Chapter 1 - Ethics

Question 1

Explain the concept of professional conduct

Answer 1

1. rules of conduct regulating the legal profession
2. norms of a Fit and proper person
3. Regulate persons conduct and personal life

Question 2

Where does one find the rules of professional conduct

Answer 2

Legal Practice Act
Code of Conduct
Legal Practice Rules
Common Law
Textbooks (South Africa)
Repealed Attorneys’ Act
Foreign Influences

Question 3

Where do professional conduct rules apply

Answer 3

Relationship with:
1. client
2.other Practitioners
3. Courts
4. Public
5. State
6. LPC

Question 4

What are professional legal ethics

Answer 4

1. concern themselves with the rules of conduct regulating the attorneys’ profession
2. norms in terms whereof practitioners are judged to be fit and proper

Question 5

name two types of Advocates

Answer 5

1. Trust account Adv
2. Referral Adv

Question 6

What if the Fidelity Fund

Answer 6

1. protects the public from property fraud and corrupt practitioners
2. ensures that funds are handled responsibly
   Reimburses the public if money or property is stolen from a trust account

Question 7

how long is a fidelity fund certificate valid

Answer 7

one year. From Jan - Dec

Question 8

Who needs a Fidelity Fund certificate

Answer 8

Attorneys, Adv and trust account holders

Question 9

Explain Section 15 of Attorneys Act

Answer 9

Require that an Attorney must be

1. a fit and proper person
2. be over 21 or older
3. SA citizen
4. has an LLB
5. passed board exams
6. attended approved training course
7. has completed articles

Question 10

What are the duties of an Attorney

Answer 10

• obey your client’s instructions
• absolute honesty
• not corrupt the administration of justice
• not to abuse the court process
• to confidentiality
• to be honest and fair
• not overcharge or overreach

Question 11

what is an attorney’s Lien?

Answer 11

seeks to protect attorneys from clients who change their attorneys without paying their costs.

a Lien = the attorneys right to retain documents in his possession until the client has paid the account.

Question 12

What is the role of a commissioner of oaths?

Answer 12

to assist members of the local community by administering an oath or affirmation and certify documents as true copies of originals

Question 13

what question to ask when administering the oath / affirmation

Answer 13

1. Whether he knows and understands the contents of the declaration
2. whether he has any objection to taking the oath
3. whether he considers the oath to be binding on his conscience.

Question 14

what is a conflict of interest in an attorneys practice?

Answer 14

anything which is likely to affect your judgment adversely in advising or representing your client

Question 15

what are the two ways you can have an contingency fee agreement

Answer 15

1. no win no fee
2. increased fee agreement- must not exceed 25% or 100% of fee which ever is less

Question 16

key element of contingency fee

Answer 16

• must be in writing
• signed by both client and attorney
  -must state that the client was properly advised in respect of fees
• client understands the agreement
• amount due

Question 17

with who can an attorney share fees with?

Answer 17

only other attorneys

Question 18

what is FICA?

Answer 18

Financial Intelligence Centre Act 38 of 2001

Question 19

purpose of FICA

Answer 19

the act was instituted in order to fight financial crime such as money laundering, fraud, tax evasion, terrorist financing activities and identity thefts

Question 20

can an attorney receive cash payments?

Answer 20

yes- must report cash transactions above a prescribed amount within 72 hours.

this includes cash received in hand or cash deposited in bank account.

Question 21

where to go when you are not sure whether conduct is ethical

Answer 21

consult with- Lewis
- own research
- LPC
- consult with Snr Counsel

Question 22

what is the purpose of LPC

Answer 22

• admission / enrolment of legal practitioners
• regulates the professional conduct of legal practitioners
• establishment of an office of a legal service ombudsman
  provides for fidelity fund certificate

Question 23

can an attorney refuse any mandate

Answer 23

yes if-
- he does not have the expertise to do the work
-he does not have sufficient time
-he is in a conflict of interest situation
-cannot come to a arrangement about fees
- the instructions is unlawful, immoral or contrary to public policy

Question 24

when can an attorney terminate his mandate

Answer 24

• failure to pay fees and/or disbursments
• improper conduct
• request from the client to do something illegal or dishonourable
  -failure to provide attorney with instructions
• client’s deliberate fraud
• illness of the attorney
• where client does not accept the attorneys advice

Question 25

what is misconduct

Answer 25

- a breach of the act or code -failure to comply with act or code - any conduct which is considered to be misconduct -prevailing standard of conduct

Question 26

what is overreaching

Answer 26

abuse the ignorance charging client more

Question 27

what is POPI?

Answer 27

Protection of Personal Information

Question 28

what is the purpose of POPI

Answer 28

- aims to protect the personal information processed by public and private bodies

Question 29

What is touting?

Answer 29

attorney procures or attempts to procure professional work in an improper or unprofessional manner or by unfair or unethical means

Question 30

what is section 86(4)

Answer 30

when an attorney invest monies on behalf of client in an interest bearing account 5% interest goes to LPFF 95% interest goes to client

Question 31

what is Edictal Citation

Answer 31

servicing not in South Africa Ex parte application

Question 32

what is Substituted Service

Answer 32

Service in SA but whereabouts not known Ex Parte application

Question 33

what is pro amico

Answer 33

free representation by an attorney for a friend

Question 34

what is pro bono

Answer 34

to perform legal services for the public good or poor communities without charging fees

Question 35

what is costs de bonis propriis

Answer 35

out of one's own pocket are awarded by our courts against attorneys, trustees or executors.

Question 36

what is party and party costs

Answer 36

costs that have been incurred by a party to legal proceedings and that the other party is ordered to pay to him

Question 37

what is attorney and client costs

Answer 37

costs which an attorney is entitled to recover from his or her client for the disbursements made by him on behalf of his client and the professional services rendered by him

Question 38

what is attorney and own client costs

Answer 38

the remuneration that the attorney is entitled to in terms of the agreement / mandate

Question 39

what is a fit and proper person

Answer 39

A practitioner is a fit and proper person if they possess qualities that reflect integrity and reliability. Fit and proper means fit and proper in every respect and not only honesty and reliability. Judge Legodi described a fit and proper person as someone possessing integrity, objectivity, dignity, capacity for hard work, respect for legal order and a sense of equality or fairness

Question 40

List two sources of income for the Fidelity Fund

Answer 40

Interest on trust money Income from own investments

Question 41

What are the consequences of practicing without a Fidelity Fund Certificate?

Answer 41

Contravention of the Act and you may not claim fees for that time period. Can also be struck from the roll

Question 42

You allow a client’s claim to prescribe. What steps must you take to Protect yourself

Answer 42

- the attorney must, immediately after the fact that the claim has prescribed becomes known, advise his professional indemnity insurer and the Attorneys Indemnity Insurance Fund of the potential claim. -If a formal demand or summons is received, this must also be handed to the insurer(s) before entering a notice of intention to defend or taking any further step.

Question 43

You allow a client’s claim to prescribe. What steps must you take to Protect the client

Answer 43

- The attorney must advise his client in writing that the claim has become prescribed. -He must, however, not admit to negligence as this may vitiate his rights under his professional indemnity policy and the master policy issued by the Attorneys Indemnity Insurance Fund. - The attorney must also advise his client to consult another attorney regarding the original claim and the prescription of that claim.

Question 44

Discuss the concept of “Without Prejudice”

Answer 44

Without Prejudice – bona fide attempts of both parties to a matter to settle the matter.

Question 45

What are the obligations of an attorney pertaining to FICA?

Answer 45

-Make such records available to the Financial Intelligence Centre on the strength of a warrant; -Inform the centre on request of the existence of a current or past mandate; -Report cash transactions above a prescribed amount (currently R50 000 and over) to the Centre; and -Report to the Centre the conveyance in terms of a transaction with a client of cash above a prescribed amount to or through specified account or institution.

Question 46

May an attorney defend an accused person who admits that he is guilty of an offence charged?

Answer 46

It is not unethical to defend a person whom the attorney knows to be guilty. The onus is on the state to prove guilt. The attorney may not mislead the court or allow the client to give evidence which the attorney knows to be untrue. The attorney may, however, test the state witnesses by cross examination in regard to matters of identification, etc.

Question 47

Before the start of a criminal trial in which you will represent the accused, you discover that the magistrate is the mother of the complainant. How would you apply the applicable ruses of conduct and what will you do if you are unsuccessful?

Answer 47

The magistrate must recuse herself. Firstly, I will inform her in chambers (1) that I will apply for recusal. If she declines, I will apply in open court (1). If she still refuses I will continue with the case (i.e. no review/appeal) (1). If my client is acquitted, then no harm had been done (1); however, if my client is convicted I will have grounds for review (1).