCTIONS – RIGHTS AND DUTIES OF AN ATTORNEY.. 39 6.4 MEDIATION...................................................................................... 41 6.5 PROFESSIONAL NEGLIGENCE.............................................................. 42 6.6 CONFIDENTIALITY............................................................................. 47 6.7 LEGAL PROFESSIONAL PRIVILEGE........................................................ 50 6.8 WITHOUT PREJUDICE........................................................................ 52 6.9 CONFLICT OF INTEREST..................................................................... 53 6.10 LIEN................................................................................................ 58 6.11 COSTS............................................................................................. 59 6.12 TRUST FUNDS.................................................................................. 66 6.13 TERMINATION OF MANDATE............................................................... 70 7. THE ATTORNEY’S RELATIONSHIP WITH OTHER PRACTITIONERS..................... 71 7.1 WITNESSES..................................................................................... 73 7.2 COUNSEL......................................................................................... 74 8. THE ATTORNEY’S RELATIONSHIP WITH THE COURT...................................... 76 8.1 CONTEMPT OF COURT........................................................................ 80 8.2 RELATIONSHIP WITH COURT OFFICIALS............................................... 81 8.3 COURT ETIQUETTE............................................................................ 82 9. THE PRACTITIONER’S RELATIONSHIP WITH THE PUBLIC............................... 86 10. THE PRACTITIONER AND HIS RELATIONSHIP WITH THE STATE................... 88 10.1 EXAMPLES OF PROFESSIONAL MISCONDUCT NOT RELATED TO AN ATTORNEY’S PRACTICE................................................................. 89 11. THE ATTORNEY’S RELATIONSHIP WITH THE LPC....................................... 90 12. DRAFTING OF CERTAIN DOCUMENTS...................................................... 93 12.1 DUTIES OF A LEGAL PRACTITIONER DRAFTING A CONTRACT................... 93 12.2 DRAFTING A LEGALLY UNIMPEACHABLE CONTRACT................................ 93 12.3 DRAFTING A PRACTICAL CONTRACT:.................................................... 96  12.4 DRAFTING AN UNDERSTANDABLE CONTRACT:..................................... 138 12.5 COMMON TERMS.......................................................................... 139 13. FORMS OF BUSINESS ENTERPRISE...................................................... 139 13.1 COMPARISON OF THE MOST IMPORTANT BUSINESS ENTITIES:.............. 139 13.2 COMPANIES AND CLOSE CORPORATION............................................. 146 14. LABOUR DISPUTE RESOLUTION............................................................ 147 15. MATRIMONIAL MATTERS..................................................................... 150 15.1 FORMALITIES FOR MARRIAGE........................................................... 150 15.2 MATRIMONIAL PROPERTY LAW.......................................................... 151 15.3 CHANGE OF MATRIMONIAL PROPERTY SYSTEM.................................... 153 15.4 DIVORCE LAW................................................................................ 154 16. CERTAIN PRESCRIBED ACTS AND REGULATIONS.................................... 182 D. LITERATURE, ARTICLES AND JUDGMENTS............................... 183 1. HANDY HINTS ON LEGAL PRACTICE......................................................... 183 2. DE REBUS............................................................................................ 183 3 HANDBOOKS, THESES AND PUBLICATIONS............................................... 183 4. ARTICLES............................................................................................ 183 5. JUDGMENTS......................................................................................... 183 E. INTERNATIONAL CODE OF ETHICS........................................................... 188 F. APPLICABLE RULES............................................................................... 189 ANNEXURE 1: CERTAIN PRESCRIBED ACTS AND REGULATIONS............................. 203 ANNEXURE 2: EXTRACT FORM RISK ALERT BULLETIN ARTICLE - LPIIF................ 265 ANNEXURE 3: EXTRACT FORM RISK ALERT BULLETIN ARTICLE - LPIIF................ 270 ANNEXURE 4: ETHICS: TIME TO REASSESS LEGAL ETHICS IN THE CHANGING ENVIRONMENT........................................................................... 275 A. AIM OF THE COURSE The aim of the course is to equip law graduates to be competent and diligent legal practitioners in practice. Such a legal practitioner will: Be the guardian of the Constitution. Be a people’s person by being sensitive to the needs of his/her clients Advise and represent his/her clients regarding the enforcement and/or protection of their rights Manage his/her practice efficiently Respect the courts and other organs of the legal justice system Be professionally and adequately trained Be a lifelong learner and endeavour to stay up to date with developments through study, research and continuing legal education programmes Be a dedicated worker Inculcate a social justice culture knowing that there is a duty to assist the poor sector of the community because every citizen has a right to legal representation. In order to achieve the above candidate legal practitioners must not only know the general rules of professional conduct which must be observed by all practising legal practitioners but must also understand the practical application thereof. 1 November 2018 marked a historical day with the repeal of the Attorneys Act, No. 53 of 1979, by the Legal Practice Act 28 of 2014, as amended by the Legal Practice Amendment Act 16 of 2017 (LPA). This brought about a fundamental shift in the profession with the South African Legal Practice Council (LPC), became the regulatory body for all legal practitioners, including practicing and non-practicing attorneys and advocates, referred to as legal practitioners by the LPA. Many of the rules and regulations contextual underpinning of the Attorneys Act No. 53 of 1979 found its way into the new regulatory environment and therefore there is reference to old act merely for understanding the jurisprudence developed under the old Act and reference is thereto is provide this context. Candidates are required to study and fully acquaint themselves with the course material, LPA and its regulations published in terms of s 109(1)(a) of the LPA; Code of conduct for legal practitioners, candidate legal practitioners and juristic entities published in terms of s 97(1)(b) of the LPA; The South African Legal Practice Council rules made under authority of s 95(1) of the LPA. Of particular importance are the disciplinary rules and the rules relating to the keeping of books of account, the assessment of bills of costs and the disciplinary proceedings. In terms of the LPA the LPC publishes on its website the list of suspended and struck-off practitioners and the reports of the disciplinary hearings. This is a welcome transparency and accountability of the profession and the work of the LPC. These reports can be found on the LPC’s website https://lpc.org.za/members-of-the-public/ PROFESSIONAL LEGAL ETHICS © LSSA 1 B SYLLABUS The purpose of the course is to provide a broad overview of the subject from a practical point of view. During the lectures, instructors will only cover those aspects which candidate legal practitioners will encounter most frequently in their practice. The remainder of the course is self-study. Within this training guide reference is made to various court cases, textbooks, articles (for example De Rebus) as well as other sources and the obligation remains on the delegate to stay abreast of changes within the law through their own research in order to ascertain real time standing authorities. South Africa is most definitely one of the countries since its incorporation as a full democracy, for years to come to go through various legislative changes occurring at a tremendous rate as the country embraces its newly found democracy. In this training guide delegates will also find various developmental questions on the subject matter within this guide. Answer to these questions will not necessarily be available to delegates as the questions are also intended to be used by lecturers in developing the theoretical and especially the practical skills of delegates whilst lecturing* to them. 1. THE CONCEPT OF PROFESSIONAL CONDUCT Professional conduct concerns itself with the rules of conduct regulating the legal profession. It provides the norms in terms whereof legal practitioners are judged to be fit and proper persons to practise. The purpose of ethical rules is to regulate a legal practitioner’s conduct, not only in their professional career, but also in their personal life. 2. SOURCES OF PROFESSIONAL CODE OF CONDUCT FOR LEGAL PRACTITIONERS The Legal Practice Act No 28 of 2014 (LPA) as amended and the regulations promulgated thereunder. Code of conduct for legal practitioners, candidate legal practitioners and juristic entities published in terms of s 97(1)(b) of the LPA. The South African Legal Practice Council rules made under authority of s 95(1) of the LPA Court decisions. Common Law South African textbooks The repealed Attorneys Act No. 53 of 1979, as amended and the regulations promulgated thereunder, including repealed rules for the attorneys’ profession (GG39740 of 26 February 2016). Foreign influences Finding free legal information on the internet A very good starting point to find legal information on the practice of law and latest developments and trends is De Rebus: www.Derebus.org.za PROFESSIONAL LEGAL ETHICS © LSSA 2 3. REQUIRED CHARACTERISTICS OF AN ATTORNEY – LEWIS’ GOLDEN RULE A practitioner must avoid all conduct, which, if known, could damage his reputation as an honourable lawyer and honourable citizen. 4. COMPOSITION, PURPOSE AND FUNCTION OF THE ORGANISED PROFESSION The Regulatory framework under the authority of the Legal Practice Council The Legal Practitioners Fidelity Fund LPFF) and the Legal Practitioners Insurance Indemnity Fund.(LPIIF) The changes which have been brought about by the Legal Practice Act. 5. ASPECTS OF THE ATTORNEY’S PROFESSIONAL DUTIES Towards: THE STATE − Duty to sustain the law; respect for legal order − Civil disobedience − To uphold the Constitution THE COURT − An officer of the court − Citation of adverse authorities − Decorum in court − Examination of witnesses THE CLIENT − Acceptance of mandate − Taking instructions from clients and discussion of ethical and financial implications − Execution of mandate, reporting and accounting to clients − Termination of mandate (right of retention) − Client’s admission of guilt − Witness in client’s case − Fiduciary relationship − Other aspects of the client/attorney relationship (e.g. confidentiality, conflict of interest, commission and gifts) − Charging of fees − A client-orientated practice A COLLEAGUE − In court and out of court A CORRESPONDENT ADVOCATES − Briefing − Consultations − Counsel’s fees WITNESSES (IN CIVIL MATTERS) − Interviews − Examination WITNESSES (IN CRIMINAL MATTERS) − Interviews and Examination PROFESSIONAL LEGAL ETHICS © LSSA 3  THE PUBLIC 6. THE ATTORNEY AND HIS PRACTICE IMPORTANT ASPECTS OF: − Attorney’s Accounting − Trust accounts − Trust funds − Client’s financial position and handling of client’s financial matters − Administration of oaths and affirmations 7. THE ENFORCEMENT OF PROFESSIONAL RULES OF CONDUCT Professional Conduct and the establishment of disciplinary bodies Legal Services Ombud – when established The Court The Legal Practice Council Legal Practice Act 28/2014 as amended 8. DRAFTING CERTAIN DOCUMENTS Deeds of sale - movable and immovable goods Partnership agreement Suretyship - reference to relevant Act Acknowledgement of debt Cession and assignment Option; right of pre-emption Sale of business Lease of fixed property Letter of demand Pledge Cancellation of agreement Indemnity 9 BRIEF OVERVIEW OF FORMS OF BUSINESS ENTERPRISE Comparison of the most important forms of business entities (FBE) Companies and Close Corporations 10 LABOUR DISPUTE RESOLUTION (see full discussion in this manual) 11. MATRIMONIAL MATTERS (see full discussion in this manual) 12. BRIEF OVERVIEW OF CERTAIN PRESCRIBED ACTS AND REGULATIONS (Annexure 1) Legal Practice Act No 8 of 2014 (LPA) and Regulations including Chapter on the Legal Practitioners Fidelity Fund Prescription Act, terms of prescription, stay of prescription, extinctive and acquisitive prescription PROFESSIONAL LEGAL ETHICS © LSSA 4  Alienation of Land Act 68 of 1981, only ss 2 and 28(2) Matrimonial Property Act 88 of 1984, especially s 15 VAT Act - liability for and payment of VAT, VAT implications of various contracts, VAT and the drafting of agreements Insolvency Act. Proving of claims, impeachable transactions and selected sections relating to the appointment of trustee/liquidator Companies Act - selected sections regarding formation of company, transfer of shares, ss 19/20, s 44, s 112 and ss 76/7 Trust Property Control Act - procedure for registering a trust and difference between ordinary trust and discretionary trust Justices of the Peace and Commissioners of Oaths Act - ow to administer the oath Contingency Fees Act 66 of 1997 National Credit Act Consumer Protection Act 2008 Section 35 of the LPA C. PRACTICE NOTES The purpose of these notes is to supplement the presentation of the instructors and, hopefully, to be of use in practice. These notes do not comprise a complete manual on the subject – the study of the relevant sources is still necessary. To resonate what was indicated earlier, these notes does not consider the change of flux within the profession. 1. INTRODUCTION 1.1 WHAT ARE PROFESSIONAL LEGAL ETHICS? Professional ethics concern themselves with the rules of conduct regulating the attorneys’ profession. They provide the norms in terms whereof practitioners are judged to be fit and proper persons to practice. “They are the standards of right and honourable conduct which should be observed by members of learned professions in their dealings with each other and in protecting the interests and handling the affairs of their clients. They are designed to provide lawyers with an understanding of the ethical context in which the law operates. They teach them to become aware of the limitations of the rules determining ethical behaviour. The legal profession has developed a substantial body of principles of professional ethics, much of it not formulated in writing but absorbed by younger lawyers from older ones, but some formulated in rulings by Bar Councils and the former Law Societies. The newly established Legal Practice Council, as an independent PROFESSIONAL LEGAL ETHICS © LSSA 5  regulatory body, plays a substantial role in the conduct and control of professional standards. Among the main principles of ethical conduct expected of a lawyer are that, in relation to his client, he will maintain confidentiality about everything revealed to him during the professional relationship, will always use his skills and knowledge to the best of his ability to secure the client’s interests, but will not knowingly be a party to any fraud, dishonesty or underhand dealings. In relation to other members of the profession, a lawyer must deal honestly with them and implement undertakings to them. In relation to the courts, a lawyer should not participate in any fraud on the court as by putting forward false evidence or withholding evidence, should not put forward any misleading arguments or misrepresent or conceal any authorities, relevant to his case, whether in favour of or against his client, and must honour any undertakings he gives on behalf of his client.” (H Drinker, Legal Ethics). 1.2 WHY STUDY PROFESSIONAL LEGAL ETHICS? The legal practitioner is part of a system involving directly and primarily the State. He/she fulfils a dual function by assisting the client on the one hand, and by promoting justice in society on the other hand. The two functions may come into conflict. Our Constitution enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. There is a great need for legal practitioners to ensure that a proper balance between human rights and the more general interests of society and the state is maintained. “The legal profession is the guardian of the dignity and integrity of the Nation. Our mettle as a Nation will be judged by how we deal with the weakest and poorest amongst us.” (Chief Justice Pius Langa) The public is entitled to a fair administration of the judicial system, to insist that legal practitioners act responsibly and ethically in the public interest and that they will not abuse the law for the benefit of their clients. Legal practitioners must not take unjust advantage either of the opponent’s or of the public purse. To ensure that the public will have confidence in the administration of justice, a sufficiently high standard of these qualities must be maintained. The purpose of ethical training could, therefore, be summated as follows: to develop an understanding of the foundations of the ethical standards applicable to the legal profession. to develop moral reasoning skills aimed at empowering professionals to develop moral autonomy and moral decision-making skills that withstand scrutiny. to develop an ethical awareness and a heightened ethical consciousness of the impact and consequences of one’s actions, both personally and professionally, on the broader society. PROFESSIONAL LEGAL ETHICS © LSSA 6 1.3 WHAT IS A PROFESSION? A profession is a career (occupation) which complies with the following six requirements: an intellectual basis; a private practice; an advisory function; a tradition of service; which has a representative body; and a code of conduct. Lord Hunt of Wirral ‘The Hunt Review of the Regulation of Legal Services’ (London: 2009) www. lawcentres.org.uk/uploads/Legal-Regulation-Report- October-2009.pdf adds as follows: “A profession is defined by shared qualifications, values and principles. It is a commitment by its members to standards of behaviour that are founded in ethics and best practice. These standards go beyond the general law of the land, in terms of which members of trades, as opposed to professions, are held accountable”. And Justice Kirby of the High Court of Australia described the essence of being a lawyer in the following terms: “The bottom line is that law is not just a business. Never was. Never can be so. It is a special profession. Its only claim to public respect is the commitment of each and every one of us to equal justice under law.” (1AQAQ MD Kirby “Law Firms and Justice”, speech 7 March 2002, Australian Law Awards). In South Africa, the legal profession currently consists of approximately 30 000 legal practitioners registered as attorneys and 6 700 candidate legal practitioners (31 July 2020). Attorneys profession Oct 2020 TOTAL WHITE INDIAN COLOURED BLACK 0 5 000 10 000 15 000 20 000 25 000 30 000 35 000 BLACK COLOURED INDIAN WHITE TOTAL TOTAL 9 326 1 600 2 704 16 226 29 856 MALE 5 991 745 1 148 9 379 17 263 FEMALE 3 335 855 1 556 6 847 12 593 TOTAL MALE FEMALE PROFESSIONAL LEGAL ETHICS © LSSA 7 1.4 FIVE MOST IMPORTANT CHARACTERISTICS OF A PROFESSION It has a central organisation formally recognised to represent it. Its primary function is to give advice or service in a specialised field. Admission is restricted to a certain standard of education. It is afforded a certain measure of self-regulation and can, as a result, require its members to observe much higher standards than could be successfully imposed by outside sources. A professional person’s first and foremost responsibility is to his client. Benson Report: pages 28-30 (The Royal Commission on Legal Services). But just as important if not more important, are the seven universal ethical principles for any profession which all delegates must know by heart in their approach to this profession and their personal lives as follows: Honesty; Trustworthiness; Loyalty; Respect for others; Adherence to the Law; Doing good and avoiding harm to others; Accountability. 1.5 WHAT IS A FIT AND PROPER PERSON? A practitioner is a “fit and proper person” if their personal qualities reflect integrity and reliability. “Fit and proper” means fit and proper in every respect and not only honesty and reliability. An attorney’s avowed intention of contravening the law in future does not square with the requirement. This needs to, however, be contextualised within the context of and legal challenges. So, for example, where courts are called upon to consider whether ‘the extent to which laws that prohibit the use of cannabis and the possession, purchase of cultivation thereof for personal consumption exclusively are valid’. Prince C President Cape Law Society & Others 2000 (3) SA 845 SCA) Prince v Minister of Justice and Constitutional Development and Others; Rubin v National Director of Prosecutions and Others: Acton and Others v National Director of Public Prosecutions and Others (4153/2012) ZAWCHC30; 2 All SA 864 (WCC); 2017 (4)SA 299 (WCC) Kaplan v Incorporated Law Society Transvaal 1981 (2) SA 7623 (T) The profession of an attorney is an honourable one and as such demands complete honesty, reliability and integrity from its members. Du Plessis (Du Plessis "The ideal legal practitioner (from an academic angle)" 1981 De Rebus 424-427) lists the following qualities as the least that an attorney should possess: integrity meaning impeccable honesty or an antipathy to doing anything dishonest or irregular for the sake of personal gain, objectivity – no irrelevant consideration whatsoever should bear upon one’s judgment, PROFESSIONAL LEGAL ETHICS © LSSA 8  dignity – practitioners should conduct themselves in a dignified manner, and should also maintain the dignity of the court, the possession of knowledge and technical skills, a capacity for hard work, a respect for the legal order and a sense of equity or fairness. Vassen v Law Society of the Cape 1998(4) 532 (SCA) Legal practitioners occupy a unique position. On the one hand they serve the interests of their clients, which requires a case to be presented fearlessly and vigorously. On the other hand, as officers of the Court, they serve the interests of justice itself by acting as a bulwark against the admission of fabricated evidence. Both professions have strict ethical rules aimed at preventing their members from becoming parties to the deception of the Court. Unfortunately, the observance of the rules is not assured, because what happens between legal representatives and their clients or witnesses is not a matter for public scrutiny. The preservation of a high standard of professional ethics having thus been left almost entirely in the hands of individual practitioners, it stands to reason, firstly, that absolute personal integrity and scrupulous honesty are demanded of each of them and, secondly, that a practitioner who lacks these qualities cannot be expected to play his part. Kekana v Law Society of Advocates of South Africa 1998(4) SA 649 (SCA) An attorney is unfit to practise if the misconduct in question is of such serious nature that it manifests character defects and a lack of integrity rendering the person unfit to be on the roll. Examples of instances where the Courts have ruled that a practitioner is not a fit and proper person to practise: It is inexcusable behaviour where an attorney has failed to be frank and open in her dealings with his/her law society and with the Court, and where at times, s/he had attempted to deceive her society and the Court. Law Society of the Cape of Good Hope and Another v Holmes 2006 (2) SA 139 (C) An applicant for admission as an advocate cannot on the one hand plead that he was wrongly convicted, or alternatively, that he has reformed. Reformation can only begin when a person acknowledges that he has committed the wrongful act. Ex parte Ngwenya: In re Ngwenya v Society of Advocates, Pretoria and Another 2006 (s) SA 87 (W). Where a person having two previous convictions for the possession of cannabis declared his intention of continuing to break the law due to his religious beliefs, the court held that he was not a fit and proper person to PROFESSIONAL LEGAL ETHICS © LSSA 9  be admitted as an attorney. As long as the prohibition of the use or possession of cannabis remained on the statute book the applicant would constantly be breaking the law and that this would bring the profession into disrepute. During 2017, Prince was successful in the Western Cape High Court in having certain provisions of the Drugs and Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Control Act 101 of 1965, declared ‘inconsistent with the Constitution of the Republic of South Africa Act 108 of 1996 and invalid, to the extent that they prohibit the use of cannabis by an adult in private dwellings where the possession, purchase or cultivation of cannabis for personal consumption by an adult.’ The judgment was appealed to the Constitutional Court. On 18 September 2018, the Constitutional Court, in a unanimous judgment written by Zondo ACJ, as he then, was dismissed the appeal and held that ss 4(b) and 5(b), respectively of the Drugs and Drug Trafficking Act 140 of 1992 and s 22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 ‘were constitutionally invalid to the extent that it renders the use or possession of cannabis by an adult in private for that adult’s personal consumption in private is a criminal offence’. The effect of the judgement would enable Mr Prince to approach the court to be admitted as a legal practitioner. Prince v President, Cape Law Society and Others 2002 (2) SA 794 (CC) Minister of Justice and Constitutional Development and Others v Prince CCT 108/17 Where an attorney, apart from instances of under-banking trust monies, also stole monies by convincing an insurance company to pay the proceeds due under a life insurance policy to himself instead of to the beneficiary and then withdrew such moneys for personal purposes and then denied doing so despite clear evidence to the contrary, the court ruled that he was not a fit and proper person to practise notwithstanding the fact that he was a pillar of the society who served the community and worked for the poor regardless of their ability to pay fees. (Vassen v Law Society of the Cape 1998(4) 532 (SCA)). An attorney convicted of a criminal offence, and who during the course of the trial not only committed perjury in raising a false alibi, but also suborned another to do so to support his alibi and who persisted in lies for four years during the appeals process was found unfit to practise as such conduct constituted a protracted attempt to deceive the courts. (Jasat v Natal Law Society 2000 (3) SA 44 (SCA)). Where the books of account kept by the attorneys reflected a trust shortage in excess of R12 million, where it had been found that they were touting for work and where numerous clients and some colleagues had raised complaints of unprofessional and dishonourable conduct in their PROFESSIONAL LEGAL ETHICS © LSSA 10  relationships with clients and colleagues, the Appellate Division found that the court a quo had been correct in concluding that the appellants were not fit and proper persons to practice and that their names should be removed from the roll. (Botha and Others v Law Society, Northern Provinces 2009 (3) SA 329 (SCA)). In Malan and Another v Law Society, Northern Provinces 2009 (1) SA 216 (SCA), the Appeal Court questioned the Appellants’ honesty: They touted on a scale and in a manner that could only be ascribed to dishonesty; it was dishonest to charge a client for professional services not rendered; it was dishonest to charge a client for the cost of a tout under the heading ‘disbursements’; and at least part of the explanation for the failure to keep proper books was also untrue. Aggravating features were that clients were prejudiced and that, once the firm’s wrongdoings became known, the appellants were obstructive. In order to stem an erosion of professional ethical values, a ‘conservative approach’ was more appropriate in this case than an enlightened approach which required courts to adopt a more lenient approach and the order for the practitioners’ removal from the roll was consequently confirmed. In the case of The Law Society of the Cape of Good Hope v Berrangé 2005 (5) SA 160 (C) the court had to consider the vexed issue regarding ‘marketing agreements’ or ‘schemes’ between attorneys and estate agents. In terms of this scheme, certain estate agencies (Seeff and Pam Golding) referred conveyancing work to Berrangé’s firm and from time to time received payments totalling in excess of R500 000. The payments clearly constituted ‘soliciting’ of professional work within the meaning of Rule 14.6.1.1. The respondent, accordingly, was guilty of unprofessional conduct. and suspended from practice for a period of two years. (See also Sibiya v Director General: Home Affairs & Others and 55 Related Cases 2009 (5) SA 145 (KZP)). Misappropriation of trust money is amongst the most serious offences of which an attorney may make him or herself guilty of since it undermines the very core of the relationship between attorney and client. An attorney is placed in a unique role, in that he/she is put in a position to conduct matters of trust with the public. The law exacts from him uberrima fides where he acts as agent for others. It is therefore essential that the public should be able to rely implicitly on the integrity and good faith of an attorney they may wish to employ. As upper custodians of the integrity of the profession, our Courts are bound to be particularly astute to condemn, in the strongest terms, any deviation from that standard. (Law Society of the Cape of Good Hope and Another vs Holmes 2006 (2) SA 139 (C)). Where an attorney used touts to secure work relating to personal injury claims; ‘purchased’ third party claims from touts; shared offices and fees on a 50:50: basis with non-attorneys acting as touts and continuously defended herself during the course of disciplinary proceedings that she had not been guilty of any misconduct, the Supreme Court of Appeal held that PROFESSIONAL LEGAL ETHICS © LSSA 11  her denials were untruthful and held that the only suitable sanction was the removal of her name from the roll. (Law Society of the Northern Provinces v Sonntag 2012 (1) SA 372 (SCA)). In Swartzberg v Law Society, Northern Provinces 2008 (5) SA 322 (SCA) the applicant made an application to the High Court for his readmission as an attorney after he was struck off the roll some eight years previously for failing to keep proper books of account, theft of trust moneys and fraud. It was held that where a person applied for readmission in these circumstances, the onus was on him to convince the court, on a balance of probabilities, that there had been a genuine, complete and permanent reformation on his part; The factors to be taken into account by a court in determining whether or not an applicant for readmission had discharged that onus included: (i) the nature and degree of the conduct which occasioned his removal from the roll; (ii) the explanation, if any, afforded by the applicant for such conduct; (iii) the way in which he conducted himself in an enquiry into his conduct and subsequent proceedings for his removal; (iv) the lapse of time between his removal and his application for readmission; (v) his activities subsequent to removal; (vi) his expression of contrition and its genuineness; and (vii) his efforts to repair the harm that his conduct might have occasioned to others. Only in the most exceptional of circumstances, where he had worked to expiate the results of his conduct and to satisfy the court that he had changed completely, would a court consider readmission at all. In the present case the appellant had failed to discharge the onus of convincing the court that he was a fit and proper person to be readmitted as an attorney. In Mtshabe vs Law Society of the Cape of Good Hope 2014 (5) SA 376 (ECM) the court had to consider an application for re-admission of a former attorney who was struck off the roll and sentenced to eight years imprisonment but released on parole after serving only three years and seven months of his term. In the course of his practice as an attorney he had defrauded the State by overcharging and billing his client, the Minister of Defence for work not done. In considering whether the applicant had discharged the onus of being a fit and proper person, the court applied the same principles as set out in the Swartzberg case supra and came to the conclusion that it would be wholly contrary to public policy that a person in that position could be regarded as being a fit and proper person to be admitted as a legal practitioner. In Cape Law Society v Steyn (23322/2016) ZANCHC the court in contrasting the matter to that of the aforementioned Mtshabe judgment found that ‘notwithstanding the undoubtedly serious nature of the respondent’s transgressions in the past, he cannot on the papers be said to be, at this point in time, not fit and proper to practice…Unlike Mtshabe, the respondent has repeatedly and visibly demonstrated his remorse and his realisation of what he had done and of the harm he had caused’. PROFESSIONAL LEGAL ETHICS © LSSA 12  In Hepple and Others v Law Society of the Northern Provinces 3 All SA 408 (SCA) an investigation into the accounting and financial records of Hepple and Earle revealed a number of irregularities amounting to contraventions of the Attorneys Act and the rules of the OFS Law Society. These included substantial trust deficits in the books of account; misappropriation of trust funds; failure to account to the law society for interest generated from the trust banking accounts as required by s 78(3) of the Act; failure to keep copies of bank reconciliation statements; and the manipulation of bank reconciliation statements to conceal trust deficits. On appeal to the SCA against their removal from the roll of attorneys the court held that it was convinced that the irregularities in the trust accounts were not merely the result of accounting errors, but were the result of deliberate dishonesty and the appeal was accordingly dismissed with costs. In Law Society of the Northern Provinces v Mangena ZAGPPHC 219 (GP) the court ruled that it would not be in the interests of the public to allow the respondent to continue practising whilst the application for leave to appeal has still not been determined. In Law Society of the Northern Provinces v Ronald Bobroff and Others Case No 20066/2016 (GP) (unreported) the court ordered after considering the three-pronged test, that both the Bobroffs are to be struck of the roll. The court went on to find that, ‘the only appropriate sanction was to strike their names from the roll of attorneys. Mr Ronald Bobroff was a senior member of the attorneys’ profession and a past president of the Law Society. Despite repeated admonitions from several judges he, together with Mr Darren Bobroff, persisted in using every possible avenue to delay, frustrate and avoid facing up to the serious charges of a practice-wide conduct of overreaching clients… and other unprofessional, dishonourable and even fraudulent conduct.’ 1.5.1 Uphold the Law Because a legal practitioner is associated with the administration of law, he is under a positive duty to maintain the law at all times. This obviously means that he must not break the law. Being convicted of a criminal offence (other than merely trivial offences such as a minor traffic infringement) usually amounts to unprofessional conduct even if no dishonesty is involved because it may indicate that the practitioner has disrespect for the law. “If an applicant (for admission as an attorney) declares that he will defy any laws of the Republic, it is difficult to see how he can be considered to be a fit and proper person as is envisaged in the LPA. His conduct amounts to a repudiation of the oath or affirmation of allegiance even before he takes it”. Prince v President, Cape Law Society & Others 2000(3) SA 845 (SCA) PROFESSIONAL LEGAL ETHICS © LSSA 13  In the case of Incorporated Law Society v Behrman 1957 (3) SA 221 (T), the Law Society of Transvaal (now a Provincial Council) applied for the removal of the attorney’s name from the roll. Ramsbottom J, who handed down the judgment, said at 222BE the following: “It seems to me that it would be improper for this Court to do anything other than what the Law Society requests in the circumstances of this case. The offence committed by the respondent was one of the greatest gravities. Being an officer of the Court and entrusted with duties in the administration of justice, the respondent attempted not only to corrupt a policeman, who is himself an officer of justice, but to defeat the course of justice in proceedings which were pending against certain alleged wrongdoers. What he did was to offend against the very thing which he was sworn to uphold. The question which we have to consider is whether a man who has shown himself capable of committing that very serious offence against the profession and against the administration of justice is a fit and proper person to remain upon the roll of attorneys and to be entrusted with the duties of an officer of the Court. In my opinion there can be only one answer to that question: he has shown himself not to be fit. An attorney who is found guilty of corruption, bribery and defeating the ends of justice must face removal of his name from the roll. I cannot dream up any mitigating circumstances.” Law Society, Transvaal v Blumberg, 1987 (3) SA 650 (T); Law Society of the Orange Free State v du Toit 1983 (OPD) 103; Natal Law Society v Maqubela 1986 (3) SA 849 (N); Mafara v Law Society of Zimbabwe 1988 (3) SA 247 (ZS); Reyneke v Cape Law Society 1994 (1) SA 359 (A); Prokureursorde Transvaal v Van der Merwe 1985(2) SA 208 (T) In the case of Jasat v Natal Law Society 2000 (3) SA 44 (HHA) the appellant, an attorney, was convicted in a regional court on a criminal charge. He advanced a false alibi defence, suborned a witness to give evidence in support of his alibi and persisted in his false alibi throughout appeal proceedings in two further Courts. The Court held that Jasat’s conduct in advancing a specious alibi defence, knowingly giving false evidence in support of it and calling a witness to support his false evidence, demonstrated that he was not a fit and proper person to continue to practice as an attorney and that he should be struck off the roll. The Jasat case remains the seminal case in instances where courts are called upon to strike an attorney from the roll or suspend an attorney from practice. 1.5.2 Dishonesty Not Required There may be unprofessional conduct without positive dishonesty. If an attorney, by what he or she has done, evidences that he or she does not understand the nature and extent of the obligations to clients which the profession imposes, or if he does not observe them, then, given the PROFESSIONAL LEGAL ETHICS © LSSA 14  sufficient gravity of the impropriety, he or she may be held guilty of unprofessional conduct. Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T) General Council of the Bar of South Africa v Van der Spuy 1999(1) SA 577(T) 1.5.3 Do Not Assist your Client to Break the Law A legal practitioner’s duty to uphold the law also requires that he or she must not assist a client to break the law. If a client proposes to break the law, the legal practitioner must alert the client to the consequences of such action and seek to dissuade him or her. However, it is not improper for a legal practitioner to advise a client on how to take advantage of a loophole in the law. A legal practitioner’s responsibility towards his client can never override his or her duty to uphold the law. Accordingly, the legal practitioner must not do anything that is dishonourable, even if it is in the interests of the client and he or she is pressed to do it. “An attorney must not participate in or support his client in anything unlawful in which the client is engaged or contemplates engaging and if in respect of the matter in hand he finds that his client is so engaging or minded to do so, it is the practitioner’s duty to attempt to restrain him. Practitioners must be careful to avoid assisting in breaking the law and must impress on clients the need to abide by it; the client who persists will be met by the attorney’s refusal to continue acting.” Lewis: Legal Ethics p. 115 HEG Consulting Enterprises (PTY) Ltd and Others v Siegwart & Others 2000(1) 507 C 1.5.4 Personal Life The standards of behaviour expected of a legal practitioner are very demanding and extend not only to his professional life but also to his personal life. The rationale is that if you do something which brings you into disrepute, then the profession will be brought into disrepute and further, the administration of justice – of which you are an integral part – will be brought into disrepute. Even though personal misconduct may have less weight than professional misconduct, it may still be a ground for striking a practitioner off the roll of attorneys because it may show that he or she is not a fit and proper person to practise law. PROFESSIONAL LEGAL ETHICS © LSSA 15  Transvaal Law Society v Kleynhans 1995 (1) SA 839 (T) Cape Law Society v Reyneke 1990 (4) SA 437 ECD Law Society, Transvaal v Blumberg 1987 (3) SA 659 (T) Prokureursorde Transvaal v Van der Merwe 1985(2) SA 208 (T) Prokureursorde van die Oranje Vrystaat v Roodt 1996(2) SA 498 (O) 1.6 LEWIS’ GOLDEN RULE Lewis (Legal Ethics p 8) states as follows: Lewis writes that: “the lawyer is bound to act with the utmost honour and fairness with regard to his client for whom he is bound to use his utmost skill but not to degrade himself for the purpose of winning his client’s case.” and “it is clear from all the authorities that this duty of honesty and fairness is not limited to the treatment of the client, but extends to the treatment of everyone…” and “A practitioner must avoid all conduct which, if known, could damage his reputation as an honourable lawyer and honourable citizen.” This rule is not a counsel of perfection, for reputations are not damaged by those trivial lapses to which even the best are subject. The point is that absolute obedience to the rule in all instances stands as the ideal to which each practitioner should consciously strive. Where a practitioner’s conduct falls short of the rule the extent to which it will be reprehended and dealt with as misconduct, will depend upon its gravity or the frequency of its commission by that practitioner and it may well be that a number of trivial lapses revealing a pattern of indifference to the rule will promote disciplinary action, though each in itself was neither serious nor frequent. 2. WHERE DOES ONE FIND THE RULES OF PROFESSIONAL CONDUCT? 2.1 MAIN REFERENCE SOURCES OF THE RULES OF PROFESSIONAL CONDUCT 2.1.1 Legal Practice Act 28 Of 2014 As Amended On 23 January 2015, the President promulgated that parts 1 and 2 (ss 96 – 109) of Chapter 10 were to come into operation on 1 February 2015. Chapter 2 of the LPA, dealing with transitional arrangements came into operation three years from 1 February 2015., The Legal Practice Council came into effect on the 30 October 2018, replacing the Provincial Law Societies and unifying the regulation of the profession. The sections that initially came into operation pertained to the formation of the National Forum and its mandate during the transitional period. The PROFESSIONAL LEGAL ETHICS © LSSA 16  National Forum in terms of s 97(1) after the commencement of this Chapter – (a) made recommendations to the Minister on the following: (i) An election procedure for purposes of constituting the Council. (ii) the establishment of the Provincial Councils and their areas of jurisdiction, considering the factors referred to in s 23(2)(a). (iii) the composition, powers and functions of the Provincial Councils; (iv) the manner in which the Provincial Councils must be elected. (v) all the practical vocational training requirements that candidate legal practitioners or pupils must comply with before they can be admitted by the court as legal practitioners. (vi) The right of appearance of a candidate legal practitioner in court or any other institution. (vii) a mechanism to wind up the affairs of the National Forum. (b) prepare and publish a code of conduct for legal practitioners, candidate legal practitioners and juristic entities; and (c) make rules, as provided for in s 109(2). On 30 October 2018, the historical implementation of the LPA occurred (with some exclusions). In this regard see Proclamation R31 of 2018. The new regulatory body of a consolidated legal profession, the Legal Practice Council (LPC) was been constituted and resulted in the subsequent winding up of the National Forum. The LPA has as its aim: To provide a legislative framework for the transformation and restructuring of the legal profession in line with constitutional imperatives so as to facilitate and enhance an independent legal profession that broadly reflects the diversity and demographics of the Republic; to provide for the establishment, powers and functions of a single South African Legal Practice Council and Provincial Councils in order to regulate the affairs of legal practitioners and to set norms and standards; to provide for the admission and enrolment of legal practitioners; to regulate the professional conduct of legal practitioners so as to ensure accountable conduct; to provide for the establishment of an Office of a Legal Services Ombud and for the appointment, powers and functions of a Legal Services Ombud; to provide for a Legal Practitioners’ Fidelity Fund and a Board of Control for the Fidelity Fund; to provide for the establishment, powers and functions of a National Forum on the Legal Profession; and to provide for matters connected therewith. The implementation of the LPA effectively repeals the Attorneys Act No. 53 of 1979 as amended and abolishes the provincial councils. The previous structural framework was taken over by the LPC. PROFESSIONAL LEGAL ETHICS © LSSA 17  Chapter 4 of the LPA and specifically, ss 36 – 44 pertains to professional conduct and the establishment of disciplinary bodies. A code of conduct for legal practitioners and candidate legal practitioners and juristic entities published in terms of s 97(1)(b) of the LPA and approved and implemented the code of conduct sets standards of conduct which can be enforced by the LPC. Part III of the code deals specifically with the conduct of attorneys. Regarding transitory arrangements s 9 of the LPA must be considered and accordingly the prior regulatory framework is considered hereunder. 2.1.2 The Repealed Attorneys Act No. 53 Of 1979 As Amended The Attorney’s Act, which came into operation on 1 June 1979, was a very important piece of legislation. Not only did it prescribe the qualification and admission requirements of attorneys, but it also dealt with: the constitution of the various law societies and their councils in the Republic of South Africa; the Attorneys Fidelity Fund; the manner in which trust accounts must be kept; the councils’ disciplinary functions and powers; the fines which may be imposed on attorneys and candidate attorneys; the work which may only be performed by attorneys; the work for which only attorneys may charge a fee; and the procedure to be followed when promulgating rules. The LPA and the rules of the LPC and the approved regulations now govern the profession. 2.1.3 Law Society of South Africa Since 1998, the Law Society of South Africa (LSSA) has represented the attorneys’ profession. With the enactment of the Legal Practice Act 28 of 2014 and the establishment of the Legal Practice Council (LPC), the LSSA transformed itself by changing its constitution to reflect both its new role as the representative body with key objectives of leading a transformed profession within a changing environment and legal practice. The LSSA brings together the Black Lawyers Association, the National Association of Democratic Lawyers and provincial attorneys’ associations, in representing the attorneys’ profession in South Africa. View the history of the LSSA and its constitution on the LSSA’s website (www.LSSA.org.za). PROFESSIONAL LEGAL ETHICS © LSSA 18  The LSSA speaks nationally on behalf of the attorneys’ profession; provides leadership and support to the profession through policy development and stakeholder relations; publishes De Rebus, the SA attorneys journal in digital format, which circulates to all attorneys, and judges as well as subscribers in digital format, as well as an app; interrogates and makes input on policy and draft legislation in the public interest; provides practical vocational training course to over 2 500 candidate attorneys a year; has 10 Centres of the PVT School for Legal Practice: Bloemfontein, Polokwane, Cape Town, Port Elizabeth, Durban, Potchefstroom, East London, Pretoria and Johannesburg as well as a distance training centre in cooperation with Unisa. These Schools largely serve those candidates who cannot find PVT contracts and the Schools do extensive practical training and prepare them for the admission examinations, thereby the training increases their chances for PVT contracts, with credit obtained for the practical skills transfer and thereby facilitates access to PVT contracts and the profession. is accredited as the premier provider of other practical legal training courses (PLT) for candidate attorneys in terms of the Legal Practice Act; is accredited as the premier provider of subsidised Practice Management Training (PMT) for mandatory practice management in terms of the Legal Practice Act, 2014; maintains standards by setting examination papers for the Attorneys Admission, Conveyancing and Notarial professional competency- based examinations for attorneys, under the direction of the LPC; and maintains a national database on statistics and trends in the attorneys’ profession. The LSSA also Set up the Attorneys Development Fund together with its constituent members and the Legal Practitioners’ Fidelity Fund to assist PDI practitioners; Undertakes advocacy initiatives and comments on legislation in the interests of the profession and the public; Is the premier provider of relevant and affordable continuing professional development for attorneys and candidate attorneys; The LSSA also Protects and promotes democracy by − Protecting and promoting the independence of the judiciary and of the legal profession; − Supporting the efficient administration of the justice system; PROFESSIONAL LEGAL ETHICS © LSSA 19  − Monitoring national and local elections in cooperation with the electoral commission (IEC) as well as regional elections through the SADC Lawyers Association; − Cooperating with colleagues in the SADC region and internationally in democratisation initiatives It is important to understand the roles and responsibilities of the LPC and the LSSA in terms of the LPA: Legal Practice Council LAW SOCIETY OF SOUTH AFRICA (LSSA) (LPC) Represent public interests Voice of the profession Regulation Assessments for entry to the profession (LPC accreditation) Discipline Legal Education Training (mandatory and PPD) Transformation Represent practitioners’ interest local and International Policies & Codes of conduct A forum for practitioners to gather & deliberate Accreditation & monitoring Practice management resources Data & Records Transformation of the profession Examinations / Assessments Lobby government on key issues Comment on proposals affecting the profession and society Publishes a digital legal journal for all legal practitioners. 2.1.4 Court Decisions There is an abundance of court decisions available and these are readily obtainable in the Law Reports at the libraries of practitioners or the regional provincial councils. Ethical rules cannot alone be made by professional organisations – the courts must instigate them. 2.1.5 Common Law Common law finds its origin in Roman-Dutch law and is also influenced by English law. It is the basis of our law and contains general principles. Most of our common law has been changed by legislation. But common law still applies if legislation does not. Common law is developed by the Courts in a way that promotes the spirit of the Constitution. 2.1.6 South African Textbooks The following South African publications have addressed questions of professional conduct over the years: Du Plessis, Lourens M. “Die professionele gedrag van die Juris” LAWSA, vol. 14, “Attorneys, Notaries and Conveyancers” by H F Mellet, 256 – 433 PROFESSIONAL LEGAL ETHICS © LSSA 20  Lewis, E A L, “Legal Ethics” Randell and Bax, “The South African Attorneys Handbook” Van Blommestein, “Professional practice for Attorneys” Midgley, J R: “Lawyers’ Professional Liability” Lewis & Kyrou’s Handy Hints on Legal Practice: (2nd South African ed LexisNexis 2011) Mahomed et al “Clinical Law in South Africa” 3rd ed – Chapter 3 The monthly attorneys’ journal De Rebus (available online from 2012) P Ellis and A T Lamey ‘The South African Legal Practitioner’ A commentary on the Legal Practice Act Only the last three publications referred to are readily available. The others are out of print and can at best be found in the libraries of the provincial law societies or the South African Archives. 2.1.7 Foreign Influences The International Bar Association The International Code of Ethics The International Bar Association’s general principles of ethics The American Bar Association The English Law Society The Law Society: Solicitors’ Practice Rules and Codes The Law Society: The Professional Conduct of Solicitors The Law, Practice & Conduct for Solicitors (by Alan Paterson, Director of the Centre for Professional Legal Studies at Strathclyde University, and Bruce Ritchie, Director of Professional Practice in the Law Society of Scotland) The codes of ethics and/or professional conduct rules applicable in a variety of countries throughout the world to which practitioners may have to refer in the case of conducting cross-border practices. 3. THE STRUCTURE OF THE ORGANISED PROFESSION 3.1 LEGAL PRACTICE ACT NO 28 OF 2014 (LPA) 3.1.1 Purpose of the LPA The LPA provides a legislative framework for the transformation and restructuring of the legal profession in line with constitutional imperatives so as to facilitate and enhance an independent legal profession that broadly reflects the diversity and demographics of the Republic. The LPA provides for the establishment, powers and functions of a single South African Legal Practice Council and Provincial Councils in order to regulate the affairs of legal practitioners and to set norms and standards. PROFESSIONAL LEGAL ETHICS © LSSA 21  The LPA provides for the admission and enrolment of legal practitioners. The LPA regulates the professional conduct of legal practitioners so as to ensure accountable conduct. The LPA provides for the establishment of an Office of a Legal Services Ombud and for the appointment, powers and functions of a Legal Services Ombud. The LPA provides for a Legal Practitioners’ Fidelity Fund and a Board of Control for the Fidelity Fund. The LPA provides for the establishment, powers and functions of a National Forum on the Legal Profession and it provides for matters connected therewith. 3.1.2 Main Provisions & Implications of the LPA The legal profession is no longer self-regulating and the LPC is the regulatory authority which reports to the Minister of Justice. 9 Provincial Councils have delegated functions. 6 Liaison Committees are situated at the High Court’s where there are no Provincial Councils. Bar Councils, the LSSA and other voluntary bodies undertake legal training subject to accreditation by the LPC and all disciplinary functions are done by the LPC. The LPA contains effective and transparent procedures for resolution of complaints. The LPA makes provision for advocates who can elect to accept briefs directly from the public, but they must have trust accounts, subject to rules and regulations under the authority of the LPC (see the conversion requirements on the LSSA website: https://www.lssa.org.za/frequently-asked-questions/ All attorneys and advocates are authorised to enrol as legal practitioners under the LPA. The Fidelity Fund Board’s has powers to inspect books of account. The Fidelity Fund Board’s has powers to levy contributions. Fee tariffs to be prescribed in the Regulations (s 35)1. Compulsory fee estimate notice to the Client (s 35) 1. New funding regime which means that practitioners will pay higher levies. The Legal Practice Council (LPC) will have an emphasises on regulation and on matters of public interest. The Act makes provision for mandatory continued practice development and mandatory community service. Legal practitioners will be able to practise and have right of appearance in any court in the country. 1 See figure 1 PROFESSIONAL LEGAL ETHICS © LSSA 22  Conversions between practising as attorney and advocate is allowed. Figure 1 The South African Law Reform Commission (SALRC) has been mandated in terms of Sections 35(4) and 35(5) of the Legal Practice Act to undertake an investigation into legal fees, including access to justice and other interventions. During 2019, the SALRC requested submissions on its Issue Paper 36, which was the first document published during the investigation. The LSSA made extensive submissions. After having considered the various responses, the SALRC published Discussion Paper 150, which contains several preliminary recommendations. The Discussion Paper is extensive but contains an executive summary at pages xx to lxv. The SALRC essentially offers three options for the regulation of attorney-and- client fees. The first option entails that the litigious (party-and-party) tariff determined by the Rules Board for Courts of Law (the Rules Board) for use in the Magistrates’ Courts be extended as a basis for determining service-based attorney-and-client fees payable to legal practitioners. This will apply to users of legal services whose total income/turnover per annum is below the maximum threshold to be determined by the Minister of Justice and Correctional Services (the Minister) by notice in the Government Gazette. The second option is similar to the first option, but an additional twenty percent surcharge or percentage may be approved by the Minister (acting upon the recommendation of the Rules Board) on the tariff amount to be determined at taxation by the registrars and clerks. The SALRC indicates that the above options are only applicable to litigious matters and will bring about a significant reduction in legal fees for users of legal services in the lower and middle income categories. The third option, which is also applicable to litigious and non-litigious matters, entails the development of service-based attorney-and-client fee guidelines for determining legal fees in respect of all branches of the law. The SALRC recommends that these guidelines be determined by the Legal Practice Council (LPC). In doing so, the LPC must establish a Committee, comprising fit and proper persons drawn from different sectors of society, to determine the fee guidelines. The SALRC further states that “The service-based attorney-and-client fee guidelines may be developed based on the factors enumerated under section 35(2) of the LPA. Fee guidelines will serve as a yardstick to determine a reasonable fee. Parties will be able to deviate from the fee guidelines in justifiable circumstances.” With reference to party-and-party fees, the SALRC submits that there is no need for another mechanism to be established. The Rules Board offers an appropriate existing mechanism for determining legal fees and tariffs payable to legal practitioners and juristic entities in litigious matters, provided that a consultative process with stakeholders must be adopted. The SALRC’s recommendations are ground-breaking and will significantly change the practice of law in South Africa. 3.1.3 “Legal Practitioner” PROFESSIONAL LEGAL ETHICS © LSSA 23  The Legal Practice Council (LPC) regulates all Legal Practitioners and Candidate Legal Practitioners. A “Legal Practitioner” means an Attorney or Advocate admitted and enrolled in terms of s 24 and s 30. A ‘‘candidate legal practitioner’’ means a person undergoing practical vocational training, either as a candidate attorney or as a pupil; A person who applies for admission, also applies for enrolment on the practising or non-practising roll. Only practising Legal Practitioners are eligible for election onto the Legal Practice Council and Provincial Councils (hereinafter referred to as the PCs) and may vote. Different Legal Practitioners Attorneys Trust Account Referral Advocates Advocates Admitted by the High Admitted by the High Admitted by the High Court (s 24) Court (s 24) Court (s 24) Enrolled by the LPC (s Enrolled by the LPC (s Enrolled by the LPC (s 30) Conveyancers & 30) 30) Notaries (s 26) Appearance: Any court, Appearance: Any court Appearance: Any court but certificate is (s 25) (s 25) required for HC/SCA/CC (s 25) Briefed by the public, Briefed by the public & Briefed by Attorneys & must have a trust Justice Centres, must Justice Centres (s account & FF certificate have a trust account & 34(2)(a)) & comply with Chapter 7 FF certificate & comply (s 34(1)) with Chapter 7 (s 34(2)(b)) Practise: Practise: Practise: Own account Own account Own account In juristic entity with May not share fees May not share fees other Attorneys Law Clinics Law Clinics Law Clinics LASA LASA LASA State Advocate/ State Advocate State Attorney/ SAHRC SAHRC s 34 (6) SAHRC S 34(6) S 34(5)&(7) Conversion i.t.o. Rules (s Conversion i.t.o. Rules (s Conversion i.t.o. Rules (s 32) 32) 32) Candidates must pay special attention to the current code of conduct for the 3 different types of legal practitioners, as set out in parts III, IV and V of the said code which has been incorporated at the end of this training guide and PROFESSIONAL LEGAL ETHICS © LSSA 24  delegates must be prepared to address this code under examination circumstances. 3.1.4 Regulatory Measures The LPA as amended. The Regulations in terms of s 94 and s 109 were agreed between the National Forum (hereinafter referred to as the NF) and the Minister. The Rules in terms of s 95(1) and (3), finalised by the NF on 7 July 2018; and The Code of Conduct in terms of s 97(1)(b) that came into effect 29 March 2019. 3.1.5 National Forum Transfer agreements were concluded with the 4 statutory Law Societies, providing for the transfer of assets, right, liabilities, obligations and staff to the LPC and the PCs. The parties agreed that R50 million of the Law Societies’ money will be transferred to the LSSA, which will continue to exist as a representative organisation. The transitional arrangements Committee (TAC) of the NF had to ensure a smooth transfer of regulatory functions of the existing Law Societies and Advocates’ structures to the new LPC and the 9 PCs. The TAC consisted of representatives of the NF, the Law Societies and the Advocates. 3.1.6 Legal Practice Council The Legal Practice Council (LPC) consists of: 10 attorneys 6 advocates 2 teachers of Law 3 persons designated by the Minister. 1 person designated by Legal Aid SA Person designated by the Legal Practitioners Fidelity Fund 3.1.7 Composition of the Provincial Councils 9 Provincial Council’s (PC’s) situated in: Eastern Cape: Free State Gauteng KwaZulu-Natal Limpopo Mpumalanga Northern Cape North West Western Cape Each PC, except for Gauteng (4 instead of 2 white attorneys) consists of: PROFESSIONAL LEGAL ETHICS © LSSA 25  4 black attorneys 2 white attorneys 2 black advocates 2 white advocates 50% of the Legal Practitioners serving on any PC must be female and 50% male. 3.1.8 Functions of the Provincial Councils (Regulation 5) The different functions of the PCs (these are delegated functions as received from the LPC) are: To establish committees (s 23(6)); To enrol admitted Legal Practitioners (s 30); To maintain the roll of Legal Practitioners, Notaries and Conveyancers in its area of jurisdiction (s 30(3)); To receive and process applications for admission (s 24(2)); To register and administer Practical Vocational Training contracts (Regulations 6 &7); To process applications by Attorneys for certificates to appear in HC etc (s 25(4)); To process applications for Candidate Attorneys for certificates for the right of appearance (s 25(5)); To grant exemptions to Candidate Legal Practitioners from performing community service (s 29(3)); To retain copies of court orders relating to Legal Practitioners (s 30(5)); To suspend the enrolment of a Legal Practitioner (s 31); To process applications for conversion of enrolment by Legal Practitioners (s 32); To approve applications for the establishment of law clinics (s 34(8)); To establish investigating and disciplinary committees (s 37); Other disciplinary and administrative functions (Chapter 4); Lodging of application to the High Court to suspend a Legal Practitioner (s 43); To process applications for Fidelity Fund certificates (ss 85 and 85(6)); To inspect accounting records of trust account practices (s 87(2)); Lodging of applications to the High Court to prohibit Legal Practitioners from operating trust accounts and to appoint a curator bonis to administer a such a trust account (s 89); Lodging of applications to the High Court for an order appointing a curator bonis to administer a trust account i.t.o s 90; To report to the LPC on the performance of its functions, as and when required. PROFESSIONAL LEGAL ETHICS © LSSA 26 3.2 CONVERSION OF ENROLMENT Attorney to Advocate Must lodge the prescribed form and pay prescribed fee Must decide if he/she will have a trust account Must have right of appearance in the High Court Must have had some training in advocacy as a pupil The LPC may set other requirements Alves and others v Legal Practice Council JOL 45259 (WCC) In Alves and others v Legal Practice Council JOL 45259 (WCC) the applicants wanted to have their names removed from the roll of attorneys and be enrolled as advocates. The central issue for determination was whether the applicants, all being admitted legal practitioners and enrolled as attorneys, were entitled to rely on s 115 of the Legal Practice Act 28 of 2014 to be enrolled by the Legal Practice Council as advocates of the High Court. All of them had successfully undertaken practical training as candidate attorneys, passed board examinations, and been found to be fit and proper by the High Court. Opposing the applications, the respondent submitted that the conversion mechanism in s 32 of the Act should be utilised by the applicants and not s 115, because s 115 only applies to people or applicants who have never been admitted as legal practitioners before. Held that the applicants could not apply for conversion under s 32 because they were required to undergo a specialised training course in advocacy and there was no course available in Cape Town. Secondly, not all of the applicants had rights of appearance in the High Court as required by s 25(3). Section 115 should be interpreted to mean that persons who qualified for admission and enrolment under the old Act prior to 1 November 2018 are entitled to be admitted and enrolled as advocates. In that regard, the court stated that it is imperative to interpret legislation in a sensible, business-like manner and to consider both the text and the context. The court granted an order admitting the applicants as legal practitioners and ordering the respondent to enrol them as advocates. Advocate to Attorney Must lodge the prescribed form and pay fee Must have passed the same accounting exam as Candidate Legal Practitioners Must have attended a legal practice management course Must have been enrolled for 12 months (or 3 years if no pupillage / training course attended approved by the GCB) Practising to Non-Practising Legal Practitioner Must lodge the prescribed form and pay fee Must lodge a certificate by the Registrar that he/she has no proceedings pending against a Legal Practitioner PROFESSIONAL LEGAL ETHICS © LSSA 27  Non-Practising to Practising Legal Practitioner Must lodge the prescribed form and pay fee Must notify the FF & obtain an FF if applicable. Referral advocate to advocate with trust account Must lodge the prescribed form and pay fee Must have knowledge of accounting necessary for keeping accounting records Must have attended a legal practice management course Advocate with trust account to referral advocate Must lodge the prescribed form and pay fee 3.3 REQUIREMENTS FOR ADMISSION AS AN ATTORNEY LLB degree Attend the Practical Vocational Training (this may include community service) Attend a Practice Management Course for Attorneys and Trust Account Advocates Write the Competency-based Examination 3.4 FEES When receiving instructions from a new client, the Attorney or Trust Account Advocate must provide the client with a written cost estimate notice of: Fees, disbursements and other costs; The Legal Practitioner’s hourly rate; The client’s right to negotiate fees; The work to be done in respect of each step of the litigation process; The likelihood of engaging an Advocate, the fees payable and the costs recovery regime; and The legal and financial consequences of withdrawal from litigation. The Attorney or Trust Account Advocate must also verbally explain every aspect of the cost estimate notice. The Client must sign such a notice. The Client can on his/her own initiative agree with the Legal Practitioner in writing, to pay fees in excess of or below tariff. Failure by the Legal Practitioner to comply, constitutes misconduct and the Client is not obliged to pay until the LPC has reviewed the matter. The Contingency Fees Act 1997 still applies. 3.5 TRUST ACCOUNTS & TRUST MONEY All practising Attorneys and Trust Account Advocates must have Fidelity Fund certificates. This is not applicable to Legal Practitioners employed by Legal Aid South Africa. Referral Advocates may not hold another person’s money in the course of their practices. Legal Practitioners PROFESSIONAL LEGAL ETHICS © LSSA 28  employed by the State or SAHRC may not hold another person’s money except in the course of their employment, on behalf of their employer. Trust Accounts must be kept with a bank with which the Legal Practitioners Fidelity Fund has an arrangement in terms of s 63(1)(g): − ABSA − FNB − Grindrod Bank − HBZ Bank − Investec Bank − Mercantile Bank − Nedbank − Standard Bank Legal Practitioners must comply with arrangements between the LPFF and the banks. A Legal Practitioner may on instruction, invest trust money in a separate interest-bearing account, but 5% of the interest must be paid to the LPFF (the old s 78(2A) under the Attorneys Act is now s 86(4) of the LPA. The Bank will issue a IT3b tax certificate to the Legal Practitioner for the 95% interest earned and an IT3b certificate to the LPFF for the 5% interest. 3.6 CODE OF CONDUCT Applicable rules for the Code of Conduct for legal practitioners, candidate legal practitioners and juristic entities published under s 97(1)(b) and made under the authority of s 36(1) of the LPA 38 of 2014. 3.7 DRESS IN COURT & STATUS Attorneys: Robe in the Superior and Lower Courts, as in Superior Courts. Attorneys with senior status: the LPC will prescribe the procedure for according senior status. Advocates: Robe in Superior and Lower Courts, as in Superior Courts. Silk: the LPC will prescribe the procedure. 3.8 LEGAL PRACTITIONERS FIDELITY FUND The following is a brief exposition of the background to the establishment of the Legal Practitioners Fidelity Fund (the Fund) and the environment within which it functions. 3.10.1 Historical Background and Principal Purpose for which the Fund was established The Fund was established in 1942 pursuant to the promulgation of the Attorney’s Admission Amendment and Legal Practitioners’ Fidelity Fund Act, No 19 of 1941. This legislation was later superseded by the Attorneys Act 1979 (“the Act”) in order to consolidate various laws relating to the admission and practice of attorneys, law societies established in respect PROFESSIONAL LEGAL ETHICS © LSSA 29  of the profession and, importantly, to provide for the continued existence of the Fund. The principal purpose of the Fund, as set out in s 26 of the Act, is, to protect members of the public against loss consequent upon the theft of money or property entrusted to an attorney in the course of his or her practice as such. 3.10.2 Interdependence between the Fund and the Provincial Council The relationship and close interaction between the Fund and the profession, should be seen as one of close interdependence. This close relationship since the inception of the Fund, is probably due to fact that in the early years, the Fund’s capital was wholly contributed by attorneys in practice. Attorneys acted with great sensitivity in building up and preserving the Fund’s asset base. In some respects, the emphasis changed in later years after contributions, apart from nominal initial contributions still made by practitioners who enter practice for their own account or in partnership for the first time, were suspended in 1969. In effect the change came about following the promulgation of enabling legislation in 1964, in terms of which practitioners were permitted to invest for the benefit of the Fund trust money not immediately required for any purpose. The Fund accordingly concluded an agreement with the former regulators in 1964 in terms of which they would act as collecting agents for the Fund, and for which they receive remuneration from the Fund by way of an agency fee. Moreover, the Fund is solely dependent upon the LPC to responsibly regulate the conduct of practitioners, and for the maintenance of professional ethics, discipline and financial accountability. This is of immense importance to the Fund in the preservation of its asset base. Not only is the Fund