LJU4802 Professional Ethics Tutorial Letter 501/3/2024 PDF

LJU4802/501/3/2024 Tutorial Letter 501/3/2024 LJU4802 Professional Ethics Department of Jurisprudence PLEASE NOTE: You do not have a formal study guide for LJU4802. Your study material is prese...

LJU4802/501/3/2024 Tutorial Letter 501/3/2024 LJU4802 Professional Ethics Department of Jurisprudence PLEASE NOTE: You do not have a formal study guide for LJU4802. Your study material is presented in this Tutorial Letter 501. BARCODE Open Rubric  CONTENTS WELCOME BACKGROUND LEARNING UNIT 1: The Legal Profession LEARNING UNIT 2: Philosophical Approaches to Ethics LEARNING UNIT 3: The South African Legal Profession LEARNING UNIT 4: Role Morality LEARNING UNIT 5: Examples of Situations Open for Unethical Conduct 2  LJU4802/501/3/2024 WELCOME Dear Students, Welcome to this module, Professional Ethics (LJU4802), which is offered by the Department of Jurisprudence. Please note that you do not have a formal study guide for LJU4802. The study material is presented in this Tutorial Letter 501. LJU4802 is a compulsory module for LLB students and deals essentially with the ethics of lawyers as professionals. In this module we will therefore mainly discuss “legal ethics” as a manifestation of professional ethics which, in turn, is a branch of general ethics. Although universities normally go to great lengths to ensure that their LLB students are equipped with the required levels of expertise and skill, the formal training they give does little to prepare students for the moral dilemmas they will have to deal with in the legal profession. This module is therefore aimed at showing you the necessity of an own moral character and helping you to develop a moral framework as a lawyer. We wish you to become more than just a competent and decent lawyer. We want you to aspire to higher ethical values and to develop the kind of character found in exceptional members of the profession. In short, we hope that this module will inspire you to become a more caring lawyer with a highly developed moral sense. To everyone who proposes to have a good career, moral philosophy is indispensable. ~ Cicero, De Oficiis, 44 BC We trust that you will enjoy the module! Kind regards, Your Lecturers BACKGROUND As you proceed through this study guide, you will come across ideas and explanations. Some will challenge you and others will enjoy your support. After all, exposure to different perspectives is what makes learning such an adventure. It teaches you to become critical and to consolidate and appreciate various perspectives. You will also be required to engage actively with ethical issues in legal practice. It is crucial that as you work systematically through the module, you become more and more able to transfer the skills and knowledge you acquire in this module to everyday life and your profession. We shall indicate in every learning unit what you should be able to do after you have worked your way through that particular unit. You will find the objectives of each unit below the title of the unit. However, the most important general objective for us is that you will come to appreciate the need to develop a more ethically conscious profession. Legal ethics is a branch of ethics and ethics as such studies moral discourse, that is, it studies and presents arguments concerning talk about morals and moral behaviour. What does this mean? 3 THE NATURE OF MORAL DISCOURSE In everyday life we act in a variety of ways to express our praise or condemnation. For example, in a society where taking care of the elderly is highly valued, a school boy assists an elderly lady to cross a busy road. Our approval of his behaviour can be shown in a number of ways. One can commend him by saying: “Well done, you can be proud of what you did!” or by giving him the thumbs-up, a high-five or a pat on the shoulder. If you reflect on the nature of the incident, a judgment of a general nature can be made. For example: “He did the right thing to help the old lady”, or even “It is clear that he is a boy of good moral standing”. We use terms of a certain nature: “right thing” and “moral standing”. This can spark off an ethical discussion. For example, we may ask: Is this really a case of moral obligation, or of good etiquette or even of tradition? Does “right” in this context express moral approval or only satisfaction that a social rule was obeyed? Or is it perhaps approval of the boy, because he proved himself a worthy member of a particular cultural group? In the same vein we may question whether his good deed is any indication of the boy’s moral standing. In other words, this event provides the basis for a further discussion of what makes a situation a moral situation. On what then is moral approval or condemnation based? Is a moral judgment universal by nature? In analysing this, we apply ethics. In short, ethics studies moral talk (discourse) and as such ethical talk is reflective talk, that is, talk about what goes on in the world: The boy helping the old lady, we giving him the thumbs-up, calling it a “right act, in what sense is it “right”? Admittedly, he deserves praise because he followed the rules. It is, after all, in the interest of society that the elderly be cared for. He is indeed a virtuous, good person. From the preceding discussion it should be clear that moral talk has to be distinguished from factual talk. In a court case, we may hear the following testimony: “Jabu had a gun in his right hand which pointed at Ntombi. The next moment John pulled the trigger. Then I saw Ntombi grabbing her breast and falling to the ground.” These are statements of fact; they convey what the witness saw – they were real events which happened in his experience. They have to be verified against other witnesses’ accounts of what they saw and heard. In the end, the judge will pronounce on the truth of it. Therefore, factual statements are about things and events in the world. They are open for testing. If they pass the relevant tests, they are true; if they don’tdo not, they are ignored. In contrast to factual statements, we have moral statements. For example: “Mzu’s wife ought not to have cheated on him with Mkize”; “Mkize ought not to have told stories about his fling with Mzu’s wife”; “It was wrong of Mzu to believe untested stories”; “No one has the right to end another’s life because of anger”. These utterances (and the same apply to actions conveying praise or blame) express the attitudes of people and not facts in the real world. But we can and do talk about these attitudes and judgements. We constantly discuss them, try to justify them and convince others to change their attitudes. How is this possible? With a discussion, we do not mean a noisy argument or altercation, but a rational discussion in which the participants allow each other to put forward their case. The participants are open for persuasion, are prepared to explain what they mean, to back up their claims and to consider and answer to criticism. Three questions arise against this background: (a) What are the conditions for constructive ethical thinking and/or debate? (b) How should your discussion proceed to make your position acceptable? (c) What is the task of the ethicist? What does he or she hope to achieve? 4  LJU4802/501/3/2024 As this is not an ethics course, we cannot explore these questions fully. The following discussion will provide some pointers that will help to make a discussion of legal ethics more meaningful. We shall proceed in a question-and-answer way. Play along, answer the questions and read the discussions because these opening considerations will make it easier to follow the rest. The underlined sections are tasks for you to complete before proceeding. Stop there. Think about the question, pen down an answer and only then proceed. Let us start. Think about abortion. Abortion is legal in South Africa; in other words, people think it is right; it should be allowed. But there are people who believe it should NOT be allowed because abortion is wrong. Now, stop and distinguish between factual and moral questions or claims about abortion. Give examples. Factual questions and claims have to do with the state of affairs, for example, the people who may perform abortions; their training and competence; the risks of an abortion; statistics about abortions, the reasons for undergoing an abortion, and so forth. The moral questions, on the other hand, deal with the attitudes about abortion, such as that it should be banned because it is a sin and the same as taking someone’s life. To focus on the moral discussion – What do you think? Is abortion right or wrong? Encircle your answer: RIGHT/ WRONG. Say you are all against abortion whenever it is discussed. But when your teenage daughter falls pregnant in her grade 12 year, you do not hesitate to find out where abortions are performed in your city or town. What is the moral importance of the finding out what the possibilities of abortion are? The act of finding out of where abortions are performed translates into “Abortion is a good thing”. Although we deal mostly with language acts, in other words, what people say, actions also speak and reveal a certain attitude. As you will see, in this module this is all-important. In this case, you will be branded as a double-talker, which, in turn, is a moral judgment on you. Do you think it is possible to reach a final, absolute answer so that it will be possible to state: “Abortion is right and that is final!”? If so, how is this possible? If no answer is final, what is the use of moral debate and how is it possible? Because we are dealing with attitudes, you should understand that attitudes are the result of culture, traditions, education, friends, religion, and the like. We therefore have to realise that final answers are out of reach. Perhaps you think that legislation is the answer: Because abortion is legal, it is right. It is not true. Although abortion is legal in South Africa, most churches condemn it. They advise their members to criticise abortion as morally wrong. What is the use of moral debate? People live together and have to get along. Certain decisions have to be taken to make it possible. Therefore, morals and moral attitudes need to be discussed. Let us look at this issue once again. Because of the high rate of unwanted pregnancies in our society, some people decided that something needs to be done and so a public debate was started. Arguments for and against abortion were raised, criticised, and improved. People changed their attitude because they began to see the matter in a different light. Eventually, Parliament debated the issue and, because the majority was in favour of abortion, it was 5 legalised and the rules for performing an abortion were laid down. Nonetheless, the matter is still open for discussion. Those against it continue to protest and it is possible, as with all matters of this kind, that the objectors may someday change the law. This is what happens in a well-ordered, democratic society. How is moral debate possible? In order to start discussing this issue, turn back to your judgement on abortion where you chose RIGHT/WRONG. Say a friend differs from you, what do you expect his next argument to be? If he has a real discussion in mind, he will ask you why you think abortion is right/ wrong or he will give reasons why he disagrees. Is this friend obliged to accept any of the reasons you give? There are good reasons (which does not mean they have to be accepted) and bad reasons. (You might remember from your school days that teachers never accepted any reason you gave when you were caught out.) Give three reasons why abortion is wrong which you regard as bad and indicate why you think them bad. Your reasons might be something like: (i) “It’s against my religion.” (ii) “The mayor of my town told me so.” (iii) “The mere thought of it makes me nauseous.” Bad reasons are discussion blockers. Let us look at each of the reasons individually: Reason (i) leaves nothing to discuss. Religious beliefs do not support the statement; it gives some information about you as a person but is irrelevant. The only way to proceed with the discussion will be to change the issue slightly, if possible, and get information about your faith and the reasons for your opinion. This might, in the end, lead back to the original topic. Reasons (ii) and (iii) are also irrelevant but in different ways. Reason (ii) relies on authority; in this case not an authority on the topic of abortion but on the views of someone who is in authority. His opinion is not a reason why abortion is wrong. In (iii) the reaction is a reference to your feelings, but people may feel as they like. Apart from being unverifiable, feelings cannot support or refute an argument. Feelings are irrelevant here. Although they reveal something about your reaction to the issue of abortion, they do not provide any reason for why abortion is wrong. Let us now look at the other side. Give three good reasons in support of abortion. (i) “It gives women a say over their bodies.” (ii) “There are too many people on earth.” (iii) “It is a necessary outcome of our human rights culture.” Now let us analyse each of the reasons: Reason (i) is good because it lends support to the claim. However, it will not mean the end of the discussion because this claim remains controversial. At least it keeps the discussion open. Reason (ii) is valid but problematic because it introduces a new theme which takes the discussion in a different direction. Nevertheless, is not irrelevant and keeps the discussion 6  LJU4802/501/3/2024 open. Reason (iii) puts the issue in a wider context. This argument may well mean the end of the discussion because it links the issue with the Constitution of South Africa which is the supreme law. There are still some outstanding issues and the discussion remains open even at this high level of justification. Against the above background we can now return to our earlier question of how moral discussion should be conducted. The short answer is, as we saw in the foregoing, by way of rational argumentation, by having claims which have to be substantiated. Participants may then react in different ways to these claims. The discussion may go like this: “Abortion is wrong because it involves the destruction of life which is sacred.” “What do you mean with life is sacred? Does it mean we are not allowed to kill flies or mosquitoes?” The answer may now be that the premise doesn’t actually support the claim. It might also be necessary to tackle the side issue and then later on show its effect on the central theme. And so the discussion develops. The ideal is some kind of consensus or at least a workable compromise, but the outcome may also be that we differ but tolerate each other – the matter remains open. In conclusion, these background remarks are clearly not moral talk; we did not discuss the moral problem of abortion. We talked about moral discussions on abortion. We tried to clarify some of the aspects of that part of our lives which has to do with right and wrong. This is ethical talk. Ethics is a consideration of our behaviour on ordinary days. Ethicists try to find general patterns or conditions for the application of right and wrong. They build moral systems which have to answer different questions about moral judgments. In this study guide you will learn about some of these systems – not as final answers to a lawyer’s moral dilemmas but to guide you to get clarity about real problems and to provide you with insights to work out your own answer which you should be able to defend in a morally acceptable way. It should be clear that legal ethics is nothing but a specialised branch of ethics. Legal practice has to do with morality both with reference to what it works with and with the way in which it operates. Lawyers are not mainly concerned with ethics, but they cannot avoid it. To whet your appetite, consider the following: In terms of the prescribed fees that an attorney may charge for services rendered, an attorney may charge for the actual cost of a telephone call plus R109 for every five minutes of the call, or part thereof. Imagine that you are an attorney making a phone call on behalf of your client. The call took you less than a minute because the person you were looking for was not available. Suppose that Telkom will charge you about R3 for the call. What will you charge your client – only the actual cost of R3 or also the additional R109 that you may ask in terms of the prescribed fees? Justify your answer in an ethically acceptable way. With this in mind, we can now start with what professional ethics is really all about. 7  LEARNING UNIT 1 The Legal Profession ASSESSMENT CRITERIA After studying this learning unit, you should be able to 1. define the term “legal ethics”; 2. explain the purpose of professional codes; 3. explain criticism against professional codes; 4. explain how a profession differs from an ordinary job; 5. discuss the core values of a good lawyer. Prescribed material Legal Practice Act 28 of 2014 Code of Conduct for Legal Practitioners, Candidate Legal Practitioners and Juristic Entities 1 WHAT IS THE MEANING OF THE TERM “LEGAL ETHICS”? 1.1 “Legal ethics” can be understood in a wide and a narrow sense. In the wide sense, it refers in general to the relationship between law and ethics (or morality). For example: May the law be used to enforce moral views on abortion, homosexuality, prostitution or human cloning? However, in the narrow sense, the term refers to the ethical standards of professional conduct applicable to the field of law (as opposed to the field of medicine, for example, in which case we would speak of “medical ethics” to refer to the professional conduct required of medical practitioners). Legal ethics in the narrow sense therefore deals with the “oughts” of providing legal services: “How ought a legal practitioner to behave in order to be a good, decent and proper legal practitioner?” In legal practice the term “legal ethics” is understandably generally used in its narrow sense.1 We shall follow the general and established usage of the term “legal ethics” in this module, which means that the subject matter will be restricted to the professional conduct expected of legal practitioners in South Africa. The Legal Practice Act 28 of 2014 came into full effect on 1 November 2018. The Act repeals the Attorneys Act 53 of 1979 and the Admission of Advocates Act 79 of 1974 in their 1 See, for example, Lewis EAL Legal Ethics: A Guide to Professional Conduct for South African Attorneys (1982). 8  LJU4802/501/3/2024 totality (see section 119 of the Act and the Schedule at the end of the Act). Therefore, the Legal Practice Act is applicable to all legal practitioners, thus to both attorneys and advocates, and to all candidate legal practitioners. Section 1 of the Act (definitions clause) defines “legal practitioners” and “candidate legal practitioners” as follows: Legal practitioner means an admitted and enrolled advocate or attorney. Candidate legal practitioner means a person undergoing practical vocational training, either as a candidate attorney or as a pupil. One of the purposes of the Legal Practice Act is to regulate the professional conduct of legal practitioners and the accountability of the legal profession to the public. In terms of section 4 of the Act the Legal Practice Council is a single national regulatory body that regulates the affairs of all legal practitioners (thus, both attorneys and advocates) and candidate legal practitioners. The Legal Practice Council must, inter alia, set norms and standards for all legal practitioners. In terms of section 97(1)(b) of the Legal Practice Act, the Code of Conduct for Legal Practitioners and Juristic Entities were published in the Government Gazette, and it is now in force. This Code sets certain ethical standards that apply to all legal practitioners. NOTE: We will deal in more detail with some of the contents of the Legal Practice Act and the Code of Conduct in Learning Units 3 and 5. 2 PROFESSIONAL CODES Comprehensive codes of legal ethics were adopted in an attempt to maintain the ethical basis of the legal profession. In general, a professional code of ethics suggests a compilation of ethical values to provide practitioners in the legal profession with a framework for the ethical practice of law. A code of legal ethics generally seeks, among other things, to: protect the professional nature of legal services by stressing the obligation of professionals to serve justice and the public correct the imbalance in the relationship between the professional and the client maintain public confidence protect the public against improper conduct or incompetence by prescribing and guaranteeing the standards of skill, learning and conduct required provide practitioners and newcomers with broad parameters for making morally responsible choices in testing situations ensure fair competition between legal practitioners discipline unprofessional behaviour 9 3 CRITICISM OF PROFESSIONAL CODES 3.1 “Insider” criticism Practitioners are suspicious of codes of ethics and this suspicion concerns two different aspects, namely (i) practical concerns and (ii) theoretical concerns. (i) Practical concerns Professional codes are not always enforced by regulatory bodies and those who transgress them are not always dealt with effectively. Since many practitioners feel that the codes are not properly enforced, they argue that the profession might as well abandon them, or replace them with codes of business ethics. Others are afraid of upholding ethical values and sticking to the rules when their colleagues are not. They fear that by trying to encourage their clients to do the right thing, these clients may go to somebody else who is willing to carry out their wishes. (ii) Theoretical concerns The very idea that the practice of law is a profession (and not merely a job in which bureaucratic tasks associated with a business is executed) counters the idea that legal be reduced to the “rules of ‘professional conduct’”. One justification for the self-regulation of the profession is that the practice of law requires complex professional judgments, the reasonableness of which can be judged only by fellow professionals. Self-regulation presumes that the conduct of a practitioner will not be judged against a code, but by colleagues who exhibit those virtues inherent in morally good practitioners. The formalistic idea that legal ethics is no more than the compliance with a legal code makes, in our view, a mockery of this justification, reduces law to another business enterprise, and exposes the continued existence of the law and bar societies as no more than agencies created to protect vested interests. 3.2 “Outsider” criticism Outsiders (the public) feel that they have no access to a simplified, easily understandable professional code, and hence do not know what conduct is regarded as unethical or dishonest. They are, therefore, not able to lay complaints which may be investigated by enforcing agencies (the various law societies or bar councils). Some ethical rules are seen as protecting members of the profession against the public or serving only the interests of members of the legal profession (eg the rules which create barriers against competition from newcomers to the profession). Nor are the rules regarded as having universal or timeless value. Rules sometimes change as times change. For example, the rule that practitioners who write articles may not be identified in the press with reference to their firms (which could be considered a form of touting) no longer applies. The public furthermore feels that since complaints are handled by colleagues of the accused in the legal profession, the latter will be protected against accusations from the public. Practitioners are also reluctant to report colleagues to the enforcing agencies and are often unwilling to testify against them during hearings. If practitioners turn a blind eye to what their colleagues do, there is no way in which the profession may be disciplined. The legal profession is consequently sometimes regarded as “a conspiracy against the laity” or as an “unusually effective monopoly”. ACTIVITY 1 Now that you have read a code of conduct that is specifically aimed at the legal profession, do you think that the arguments raised by members of the legal profession in their criticism of professional codes are valid? 10  LJU4802/501/3/2024 FEEDBACK In answering this question, you had to refer to the concerns with professional codes as set out here above and evaluate whether these concerns are valid in view of the contents of the Code of Conduct. 4 WHAT IS A PROFESSION? The word “profession” is derived from the Latin professio which means “a public statement” or “promise”. From this may be inferred that a legal professional (whether an attorney, advocate, judge, magistrate, public prosecutor or legal adviser) should be worthy of public trust and should carry out his or her professional duties with public-spiritedness and the highest standards of ethical conduct. Although members of professions are paid for their services and should manage their practices on sound business principles, the professions may be distinguished from other jobs, businesses or trades, by virtue of the following characteristics: Professionals are required to have specialised intellectual knowledge and skills before they will be granted access to their chosen profession. This knowledge, which is not easily accessible to the lay person, puts the professional in a position of authority vis-à-vis the client. The client has no other option but to trust the professional and should therefore be able to rely on the latter’s integrity. Professionals are expected to have a commitment to promoting the basic good of society. In the case of the legal profession, the basic good is justice. Professionals are expected to have a commitment to serving the public in matters related to their particular field. Professionals enjoy relative autonomy in the execution of their duties. They use their discretion in the execution of their duties and do not blindly accede to their clients or other authorities. Professionals should have a willingness to accept personal responsibility for their actions and for maintaining public confidence in their particular profession. Professionals share a sense of common identity and an established moral community. Professionals are self-disciplined and abide by a code of legal ethics based upon what the best thinkers in their particular profession regard as proper conduct for a member of that profession. The above standards of professional conduct are enforced by the profession itself or by the courts, taking into account the views of the controlling body of the particular profession. To regard lawyers as no more than businesspersons would mean that the idea of the law and the objectives of justice, such as the fair and equal distribution of privileges and responsibilities relating to property, liberty and life, would be thwarted. Only the most profitable cases would then be accepted by practitioners, and only the rights and privileges of those able to pay the high fees of legal services would be protected. Justice would be denied to those who cannot afford to pay for it. Consequently, public trust in the legal profession and the existing socio- political dispensation would be undermined if justice were no longer served. 11 5 CORE VALUES IN THE MAKE-UP OF “THE GOOD LAWYER” Values are, in fact, ideals which we strive to achieve; in other words, a good we aspire to. The values we are going to discuss must be seen in this light; they are aspirational values. Also, we cannot (cannot even hope to) compile and discuss a complete set of these values. The idea of the morally good or virtuous lawyer is in itself an aspirational value. All good lawyers need not look the same in terms of values and value strength. We can expect a core of values in all of them but we must allow for personal differences. We will discuss only three core values: honesty and trustworthiness, good judgment and objectivity. These should give you an idea of the values (virtues) we have in mind, what they entail, and how they are integrated into the lives of lawyers. 5.1 Honesty and trustworthiness In acting on behalf of the client, you have the obligation to be honest to the client, to the court, to other lawyers, and to third parties and society in general. To be honest is to be willing to disclose not only a part of but the whole truth you know about a particular situation. Withholding some information, even for a good reason, does not measure up to the requirement of full disclosure. You can avoid lying by keeping silent, but in doing so, you fail to be candid. Consequently, you may not claim to have acted honestly where you deliberately avoided making a full disclosure. Furthermore, to argue that since professionals lie not in their own interests but in the interests of their clients and that it, therefore, does not amount to dishonesty, is problematic. In our opinion, to be an honest lawyer means to be ready and willing to make a full disclosure at all times. An exception to this is your obligation to protect the privacy of your client. The professional privilege of a client’s communications is a legal doctrine which provides that professionals cannot be required to reveal client confidences in a court of law. Underlying this doctrine is the notion that clients would not be able to trust professionals who have violated the confidentiality of their communications. In order to be trustworthy and honest it is important for you as a legal practitioner to foresee and avoid a situation in which there is a conflict of interests. This may arise, for example, where you have a financial interest in the subject matter of a case you conduct. The point, though, is that you are in the first place under no obligation to accept a client’s mandate. Therefore, it is your choice whether or not to abide by the demands of trustworthiness and honesty in specific situations. There is an essential connection between honesty and truthfulness. To be honest is to be truthful. The obligation to be trustworthy and honest permeates all areas of your relationship with others. This includes your relationship with other practitioners, the courts and the public. 5.2 Good judgment Recommended reading Kronman AT “Living in the law” 1987 University of Chicago Law Review 835–876 In addition to the above, you as a legal practitioner should have a sense of equity and fairness and be able to act impartially and exercise good judgment. (Equity refers to the application of general law to the individual case in such a way that justice may prevail). You should be able to judge matters objectively, carefully and deliberately. You should possess the decision-making skills necessary to arrive at equitable results. 12  LJU4802/501/3/2024 Kronman2 asks the following question: “Why should anyone care about being or becoming a lawyer, or leading the life to which the choice of law as a career confines one?” In answer to this particular question, Kronman proposes that you choose law as a career from among many other careers. You would choose neither the law nor any other career if the choice were immoral or contrary to the moral convictions of your community. For this reason Kronman suggests that it must be assumed that the choice of a legal career is a morally permissible one. Once this point has been established, Kronman focuses on why you would care to choose law as a career and not on what you ought to do once you are a lawyer. Let us now turn to Kronman’s findings: He finds that many people enter the legal profession “because it offers great opportunities for wealth and prestige”. Thus, it is often the quest for money and honour which prompts people to choose the legal profession. An honest admission by those who choose the legal profession as an instrument for the acquisition of wealth and honour may be criticised for being outright selfish. The core of this criticism is that such a lawyer does not really care about the law in the first place. Rather his or her concern for the law is subordinate to using the law as an instrument to acquire those things that he or she values above all, such as a good life or prestige. It should be remembered that lawyers who admit to choosing the legal profession for this reason, do the same as many other people, whether or not they are in the legal profession. This makes such lawyers rather ordinary and less than interesting. In fact, they are in danger of working so hard in the pursuit of wealth and honour that they do not find the time to live the kind of life they had envisaged. They often end up failing to achieve their original objective, which was to use the legal profession as a means or instrument for achieving their specific goals. Another reason why their using the legal profession for selfish ends is problematic is that they run the risk of losing their identity or personality. They would go through the motions of being lawyers simply as required. In that case, their personality would soon begin to suffer because they would be acting out of step with their true identity or personality. Kronman’s argument in this connection is that to practise law well requires not only formal knowledge of the law but certain qualities of mind and temperament as well. “To be a lawyer is to be a person of a particular sort, a person with a distinctive set of character traits as well as an expertise”.3 By choosing the law as a profession, one tends to become a certain kind of person. Do you agree with this sentiment? What then are the character traits Kronman requires for you to be a lawyer and not just a careerist without the soul of a lawyer? Public spiritedness Public-spiritedness means that you choose the legal profession based on your commitment to the public good. Although you may have once considered law as the means to a selfish end, this time you intend to use the law for more than that. In fact, the law is seen as a means or instrument to promote and protect something outside and above yourself, namely the public good. No doubt there are different meanings and views regarding the public good. The important thing is to understand that it is possible and plausible to subscribe to the “public good”. 2 Kronman AT “Living in the law”1987 University of Chicago Law Review 835. 3 Kronman AT “Living in the law” 1987 University of Chicago Law Review 841. 13 Kronman makes the following three points in this regard: ▪ If you do not have a sense of public-spiritedness, you are to some extent a “professional failure”. You are a failure because you are unable to recognise and appreciate that along with your status and profession should come the promotion and protection of the public good in a rather special way. ▪ Some of you may seek more than the general promotion of the public good. You may find fulfilment by becoming involved in politics, for example. This should not be contrary to the pursuit of the public good but is rather a way of working for the public good by placing special emphasis on political engagement. ▪ If you choose the legal profession purely for reasons of public-spiritedness, then you regard law as an instrument for the attainment of some public good. Law will then remain an instrument even though it might not be used for selfish purposes. Thus, the lawyer “who views his career merely as a vehicle for justice or equality or some other public value bears a certain resemblance to the lawyer who regards his career as a means. Both find the point of their professional work in something that lies outside it, and both may be inclined to view their choice of career as an accommodation to external necessity”.4 People are constantly faced with the need to deliberate upon situations and then decide upon what they consider to be an appropriate course of action. Sometimes a decision to act in a particular manner yields the desired result but sometimes it does not. In the former instance, we can speak of the person acting on his or her good judgment whereas in the latter, the person showed poor or bad judgement. Good judgement is considered to be a virtue. Good or bad judgement is not the outcome of following or disregarding the correct and consistent use of a particular theory or drawing or, failing to draw, the only correct inference in specific circumstances. Exercising your judgement, whether good or bad, involves a number of complex and interrelated elements, including deduction and intuition. It has already been stated that deductive reasoning is an indispensable element of forming a particular judgement. But in itself it is not sufficient since not all situations allow for a single conclusion or decision. Intuition is also an indispensable element in forming a particular judgement. Intuition Under intuition Kronman understands “a form of direct insight or apprehension distinct from any species of understanding at which you are able to arrive by reasoning alone.” Intuition does not involve reflection. To have an intuition is simply to see that something is the case, to apprehend its obviousness in the same direct way that you apprehend, for example, the physical shape of the room in which you are at present sitting.5 However, to understand judgement as intuition can be discouraging in the sense that the non-reflective character of intuition means that either you have it or you do not. Intuition is therefore a disposition or talent. It cannot be acquired by some special effort. It is also misleading to understand judgement as being based on intuition only. The problem is that in everyday life people are required to give reasons for their judgement. In this case deductive reasoning assumes an important role. However, if intuition is used either to complement or replace deductive reasoning, it becomes difficult to attach the qualification “good” or “bad” to any judgment. It is therefore misleading to understand judgement as intuition only. Furthermore, if judgement is understood solely as intuition, then it becomes difficult to 4 Kronman AT “Living in the law” 1987 University of Chicago Law Review 844. 5 Kronman AT “Living in the law” 1987 University of Chicago Law Review 847-848. 14  LJU4802/501/3/2024 establish the connection between an individual’s character and intuition. The reasoning behind this is that since intuition is a gift, those without such a gift cannot develop a virtuous character through their own efforts. On what basis then may the legal profession, for example, demand specific character traits under the rubric of a “fit and proper person”? This question points to the need to modify and qualify the assertion that judgement is a form of intuition. Double-relationship and detachment This is what Kronman does next. According to him, judgement demands that we picture or imagine the situation in which we will find ourselves should we take a particular decision. The projected situation is a picture of a double relationship. In the first place, the projected situation involves our relationship with ourselves. In order to make the transition from an imaginary to a real relationship with ourselves we must answer the question: “Can I live with it?” The meaning of this question is incomplete until we understand that the “I” involves both the individual and those in his or her network of relationships. The other people involved in the imagined situation form the second arm of the double relationship. Therefore “I” must take into consideration both my feelings about the projected new situation and the feelings of those with whom he or she will interact. In the words of Kronman, compassion or empathy is a crucial element when making a judgment. To be able to deliberate with empathy towards ourselves and others with whom we have a relationship, it is necessary to assume a separating distance. The “I” in the present situation must be separated or distanced from the future “I” existing only in the imagination. Similarly, the present network of existing relationships must be distanced from the future network of relationships. Kronman uses the word “detachment” to describe this situation. “The person faced with a hard choice must give each alternative its due; he must entertain all the possibilities by feeling for himself what is most attractive in each. But he must do this while withholding his commitment to any”.6 Deliberation In view of the above, Kronman offers his definition of deliberation: Deliberation is neither deduction nor intuition. It is the compassionate survey of alternatives viewed simultaneously from a distance, and those who show excellence in deliberation and whose judgment we value are the men and women best able to meet these conflicting requirements and to endure the often considerable tension between them.7 As Kronman understands it, deliberation culminates in the making of a specific choice. This means, for example, that on the basis of deliberation you may choose either to remain in the present thereby rejecting the imaginary new situation of the future or to do the opposite, that is, reject the present and turn the imaginary new situation of the future into your actual reality. By choosing the one or the other, you are basically answering the question: “Can I live with it?” The answer is very important because it may result either in the enrichment of personal integrity or in personal disintegration and regret. To be able to live with yourself, to show “fellow- feeling” towards yourself through the choices you make, is a mark of good judgment which leaves you pleased and satisfied to live by such a judgment. This is the core of integrity. But choosing what you cannot live with is the mark of bad judgment and leads to the destruction of your integrity, sorrow and remorse. 6 Kronman AT “Living in the law” 1987 University of Chicago Law Review 853. 7 Kronman AT “Living in the law” 1987 University of Chicago Law Review 853. 15 Kronman then proceeds to argue that the above elements of judgment also apply in the sphere of politics. For our purpose, the important point to note is that the legal career is situated and functions in the context of politics. The professional lawyer should therefore possess the above- mentioned qualities of good judgment. It is insufficient simply to know the law well enough to apply it as an instrument in the pursuit of selfish ends. In the political context, justice – be it retributive or distributive – is always an integral part of the public good. It is in this sense that the standard of a “fit and proper person” enjoins the professional lawyer to pursue and preserve the public good in the name of justice. Accordingly, it is a mark of bad judgment to enter the legal profession solely in search of wealth and prestige at the expense of justice and the public good. In this regard, Kronman explains as follows: One of the main responsibilities of a judge is to preserve the community of law, to discover and articulate the conditions under which political fraternity is possible. It is the judge’s direct responsibility to do this; he must attend to the community of law, to its construction and preservation, and cannot simply assume that it will come into existence as the indirect consequence of what he does by means of an invisible mechanism of coordination.... [T]o be a good advocate, then, one must be in the habit of looking at one’s own case from a judicial point of view, and since a judge’s direct concern is with the community of law, an advocate who sees things from the judge’s perspective and attends to his concerns will be careful to frame his own arguments so as to emphasize the congruence between his client’s interests and the interests of the legal community as a whole. It is only when an advocate has acquired the character trait of good judgment that he can be confident in his ability to see the world of legal disputes as a judge would see it and hence to distinguish wise arguments from merely clever ones. Advocates who do not possess this trait of character may be knowledgeable about the law and quick in argument, but their lack of judgment is a liability: it makes them less effective than they otherwise would be.8 5.3 Objectivity Recommended reading Du Plessis LM “The ideal legal practitioner (from an academic angle)” 1981 De Rebus 424–427 Objectivity is closely related to good judgment and also to honesty. It requires that no irrelevant considerations should be brought to bear upon your judgment, which implies not only a keen logical sense but also good preparation so as to know what is needed. In this regard your emotions should definitely be blocked out. You should not be influenced by emotions which come out in cases or interviews. According to Du Plessis9 absolute objectivity is probably not attainable, but you should at least recognise your own disposition, preconceptions and subjectivity, and should be able to distinguish facts from emotions. Subjective influences should be bracketed, that is, consciously put out of play. This is where honesty, particularly to yourself, plays a role. ACTIVITY 2 According to Kronman, good judgment is not based on intuition only. What else is it based on? Discuss. 8 Kronman AT “Living in the law” 1987 University of Chicago Law Review 870. 9 Du Plessis LM “The ideal legal practitioner (from an academic angle)” 1981 De Rebus 425. 16  LJU4802/501/3/2024 FEEDBACK Your discussion should grapple with the multifaceted nature of good judgment. SELF-ASSESSMENT Most legal practitioners run their practices like a business. This seems to blur the distinction between a profession and any other job. Do you agree with the statement made above that a legal profession is not just a job? Motivate your answer and make reference to the preceding section. 17  LEARNING UNIT 2 Philosophical Approaches to Ethics ASSESSMENT CRITERIA After completing this learning unit, you should be able to 1. discuss and compare the different philosophical approaches with each other; 2. explain which philosophical approach is currently followed in our legal system; 3. argue for another philosophical approach that could change the current situation for the better; 4. explain why virtue ethics could make a difference in lawyers’ lives; 5. show how a communitarian or African view can be incorporated in the legal world; 6. explain the effect of a post-modernist approach to legal thinking. 1 INTRODUCTION Legal ethics involves the philosophical study of the moral experience of the good lawyer. The question is how the legal profession’s self-understanding or ideal of the good lawyer may best be described or captured. The professional ideal of the good lawyer may be approached from different ethical perspectives. For example, from a rule-based perspective the good lawyer is recognised by his or her sense of duty; from a virtue-based perspective by the virtues or type of character he or she has; from a consequentialist (utilitarian) perspective by the types of consequences he or she effects, and from the perspective of the postmodern ethics of difference by his or her sense of absolute responsibility to “the other”, beyond the limits defined by established rules, desired consequences or existing character. Recommended readings Nicolson D and Webb J Professional Legal Ethics: Critical Interrogations (1999) Menkel- Meadow C “Portia redux: another look at gender, feminism and legal ethics” in Parker C and Sampford (eds) Legal ethics and Legal practice: Contemporary Issues (1995) (Oxford University Press) Mnyongani F D “Duties of a lawyer in a multicultural society: a customary law perspective” 2012 Stellenbosch Law Review 35. Metz T “Towards an African moral theory” 2007 Journal of Political Philosophy 321. Buchanan J M “Ethical Rules, expected values and large numbers” 1965 Ethics 1. Freedman M H “Religion is not totally irrelevant to legal ethics” 1998 Fordham Law Review 1299. 18  LJU4802/501/3/2024 2 RULE-GOVERNED ETHICS (DUTY) Rule-governed ethics is based on the idea that in order to judge human conduct, it is necessary to establish first the ethical rule governing particular conduct. The ethical rule then takes precedence over everything else, such as the consequences of the conduct. The rule has two qualities. It prescribes what ought to be done in order to qualify as morally good, and the rule must be accepted as a duty. Once the rule is accepted as a duty, then you have the obligation to obey it. The ethics of duty is also known as deontology (deontic ethics). Immanuel Kant (1724–1804) is one of the most famous exponents of the ethics of duty. According to Kant, the first principle is that in any ethical situation you should act in the same way you would have others act in a similar situation. You always have to treat others with respect, and may never regard a person as a mere means to an end. You should treat others in such a manner that you can always justify your conduct towards them. This implies universalising your action or conduct because for Kant actions are morally good if they are the actions of everyone else. Universalising a morally good action imposes the duty on all to do the same for no other reason than because it is your duty. But freedom of decision (which exists next to causality) is always a pre-condition. Since moral goodness is the reason for the duty, it is necessary for everyone to accept and obey it. Obedience is necessary because moral goodness is desired by everyone. Kant calls this first principle of deontic ethics the categorical imperative. However, Kant is also aware that at times people do act contrary to the categorical imperative. In such situations people either put the ethical rule completely aside or downgrade it. When a rule is secondary, the moral goodness of an act is weakened in the sense that it is no longer the decisive criterion. People then act according to what Kant calls the hypothetical imperative. For example, if you consider that it is morally good to be kind to others then you must be kind to others at all times for the reasons that kindness is morally good and therefore a duty. This conduct is in accordance with the categorical imperative. But it is possible, for example, that the air hostess who is full of smiles and exudes kindness in the aircraft does so not because she holds kindness to be morally good, but because she has been trained to be kind for the sake of the airline as well as her own job. Her being kind then is conduct arising from the hypothetical imperative: If I am not kind, it is likely that our airline will lose customers and the loss of customers will be a threat to my own job. Practitioners are members of a profession and are governed by professional rules. They are obliged to comply with these rules and to fulfil minimum ethical obligations, whether they like it or not. They have a “morality of duty”. Failure to abide by the rules brings about sanction. The conduct of lawyers who merely meet these minimum standards has been described above as formalistic, positivistic and legalistic. Such conduct would, in terms of Kant’s philosophy, fall in the hypothetical imperative category. They do not act ethically because they hold this to be morally good but because they have been trained in this manner, and because it will be good for their practice and for the profession as a whole. However, according to the categorical imperative, lawyers should expect more from themselves and from colleagues than merely abiding by professional rules out of prudence or fear of punishment (as opposed to a sense of duty). In short, formalists cannot rationalise that they follow Kant because for Kant moral discussions are very important; every such discussion is a free decision for humanity as a whole. Rule-based ethics is haunted by the difficulty of explaining the origin of the moral sense of duty or respect for the law which it takes to be the key to ethical conduct. What sustains the motivation to obey the law out of a sense of duty? Critics of rule-based approaches to ethical conduct claim that this approach cannot prevent a merely legalistic or instrumental approach to the rules it holds dear (like the approach of Holmes’s bad man). Kant is an example of taking 19 the rule deeper by building his duty ethics on a fully worked out moral theory and the theory about the nature of the human being. Although Kant formulated his rule base approach many years ago, it is still relevant today. Currently our South African legal system is based on a rule-based approach, meaning that lawyers have to follow the rules of court or their respective codes of conduct in order to act ethically. Therefore, one can say that our traditional approach, the current philosophical approach in the legal profession, is rule based. Do you agree? 2.1 The traditional approach to legal ethics: rule-based If ethics is understood as the philosophical reflection on morality, is “legal ethics”, as it is usually used, not a contradiction in terms? Is there not a fundamental clash between, on the one hand, the reflective activity of ethical philosophers (ethical reflection) and, on the other hand, the activities of practical lawyers (law as activity)? At the very least it would seem that (some) lawyers are indeed not interested in moral philosophy or ethics but are, in accordance to their legalistic mindset, only interested in the prescriptions regulating their conduct as legal practitioners (ie no touting, to charge prescribed fees, to address a judge as “my Lord”, etc). This is the approach which has been adopted in the leading South African textbook on legal ethics.10 In this book, Lewis opens with the statement that ethical philosophy does not form part of his study, and that it is not necessary to plunge into the philosophy of ethics because the purpose of the book is to set out the rules of conduct which an attorney is required to obey. Furthermore, he contends that a code of rules prescribing conduct for attorneys is as much a part of the positive law as any other field of law and can be objectively described without concern for a deeper philosophy or history behind this code. What is needed, according to Lewis, is an “entirely practical” approach to the professional conduct of legal practitioners. We believe that such a practical and positivistic approach to the ethical conduct of legal practitioners is one of the main reasons for the growing crisis in the profession. 2.2 Is the traditional approach to legal ethics ethically acceptable? Now let us return to the question with which we started above, namely whether or not “legal ethics” (as it is used by Lewis and other lawyers) is a contradiction in terms. Lewis’s attempt to reduce ethics to a code of conduct which lawyers must obey creates some doubt about whether he should be using the term “ethics” to describe his project at all. Indeed, many ethical and legal philosophers have found nothing of value in the way lawyers approach ethics. Thus Shaffer11 states boldly that “most of what American lawyers and law teachers call legal ethics is not ethics. Most of what is called legal ethics is similar to rules made by administrative agencies. It is regulatory. Its appeal is not to conscience but to sanction. It seeks mandate rather than insight.” This critique raises the following questions: (1) What is “ethics” if it is not what lawyers usually have in mind when they speak about “legal ethics”? (2) What is the relation between ethics and a code of conduct? (3) Why does the legal profession adopt this apparently narrow view of ethics? By asking these questions, we have entered the field of ethical and legal philosophy which Lewis tried to avoid in his practical approach to legal ethics. In contrast we argue that both 10 Lewis EAL Legal ethics: A guide to professional conduct for South African attorneys (1982). 11 Schaffer T “The legal ethics for radical individualism” 1987 Texas Law Review 963. 20  LJU4802/501/3/2024 ethical and legal philosophies are of decisive importance in both the study of practical legal ethics and the application thereof. Consider the following statement by Coquilette:12 An individual lawyer’s attitude to legal rules, [i.e. his or her legal philosophy] including the disciplinary rules governing the legal profession itself, is central to that lawyer’s approach to moral responsibility. Some lawyers see the positive rules as defining the four corners of moral responsibility, and also will comply strictly with these rules even when personal spiritual or cultural values are jeopardized. These lawyers are true believers of the positive legal mentality as representing the democratic and objective legal norms of our society, and they will see spiritual or cultural values as far too “subjective” and “individualistic” to provide reliable guides to conduct. Lawyers with a sceptical view of human nature will also put a high premium on enforcement of these positive rules through coercive punishments by boards of bar overseers. Other lawyers will see the positive rules as secondary, and even subordinate, to spiritual and cultural sources of ethical guidance. Coquilette makes two important points concerning the positivistic or rule approach. Firstly, a lawyer with a formalistic and positivistic approach to law or legal philosophy, (ie one who understands law as a closed and coherent set of rules or principles) will also tend to understand his or her ethical responsibilities as a question of complying strictly with a codified set of legal rules. These rules will then fully prescribe what he or she may or may not do in a given situation. This kind of lawyer will understand ethics as a question of complying with general rules. It may also be said that such a lawyer will adopt a Kantian or rule-based or deontological approach to ethics (see the discussion below.) The point to be stressed is that the legal philosophy of the lawyer will influence his or her understanding of his or her ethical responsibilities as a lawyer. Secondly, a formalistic approach to ethics will tend to focus on those minimum standards and rules which could be strictly enforced by law societies. A lawyer adhering to a rule-based or formalistic approach to law would be adopting the same approach to the ethical demands of the profession as that which Holmes13 once suggested lawyers should adopt towards the law in general: If you want to know what the law is [and this would include the law or rules of professional conduct], you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside it, in the vaguer sanctions of conscience. We have stated above that we believe that this philosophy or approach to the ethical responsibility of practising lawyers is highly problematical and, in fact, that it is one of the reasons for the ethical crisis in the profession. In short, this attitude is in essence contradicting. More or less the same points have also been made by other critics of the dominant practical approach to legal ethics. Ross,14 for example, mentions that the technical application of “the law” in interpreting ethical rules leads to a very narrow moral universe. It emphasises the use of logical or rational thought without giving proper concern for values. From the perspective represented by Shaffer, Coquilette and Ross, it is ironic that “legal ethics” has traditionally been discussed without any reference to “ethics”. According to all three of them, this state of affairs can be attributed to the legalistic and formalistic attitude of lawyers in general. 12 Coquilette DR Lawyers and fundamental moral responsibility (1995) 61. 13 Holmes OW “The path of the law” 1997 Harvard Law Review 993. 14 Ross Y Ethics in law: Lawyer’s responsibility and accountability in Australia (1998) 26. 21 Think again about the challenge in the introduction to this module concerning the amount to be charged for a telephone call. If you argued that you will charge the additional R109, because the prescribed fees allow it – you subscribe to the rule-based approach. In light of the above formalistic and legalistic approach, we conclude that any discussion of “legal ethics” should begin by bringing to light the philosophy of law and ethics upon which it rests. For this reason we shall discuss the major current philosophical approaches influential in ethics. When law and ethics are approached from this wider philosophical perspective, it soon becomes clear that the legalistic or rule-based approach to ethical responsibility frequently results in a strangely unethical approach to legal ethics amongst lawyers. Ethical philosophy suggests that ethical responsibility involves much more than or even something completely different from strict compliance with rules. A legalistic or rule-based mindset leads to role-differentiated behaviour (see Unit 4) between lawyers and clients. Their relationship is stripped of all moral depth and public or civil responsibility and becomes driven by Holmes’s bad-man’s perspective on the law: Nothing is relevant to this relationship other than a knowledge of the rules which the lawyer (the “bad man”) knows will be enforced and which will impact on his or her clients to achieve his or her objectives. Many critics of this type of lawyer-client relationship suggest that a richer, more rewarding and ethically defensible lawyer-client relationship is possible if the legalistic mindset is discarded. For example, consider what happens if rules are no longer the bottom line of the relationship, but concern and care or the virtue of good judgment. On the basis of these critiques of the legalistic mind-set dominating legal practice today, Ross makes the following claim with reference to Australian legal practice: Thus there are two alternatives to legal practice. One is the present lawyer- client model – the professional “realistic” approach. The other is to place our work in a truly moral context. The former leads to the present inhumane system that now prevails. The latter leads to an environment where one can be human; where one can reconcile being a good lawyer with being a moral or virtuous person.15 The same applies in the South African context. ACTIVITY 3 (1) Explain the difference between the categorical and the hypothetical imperative. (2) Does a rule-based conception of ethics provide us with any assistance in our quest to understanding what ethics is or should be? FEEDBACK: (1) See the discussion on Kant at the beginning of the learning unit. (2) It was expected that in your answer you would make reference to the views of Lewis, Shaffer, Coquilette and Ross. 15 Ross Y Ethics in law: Lawyers’ responsibility and accountability in Australia (1998) 47. 22  LJU4802/501/3/2024 3 UTILITARIANISM (CONSEQUENTIALISM) Utilitarianism may be considered as one of a number of outcomes or purpose-oriented or teleological theories of ethics. The basic idea behind teleological theories of ethics is that, ultimately, the only thing that is relevant in determining whether or not an action is right or wrong is the purpose which the action is intended to achieve. Here purpose is understood in the sense of end-result or consequence. Hence, teleological ethical theories are often called consequentialist. Moral judgment in the case of utilitarianism boils down to the decision whether or not a given result is useful. A useful result is one that induces and promotes the greatest happiness of the greatest number in society. Jeremy Bentham is a famous legal philosopher who argued that the whole of the legal system should be based on the utilitarian idea that all laws should aim to achieve the greatest good for the greatest number. Usefulness is the criterion of moral judgment here, not a sense of duty and respect of legal rules as in Kantian or rule-based ethics. The condition “of the greatest number” is very important. Getting someone accused of murder off the hook is ethically speaking not good because that will make only the two of them happy whereas the rest of the community will be unhappy. The problem with utilitarian ethics is that, on the one hand, there are no clear-cut criteria for usefulness – to introduce the happiness of the greatest number is to only replace the problem of the criteria for happiness and the greatest number. On the other hand, not everything that is useful is by necessity right. There are useful things that may be ethically wrong, for example the abuse of scientific and technological processes. Also, a person’s objective may not be realised, for example, someone who jumps into a river to save a drowning child may be too late. Nonetheless, his attempt is evaluated as morally good. The question arises whether any means may be used to achieve the happiness of the greatest number or in pursuit of a good purpose. Whereas some ethicists hold that the end justifies the means, others hold the opposing view that the end does not always justify the means. To hold that the end justifies the means would mean, for example, that if a lawyer is convinced of the innocence of his or her client, he or she may lie in court or even plot the murder of the judge in order to vindicate his or her client’s innocence. In other words, although the outcome is an important aspect of judging an act as good or bad, people are also held responsible for what they bring about or fail to bring about, how they do it and why they do it. Markovits gives the following interesting example of utilitarianism: A dictator who is holding 20 prisoners captive, gives Jim the following choice: he must kill one of the prisoners or the dictator will kill all 20 of them. If Jim kills one prisoner, the lives of 19 people will be saved. If Jim refuses to kill one prisoner, it will be to nobody’s advantage, because all 20 of the prisoners will die. From a utilitarian perspective, the choice is clear: Jim must kill one prisoner, since this will have the best consequences. According to this view, each individual’s well-being carries equal weight, so that, obviously, the well-being of the 19 whose lives are spared will carry more weight than that of the one whose life is sacrificed. It is a matter of simple arithmetic: Jim must reduce the number of murders: more murders are worse than fewer murders. “According to the utilitarian version of consequentialism, therefore, each person ought always to adopt the course of action of those available to him that contributes the most well-being to the world”.16 The fact that Jim’s conduct will place his own moral integrity in jeopardy and that the murder of one captive remains wrong, is of no consequence. It is clear that this approach does not hesitate to use people as a means to an end. One of the prisoners is “used” to save the lives of 19 others – something Kant would not have approved of. 16 Markovits D “Legal ethics from a lawyer’s point of view” 2003 Yale Journal of Law & The Humanities 229. 23 In the context of legal ethics, professional guidelines as such could also be justified on utilitarian grounds. They are useful in that they help the practitioner to avoid errors that could lead to disciplinary action. They are there to satisfy clients so that the practitioner’s practice may benefit. They may even help to improve the public image of the profession and promote the public perception that the professions are regulating themselves properly, thereby avoiding government regulation. The requirement that a lawyer must have good moral standing before admission, for example, not only protects the public, but also the profession’s interests and image. An unethical lawyer brings the whole profession in disrepute. Character screening as well as censure for those who break the rules are seen as useful tools in preserving professionalism. However, by granting all this, we are not saying utilitarianism is the final answer to legal-ethical worries. As indicated above, our ethical concerns are not limited to results; motives are also important. Moreover, the application of any rule requires that the context be considered too. Ethical evaluation cannot be reduced to the mindless application of a number of rules formulated to result in a desired outcome. Even when professionals go beyond the ethical minimum expected of them by professional guidelines and aspire to be highly ethical, one could argue along utilitarian lines that the consequences of their action may be increased material reward and the esteem and respect of their community. ACTIVITY 4 You are instructed to transfer erf 109 in Tembisa. Your client, the seller, signs the transfer documents and leaves SA for business purposes. The documents describe the property incorrectly as erf 190 and are rejected. In terms of the Registrar’s Circular, any rectification of an erf must be fully initialled. Your client is expected back in SA only in three weeks’ time and the delay will cause him considerable loss of interest on the sale price. Would you place his initials on the power of attorney, thereby saving him thousands of rands? FEEDBACK Based on a utilitarian approach, your answer is most likely to be in the affirmative. Why? Is that ethical though? 4 VIRTUE ETHICS In ancient Greek philosophy, virtue was regarded as an excellence (arete). Consequently, from the perspective of ancient Greek philosophy, all ethics are virtue ethics. For example, Aristotle did not base his ideas about ethics on rules that had to be obeyed, but on excellence of character. Virtue allows the virtuous person to flourish, because a person’s ethics and his or her personal success are intertwined. “Ethics is about forming and satisfying appropriate ambitions and desires”.17 Aristotle described the kind of person you should strive to become and all character traits which were regarded as virtuous. When deciding how to act the question is not simply what the rules prescribe, nor what would be useful to achieve, but what a person of good moral character would do in the same circumstances. Such a person will seek to act with virtue in a moral crisis which Aristotle defines as the mean between two vices. Therefore, in the sphere of fear and confidence, rashness is a vice of excess and cowardice a vice of deficiency. Between the two vices lies the virtue of courage. Hence the moral demand to always act in a courageous manner. 17 Markovits D “Legal ethics from a lawyer’s point of view” 2003 Yale Journal of Law & The Humanities 223. 24  LJU4802/501/3/2024 According to Aristotle, some of the virtues essential to a perfect life can only be developed by participating in the public affairs of the state. A life spent in pursuit of private affairs (work and family) would be a life deprived of an essential component of the good life. It is only by living the life of an active citizen that one may develop all the moral and intellectual virtues fully. Aristotle described man as a zoon politicon – a political animal – to whom participation in public life and debate was only natural. He believed that the bios politicos – a life devoted to public-political affairs of the polis – was the highest level of life that could be attained. To take part in public life demanded courage. The courage to stand up for your beliefs is, therefore, virtue par excellence. The public realm was permeated by a fiercely competitive spirit, where individuality and human excellence could be demonstrated by being courageous. The citizen who lived his life in the public realm lived the truly “good life” which was far better and more virtuous than an ordinary life. (According to Aristotle, only Greek men were destined by nature to the life of an active citizen. Women, slaves and workers were excluded from public life). Contemporary virtue ethics is in part a revival of Greek thought. It is focused on questions such as: What makes a particular human quality a virtue? What is the relation between being a virtuous person and doing the right thing? The crucial point about contemporary virtue ethics is that it centres on the search for the specific virtue (excellence) required in order to act ethically in a given situation. The mode of conduct to adopt in a given situation is determined by the type of person you want to become or the excellence or virtue you want to embody and not by what a rule prescribes or what results you want to achieve. Anthony Kronman is one philosopher who has adopted a virtue-based approach to the ethical conduct of lawyers. He suggests that a life in the law is valuable not because of money or status but because of the unique type of person or character it allows the lawyer to become. The primary virtue of lawyers is the ability to make good, reflective judgments. In Aristotle’s philosophy, man could strive to become more virtuous, and most virtue ethicists claim that virtue is inherent and consistent in all people and can indeed be developed. Some virtue ethicists maintain, however, that the possession of specific virtues is a natural gift. Virtuosity is a talent that you may or may not have. A talent is something that you have by chance. Therefore, it is something that you cannot learn or acquire. You either have it or you do not. Therefore, virtue cannot be learnt. Now if virtue cannot be learnt, it should follow that those who are not gifted with virtue cannot be expected to act ethically. That being the case, critics of virtue ethics conclude that virtue cannot be the foundation of ethics and morality, or that if virtue is indeed the foundation of ethics and morality, then only those who have the natural gift of specific virtues may be subjected to moral judgement. ACTIVITY 5 You have to defend a patient who is charged with contravention of the National Health Act 61 of 2003. Your client is a young woman in her early twenties. She has been a dialysis patient for the past 10 years and bought a kidney from a poor man who needed the money desperately to buy medicine for his sick child. After the transplant the woman enjoys good health and can even have her own children. She is accused of violating the Act which prohibits the buying and selling of human organs. You advise her to plead guilty and then you will argue mitigating circumstances. (1) What will your arguments be if you follow Kant’s arguments? (2) What will your arguments be according to the utilitarian approach? (3) How should a virtuous person approach this issue? 25 FEEDBACK If you follow a rule-based approach, the sale of an organ should be condemned as the National Health Act prohibits the buying and selling of human organs. From a utilitarian point of view, it could be “the greatest joy for the greatest number”, meaning the poor man will have money to buy medicine for his sick child and the patient will get a new lease of life. 5 FEMINIST ETHICS Feminist theories posit that there is a gendered approach to ethics, meaning that women approach ethical challenges differently to men. The argument goes on to say that now that the once male-dominated profession has opened its doors to women, a case can be made that women bring with them a different approach to the practice of the law and, therefore, to ethics. When confronted with what to do in a given challenging situation, women are less likely to make statements about how rules should determine the right and wrong of the situation. The difficulty with this approach, as some scholars argue, is that it has the potential to create a dualistic and oppositional conception of gender. The concern is that putting an emphasis on gender differences may have the effect of legitimising the discriminatory treatment of women. Debatable as this may be, the fact that the experience of women has been overlooked for many years cannot be discounted. Whether feminine experiences play a role in ethical decision- making is a subject of great debate. A number of feminists argue that the influx of women into the legal profession might bring about significant changes in the practice of law. “Feminine” traits such as empathy, care, nurturing and social commitment may transform legal ethics and processes as well as the image of the typical legal professional. 6 POSTMODERN ETHICS Postmodernism is a reaction by contemporary thinkers against the Western scientific model of rationality first applied in 17th-century Europe. Although postmodernity is the proper context for the discussion of postmodern ethics, we will skip a detailed discussion of the “postmodern condition” here. Instead, we will give an outline of the features of the postmodern condition and focus upon their impact on and relationship with the law. One of the characteristics of postmodernity is the view that universal morality has come to an end. A single and universal ethical code applicable to and binding on everyone at all times is not part of postmodern ethical thinking. Particularly the Kantian model of the categorical imperative, which used to guarantee a rational basis for all ethical thinking, is attacked. Diversity confronts the postmodern human being in all aspects of life (in food, in clothing, in entertainment, in international travel, in the international media). The challenge is how to deal with diversity or difference. A problem associated with this challenge is that diversity is not a given at all times. Nor is it immutable. Uncertainty and unpredictability not only underlie diversity, but permeate it as well. Therefore, the moral domain for the postmodernist is the terrain of uncertainty. This leads to the question whether it makes sense to try to seek and determine rules (or absolutes) in a situation that is fundamentally uncertain, flexible and consequently indeterminate. 26  LJU4802/501/3/2024 In short, postmodernism is characterised by (1) the demise of the belief in the universal validity of a particular (Western) lifestyle or morality; (2) the celebration of difference; (3) the rejection of absolutes as well as universals; and (4) the recognition of the necessity to accept uncertainty and indeterminacy as a way of life. In light of the above, the question arises whether it is possible to have law in postmodern times. From a rule-based perspective, law is underpinned by universal rules and principles which can be applied to all situations. Law constitutes and establishes a sole, definite and authoritative point of reference in terms of which human conduct is judged. However, this is precisely what postmodern ethics denies and rejects. This is the reason why we end up without a substantive moral or ethical code for the postmodern period. The uniqueness of every situation or the differences in every person cannot be accommodated by general or universal rules. To be receptive to otherness and difference in a truly open, pluralistic and democratic world, practical norms cannot take the form of general rules or principles (as Kant claimed). The ethical response to somebody’s otherness and difference can never be reduced to the legal response which the law prescribes. In this context ethics acquires a new meaning. Ethics is no longer the substance or content of law, politics and morality, but becomes a warning flag. It reminds us of the fact that no legal or rule-like response to a new situation can ever be a fully accommodating or just response. Ethics can therefore only point to what is not yet or what is not justice. It cannot state what justice is or prescribe a substantive content to our laws or morality. Ethics reminds us that it is never sufficient to follow universal rules or to achieve universally beneficial consequences, or to develop virtues universally found in good human beings. It encourages us to remain aware of the hidden violence in the particularity of things, situations and people that such appeals to universality contain. Ethics, as a result, emphasises the paradoxical nature of morality and law. Without rules, there is a threat of anarchy, which would make any claim to justice impossible (rules make justice possible). In rules there is a threat of bureaucratic rigidity, which would make justice towards unique persons in unique situations impossible (rules make true justice impossible). That postmodernism has raised important points and opened up interesting perspectives, especially for us living in a multi-cultural context on a continent widely different from Europe, cannot be denied. It is, in addition, interesting to notice that the proponents of postmodernism use the same universalisation style that they criticise. The truth must lie somewhere between the two extremes. In the discussion above, we saw that the moral character of conduct is determined, depending on the ethical philosophy which is adopted, by either the obedience to rules out of a sense of duty or the consequences which will flow from the conduct, or by the qualities of character which are exhibited and strengthened by the conduct in question (including those character traits which feminists claim have been neglected in male-dominated Western societies), or by the nature of the response to the uniqueness or differences encountered in plural postmodern societies. 7 AFRICAN COMMUNITARIANISM The concept of Ubuntu has become a short-hand for everything which African philosophy embodies. With the exception of Liberia and Ethiopia, most African countries have over the 27 years had some interaction with foreign cultures and traditions. Colonisation coupled with the activities of the missionaries had a huge impact on the cultural practices of Africans especially in Sub-Saharan Africa. In South Africa, the colonial project was further strengthened by apartheid rule. Because of these historical events, African traditional practices have been distorted, suppressed or relegated to the margins. Be that as it may, adherence to traditional practices is something which most Africans, regardless of how sophisticated they are or may be, continue to take place quietly. According to the concept of Ubuntu, the self only makes sense in relation to the community, hence the much-used Nguni saying umuntu ngumuntu ngabantu or the Sotho saying motho ke motho ka batho ba bangwe. Generally, there seems to be an agreement among scholars that Ubuntu encompasses a whole host of values. At the core of Ubuntu are values such as dignity, respect, compassion, justice, fairness and conciliation. Anything that negates these values is contrary to the value of Ubuntu and therefore unethical. 8 FAITH-BASED NARRATIVES Whether religion should have a bearing on legal ethics is a highly contested and debatable issue. The debate goes to the heart of the contest between the positivists and natural lawyers on the relationship between law and morality. Arguments in favour of this approach argue that the legal profession can benefit from men and women whose conduct is rooted in religious injunctions. A counter argument is that religion has the propensity to reduce everything to moral arguments, which at times may not necessarily be ethical. ACTIVITY 7 From the presentation above it is clear that each of the different approaches we discussed has its own unique features which can be helpful in the construction of a coherent ethical argument. Identify and evaluate the core features of each of the approaches. Can one approach be preferred to any other? FEEDBACK It is hoped that you would have noticed that the different theories are interlinked and not mutually exclusive. 28  LJU4802/501/3/2024 LEARNING UNIT 3 The South African Legal Profession ASSESSMENT CRITERIA After completing this learning unit, you should be able to 1. discuss practising law as a profession; 2. explain the content and constitutionality of the standard of a “fit and proper person”; 3. outline and discuss the conflict that may exist between lawyers’ duty to uphold the law and the state, and their duty to seek justice above all; 4. discuss the shift from the character test to the duty test. Recommended reading McDowell B “The usefulness of ‘good moral character’” 1993 Washburn Law Journal 323–336; Eshete A “Does a lawyer’s character matter?” in The Good Lawyer: Lawyers’ Roles and Lawyers’ Ethics (ed Luban) (1984) 270–285 Slabbert M “The requirement of being a “fit and proper” person for the legal profession” 2011 14(4) PER /PELJ 209. Le Roux W “Conscience against the law: Mahatma Gandhi, Nelson Mandela and Bram Fischer as practising lawyers during the struggle” 2001 Codicillus 20–35 1 THE LEGAL PROFESSION The question of who can be a legal practitioner in South Africa is strictly regulated by legislation and by the inherent common-law right of the court to regulate its own processes. It is not sufficient to have a thorough knowledge of the law to become a legal practitioner. Even those with all the relevant legal qualifications will be admitted to the legal profession only once they have proven that they are indeed “fit and proper persons”. Membership of the legal profession is subject to extensive character screening.In terms of section 24(2)(c) of the Legal Practice Act the High Court must admit a legal practitioner [thus, an attorney or an advocate] if the applicant satisfies the court that he or she “is a fit and proper person to be so admitted”. This means that only persons of a certain character are allowed to practise as lawyers. The requirement that you, as an aspirant lawyer, must prove that you are “a fit and proper person” for the legal profession underlines the moral basis to the profession. The reason for the character requirement is generally stated as follows: Lawyers are entrusted with matters related to the affairs, honour, money, property, confidential information and lives of their clients, and should be worthy of this trust and confidence. Lawyers of bad character may fail to uphold their duty to either the courts or their clients, or may abuse their 29 position of trust. The public is protected when lawyers are honest, diligent and place both the rights of clients and the law above their own interests. Some have argued that moral virtues and character are universal and applicable over the ages and across cultures and that the concept of a “good moral character” has “much the same meaning today it had for our grandparents”.18 “Moral character” has been described as embracing truthfulness; a high degree of honour; a good sense of discretion; and a strict observance of fiduciary responsibility. However, the concept of a good moral character has also been criticised as an “unusually ambiguous” concept which creates the potential for arbitrary and discriminatory application and which, of necessity, reflects the subjective views and prejudices of the person applying the criterion. It has been shown that in the United States the standard of a “good moral character” has often been applied in an arbitrary and prejudicial fashion, favouring those of a particular race, gender, political persuasion and high economic worth. Rhode19 argues that in the United States during the 19th century this character requirement was used to keep unwanted groups of people out of the legal profession. Women, for example, were considered too emotional, timid and delicate for legal practice. In the early years of the 20th century Jews, blacks, Eastern European immigrants and other non- conformists (such as radicals, divorcees and religious fanatics) were subjected to such stringent character scrutiny that only a few gained entry to the profession. During the second half of the 20th century, applicants were excluded because of their membership of the Communist Party. Rhode holds that this kind of prejudice does not augur well for a profession charged with defending minority groups on the fringes of society. She believes that a broader range of values should be acknowledged and that more debate is needed. It is noteworthy that bar organisations consist mostly of mainstream practitioners who may wish to exclude non- conformists from legal practice.20 The American experience is echoed in the chequered past of the legal professions in South Africa. Whether or not somebody is a “fit and proper person” to practise law as an advocate or attorney is essentially a discretionary value judgment on the part of the court.21 In Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T) 853I–854C the court stated that although its judgment must be made on the totality of the facts before the court, judgment will, in the end, be based on the general impressions formed by the court and its own sense of appropriateness. The court has an inherent common-law power to regulate the legal professions and, therefore, remains the final arbiter of what is appropriate in this regard.22 In South Africa the court’s judgment about who is “an appropriate person” has frequently been influenced by political considerations. When Mahatma Gandhi applied to be admitted as an advocate of the High Court of Natal, his application was opposed by the Law Society of Natal because he was of Indian origin and as such not a “fit and proper person” to practise law. Although this fact is not reflected in the official law report,23 it is extensively dealt with in Gandhi’s autobiography.24 Also gender considerations influenced the courts: When Madeline Wookey wished to enter into articles of clerkship as a future attorney, the Cape Incorporated Law Society objected and 18 Mc Dowell B “The usefulness of ‘good moral character’” 1993 Washington Law Journal 323. 19 Rhode D In the interest of justice: Reforming the legal profession (2000). 20 Rhode D In the interest of justice: Reforming the legal profession (2000) 552. 21 Jasat v Natal Law Society 2000 (3) SA 44 51E; Law Society of the Cape of Good Hope v Buricks 2003 (2) SA 11 (SCA) 14A-B. 22 Kaplan v Incorporated law Society, Transvaal 1981 (2) SA 762 (TPD) 770G-784D. 23 In re Ghandi 1894 NLR 263. 24 Ghandi M An autobiography; or my experience with truth (1927) 121-123. 30  LJU4802/501/3/2024 refused to register her articles because she was a woman.25 In Incorporated Law Society v Wookey, a full bench of the Appellate Division relied on Roman Dutch law and its exclusion from legal practice of persons who could be termed “unfit and improper”, including the deaf, the blind, pagans, Jews, persons who denounced the Christian Trinity and, most importantly, women. During the years of apartheid, various Law Societies brought numerous court applications to have lawyers who were involved in the struggle against apartheid removed from the roll. The political abuse of the “fit and proper person” standard is well illustrated by the case of Bram Fischer, a brilliant, highly regarded senior advocate attached to the Witwatersrand Bar for many years. Fischer was struck off the roll of advocates in 1965 because of his opposition to apartheid.26 In 1995, twenty years after Fischer’s death, the Johannesburg Bar Council (which had brought the original application) recognised the dilemma caused by their action against Bram Fischer as a struggle lawyer and then adopted the following resolution: “While recognising that opinions might differ, the present Johannesburg Bar Council has resolved that it does not hold the view that Bram Fischer was not a fit and proper person to continue to practise as an advocate. It believes that a grave injustice was done to him and today it can only apologise to his family.” Legislation was subsequently enacted to allow for the reversal of this injustice. In October 2003 Bram Fischer was posthumously readmitted to the roll of advocates in terms of the provisions of The Reinstatement of Enrolment of Certain Deceased Legal Practitioners Act 32 of 2002.27 Nonetheless, the end of apartheid, the adoption of a declaration on human rights and the reinstatement of Bram Fischer on the roll of advocates did not signal an end to the abuse of the fit-and-proper-person standard. In a highly publicised case, the Law Society of the Cape of Good Hope refused to register a contract of community service of a prospective attorney (Prince). As a committed Rastafarian, he had in the past used dagga (which was illegal) during religious ceremonies and stated his intention to do so in future.28 From Gandhi to Prince, the modern history of the South African legal profession is marred by the arbitrary exclusion of persons belonging to marginalised or oppressed groups on account of their race, sex, political affiliation or religious convictions by having recourse to the fit-and- proper-person standard. Given this history, it is not surprising that the character screening of lawyers has been the subject of a number of constitutional challenges during the first decade after apartheid. What is more surprising is how little impact these challenges have had on the traditional legal establishment. A denial of admission to practise law can have serious consequences for your career. In this respect it must be kept in mind that the right to choose your trade, occupation or profession freely, although subject to regulation by law, is recognised in section 22 of the Constitution of the Republic of South Africa, 1996. The right to follow a (legal) profession may not be limited without fulfilling the requirements set out in section 36 of the Constitution. You may, therefore, assume that any qualification for admission to the profession (such as the criteria of character) must be clearly related to the public interest and your fitness or capacity to practise law. It can be argued that character traits or personal conduct that do not affect your professional performance or the public interest should not play a role in the decision whether to admit you or not. 25 Incorporated Law Society v Wookey 1912 AD 623. 26 Society of Advocates of South Africa (Witwatersrand Division) v Fischer 1966 (1) SA 133 (T). 27 Rice v Society of Advocates of SA (Witwatersrand Division) 2004 (5) SA 537 (WLD). 28 Prince v President, Cape Law Society 2000 (3) SA 845 (SCA). 31 The issue was first raised under the interim Constitution of 1993 in Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T). In this case, the court was called upon to comment on the constitutionality of its statutory power to remove unfit and improper persons from the roll of attorneys. It was argued that this power violated section 26(1) of the interim Constitution (the right to free economic activity). The court rejected the argument. It held that standards could be set for the legal profession, both as far as “competence” and “unquestionable integrity” was concerned, either on the basis of the internal limitation of the section 26 right or in terms of the general l