LEET LU4 part 1

• The Legal Practice Act 28 of 2014 (the LPA) was signed into law on 22 September 2014
• The LPA


  Seeks to regulate the legal profession in the hope of creating accountable, efficient and independent legal practitioners
• The LPA has resulted in the creation of the Legal Practice Council (the LPC)
• The South African Legal Practice Council Rules must be observed by all legal practitioners
• Failure to observe the South African Legal Practice Council Rules may result in serious legal sanctions
• Purpose of Learning Unit 3


  To look at professional conduct as ethical conduct, by analysing professional practice and professional conduct, examining the Legal Practice Council and the Rules of Professional Conduct, and contemplating the enforcement of discipline
• Sources of ethics and conduct rules

  • The Legal Practice Act, 2014 and regulations thereunder
  • The State Attorneys Act, 1957
  • Contingency Fees Act, 1997
  • Rules Board for Court of Law Act, 1985
  • Legal Aid South Africa Act, 2014
  • The Common Law
  • Decided Cases
  • Practice Directives
• Attorney's duty to client

  • Not bound to do whatever the client wishes, but to act in the client's advantage, profit or interest
  • Should not be party to the client's fraudulent or dishonourable conduct
  • Must reflect the highest possible degree of good and conduct with inflexible regard for truth
  • Must uphold values of honour and integrity
  • Must serve the client faithfully, diligently and without undue delay
• Attorney cannot act in a matter if it involves a conflict of interest
• Attorney must not disclose confidential information about the client to the opposing side or others in general without the client's consent
• Attorney has a duty of faithfulness and constant communication with the client regarding their case and its progress
• Attorney must not abandon the client without good and lawful reasons
• Before accepting instructions


  Attorney must consider: potential conflicts of interest, whether the client's instructions involve illegality or impropriety, whether the attorney has the necessary skills and knowledge, whether the attorney is capable of executing the mandate within a reasonable time
• Once the attorney accepts the client and furnishes a mandate, a relationship between attorney and client arises which imposes certain rights and duties
• Legal practitioners may not act in any matter unless they have clear instructions to that effect
• Mandate


  • The services that legal practitioners render to their clients are mainly those which an agent renders to his or her principal
  • A mandate may not be in writing, may be general or specific, or may be implied by circumstances
  • A client cannot generally prescribe the manner in which the services are to be rendered
• Acting contrary to the scope of the mandate, thereby causing harm to the client, will usually result in civil liability for damages
• Settlement negotiations


  • The duty to adhere to the mandate is nowhere as acute as in settlement negotiations
  • All settlement proposals received must be presented to the client, even if the practitioners considers the proposal to be inadequate
  • Practitioners may not compromise a claims claim without instructions to that effect
  • Practitioners should confirm instructions in writing or have the client sign a statement clearly defining the parameters of the authority to settle
  • The effect of a settlement must be fully explained to clients in order to obtain informed consent
• Where it later appears that the attorney was not expressly authorised to settle the matter, the client may be estopped from raising this as a basis to withdraw from the settlement
• Conflict of interest


  • A conflicting interest is one which would be likely to affect adversely the judgment of the lawyer on behalf of his or her loyalty to a client or prospective client or which the lawyer might be prompted to prefer to the interest of the client or prospective client
  • Conflicts could arise at anytime and in any matter
  • Some conflicts are easily recognisable, others are less obvious
  • It is the duty of legal practitioners to learn to recognise conflict and to deal with them appropriately
• Conflicts of interest


  • Acting for both Plaintiff and Defendant in the same case
  • Acting for two clients with conflicting versions in a criminal matter
  • Acting for both the seller and the purchaser in a property transaction
  • Acting against former clients and using or disclosing confidential information
  • Acting in matters where the practitioner may be called as a witness
• Breach of the duty of confidentiality by a practitioner may result in legal action for damages or the granting of an interdict against further disclosure
• Legal professional privilege


  • Certain communications between legal practitioners and clients may not be used as evidence
  • Applies to all communications between practitioners and clients, whether written or oral, that are intended to be confidential and disclosed for the purposes of giving and receiving legal advice or for existing or contemplated litigation
• Legal professional privilege does not apply to communications which are not otherwise privileged or not intended to be confidential
• Confidentiality


  Clients' matter should never be discussed in a way which may reveal their identity and files containing clients' documents must be kept safe
• Legal professional privilege


  Certain communications between legal practitioners and clients may not be used as evidence
• Legal professional privilege applies to

  • All communications between practitioners and clients
  • Whether written or oral
  • That they are intended to be confidential
  • Disclosed to the practitioners for the purposes of giving and receiving legal advice
  • For existing contemplated litigation
• Legal professional privilege does not apply to

  • Communications which are not otherwise privileged
  • Communications not intended to be confidential
  • Communications made for the purposes of facilitating a crime
  • The name of the client
  • Facts learnt through the legal practitioners own means
• Duty of care and skill

  The contractual relationship between legal practitioners and their clients imposes a duty on practitioners to act with reasonable skill and care in the conduct of client's affairs
• Failure to exercise the standard of care and normally expected of a legal practitioner constitutes a breach of contract, entitling the client to claim contractual damages
• Damages are also recoverable ex delictu on the basis that practitioners are obliged to exercise due and reasonable care in the conduct of their clients
• Test for professional negligence


  Whether the average legal practitioners in similar circumstances would have acted differently
• Cases of professional negligence

  • Slomowitz v Kok 1983 (1) SA 130 (A)
  • Manase v Minister of Safety and Security and Another 2003 (1) SA 567 (CkHC)
  • Mazibuko v Singer 1997 (4) SA 839 (W)
  • Bouwer v Harding 1997 (4) SA 1023 (SE)
• Duty of respect and fairness


  The exact content of the duty, or even its mere existence would depend on the facts of each case
• Cases on duty of respect and fairness

  • Barlow Rand v Lebos 1985 (4) SA 341 (T)
  • Fine v Society of Advocates of South Africa 1983 (4) 488 (A)
• Seniority in the attorney's profession

  • Age is the determining criteria between attorneys of different firms
  • Seniority plays a role in the venue of conferences and etiquette
• Seniority in the advocate's profession

  • A formal distinction is made between senior counsel (SC) and junior counsel
  • Seniority determines who leads when more than one counsel is employed, and it also determined the seating arrangements in court
• Rules of etiquette


  • Common courtesy goes a long way in establishing and maintaining good relationships with colleagues
  • Taking unfair advantage of time limits may cause unnecessary friction
• Referral rule


  Advocates may not accept instructions from clients without the intervention of an attorney
• The Legal Practice Act has now provided for advocates to apply for a Fidelity Fund Certificate whereby they can directly liaise with clients