Leet

• Blaw 4- LEGAL ETHICS LEET8411 - 2023 Learning unit 4 : applied PROFESSIONAL CONDUCT
• Prescribed textbook Mahomed, S.H .et al. Clinical Law in South Africa. 3rd ed. 2016- CHAPTERS 3 AND 7
• See further PM for LU4 on page 8 of module outline
• Disciplinary hearings within the profession had remained closed even after the Constitution came into effect. However, the LPA mandated open hearings and public participation. Only in 2014 did the advocates ' profession agree it was ' simply wrong ' to close disciplinary hearings automatically.
• The attorneys' profession took even longer to concede: unless members were struck from the roll in open court, provincial law societies would not reveal their names. There was significant evidence of misconduct.
• In 2012, the Law Society of the Northern Provinces (the largest) 'held 203 inquiries involving 603 attorneys. Some 425 complaints were upheld, leading to 25 warnings and 23 suspensions'. Nationwide, 78 attorneys were struck from the roll. In 2016 – 17 the Law Society of the Northern Provinces held 161 inquiries involving 724 attorneys and 2 candidate attorneys. The High Court struck 33 from the roll, suspended 29, and interdicted four from practising on their own account.
• In terms of the Legal Practice Act: Code of Ethics, misconduct is defined as:
• Misconduct


  • a breach of the Act or of the code or of any of the rules, or a failure to comply with the Act or the code or any rule with which it is the attorney's duty to comply
  • any conduct which would reasonably be considered as misconduct on the part of an attorney or which tends to bring the attorney's profession into disrepute provided that this code is not applicable to the private life of an attorney insofar as the activities in an attorney's private life do not impact on his or her practice as an attorney, or on the attorneys profession
• Remember Lewis's Golden Rule?
• See page 15 of the Code of Practice.
• Section 38(1) of the LPA: The LPC must make rules to determine the procedure to be followed by disciplinary bodies established in terms of section 37 for dealing with all complaints of misconduct relating to legal practitioners, whether practicing as an advocate, an attorney or a candidate legal practitioner which complaint must be lodged in writing with the Council
• Section 38(3) of the LPA: Particulars of all disciplinary hearings, including the particulars of— (a) the allegations of misconduct being dealt with; (b) the members of the disciplinary committees in question; (c) the legal practitioners, candidate legal practitioners or juristic entities involved in the dispute; and (d) the outcome thereof and any sanction imposed in terms of section 40(3), if applicable, must, subject to subsection (4)(a), be— (i) published on the website of the Council; (ii) updated, at least, once every month by the Council; and (iii)available for inspection by members of the public during business hours of the Council and relevant Provincial Councils.
• Section 38(4) of the LPA: The proceedings of all disciplinary hearings are open to the public, unless the chairperson of a disciplinary committee directs otherwise, on good cause shown, on application by a person having an interest in the matter, whereafter the provisions of section 154(1) to (5) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), apply with the necessary changes required by the context. The complainant in the matter is entitled to be present during all proceedings in a disciplinary hearing relating to his or her complaint in the same manner as a complainant in criminal proceedings.
• Section 38(5) of the LPA: (a) A decision of the majority of the members present at a disciplinary hearing constitutes the decision of a disciplinary committee. (b) In the event of a deadlock in the voting, the chairperson has a casting vote, in addition to a deliberative vote.
• Section 39 of the LPA: A disciplinary committee may subpoena a person to appear before it at any time or date as required to be questioned or produce a document and or object; Witnesses may be sworn in to give oral evidence; The person charged: May be present at the proceedings; May assisted or represented by another person or legal practitioner; Has a right to be heard; May call witnesses; May cross-examine any witness called in support of the charge; May have access to any book, documents or object used as evidence; May admit at any time before conviction that he or she is guilty of the charge; may, in the case where he or she makes an admission in terms be deemed to be guilty of misconduct as charged.
• Witnesses who have been subpoenaed may not- Fail to attend without sufficient cause; Refuse to be sworn in or take the affirmation; Without sufficient cause fail to answer questions fully and satisfactorily to the best of their knowledge all questions lawfully put to them; Fail to product any book, document or object in his or her possession or custody which he or she is required to produce; Leave unless they have been excused by the chairperson; The law relating to privilege, as applicable to a witness subpoenaed to give evidence or to produce a book, document or object in a civil trial before a court of law applies; Give a false statement after being worn in knowing that such statement is false;
• After conclusion of the hearing, the disciplinary committee has 30 days to decide whether the person charged is guilty of misconduct; Should a guilty verdict be agreed upon; The disciplinary committee must informs the person and or their legal representative of the finding as well as informing his or her of their right to appeal the decision in terms of section 41 of the LPA; (self study see section 41); The person found guilty of misconduct may address the disciplinary committee in mitigation of sentence and call upon witnesses to evidence in support of mitigation of sentence; However; the disciplinary committee may also call upon witnesses to give evidence in support of aggravation of sentence
• A person found guilty of misconduct may: Be ordered to pay compensation with or without interest to the complainant; Impose a fine; Temporarily suspend his or her from practicing or from engaging in any particular aspect of practice; Advice the Legal Practice Council to make an application to the High Court for: An Order striking that practitioner from the roll; An Order suspending him or her from practice; An interdict preventing his or her from handling any Trust monies; And other appropriate relief; Order that his or her Fidelity Fund Certificate be withdrawn; Warn him or her against certain conduct and order that such warning be endorsed against his or her enrolment.
• 40(3)(b) in the case of a juristic entity— (i) order it to pay compensation, with or without interest, to the complainant, which order is subject to confirmation by an order of any court having jurisdiction in the circumstances in the prescribed manner on application by the Council; (ii) impose upon it a fine, payable to the Council, not exceeding the amount determined from time to time by the Minister by notice in the Gazette, on the advice of the Council; (iii) warn it against certain conduct; (iv) advise the Council to apply to the High Court for the winding up of the juristic entity; or (v) caution or reprimand it; or 40(3)(c) in the case of a candidate legal practitioner— (i) cancel or suspend his or her practical vocational training; (ii) impose upon him or her a fine, payable to the Council, not exceeding the amount determined from time to time by the Minister by notice in the Gazette, on the advice of the Council; or (iii) caution or reprimand him or her.
• Remember that there is a difference between professional negligence and misconduct:
• RECAP FROM LU3


  • Statutory misconduct
  • Breach of a 'rule' in the profession
  • Unprescribed misconduct
  • Contravention of the mores of the community
  • Professional negligence
  • Legal practitioners are expected to possess special knowledge, skill and learning and must measure up to the standard of competence of a reasonable man professing such knowledge and skill
  • Where a legal practitioner falls short of the standard, and in doing so causes damage to the client, civil liability may be incurred based on professional negligence
• professional negligence must be distinguished from misconduct. Misconduct gives rise to disciplinary steps against the practitioner concerned, whereas professional negligence results in civil liability towards the client.
• Legal practitioners who are practicing attorneys as well as advocates are allowed to receive and hold trust accounts on behalf of clients. The provisions relating to trust funds therefore apply to attorneys and advocates. Before the LPA, only practicing attorneys were permitted to hold trust accounts however the LPA has provided that advocates may apply for Fidelity Fund Certificates which enables them to open Trust Accounts and deal directly with clients).
• When we deal with trust account management, we differentiate between attorney's trust accounts in its financial books, which denotes a collective reference to each client's trust account in the general ledger, the trust account ad two different trust investments accounts.
• Attorneys often receive large sums of money on behalf of their clients. It has been said that the dignity attached to the legal profession provides for the basis for a citizen to entrust his/her money to the attorney.
• Unfortunately, the good name of the profession has in the past been tarnished by dishonourable and criminal conduct on the part of attorneys in respect of trust funds.
• The Legal Practice Act makes it compulsory for all practicing attorneys to open and keep separate trust banking account at a banking institution in the Republic. ALL money held or received by an attorney on account of any person must be deposited into that account as soon as possible. Proper accounting records must be kept of all monies. An attorney who contravenes the provisions 'shall be guilty of unprofessional conduct and be liable to be struck off the roll or suspended from practice.
• The primary source of income of a law practice is derived from fees charged to clients for legal services rendered.
• It is common practice for all professional staff at a law firm to have monthly or annual 'fee targets'. Like any other business enterprise, the clients of a law practice are invoiced (billed) for legal services rendered.
• before you agree to render services to a client, you must discuss your fee structure with your client. This is usually done at the very first client consultation. By discussing your fee structure, there can be no doubt what your clients can expect and it is essential that your clients understand how they will be billed for your legal services.
• It is imperative that your client signed a fee and service agreement, also referred to as a mandate. It is a common problem in the profession where attorneys do not discuss the billing process and clients and shocked to receive an invoice for services.
• It is a requirement that your client sign a mandate as you do not want any misunderstandings or disputes later on. Should your client disagree with the fees, they are entitled to lodge a complain with the Legal Practice Council who in turn will determine whether the fees that you have charged are reasonable.
• When you solicit the services of a legal advisor you do so with a measure of trust and goodwill, but if the legal professional that you trusted misappropriates clients monies, the fund assists with the reimbursement of your monies if your claim is valid. The fund has access to legal counsel, we are transparent in all our dealings with the public and are professional and accessible.
• The purpose of the fund is to enhance justice and our unwavering commitment to you also ensures the acceleration of growth in the legal fraternity. The ultimate aim of the fund is to serve and protect clients from unethical and negligent practitioners who misappropriate client's monies.
• QUESTION 1: Before you start 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 rules of conduct and what will you do if you are unsuccessful?
• ANSWER: The magistrate must recuse herself. You must first inform her in chambers that you will apply for recusal. If she declines you apply in open court. Is she still refuses you continue (i.e. no review/appeal). If your client is acquitted, no harm done however if your client is convicted you have grounds for review.
• QUESTION 2: What makes a letter "without prejudice"? what is the effect?
• ANSWER: A letter is without prejudice if it is a genuine attempt at settlement. Whether the letter is marked "without prejudice" is irrelevant. Being without prejudice the letter is "privileged" i.e. may not be used in the specific litigation and need not be discovered. It may be used in other litigation.
• QUESTION 3: You negligently allow a claim for damages to prescribe. What is the effect of prescription? What should you advise your client: and what can you do in regard to your own position?
• ANSWER: The claim is "extinguished" and becomes unenforceable. Payments may validly be received but a summons is open to a special plea. You advise your client to seek independent advice but do not admit liability. You need to inform the Attorneys Insurance Indemnity fund and your own insurers of any claims. Pay the excess. You need not inform the Law Society but must respond to any complaints.