Professional Legal Ethics 2024 PDF Training Guide

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

PROFESSIONAL LEGAL ETHICS Syllabus The syllabus is compiled by Practitioners with experience in practice. Training Guide The guide for 2024 was revised Version 005 Learning Resources No. 034 by Alvia Nair and reviewed by Publish date: 01/01/2024 Hajira Kara and Natasha Githiri. Confirmation date: 1/11/2023 ____________ This training guide is intended as a supplementary tool Notes on Content for purpose of the training at L.E.A.D’s Practical The document records the views Vocational Training School and Courses. of the drafters. There may be justifiable variations in practice. The publishing of this training guide (“guide”) was made ____________ possible through financial support of the Legal Practice Council (via the apportionment by the Legal Practitioners’ The content may not be a correct Fidelity Fund). reflection of the law and/or practice now of reading due to The Law Society of South Africa brings together the Black legislative changes after printing. Lawyers Association, the National Association of Democratic Lawyers and the independent attorneys, in representing the Attorneys’ profession in South Africa. Lifelong learning towards a just society © 2024 Law Society of South Africa Copyright subsists in this work in terms of the Copyright Act No. 98 of 1978, as amended. Subject to the Copyright Act, no part of this work may be reproduced in any form or by any means without the Law Society of South Africa’s permission. Any unauthorised reproduction of this work will constitute a copyright infringement and render the executor liable under both civil and criminal law. Whilst every effort has been made to ensure that the information published in this work is accurate, the editors, drafters, publishers and printers take no responsibility for any loss or damage suffered by any person as a result of the reliance upon the information contained therein. Training Guide Topics The following training guides are updated annually and can be purchased from Legal Education and Development [L.E.A.D®] Alternative Dispute Resolution High Court Practice Legal Practitioners Accounts Business Writing Skills Insolvency Law Management (Bookkeeping) Constitutional Law Practice Introduction to Practice Magistrate’s Court Practice Criminal Court Practice Management Matrimonial Matters Customary Law Personal Injury Claims Labour Dispute Resolution Drafting of Contracts Professional Legal Ethics Legal Costs Forms of Business Enterprise Wills and Estates For more information LSSA L.E.A.D Quality Assurance (QA) Section Tel: (012) 441-4600 | Fax: 086 550 7098 | Address Law Society of South Africa Legal Education and Development Tel +27 (0)12 366 8800 Tel: +27 (0)12 441 4600 Address: PO Box 36626 Menlo Park, 0102 Address: PO Box 27167, Sunnyside, 0132 Docex 82 Pretoria Docex 227 Pretoria Physical Address: 304 Brooks Street Physical Address: 161 Lynnwood Road, Menlo Park, Pretoria Brooklyn, Pretoria Website www.LSSA.org.za Website: www.LSSALEAD.org.za E-mail: [email protected] E-mail: [email protected] TABLE OF CONTENTS A. AIM OF THE COURSE.................................................................................. 1 B. SYLLABUS.................................................................................................. 3 C. PRACTICE NOTES....................................................................................... 4 1. INTRODUCTION....................................................................................... 4 1.1 WHAT ARE PROFESSIONAL LEGAL ETHICS?.......................................... 4 1.2 WHY STUDY PROFESSIONAL LEGAL ETHICS?........................................ 5 1.3 WHAT IS A PROFESSION?................................................................... 6 1.4 FIVE MOST IMPORTANT CHARACTERISTICS OF A PROFESSION............... 7 1.5 WHAT IS A FIT AND PROPER PERSON?................................................. 7 1.6 LEWIS’ GOLDEN RULE...................................................................... 16 2. WHERE DOES ONE FIND THE RULES OF PROFESSIONAL CONDUCT?........ 17 2.1 THE CONCEPT OF PROFESSIONAL CONDUCT....................................... 17 2.2 MAIN REFERENCE SOURCES OF THE RULES OF PROFESSIONAL CONDUCT....................................................................................... 17 3. THE STRUCTURE OF THE ORGANISED PROFESSION................................ 24 3.1 LEGAL PRACTICE ACT NO. 28 OF 2014 (LPA)...................................... 24 3.2 CONVERSION OF ENROLMENT........................................................... 29 3.3 REQUIREMENTS FOR ADMISSION AS AN ATTORNEY............................ 30 3.4 FORMS OF LEGAL PRACTICE............................................................. 31 3.5 CODE OF CONDUCT......................................................................... 34 3.6 DRESS IN COURT AND STATUS......................................................... 35 3.7 LEGAL PRACTITIONERS’ FIDELITY FUND............................................. 35 4. THE LEGAL SERVICES SECTOR CHARTER................................................ 36 4.1 WHERE DO PROFESSIONAL CONDUCT RULES APPLY?........................... 36 5. THE LEGAL PRACTITIONER AND HIS CLIENT.......................................... 37 5.1 THE TREATMENT OF CLIENTS............................................................ 37 5.2 ACCEPTING THE CLIENT – CONSIDERATIONS TO BE TAKEN INTO ACCOUNT....................................................................................... 38 5.3 EXECUTION OF INSTRUCTIONS – RIGHTS AND DUTIES OF AN ATTORNEY...................................................................................... 43 5.4 APPROACHING A LEGAL PROBLEM..................................................... 49 5.5 MEDIATION..................................................................................... 52 5.6 PROFESSIONAL NEGLIGENCE............................................................ 54 5.7 CONFIDENTIALITY........................................................................... 60 5.8 LEGAL PROFESSIONAL PRIVILEGE..................................................... 74 5.9 WITHOUT PREJUDICE....................................................................... 77 5.10 CONFLICT OF INTEREST................................................................... 78 5.11 LIEN............................................................................................... 85 5.12 COSTS AND FEES............................................................................ 86 5.13 TRUST ACCOUNTS AND TRUST FUNDS............................................... 94 5.14 TERMINATION OF MANDATE............................................................ 110 6. THE LEGAL PRACTITIONER’S RELATIONSHIP WITH THIRD PARTIES.... 113 7. THE LEGAL PRACTITIONER’S RELATIONSHIP WITH OTHER LEGAL PRACTITIONERS.................................................................................. 114 7.1 WITNESSES.................................................................................. 116 7.2 COUNSEL...................................................................................... 118 8. THE LEGAL PRACTITIONER’S RELATIONSHIP WITH THE COURT........... 120 8.1 CONTEMPT OF COURT.................................................................... 123 8.2 RELATIONSHIP WITH COURT OFFICIALS........................................... 124 8.3 COURT ETIQUETTE......................................................................... 125 9. THE LEGAL PRACTITIONER’S RELATIONSHIP WITH THE PUBLIC.......... 130 10. THE LEGAL PRACTITIONER AND HIS RELATIONSHIP WITH THE STATE 132 10.1 EXAMPLES OF PROFESSIONAL MISCONDUCT NOT RELATED TO AN ATTORNEY’S PRACTICE.................................................................. 133 11. THE LEGAL PRACTITIONER’S RELATIONSHIP WITH THE LPC................ 134 11.1 MINIMUM OPERATING STANDARDS TO MINIMISE RISK IN A PRACTICE 138 11.2 TYPES OF INSURANCE RELEVANT TO A LEGAL PRACTICE.................... 138 11.3 MEASURES THAT CAN BE IMPLEMENTED TO MINIMISE RISK............... 140 11.4 CLIENT ENGAGEMENT MANAGEMENT RULES AND STANDARDS........... 140 11.5 RECOMMENDED CLIENT AND CASE DATABASES FOR THE FIRM........... 142 11.6 STANDARD OPERATING PROCEDURES IN A PRACTICE........................ 143 11.7 STEPS THAT CAN BE IMPLEMENTED TO MITIGATE THE RISK OF PRESCRIPTION.............................................................................. 145 12. CYBERCRIME........................................................................................ 146 12.1 STEPS TO MITIGATE THE RISK ASSOCIATED WITH CYBER CRIME........ 150 13. CERTAIN PRESCRIBED ACTS AND REGULATIONS................................. 151 D. LITERATURE AND ARTICLES.................................................................. 153 1. HANDY HINTS ON LEGAL PRACTICE................................................ 153 2. DE REBUS................................................................................... 153 3. HANDBOOKS, THESES AND PUBLICATIONS..................................... 153 4. ARTICLES................................................................................... 153 E. INTERNATIONAL CODE OF ETHICS........................................................ 154 F. APPLICABLE RULES............................................................................... 156 ANNEXURE 1: CERTAIN PRESCRIBED ACTS & REGULATIONS..................... 186 ANNEXURE 2: EXTRACT FORM RISK ALERT BULLETIN ARTICLE - LPIIF...... 230 A. AIM OF THE COURSE The aim of the course is to equip law graduates to be competent and diligent Legal Practitioners in practice. Such a Legal Practitioner will:  Be the guardian of the Constitution.  Be a people’s person by being sensitive to the needs of his/her clients.  Advise and represent his/her clients regarding the enforcement and/or protection of their rights.  Manage his/her practice efficiently.  Respect the Courts and other organs of the legal justice system.  Be professionally and adequately trained.  Be a lifelong learner and endeavour to stay up to date with developments through study, research and continuing legal education programmes.  Be a dedicated worker.  Inculcate a social justice culture knowing that there is a duty to assist the poor sector of the community because every citizen has a right to legal representation. In order to achieve the above Candidate Legal Practitioners must not only know the General Rules of Professional Conduct which must be observed by all practising Legal Practitioners but must also understand the practical application thereof. 1 November 2018 marked a historical day with the repeal of the Attorneys Act No. 53 of 1979, by the Legal Practice Act No. 28 of 2014, as amended by the Legal Practice Amendment Act No. 16 of 2017 (LPA). This brought about a fundamental shift in the profession with the South African Legal Practice Council (LPC), became the regulatory body for all Legal Practitioners, including practising and non-practising Attorneys and Advocates, referred to as Legal Practitioners by the Legal Practice Act. Many of the Rules and Regulations contextual underpinning of the Attorneys Act No. 53 of 1979 found its way into the new regulatory environment and therefore there is reference to the old Act merely for understanding the jurisprudence developed under the old Act and reference thereto is provided for within this context. Candidates are required to study and fully acquaint themselves with the course material, the Legal Practice Act No. 28 of 2014 and its Regulations, Code of Conduct for Legal Practitioners, Candidate Legal Practitioners and juristic entities published in terms of Section 97(1)(b) of the Legal Practice Act No. 28 of 2014; PROFESSIONAL LEGAL ETHICS © LSSA 1 The South African Legal Practice Council Rules made under authority of Section 95(1) of the Legal Practice Act No. 28 of 2014. Of particular importance are the disciplinary rules and the rules relating to the keeping of books of account, the assessment of bills of costs and the disciplinary proceedings. In terms of the Legal Practice Act No. 28 of 2014, the Legal Practice Council publishes on its website the list of suspended and struck-off Legal Practitioners and the reports of the disciplinary hearings. This is a welcome transparency and accountability of the profession and the work of the Legal Practice Council. These reports can be found on the Legal Practice Council’s website https://lpc.org.za/members-of-the-public/. PROFESSIONAL LEGAL ETHICS © LSSA 2 B. SYLLABUS The purpose of the course is to provide a broad overview of the subject from a practical point of view. During the lectures, instructors will only cover those aspects which Candidate Legal Practitioners will encounter most frequently in their practice. The remainder of the course is self-study. Within this training guide reference is made to various Court cases, textbooks, articles (for example De Rebus) as well as other sources and the obligation remains on the Candidate to stay abreast of changes within the law through their own research in order to ascertain real time standing authorities. South Africa is most definitely one of the countries since its incorporation as a full democracy, for years to come to go through various legislative changes occurring at a tremendous rate as the country embraces its newly found democracy. In this training guide Candidates will also find various developmental questions on the subject matter within this guide. Answer to these questions will not necessarily be available to Candidates as the questions are also intended to be used by lecturers in developing the theoretical and especially the practical skills of Candidates whilst lecturing to them. PROFESSIONAL LEGAL ETHICS © LSSA 3 C. PRACTICE NOTES  The purpose of these notes is to supplement the presentation of the instructors and, hopefully, to be of use in practice.  These notes do not comprise a complete training guide on the subject – the study of the relevant sources is still necessary.  To resonate what was indicated earlier, these notes does not consider the change of flux within the profession. 1. INTRODUCTION 1.1 WHAT ARE PROFESSIONAL LEGAL ETHICS? Professional ethics concern themselves with the Rules of Conduct regulating the Attorneys’ profession. They provide the norms in terms whereof Legal Practitioners are judged to be fit and proper persons to practice. It is: “The code of conduct among lawyers which governs their moral and professional duties toward one another, toward their clients, and toward the Courts. [The term legal ethics has a narrow and a broad meaning. Narrowly, it refers to "... the system of professional Regulations governing the conduct of lawyers". Van Zyl CH IV and Visser J "Legal Ethics, Rules of Conduct and the Moral Compass - Considerations from a Law Student's Perspective" PER / PELJ 2016(19) - https://www.semanticscholar.org/paper/Legal-Ethics%2C-Rules-of-Conduct- and-the-Moral-%E2%80%93-from-Zyl-Visser/228797314be045284f440b072 e54736d958a44af “They are the standards of right and honourable conduct which should be observed by members of learned professions in their dealings with each other and in protecting the interests and handling the affairs of their clients. They are designed to provide lawyers with an understanding of the ethical context in which the law operates. They teach them to become aware of the limitations of the Rules determining ethical behaviour. The legal profession has developed a substantial body of principles of professional ethics, much of it not formulated in writing but absorbed by younger lawyers from older ones, but some formulated in rulings by Bar Councils and the former Law Societies. The newly established Legal Practice Council, as an independent regulatory body, plays a substantial role in the conduct and control of professional standards. Among the main principles of ethical conduct expected of a lawyer are that, in relation to his client, he will maintain confidentiality about everything revealed to him during the professional relationship, will always use his skills and knowledge to the best of his ability to secure the client’s interests, but will not knowingly be PROFESSIONAL LEGAL ETHICS © LSSA 4  a party to any fraud, dishonesty or underhand dealings. In relation to other members of the profession, a lawyer must deal honestly with them and implement undertakings to them”. According to Kiefel, a Justice of the High Court of Australia, the "Rules of Professional Conduct and Practice" do provide lawyers with guidance and standards of conduct; however, “[t]hey cannot provide the answer to every ethical and moral question which a lawyer may face; for that a lawyer needs his or her own moral compass”. 1.2 WHY STUDY PROFESSIONAL LEGAL ETHICS? Ethics form part of the professional duties of Legal Practitioners whether or not they are codified and listed in codes of conduct and legislation. Ethics are recognised by the legal profession as part of a ‘social system’ in which legal practice is carried out and the rules to which members of the profession must adhere. Morals, on the other hand, are a personal standard to which individuals choose to apply in their own individual decisions. ‘Ethics vs. Morals’ (https://www.diffen.com/difference/Ethics_vs_Morals) https://www.derebus.org.za/ethics-time-to-reassess-legal-ethics-in-the-changing- environment/ The Legal Practitioner is part of a system involving directly and primarily the State. He/she fulfils a dual function by assisting the client on the one hand, and by promoting justice in society on the other hand. The two functions may come into conflict. Our Constitution enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality, and freedom. There is a great need for Legal Practitioners to ensure that a proper balance between human rights and the more general interests of society and the state is maintained. “The legal profession is the guardian of the dignity and integrity of the Nation. Our mettle as a Nation will be judged by how we deal with the weakest and poorest amongst us.” (Chief Justice Pius Langa) The public is entitled to a fair administration of the judicial system, to insist that Legal Practitioners act responsibly and ethically in the public interest and that they will not abuse the law for the benefit of their clients. Legal Practitioners must not take unjust advantage either of the opponent’s or of the public purse. To ensure that the public will have confidence in the administration of justice, a sufficiently high standard of these qualities must be maintained. PROFESSIONAL LEGAL ETHICS © LSSA 5  The purpose of ethical training could, therefore, be summated as follows:  to develop an understanding of the foundations of the ethical standards applicable to the legal profession.  to develop moral reasoning skills aimed at empowering professionals to develop moral autonomy and moral decision-making skills that withstand scrutiny.  to develop an ethical awareness and a heightened ethical consciousness of the impact and consequences of one’s actions, both personally and professionally, on the broader society. 1.3 WHAT IS A PROFESSION? A profession is a disciplined group of individuals who adhere to ethical standards. This group positions itself as possessing special knowledge and skills in a widely recognised body of learning derived from research, education and training at a high level, and is recognised by the public as such. What are the qualities of a professional? The seven distinguishing factors of a professional are, all in all:  Specialized knowledge,  Competency,  Honesty,  Integrity,  Respect,  Accountability,  As well as self-regulation. These are some of the aspects that differentiate professionalism from amateurism and inexperience. https://maybusch.com/7-qualities-of-professional/ PROFESSIONAL LEGAL ETHICS © LSSA 6 1.4 FIVE MOST IMPORTANT CHARACTERISTICS OF A PROFESSION  It has a central organisation formally recognised to represent it.  Its primary function is to give advice or service in a specialised field.  Admission is restricted to a certain standard of education.  It is afforded a certain measure of self-regulation and can, as a result, require its members to observe much higher standards than could be successfully imposed by outside sources.  A professional person’s first and foremost responsibility is to his client. Benson Report: pages 28-30 (The Royal Commission on Legal Services). 1.5 WHAT IS A FIT AND PROPER PERSON? The concept of a “fit and proper person” is the basis for entry into the profession, the conduct of a Legal Practitioner’s entire practice and the test to be applied when the Court considers whether to disbar him or her. This concept is nowhere described with any precision, and understandably so, since there is no numerus clausus of circumstances which would render a person not "fit and proper". It seems that it is not sufficient to have a law degree or a thorough knowledge of the law to become a Legal Practitioner. Applicants will be admitted to the legal profession only once they have proven that they are indeed "fit and proper" persons for the legal profession. The burden of proof is on the Applicant. Membership to the profession is thus subjected to character screening, yet what exactly a "fit and proper" person is not defined or described in legislation or Regulations. It is commonly accepted that in order to be "fit and proper" a person must show integrity, reliability and honesty, as these are the characteristics which could affect the relationship between a Legal Practitioner and a client or a Legal Practitioner and the public. Although the burden of proof is on the Applicant to prove that he or she is a "fit and proper" person to enter the legal profession, the decision remains essentially a discretionary value-judgement on the part of Seniors or the Court. As the President of the Supreme Court of Appeal, Judge Harms said in Malan and another v The Law Society, Northern Provinces: “[T]he exercise of this discretion is not bound by rules and precedents consequently have a limited value. All they do is to indicate how other Courts have exercised their discretion in the circumstances of a particular case. Facts are never identical, and the exercise of a discretion need not be the same in similar cases. If a Court were bound to follow a precedent in the exercise of its discretion it would mean that the Court has no real discretion”. PROFESSIONAL LEGAL ETHICS © LSSA 7 Malan and another v The Law Society of the Northern Provinces 2009 (1) All SA 133 (SCA) Naylor and another v Jansen 2007 (1) SA 16 (SCA) par 21. The profession of an Attorney is an honourable one and as such demands complete honesty, reliability and integrity from its members. Du Plessis (Du Plessis "The ideal Legal Practitioner (from an academic angle)" 1981 De Rebus 424-427) lists the following qualities as the least that an Attorney should possess:  Integrity meaning impeccable honesty or an antipathy to doing anything dishonest or irregular for the sake of personal gain;  Objectivity – no irrelevant consideration whatsoever should bear upon one’s judgment;  Dignity – Legal Practitioners should conduct themselves in a dignified manner, and should also maintain the dignity of the Court;  The possession of knowledge and technical skills;  A capacity for hard work;  A respect for the legal order; and  A sense of equity or fairness. Vassen v Law Society of the Cape 1998 (4) 532 (SCA) The test for being a "fit and proper" person is meant to take place before you are admitted as a Legal Practitioner. One cannot predict how a person will act in future in undefined situations unless one knows the person well. Once a person is recognised as being "fit and proper" the Legal Practice Council offers further training, for example on how to run a trust account and how such an account should be audited. Legal Practitioners are also constantly reminded of the Code of Conduct for Legal Practitioners, Candidate Legal Practitioners and Juristic Entities and ethical rules. Once admitted, a Legal Practitioner who then commits an unprofessional act is consequently judged and evaluated according to a legal process, an inquest, a disciplinary hearing or a Court ruling. The previous subjective judgment is then partially annulled. Whatever the outcome of the legal or quasi-legal process, it is based on objective criteria and actual acts of wrongdoing instead of subjective judgments and predictions. "A good moral character" is therefore an aspirational concept which should be understood as being not just enough merely to meet the minimum standards of professional competence and to refrain from acting in ways that could lead to criminal prosecution or being struck off the roll; it also presupposes that more must be expected from lawyers. PROFESSIONAL LEGAL ETHICS © LSSA 8 McDowell B "The usefulness of 'good moral character'" 1993 Washburn Law Journal 323-336 (n 30) 328- 333 https://contentdm.washburnlaw.edu/digital/collection/wlj/id/4626/ Legal Practitioners occupy a unique position. On the one hand they serve the interests of their clients, which requires a case to be presented fearlessly and vigorously. On the other hand, as officers of the Court, they serve the interests of justice itself by acting as a bulwark against the admission of fabricated evidence. Both professions have strict ethical rules aimed at preventing their members from becoming parties to the deception of the Court. Unfortunately, the observance of the rules is not assured, because what happens between legal representatives and their clients or witnesses is not a matter for public scrutiny. The preservation of a high standard of professional ethics having thus been left almost entirely in the hands of individual Legal Practitioners, it stands to reason, firstly, that absolute personal integrity and scrupulous honesty are demanded of each of them and, secondly, that a Legal Practitioner who lacks these qualities cannot be expected to play his part. Kekana v Law Society of Advocates of South Africa 1998(4) SA 649 (SCA) An Attorney is unfit to practise if the misconduct in question is of such a serious nature that it manifests character defects and a lack of integrity rendering the person unfit to be on the roll. Examples of instances where the Courts have ruled that a Legal Practitioner is not a fit and proper person to practise:  It is inexcusable behaviour where an Attorney has failed to be frank and open in her dealings with his/her Law Society and with the Court, and where at times, s/he had attempted to deceive her society and the Court. Law Society of the Cape of Good Hope and Another v Holmes 2006 (2) SA 139 (C) An Applicant for admission as an Advocate cannot on the one hand plead that he was wrongly convicted, or alternatively, that he has reformed. Reformation can only begin when a person acknowledges that he has committed the wrongful act. Ex parte Ngwenya: In re Ngwenya v Society of Advocates, Pretoria and Another 2006 (2) SA 87 (W). Where an Attorney, apart from instances of under-banking trust monies, also stole monies by convincing an insurance company to pay the proceeds due under a life insurance policy to himself instead of to the beneficiary PROFESSIONAL LEGAL ETHICS © LSSA 9  and then withdrew such moneys for personal purposes and then denied doing so despite clear evidence to the contrary, the Court ruled that he was not a fit and proper person to practise notwithstanding the fact that he was a pillar of the society who served the community and worked for the poor regardless of their ability to pay fees. (Vassen v Law Society of the Cape 1998(4) 532 (SCA)). An Attorney convicted of a criminal offence, and who during the course of the trial not only committed perjury in raising a false alibi, but also suborned another to do so to support his alibi and who persisted in lies for four years during the appeals process was found unfit to practise as such conduct constituted a protracted attempt to deceive the Courts. (Jasat v Natal Law Society 2000 (3) SA 44 (SCA)). Where the books of account kept by the Attorneys reflected a trust shortage in excess of R12 million, where it had been found that they were touting for work and where numerous clients and some colleagues had raised complaints of unprofessional and dishonourable conduct in their relationships with clients and colleagues, the Appellate Division found that the Court a quo had been correct in concluding that the Appellants were not fit and proper persons to practice and that their names should be removed from the roll. (Botha and Others v Law Society, Northern Provinces 2009 (3) SA 329 (SCA)). In Malan and Another v Law Society, Northern Provinces 2009 (1) SA 216 (SCA), the Appeal Court questioned the Appellants’ honesty: They touted on a scale and in a manner that could only be ascribed to dishonesty; it was dishonest to charge a client for professional services not rendered; it was dishonest to charge a client for the cost of a tout under the heading ‘disbursements’; and at least part of the explanation for the failure to keep proper books was also untrue. Aggravating features were that clients were prejudiced and that, once the firm’s wrongdoings became known, the Appellants were obstructive. In order to stem an erosion of professional ethical values, a ‘conservative approach’ was more appropriate in this case than an enlightened approach which required Courts to adopt a more lenient approach and the order for the Legal Practitioners’ removal from the roll was consequently confirmed. The duty to withdraw from a matter by means of delivery of formal notice of withdrawal as Attorney of record in terms of Rule 16(4)(a) was addressed in the matter of Harmse v Road Accident Fund (50887/18; 38403/17; 33821/17; 35970/18; 49128/18; 2316/14; 447/16) ZAGPPHC 76; 2 All SA 613 (GP); 2021 (3) SA 538 (GP) (4 March 2021) where it was held: o An Attorney who does not intend to play any further active role in litigation has a duty to timeously withdraw from matter by means of delivery of formal notice of withdrawal as Attorney of record in terms of Rule 16(4)(a). This duty is owed, not only to the Attorney’s own client, but also to the Court, to the Attorneys on the other side and PROFESSIONAL LEGAL ETHICS © LSSA 10  to the other litigants in the matter. Failure to do so out of self- interest constitutes unprofessional conduct. Some of the matters proceeded on an unopposed basis by virtue of the lack of any appearance for the Defendant. In the others, settlement had been reached between the parties by virtue of the Plaintiff, acting through its legal representatives having engaged directly with the Defendant through one or more of its claim’s handlers, in the absence of the Defendant’s Attorneys of record. o A common feature in all of the matters, however, is that the Defendant’s Attorneys of record, who had previously been actively involved in the matter by signing pleadings, delivering documents and the like, had at some point prior to the hearing of the matter, ceased playing any further role in the proceedings and, despite this, failed to withdraw as Attorney of record. In the case of The Law Society of the Cape of Good Hope v Berrange 2005 (5) SA 160 (C) the Court had to consider the vexed issue regarding ‘marketing agreements’ or ‘schemes’ between Attorneys and Estate Agents. In terms of this scheme, certain estate agencies (Seeff and Pam Golding) referred conveyancing work to Berrange’s firm and from time to time received payments totalling in excess of R500 000. The payments clearly constituted ‘soliciting’ of professional work within the meaning of Rule 14.6.1.1. The Respondent, accordingly, was guilty of unprofessional conduct and suspended from practice for a period of two years. (See also Sibiya v Director-General: Home Affairs and Others and 55 Related Cases 2009 (5) SA 145 (KZP)). Misappropriation of trust money is amongst the most serious offences of which an Attorney may make him or herself guilty of since it undermines the very core of the relationship between Attorney and client. An Attorney is placed in a unique role, in that he/she is put in a position to conduct matters of trust with the public. The law exacts from him/her uberrima fides where s/he acts as Agent for others. It is therefore essential that the public should be able to rely implicitly on the integrity and good faith of an Attorney they may wish to employ. As upper custodians of the integrity of the profession, our Courts are bound to be particularly astute to condemn, in the strongest terms, any deviation from that standard. (Law Society of the Cape of Good Hope and Another vs Holmes 2006 (2) SA 139 (C)). Where an Attorney used touts to secure work relating to personal injury claims; ‘purchased’ third party claims from touts; shared offices and fees on a 50:50 basis with non-Attorneys acting as touts and continuously defended herself during the course of disciplinary proceedings that she had not been guilty of any misconduct, the Supreme Court of Appeal held that her denials were untruthful and held that the only suitable sanction was the removal of her name from the roll. (Law Society of the Northern Provinces v Sonntag 2012 (1) SA 372 (SCA)). PROFESSIONAL LEGAL ETHICS © LSSA 11  In Swartzberg v Law Society, Northern Provinces 2008 (5) SA 322 (SCA) the Applicant made an application to the High Court for his readmission as an Attorney after he was struck off the roll some eight years previously for failing to keep proper books of account, theft of trust moneys and fraud. It was held that where a person applied for readmission in these circumstances, the onus was on him to convince the Court, on a balance of probabilities, that there had been a genuine, complete and permanent reformation on his part; The factors to be taken into account by a Court in determining whether or not an Applicant for readmission had discharged that onus included: (i) the nature and degree of the conduct which occasioned his removal from the roll; (ii) the explanation, if any, afforded by the Applicant for such conduct; (iii) the way in which he conducted himself in an enquiry into his conduct and subsequent proceedings for his removal; (iv) the lapse of time between his removal and his application for readmission; (v) his activities subsequent to removal; (vi) his expression of contrition and its genuineness; and (vii) his efforts to repair the harm that his conduct might have occasioned to others. Only in the most exceptional of circumstances, where he had worked to expiate the results of his conduct and to satisfy the Court that he had changed completely, would a Court consider readmission at all. In the present case the Appellant had failed to discharge the onus of convincing the Court that he was a fit and proper person to be readmitted as an Attorney. In Mtshabe vs Law Society of the Cape of Good Hope 2014 (5) SA 376 (ECM) the Court had to consider an application for re-admission of a former Attorney who was struck off the roll and sentenced to eight years’ imprisonment but released on parole after serving only three years and seven months of his term. In the course of his practice as an Attorney he had defrauded the State by overcharging and billing his client, the Minister of Defence for work not done. In considering whether the Applicant had discharged the onus of being a fit and proper person, the Court applied the same principles as set out in the Swartzberg case supra and came to the conclusion that it would be wholly contrary to public policy that a person in that position could be regarded as being a fit and proper person to be admitted as a Legal Practitioner. In Cape Law Society v Steyn (23322/2016) ZANCHC the Court in contrasting the matter to that of the aforementioned Mtshabe judgment found that ‘notwithstanding the undoubtedly serious nature of the Respondent’s transgressions in the past, he cannot on the papers be said to be, at this PROFESSIONAL LEGAL ETHICS © LSSA 12  point in time, not fit and proper to practice…Unlike Mtshabe, the Respondent has repeatedly and visibly demonstrated his remorse and his realisation of what he had done and of the harm he had caused’. In Hepple and Others v Law Society of the Northern Provinces 3 All SA 408 (SCA) an investigation into the accounting and financial records of Hepple and Earle revealed a number of irregularities amounting to contraventions of the Attorneys Act No. 53 of 1979 and the Rules of the OFS Law Society. These included substantial trust deficits in the books of account; misappropriation of trust funds; failure to account to the Law Society for interest generated from the trust banking accounts as required by Section 78(3) of the Act; failure to keep copies of bank reconciliation statements; and the manipulation of bank reconciliation statements to conceal trust deficits. On appeal to the SCA against their removal from the roll of Attorneys, the Court held that it was convinced that the irregularities in the trust accounts were not merely the result of accounting errors but were the result of deliberate dishonesty and the appeal was accordingly dismissed with costs. In Law Society of the Northern Provinces v Mangena ZAGPPHC 219 (GP) the Court ruled that it would not be in the interests of the public to allow the Respondent to continue practising whilst the application for leave to appeal has still not been determined. In Law Society of the Northern Provinces v Ronald Bobroff and Others Case No. 20066/2016 (GP) (unreported) the Court ordered after considering the three-pronged test, that both the Bobroffs are to be struck of the roll. The Court went on to find that, ‘the only appropriate sanction was to strike their names from the roll of Attorneys. Mr Ronald Bobroff was a senior member of the Attorneys’ profession and a past president of the Law Society. Despite repeated admonitions from several judges he, together with Mr Darren Bobroff, persisted in using every possible avenue to delay, frustrate and avoid facing up to the serious charges of a practice-wide conduct of overreaching clients… and other unprofessional, dishonourable and even fraudulent conduct.’ 1.5.1 Uphold the Law Because a Legal Practitioner is associated with the administration of law, he is under a positive duty to maintain the law at all times. This obviously means that he must not break the law. Being convicted of a criminal offence (other than merely trivial offences such as a minor traffic infringement) usually amounts to unprofessional conduct even if no dishonesty is involved because it may indicate that the Legal Practitioner has disrespect for the law. “If an Applicant (for admission as an Attorney) declares that he will defy any laws of the Republic, it is difficult to see how he can be considered to PROFESSIONAL LEGAL ETHICS © LSSA 13  be a fit and proper person as is envisaged in the LPA. His conduct amounts to a repudiation of the oath or affirmation of allegiance even before he takes it”. Prince v President, Cape Law Society & Others 2000 (3) SA 845 (SCA) In the case of Incorporated Law Society v Behrman 1957 (3) SA 221 (T), the Law Society of Transvaal (now a Provincial Council) applied for the removal of the Attorney’s name from the roll. Ramsbottom J, who handed down the judgment, said at 222BE the following: “It seems to me that it would be improper for this Court to do anything other than what the Law Society requests in the circumstances of this case. The offence committed by the Respondent was one of the greatest gravities. Being an officer of the Court and entrusted with duties in the administration of justice, the Respondent attempted not only to corrupt a policeman, who is himself an officer of justice, but to defeat the course of justice in proceedings which were pending against certain alleged wrongdoers. What he did was to offend against the very thing which he was sworn to uphold. The question which we have to consider is whether a man who has shown himself capable of committing that very serious offence against the profession and against the administration of justice is a fit and proper person to remain upon the roll of Attorneys and to be entrusted with the duties of an officer of the Court. In my opinion there can be only one answer to that question: he has shown himself not to be fit. An Attorney who is found guilty of corruption, bribery and defeating the ends of justice must face removal of his name from the roll. I cannot dream up any mitigating circumstances.” Law Society, Transvaal v Blumberg, 1987 (3) SA 650 (T); Law Society of the Orange Free State v du Toit 1983 (OPD) 103; Natal Law Society v Maqubela 1986 (3) SA 849 (N); Mafara v Law Society of Zimbabwe 1988 (3) SA 247 (ZS); Reyneke v Cape Law Society 1994 (1) SA 359 (A); Prokureursorde Transvaal v Van der Merwe 1985 (2) SA 208 (T). In the case of Jasat v Natal Law Society 2000 (3) SA 44 (HHA) the Appellant, an Attorney, was convicted in a Regional Court on a criminal charge. He advanced a false alibi defence, suborned a witness to give evidence in support of his alibi and persisted in his false alibi throughout appeal proceedings in two further Courts. The Court held that Jasat’s conduct in advancing a specious alibi defence, knowingly giving false PROFESSIONAL LEGAL ETHICS © LSSA 14  evidence in support of it and calling a witness to support his false evidence, demonstrated that he was not a fit and proper person to continue to practice as an Attorney and that he should be struck off the roll. The Jasat case remains the seminal case in instances where Courts are called upon to strike an Attorney from the roll or suspend an Attorney from practice. 1.5.2 Dishonesty Not Required There may be unprofessional conduct without positive dishonesty. If an Attorney, by what he or she has done, evidences that he or she does not understand the nature and extent of the obligations to clients which the profession imposes, or if he does not observe them, then, given the sufficient gravity of the impropriety, he or she may be held guilty of unprofessional conduct. Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T) General Council of the Bar of South Africa v Van der Spuy 1999(1) SA 577(T) In a recent case a man was divorcing his wife and claiming custody of the two minor children. The Attorney brought an urgent application for his client’s spouse to return household goods which she had taken when she left the family home. The Judge took the view that the application was only brought by the Attorney to harass and intimidate his client’s spouse. The Judge pointed out in this case that people in divorces went to Attorneys to “assist them in safeguarding their interests and the rights of their family”, but in this case the Judge said that “the attorney is not assisting the resolution of his client’s problems – he is exacerbating them”. The matter was not referred to the Law Society by the Judge, but the co- chairperson of the Law Society said that it was “unacceptable for Attorneys to use intimadatory tactics aimed at getting an unfair advantage in the case”. http://www.capetownlawyer.co.za/divorce/lawyer/unethical-attorney.php 1.5.3 Do Not Assist your Client to Break the Law A Legal Practitioner’s duty to uphold the law also requires that he or she must not assist a client to break the law. If a client proposes to break the law, the Legal Practitioner must alert the client to the consequences of such action and seek to dissuade him or her. However, it is not improper for a Legal Practitioner to advise a client on how to take advantage of a loophole in the law. PROFESSIONAL LEGAL ETHICS © LSSA 15  A Legal Practitioner’s responsibility towards his client can never override his or her duty to uphold the law. Accordingly, the Legal Practitioner must not do anything that is dishonourable, even if it is in the interests of the client and he or she is pressed to do it. “An Attorney must not participate in or support his client in anything unlawful in which the client is engaged or contemplates engaging and if in respect of the matter in hand he finds that his client is so engaging or minded to do so, it is the Practitioner’s duty to attempt to restrain him. Practitioners must be careful to avoid assisting in breaking the law and must impress on clients the need to abide by it; the client who persists will be met by the Attorney’s refusal to continue acting.” Lewis: Legal Ethics p. 115 HEG Consulting Enterprises (PTY) Ltd and Others v Siegwart & Others 2000 (1) 507 C 1.5.4 Personal Life The standards of behaviour expected of a Legal Practitioner are very demanding and extend not only to his professional life but also to his personal life. The rationale is that if you do something which brings you into disrepute, then the profession will be brought into disrepute and further, the administration of justice – of which you are an integral part – will be brought into disrepute. Even though personal misconduct may have less weight than professional misconduct, it may still be a ground for striking a Legal Practitioner off the roll of Attorneys because it may show that he or she is not a fit and proper person to practise law. Transvaal Law Society v Kleynhans 1995 (1) SA 839 (T); Cape Law Society v Reyneke 1990 (4) SA 437 ECD; Law Society, Transvaal v Blumberg 1987 (3) SA 659 (T); Prokureursorde Transvaal v Van der Merwe 1985 (2) SA 208 (T); Prokureursorde van die Oranje Vrystaat v Roodt 1996 (2) SA 498 (O) 1.6 LEWIS’ GOLDEN RULE Lewis (Legal Ethics p 8) states as follows: Lewis writes that: PROFESSIONAL LEGAL ETHICS © LSSA 16  “the lawyer is bound to act with the utmost honour and fairness with regard to his client for whom he is bound to use his utmost skill but not to degrade himself for the purpose of winning his client’s case...” and “it is clear from all the authorities that this duty of honesty and fairness is not limited to the treatment of the client, but extends to the treatment of everyone…” and “A Practitioner must avoid all conduct which, if known, could damage his reputation as an honourable lawyer and honourable citizen.” This rule is not a counsel of perfection, for reputations are not damaged by those trivial lapses to which even the best is subject. The point is that absolute obedience to the rule in all instances stands as the ideal to which each Legal Practitioner should consciously strive. Where a Legal Practitioner’s conduct falls short of the rule the extent to which it will be reprehended and dealt with as misconduct, will depend upon its gravity or the frequency of its commission by that Legal Practitioner and it may well be that a number of trivial lapses revealing a pattern of indifference to the rule will promote disciplinary action, though each in itself was neither serious nor frequent. There are currently some 29 981 practising Attorneys and 5 483 Candidate Attorneys in South Africa. Attorneys are officers of the Court and are registered on the roll of Attorneys at the Legal Practice Council. An overview of the Attorneys’ profession (As at January 2022) https://www.lssa.org.za/about-us/about-the-attorneys-profession/statistics-for-the- attorneys-profession/ 2. WHERE DOES ONE FIND THE RULES OF PROFESSIONAL CONDUCT? 2.1 THE CONCEPT OF PROFESSIONAL CONDUCT  Professional conduct concerns itself with the Rules of Conduct regulating the legal profession.  It provides the norms in terms whereof Legal Practitioners are judged to be fit and proper persons to practise.  The purpose of ethical Rules is to regulate a Legal Practitioner’s conduct, not only in their professional career, but also in their personal life. 2.2 MAIN REFERENCE SOURCES OF THE RULES OF PROFESSIONAL CONDUCT The final Code of Conduct for all Legal Practitioners (Attorneys and Advocates) as well as all Candidate Legal Practitioners has been published by the South African Legal Practice Council (LPC). The Code is effective from 29 March 2019. PROFESSIONAL LEGAL ETHICS © LSSA 17  https://www.michalsons.com/blog/code-of-conduct-for-all-legal-practitioners- overview-and-download/38051 2.2.1 Legal Practice Act No. 28 of 2014 as amended On 23 January 2015, the President promulgated that parts 1 and 2 (Sections 96 – 109) of Chapter 10 were to come into operation on 1 February 2015. Chapter 2 of the LPA, dealing with transitional arrangements came into operation three years from 1 February 2015. The Legal Practice Council came into effect on the 30 October 2018, replacing the Provincial Law Societies and unifying the regulation of the profession. The Sections that initially came into operation pertained to the formation of the National Forum and its mandate during the transitional period. The National Forum in terms of Section 97(1) after the commencement of this Chapter – (a) made recommendations to the Minister on the following: (i) An election procedure for purposes of constituting the Council; (ii) the establishment of the Provincial Councils and their areas of jurisdiction, considering the factors referred to in Section 23(2)(a); (iii) the composition, powers and functions of the Provincial Councils; (iv) the manner in which the Provincial Councils must be elected; (v) all the practical vocational training requirements that Candidate Legal Practitioners or pupils must comply with before they can be admitted by the Court as Legal Practitioners; (vi) The right of appearance of a Candidate Legal Practitioner in Court or any other institution; (vii) a mechanism to wind up the affairs of the National Forum. (b) prepare and publish a Code of Conduct for Legal Practitioners, Candidate Legal Practitioners and juristic entities; and (c) make Rules, as provided for in Section 109(2). On 30 October 2018, the historical implementation of the LPA occurred (with some exclusions). In this regard see Proclamation R31 of 2018. The new regulatory body of a consolidated legal profession, the Legal Practice Council (LPC) was constituted and resulted in the subsequent winding up of the National Forum. PROFESSIONAL LEGAL ETHICS © LSSA 18  The LPA has as its aim: To provide a legislative framework for the transformation and restructuring of the legal profession in line with constitutional imperatives so as to facilitate and enhance an independent legal profession that broadly reflects the diversity and demographics of the Republic; to provide for the establishment, powers and functions of a single South African Legal Practice Council and Provincial Councils in order to regulate the affairs of Legal Practitioners and to set norms and standards; to provide for the admission and enrolment of Legal Practitioners; to regulate the professional conduct of Legal Practitioners so as to ensure accountable conduct; to provide for the establishment of an Office of a Legal Services Ombud and for the appointment, powers and functions of a Legal Services Ombud; to provide for a Legal Practitioners’ Fidelity Fund and a Board of Control for the Fidelity Fund; to provide for the establishment, powers and functions of a National Forum on the Legal Profession; and to provide for matters connected therewith. The implementation of the Legal Practice Act No. 28 of 2014 effectively repeals the Attorneys Act No. 53 of 1979 as amended and abolishes the four Provincial Law Societies. The previous structural framework was taken over by the Legal Practice Council. Chapter 4 of the Legal Practice Act No. 28 of 2014 and specifically, Sections 36 – 44, pertains to professional conduct and the establishment of disciplinary bodies. A Code of Conduct for Legal Practitioners and Candidate Legal Practitioners and juristic entities published in terms of Section 97(1)(b) of the Legal Practice Act No. 28 of 2014 and approved and implemented the Code of Conduct sets standards of conduct which can be enforced by the Legal Practice Council. Part III of the Code deals specifically with the Conduct of Attorneys. Regarding transitory arrangements, certain Sections of the Legal Practice Act No. 28 of 2014 must be considered and accordingly the prior regulatory framework is considered hereunder. 2.2.2 The Repealed Attorneys Act No. 53 of 1979 as amended The Attorney’s Act, which came into operation on 1 June 1979, was a very important piece of legislation. Not only did it prescribe the qualification and admission requirements of Attorneys, but it also dealt with:  the Constitution of the various Law Societies and their Councils in the Republic of South Africa;  the Attorneys Fidelity Fund; PROFESSIONAL LEGAL ETHICS © LSSA 19   the manner in which trust accounts must be kept;  the Councils’ disciplinary functions and powers;  the fines which may be imposed on Attorneys and Candidate Attorneys;  the work which may only be performed by Attorneys;  the work for which only Attorneys may charge a fee; and  the procedure to be followed when promulgating Rules. The LPA and the Rules of the LPC and the approved Regulations now govern the profession. 2.2.3 Law Society of South Africa Since 1998, the Law Society of South Africa (LSSA) has represented the Attorneys’ profession. With the enactment of the Legal Practice Act No. 28 of 2014 and the establishment of the Legal Practice Council (LPC), the LSSA transformed itself by changing its constitution to reflect both its new role as the representative body with key objectives of leading a transformed profession within a changing environment and legal practice. The LSSA brings together the Black Lawyers Association, the National Association of Democratic Lawyers and independent Attorneys, in representing the Attorneys’ profession in South Africa. View the history of the LSSA and its constitution on the LSSA’s website (www.LSSA.org.za). The LSSA  speaks nationally on behalf of the Attorneys’ profession;  provides leadership and support to the profession through policy development and stakeholder relations;  publishes De Rebus, the South African Attorneys’ journal in digital format, which circulates to all Attorneys, and Judges as well as subscribers in digital format, as well as a mobile application;  interrogates and makes input on policy and draft legislation in the public interest;  provides Practical Vocational Training courses to over 2 500 Candidate Legal Practitioners a year;  has 10 Centres of the PVT School for Legal Practice: Bloemfontein, Polokwane, Cape Town, Port Elizabeth, Durban, Potchefstroom, East London, Pretoria, and Johannesburg as well as a distance training centre in co-operation with Unisa. PROFESSIONAL LEGAL ETHICS © LSSA 20  These Schools largely serve those Candidates who cannot find PVT contracts and the Schools do extensive practical training and prepare them for the competency-based admission examinations, thereby the training increases their chances for PVT contracts, with credit obtained for the practical skills transfer and facilitates access to PVT contracts and the profession;  is accredited as the premier provider of other Practical Vocational Training courses (PVT) for Candidate Legal Practitioners in terms of the Legal Practice Act No. 28 of 2014;  is accredited as the premier provider of subsidised Practice Management Training (PMT) for mandatory practice management in terms of the Legal Practice Act No. 28 of 2014;  maintains standards by setting examination papers for the Admission, Conveyancing and Notarial professional competency- based examinations for Attorneys and Advocates, under the direction of the Legal Practice Council (LPC); and  maintains a national database on statistics and trends in the Attorneys’ profession. The LSSA also  Set up the Legal Practitioners Development Fund together with its constituent members and the Legal Practitioners’ Fidelity Fund to assist PDI Practitioners;  Undertakes advocacy initiatives and comments on legislation in the interests of the profession and the public;  Is the premier provider of relevant and affordable continuing professional development for Attorneys and Candidate Legal Practitioners. The LSSA also  Protects and promotes democracy by o Protecting and promoting the independence of the judiciary and of the legal profession; o Supporting the efficient administration of the justice system; o Monitoring National and Local elections in cooperation with the Electoral Commission (IEC) as well as Regional elections through the SADC Lawyers Association; o Co-operating with colleagues in the SADC region and Internationally in democratisation initiatives. It is important to understand the roles and responsibilities of the LPC and the LSSA in terms of the Legal Practice Act No. 28 of 2014: PROFESSIONAL LEGAL ETHICS © LSSA 21  LEGAL PRACTICE COUNCIL LAW SOCIETY OF SOUTH AFRICA (LSSA) (LPC)  Represent public interests.  Voice of the profession.  Regulation.  Assessments for entry to the profession (LPC accreditation).  Discipline.  Legal Education Training (mandatory and PPD).  Transformation.  Represent Legal Practitioners’ interest Local and International.  Policies and Codes of conduct.  A forum for Legal Practitioners to gather and deliberate.  Accreditation and monitoring.  Practice management resources.  Data and Records.  Transformation of the profession.  Examinations / Assessments.  Lobby government on key issues.  Comment on proposals affecting the profession and society.  Publishes a digital legal journal for all Legal Practitioners. 2.2.4 The South African Legal Practice Council Rules made under authority of Section 95(1) of the LPA Candidates are referred to ('APPLICABLE RULES’) of this training guide. 2.2.5 Code of conduct for Legal Practitioners, Candidate Legal Practitioners and juristic entities published in terms of Section 97(1)(b) of the LPA Candidates are referred to ('APPLICABLE RULES’) of this training guide. 2.2.6 Court Decisions There is an abundance of Court decisions available, and these are readily obtainable in the Law Reports at the libraries of Legal Practitioners or the Regional Provincial Councils. Ethical Rules cannot alone be made by professional organisations – the Courts must instigate them. 2.2.7 Common Law Common law finds its origin in Roman-Dutch law and is also influenced by English law. It is the basis of our law and contains general principles. Most of our common law has been changed by legislation. But common PROFESSIONAL LEGAL ETHICS © LSSA 22  law still applies if legislation does not. Common law is developed by the Courts in a way that promotes the spirit of the Constitution. 2.2.8 South African Textbooks The following South African publications have addressed questions of professional conduct over the years:  LAWSA, vol. 14, “Attorneys, Notaries and Conveyancers” by H F Mellet, 256 – 433;  Lewis, E A L, “Legal Ethics”;  The Law Society: The Guide to Professional Conduct of Solicitors: 1990: The Law Society  Lewis & Kyrou’s Handy Hints on Legal Practice: (2nd South African ed LexisNexis 2011);  Mahomed et al “Clinical Law in South Africa” 3rd ed – Chapter 3;  The monthly Attorneys’ journal De Rebus (available online from 2012);  P Ellis and A T Lamey ‘The South African Legal Practitioner’ A commentary on the Legal Practice Act;  Only the last three publications referred to are readily available. The others are out of print and can at best be found in the libraries of the Provincial Offices of the Legal Practice Council the South African Archives. 2.2.9 Foreign Influences  The International Bar Association;  The International Code of Ethics;  The International Bar Association’s general principles of ethics;  The American Bar Association;  The English Law Society;  The Law Society: Solicitors’ Practice Rules and Codes;  The Law Society: The Professional Conduct of Solicitors;  The Law, Practice & Conduct for Solicitors (by Alan Paterson, Director of the Centre for Professional Legal Studies at Strathclyde University, and Bruce Ritchie, Director of Professional Practice in the Law Society of Scotland);  The Codes of Ethics and/or professional Conduct Rules applicable in a variety of countries throughout the world to which Legal Practitioners may have to refer in the case of conducting cross- border practices. PROFESSIONAL LEGAL ETHICS © LSSA 23 3. THE STRUCTURE OF THE ORGANISED PROFESSION 3.1 LEGAL PRACTICE ACT NO. 28 OF 2014 (LPA) 3.1.1 Purpose of the LPA  The LPA provides a legislative framework for the transformation and restructuring of the legal profession in line with constitutional imperatives so as to facilitate and enhance an independent legal profession that broadly reflects the diversity and demographics of the Republic.  The LPA provides for the establishment, powers and functions of a single South African Legal Practice Council and Provincial Councils in order to regulate the affairs of Legal Practitioners and to set norms and standards.  The LPA provides for the admission and enrolment of Legal Practitioners.  The LPA regulates the professional conduct of Legal Practitioners so as to ensure accountable conduct.  The LPA provides for the establishment of an Office of a Legal Services Ombud and for the appointment, powers and functions of a Legal Services Ombud.  The LPA provides for a Legal Practitioners’ Fidelity Fund and a Board of Control for the Fidelity Fund.  The LPA provides for the establishment, powers and functions of a National Forum on the Legal Profession and it provides for matters connected therewith. 3.1.2 Main Provisions and Implications of the LPA The legal profession is no longer self-regulating and the LPC is the regulatory authority which reports to the Minister of Justice.  9 Provincial Councils have delegated functions.  6 Liaison Committees are situated at the High Courts where there are no Provincial Councils.  Bar Councils, the LSSA and other voluntary bodies undertake legal training subject to accreditation by the LPC and all disciplinary functions are done by the LPC.  The LPA contains effective and transparent procedures for resolution of complaints.  The LPA makes provision for Advocates who can elect to accept briefs directly from the public, but they must have trust accounts, subject to Rules and Regulations under the authority of the LPC. (See the conversion requirements on the LSSA website: PROFESSIONAL LEGAL ETHICS © LSSA 24  https://www.lssa.org.za/frequently-asked-questions/)  All Attorneys and Advocates are authorised to enrol as Legal Practitioners under the LPA.  The Fidelity Fund Boards has powers to inspect books of account.  The Fidelity Fund Boards has powers to levy contributions.  Fee tariffs to be prescribed in the Regulations (Section 35).  Compulsory fees estimate notice to the Client (Section 35).  New funding regime which means that Legal Practitioners will pay higher levies.  The Legal Practice Council (LPC) will have an emphasis on Regulation and on matters of public interest.  The Act makes provision for mandatory continued practice development and mandatory community service.  Legal Practitioners will be able to practise and have right of appearance in any Court in the country.  Conversions between practising as an Attorney and an Advocate is allowed. 3.1.3 “Legal Practitioner” The Legal Practice Council (LPC) regulates all Legal Practitioners and Candidate Legal Practitioners. A “Legal Practitioner” means an Attorney or an Advocate admitted and enrolled in terms of Section 24 and Section 30. A ‘‘Candidate Legal Practitioner’’ means a person undergoing practical vocational training, either as a Candidate Attorney or as a Pupil. A person who applies for admission, also applies for enrolment on the practising or non-practising roll. Only practising Legal Practitioners are eligible for election onto the Legal Practice Council and Provincial Councils (hereinafter referred to as the PCs), and may vote. PROFESSIONAL LEGAL ETHICS © LSSA 25  Different Legal Practitioners Attorneys Trust Account Referral Advocates Advocates Admitted by the High Court Admitted by the High Admitted by the High (Section 24). Court (Section 24). Court (Section 24). Enrolled by the LPC (Section Enrolled by the LPC Enrolled by the LPC 30). (Section 30). (Section 30). Conveyancers and Notaries (Section 26). Appearance: Any Court, but Appearance: Any Court Appearance: Any Court certificate is required for (Section 25). (Section 25). HC/SCA/CC (Section 25). Briefed by the public, must Briefed by the public and Briefed by Attorneys and have a trust account and FF Justice Centres, must Justice Centres (Section certificate and comply with have a trust account and 34(2)(a)). Chapter 7 (Section 34(1)). FF certificate and comply with Chapter 7 (Section 34(2)(b)). Practise: Practise: Practise:  Own account.  Own account.  Own account.  In juristic entity with other  May not share fees.  May not share fees. Attorneys.  Law Clinics.  Law Clinics.  Law Clinics.  LASA.  LASA.  LASA.  State Advocate /  State Advocate /  State Attorney / SAHRC. SAHRC Section 34(6). SAHRC Section 34 Section 34(5) & (7). (6). Conversion in terms of Rules Conversion in terms of Conversion in terms of (Section 32). Rules (Section 32). Rules (Section 32). Candidates must pay special attention to the current Code of Conduct for the three different types of Legal Practitioners, as set out in parts III, IV and V of the said code which has been incorporated at the end of this training guide and Candidates must be prepared to address this code under examination circumstances. PROFESSIONAL LEGAL ETHICS © LSSA 26  3.1.4 Regulatory Measures The Legal Practice Act No. 28 of 2014, as amended; The Regulations in terms of Section 94 and Section 109 were agreed between the National Forum (hereinafter referred to as the NF) and the Minister; The Rules in terms of Section 95(1) and (3), finalised by the NF on 7 July 2018; and The Code of Conduct in terms of Section 97(1)(b) that came into effect 29 March 2019. 3.1.5 National Forum Transfer agreements were concluded with the four statutory Law Societies, providing for the transfer of assets, right, liabilities, obligations, and staff to the LPC and the PCs. The parties agreed that R50 million of the Law Societies’ money will be transferred to the LSSA, which will continue to exist as a representative organisation. The Transitional Arrangements Committee (TAC) of the NF had to ensure a smooth transfer of regulatory functions of the existing Law Societies and Advocates’ structures to the new LPC and the 9 PCs. The TAC consisted of representatives of the NF, the Law Societies and the Advocates. 3.1.6 Legal Practice Council The Legal Practice Council (LPC) consists of: 10 Attorneys; 6 Advocates; 2 teachers of Law; 3 persons designated by the Minister; 1 person designated by Legal Aid SA; Person designated by the Legal Practitioners’ Fidelity Fund. 3.1.7 Composition of the Provincial Councils 9 Provincial Council’s (PC’s) situated in: Eastern Cape; Free State; Gauteng; KwaZulu-Natal; Limpopo; Mpumalanga; Northern Cape; PROFESSIONAL LEGAL ETHICS © LSSA 27  North West; Western Cape. Each PC, except for Gauteng (4 instead of 2 white Attorneys) consists of: 4 black Attorneys; 2 white Attorneys; 2 black Advocates; 2 white Advocates. 50% of the Legal Practitioners serving on any PC must be female and 50% male. 3.1.8 Functions of the Provincial Councils (PCs) - (Regulation 5) The different functions of the PCs (these are delegated functions as received from the Legal Practice Council) are: To establish committees (Section 23(6)); To enrol admitted Legal Practitioners (Section 30); To maintain the roll of Legal Practitioners, Notaries and Conveyancers in its area of jurisdiction (Section 30(3)); To receive and process applications for admission (Section 24(2)); To register and administer Practical Vocational Training contracts (Regulations 6 and 7); To process applications by Attorneys for certificates to appear in HC etc., (Section 25(4)); To process applications for Candidate Attorneys for certificates for the right of appearance (Section 25(5)); To grant exemptions to Candidate Legal Practitioners from performing community service (Section 29(3)); To retain copies of Court orders relating to Legal Practitioners (Section 30(5)); To suspend the enrolment of a Legal Practitioner (Section 31); To process applications for conversion of enrolment by Legal Practitioners (Section 32); To approve applications for the establishment of Law Clinics (Section 34(8)); To establish investigating and disciplinary committees (Section 37); Other disciplinary and administrative functions (Chapter 4); PROFESSIONAL LEGAL ETHICS © LSSA 28  Lodging of an application to the High Court to suspend a Legal Practitioner (Section 43); To process applications for Fidelity Fund Certificates (Sections 85 and 85(6)); To inspect accounting records of trust account practices (Section 87(2)); Lodging of applications to the High Court to prohibit Legal Practitioners from operating trust accounts and to appoint a curator bonis to administer such a trust account (Section 89); Lodging of applications to the High Court for an order appointing a curator bonis to administer a trust account in terms of Section 90; To report to the Legal Practice Council on the performance of its functions, as and when required. 3.2 CONVERSION OF ENROLMENT Attorney to Advocate Must lodge the prescribed form and pay prescribed fee; Must decide if he/she will have a trust account; Must have right of appearance in the High Court; Must have had some training in advocacy as a pupil. The Legal Practice Council may set other requirements Alves and Others v Legal Practice Council JOL 45259 (WCC) In Alves and others v Legal Practice Council JOL 45259 (WCC) the Applicants wanted to have their names removed from the roll of Attorneys and be enrolled as Advocates. The central issue for determination was whether the Applicants, all being admitted Legal Practitioners and enrolled as Attorneys, were entitled to rely on Section 115 of the Legal Practice Act No. 28 of 2014 to be enrolled by the Legal Practice Council as Advocates of the High Court. All of them had successfully undertaken practical training as Candidate Attorneys, passed Board Examinations, and been found to be fit and proper by the High Court. Opposing the applications, the Respondent submitted that the conversion mechanism in Section 32 of the Act should be utilised by the Applicants and not Section 115, because Section 115 only applies to people or Applicants who have never been admitted as Legal Practitioners before. The Court held that the Applicants could not apply for conversion under Section 32 because they were required to undergo a specialised training course in Advocacy and there was no course available in Cape Town. Secondly, not all of the Applicants had rights of appearance in the High Court as required by Section 25(3). PROFESSIONAL LEGAL ETHICS © LSSA 29  Section 115 should be interpreted to mean that persons who qualified for admission and enrolment under the old Act prior to 1 November 2018 are entitled to be admitted and enrolled as Advocates. In that regard, the Court stated that it is imperative to interpret legislation in a sensible, business-like manner and to consider both the text and the context. The Court granted an order admitting the Applicants as Legal Practitioners and ordering the Respondent to enrol them as Advocates. Advocate to Attorney  Must lodge the prescribed form and pay fee;  Must have passed the same accounting exam as Candidate Legal Practitioners;  Must have attended a legal practice management course;  Must have been enrolled for 12 months (or 3 years if no pupillage / training course attended approved by the General Council of the Bar (GCB)). Practising to Non-Practising Legal Practitioner  Must lodge the prescribed form and pay fee;  Must lodge a certificate by the Registrar that he/she has no proceedings pending against a Legal Practitioner. Non-Practising to Practising Legal Practitioner  Must lodge the prescribed form and pay fee;  Must notify the Legal Practitioners’ Fidelity Fund and obtain a Fidelity Fund certificate, if applicable. Referral Advocate to Advocate with Trust Account  Must lodge the prescribed form and pay fee;  Must have knowledge of accounting necessary for keeping accounting records;  Must have attended a legal practice management course. Advocate with Trust Account to Referral Advocate  Must lodge the prescribed form and pay fee. 3.3 REQUIREMENTS FOR ADMISSION AS AN ATTORNEY  LLB degree;  BProc degree;  Attend the Practical Vocational Training (this may include community service); PROFESSIONAL LEGAL ETHICS © LSSA 30   Attend a Practice Management Course for Attorneys and Trust Account Advocates;  Write the Competency-based Admission Examination. See Kgomotso Ramotsho Independent Institute of Education (Pty) Limited v KwaZulu-Natal Law Society and Others (CC) (unreported case no CCT 68/19, 11-12-2019) Mogoeng CJ (Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, and Victor AJ concurring) Theron J (Foreman J concurring) where the Constitutional Court held that “Graduates from the Independent Institute of Education are eligible for admission and enrolment as Legal Practitioners in terms of the LPA”. 3.4 FORMS OF LEGAL PRACTICE 3.4.1 Introduction Legal practice in South Africa has traditionally been structured along the lines of the English system, generally known as the "divided bar" or "referral system", whereby Attorneys receive their instructions from the client and, if required, brief Counsel. Attorneys may also qualify further and be admitted as Notaries and Conveyancers. This option is not open to Advocates. Attorneys are entitled to practise for his or her own account, in partnership with another Attorney or other Attorneys, or a juristic entity, collectively referred to in the Code as a "firm", while Advocates may not do so. 3.4.2 Partnerships of Attorneys Here we point out some common law features of a partnership, which ought to be kept in mind in interpreting the provisions of the Legal Practice Act. A partnership comes into being as a result of a contract between two or more individuals, which contract must contain the following three elements: (a) each party must undertake to bring into the partnership money, labour and skill. In the case of a partnership of Attorneys, each partner must be a duly admitted Attorney; (b) the partnership business must be intended to be carried on for the joint benefit of all the parties; (c) the common objective is to make a profit. During the existence of the partnership, agreements with third parties, in this case clients or Advocates, come into being with the partnership and not the individual partner concerned. Therefore, the partnership is obliged to execute the mandate and the partnership must be sued by creditors, not the individual partner. Execution is levied against the partnership PROFESSIONAL LEGAL ETHICS © LSSA 31  assets first, and only against the individual partners if the partnership's assets are insufficient to cover the debt. The Code contains various provisions regarding practice in partnership. The first is that an Attorney or a firm may not, directly or indirectly, enter into any express or tacit agreement, arrangement or scheme of operation or any partnership (express, tacit or implied), the result or potential result whereof is to secure for him or her or it the benefit of professional work, solicited by a person who is not an Attorney, for reward, whether in money or in kind; but this prohibition shall not in any way limit bona fide and proper marketing activities by full time employees of the Attorney or firm. The second relates to the disclosure of the names of partners or directors (in the case of an incorporated practice). Code 9.1 provides that an Attorney must disclose his or her name on any letterhead used for the practice and, in the case of a partnership, the names of all the partners or, in the case of a juristic entity, the names of all directors. An Attorney may also disclose in his or her letterhead or in other publications the name of any person employed by him or her or his or her firm in any capacity but must then indicate clearly whether or not such person is an Attorney or his or her partner or fellow director. The Attorney may also, with the written consent of the Council, publish the names of consultants, associates, professional assistants, or Candidate Attorneys, provided they are duly described as such. The same applies to other professionals employed by the firm, from fields other than law, such professional status as may be appropriate, or in the case of management employees, the descriptive management title. A partnership is dissolved when the partners agree to dissolve it, when a partner dies or resigns, or when a new partner is taken on. The consequences of the dissolution of a partnership are: (a) the partners are not regarded inter se as debtor and creditor in respect of the partnership assets or liabilities until such time as the partnership has been wound up or until there has been a binding settlement of accounts; (b) one partner may not sue the other partner or partners for a balance owing until after a winding up or binding settlement of accounts; (c) where the partnership agreement (or a subsequent agreement) provides for the dissolution of the partnership and the manner in which the partnership assets are to be dealt with upon dissolution, a partner may sue the other partner for specific performance with the actio pro socio; PROFESSIONAL LEGAL ETHICS © LSSA 32  (d) where there is no provision in the partnership agreement (or a subsequent agreement) for the method of dissolution or distribution of the partnership assets, a partner may claim the winding up of the partnership with the actio pro socio; (e) what becomes of the "partnership business" is therefore a matter of agreement between the erstwhile partners, or the liquidator; (f) a partnership is deemed to remain in existence as far as creditors are concerned, until their claims have been discharged. 3.4.3 Juristic entities Section 34(7) of the Act provides for practice as an Attorney under a commercial juristic entity providing that, in terms of its founding documents its shareholding, partnership or membership as the case may be, is comprised exclusively of Attorneys, provision is made for legal services to be rendered only by or under the supervision of admitted and enrolled Attorneys, and all present and past shareholders, partners or members, as the case may be, are liable jointly and severally together with the commercial juristic entity for the debts and liabilities of the commercial juristic entity which are or were contracted during their period of office and in respect of any theft committed during their period of office. 3.4.4 Other entities In Section 34(5), the right of Attorneys to practise for their own account, in partnership or as members of a "commercial juristic entity", is guaranteed. However, the following further categories are added: (a) Attorneys practising as part of a Law Clinic established in terms of Section 34(8); (b) Attorneys practising as part of Legal Aid South Africa; or (c) An Attorney in the fulltime employment of the State as a State Attorney or the South African Human Rights Commission. Section 34(8) provides for legal practices such as Law Clinics. Subject to the approval of the Council in terms of the Rules, a Law Clinic may be established by a non-profit juristic entity registered in terms of the Non- Profit Organisations Act No. 71of 1997 to conduct a legal practice if, in terms of its founding documents, the majority of the members of its governing body is comprised of Legal Practitioners and, upon its winding up, dissolution or voluntary deregistration, any asset remaining after all liabilities have been met are to be transferred to another non-profit organisation having similar objectives to it or to any University in the PROFESSIONAL LEGAL ETHICS © LSSA 33  Republic if it is constituted and governed as part of the Faculty of Law at that University. A Law Clinic may render legal services only if those services are rendered by or under the supervision of Attorneys; may not make over to, share or divide any portion of its professional fee, whether by way of partnership, commission, allowance or otherwise; may not distribute any of its income or property to its members, governors or employees except as reasonable compensation for services rendered; may engage Candidate Legal Practitioners only if it complies with the requirements determined by the Council in the Rules and may not render those legal services determined by the Council in the Rules. Legal services rendered by a Law Clinic must be accessible to the public and must, subject to Section 92, be rendered to the recipient of those services free of charge, except that the Law Clinic may recover any amounts actually disbursed on behalf of the recipient of the services. Section 34(9) makes provision for future recognition of other forms of Legal Practitioners, such as limited liability practices, multidisciplinary practices, and paralegals. The Council is enjoined to investigate and make recommendations to the Minister, within two years of the coming into operation of Chapter 2 of the Act, after taking into account best international practices, the public interest and the interests of the legal profession, with a view to legislative and other interventions in order to improve access to the legal profession and access to justice gener