Lewis and Kyrous Handy Hints On Legal Practice Second South Africa DRM Unlocked

Lewis and Kyrou’s
Handy Hints
on Legal Practice
Second South African edition
Lewis and Kyrou’s
Handy Hints
on Legal Practice
Second South African edition
IM Hoffmann
Adapted from Lewis and Kyrou’s

Handy Hints on Legal Practice Third Edition
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© 2011
ISBN 978 0 409 049916
First edition 1985 Second edition 1993

Second impression 1987 Third edition includes index 2004
First South African Edition 1997 Reprinted 2011
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About the Authors
GORDON D LEWIS LL B (Melb) is a former Judge of the County Court of

Victoria. He formerly held the positions of Executive Director of the Law
Institute of Victoria, Victorian Commissioner for Corporate Affairs, Victorian
Government Solicitor and Part-time Lecturer in Professional Conduct,
University of Melbourne.
EMILIOS J KYROU LL B (Hons) (Melb), B Com (Melb), Grad Dip in Notarial
Practice (Victoria) is a Justice of the Supreme Court of Victoria and a former
partner of Mallesons Stephen Jaques.
ALBERT M DINELLI DPhil, BCL (Oxon, LL B (Hons) , BA (Hons) is a Barrister at
the Victorian Bar and a Senior Fellow in the Law School of the University of
Melbourne.
Editor of the South African edition

INGRID M. HOFFMANN is an attorney and conveyancer of the High Court of
South Africa and currently practises for own account under the style of
Hoffmann & Associates in Rondebosch, Western Cape. She was formerly the
Director of the Law Society of the Cape of Good Hope and served the
organised profession in the Cape from 1975 until 1995. She was also a part-
time lecturer in Ethics and Business Administration at the School of Legal
Practice from 1990 until 2001, and is still compiling the Professional Conduct
lecture notes for the Legal Education and Development Division of the Law
Society of South Africa.
She was a member of the International Bar Association from 1984 to 2007
and was chairman of SGP Committee 18, the Professional Conduct Com-
mittee of the IBA from 1992 to 1996. She also has been involved in drafting
the first General Principles to the IBA’s International Code of Ethics.
v
Foreword to the
South African edition
ER Liefeldt
I was delighted when asked by Mrs Ingrid Hoffmann to write this short
foreword – because of both the nature of the book itself and the experience
and competence of its author/editor.
Experience at the School for Legal Practice at the University of Cape Town
showed beyond doubt that legal graduates (no matter from which university)
are on graduation still unqualified to practise as attorneys without further in-
struction in the practice of law as opposed to the theory and to allow other-
wise would constitute graduates a danger to themselves, the profession and
the public. Hence the continuing necessity for articles and/or practical legal
training.
But neither articles nor the Schools for Legal Practice can fully equip an at-
torney starting practice for his or her career and it is precisely here that this
book fills a long-felt need in South Africa. It should be compulsory reading for
all those entering the profession, and even those long in practice would do
well to have a copy always to hand.
A word on attorney’s ethics – a subject dealt with in the work. While at the
School for Legal Practice I was saddened when students seeking articles told
me that their prospective principals regard the profession’s ethics with
amused contempt and a hindrance to the making of money. These lawyers
do not deserve the title of attorney and a spread of their attitude will reduce
our calling from a proud profession to a dubious activity.
The book is fundamentally an Australian work adapted for use in this coun-
try. I had originally undertaken to edit the work myself but on closer consid-
eration found myself too out of touch with practice and lacking experience in
or knowledge of too many aspects proposed to be covered. The profession is
fortunate that Mrs Hoffmann was available and readily willing to undertake
the task. Her experience as an attorney and for many years the Director of
the Law Society of the Cape of Good Hope dealing inter alia with disciplinary
vii
Handy Hints on Legal Practice
matters and assistance to practitioners, her office as chairman of the Interna-

tional Bar Association’s Professional Conduct Committee, her role as an in-
structor on Attorney’s Ethics at the School for Legal Practice, coupled with an
astonishing capacity for hard work have made her an ideal editor of this
book.
HERMANUS
October, 1996
viii
Foreword to the third edition
The Hon Sir Gerard Brennan

The peace and order of our communities, the relationships we have with
others, the freedoms we enjoy, our security of person and property, the
democracy we cherish – these are the fruits of the rule of law. What makes
the rule of law effective? Our common agreement that we should all abide by
the rule of law. But that consensus is itself underpinned by a legal system
which requires skilled lawyers to make it work fairly and effectively.
This is a book which tells us how the legal system works and how lawyers
put the rules of law to work in our communities. In law school there is an ap-
propriate emphasis on the rules of law, their inter-relationship, their origin in
statute or in the common law and the meaning given to those rules by con-
temporary courts. To be sure, knowledge of the rules is essential to equip the
competent lawyer but, without more, that knowledge would not ensure that
the rules are given effective application.
Some of the skills needed in legal practice – for example, the searches that
protect the purchaser of real estate – can be acquired by study; some are
mandated by particular legal rules – for example, the limitation periods for
commencing litigation; and some are acquired by experience and the obser-
vation of others. The practising lawyer needs to know what to do and how to
do it. He or she must know and observe the ethical standards which ensure
impartial, fair and efficient operation of the law, equality before the law and
courtesy among its practitioners. These capacities are acquired partly by pre-
cept but mostly by osmosis – the day to day experience of the work of re-
spected practitioners and peer group expectation. In this book, the authors
have blended legal rules with practical advice derived from wide experience
and a profound appreciation of the ethical standards of the profession. The
resulting publication is both an instruction and a check list when the practi-
tioner’s services are sought by those seeking legal advice or representation.
The authors have given us an invaluable aide memoire to assist in most areas
of professional practice.
Practitioners of the law are to be found in various kinds of employment as
well as in the traditional fields of the legal profession. The chapters describ-
ing the work of the in-house corporate lawyer and the in-house government
ix
lawyer will be of great assistance to those contemplating employment in one

or other of those fields. The duties owed by these lawyers to their clients
may be affected by the nature and terms of their employment. Similarly,
those who are contemplating entering the academic branch of the profession
– the branch on which the future of the profession largely depends – will find
that the authors have devoted a chapter to the benefits and burdens of life
as an “Academic Lawyer”. In whatever field novices choose to practise, they
will have two concerns – concerns which will never leave them throughout
their professional careers. One is a concern to provide proper representation
of, or advice to, every client; the other is to create and preserve a reputation
for good professional conduct, especially in the eyes of other lawyers. The
novice will find “Handy Hints” helpful in addressing these concerns, but the
scope of the work gives it value to the more experienced practitioner.
Wisdom will be found in the following pages, but it is imparted lightly and
with a pervasive sense of humour (essential to balance the seriousness of the
work in hand). To the advocate there is the cautionary advice: “What may be
mundane to you is possibly one of the most important events in the life of
the person you are representing.” The adviser is warned to “protect yourself
against the possibility of being sued for negligence”. New lawyers are offered
a “Survival Kit” to assist them and senior lawyers are eased gently into the
thought that it may be “Time to Quit”. The authors’ steady and friendly hand
is there for all stages of professional life.
x
Foreword to the second edition
The RT Hon Sir Ninian Stephen

For any young solicitor, for any junior at the bar, pitfalls abound, as do
occasional, and compensating, days of triumph. Life as a young lawyer as I
remember it was as stressful as it was exciting, constantly fluctuating
between deep despondency and high exhilaration, depending on the
fortunes of the day. Nor is all this confined to the tyro; even the veteran
lawyer still occasionally experiences the angst of the unfamiliar and it will be
a sad veteran who has wholly forgotten the savour of occasional high
success.
What one soon learns in the law is that to know the relevant law, assuming
that blessed state to be occasionally attainable, is not enough; there are in-
numerable practical questions to which legal studies provide no answers – all
the way from how best to initiate negotiations for settlement of an appar-
ently hopeless case to how to handle the naturally testy judge who gives
every sign of becoming as impatient with one’s client in the witness box as
one has long been with that same client out of it.
With experience, difficulties diminish but all experience is hard won, all too
often at the expense of the unfortunate client, whose consequent disillu-
sionment adds to the volume of public cynicism about lawyers and the law.
Now no longer need bitter experience and the ad hoc advice of others be
the only sources of practical guidance through the minefields of the law.
Judge Lewis and Emilios Kyrou first came to the rescue eight years ago with
their first edition of Handy Hints. This second edition retains all the wisdom,
and wit, of its predecessor while adding much that is new: discussion of such
esoteric topics as Chinese walls and alternative dispute resolution, of such
familiar afflictions as the “I can’t say no” syndrome and the “time to quit”
condition; these and other topics timely for the ’90s feature in this new edi-
tion.
The theme throughout is that common sense will solve many problems of
practice in the law. But what is common sense in any given situation may
only emerge in discussion and with wise counsel and, as the authors say, le-
gal practice can on occasion be a very lonely affair if there is no one with
whom to talk over troubles or discuss solutions. Handy Hints furnishes much
xi
common, and some uncommon, sense and for the lonely and troubled practi-
tioner it provides welcome company and wise advice. Its authors have given
us not only an invaluable guide to good practice in the law but also a delight-
ful description of its many tribulations and how best to survive them in good
shape.
xii
Foreword to the first edition
John Mortimer
My father, when he was busy persuading me to become a barrister, used to
say that all you needed for success in the law was a certain amount of
common sense and relatively clean finger nails. I believe I managed the
common sense, although I don’t know if the finger nails have always been
impeccable.
He was exaggerating, of course. It’s necessary to know a little law, and to
know where to look up the rest. But the daily practice of a barrister or a so-
licitor is something utterly removed from the theoretical legal studies which
go on in the safe atmosphere of schools and universities. The qualities the
practising lawyer needs, courage, persistence, a refusal to abandon the most
unlovable client or to be overawed by the highest tribunal, are no part of an
academic training. Nor is the true art of cross-examination, the even more
nerve-racking business of examination-in-chief, the skill needed to woo a
judge and the knowledge of when to abandon him and woo the jury instead,
taught in any university. Such lessons are only learnt in the hardest way in
the hardest courts in which the lawyer begins his real life, for it seems to be
the rule that the humblest courts are the most difficult and the least sympa-
thetic. The truth is that the law is not an academic subject. It only comes to
life when it’s applied in real situations, to people in real trouble.
Gordon Lewis and Emilios Kyrou have written a most valuable book which
gently and expertly bridges the gap between legal training and legal experi-
ence. A lawyer’s duty to his client (you must do everything for him except de-
ceive the court), his duty to his opponent and his duty to the tribunal before
which he practises are discussed with admirable common sense. A great part
of the civil lawyer’s life is concerned with negotiation and the authors deal
with such delicate manoeuvres with considerable expertise. If all their advice
were taken the legal world might be a better place: it is no part of a lawyer’s
duty to encourage his client to behave more greedily or more ruthlessly than
his better nature might suggest.
Lawyers are notoriously, together with income tax collectors, politicians
and traffic wardens, the most disliked members of the community. They are
thought to be dishonest, money-grubbing and insincere. And yet all our great
xiii
freedoms, the presumption of innocence, the right not to be imprisoned

without a trial, the right to silence and the requirement that police officers
should be restrained from inventing too many verbal admissions, depend on
the vigilance, courage and skill of lawyers. If they all follow the wise advice
contained in this book we should not have much to fear.
xiv
Preface to the second South African
edition
When I was still lecturing Professional Conduct and Business Administration

at the School for Legal Practice in Cape Town, twice a year I always presented
the best student in my class with a copy of the first South African Edition of
Handy Hints on Legal Practice as a prize in appreciation for his or her hard
work.
One day in 1999 I received a beautiful Christmas card and in it the follow-
ing letter:
“Hello Ms Hoffmann. I can never thank you enough for the life time ex-
perience you gave me as a gift . . . Today I am at Page 132 of the book and I
was telling myself that if I had this book before 29 June 1999, I would have
done much better in all my exams at the School for Legal Practice – especially
my contracts paper which turned out to be a disaster for me. I hope that you
will ensure that all students are referred to it when they start at the School.
Thanx again!”
Need I say more?
Much has happened since the publication of the first South African Edition
of Handy Hints on Legal Practice. The information-gathering technology has
developed to such an extent that today computer literate legal practitioners
can practise without many of the voluminous text books which in the past
occupied expensive office space. In fact, I wonder if there are still any practi-
tioners around who do not have computers. The same will probably go for
the good old fax machine soon.
Furthermore, the globalisation of the legal profession has now also em-
braced South Africa and many law firms have partners all over the world.
The number of legal practitioners in this country has almost doubled since
1996 and the corporate legal world has been unable to absorb them all.
Many of them are therefore practising as single practitioners from small of-
fices in the suburbs or from their homes without the support of senior men-
tors.
It is towards these practitioners that this second South African edition of
Handy Hints on Legal Practice is particularly directed. It contains a wealth of
xv
useful guidelines and practical tips specifically with regard to professional

conduct and the management of their practices from which they will hope-
fully derive many benefits.
My special thanks go to Syntyche de Waal of LexisNexis who patiently as-
sisted me with all the administrative problems which arose from time to time
in connection with the publication of this edition, as well as to my husband,
Helmut, for his continuous encouragement.
Ingrid Hoffmann
Cape Town
April 2011
xvi
Preface to the third edition
In the face of rapid changes to the practice of law, it is impossible for a book
on that subject to remain current and relevant for over 10 years. Handy Hints
on Legal Practice is no exception. Although many parts of the second edition
have enduring value, other parts have been overtaken by developments in
the law and changes in legal practice since that edition was published in
1993.
Many changes in the practice of law have resulted from rapid technological
change and increased globalisation. Communication by email and internet-
based legal research are now commonplace. Law firms have grown in size
and tend to operate along corporate lines. Career choices for lawyers have
expanded, with dramatic increases in the numbers of in-house corporate
lawyers and Australian lawyers working overseas. Paradoxically, there has
also been renewed emphasis in traditional ethical principles, possibly as a re-
action to criticisms of the increasing business focus of lawyers.
In the face of these and other changes, we have been asked constantly by
practitioners: “When will you write a third edition?” Our vague responses of
the past have now given way to action. The third edition is here.
Although the third edition is bulkier than its predecessors and covers more
topics, we have sought to preserve the underlying objectives of the first edi-
tion, namely for the book to be a simple and practical guide to the basic fea-
tures of legal practice, with liberal sprinklings of “common sense”. We have
also sought to ensure that the third edition continues to be of particular
benefit to law graduates and newly admitted practitioners.
To maintain the freshness, youthfulness and modern appeal of the book,
Gordon Lewis and Emilios Kyrou are delighted that Albert Dinelli has joined
them as the third author of the third edition.
All chapters of the book have been updated and many have been substan-
tially rewritten. The main differences between the second and third editions
are as follows:
l Part 1 contains three new chapters dealing with overriding ethical obliga-
tions (Chapter 6), independence (Chapter 7) and destruction of docu-
ments (Chapter 14).
xvii
l Maintaining contact with clients and termination of retainer are dealt

with separately in Part 1 (Chapters 3 and 4).
l Confidentiality and legal professional privilege are dealt with separately
in Part 1 (Chapters 8 and 9). Chapter 9 deals with the substantial changes
in the law of privilege, both common law and statutory, since 1993 and
includes a separate section on internal lawyers.
l The chapter “From the Bench” in Part 4 has been renamed “Court Eti-
quette” and is now Chapter 34. It has been divided into two parts, the
first directed to newly admitted lawyers and articled clerks and the sec-
ond to more senior practitioners.
l Part 5 contains a new chapter on common mistakes in commercial mat-
ters (Chapter 39).
l Part 6 contains two new chapters on email (Chapter 45) and the internet
(Chapter 53).
l The chapter “Back to Basics – Lessons from the 1980s” in Part 8 has been
deleted, although some of the text has been incorporated into the new
chapter on independence in Part 1 (Chapter 7).
l The chapter “Career Options” in Part 8 has been divided into new chap-
ters on working as a solicitor (Chapter 55), working as a barrister (Chap-
ter 56), working as an in-house corporate lawyer (Chapter 57), working as
an in-house government lawyer (Chapter 58), working as an academic
lawyer (Chapter 59), working as a judge’s associate (Chapter 60) and
working overseas (Chapter 61). An introductory chapter (Chapter 54) has
also been added.
It has always been our intention that Handy Hints on Legal Practice be
relevant not only to all Australian lawyers, but all lawyers throughout the
common law world. We were thus delighted that, in 1997, Ingrid Hoffmann
adapted the book for South Africa. The book was published under the title
Lewis & Kyrou’s Handy Hints on Legal Practice, South African Edition.
We hope that the third edition continues the fine tradition of its predeces-
sors of providing valuable practical guidance on the practice of law in a style
that is informative, easy to read and entertaining.
GD Lewis
EJ Kyrou
AM Dinelli
Melbourne, January 2004
xviii
Acknowledgements
A large number of people assisted us in various ways in the preparation of

the third edition.
Jason Pizer assisted with the preparation of Chapter 56, Carmel Mulhern
assisted with the preparation of Chapter 57, Alistair Pound assisted with the
preparation of Chapter 60 and Justin Graham assisted with the preparation of
Chapter 61.
Several partners, solicitors and other staff at Mallesons Stephen Jaques, in-
cluding Andrew Erikson, Peter Ickeringill, Diana Nicholson, Stephen Skehill,
James Crowe, Andrew Norman, Jeremy Whelen, Dragi Ristevski, Meg
O’Sullivan, Catherine Henderson, Adam Baxter, Junko Tadaki, Karen Stevens,
Michelle Mahoney and Carmel Dollison, made some suggestions in relation
to the book.
Useful suggestions were also made by Kim Rubenstein, Caron Beaton-
Wells, Sarah Joseph and Jonathan Clough, and by various seasonal clerks who
have worked at Mallesons Stephen Jaques including Lauren Holloway, Ed-
ward Gisonda, Jessica Rose, Crystal Lin and Gitanjali Bajaj.
Articled clerks at Mallesons Stephen Jaques, including Kelly Hughes, Jane
Reynolds, Natalie Shekel, Bridget Collier, Joshua Miller, Judy Bromham and
Cara Waters, assisted with research.
The staff of the Mallesons Stephen Jaques Melbourne library, particularly
Jane Marrie, Lyndon Lovell, Sue McKinnon, Bernie Lyons, Nadia Mammolito
and Carolyn White, also provided research assistance.
Mr Justice P W Young kindly agreed to the adaptation of his article “Court
Etiquette” (2002) 76 Australian Law Journal 303 in Chapter 34. His Honour
also made some suggestions in relation to Chapter 56.
Yve Williams and Margaret Feiam spent countless hours typing the manu-
script.
Without the assistance of the above individuals, the task of writing the
third edition would have been so much harder. We are grateful to all of
them.
xix
Publisher’s acknowledgements
Extracts from the following titles have been reprinted with the kind permis-
sion of:
Incorporated Council of Law Reporting for England & Wales

l The Law Reports, Appeal Cases
l The Law Reports, Chancery Division
l The Law Reports, Queen’s Bench
Law Council of Australia

l Model Rules of Professional Conduct and Practice 2002
Law Institute of Victoria

l Law Institute Journal
LexisNexis UK
l All England Reports
l Halsbury’s Laws of England
Sweet & Maxwell, Part of the Legal & Regulatory group of The Thomson
Corporation
l English Reports
The Consultative Council of Australian Law Reporting

l Victorian Reports
Thomson Lawbook Co. and the authors are grateful to the publishers, agents
and authors who have allowed us to use extracts of their work in this book.
While every care has been taken to establish and acknowledge copyright,
Thomson Lawbook Co. tenders its apology for any accidental infringement.
The publisher would be pleased to come to a suitable agreement with the
rightful owners in each case.
xx
Contents
Page
Part 1 Relationship with your client

1 Introduction to legal practice ......................................................... 3
2 First Interview with your client ...................................................... 5
3 Maintaining contact with your client.............................................. 17
4 Nature of retainer and when it can be terminated ........................ 19
5 Adhering to instructions ................................................................. 23
6 Overriding ethical obligations ........................................................ 27
7 Independence from your client ..................................................... 35
8 Confidentiality ................................................................................ 43
9 Legal professional privilege ............................................................ 49
10 Conflict of interest .......................................................................... 59
11 Costs................................................................................................ 77
12 Entitlement to documents.............................................................. 93
13 Attorney’s lien................................................................................. 99
14 Destruction of documents ............................................................. 105
15 Acting for friends or relatives ......................................................... 113
16 Sexual relations with clients ........................................................... 117
Part 2 Relationships with other practitioners

17 Duty to fellow practitioners............................................................ 127
18 Conducting negotiations................................................................. 129
19 Alternative dispute resolution procedures..................................... 135
20 Use of counsel................................................................................. 139
21 Communication with another practitioner’s client or witness....... 145
22 Client threats against practitioners ................................................ 153
xxi
Page
Part 3 Relationship with the profession and the
community
23 Duty to profession and community ................................................ 159
24 Assisting the disadvantaged (pro bono).......................................... 161
25 Undertakings................................................................................... 165
26 Precautions against negligence ...................................................... 171
27 Unprofessional conduct.................................................................. 191
Part 4 Relationship with the courts

28 Court conduct ................................................................................. 207
29 Relationship with court officials ..................................................... 209
30 Contempt of court .......................................................................... 211
31 Witnesses........................................................................................ 225
32 Conducting a case ........................................................................... 233
33 Instructing in court ......................................................................... 247
34 Court etiquette ............................................................................... 253
Part 5 Mistakes and misapprehensions

35 Learning from mistakes .................................................................. 265
36 General mistakes and misapprehensions ....................................... 267
37 Common mistakes in property matters.......................................... 275
38 Common mistakes in litigious matters ........................................... 277
39 Common mistakes in commercial matters .................................... 285
Part 6 Communication and drafting

40 Communication fundamentals ....................................................... 293
41 Correspondence.............................................................................. 295
42 Letters of demand........................................................................... 305
43 Telephone ....................................................................................... 309
44 Faxes ............................................................................................... 315
45 Email .............................................................................................. 319
46 Without prejudice........................................................................... 325
47 Drafting ........................................................................................... 329
xxii
Contents
Page
Part 7 Practice management
48 Importance of practice management ............................................. 335
49 Prioritising....................................................................................... 337
50 File management ............................................................................ 341
51 Research ......................................................................................... 345
52 Technology...................................................................................... 349
53 Internet ........................................................................................... 357
Part 8 Working in the law

54 Career options ................................................................................ 365
55 Working as an attorney .................................................................. 367
56 Working as an advocate.................................................................. 375
57 Working as an in-house corporate lawyer...................................... 379
58 Working as an in-house government lawyer.................................. 387
59 Working as an academic lawyer ..................................................... 393
60 Working overseas ........................................................................... 399
61 Survival kit for new lawyers............................................................ 405
62 Women in the law........................................................................... 409
Part 9 Leaving the law – common legal diseases

63 Legal malaise................................................................................... 417
64 Professional paralysis ..................................................................... 419
65 “I can’t say no” syndrome............................................................... 423
66 “Time to quit” condition ................................................................. 427
Part 10 Questions
67 Questions........................................................................................ 433
Afterthought........................................................................................... 441
Table of cases ......................................................................................... 443
Index....................................................................................................... 453
xxiii
Part 1
Relationship with your client
Chapter 1
Introduction to legal practice
“The White Rabbit put on his spectacles. ‘Where shall I begin, please
your Majesty?’ he asked. ‘Begin at the beginning’ the King said, very
gravely, ‘and go on till you come to the end: then stop’.”
Lewis Carroll, Alice’s Adventures in Wonderland, Ch 12
Practitioner-client relationship
[1.05] Legal practice was never meant to be easy. You may have a sound grasp
of basic legal principles after completing your law course, but that is no guar-
antee that you will become a good practitioner. The skills required
of a good law student are not identical with those required of a good practi-
tioner.
A fundamental reason for this is the existence of a real-life client with a
real-life problem seeking a real-life solution to his or her problem. Your client
is not interested in the intricacies of the cases and statutes that you spent
years mastering. Your client wants you to solve his or her problem quickly
and with a minimum of fuss.
The practitioner-client relationship imposes many obligations on you.
You have a duty to look after the interests of your client to the best of
your ability. You must not only act honestly in the way you handle your cli-
ent’s affairs but you must also exercise a standard of care that is acceptable
to the profession. Your duties to your client are fiduciary as well as contrac-
tual and therefore you must always place your client’s interests before your
own. This means that you must also minimise your client’s costs as far as pos-
sible.
Once you have agreed to act for a client, your feelings towards him or her
and your views about the social utility or otherwise of your client’s instruc-
tions – in the absence of criminality, fraud, impropriety or other exceptional
circumstances – should play no part in the manner in which you carry out
those instructions. You must act professionally and not make moral judge-
ments of a personal nature about your client’s actions.
The duty to do his or her best in the service of the client is the paramount
duty of the practitioner. He or she must perform the duty with diligence and
3
competence, but must not in any circumstances descend to the dishonour-

able or the unfair.1
The chapters in Part I of this book discuss some of the important elements
of your professional relationship with your client.
________________________
1 Lewis, Legal Ethics (Juta & Co Ltd, 1982) p 15.
4
Chapter 2
First interview with your client
“So often common sense, a knowledge of humanity and a flair for the
business-like way of doing things matter far more than any knowledge
of law.”
RE Megarry, Lawyer and Litigant in England
(Stevens & Sons Ltd, London, 1962), p 13
First client interview

[2.05] You will always remember the first time you are called upon to interview a
client. You will never be more aware of a lack of grey hairs or a respectable
number of birthdays than the moment the receptionist informs you that the
client has arrived. How will you handle the interview? How will you convince
the client that you know what you are talking about and that he or she
should feel comfortable about entrusting you with his or her affairs?
Interviewing a client is not an easy task; considerable skill is involved. That
skill cannot be acquired merely by reading this or any other book; it is built
up through experience. But this book does provide some practical guidelines
that may assist you with that dreaded first interview.
Accepting the client

[2.10] The first decision you should make is whether you are able to accept the
client’s matter. As a practising practitioner, you are not obliged to act for a
client in a particular matter unless you want to.1 Some considerations that
you should take into account before accepting the matter are potential con-
flicts of interest, whether the client’s instructions involve potential fraud, ille-
gality or other impropriety and if you are competent to handle the matter. If
there is serious doubt on any of these matters, it would be prudent to refuse
to act for the client.
If you are not suitably qualified to handle a matter, it is far better to tell
your client at the first interview rather than have a dispute over your fees, or
________________________
1 GE Dal Pont, Lawyers’ Professional Responsibility in Australia and New Zealand (2nd ed, LBC Information Services,
Sydney, 2001), pp 56–57.
5
worse, a negligence action against you at a later point when your lack of ex-
pertise becomes obvious. If you do not have the requisite knowledge and ex-
perience to handle the matter, you should inform your client of this and give
him or her the option to instruct another legal practitioner who is experi-
enced in such matters.
It is absolutely essential that a practitioner has the reasonable competence
in the performance of the work which he or she undertakes to do.
As to what is meant by “reasonable competence” Innes CJ in Van Wyk v
Lewis 1924 AD 438 at 444 explained the principle laid down in Mitchell v
Dixon 1914 AD at 525 as follows:
“‘A medical practitioner is not expected to bring to bear upon the case
entrusted to him the highest degree of professional skill, but he is
bound to employ reasonable skill and care.’ And in deciding, what is
reasonable the Court will have regard to the general level of skill and
diligence possessed and exercised at the time by members of the
branch of the profession to which the practitioner belongs. The evi-
dence of qualified surgeons or physicians is of the greatest assistance
in estimating that general level. And their evidence may well be influ-
enced by local experience; but I desire to guard myself from assenting
to the principle approved in some American decisions that the stan-
dard of skill which should be exacted is that which prevails in a particu-
lar locality where the practitioner happens to reside. The ordinary
medical practitioner should, as it seems to me, exercise the same de-
gree of skill and care, whether he carries on his work in the town or in
the country, in one place or another. The fact that several incompetent
or careless practitioners happen to settle at the same place cannot af-
fect the standard of diligence and skill which local patients have a right
to expect.”
See also Ebersohn v Prokureursorde van Transvaal 1996 (1) SA 661 (T) where
the Court held (at 667 B-C) that an attorney should have the necessary
knowledge and expertise, and in executing his or her mandate, he or she
should display the care that is to be reasonably expected of the average
attorney.
Courtesy
[2.15] You should be courteous to your client at all times, especially at the first
interview. Attempt to make your client more comfortable by offering a cup of
tea or coffee before you begin. Throughout the interview show that you are
interested in your client’s problem, even if you have heard the same story a
hundred times before.
Clients can be emotional about the issues they want to discuss with you
and coming to see you may require some courage on their part, particularly
in family law matters. The first interview is the ideal opportunity to build mu-
tual confidence between you and your client and demonstrate that you
6
Chapter 2: First interview with your client
understand your client’s problem.2 This is best achieved by carefully listening

and letting your client tell his or her story. Never be patronising or aggressive.
It always makes a bad impression on clients if you cut them off mid-sentence.
Part of making your client feel at ease involves establishing a comfortable
environment in which to conduct the interview. It is preferable to conduct
the interview in an empty office or conference room with a round table,
rather than in a cluttered office with your desk and your files acting as barri-
ers between you and your client.
You should give your client your undivided attention during interviews. Ask
your secretary and other staff not to come into the interview room to talk to
you or to give you something while your client is there unless it concerns that
client. No telephone calls should be put through to you until your client
leaves. Also, ensure your cellphone is off during the interview. Apart from be-
ing rude and annoying, interruptions to an interview are unfair to your client
because you are being paid to listen and give advice, not to speak to some-
one else. If you must receive an urgent call, tell your client at the start of the
interview that you are expecting an urgent call. The client is much more likely
to be understanding if you have explained this beforehand.
When you are unable to start the interview on time, ask your secretary or
receptionist to apologise to the client for the delay. If you expect to be de-
tained for a considerable period due to circumstances beyond your control,
take the time to explain the situation to the client and provide a realistic es-
timate of the likely delay. This will enable the client to decide whether to wait
or make another appointment.
When you are ready for your client, make sure you look ready:
“An untidy desk, papers everywhere, and messages all over the place
do not inspire confidence. Contrary to the popular myth that clients
like to see how busy their lawyer is and a crammed desk reinforces
that, clients want to feel that the matter they are discussing with you is
your only worry in the world. It is very hard to feel that in an environ-
ment where you seem to be surrounded by files that relate to some-
one else’s problems and do not seem to be able to lay your hands on
anything that is vaguely relevant to the client sitting in front of you.”3
That said, the writer once visited an attorney in the Northern Cape with her
then President. We were received in an office which contained a few empty
bookshelves and a large desk merely adorned by a writing pad and some
pencils. The desk acted as the barrier between the practitioner and his visi-
tors and although the conversation was cordial it was initially quite formal. At
the end of the meeting my President wanted to know if our host had any cli-
ents as his office was so barren and he saw no files. The practitioner burst
out laughing and took us into his “working office” and from the number of
files which were stacked on the floor all over the place it looked as if he could
well have done with a professional assistant.
________________________
2 A Sherr, “Lawyers and Clients: The First Meeting” (1986) 49 Modern Law Review 323 at 324.
3 J Fenton, “Concentrate on Service” (1987) 61 Law Institute Journal at 359.
7
If the interview is to take place in a conference room, ensure that the room
is booked in advance and check that it is vacant before taking the client
there. Opening the door to a conference room which is still in use can be em-
barrassing to both your client and the other client in the room. Likewise, tak-
ing the client to a conference room which is full of used coffee cups or other
items from a previous meeting, especially confidential information on a
whiteboard, is unlikely to impress your client.
Take time to explain

[2.20] You must plan in advance how you will conduct your first interview with your
client. This will depend on the type of person your client is and the nature of
the legal problem involved.
It is important to make an accurate assessment of your client at the earli-
est possible opportunity. If you are dealing with an experienced legal adviser
of a major company, you do not have to explain routine court procedures. On
the other hand, most clients do not know much about the law or the legal
system. This is why they have come to see you. Take some time to explain
matters to them as simply as possible at the earliest opportunity. Few practi-
tioners are so busy that they cannot afford a few minutes during interviews
to tell clients what will be involved in resolving their legal problems.
At the outset you should give your client an estimate of the likely costs.
This is a legal requirement in some foreign jurisdictions: see Chapter 11. In li-
tigious matters, it is vital that your client knows at the earliest stage whether
he or she can afford to lose.
Simple language
[2.25] The complexity of the language you use during interviews with clients will
depend on the type of client you are dealing with. For most clients it is essen-
tial to avoid legal jargon. If you are acting for a client who is not fluent in the
English language, you should be very careful in your choice of words. An in-
terview with a lawyer is a stressful experience for some clients; the combined
effect of the strange environment of a law firm and their legal predicament
may mean that they have difficulty understanding your advice.4 In order to
help them, you will need to keep your advice simple yet accurate and com-
plete.
Do not make the mistake of shouting at clients who are not fluent in Eng-
lish when you sense that they do not understand you. Speaking louder will
not help them to understand. Instead, you should use simple language in
order to help them understand. If the language barrier really hinders or
________________________
4 A Sherr, “Lawyers and Clients: The First Meeting” (1986) 49 Modern Law Review 323 at 338.
8
prevents communication, either arrange an interpreter or refer the client to a

practitioner who speaks the client’s language.
Before you conclude the first interview, ensure your client has understood
all items covered, especially where it has not been possible to avoid using
technical legal terms.
Instructions to be complete
[2.30] At the first interview with your client, ensure that your instructions are
complete. Take comprehensive notes of the material facts. If your client is re-
luctant to disclose the full facts, assure him or her that you are obliged to re-
spect the confidentiality of all information provided to you and that in order
for you to give appropriate advice, it is essential for you to be told the whole
story. Ask pertinent questions – your client is not as skilled as you in appreci-
ating what is relevant. Inexperienced clients have a tendency to emphasise
matters which they consider important, but which are in fact irrelevant. Your
client is unlikely to be offended if you courteously inform him or her that the
matter is irrelevant.
Proper guidance by you during an interview will shorten the duration of
the interview and this will reduce the cost to your client. It will also enable
you to promptly initiate the appropriate steps to resolve your client’s prob-
lem. If instructions are not complete, the consequences may be that the
steps you take on behalf of your client will be inappropriate and a waste of
money or that you will need to arrange further interviews, which creates de-
lay and further costs for your client. In short, get it right the first time.
In order to ensure that you obtain complete instructions from your client,
you should arrange the interview time yourself, rather than asking your sec-
retary to do so. This also leads to a better rapport with your client, who will
think that you care enough to telephone personally. After agreeing on an in-
terview time, you should advise your client to bring all relevant documents to
the interview and give examples of relevant documents if required.
It is also advisable to ask your client to write down the important things
that he or she wants to raise with you before attending the interview. This
procedure will make it less likely that your client will forget to tell you some-
thing important. It is also likely to shorten the duration of the interview.
It would be helpful for you to inform your client of the probable length of
the interview. This will give both of you a timeframe to work within and may
assist the client to focus on important issues. If there is a maximum amount
of time you can spend with your client for any reason, for example, because
you have another client coming to see you at a particular time, then let the
first client know in advance so that every effort is made to finish on time.
Your client will be very unhappy if you have to cut short an interview because
of other commitments of which your client was not aware. The client is likely
9
to believe not only that you are rude but that you are giving other clients pri-
ority.
At the end of the first interview, it is important to confirm in writing the in-
structions given by your client. This will avoid any potential misunder-
standings and will also avoid time and money being wasted in performing
services which your client does not require. Sending such a letter also allows
you to ask your client any questions that you overlooked at the first interview
and to request copies of any documents your client did not bring to the inter-
view.
Instructions direct from your client

[2.35] It is vital that you receive instructions direct from your client. If you accept
instructions from friends or relatives or persons who purport to act on your
client’s behalf, you may be inviting unnecessary complications. You must first
of all determine why the prospective client did not approach you himself or
herself. Is he or she perhaps in custody, or is he or she hiding from the po-
lice? Remember that in terms of our law, a person who assists someone in
evading liability for an offence, may qualify as an accessory after the fact and
will therefore be guilty of an offence. If there are no obvious reasons why the
client did not approach you, you should be extremely careful. Remember that
anything you say to the person that approaches you will be conveyed to the
prospective client. This is a highly unsatisfactory way of handling a consulta-
tion.
A classic trap also – reflecting values of a past era – is to accept instructions
from your client’s husband on the assumption that the husband has authority
to represent his wife: Mercantile Mutual Insurance Co Ltd v Gosper (1991) 25
NSWLR 32; Savage v Taylor [1996] ANZ Conv R 385.
Satisfy yourself that the client has capacity to act.
Lewis, Legal Ethics (Juta & Co Ltd, 1982) p 90 formulates his general rule in
regard to the taking of instructions as follows:
“In taking instructions the attorney must be reasonably satisfied of the
client’s identity, the client’s capacity to instruct, the authority of a rep-
resentative instructor and the instructor’s understanding, both of the
instructions and of the nature and extent of the mandate. Any failure
in this respect will have the consequences attendant upon negligence
and will not necessarily amount to misconduct, which will, however,
arise if the failure has the sting of impropriety inherent in recklessness
or indifference to duty.”
Be wary of accepting a new matter over the telephone or by email from
someone you have never met unless you work for a firm and the person is an
established client of the firm. You should ask for confirmation of your instruc-
tions in writing and arrange an interview with the person who telephoned
you.
10
Evidence to support instructions

[2.40] Ask for evidence to support instructions as soon as your client tells you the
facts. Since it is not unusual for clients to have an emotional involvement
with their matter, their instructions may not be the best possible means of
acquiring an objective statement of the facts.
Too often in litigious matters young practitioners wait until they are at the
door of the court to seek substantiation of what their client told them ini-
tially. This is a dangerous practice, especially for information such as the date
of an accident in personal injury matters. If the client gives you a wrong date
and you rely on this, you may later find that the cause of action has pre-
scribed. You should try to verify the date and other material facts from police
reports and from doctor, hospital or ambulance records.
If your client’s instructions appear to be inconsistent with the objective
facts, then it is your duty to probe and query in order to determine what the
real position is and thus protect your client’s interests. On the other hand,
you should not be unduly suspicious of what your client tells you. It is not
your role to pass judgement on your client; leave this to the court.
Apart from the above considerations practitioners must also have a sound
knowledge of the Financial Intelligence Act 2001 (FICA) (as amended). FICA’s
aim is to combat organised crime and deter money laundering activities. In
introducing this legislation, South Africa has joined those countries that are
facing similar threats to their economies. It places onerous duties on all ac-
countable institutions which are prerequisites for the establishment of busi-
ness relationships or for the conclusion of transactions. Moreover, the
identification and verification requirements are not limited to the client only
but extend to each person, or entity, with whom a transaction is concluded.
Section 21 of FICA provides as follows:
(1) An Accountable Institution (which inter alia includes all attor-
neys) may not establish a business relationship or conclude a
single transaction with a client unless the Accountable Institution
has taken the prescribed steps:
(a) to establish and verify the identity of the client;
(b) if the client is acting on behalf of another person, establish
and verify –
(i) the identity of that other person; and
(ii) the client’s authority to establish the business rela-
tionship or to conclude the single transaction on be-
half of that other person; and
(c) if another person is acting on behalf of the client, to estab-
lish and verify –
(i) the identity of that other person; and
(ii) that other person’s authority to act on behalf of the
client.
11
Do not give hurried advice

[2.45] When your client first consults you, do not be afraid to say that you do not
know the answer to his or her questions. Instead, explain to your client that
you will provide your advice after researching the matter. It is not an admis-
sion of failure to confess that you do not have all the answers at your finger-
tips. Sometimes knowing the right questions to ask at an interview may be
just as important as knowing the right answers.
Volunteering advice which you hope you can verify by subsequent research
can only lead to problems. You are paid to give considered advice, not to
guess the answer. If your client insists on obtaining a tentative indication
from you as to what you think the advice will be, make sure you are as gen-
eral as possible. Make it clear that although you think that may be the an-
swer, your client should wait until you advise him or her properly before
acting on your advice.
At all times, ensure that your advice is correct and balanced rather than
the advice your client wants to hear. No matter how important or powerful
the client is, you must remain independent and dispassionate and give advice
that will withstand close scrutiny: see Chapters 6 and 7.
It is not sufficient for you to tell your client only what the theoretical posi-
tion is; you must, in addition, draw attention to practical considerations. This
is one of the greatest challenges faced by law graduates. For example, it is
not sufficient to advise that your client has a good cause of action; you must
also emphasise that much time and expense will be involved in obtaining
judgment and that the judgment will only be worthwhile if the defendant has
sufficient funds to meet the judgment or is insured.
Matters of principle
[2.50] Beware of matters of principle. Some practitioners are persuaded to take
proceedings when, win, lose or draw, they will have a dissatisfied client on
their hands. We all know the client who outlines a splendid cause of action
which, if successful, will result in an award of nominal damages against an
impecunious defendant. If you tell your client that litigation will be uneco-
nomical and will result in him or her being out of pocket, the response might
be “It is a matter of principle”.
When a client insists upon litigating a matter of principle, it is vital that
there is good communication between you and your client. If you decide to
stand your ground and refuse to act, ensure that a letter is sent to the client
confirming why.
Alternatively, if you decide to follow your client’s instructions, obtain them
in writing together with a signed acknowledgement that your client has been
advised that the proposed action is likely to be uneconomical, but despite
that advice you are instructed to proceed.
12
Matters of principle often lose their appeal when the time comes for your
client to pay your account. To guard against this, you should obtain costs in
advance or regular progress payments, as the high principles proclaimed at
the start of the proceedings often disappear after an adverse result of which
the client has been forewarned.
Limited instructions
[2.55] Where your client limits your instructions to a particular aspect of any matter
or transaction, you should confirm this in writing so that there can be no
misunderstanding at a later date. This problem may arise, for example, in
situations where your client has the opportunity to pursue several remedies
but limits your instructions to one of the remedies. Again, there can be diffi-
culties where a commercial matter has drafting and conveyancing aspects
and your client instructs you that he or she will decide at a later stage who
will, for instance, attend to the conveyancing transaction.
Criminal matters
[2.60] In criminal matters it is desirable for you to obtain instructions from your
client while you are alone. In the case of a younger client, this is particularly
important because having friends or relatives present may influence the in-
structions that you are given. This is because your client has probably already
tried to justify his or her actions to them. Having others present at the initial
instructions may taint the purity of the version of the facts you are obtaining
from your client. An accused person is likely to be reluctant to contradict an
earlier version given to friends or relatives.
You should also bear in mind that clients frequently fail to reveal their pre-
vious convictions in the presence of a spouse, child, or a friend who has never
heard of the trouble. Once again this is a reason why you should see your cli-
ent alone. Even if your client insists that there are no “priors”, always check
this fact with the police before putting your client’s character in issue at the
trial by challenging the character of any of the prosecution witnesses.
Accurate charge details
Do not be satisfied always with the details of the charge set out on the in-
formation that your client produces. If necessary, you can write to the infor-
mant and request further and better particulars of the charge. Press your
client about whether he or she has made a written statement to the police. If
your client does not have a copy, or seems vague, write to the police and re-
quest a copy.
Character evidence
Remember that not only should you obtain a statement in relation to the al-
leged offence, but there is a second aspect, the evidence in mitigation, to
13
be enquired into. Personal details, including family, education, outside influ-

ences and a medical history, are vital. Find out about the client’s private life,
including sporting interests, hobbies and involvement in community and
other organisations. Obtain details of your client’s employment. If necessary,
obtain references from employers, teachers, sporting clubs, charities, church
officials and other such sources.
In deciding who to approach to provide character evidence, bear in mind
that the magistrates or judges will give greater weight to evidence from ordi-
nary members of the community who have known your client for many years
through school, work or other regular contact, than the evidence of a high-
profile celebrity whose contact with your client is insufficient to enable him
or her to make an informed assessment of your client’s public reputation.
Client confidence in you

The necessity of obtaining the fullest possible information from your client is
obvious in criminal cases. However, this is often difficult because some cli-
ents are afraid or suspicious of practitioners who they see as persons in au-
thority and part of the “system”.
Such suspicions are perhaps more common with clients who are not fluent
in English. The result is a reluctance on the part of your client to tell you the
whole story for fear that you will pass on everything you are told to the po-
lice. It is a real test of your powers of persuasion and professionalism for you
to gain the confidence of such a client.
Police questions
Sometimes you will know that your client is sought by the police for an inter-
view. It is best to tell your client to get in touch with the police but not to an-
swer any questions at all from the police, or to refuse to answer questions
unless his or her legal adviser is present. If, before declining to answer ques-
tions, your client can truthfully say, “I have done nothing wrong”, so much
the better.
Going to a police station and interfering with the conduct of an interview
by the police has, on more than one occasion, led to real difficulties for prac-
titioners. To put yourself in a position where you can be called as a witness to
your client’s interview can be a double-edged sword. In some situations, it
would be inappropriate for you to act for a client if it is likely that you will be
called as a witness at the hearing of your client’s case: see [10.65].
In most cases, the interrogation of your client by the police is the strongest
evidence against your client and it is always desirable to take full instructions
about the manner in which the interrogation was conducted. Obtain your cli-
ent’s version of the whole interrogation. Detailed and precise instructions as
to the manner in which the interrogation was conducted may lay the founda-
tion for challenging admission evidence.
14
Types of offenders
At the local court level there are traffic offenders, the first offenders who
come before the court on comparatively serious charges, and also the hard-
ened criminals. You will find almost invariably that the first-time offender will
turn up with the information issued against him or her neatly folded and still
in their envelopes, whilst the person who is a constant offender will probably
have had them washed in the pocket of his or her jeans on three or four oc-
casions.
If you are acting for a seasoned criminal, you will find that he or she knows
the ropes and will invariably give you a version of the facts which will suit him
or her and you. The real problems arise when you are acting for young clients
who do not appreciate that the defence of a prosecution is not a conspiracy
between the two of you to defeat justice. You must explain the limits of what
you can do for your client immediately after you have been given his or her
name and address and been shown the information.
The way to handle a client charged with a comparatively serious offence
comes with experience. For one thing, you should never ask, “Did you do it?”
If your client tells you he or she is innocent, you must accept that unless the
objective facts available to you show that what you have been told is a lie.
For example, if your client tells you he or she was sober at the time of be-
ing arrested for driving whilst under the influence of alcohol but the blood al-
cohol reading at that time was far above 0,05 gram per 100 millilitres, you
can assume that your client’s recollection of what happened is not correct. In
such a case, you should proceed on the assumption that you will hear what
really happened for the first time at court, unless the prosecutor is prepared
to discuss the matter beforehand.
Client interviews: conclusion

[2.65] Your interviewing skills are an important factor in the development of a
successful practice.
If you follow the simple guidelines outlined in this chapter, it is more likely
that you will enjoy a satisfactory relationship with your client and that the
first interview will not be the last time you see him or her.
15
Chapter 3
Maintaining contact with your client
“I needed a lawyer. I couldn’t reach you. I reached another lawyer. I don’t
need you any more.”
JG Foonberg, How to Start and Build a Law Practice
(American Bar Association, 4th ed, Chicago, 1999), p 147
Confirmation of instructions
[3.05] It is always prudent for you to write to your client as soon as possible after
you meet with him or her to obtain instructions, to confirm the matters dis-
cussed at the meeting. Some overseas Law Societies in fact have rules of pro-
fessional conduct and practice which require practitioners to write to their
clients to set out relevant matters such as costs. The Cape Law Society’s
Council has recommended that this procedure be followed, but a proposal
that a professional conduct rule be introduced did not find favour.
Maintain regular contact

[3.10] At the earliest opportunity you should ask your client to keep in touch with
you, to advise you of any change of email or postal address, employment,
cellphone or telephone number and to pass on any additional information
that he or she may obtain. It is embarrassing if, at some stage of a transaction
or proceeding, a critical decision must be made promptly but you find your-
self unable to obtain instructions because your client has changed address or
is on holiday.
Progress reports
[3.15] You must keep your client informed of progress in relation to his or her
matter, especially for matters where several months must elapse before the
next step can be taken. You will save your client unnecessary confusion and
frustration by sending a brief letter or making a short telephone call to ex-
plain the situation. Unavoidable delay will be tolerated by your client if the
reasons for the apparent inactivity are explained and the client is given regu-
lar progress reports.
17
You should not resent your client taking the initiative in trying to find out
the progress of his or her matter nor should you consider his or her enquiries
as a nuisance which slows down the matter. Do not forget that it is your cli-
ent who is paying your fees. If, on the other hand, your client is irrational and
telephones you every day for a progress report when you have already told
him or her that it will be months before the case will come on for hearing,
then tell the client what every telephone call is costing. You will be amazed
by the sudden reduction in the frequency of the telephone calls.
Delays
[3.20] Too often practitioners are criticised for being slow when the fault is not
theirs but rather that of delays in obtaining a trial date. You should therefore
explain to your client in detail the steps which need to be taken before an
application can be made for a trial date and how long it is likely to take until
the trial will commence.
In order to maintain a satisfactory relationship with your clients, it is im-
portant to avoid delay. You should respond promptly to any correspondence
and telephone calls. You should not pass on your client’s matter to another
practitioner in your office without first consulting your client. Clients often
feel frustrated and neglected when they have to deal with different practi-
tioners or their secretaries every few months. Invariably, the practitioner
who inherits the file will not be fully acquainted with it and the client will
form the impression that his or her affairs are not being attended to prop-
erly.
Offers of settlement
[3.25] You should inform your client of all offers of settlement in any proceeding,
even if, in your professional opinion, the amount of the offer is inadequate. If
you reject an offer without consulting your client, you are acting without in-
structions and you could be sued by your client. It is wise always to obtain
your client’s written confirmation of the acceptance or rejection of any of-
fers.
Client contact: conclusion

[3.30] If you fail to keep in contact with your client throughout the duration of his
or her legal problem, you may find that next time the client has a legal prob-
lem, he or she goes elsewhere. If enough clients go elsewhere next time, your
practice will wither, even if you have good technical legal skills. Those skills,
on their own, are not sufficient for a successful legal practice. You must also
have good client skills, one of which is maintaining regular contact with
clients.
18
Chapter 4
Nature of retainer and
when it can be terminated
“I used to be a lawyer, but now I am a reformed character.”
Woodrow Wilson, quoted in “Lawyers: Jokes, Quotes and Anecdotes 2003 Calendar”,
Andrews McMeel Publishing
Retainer
[4.05] A retainer is the contract by which you are engaged to act for a client. Whilst
a client may terminate a retainer at any time, there are limitations on your
ability to terminate it.
Entire contract
[4.10] In the absence of agreement to the contrary between you and your client, a
retainer is normally an “entire contract” whereby you promise to act for the
client in a particular matter until its completion and the client promises to
pay you for your services upon completion of the matter: Goodricke & Son v
Auto Protection Insurance Co. Ltd 1967 (2) SA 501 (W) 505; see also Hals-
bury’s Laws of England (4th ed re-issue, Butterworths LexisNexis, London,
looseleaf), Vol 44(1), [114–118].
Your client is entitled to withdraw from a retainer at any time without giv-
ing any reason, but will remain liable for the fees incurred to that point: Court
v Berlin [1897] 2 QB 396. If the client exercises the right to terminate the re-
tainer prior to the completion of the matter, you normally have a right to re-
tain that client’s documents or other personal property until your fees and
disbursements are paid. This right is called a “lien” and is discussed further in
Chapter 13.
Where an entire contract exists, if you purport to terminate the retainer
prior to the completion of the matter, you will normally be committing a
breach of contract. This means that you will have to return the client’s docu-
ments and will not be entitled to payment for the work you have done pur-
suant to the retainer prior to its termination.
19
Because of the loss of legal fees that will result from your refusal to com-
plete a matter for your client, you may not be able to afford to cease acting
for your client before completion of the matter. It is therefore in your inter-
est to try to make the relationship as cordial as possible.
It is desirable for you to agree expressly with your client on the scope of
the retainer and the precise nature of the “matter” falling within the retainer,
rather than leaving these important issues to be implied. Importantly, you
can negotiate a “divisible contract” instead of an “entire contract”, for ex-
ample, you can agree with your client that separate stages in a matter consti-
tute separate retainers.
Where it is proper and convenient, you should define the retainer in a way
which will enable you to send regular bills to your client and be paid promptly
for work you have completed.
Good cause to terminate

[4.15] Sometimes you may be able to terminate the retainer without committing a
breach of contract, if you have good cause and give reasonable notice to the
client. “Good cause” includes a failure by the client to provide funds for pay-
ment of disbursements, a request by the client for you to do something ille-
gal or dishonourable, or a refusal by the client to provide you with
instructions so that your ability to act is hindered: Lewis, Legal Ethics, p 249.
It is not good cause to withdraw shortly before the hearing when it has be-
come apparent to you that your client will not be able to fund the action. As
Didcott J said in Macdonald t/a Happy Days Café v Neethling 1990 (4) SA 30
(N):
“It is quite plain that an attorney must, if he is going to withdraw from
a case, withdraw from it timeously and inform his client that he is
withdrawing so that the client can make other arrangements . . . If an
attorney wishes to carry on hoping that at the last minute he will be
given funds and does not wish to withdraw at an earlier stage of the
case because he will jeopardise his chance of being paid, then he must
be willing to take the risk that he will find himself financing the appeal
and go on with it.”
Reasonable notice
[4.20] What constitutes “reasonable notice” will differ depending on the circum-
stances of the particular case. However, the fact that some court rules re-
quire the practitioner on the record to give the client seven days prior notice
of an intention to file a notice of ceasing to act may offer some guidance.
Upon termination of the retainer for “good cause” and on reasonable no-
tice, the client will be liable to pay for the work you have done to that point:
Halsbury’s Laws of England (4th ed re-issue, Butterworths LexisNexis, Lon-
don, looseleaf), Vol 44(1), [117].
20
Chapter 4: Nature of retainer and when it can be terminated
Smooth transfer to new practitioner

[4.25] Notwithstanding that you are able to terminate a retainer for “good cause”,
you should exercise great care in doing this to ensure that your client’s inter-
ests are not seriously prejudiced. Subject to your right to retain the client’s
documents pursuant to your lien to ensure payment of outstanding fees, you
should give the client a reasonable opportunity to engage a new practitioner
and co-operate with the new practitioner to ensure a smooth transfer of the
matter: Cape Law Society: Guidelines Year Book 2010, p 110–111. The Law
Society of the Northern Province has also provided guidelines which can be
viewed on the Internet.
Ongoing duty of confidence

[4.30] You should bear in mind that your duty of confidence to your client continues
even after the attorney-client retainer is terminated. This is so whether the
retainer is terminated by you or your client and irrespective of whether it is
terminated before completion of the matter. Even if your client treated you
unfairly in terminating the retainer and is disputing your fees, you must not
retaliate by disclosing to third parties intimate details of your client’s per-
sonal or business affairs.
Retainers: conclusion
[4.35] The retainer is the formal manifestation of your relationship with your client.
It is an important contract and you should invest time in getting it right. Each
retainer should clearly set out the terms upon which you will act for your cli-
ent and your respective rights and obligations when the retainer is termi-
nated.
21
Chapter 5
Adhering to instructions
“For I am a man under authority, having soldiers under me: and I say to
this man, Go, and he goeth; and to another, Come, and he cometh; and to
my servant, Do this, and he doeth it.”
The Bible, Matthew 8:9
Duty to obey instructions

[5.05] Subject to your overriding obligations to the court (see Chapter 6), you have
a duty to obey your client’s instructions. You are your client’s agent in rela-
tion to the matters falling within your retainer: Goodricke & Son v Auto Pro-
tection Insurance Co. Ltd 1967 (2) SA 501 (W) at 503. Like all agents, you can
be liable to your client if you act contrary to your client’s instructions and
thereby cause harm to your client.
A failure to obey your client’s lawful instructions may result in disciplinary
action being taken against you by your Law Society. It may also render you li-
able for damages to your client.
Your duty to obey your client’s instructions, however, is not absolute. For
example, you can refuse to comply with instructions requiring you to do
something which is unlawful or unethical, or which would involve a breach of
a statutory duty, a rule of professional conduct and practice, a court order, a
duty to the court or an undertaking you have given: see Chapters 6, 7, 25 and
27. Where you have “apparent” or “implied” authority, it may be permissible
for you in some situations to act without consulting your client: Afglow Land
& Cattle Co (Pvt) v Napier 1972 (1) SA 430 (RA), but this principle has limita-
tions. In order to safeguard yourself you should always obtain express au-
thority: Pretoria City Council v Meerlust Investments (Pty) Ltd 1962 (1) SA 321
(A); Inter-Continental Finance and Leasing Corporation (Pty) Ltd v Stands 56
and 57 Industria Ltd 1979 (3) SA 740 (W). For example, even if you have os-
tensible authority to compromise a proceeding on behalf of your client, a
court asked to enforce the compromise may exercise its discretion and refuse
to do so.
23
Acting without authority

[5.10] If you act without authority, you are not necessarily guilty of unprofessional
conduct. However, you will be guilty of unprofessional conduct if you know-
ingly act without authority: Washaya v Washaya 1990 (4) SA 31 ZHC. You
must not substitute your own judgement for the specific instructions of your
client,1 even if you believe your own judgement is more likely to operate in
your client’s best interest. It is no defence to a claim against you for acting
contrary to instructions that you were doing what you thought was right for
your client.
Also note that if you conclude an agreement which is contrary to your cli-
ent’s interests, such agreement is not binding on your client, unless you had a
special mandate: Mbanga v MEC for Welfare, Eastern Cape 2002 (1) SA 369
(SE).
Written instructions
[5.15] Even where you obtain express instructions from your client, the client may
deny giving you those instructions. To prevent this, you should obtain written
instructions. If you do not receive written instructions, keep a file note of the
oral instructions and write to the client to confirm the oral instructions. Fail-
ure to follow these simple precautions may lead to the unpleasant situation
of a court finding that you acted without instructions.
In Griffiths v Evans [1953] 2 All ER 1364 at 1369 Lord Denning said that
where there is a dispute over the precise scope of a solicitor’s instructions:
“the word of the client is to be preferred to the word of the solicitor,
or, at any rate, more weight is to be given to it . . . The reason is plain.
It is because the client is ignorant and the solicitor is, or should be,
learned. If the solicitor does not take the precaution of getting a writ-
ten retainer, he has only himself to thank for being at variance with his
client over it and must take the consequences.”
Although Lord Denning’s proposition that the word of the client should be
preferred to the word of the solicitor has not met with universal judicial ac-
ceptance (Meerkin & Apel v Rossett Pty Ltd [1998] 4 VR 54 at 66), a prudent
practitioner always takes precautions to avoid a situation in which it is a case
of the practitioner’s word against that of the client.
It is particularly important for you to always confirm in writing instructions
from the client to follow a course of action which is contrary to the advice
you have given. Remember that if the nature of your advice or lack of it is
ever an issue in court, there is no certainty as to who will be believed.
It is also essential to obtain written instructions with respect to the dis-
bursement of any trust funds held on behalf of your client.
________________________
1 MM Orkin, Legal Ethics (Cartwright & Sons Ltd, Toronto, 1957), p 95.
24
Chapter 5: Adhering to instructions
Settlements
[5.20] Where you accept an offer of settlement for a particular amount on behalf of
a client, it is not uncommon for your client to complain that you had no in-
structions to accept that amount in settlement. You will probably claim that
in fact you had verbal instructions to accept the amount in settlement, but
that your client is reneging on the settlement because he or she now thinks
more money could be obtained. It is difficult to resolve disputes such as
these where accusation and counter-accusation are made. The simple answer
is that if you had taken the trouble to obtain instructions in writing and have
those instructions signed by your client, the dispute would not have arisen at
all.
Written instructions
The desirability of written instructions in a settlement situation is common
sense. All of us have second thoughts about bargains we strike. We wonder
whether we could have obtained more for our car as a trade-in on a new ve-
hicle or whether we could have purchased the new house a little more
cheaply if we had haggled a little longer with the estate agent.
Similarly, it is reasonable to expect a litigant who has settled to wonder
what massive amount the court might have given as compensation for inju-
ries if the claim had gone to judgment. Perhaps clients are sometimes dis-
honest, but, far more often, they can convince themselves that their version
of a settlement is true, in the hope that they will be able to re-open the
matter.
Plaintiffs whose cases have been settled talk to relatives, neighbours, work
colleagues and other litigants. It is not new for them to hear that their com-
pensation is trivial compared with the huge amounts received by other peo-
ple for comparatively minor injuries. Neither is it new for clients, after
hearing often quite ill-informed comment, to wonder whether they have
been duped by you.
Signed client statement
On receiving an offer of settlement from the other side the attorney must in-
form his or her client of the offer and advise him or her upon it. This is so
even where the offer is one which the attorney considers should be rejected
out of hand unless there are good reasons for rejection without reference:
Lewis, Legal Ethics, p 162 para 80.
The area of settlements is a minefield of potential professional problems. It
is certainly worth the time to have your client sign a statement such as:
“I authorise and instruct [name of practitioner] to settle my claim
against Y (Case No. . . . . . . . . .) for R . . . plus costs. I acknowledge that I
have been advised by [name of practitioner] that I will be required to
pay a maximum of R . . . for the total legal costs and expenses of the
action and that I will receive a net amount of approximately R . . .”
25
With this sort of objective evidence, the “my word against yours” confronta-
tion is avoided and you are spared a great deal of embarrassment in furnish-
ing explanations to your Law Society.
If your client is not fluent in English, take special care in explaining the
terms of settlement, particularly to ensure that your client is not under a
misapprehension as to the net amount to be received. If you have a doubt
about whether your client understands the settlement, use an interpreter.
Doing good by stealth

[5.25] At all times you must avoid getting yourself into trouble by trying to do good
by stealth. It is extremely unrewarding to take on the decision-making pro-
cess with a view to acting in your client’s best interests without his or her
knowledge.
Some practitioners take this course because they want to intermingle their
egos with the client’s cause of action. Somehow the practitioner measures
his or her own abilities by the results achieved on behalf of the client. With
surprising frequency, practitioners are prepared to either ignore the client’s
instructions or to assume that their actions will be ratified by the client later.
This is often the case where you act for friends or relatives; you may think
you know your client so well that you can assume what their instructions
would be: see Chapter 15.
Do not take it upon yourself to conduct a matter on behalf of your client
without your client’s full knowledge and instructions. That is like an estate
agent putting up a board outside your house and selling it for a magnificent
price without first asking you whether you want to sell. You should do no
more than put all the options to your client, advise him or her of your views
and then carry out your client’s lawful instructions.
Instructions direct from your client

[5.30] Make sure you act only on your client’s instructions. If you receive instruc-
tions to act or prepare documents through the agency of a third party, such
as an accountant, estate agent, spouse (see Lawsa vol 1 paragraphs 126–135)
or relative of your client, it is essential that the instructions are confirmed by
your client before you take any steps in the matter.
Following instructions: conclusion

[5.35] Every matter you handle for a client concerns his or her personal or business
affairs and the outcome may have a profound impact on your client. Your ef-
fectiveness in protecting your client’s interests will depend not only on your
skills, but also on the quality of your client’s instructions. Your client’s instruc-
tions are the lifeblood of every matter. Subject to ethical constraints, your
duty is to obey those instructions and complete the matter to your client’s
satisfaction.
26
Chapter 6
Overriding ethical obligations
“No instructions of a client, no degree of concern for the client’s interests,
can override the duty which [a practitioner] owes to the court . . .”
Kyle v Legal Practitioners’ Complaints Committee (1999) 21 WAR 56 at 58
Duties to the court

[6.05] As a practitioner, you have a duty to comply with your client’s instructions
and to use your utmost skill and diligence in representing your client. This
duty, however, is subject to your overriding duties to the court: see also
Chapter 27.
The expression “duties to the court” does not mean that the duties are
owed to a particular judge. The duties are in reality owed to the larger com-
munity, which has a vital public interest in the proper administration of jus-
tice. The court, in enforcing the duties, is acting as trustee and guardian of
the due administration of justice.
A legal practitioner has a duty to the judiciary to ensure the efficient and
fair administration of justice. If he or she is aware of a judgment material to
issues before the court, he or she is under a duty to inform the court of such
judgment even if the judgment is against the case he or she is presenting. A
failure to do so constitutes a gross breach of such duty: Toto v Special Inves-
tigating Unit 2001 (1) SA 673(E).
“There is a duty of care owed by an attorney conducting litigation on
behalf of a client, to the court and towards his opponent. This duty on
the part of an attorney is not a servile thing; he is not bound to do
whatever his client wishes him to do. However much an act or transac-
tion may be to the advantage, profit or interest of a client, if it is
tainted with fraud or is mean, or in any way dishonourable, the attor-
ney should be no party to it, nor in any way encourage or countenance
it . . .”1
It is these overriding ethical obligations which make the legal profession
unique. The aim is not to get the best result for your client at any cost.
________________________
1 Barlow Rand Ltd v Lebos 1985 (4) 341 TPD; C H van Zyl The Theory of the Judicial Practice of South Africa (1921) at
42.
27
Rather, it is to get the best result within the legal and ethical framework
imposed upon you as a member of an honourable profession and as an offi-
cer of the court.
You must at all times exercise independent professional judgement and
not allow yourself to be controlled by your client or put your loyalty to your
client ahead of your paramount ethical duties: see Chapter 7.
Officer of the court

[6.10] An attorney can only be admitted to practice by the High Court and only the
High Court can remove or suspend him or her from the roll. The attorney is
accordingly an officer of the court and as such he or she has certain duties
towards the court.
As an officer of the court, you owe overriding duties to the court. You can-
not avoid these duties by purporting to delegate them.
The various duties to the court

[6.15] Your duties to the court, which are sometimes referred to as the “duty to the
administration of justice”, comprise a number of different obligations. They
include the duty of honesty (see [6.20]), the duty not to abuse process (see
[6.25]), the duty not to corrupt the administration of justice (see [6.30]) and
the duty to conduct cases efficiently and expeditiously (see [6.35]).
“Legal practitioners occupy a unique position. On the one hand they
serve the interests of their clients, which require a case to be pre-
sented 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 (advo-
cates and attorneys) have strict ethical rules aimed at preventing their
members from becoming parties to the deception of the court. Unfor-
tunately the observance of the rules is not assured because what hap-
pens between legal representatives and their clients or witnesses is
not a matter of public scrutiny. The preservation of a high standard of
professional ethics having thus been left almost entirely in the hands
of individual practitioners, it stands to reason firstly, that absolute per-
sonal integrity and scrupulous honesty are demanded of each of them
and, secondly, that a practitioner who lacks these qualities cannot be
expected to play his part and is not a fit and proper person to continue
practising.”2
Duty of honesty
[6.20] The duty of absolute honesty requires you to be open, frank and honest in
the disclosure of both facts and law before the court and precludes not only
________________________
2 Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA).
28
Chapter 6: Overriding ethical obligations
deliberate lies but also misleading statements.3 The only exception is where
you are required to withhold information from the court by reason of your
client’s legal professional privilege.
“Legal practitioners have a duty to the court and a responsibility to-
wards colleagues to act honestly, conscientiously and openly for the
proper administration of justice. The non-disclosure of material facts
4
amounts to unprofessional conduct. Unless the courts can have com-
plete confidence in the honour of practitioners and are able to accept
unreservedly any statements made by them, the administration of jus-
5
tice will be seriously impaired.”
Duty not to abuse process

[6.25] You are under a duty not to abuse the court’s process or by dishonest means,
to hamper your opponents in the conduct of their case. This means that
there must be a proper legal basis for arguments that are put before the
court. You are a party to an abuse of process if groundless proceedings are
instituted for a purpose other than the vindication of a legal right: White In-
dustries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169 at 252.
An abuse of the process of the court occurs when an attempt is made to
use, for ulterior purposes, machinery designed for the better administration
of justice: per De Villiers JA in Hudson v Hudson 1927 AD 529 at 268.
In Beinash v Wixley 1997 (3) SA 721 (SCA) at 734F – G SA Mohamed CJ said:
“What does constitute an abuse of the process of the Court is a matter
which needs to be determined by the circumstances of each case.
There can be no all-encompassing definition of the concept of ‘abuse
of process’ but it can be said in general terms . . . that an abuse of
process takes place where the procedures permitted by the Rules of
the Court to facilitate the pursuit of the truth are used for a purpose
extraneous to that objective.”
It is improper and amounts to misconduct if a practitioner enters appearance
to defend on behalf of a client merely for the purpose of delay. In the case of
Sussman v Testa 1951 (2) SA 226 (O) De Beer JP, in referring to the judgment
of De Villiers JA in Hudson (above) remarked:
“in the course of this judgment it appears that proceedings designed
with the sole object of gaining time will be regarded as an abuse of the
process of the court and will be liable to be struck out.”
In Ex parte Jordaan: In re Grunow Estates Edms Bpk v Jordaan 1993 (3) SA
448 (OPD) the Court held that steps taken in an application for leave to inter-
vene in sequestration proceedings, (where papers exceeded 800 pages),
________________________
3 General Council of the Bar v Matthys 2002 (5) SA 1 (E).

4 Pienaar v Pienaar 2000 (1) SA 231 (O).
5 Jasat v Natal Law Society 2000 (3) SA 44 (SCA).
29
were so unnecessary that they could with justification be described as vexa-

tious and an abuse of the process of the court.
It is an abuse of the process of the court to subpoena somebody to come
and give evidence on points of law, as that kind of evidence would be irrele-
vant and inadmissible.6
An infraction of the rule against collateral challenge constitutes an abuse
of process of the court: Commissioner South African Revenue Service v
Hawker Aviation Services Partnership 2005 (5) SA 283 (T).
Further examples of an abuse of process are:
l Mofokeng v General Accident Insurance Co. Ltd 1990 (2) SA 712 (WLD),
where proceedings were instituted in the High Court when the matter
could have been heard in the Magistrates’ Court;
l Machumela v Santam Insurance Co. Ltd. 1977 (1) SA 660 (A), where a
failure to comply with the Appellate Division Rules led to a firm of Johan-
nesburg attorneys being ordered to pay costs de bonis propriis;
l Maia v Total Namibia (Pty) Ltd 1991 (2) 352 (Nm HC), where it was held
that an attorney who accepts the responsibility of conducting litigation
must familiarise himself or herself with the Rules of Court. If he or she
does not and if, as a result, the Rules of Court are not followed, it must
not be thought that the court will readily come to the rescue and grant
condonation.
It is sometimes difficult to determine whether pursuing a hopeless case may
amount to an abuse of process. In the absence of an ulterior purpose, it may
be difficult to establish that there has been an abuse of process where you
simply act for a party in a case that you think is doomed to fail. There is a dif-
ference between a case that you think is doomed to fail which the client is
pursuing for proper purposes and one that is completely groundless and is
being pursued for ulterior purposes. In the former case, you must advise your
client of the weaknesses of his or her case, but your client may reject your
advice and insist that the case is litigated. In the latter case, you must refuse
to act notwithstanding your client’s instructions.7
An abuse of process also occurs when a practitioner suggests criminality,
fraud or other serious misconduct without a proper basis: Clyne v The New
South Wales Bar Association (1960) 104 CLR 186 at 200–201.
In order to dissuade practitioners from abusing process, the court has an
inherent jurisdiction to order that costs are paid personally by a practitioner
who is responsible for an abuse of process: see, for example, Machumela
(above).
________________________
6 De Klerk v Scheepers 2005 (5) SA 244 (T).

7 DA Ipp: “Lawyers Duties to the Court” (1998) 114 (1) Law Quarterly Review 63 at 85–86.
30
Duty not to corrupt the administration of justice

[6.30] As a privileged participant in the administration of justice, you have a respon-
sibility to foster respect for the law and its administration: Prince v President,
Cape Law Society 2002 (2) SA 794 (CC). Accordingly, you must not knowingly
breach the law or assist, induce or support a breach of the law by others. If
your client engages in unlawful conduct, you should counsel him or her
against such conduct and avoid any personal involvement.
If you learn that your client intends to disobey a court order, you must
warn your client of the dangers of this conduct, but must not inform the
court without your client’s authority, unless you are compelled to do so by
law or unless there is a threat to a person’s safety. If you become aware that
your client or a witness called on behalf of your client has lied to the court in
a pending case, you must refuse to take any further part in the matter unless
the client authorises disclosure to the court: Vernon v Bosley (No 2) [1997] 3
WLR 683 at 700.
You must not, in the course of preparing for proceedings, advise or suggest
that false evidence is given or coach a witness as to the desired responses to
be given during his or her examination. When such a falsehood occurs the
conduct of the practitioner, whose witness makes the assertion, will depend
on the circumstances in accordance with the following principles which flow
from Incorporated Law Society v Bevan (1908) TS 724 and the cases, including
Linwood v Andrew (1888) 58 LT 612, cited therein. If the practitioner knows
that the assertion, if made, will be false, he or she must not allow it to be
made (material or not) for to do so is deliberately to join in a design to mis-
lead the court; there can be no exception to this: Lewis, Legal Ethics, p 141.
You must also not communicate on a matter of substance with the judge in
the absence of the opposing party in a current proceeding, unless the oppos-
ing party has consented.
In Botha v White 2004 (3) SA 184 (T) the court, in a postscript to its judg-
ment, referred to the applicant’s attorney’s conduct as attempting to precipi-
tate delivery of the reasons of judgment and severely criticised such conduct
as constituting an invasion into the domain of Judges. Any request for hurried
justice from any quarter would not only meet with judicial displeasure and
castigation, but the severest censure. Any demand for quick rendition of re-
served judgments, at the behest of any attorney would be tantamount to in-
terference with the independence of judicial office and disrespect for the
Judge concerned.
The duty not to corrupt the administration of justice is directed to ensuring
that the community retains confidence in the legal profession and the legal
system at all times.
See also Aarons v Law Society of (Society of Advocates of Witwatersrand In-
tervening) 1997 (3) SA 750 (T) where the Court emphasised that, when
31
exercising its discretion in deciding on the fitness of its practitioners the one
thing it should never lose sight of was the need of integrity of practitioners.
There was a lowering of academic standards of practitioners, but there could
never be and there must never be any compromise on the standards of hon-
esty and integrity required of practitioners and officers of the court.
Duty to conduct cases efficiently and expeditiously

[6.35] Legal practitioners are under a duty to conduct cases efficiently and expedi-
tiously. If you know beforehand that you do not have the time available, it is
highly unethical to accept the brief and then to render a poor service. It is
also unprofessional to make “double bookings” if a legal practitioner is aware
that he or she has to appear in another court on that same day. This often re-
sults in feelings of animosity on the part of the prosecutor towards the prac-
titioner, which could easily affect the client’s case detrimentally. You are
under a duty not to delay proceedings with spurious or groundless allega-
tions. A case must be pruned of irrelevancies, even if this is against your cli-
ent’s wishes. As Mason CJ cautioned in Giannarelli v Wraith (1988) 165 CLR
543 at 556, lawyers must exercise independent judgement in the conduct
and management of cases and consider not only their client’s success, but
also the speedy and efficient administration of justice.
In S v Ntuli 2003 (4) SA 258 (W) Marcus AJ held at 263J–264A [12] and
265B–D [16] that it is essential that those who have the privilege of appear-
ing in Superior Courts, do their duty scrupulously in this regard. Unless legal
representatives properly represent their clients, their rights to a fair trial and
their right to a fair appeal may be negated. Heads of argument serve a critical
purpose. They should articulate the best argument available to the appellant,
engage fairly with evidence, advance submissions in relation thereto and deal
with case law. Where this is not done and the work is left to the judges, jus-
tice cannot be seen to be done.
See also Manana v Johannes 1999 (1) SA 181 (LCC) where the presiding
judge dealt with the ineptitude of the clients’ attorneys.
Consequences of breaching your duties to the court

[6.40] Judges usually take a strong stance against practitioners who breach their
duties to the court. They have an inherent jurisdiction to maintain proper
standards of conduct from their officers.
Depending on the circumstances, a breach of a duty to the court may con-
stitute professional misconduct (see Chapter 27), a contempt of court (see
Chapter 30) or a crime, such as an attempt to interfere with the course of jus-
tice. The punishment can vary from a reprimand, an order for the payment of
costs personally, a fine or removal from the roll of practitioners, to impris-
onment. In addition, if your breach has prejudiced your client, you can be
32
ordered to pay damages to your client, as well as forfeiting the right to claim
costs from your client.
Even if your right to practise is not affected by your breach of duty, your
professional reputation will be damaged and your career is likely to suffer.
Ethical obligations: conclusion

[6.45] If you are ever in doubt about whether what a client instructs you to do or
what you propose to do of your own initiative will breach any of your overrid-
ing ethical duties, seek guidance from senior colleagues. Depending on the
circumstances, it may be prudent to seek a ruling from your Law Society’s
Ethics Committee. Don’t guess. Find out what you can and cannot do and
don’t take the chance that everything will be all right – get it right. You have
worked hard to earn your right to practise law and to develop your reputa-
tion. Don’t put either of them at risk.
33
Chapter 7
Independence from your client
“I don’t want a lawyer to tell me what I cannot do; I hire him to tell me
how to do what I want to do.”
JP Morgan, quoted in “Lawyers: Jokes, Quotes, and Anecdotes 2003 Calendar”,
Meaning of “independence”
[7.05] Much has been written about the need for a strong and independent legal
profession at the macro level to promote the administration of justice and
to defend democracy and the Constitution. Independence is also important
at the micro level, in your relationship with each client. By remaining inde-
pendent in everything that you do for clients, you contribute to the proper
functioning of the legal system, you enhance your reputation as an honour-
able and courageous lawyer and you protect your client as well as yourself.
Although a number of cases have emphasised that a lawyer must be inde-
pendent of his or her client, there is no clear exposition of what independ-
ence means in this context. The closest that a judge has come to defining
“independence” is the following statement of Brennan J in Waterford v
Commonwealth (1986) 163 CLR 54 at 70 in relation to legal professional privi-
lege:
“the legal adviser must be . . . independent, in order that the personal
loyalties, duties or interests of the adviser should not influence the le-
gal advice that he gives or the fairness of his conduct of litigation on
behalf of his client. If a legal adviser is . . . unable to be professionally
detached in giving advice or in conducting litigation, there is an un-
acceptable risk that the purpose for which [legal professional] privilege
is granted will be subverted.”
In the writer’s view you must be independent of your client in the sense that
the legal services you provide reflect your professional judgement and are
not compromised to suit the interests of your client. While, of course, you
should take into account your client’s views and interests in providing legal
services to your client, you must not depart from what you consider to be the
35
legally and ethically correct position in response to self-interest or pressure

from your client or a third party. Accordingly:
l Any legal advice you give must reflect your professional opinion of the
law, irrespective of whether or not it promotes your client’s interests.
l Any court document you prepare must be legally correct and used for
proper purposes, rather than as an abuse of process.
l Any statement you make orally or in correspondence to the court, an-
other practitioner or a third party on behalf of your client must be legally
justifiable and responsible and you must not allow yourself to become
your client’s “mouthpiece. . . to say what he wants: or his tool to do what
he directs” (Rondel v Worsley [1967] 1 QB 443 at 502).
l If, through a conflict of interest or other reason, you feel you are unable
to provide, or would be seen by reasonably competent practitioners as
being unable to provide, objective and detached advice or other legal
services to your client, you must explain the position and refer him or her
to an independent lawyer.1 If you seek to act in circumstances where
your professional independence could be called into question, the court
could restrain you from doing so: Robinson v Randfontein Est GM Co. Ltd
1921 AD 168. In everything you do, you must comply with your duties to
the court and your other overriding ethical duties in preference to your
duties to your client: see Chapter 6.
If your client asks you to do something illegal or unethical and, after you have
advised the client why you cannot do so, your client insists, you must cease
acting for the client irrespective of how wealthy or powerful the client is. The
ability to walk away from such a client is one of the hallmarks of professional
independence.
Essential characteristic of being a lawyer

[7.10] When you are admitted to practice by the High Court of South Africa, you
become an attorney or advocate of that court and you also become an officer
of that court.
The attributes of legal practice (such as legal professional privilege) only at-
tach when you act in your capacity as a legal practitioner and do not apply
when you act in another capacity such as trustee, executor, lender or land-
lord. Acting in the capacity of a lawyer is thus a general prerequisite to being
a lawyer. What is not entirely clear is whether acting independently of a cli-
ent is a separate general prerequisite to being a lawyer, or part of the general
prerequisite of acting in the capacity of a lawyer, or whether it is merely a
prerequisite for attracting legal professional privilege.
________________________
1 The need for independence underpins the conflict of interest principles: see Chapter 10.
36
Chapter 7: Independence from your client
This issue was discussed in the context of legal professional privilege in re-
spect of communications between the Government and any of its salaried
advisers, when they amount to an independent adviser’s confidential advice:
Mohamed v President of the Republic of South Africa 2001 (2) SA 1145 (C).
The applicant contended that, for the privilege to be lawfully claimed in re-
spect of advice sought, such advice must be obtained from an adviser acting
in a professional capacity. As no legal adviser and client relationship subsisted
between the Minister of Justice and the NDPP (National Director of Public
Prosecutions) the claim for legal privilege had to fail. Relying on the dictum of
Lord Denning in Alfred Crompton Amusement Machines Ltd v Commissioners
of Customs and Excise (No. 2) [1972] 2 All ER 353 (QB) at 376f–377b, Hoffman
AJ held (at 1155–1156) that provided “in-house” legal advisers remain mind-
ful of Lord Denning’s exhortation to be scrupulously aware of the distinction
between communications made in their capacity as legal adviser and other
communications which would not be of a privileged nature, legal professional
privilege can lawfully be claimed in respect of confidential communications
between Government and its salaried advisers when they amount to the
equivalent of an independent adviser’s confidential advice.
Importance of independence in 21st century

[7.15] Independence has always been an important feature of legal practice. It has,
however, assumed more prominence in the 21st century.
Corporate collapses
The demise of Andersen Legal in 2002, as part of the worldwide collapse of
Arthur Andersen in that year following the collapse of its client Enron in
2001, demonstrated that professional services firms which get too close to,
or too dependent on, their clients and cease to have sufficient independence
to say no to illegal or improper business practices cannot survive. As a result
of corporate collapses in the US (such as Enron and WorldCom), Australia
(such as HIH and OneTel) and elsewhere, legislatures and regulators in many
overseas countries, albeit regrettably not in South Africa, have tightened cor-
porate governance standards in relation to key professional services provid-
ers. This includes requiring them to be independent of their client company
and protecting them from liability if they become “whistleblowers”. While
most of the focus has been on auditors, lawyers have also featured in the de-
bate over measures to promote independence.
Complexity of commercial transactions

However, the contemporary need for independence of lawyers from their cli-
ents did not emerge as a result of the large-scale corporate collapses of the
early 21st century. The dramatic changes to the business and commercial
37
environment began in the early 1980s. The increased complexity of commer-

cial transactions and the internationalisation of business have brought about
significant changes in the role of lawyers. Whilst traditionally lawyers were
hauled in to document deals after they were made, lawyers are now involved
in large commercial transactions from the beginning.2
Ironically, the increasing complexity of commercial matters has been cou-
pled with shorter time-frames for completion. The impact of technology has
meant that clients often have the expectation that large and complex nego-
tiations or deals may be closed very quickly.
The increasing participation of lawyers in transactions of this type, possibly
as members of multi-disciplinary teams working on commercial transactions,
means that lawyers may run the risk of being indistinguishable from the
other professionals involved. It is therefore important for a lawyer to main-
tain sufficient distance from the transaction and the client in order to pre-
serve professional independence and carry out his or her duties with appro-
priate care and skill.
Managing client expectations

In some instances, the pressure from clients to complete deals or transac-
tions is enormous. A whole series of events may be contingent upon a par-
ticular deal closing or a settlement occurring. As a lawyer, you may be the
one who is required to give the final advice at a critical time in a commercial
transaction. The outcome of your advice or your actions may determine
whether the deal is made or lost. Your client will be angry and disappointed if
a deal is not made and, irrespective of the quality and soundness of your le-
gal advice, may never give you work again.
All these factors make it enormously difficult for a lawyer to arrest the pro-
gress of a transaction while a proper legal analysis is undertaken and advice
given. While you will never find this sort of decision easy, and your desire to
please your client will weigh heavily on your mind, you clearly have no other
option. The consequences of not properly considering the legal implications
of any transaction for your client may be disastrous.
Your client will not thank you and will certainly not understand that you
signed off on the deal before you had fully satisfied yourself that your client’s
interests were protected. The fact that you did so to meet an unrealistic
deadline imposed by your client will be quickly forgotten by your client. It will
be the final result, which may be less than desirable from your client’s point
of view, which will be your client’s focus.
The solution is simple. Never give advice with which you are not entirely
satisfied even if it means that your client is disappointed that the advice can-
not be given within a particular time-frame. If your client imposes unrealistic
________________________
2 S Fisher, “Lawyers in the Money” (1989) Business Review Weekly at 56.
38
deadlines which prevent you from carrying out your professional duties, then
it is better not to act for that client. To proceed with the matter, even with
written disclaimers which point out that you have not had enough time to
advise on all relevant matters, is simply too risky.
Your duties as a lawyer and the expectations of your client are that you will
give sound and timely legal advice. Increasingly, however, particularly in the
commercial area, lawyers are often requested by their clients to take a more
creative role in suggesting more effective ways of bringing about a particular
result. It will not be sufficient for you to simply refer to statutes or the com-
mon law. Your client will want you, quite justifiably, to think of a way to
achieve the desired result which is within the law and optimises returns for
your client.
Whilst being creative is certainly an essential component of the role of the
modern lawyer, it is important that your creativity does not stray beyond the
proper boundaries of ethical and professional conduct. Your duties as a prac-
titioner and your client’s legitimate expectations are that the client’s inter-
ests will be protected to the maximum extent possible under the law. If your
client expects you to do more than apply your legal skills in an ethical and
honourable way to protect his or her interests, then he or she is not worth
having as a client.
To be conservative and careful in the advice you give may be considered by
some to be old-fashioned but, as a lawyer, it will certainly make you sleep
easier at night and reduce the number of negligence suits against you. Some
of the lawyers who in the 1980s cut corners or turned a blind eye to ethical
considerations in their pursuit of big fees ended up either bankrupt, out of
practice or in prison.
In-house lawyers and legal professional privilege

[7.20] Some of the discussions about independence in recent cases have been in
the context of claims for legal professional privilege for legal services pro-
vided by in-house lawyers: Mohamed v President of the Republic of South Af-
rica above.
Overseas cases
One of the earliest judicial statements on independence by internal lawyers
in the context of legal professional privilege is the following observation of
Lord Denning MR in Alfred Crompton Amusement Machines Ltd v Customs
and Excise Commissioners (No. 2) [1972] 2 QB 102 at 129:
“Being a servant or agent [an in-house legal adviser] may be under
more pressure from his client. So he must be careful to resist it. He
must be as independent in the doing of right as any other legal ad-
viser.”
39
The European Court of Justice has said that:

“the requirement as to the position and status as an independent law-
yer, which must be fulfilled by the legal adviser from whom the written
communications which may be protected [by privilege] emanate, is
based on a conception of the lawyer’s role as collaborating in the ad-
ministration of justice by the courts and as being required to provide,
in full independence, and in the overriding interests of that cause, such
legal assistance as the client needs” (AM & S Europe Ltd v Commission
of the European Communities [1983] 1 QB 878 at 950).
It held (at 951) that the independence requirement can never be satisfied by
an internal corporate lawyer.
Internal lawyers with other roles not acting independently

The issue of independence was discussed at length in Australian Hospital
Care Pty Ltd v Duggan (No 2) [1999] VSC 131. In that case two defendants
challenged a claim for privilege made in the plaintiff’s affidavit of documents
in respect of four internal memoranda prepared by the general counsel/
company secretary of the plaintiff’s parent company on the basis that he was
not sufficiently independent of the plaintiff. For the purposes of his decision,
Gillard J treated the general counsel/company secretary as being the general
counsel/company secretary of the plaintiff. His Honour referred to previous
cases which discussed the independence issue and said that although it is
likely that the requirement of independence is an aspect of the requirement
that the internal lawyer must be acting in his or her capacity as a lawyer, it
was nevertheless convenient to consider the requirement of independence
“as a separate element”. His Honour made the following relevant obser-
vations at [54], [71], [81] and [82]:
“It is not possible to say with any degree of confidence that independ-
ence is an essential element of legal professional privilege with respect
to communications between the private sector employer and em-
ployee legal adviser but in my opinion there is sufficient dicta to sup-
port the proposition that the employee legal adviser when performing
his role in a communication concerning a legal matter must act inde-
pendently of any pressure from his employer and if it is established
that he was not acting independently at the particular time then the
privilege would not apply or if there was any doubt the court should in
those circumstances look at the documents.
...
The court may, after considering the issues, reach the conclusion
that the lawyer was acting independently and accordingly the privilege
is upheld, or that the lawyer was not acting independently and accord-
ingly there is no privilege, or the court may reach a position where it is
in doubt. If the latter stage is reached then the court should inspect
the documents to determine the propriety and validity of the claim.
...
40
[T]he mere fact that the legal adviser is an employee of the client or
that his duties may involve performing non-legal work do not establish
that at the relevant time he was not acting independently. It is recog-
nised that employees will perform non-legal work and it is an essential
element to the establishment of the privilege that at the relevant time
the employee was performing legal work.
...
The fact of employment is relevant but the weight to be attached to
that fact in considering independence will depend on the circum-
stances.”
On the basis of evidence indicating that the general counsel/company secre-
tary was directly involved in commercial negotiations relating to the disputed
transaction, and the plaintiff’s failure to respond to the defendants’ requests
for information regarding the independence issue, Gillard J held in Australian
Hospital Care that there was sufficient doubt as to whether the general coun-
sel/company secretary was acting independently at the relevant time. His
Honour therefore concluded that it was appropriate to go behind the affida-
vit of documents and order that the four internal memoranda be produced to
a judge so that the judge could inspect them and determine whether they
were privileged.
The issue of independence was also discussed in detail in Southern Equities
Corporation Limited (In liquidation) v Arthur Anderson & Co (No 6). Debelle J
at [9] agreed with Gillard J in Australian Hospital Care, that it is convenient to
consider the requirement of independence separately. His Honour made the
following relevant observations at [20], [21], [22], [24] and [26]:
“The defendant has demonstrated that Messrs Oates, Judge, Fox and
Nizzola all were employed by BCHL in positions other than that of legal
adviser . . . More significantly, if advice was given, it was necessary that
the advice was independent. The fact that each of these persons held
office as non-legal executives within the BCHL Group points to the
conclusion that it was not.
...
There may be occasions when they might comment on legal issues
or prepare legal documents but they do not then act as independent
legal advisers merely as managers or executives with legal knowledge.
...
I find that Mr Oates did not act as a legal adviser but as an execu-
tive company director. If he did on any occasion give legal advice, it is
doubtful whether the advice had the requisite degree of independence
to qualify for legal professional privilege. By way of an aside, I add that
another factor which might prevent any legal advice given by Mr Oates
from being privileged is the fact that he was the director of BCHL. A
company can only act through its directors. In other words, the direc-
tors are the corporate mind of the company. It follows that the
41
director cannot be independent of the company. Thus, if a lawyer who

is a director gives professional legal advice, it is likely that it will lack
the necessary degree of independence to qualify for legal professional
privilege. But it is unnecessary to rely on this ground which was not ar-
gued.
...
In my view, the lack of a practising certificate raises serious doubts
as to the independence of the advice given by Messrs Oates and Judge
and whether it can be properly classed as arising out of a lawyer and
client relationship.
Given the very substantial nature of the operations of the group, Mr
Nizzola’s employment as Executive – Group Finance suggests that he
was not acting as a legal adviser. If he did so act, there is a real likeli-
hood that he lacked the necessary degree of independence. The na-
ture of his primary duties is inconsistent with such independence.”
Debelle J held in Southern Equities (No 6) that there were “grave doubts” as
to whether any advice given by Messrs Oates, Judge, Fox and Nizzola “had
the requisite degree of independence to attract privilege”. His Honour de-
cided to inspect the documents personally and subsequently held in Southern
Equities Corporation Ltd (In Liq) v Arthur Andersen & Co (No 7) [2002] SASC 1
that only three-and-a-half of the 83 documents were privileged.
Internal government lawyers

The South African position is that provided “in-house” legal advisers remain
mindful of Lord Denning’s exhortation to be scrupulously aware of the dis-
tinction between communications made in their capacity as legal adviser and
other communications which would not be of a privileged nature, legal pro-
fessional privilege can lawfully be claimed in respect of confidential commu-
nications between Government and its salaried legal advisers when they
amount to the equivalent of an independent adviser’s confidential advice:
Mohamed 2001 (2) SA 1145 (C).
Independence: conclusion
[7.25] The heightened competition among law firms, the incessant client pressures
to deliver legal services in ever-decreasing time-frames and the growing
number of internal lawyers will ensure that the issue of independence re-
mains prominent in the 21st century.
A lawyer working closely with a client in a high-pressure environment, par-
ticularly if the lawyer is an employee of the client, faces two key challenges.
Firstly, be vigilant enough to detect when you are at risk of compromising
your detachment and independent judgement. Secondly, be strong enough
to resist the pressure or temptation to do so.
42
Chapter 8
Confidentiality
“There are two kinds of people who blow through life like a breeze.
And one kind is gossipers, and the other kind is gossipees.”
Ogden Nash, 1938
Confidentiality fundamentals
[8.05] Your clients will often discuss with you intimate details about their private
and business affairs, some of which may be known by only a few other peo-
ple. It is part of your duty to your client to maintain the confidentiality of
matters which are discussed during the course of your retainer.
The confidentiality of discussions between a legal practitioner and his or
her client is premised on the need to ensure that clients make full and frank
disclosure of all relevant circumstances to their legal practitioner: National
Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 at 229. This
ensures the legal practitioner has all of the relevant information on which to
provide informed advice. The existence of a duty of confidentiality, together
with protection of some confidential information by legal professional privi-
lege (see Chapter 9), enables a client to approach his or her legal practitioner
safe in the knowledge that his or her confidential information will not be
splashed across the pages of a newspaper.
Duty of confidence
[8.10] There is an implied term of the contract between you and your client that
you will preserve the confidentiality of all communications between you and
your client. Wessels JA (as he then was) remarked on this point in Robinson v
Van Hulsteyn, Feltham & Ford (1925 AD 12) as follows:
“. . . a client is often compelled to reveal to his solicitor the most inti-
mate circumstances in his life. The solicitor may thus become the re-
pository of the most vital secrets of his client. These confidences
reposed in him, he may not divulge, and if he does, the Court will pun-
ish him for his breach of duty towards his client.
. . . the essence of this branch of the law, whatever the origin of it may
be, is that a person who has obtained information in confidence is not
allowed to use it as a springboard for activities detrimental to the
43
person who made the communication” (Terrapin Ld v Builders’ Supply

Co (Hayes) Ltd, Taylor Woodrow Ld and Swiftplan Ltd [1960] RPC
128 (CA)).
See also Seager v Copydex Ltd [1967] 2 All ER 415 CA at 417F where Lord
Denning MR said:
“it depends on the broad principle of equity that he who has received
information in confidence shall not take unfair advantage of it. He
must not make use of it to the prejudice of him who gave it without
obtaining his consent.”
The client’s claim to the right of privacy is furthermore protected by s 14 of
the Constitution which provides:
“Everyone has the right to privacy, which includes the right not to
have –
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.”
Fiduciary obligation
[8.15] You are also under a fiduciary obligation to your client to preserve the confi-
dentiality of information provided by your client.
An exposition of the South African principles can be found in the judgment
of Lewis J in Waste Products Utilisation (Pty) Ltd v Wilkes 2003 (2) SA 515 (W)
quoting with approval from the judgment by Stegmann J in Meter Systems
Holdings Ltd v Venter 1993 (1) SA 409 (W) at 426 ff:
“(O)ur law recognises fiduciary relationships, which as a matter of law,
give rise to an obligation to respect the confidentiality of information
imparted or received in confidence, and to refrain from using or dis-
closing such information otherwise than as permitted by law or by con-
tract. The fiduciary relationships which give rise to such legal duties are
in some instances based on contracts and in some instances they are
not.
Examples of contracts which give rise to such fiduciary relationships
and duties are the contract between a principal and his agent, an em-
ployer and his employee . . .
When the fiduciary relationship is based on contract, the obligation
to respect the confidentiality of information imported or received in
confidence is generally regarded as a term of the contract implied by
law. Such an implied term is subject to any different provisions agreed
upon by the parties. The content of such an implied term must neces-
sarily be determined in the light of the provisions of the contract as a
whole.
44
Chapter 8: Confidentiality
When the fiduciary relationship is not based on contract, it is neces-

sary to look to the law of delict and in particular to the principles of
Aquilian liability, in order to ascertain the extent of the legal duty to
respect the confidentiality of information imparted or received in con-
fidence.
These aspects of the law, including both the content of the con-
tractual term relating to confidential information implied by law in a
contract giving rise to a fiduciary relationship, and also the content of
the legal duty relating to confidential information imposed on Aquilian
principles, are currently in the process of development. They appear to
be developing in parallel in the sense that the emerging definition of
the legal duty relating to confidential information for the purpose of
the law of delict arising out of a fiduciary relationship not based on
contract is not materially different from the emerging definition of the
contractual term implied by law arising out of a fiduciary relationship
that is based on contract . . .”
Scope of duty
[8.20] The confidence of the client is absolute and must be preserved by his or her
attorney except to the extent that disclosure may be rendered necessary or
permissible. This confidence embraces all oral and documentary information
respecting the client’s affairs gained in acting for him or her whether from
the client directly or from any other source whatever: Lewis, Legal Ethics,
p 291; Lincoln v Daniels [1961] 3 All ER 740–749. The preservation of confi-
dence is so important that it becomes a part of the management of the at-
torney’s practice and requires him or her to do his or her best to curb a
breach of confidence on the part of staff who must in the course of their
work inevitably receive confidential information: Lewis, Legal Ethics, p 292.
Your duty of confidentiality extends not just to communications which
would be the subject of legal professional privilege but also to information
which is generally provided in confidence: Parry-Jones v Law Society [1969] 1
Ch 1. Your duty to preserve this confidential information is an onerous one.
You must maintain the confidentiality of your client’s information forever.
Your duty of confidence to your client remains even after your retainer has
come to an end. It even survives your client’s death; it is then owed to your
client’s estate.
Contravention of duty
[8.25] Few practitioners disclose their clients’ affairs with the deliberate aim of
causing their clients embarrassment or harm. However, the absence of an in-
tention to cause harm would not absolve you from liability. Most prac-
titioners get very excited about their work and naturally talk about it with
their friends and colleagues. Although there is nothing wrong with discussing
45
your work in a general way with friends and colleagues, be careful that your
discussion does not become too specific. You may find that your friend or col-
league acts for a person who is in dispute with your client!
Similarly, never discuss your cases in a crowded lift on the way to your of-
fice or counsel’s chambers – you never know who the other people in the lift
are.
Modern technology enables a litigant to obtain access to the most private
and confidential discussions of his or her opponent: his or her telephones can
be tapped, a listening device can be planted in a boardroom or bedroom of
the opponent, documents can be photocopied, tape recordings of meetings
can be stolen: Lenco Holdings v Eckstein 1996 (2) SA 693 (N).
The remedies for misuse of confidential information

[8.30] A failure to preserve the confidentiality of your client’s information can result
in your client seeking the intervention of the court. Firstly, your client can sue
you for damages if you fail to keep his or her affairs confidential. Particularly
where you are acting for commercial clients, it is easy to envisage situations
where the release of confidential information would cause financial loss to
your client. To succeed with such relief, the following must be established:
l the plaintiff must have an interest in the confidential information, which
need not necessarily be ownership;
l the information must be of a confidential nature;
l there must exist a relationship between the parties which imposes a duty
on the defendant to preserve the confidence of information imparted to
him or her, which could be the relationship between the employer and
employee, or the fact that he or she is a trade rival who has obtained in-
formation in an improper manner;
l the defendant must have knowingly appropriated the confidential infor-
mation;
l the defendant must have made improper use of that information,
whether as a springboard or otherwise, to obtain an unfair advantage for
himself or herself; and
l finally, the plaintiff must have suffered damage as a result: Waste Prod-
ucts Utilisation (Pty) Ltd v Wilkes above.
Secondly, your client could apply to the court to exclude evidence which was
unlawfully obtained. The court’s role is to prevent an abuse of the process
through improper or unlawful practices by disallowing evidence obtained in
violation of the law, good morals, ethics or the public interest. Since the ad-
vent of the Constitution, the court is obliged to uphold its principles and
foundational values. Each citizen has a right to protection against violation of
his or her fundamental rights. Therefore, as a matter of public policy and in
46
Chapter 8: Confidentiality
upholding the constitutional rights of the respondents, the court has to act
against the unwarranted intrusion into the private sphere of individuals: Lot-
ter v Arlow 2002 (6) SA 60 (T).
The duty to preserve the confidentiality of your client’s information may
give rise to a conflict of interest if you are subsequently asked to act for
someone who has an interest in knowing the confidential information of an-
other current or former client: see Chapter 10. Thirdly, a breach of your duty
of confidentiality to your client may constitute a breach of the professional
standards and may lead to disciplinary action against you.
Exceptions to duty of confidentiality

[8.35] While your contractual and fiduciary duty to maintain the confidentiality of
your client’s information is important, the duty can never override any statu-
tory or common law duty to disclose a communication between you and your
client. Accordingly, the fact that a document is subject to your duty of confi-
dence to your client would not excuse you from producing the document to
the police if it comes within the scope of a valid search warrant (Parry-Jones v
Law Society [1969] 1 Ch 1), unless the document is privileged: see Chapter 9.
There are a number of exceptions to the duty of confidentiality of which
you should be aware. The duty of confidentiality does not override a practi-
tioner’s duty to the court. If, for example, the insistence on the duty of confi-
dentiality would mean that you would mislead a court, you are under a duty
in this situation to disclose the relevant information.
Client consent
The most obvious exception to the duty of confidentiality is if your client
consents to the disclosure of the information. If your client gives you
permission to disclose information which would otherwise be confidential,
you will not breach your duty if you disclose it as permitted.
If you work in a firm, in the absence of express instructions to the contrary,
it is likely that your client will be held to impliedly consent to you discussing
the client’s affairs with a colleague within the firm for the purpose of obtain-
ing professional assistance from the colleague. While discussion of the cli-
ent’s affairs with a colleague outside the firm in terms which identify the
client may, in some circumstances, not constitute a breach of confidence
(McKaskell v Benseman [1989] 3 NZLR 75), the prudent course is to assume
that it would and to refrain from doing so unless you obtain your client’s ex-
press authority for such discussions.
Public knowledge
If the information provided to you by your client is public knowledge, there is
no obligation on you to maintain the confidentiality of this information: Re A
Firm of Solicitors [1995] 3 All ER 482 at 489. Care must be taken, however,
47
where you disclose information which you believe is not the subject of the
duty of confidentiality because it is in the public domain. It may be that the
information provided by your client is confidential, but that related informa-
tion is publicly available. You must exercise great discretion in this regard to
avoid inadvertently disclosing confidential information and breaching your
duty to your client.
Practitioner-client litigation
Where there is litigation between a practitioner and a client (e.g. the client
sues in negligence or the practitioner sues for unpaid fees), the practitioner
can disclose confidential information for the purposes of that litigation. Like-
wise, a practitioner can disclose confidential information to the practitioner’s
professional indemnity insurers and legal advisers to the extent necessary to
enable them to handle a claim against the practitioner by the client.1
Recognised public interest
Confidentiality of information may not be enforceable where there is a rec-
ognised public interest in disclosing the information. In such cases, it must be
demonstrated that the public interest in maintaining the confidence is out-
weighed by a higher public interest, which may include, for example, matters
such as the interests of justice or national security.2 However, there is a very
high burden on the practitioner who seeks to justify the disclosure of infor-
mation on the basis of public interest.
Confidentiality: conclusion
[8.40] The duty of confidence is of fundamental importance to the practitioner-
client relationship. It encourages clients to be frank with their lawyers, which
in turn enables the lawyers to provide informed advice.
There are some obvious and necessary exceptions to the duty, but these
apply only in limited circumstances.
________________________
1 GE Dal Pont, Lawyers’ Professional Responsibility in Australia and New Zealand (2nd ed, LBC Information Services,
Sydney, 2001), p 272.
2 See further, GE Dal Pont, Lawyers’ Professional Responsibility in Australia and New Zealand (2nd ed, LBC Informa-
tion Services, Sydney, 2001), pp 273–274.
48
Chapter 9
Legal professional privilege
“The privilege is all mine.”
Everyone’s client
Legal professional privilege: introduction

[9.05] In addition to the contractual obligation of confidence, there exists a doctrine
in our law that confidential communications between you and your client are
“privileged” from disclosure. Although it was originally understood that the
privilege is purely an evidential rule, a different view is now taken. Because
confidentiality, in this context, is necessary for the proper functioning of the
legal system it is accepted today that professional privilege is a rule of sub-
stantive law: Bogoshi v Director, Office for Serious Economic Offences 1993
(3) SA 953 (T) and 1996 (1) SA 785 (A).
“Whilst legal professional privilege was originally confined to the main-
tenance of confidence pursuant to a contractual duty which arises out
of a professional relationship, it is now established that its justification
is to be found in the fact that the proper functioning of our legal sys-
tem depends upon a freedom of communication between legal advis-
ers and their clients which would not exist if either could be compelled
to disclose what passed between them for the purpose of giving or re-
ceiving advice . . . The restriction of the privilege to the legal profession
serves to emphasise that the relationship between a client and his le-
gal adviser has a special significance because it is part of the function-
ing of the law itself . . . ” (Baker v Campbell (1983) 49 ALR 385; S v
Safatsa 1988 (1) SA 868 (A)).
“The foundation of the rule is that a litigant should be able to obtain le-
gal advice freely by laying all the facts before his legal adviser without
fear that these facts will be disclosed to his opponent” (Euroshipping
Corp of Monrovia v Minister of Agricultural Economics and Marketing
1979 (1) SA 637(C)).
“Without this right our adversarial system of litigation cannot operate
properly” (Jeeva v Receiver of Revenue, Port Elizabeth 1995 (2) SA 433
(SE)).
49
Requirements of privilege
[9.10]
“Legal professional privilege attaches to information obtained by or for
a professional legal adviser for the purpose of advising his client as to
the prosecution or defence of an action, or advising him as to whether
a claim should be made or defended. For privilege to operate within
this rule two things must occur:
(a) the information must be obtained for the purpose of obtaining
professional legal advice;
(b) it must be obtained for the purpose of obtaining that advice with
reference to actually pending or contemplated litigation” (Per
Friedman J in Euroshipping Corp of Monrovia v Minister of Agri-
cultural Economics and Marketing 1979 (1) SA 637 (C) 640–641).
“There are sound reasons for respecting attorney-client privilege. In
order to secure skilled legal representation in litigation, the legal sys-
tem predicates on the need for establishing trust between legal repre-
sentative and his or her client and securing freedom of communication
between them without fear of disclosure. This can only be attained if
communications are treated as confidential and inroads are confined
to clear cases of greater competing interests” (Blue Chip Consultants v
Shamrock 2002 (3) SA 23 (W)).
In-house legal advisers

[9.15] In Mohamed v President of the Republic of South Africa 2001 (2) SA 1145 (C)
it was held that limiting the scope of legal professional privilege to legal prac-
titioners in private practice and their clients is not justified provided that “in
house” legal advisers remain scrupulously aware of the distinction between
communications made in their capacities as legal advisers, which would enjoy
the protection of legal professional privilege, and other communications not
made in that capacity, which would not be privileged. Legal professional
privilege can thus be claimed in respect of confidential communications be-
tween Government and its salaried advisers when such communications
amount to the equivalent of an independent legal adviser’s confidential ad-
vice to a client.
When does privilege arise?

[9.20] Legal professional privilege only arises when the legal practitioner acts on
behalf of the person claiming the privilege. It therefore does not arise when
he or she acts as a friend or business associate. Legal professional privilege
does not operate where legal advice is obtained in order to enable a client to
further a criminal end.
50
Chapter 9: Legal professional privilege
When does legal professional privilege not operate?

[9.25] Communications in furtherance of a crime are not protected even if the legal
adviser was ignorant of the illegal object: Harksen v Attorney-General, Cape
1999 (1) SA 718 (C); Botes v Daly 1976 (2) SA 215 (N).
Waiver of privilege
[9.30] Legal professional privilege may be waived either expressly or by implication.
The requirements for an implied waiver of legal professional privilege are
firstly, that the privilege holder must have full knowledge of his or her rights
and, secondly, he or she must have so conducted himself or herself that ob-
jectively speaking, it can be inferred that he or she intended to abandon
those rights: Borstlap v Spangenberg 1974 (3) SA 695 (A); Harksen v Attorney-
General, Cape 1999 (1) SA 718 (C). There is also authority that legal profes-
sional privilege may be imputedly waived where the privilege-holder so con-
ducts himself or herself that, whatever his or her subjective intention might
be, the inference must in fairness be drawn that he or she no longer relies on
his or her privilege: Attorney General, Northern Territory v Maurice (1986) 10
FCR 134; Harksen v Attorney-General, Cape (above).
In S v Boesman 1990 (2) SACR 389 (E) some of the accused testified that
certain submissions made by their advocates to the State witnesses were not
in accordance with their instructions, and were therefore incorrect. The ad-
vocates had made the submissions that they were now being challenged, at a
time when they were no longer involved in the trial, since the accused had
terminated their services. The Court accepted the State’s argument that this
evidence by the accused amounted to a waiver of their professional privilege
and that the advocates in question could, in principle, give evidence against
the accused. The Court held, however, that it is generally undesirable for at-
torneys or advocates to give evidence against their clients, that the Court had
a discretion in appropriate cases to exclude admissible evidence and that in
these circumstances, public policy demanded that the advocates should not
testify against their former clients.
Who owns the privilege?

[9.35] The privilege is that of the client and not the legal practitioner although, in
practice, the legal representative normally claims it on behalf of the client.
Where the legal practitioner claims his or her client’s privilege, the Court will
have to determine, if the client is entitled to such privilege. If the client does
not agree that the legal representative claims his or her privilege, the client’s
decision will apply: LexisNexis, Law of Evidence 20-7.
51
Extent of privilege
[9.40] Legal professional privilege does not only apply to communications between
legal practitioners and their clients, but also to statements made by third par-
ties where the communication was made with the object of obtaining advice
in connection with litigation already begun or contemplated. Potter v South
British Insurance Co. Ltd 1963 (3) SA 5 (W):
“Where the communications pass not between the party and his law-
yers but between the party and a non-party and a non-professional
agent or third party, they are not privileged unless made (1) for the
purpose of litigation existing or contemplated, and (2) in answer to
enquiries made by the party as the agent for or at the request or sug-
gestion of his legal adviser, and though there has been no such request
for the purpose of being laid before the legal adviser with a view to ob-
taining his advice or to enable him to conduct the action, for example
to prepare the brief.”
Duration of privilege
[9.45] The privilege continues indefinitely, even after the transaction in question
has been completed and even after the client terminates the legal repre-
sentative’s retainer and employs another practitioner. The rule is “Once privi-
leged, always privileged” (Estate Bliden v Sarif 1933 CPD 271 274; Euro-
shipping Corp. of Monrovia v Minister of Agricultural Economics and Mar-
keting (above)).
It is generally accepted that as long as the testator is alive, a will, which has
been attested by the client’s attorney as witness, is a privileged document:
Van Niekerk, Van der Merwe, Van Wyk: Privilegies in die Bewysreg, 64. After
the death of the testator-client, however, the position changes. Both the Eng-
lish and American courts have ruled that an attorney who attested a will as a
witness can give evidence as to both its execution and content. Wigmore: A
Treatise on the Anglo-American System of Evidence in Trials at Common Law
(3rd ed, Boston Little Brown and Co., 1961) para 2134 reasons in this connec-
tion as follows: “He cannot be an attesting witness and yet not attest when
the time comes”.
Forfeiture of privilege
[9.50] Where in a criminal case it was sought to cross-examine a State witness on a
statement which was privileged because it was made by the witness to an at-
torney in the course of obtaining legal advice, and where the witness refused
to waive the privilege and where the trial judge was asked to relax the rule of
privilege on the ground of an allegation made on behalf of the accused that
such cross-examination might assist him in defending the charges against
him, it was held that the question of the relaxation of the rule of professional
52
privilege can only arise in the context of the exercise of a discretion by the
trial judge based on all the information relevant to the question. The mere al-
legation, on behalf of the accused, that cross-examination on a statement
may be to his benefit, is insufficient to bring the discretion of the trial judge
into play. The Court also held that if there was any possibility whatsoever of
forfeiture in order to prove innocence of the accused (and no definite opin-
ion was expressed on this point) it could be done by way of a judge’s discre-
tion only in which case a proper foundation for it would have to be laid. Any
claim to forfeiture of privilege must be approached with great circumspec-
tion: S v Safatsa 1988 (1) SA 868 (A).
When can legal professional privilege be claimed?

[9.55] Whether legal professional privilege can be claimed in respect of any particu-
lar communication is a question of fact. The Court has an inherent power to
examine the contested communication to determine whether the claim to
privilege is justified or not: South African Rugby Football Union v President of
the Republic of South Africa 1998 (4) SA 296 (T). The inherent power of the
Court would, in itself, not impinge upon the freedom of communication be-
tween legal advisers and their clients. It is merely a procedural step in which
it has the inherent power to determine whether the party claiming the privi-
lege is justified in raising the objection against discovery.
The test to be applied by a court before exercising a power of inspection is
whether there were special circumstances present in the sense that it is ne-
cessary and desirable for a just decision or whether there is some reason to
cast doubt upon the version of the party claiming the privilege. The court
should not, however, as a matter of course, or as a general rule, insist on the
inspection of any documents in question.
Communications by third parties

[9.60] Privilege only prevents the client, or the client’s adviser or a representative of
either of them from testifying. In S v Moseli (2) 1969 (1) SA 650 (O) it was de-
cided that an interpreter who had acted as spokesperson for the adviser was,
like the adviser, prevented from testifying on the grounds of privilege.
Onus of proof
[9.65] It is common cause that the onus in respect of the claim of legal professional
privilege rests upon the respondent. This accords in line with the notion that
the onus of establishing a constitutionally acceptable justification in terms of
s 36 of the Constitution rests upon the party relying on it: S v Makwanyane
1995 (3) SA 391 (CC).
53
Insolvency – admissions
[9.70] Public policy dictates that an admission of insolvency is admissible in seques-
tration proceedings even though it was made on a privileged occasion: Lynn
and Main Inc v Naidoo 2006 (1) SA 59 (N).
Insolvency Act – section 417 enquiries

[9.75] There is nothing to indicate that a witness cannot rely on legal professional
privilege during the course of a section 417 enquiry: Van der Heever v Die
Meester 1997 (3) SA 93 (T).
Legal professional privilege as a defence to a

right asserted under s 23 of the Constitution –
public interest benefit
[9.80] Section 23 entails that public authorities are no longer permitted to “play
possum” with members of the public where the rights of the latter are at
stake. Discovery procedures and common law claims of privilege do not enti-
tle them to roll over and play dead when a right is at issue and a claim for in-
formation is consequently made. The purpose of the Constitution, as mani-
fested in s 23, is to subordinate the organs of the State, including municipal
authorities, to a new regime of openness and fair dealing with the public.
That the disclosure of the report might be inconvenient and even em-
barrassing to the respondent could not be accepted; and under the common-
law regime of discovery and privilege its resistance to disclosure may for this
reason be well warranted. That, however, did not justify attenuating the im-
pact of s 23. On the contrary, it was precisely for that reason that s 23 had
conferred upon the applicant the right nevertheless to obtain it: Van Niekerk
v Pretoria City Council 1997 (3) SA 839 (T).
Docket privilege – witness statements

[9.85] The privilege applies in both criminal and civil proceedings. As far as criminal
proceedings are concerned, the so-called “blanket docket privilege” approv-
ed in R v Steyn 1954 (1) SA 324 (AD) not only covered mere witness state-
ments contained in the police docket, it also covered all other documents
and information gathered and summarised in the docket. As a rule, it prohib-
ited the disclosure of all witness statements and indeed of all documents
forming part of the legal representative’s brief.
When the interim Constitution came into operation, establishing, among
other things, the constitutional right to information held by the State and the
right to a fair trial, specifically including the right to be informed with suffi-
cient particularity of a charge, it was not long before the comprehensive
54
docket privilege was attacked in court: LexisNexis, Law of Evidence, Issue 5

20-14.
The reasons for the existence of two types of privilege differ. Professional
privilege is designed to protect the confidentiality and promote free com-
munication between legal adviser and client. There is not the same need for
confidentiality between an investigating officer and witnesses, or between
State counsel and State witness. Section 201 of the Code, which protects the
privilege of legal practitioners, does not apply to the State. The State has ma-
chinery to extract a statement from an unwilling witness. Witness statement
privilege is justified on the basis that disclosure could lead to abuse or un-
necessary and irrelevant cross-examination and the fact that police state-
ments are often not taken in optimum conditions. Also in the case of legal
professional privilege, the privilege is that of the client whereas witness
statement privilege vests in the prosecution. Different rights are being pro-
tected by the two types or privilege. It follows that the privilege is restricted
to statements of prospective witnesses and does not extend to other docu-
ments which might be privileged under legal professional privilege: S v Jija
1991 (2) SA 52 (E) per Erasmus J.
In Shabalala v Attorney-General of the Transvaal 1996 (1) SA 725 (CC) the
Court considered two issues namely:
l whether or not the common law privilege pertaining to the contents of
police dockets, defined in Steyn’s case, was consistent with the Con-
stitution; and
l whether the common law rule of practice which prohibits an accused
person or his or her legal representative from consulting with a State wit-
ness without the permission of the prosecuting authority, in all cases and
regardless of the circumstances, was consistent with the Constitution.
As to the constitutionality of the rule in R v Steyn, the Court held that the
blanket rule of exclusion was unreasonable, unjustifiable in an open and de-
mocratic society, and was unnecessary and that it could not survive the disci-
pline of the Constitution. In the case of statements of witnesses made in
circumstances where there was a reasonable risk that their disclosure might
constitute a breach of State secrets, methods of police investigation, the
identity of informers and communications between a legal adviser and his
client, it might be proper to protect the disclosure of such statements and
the State might succeed in establishing that such restriction was reasonable,
justifiable in an open and democratic society based on freedom and equality
and that it was necessary and did not negate the essential content of the
right to a fair trial. Even in such cases it did not follow that this disclosure of
the statements concerned had always to be withheld if there was a risk that
the accused would not enjoy a fair trial. The Court in each case had to exer-
cise a proper discretion balancing the accused’s need for a fair trial against
the legitimate interests of the State in enhancing and protecting the ends of
justice.
55
Regarding the rights of an accused to consult with State witnesses, the

Court held that there may be circumstances where the right to a fair trial
might justify a prior consultation with State witnesses. The blanket pro-
hibition against all such consultations was too wide and could not be justified
under s 33 of the Constitution. The claim to consult without prior authority of
the prosecuting authority was only justifiable in circumstances where the
right of the accused to a fair trial would in the special circumstances of the
case be impaired if the defence was denied the opportunity to have such
consultations. If such consultation was denied in these circumstances, the
Court must have the right, in an appropriate case, to test the legitimacy of
any such denial and to direct access to a witness for the purpose of such con-
sultation, if such a course was justified for the purpose of ensuring a fair trial.
Even in cases where the Court was of the opinion that the requirements of a
fair trial justified consultations with State witnesses, it did not necessarily fol-
low that it was obliged to direct access for such consultation process: the
court had a discretion to refuse access where there are a reasonable risk that
access might lead to intimidation of witnesses or otherwise prejudice the
proper ends of justice. It would not be sufficient for the State merely to es-
tablish that such was its bona fide belief. The prosecution would have to
show that a reasonable person in the position of the prosecution would hold
a belief that there was a risk of such intimidation or prejudice to the proper
end of justice.
Insofar as the docket privilege was concerned, the Court held that it dif-
fered from other kinds of privilege; it had different reasons to justify its exis-
tence. A privilege to withhold some of the information in the docket did not
justify a blanket privilege covering the entire contents of the docket; the
docket might contain information which was justifiably privileged in terms of
the Constitution on the ground that it related to the identity of an informer
or that there were sound reasons to conclude that the witnesses might be in-
terfered with if their identity was revealed, etc. In such cases the privilege
should be claimed and the Court should then be called upon to consider
whether that claim was an acceptable limitation on the rights entrenched in
Chapter 3 within the meaning of s 33(1) of the Constitution. A general um-
brella privilege was accordingly not warranted.
Search and seizure – validity of warrants issued in terms

of s 29 of the National Prosecuting Authority Act
1998
[9.90] In August 2005 the Director of National Public Prosecutions (NPP) applied for
and obtained 21 search and seizure warrants, issued in terms of s 29(5) and
(6) of the NPP Act 1998 (the Act) in the course of an investigation into alleged
corruption connected with South Africa’s defence procurement programme:
56
Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v Director of

National Public Prosecutions 2009 (1) SA 1 (CC).
Most of these warrants were executed simultaneously and some three
months later. Thereafter T and Z were indicted to stand trial on charges of
corruption. Z successfully obtained an order in the Durban High Court de-
claring certain of the warrants invalid while T was unsuccessful in the Pretoria
High Court in a similar application. Both these rulings were appealed and, as
a result the Supreme Court of Appeal (SCA), by a majority overturned the
Durban High Court judgment and upheld that of the Pretoria High Court. T
and Z then approached the Constitutional Court to have the orders of the Su-
preme Court of Appeal set aside. The validity of six of the warrants was in is-
sue. One of them had been executed at T’s offices in Pretoria, another at the
attorney’s offices in Durban and the remaining four at two of Z’s residences
and at two of his former offices.
Altogether the Constitutional Court had to determine nine legal issues,
some of which are not relevant here but others are of considerable im-
portance.
[9.95] The right to legal professional privilege

As the applicants did not assert that the Constitution itself protects legal
professional privilege the Court confined itself to the common law right to
legal professional privilege, and with how that right is protected by s 29(11)
of the Act.
The Court held that the right to legal professional privilege is a general rule
of our common law which states that communications between a legal ad-
viser and his or her client are protected from disclosure, provided that cer-
tain requirements are met. The rationale of this right has changed over time.
It is now generally accepted that these communications should be protected
in order to facilitate the proper functioning of an adversarial system of jus-
tice, because it encourages full and frank disclosure between advisers and
clients. This, in turn, promotes fairness in litigation. In the context of criminal
proceedings, moreover, the right to have privileged communications with a
lawyer protected is necessary to uphold the right to a fair trial in terms of
s 35 of the Constitution, and for that reason it is to be taken very seriously
indeed.
Accordingly, privileged materials may not be admitted as evidence without
consent. Nor may they be seized under a search warrant. They need not be
disclosed during the discovery process. The person in whom the right vests
may not be obliged to testify about the content of the privileged material. It
should, however, be emphasised that the common law right to legal profes-
sional privilege must be claimed by the right-holder or by the right-holder’s
legal representative. The right is not absolute; it may, depending on the facts
of a specific case, be outweighed by countervailing considerations.
57
[9.100] The s 29(11) mechanism for settling claims of privilege

Once legal professional privilege is claimed s 29(11) of the National
Prosecuting Authority Act 1998 automatically comes into operation. Where
privilege is not expressly claimed because the privileged nature of the items
seized was not realised, the ordinary common-law protection of privileged
documents persists. Accordingly, it is not necessary for the search warrant to
refer to s 29(11), nor for the investigators to inform those being searched of
this mechanism.
Legal professional privilege – information gathering

[9.105] When an attorney interviews persons with a view to gathering information
on which to advise his or her client in regard to contemplated litigation, the
notes made by the attorney form part of his or her brief and are privileged
from discovery. The fact that the notes were made in the presence of a third
person, even if that third person happened to be the attorney acting for the
other party, would not destroy the privilege: Euroshipping Corporation of
Monrovia v Minister of Agricultural Economics and Marketing 1972 (1) SA
637 (C).
Privilege between insured and insurer

[9.110] Communications passing between an insured and his or her insurer after a
stage has been reached when litigation is probable in regard to an occur-
rence in respect of which the insurer is on risk to indemnify the insured are
privileged in any litigation which in fact results, if such communications came
into existence for the purpose of providing information for use by the in-
sured’s solicitors in the conduct of such litigation: Euroshipping Corporation
above.
Legal professional privilege: conclusion

[9.115] Legal professional privilege is an essential component of a lawyer’s tool kit.
Questions about privilege arise regularly in practice and it is therefore vital
for you to understand the relevant principles and keep up to date with de-
velopments in this area. This will enable you to maximise the prospects of
your clients’ documents being protected by privilege.
58
Chapter 10
Conflict of interest
“No man can serve two masters: for either he will hate the one, and love
the other; or else he will hold to the one, and despise the other. Ye cannot
serve God and mammon.”
The Bible, Matthew 6:24
Conflict of interest: introduction

[10.05] As a practitioner, your primary duty is to use your utmost skill and experience
and all relevant information known to you to further the interests of your cli-
ent. Accordingly, you should avoid doing anything which may potentially con-
flict with this duty. A failure to avoid a conflict of interest may expose you to
liability for negligence and may constitute unprofessional conduct.
Acting for both parties to a transaction

[10.10] A distinction is sometimes drawn between acting for both parties in litigious
and non-litigious matters. Whilst it is clear that you cannot act for two oppos-
ing parties in actual or contemplated litigation, in most jurisdictions, there is
no absolute rule precluding you from acting for both parties in non-litigious
matters. However, it is generally unwise to do so and, in certain circum-
stances, it might amount to unprofessional conduct.
The danger with acting for both parties in the same transaction is that one
client’s interests may be preferred above another or, at the very least, there
may be a perception that this is the case. These competing interests were ex-
pressed by Tadgell J in Council of the Law Institute of Victoria v A Solicitor
[1993] 1 VR 361 at 367 in the following terms:
“Although a solicitor may without impropriety act for a client on either
side of a transaction, he always runs the risk if he does so that he may
be required to stand up for one side against the other.”
The question of conflict of interest in non-litigious matters often arises in
situations where you act in one transaction for both seller and purchaser, or
mortgagee and mortgagor, or lessor and lessee. The practice of some
practitioners, in jurisdictions where there is no prohibition against acting for
both parties, is to act for both parties unless it can be demonstrated that
59
there are special circumstances which give rise to a conflict between the
parties or indicate potential for such a conflict.
If, despite the undesirability of doing so, you decide to act for both parties
to a transaction, it is incumbent upon you to ensure that every possible step
is taken to safeguard the interests of each of your clients. You must ensure
that you give the same care and attention to the interests of each client as
you would be bound to give if you were acting for only one. This is a difficult
task because acting for both parties in a transaction may inhibit the profes-
sional judgement you normally exercise when acting only for one of the par-
ties. If you acted for both parties and favoured the interests of one to the
detriment of the other, you would be guilty of unprofessional conduct: Re AB
(a solicitor) [1939] ALR 208; Wan v McDonald (1992) 33 FCR 491.
Judicial warnings
[10.15] In Spector v Ageda [1973] 1 Ch 30 Ageda and Gravesande had borrowed
money under an agreement with Maxwell. Spector, who was Maxwell’s sister
and a lawyer, was later asked by the borrowers to act for them in the dis-
charge of their obligations under the agreement. Spector knew the agree-
ment was probably unenforceable against them but did not tell them. To
make matters worse, Spector had altered the agreement after it had been
signed by the borrowers and apparently without their knowledge. The altera-
tion was to their detriment. Megarry J said at 48:
“A solicitor must put at his client’s disposal not only his skill, but also
his knowledge, so far as is relevant; and if he is unwilling to reveal his
knowledge to his client, he should not act for him. What he cannot do
is to act for the client and at the same time withhold from him any
relevant knowledge that he has.”
His Lordship also made the following comments at 429:
(a) “The courts have often pointed out the undesirability of a solici-
tor acting for both parties in a conveyancing transaction, as by
acting for both vendor and purchaser; yet the practice remains
widespread, sustained, it seems, by beliefs such as those of
economy, efficiency, speed, and no doubt, others.
(b) In such cases, the solicitor of course has a double duty to per-
form: he must safeguard the adverse interests of each of his cli-
ents. In the absence of any personal interest to impel him to one
side or the other, a solicitor can, and doubtless in the vast major-
ity of cases does, stand indifferent, and, at some risk, discharge
his duty of acting impartially in the interests of each of his cli-
ents.
(c) Where, however, one of the parties is the solicitor himself, then
the matter seems to me to be entirely different: the solicitor
must be remarkable indeed if he can feel assured of holding the
scales evenly between himself and his client. Even if in fact he
60
Chapter 10: Conflict of interest
can and does, to demonstrate to conviction that he has done so

will usually be beyond possibility in a case where anything to his
client’s detriment has occurred. Not only must his duty be dis-
charged, but it must manifactly be seen to be discharged.
(d) I abstain from any categorical negative: the circumstances of life
are of such infinite variety. But I can at least say that in all ordi-
nary circumstances a solicitor ought to refuse to act for a person
in a transaction to which the solicitor is himself a party with an
adverse interest; and even if he is pressed to act after his refusal,
he should persist in that refusal. Nobody can insist on an unwill-
ing solicitor acting for him, at all events where there is a conflict
of interests.”
Lewis, Legal Ethics, p 64 para 63.7 comments on the last four passages of the
quotation from Spector as follows:
“Passage (a): This passage recites judicial opinion of the general unde-
sirability of acting for both sides and clearly arises from the dicta in
such cases as Moody (Moody v Cox & Hatt [1917] 2 Ch 71 (CA) 91) and
Goody (Goody v Baring [1956] 1 WLR 448; 2 All ER 11) and Smith
(Smith v Mansi [1962] 3 All ER 853 (CA)). Despite this passage and
these dicta neither practice nor propriety in South Africa impose any
absolute embargo on so acting. In this respect the permissiveness of
the English Guide of 1974 is supportive, but there is no rule prohibitive
of the dual role in transfers and leases. The safeguards elaborated in
paragraph 64.2 must of course be observed and on any basis no practi-
tioner could act for both in the circumstances of Moody or Spector.
Passage (b): The writer would respectfully agree with what is said in
this passage regarding the duty to stand indifferent and the safeguards
which he proposes in instances of single representation are designed
to meet the needs of impartiality.
Passages (c) and (d): One must wholeheartedly agree with what is said
in passage (c) of the situation where the practitioner is himself one of
the parties. However, in (d) the learned judge declined to lay down a
‘categorical’ negative’ upon the solicitor’s acting in such circumstances
for the reason that the ‘circumstances of life are of such infinite vari-
ety’; with this view the writer would venture disagreement. That life
holds this infinite variety cannot be gainsaid, yet the writer can con-
ceive of no circumstances ordinary or extraordinary in which an attor-
ney may with propriety advise his opposite in a transaction to which he
is himself a party with an interest adverse to that opposite, unless in-
deed the interest is too trivial as not to be considered an adverse in-
terest in any real sense.”
Gifford1 submits that a practitioner is precluded from acting for either party if
the practitioner would probably find that he or she is under a duty to make
use of confidential information for the benefit of one client which has been
________________________
1 KH Gifford, Legal Profession Law and Practice in Victoria (Law Book Ltd, Sydney, 1980), p 355.
61
acquired in the course of acting for the other. There is also a conflict of inter-
est if the practitioner should warn one party to make inquiries which would
be inimical to the interest of the other.
In Goody v Baring [1956] 2 All ER 11 at 12 Danckwerts J stated that it was
improper for a solicitor to act for two or more parties in a conveyancing
transaction. He said: “It seems to me practically impossible for a solicitor to
do his duty to each client properly when he tries to act for both a vendor and
a purchaser”. In Gavaghan v Edwards [1961] 2 QB 220 at 225 the same judge
remarked:
“In many cases it may work perfectly all right, but if anything whatso-
ever goes wrong with regard to the sale, a solicitor who is acting for
both parties is almost certainly placed in a position where the interests
conflict and a difficult situation is likely to arise.”
Danckwerts J’s words of warning were echoed by the New South Wales Court
of Appeal 30 years later, in the case of Callachor v Black [2000] NSWCA 347
at [61]–[63]. Handley JA cautioned against acting for both parties in a non-
litigious transaction. While conceding that in many cases it may be possible
to act for the vendor and purchaser of land without a breach of duty to either
party, he said it was practically impossible to do so for the sale of a business.
It has also been judicially stated that “The man who undertakes to serve
two masters may easily find himself in a position where he must be false to
one and possibly to both” (Jennings v Zilahi-Kiss (1972) 2 SASR 493 at 511–
512) and that “it may be that a solicitor who tries to act for both parties puts
himself in such a position that he must be liable to one or the other, what-
ever he does” (Moody v Cox [1917] 2 Ch 71 at 91).
The case of Law Society of the Cape of Good Hope v Tobias 1991 (1) SA 430
(C) illustrates the problem which can arise. Two clients of the respondent’s
firm, namely W and D, had concluded a deed of sale with each other and that
deed provided that the purchase price was payable by the purchaser, D, upon
registration of transfer to be registered by the respondent’s firm. W received
no money from D, merely a string of unfulfilled promises and no satisfaction
from Tobias whenever he made enquiries of him. What D also did, apart from
“stalling” W, was to pass a mortgage bond over the property he had bought
from W to cover an amount which he used for other purposes. This bond was
passed on D’s behalf by the respondent’s firm and the Court found that there
was little doubt that Tobias and his partner were fully aware of the transac-
tion between their two clients, D and W. The Court found further that the re-
spondent, in failing to safeguard W’s interests by ensuring that D pay the
purchase price against registration of transfer and in not advising W to seek
the advice of an independent attorney, had allowed a conflict of interests be-
tween two clients to arise, which was grossly improper.
62
Rules of professional conduct and practice

[10.20] Notwithstanding the general reservations of the courts about a law firm
representing both sides in a non-litigious transaction, the approach of the
Law Societies in South Africa has consistently been that acting for both sides
in a non-litigious transaction is not automatically prohibited. However, acting
for both parties is strictly regulated by the professional conduct and practice
rules of the Law Societies. The rules in the different jurisdictions allow a prac-
titioner to act for conflicting interests in non-litigious matters where both cli-
ents are fully informed of the nature and implications of the conflict and
voluntarily assent to the practitioner acting in the matter.
While the rules of the Law Societies do, in some cases, allow you to act for
both parties in a non-litigious transaction, do not be under the mis-
apprehension that it is proper for you to do so merely because they consent
or even insist that you act for both of them. A client can never be the arbiter
of what professional propriety requires. The decision is yours alone. Knowing
the problems involved, the safest course is to decline to act for both parties.
The problem is acute in country areas where refusal to act for both parties
may mean that one of the parties will be greatly inconvenienced by having to
go to another town to find another practitioner. However much you may de-
sire to avoid this inconvenience to someone who may be a well-established
client, you should bear in mind that the risks associated with finding yourself
in a conflict of interest situation are just too great.
Even if originally it were proper for you to act for both parties to a transac-
tion, once a dispute arises between the parties you must cease acting for one
of them. In many cases, you will need to cease acting for both of them.
Prior clients
[10.25] You should not act contrary to the interests of a prior client. For example, if
you acted for X and then you are retained by X’s previous opponent Y, you
may find yourself in a conflict of interest situation. You have a duty not to
disclose confidential information you obtained while acting for X, but you
also have a duty to do your best for your new client Y, which includes reliance
on any relevant information in your possession, irrespective of its source. In
such a situation, if you rely on the information obtained from X, you may be
liable to X for breaching client confidence; if you do not rely on the informa-
tion, you may be liable to Y in negligence for failing to use your utmost skill,
experience and knowledge: Mills v Day Dawn Block Gold Mining Co Ltd (1882)
1 QLJR 62. An injunction can be obtained by X to restrain you from breaching
confidence. Lewis, Legal Ethics, p 53 para 54 states:
“If a practitioner wishes to act against a former client or a client in cir-
cumstances where this is otherwise permissible, whether the matter is
contentious or not he must beware of the possibility that some
63
information obtained under the seal of professional confidence may be

or become germane to the matter in hand. His duty to the client or
former client absolutely precludes his disclosure or use in any degree
of that information without the latter’s consent. His duty to the one
for whom he proposes to act (the instructor) is to do his best on the in-
structor’s behalf and might command that disclosure or that use were
it not for the prohibition. In this dilemma he may not act.”
This important question is authoritatively dealt with by the Full Bench of the
Appellate Division in Robinson’s case (Robinson v Van Hulsteyn, Feltham &
Ford 1925 AD 12) in which the attorneys were completely exonerated. In giv-
ing the judgment Wessels JA (as he then was) remarked that prima facie the
attorneys “were in duty bound” to act as they did. The judgment in this case
is of great importance because of the following quotation:
“In order to advise a client as to his legal position the solicitor must
know all the circumstances of his client’s case, and therefore a client is
often compelled to reveal to his solicitor the most intimate circum-
stances of his life. The solicitor may thus become the repository of the
most vital secrets of his client. These confidences reposed in him he
may not divulge, and if he does the Court will punish him for his breach
of duty towards his client. If a solicitor who in the course of advising a
client has become possessed of his client’s secrets is engaged by an-
other person to act against his former client, his knowledge of the lat-
ter’s secrets may be of great advantage to his client’s opponent.
Although the solicitor may conscientiously endeavour to do his duty to
his new client, yet he may find himself in an invidious position and his
knowledge of the secrets of his former client may unconsciously affect
him in doing his duty towards the other. In order to avoid such a di-
lemma the court will restrain a solicitor in whom confidences have
been reposed by a client from acting against such client where it is
made clear to the Court in the words of Cozens-Hardy MR ‘that real
mischief and real prejudice will in all human probability result if the so-
licitor is allowed to act’.”
Applicable test
If there is a “real and sensible possibility” of the misuse of confidential infor-
mation of a former client by a practitioner in acting for a new client, the court
has jurisdiction to disqualify the legal practitioner from acting any further for
the new client: Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4
WAR 357; Farrow Mortgage Services Pty Ltd (In Liq) v Mendall Properties Pty
Ltd [1995] 1 VR 1. The case law has also used the test of a “real” risk of inap-
propriate disclosure, as opposed to one which is merely “fanciful or theoreti-
cal” (Prince Jefri Bolkiah v KPMG [1999] 1 All ER 517; Pradhan v Eastside Day
Surgery Pty Ltd [1999] SASC 256 at [52]; World Medical Manufacturing Cor-
poration v Phillips Ormonde & Fitzpatrick Lawyers [2000] VSC 196). Some re-
cent cases take the view that any difference between the two tests is slight
(Newman v Phillips Fox (1999) 21 WAR 309 at 323), while others have stated
64
that the latter test is stricter and should be followed: World Medical Manu-
facturing Corporation v Phillips Ormonde & Fitzpatrick Lawyers [2000] VSC
196 at [115] and [120]. Both tests can be satisfied by inadvertent, as distinct
from deliberate, disclosure.
In Mallesons Stephen Jaques v KPMG Peat Marwick (1991) 4 WAR 357 the
Court granted an injunction restraining a law firm from representing the
Commissioner for Corporate Affairs, who had retained the firm to assist in
the prosecution of a person who had previously obtained advice from the
firm. Although no confidential information about the previous client was
conveyed to those lawyers engaged by the current client, and the lawyers
working for the Commissioner were located in a separate building, it was
held that there was “a real and sensible possibility” that the firm had placed
itself in the position of conflict of interest.
Similarly in the United Kingdom (David Lee & Co (Lincoln) Ltd v Coward
Chance [1991] Ch 259; Re A Firm of Solicitors [1992] 1 All ER 353; Prince Jefri
Bolkiah v KPMG [1999] 1 All ER 517) and Canada (MacDonald Estate v Martin
(1991) 77 DLR (4th) 249) the Courts have restrained practitioners from acting
against previous clients.
Presumption that knowledge is shared

In the case of a firm, there is a rebuttable presumption that the knowledge of
one partner is the knowledge of all partners, so that one partner cannot act
for Y if another partner previously acted for X and thereby obtained con-
fidential information which is relevant to Y’s matter. The courts will generally
infer that practitioners working together will share confidential information:
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 17 WAR 98 at
107–108. They are, however, prepared to receive evidence and submissions
as to why the inference should not be drawn in a particular case.
Law Society rules

The Law Society of the Northern Provinces has adopted the following rules:
“Mandates by persons with different interest
The duty of the attorney
An attorney who has received a mandate by a client is under an abso-
lute duty not to disclose any information of a confidential nature which
has come to his or her knowledge by virtue of the mandate, and to ex-
ercise the utmost good faith towards his or her client, not only as long
as the mandate lasts but even after the termination of the mandate.
Where the interests of clients are in conflict the attorney can only
act for the parties with conflicting interests at his peril, and the onus of
showing that the conflicting interests did not prevent him from doing
his or her duty to both clients, rests firmly on the attorney.
Where an attorney is instructed by different parties and a conflict of
interest either arises or seems likely to arise, he or she should at once
65
terminate his or her mandate for one party if not for both. As soon as
litigation is probable the attorney must see that at least one of his or
her clients is separately represented. If he or she would be embar-
rassed in representing even one in litigation by reason of the knowl-
edge which he or she had acquired of the other one’s case, he or she
should see that both clients are separately represented.
If a former client of an attorney allows him to act for his or her op-
ponent without making any complaint that in itself does not entitle the
attorney to assume that no prejudice will ensue. The client may be an
ignorant man or he or she may not appreciate the danger and there-
fore even though the client may have no objection to his or her acting,
the onus will still rest on the attorney to show that conflicting interests
did not prevent him or her from doing his or her duty to both clients.
Where proceedings have terminated and the same attorney is
thereafter instructed by the adversary in another matter, the former
client is not entitled to object to the attorney accepting the brief solely
on the basis that the attorney gave him or her legal advice and did
formal legal work for him or her. Specific instances must be given of
confidential information having been utilised for the benefit of the
new client. It is incumbent upon a complainant to show that as a mat-
ter of substance real mischief has been done.
Once an attorney has acted for a party in any matter, he should
never act for the adversary in the same matter or lend the latter any
aid, counsel or assistance, even if his or her relationship with his or her
former client has been terminated.”
Chinese walls
[10.30] The conflict of interest rules create a problem for many modern law firms
with multiple clients, or former clients, because the rules, in effect, prevent
them from acting in many transactions. This is particularly relevant in the
21st century because many large law firms are continually recruiting more
practitioners, resulting in the pool of legal talent being concentrated in a
small number of large firms.
The general rule is that a court will intervene and grant an injunction pre-
venting a firm from acting unless satisfied on the basis of clear and convinc-
ing evidence that all effective measures have been taken to ensure that no
disclosure of confidential information will occur: Prince Jefri Bolkiah v KPMG
[1999] 1 All ER 517 at 529.
In an attempt to resolve these difficulties, firms have relied on so-called
“Chinese walls”. A Chinese wall describes the arrangement that is established
by a firm in order to prevent confidential information which is available to
one partner or employee becoming available to another partner or emplo-
yee: Prince Jefri Bolkiah v KPMG [1999] 1 All ER 517 at 529; Mallesons
Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357 at 371–372. That is,
66
Chinese walls allow the “quarantining” of legal practitioners who had dealt
with client X from those practitioners now dealing with client Y. This seeks to
attract the principle that because no confidential information from X will be
used in acting for Y, it is unlikely that either X or Y will be prejudiced if the
firm acts for Y and therefore it would not be improper for the firm to accept a
retainer from Y: Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831. Both X
and Y would need to give their informed consent to the arrangement in order
for it to be acceptable.
Judicial attitudes to Chinese walls

[10.35] Although there is no South African authority as yet, the courts in other juris-
dictions, notably in England, Canada, Australia and New Zealand have gener-
ally applied a very restrictive approach to the effectiveness of Chinese walls.
The case law suggests that Chinese walls have a greater prospect of being
held to be effective where they are part of the organisational structure of a
firm, rather than created on an ad hoc basis for the purpose of a proposed
retainer: for example, Prince Jefri Bolkiah v KPMG [1999] 1 All ER 517; Austra-
lian Liquor Marketers Pty Ltd v Tasman Liquor Traders Pty Ltd [2002] VSC 324.
In Prince Jefri Bolkiah v KPMG [1999] 1 All ER 517 the House of Lords con-
sidered the appropriateness of Chinese walls in a situation where KPMG had
acted for Prince Jefri in some private litigation for a period of 18 months.
Some 168 people had worked on the litigation for Prince Jefri and his associ-
ated companies which involved significant confidential information about his
financial affairs. Two months after its work with Prince Jefri, KPMG was re-
tained by the Government of Brunei to investigate the collapse of an invest-
ment agency in which Prince Jefri had been the chairman. KPMG considered
that they could act as the Prince was no longer their client and they had set
up an information barrier or “Chinese wall”, to prevent those who had previ-
ously worked on Prince Jefri’s litigation from communicating with those act-
ing for the Government of Brunei. The House of Lords held that while there is
no rule of law that Chinese walls or other arrangements of a similar kind are
insufficient to eliminate the risk of misuse of confidential information, the
starting point is that, unless special measures are taken, information moves
within a firm. In the present case, the House of Lords held that there was a
risk of disclosure of confidential information notwithstanding the purported
separation of the firm for the purposes of this work. In fact, it was held that
an effective Chinese wall needs to be an established part of the organisa-
tional structure of the firm, not created ad hoc (at 530).
As Prince Jefri’s case demonstrates, it will be difficult to establish that a
Chinese wall will be sufficient protection against the leakage of confidential
information: Pradhan v Eastside Day Surgery Pty Ltd [1999] SASC 256 at [52].
In fact, rather than a Chinese wall, in one Victorian case, such procedures
were described as more of a “Dutch dyke” which may be a good barrier to
67
water, but there will be an ever-present risk of seepage leading to a leak:

Yunghanns v Elfic Ltd (unreported, Vic Sup Ct, Gillard J, 3 July 1998) at 28.
In view of the fact that the use of Chinese walls has been questioned by re-
cent decisions in Australia, the United Kingdom and Canada, it now seems
that in many cases Chinese walls will not be accepted by the courts as legiti-
mate means of overcoming conflict of interest problems, especially in crimi-
nal cases.
While it is difficult to persuade the courts that ad hoc Chinese wall ar-
rangements should be accepted, there are some examples of cases where a
Chinese wall has been effectively erected after the problem has arisen: Young
v Robson Rhodes [1999] 3 All ER 524; Photocure ASA v Queen’s University at
Kingston (2002) 56 IPR 86. It is potentially easier to successfully establish Chi-
nese walls in civil cases where information about a former client is unrelated
to the new matter: Fruehauf Finance Co Pty Ltd v Feez Ruthning [1991] 1 Qd
R 558; Australian Liquor Marketers Pty Ltd v Tasman Liquor Traders Pty Ltd
[2002] VSC 324.
Undertakings for Chinese wall proceedings

[10.40] If you are considering establishing Chinese walls for a legal proceeding, the
legal practitioners for the new client should give a number of undertakings to
ensure that there is no conflict with legal proceedings undertaken for an-
other client.2 Such undertakings include:
l that the legal practitioner has no knowledge of any confidential informa-
tion relevant to the subject matter of the other proceeding;
l that the legal practitioner will not request or require any member of the
firm to disclose any information regarding the other proceeding;
l that the legal practitioner will not discuss any aspect of the other pro-
ceeding with any member of the staff who has knowledge of the other
proceeding, nor permit any such discussion to take place in his or her
presence; and
l that, if some information from the other proceeding does come to his or
her attention, he or she will immediately inform the legal practitioner
acting for the other party.
Prior clients in family law matters

[10.45] A stricter approach is adopted in family law matters. The courts tend to be
reluctant to permit a firm of legal practitioners to act for one party if that
firm had previous dealings with the other party and there is a risk of preju-
dice: Retha Meiring Attorney v Walley 2008 (2) SA 513 (D).
________________________
2 These suggestions were considered in Australian Liquor Marketers Pty Ltd v Tasman Liquor Traders Pty Ltd [2002]
VSC 324 at [27].
68
Duty of loyalty
[10.50] There appears to be no uniformity whether the only basis upon which a
practitioner may be precluded from acting against a former client is protec-
tion of confidential information, or whether there is a separate basis, namely
a continuing duty of loyalty to the former client.
In Prince Jefri Bolkiah v KPMG [1999] 1 All ER 517 the House of Lords held
that misuse of confidential information was the sole basis. Their Lordships
said that whereas conflict of interest, irrespective of misuse of confidential
information, is the basis for preventing a practitioner from acting for two cur-
rent clients with adverse interests, conflict of interest is not relevant as be-
tween current and former clients because the fiduciary relationship ceases
once a retainer comes to an end.
In Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 Brooking JA
said at 521–522 that there were three independent bases for preventing a
practitioner acting against a former client. The first was to prevent misuse of
confidential information. The second was the equitable obligation of loyalty
which prohibits a practitioner acting against a former client in the same mat-
ter in which the practitioner acted for the client or a closely related matter.
His Honour said that this duty was a negative duty which continued after the
termination of the practitioner’s retainer, irrespective of whether it was ter-
minated by the practitioner or the former client. The third basis was the Su-
preme Court’s inherent power to regulate the conduct of practitioners as
officers of the court. Ormiston and Chernov JJA based their decisions on the
first basis, without expressing a final view on the existence of the second ba-
sis.
The duty of loyalty has been applied in Australia in Victorian (McVeigh v
Linen House Pty Ltd [1999] 3 VR 394 at 398; Australian Liquor Marketers Pty
Ltd v Tasman Liquor Traders Pty Ltd [2002] VSC 324 at [14]; Sent v John Fair-
fax Publication Pty Ltd [2002] VSC 429 at [104]; Village Roadshow Ltd v Blake
Dawson Waldron [2003] VSC 505) and federal (Wan v McDonald (1991) 33
FCR 491 at 512–513) cases. The basis for the duty appears to be public policy:
to prevent the community’s trust and confidence in the legal profession be-
ing undermined by the appearance of lawyers being able to readily change
sides.
Some courts in other Australian jurisdictions have declined to follow Spin-
code and have based their decisions on the Prince Jefri Bolkiah approach of
treating misuse of confidential information as the sole basis for preventing a
practitioner from acting against a former client: Belan v Casey [2002] NSWSC
58 at [21]; Photocure ASA v Queen’s University at Kingston (2002) 56 IPR 86
at [55]; Flanagan v Pioneer Permanent Building Society Ltd [2002] QSC 346 at
[11]; British American Tobacco Services Ltd v Blanch [2004] NSWSC 70 at
[108].
69
Insofar as the South African position is concerned, Liebenberg J decided in

the Durban and Coast Local Division in the case of Retha Meiring Attorney v
Walley 2008 (2) SA 513 (D) that based on the principles of Sasfin (Pty) Ltd v
Beukes 1989 (1) SA 1 (A) an agreement, in terms whereof an attorney who
acted for A against B and thereafter agreed to act for B against A in circum-
stances where a conflict of interest arose, was void ab initio as it was against
public policy.
Accordingly, it is not clear whether a separate duty of loyalty exists which
prevents a practitioner from acting for a client in circumstances where he or
she has acted against that client in the same matter or a closely related mat-
ter and where there is no real possibility of misuse of confidential informa-
tion. There also remains difficulty with the meaning of the expressions “same
matter” and “closely related matter” (Sent v John Fairfax Publication Pty Ltd
[2002] VSC 429).
Notwithstanding these doubts, you should be aware you may owe a duty
of loyalty to a former client where you are asked to act against him or her in
the same matter or in a closely related matter, regardless of whether you are
in possession of confidential information. Approach such situations with
great caution and, if in doubt, it may be better to refuse to act against the
former client.
Personal interest
[10.55] You should not act for a person in a transaction to which you are yourself a
party with an adverse interest: Spector v Ageda [1973] 1 Ch 30 at 47. Lewis,
Legal Ethics, p 66 para 64.2 offers the following advice:
“An attorney must not act for any person in a non-contentious matter
if he himself, his firm, or any of its partners or any of his other associ-
ates is a party to the transaction with an interest adverse to that per-
son or otherwise has directly or indirectly such an adverse interest; nor
must he so act for any such person if in the fulfilment of his duty to the
latter he will be in breach of duty to another unless that other has re-
lieved him of the duty.”
It is certainly improper for you to take advantage of your client’s inexpe-
rience, age or any infirmity. You cannot advise an ignorant client to act to his
or her detriment and your own benefit or conceal from the client that you
are personally interested: Southern Law Society v Westbrook (1910) 10
CLR 609.
It is also improper for you to receive a secret profit in the course of acting
for your client. The Ethics Committee of the Association of Law Societies
(1976 DRP 28) has issued a very firm ruling on this point to the effect that
“An attorney may not make a secret profit but must disclose to his cli-
ent fully the receipt of any such profit (e.g. commission on sale of land,
raising fee on loan, commission on insurance premium, introducting
70
commission from a building society), and may only retain it provided

the client agrees expressly or impliedly that he may do so.”
Strangely, this ruling is qualified by the following further ruling:
“The de minimis rule applies in such matters and the application of this
rule to the general principle is left to the individual attorney con-
cerned.”
The rule that an agent is liable to account for profits is based not on the pre-
vention of the principal from earning profits, but on the duty of good faith
which requires every benefit, directly or indirectly connected with the
agency, save for the remuneration agreed upon, to be handed over to the
principal. Hence, any profit which the agent acquires by virtue of his or her
position as agent, without the knowledge and consent of his or her principal,
he or she acquires for the principal, whether or not the earning of it actually
prejudiced the principal: De Villiers & Macintosh, The Law of Agency in South
Africa (2nd ed) p 149.
As was said by Innes CJ in Robinson v Randfontein Est GM Co. Ltd 1921 AD
168 at 177:
“Where one man stands to another in a position of confidence involv-
ing a duty to protect the interests of that other, he is not allowed to
make a secret profit at the other’s expense or place himself in a posi-
tion where his interests conflict with his duty. The principle underlies
an extensive field of legal relationships. A guardian to his ward, a solici-
tor to his client, an agent to his principal, afford examples of persons
occupying such a position . . . If employed to buy, he cannot sell his
own property; if employed to sell, he cannot buy his own property; nor
can he make any profit from his agency save the agreed remuneration;
all such profit belongs not to him, but to his principal. There is only one
way by which such transaction can be validated and that is by the free
consent of the principal following upon a full disclosure by the agent.
In such a case the special relationship quoad that transaction falls
away and the parties deal at arm’s length with one another.”
In order to completely preclude a conflict between a client’s interest and
your own interest, you should not mix a business relationship with your pro-
fessional responsibilities to your client. For example, you should not borrow
from a client, or arrange a loan from a client to a person or company with
which you are associated, unless the client is in the business of lending. The
reason is obvious. There is a conflict between your client’s interest in secur-
ing favourable terms as lender and the interest of yourself or the associated
person or company in securing favourable terms as borrower: Law Society of
New South Wales v Harvey [1976] 2 NSWLR 154. In such a situation the con-
flict of interest is so great that it is preferable that you should not act for the
client.
If you do act for the client, at the very least you should act in good faith,
make full disclosure of all relevant circumstances and strongly advise your
client to obtain independent legal advice. In O’Reilly v Law Society of New
71
South Wales (1988) 24 NSWLR 204 at 209 Kirby P observed that a solicitor
who intermingled his or her affairs with those of a client should disclose the
interest fully and candidly to the client, preferably in writing, advise and fa-
cilitate the provision of independent advice where that is appropriate and do
so in more than a perfunctory way. The position is succinctly expressed by
Street CJ in Law Society of New South Wales v Harvey [1976] 2 NSWLR 154 at
171–172:
“The price of being a member of an honourable profession, whose
duty to his client ought not to be prejudiced in any degree, is that a so-
licitor is denied the freedom to take the benefit of any opportunity to
deal with persons whom he has accepted as clients . . . A solicitor
ought not to intermingle his personal affairs, in a sense including the
affairs of companies, ventures or others with whose financial position
he has a personal connection, with the affairs of his client.”
The conservative way in which the courts have approached the issue of act-
ing where a practitioner has a personal interest has not been confined to
Australian and English case law. In New Zealand the Court of Appeal held in
Farrington v Rowe McBride and Partners [1985] 1 NZLR 83 that a firm of so-
licitors was in breach of its fiduciary obligations to its client. This was because
after receiving a substantial amount of money in settlement of a personal in-
jury claim, the plaintiff, who was inexperienced in matters of investment,
asked the solicitors for advice on how to invest the money. The solicitors ad-
vised the money should be invested in a development group without disclos-
ing to the plaintiff that the group was the largest client of the firm and that
some members of the firm and their families were involved in the group.
Gifts
[10.60] You should always think carefully before accepting a substantial gift from a
client because this could lead to unwelcome litigation. The court, in dealing
with such a gift, starts with the presumption that undue influence exists on
your part and throws upon you the burden of satisfying the court that the gift
was uninfluenced by your position: Wright v Carter [1903] 1 Ch 27 at 57.
Lewis warns that “the attorney who accepts a substantial gift, even under
the safeguard of independent advice, may well find that the client will there-
after expect his complaisance in allowing, or assistance in doing, what ought
not be done” (Lewis, Legal Ethics, p 265 para 6).
Where you may be a witness

[10.65] Rules of Bar Associations often preclude an advocate from taking instructions
in a case in which the advocate is likely to be a witness. Such an absolute
prohibition usually does not apply to an attorney who does not act as an ad-
vocate, although it may be inappropriate for an attorney to act in certain
situations. One example is where it is anticipated that allegations of personal
72
dishonesty or misconduct will be made against the attorney when giving evi-
dence.
Lewis, Legal Ethics, p 156 para 67 and 68 offers the following advice:
“When an attorney is himself appearing to present a litigant’s case be-
fore a court or other tribunal, it is most undesirable for him to be a
viva voce witness in the matter (there is no objection to his affidavits
going on record) and if it becomes necessary for him to enter the wit-
ness-box then he should withdraw as appearer and arrange for a sub-
stitute. If therefore in the course of preparation for the hearing at
which he will so appear it becomes apparent that the attorney’s viva
voce evidence will be necessary, then he should act in anticipation to
avoid the change in midstream; . . .
In Supreme Court actions the entry of an attorney in the case into
the witness-box is by no means uncommon, either because the evi-
dence which he has to give, though expected ab initio, was of a formal
nature only (i.e. not a grave part of the main contention rendering
withdrawal essential), or because events from the initiation of pro-
ceedings up to trial were not so patterned as to avoid the need for his
evidence. In such circumstances it may become the duty of the attor-
ney to give evidence; and if counsel finds it necessary to call him he
certainly must not seek to avoid testifying; even to hint to the client
that he would rather not give evidence, would be reprehensible.”
Where you may be sued

[10.70] Where in the course of acting for a client in relation to a matter you become
aware that your client may have a cause of action against you in respect of
your handling of that matter, you should advise your client to obtain separate
legal advice about your conduct and whether you should continue to act in
the matter. While, for this purpose, it will be necessary for you to state in
general terms the aspects of your advice or conduct which should be investi-
gated, you must be careful not to make any admissions which may prejudice
your professional indemnity insurance (1974 DR 229).
Associated bodies
[10.75] You should not act for a client who has a dispute against an organisation with
which you are substantially associated, such as a local council of which you
are a councillor or a company of which you are a director. On the other hand,
it is not necessarily improper for you to act for a potential competitor of a
company of which you were once a director.
Be quick to detect a conflict of interest

[10.80] You should always ask yourself at the time of obtaining initial instructions
whether a conflict of interest could possibly arise. Make sure you have in
73
place a system where, before each new matter is opened, a conflict check is
initiated to ascertain whether another partner or employee has acted for the
other party.
A conflict of interest could arise in a situation where you least expect it. For
example, assume a motor accident occurs which is caused by the negligence
of X and which injures a husband and wife (A and B) who were in another ve-
hicle driven by the husband (A). If A and B instruct you to institute pro-
ceedings against X, then you must verify that the accident was caused solely
by the negligence of X. If there is a possibility that A’s conduct either caused
or contributed to the accident, then you should not act for both A and B in
case B may need to sue A if it is found that the accident was caused wholly or
partially by the negligence of A.
Similarly, where a creditor sues a primary debtor and a guarantor, it may
not be appropriate for you to act for both the primary debtor and the guar-
antor because the guarantor would have a right of indemnity against the
primary debtor for such amounts as the guarantor is found liable and pays to
the creditor.
Acting for insurer and insured

[10.85] When acting for an insurance company seeking recovery of amounts paid
under a policy pursuant to its right of subrogation, there are often two dis-
tinct interests involved. This will arise, for example, where a person’s goods
are damaged by a carrier’s negligence, but not all the goods are insured. You
should not issue proceedings in respect of only one of those interests without
ascertaining from the other whether or not there is any objection to that
course. You should point out that the proceedings you propose issuing may
debar the other interest from recovering at a later date.
When you are instructed by an insurance company to defend an action on
behalf of an insured, you should be wary of the possibility of a conflict of in-
terest between the insurer and the insured. You should not, for example,
make a damaging admission on the instructions of the insurer without first
consulting the insured, otherwise you could be held liable to the insured:
Groom v Crocker [1939] 1 KB 194 at 203. You should bear in mind that both
the insured and the insurer are your clients.
Non-clients
[10.90] Apart from the wisdom of acting for one party only, it is also necessary at the
outset to define clearly to all concerned, when dealing with more than one
party, who your client is and for whom you are not acting. This is necessary
to avoid “non-clients” incorrectly assuming you are protecting their interests.
The non-clients acting on their own account should also be advised that in
74
order to protect their interests, it is necessary for them to consult a prac-

titioner of their own. If you fail to adopt these precautions, you may find
yourself liable to the non-clients. Avoid being manipulated into a situation in
which you believe you are not acting for the non-clients but the non-clients
believe you are protecting their interests. This risk can be eliminated by a
simple letter clarifying the situation.
Conflict of interest: conclusion

[10.95] Your duty to avoid a conflict of interest is a natural consequence of your
primary duty to act in your client’s best interests. The courts will not hesitate
to restrain a practitioner from acting contrary to a client’s interests and gen-
erally dislike measures such as Chinese walls, which seek to overcome some
of the harsher consequences of a strict application of conflict of interest prin-
ciples.
You are expected to be loyal to your clients and may be subject to a sep-
arate duty of loyalty in some situations.
75
Chapter 11
Costs
“In New Jersey the black-necked stilt is sometimes called ‘lawyer’ on ac-
count of its ‘long bill’.”
E Kahn, “The Seven Lamps of Legal Humour” (1984) De Rebus 251
Managing clients’ cost expectations

[11.05] Disputes between practitioners and clients over legal fees are common and
generally represent a large proportion of complaints received by Law Socie-
ties. The reason for this is not so much that many practitioners overcharge
their clients, but that they fail to give adequate explanations to their clients
at the outset regarding the legal fees that will be incurred in handling a mat-
ter.
The best way to avoid misunderstandings and arguments with your client
when the time comes to render a bill is to explain very carefully to your cli-
ent, upon acceptance of instructions, matters such as how much you think
the legal fees will be, the disbursements (such as counsel’s fees) that will be
incurred and whether there is any prospect of someone other than the client
paying the legal costs.
Party and party, attorney and client and attorney

and own client costs
[11.10] Most clients who consult you in relation to a litigious matter will be vaguely
familiar with the general rule that a successful party is entitled to costs. This
is the rule that costs follow the event. However, not many clients appreciate
that very rarely does an order for costs against an unsuccessful party cover all
the costs that will be charged by the practitioner acting for the successful
party and that the successful party normally has to pay part of those costs
out of his or her own pocket. In other words, few clients appreciate the dis-
tinction between the different bases upon which payment of a successful
party’s costs can be ordered.
77
Party and party costs

Party and party costs are those costs that have been incurred by a party to
legal proceedings and that the other party is ordered to pay to him or her.
They do not include all the costs that a party to a suit might have incurred,
but only those costs, charges and expenses that appear to the Taxing Master
to have been necessary and proper for the attainment of justice or for en-
forcing or defending the rights of any party.
Attorney and client costs
Attorney and client costs, on the other hand, are those which an attorney is
entitled to recover from his or her client for the disbursements made by him
or her on behalf of his or her client and the professional services rendered by
him or her: Loots v Loots 1974 (1) SA 431 (E). These costs are payable by the
client whatever the outcome of the matter in which he or she engaged the
attorney’s services, and are not dependent upon any award of costs by the
court. In the wide sense, it includes all the costs that the attorney is entitled
to recover against his or her client on taxation of his or her bill of costs but in
the narrow and more technical sense, the term is applied to those costs,
charges and expenses as between attorney and client that ordinarily the cli-
ent cannot recover from the other party: Hawkins v Gelb 1959 (1) SA 703 (W)
705G–H. It follows that such latter costs often include items not recoverable
in a party and party bill and the costs recoverable for certain items may well
be considerably higher than those recoverable on similar items in a party and
party bill.
Attorney and own client costs
Attorney and own client costs are defined as the remuneration that an attor-
ney is entitled to, in terms of an agreement or mandate with the client. The
attorney is remunerated according to a predetermined fee, for example, an
hourly rate outside the prescribed tariff: Muller v The Master 1992 (4) SA 277
(T) 283.
Usual order: party and party basis

Unfortunately when the court orders the unsuccessful party to pay the suc-
cessful party’s costs, it often does so on the party and party basis and not on
the attorney and client basis.
“Before the amount of an attorney and client bill can be recovered
against the opposite party it must be taxed against the latter . . . And
on this amount, taxation charges in the nature of luxuries incurred
with the approval of the client . . . would not be allowed against the
losing party. Where the attorney and client costs are to be paid by the
opposite party, the taxation should be stricter than in a taxation as be-
tween attorney and client where the costs are to be paid by the client
to his attorney . . .” (Nel v Waterberg Landbouwers Ko-operatiewe
Vereniging 1946 AD 597 608; Cambridge Plan AG v Cambridge Diet
(Pty) Ltd 1990 (2) SA 574 (T)).
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Chapter 11: Costs
The difference must be borne by the successful party.

Unless your client is forewarned of this possibility, he or she may become
very confused and angry because he or she will not be able to understand
why, if he or she is awarded the costs of a proceeding, he or she should be
required to pay anything at all. Having personally heard the judge order that
the defendant pay his or her costs, your client will no doubt conclude that
you are cheating him or her!
Example
The best way to illustrate the distinction between party and party and attor-
ney and client costs is through an example. Suppose that you accept instruc-
tions from a client named Jo Bloggs to sue a newspaper proprietor in
defamation. Bloggs appeared normal enough at the beginning but you soon
suspect that Bloggs is far from normal. Your suspicions are confirmed when
for the whole month prior to the trial Bloggs telephones you at home at mid-
night, 2 am, 4 am and 6 am each day!
The trial is successful and Bloggs is awarded R40 000 damages plus costs.
You inform the defendant’s practitioner that Bloggs’ costs amount to
R18 600, of which R3 600 relates to the 120 nocturnal attendances for the
previous month. The defendant’s practitioner refuses to pay a cent over
R15 000 on the ground that the nocturnal attendances were neither neces-
sary nor proper for enforcing Bloggs’ action. If the amount of R15 000 is ac-
cepted, it will not cover all your professional costs of R18 600. You will have
to deduct R3 600 from the damages awarded to Bloggs so that Bloggs will ul-
timately receive a cheque for R36 400 from you.
It is clear that R15 000 represents party and party costs, R18 600 repre-
sents attorney and client costs and R3 600 represents the difference between
them. As between Bloggs and the defendant, it was not necessary for Bloggs
to telephone you four times per night for a whole month and accordingly it
would be unreasonable for the cost of those attendances to be borne by the
defendant. On the other hand, you provided a service to Bloggs every time
Bloggs telephoned you and, accordingly, it is fair that Bloggs should be
obliged to pay for the costs of such service personally. You are entitled to
charge Bloggs for persecuting you!
Always explain all the costs

[11.15] The notion that there is a distinction between party and party costs and
attorney and client costs causes a great deal of confusion and ill feeling in cli-
ents and it will be a constant thorn in your side for as long as you practise as
an attorney. The only way to deal with it is by adequate explanation to clients.
At the time that you receive instructions to commence proceedings on be-
half of a client, you should explain the difference between attorney and client
costs, and party and party costs, and alert your client to the prospect that,
79
even if successful, he or she may have to contribute something towards the

costs of the action. You should confirm this advice in writing and, before any
settlement is ultimately achieved, you should attempt to estimate the
amount of costs for which your client will be personally responsible. It is also
advisable to have your client sign a written acknowledgement, firstly instruct-
ing you to effect settlement for a specified amount and secondly acknow-
ledging the likely amount that will be received when the case is completed:
see [5.20].
Likewise, where you are instructed to act for a client who has just been
sued, explain that if the plaintiff is successful, your client will have to pay all
your costs and a proportion of the plaintiff’s costs. Indicate what that propor-
tion is likely to be. Explain also that if your client is successful, the plaintiff
will be ordered to pay only a proportion of your client’s costs. Once again, in-
dicate what that proportion is likely to be. As a rule of thumb, a successful
party recovers approximately two thirds of his or her costs from the unsuc-
cessful party, but this proportion will vary depending on all the circumstances
of each case.
You should always alert clients to the rule that, generally speaking, costs
incurred before proceedings are issued are not allowable as party and party
costs and therefore will have to be borne by your client.
Awarding costs on an attorney and client basis

[11.20] While the general rule is that costs against an unsuccessful party will be
awarded on a party and party basis, the court retains a discretion to depart
from this general rule and to order the payment of costs on an attorney and
client basis. Generally, this discretion will be exercised where the unsuccess-
ful party has acted inappropriately in the conduct of the matter.
Attorney and client costs have been awarded where a bad and vexatious
pleading was filed: Minister of Land Affairs & Agriculture v D & F Wevell Trust
2008 (2) SA 184 (SCA); where an application was made recklessly without any
attempt to ascertain the correctness of the facts: Moshal Gevisser (Trade-
mark) Ltd v Midlands Paraffin Co. 1977 (1) SA 645 (N) at 70D–H; where the
defendant produced a plethora of unmeritorious defences: Savage & Love-
more Mining (Pty) Ltd v International Shipping Co (Pty) Ltd 1987 (2) SA 149
(W) at 217D–H; where the respondent was not justified in opposing an ap-
peal against the judgment of the Court a quo which was clearly wrong as it
had misconstrued the issues: Madzunye v Road Accident Fund 2007 (1) SA
165 (SCA); where applicants launched an appeal based on groundless allega-
tions of impropriety against a judge and in doing so wasted scarce judicial re-
sources: MEC for Public Works Roads and Transport Free State v Esterhuizen
2007 (1) SA 201 (SCA); where the Head of the Department of Education
issued a directive to a school principal to admit pupils and provide them
with tuition in a language contrary to the school’s chosen language policy
80
Chapter 11: Costs
threatening him to place children in a “holding school” for “severely mentally

handicapped learners” in the event of the principal’s non-compliance, such
conduct being highly reprehensible and calling for public censure: Governing
Body, Mikro Primary School v Minister of Education, Western Cape & Others
2005 (3) SA 504 (C); where a public body objected to the production of
documents on spurious grounds which delaying tactics led to regrettable
consequences (delayed repairs to and maintenance of hospitals): MEC for
Roads and Public Works Eastern Cape v Intertrade Two (Pty) Ltd 2006 (5) SA 1
(SCA); where a body from which information was requested unreasonably re-
fused to furnish it in circumstances where it obviously should have done so:
Claase v Information Officer South African Airways (Pty) Ltd 2007 (5) SA 649
(SCA).
Attorney and client costs may be awarded on the grounds of an abuse of
the process of the court; vexatious, unscrupulous, dilatory or mendacious
conduct on the part of an unsuccessful litigant, absence of bona fides in con-
ducting litigation; as a mark of the court’s disapproval of some conduct that
should be frowned upon and where the conduct of the attorney acting for a
party is open to censure.
Accordingly, such an order will only be made in special cases normally
where there is a prayer for it or when notice has been given that the order
will be asked for; however, the absence of such notice is not necessarily fatal:
Sopher v Sopher 1957 (1) SA 598 (W).
Costs on an attorney and own client basis

[11.25] An award on the punitive basis of attorney and own client costs is an even
greater mark of disapproval of the conduct of a party by the court: Malcolm
Lyons & Munro v Abro 1991 (3) SA 464 (W) at 469D. Such an order is the most
unusual and warrants very special circumstances. In Delfante v Delta Electri-
cal Industries Ltd 1992 (2) SA 221 (C) Gauntlett AJ awarded attorney and own
client costs against the respondents where their conduct had been “repre-
hensible” and injustice would result if such an order were not made; see also
Waste Products Utilisation (Pty) Ltd v Wilkes (BICCARI Interested Party) 2003
(2) SA 590 (W).
Apart from the inherent discretion of the court to award attorney and cli-
ent costs, there are also special provisions in the Rules of Court and in certain
statutes that stipulate circumstances in which attorney and client costs may
be awarded: Rule 21(5) of the Uniform Rules of Court; s 50(2) of the Magis-
trates’ Courts Act 1944; s 35(1) of the Arbitration Act 1965.
Costs de bonis propriis

[11.30] An order for costs de bonis propriis is made against attorneys personally
where a court is satisfied that there has been negligence in a serious degree
81
which warrants an order of costs being made as a mark of the court‘s dis-
pleasure: South African Liquor Traders’ Association v Chairperson, Gauteng
Liquor Board 2009 (1) SA 565 (CC).
“An attorney is an officer of the court and owes the court an appropri-
ate level of professionalism and courtesy. Filing correspondence from
the Constitutional Court without first reading it constitutes negligence
of a severe degree” (per O’Regan J).
In Makuwa v Poslson 2007 (3) SA 84 (T) Patel J held that there was a growing
prevalence of failure to comply with the Rules of Court and with court
practice as set up in the practice manual and that it was time that the court,
through its order in the present case, should issue a strong warning against
non-compliance with the Rules of Court. Those practitioners who under-
mined the practice and the administration of justice would therefore incur
the “displeasure of the court” and an exemplary costs order de bonis propriis
as it would have been unfair for the parties to carry the costs of their
attorneys. See also Bovungana v Road Accident Fund 2009 (4) SA 123 (E),
where Froneman J quoted from Pikering J in Ngwane v the Road Accident
Fund ECB Case No. 151/2007 (unreported) as follows:
“It does not appear that the relevant officials in the employ of defen-
dant have paid any heed to the criticism contained in these judgments.
In Mlatsheni’s case, Plasket J considered that the time may well have
arrived for orders of costs de bonis propriis to be awarded against em-
ployees of the defendant who give instructions that have the effect of
frivolously frustrating legitimate claims. I respectfully agree. There is
no reason why costs which have been occasioned by the improper
conduct of an employee of the defendant should be paid out of the
public purse. If the Board of the Road Accident Fund does not take se-
riously what has been stated in the various judgments then the rele-
vant officials will find themselves saddled with orders of costs de bonis
propriis.”
Taxed costs
[11.35] Taxation of costs sometimes causes confusion with clients. When a client is in
court and hears that he or she is awarded RX in damages plus “taxed costs”
the client is likely to think that he or she will have to share his or her good
fortune with Inland Revenue. You should carefully explain what is involved in
the concept of taxed costs; that the costs of the action will be comprehen-
sively itemised in a bill of costs and that the bill will then be scrutinised by the
Taxing Master or some other court official. If the Taxing Master considers
that any item on the bill is unjustified or excessive, the Taxing Master will
“tax off” or delete an appropriate amount from the bill and your client will
only be entitled to claim the balance, as certified by the Taxing Master, from
the unsuccessful party.
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Chapter 11: Costs
If there is a prospect that any disbursement that you incur on behalf of

your client will not be allowed on taxation, you must forewarn your client
that he or she may have to pay for the disbursement even if successful in the
action. If you fail to forewarn your client, you will be personally liable for the
disbursement: Re Blyth & Fanshawe (1882) 10 QBD 207.
The taxation of costs is not confined to litigious matters. Whenever your
client is unhappy with a bill from you, he or she can demand that you arrange
with your local Law Society that his or her bill be assessed. All Law Societies
have statutory rules setting out the procedure with regard to the assessment
of non-litigious bills. After the Law Society has given due notice to both you
and your client of the date of the assessment you and your client have an op-
tion to appear before an Assessment Committee, consisting of practising
practitioners in order to state your case. The taxation of the bill of costs is
free of charge. Once again, if the Assessment Committee considers that any
item on the bill is unjustified or excessive, it will be taxed off and the client
will only be obliged to pay the balance of the bill as certified by the Commit-
tee or an official of the Law Society. For example, if you need to go overseas
to interview witnesses and you travel first class without your client’s prior
approval, it is very likely that the difference in cost between first class and
economy class will be disallowed on taxation.
The parties in the first situation and the attorney and client in the second
situation could agree on a figure for costs in lieu of having the bill taxed. This
commonly occurs because the procedure for having a bill taxed can be costly
as well as time-consuming and inconvenient.
The taxation of advocates’ fees as between party and party must be ef-
fected by the Taxing Master in accordance with the provisions of Rule 69,
and, where applicable, the tariff appended to that rule. When the tariff does
not apply, the Taxing Master must allow such fees “as he considers reason-
able” (Rule 69(5)).
Payment in advance
[11.40] There is nothing objectionable in your refusing to take on a matter unless
your client pays you in advance an amount which you estimate will cover
your costs and disbursements. However, this amount belongs to your client
and must be kept in your trust account until the matter is completed, a
proper bill of costs is rendered and you are entitled to have recourse to your
trust account to pay your bill: see s 78 of the Attorneys Act 1979 and the
statutory accounting rules of the various Law Societies. Asking for costs in
advance is wise where you have doubts about your client’s ability to pay es-
pecially with clients consulting you for the first time.
If it is obvious that a client is impecunious, it would be insensitive to ask for
funds in advance. In such cases, you should either apply for legal aid on be-
half of your client or refer him or her to a free legal service. Alternatively, if
83
you are willing to take a risk and think that the client has a valid claim, you
can enter into a contingency fee agreement with your client if this is appro-
priate in the circumstances of the particular matter, and whether it best
serves the interests of your client: see [11.55]. Where the client is a disad-
vantaged member of the community, you should consider undertaking the
work on a non-paying basis: see Chapter 24.
If you do not request costs in advance but will be requiring your client to
keep you in funds from time to time to cover disbursements, then inform
your client of this at the outset and give the client an outline of the types of
disbursements that will be incurred and their likely magnitude. If your prac-
tice is to cease acting for a client who cannot put you in funds to cover dis-
bursements, then once again you should inform your client of this at the
outset.
Lump sum bills

[11.45] Another concept which may cause you great trouble in practice is the lump
sum non-itemized bill of costs. Contrary to the myth, you cannot determine
the amount of legal fees by the weight of a file or by thinking of a figure and
then preparing a bill to justify it. Accordingly, you must apply your mind very
carefully when preparing a non-itemized bill of costs.
In your early days in practice, you will probably see principals laboriously
preparing lengthy bills which list each telephone and personal attendance
upon a client and everything else that was done on the client’s behalf and
which finish up with one lump sum at the end. Do not be misled. This is still a
lump sum bill. The rationale is that a bill must contain sufficient details to en-
able the client to decide whether to seek to have the bill taxed by the Taxing
Master.
A client can, of course, waive the right to receive an itemized bill in taxable
form and any right to have a bill taxed.
Many practitioners send out lump sum bills and their clients do not query
them. The lump sum bill, if rejected by the client, is not enforceable against
that client and must be replaced by a bill in taxable form.
A problem that sometimes arises is whether you are bound by the amount
claimed in a lump sum bill of costs if your client does not accept the bill and
insists on receiving a bill in taxable form. In other words, if you charge your cli-
ent R5 000 in a lump sum bill but the bill in taxable form adds up to R7 000, can
you ask the Taxing Master to ignore the first bill when taxing the second bill?
The Ethics Committee of the Law Society of South Africa has ruled on this
point as follows (1979 DR 397):
“. . . It is unprofessional for an attorney to increase his account on
taxation save where he has reserved his rights when rendering an ini-
tial account which was expressed to be a nominal charge.”
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Chapter 11: Costs
The committee’s reasons are as follows:

“The attorney has an advantage over his client in knowing whether or
not his “inclusive fee” is in accordance with the tariff or not.
Not only is the client unable to assess whether the “inclusive fee” is
reasonable or not; he is also precluded, in the absence of a detailed
bill, from seeking guidance from another practitioner.
If the attorney is aware that his “inclusive fee” is substantially lower
than would be allowed him on taxation then (in the absence of special
circumstances) he is consciously under-charging.
It is undesirable, to say the least, that a client should be deterred
from exercising his right to call for taxation because of a possibility
that, if he does so, he will be additionally penalized by having to pay a
larger bill apart from the normal cost attendant on drawing the bill and
having it taxed.
The practice in general is open to obvious abuse since the client is
seldom in a position to assess whether an inclusive fee is reasonable or
not.
It is relevant to bear in mind that Pakes’ case (Pakes v Mosley 1909
TPD 166) suggests that an attorney who has inadvertently and bona
fide omitted certain items from his original bill is entitled to rectify the
omissions in the event of taxation, and the committee takes the view
that this would be proper.”
The ruling of the Ethics Committee was subsequently confirmed by counsel in
an opinion obtained by the Cape Law Society (1986 DR 206–207) in which the
following was stated:
“On the question as to when an attorney who has rendered an account
to his client could recover an amount in excess thereof as allowed on
taxation, the view is that there is a fundamental difference between
the situation where at the time of rendering his initial account an at-
torney indicates that if his client wishes the bill to be taxed he reserves
his rights to claim the amount so taxed on the one hand, and the situa-
tion where he made no such reservation.
In the former case the client was given the option to decide for him-
self the basis upon which he wishes to be charged. In the circum-
stances under consideration however, where there is no reservation of
rights in the initial statement of account, the whole taxation process is
used as an abuse in that the client, who is perfectly entitled to query
the amount claimed and to ask for it to be taxed, is then threatened
that if he persists therein the bill will be taxed and he will then be
charged a fee in excess of that which the attorney has undertaken to
charge in the initial account.
To sanction this sort of conduct by an attorney would in our view in
fact admit an abuse of the right of a client to have an itemized account
and would be to use the taxation procedure in terrorem. After all when
a globular account is rendered to a client the latter does not know the
precise services which an attorney has rendered justifying that
amount. Thus he cannot be penalized because he exercised a right to
which he was entitled by requiring the bill to be taxed.”
85
Interim bills
[11.50] A further rule is that a bill cannot be rendered for a matter until the matter is
completed: see Chapter 4. This is because most of the matters handled by a
practitioner involve an “entire contract” between the practitioner and the
client so that the practitioner is not entitled to any remuneration until the
matter is completely finalised: Warmington v McMurray [1937] 1 All ER 562;
Goodricke & Son v Auto Protection Insurance Co. Ltd 1967 (2) SA 501 (W) at
505.
This means that, unless you have a prior agreement with your client he or
she would be acting within his or her rights in refusing to pay an interim bill.
However, many practitioners follow the practice of submitting interim bills
and, in most cases, clients pay them without complaint. In fact, some clients
prefer to pay for legal services gradually in small sums rather than paying a
large amount upon completion of the matter. In collection matters interim
accounting may be done without prior agreement.
Contingency fees
[11.55] Contingency fees, whereby you are paid a percentage of any damages
awarded to your client if his or her action succeeds or any settlement
amount, are generally not permitted in common law jurisdictions. They are,
however, permitted in the United States and Canada.
In England “special fee arrangements” are now permitted. This means that
a solicitor may increase his or her reasonable bill of costs by up to a pre-
scribed percentage if the action is successful in order to compensate him or
her for the risk accepted if an action is not successful.
A contingency fee agreement is an agreement between the legal prac-
titioner and his or her client in terms whereof the practitioner will charge no
fees if the client is unsuccessful in the matter concerned. This system there-
fore enables a client (in certain circumstances) to instruct a legal practitioner
on a “no success, no pay” basis. An arrangement of this nature was regarded
as champertous in South Africa and as such contrary to public policy.
However, following the Law Commission’s recommendations, legislation
has now been introduced to permit practitioners to agree with their clients to
charge in terms of a special fee arrangement. The Contingency Fees Act 1997
was assented to on 13 November 1997 and came into operation on 23 April
1999. A practitioner can now, if in his or her opinion there are reasonable
prospects that his or her client may be successful in any proceedings, enter
into an agreement with such client in which it is agreed that he or she will not
charge a fee if the client’s claim is unsuccessful.
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Chapter 11: Costs
The Cape Law Society has issued the following guidelines which can be
found in its Annual Yearbook:
“Applicable principles
1. In ascertaining the reasonableness of a contingency fee agree-
ment, the most important element will . . . be whether it is ap-
propriate in the circumstances of the particular matter, and thus
whether it best serves the interests of the client. It is to be noted
in passing that criminal proceedings and family law matters are
expressly excluded by the definition of ‘proceedings’ in section 1
of the Act.
2. The practitioner is entitled to conclude a contingency fee agree-
ment if in his or her opinion there are ‘reasonable prospects’
that the client may be successful in the proceedings. This is in
terms of Section 2(1) of the Act. It is a matter for debate (upon
which there are divergent views) as to whether contingency fee
agreements may be concluded between an attorney and his or
her client in every such matter, even where there is virtual cer-
tainty that the claim will succeed (such as in certain personal in-
jury/MVA claims). In the 1996 Annual Report of the SA Law
Commission, in recommending that in the event of a matter be-
ing concluded successfully, a practitioner should be entitled to
an ‘uplift’ to a maximum of 100% of their normal fees, the view
was expressed that in practice, this would mean that legal practi-
tioners would be entitled to charge double their normal fees if
they conduct their clients’ cases successfully.
3. A practitioner should always bear in mind that when a contin-
gency fee agreement is reviewed by the professional body con-
cerned, he or she may be called upon to furnish information
setting out his or her reason for considering the ‘success fee’ (as
it is termed in the Act) to be appropriate, and disclosing what the
practitioner’s usual fee in a similar matter would have been, but
for the contingency fee agreement having been entered into.
4. A contingency fee agreement will be unenforceable when it pro-
vides for an inappropriately large fee, i.e. one which is excessive,
in the circumstances of the matter, the recovery, and the relative
risks borne by the practitioner. The fee must be commensurate
with the work actually done. It is apparent that further debate
may be required as to the circumstances entitling a practitioner
to conclude a contingency fee agreement, and in what circum-
stances, (if any) a taxing committee would consider a fee to be
inappropriate, bearing in mind that the Act has explicit provi-
sions that the ‘success fee’ has an uplift of 100%, in other words
that it may be up to double the ‘normal fee’, (provided that it
does not exceed 25% of the total amount awarded to or ob-
tained by the client in consequence of the proceedings con-
cerned). It is to be noted that such total amount excludes any
amount awarded or obtained in respect of costs. Similar provi-
sions were enacted in the UK in respect of what are there
termed, ‘conditional fees’.
87
Summary:
A contingency fee may only be entered into in the circumstances, and
in the form contemplated by the Act.
Such agreement may only be in writing in the prescribed form.
The practitioner concluding such an agreement should take care to
ensure that the implications thereof are fully explained to his or her
client. All matters dealt with in the agreement must be so explained.
The conclusion of an agreement in terms of the Act does not detract
from the fundamental principle of reasonableness of a fee, taking all
circumstances into account.
A practitioner should be particularly careful to avoid a potential con-
flict of interest between the interests of the client (which are para-
mount) and his or her own pecuniary interest in the outcome of the
matter (which must always be subject to the interests of the client).”
Overcharging
[11.60] You must be careful not to overcharge a client because this could amount to
unprofessional conduct. If a scale exists for the work that you have done, you
must not charge above scale. If a scale or other binding rule does not exist, in
general you should charge a sum which is fair and reasonable having regard
to all the circumstances of the case, including:
l the complexity of the matter or the difficulty or novelty of the questions
raised;
l the skill, labour, specialised knowledge and responsibility involved;
l the time spent on the matter;
l the number, length and importance of the documents prepared or re-
viewed;
l the amount or value of any money or property involved;
l the place where, and the circumstances in which, the business the sub-
ject of the retainer was transacted; and
l the importance of the matter to the client: Rule 17 Cape Law Society;
Rule 16 KwaZulu-Natal Law Society; Rule 80 Transvaal Law Society and
Rule 15 Free State Law Society.
Some firms use time costing, whereby each practitioner is assigned an hourly
rate for the work he or she performs. When a matter is completed, the time
spent on it is worked out (often this is provided by a computer printout) and
this is then multiplied by the relevant charge rate. Many commercial clients
accept being charged on a time costing basis. However, for the non-
commercial client in a litigious matter, you must adhere to the applicable
scale (if one is prescribed in your jurisdiction) unless you have entered into a
costs agreement with your client which provides for time costing.
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Chapter 11: Costs
Even if time costing is applicable, do not use it mechanically. Take into ac-
count matters such as those listed above before determining the fee. Some-
times it may be appropriate to agree with your client for you to charge above
the time costing figure, especially if the work was extremely urgent and was
completed largely outside normal office hours. At other times, you may need
to charge below the time costing figure, especially if you have wasted time in
researching irrelevant issues.
Discounts
[11.65] Contrary to the belief of some new practitioners, there is nothing improper in
charging a client less than the fee specified by an applicable scale of costs.
The scales set the maximum charges only; they do not prohibit charging less
than scale where you consider this is appropriate. Similarly, discounting an
amount from an agreed time costing arrangement may be appropriate.
Practitioners sometimes render accounts to their clients in which they set
out an amount that would normally apply, add the magic words, “but in the
circumstances, say . . . ” and then insert a reduced amount. Some prac-
titioners fondly believe that this practice impresses clients and makes them
think more of them so that they will bring more business to them. This is not
always the case. The practice may, in fact, make the client suspicious about
whether or not you have mucked up the whole thing and, as a result of a
pricked conscience, felt obliged to give the client a break.
There is a story about a practitioner who felt so sorry for a client who had
lost an action that he wrote to the client stating that he would not charge the
client anything. The next thing the practitioner heard was that the client had
visited the Law Society and complained that the practitioner had been so
negligent that he felt ashamed to render a bill.
Costs agreements
[11.70] Apart from a bill of costs which has been calculated in accordance with
statutory tariffs or recommended guidelines (if applicable) and which, at the
client’s option, is subject to taxation to determine whether the amount
claimed is proper, you may claim costs pursuant to an agreement.
Please note, however, that if a fee is agreed upon in advance this does not
necessarily close the door to the correction of excessive charges. For instance
a Transvaal Rule (Rule 86.1) states categorically:
“the council shall not be precluded from determining the reasonable-
ness of a fee agreed or purportedly agreed upon by a member and any
other person liable or purportedly liable for its payment. The council
may order a member to refund to the person concerned any excess
paid to or on account of the member over and above the amount
found to be due on taxation or assessment . . . and the member shall
comply with such an order.”
89
The courts, from time to time, have emphasised that an attorney is not
necessarily guilty of misconduct because he or she chooses to put an ex-
travagant value on his or her services. If the prospective client is a free agent,
if there is neither fraud nor duress, and no advantage taken of him or her,
then if the client chooses voluntarily to agree to an extravagant fee, the at-
torney will not be guilty of misconduct. On the other hand where an attor-
ney, on presenting his bill to his client, which was an excessive amount,
immediately got the client to agree to pay the fees set out in the bill and to
waive any right to a taxed or detailed bill of costs, he was held to have taken
an undue advantage of his client and his conduct to have been a breach of his
professional duty: Cape Law Society v Luyt 1929 CPD 281 187; Law Society of
the Cape of Good Hope v Tobias 1991 (1) SA 430 (C). The courts have not
hesitated in setting aside any agreement where they have considered that
the costs claimed are excessive and far beyond what the practitioner would
have been entitled to claim in the absence of the agreement.
Similarly, courts have set aside agreements where the client did not fully
understand the agreement or was induced to enter into it by the fraud, mis-
representation or other improper conduct of the practitioner concerned.
An agreement as to costs should state what services you propose to pro-
vide for the agreed fee and whether or not disbursements are included.
Where you make an agreement with a client to charge fees on a time basis
and your client does not waive his or her right to request a detailed bill you
could accordingly be called upon to deliver a detailed bill indicating precisely
the time spent on each service. Care must be taken that in such event there
is no substantial disparity between the agreed fee and the itemized bill as
this might expose you to disciplinary sanctions.
Acting for yourself

[11.75] When, contrary to the advice in Chapter 15, you act for yourself and are
successful in litigation, you may recover costs in the ordinary way except that
you will not be allowed costs for instructing yourself or for attendances on
yourself or for similar items which would involve a duplication of yourself as
client and as lawyer: London Scottish Benefit Society v Chorley Crawford and
Chester (1884) 13 QBD 872; Cachia v Hanes (1994) 179 CLR 403 at 411–413;
Brott v Almatrah [1998] 2 VR 83; cf Dobree v Hoffman (1996) 18 WAR 36.
Organisation of files
[11.80] The way you organise your files should be orientated towards the proper
costing of the matter upon its completion. Proper keeping of records of ac-
tivities, such as telephone conversations, conferences and attendances in
court, will make it easier to accurately calculate and prepare a bill of costs.
90
Chapter 11: Costs
Otherwise you may have to play the guessing game of who telephoned who
and who did what.
The guessing game is wasteful and not much fun, especially for matters
that commenced five years ago. In the absence of adequate proof that you
performed an item of work that is listed in your bill of costs, it is likely that
you will have arguments over it with your client or with the practitioner act-
ing for your client’s opponent and if the bill comes before the Taxing Master,
you may find that the item is “taxed off”.
Costs: conclusion
[11.85] It is vital that you understand the general principles relating to costs and that
you explain to your client at the outset of a matter what he or she should ex-
pect to pay or recover from another party in relation to that matter. Such an
explanation and a clear and simple costs agreement will help prevent misun-
derstandings and disputes over costs.
91
Chapter 12
Entitlement to documents
“The proprietor of a hotel . . . may detain . . . any property . . . brought by a
guest into the hospitium of the inn . . . He is not, however, entitled to de-
tain the guest himself, nor take clothes from his person.”
Entitlement to documents: introduction

[12.05] If a client pays your bill and demands his or her file, to which documents is
the client entitled? Though this problem arises frequently in practice, not all
practitioners know the precise answer.
Most practitioners have a fair idea of what an attorney’s lien is – a matter
that will be discussed in Chapter 13 – but the attorney’s lien is not relevant
once the client pays your bill.
Generally speaking, it is a misconception to say that a client is entitled to
his or her file once the client has paid all outstanding fees. This is because a
file is a collection of documents and the principles governing entitlement to
documents must be applied to each document in the file and cannot be ap-
plied to the file independently of its contents.
Common law: ownership of documents

[12.10] At common law, the position is determined largely by ownership. The client
can ask for documents belonging to him or her but not documents belonging
to you. The notion of ownership in this context, however, is not easy to
apply.
Very little guidance can be obtained from the South African authorities al-
though in order to assist its members, the Cape Law Society has issued some
broad-based guidelines (Cape Law Society’s Yearbook 2010 at 110):
“1. The following documents in a client’s file belong to the attorney:
l Letters addressed to the attorney by the client;
l Copies of letters that the attorney wrote to the client;
l Notes the attorney made in a file for own use and for which
the attorney does not charge the client, for example office
memoranda, diary entries, notes of consultations and atten-
dances, accounting records, etc.
93
2. All other documents belong to either the client or to third par-

ties.”
The leading authority on this vexed question appears to be the case of Went-
worth v De Montfort (1988) 15 NSWLR 348 where the following principles
were set out:
1. Where a solicitor acts only as an agent for a client in doing some act, the
ordinary rules of agency apply so that a document brought into existence
or received by the solicitor when so acting belongs to the client.
2. Where a solicitor acts in a capacity other than as agent for the client,
property in a document brought into existence or received by the solici-
tor depends on principles referable to the relationship of a professional
person and client. Relevant factors to be considered include:
(a) whether the client was charged for the creation of the document;
and
(b) whether the solicitor created the document primarily for the client’s
benefit and protection or for the solicitor’s own benefit and protec-
tion.
Who owns which documents?
The following types of documents were held in the Wentworth case to gen-
erally belong to the client:
l documents involving counsel which were created or received for the
benefit of the client (even though it may also be for the solicitor’s bene-
fit), including original or copy documents and counsel’s brief; and
l correspondence and notes of conversations between a solicitor and court
officials (although a solicitor is entitled to copy these).
The following types of documents were held to generally belong to the solici-
tor:
l cheque requisition forms;
l financial records (whether computerised or otherwise) kept in relation to
transactions concerning moneys of a client held in trust and disburse-
ments of those moneys (although the client is entitled to information
about his or her financial affairs on the records and to inspect and copy
where appropriate);
l notes of telephone or personal attendances on persons other than the
client or at court and correspondence with persons other than the client
may belong to either depending on the nature and content of the notes
and whether made for the primary purpose of the solicitor or client;
l internal records and memoranda of a solicitor as to work done or to be
done; and
l internal photocopying requisitions.
94
Chapter 12: Entitlement to documents
In Cordery1 the following guidelines are laid down:

1. Documents in existence before the retainer began and which you hold as
agent for the client should, on termination of the retainer, be dealt with
as the client may direct.
2. Documents which come into existence during the retainer fall into four
categories:
(a) Documents prepared by you for the client and which are paid for by
the client, belong to the client: Re Ellis and Ellis [1908] WN 215.
These documents include briefs to counsel and file copies of letters
written by you to third parties on behalf of the client.
(b) Documents prepared by you for your own benefit and for which the
client has not been charged, belong to you: Re Thomson (1855) 20
Beav 545; 52 ER 714. These documents include copies of letters writ-
ten to the client, inter-office memoranda, attendance notes and ac-
counts book entries.
(c) Documents sent by the client to you, the ownership of which is
intended to pass to you, belong to you (Re Wheatcroft (1877) 6 Ch D
97), although copyright remains with the client unless expressly re-
leased. These documents include letters written by the client to you.
(d) Documents prepared by a third party during the retainer and sent to
you belong to the client. These documents include letters from third
parties to you, experts’ reports and counsel’s opinions.
Summary
In summary, a legal practitioner seeking to retain documents must show that:
l there was no duty to the client to prepare them;
l they were not prepared for the benefit of the client; and
l the client has not been required to pay for their preparation.
On the other hand, a client wishing to take possession of documents must
show that:
l there was a duty to the client to prepare them or it was necessary to
prepare them in performing the client’s retainer; and
l the client has paid for their preparation.
Halsbury sums it up in this way:
“Documents coming into existence in the course of business trans-
acted under a retainer, and either prepared for the benefit of the cli-
ent or received by the solicitor as agent for the client, belong to the
client. However, documents prepared by the solicitor for his own pro-
tection or benefit, and letters written by the client to the solicitor, be-
2
long to the solicitor.”
________________________
1 Cordery on Solicitors (9th ed, Butterworths LexisNexis, London, looseleaf), pp E/405–E/406.

2 Halsbury’s Laws of England (4th ed re-issue, Butterworths LexisNexis, London, looseleaf), Vol 44, [120].
95
The Law Society of England and Wales have very usefully amplified the guide-
lines of Cordery by referring to specific examples under the heading: “Guid-
ance – ownership, storage and destruction of documents” which can be
accessed at the following website: www.lawsociety.org.uk/documents/.
Documents to be in reasonable condition

[12.15] In the absence of a legal practitioner’s lien, it is your duty, when called upon
by your client, to deliver to your client in a reasonable condition such docu-
ments of your client as you possess and to which your client is entitled: Re
Long [1929] VLR 318.
To enable you to comply with this duty, you must retain client documents
for the minimum periods required by law (see Chapter 14), either in your of-
fice or in a confidential and secure external storage facility which is easily ac-
cessible to you.
Retain copies of documents given to your client

[12.20] If your client terminates your retainer, pays all outstanding fees and requests
the originals of those documents in your file to which your client is legally en-
titled, you should make copies of those documents so that when you add
those copies to the balance of the file, you retain all of the contents of the
file. Such copying is prudent not only in case your client sues you but also in
case a legal regulator or some other person with relevant legal authority un-
dertakes an investigation on matters that affect your conduct.
Charging for provision of documents

[12.25] Where you make copies of original documents you give to your client and the
copies are for your own protection, you cannot charge your client for the
photocopying costs. Likewise, you cannot charge for preparing a list of the
documents you give to your client unless your client asks you to prepare it.
However, you can charge your client for giving him or her a copy of a docu-
ment which belongs to you, such as an extract from your financial records:
Wentworth v De Montfort (1988) 15 NSWLR 348 at 358.
Where the client requests that you send the original documents by courier
instead of attending your office to pick them up, you can charge the client for
the courier fees.
According to Cordery,3 where a client requires documents from his or her
file, you should not charge for removing the file from storage.
________________________
3 Cordery on Solicitors (9th ed, Butterworths LexisNexis, London, looseleaf), p E/406.
96
Chapter 12: Entitlement to documents
Medical reports
[12.30] A continuing problem is that of the embarrassing medical report. At times the
situation is encountered where, as part of the conduct of a civil action, you
arrange for your client to undergo a medical examination on the basis that
the examining doctor will furnish a report to you. The ultimate cost of the re-
port is the responsibility of your client.
Sometimes medical reports contain references to malingering by your cli-
ent or some psychiatric disorder suffered by your client. Medical reports pre-
pared for the purposes of a plea for leniency in criminal proceedings, in
particular, frequently contain assessments of morbid psychiatric conditions
and make gloomy predictions of anti-social behaviour on the part of your cli-
ent.
Many doctors believe that it can be detrimental for a patient to become
aware of a frank assessment of his or her condition, prospect of recovery and
future treatment. However, accepting that Cordery’s proposition 2(d) at
[12.10] is correct, you would be required to hand over the medical report to
your client upon request because it is a document prepared by the doctor
during the currency of the retainer and sent to you at your client’s expense.
Because of the perceived dangers of a patient having access to medical re-
ports, there is a growing tendency for doctors to be more and more guarded
in subjective assessments of clients in medical reports. Some doctors who are
concerned that there is a prospect of the client becoming aware of material
in a medical report which would be disturbing place a condition upon the
provision of the medical report. The report contains words to the effect: “I
give this medical report to you on the condition that the contents of para-
graphs X and Y are not made available to your client.”
Whilst it may be argued that it is unfair for your client to be required to pay
for a medical report if he or she is not going to have full access to it, the con-
dition may be justified because your client’s benefit is the use of the informa-
tion contained in the report for the purpose of litigation rather than physical
possession of the document or the publication of its contents. Nevertheless,
if your client insists on having access to the whole report, it is doubtful
whether a condition imposed by the doctor, which seeks to restrict access to
parts of it, would be binding on your client.
For completeness, it should be noted that in Tshabalala-Msimang v Ma-
khanja 2008 (6) SA 102 (W) the Court held that if someone acquired know-
ledge of private facts contained in a medical report through a wrongful act of
intrusion, any disclosure of such facts by such person or by any person, in
principle, constituted an infringement of the right to privacy. Such disclosure
would, however, be permitted if justified by overriding considerations of pub-
lic interest, although only to the extent that it was reasonable and necessary.
The case concerned a medical report of alcohol abuse by a cabinet minister
whilst hospitalised. This report found its way into the hands of a journalist by
97
unauthorised means and led to the publication of an article in a Sunday

newspaper.
However, the Court held further that the public interest depended on the
nature of the information conveyed and the situation of the parties involved.
The public had a right to be informed of current news and events concerning
the lives of public persons, such as politicians and public officials, which right
was recognised in ss 16(1)(a) and (2) of the Constitution, which protected the
freedom of the press and other media and the freedom to receive and impart
information and ideas. In appropriate circumstances the public had a right to
information about public figures even where it had been unlawfully obtained.
In this case two sets of competing constitutional rights had to be reconciled,
namely the rights to freedom of expression and to receive and impart infor-
mation and ideas (of the respondents and the public), entrenched in s 16 of
the Constitution, and the right to dignity (of the applicant). On a reconcilia-
tion of those competing rights, the respondents (e.g. the Sunday newspaper)
ought not to be prohibited from further commenting on the matter. The Min-
ister was a public figure and her life and affairs had become public know-
ledge, and the press in its turn had the right to inform the public of them.
Entitlement to documents: conclusion

[12.35] Disputes over entitlement to documents in a legal practitioner’s file are
common and often arise when the practitioner-client relationship has broken
down. The common law principles are well established and are supple-
mented by rules of professional conduct and practice. An understanding of
the principles can reduce misunderstandings and alleviate the stress that can
result from a client saying: “I want my file”.
98
Chapter 13
Attorney’s lien
“Yond’ Cassius has a lien [sic] and hungry look; He thinks too much: such
men are dangerous.”
Shakespeare, Julius Caesar
Nature of attorney’s lien

[13.05] A right of retention, generally referred to as a lien, is the right of a person
who is in possession of the property of another person, to retain the property
in his or her possession until he or she has been properly compensated in
terms of an agreement existing between himself or herself and the owner or,
if no agreement exists, until he or she has been compensated for work done
and actual expenses incurred to the extent only that the owner of the prop-
erty has been enriched: Brooklyn House Furnishers (Pty) Ltd v Knoetze and
Sons 1970 (3) SA 264 (A) 270.
Classes of lien
[13.10] South African law recognises three classes of liens, namely salvage liens,
improvement liens and debtor and creditor liens. Salvage and improvement
liens are based on the principle of enrichment and compensation of the
amount in respect of which actual enrichment can be claimed. They prevail
against all the world but are limited to expenses which have maintained or
advanced the market price. Debtor and creditor liens (so far at all events, as
they include expenses not limited by considerations of market price) are re-
stricted within the limits of contractual privity: United Building Society v
Smookler’s Trustee and Galombik’s Trustees 1906 TS 623 at 630. Liens of this
type are not real liens and the creditor does not have a real right. His or her
right of retention is only good against his or her debtor (United Building Soci-
ety above; Land Bank v Mans 1933 CPD 16 24) although there is a preference
on insolvency.
There is a difference between the common law in South Africa and the
common law in England with regard to the lien of solicitors and con-
veyancers. In South Africa there is no general lien for all costs owing by a cli-
ent to his or her attorney with regard to all documents in the hands of the
99
attorney belonging to the client; the lien is confined to the costs in relation to
the particular transaction in respect of which those documents are held: Free
State Agriculture & Ecotourism Development (Pty) Ltd v Mthembu & Ma-
homed 2002 (5) SA 343 (O) and the cases cited therein.
The most recent South African rulings

[13.15] Until the decision in Botha NO v EM Mchunu 1992 (4) SA 740 (N) modern
textbook writers were in agreement that an attorney may only exercise a lien
over documents prepared by him or her and not over letters or other docu-
ments which came into his or her possession even though they may have
been necessary to draft an agreement, pleading or conveyancing document.
In other words, the nature of the lien was accepted to have been an im-
provement lien.
However, in the Botha case Combrink J at 745 disagreed with this conten-
tion and said that he had some difficulty with the notion that the lien which
an attorney had for work done attached only to documents prepared by him
or her; the work done by an attorney did not always result in the creation or
preparation of a document by him or her; very often it did not. A client
brought in a contract, invoices, delivery notices and bills of lading and would
ask the attorney for advice. The attorney studied and analysed the docu-
ments, researched the law and then advised the client in consultation on
what course should be taken. The attorney had bestowed time and labour on
the documents, but because no formal document had been produced, he or
she had no lien over the client’s documents.
An attorney was employed for his or her skill and expertise in a specific
field and his or her work and labour was bestowed on the property of the cli-
ent, not only by creating something, but by perusing, analysing, consulting
and advising on the property of the client.
A client expressly contracted with an attorney to perform the services that
were required – be it to litigate on his or her behalf, advise him or her, draft
an agreement, float a company, wind up an estate etc. It was expressly or
impliedly agreed that the attorney would be entitled to a fee for all the ser-
vices which he or she rendered in carrying out the mandate. The attorney re-
ceived into his or her possession initially and from time to time documents
which were the client’s property. He or she expended time and applied his or
her skill as an attorney to these documents, whether they were pleadings,
letters, contracts or other documents drafted by someone else. In that sense
he or she incurred expense upon the property of his or her client. An attor-
ney was entitled to a fee for perusing documents. To him or her time was
money.
Applying the general principles enumerated above, Combrink J could see
no reason why the retention lien should be restricted to documents prepar-
ed by the attorney. A debtor and creditor lien was not based, and not
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Chapter 13: Attorney’s lien
dependent, on enrichment: Land Bank v Mans above; Brooklyn House Fur-

nishers (Pty) Ltd v Knoetze and Sons above. The test should simply be that if
the attorney is entitled to charge the client a fee in respect of a document in
his or her possession, then he or she should be entitled to exercise a lien over
it because then it is recognised that he or she expended work and labour on
it. On that basis documents in the attorney’s possession which were irrele-
vant to his or her mandate, even though he or she claimed to have expended
time and labour on them, could not be retained.
Combrink J’s view is supported by Hattingh J in Free State Agriculture &
Ecotourism Development (Pty) Ltd v Methembu & Mahomed above at 346
where he says:
“whatever the exact extent and scope of the attorney’s lien might be,
it is clear that it extends at most to documents in respect of which the
attorney is entitled to charge a fee for work actually done and time
and labour actually expended thereon.”
Dr M Bobbert, during his lifetime a frequent contributor to De Rebus has
examined the effect of the decision in the Botha v Mchunu case (above) in
the light of the stare decisis rule (De Rebus 1993, 274) and has concluded that
the question of an attorney’s lien now requires the attention of the Appellate
Division in order that it might be established whether the true nature of the
lien is that of a debtor and creditor lien or an improvement lien.
Discharge of an attorney’s lien

[13.20] An attorney’s lien is discharged if your client pays you the amount of your
costs or gives you security for such amount, if you hand over the documents
or other property to your client (Soane v Lyle 1980 (3) SA 183 (D); Oceana
Leasing Services (Pty) Ltd 1980 (3) SA 267 (W) 272) or if you waive the lien.
Where possession is lost by undue means (that is fraud, force or mistake) the
lien also terminates but in this case recovery of possession revives the lien
(Hamilton Paneelkloppers v Nkomo 1991 (2) SA 534 (O)) as long as the recov-
ery of possession is lawful.
Practical problems
[13.25] Although it is relatively easy to summarise the nature of an attorney’s lien, it
is much more difficult to work out the answers to the many problems that
arise in practice in relation to such liens.
Three situations commonly arise in practice:
1. A dissatisfied client changes his or her attorney and comes to see you in
relation to an incomplete matter handled by the former attorney. You
request the client’s papers from the former attorney but that attorney
refuses to hand them over until his or her costs have been paid. The cli-
ent cannot pay such costs until the matter is complete.
101
2. A client comes to see you in relation to a matter that has been completed
by a former attorney. The client needs some papers from the file relating
to the matter but cannot obtain them without paying the former attor-
ney’s costs. The client refuses to pay because he or she considers the
former attorney’s costs exorbitant.
3. A client who wants to sue a former attorney for negligence comes to see
you. The client is antagonistic to any costs which the former attorney
wishes to render for work which the client considers second rate. The
former attorney is reluctant to hand over the documents which may be
the basis of a negligence action against him or her and therefore insists
on payment of his or her costs.
The legal position with regard to the extent to which the former attorney can
claim a lien over the client’s documents is as follows:
1. An attorney has no lien over documents which he or she has prepared
other than for fees and disbursements relating to the preparation of
those documents; for example he or she has no lien over the documents
in respect of a loan to his or her client.
2. If the mandate is one and indivisible, the attorney’s lien extends over all
documents which he or she prepared in the matter until fees and dis-
bursements are paid in full and the client cannot pay for particular
documents subject to the lien and claim their release.
3. Copies of letters written by an attorney on his or her client’s behalf to
third parties are subject to the attorney’s lien.
4. Replies by third parties to letters written by an attorney on his or her cli-
ent’s behalf are not subject to the lien nor are documents sent to the at-
torney by third parties: Hotel Victoria (Rhodesia) Ltd v Alexander 1952 (2)
SA 637 (SR).
On the question of the relationship between attorneys in situations where a
practical problem arises, the Council of the Cape Law Society have issued the
following guidelines which are contained on page 111 of the 2010 Yearbook:
“(a) an attorney should, as far as practicably possible, ensure that he
or she obtains a sufficient deposit and/or render regular ac-
counts to enable the client to have a fair idea of his or her finan-
cial commitments to the attorney and to make timeous arrange-
ments to meet these commitments;
(b) an attorney should allow a client and/or the new attorney suffi-
cient access to the client’s file to enable him or her to gain suffi-
cient information to progress the matter;
(c) an attorney should, on receipt of a written undertaking by an-
other attorney that the complete and unaltered file will be re-
turned and a written undertaking to pay all costs the attorney
may be entitled to, in law, make the file available to that other
attorney to enable him or her to copy such documents as he or
she may require in order to progress the matter.
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Chapter 13: Attorney’s lien
(d) an attorney, whose mandate has been terminated and whose

fees have been paid in full, shall be entitled to make copies of
the documents that were subject to his or her lien before hand-
ing over the file but shall not charge more for making the copies
than the charges stipulated in the High Court tariff;
(e) an attorney shall not be allowed to retain the file until his
charges for copying are paid but shall be obliged to hand over
the file once the fees arising from the exercise of the mandate
have been paid and the lien discharged;
(f) an attorney, whose mandate is terminated and whose fees have
been paid in full, should immediately, on instructions of the for-
mer client, hand over all documentation;
(g) an attorney whose mandate is terminated shall immediately file
a notice of withdrawal as the attorney of record in that matter;
(h) the new attorney should afford the former attorney all reason-
able access to documents, if the file has been handed over, to
enable the former attorney to make photocopies or to obtain
such information as may be necessary for the purposes of draw-
ing a bill of costs;
(i) when retaining documents subject to a lien, the attorney should,
as soon as reasonably possible, agree the fee with the client or,
failing agreement, tax the bill.”
Undermining of lien by opposing attorney

[13.30] Assume that your client is the plaintiff and is keen to resolve the litigation as
quickly as possible. There is a change in the defendant’s attorneys and the
new attorney advises you that the previous attorney is claiming a lien over
the documents. Your opponent requests you to provide him or her with cop-
ies of all relevant documents from your file to enable the matter to proceed.
Since your client’s interests would be advanced by providing the documents
so that delay is avoided, should you accede to the request? By doing so,
would you be undermining the lien of the original attorney?
In the writer’s view, your duty to your client to advance his or her inter-
ests means that it would be appropriate for you to co-operate with the new
attorney, by providing relevant documents from your file, such as pleadings
and copy discovered documents.
Attorney’s lien: conclusion

[13.35] An attorney’s lien seeks to protect attorneys from clients who change their
attorneys without paying their costs. In practice, the lien gives rise to various
difficulties and often fails to fully protect practitioners. It is far better for you
to have a happy client who pays your bills and remains loyal than to rely on a
lien as a means of securing payment.
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Chapter 14
Destruction of documents
“If you can’t convince them, confuse them.”
Harry Truman, quoted in “Lawyers: Jokes, Quotes and Anecdotes 2003 Calendar”,
Document management
[14.05] The issue of destruction of documents which are relevant to actual or poten-
tial litigation has become prominent in the 21st century. The collapse of En-
ron in the United States and the defence of tobacco litigation in Australia
have raised the issue of when it is improper to shred documents in the face
of possible litigation or regulatory action.
You may be requested by a client to draft or advise on a general document
management policy or to advise on whether a particular document can be
destroyed. In performing these functions, you need to be aware of the legal
requirements binding on your client relating to document retention, as well
as the ethical principles applicable to you as a legal practitioner. Great cau-
tion is required in this area, as getting it wrong can have serious con-
sequences for your client and for you personally.
This chapter contains a brief discussion of the law and some specific legal
requirements imposed on lawyers and the ethical issues that arise in relation
to destruction of documents.
LAW ON RETENTION AND DESTRUCTION OF DOCUMENTS

Sources of obligation to retain documents
[14.10] The law relating to retention and destruction of documents is very complex.
The discussion of the law in this chapter is neither comprehensive nor com-
plete. It is provided as an introduction to the legal issues involved.
The South African jurisdictions have generally adopted broad definitions of
the term “document” for evidentiary and other purposes. The definitions in-
clude items such as photographs, audio tapes, CD-ROMs, email and other
electronic media, as well as hard copy documents. For the purpose of all
105
revenue legislation, for example the Estate Duty Act 1955, the Transfer Duty
Act 1949, the Income Tax Act 1962, the Stamp Duties Act 1968, the Value
Added Tax Act 1991 and the Uncertified Securities Tax Act 1998, “docu-
ments” include any document, book, marketable security, record, deed, plan
instrument, trade list, stock list, brokers note, affidavit, certificate, photo-
graph, map, drawing and any print-out of information generated, sent, re-
ceived, stored, displayed or processed by electronic means.
Accordingly, references in this chapter to “document” include all items
containing some form of information.
In broad terms, documents must be retained where required to comply
with:
l legislation (see [14.15]);
l professional rules (see [14.20]);
l discovery obligations in relation to litigation (see [14.25]); and
l orders relating to documents relevant to potential litigation (see [14.30]).
These requirements apply to your clients’ documents. Some also apply to
your documents.
Legislation covering document retention

[14.15] It is essential that documents are retained for any applicable mandatory
statutory retention period. Such periods may differ according to the nature of
the document and the person with possession. In advising your client on le-
gislative requirements for document retention, the specific legislation appli-
cable to the type of business your client operates must be considered.
Income Tax Act 1962

Section 75(1) provides that all accounting records have to be kept for a pe-
riod of four years from the date of the last entry.
Value-Added Tax Act 1991

Section 55(3) stipulates that all accounting records must be kept for a period
of five years from the date of last entry in any book.
Deed Registries Act 1937

Regulation 81 provides that a deed or document may be destroyed after a
lapse of five years from the date when it was cancelled; in the case of an au-
thority for the cancellation of a deed or document however, destruction is
only permitted after a lapse of 30 years from the date when such cancellation
was registered.
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Chapter 14: Destruction of documents
Sectional Titles Act 1986

Regulation 40 prescribes that every conveyancer shall retain in his or her file
the documents listed in sub-section (1) for a period of at least six years after
the date of registration of such document.
Insolvency Act 1936

Six months after the confirmation by the Master of the final trustee’s account
in any insolvency estate, the trustee may, with the consent in writing of the
Master destroy all books and documents in his or her possession relating to
the estate. The Master may destroy all records in his or her office five years
after the rehabilitation of an insolvent.
Land Claims Court Rules

All diagrams, plans, photographs or models filed as exhibits must be removed
by the parties concerned within forty days after the case is finally decided. If
this is not done, the Registrar may post a suitable notice to the parties, calling
upon them to remove the articles immediately. If they are not removed
within thirty days, the Registrar may destroy or otherwise dispose of them.
Uniform Rules of Court

In any matter which has not been adjudicated upon by the court or a judge,
and has not been withdrawn, the Registrar may, subject to the provisions of
the National Archives Act 1996, after the lapse of three years from the date
of filing of the last document therein, authorise the destruction of the docu-
ments filed in his or her office relating to such a matter.
Trust Property Control Act 1988

Section 17 provides that a trustee shall not without the written consent of
the Master destroy any document which serves as proof of the investment,
safe custody, control, administration, alienation or distribution of trust prop-
erty before the expiry of five years from the termination of a trust.
Attorneys Act 1979

The rules of all provincial law societies in South Africa provide that all attor-
neys’ accounting records must be kept for a period of at least five years.
Financial Intelligence Centre Act 2001

Section 22 of the Financial Intelligence Centre Act (FICA) requires account-
able institutions to keep detailed records of their clients and the transactions
entered into by their clients. This duty applies whenever an accountable insti-
tution establishes a business relationship or concludes a transaction with a
client, whether the transaction is a single transaction or one concluded in the
course of a business relationship which that accountable institution has with
the client.
107
The records obtained and listed in s 22 of FICA must be kept for at least
five years after a transaction was concluded and for a minimum of five years
after the date on which a business relationship was terminated: see s 23. The
records may be kept in electronic form and provided the accountable institu-
tion has free and easy access to such records, the duties specified in s 22 may
be performed by a third party.
A failure to comply with legislative retention requirements usually
amounts to a criminal offence.
Professional rules relating to documents

[14.20] If your client carries on a business in a self-regulated profession, he or she
may be subject to professional rules dealing with document retention and
destruction.
Documents and actual litigation

[14.25] Once litigation has been initiated, each party must retain all documents
relevant to the issues in the proceedings. Discovery affidavits are very impor-
tant documents in any trial and the party requesting discovery is entitled to
full and complete discovery on oath. Save with the permission of a judge,
however, the Rules of Court do not make provision for discovery until after
close of pleadings when each party is usually required to provide discovery of
relevant documents and tape recordings to the other party and allow the
other party to inspect and take copies of any non-privileged documents that
are in the party’s possession or control. The party must also describe any
documents that were previously in the party’s possession and explain why
these documents are no longer in the party’s possession. If a relevant docu-
ment no longer exists or cannot be found, details must be given of when it
was last in the party’s possession or control and what has happened to it, in-
cluding if it has been destroyed. If the party objects to produce certain
documents, he or she must state upon what grounds the objection is made.
Statements of witnesses taken for purposes of the proceedings, communica-
tions between attorney and client or between attorney and advocate, plead-
ings, affidavits and notices in the action must be omitted from the schedules.
You have a duty to explain to your client his or her obligations as part of the
process of discovery and to ensure that the court is not misled by the con-
tents of any affidavit or documents which you file with the court.
Retention of potentially discoverable documents

If a party fails to discover a document or tape recording which the other
party thinks may be relevant to the proceedings, that party may give notice
to the former party requiring him or her to make the document or tape re-
cording available for inspection. If the first party still fails to discover, the
108
court may, on application, strike out the claim or defence. A document or

tape recording not disclosed as aforesaid may not, save, with the leave of the
court granted on such terms as to it may seem fit, be used for any purpose at
the trial by the party who was obliged but failed to disclose it, provided that
any other party may use such document or tape recording. Any party to any
proceeding may at any time before the hearing thereof deliver a notice as
near as may be in accordance with Form 15 of the First Schedule of the Uni-
form Rules of Court to any other party in whose pleadings or affidavits refer-
ence is made to any document or tape recording to produce such document
or tape recording for his or her inspection and to permit him or her to make a
copy or transcription thereof. Any party failing to comply with such notice
shall not, save with the leave of the court, use such document or tape re-
cording in such proceeding provided that any other party may use such
document or tape recording.
The range of discoverable documents can vary widely and depends on the
nature of the issues in the proceeding. If the pleadings are amended or other
parties are added during the course of the proceeding, your client’s discovery
obligations may change. Accordingly, your client’s discovery obligations are
largely outside his or her control and inherently unpredictable. It is prudent
for any client who is a party to litigation to ensure that all documents which
may be potentially relevant be retained and all automatic document destruc-
tion processes be suspended pending the documents being reviewed and po-
tentially relevant documents being extracted for the purposes of the liti-
gation.
Duplicate documents
Generally, a duplicate document need not be discovered unless the existence
of the duplicate is relevant to the proceedings or there are relevant differ-
ences between the original and the duplicate. Where duplicate documents
need not be discovered, in theory they can be destroyed. However, if litiga-
tion is underway, it is prudent not to do so until the litigation has been finally
concluded.
Consequences of destruction of relevant documents
The destruction of documents after proceedings have been commenced,
where they are relevant to those proceedings, may have a number of pos-
sible consequences.
Attempt to defeat the course of justice
The destruction of documents may amount to an attempt to defeat the
course of justice, which is a criminal offence. This offence consists of
unlawfully doing an act which is intended to defeat or obstruct and which
does defeat or obstruct the due administration of justice: R v Bekker 1956 (2)
SA 279 (A). Intention is therefore an element of the crime of defeating the
course of justice. For the offence to be made out, it is not necessary to show
109
that the course of justice has actually been obstructed or defeated. Rather, it
is the intention of the conduct which is decisive. The requisite intention is
present where there is a risk, or real possibility, of injustice.
“The course of justice may be defeated in many ways and persons
who seek to bring this about may know or may be ignorant of many of
the factors which may affect the eventual result. But the common, es-
sential elements of the offence do not include any particular form of
knowledge, important though this may be in deciding in any particular
case whether the intention to defeat the course of justice was pre-
sent” (R v Bekker 1956 (2) SA 279 (A) per Schreiner JA).
This offence is usually punishable by imprisonment.
Contempt of court
The destruction of documents may also amount to a contempt of court.
There are two forms of contempt, criminal and civil. Criminal contempt,
which is punishable at common law, may be constituted by wilful defiance,
disobedience or insult on the part of the accused. Unless there is wilful insult
or interruption of proceedings or other conduct of that nature amounting to
misbehaviour, there has been no contempt in the face of the court (in facie
curiae): S v Mkize 1962 (2) SA 457 (N) at 460. Civil contempt, on the other
hand, relates to non-compliance with court orders, subpoenas or under-
takings given to the court. If a party who is ordered to produce certain docu-
ments destroys them, he or she may be guilty of a civil contempt of court.
Breach of court rules
The destruction of documents may amount to a breach of court rules relating
to, for example, discovery obligations. Sanctions for breach of the rules by a
party can include setting aside a statement of claim (if the party is the plain-
tiff) or a defence (if the party is a defendant) and the payment of the other
party’s costs.
Adverse inferences
Even if the destruction of documents does not amount to an offence, con-
tempt or breach of the court rules, it may lead to a trial judge drawing ad-
verse inferences against the party which destroys them. This may have the
effect of prejudicing that party’s prospects of success in the litigation. An op-
ponent may also seek to discredit witnesses in cross-examination and make
submissions urging the drawing of adverse inferences. Generally, where no
legitimate reason for destruction is given by a party, the court is likely to infer
that the documents would have harmed the party’s case: The Ophelia [1916]
2 AC 206 at 299–300; CE Heath Underwriting & Insurance (Australia) Pty Ltd v
Daraway Constructions Pty Ltd (unreported, Vic Sup Ct, Batt J, 3 August 1995).
Practitioners have a positive duty to ensure clients are aware of their obli-
gations in legal proceedings to search for, disclose and preserve documents
relevant to those proceedings: Myers v Elman [1940] AC 282 at 293, 294, 304,
322, 338.
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Orders relating to documents relevant to potential

litigation – Anton Piller orders
[14.30] In South Africa there is a remedy available to prevent document destruction
where there is no actual litigation underway. The so-called Anton Piller order
derives its name from the English case of Anton Piller KG v Manufacturing
Processes Ltd (176 RPC 719 (CA) (1976) Ch 55; [1976] 1 All ER 779). Van Zyl J
in Rath v Rees 2007 (1) SA 99 (C) describes it as follows:
“It is a Draconian form of relief in that it authorises access to the re-
spondent’s premises for purposes of searching for and seizing docu-
ments and material relevant to a proposed action before an action has
been instituted against the respondent. What makes it even more
radical is that the application for such order is brought ex parte, with-
out notice to the respondent, while the hearing is frequently in cam-
era, with a view to avoiding any form of publicity which might arise
should the application be brought in open court. The reason for this is,
usually, the applicant’s fear that, should the respondent receive ad-
vance notice of the application, the documents or material, which the
applicant seeks to attach, may be destroyed, removed or concealed at
the instance of the respondent . . . It is a drastic form of relief, which
should be granted only under exceptional circumstances. In principle,
it constitutes a form of anticipatory discovery, although it is not pri-
marily a discovery order.”
In Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam,
Maphanga v Officer Commanding, South African Police Murder and Robberty
Unit, Pietermaritzburg, 1995 (4) SA 1 (A) the Appellate Division per Corbett CJ
at 15 G–I approved the following requirements on the basis that an applicant,
seeking an Anton Piller order, ex parte and in camera, was required to
establish prima facie:
“1. that he, the applicant, has a cause of action against the respon-
dent which he intends to pursue;
2. that the respondent has in his possession specific (and specified)
documents or things which constitute vital evidence in substan-
tiation of the applicant’s cause of action (but in respect of which
the applicant cannot claim a real or personal right); and
3. that there is a real and well-founded apprehension that this evi-
dence may be hidden or destroyed or in some manner be spir-
ited away by the time the case comes to trial or to the stage of
discovery.”
In exercising its discretion to grant an Anton Piller order, the court will also
consider whether the terms of the order sought are no more onerous or far-
reaching than is necessary to protect the interests of the applicant. Wilful-
ness or mala fides need not be present to result in the discharge of a rule nisi
where the original order was too widely framed. In these circumstances it is
for the applicant to establish cogent reasons as to why the order should not
be discharged. Where the court considers an Anton Piller-type order in terms
111
of Rule 6(12)(c) of the Uniform Rules of Court and it appears that the applica-
tion is an abuse of the process of the court, the court may in its discretion or-
der the applicant to pay costs on an attorney and own client scale: Audio
Vehicle Systems v Whitfield 2007 (1) SA 434 (C).
In Rath v Rees (above) Van Zyl J acknowledged the argument for the re-
spondent, that an Anton Piller order may be open to a constitutional chal-
lenge in that it clearly infringes upon a respondent’s constitutionally
protected right of privacy (and perhaps also his right to human dignity and
property). Section 14 of the Constitution provides that all persons have the
right to privacy, which includes the right not to have:
“(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.
This right may be limited, and hence infringed upon, only if, in terms of
s 36(1) of the Constitution, the limitation is ‘reasonable and justifiable
in an open and democratic society based on human dignity, equality
and freedom, taking into account all relevant factors’.”
For a full discussion see Magajane v Chairperson, North West Gambling
Board 2006 (5) SA 250 (CC).
Consequences of destruction of relevant documents
If documents are destroyed in circumstances amounting to an attempt to defeat
the course of justice or a criminal contempt of court, the sanctions can include a
fine, imprisonment, the striking out of your client’s pleading, an adverse civil
judgment against your client or an order to pay the other party’s costs.
Document management: conclusion

[14.35] The courts, politicians, legal regulators, the media and the community gener-
ally have an acute sensitivity to the improper destruction of documents rele-
vant to actual or prospective proceedings. Unethical behaviour by lawyers in
this area is likely to be dealt with harshly.
In light of this, you must take special care when giving advice to clients
about document destruction and in how you personally deal with client
documents. Be independent (see Chapter 7) and conservative.
Advise your client to suspend any automatic document destruction process-
es when there is a real prospect that he or she will receive a formal notice or
be involved in litigation. Documents which are potentially relevant to the no-
tice or litigation should be retained until the notice or litigation eventuates
and is complied with or is finalised, or until it becomes clear that no notice
will be served or your client will not be involved in litigation. Where it is not
clear whether a document is relevant to the issues in actual litigation against
your client or is caught by a notice that has been served on your client, advise
your client not to destroy it. There is little downside in retaining a document.
There is, however, a significant potential downside in destroying a document.
112
Chapter 15
Acting for friends or relatives
“There is always something about your success that displeases even your
best friends.”
Oscar Wilde
Risks of acting for friends or relatives

[15.05] It has often been said that your worst clients will be your friends and rela-
tives. This is not because there is anything improper or unethical in acting for
friends or relatives or because your friends or relatives are mean and seek to
take advantage of you. Rather, it is the extra familiarity between you, over and
above the normal practitioner-client relationship, that may cause problems.
From your point of view, there is a risk that you may relax some of your
discipline because you may think that nothing will go wrong in the transac-
tion or, even if it did, your friends or relatives would not sue you, especially if
you have agreed to take on the matter gratuitously. Taking on a matter gra-
tuitously may lead to the further risk that you may give the matter less prior-
ity than the files of your paying clients.
Obtaining instructions from friends or relatives

[15.10] When you act for friends or relatives, there may be difficulty in obtaining
instructions. For paying clients, you normally receive instructions at personal
interviews, by letter or by telephone and you take detailed notes of all con-
versations: see Chapter 2. In the case of friends or relatives, instructions may
be given at the dinner table, mingled with general social conversation. In
such a situation there is the danger either that instructions are vague and
general or that they are not precisely understood or recorded by you.
There is even the risk that you may be tempted to dispense with instruc-
tions altogether and instead act upon what you think your instructions would
be if you asked your client. Assumed or implied instructions are very danger-
ous indeed.
From the clients’ point of view, it is often the case where a friend or rela-
tive acts for them, that they give instructions as general as “Do what you
113
think is best without bothering me about the details”. In effect, they consider
that they are giving you a power of attorney to do everything you think fit on
their behalf. If you do what you think best for them, but the result is unsatis-
factory, they generally feel aggrieved and think that you have not done all
that you could for them. They may feel that you have adopted a different
standard of care in relation to their matter compared to your other clients.
They might be right!
On the other hand, some friends and relatives might be reluctant to de-
mand from you the service to which they would be entitled if a “normal”
practitioner-client relationship existed. It is very difficult to make demands
upon someone who is doing you a favour or handling a matter for free or at a
reduced fee. It takes courage indeed to demand that your next door
neighbour rise at 6 am to keep a promise to help you fix your roof.
Cutting corners
[15.15] Friends and relatives sometimes have the confidence to tell you to finalise a
matter quickly and to cut as many corners as possible. Accordingly, you may
be tempted to cut a corner which you think will not in any way prejudice your
client. In my experience, cutting legal corners often leads to litigious collisions.
Out of your depth

[15.20] If you have recently started your own practice as a legal practitioner, you
may find that friends and relatives will retain you so that they can help you
establish yourself. Any newcomer to private practice needs this sort of sup-
port, but you should take care to ensure that you are not enticed into hand-
ling matters outside the scope of your competence. It is preferable for you to
point out to your friends and relatives that you are not competent to handle
the matter and to refer them to another practitioner who you know is com-
petent in the area. The alternative may be to take on the matter and make a
mess of it to the detriment of yourself, your clients and your relationship
with them.
Friends and relatives can certainly become dissatisfied ex-clients and ex-
friends if, through your incompetence, you have increased their costs or have
mishandled their legal affairs. They may even sue you!
Keep in mind that a friendly “Sorry I cannot help” from you is better than
an unfriendly “I am suing you” from a relative or (former) friend.
Discounts for friends or relatives

[15.25] Friends and relatives have the familiarity to ask for huge discounts whenever
you act for them. They are sometimes the first to complain about the size of
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Chapter 15: Acting for friends or relatives
the bill after their matter is completed. Even after you have established your-
self in practice, they may not be able to get out of their heads the notion that
they are doing you a favour by referring their legal work to you.
Conflict of interest
[15.30] Acting for friends and relatives may also pose conflict of interest problems:
see Chapter 10. For example, you should not buy a property from friends or
relatives or borrow money from them for the purpose of financing your prac-
tice. In these situations, your friends or relatives should be told to obtain in-
dependent legal advice.
Breach of confidence
[15.35] There is a risk that your obligation to maintain the confidentiality of commu-
nications between you and your clients (see Chapter 8) may be neglected
when your clients are friends or relatives. Communications from clients often
provide items of juicy gossip. Where the client is a friend or relative, you
must resist the temptation to discuss their affairs with other friends or rela-
tives. For example, where a married uncle asks you to establish a trust for the
benefit of a lover, if you tell a family member, the news will probably reach
your aunt in no time.
If you succumb to the temptation of divulging confidential information,
you may not only lose a friend and a client, but might also face a complaint of
unprofessional conduct.
Loss of objectivity
[15.40] When acting for someone who is close to you, another difficulty that some-
times arises is that you may so identify yourself with that person’s problems
and interests that you lose your professional objectivity and independence:
see Chapter 7. This would be detrimental to both yourself and your client.
Often in a practitioner-client relationship, it is the practitioner who is in a
dominant position in relation to the client. This is because the practitioner
has legal knowledge upon which the client is reliant. In the context of a prac-
titioner acting for a friend or relative, however, the client may be in a domi-
nant emotional position. Care must be taken in such situations to ensure that
your professional judgement is not overborne by the relationship you have
with your client.
Do not second guess another practitioner’s advice

[15.45] It is often in the best interests of your friends and relatives, as well as your-
self, that they be represented by someone else. If they are so represented,
115
although there would be no objection to you talking to them generally about

their legal problem, you should avoid giving them advice. There is nothing
more annoying than meddling professional relatives.
Where you refer a friend or relative to another practitioner, you should
never act in a way which might interfere with the ability of that practitioner
to fulfil his or her obligations to the client.
Acting for yourself

[15.50] As a practitioner, you are entitled to represent yourself like any other mem-
ber of the public. However, along the lines of the dangers of acting for friends
and relatives, it is inadvisable ever to act for yourself except in very minor
matters.
There are certain risks if you choose to represent yourself. You have a duty
to the court at all times which overrides your duty to your client: see Chap-
ter 6. Accordingly, if you decide to represent yourself, make sure you do not
ignore your fundamental duty to the court.
If you are considering acting for yourself, remember the old proverb, “One
who is his [or her] own lawyer has a fool for a client!”
Friends and relatives: conclusion

[15.55] Acting for a friend or relative has the potential to cause grief for both you and
your client. Among the key risks are conflicts of interest, breach of confi-
dence and loss of objectivity. If problems arise, it is not only a professional re-
lationship that may be damaged, but also your personal relationship. Because
of these risks, you should take great care before agreeing to act for a friend
or relative.
116
Chapter 16
Sexual relations with clients
“Parties to a cause of divorce may not litigate by day and copulate by
night.”
Holt v Holt (1935) 77 Fed (2nd) 538 at 540
Sex with clients

[16.05] With managing partners of law firms urging their legal practitioners to “get
close to your clients” and legal practice shows on television depicting lawyers
jumping into bed with every second client, a new practitioner may be for-
given for thinking that sex with clients is rampant in the legal profession.
While there is no doubt that some lawyers have sexual relationships with
clients,1 accusations of sexual impropriety or harassment by clients against
lawyers are not commonplace. Doctors, psychologists, priests and teachers
are far more likely to be accused of sexual impropriety from those in their
care. Nevertheless, there are enough complaints against lawyers to indicate
that from time to time in the practitioner-client relationship there is either
mutual physical attraction between practitioner and client or unwanted ad-
vances made by a practitioner towards a client.
Sexual relations versus Sexual harassment

[16.10] There are two separate situations to consider in the context of practitioner-
client sexual relationships. The first is an act of sexual intercourse between
two consenting adults, one a practitioner, the other a client. The second is
one of sexual harassment of the client by the practitioner.
In the first instance, the relevant Law Society should mind its own business,
unless it can be demonstrated that the personal relationship between the
practitioner and the client has resulted in a conflict of interest or an impair-
ment of the practitioner’s competence to discharge his or her professional
________________________
1 Studies in the United States in the early 1990s indicate that between 6% and 18% of lawyers admit to having had
sex with one or more clients and that 39% of female and 8% of male lawyers reported unwanted sexual advances
or other sexual harassment by their clients: see L Akenson, “Solicitor/Client Sexual Relations – An Abuse of Power”
(1995) 69(5) Law Institute Journal 450.
117
obligations to the client. This observation is, of course, equally applicable

whether the relationship is heterosexual or homosexual.
The position is totally different in the case of sexual harassment. Over the
years, Law Societies have received a number of complaints from female cli-
ents about male legal practitioners. Such behaviour is intolerable in any con-
text, whether professional relationships are involved or not. The conduct
presents a very difficult situation from the point of view of investigation. Un-
fortunately, in some cases, the best that a Law Society can do, in the absence
of independent evidence, is to counsel the practitioner and hope that this will
prevent repetition of the conduct.2
A sexual relationship between a practitioner and a client is fraught with
risks. It may, in some situations, amount to an abuse of the practitioner’s po-
sition of power, particularly where the client is in a state of emotional dis-
tress and is reliant on the practitioner’s advice and support. Additionally,
there is a possibility that a sexual relationship between a practitioner and cli-
ent will lead to a lack of objectivity and independence on the part of the
practitioner and a possible lapse in the practitioner’s duty to the client.3 To
adapt what Kirby P said in Stewart v Secretary, Department of Health (unre-
ported, NSW CA, 6 August 1986 at 20) about a doctor-patient sexual relation-
ship to a lawyer-client sexual relationship, it is unacceptable to deprive the
client of the advantage of dispassionate advice because the relationship has
become charged with emotion which prevents the practitioner from offering
objective professional judgement and skill, or the client from receiving it, to
the client’s best advantage.
The best way to prevent your professional judgement from becoming im-
paired by a sexual relationship with your client is to avoid commencing such a
relationship. If you and a client develop a mutual physical attraction, it is
preferable to discontinue the professional relationship before commencing a
sexual relationship.
Regulation of practitioner-client sexual relations

[16.15] Sexual relationships between practitioners and their clients are not specifi-
cally regulated under the professional conduct and practice rules of the
South African Law Societies and the Australian Law Societies.4 However, they
are indirectly regulated by other aspects of a practitioner’s professional obli-
gations. In particular, a practitioner’s duty to avoid a conflict between the
duty to the client and personal interest or gain may be breached where there
________________________
2 Equal opportunity legislation makes sexual harassment unlawful in relation to the performance or provision of
services in some circumstances.
3 See further GE Dal Pont, Lawyers’ Professional Responsibility in Australia and New Zealand (2nd ed, LBC Infor-
mation Services, Sydney, 2001), pp 175–176; see also Chapter 7.
4 L Crowley-Cyr and C Caple, “Sex with Clients and the Ethical Lawyer” (2001) 8 James Cook University Law Review 67
at 68.
118
Chapter 16: Sexual relations with clients
is a concurrent professional and sexual relationship, particularly in family law

matters, where there is potential for the client’s personal welfare and legal
rights to be adversely affected.5 Similarly, a practitioner’s fiduciary duties to
his or her client mean that a sexual relationship between them is, at the very
least, imprudent.6
Effects on client
A sexual relationship with a client may prejudice the client both in terms of
poor management of his or her matter and personal harm.7 In terms of case
management, the practitioner’s professional judgement may be clouded and
there is the risk that some communications with the client may not be privi-
leged because they may be held to have occurred in the course of the per-
sonal rather than the professional relationship. In addition, a sexual
relationship between practitioner and client can lead to embarrassment,
shame and humiliation for the client, particularly if the relationship is short-
lived.
Effects on lawyer
Not only can a sexual relationship lead to disciplinary action against the prac-
titioner, but it may also found an action by a (former) client who has suffered
loss. In Rhode Island in the US, a practitioner was found liable for legal mal-
practice and ordered to pay his former client US$225 000 after they engaged
in a sexual relationship which the client described as “coercive”.8
Effects on profession
Sexual relationships between practitioners and clients have the potential to
decrease the standing of the legal profession as a whole and to harm the ad-
ministration of justice. In the United States, courts have found that having
sex with a client in a prison meeting room, oral sex with a client in a Family
Court conference room, sex with a client in a vacant military court room, sex
with a client who believed that legal fees would be reduced due to the sexual
relationship and an affair with a client that resulted in the client’s spouse ob-
taining a divorce on the ground of adultery were prejudicial to the admini-
stration of justice.9
Banning practitioner-client sexual relations

As a result of these adverse consequences, several commentators have
argued that the most effective way to prevent harm to clients is to place a
________________________
5 L Akenson, “Solicitor/Client Sexual Relations – An Abuse of Power” (1995) 69(5) Law Institute Journal at 450.
6 L Crowley-Cyr and C Caple, “Sex with Clients and the Ethical Lawyer” (2001) 8 James Cook University Law Review at
67.
7 L Akenson, “Solicitor/Client Sexual Relations – An Abuse of Power” (1995) 69(5) Law Institute Journal 450 at 451.
8 AL Presser, “Lawyer Liable for Coerced Sex” (February 1993) ABA Journal at 24.
9 A Awad, “Attorney-Client Sexual Relations” (1998) 22 Journal of the Legal Profession 131 at 178–179.
119
complete ban on practitioner-client sexual relations, subject to some guide-

lines.10 In fact, this is the approach of a number of States in the US.11 Such a
ban would recognise that it is difficult for a client to truly consent to a sexual
relationship with a lawyer due to the power imbalance between the two
parties.12
The benefit of such a ban would be that if a practitioner wished to com-
mence a sexual relationship with a client, the course of action would be clear:
he or she would have to cease acting for the client or wait until the retainer is
completed before pursuing such a relationship.
Lamb’s case
[16.20] The decision of the High Court of Australia in Bar Association of Queensland v
Lamb [1972] ALR 285 involved sexual relations between a solicitor and a client.
Mr Lamb, who was a Queensland solicitor, applied for admission to the
Queensland Bar. In his application for admission to the Bar, Mr Lamb had
admitted that, while a solicitor, he had had extra-marital intercourse with his
client in a matrimonial matter after the decree absolute but before questions
of custody and maintenance had been determined. It was held that although
the conduct complained of warranted the criticism that it was “unprofes-
sional” and “reprehensible”, it nevertheless fell short of amounting to such
unprofessional conduct as would render Mr Lamb unfit to remain a solicitor
or to become a barrister.
The matter had come before the High Court by way of an application by
the Bar Association of Queensland for special leave to appeal against the de-
cision of the Full Court of the Supreme Court of Queensland to admit Mr
Lamb as a barrister: Stevens v Lamb (unreported, Qld Sup Ct, Full Ct, 15 Oc-
tober 1971). In the Full Court Wanstall ACJ had said, “The critical question is
whether the adulterous and unprofessional conduct, in the circumstance in
which it occurred, should disqualify [Mr Lamb] from admission to the Bar.”
His Honour (with whom Hoare J agreed) then gave reasons why he answered
the question in the negative. In particular, his Honour identified the following
important circumstances:
“the [wife] was a mature woman of 36 years, a successful business-
woman; that [Mr Lamb] did not seduce her; that the adulterous asso-
ciation in no way caused the breakdown of the marriage; that the
breakdown was caused by the husband’s cruelty . . . that no adultery
occurred during the marriage.”
________________________
10 L Akenson, “Solicitor/Client Sexual Relations – An Abuse of Power” (1995) 69(5) Law Institute Journal 450 at 453; L
Crowley-Cyr and C Caple, “Sex with Clients and the Ethical Lawyer” (2001) 8 James Cook University Law Review at
67; S Ross, “Sex, Lawyers and Ethics” (1998) 72(10) Law Institute Journal at 38.
11 For a discussion of the position in the different States of the US, see A Awad, “Attorney-Client Sexual Relations”
(1998) 22 Journal of the Legal Profession at 131.
12 A Awad, “Attorney-Client Sexual Relations” (1998) 22 Journal of the Legal Profession at 131.
120
In the High Court, Windeyer J said that although he considered the conduct
complained of was “reprehensible”, it was not sufficient to justify the dis-
qualification of Mr Lamb from membership of the legal profession. Thus, al-
though the members of the High Court were clearly unimpressed by Mr
Lamb’s behaviour, they were not prepared to put him out of business.
The reason why the Bar Association of Queensland took the matter to the
High Court was probably that, by involving himself in a sexual relationship
with his client whilst the questions of custody and maintenance remained
outstanding, Mr Lamb created a situation of potential detriment to his client.
The High Court added that the application of the Bar Association of Queens-
land was “understandably and properly made”.
Basic guidelines for proper behaviour

[16.25] Apart from Lamb’s case, it is difficult to find any real authority in Australia on
the propriety or otherwise of a sexual relationship between a practitioner
and a client. It is really a question of degree and using common sense.
It would be unprofessional conduct for a practitioner acting for a dis-
tressed and confused client in a matrimonial matter to take advantage of the
client’s state of mind and seduce him or her.
Similarly, if a client offers sex as part payment for legal services rendered,
it would be improper for the practitioner to accept.
On the other hand, if a practitioner is acting for a client in a commercial
matter and they become friends and eventually have sexual intercourse, it is
unlikely that the practitioner would be held to have acted improperly.
Although there is no blanket commandment “Thou shall not have sexual
intercourse with clients”, you should always be careful when a professional
relationship with a client starts to become more intimate.
Law Institute of Victoria examples

[16.30] Some of the practical situations the Law Institute of Victoria has had to deal
with have been almost bizarre.
For example, in 1976, a solicitor, who refused to give his name, telephoned
and asked, “Is it OK to have sexual intercourse with my client?” The caller
was obviously in a state of barely contained ardour. Clearly it was a situation
which could not await a ruling in writing from the Ethics Committee. He was
told that it all depended on the nature of the professional relationship. Be-
fore the Institute had a chance to finish telling him that he was not entitled to
take advantage of his client’s emotional dependence upon him, particularly in
a matrimonial case, there came an agitated interjection, “But I’m a convey-
ancer!”
121
The Cape Law Society’s experience

[16.35] The unfortunate situation that came before the Cape Law Society some years
ago, involved the late Mr G Kellerman who acted for a client in a matrimonial
matter. The client alleged that Mr Kellerman had taken advantage of her
state of mind by seducing her and in the process he failed to protect her in-
terests.
The Disciplinary Committee of the Council resolved that it had no jurisdic-
tion to intervene at that stage and recommended to the complainant to avail
herself of her civil remedies by suing Mr Kellerman for professional negli-
gence. As the client did not have the funds to pursue this course of action,
she took the law into her own hands, bought a gun and shot Mr Kellerman
who died as a result of the injuries sustained. Shortly before her trial on a
charge of murder the client herself then committed suicide.
After this incident a resolution was passed by the Section on General Prac-
tice of the International Bar Association at the Edinburgh Conference in 1995
that a professional rule should be introduced by Bar Associations and Law So-
cieties around the world prohibiting sexual relationships between a matri-
monial lawyer and a current client. That resolution was subsequently
supported by the Legal Services Ombudsman for England and Wales.
Judge-practitioner relations
[16.40] Judges and legal practitioners have been known to become intimate. Where
a solicitor has an affair with the judge hearing his or her client’s case and the
relationship is not disclosed to the other party, it is inevitable that accusa-
tions of apprehended bias will be made once the relationship becomes
known.
In the case of In the Marriage of Kennedy (1995) FLC 92-605 the male so-
licitor for the wife in a matrimonial property proceeding had “a serious and
close personal relationship” with the female judge hearing the proceeding.
Neither the solicitor nor the judge disclosed the relationship to the husband
and his solicitor. After the hearing concluded, the husband found out about
the relationship and, being dissatisfied with the decision which the judge
subsequently delivered, he appealed on the principal ground that the deci-
sion was “unsafe and should be set aside as it raises a reasonable apprehen-
sion of bias”.
The Full Court of the Family Court upheld this ground of appeal. The Full
Court held that the wife’s solicitor had a duty to disclose the relationship to
the husband’s solicitor and the judge had a separate duty to disclose the rela-
tionship to the parties and to disqualify herself from hearing the proceeding.
The Full Court said that the relationship “has raised a question as to the in-
tegrity of the judicial process” and that a combination of the failure to dis-
close the relationship “and the fact that there is a reasonable apprehension
122
that her Honour might not have brought an impartial and unprejudiced mind
to the decision making process, has caused a miscarriage of justice” (at
82,037–82,038).
An appeal against conviction has also succeeded where defence counsel
failed to tell the accused of his recent sexual relationship with the Crown
prosecutor: R v Szabo [2001] 2 Qd R 214.
Sexual relations with clients: conclusion

[16.45] A sexual relationship with a client is fraught with so many difficulties that
proposals are made from time to time for a total ban on such relationships.
Unlike some States in the US, such proposals have not been adopted in South
Africa.
In view of the potential adverse consequences for both the client and the
practitioner, the prudent course of action for lawyers is to avoid concurrent
professional and intimate relations with clients.
123
Part 2
Relationships with other practitioners
Chapter 17
Duty to fellow practitioners
“Two attorneys went into a diner and ordered two drinks. Then they pro-
duced sandwiches from their briefcases and started to eat. The owner be-
came quite concerned and marched over and told them, ‘You can’t eat
your own sandwiches in here!’ The attorneys looked at each other,
shrugged their shoulders, and then exchanged sandwiches.”
Quoted in “Lawyers: Jokes, Quotes, and Anecdotes 2003 Calendar”,
Duty to your colleagues

[17.05] Apart from your duties to the court and to your client, you also owe a duty to
your fellow practitioners. This duty involves conducting yourself in an honest,
reasonable and reliable manner towards your colleagues. It is of the essence
of the legal profession that its members must be able to rely on each other’s
word, whether that word is given by way of an oral promise, a letter or a
formal undertaking.1
In all your dealings with other practitioners, ensure the tradition of co-
operation and courtesy between members of the profession is maintained so
far as is possible without prejudicing the interests of your client. The main-
tenance of co-operation and mutual assistance within the profession not only
makes the practice of law more enjoyable, but also strengthens the profes-
sion and the administration of justice generally.
Advantages of good practitioner relationships

[17.10] Assisting an inexperienced colleague with a problem in an area in which you
are experienced will in all probability be reciprocated one day when you have
a problem in which the colleague may be an expert.
Helping a colleague may also be to your financial advantage in the form of
referral of work to you if the colleague cannot act for any reason, such as the
existence of a conflict of interest.
________________________
1 KH Gifford, Legal Profession Law and Practice in Victoria (Law Book Co. Ltd, Sydney, 1980) p 375; Lewis, Legal
Ethics (Juta & Co Ltd, 1982) p 162; 1981 DR 160; 1982 DR 303.
127
It is also in the interests of your client that you have a good rapport with
the practitioner acting for another party because this may assist you to
achieve a more successful outcome for your client. No lawyer likes to deal
with a rude lawyer on the other side.
If you disregard the tradition of co-operation and make life difficult for
your colleagues, you will probably find that they will respond in a similar
fashion. The result will be not only unpleasantness within the profession, but
also a decline in its public standing.
128
Chapter 18
Conducting negotiations
“Why may not that be the skull of a lawyer? Where be his quiddits now,
his quillets, his cases, his tenures, and his tricks?”
Shakespeare, Hamlet (5.1.104)
Negotiation: introduction
[18.05] Much of your professional time will be taken up in discussing your clients’
matters with practitioners acting for other parties. The nature of these dis-
cussions will be determined largely by the type of matter being discussed. For
example, discussions relating to a conveyancing matter are normally routine.
On the other hand, discussions relating to litigious matters may range from
friendly chats on the progress of an action, to lively arguments on points of
law or fact.
As most actions are settled out of court, discussions with other prac-
titioners in a litigious matter will commonly involve negotiations to settle the
matter. In fact, negotiating settlements for your clients and advising your cli-
ents on settling matters is part of the everyday work of practitioners. Your
client will expect, and you have a duty to ensure, that any settlement that is
reached is in the best interests of your client. Similarly, when negotiating the
legal aspects of a commercial transaction your duty is to achieve the best
outcome for your client.
Negotiation styles
[18.10] While academic literature is replete with various theories for effective nego-
tiation, such as, for example, co-operative bargaining and competitive bar-
gaining, your own negotiation style will become clearer as your career pro-
gresses. No one method of negotiation is more appropriate than another.
Your ultimate goal always remains the same: to secure a favourable outcome
for your client. The different tactics and methods that you employ will de-
pend on the nature of the matter, your client’s instructions and desired ob-
jective and your opponent’s negotiating style.
Negotiations with other practitioners require skill and vigilance. One slip
and you could prejudice the interests of your client. While law schools and
129
additional training courses now offer courses in negotiation skills, these can
never replace the practical experience gained from negotiating actual mat-
ters in the course of legal practice.
Conceal your ignorance or inexperience

[18.15] When conducting negotiations with a practitioner acting for your client’s
opponent, never be intimidated if that practitioner is more experienced than
you. If you have just started to practise law, do not volunteer this information
to the practitioner on the other side because that practitioner might try to
take advantage of your inexperience.
Even if the other practitioner knows that you are inexperienced, try to give
the impression that you know what you are talking about. Some practitioners
think that if you are not a partner of your firm, you must be stupid.
If you are in doubt as to how to respond to a question or proposition put to
you by an opponent, say that you will have to consider the matter or obtain
instructions. Remain calm and do not give your opponent the impression that
you are flustered by his or her comments. Then seek assistance from a more
experienced colleague. Never admit that you do not know much about the
file because it is not yours or that you are unfamiliar with the area of law in-
volved in the matter. This is particularly important when you are “baby-
sitting” a file for a colleague at your firm who is on leave. Such statements
can only be detrimental to your client.
Above all, during negotiations never be stampeded into actions or state-
ments which exceed your instructions or which involve disclosure of informa-
tion to which your opponent is not entitled.
Don’t say too much

[18.20] When negotiating, do not say more than you have to. You must be careful
not to provide a voluntary set of answers to interrogatories! Prepare before
each communication with your opponent. Ask yourself: what do I want to
achieve from this conversation or communication? The purpose of a commu-
nication is normally to threaten action, to seek a concession or to discuss a
solution. The communication is made on behalf of your client with a view to
advancing your client’s case and protecting his or her interests. Do not say
anything that would have the opposite effect of prejudicing your client’s
case.
If your opponent is being nosey, e.g. by asking what witnesses you will be
calling, politely tell your opponent to mind his or her own business.
If you are negotiating a settlement with an opponent over the telephone
and you offer R100 000 all in, how should you respond if your opponent asks
you whether that is the maximum that you have to offer, if you have
130
Chapter 18: Conducting negotiations
instructions to go to R150 000, if necessary? We are of the view that in such a

situation you should tell your opponent that your instructions are none of his
or her business and that a response is required to the offer of R100 000 that
has been made.
Your overriding duty in such a situation is to protect your client’s interests.
When a client gives you a maximum settlement figure, it can be inferred that
it is part of your instructions to settle for less if this is possible. Apart from
possibly breaching your obligation to maintain professional confidentiality,
you may prejudice a favourable settlement by disclosing all your cards. As
Gleeson CJ said in Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR
458 at 475:
“Where parties are dealing at arms’ length in a commercial situation in
which they have conflicting interests it will often be the case that one
party will be aware of information which, if known to the other, would
or might cause the other party to take a different negotiating stance.
This does not in itself impose any obligation on the first party to bring
the information to the attention of the other party, and failure to do so
would not, without more, ordinarily be regarded as dishonesty or even
sharp practice.”
Nevertheless, you must always be careful during negotiations not to engage
in conduct that is misleading or deceptive or unethical in any respect.
Remember to discuss your proposed negotiation tactics with your client
before launching into negotiations.
Off the record

[18.25] Beware of invitations from your opponent to speak “off the record” without
first clarifying precisely what is meant by this expression: see [46.40].
Bluff
[18.30] Through experience you will come to know when someone is bluffing. You
will also learn of the reputations that particular practitioners have. Some
practitioners have a reputation for always telling the truth when they say
anything positive. If Jo Bloggs tells you that there is an independent witness
who is prepared to say that your driver was travelling at 150 kilometres per
hour in a built-up area, then pay heed if Bloggs has such a reputation. If, on
the other hand, Bloggs has a reputation for dishonesty, then pay no heed at
all. Let Bloggs produce the witness and let the witness be tested by cross-
examination.
Know the facts

[18.35] Before embarking on negotiations with your opponent, learn the facts of
your client’s case or refresh your memory by reviewing the file if it has been
131
some time since you looked at proofs of evidence or other factual material.
This will put you at a great advantage against an opponent who is fuzzy about
the facts and it will enable you to cope with unexpected problems which may
arise. You will often find in practice that the more prepared a practitioner is,
the better the outcome that can be negotiated on the client’s behalf.
Concessions
[18.40] Your first responsibility is to your client. While it is sometimes in order for
you to grant concessions or indulgences to an opponent where this is within
the general scope of authority given to you by your client, you must always
ensure that your client’s interests will not be prejudiced in any way. You
should never grant a concession if this will give an unwarranted advantage to
your client’s opponent. For example, do not agree to an adjournment if this
might result in one of your major witnesses becoming unavailable. You must
always be wary of opponents who continually ask for concessions and indul-
gences as a delaying tactic.
If you are acting for a plaintiff, be wary of practitioners acting for a defend-
ant who protract unduly the period of negotiations, without any genuine in-
tention to settle the matter. Their purpose may be to delay the matter
coming to court for as long as possible.
Client’s instructions
Your instructions to act generally involve discretion to assume responsibility
for the day-to-day running of the case. However, from time to time, signifi-
cant decisions may have to be made which should be discussed with your cli-
ent. Some requests from your opponent for concessions or indulgences can
be regarded as so significant that they are outside the scope of your general
discretion to act. In these circumstances it is essential that you seek your
client’s instructions.
Remember that if your client gives specific instructions not to grant a par-
ticular concession then you have a duty to comply with those instructions. No
matter how reasonable your opponent’s request for a concession may seem,
you cannot accede to it; instructions are simply not negotiable. In some
cases, failure to adhere to instructions may result in your client changing
practitioners and suing you for negligence or making a complaint against you.
Benefiting from giving a concession
If your client decides to give a concession to another party, this is often an
opportune time to seek some concession in return. This is especially so when
negotiating a commercial agreement where you may be able to offer a con-
cession on one particular term if your opponent offers a concession on an-
other. This will assist the parties to narrow the issues in dispute and come to
a beneficial resolution.
132
Chapter 18: Conducting negotiations
Choose the right time

[18.45] Be aware of different pressures at different stages in legal proceedings and
when negotiating contracts. For example, a commercial client on the other
side may be more willing to offer some concessions to secure a deal when
certain critical deadlines, such as the end of the financial year, are fast ap-
proaching. In litigious matters, early in a proceeding, a defendant may be less
willing to settle the matter because the extent of any possible liability is not
yet known. Likewise, as proceedings near a court hearing, an inexperienced
litigant may be more nervous about the impending court appearance and
thus be more likely to settle the matter.
Don’t boast
[18.50] Talking about your negotiating triumphs is tactically unwise. The less your
opponents know about how you operate, how you gauge your first offer,
whether your first offer has any fixed relationship to your final offer and how
you approach offers of compromise, the better. The ability to surprise your
opponent is often a useful weapon in negotiations.
Don’t get emotional

[18.55] Never take negotiations so seriously and personally that you become emo-
tional. The practitioner you are negotiating with is simply doing his or her job
and you should not complain if your opponent puts arguments or adopts tac-
tics that make your task a little more difficult.
Do not fall into the trap of linking your professional ability to your client’s
success. Your role is to secure the best result possible for your client on the
basis of the facts and the applicable law.
If you become emotional, you may lose your professional detachment and
objectivity and this is not in the best interests of your client.
There is no room for threatening or abusive behaviour towards other prac-
titioners or for rudeness, such as leaving correspondence and telephone
messages unanswered, or for sexist or patronising comments.
In all that you do, your goal is to advance your client’s interests. Accord-
ingly, it will often be preferable to maintain a cordial relationship with your
opponent. This way, you are more likely to have an opponent who is willing
to talk to you and negotiate a resolution. This will assist in securing a favour-
able outcome for your client.
Avoid point scoring

[18.60] Do not focus on narrow issues during negotiations and lose sight of your
overall objective of reaching an optimal result for your client. The tactics you
133
adopt should be calculated to achieve this objective; they should not be seen
as ends in themselves.
Avoid the temptation of engaging in point scoring, particularly if your op-
ponent is being difficult. Scoring a point may make you feel good temporarily
but it is unlikely to contribute to the achievement of your client’s objectives
in the long term.
Confirm in writing
[18.65] Always confirm in writing what is said over the telephone. Unfortunately, not
all practitioners are honest and trustworthy. A simple and easy way to avoid
disputes as to what was said or agreed to over the telephone is to put it in
writing. If it is you who has put a proposal, then it is easy for you to confirm
in writing. If your opponent puts a proposal and, despite your requests, fails
to put it in writing, then you can write as follows: “I refer to our telephone
conversation on . . . and confirm your proposal that . . . If this does not accord
with your recollection of what was said, please advise me immediately.”
Conducting negotiations: conclusion

[18.70] Skilful negotiating abilities are certainly an invaluable asset. Sometimes they
are just as important as a thorough understanding of the law. If you are able
to negotiate a favourable settlement for a client, you will be absolving the
client from the delay, expense and inconvenience generally associated with
court proceedings.
In negotiations over the terms of contracts, a favourable negotiated out-
come will advance your client’s commercial objectives and hopefully keep
your client away from the courts in the future.
134
Chapter 19
Alternative dispute resolution
procedures
“It is now incumbent on the lawyer to stop shopping just in the corner
shop, where only litigation is available, and to take clients through the
shopping centres, where a whole range of ADR techniques is available.”
GB Robertson, “The Lawyer’s Role in Commercial ADR”
(1987) 61 Law Institute Journal 1148
Alternative dispute resolution: introduction

[19.05] Although concern about the costs of litigation is not new, it continues to
receive widespread attention by the media and public authorities. The spiral-
ling costs of legal services, considerable delays in obtaining a date of hearing
and the recognition of the high human cost of litigation – stress, anxiety, at-
tention diverted from personal and business pursuits – have all contributed
to alternative dispute resolution (ADR) techniques becoming accepted alter-
natives to litigation.
Alternative dispute resolution encompasses those strategies and tech-
niques used to resolve disputes outside the formal adjudicative system of the
courts. Among the most common forms of ADR are mediation, conciliation,
arbitration, negotiation and counselling. These are often quicker, cheaper
and less stressful forms of dispute resolution than court proceedings.
In this chapter ADR refers to processes that involve an independent third
party, thereby distinguishing ADR from direct negotiation, discussed in Chap-
ter 18.
Growth of ADR
[19.10] The 1990s and 2000s have witnessed not only the continuation of ADR
processes, but also their consolidation and institutionalisation. Whilst once
ADR was seen as an adjunct to normal court processes, it is now entrenched
as a real alternative which can save litigating parties time and expense and
avoid the need for recourse to court litigation.
135
Forms of ADR
[19.15] Certain types of disputes are recognised as being suitable for ADR – notably
disputes over money with no emotional overlay. The term “alternative dis-
pute resolution” is a convenient label for a number of different methods
which can be used to resolve disputes as an alternative to adversarial court
proceedings. While ADR can assume a number of different forms, it is most
commonly associated with mediation, arbitration, expert appraisal and con-
ciliation.
Mediation
Mediation involves the parties to a dispute meeting with a neutral third party
who assists the parties to reach an agreement. Rather than deciding an ap-
propriate settlement of the dispute, the mediator’s role is to facilitate com-
munication between the parties in the hope that the parties themselves will
settle the dispute. This involves identifying the issues in dispute, considering
alternatives and attempting to reach agreement.
Mediation is the most commonly used form of ADR and an entire media-
tion industry has established itself in South Africa. Even the South African
Revenue Service has recognised ADR as it has devised a user-friendly mecha-
nism for resolving taxpayers’ objections to tax assessments using what is de-
scribed as “facilitation” which in effect is mediation according to the
statutory rules. Other types of mediation do not rely on formal rules. The
rules for facilitation are promulgated under the Income Tax Act 1962. In gen-
eral, however, mediation is not arbitration. The mediator makes no binding
decisions on the parties.
Arbitration
Arbitration involves the parties agreeing to the appointment of an independ-
ent third party whose role is the making of a determination which may be
binding on the parties either through agreement or operation of law, or it
may be non-binding in that the decision is only advisory. Arbitration may be
voluntary, where the parties agree to resolve their dispute by means of arbi-
tration, or it may be mandatory, where the arbitration process is the exclu-
sive means provided. A typical arbitration involves the making of sub-
missions, the calling of witnesses and extensive written and oral argument.
While some arbitrators are qualified lawyers, others may be engineers, con-
sultants or other specialists who bring their expertise to the resolution of the
parties’ dispute. In other words, arbitration is more formal than mediation. In
most jurisdictions there is a statute that regulates arbitration and in an in-
creasing number of jurisdictions, according John Brand, De Rebus Jan/Feb
2009, there is also a statute that regulates mediation. In most jurisdictions,
including South Africa, the arbitration legislation is empowering legislation
which provides that unless the parties agree otherwise, the provisions of the
statute will apply. Many countries have adopted the United Nations Commis-
sion on International Trade Law (UNCITRAL) model law on arbitration and
136
Chapter 19: Alternative dispute resolution procedures
have enacted legislation to bring their international arbitration law in-line

with this international model law. The South African Law Commission has
recommended that South Africa does this and has drafted appropriate legis-
lation for this purpose but the Government has decided not to do so. Accord-
ingly, the fact that South African law is not in-line with international best
practice often causes foreign parties to be wary about arbitrating in South Af-
rica. They prefer to arbitrate in their home jurisdiction which has adopted the
UNCITRAL model law (see John Brand above). Although there are significant
advantages to adopting the UNCITRAL model law, the fact that South Africa
has not done so is not a good reason in law not to conduct both international
and national arbitration in South Africa. Our present Arbitration Act and the
common law of arbitration provide parties with the basic rights and protec-
tion they need.
Conciliation
Conciliation provides for the quick and fair resolution of disputes. The con-
ciliation process is uncomplicated, inexpensive and does not allow for any le-
gal representation. The decision to settle is in the hands of the parties
involved.
A conciliation hearing is a process where a commissioner (or a panellist, in
the case of a bargaining council or agency) meets with the parties in a dispute
and explores ways to settle the dispute by agreement.
The advantage of conciliation is that it extends the negotiation process and
allows for settlement between the parties: for example, where a procedure
requires that conciliation be attempted before industrial action can be under-
taken, time is allowed for both parties to “cool off”, or approach each other
in a friendlier manner whilst seriously attempting to settle before engaging in
industrial action which might eventually destroy the relationship.
Advantages of ADR
[19.20] The ADR procedures offer many potential advantages to your clients. Above
all, ADR procedures can save the parties considerable expense. Where ADR
procedures are used successfully, they result not only in a financial saving,
but also a saving in terms of time. Both these savings result in lower levels of
stress for the parties involved in the dispute.
Unlike court processes which are generally public, the parties can agree
that ADR procedures will be conducted in private and remain confidential.
The ADR procedures are generally more informal and flexible and are not
constrained by formal court processes. This means that the parties may be
able to fashion a particular ADR procedure, or mixture of procedures, to fa-
cilitate resolution of their dispute.
The ADR strategies are especially appropriate where the parties must, or
wish to, maintain a continuing business association and where a speedy, non-
acrimonious resolution is required. A court trial, which sometimes involves
137
questioning the credibility of another party, often sours future relationships.

The ADR procedures are therefore more likely to lead to what are described
as “win-win” results for both parties to a dispute.
Notwithstanding the potential benefits of pursuing ADR procedures, where
neither party is willing to compromise, or where one party insists on having
his or her day in court to publicly air his or her grievances, then ADR tech-
niques may not be helpful.
ADR and lawyers

[19.25] If you ignore ADR techniques because you believe that ADR is inferior to
litigation as a means of resolving disputes, you are in for a rude awakening
for two reasons. Firstly, court-directed mediation is increasing in both popu-
larity and efficacy and is now a standard procedure in many courts and tri-
bunals. Secondly, many clients are aware of the benefits of ADR and some of
them insist that their lawyers have expertise in ADR. Some insurers, for ex-
ample, have stated publicly that lawyers on their panels must not only be
aware of ADR but have a real commitment to it.
What role can you, as a lawyer, play in ADR? Apart from advising on ADR
options, you have a critical role in preparing your client’s case for pre-
sentation at mediation, drafting submissions, making oral submissions at
mediation, controlling, directing and assisting your client at mediation, pro-
tecting your client’s interests during negotiation, drafting settlement agree-
ments and drafting ADR clauses in documents. You can also join the ranks of
the many lawyers who have become accredited as mediators so that they can
conduct mediations.
To advise a client properly, you need to have a good knowledge and under-
standing of ADR processes to be able to identify when those processes may
be appropriate.
As a lawyer, you must be aware that the courts have demonstrated a firm
commitment to ADR.
Accordingly, if you fail to properly advise your client on the full range of
dispute resolution procedures available, you may be liable to your client.
Your duty is to act in the best interests of your client, which includes advising
on any lawful procedure that will save your client time, money and even
stress. Failure to do so may thus constitute professional negligence.
Alternative dispute resolution: conclusion

[19.30] To meet the requirements of the courts and the needs of your clients you
should become acquainted with ADR strategies and techniques. You can do
this by participating in courses, workshops and seminars, as well as reading
about ADR in textbooks and journal articles. You can also join various organi-
sations, which promote the use of ADR procedures.
138
Chapter 20
Use of counsel
“Advice is seldom welcome; and those who want it the most always like it
the least.”
Chesterfield, 1784
Attorneys’ right of appearance

[20.05] Since 1 November 1995 attorneys with LLB degrees have a right of appear-
ance in the High Court and Constitutional Court. Those who do not have LLB’s
can obtain appearance rights after three years’ practice or community service
as an attorney (GG16728 dd 4–10–1995).
The right of appearance is not automatic but requires an application to the
Registrar of the High Court of a provincial division.
Whenever you are acting for a client in a High Court matter it is your obli-
gation to enquire from him or her whether he or she requires counsel to be
briefed or whether you or a member of your firm with appearance rights
should appear at the proceedings. If your client instructs you to brief counsel
you must ask him or her whether he or she requires the services of senior or
junior counsel and in the event of your client wishing you to brief senior
counsel you will have to warn him or her that in all probability senior counsel
would insist on being assisted by junior counsel and that junior counsel in
normal circumstances charges one-half of the fees of senior counsel.
You will also have to warn your client that even if he or she wins the case,
the likelihood exists that the court may only allow the costs of one counsel
and that in such circumstances your client will have to bear the other coun-
sel’s costs.
If your client decides that he or she wishes to be represented by counsel
you are also under a duty to enquire from counsel what fee he or she intends
charging. In fact, counsel is obliged in terms of existing Bar rules to raise the
question of costs with the instructing attorney, but very few counsel do so.
You may even go one step further and take your client along to the consul-
tation at which the question of counsel’s fees is raised. Experience has shown
that counsel’s charges are more modest when confronted with this tricky
question in the presence of a client.
139
In the past it was accepted that the practitioner who briefs counsel must
pay him or her within the period stipulated by the rules and customs of the
Bar in his or her area of jurisdiction and his or her failure to do so would ren-
der the attorney liable to being “blacklisted”. In 1996 the Transvaal Provincial
Division however ruled in Bertelsmann v Per 1996 (2) SA 375 (T) that there is
no rule of law that an attorney is liable for the payment of an advocate’s fees.
In Serrurier v Korzia 2010 (3) SA 166 (W), the Witwatersrand Local Division
suggested that the Bertelsmann decision had been misunderstood and
opined that while it regarded itself as bound by that decision, an attorney
would always be liable for counsel’s fees in view of the following:
1. The obligation to pay fees had to flow from an agreement between par-
ties.
2. This agreement could either be an express agreement or by necessary
implication.
3. Counsel was not allowed, in terms of their ethical rules, to receive in-
structions or payment from a client.
4. If there was no express agreement between counsel and the attorney the
necessary implication was therefore that it could never be an implied
term of the agreement that counsel looked to the client to pay his fees.
5. Counsel would not be permitted to conclude an express agreement that
his or her fees be paid by anyone else than his or her attorney.
6. It therefore followed logically that an attorney would always in South Af-
rican law be liable for counsel’s fees even in the event of the client not
paying him or her.
Although this is good news for attorneys, they have been warned by the edi-
tor of De Rebus (1995 DR 685) that, unless they specifically contract out of
the obligation to settle counsel’s fees, such obligation may be held to exist as
a result of evidence establishing “a professional practice or trade usage” or,
indeed, a specific agreement to pay such fees.
Let us now look at some other basic rules that attorneys should adopt for
their own protection when they brief counsel.
Briefing counsel
[20.10] The following guidelines have been issued by the Law Society of the Northern
Provinces concerning the briefing of counsel:
“1. It has come to the notice of the Council that attorneys are brief-
ing advocates to appear in the Magistrates’ Court on behalf of
clients where there is no reason or justification for such appear-
ance by counsel. In most instances, this is done without the
knowledge or consent of the client. The Council is, for example,
aware of cases in which counsel have been briefed to appear in
unopposed motions or even on behalf of judgment creditors in
the debtors’ court.
140
Chapter 20: Use of counsel
2. The Council has accordingly resolved that, in future, any attempt

by a practitioner to recover from his or her client the fee (or any
portion thereof) charged by counsel in respect of:
l the appearance by counsel before any court, tribunal, ad-
ministrative or like body before which the practitioner is
himself or herself entitled to appear; or
l any other work performed by counsel, including, inter alia,
the furnishing of opinions or advice, the settling of papers,
the drafting of pleadings or documents (excluding, however,
the appearance by counsel in a superior court or the drafting
of pleadings, settling of papers or the furnishing of advice on
evidence in matters in a superior court) on behalf of the cli-
ent, without the express consent of the client to engage
counsel at the client’s expense for the appearance or work,
as the case may be, shall be regarded as unprofessional con-
duct on the part of the practitioner.
3. Notwithstanding the aforementioned, it shall not be regarded as
unprofessional conduct on the part of the practitioner if he or
she engages counsel to perform any of the acts or the work
specified in 1. or 2. above without the consent of the client
where the total fee charged to the client (inclusive of the fee
charged by counsel) for such act/s or work does not exceed the
total fee which the practitioner would have been entitled to re-
cover from his or her client had he or she personally performed
the act/s or work.”
Consultations with advocates and clients

[20.15] Only in the most exceptional circumstances should there be deviation from
the general principle that consultations should be held in counsel’s cham-
bers. Attorneys or competent candidate attorneys should, without exception,
always be present when advocates consult with clients. Consultations must
be arranged beforehand at counsel’s chambers, if possible, and the proce-
dure of handing over brief covers which contain only the file, should cease:
See ruling by the Law Society of the Northern Provinces dated 1 April 1991.
Negotiations and settlements1

[20.20] In your dealings with counsel, do not allow yourself to become a doormat. If
you are unhappy about a settlement being urged upon you by counsel, or if
you see that your client is being bullied into a settlement, call “Enough!” You
are the instructing attorney and must protect your client’s interests. You will
see the client again, whereas counsel probably will not.
There is no difference between the intellect of attorneys and advocates.
What advocates sometimes have is greater familiarity with appearing in court
________________________
1 See also Chapter 33.
141
and knowledge of the rules of procedure and evidence. Accordingly, from the
point of view of dealing with your client in an out-of-court settlement situa-
tion, you are as good as any advocate. It will be to you that your client will
turn for reassurance and for help. Your client is familiar with you, whereas
the advocate, irrespective of how eminent or able, is a recently introduced
stranger.
You should have your own views about your client’s legal rights and enti-
tlements. If you practise in a country area, you will probably have a much
greater knowledge of community standards and previous verdicts than an
advocate.
There are different kinds of settlements: outstanding settlements, good
settlements, average settlements, poor settlements, cowardly settlements
and abject surrender settlements. Your client’s morale is at its lowest imme-
diately before the case comes on and you have an enormous responsibility to
protect your client from himself or herself.
Except where it is unavoidable, you should not allow counsel to speak with
your client in your absence. It is unfair to the advocate and equally unfair to
your client and yourself. If counsel has a right to look to you for payment of
his or her fees, then, consistent with that obligation, it is your responsibility
to instruct counsel. If your instructions are unacceptable, counsel will return
the brief.
Dealing with other side’s counsel

[20.25] Where you have not briefed counsel but the opposing practitioner has
briefed counsel, you should normally deal with the opposing practitioner.
Where both sides are represented by counsel, you should communicate
with the other side’s counsel through your counsel, rather than directly.
Generally advocates are prohibited from communicating directly with the
practitioner for the other party.
Counsel has conduct of matters in court

[20.30] When counsel appears at the hearing of a matter, then subject to counsel’s
duties to the court and the right to advise another course of action, counsel
must adopt and adhere to the instructions you give him or her on behalf of
your client. Counsel is not entitled to go on a frolic of his or her own while
appearing. However, counsel is entitled to insist on, and, as a general rule,
ought to have, complete control over how instructions are carried out and
over the actual conduct of the matter in court. If such control is not given,
counsel would be entitled to return the brief.
142
Chapter 20: Use of counsel
Delays by counsel
[20.35] It is your obligation to prompt counsel if he or she is taking too long to com-
plete a matter. If a brief requires urgent attention by counsel, do not say so in
the body of your instructions to counsel. Counsel will not realise it is urgent
until he or she reads the instructions. Instead, use an appropriate eye-
catching notation on the brief cover and couple this with a follow-up tele-
phone call.
It is advisable to record the date a brief is delivered to counsel and to se-
lect a date in your diary by which you expect the brief to be returned. If the
brief is not returned by that date, you should contact counsel and urge him
or her to complete the matter. If further delay occurs, request counsel to re-
turn the brief and brief another advocate. You should not wait until your cli-
ent or an opponent press you before contacting counsel. You cannot excuse
delay by shifting the blame to counsel.
If you find that a particular advocate is always tardy, then, irrespective of
how much you may like that advocate and wish not to offend him or her, you
should not use that advocate again. Your first priority is to protect your client
and yourself.
Prepare brief well

[20.40] Exercise care in preparing a brief. Do not just instruct your secretary to tie a
pink ribbon around the file and send it off to counsel with a request to draw
pleadings or give an opinion on a particular matter. Attorneys who engage in
this “file dumping” abdicate their responsibilities as instructing attorneys and
are very unpopular. Not only will carefully prepared briefs enhance your pro-
fessional reputation among counsel, they will save time for the counsel and
therefore save your client money. Further, counsel is likely to give you pref-
erence over other attorneys when you call and ask if they will accept your
next brief.
Be selective in what documents you include in counsel’s brief, thereby sav-
ing counsel’s valuable time. Where possible, your brief should include a
summary of the facts and statements of witnesses, together with an index. If
you have done preliminary research on the matter on which you seek coun-
sel’s opinion, inform counsel of your views, together with any relevant au-
thorities you have looked at. Counsel may be assisted by your research and
preliminary conclusions. It also makes you feel you are better than a post
office or clearing house for documents passing between your client and
counsel.
If you are seeking counsel’s advice, make sure that you carefully formulate
the questions upon which you seek counsel’s opinion.
The date fixed for a hearing, if known at the time of delivery of a brief,
should be included in the brief. If it is not then known, you should advise
counsel of the date as soon as it comes to your attention.
143
Attorneys signing pleadings in place of advocates

[20.45] Where an attorney, certified in terms of s 4(2) of the Right of Appearance in
Courts Act 62 of 1995, signs a pleading in place of an advocate, the attorney
should clearly indicate that fact. A single signature which is stated to have
been affixed to the pleading “as attorney certified in terms of s 4(2) of Act 62
of 1995 and as attorney” for the party will suffice. Where an attorney signs a
pleading on behalf of a firm representing a litigant, it would be appropriate
for the attorney to sign the pleading twice, as attorney certified in terms of
the abovementioned section and, in the usual format, on behalf of the firm of
attorneys: Fortune v Fortune 1996 (2) SA 550 (C).
Using counsel: conclusion

[20.50] When you brief counsel, your client is entitled to expect that you and counsel
will work together as an effective team to further your client’s interests. The
suggestions in this chapter will help you meet your clients’ expectations and
deliver complementary legal services cost effectively.
Never send a brief to counsel without first checking whether he or she is
available to accept it. Cases where briefs have sat on counsel’s desk collecting
dust well past the hearing date because counsel was on holiday are not rare
A short telephone call prior to sending the brief is all that is required.
Do not get into the habit of over-using counsel or treating him or her as an
extension of your office. Before briefing counsel, ask yourself whether the
time, effort and cost needed to brief counsel justify the task at hand, or
whether it would be simpler and easier for you to perform the task yourself.
Brief the counsel best qualified to handle the particular case. Have a “sta-
ble” of advocates from which to choose if your first choice is unavailable.
144
Chapter 21
Communication with another
practitioner’s client or witness
“A lawyer who had a trial scheduled walked into a courtroom and saw her
opponent. ‘Are those people over there your witnesses?’ her opponent
asked. When the lawyer said yes, the other replied, ‘Then you win. I’ve
used those witnesses twice myself.’”
Do not communicate with another lawyer’s client

[21.05] It is accepted by the legal profession that it is improper for one practitioner,
whether directly or through an employee or agent, to contact the client of
another practitioner in a particular matter without the latter’s consent. This
general principle is sensible because, if it were open to a practitioner to go
behind the back of the opposing practitioner to gain admissions from the
other party, litigation would become even more hazardous and commercial
negotiation unworkable.
Lewis, Legal Ethics (Juta & Co Ltd, 1982) p 123 states the principle as fol-
lows:
“When concerned professionally in a matter an attorney must not
communicate directly with any person whom he knows to be repre-
sented in that matter by another practitioner, without the latter’s con-
sent, except of course to find out who that other is if he does not
already know. All his communications should be with his colleague
unless indeed he has been given permission for the direct approach; if
he knows his colleague very well he may possibly (in a non-contentious
matter) communicate first and then report for example ‘I telephoned
your client to ascertain his full names’. But these exceptions are best
avoided. It is embarrassing to a practitioner to refuse a request for
permission to speak to his client. However harmless the intent may be
it is an encouragement to the colleague’s client likewise to engage in
direct communication and may be the thin edge of the wedge in a
change of allegiance.”
145
Gifford states the general principle as follows:1

“A practitioner should never interview or communicate with the client
of another practitioner except with the approval of that practitioner.
This is so even if the client himself approaches the practitioner.”
Where prohibition does not apply

The general principle does not prohibit a communication which is solely to
ascertain whether the opposing party is represented and, if so, by whom.2
While you, as a practitioner, are not permitted to approach the client of
another practitioner, this does not prevent your client independently ap-
proaching the opposing party.
Where you are a party to a proceeding and are representing yourself, you
are not necessarily precluded from contacting the client of another prac-
titioner directly, as long as you do so in your personal capacity, and do not
seek, as a practitioner, to influence the other party. Notwithstanding this ex-
ception, it is preferable to always communicate through the practitioner on
the other side to avoid any later accusations of improper conduct.
Where delay is prejudicing your client

[21.10] In some cases you may be faced with the situation in which the opposing
practitioner is not taking any steps in a matter and even refuses to answer
any correspondence. When faced with this situation you will certainly be
pressed by your client as to what is happening and why the matter is being
delayed.
In those circumstances you would be justified in informing the practitioner
in default that you will communicate with his or her client direct, unless the
practitioner completes his or her part of the transaction within a specified
period. Such communication should be in writing. If nothing happens at the
expiration of the specified period, you could then write directly to the de-
faulting practitioner’s client. A copy of the letter should be sent to the de-
faulting practitioner.
Most Law Societies in South Africa provide that it is unprofessional conduct
for a practitioner not to reply within a reasonable time to correspondence
which requires a reply. The Cape Law Society’s Rule 14.10, for instance, pro-
vides that “a member shall, within a reasonable time, reply to all communi-
cations which require an answer unless good cause for refusing an answer
exists”.
________________________
1 KH Gifford, Legal Profession Law and Practice in Victoria (Law Book Co Ltd, Sydney, 1980), p 376.
2 Halsbury’s Laws of Australia (Butterworths LexisNexis, Sydney, looseleaf), Vol 16, [250–735].
146
Chapter 21: Communication with another practitioner’s client or witness
Where the client is a company

[21.15] Sometimes it is difficult to apply the rule forbidding communication with the
client of another practitioner because you cannot be sure who the client ac-
tually is, especially where the other practitioner’s client is a company. In
these circumstances, can you go past the other practitioner and speak to
people in positions of authority within the company in order to obtain infor-
mation that is not readily available, other than through direct inquiry? Is the
test to be applied a question of the responsibility and seniority of the person
you desire to contact?
Take, for example, the case of an industrial accident where an employee is
severely injured and has no recollection of the circumstances surrounding the
accident. If the accident were witnessed by a supervisor of the company em-
ploying the injured plaintiff, would you, if you were acting for the plaintiff, be
justified in making contact with the supervisor to ascertain what he or she
saw and perhaps to obtain a statement about any safety measures which
might have prevented the accident? Strictly speaking, you probably could
contact the supervisor but you would no doubt be buying into a dispute with
the opposing practitioner if you did.
Rulings of Ethics Committee of Law Institute of Victoria

The question arose at the Law Institute of Victoria in another context. A firm
of solicitors was acting on behalf of the receivers and managers of a company
which was in liquidation. The solicitors took proceedings on behalf of the
company through the receivers against another company alleged to be in-
debted to the company in liquidation.
The solicitors acting for the defendant company made application to the
Supreme Court of Victoria for an order for security for costs. In support of
that application an affidavit was filed which made reference to a telephone
call by the solicitors for the defendant to a managing clerk employed by the
receivers to handle most of the day-to-day work in connection with the re-
ceivership of the plaintiff company. The solicitors acting for the defendant
had identified themselves before questioning the managing clerk regarding
the financial circumstances of the plaintiff company. The managing clerk ap-
parently gave full and detailed answers to the questions put to him.
The solicitors for the receivers of the plaintiff company took objection to
the approach that had been made by the defendant’s solicitors and sought a
general ruling from the Ethics Committee of the Law Institute of Victoria as to
the propriety of that approach.
The Ethics Committee ruled as follows:
l The clients in this case were the receivers and managers of the plaintiff
company.
147
l The employees of the plaintiff company were not identical with the cli-
ent, but were separate individuals and would be available to be called as
witnesses in any action by either side.
l There is no rule of law or practice precluding inquiries being made of wit-
nesses as distinct from clients.
l The proper practice for a solicitor making such an approach would be to
identify himself or herself, to declare that he or she is a solicitor and to
advise the witness which party he or she represents.
New York County Lawyers’ Association’s approach

In the course of its deliberations, the Ethics Committee referred to the Rules
of Professional Ethics of the New York County Lawyers’ Association. The
stance of that body is interesting. It had a rule that a lawyer shall not com-
municate with a party known to be represented by another lawyer in the
matter unless the other lawyer consents or the communication is authorised
by law. In its comment on that rule, the Lawyers’ Association said that the
rule prohibited communication concerning the matter in representation by a
lawyer for one party with managing agents of a party that is a corporation or
organisation, because such persons speak for the organisation. It does not
prohibit communication with “lower echelon employees” who are not repre-
sentatives of the organisation. The Lawyers’ Association considered that
whether a specific employee is a representative of a client would depend on
the circumstances and, in particular, whether the employee had significant
managerial responsibility in the matter in question.
Questions of degree
This might sound all right but it seems to beg the question: “Where is the line
of demarcation?” For example, in litigation involving alleged fraud by a com-
pany which is claiming insurance cover in respect of the destruction of its
building by fire, is it proper for the practitioner acting for the plaintiff com-
pany to have discussions with the claims supervisor of the defendant insurer
to determine the grounds on which fraud is suspected? Alternatively, after
proper identification, would it be in order for the practitioner acting for the
defendant insurer to contact a regional manager of the plaintiff company to
obtain that manager’s version of the sequence of events leading up to the
fire being discovered?
Difficult questions of degree arise. Some practitioners argue that because
of the artificial nature of a corporate body, the best rule to introduce would
be to forbid a practitioner contacting any employee of a corporation which is
on the other side in litigation and which has legal representation.
Suggested approach
A suggested approach might be to avoid communicating with people within a
company who normally have authority to make admissions on the company’s
148
behalf or to instruct in the conduct of the proceeding. I recommend that you

be conservative and avoid communicating with the company’s chief execu-
tive officer, chief financial officer, company secretary, directors, general
managers and heads of business units, whether or not they have such au-
thority in the particular matter.
Where an insurer is involved

[21.20] Another situation that came before the Law Institute of Victoria involved a
third party insurance claim brought by a wife passenger against her husband
driver after the vehicle driven by the husband had been involved in a colli-
sion. Proceedings were commenced on behalf of the wife claiming damages
for personal injuries arising out of the collision. Liability was admitted. The
solicitors acting for the plaintiff had alleged that, as a result of severe head
injuries suffered by the wife passenger, her interest in sexual activity with her
husband had waned.
The plaintiff’s solicitors invited the defendant husband to attend a confer-
ence prior to the hearing for the purpose of obtaining a proof of evidence
from him about the deterioration in their matrimonial relationship. The so-
licitors acting for the third party insurer of the defendant husband’s vehicle
heard of the conference and took strong exception to what had taken place.
The matter was referred to the Ethics Committee of the Law Institute of
Victoria, which took the view that, irrespective of the facts that the case in-
volved only an assessment of damages and that the parties were related, the
plaintiff’s solicitors had acted improperly in holding such a conference with-
out first obtaining the consent of the solicitors for the third party insurer.
Contacting witnesses3
[21.25] Civil actions
In a civil action the fact that someone has been interviewed as a prospective
witness by one side, whether or not a statement has been taken, or has been
subpoenaed by that side, does not preclude the attorney for the other side,
either alone or with counsel, from interviewing that person and if thought fit
taking a statement from him; but once that attorney knows of the oppo-
nent’s interview or subpoena he must observe the terms of an agreement
entered into between the Association of Law Societies (as it was then called),
the General Council of the Bar and the State Attorney:
“An attorney is entitled to interview any person who he has reason to
believe is in the possession of information which may assist his client in
his case and cannot be deprived of this right by the fact that the
________________________
149
other side has subpoenaed or taken a statement from such person.

The other side should, however, be notified of the interview and this
notification should precede the interview.
The only restrictions to this right are:
1.1 If litigation has already commenced, but before the person in
question has given evidence, he or she may not be interviewed
until the legal representative of the other party has received
timeous and adequate notice of the proposed interview. Should
the legal representative of the other party, after having received
notice of the proposed interest, object to such interview, this
does not prevent the interview from taking place and the legal
representatives of the other party are not entitled to attend or
be present at the interview.
1.2 Where the legal action has already commenced and a person has
already given evidence for the opposition in the matter, such
person may only be interviewed if the legal representative of the
other side receives timeous and adequate notification of the
proposed interview. In such event the legal representative of the
other side is entitled to be present at the interview unless he or
she has waived such right.
2.1 Affidavits
Legal representatives should not obtain affidavits from potential
witnesses except in circumstances where it is intended to pre-
sent their evidence by way of such affidavits.”
[21.30] Criminal actions

Different considerations apply to criminal cases. Here a distinction is made
between state and defence witnesses.
State witnesses
In Shabalala v Attorney-General of the Transvaal 1996 (1) SA 725 (CC) the
Constitutional Court had to decide amongst other things whether the com-
mon law rule of practice which prohibits an accused or his legal representa-
tive from consulting with a State witness without the permission of the
prosecuting authority, in all cases and regardless of the circumstances, was
consistent with the Constitution.
In this connection the Court held that there may be circumstances where
the right to a fair trial might justify a prior consultation with State witnesses.
The blanket prohibition against all such consultations as laid down in R v
Steyn 1954 (1) SA 324 (AD) was too wide and could not be justified under s 33
of the Constitution. The claim to consult without prior authority of the prose-
cuting authority was only justifiable in circumstances where the right of the
accused to a fair trial would in the special circumstances of the case be im-
paired if the defence was denied the opportunity to have such consultations.
If such consultation was denied in these circumstances the Court must have
150
the right, in an appropriate case, to test the legitimacy of any such denial and
to direct access to a witness for the purpose of such consultation, if such a
course was justified for the purpose of ensuring a fair trial. Even in cases
where the Court was of the opinion that the requirements of a fair trial justi-
fied consultations with State witnesses, it did not necessarily follow that it
was obliged to direct access for such consultation purposes: the Court had a
discretion to refuse access where there was a reasonable risk that access
might lead to intimidation of witnesses or otherwise prejudice the proper
ends of justice. It would not be sufficient for the State merely to establish
that such was its bona fide belief. A prosecution would have to show that
a reasonable person in the position of the prosecution would hold a belief
that there was a risk of such intimidation or prejudice to the proper ends of
justice.
The Court accordingly ordered that:
“1. Insofar as, and to the extent that, the rule of practice pertaining
to the right of an accused or his or her legal representative to
consult with witnesses for the State prohibited such consultation
without the permission of the prosecuting authority, in all cases
and regardless of the circumstances, it was not consistent with
the Constitution.
2. An accused person has a right to consult a State witness without
prior permission of the prosecuting authority in circumstances
where his or her right to a fair trial would be impaired if, on the
special facts of a particular case, the accused could not properly
obtain a fair trial without such consultation.
3. The accused or his or her legal representative should in such cir-
cumstances approach the Attorney-General or an official author-
ised by the Attorney-General for consent to hold such
consultation. If such consent was granted the Attorney-General
or such official should be entitled to be present at such consulta-
tion and to record what transpires during the consultation. If the
consent of the Attorney-General was refused the accused should
be entitled to approach the Court for such permission to consult
the relevant witness.
4. The right referred to in paragraph 2 above did not entitle an ac-
cused person to compel such consultation with a State witness:
(a) if such State witness declined to be so consulted; or
(b) if it was established on behalf of the State that it had rea-
sonable grounds to believe such consultation might lead to
the intimidation of the witness, or a tampering with his or
her evidence, or that it might lead to the disclosure of
State secrets or the identity of informers, or that it might
otherwise prejudice the proper ends of justice.
5. Even in the circumstances referred to in paragraph 4(b), the
Court might, in the circumstances of a particular case, exercise a
discretion to permit such consultation in the interests of justice
subject to suitable safeguards.”
151
Defence witnesses
A defence witness is a person who is not a State witness and who may poten-
tially testify on behalf of the client and whose testimony would support the
client’s claim.
It is the duty of the defence attorney to establish, during consultation with
the client, whether there are any persons who could potentially testify in
support of his or her case and, where necessary, to consult with such person
to ascertain whether they will in fact be able to testify on behalf of the client.
Not only persons who will potentially be able to testify in support of the cli-
ent’s innocence, but also persons who are able to testify in mitigation of a
possible sentence are potential defence witnesses and should also be con-
sulted before they are approached to testify.
Any witness not called by the prosecution is available as a witness for the
defence.
Unrepresented prospective defendants

[21.35] Although no special ethical restrictions apply when interviewing unrepre-
sented prospective defendants, it would be prudent to:
l inform the person of the subject matter in question and on whose behalf
you act;
l make it clear to the person that you are not acting for or advising him or
her; and
l inform the person that he or she may choose not to discuss the matter
with you.
Where there is a possibility that a witness may later be joined as a defendant,
it would be prudent to advise him or her to seek independent legal advice be-
fore you obtain a statement from that witness.
The above precautions will assist you in overcoming any allegations later
that you obtained admissions through trickery or that your conduct was mis-
leading or even dishonest.
Communication with another practitioner’s client:

conclusion
[21.40] The rule that prevents a practitioner from communicating with another
practitioner’s client without the practitioner’s consent is a sensible safeguard
against practitioners obtaining an unfair advantage over their opponents’ cli-
ents. In practice, the rule gives rise to various difficulties that are best ad-
dressed with patience, common sense and fair dealing.
152
Chapter 22
Client threats against practitioners
“The first thing we do, let’s kill all the lawyers.”
Shakespeare, Henry VI Part 2 (4.2.86)
Responding to client threats

[22.05] What do you do when, in the course of litigation, your client threatens to kill
the practitioner on the other side? Academic lawyers will quickly reply that,
as the threat probably constitutes an offence, including a criminal contempt
of court (Brown v Putnam [1975] 6 ALR 307), you must telephone the practi-
tioner on the other side to warn of the threat and, at the same time, notify
the court and the police. But is it so simple? How do you know your client is
serious about the threat? And if he or she is not serious, what are the ramifi-
cations of your actions?
Example: The truck driver

[22.10] Assume you act for the husband in a divorce action in which custody of the
children is in issue. Not only does the wife seek custody, but she also asserts
that the husband should not have access either. The husband is a truck driver
and, right or wrong, he believes that his wife’s attitude has been largely in-
fluenced by the attorney representing her.
Recently, in a telephone conversation with you, he said that he was going
to come to Cape Town to “straighten out my wife and to kill that bastard who
is advising her”. What should you do in these circumstances?
You “think” that your client is serious in his stated intention of violence and
would feel much easier if you telephoned the attorney on the other side with
whom you have had many dealings in the Family Court over the years. The
sort of telephone conversation you have in mind would probably go like this:
“Is that you there, Charlie? You know that custody matter of X we’ve got on,
well, I thought I’d just give you a call to tell you that my client’s going to kill
you. Now, how have things been going generally? Charlie? Charlie, are you
still there Charlie?”
153
But what are the likely consequences if your client’s threats are nothing
more than gorilla-like breast-beating with no intention to carry them out?
Visualise the early part of the cross-examination of the husband at the en-
suing hearing taking the following course:
Counsel for the wife: “Mr X, you’re a violent man?”
X: “No.”
Counsel for the wife: “Mr X, I put it to you that as recently as two weeks
ago you advised your attorney you were going to
‘straighten out’ my client and you were going to
kill my instructing attorney.”
Presumably at the end of his cross-examination, X will come up to you and
say: “What the hell did you mean by passing on my conversation to the other
side? You’ve just cost me the custody of my children.”
The answer to this sort of dilemma is not easy. Essentially, you must know
your client and appreciate that the consequences of wrongly assessing the
gravity of threats of violence can be drastic. You should question your client
politely but firmly to get a better feel for whether he or she is serious. In do-
ing so, bear in mind that if you disclose comments made by your client which
you misconstrue as threatening, this may be a breach of confidence and legal
professional privilege. Although no privilege attaches to communications
which are in furtherance of a crime or fraud (R v Cox and Railton (1884) 14
QBD 153; see also Chapter 9), you may have some difficulty excusing your ac-
tions if the threat was nothing more than mere bluff.
The problem of threats against other practitioners at first sight appears to
be esoteric. However, acts of violence against members of the legal profes-
sion are not rare, particularly in the family law jurisdiction. Advocates, attor-
neys, parties, witnesses and even judges have been injured or killed, or their
property damaged.
Some years ago parties to proceedings were fatally shot near the Mel-
bourne Supreme Court building. As I understand it, during the course of the
proceedings one of the litigants had threatened that if he lost he would kill
the successful parties and their witnesses. His solicitor took the threats seri-
ously, but, despite advising the court and the police of the threats, the tra-
gedy could not be averted.
Client threats: conclusion

[22.15] It is unexpected problems which raise concern about the value of textbooks
on professional conduct. Basically, you can lay down all the rules in the world
but in the end, when coping with this sort of problem, you must rely upon
your maturity and common sense, your knowledge of your client and your
understanding of your obligations to your client, your colleagues, the court
and the law as a whole.
154
Chapter 22: Client threats against practitioners
And the “hypothetical case” of the truck driver at [22.10]? Well, it is not
hypothetical at all, but fairly describes the dilemma which was faced by an at-
torney practising in Cape Town. What happened? The attorney representing
the truck driver made an assessment that her client was “a bag of wind” and
she must have been right, because both attorneys are still alive!
155
Part 3
Relationship with the profession and
the community
Chapter 23
Duty to profession and community
“People are getting smarter nowadays. They are letting lawyers, instead of
their conscience, be their guides.”
Will Rogers, quoted in “Lawyers: Jokes, Quotes, and Anecdotes 2003 Calendar”,
Duty to uphold administration of justice

[23.05] It has often been said that membership of a profession is different from
membership of a trade. One of the hallmarks of a profession is a tradition of
devoted and disinterested service quite apart from financial reward. Another
is a tradition of co-operation between members of a profession.
For lawyers, there is another and more crucial aspect: because they are
part of the administration of justice, there are unique duties imposed upon
them, quite apart from their duties to their clients and their colleagues.
While many lawyers in the 21st century decide to practise in large law
firms, corporations or government departments (see Part 8), the ultimate
duty of a lawyer has always been, and will remain, to uphold the adminis-
tration of justice. Justice Kirby of the High Court of Australia described the es-
sence of being a lawyer in the following terms:1
“The bottom line is that law is not just a business. Never was. Never
can be so. It is a special profession. Its only claim to public respect is
the commitment of each and every one of us to equal justice under
law.”
You will discover that your relationship with your profession and the com-
munity is complex and is dictated not so much by written canons of behav-
iour as by ethics and traditions passed on over many years.
Duty to profession
[23.10] It is a precondition of your entry into and continued membership of the legal
profession that you are a fit and proper person to have your name on the roll
________________________
1 MD Kirby “Law Firms and Justice”, speech, 7 March 2002, Australian Law Awards.
159
of practitioners. You therefore have an overriding duty not to do anything

that would render you a person who is not fit and proper to have your name
remain on the roll.
The legal practitioner is part of a system involving directly and primarily the
State. He or she fulfils a dual function by assisting the client on the one hand
and by promoting justice in society on the other hand. These two functions
may come into conflict.
Our Constitution enshrines the rights of all people in our country and af-
firms the democratic values of human dignity, equality and freedom. There is
a great need for lawyers to ensure that a proper balance between human
rights and the more general interests of society and the State is maintained.
The legal profession carries wide social and political obligations to society
as a whole. It is under a duty to fulfil its role in protecting the rights of mi-
norities within society and promoting the welfare of the disadvantaged.
“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 Langa at the 2005 KZN
Annual General Meeting in Durban).
The public is entitled to a fair administration of the judicial system, to insist
that lawyers act responsibly and ethically in the public interest and that they
will not abuse the law for the benefit of their clients. Lawyers must not take
unjust advantage either of the opponent’s or of the public purse.
To ensure that the public have confidence in the administration of justice,
a sufficiently high standard of these qualities must be maintained.
“There is a peremptory need for lawyers to insist, at all times, that the
attainment of justice is the ultimate rationale for all law; that law can-
not be distanced from justice and morality without loosing its claim to
legitimacy; that the ethical objectives of the law contain the life blood
of a nation; that justice must not only be fair but substantially fair in its
execution; that it must be seen to be fair and to impact on the life of
the humblest citizen in search for protection against injustice; that it is
accessible, visible and affordable; and that any retreat from these
truths, imperils the very quality and status of an enduring civilisation”
(Chief Justice I Mahomed at a Dinner of the Johannesburg Bar on the
27th June 1997 to celebrate the appointment as Chief Justice of South
Africa).
The writer cannot hope to state exhaustively all the features of your
relationship with the profession and the community. The chapters in Part 3 of
this book focus only on the most common features.
160
Chapter 24
Assisting the disadvantaged
(pro bono)
“All are equal before the law and are entitled without any discrimination
to equal protection of the law.”
Universal Declaration of Human Rights, Article 7
Pro bono work

[24.05] The practice of law has become increasingly commercial and business-
focused. As a result, it is sometimes easy to forget that being a lawyer means
being a member of an honourable profession which has a strong tradition of
protecting the rights of disadvantaged members of the community.
In most jurisdictions lawyers have been granted the privilege of a mono-
poly over the provision of legal services. This privilege imposes a corres-
ponding responsibility on lawyers to contribute something back to the com-
munity. One way of doing this is by becoming actively involved in pro-
grammes to assist the disadvantaged.
Pro bono
Most programmes to assist the disadvantaged are labelled pro bono work.
“Pro bono publico” translates from Latin into “for the public good”. A narrow
definition of pro bono, as it applies to the legal profession, is “doing legal
work for free”. A more common definition is “the provision of free or dis-
counted legal services to protect or enforce the rights of those who would
otherwise be unable to obtain access to the legal system”. Although, in prac-
tice, various definitions of pro bono have been suggested for the legal profes-
sion, the emphasis is usually on helping the disadvantaged in the community
to resolve their legal problems. Pro bono work is premised on the principle
that citizens, regardless of their financial means, should have access to justice.
Although all provincial law societies in South Africa have rules in place
obliging practitioners with a few exceptions to perform pro bono services of
not less than 24 hours per calendar year, the concept has not been received
with great enthusiasm in South Africa or, in fact, in Southern Africa. Only a
few very large law firms have dedicated pro bono offices in the Western
161
Cape and in Gauteng, which are manned by qualified practitioners. Every le-
gal practitioner of this firm dedicates 32 hours per annum rendering services
to the poor on their doorstep rather than expecting them to find their way
into the cities at great expense. For the remainder, joint venture agreements
have been reached with recognised structures which include but are not lim-
ited to Legal Aid clinics, Legal Advice Centres, Lifeline, small claims courts,
community (non-commercial) advice offices, university clinics, NGOs, the of-
fice of the Inspectorate of Prisons, Circles and specialist sub-committees to
name but a few.
Growth of free work for the disadvantaged

[24.10] There has been a steady growth in the amount of free work for the disadvan-
taged performed by Australian lawyers over the years. Free legal services
have been provided for a variety of groups in many areas, including refugees,
indigenous persons, residential tenancy disputes, crime, domestic violence,
civil and human rights, homeless persons, the elderly, social security benefits
and representation of charitable organisations. While some law firms have
formal policies with regard to free work for the disadvantaged, many lawyers
provide a degree of free legal advice to family, friends, social clubs and chari-
ties from time to time, which largely goes unnoticed and unrewarded.
US experience
The American legal profession has a long tradition of performing free work
for the disadvantaged. In many cities local Bar Associations co-ordinate free
work schemes, referring work to firms who have registered their desire to do
such work.
Areas of work in which free legal services are provided include work relat-
ing to refugees, landlord and tenant law, AIDS-related representations, bat-
tered women, civil rights, death penalty cases, homelessness, elderly and
social security, representations of charitable organisations and advising in
human rights cases.
Incentives to undertake pro bono work for the

disadvantaged
[24.15] Some governments are taking into account whether law firms are providing
free work to the disadvantaged when awarding government legal work. For
example, the Victorian Government’s comprehensive tender for government
legal work in 2008 included as one of the important selection criteria details
of each firm’s commitment to free work for the disadvantaged. The Victorian
Attorney-General also established a Pro Bono Secondments Scheme, where-
by private law firms second lawyers to community legal centres and Victoria
Legal Aid.
162
Chapter 24: Assisting the disadvantaged (pro bono)
This public sector attitude reflects the approach of some private com-
panies overseas which have taken into account their legal services providers’
commitment to supporting the disadvantaged.
While this approach is far from universal, a trend may well emerge
whereby a firm’s commitment to free work for the disadvantaged becomes
an important factor in decisions by public and private organisations when re-
taining the services of lawyers.
Why do pro bono work for the disadvantaged?

[24.20] The concept of working as part of a profession which strives for justice at-
tracts many people to study the law. For some the reality of legal practice
does not match this initial motivation for becoming a lawyer. Doing free work
for the disadvantaged can be a means of satisfying a desire to provide legal
services to those who would otherwise not have access to justice.
Personal satisfaction derived from undertaking free work for the disadvan-
taged is not the only reason for doing such work. For law firms, in particular,
there are commercial benefits from this work. Participating in such work indi-
cates that a firm is willing to contribute to society and retains the faith of jun-
ior lawyers who may otherwise become disillusioned by the increased com-
mercialisation of the practice of law. Talented law graduates and young
lawyers are often attracted to work at law firms which have a demonstrated
commitment to free work for the disadvantaged. Such work is interesting,
enriches the mix of work available and helps create a positive work environ-
ment.
There are also external benefits, as law firms who undertake free work for
the disadvantaged are perceived as good corporate citizens. This can have a
positive impact on the firm in procuring new work and is becoming a relevant
factor when organisations choose to retain a law firm. A formal policy which
outlines a firm’s attitude to free work for the disadvantaged helps demon-
strate to both staff and clients the importance of such work to the firm.
How to become involved

[24.25] There are many ways that young lawyers can become involved in the provi-
sion of free legal work for the disadvantaged. All Law Societies in South Africa
co-ordinate schemes with recognised structures that act as referral agencies
for free work for the disadvantaged. These agencies are always keen to add
firms’ names to their lists of potential workers. Young lawyers should en-
courage their managing partners to register their firm’s interest in under-
taking free work for these agencies.
Lawyers interested in specific types of work for the disadvantaged should
strive to develop innovative ways to help relevant agencies with the support
163
of their firms. If you can link the development of an area of your legal prac-
tice with any such agency, you might be able to convince your firm that it is in
both their and the agency’s interests that you be seconded to the agency.
As a young lawyer keen to make a positive impression at your firm, you
may be hesitant to put forward creative suggestions on free work schemes to
the partners of your firm. “Won’t they think I’m a radical – only out to cost
the partners money?” While such thoughts are understandable, young law-
yers should not be discouraged from promoting free work for the disadvan-
taged. You will more than likely be pleasantly surprised to find that even the
toughest common lawyers or wealthiest senior partners recognise their obli-
gations as members of the legal profession to contribute to the community
through free work for the disadvantaged.
Provided the cost of a free work programme is agreed upon and budgeted
for in advance, most firms welcome the opportunity to show the community
that the law is a worthy profession and that lawyers and their firms are pre-
pared to put something back into society.
164
Chapter 25
Undertakings
“Never let it be said of you that you have failed to honour such an obli-
gation . . . It is far better to lose money than reputation.”
Lock, Advice to a Young Solicitor (1947), p 3
Undertakings: introduction
[25.05] For the law to function, there must be mutual trust between members of the
legal profession and the courts. To some extent this is dependent upon un-
dertakings being given and honoured.
As a failure to honour a personal undertaking can constitute professional
misconduct, you should exercise great caution before giving a personal un-
dertaking to a fellow practitioner, regulator, court or tribunal.
Nature of undertaking
[25.10] An undertaking is a verbal or written promise either to do or refrain from
doing something. Undertakings may take a variety of forms. They are most
commonly given in the course of legal practice to avoid delays either in the
conclusion of a transaction (e.g. in the course of the sale of land and the
payment of the purchase price) or the progress of litigation. Van der Merwe,
SW (1974 DRP 384) states that:
“a legal practitioner’s word is his or her reputation. Both the public
and his or her colleagues are entitled to accept without further ado
that an undertaking given by an attorney or advocate will be uncondi-
tionally met irrespective of whether the practitioner might suffer fi-
nancial loss as a result.”
There is a distinction between a personal undertaking and an undertaking
given on behalf of a client. A personal undertaking is given by you on your
own behalf, such as an undertaking not to disclose information without the
court’s consent: see further [25.15]. An undertaking on behalf of a client is
binding on your client and not on you. For example, you may undertake that
your client will deliver certain goods within a specified time: see further
[25.20].
165
Personal undertaking
[25.15] Personal undertakings are enforceable against you. In addition, your failure
to honour a personal undertaking given in the course of your practice consti-
tutes a breach of professional conduct and will invariably lead to some form
of disciplinary sanction. Indeed all Law Societies in South Africa view this type
of misconduct in an extremely serious light and heavy penalties have been
imposed in the past.
When not to give personal undertakings

The following is a ruling of the Council of the (then) Transvaal Law Society
(1981 DR 160) which is still applicable:
“The liability of an attorney on his or her undertaking
1. The council of the Transvaal Law Society considered a complaint
made to it that an attorney had written a letter to a lay person
mentioning, among other things, that
‘I will guarantee payment of the amounts involved’
But counsel’s opinion was that, properly construed, the attor-
ney’s liability with regard to his letter depended on him being
provided with the funds out of which the guarantee would be
made good.
2. The council of the Transvaal Law Society ruled that, as a matter
of professional conduct, the attorney could not simply rely on
the strict interpretation of the undertaking. The council followed
the approach of the English Law Society as set out in A Guide to
the Professional Conduct, to the effect that the council consider
that it should be possible to place the utmost reliance on a
promise made by a solicitor and they therefore regard failure by
a solicitor to honour an undertaking as a breach of professional
conduct . . . An undertaking should be clearly worded so as to
express the intentions of the solicitor giving it and that of the so-
licitor or other person accepting it. This is all the more important
where the undertaking is given to a layman. In the event of there
being an ambiguity of wording, the council will construe the un-
dertaking in favour of the recipient.”
Because you cannot be compelled by anyone to give a personal undertaking,
you should normally not give one. You should certainly not give a personal
undertaking unless you have complete control over the subject matter of the
undertaking. Never give a personal undertaking to do something that is de-
pendent on your client’s co-operation because not all clients are honest and
reasonable. The fact that your inability to honour a personal undertaking is
due to your client changing his or her previous instructions to you does not
release you from your undertaking or exonerate you from personal liability
for its breach: Re Kerly, Son & Verden [1901] 1 Ch 467. However, if you give a
personal undertaking with your client’s authority, you can seek reimbursement
166
Chapter 25: Undertakings
from your client for any amounts paid by you in compliance with your under-
taking.1
For example, you should not personally undertake that your client’s affida-
vit of documents will be filed in court within a week unless the affidavit has
been sworn and is in your office. Similarly, you should not give a personal un-
dertaking to a third party as to how you will disburse trust funds because
your client may alter instructions previously given about those trust funds
and you would normally be bound to comply with the new instructions irre-
spective of your undertaking.
Apart from any liability you may incur as a result of breaking an under-
taking, your reputation as a practitioner for honesty and integrity will be im-
paired.
Release from undertakings

If you give a personal undertaking, you can only be released from it by per-
formance or with the consent of the person in whose favour it is made or,
where good cause is shown, by order of the court: Simpson v Brereton [1964]
VR 332 at 334–335.
Undertakings on behalf of your client

[25.20] Undertakings that are given on behalf of a client are enforceable against the
client only if they are given with the client’s express authority. In Hawkes v
Hawkes 2007 (2) SA 100 (SE) the court had to consider the conduct of an ad-
vocate who gave an undertaking on behalf of a client without having a man-
date to that effect. The court referred with approval to the dictum in Ras v
Liquor Licensing Board, Area No. 11 Kimberley 1966 (2) SA 232 (C) where it
was held that “a client is not bound by the actions of his or her legal repre-
sentative – attorney or counsel – where such representative has exceeded
the mandate given to him or her and he or she has achieved an object that
had not been intended by his or her principal”. As a result, Leach J held that
in the absence of authority to give an undertaking, the advocate’s conduct in
the present case (and the undertaking given by him) amounted to a failure of
justice and the undertaking therefore was not binding.
Accordingly, do not give an undertaking on behalf of a client unless you are
authorised to do so; otherwise the undertaking may be held to be a personal
undertaking. In Washaya v Washaya 1990 (4) SA 31 ZHC, the applicant’s
counsel, in a motion court hearing, obtained a judgment by consent in pursu-
ance of a settlement purportedly agreed to by the parties, the terms whereof
were read out in court and incorporated in the judgment. It subsequently ap-
peared from the evidence of the applicant and counsel that no instructions to
________________________
1 Halsbury’s Laws of England (4th ed re-issue, Butterworths LexisNexis, looseleaf), Vol. 44(1), [357].
167
settle had been given and that counsel had settled on his own initiative. In an
application for the setting aside of the judgment it was held as to the conduct
of counsel that he had acted in an irresponsible and grossly negligent or reck-
less manner, misleading the court and needlessly wasting its time. Accord-
ingly he had to bear the costs of his conduct.
A client’s instructions should never be anticipated. It is preferable to obtain
instructions in writing with an acknowledgement by the client that you have
given advice on the enforceability and other consequences arising from the
undertaking.
You must always make it clear whether or not you are giving a personal
undertaking. If you are giving an undertaking on behalf of a client, it is not
sufficient to say, “On behalf of my client I undertake . . .”; instead, you should
say, “I have been instructed that my client undertakes . . .” One way of safe-
guarding against any confusion is to obtain a written acknowledgement from
the party to whom the undertaking is given that the undertaking is binding
only between that party and your client.2
Terms to be clear
[25.25] You should also ensure that any undertaking you give is clearly and precisely
expressed and is not capable of having more than one meaning. Any ambigu-
ity in an undertaking may be construed in favour of the recipient of it.3 A
written undertaking is preferable to an oral undertaking because it avoids
disputes as to the terms of the undertaking.
You should avoid giving an undertaking in terms of “I give the usual under-
taking” unless there is a long-standing practice for doing so and the usual un-
dertaking is reduced to writing and its terms are clear and well known.
Use of word “undertake” not necessary

[25.30] You should take care not to inadvertently give an undertaking. It is not neces-
sary for the word “undertake” to be used for an undertaking to be provided.
The court looks to the substance of what is said: Ridon v Van der Spuy &
Partners (Wes-Kaap) Inc 2002 (2) SA 121 (C). Written undertakings by attor-
neys “to pay on behalf” of clients do not necessarily suggest agency. The
meaning of the phrase depends upon the context of its use, its interrelation-
ship to the language of the document as a whole and the nature and purpose
of the transaction as it appears from the document.
________________________
2 F Riley, “Undertaking on Behalf of Clients – Solicitors May Be Personally Liable” (1989) 27 (December) Law Journal,
20 at 22.
3 Cordery on Solicitors (9th ed, Butterworths LexisNexis, London, looseleaf) p F/402.
168
Chapter 25: Undertakings
Enforcement of undertakings
[25.35] The jurisdiction of a court to enforce an undertaking is extremely wide.
Proceedings brought against a practitioner for breach of an undertaking
may be initiated on a number of different bases:
l the inherent jurisdiction of the court to secure honourable conduct by its
officers;
l disciplinary proceedings for professional misconduct; or
l the jurisdiction of the court to enforce, by ordinary judicial remedies, any
obligations which a practitioner may have incurred including an order for
committal for contempt: Johannesburg Taxi Association v Bara-City Taxi
Association 1989 (4) SA 808 (W).
The obligation to carry out an undertaking can be enforced by either party to
litigation. Thus, if you act for the defendant and undertake to enter an ap-
pearance on behalf of the defendant, both the defendant and the plaintiff
can seek an order compelling you to honour your undertaking: Ridon v Van
der Spuy & Partners above.
Rule 18.02 of the Solicitors’ Practice Rules in England and Wales provides
that a solicitor who fails to honour an undertaking is prima facie guilty of pro-
fessional misconduct. That is the view also of the organised legal profession
in South Africa. The writer is aware of numerous instances where disciplinary
action was taken against legal practitioners who had failed to honour an un-
dertaking.
The writer is also aware of a case where a firm of attorneys had given an
undertaking in respect of the payment of trust funds which had actually been
paid into their trust account and were thus – as they thought – under their
complete control. That was so until the Receiver of Revenue heard about the
funds and as the owner of the funds owed a substantial amount to the Re-
ceiver in respect of arrear taxes, the Receiver appointed the firm of attorneys
as his agents. The result of that action was that the attorneys could not hon-
our their undertaking based on the availability of the trust funds and had to
pay the guaranteed funds out of their own pocket.
Accepting an undertaking from another practitioner

[25.40] If you receive an undertaking from another practitioner, ensure that it is
given in clear and precise terms. In the case of any ambiguity, seek clarifica-
tion from the lawyer giving you the undertaking. Ensure that any verbal un-
dertaking is confirmed in writing. If you do not receive written confirmation
from the other practitioner following a request from you, send him or her a
letter which sets out the terms of the verbal undertaking and request an im-
mediate response if the other practitioner disagrees with those terms.
169
Undertakings: conclusion
[25.45] As a lawyer, you are a member of an honourable profession. The perform-
ance of your personal undertakings is essential to your membership of the
profession. All lawyers should heed the words of Wylie J of the New Zealand
High Court in Countrywide Banking Corporation Ltd v Kingston [1990] 1 NZLR
629 at 640:
“to excuse the defendant from performance [of an undertaking] would
. . . seriously undermine the justifiable claims of the legal profession to
standards of integrity and honourable conduct upon which both the
profession and the public have constantly to rely. In order to demon-
strate the insistence by the Courts that those standards are to be
maintained the disciplining of those who breach them by ordering per-
formance is a very necessary, if regrettable, action to be taken.”
170
Chapter 26
Precautions against negligence
“The rule that you are to love your neighbour becomes in law, you must
not injure your neighbour . . . You must take reasonable care to avoid acts
or omissions which you can reasonably foresee would be likely to injure
your neighbour.”
Donoghue v Stevenson [1932] AC 562 at 580
Negligence and liability

Avoid being sued for negligence
[26.05] In everything you do, you must protect yourself against the possibility of
being sued for negligence.
As an attorney you are under an obligation to act as a reasonably compe-
tent practitioner would in the circumstances and having regard to the stand-
ards which are normally adopted by the profession.
If you are found to be negligent, you can also be liable to your client in
damages for breach of contract because it is an implied term of the contract
between yourself and your client that you are obliged, personally or through
others, to exercise the knowledge, skill and diligence to be expected of an
average practitioner: Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A) 142–
143; Slomowitz v Kok 1983 (1) SA 130 (A) 132.
What constitutes reasonable skill

[26.10] On the question of what constitutes reasonable skill and care it was stated in
Buls v Tsatsarolakis 1976 (2) SA 891 (T) and Van Wyk v Lewis 1924 AD, that
one cannot determine in the abstract whether a professional person has or
has not exhibited reasonable skill and care.
“We must place ourselves in the exact position in which the surgeon
found himself when he conducted the particular operation and we
must then determine from all the circumstances whether he acted
with reasonable care or negligently. Did he act as an average surgeon
as someone placed in similar circumstances or did he manifestly fall
short of the skill, care and judgment of the average surgeon in similar
circumstances? If he falls short, he is negligent.”
171
Specialists: what standards should be applied

[26.15] This poses the next question, namely what standards should be applied
where an attorney holds himself or herself out to be a specialist? Unlike in
the United States and many other countries overseas, South Africa has no
system whereby a specialist accreditation is available to practitioners al-
though in certain provinces they may identify themselves as such in terms of
their professional rules: Law Society of the Northern Provinces Rule 91.1.5.4;
Cape Rule 14.5.
In Bayer SA (Pty) Ltd v Frost 1991 (4) SA 559 (A) 568 the court concluded
that in principle a negligent misstatement may, depending on the circum-
stances, give rise to a delictual claim for damages at the suit of the person to
whom it was made, even though the misstatement induced such person to
enter into a contract with the party who made it. The circumstances will de-
termine the vital issues of unlawfulness and whether there is a causal con-
nection between the making of the misstatement and the loss suffered by
the plaintiff. The court added, however, that there is no ready formula for
determining unlawfulness. Each case must be decided on its own facts in the
light of the principles discussed in the case of Administrateur, Natal v Trust
Bank van Afrika Bpk 1979 (3) SA 824 (A).
Only time will tell whether the occurrence of professional negligence
claims will increase as a result of practitioners being able to hold themselves
out as specialists in circumstances where no clear guidelines exist in what cir-
cumstances they may do so.
Managing professional skills: the South African scenario

[26.20] Managing professional risks is one of the most important challenges facing
the legal profession today. In South Africa attorneys are still in the very for-
tunate position to enjoy automatic insurance protection which has been ar-
ranged for all firms by the Attorneys Fidelity Fund up to certain defined
limits. These limits, however, are subject to payment of an excess which in-
creases proportionately to the number of members in a firm. You must also
note that the excess increases to twice the normal amount if practitioners
with time-related actions have failed to register these with the Attorneys In-
surance Indemnity Fund.
You should ensure that you have sufficient cover above the limit arranged
through the Group Indemnity Insurance Policy, arranged by the Attorneys Fi-
delity Fund, if your firm handles transactions which financially exceed such
limit, as you will be personally liable for the payment of any amounts above
the defined limits.
Professional negligence claims are often caused by insufficient adminis-
trative controls in an attorney’s firm, by a poor flow of information between
attorneys and clients or staff and by an attorney’s willingness to accept work
which he or she is not competent to handle.
172
Chapter 26: Precautions against negligence
Because the obligations and responsibilities of practitioners are many, you

would be less than human if you did not make some mistakes during your ca-
reer. But even a good track record over many years will not absolve you from
liability in even a single isolated case where your standard of care fell below
that which is expected of members of the profession.
Although, through professional indemnity insurance, you may not be per-
sonally responsible for payment of any damages to your client, the harm
done to your professional reputation can be enormous. Furthermore, if your
reputation is damaged, the standing of the profession may also suffer and it
is possible that persistent negligent conduct could lead to disciplinary action.
Attitude of the South African courts

Error of judgement due to lack of knowledge
[26.25] In Mouton v Die Mynwerkersunie above it was held that the statement . . .
that an attorney “will not be guilty of negligence merely because he commit-
ted an error of judgment whether on matters of discretion or law” does not
exclude the possibility of liability where the error of judgement is due to the
lack of the required degree of knowledge, skill or care on the part of the at-
torney.
Failure to invest funds received from a client pending

registration of transfer
[26.30] Another important judgment is that of Smith v Price 1988 (1) SA 53 (W). The
plaintiff, a purchaser of certain immovable property, had deposited a sum of
money with the seller’s attorney in terms of the deed of sale which provided
that part of the purchase price had to be deposited with the seller’s attorney
and to be held in trust, pending registration of transfer, in an interest-bearing
account. The sale fell through and the attorney refunded the capital sum. The
plaintiff sued the attorney for the interest and the attorney then contended
that the claim was unenforceable as in terms of the rules of The Law Society
of the Northern Provinces moneys could only be invested with the consent of
the seller and the purchaser. If the attorney contravened such prohibition, he
would be guilty of an offence. It was contended for the plaintiff, who was not
an attorney that the rules promulgated by a professional body of attorneys
cannot be binding on members of the public who are not parties to them. In
a stated case in terms of Rule 33 of the Uniform Rules of Court it was held
that an attorney could not accept the money and sit idly by without investing
it and ultimately seek protection from his society’s rules. Accordingly, an ac-
tion for damages for breach of contract was maintainable.
173
Failure to observe the Rules of Court

[26.35] As to what can happen when a practitioner fails to observe the Rules of
Court, see the important decision of Ferreira v Ntshingila 1990 (4) SA 271 (A),
where it was argued that an application for condonation should be granted
since the merits of the appeal were so strong. In dismissing that argument
Friedman AJA (as he then was) held that negligence on the part of a litigant’s
attorney will not necessarily exonerate the litigant. Where the non-
observance of the rules has been so flagrant and as gross as in the present
case, the application should not be granted whatever the prospects of suc-
cess might be.
Undermining the administration of justice

[26.40] In the matter of Makuwa v Poslson 2007 (3) SA 84 (T) Patel J held that there
was a growing prevalence of failure to comply with the Rules of Court and
with court practices as set out in the Practice Manual and that it was time,
that the court, through its order in the present case, should issue a stern
warning against non-compliance with the Rules of Court. Those practitioners
who undermined the practice and the administration of justice would there-
fore incur the “displeasure of the Court” and an exemplary costs order. In the
present case the court held that it would have been unfair for the parties to
carry the costs of their attorneys’ negligence or unreasonable conduct and
both the plaintiff’s and the defendant’s attorney were ordered to bear their
respective costs de bonis propriis (i.e. from their own pockets).
Failure to issue summons resulting in the prescription of

plaintiff’s claim
[26.45] Where an attorney, having been instructed by his client to institute proceed-
ings for damages, had negligently failed to send a letter of demand and issue
a summons, and where, as a result the plaintiff’s claim had prescribed, the
court held that he was liable for 50% of the plaintiff’s costs for failing to exe-
cute his mandate: Manase v Minister of Safety and Security 2008 (1) SA 567
(Ck).
Disbursement of funds in a trust account without the

depositor’s instructions
[26.50] In the case of Hirschowitz Flionis v Barlett 2006 (3) SA 575 (SCA) the first re-
spondent, a practising attorney, had borrowed money and deposited it into
the trust account of the appellant, a firm of attorneys. In doing this he did not
identify himself or give instructions as to how the money was to be dealt
with. He believed, however, that pending instructions to the firm the money
174
would be held in trust. Thereafter a partner in the appellant firm proceeded

to disburse the bulk of the money without the depositor’s instructions. The
High Court found in favour of the depositor. On appeal, two issues arose for
consideration before the SCA, namely whether the partner in the appellant
firm, one F. was under a legal duty to deal with the money without negli-
gence and, further, whether there was contributory negligence on the part of
the first respondent.
On the first issue the court held that F was indeed subject to the legal duty
under discussion. First and foremost the appellant, as recipient of the money,
was a firm of practising attorneys. As such it proclaimed to the public that it
possessed the expertise and trustworthiness to deal with trust money rea-
sonably and responsibly.
Secondly, the first respondent relied on that proclamation and particularly
on the fact that the money would be in the appellant’s trust account until he
instructed otherwise.
Thirdly, where an attorney discovered an anonymous and unexplained de-
posit, it required minimal management to transfer the money to a trust sus-
pense account. It would be a task of no difficulty tracing the depositor with
the aid of the firm’s own bank. Thereafter one would merely leave the money
where it was until receipt of instructions by or on behalf of the depositor or
the person for whose benefit the deposit was made.
Fourthly, unreasonable conduct that might put the money at risk would, as
a reasonable foreseeability, cause loss to the depositor or beneficiary. In the
circumstances of the case the legal conviction of the community undoubtedly
clamoured for liability to exist.
The court also held that there had been contributory negligence on the
part of the first respondent in accepting oral assurances of a third party that
he hardly knew to the effect, that there was no need to communicate with F
about the money thus deposited. A reasonable person in his position would
not have accepted oral assurances on such an important issue from someone
he really only knew over the telephone. As a result, F was found 60% at fault
in relation to the loss and the first respondent 40%. The award of damages
made by the High Court was thus reduced from R3,1 million to R1,86 million.
Incorrect legal opinion

[26.55] An attorney’s failure to furnish his client with a correct legal opinion was
considered in the matter of Ditedu v Tayob 2006 (2) SA 176 (W) where the
debate revolved around the question of whether a claimant could be deemed
to have acquired knowledge of the extent of the compensation due to her for
purposes of s 12(3) of the Prescription Act 1969, before service of summons
on the defendant, her former attorney, in 2001. Three years later, the client
was advised by another attorney and then sued her former attorney alleging
175
that he was negligent in the performance of his duties in one or more or all of
the following respects:
l he failed properly to investigate the nature and extent of his former cli-
ent’s injuries in that he had failed to refer her to any medical specialists
for the purposes of obtaining medico-legal reports;
l he failed properly to investigate and determine his former client’s claim
for general damages; and
l he settled her claim for damages of R472 172 against the Road Accident
Fund in an amount of R5 013 and failed to advise her not to accept the
Fund’s offer of settlement.
She explained that she accepted the offer because she considered it a sub-
stantial amount of money and that, only upon consulting with her present at-
torney, in 2003, was she advised that she ought not to have accepted the
offer. The Road Accident Fund raised the special plea of prescription, alleging
that, for purposes of s 12(3) of the Prescription Act 1969, the plaintiff was
deemed to have acquired knowledge of the facts from which her claim arose
before service of summons on the Road Accident Fund in April 2001. It was
held that it was the law that indicated that the award had been too low and
that the defendant had acted negligently, so that the plaintiff’s failure to ap-
preciate that she had been wronged arose from her ignorance of the law. Her
attorney had in effect provided her with an opinion that was wrong in law. It
was held, further, that once a lay person consulted an attorney or other legal
expert and the latter furnished him or her with an erroneous opinion, the
furnishing of that erroneous opinion was a fact for purposes of s 12(3) of the
Prescription Act.
Failure to observe the formal requirements of the Wills

Act 1953
[26.60] In Pretorius v MaCallum 2002 (2) SA 423 (C) the court had to consider a claim
by a “disappointed beneficiary” in a case where an attorney had drawn up a
will that failed to comply with the formal requirements of the Wills Act 1953
thus rendering the will invalid. This meant that the estate had to devolve ac-
cording to the rules of intestate succession and that the second and third
plaintiffs would not receive anything. As the defendant claimed that South
African law did not recognise an action for damages by a disappointed bene-
ficiary against a negligent attorney, the court proceeded to examine the case
law in the USA, Canada, England and Australia and came to the conclusion
that as most jurisdictions found it to be just and reasonable to impose liabil-
ity on the lawyer to compensate the intended beneficiary, there was no rea-
son in principle why a claim based on an attorney’s duty of care to ensure
that the expectation of the intended beneficiary was realised, should not be
upheld: Creative Car Sound v Automobile Radio Dealers Association 1989
(Pty) Ltd 2007 (4) SA 546 (D).
176
What happens when you realise that you may have acted
negligently?
[26.65] The first question which must be asked is whether your conduct constitutes a
contravention of the Attorneys Act 1979 or the rules of the Law Society to
which you belong.
In this regard Lewis, Legal Ethics (Juta & Co Ltd, 1982) p80 says:
“Negligence, other than negligence prescribed by rule as a misconduct,
will not amount to misconduct unless its aspects, or the aspects of the
concomitant, associated or subsequent but related, conduct are
tainted with some impropriety which may fairly be regarded as unwor-
thy of a right-minded and honourable practitioner; any conduct which
attorneys of good repute and competency, and consequently the
court, would consider dishonourable, or disgraceful, or deplorable, or
so reprehensible as to verge on the disgraceful, or to be such as will
bring the profession into disrepute, is an impropriety so to be regarded
as ‘unworthy’. . . ”
Concerning the ethical aspects (i.e. not the juridical aspects of civil liability)
the attitude of the Law Society of the Northern Provinces (De Rebus, January
1980, 42) provides a very good example of the approach adopted by provin-
cial law societies with regard to this problem. In this particular instance the
Council was satisfied that the attorney was negligent in allowing his client’s
claim to become prescribed and the question was whether such negligence
amounted to unprofessional, dishonourable or unworthy conduct in terms of
the Attorneys Act.
The Council confirmed that negligence by itself is not necessarily improper
conduct. It is improper conduct only where it is so gross as to show a serious
or reckless disregard for the client’s interests or for the proper standards of
competence which can be expected of the profession. In reaching that deci-
sion the Council was influenced by the fact that it was a single occurrence;
that the attorney had dealt with the matter diligently; and that he had dealt
with his client honestly when he discovered the claim had become pre-
scribed.
The second question is what to do?
Where in the course of acting for a client in relation to a matter you be-
come aware that your client may have a cause of action against you in re-
spect of your handling of that matter, you must advise your client to obtain
separate legal advice about your conduct but do not make any admissions
which may prejudice your professional indemnity insurance.
Even if it is not possible to eliminate all mistakes, you should aim to keep
them to a minimum. This can only be done by adopting suitable precautions
against the occurrence or recurrence of errors by you and those who work
with you.
The following list of precautions illustrates the types of measures that you
should adopt with a view to eliminating errors.
177
Litigious matters
[26.70] Prescription
Always verify the period of prescription that is applicable to a particular mat-
ter. Do not assume that you have three years in all cases. Specific time limits
are prescribed by many statutes such as revenue, insurance, debts and nu-
clear legislation.
[26.75] Do not delay the service of proceedings
Do not withhold or delay the issue or service of proceedings simply because
you are in the midst of, or about to commence, negotiations with an insur-
ance company or third party.
[26.80] Tactical purposes
If proceedings of any nature are to be instituted on behalf of a client “purely
for tactical purposes” you should explain in writing
(a) why you advise the issue of process;
(b) what are the prospects of success;
(c) the consequences which will flow from failure of the process;
and obtain written instructions whether or not to proceed. It is most difficult
at a later date, in the absence of any such written advice and authority, to
explain total failure of the tactic when the client is faced with liability for the
whole of the costs.
[26.85] Stabilisation of injuries
It is common practice for attorneys to delay the institution of personal injury
proceedings until the injuries have stabilised on the basis that, until stabili-
sation, it is difficult to determine in what court the proceedings should be is-
sued. In such circumstances it is so easy to overlook the date of prescription.
Accordingly, as a matter of course, register all time-barred claims with the At-
torneys Fidelity Fund immediately after you have received instructions.
[26.90] Last minute consultations
If you are consulted by a client on the eve of a claim becoming prescribed
and there is no time to draw up detailed particulars of claim, issue a sum-
mons and apply for an amendment of the particulars at a later stage.
[26.95] Acting for more than one defendant
If you are acting for a plaintiff and there are two possible defendants, each of
whom is denying liability, sue them both in the same action by joining them
as defendants.
[26.100] Where a defendant has insurance cover
When you are consulted by a defendant in a situation where insurance cover
may exist, it is important to ask your client whether or not any insurance
178
cover is held for the claim made or any part of it. Where cover may be avail-
able, the claim should be reported immediately to the insurer involved and
instructions should be sought as to who is to conduct the defence of the pro-
ceedings.
[26.105] Signed statements from witnesses
Learn the facts as soon as possible. If your client’s instructions reveal the ex-
istence of witnesses, obtain a signed statement from them as soon as possi-
ble and keep in touch with them until the case is settled or is heard. Also
formulate your views on whether the action is worth pursuing as soon as
possible. Do not allow the action to drag on until the pre-trial conference
with counsel before you turn your mind to the question of whether the ac-
tion is viable or not.
[26.110] The possibility of a counterclaim
Immediately the question of a counterclaim arises during the course of in-
structions, check on the dates involved. Make the counterclaim promptly and
observe the time limits required under the particular Rules of Court.
[26.115] Pleadings drafted by counsel
Lewis, Legal Ethics, p139 mentions that a solicitor’s reliance on pleadings
prepared by counsel has been held in England to relieve him or her from the
danger of being sued in negligence: Manning v Wilkin [1848] 12 LTOS 249;
Cordery 6th ed. 460. He adds that this principle must be subject to the condi-
tions that obvious errors in such pleadings must not be overlooked by the at-
torney who briefed counsel, that counsel must be well chosen and that he or
she must be properly instructed lest unsatisfactory work flows from defective
instructions.
[26.120] Matters taken over from another practitioner
When taking over any matter from another practitioner, it is very important
to satisfy yourself that at the particular stage at which you take over the
wheel, all matters requiring attention have been attended to. In particular,
be wary when taking over a matter shortly before the claim is due to pre-
scribe. Backtracking on earlier work can prove costly and the client should be
warned of this aspect when original instructions are received. Unfortunately,
omissions by other practitioners or the client may become your own omis-
sions simply because you failed to review the transaction and make the ne-
cessary enquiries from your client or other parties.
[26.125] Free legal advice offered to acquaintances
Be wary of giving gratuitous legal advice to acquaintances on social occa-
sions. If you think that off-the-cuff advice on an informal occasion will never
get you into trouble, you may be unpleasantly surprised. Acquaintances may
be impressed with your advice and may act on it. If your advice turns out to
be wrong, they may not hesitate to sue you. The fact that the advice was
179
gratuitous would not protect you. You should not take the risk of being sued
for negligent misstatements. It is better to make an appointment for the ac-
quaintance to come to your office where you can be given proper instruc-
tions and you can give considered advice.
Property transactions
[26.130] The General Manager of the Attorneys Insurance Indemnity Fund reports
that during the insurance period 1 July 2008 to 31 March 2009 conveyancing
was by far the most prevalent claim type (Risk Alert No. 3/2009), followed by
MVA prescriptions, litigation, MVA under-settlements and general prescrip-
tions. A Red Flag has been issued in respect of conveyancing matters where
actual claims have been received and as the number of claims has increased
from 30 in 2003 to 294 in 2008, the following is quoted from the Risk Alert
Bulletin 3/2009 to alert conveyancers to some of the possible pitfalls:
“Payment of deposits/purchase price
Never pay over the deposit and/or purchase price until the transfer
has been registered and you have ensured that all undertakings, etc.,
have been met. It is also advisable to warn purchasers against improv-
ing the property before registration.
Payment of proceeds of sale to a third party who is not authorised to
act on behalf of a seller
Be very wary of situations where anyone other than the seller gives in-
structions regarding the payment of the proceeds of the sale. Always
obtain the seller’s written and verified instructions if the proceeds are
to be paid to or on the instructions of anyone else.
Failure to study and familiarise yourself with the terms of the Deed
of Sale
This is a very important area which has led to a number of claims
against conveyancers. Ensure that all conditions have been met before
transferring the property. Ensure that the seller is advised of his rights
in the case of a breach and that the correct remedies are applied.
Failure to confirm instructions in writing
All material terms and instructions like variations of the agreement
and other essential facts should be recorded in writing.
Failure to provide guarantees timeously or in an acceptable form re-
sulting in the seller cancelling the contract. Premature payments in
terms of a guarantee
In one matter the conveyancer failed to establish that the seller’s bond
was a single facility account. The purchaser’s bank paid the guarantee
directly into the seller’s account and the conveyancer only became
aware of this once the seller had withdrawn a substantial portion of the
proceeds before registration.
180
Undue delays in passing transfer or opening a Sectional Title register,

etc.
Give clients realistic time periods for transfer, so that there are no un-
realistic expectations. Timeously advise clients of unavoidable delays.
Prepare documents with great care to avoid delays at the Deeds Of-
fice.
Failure to ensure that transfer/bond documents are signed in front of
the conveyancer so that the identity of signatories can be verified
All documents must be signed in the conveyancer’s presence, once the
identity (and where necessary, the authority) of the signatory has been
confirmed.
Failure to clarify and reduce to writing the relationship with third
parties, for example estate agents
In one instance where a claim was received, the recipient of a standard
letter sent out by a conveyancer inviting tenders on a property, subse-
quently alleged that he had had a mandate to sell the property and
claimed commission on the sale. The conveyancer had regarded the
claimant as an interested developer. The problem was made worse by
the fact that the conveyancer had not received (or responded to) a let-
ter from the claimant setting out the terms of his alleged mandate.
Problems with the financial aspects of a transaction especially VAT,
Transfer Duty, Capital Gains Tax, currency of purchase price, etc.
Ensure that you establish the status of the parties to the agreement of
sale and whether transfer duty or Value-Added Tax applies or if the
transaction is zero-rated. Be extra vigilant when dealing with parties
in/from other countries and ensure that VAT is paid over to the Re-
ceiver of Revenue timeously.
NB. If the seller is a non-resident the sale will be subject to Capital
Gains Tax. Advise your clients accordingly. Conveyancers must be wary
as the Receiver of Revenue will expect them to pay over the Capital
Gains Tax.
NB. For a useful discussion of this aspect refer to the article by
Hesma Strydom in Bulletin 2/2008.
Failure to obtain the consent of the Minister in terms of s 3(1)(e) of
the sub-division of Agricultural Land Act 1970
The conveyancer drafted an agreement of sale, which was entered into
prior to the parties having obtained the consent of the Minister of Ag-
riculture. On the basis that he was not bound by the agreement, the
seller sold the property to another purchaser. The original purchaser
claimed damages from the conveyancer.
Creation of a conflict of interest situation, when acting for both pur-
chaser and seller and a dispute arises
Remember that the transferring attorney/conveyancer is duty bound
to safeguard the interests of both seller and purchaser, especially
when one of the parties is not represented.
181
Failure to comply with the requirements for sales of immovable

property in instalments in terms of the Alienation of Land Act
In one instance an option clause, drawn by the conveyancer was unen-
forceable as it did not sufficiently describe the property as required by
s 2(1) of the Alienation of Land Act, read together with the Sectional
Titles Act.
Proceeding with a foreclosure when the judgment debtor has made
arrangements with the bank/Failure to communicate property with
the judgment creditor (bank, body corporate, etc.)
Before carrying out such a drastic step, ensure that you are aware of
all developments.
Failure to observe specific conditions of the title deed/Failure to en-
sure that conditions in the deed of sale are carried over on the title
deed.
This happens more often than one would expect and great care
should be taken.
Furnishing of undertakings (including bridging finance matters)
In practice, attorneys sometimes give undertakings on behalf of and on
the instructions of their clients. These undertakings promise to pay an
amount of money on the happening of a future event. The legal impli-
cations and consequences of attorneys giving such undertaking were
underestimated until the decision in Ridon v Van der Spuy & Partners
(Wes-Kaap) Inc 2002 (2) SA 121 (C).
In the light of that decision, it is imperative that great care should be
given in the wording of such a document. It must be clear that the un-
dertaking is only given in a representative capacity and that the attor-
ney/firm does not assume personal liability for the payment should it
not be honoured. Where possible, the undertaking should be given
and signed by the client himself or herself, where not, the attorney
should obtain an irrevocable authorisation from the client.
With regard to bridging finance matters, refer to Hesma Strydom’s
article on the topic in Bulletin 4/2008.
Payment of the proceeds of a sale to an incorrect party
Again it is essential to know what documents and instructions are on
the file before paying out. There have been several instances where
the conveyancer forgot to pay the Receiver of Revenue, the bridging
finance company or the estate agent’s commission.
Inadequate supervision of an employee
Of late there have been many more claims where the employee is in-
adequately supervised by the conveyancer. This leads to numerous
mistakes as well as giving the employee an opportunity to act fraudu-
lently/ dishonestly. Many bridging finance claims have arisen because
of the lack of supervision.
Use of bridging finance companies
Please refer to Hesma Strydom’s article on this topic in Bulletin 4/2008.
Remember that you are at a greater risk if you obtain bridging finance
182
for the seller or estate agent. If the sale is cancelled, there is a strong
possibility that the seller or agent will not repay the debt. Try to re-
strict your firm to only obtain bridging finance for necessary finances
that would enable you to register the transfer.
Lack of communication between the various attorneys (transfer,
bond registration and cancellation) and bank departments in the
transfer process
Make sure that you obtain, read and retain on file, the most recent
correspondence from all parties. Also make sure that you keep the
other parties up to date with regard to any developments.
In one such matter the conveyancer was instructed by a bank to at-
tend to the cancellation of a bond. On the date of cancellation, the
conveyancer had a system problem and was unable to notify the bank.
The bond account had been settled in full by payment of a guarantee
and the seller withdrew the money, as the account had not been
closed by the bank, which had been unaware that the bond had al-
ready been cancelled.
Failure to draft the agreement of sale in accordance with the wishes
of the parties/The requirements of the relevant legislation or to ad-
vise the parties properly with regard to the provisions of the agree-
ment
Numerous claims arise from an attorney’s failure to correctly draft the
agreement of sale. It is essential that you take cognisance of the re-
quirements of all the legislation relevant to the particular transaction
and ensure that the parties are aware of these and that the agreement
complies with them. It is risky to accept instructions in complicated
matters in areas in which you do not have the relevant experience or
expertise!
Failure to secure the purchase price resulting in a shortfall on transfer
If a deposit or the balance of the purchase price is payable in cash be-
fore registration, ensure that you do not lodge the transaction before
you have confirmation that the balance of the purchase price was paid
into your trust account and that it has been cleared, (if it was a cheque
payment it takes 10 days to clear).
Cancellation for breach
In one instance the conveyancer assisted the purchaser in attempting
to negotiate the purchase price of an immovable property. In respect
of clause 11 of the Agreement of Sale (which had already been drafted
by the seller’s attorney) the purchaser had to obtain a mortgage bond
within 30 days of signature. The seller’s attorneys sent a letter to the
conveyancer, reminding him of the contents of clause 11, who then
failed to remind the purchaser of this requirement.
The conveyancer only received notification from the purchaser that
a bond had been approved, one day after the expiry of the 30 day pe-
riod stipulated in clause 11. He immediately communicated this to the
seller’s attorney, who advised that the sale had lapsed because of the
late notification of the bond approval.
183
The purchaser had to renegotiate the purchase price (for a higher

amount) and thereafter claimed (among other things) the difference
from the conveyancer.
Failure to observe specific conditions in the title deeds/Deeds
search, for example no subdivision allowed, existing servitudes, prop-
erty has mineral rights, attachment on property.
X Bank instructed the conveyancer to register a second bond over a
property and paid the money to the mortgagor on date of lodgement
(as opposed to date of registration). The documents were rejected on
lodgement and it was then discovered that there had been an earlier
attachment of the property and that the bond could not be registered.
The conveyancer had failed to properly check the deeds office re-
cords before lodgement which would have revealed the attachment.
In another matter, there was a clause in an agreement of sale in
which the mineral rights were reserved in favour of the seller of the
immovable property. The agreement was sent to the purchaser for
signature and the latter amended the clause so that only one third of
the mineral rights would be retained by the seller. The conveyancer
did not notice the change and proceeded to register the property
without the reservation of the full mineral rights.
Claims by estate agents
In one instance, because of a dispute between the seller and the es-
tate agent over commission, the conveyancer furnished a formal un-
dertaking to retain an amount from the proceeds of the sale, pending
the resolution of the dispute. The seller then terminated the convey-
ancer’s mandate, leaving him unable to perform the terms of the un-
dertaking. The estate agent demanded his commission from the
conveyancer, on the basis of the undertaking which was not worded to
allow for a situation such as this one.
Conveyancers should remember that there is no obligation on them
to furnish an undertaking to an estate agent for payment of the com-
mission. It is just a practice that has established itself over the years.
This claim also illustrates the importance of a correctly worded un-
dertaking and the fact that attorneys should be very wary when giving
undertakings.
Trust Property Control Act (trustee did not have authority to bind the
trust)
In this instance the conveyancer, acting for the purchaser of an im-
movable property bought from a trust, failed to establish that the trus-
tee had not been authorised to act on behalf of the trust.
Before transfer, the trust sold the property to someone else for a
substantially higher price and refused to be bound by the agreement
with the first purchaser.
Always request a copy of the Letters of Appointment and the Trust
Deed (FICA). The Trust Deed will confirm the powers and the obliga-
tions of the trustee. It might contain a restriction on the sale of the
property in question.
184
Options
Options to renew a lease should be exercised promptly. It is common
to find that attorneys for lessees and the lessees themselves are so
preoccupied in negotiations for a fresh lease that the necessity of duly
exercising an option to renew is completely overlooked. If you exercise
the option and a fresh lease is not concluded, you have done your duty
to protect your client; if a fresh lease is concluded, then the renewed
lease resulting from the exercise of the option can simply be cancelled.
New instructions
Always do a search of the relevant title deed at the Deeds Office im-
mediately after you have received instructions to register a transfer or
mortgage bond in order to verify ownership, the number of bonds reg-
istered against the property and the name(s) of the bondholder. By fol-
lowing this procedure unnecessary delays and surprises will be
avoided.
Accounting for the proceeds of a sale
When accounting to joint owners, following sale or realisation of as-
sets, particularly in the case of husband and wife, it is prudent to ob-
tain written instructions from both of them which outline how the
funds are to be distributed. You will thus avoid an incorrect distribu-
tion and will not be involved in a belated attempt to correct the distri-
bution or find yourself liable personally to meet any shortfall caused to
one of the parties.
Failure to account promptly to the parties entitled to money in your
trust account may give rise to a claim on you for any interest lost due
to delay on your part, particularly if you have failed to invest the funds
in an interest-bearing trust savings account for the benefit of the par-
ties until registration of transfer has taken place. More likely than not,
such failure will also lead to a complaint lodged against you with your
Law Society.
[26.135]
Commercial transactions
Be careful that you do not hold yourself out as having expertise on
commercial and financial issues, as distinct from legal issues, in case
your client relies on you and later sues you if the transaction in ques-
tion, while correctly documented as a matter of law, was a commercial
disaster. Stick to your knitting and leave the commercial decisions to
your clients and their financial advisers.
Banks and other institutions increasingly require attorneys to sign
certificates to show that certain steps have been taken or that certain
documents are legally effective. Do not treat such certificates as mere
formalities that have to be completed because as sure as night follows
day you will be sued if something goes wrong with the transaction. Do
not sign the certificate unless you are satisfied it is accurate. If the cer-
tificate contains matters which are outside your personal knowledge
then delete the relevant parts or otherwise qualify what you are certi-
fying.
185
Be particularly careful when explaining the effects of a guarantee to

a client. If you are consulted to give such advice, make sure you explain
the contents of your guarantee in details to the guarantor and if it is
not in the guarantor’s interest to sign the guarantee then advise ac-
cordingly, preferably in writing.
[26.140]
Overseas considerations
If you accept a retainer to act in a matter which will involve the institu-
tion of proceedings or the taking of some other action in an overseas
jurisdiction, you should use overseas correspondents rather than try-
ing to ascertain the law of other jurisdictions yourself or assuming that
there are no material differences in the law of your home jurisdiction
and the other jurisdiction. You should obtain immediate advice on the
local requirements, in case time limits or other prerequisites exist. If
you decide to do the work yourself, make sure you confirm its correct-
ness with experienced practitioners in the other jurisdiction. Where
documents (such as leases or mortgages) are involved, ensure that
they are vetted by a practitioner in the other jurisdiction to ensure
compliance with the law there.
When paying any overseas correspondents for work that they have
done on your behalf, make sure you make proper currency calculations
to avoid overpaying or underpaying them. It is easy to forget exchange
rate differences, or to overlook currency fluctuations.
Before employing overseas correspondents, obtain an estimate
from them as to what they will charge for their services and ensure
your client is informed of such estimate before you obtain instructions
to employ the correspondent. The method of fixing remuneration for
legal practitioners differs among jurisdictions and accordingly you may
find that legal work that would cost approximately R5 000 in your own
jurisdiction may cost the equivalent of R20 000 in another jurisdiction.
Your client is unlikely to be amused by a disbursement of R20 000 in
your bill of costs.
[26.145]
Office systems
No matter how similar the interests of a group of clients may appear,
always open a separate file for each client. Often the interests of one
client in a group can so overshadow the interests of others that there
is a danger that the latter will be neglected and even overlooked alto-
gether. Be on the lookout for this, especially in matters where a num-
ber of clients have personal injury claims arising from the same
accident.
Whenever possible, avoid accumulating large files. Keeping separate
files for clients’ separate transactions is conducive to better organisa-
tion and efficiency. Large files are difficult to control and make it diffi-
cult to locate a particular document amongst the mass of papers on
the file. Separate files help avoid the risk that you may overlook some
transactions, a risk which is not uncommon in multi-transaction files.
186
It may be a pious hope but in an ideal world you should have only
the file on which you are currently working on your desk. If the tele-
phone rings and the ensuing conversation is likely to be lengthy and
requires reference to another file, put the current file away and get
the file that the call relates to from your filing cabinet. If you have
many files on your desk, particularly if they are all open, it is highly
probable that you will put documents in the wrong file. When those
documents are needed, it may take several hours before they are lo-
cated and sometimes you may not be able to locate them at all. De-
pending on the nature of the documents, the consequences of
misfiling can be disastrous.
Review all your files constantly with a view to refreshing your mem-
ory quickly as to what each matter has reached and what further steps
need to be taken and when. It is prudent to prepare a daily list of
‘Things to Do’ in order of priority and to cross off each item once it is
completed. Items not completed at the end of the day should be car-
ried forward to the next day. When you are working on a file and you
can foresee the steps you will need to take sometime in the future,
you should list these in your diary and also on a file memo to be kept
at the front of the file so that, when the time comes, you will remem-
ber to take those steps.
Have an efficient diary and recall system. Enter in your diary all criti-
cal time limit dates for the issue and service of process, hearings and
also dates for exercise of options in leases and other future obligations
accepted on behalf of clients. It is advisable to note reminders for ma-
jor events one or two weeks before they arise. Make sure your client’s
cause of action does not become prescribed or your client’s lease ex-
pires through the absence of an adequate office system to safeguard
against this.
Where possible, devise instruction sheets or checklists for the vari-
ous areas of your firm’s practice. This will reduce the incidence of er-
rors or omissions.
If you work in a large firm, discourage clients from marking corre-
spondence to you ‘personal and confidential’. If you are absent from
the office for any reason and no one dares to open personal corre-
spondence which may contain urgent instructions, the result could be
disastrous. Alternatively, if you must receive personal and confidential
correspondence from a client, then before going on holidays or ab-
senting yourself from the office for any other reason, you should either
advise your client to refer correspondence to another practitioner in
the office, or alternatively, give another practitioner authority to open
your personal and confidential correspondence.
If you work in a large firm with an ‘unclaimed mail’ basket, ensure
that the basket is checked every day and appropriate inquiries are
made to clear the basket as soon as possible to ensure that correspon-
dence – which may contain urgent instructions or cheques, etc. – does
not lie around idly. One way of preventing the ‘unclaimed mail’ basket
from becoming cluttered is to put your reference on every letter or
187
document that leaves your office in the pious hope that your reference
may reappear on incoming letters or documents.
Place valuable items, such as title deeds and cheques into the safe.
Do not leave them on desks or in files overnight even if they will be ex-
changed at the Deeds Office the next morning. A burglary overnight is
not an impossibility. In accordance with general principles of law, you
will be liable to your clients if you fail to exercise due and reasonable
care for the safety of their documents.
If you have custody of a client’s will, you should ensure that it con-
tains the address of the testator, the executor and the heirs. The writer
has seen hundreds of wills which were more than ten years, and in
some instances even fifty years, old without any indication where the
testator could be found or if, in fact, he or she was still alive.
Having the address of the testator is also a valuable marketing tool
to remain in touch with him or her for the purpose of updating his or
her will from time to time.
Unless a client is personally known to you, insist on proper identifi-
cation when a person claiming to be a client, or the authorised agent
of the client, comes to your office to collect title deeds or other impor-
tant documents held by you. This should be done also when you re-
ceive instructions over the telephone to dispatch documents.
[26.150]
General
When circumstances exist in any file which may give rise to a claim
against you and you are instructed to hand over your file to the client
or another practitioner, you should retain a complete copy of the file
for your own use and protection.
Do not leave files and other documents unattended in court over
luncheon adjournments or in public libraries. Similarly, do not leave
your trust ledger or cheque books or laptop computer or a briefcase
containing files, legal papers or documents of any kind in a motor car
parked anywhere even though it may be locked.
Take detailed diary notes of all telephone conversations and discus-
sions with clients, witnesses, opposing practitioners and counsel. In
addition, you should also confirm discussions by letter. A diary note is
merely a record made by one person and might not necessarily accord
with another person’s version of the same conversation or situation.
Confirmation by letter is the only sure way of avoiding disputes. All file
and diary notes should be clearly handwritten or, if possible, typed. A
useful guide in preparing a file note is to assume that the file may be
transferred to another practitioner so that you ensure that the file
note is as detailed and legible as you would wish if you were the re-
cipient of the file.
Make sure that you observe your client’s instructions. An unauthor-
ised deviation from the terms of your client’s retainer may make you
liable in damages to your client even though you act in accordance
188
with prevailing professional practice.1 When you receive instructions

by telephone involving sums of money – such as amounts owing to
your client – you should not rely on the telephone conversation alone
but should confirm in writing to your client the details recorded by you
before taking any further steps in correspondence or otherwise with
third parties. Failure to do so may leave you exposed to an allegation
of mistake as to amount, leaving it to a court to determine who, be-
tween you and the client, is to be believed.
It is wise to decline to act for a client who places unfair pressure on
you to prepare documentation or finalise matters within an unreason-
able time. However, if a retainer is accepted then any advice should be
confirmed in writing immediately. This is particularly important where
you advise caution in relation to such things as the premature giving or
taking of possession of movables, the payment of money prior to the
registration of deeds of transfer or mortgage bonds or the entering
into binding contracts where obtaining the consent of third parties
should be made a condition precedent. If you do not adopt these pre-
cautions you may find that the client who pressures you for quick re-
sults will turn on you when their own judgment is later found to be at
fault. Above all, do not act for pushy clients in any area of practice in
which you are not experienced.
Do not sign as a witness to a document unless you in fact saw the
person whose signature purports to be on the document sign it. Sign-
ing in the absence of the signatory is dishonest and may amount to
unprofessional conduct and possibly a crime. It may also result in a
claim being made against you by a person who suffers loss.
Do not fall into the habit of putting your difficult files at the bottom
of the pile in the hope that you will be dealing with them “tonight”
when the phone has stopped ringing. You will soon find yourself post-
poning attention to these files time after time, and this may irretrieva-
bly prejudice your clients.
Inordinate delays in litigious matters may lead to default judgment
being entered against a defendant or a plaintiff’s action being dis-
missed for want of prosecution. The consequences of delay are also
disastrous in many other areas of practice. Delay is a common com-
plaint levelled against the profession and you should always strive to
avoid it. Clients expect that their matters will be attended to with rea-
sonable expedition, will be kept moving and will be concluded within a
reasonable time. Do not disappoint them. Also remember that the
sooner a matter is complete, the sooner your fees will be paid.
Do not try to be all things to all people. You are not expected to be
an expert in all areas of the law. If a matter is within your area of prac-
tice but it involves complex issues, it is proper, with your client’s con-
sent, to refer it to experienced counsel. However, if a relatively simple
matter is completely outside your field, it is not fair to make your client
________________________
1 Cordery on Solicitors (8th ed Butterworths & Co., Publishers Ltd. London 1988) p 95.
189
incur counsel’s fees simply because of your ignorance. In such a case

the more appropriate step is to refer the client to another attorney
with experience in the relevant matter. Alternatively, if you wish to ac-
quire experience in the relevant matter then it might be appropriate
for you to brief counsel and not charge the client for counsel’s fees.
If a client, a witness or an opponent needs to stay in your office for
some time in order to attend to matters such as the inspection of
documents, do not leave that person in your office unsupervised, par-
ticularly if you have confidential documents relating to other clients on
your desk or in full view in other areas of your office. The best course is
to organise for the relevant activity to be conducted in an empty con-
ference room. Inspection of documents by an opponent should always
be supervised.
Ensure that all your staff (including casual staff such as students on
work experience) are instructed to maintain strict confidentiality in re-
lation to clients’ affairs. Having regard to their inexperience, you
should be selective about what information students on work experi-
ence are given access to.
Do not conduct confidential discussions over the telephone with a
client if another client or some other third party is in your office. Say to
the client that you will call back after you have finished your meeting.”
Conclusion: precautions against negligence

[26.155] The trend towards conservative and preventive legal advice and the increas-
ing expectations of the community in relation to the performance, standard
and roles demanded of lawyers are likely, in the future, to broaden the ac-
countability of lawyers and raise the requisite standard of care demanded of
them.2
________________________
2 M Mills, “Professional Negligence: The Expanding Liability of Lawyers” (1992) 9 Australian Bar Review at 1.
190
Chapter 27
Unprofessional conduct
“A lawyer with a briefcase can steal more than 100 men with guns.”
Marlon Brando as Don Corleone, The Godfather, quoted in
“Lawyers: Jokes, Quotes, and Anecdotes 2003 Calendar”,
Fit and proper person

[27.05] You must be a fit and proper person in order to be admitted to the legal
profession. The expression “fit and proper” obviously requires that you must
not do anything that is illegal, fraudulent or dishonest. But it goes further
than that: you must refrain from conduct both in your personal and pro-
fessional capacity that would cause you to be brought into disrepute and
erode public confidence in the profession.
The words “fit and proper person” are nowhere clearly defined. In Kaplan v
Incorporated Law Society, Transvaal 1981 (2) SA 762 (T) it was stated that a
“fit and proper person is generally a person of integrity and reliability
. . . that the expression relates to the personal quality of the applicant
and that matters with which a Law Society has to be satisfied in that
context in terms of s 16 of Act 53 of 1979 are prestige, status and dig-
nity of the profession.”
“The profession of an attorney is an honourable one and as such de-
mands complete honesty, reliability and integrity from its members”
(Vassen v Law Society of the Cape of Good Hope 1998 (4) SA 532
(SCA)).
“An attorney is unfit to practise if the misconduct in question is of such
serious a nature that it manifests character defects and a lack of integ-
rity rendering the person unfit to be on the roll” (Incorporated Law So-
ciety, Natal v Roux 1972 (3) SA 146 (N), per Miller J).
Different criteria apply to applications for re-admission when a practitioner
was previously struck off the roll following an application by his or her Law
Society. In that event the onus of proof is much heavier. In this connection
Bosshoff JP held in Kaplan at 792 that a person previously struck off will
qualify to be re-admitted when he or she has shown himself or herself to be a
fit and proper person in relation to the prestige, status and dignity of the
191
profession and the responsibility, standard of professional conduct and

integrity of practitioners. In examining these criteria one of the important
points which the court has to consider is whether the applicant has shown
that he or she is completely and permanently reformed in relation to the
unprofessional conduct which led to his or her removal from the roll. For
instance in Ex parte Ngwenya: In re Ngwenya v Society of Advocates, Pretoria
2006 (2) SA 87 (W) the Court held that an applicant for admission as an
advocate cannot on the one hand plead that he or she was wrongly
convicted, or alternatively, that he or she has reformed. Reformation can
only begin when a person acknowledges that he or she has committed the
wrongful act. The applicant’s character references of how he had reformed
were irreconcilable with his allegation that he had been wrongfully convicted.
If the applicant’s character references were correct, his statement that he
had been wrongfully convicted was untrue, which, in turn, meant that he was
not a “fit and proper person” to be admitted as an advocate.
Breaches and penalties

[27.10] The High Court in your jurisdiction has an inherent power to discipline practi-
tioners, who are officers of the Court.
The Attorneys Act 1979 and the professional rules of the four Law Societies
in South Africa provide details as to what amounts to unprofessional conduct
and prescribe procedures and sanctions for disciplining the profession. The
ultimate sanction is to be struck off the roll of practitioners so that you can-
not practise law. You should note that the rules of professional conduct of
the four Law Societies are not identical and what may constitute unpro-
fessional conduct in the eyes of one Law Society may not be unprofessional
conduct in the eyes of another Law Society. You must also bear in mind that
the Attorneys Act 1979 and the provincial Law Societies’ rules are not ex-
haustive and that the other main sources of professional ethics are court de-
cisions, the common law and South African text books. The public interest in
particular and foreign influences also plays a role.
It is your duty to be familiar with and abide by the provisions of the Attor-
neys Act 1979 and the professional rules which prescribe or prohibit conduct
for members of the profession in your jurisdiction. These will not be dis-
cussed in this book in detail. Rather, the writer will concentrate on the stand-
ards of professional conduct demanded by the common law. Regarding the
Attorneys Act 1979 and the professional rules of the law societies, your at-
tention is drawn to the very important dictum in Die Prokureursorde van die
Oranje-Vrystaat v Schoeman 1977 (4) SA 588 (O) to the effect that “ignorance
is no excuse and in most instances it is rather an aggravating than a mitiga-
tory factor. An attorney who does not take the trouble of familiarising him-
self or herself with the Act and the rules and who, as a result lands on the
wrong track, cannot expect much sympathy on punishment”.
192
Chapter 27: Unprofessional conduct
Negative duty
[27.15] The common law prescribes an essentially negative duty. You must always
refrain from conduct which would be reasonably regarded as unprofessional
or dishonourable by the courts which have exclusive jurisdiction to decide
whether or not a practitioner is a fit and proper person to practise: Nyembezi
v Law Society, Natal 1981 (2) SA 752 (A) 751.
The duty is formulated in terms which are general and flexible. As change
and development occurs within the community and the legal profession, the
parameters of what is or is not acceptable conduct by practitioners will also
change and develop. For instance as recently as 20 years ago it was unprofes-
sional conduct on the part of an attorney to advertise his or her services. To-
day you can advertise as much as your budget allows subject to the rules or
guidelines of your Law Society.
In Law Society of the Cape of Good Hope v King 1995 (2) SA 887 (C) it was
stated:
“An analysis of cases concerning ‘striking off’ applications in recent
years (and specifically those decided in the Cape Provincial Division)
reveals a trend away from the adoption of the formalistic and conser-
vative approach to applications by the Law Society seeking the removal
of an attorney’s name from the roll . . . to the adoption of what may be
referred to as a more enlightened approach. This trend has highlighted
a marked distinction which has been, and is being, drawn between
cases where the ultimate sanction of ‘striking off’ should be imposed
and those where errant attorneys are visited by less severe punish-
ment.”
All one can do is to seek guidance from more experienced practitioners, from
the relevant Law Society and from the decided cases. If you ever have any
doubt as to whether what you are about to do is proper, it is better not to do
it. You should avoid the possibility of an accusation of unprofessional
conduct, even if ultimately it is unjustified.
Unprofessional conduct usually occurs in a professional capacity. It can,
however, also arise from conduct in your personal life.
The obligation to conduct yourself with honesty at all times underlies many
of the duties owed by you to your clients, the court and fellow practitioners.
Uphold the law

[27.20] Because you, as a practitioner, are associated with the administration of the
law, you are under a positive duty to maintain the law at all times. This obvi-
ously means that you must not break the law. Being convicted of a criminal
offence (other than trivial offences, such as minor traffic infringements) usu-
ally amounts to unprofessional conduct even if no dishonesty is involved be-
cause it may indicate that you have a disrespect for the law.
193
In Prince v President, Cape Law Society 2002 (2) SA 794 (CC) the applicant
for admission had submitted an affidavit from which it appeared that he had
twice been convicted under s 4(b) of the Drugs and Drug Trafficking Act 1992
for possession of cannabis sativa (dagga) and that he intended to continue
using the drug because he was a Rastafarian, the use of dagga being a promi-
nent feature of Rastafarianism. In this case, which went right up to the Con-
stitutional Court it was held, among other things, that “fit and proper” means
fit and proper in every respect and not only honesty and reliability. An attor-
ney’s avowed intention of contravening the law in future, does not square
with the requirement.
In the case of Incorporated Law Society v Behrman 1957 (3) SA 221 (T)
where the then Law Society of Transvaal applied for the removal of the at-
torney’s name from the roll, Ramsbottom J, who handed down the judgment,
said at 222B–E 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 great-
est gravity. 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 cer-
tain 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 en-
trusted with the duties of an officer of the court. In my opinion there
can only be 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 can-
not dream up any mitigating circumstances.”
In the case of Jasat v Natal Law Society 2000 (3) SA 44 (SCA) 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 al-
ibi and persisted in his false alibi throughout appeal proceedings in two fur-
ther courts. The court held that Jasat’s conduct in advancing a specious alibi
defence, knowingly giving false 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 practise as an attorney and that he should be struck off
the roll.
An attorney convicted of purchasing uncut diamonds in contravention of
s 84(1)(a) of Precious Stones Act 1964 and sentenced to a fine and suspended
imprisonment was suspended from practice for a period of four months: Law
194
Society, Transvaal v Blumberg, 1987 (3) SA 650 (T); Prokureursorde Transvaal

v Van der Merwe 1985 (2) SA 208 (T).
In Zimbabwe the court confirmed the decision by the disciplinary tribunal
of the Law Society to delete the name of the appellant from the roll of legal
practitioners after he had been convicted of defeating or obstructing the
course of justice. The practitioner had been convicted of three driving of-
fences over a period of ten years, including negligent and drunken driving,
but it only became apparent in the final case that he never had a licence at
all. In one of the previous cases he had relied on the licence of a relative with
the same name and had at all times concealed this fact from the court. The
appeal court came to the conclusion that the appellant had demonstrated
and continued to demonstrate a lack of that integrity which the legal profes-
sion demands of its members: Mafara v Law Society of Zimbabwe 1988 (3) SA
247 (ZS).
Your client and the law

[27.25] Your duty to uphold the law also requires that you must not assist your client
to break the law. If your client proposes to break the law, you must alert your
client to the consequences of such action and seek to dissuade him or her.
However, it is not improper for you to advise your client on how to take ad-
vantage of a loophole in the law.
Your responsibilities towards your client can never override your duty to
uphold the law. Accordingly, you must not do anything that is dishonourable
even if it is in the interests of your client and you are 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).
See also: HEG Consulting Enterprises (Pty) Ltd v Siegwart 2000 (1) 507 (C).
To quote the Law Society of England:
“A solicitor must not act dishonourably, degrade himself, fight unfairly,
lend himself to underhand or criminal activity or descend to sharp
practice in order to benefit his client or win his case.”1
________________________
1 The Council of the Law Society, A Guide to Professional Conduct of Solicitors (Law Society, London, 1974), p 17. See
also Law Society, The Guide to the Professional Conduct of Solicitors (8th ed, Law Society, London, 1999).
195
The position of barristers is very similar:

“As an advocate [a barrister] is a minister of justice equally with the
judge . . . [He must] do all he honourably can on behalf of his client. I
say ‘all he honourably can’ because his duty is not only to his client. He
has a duty to the court which is paramount. It is a mistake to suppose
that he is the mouthpiece of his client to say what he wants: or his tool
to do what he directs. He is none of these things. He owes allegiance
to a higher cause. It is the cause of truth and justice. He must not con-
sciously misstate the facts. He must not knowingly conceal the truth.
He must not unjustly make a charge of fraud, that is, without evidence
to support it. He must produce all the relevant authorities, even those
that are against him. He must see that his client discloses, if ordered,
the relevant documents, even those that are fatal to his case. He must
disregard the most specific instructions of his client if they conflict with
his duty to the court. The code which requires a barrister to do all this
is not a code of law. It is a code of honour. If he breaks it, he is offend-
ing against the rules of the profession and is subject to its discipline”
(Rondel v Worsley [1967] 1 QB 443 at 502).
If your client has acted illegally, such as deliberately swearing a false affidavit
or has suppressed material facts when under an obligation to disclose them,
you should immediately request your client to rectify the situation. If your
client refuses, you should withdraw from the case and, if your client’s actions
would tend to corrupt the administration of justice, you should also inform
the court. If you knowingly allow your client to swear a false affidavit, you
may be guilty of unprofessional conduct.
You should bear in mind that you have a duty to fully explain to your client
his or her obligations in relation to matters such as swearing an affidavit. If
you do not do so and your client, because of inexperience makes errors, you
may be held to have acted negligently and you could be responsible to your
client for the payment of damages.
Abuse of process
[27.30] You have a duty not to abuse the process of the court or, by dishonest
means, hamper your opponents in the conduct of their case. It is an abuse of
process to institute proceedings if you know that your client’s case is false or
on the basis of receiving a proportion of the amount recovered.
It was held to be an abuse of the process of the court where in an applica-
tion for leave to intervene in sequestration proceedings documents in extent
of more than 800 pages were filed. The court held in Ex parte Jordaan: In Re
Grunow Estates (Edms) Bpk v Jordaan 1993 (3) SA 448 (OPD) that these steps
were so unnecessary that they could with justification be described as vexa-
tious and an abuse of the process of the court.
196
See also Woji v Santam Insurance Co. Ltd 1981 (1) SA 1020 (A) where an at-
torney included unnecessary reports in a record of appeal resulting in an or-
der that he be precluded from recovering such costs from the appellant.
Launching a prosecution against someone for the purpose of intimidation
in relation to other proceedings involving your client amounts to unprofes-
sional conduct: Clyne v The New South Wales Bar Association (1960) 104 CLR
186. Similarly, initiating a proceeding in the knowledge that it is doomed to
fail for the purpose of gaining a temporary bargaining advantage amounts to
an abuse of process: White Industries (Qld) Pty Ltd v Flower & Hart (1998)
156 ALR 169.
You should never allow your name to be put on a statement of claim with-
out reasonable belief in its contents. Nor should you make any statement of
fact you know you cannot support by evidence or which is based on evidence
which you know is inadmissible.
Legal practitioners have a duty to the court and a responsibility towards
colleagues to act honestly, conscientiously and openly for the proper admin-
istration of justice. The non-disclosure of material facts amounts to unprofes-
sional conduct: Pienaar v Pienaar 2000 (1) SA 231 (O).
You should never directly or indirectly suggest that a witness give evidence
which you know to be false. This does not apply, however, where you merely
suspect its falsity because it is up to the court to decide the truth.
In Van der Berg v General Council of the Bar of South Africa [2007] 2 All SA
499 (SCA) which concerned the advocate’s involvement in settling an affidavit
by a client knowing that the facts contained in that affidavit were incorrect
or, at best, highly suspicious Nugent JA held on appeal that the finding by the
court a quo that it was improper for the advocate to settle the affidavit be-
cause he suspected that the evidence was false, was not correct. Merely to
suspect, or even firmly to believe, that evidence is false does not preclude
the advocate from permitting his client to place the evidence before the
court. Even if he believes positively that his client’s evidence is false, he is en-
titled, and indeed obliged, to place it before a court if those are his client’s
instructions.
When appearing in court, you should refrain from needless and unjustified
attacks on your opponent or a witness. You must never allow yourself to be
made a channel for questions intended merely to insult or annoy. Further,
you have a duty to conduct yourself with dignity, propriety and courtesy to-
wards the occupant of the Bench.
False statements
[27.35] Unprofessional conduct may be constituted by a lack of complete candour in
any statement you make to the court. Your duty of absolute honesty and in-
tegrity to the court precludes not only deliberate lies, but also misleading
197
statements. Unless courts can have complete confidence in the honour of

practitioners and are able to accept unreservedly any statements made by
them, the administration of justice will be seriously impaired.
“Legal practitioners occupy a unique position. On the one hand they
serve the interests of their clients, which require a case to be pre-
sented 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 repre-
sentative and their clients or witnesses is not a matter for public scru-
tiny. Therefore with the preservation of a high standard of professional
ethics having been left almost entirely in the hands of individual practi-
tioners, it stands to reason, firstly, that absolute personal integrity and
scrupulous honesty are demanded of each of them and, secondly, that
a practitioner who lacks these qualities cannot be expected to play his
or her part” (Kekana v Society of Advocates of South Africa 1998 (4) SA
649 (SCA)).
It is thus unprofessional conduct:
l for an advocate to lie under oath in an application to strike his name
from the roll of advocates: see Kekana above;
l for an attorney failing to be frank and open in his or her dealings with his
or her (Law) Society and with the court and where at times he or she had
attempted to deceive his or her Society and the court: Law Society of the
Cape of Good Hope v Holmes 2006 (2) SA 139 (C); and
l for a practitioner to cover up misconduct by making a false and mis-
leading statement to the Law Society: Incorporated Law Society of the
Transvaal v S 1957 (3) SA 780 (T); Incorporated Law Society, Transvaal v
van E 1954 (4) SA 155 (T).
Attesting affidavits
[27.40] Apart from contravening the Justices of Peace and Commissioner of Oaths
Act 1963, it is improper for you to attest an affidavit when the deponent is
not present to affirm the contents of the affidavit of oath. Lewis, Legal Ethics,
p146 states:
“It is also misconduct on the part of a practitioner in any way whatso-
ever to alter or cause or permit to be altered, any affidavit or declara-
tion which has been sworn to or affirmed, signed and attested.”
Trust funds
[27.45] If you hold funds on behalf of a client, you should keep them in a separate
trust account and you may not mix them with your own funds: see s 78(1) of
198
the Attorneys Act 1979. Failure to maintain proper trust books of account or
to account to clients for money collected on their behalf amounts to unpro-
fessional conduct: see s 83(1) of Act 53 of 1979 and the applicable rules of
the various Law Societies. So does using trust funds belonging to a client for
your own purposes, (Law Society, Cape v Koch 1985 (4) SA 379 (C); Law Soci-
ety, Cape v Peter [2006] SCA 37 RSA) or for the purposes of another client: In-
corporated Law Society, Transvaal v Visse 1958 (4) SA 115 (T); Law Society of
Transvaal v Matthews 1989 (4) SA 389 (T).
See also Botha v Law Society Northern Provinces 2009 (1) SA 277 (SCA)
where the High Court struck the appellant’s name from the roll of attorneys
as he was found to be not a “fit and proper person” to continue to practise.
The unprofessional conduct of which he was found guilty entailed contra-
ventions, in various respects, of the provisions of the Act (Act 53 of 1979) and
the rules made under the Act relating to books of account and trust moneys.
Knowingly permitting your trust account to be used for money laundering
or other unlawful purposes is obviously unprofessional conduct.
Defrauding your partners

[27.50] It is unprofessional conduct to defraud your partners: Cape Law Society v
Elliott 1994 (unreported).
Supervision of staff
[27.55] A practitioner who fails to supervise his or her staff may, in some circum-
stances, be guilty of unprofessional conduct: Incorporated Law Society, Natal
v Vermaak 1976 (2) SA 192 (N); Incorporated Law Society of the Transvaal v S
1957 (3) SA 780 (T); Rule 14(b)(vii) KwaZulu-Natal Law Society.
Conflict of interest2
[27.60] Borrowing from clients may constitute unprofessional conduct: Law Society,
Transvaal v Matthews 1989 (4) SA 389 (T). A practitioner who enters into a
transaction with a client or former client in circumstances of unacceptable
conflict between his or her interests and duty is guilty of professional mis-
conduct: Law Society of the Cape of Good Hope v Tobias 1991 (1) SA 430 (C).
Not honouring obligations

[27.65] Failure to meet an obligation which a practitioner is honour bound to per-
form may amount to unprofessional conduct. For example, failure to pay
________________________
2 See Chapter 10.
199
within a reasonable time the reasonable fees and disbursements of a corres-

pondent may constitute unprofessional conduct: KwaZulu-Natal Law Society
Rule 14(b)(xi).
Similarly, the giving of a trust cheque by a practitioner in the knowledge
that there are insufficient funds to cover it will with certainty invite an in-
spection of the practitioner’s books of account from his or her Law Society
and may lead to an application for the removal of his or her name from the
roll if there are aggravating circumstances.
The failure of a practitioner to carry out his or her personal obligations to-
wards his or her own creditors is normally not the concern of the Law Society
in the exercise of its supervision of his or her activities as a member of the
profession: Incorporated Law Society, Transvaal v G 1953 (4) SA 962 (T). It is
important to note, however, that since 1993 a practitioner whose estate has
been either provisionally or finally sequestrated, is liable to be struck off the
roll if he or she is unable to satisfy the court that despite his or her sequestra-
tion he or she is still a fit and proper person to continue to practise as an at-
torney: s 22(1)(e) of the Attorneys Act 1979.
Conducting another business

[27.70] An attorney may engage in the conduct of another business concurrently
with his or her practice as an attorney where that other business is of a re-
spectable character and is not one that would be likely to bring the profes-
sion into disrepute. If you do engage in another business, you must always
observe your fiduciary obligations to your client and avoid any conflicts of in-
terest from arising: Incorporated Law Society, Transvaal v Meyer 1981 (3) SA
962 (T).
The sharing of offices with a person who is not a practitioner nor employed
by a practitioner constitutes unprofessional conduct: Cape Law Society Rule
14.7; The Law Society of the Northern Provinces Rule 89.2.
Tax advice and defrauding the revenue

[27.75] If you provide advice on tax issues, you must bear in mind the critical distinc-
tion between the terms “tax evasion” and “tax avoidance”. Tax evasion refers
to all activities deliberately undertaken by your client to free himself or her-
self from tax which the law charges upon his or her income, for example the
falsification of his or her returns, books or financial statements. This is illegal
and subject to severe penalties. If you assist your client in these activities you
are also committing an offence and the Commissioner of Inland Revenue
may, in addition to penalising you, also lodge a complaint of unprofessional
conduct with your Law Society: s 105A of the Income Tax Act 1962.
200
“Tax avoidance” on the other hand refers to any activities where your cli-
ent legally arranges his or her affairs in such a way that he or she reduces his
or her income or that he or she has no income at all. For instance if he or she
invests his or her surplus funds in tax-free securities.
There are a number of provisions which are designed to counteract specific
forms of tax avoidance. As an example, see the donations tax. Furthermore,
there is a general provision to counter schemes for the avoidance of tax; for a
detailed discussion see the South African Income Tax Guide 2008/2009 by
C Divaris and ML Stein.
Delays
[27.80] Neglect or delay in the transaction of a client’s business may amount to
unprofessional conduct: Ingelyfde Wetsgenootskap van Transvaal v Du Preez
1963 (1) SA 198; Incorporated Law Society, Transvaal v Bothma 1962 (4) SA
177 (T). Where an attorney was found guilty of neglecting his clients and his
work, the Appellate Division confirmed on appeal the decision of the court of
first instance that the practitioner was not a fit and proper person to prac-
tise: Nyembezi v Law Society, Natal 1981 (2) SA 752 (A).
Overcharging
[27.85] Gross overcharging of clients amounts to unprofessional conduct: Law Soci-
ety of the Cape of Good Hope v Tobias 1991 (1) SA 430 (C).
Breach of undertaking
[27.90] If you breach an undertaking to a court or another practitioner, you may be
guilty of unprofessional conduct: Keppie v Law Society of the Australian Capi-
tal Territory (1983) 65 FLR 147; John Fox v Bannister, King & Rigbeys [1987] 3
WLR 480 at 483; Udall v Capri Lighting Ltd (In Liq) [1987] 3 WLR 465; see
Chapter 25. Breach of an undertaking to a court may also constitute a con-
tempt of the court: see also Chapter 30.
Ignorance is no excuse
[27.95] Ignorance of what is appropriate professional conduct is no excuse. In fact, a
misconception of your duty as a barrister or solicitor could itself amount to
disgraceful or dishonourable conduct: Re A Barrister and Solicitor (1984) 58
ACTR 1 at 8.
201
Dishonesty and personal gain not required

[27.100] There may be unprofessional conduct without positive dishonesty. If a solici-
tor, by what he or she has done, evidences that he or she does not under-
stand the nature and extent of the obligations to clients which the profession
imposes or does not observe them, then, given the sufficient gravity of the
impropriety, he or she may be held guilty of unprofessional conduct: Law So-
ciety of New South Wales v Foreman (1991) 24 NSWLR 238.
A practitioner can be guilty of unprofessional conduct even if no personal
gain is derived, or is intended, from that conduct: Attorney-General v Bax
[1999] 2 Qd R 9 at 20.
Similarly, the fact that no client or other person actually suffers loss due to
the practitioner’s conduct does not prevent a finding of unprofessional con-
duct. However, that fact may tend to explain the nature and extent of the
misconduct and is clearly relevant to the question of penalty.
Personal life
[27.105] The standards of behaviour expected of you are very demanding and extend
not only to your professional life but also to your personal life. The rationale
is that if you do something which brings you into disrepute, then the profes-
sion will be brought into disrepute and, further, the administration of justice
– of which members of the profession are an integral part – will be brought
into disrepute.
Accordingly, even though personal misconduct may have less weight than
professional misconduct, it may still be a ground for striking you off the roll of
practitioners because it may show that you are not a fit and proper person to
practise law: Reyneke v Wetsgenootskap van die Kaap die Goeie Hoop 1994
(1) SA 359 (A). You must adhere to the standards of behaviour expected of
you in everything you do. Some of the obvious things you should avoid in
your private life are:
l constantly being drunk in public: Prokureursorde van Transvaal v Kleyn-
hans 1995 (1) SA 839 (T);
l accepting a bribe; embezzling funds received by you for a specific pur-
pose, attempting to deal in dependence-producing substances and asso-
ciating with criminals: Law Society, Cape v Karjieker CPD 9 June 1980
(unreported);
l unlawfully dealing in uncut diamonds: Law Society, Transvaal v Blumberg
1987 (3) SA 650 (T); and
l causing malicious damage to property: Prokureursorde van Transvaal v
Kleynhans 1995 (1) SA 839 (T).
However, not all behaviour which may be subject to criticism amounts to un-
professional conduct. For example, having extra-marital intercourse with a
202
client may fall short of constituting unprofessional conduct and the same
applies to regular betting at racecourses and failure to pay debts to book-
makers.
Discourtesy to members of the public

[27.110] Arrogant or discourteous conduct towards members of the public can bring
you and the profession into disrepute even if it does not amount to unprofes-
sional conduct. One example relates to the summoning of witnesses to give
evidence: see also Chapter 31. Members of the medical profession frequently
complain that they are not given adequate notice of when they will be re-
quired in court and consequently have to cancel a day’s appointments at very
short notice. Other witnesses sometimes complain that they spend hours in
corridors outside court rooms before someone informs them that the rele-
vant case was settled the previous day.
The reputation of the profession suffers because of the cavalier treatment
of doctors, police and civilian witnesses who are summoned to give evidence.
Unfortunately, too frequently, witnesses are summoned to give evidence in a
case which does not proceed or in which they are unlikely to be called for
several days. Often, witnesses do not know where the court is and no ar-
rangements are made to assist them.
The best way to prevent inconvenience to a witness who is summoned is
to give him or her a letter at the time the subpoena or summons is served, in-
forming the witness that the date in the subpoena or summons is nominal
and that he or she should telephone you to discuss when he or she will be
required in court. If the timing changes or the witness is no longer required,
promptly inform the witness.
You should never do anything that would attract an accusation that you
have been discourteous to witnesses and members of the public in general.
Unprofessional conduct: conclusion

[27.115] Compliance with high standards of professional and personal conduct is the
price lawyers pay for the privilege of practising law. You are expected to
know where the dividing line is drawn between acceptable and unacceptable
conduct. If you cross that line, either deliberately or through ignorance, you
may damage your reputation and also jeopardise your membership of the
profession.
203
Part 4
Relationship with the courts
Chapter 28
Court conduct
“A judge is not supposed to know anything about the facts of life until they
have been presented in evidence and explained to him at least three
times.”
Lord Chief Justice Parker, Observer, 12 March 1961
Officer of the court

[28.05] Although not all attorneys and advocates appear in court every day, it is rare
for any practitioner not to have some contact with the court system during
his or her professional life.
The courts are the fulcrum of the legal system and, whether you are an at-
torney or advocate, you have a recognised place there. Attorneys and ad-
vocates are traditionally regarded as officers of the court.
The courts confer certain privileges upon you by virtue of your mem-
bership of the legal profession and in turn impose some obligations.
Some of the obligations that courts impose – such as the duty of complete
honesty – have already been discussed in Chapter 6 and Part 3 of this book.
In Part 4 I will examine how you should conduct yourself towards court offi-
cials, judges and witnesses as well as some basic aspects of presenting a
court case.
207
Chapter 29
Relationship with court officials
“Sometimes it’s who you know rather than what you know.”
Issuing and filing court documents

[29.05] As a candidate attorney without any right of appearance you will probably
find that your initial contact with the courts will not be glamorous at all.
Rather than either presenting a case or instructing in court, you are more
likely to be assigned responsibilities such as issuing and filing court docu-
ments. The only way you will get anywhere near a real-life court hearing will
be if you deliberately digress from your more mundane chores in order to
spend some time in a courtroom.
Although chores such as issuing or filing court documents may appear bor-
ing, you should not avoid them altogether in the early stages of your career
as a lawyer. Instead, you should undertake them even if it is just for a week
and even if there are experienced clerks in your office who normally do them.
Such chores will give you an insight into the legal “machinery” and will ex-
pose you to the officials in charge of tasks such as issuing writs, subpoenas,
summonses, warrants of execution and so on. While waiting in the queue you
may even get a chance to read documents such as subpoenas which you may
have heard about but had no idea of what they actually looked like.
Always be courteous to court officials

[29.10] You should always be courteous to court officials, irrespective of their senior-
ity. Such officials are part of the court system and therefore there is no room
for arrogance or discourtesy. You should attempt to foster a good working re-
lationship with all court officials. They know the court procedures backwards
and will readily assist you when you run into problems. They will obviously be
less willing to co-operate with you if you have not treated them with respect.
Developing a friendly rapport with court officials will also make your chores a
little more pleasant.
Remember that even the most junior court clerk may one day become a
clerk of the court, registrar or the holder of some other position of responsi-
bility. It is better to have such a person onside. One day an emergency may
209
arise and your friendship with court officials may even save you from a negli-
gence suit.
Bear in mind that in some circumstances insulting or obstructing a court of-
ficial may amount to contempt of court.1
________________________
1 Halsbury’s Laws of England (4th ed re-issue, LexisNexis Butterworths, London, looseleaf), Vol 9(1), [437]; see also
Chapter 30.
210
Chapter 30
Contempt of court
“Justice is not a cloistered virtue: she must be allowed to suffer the scru-
tiny and respectful, even though outspoken, comments of ordinary men.”
Ambard v Attorney-General (Trinidad and Tobago) [1936] AC 322 at 335
Courage and courtesy

[30.05] Courage by a legal practitioner in the face of a hostile Bench is praiseworthy.
However, there is a fine line between being a fearless legal practitioner and a
noisy troublemaker, intent upon preventing the court from carrying out its
proper judicial functions. If you overstep that line, you may find yourself cited
for contempt of court which carries serious penalties, including fines and
even imprisonment. You may also face disciplinary action for professional
misconduct.
From time to time you will be confronted by a magistrate or judge who in-
terferes constantly with the presentation of your case or who appears to
have prejudged the issues. Pressure being exerted from the Bench, parti-
cularly when you suspect that the Bench does not really know what it is talk-
ing about, can be an emotional and vexing experience. The challenge is to act
courteously to the tribunal before which you are appearing and yet to fear-
lessly and vigorously represent your client. Courage and courtesy must go
hand in hand.
Two forms of contempt of court

[30.10] Contempt of court has traditionally been separated into criminal contempt
and civil contempt. Criminal contempt may be constituted by conduct that is
disrespectful to the court, such as wilful insult, the interruption of court pro-
ceedings or other conduct of that nature amounting to misbehaviour: S v
Mkize 1962 (2) SA 457 (N) and is punishable at common law: R v Mans 1950
(2) SA 602 (C). It is irrelevant whether the conduct takes place in the face of
the court or outside the face of the court. Civil contempt, on the other hand,
involves the wilful refusal or failure to comply with an order of the court
without lawful excuse. In Höltz v Douglas & Associates (OFS) CC 1991 (2) SA
797 (O) civil contempt was defined simply as the “intentional refusal or fail-
ure to comply with the order of a competent court”.
211
There is some overlap between criminal and civil contempt. For example, a
deliberate disobedience of a court order or undertaking can constitute both
civil and criminal contempt.
This chapter focuses on criminal contempt of court in its different forms.
The court’s power to punish practitioners and other persons for criminal con-
tempt is based on its inherent jurisdiction to protect the due administration
of justice
Contempt in the face of the court or in facie curiae

[30.15] The crime of contempt of court has many faces and can be committed in
many ways, which has caused Kriegler J to remark that it has been referred to
as the Proteus of the legal world in S v Mamabolo (E TV Intervening) 2001 (3)
SA 409 (CC). Criminal contempt of court is often classified in accordance with
the varied ways in which the crime can be committed. Broadly speaking, the
law distinguishes between contempt of court in the face of the court and
outside the face of the court: S v Moila 2006 (1) SA 330 (T). The former takes
place while the court is in session, and usually relates to misbehaviour which
is calculated to violate the dignity of the court or judicial officer or is disrup-
tive of the proceedings. Contempt “outside the face of the court” or “ex facie
curiae” is not committed in the presence of the presiding officer in court.
Publishing information regarding a pending case which tends to prejudice its
outcome, is an example of such contempt, whilst scandalising the court as in
the case of S v Moila above, is another.
The main distinction between the two broad manifestations of contempt
of court relates to the rapidity and procedural efficacy with which action can
be taken against the contemner. In the case of contempt committed in the
face of the court, the court may summarily subject the contemner to trial for
contempt of court and, in the event of a conviction, sentence him or her
forthwith. On the other hand, and again generally speaking, contempt com-
mitted outside the face of the court should not be dealt with summarily but
by way of criminal prosecution under indictment. In Mamabolo the Constitu-
tional Court, held that the summary contempt procedure adopted in that
case, which also concerned contempt of court in the form of scandalising the
court, flew in the face of the accused’s fundamental right to a fair trial and
was accordingly unconstitutional at [51–59] per Kriegler J.
“Words which tend, or are calculated, to bring the administration of
justice into contempt, amount to contempt of court . . . nothing can
have a greater tendency to bring the administration of justice into con-
tempt than to say, or suggest, in a public newspaper, that the Judge of
the High Court of this territory, instead of being guided by principle
and his conscience, has been guilty of personal favouritism, and al-
lowed himself to be influenced by personal and corrupt motives, in ju-
dicially deciding a matter in open court” (In re Phelan (1877–81 5 at 7)
per Kotzé J).
212
Chapter 30: Contempt of court
In S v Mamabolo (E TV Intervening) 2001 (3) SA 409 (CC) Kriegler J referred to

the history of the existence of contempt of court as a punishable offence and
then asked the fundamental question why there is such an offence as
scandalising the court at all in this day and age of constitutional democracy.
“Why should Judges be sacrosanct? Is this not a relic of a bygone era
when Judges were a power unto themselves? Are Judges not hanging
on to this legal weapon because it gives them a status and untouch-
ability that is not given to anyone else? Is it not rather a constitutional
imperative that public office-bearers, such as Judges, who wield great
power as Judges undoubtedly do, should be accountable to the public
who appoint them and pay them? Indeed, if one takes into account
that the Judiciary, unlike the other two pillars of the State, are not
elected and are not subject to dismissal if the voters are unhappy with
them, should not Judges pre-eminently be subjected to continuous
and searching public scrutiny and criticism?”
In answering these questions he continues to say:
“It is simply, because the constitutional position of the Judiciary is dif-
ferent, really fundamentally different. In our constitutional order the
Judiciary is an independent pillar of State, constitutionally mandated
to exercise the judicial authority of the State fearlessly and impartially.
Under the doctrine of separation of powers it stands on an equal foot-
ing with the executive and the legislature and the legislative pillars of
the State; but in terms of political, financial or military power it cannot
hope to compete. It is in these terms by far the weakest of the three
pillars; yet its manifest of independence and authority are essential.
Having no constituency, no purse and no sword, the Judiciary must rely
on moral authority. Without such authority it cannot perform its vital
function as the interpreter of the Constitution, the arbiter in disputes
between organs of the State and, ultimately, as the watchdog over the
Constitution and its Bill of Rights – even against the State. No one fa-
miliar with our history can be unaware of the very special need to pre-
serve the integrity of the rule of law against governmental erosion. The
emphatic protection afforded the Judiciary under the Constitution
therefore has a particular resonance.
The Judiciary cannot function properly without the support of the
public. Therefore courts have over the centuries developed a method
of functioning, a self-discipline and a restraint which, although it differs
from jurisdiction to jurisdiction, has a number of essential characteris-
tics. The most important is that Judges speak in court and only in
court. They are not at liberty to defend or even debate their decisions
in public. It requires little imagination to appreciate that the alterna-
tive would be chaotic . . . Because of the importance of preserving pub-
lic trust in the Judiciary and because of the reticence required for it to
perform its arbitral role, special safeguards have been in existence for
many centuries to protect the Judiciary from vilification . . . That is
where the crime of scandalising the court fits into the overall scheme
of the administration of justice. It is one of the devices which protect
213
the authority of the courts. It is therefore hardly surprising, that it is

recognised as a crime in many common law jurisdictions.”
The most important function of the imposition of punishment in this case is
to enforce the court’s authority. The punishment is not meant to hurt the
offender, but to bring about an end to the outrage to the court’s esteem and
authority: S v Nel 1991 (1) SA 730 (A).
For words or actions used in the face of the court or in the course of pro-
ceedings to be contempt, they must be such as would interfere, or tend to in-
terfere with, the course of justice. The crime of contempt must have at least
three essential features: (a) it is a crime of intention; (b) it is a crime which re-
lates to the administration of justice in the courts and not generally; and (c) it
is designed to prevent or punish violations of the dignity or authority of the
courts and not mere criticisms of the administration of justice of the courts: S
v Gibson 1979 (4) SA 115 (D).
Contempt in the face of the court includes:
1. wilfully insulting a judicial officer during his or her sitting;
2. wilfully insulting a clerk or messenger or other officer during his or her at-
tendance at such sitting;
3. wilfully interrupting the proceedings of the court; or
4. otherwise misbehaving in the place where a court is held (s 108(1) of the
Magistrates’ Courts Act 1944).
It follows that where a person is alleged to have committed contempt of
court in contravention, for instance of s 108(1) of Act 32 of 1944, then the in-
tent with which that person is charged must be at least an intent with know-
ledge of the possible consequences, that is to say that he or she acts in the
knowledge that what he or she is doing, or is about to do could be contempt
of court.
Laughing gas
[30.20] If you like cases to be interesting, the law of contempt of court is a fruitful
area. There will probably never be another case to match Balogh v St Albans
Crown Court [1975] 1 QB 73. The facts are extraordinary. During the hearing
of a pornography trial, a law clerk seated in court was finding the pro-
ceedings more and more tedious. He decided to do something about it and
one night, after procuring a supply of nitrous oxide (laughing gas), he climbed
on to the roof of the courthouse and worked out how to inject the laughing
gas into the air conditioning system the next morning.
Unfortunately for him, he was apprehended the next day before executing
his daring plan. The mind boggles at what he might have done had the case
been an equity matter or even a simple running down case. In any event,
when formally charged with contempt he remained defiant to the end. When
the judge sentenced him to six months in prison for his efforts with the
214
laughing gas, he responded, “You are a humourless automaton. Why don’t

you self-destruct?”
Those who applaud efforts to make court proceedings more lively will be
pleased to know that on appeal it was held that the law clerk had not been
guilty of contempt of court because he had not succeeded in completing the
act he had planned to carry out. One judge, Stevenson LJ, queried if an at-
tempt to commit contempt of court was punishable as such: [1975] 1 QB 73
at 87.
United States courts

[30.25] The courts of the United States have been remarkably aggressive in dealing
with trial lawyers who have been found guilty of contempt in the face of the
court.
The transcript of the proceedings that resulted from the riots during the
1968 Democratic National Convention in Chicago (better known as the “Chi-
cago Seven Trial”) makes lively reading. One of the lawyers, Leonard Wein-
glass, was cited for refusing to sit down immediately after being ordered to
do so, for asking questions in cross-examination beyond the scope of the di-
rect examination, for repeating citations of legal authorities, for continuing
an argument after the judge had ruled on it and for making disrespectful re-
marks about the prosecution. Another lawyer, William Kunstler, was cited for
arguing about the time of recess and for expressing his approval of disap-
proving groans from the spectators in court. Weinglass was sentenced to 20
months imprisonment on 14 charges of contempt and Kunstler received four
years imprisonment on 24 charges of contempt. All the contempt convictions
were quashed on appeal.1
In California a lawyer was convicted of contempt and sentenced to a period
of imprisonment. Apparently the contempt related to his dress because the
judge said that his hair “looked like a cross between an Angora goat and a
baboon”. On appeal, it was argued that the comments were unfair because
the hair of one of the Presidents of the United States resembled a koala and
the hair of Justice Holmes “was a cross between a moose and a yak and a
European oaudad”. As an oaudad is a North African wild sheep, one can only
wonder what it was doing in Europe in the first place.
Examples of contempts of court by litigants

[30.30] Most lawyers are familiar with the occasion in 1631 when at Salisbury an
accused threw a brickbat at a judge. The half brick narrowly missed. What is
not quite so well known is that the accused’s throwing arm was promptly
________________________
1 J Disney (ed), Lawyers (Law Book Co Ltd, Sydney, 1977), pp 726–728.
215
amputated and nailed to a gibbet in the court. The judge must have received
a considerable fright because to underline his sense of outrage the prisoner
was himself immediately hanged from the same gibbet: Anon (1631) 2 Dyer
188bn; 73 ER 416.
The 19th century must have been a period of relative gentility for there is
an instance cited of a disgruntled litigant in the County Court who, dis-
satisfied with the result of the proceedings, removed a dead cat from a paper
parcel and hurled it inaccurately at the judge. To the judge’s credit, he re-
sponded by saying: “I shall commit you for contempt if you do that again.” As
the disgruntled litigant did not have any more dead cats at hand, she obeyed
the judge’s direction.2 Another litigant who threw an egg at a judge was not
so lucky.3
Modern litigants have had their fair share of trouble with the courts. In
1964 a litigant who threw off his clothes and made himself comfortable on a
bench in court was found guilty of contempt of court.4 The same fate befell a
Canadian litigant who, after attending court in the morning and finding that
his case would not be called until the afternoon, spent the interval drinking
and consequently was unable to instruct his counsel or fully understand the
proceedings: R v Perkins [1980] 4 WWR 763.
However, different judges take different views of when to cite someone for
contempt. Lord Denning, for example, did not seek to cite for contempt a
disappointed litigant who threw two heavy law texts at him, whereas a de-
fendant was convicted of contempt in Canada for refusing to stand when the
magistrate entered the court and contempt proceedings were threatened in
a Victorian court in 1983 against a female barrister who appeared wearing
trousers.5
Lord Erskine’s noble stand for the independence

of the Bar6
[30.35] One of the most celebrated cases of a barrister courageously upholding the
interests of a client in the face of threats from the Bench is Dean of St Asaph
(1784) 21 St Tr 847.7 The case involved a prosecution for seditious libel in
which the judge directed the jury that their sole function was to determine
whether the defendant published the relevant item and it was then his
________________________
2 RE Megarry, Miscellany-at-Law (Stevens, London, 1955), p 295, n 19.

3 Re Cosgrave (1877), referred to in Halsbury’s Laws of England (4th ed re-issue, LexisNexis Butterworths, London,
looseleaf), Vol 9, [407], n 1.
4 Gohoho v Lintas Export Advertising Services (1964), referred to in Halsbury’s Laws of England (4th ed re-issue,
Butterworths LexisNexis, London, looseleaf), Vol 9, [407], n 7.
5 Australian Law Reform Commission, Contempt, Report No 35 (1987).
6 The discussion under this heading is adapted from CJ Miller, Contempt of Court (2nd ed, Clarendon Press, Oxford,
1989).
7 See JC Campbell, The Lives of the Lord Chancellors (4th ed, 1857), viii 277.
216
function to determine if it was libellous. The jury returned a verdict of “guilty

of publishing only” which the judge was not prepared to accept, but which
Erskine insisted should be recorded in that form. The following exchange
took place:
Erskine: “The jury do understand their verdict.”
Judge: “Sir, I will not be interrupted.”
Erskine: “I stand here as an advocate for a brother citizen, and I desire
that the word ‘only’ may be recorded.”
Judge: “Sit down, Sir; remember your duty, or I shall be obliged to pro-
ceed in another manner.”
Erskine: “Your Lordship may proceed in what manner you think fit; I
know my duty as well as your Lordship knows yours. I shall not
alter my conduct.”
The judge did not carry out his threat of committal and Erskine’s conduct has
frequently been cited as illustrating the need for an independent and cour-
ageous Bar.
ED Lloyd and the Kaniva magistrate

[30.40] Courage shown by counsel in the face of an interfering Bench is also exempli-
fied by the behaviour of the late ED Lloyd QC in the case of Lloyd v Biggin
[1962] VR 593. The case demonstrates the problems which a competent and
courageous barrister can encounter when appearing before an irascible mag-
istrate.
Mr Lloyd had gone to Kaniva, which is a very hot part of Victoria during
summer, to appear for a defendant in committal proceedings. During the
proceedings Mr Lloyd had asked the magistrate to rule whether he would de-
termine the admissibility of some evidence of a witness then under cross-
examination. The magistrate intimated that that was not for him to decide,
but Mr Lloyd pressed on as follows.
Lloyd: “But your Worship must determine.”
Magistrate: “Carry on with your case.”
Lloyd: “Your Worship, with great respect, I wish your Worship to de-
termine whether your Worship proposes to rule.”
Magistrate: “Carry on with your cross-examination.”
Lloyd: “I cannot carry on with any cross-examination unless your Wor-
ship informs me whether this . . .”
Magistrate: “I have had enough of your impertinence. I have put up with it
for two days. You’re . . .”
Lloyd: “Would your Worship just hear me?”
217
Magistrate: “You’re fined £5 for contempt of court. If you do anything more

I will commit you.”
Lloyd: “Your Worship, if you will just hear . . .”
Magistrate: “You’re committed. Constable, remove that man and place him
in the watchhouse for three hours.”
I believe that the constable, who had recently been cross-examined by Mr
Lloyd to some effect, thought that that was a splendid idea, but a kindly po-
liceman at the station (who had not been cross-examined by Mr Lloyd)
brought Mr Lloyd a cup of tea. This annoyed the first constable no end, pre-
sumably because he thought the watchhouse at Kaniva, with the tempera-
ture at more than 45 degrees, was an appropriate place for his recent
tormentor.
When Mr Lloyd refused to enter the cells, the affronted policeman re-
turned and complained to the magistrate that Mr Lloyd would not do what
he was told. The magistrate’s response to that was to tell the policeman that
unless he went about his business, he would be committed for contempt too!
Fortunately, an inspector from Horsham brought reason to this entire
scene and ultimately Mr Justice Smith set aside both the fine and the com-
mittal as having been wrongly imposed.
It is rumoured that at the back of the Kaniva police station there is still a
small cairn of stones which bears the inscription “the tomb of the unknown
barrister”!
Judges in Collingwood8 jumpers

[30.45] Mr AR Lewis of the Victorian Bar got himself in trouble by using the following
colourful language in addressing the jury in a criminal case:
“You normally think of a judge as being a sort of umpire, ladies and
gentlemen, and you expect an umpire to be unbiased. You would be
pretty annoyed if, in the middle of a grand final, one of the umpires
suddenly started coming out in a Collingwood jumper and started giv-
ing decisions one way. That would not be what we think a fair thing in
an Australian sport. It may surprise you to find out that his Honour’s
role in this trial is quite different. That his Honour does not have to be
unbiased at all except on questions of law . . . [H]is Honour has given
some fairly definite views in this case. They have been pretty adverse
to the accused Paul and certainly my presentation of the case on be-
half of Paul.”
The High Court held that while counsel’s conduct was extremely dis-
courteous, perhaps offensive, and deserving of rebuke by the judge, it did not
constitute contempt. The court added that “the contempt power is exercised
________________________
8 Collingwood is a well-known Australian Football League team.
218
to vindicate the integrity of the court and of its proceedings; it is rarely, if

ever, exercised to vindicate the personal dignity of a judge” (Lewis v Ogden
(1984) 153 CLR 682 at 693).
In re Chickweche 1991 (4) SA 284 (ZH)

[30.50] The applicant, when appearing in court on the day of his application for
admission as a legal practitioner, was considered by the presiding judge to be
“unkempt” and not properly “dressed”, because, being a Rastafarian, he ha-
bitually wore his hair in the style known as “dreadlocks”. The presiding judge
accordingly declined to allow him to take the oath of loyalty and of office pre-
liminary to his admission. Following on such refusal, the applicant success-
fully applied to the Supreme Court in terms of the Constitution of Zimbabwe
on the basis that the reference in s 19(1) of the Constitution to freedom of
conscience was intended to encompass and protect systems of belief which
were not centred on a deity or were not religiously motivated, but were
founded on personal morality. In the proceedings before the Supreme Court
the applicant deposed that the wearing of dreadlocks was a symbolic expres-
sion of his religious and philosophical world outlook which was inspired by
Rastafarianism: In re Chickweche 1995(4) SA 284 (ZS).
How to behave before an antagonistic Bench

[30.55] What should you do when you are faced with an antagonistic and anta-
gonised Bench? I do not believe that anyone has ever tried to lay down guide-
lines for a potential contempt of court situation, but here are some suggestions:
l Present your client’s case fearlessly and with vigour and determination,
but always stop short of risking a contempt of court.
l When you believe that the manner in which the judge is conducting the
trial is preventing your client from having a fair trial for any reason – such
as adherence to improper procedures, a flouting of the rules of evidence
or a denial of natural justice – you should not get emotional and argue with
the judge. Rather, you should ask the judge to disqualify himself or her-
self. If the judge refuses, have your objections noted and appeal to a
higher tribunal at the conclusion of the proceedings. From your client’s
point of view, it may be better for the court to be allowed to behave out-
rageously so that you virtually have an order to review placed in your
hands, rather than to behave outrageously yourself.
l Irrespective of how unreasonable or provocative the court is, the transcript
of proceedings should not contain statements or remarks by you
of which a court of appeal could be critical. There is a vast difference
between fearlessly adopting a course of action which you believe to be
in your client’s best interests and in accordance with the standards re-
quired of your profession, and entering into a slanging match with an
219
unreasonable Bench. If you antagonise the court, you do not do yourself

or your client any good, even if it does make you feel important. Remain
respectful and courteous at all times.
l Although it is difficult to stand on principle against a magistrate or judge
who is acting improperly, niggling and pettifogging to impress clients and
onlookers is not the answer.
l To be in contempt of court more often than not is an admission that you
cannot cope with your job as an advocate within the established rules. It
is better to let the court monopolise the misbehaviour and allow the ap-
pellate court to set it right.
Take the proceedings seriously

[30.60] As a legal practitioner, you must not only act courteously to the judge or
magistrate, but you must also take the proceedings seriously and have re-
spect for the position of all those involved in the proceedings, including the
litigants and court officials. To wilfully insult, threaten or obstruct any person
who is in court and whose presence is necessary may constitute contempt.
Even short of contempt, you must refrain from any behaviour that may at-
tract criticism from the Bench. This will damage your reputation and may
harm your client’s case.
I was in court one day waiting for a client’s case to commence. The pre-
vious case had just finished. The judge awarded the plaintiff damages of ap-
proximately R110 000 plus interest and costs. The defendant had appeared
for himself and when the judge asked him whether he wanted a stay of exe-
cution he replied: “Yes, I need a couple of years because I’ve got no money,
your Honour.” The plaintiff’s instructing legal practitioner obviously thought
this was funny because he burst into laughter. After a lecture from the judge,
the legal practitioner apologised to the defendant and to the court.
I do not think that any discussion on contempt would be complete without
reference to that classic Hollywood film, My Little Chickadee, in which Mae
West clashed with an obviously corrupt judge. “Are you trying to show your
contempt for this court?” asked the judge. “No,” said Mae, “I’m tryina hide it.”
Other forms of contempt9

[30.65] Apart from the courtroom type of contempt discussed at [30.15]–[30.60],
there are other types of conduct by lawyers which may amount to a con-
tempt of court. Some of these forms of contempt are discussed briefly at
[30.70]–[30.100].
________________________
9 The discussion that follows draws upon material in M Chesterman and P Kearney, “Lawyers in Contempt” (1988)
26(5) Law Society Journal at 42.
220
Abuse of process
[30.70] If you abuse the process of the court, you may be guilty of contempt of court.
For example, the following may amount to contempt:
l forging or altering process, such as forging counsel’s signature on a
pleading;
l conveying falsehoods or suppressing facts in order to deceive the court,
such as instituting proceedings where there is no factual or legal basis for
the claim;
l misusing process so as to prejudice others, such as issuing double process
for the same debt and serving an imitation writ as a joke; and
l using the court process for a collateral purpose, such as obtaining an ex
parte injunction to damage the business of a client’s competitor.
In Standard Credit Corporation Ltd v Bester 1987 (1) SA 821 (W), it was held
that an abuse of process could be said to take place when the court’s proce-
dure was used by a litigant for a purpose for which it was not intended or de-
signed to the potential prejudice of the other party to the proceedings.
Obstruction
[30.75] It is a contempt of court to interfere with the course of justice by conduct
such as deliberately preventing an originating process from reaching the
court or threatening a witness: R v Butelezi 1960 (1) SA 284 (N).
In 1773 a man of “ferocious and terrible disposition” was prosecuted for
contempt because he forced a process server to eat the court’s subpoena.
This contrasts with an incident some 200 years later in western Victoria when
a very large and very irate shearer attempted to achieve the exact opposite
with a tightly furled subpoena which a process server had just served upon
him.
Destroying documents10
[30.80] It is a contempt of court to knowingly destroy documents relevant to court
proceedings, such as, for instance a form SAP 69: S v Mongwe 1974 (3) SA
326 (T).
Breach of orders or undertakings11

[30.85] It is a contempt of court to deliberately disobey a court order or to breach an
undertaking which you have given to the court. The breach of an implied
________________________

221
undertaking is also a contempt. In 1960, for instance, a practitioner was

found guilty of contempt of court because he wilfully disregarded the court’s
order to sit at a specially designated table: R v Pitje 1960 (4) SA 706 (A). That,
fortunately, is a judgment which will no longer be applied in South Africa in
modern times. Our law reports are, however, full of reported cases where,
particularly Government institutions have disobeyed court orders particularly
in regard to the settlement of monetary claims. In Townsend-Turner v Mor-
row 2004 (2) SA 32 (C) the court reiterated the basic principles as to what
must be proved namely that once shown that an order had been granted and
that the respondent had failed to comply with it, both wilfulness and lack of
good faith were inferred and the onus was on the respondent to rebut such
inference on the balance of probabilities.
In Lewis v Little (unreported, Vic Sup Ct, 21 May 1986) Young CJ stated:
“[O]bedience to orders of the court is essential if our system of the
administration of justice is to survive. It is essential to the whole main-
tenance of our society. Where a solicitor of the court blatantly dis-
obeys and without apology, an order of the court directed expressly to
him, it is something that the court must, in my view, treat very seri-
ously.”
In that case, a solicitor was imprisoned for 21 days because he failed to ob-
serve an order of the court.
Failure to appear in court

[30.90] A legal practitioner may be guilty of a contempt of court if he or she deliber-
ately fails to attend court without good reason and without having obtained
the consent of the presiding officer or the prosecutor for such absence in ad-
vance: S v Memami 1994 (1) SA 515 (W).
Scandalising
[30.95] It is a contempt of court to publish allegations tending to undermine public
confidence in the administration of justice. An example is to describe a mag-
istrate as a “bastard” to a colleague in the same court in which the magis-
trate presided: S v Tobias 1966 (1) SA 656 (N). Similarly it is contempt of court
to accuse a judicial officer of bias and to request him or her to excuse himself
or herself when there are no grounds at all for the accusation or the grounds
are absurd and without any substance whatever: R v Silber 1952 (2) SA 475
(A). Likewise, it would be a contempt of court to allege that all the judges of a
court are corrupt.
In 1900 a newspaper description of an English judge as “the impudent little
man in horsehair, a microcosm of conceit and empty-headedness” was held
to be in contempt: R v Gray [1900] 2 QB 36.
222
In 1916 a newspaper article referring to the presiding judge in a criminal

trial as “insolent”, “class-biased and bitter” and of “sitting in the seat of jus-
tice with loaded scales”, and to the jury as “stupid, vindictive, brainless and
brutal”, was held to be in contempt: Attorney-General (NSW) v Bailey (1917)
17 SR (NSW) 170.
In 1972 at the conclusion of the trial of two union members who were
placed on a good behaviour bond for malicious damage to property during an
anti-apartheid protest, a union official made the following statements to the
media, which were widely reported, about the trial and the union protest
outside the court during the trial: “Well, I think it’s a miscarriage of justice . . .
it showed that the judge himself was a racist judge” and “I think the . . . in-
dustrial action by workers here this morning . . . stopped the racist judge
from sending these two men to jail”. Hope JA held that the first statement
did not constitute scandalising contempt, whereas the second statement did
because it implied that the judicial officer had decided to send the defend-
ants to jail but changed his mind because he was overawed by the union pro-
test: Attorney-General for NSW v Mundey [1972] 2 NSWLR 887 at 912–915.
A widely reported aside by defence counsel in a criminal trial to journalists
in court that the presiding magistrate was “a complete cretin” was held to
constitute scandalising contempt: Attorney-General for Qld v Lovitt [2003]
QSC 279. Chesterman J held at [52] that the comment was not contempt in
the face of the court because the magistrate did not hear it. He said at [59]
that “Few things could be more likely to impair the authority of the courts
than to have it stated publicly that a judicial officer is mentally deficient and
thereby incapable of performing his functions”.
The courts do take into account contemporary community attitudes in de-
termining whether particular comments constitute contempt. In holding that
to describe a judge as a “wanker” did not constitute contempt, Cummins J
said in Anissa Pty Ltd v Parsons [1999] VSC 430 at [22]:12
“The matter must be judged by contemporary Australian standards. It
may be offensive, but it is not contempt of court, for a person to de-
scribe a judge as a wanker . . . The words spoken by the defendant do
not undermine confidence in the administration of justice. They un-
dermine confidence in the persona of the solicitor who spoke them . . .
His words were gratuitous and offensive but they fall short of con-
tempt of court.”
Sub judice
[30.100] Sub judice is a head of contempt of court which most lawyers have heard of
but few properly understand.
________________________
12 An appeal to the Court of Appeal was dismissed: Prothonotary of Supreme Court of Victoria v Parsons [2000]
VSCA 83.
223
Simply, once proceedings are commenced, any conduct which as a matter

of practical reality has a real and definite tendency to prejudice or embarrass
the trial of those proceedings is a contempt of court. Examples include:
(a) publicly stating that an accused facing trial is guilty or in any other
manner prejudging in the community what is still sub judice: Chunguete
v Minister of Home Affairs 1990 2 SA 836 (W);
(b) attempting to influence the court trying a pending criminal case by con-
vening a public protest meeting at which the alleged inaction on the
part of lawyers, specifically the judiciary concerning certain aspects of
the Terrorism Act 1967 was criticised: S v Van Niekerk 1972 (2) SA
279 (D);
(c) publishing damaging material about a party or a witness who is giving
evidence;
(d) interference by a public official in a matter which is still under consid-
eration by the court: Kauesa v Minister of Home Affairs 1995 (1) SA
51 (Nm).
It is not contempt to hold a press conference in which an attorney makes a
statement with regard to his or her client’s alleged torture to elicit certain
statements whilst in custody: S v Hartmann 1984 (1) SA 305 (ZS).
It is also not a contempt of court to accurately report or repeat what was
said in open court, unless the court has made an order restricting publication
of any evidence given in court. In some jurisdictions such as South Africa,
there is legislation prohibiting the publication of some material, such as the
identity of a victim of a sexual offence.
Lawyers often face a dilemma when asked by the media to comment on a
client’s case which is before the court prior to the conclusion of the proceed-
ings. The prudent course is to make no comment. You should not criticise or
debate the evidence given by a witness – especially if the witness has not
completed his or her evidence – or any rulings made by the court. You should
certainly not speculate on the result of the case. However, you can assist a
journalist by clarifying who the parties are and showing him or her the tran-
script so he or she can quote accurately what was said in court.
Lawyers who issue media releases with a view to advancing a client’s case
which is before the court risk infringing the sub judice rule. If your client has
hired public relations experts, you should ensure that you vet what they pro-
pose to publish.
Remember that proceedings are won or lost in court, not in the media.
Therefore, concentrate on winning the legal battle in court rather than di-
verting your energies to fight a public relations battle.
224
Contempt of court: conclusion

[30.105] Courts and lawyers work together harmoniously to advance the admini-
stration of justice. Conflict sometimes arises where a judge expresses strong
opinions which do not coincide with a lawyer’s views about what is fair to his
or her client. This conflict is usually dealt with in a respectful manner. It is
rare for a lawyer to commit a contempt of court.
225
Chapter 31
Witnesses
“‘Give your evidence,’ said the King, ‘and don’t be nervous or I’ll have you
executed on the spot.’”
Witnesses: introduction
[31.05] The witness box is a desperately lonely place. Every new practitioner should
have the opportunity of giving evidence early in his or her career in order to
better understand the difficulties which the average layperson experiences
when in the witness box. Under the spotlight of judicial scrutiny all but the
most expert witnesses feel as though they are prevaricating or exaggerating
while giving truthful evidence.
Indeed, all experienced legal practitioners have had the experience of see-
ing a case destroyed when they know that their client is telling the absolute
truth and the “other side” are lying their heads off.
Because it is the evidence of the witnesses that usually wins or loses a
case, it is important for you to do your best to prepare your witnesses for the
hearing. You must develop skills that ensure that you get the greatest possi-
ble value out of the witnesses’ evidence.
It is sometimes advisable to take a witness statement at the scene of an in-
cident where the witness can point out to you essential features or land-
marks. Some witnesses are not as good in describing certain features like
boundaries, for instance, as others are. Particularly unsophisticated or semi-
literate witnesses are often far more comfortable and coherent in describing
to you what exactly has happened if you take them to the scene of the inci-
dent. It goes without saying that this method will also be for your own benefit.
At a very early stage of preparing for a trial you must also satisfy yourself
that your witnesses are competent to give evidence in the language in which
the trial will be conducted. There are many citizens or residents living in
South Africa who were not brought up in the English language, for instance,
and for whom you may have to provide a good interpreter not only during
consultations but also at the trial. Good interpreters are unfortunately not
readily available and need to be booked well in advance.
227
Interviewing witnesses
[31.10] Like other trades and professions, hard work and careful preparation nor-
mally triumph over spasmodic brilliance. When you are appearing in court it
is vital that you know in advance what each witness is likely to say. Resist the
temptation to call a witness unheard, irrespective of how good you are told
the evidence will be. In fact, it is unfair to the witness to give evidence with-
out having been properly prepared. More importantly, is it also unfair to your
client.
CG Marnewick SC in his excellent guide on Litigation Skills for South African
Lawyers (Revised, 1st ed, LexisNexis Butterworths, 2003) has the following
advice on this topic:
“It is extremely important that the evidence given in court by your wit-
nesses should be uncontaminated, meaning that their evidence should
be free from external influencing. The persons most likely to be able to
influence the evidence of a witness are the client and the lawyer. Law-
yers can contaminate the evidence of a witness by suggesting facts or
answers, by creating claims for defences and even by employing inap-
propriate interviewing techniques. Such practices are dishonest, un-
ethical, dangerous and subversive of the justice process. No lawyer
worth his or her salt will engage in them. The Inns of Court School of
Law suggest the following safeguards:
l do not interview a potential witness in the presence of your lay
client or another witness;
l take a written note of the witness’ account;
l do not ask leading questions or put words into a potential witness’
mouth. In other words, restrict yourself to open and non-leading
closed questions, exactly as you would be required to do in lead-
ing the evidence of the witness in your examination-in-chief; and
l ask the witness to sign the notes or statement you have taken.
To these I would add the following additional safeguards to take ac-
count of South African conditions:
An advocate should preferably interview witnesses only in the pres-
ence of his or her instructing attorney. While both of them should take
notes of what the witness has to say, the attorney should be the one
preparing the statement for the witness and asking the witness to sign
it. If any dispute should later arise about what the witness had said,
the attorney would be available as a witness, although there may be
cases where both attorney and counsel may have to withdraw from
the case.
There are still many people in South Africa who, through no fault of
their own, are illiterate or only semi-literate. It is not only very difficult
to lead their evidence; it is often extremely difficult to take a state-
ment from them without suggesting what answers we expect. Unso-
phisticated witnesses are usually more at ease at the scene where the
incident they witnessed occurred. They are better able to give a
228
Chapter 31: Witnesses
coherent and complete account of what happened when they are able
to point out relevant features and positions at the scene. So go to the
scene and interview them there. You will be surprised at the ease with
which an otherwise painful interview can be conducted. (And you will
be surprised how much you can learn from your own observations at
the scene! Many cases have been won because a lawyer made an as-
tute observation of some feature of the scene which others have
missed.)”
Methods of interviewing a witness

There are several ways of interviewing a witness whose evidence is likely to
be contentious. One is a method of careful reassurance of the witness. With
this method, you laboriously go through the witness’ proof of evidence and
emphasise and prop up those sections which are vital to your client’s case. In
every proof of evidence there are certain vital points and questioning during
the conference should emphasise in the witness’ mind that questions will be
asked to bring out those points. The questioning should also assist the wit-
ness to decide the best way in which he or she should answer consistent with
the truth.
Another method which is used mainly in criminal matters is to subject the
witness to trial by ordeal in chambers prior to the hearing. By this method,
instead of a quiet and comfortable conference full of reassurances, the wit-
ness is asked to stand behind a chair with his or her hands on the back of it
and is then vigorously cross-examined. This method can reduce witnesses to
blubbering jelly but most of them find that the cross-examination they un-
dergo at trial is pale in comparison.
Whatever can be said for the respective merits of these two differing ap-
proaches, the worst way of dealing with witnesses in conference is to read
their proof aloud to them and then ask if it is correct. The answer is invariably
a nod of the head. It is better to ask the witness to re-tell the story without
aid from the proof and ask questions based on any discrepancies. It may be
that the first proof is incorrect or that the first is correct but the questions
will alert the witness to something that was forgotten. Advise witnesses that
there is nothing improper about refreshing their memories from previous
statements.
Face-to-face meeting
It is important that the pre-trial conference with an important witness is held
in person. In the busy days leading up to a trial, it may be tempting to tele-
phone the witness and discuss the evidence he or she is to give. While this
may save you time, such a telephone call will be of limited value to you or to
the witness in preparing for the trial. You will not have the opportunity to as-
sess the witness’ demeanour and clarify contentious aspects of his or her
evidence and the witness will not be exposed to the face-to-face questioning
which will resemble what will happen in the court room.
229
Multiple witnesses
Avoid the temptation of meeting with a number of witnesses at the same
time prior to the trial. While this may save time, it may lead to aspersions be-
ing cast on your client’s case if it is later disclosed that the witnesses had a
joint meeting to discuss the evidence. In fact, the rules of professional con-
duct and practice in some jurisdictions specifically prohibit such conferences.
Invite witness to observe other proceedings

[31.15] If you remember how nervous you were when you first appeared in court,
then multiply that nervousness by one hundred and, irrespective of the brave
front put on by some witnesses, you will know what they are experiencing as
they await the hearing. Nervousness is generally due to unfamiliarity with
court procedure. While the ornate decoration of the court room and the
robes worn by the legal practitioners and judges or magistrates may be a part
of your daily experience of the law, for witnesses, such an environment can
be daunting or even overwhelming.
One way of putting witnesses at ease is to invite them to attend court be-
fore the case in which they are involved comes on. If they wish, they can sit
there for most of the day watching witnesses in other cases being called,
sworn, giving evidence-in-chief and then being cross-examined. Your wit-
nesses will probably be more composed when they give evidence after seeing
other people go through this ritual.
Witness statements
[31.20] Where it is necessary to take witness statements in preparation for a trial,
ensure you take these statements as early as possible. Witnesses’ recol-
lections of events may fade, or witnesses may move or become difficult to lo-
cate as time passes. Also, and importantly for your client, evaluating the
witnesses’ evidence at an early stage may assist you to advise your client on
the prospects of success in the proceeding.
Be careful when recording the recollections of the witness in any witness
statement or proof of evidence. While it is clearly within your rights, and in-
deed it is your duty, to assist the witnesses in the preparation of such state-
ments, be careful not to overstep the boundary and write your own
statement for him or her.1 Always ensure that the witness is happy with any
affidavit or statement and that he or she clearly understands its contents.
Always check witness statements and affidavits for any inaccuracies and
avoid any hearsay statements. A failure to properly prepare these documents
and ensure that the witness clearly understands their contents could result in
the evidence being given very little weight, being disbelieved by the court or
not being admitted in evidence at all.
________________________
1 P Venus, “Litigation: Five Tips for Drafting Better Affidavits and Statements” (2002) 40(8) Law Society Journal at 60.
230
Before the hearing

[31.25] Outline to the witnesses the basic procedure involved in giving evidence. Tell
them that their name will be called, that they will have to come forward and
go into the witness box and take the oath or make an affirmation. You will
avoid potential embarrassment to the witnesses if, before the hearing, you
explain the difference between an oath and an affirmation, that the oath is
taken to ensure that witnesses tell the truth and that perjury is usually pun-
ished quite heavily. Warn the witnesses that they should not leave the wit-
ness box until directed to do so by the court.
If you find that a witness in conference is timid and speaks too quietly, the
time to tell him or her to speak louder to be heard by the judge or magistrate
is during your conference and not in court on the day. To tell your witness
the manner in which to give evidence in front of a public assembly is to cause
embarrassment and distress.
If the witness is loquacious and expansive in answering your questions, try
to give him or her practice in just answering the question and nothing more.
If the witness is taciturn and answers have to be extracted, try to get the wit-
ness to expand the answers in the conference. Experience has shown that it
is very difficult to get leopards to change their spots overnight, but at least if
you can make the witness aware of what you expect, you discharge your func-
tion in trying to assist the witness to give evidence in the best way possible.
Always confirm well in advance of the hearing that the witness is available
and knows where and when to be at the court. If it is appropriate, to save a
witness attending court all day, you may be able to advise the witness to be
on call on the day of the hearing. This way, you can telephone the witness
and ask him or her to attend court immediately when you know that he or
she will be required to give evidence soon. Witnesses are busy people and
they will generally appreciate this option if it is available.
How to act in court

[31.30] Tell a witness that, to be effective, the answers must be directed to the
people who decide the facts. If you are aware of the physical layout of the
court room where the hearing will be held, demonstrate where the witness
will be required to stand, where the questions will come from and where the
answers should be directed. Remind the witness to listen carefully to the
questions asked of him or her and to request that a question be repeated if
he or she is uncertain about what is being asked. Emphasise to the witness
that he or she need only answer the question that is asked and is not re-
quired to provide any information above and beyond that.
Tell the witness that there is nothing wrong about asking for a question to
be repeated if the witness does not hear it fully or does not understand it. As
the answer to a question which is misunderstood can be damaging, the wit-
ness can simply say: “Can you please repeat the question?”
231
It is a constant worry to witnesses what they should call the court or tribu-
nal. I have heard “Your Worship”, “Your Honour”, “Your Majesty”, even “Your
Holiness”. For simplicity, and to eradicate yet another cause of stress, why
not suggest the all-encompassing “Sir” or “Ma’am”?
Warn the witness about the old chestnuts which are likely to be asked. A
common one is: “Have you discussed your evidence with A?” If the witness
has, the answer should be “Yes, I have”. Point out to the witness that there is
nothing criminal or improper in discussing his or her evidence with another
witness. If the witness has not discussed the evidence with another witness,
so much the better.
Also, warn the witness that he or she might not have the luxury of sitting in
court and hearing the evidence of other witnesses. Explain that he or she
may be ordered out of court and may spend a good part of the day sitting ei-
ther in a draughty corridor or a barren waiting room.
Do not coach
[31.35] Some witnesses clearly want to be coached. They have seen enough televi-
sion shows about lawyers to think that you will tell them what you think their
answer to a particular question should be. Asking a witness to give evidence
which is contrary to the known facts constitutes a criminal offence, as well as
a breach of your ethical duties. While it would be mealy-mouthed to say that
some coaching does not go on, it is extremely rare for counsel to be a know-
ing party to perjury by a witness. The answer to a feeler from a witness as to
what should be said in evidence is the time-honoured reply: “I cannot tell you
anything but to tell the truth as you know it”.2
Expenses
[31.40] Few witnesses are so willing to give evidence that they will agree to attend
court and give evidence to their own financial detriment. Ensure that, if ne-
cessary, adequate transport and accommodation arrangements are made in
good time and that you also make provision for the payment of subsistence
allowance, particularly if the witness lives far away. The same applies for pre-
trial consultations. Witnesses will be prepared to give evidence far more will-
ingly if they are adequately reimbursed instead of having to rely on the mea-
gre witness fee which is being paid by the court. If a witness’ expenses are to
be reimbursed, then obtain details from the witness prior to the hearing and
ensure there is no misunderstanding as to what will be paid. Also ensure the
witness understands that it is your client, rather than you personally, who is
________________________
2 Sir Gregory Gowans, The Victorian Bar, Professional Conduct, Practice and Etiquette (Law Book Co Ltd, Sydney,
1979), p 73.
232
responsible for payment of witness fees and that such fees should be paid
promptly.
If you decide that it would be advantageous to your client’s case to call an
expert witness, ensure that your client is aware of the costs involved and is
prepared to meet these costs.
Witness conferring with other side

[31.45] If your witness informs you that the other side has approached him or her for
an interview, you must not take any step to prevent or discourage the wit-
ness from conferring with the other side. However, you can tell the witness
that he or she is not obliged to confer with the other side and to advise the
witness of any duties of confidentiality he or she owes your client.
Child witness
[31.50] If you have a child or young person as a witness, always conduct your confer-
ence in the absence of his or her parents. Mr Justice Darling once said that
the most truthful kind of child witness was an orphan. Interfering parents in
conference may prevent you getting to the truth, may prevent you obtaining
a sneak preview of what the witness is going to say and may leave the child
too dependent on outside assistance that will not be available in the witness
box.
Which witnesses to call and in what order

[31.55] It goes without saying that a few good witnesses are far better than a multi-
tude of prevaricating, unimpressive, shuffling and vague witnesses. One of
the true measures of a legal practitioner is how courageous he or she is pre-
pared to be in evaluating the likely value of a witness and electing to call one
in preference to another. It is just too tempting at times for you to think that
your case is being strengthened by having a procession of witnesses.
Make sure you have a very thorough understanding of the pleadings and
the matters that must be proved. This will assist you in ascertaining which
witnesses must be called to prove the different aspects of your client’s case.
Where you are acting for an individual in civil proceedings, you usually do
not have a choice about whether to call your client to give evidence because
you cannot win the case without that evidence. Where you are acting for an
organisation, however, you may be faced with the dilemma of whether or
not to call the most senior officer of that organisation to give evidence. The
decision not to call a particular officer who is keen to give evidence is risky
and requires considerable courage. If you feel that the officer will make a
poor witness and do more harm than good to the case by giving evidence,
you may be tempted to rely only on the evidence of other witnesses. If you
233
succumb to this temptation and your client loses the case, you will almost
certainly have an angry senior officer on your hands who believes that you
cheated his or her organisation because you allowed the other side to win
without giving him or her the opportunity of telling his or her side of the
story. On the other hand, if you do call the officer and lose the case, you may
not be able to dispel the thought that the case might have been won if you
had been firm and refused to call him or her.
Another decision that you must make is the order in which you call your
witnesses. Is it a case of best first or do you leave your best till last? Ideally, if
you have two impressive witnesses, a strong beginning and a strong finish
suggest themselves. The case of one strong witness and a series of succes-
sively weaker witnesses tailing off to a fizzing finish detracts markedly from
the strong evidence before the court. Similarly, an assessment of the overall
case of your client can be so unimpressive to begin with that no witness has
the strength to retrieve the situation.
Decisions such as these are not easy to make, but they are crucial because
they structure your client’s evidence and influence the outcome of the case.
Considering the evidence that you have, discarding the rubbish and deciding
in which logical sequence you should call the witnesses to prove your client’s
case are decisions which can put the stamp of quality on a young legal practi-
tioner, as much as knowledge of the law and articulate presentation.
Finally, never lose sight of what are the real issues between the parties.
Concentrate on those issues when dealing with each witness and ensure he
or she understands that while you appreciate that he or she may have strong
views about other issues, they are not relevant to the case.
Legal professional privilege

[31.60] Ordinarily, your communications with a witness are privileged: see Chapter 9.
A witness who answers a question infringing his privilege may be held to
have waived it, but this is not necessarily always the case. In S v Lwane 1966
(2) SA 433 (A), a witness was deemed not to have waived his privilege against
self-incrimination when he had not been made aware of its existence.
Witnesses: conclusion
[31.65] The performance of your client’s witnesses can have a decisive impact on
your client’s case. Knowing how to handle witnesses can be as important as
knowing how to handle your client. With proper support and assistance, wit-
nesses will be able to give their evidence effectively and improve your client’s
prospects of success.
234
Chapter 32
Conducting a case
“The alternative would be, for example, that a three-weeks old baby . . .
could conduct an appeal from its crib placed near the bar table. Perhaps
its arguments would not be less persuasive than some that are heard in
this place.”
Wallace v Health Commission of Victoria [1985] VR 403 at 407
PREPARATION
The value of preparation
[32.05] Not many of us are extraordinarily intelligent or wonderfully articulate. If a
survey were done of the truly great advocates of our time, it would probably
be found that, although many of them have been very good lawyers, the
hallmark of their success have been meticulous preparation.
A colleague once said: “I will settle for 100 per cent knowledge of the facts
against all the law in the world.” All of us remember our first court appear-
ance, irrespective of when or where it was. It is of concern that few attor-
neys, particularly young attorneys, are prepared to try their luck in the local
courts. That reluctance in turn has led to few attorneys being even moder-
ately equipped to appear in any of the higher jurisdictions in which they have
a right of audience.1
How to begin
[32.10] To represent your client properly, it is essential that you become familiar
with the practice and procedure of the court and the basic rules of evidence
as soon as possible, so that you are totally at home in presenting your client’s
case and you are not worrying about technical matters. No textbook has yet
been written which can match the value of sitting in court to watch how a
case is being conducted by an experienced practitioner. I know of one leading
silk who spent the first six weeks of his days at the Bar firmly ensconced in
________________________
1 See also the discussion of court etiquette in Chapter 34.
235
the back row of a High Court watching the then leaders of the Bar locked in
heavy combat.
In your early days you should take every available opportunity to sit in
court and watch how cases are presented. That way you will see diverse
styles, a variety of situations encountered and different methods of cross-
examination. Not all that you will see will be good. You will see shuffling,
mumbling, obfuscation, prevarication and stupidity. After a few weeks you
will become accustomed to some of the general pitfalls that can befall practi-
tioners and you will learn what to focus on and what to avoid.
Starting out
[32.15] There are a few things to remember when appearing before a court:
1. Before the commencement of the hearing you should introduce yourself
to the judge or magistrate in chambers, and if it is a defended matter, in
the company of your opponent, and advise him or her that you will be
appearing before him or her on that particular day. You should follow the
same procedure with regard to the public prosecutor unless you have
spoken to him or her on the day prior to the hearing. If you are a candi-
date attorney you should have a certificate from your Law Society avail-
able confirming that you are entitled to appear in that particular court.
2. As in normal circumstances the district and regional courts start sitting at
9 am, you should be ready and available with your client at that time
unless special arrangements have been made with the prosecutor for the
case to commence at a later stage. If the court is in session when you
arrive, you should bow to the court on entering the court room. You
should also bow when you leave the court.
3. When introducing your matter, you should commence by saying “If it
please the Court (or “if the Court pleases”), I appear for the plaintiff/
applicant/defendant/respondent (as the case may be). Be sure to use the
appropriate name and title of your client. If you are a candidate attorney
you should advise the court of this and ask the court for leave to appear.
You should never hold yourself out to the court as an attorney if you are
not qualified – misleading the court about your credentials may consti-
tute contempt of court.
4. The correct form of address differs from court to court. In the district and
regional courts, the correct form of address is “Your Worship”; in the
High Court, “My Lord” or “Your Lordship” is appropriate. You should use
‘Master” if you appear before the Master of the High Court. If you appear
before a tribunal then it is appropriate to use the term “Sir” or “Madam”.
5. There are a number of rules of etiquette to be observed. You should
always stand to address the court unless the court or tribunal requests
otherwise. There should only be one person addressing the court at any
236
Chapter 32: Conducting a case
time. If your opponent objects to a point that you are making, you should
resume your seat until your opponent has finished or the court asks a
question of you. As a courtesy to the court, you may not leave the court
until your case has been heard, sentence has been passed and the court
has adjourned. If the court is not adjourned after sentence has been
passed or the accused has been acquitted, you must wait in your seat
until the next case is called. Only after the next case has been called, may
you stand up and request the court’s permission to be excused.
Checklists
[32.20] Irrespective of how pedestrian it may seem, if you are acting for a plaintiff in
a civil matter or even as a prosecutor, it is essential in your early days that
you prepare checklists of the formal matters which you have to prove to es-
tablish your case. As the formal matters are put to prosecution witnesses or
witnesses for the plaintiff, tick them off. This is a guarantee against your cli-
ent’s claim being thrown out of court on a “no case to answer” submission by
your opponent as a result of some omission on your part.
Although checklists may seem demeaning, they are not as embarrassing as
losing the case because you have failed to prove a material matter. It is one
thing to lose cases on their merits, or even because of your own inadequacies
or the inadequacies of your witnesses, but you should never lose cases be-
cause of carelessness or lack of preparation. Proper prior preparation is the
key to being a successful advocate.
Reverse checklists
[32.25] When appearing for a defendant, list the elements of the case which the
plaintiff or the prosecution must prove to shift the onus on to your client. As
formal proof is led of each matter, cross it off your checklist. If all the essen-
tial ingredients are crossed off at the end of the plaintiff’s or prosecution’s
case, then you have a fight on your hands. If some element has not been
proved, then you can submit that there is no case to answer.
Humble cases
[32.30] As a young practitioner, you should not turn up your nose at what may be
considered humble cases, such as appearing for a plaintiff to recover the cost
of repairing a motor vehicle involved in a collision.
Humble cases they may be, but they involve all the basic elements of major
litigation. There is the same analysis of what is required to be proved, the
same consideration of the evidence to determine whether it is worthwhile is-
suing proceedings, the same awkwardness in arranging for uninterested wit-
nesses to go to court and finally a public arena in front of the scrutiny of a
237
magistrate and strangers where you are obliged to think on your feet and to
choose the right word for the right occasion.
If you have never appeared in court before, these humble actions are good
cases to cut your teeth on. They have provided the basic grounding for many
practitioners.
Example
Let us look at four aspects of a damages claim in the Districts’ Court in re-
spect of an uninsured motor vehicle which was involved in an accident:
l You have to prove ownership and thus will need to call a witness who will
swear to being the owner of the vehicle. Remember that the driver is not
always the owner.
l You must prove the cost of repairs either by the repairer giving evidence
or (where permitted) by an affidavit.
l You must prove that the defendant was the driver of the vehicle that col-
lided with your client’s vehicle and that the collision was caused by the
negligence of the defendant. You may need independent evidence to es-
tablish negligence on the part of the defendant driver. Apart from asking
your own client whether the names of any independent witnesses were
obtained, you should obtain the police report (if any) to see whether the
police took statements from any independent witnesses. You should in-
terview and take a statement from as many independent witnesses as
possible. If your client was carrying passengers at the time of the colli-
sion, you should obtain a statement from each of them.
l You should know in advance what your scale costs are so that if you win
the action, you will be able to seek and obtain an accurate order for costs
against the defendant.
Know the magistrate

[32.35] Magistrates are very much like the length of your arm. Some are attracted to
fine technicalities, others reject them and put a minus against you and your
client for introducing them into the argument. Some magistrates are good
lawyers but others are not. Some magistrates believe that all police evidence
is true, others prefer to keep an open mind. While familiarity may not breed
contempt, certainly familiarity with the way in which a magistrate thinks (or
doesn’t think) is of great assistance when appearing in the court.
If you find yourself before a magistrate with whom you are unfamiliar,
make a point of talking to the clerk of the court and ask what sort of a person
the magistrate is. Clerks of the court are invariably helpful and a good re-
lationship with them can be to your benefit. The practice of law is sometimes
not a case of what you know, but who you know.
238
A colleague used to say that the first assessment that you have to make is
that of the tribunal before which you are appearing. He saw that as taking
preference over a consideration of the merits of the case!
Opening the case

[32.40] In the lower court, it is essential that the magistrate be made aware as soon
as possible what the case is about. The more simply you can outline on behalf
of the plaintiff the circumstances of the collision or the nature of the con-
tract, the more sympathetic the response will be from the magistrate. You
will see a look of relief as the magistrate acknowledges comprehension of
what the case is about. The magistrate can then concentrate on deciding
whom to believe. Too often, young practitioners leave the magistrate to find
out what it is all about as the matter goes along.
Of course you will not be able to assist the magistrate in understanding
what the case is about unless you have a thorough understanding of the
facts. An inadequate knowledge of the facts will invariably lead to confusion
at the hearing and will give the impression that you did not prepare your case
properly.
Remember that cases are made up of facts as well as law. In some ways,
cases are like university examinations: there is no point in presenting a bril-
liant treatise on a particular area of the law if it has no relevance to the ques-
tion being asked or the case being argued.
You should strive to use plain English and speak slowly. Usually ner-
vousness causes rapid speech. If you have just started appearing in court, de-
liberately speak slower than you think necessary. The result may then be
about right.
Once the opening address has been delivered, the plaintiff and defendant
may remain in court but all witnesses must wait outside. In fact the witnesses
should not be in court either during the opening address.
EXAMINATION-IN-CHIEF
Foundation for winning cases
[32.45] Many practitioners find examination-in-chief very difficult. Cross-examination
may be glamorous but the competent conduct of examination-in-chief is the
foundation upon which cases are won. It is a wonderful facility to be able to
take pressure off your own witnesses by guiding them carefully through their
evidence. You should have assisted them greatly already in conference (see
Chapter 31), but now is the time to encourage any witness who is timid and
to keep a garrulous witness to the point. The interview with the witness
has hopefully enabled you to form an opinion as to whether he or she is
239
obstinate, facetious, a hypocrite or a liar, and this will ultimately enable you
to decide the best way to examine that witness.
If you have not previously interviewed the witness then your first object
will be to gain his or her confidence and, for this purpose, it may be advisable
for you to adopt a quiet and conversational tone.
Present the evidence-in-chief in the correct sequence so that the witness is
able to tell the story in chronological order. The party on whom the duty to
begin rests, should, as a general rule, be called first. Thereafter other wit-
nesses should be called. If an expert’s evidence is disputed on the pleadings,
he or she should not be called first. He or she may sit in court in order to lis-
ten to the evidence so that he or she may become more familiar with the
matter.
Forgotten evidence
[32.50] The ability to cope with witnesses who do not swear up to their proofs of
evidence will always be the stamp of a good legal practitioner. If the missing
evidence is important, then your whole case may be in jeopardy. There are
several ways of dealing with this situation. One is to indirectly suggest the
forgotten evidence without asking a leading question. This is a delicate op-
eration and rarely succeeds.
Another option is to ask the witness to repeat his or her version of what
was said in the hope that, this time, the omission will be cured. A further
course, which may not always be available, is to ask the witness something
which is only explicable by reference to the omitted evidence, to direct his or
her attention to it. Sometimes a magistrate will allow you to direct a witness’
attention to a matter that has apparently been forgotten. However, this ex-
ercise is unimpressive.
Leading questions
[32.55] According to Wrottesley,2 the whole object of examination-in-chief is to lead
the witness, but to do so imperceptibly. This involves avoidance of obviously
leading questions except in those aspects which are not in issue. However, it
is amazing how many practitioners really do not understand what a leading
question is. I have seen legal practitioners of several years experience fum-
bling desperately under pressure from a judge or magistrate to ask a ques-
tion which is not leading. Clearly, it has been a case of bad habits developing
through the tolerance of either magistrates or opposing counsel, who them-
selves may not be capable of phrasing a question which is not in a leading
form. In any event, there is great pressure upon legal practitioners in exami-
nation-in-chief. My suggestion of ticking off the essential elements of the
witnesses’ evidence is equally appropriate to this problem.
________________________
2 FJ Wrottesley, Letters to a Young Barrister (Sweet & Maxwell Ltd, London, 1930), p 47.
240
Examiner-in-chief checklist
[32.60] Jacobs3 makes the following suggestions to an examiner-in-chief:
l Keep the questions short and clear.
l Make your examination complete. Before resuming your seat be sure
that the witness has told you everything he or she knows that will help
your case.
l Be courteous to everyone: witness, magistrate and even your opponent.
l Summarise from the proof you hold from the witness the essential points
that you must elicit in examination-in-chief. Examining from memory may
be impressive, but it has been known to lose cases.
l Be calm and good-tempered under all circumstances if you want to help
your client and maintain your reputation.
I would add another basic suggestion: use language the witness will under-
stand. I once witnessed senior counsel examining his own client, who was a
timber worker of basic education, in the following fashion in a personal inju-
ries claim:
Senior counsel: “And did this have a deleterious effect upon
your health?”
Plaintiff/witness: “Eh?”
Senior counsel: “And did this have a deleterious effect upon
your health?”
Plaintiff/witness (to judge): “What the hell’s he on about!?”
Judge: “He wants to know if it made you sick?”
Plaintiff/witness: “Why didn’t he say so!”
Why indeed?!
Finally, never attempt to mislead the court. It is unprofessional conduct to al-
low evidence that you know to be untruthful to be placed before the court.
CROSS-EXAMINATION
Is cross-examination necessary?
[32.65] A Medico-Legal Society paper some years ago was entitled “Is Your Cross-
examination Really Necessary?”. It is a good question. While the mystique of
court appearances seems to be built around the incisive question in cross-
examination leading to the destruction of a witness, such is not always the
case.
________________________
3 PA Jacobs, Trial of County Court Actions (Law Book Co Ltd, Melbourne, 1935), pp 86–87.
241
Always ask yourself whether you should stand up to cross-examine at all.

Some of the most effective representation on record has been associated
with no questions in cross-examination. Never cross-examine for the sake of
cross-examination. Always have a distinct object in mind. If the witness has
said nothing which is destructive or material or relevant, why take the risk of
improving on it? It requires great courage to elect not to cross-examine at all.
Cross-examination is both the high and the low of court appearances. I
have seen remarkably incisive and inspired cross-examination win cases.
Equally, and unfortunately more frequently, I have seen totally ineffective
cross-examination where the witness is virtually asked all the questions that
were put during examination-in-chief. It seems that some practitioners be-
lieve that cross-examination consists of involving the witness in a dreary
repetition of the evidence which was given in examination-in-chief in the
hope that, as a result of some mental aberration, the witness will this time
say something different. The “search and destroy” approach is far more ef-
fective. You should pick out the salient points which you wish to test and di-
rect your questioning to those.
Objects of cross-examination
[32.70] You should bear in mind that the main objects of your cross-examination
are:4
l to destroy or weaken the force of the evidence given against your client
by the witness. This assumes that the witness’ evidence is incorrect or in-
complete but not deliberately false;
l to elicit something in your client’s favour that the witness has omitted; and
l to discredit the witness by showing him or her to be unworthy of belief.
This assumes that his or her evidence is deliberately false.
In achieving these objects, there is enormous scope for the exercise of judge-
ment. Do you cross-examine savagely or gently but firmly? Some younger
practitioners seem to think that it is essential to be rude and to shout at a
witness in order to make an impression. However, if a witness is biased, then
that bias can be exposed in the gentlest way possible. Give the witness a ver-
bal arena in which to disclose his or her bias.
The ability to cross-examine well stems basically from experience and it is
impossible to teach it in this or any other book. It is an area where you have
to think on your feet.
All the theory in the world cannot replace experience in a court room. In-
deed, someone once said that advocacy is very much like sexual intercourse:
to get a real appreciation of what is required, you have to do it. It might be
best not to take that analogy too far.
________________________
4 PA Jacobs, Trial of County Court Actions (Law Book Co Ltd, Melbourne, 1935), p 89.
242
Example
In a large commercial case involving millions of dollars, in which the credit of
the two parties to an agreement was crucial, senior counsel for the defend-
ant began his cross-examination in this way:
Senior counsel: “Mr Smith, you have sworn that you are 39 years of age.”
Witness: “Yes.”
Senior counsel: “I have a copy birth certificate here that shows that a per-
son with the same family name as you and remarkably the
same three given names was born 42 years ago. What do
you say to that?”
The fact was that the ego of the witness had caused him to lie about his age,
which was of no relevance to the issues in the case. Caught out on this lie,
the witness lost his composure and ultimately the case.
Not knowing the answer to a question

[32.75] Except where a case is absolutely desperate, never ask a question in cross-
examination unless you believe you know the answer to it. Many young prac-
titioners have been absolutely devastated by an utterly destructive and un-
expected answer.
Always cross-examine from the foundation of your instructions. While not
everyone agrees that you should never ask a question unless you believe you
know the answer to it, at the very least, consider carefully the range of possi-
ble answers open to the witness before asking such a question.5
Sometimes asking one question too many can be fatal. There are plenty of
disastrous examples but one I can recall involved senior counsel appearing
for an accused charged with assault occasioning grievous bodily harm. In a
pub brawl the barman had had his right ear bitten off. The accused denied
that he had attempted to cannibalise the barman’s ear. The prosecution
called an independent witness who claimed to have seen it all. The cross-
examiner asked probing questions about the layout of the room, the position
of the witness and the accused and the items of furniture obstructing the
witness’ line of vision and extracted a concession from the witness that he
could not have seen the accused bite off the barman’s ear. Rather than stop
there, the cross-examiner asked one more question, “So why did you say
you did see him bite it?” The witness answered, “Because I saw him spit it
out!”.
________________________
5 Justice J McKechnie, “Advocacy: Preparing for cross-examination” (2002) 40(3) Law Society Journal at 60.
243
Effective questioning
[32.80] Ensure your questions are clear and concise. If your question is ambiguous,
you risk not obtaining an answer to your question or, alternatively, losing the
impact of a clear answer.6
It often helps to ask important questions as if they were unimportant and
to let the witness think that you want him or her to say the exact opposite of
what you really want to be said.7
Some practitioners seem to believe that if they ask the same question of-
ten enough, they will eventually elicit a different answer. This manner of
cross-examination may in fact strengthen the other side’s case because as
the witness becomes familiar with the question, the answer will be more ro-
bust, more certain and the constant reiteration of the answer will become
more and more impressed on the minds of the judge or magistrate.
Do not give the witness the opportunity to further explain weak evidence
that has been given in examination-in-chief. Further elaboration of this evi-
dence may well give it more credence. Listen carefully to the responses given
by the witness and decide whether it is better to pursue a line of questioning
or leave it for fear of strengthening your opponent’s case.
Cross-examination cannot be satisfactory unless, upon completion, you are
at least certain that you have not strengthened the other side’s case.
Watch witness’ demeanour and remain courteous

[32.85] Always watch a witness’ demeanour. The witness’ voice, movements and
physical reactions to questions are the index and barometer of his or her
mind. Consider yourself an amateur psychologist and trust your instincts re-
garding the witness’ behaviour.
Never hesitate to allow a judge or magistrate to show how smart he or she
is. Who cares who does the winning so long as you win? If the judge or mag-
istrate wants to take over the cross-examination and tear the opposing side’s
witness to ribbons, so much the better. Stand aside and applaud at the ap-
propriate times.
Be courteous and do not make unjustified and unnecessary attacks on a
witness’ credit. In Mechanical and General Inventions Co Ltd v Austin [1935]
AC 346 at 359, 360 the House of Lords said:
“Cross-examination becomes indefensible when it is conducted . . .
without restraint and without the courtesy and consideration which a
witness is entitled to expect in a court of law . . . Courtesy to the wit-
ness . . . is by no means inconsistent with a skilful, yet powerful, cross-
examination.”
________________________
6 Justice Riley, “Advocacy: Your approach to cross-examination” (April 2000) Balance at 17.
244
Remember that the aim of your cross-examination is to destroy or undermine

the witness’ evidence – not his or her self-respect.8
Ten commandments of cross-examination

[32.90] In an entertaining article entitled, “A Letter in which Cicero Lays Down the
Ten Commandments of Cross Examination”,9 Professor Irving Younger sum-
marised the ten commandments of cross examination as:
l be brief;
l short questions, plain words;
l ask only leading questions;
l never ask a question to which you do not already know the answer;
l listen to the answer;
l do not quarrel with the witness;
l do not permit the witness to explain;
l do not ask the witness to repeat the testimony given on direct exami-
nation;
l avoid one question too many; and
l save the explanation for summation.
RE-EXAMINATION
Why re-examine?
[32.95] The object of re-examination is to enable the witness to explain answers
which have been given in cross-examination, in order to correct any adverse
impressions that may have been created by those answers. For example, in a
motor accident case, the witness may have admitted that he did not hear
your client sound her horn. But he or she may have omitted to add that he or
she was deaf or so placed that it was unlikely that he or she would hear or
that a train was passing by at the time. Such matters are properly put to the
witness in re-examination.10
On the other hand, if the witness not only survives cross-examination un-
scathed but also manages to score a few points in your client’s favour, then
there may be nothing to be served by re-examining the witness.
It is not permissible to ask leading questions in re-examination and, with-
out the court’s leave, the subject of re-examination must arise from cross-
examination.
________________________
8 G Hampel, Aspects of Advocacy: Cross Examination and Pleamaking (Leo Cussen Institute, Melbourne, 1982), p 11.
9 (1987) 61 Law Institute Journal at 804.
10 FJ Wrottesley, Letters to a Young Barrister (Sweet & Maxwell Ltd, London, 1930), p 103.
245
INTERFERING OPPONENT OR JUDGE

Interruptions and objections by your opponent
[32.100] Some of your opponents in court will constantly interrupt you while you are
examining a witness. Such interruptions can take many forms. The most ob-
vious is by standing and objecting to your questions. Some practitioners see
themselves as a shield for a witness, a means by which the witness can es-
cape answering a question.
A cagey practitioner may object and make a speech heard by the witness
which acts as a warning to the witness in regard to the subject matter of the
cross-examination. After the objection has been heard, and presumably disal-
lowed, you should continue: “Now that you have had time to consider your
answer do you still say . . .?”11
When the going gets tough, a cagey opponent may also seek to distract
you by either a joke or a physical diversion. This has sometimes been taken to
extraordinary lengths: the dropped text book or the deliberately spilt glass of
water. There was one occasion when a practitioner whispered to his male
opponent at the height of his cross-examination that his fly was undone.
More often, distractions take the form of monotone muttering from your op-
ponent. There is an easy solution to this. Consider this example:
You: “Mr Smith, how far was your vehicle from the in-
tersection when you first saw the defendant’s
car?”
Muttered interjection
from your opponent: “How would he know? He is as blind as a bat!”
You, sitting down: “Your Worship, my friend wants to say something
to the court.”
Opponent: “No, I don’t.”
You, standing up “Your Worship, my friend doesn’t want to say any-
again: thing to the court. Now, Mr Smith, how far away
was your vehicle from the intersection when you
first saw the defendant’s car?”
Muttering from the
other end of the table: “You have already asked him that one.”
You, sitting down: “Your Worship, my friend wants to say something
to the court.”
Opponent: “Oh no, I don’t your Worship.”
Stand up again, and then so on.
________________________
246
This method is guaranteed to stop the distracting mutterer and allow you
fluency in your examination of the witness.
All forms of diversion are usually directed to allowing the witness to gain
time or to confuse the witness, depending on who called the witness. Some-
times the sole purpose of the diversion is to distract you from your task. In
whatever way you combat such diversions, you should ensure that you are
able to steadfastly continue in your line of examination.
Interfering judge
[32.105] All of us have been confronted by the magistrate or judge who says: “What
possible use is there in asking that question?” This raises a fine question of
balance, namely the difference between being overweening and being kicked
around, on the one hand, and firmly standing your ground without being im-
pertinent to the Bench, on the other.
One temptation is to explain why you are asking the question, which will
detract totally from it. It is better to respond to the inquiry from the Bench by
saying: “Your Worship, not all the facts have been brought out at this stage.
There are many facts in my possession which are still not before the court
and the relevance of my question will become apparent as the case pro-
gresses.” Then proceed with the question.
Keep awake
[32.110] Finally, whatever else you do in court, remember to stay awake throughout
the entire hearing. The United States case of Javor v United States of America
724 F 2d 831 (9th Cir 1984) involved an attorney who slept through a sub-
stantial portion of the trial. The Court of Appeals for the Ninth Circuit held
that sleeping counsel was no counsel at all. Judge Ferguson said that al-
though the attorney might have presented an adequate defence while he
was awake, his “partial absence” prejudiced the defendant as a matter of law
and his conviction had to be quashed. No doubt this result was good news for
the defendant, but I suspect that the attorney did not look upon the case as a
career highlight.
247
Chapter 33
Instructing in court
“Lawyers are persons who write a 20,000-word document and call it a
brief.”
Popular saying
Continuing role as instructing practitioner

[33.05] For many practitioners, the lead-up to a trial is a very busy, and often stress-
ful, period. Witness statements or proofs of evidence must be finalised, sub-
poenas must be issued, pre-trial conferences with counsel must be held,
witnesses must be notified of the likely time of giving evidence, exhibits and
other important documents must be organised, legislation and case law must
be photocopied for counsel and so on.
Once all these matters have been finalised, some practitioners, if they are
not appearing in person at the hearing, wrongly assume that the conduct of
the case from then on is the sole responsibility of counsel and that, as in-
structing attorney, they can relax and merely observe the trial. This is a fal-
lacy. As instructing attorney, you owe a continuing duty to your client to
ensure that your client’s interests are advanced as well as possible at the
trial.
While the actual presentation of your client’s case at trial will be the re-
sponsibility of counsel (see [20.40]), as instructing attorney you have more
than a nominal role. In the true sense, your role is to instruct counsel about
the conduct of the case and, where relevant, its settlement. Your input is no
less important than that of counsel.
It is best to see yourself and counsel as members of a team whose energies
and skills complement each other in the best interests of your client.
Before arriving at court

[33.10] To instruct properly in court, you should be familiar with the facts of the case
and the issues that will be argued in court. You should be properly prepared
so that you can hand up to the court, or to counsel, documents that may be
required, such as affidavits, exhibits, legislation or reports of cases.
249
Explain to your client what will happen during the hearing and how it will
be conducted. Also explain where you will be sitting, where counsel will be
sitting and where you would prefer your client to sit. You should also advise
your client that if he or she wishes to speak to you during the course of the
trial, a signal should be given for you to leave your seat to speak to your cli-
ent or, alternatively, your client should pass a written message to you. Do not
take any of these simple steps for granted – the court room is a scary place
for anyone not familiar with the legal system.
During the hearing statements may be made by witnesses, opposing coun-
sel or even your own counsel which your client believes are wrong and he or
she will have a burning desire to inform you of the true position. Your client
will be very unhappy if he or she is not afforded the opportunity to commu-
nicate with you until the luncheon or afternoon adjournment.
At the start of the trial

[33.15] On the first morning of the trial you should contact counsel and your client to
ensure that there are no last-minute tasks that must be performed. Counsel
may prefer you to attend chambers to discuss the trial and to then accom-
pany counsel to court. In large matters counsel may have many books and
documents and you may need to assist counsel to take these to the court.
If your client is inexperienced with court procedures and is nervous about
the trial, suggest that he or she attend your office before the trial so that you
can attend court together. This is often a reassuring gesture for clients.
You should arrive at the court well before the judge is due to arrive so that
you can set up your law reports, exhibits and other documents and have
ready access to them when required.
In the unhappy event that your counsel does not arrive before the judge
arrives, do not panic. Inform the court that you are the instructing attorney
and that counsel has been delayed. Request that the matter be stood down
for a short time while you attempt to contact counsel.
During the hearing

[33.20] Often you are more familiar with the facts of the case than counsel, particu-
larly if you have had to brief new counsel urgently prior to the hearing, be-
cause the counsel you originally briefed was involved in another case that
was running longer than expected. Due to unfamiliarity with the facts, coun-
sel may make inaccurate statements. In such cases, you have a responsibility
to inform counsel of the error so that counsel does not mislead the court.
When counsel is examining a witness, a relevant question may occur to you
which may not have been asked by counsel. In such a situation you should
discreetly inform counsel of the proposed question. In doing so you should
250
Chapter 33: Instructing in court
be careful not to interrupt counsel and thereby disturb the flow of counsel’s
submissions or questions. The best approach is to write a message for coun-
sel and to signal to counsel to look at the message at the first available op-
portunity. Avoid frantic tugging on counsel’s robes or jacket and do not speak
so loudly the entire court hears what you are saying.1
During the hearing, take detailed notes of the evidence given by all wit-
nesses, the submissions made by counsel and any remarks made by the
judge. Also keep a separate record of all exhibits as they are tendered.
You should record the time the case starts, when it is adjourned for lunch,
when it resumes and when it concludes for the day. You should also record
the relevant times of any adjournments and the beginning and end of each
witness’ evidence. These times may be relevant for costing purposes, in-
cluding calculation of fees for counsel and witnesses.
Discuss with counsel whether a transcript should be ordered (if transcript
facilities are available in the court). As transcripts can be very expensive, you
should discuss with counsel whether the benefit of having the transcript justi-
fies the cost involved. Do not forget to seek your client’s instructions before
ordering the transcript.
Settlement discussions2
[33.25] It is a fact of life that many cases settle. Some settle at the door of the court
just prior to the commencement of the trial. Some settle during the course of
the trial, particularly after evidence has been given which is damaging to one
of the parties, or after the judge has made some remarks which may indicate
the likely result of the case.
As I state in Chapter 20, you should not leave settlement negotiations en-
tirely to counsel. You should actively participate in settlement discussions be-
cause your client will look to you to ensure that the settlement is in his or her
best interests. Invariably, you are in the best position to advise your client of
the likely net result after all legal costs have been paid.
Drafting terms of settlement

[33.30] Once agreement in principle is reached to settle a proceeding, it is common
for counsel to draft the terms of settlement if counsel was briefed to appear
at the hearing.
As an attorney you must not make the error of not vetting the terms of
settlement. Do not authorise counsel to sign the terms of settlement on the
assumption that all relevant matters are covered and that appropriate
________________________
1 K Downes, “Court Etiquette” (2002) 22(5) Proctor at 33, 34.

2 See also [5.20], [20.30] and [26.90].
251
releases have been included. Check the terms of settlement yourself before
they are signed.
Acting for defendant

While in many cases the drafting of terms of settlement is a routine and un-
complicated matter, inadequate attention to detail may later cause enor-
mous problems for you and your client. A classic trap for attorneys acting for
defendants is the inadequate release. If the plaintiff had a choice of several
causes of action but sued only in respect of one cause of action and the re-
lease covers only that cause of action, the settlement may turn out to be a
disaster if the plaintiff is not precluded from suing on the other causes of ac-
tion. If you act for a defendant, you should ensure that the release is drafted
in the widest possible terms to eliminate any further rights the plaintiff may
have against your client arising out of the subject matter of the proceeding.
Acting for plaintiff

If you act for the plaintiff, ensure that any release in the terms of settlement
is conditional on the defendant complying with all his or her obligations un-
der the terms of settlement and that there is a simple procedure to obtain
judgment if the defendant breaches the terms of settlement.
Taxation implications
The drafting of terms of settlement is also important from a taxation per-
spective. Often, the type of document used to effect a settlement may have
stamp duty implications and the description of the payments or the method
of payment may have income tax or Value-Added Tax implications for your
client. Consider these taxation issues and, if you are not familiar with the
area, seek assistance from colleagues in your firm who are.
Remember your client

Above all, do not forget your client when finalising terms of settlement. Every-
one is usually relieved when a proceeding settles and attempts are made to
document the settlement and conclude the proceeding as a matter of ur-
gency. Notwithstanding the desire to effect settlement quickly, you should
provide your client with a copy of the proposed terms of settlement and seek
confirmation in writing that your client is happy with these terms before sign-
ing them on his or her behalf.
Do not rely on the fact that your client approved in principle the agree-
ment that was reached. Make sure your client agrees with the actual wording
of the terms of settlement. This will avoid later arguments that your client
was misled about the settlement and did not agree to its terms.
Ensure that your client understands the effect of the settlement. In the
case of the payment of an “all in” amount to your client, make sure your
252
Chapter 33: Instructing in court
client understands that no separate amount will be recovered from the other
party in respect of legal costs and that these costs will be deducted from the
settlement amount. It is important that your client is informed of the ap-
proximate net amount that will be paid to him or her.
Instructing in court: conclusion

[33.35] As instructing attorney, you have a vital role in organising your client’s case
for trial and assisting counsel in court. You may also be required to partici-
pate in settlement negotiations. If the case settles, you will be responsible for
ensuring the terms of settlement fully protect your client.
253
Chapter 34
Court etiquette
A woman was being questioned in a court trial involving slander. “Please
repeat the slanderous statements you heard, exactly as you heard them,”
instructed the lawyer. The witness hesitated. “But they are unfit for any
respectable person to hear,” she protested. “Then,” said the attorney,
“just whisper them to the judge.”
Quoted in “Lawyers: Jokes, Quotes and Anecdotes 2003 Calendar”,
Court obligations: introduction

[34.05] A former Irish judge, Cyril Kelly, who sat in the Circuit Court in Dublin, once
warned the practitioners in his court that: “The next person whose mobile
phone rings goes to gaol.” Apparently, this announcement at least attracted
the attention of all the practitioners present.
The cellphone has come to haunt us all. It rings in theatres, cinemas, res-
taurants and, far too frequently, the courts. It represents interference with
the court process and a degree of contempt for it. But the existing problems
encountered by the court are not confined only to the cellphone. Somehow it
seems that in either training at law school or in the course of post-graduate
training young practitioners are not being instructed as to what is proper de-
corum in a court.
In this chapter I draw to your attention a number of obligations that every-
one appearing in court has to the court from the moment they step inside.
General tips
[34.10] Too often candidate attorneys or young lawyers, whether admitted to prac-
tice or not, are sent to court by their principals without any instructions
about court decorum. Literally they are lambs to the slaughter.
Following are matters of concern of which young lawyers should be aware.
255
Cellphones
[34.15] Preferably a cellphone should never be taken into court in the first place, but
if there is nowhere that it can be left, turn it off. You risk great personal em-
barrassment if you do not.
Know when to be silent

[34.20] Historically, when the oath is being taken, or an affirmation administered, the
solemnity and significance of that occasion is acknowledged by the cessation
of movement and conversation in the court.
That is a lesson that has not always been passed on to young practitioners
and frequently courts are disrupted by young practitioners who do not seem
to appreciate that the court cannot proceed until they cease conversation or
be still. One judge I spoke to reported an incident where a young practitioner
seemed to be emulating Goldilocks looking for a chair that suited her comfort
for some seconds while a helpless registrar waited patiently for her to re-
sume her seat. The oath or affirmation is the linch-pin of our legal system and
it should be honoured appropriately.
It is also impermissible in court to talk while:
l a prisoner is being sentenced;
l judgment is being delivered;
l the court is being opened;
l the court is being closed; and
l a prisoner is being arraigned.
Watch what you say or do

[34.25] Young practitioners should remember that the positioning of a judge affords
him or her an unprecedented opportunity to both see and hear what goes on
in the court. Accordingly, the following actions represent conduct unlikely to
attract the court’s sympathy:
l picking one’s nose for a protracted period;
l reading a newspaper with a legal document wrapped around it;
l reading a racing guide with similar disguise;
l sketching the judge, counsel or the parties;
l checking personal bank statements with the use of a calculator;
l announcing your appearance by saying “Hi” to the judge; and
l discussing the football results or your sex life in a loud voice at the back
of the court.
256
Chapter 34: Court etiquette
Bowing
[34.30] When the judge or magistrate enters or leaves the court everybody stands up
and makes a courtesy bow in the direction of the bench. When a person en-
ters or leaves the court, a courtesy bow is similarly made in the direction of
the bench.
Asides
[34.35] The tendency of counsel to indulge in asides, many of them in a stentorian
voice, seems unchanged over many decades. As a question of professional
courtesy, when a colleague is examining a witness it is difficult to imagine
how such an interruption can be justified.
Messages for counsel

[34.40] The proper procedure for an attorney wishing to deliver a message to coun-
sel is by discreetly handing him or her a note.
Sit attentively
[34.45] The court is not a place in which to sun yourself or sleep. Luxuriously lying
back with arms expansively spread along the backs of seats should be con-
fined to the sporting arena.
Masticating
[34.50] I will resist the usual chestnut on that topic.
Peeping
[34.55] Some judges are annoyed when a practitioner opens the court door and
peeps around like a dormouse, with a view to identifying who is in the court.
This is usually done without any acknowledgement to the judge. Should you
wish to establish who is in the court, enter the court in the usual way, ac-
knowledge the judge and take a seat while you look around. Your departure
should be carried out in the same fashion.
Documents with provocative headings

[34.60] Many a trial has been aborted because instructing attorneys or counsel have
left documents with provocative headings in full sight of a jury.
257
Mode of addressing the judge

[34.65] The form of address for a judge in the court is: “My Lord”, “My Lady”, “Your
Lordship”, or “Your Ladyship” and outside the court it is “Judge”.
One judge told me of a trial where a witness turned to him in response to a
question that seemed to be unrealistic and said: “Mate, do I have to answer a
bull-shit question like that?” The judge was pleased to note that the witness
at least addressed him in affectionate terms.
Giggling, laughing and general hilarity

[34.70] Mr Justice Darling, an English judge, was renowned for, and took pride in, his
bon mots. Unfortunately, many of these were uttered in trials involving the
death penalty and I wonder what the prisoners and their relatives thought
about that. What may be mundane to you is possibly one of the most impor-
tant events in the life of the person you are representing. While on occasions
humour can relieve tension during criminal proceedings, jokes always seem
inappropriate.
Stand up when addressing the court

[34.75] When a practitioner stands up to address the court or to raise objections, his
or her opponent must sit down. Both practitioners will stand simultaneously
in the following circumstances: When the judge/magistrate walks in and out
of court; and when the judge/magistrate addresses them both.
Have adequate instructions

[34.80] Problems encountered by inexperienced practitioners in court are not always
their fault. The problems can be traced back to the inadequacy of the instruc-
tions they have been given for the purpose of their appearance. My advice is
that before responding to a request from your principal to “get up to court
quickly, we’ve overlooked something on the roll!” stand your ground and ask
for better instructions.
Ask your principal whether you are properly attired to appear in court and
demand full details of the matter, including what it is about, on whose behalf
you appear, what you are seeking and, above all else, what are the limits to
your instructions if consent is sought. Too often it becomes a case of “shoot
the messenger” if the inexperienced practitioner is not properly prepared.
Standard of dress
[34.85] While courts are much more relaxed these days in respect of the dress of
witnesses, and rightly so, there still seem to be standards of dress required of
258
practitioners, just as there is in normal business practice. Just as the day is a

long way off when a business person will attend the meeting of a corporate
board wearing an athletic singlet, we would like to think that practitioners
will set their own standards along the same lines.
Some judges I spoke to expressed concern about the dress standards
adopted by young practitioners when appearing in court. My first reaction
was that this hinted at a return to an infamous incident in the Family Court
many years ago when a judge took exception to a female practitioner appear-
ing in a pantsuit. With relief I found that this was not the case. Rather, it was
a judicial expectation that young male lawyers should not appear in a dark
blue athletic singlet and running shorts and female practitioners in garb
which hinted that they had just come straight from a nightclub.
To my eyes there has been little change in court dress over the years, but
what has changed is the court’s expectations of what a witness will wear. For
some judges, the tolerance of what a witness can wear has never been ex-
ceeded. Although on occasions counsel make representations or apologies on
behalf of a witness who has attended court in basic working clothes, those
apologies are now unnecessary. Giving evidence in itself is a terrifying experi-
ence for the uninitiated and to require witnesses to wear garb quite foreign
to their everyday apparel seems merely to heap stress on stress.
Most judges acknowledge that a witness coming to court in work clothes is
fine, but dress that hints at contempt for the court process is not.
Most judges adopt a similar approach to male witnesses who take the oath
with one hand in a pocket. When you are frightened stiff, what will you do
with your hands? As long as the court is satisfied that the hand in the pocket
is just that, awkwardness in a public situation and not an indication of con-
tempt for the court process on the part of a witness, then nothing is said.
Be courteous
[34.90] There are a number of rules of etiquette, the observance of which will aid the
hearing of most cases in most courts.
Remember that most of the so-called “rules” which follow are not laws;
they are conventions, and give way to any particular practice of the court in
which you may appear.
Many of the points on etiquette are really about good advocacy, court
craft or duty. It is hard to segregate them strictly. Advocacy is the art of per-
suasion; politeness is often the way to persuasion.1
________________________
1 Some of the discussion that follows has been adapted from Mr Justice PW Young’s article “Court Etiquette” (2002)
76 Australian Law Journal at 303.
259
Smart tactics
[34.95] It is often thought smart to use tactics which will put the opponent on to the
wrong foot. Mostly these tactics rebound on the user, at least in the long
term.
Judges are awake to the device of serving a whole host of affidavits on the
opponent at the last minute. They are awake to the tactic of trying to give
evidence through a solicitor’s affidavit so that the client cannot be cross-
examined. They are awake to what is called the “North Carolina stratagem”,
whereby an application is made, late on Friday with a thick pile of affidavits,
to a judge unfamiliar with an area of law in the hope that the judge will grant
the injunction sought out of caution.
A person using these tactics will often find that the judge will just refuse
relief on the basis that there is no admissible evidence filed in time to sup-
port the order sought.
Courtesy to an opponent
[34.100] The rules regarding courtesy to an opponent are as follows.
Rule 1: Always inform your opponent in due time if you are going to be late
The best advocate will be delayed from time to time. However, the opponent
may also be on a very tight schedule. That schedule will be completely
thrown out if you have your attorney announce in court at 10 am that you
will not be there until 11:30 am. Had your opponent known, he or she would
have reversed the order of his or her commitments.
Rule 2: Do not be aggressive
Judges have ears and eyes. An advocate of some years standing being pro-
vocative towards a newly admitted counsel or a female counsel gets no
brownie points either from the judge or his or her colleagues. Indeed, the
judge may react by being over protective to the other counsel.
Rule 3: There is no duty to help fools
Although you should not act provocatively, there is no corresponding duty to
assist a fool who is appearing in a case against you where he or she is obvi-
ously out of his or her depth. Indeed, attempts at assistance often backfire.
Rule 4: Be courteous in correspondence
There is no need to be rude. Furthermore, remember that the judge may well
be reading the correspondence at some stage of the trial.
260
Courtesy to the court administration and witnesses

[34.105] Observe the following rules with regard to witnesses and court admin-
istration.
Rule 5: Estimate time accurately
If asked how long you will be with a witness or submissions, endeavour to be
accurate. The convenience of many other lawyers depends on such accuracy.
Rule 6: Always advise the court as soon as a case is settled
Most courts are troubled with too few resources. Early notification of settle-
ments allows for other cases to be listed for hearing.
Court etiquette: conclusion

[34.110] The rules of etiquette can be summarised as:
l Always be considerate of other people involved in the case on both sides.
l Be on time.
l Be properly prepared for the case.
l Know the rules of procedure for each court and observe them.
l Do not use the court processes for collateral purposes.
261
Part 5
Mistakes and misapprehensions
Chapter 35
Learning from mistakes
“Lawyers, unlike doctors, are unable to bury their mistakes.”
How to avoid mistakes and misapprehensions

[35.05] Part 5 of this book identifies some of the more common mistakes and mis-
apprehensions that bedevil inexperienced practitioners in order to help you
avoid them.
I believe that inexperienced practitioners should learn as much as possible
from the mistakes of others very early in their careers. There will be time
enough for you to make your own particular mistakes, but you should not
make the same mistakes as others before you. Otherwise, there is a risk that
some mistakes and misapprehensions will be perpetuated.
The mistakes and misapprehensions have been collated after consulting
many practitioners. While the lists do not purport to be exhaustive, they en-
compass the mistakes and misapprehensions that frequently recur among
junior practitioners.
Some of the mistakes and misapprehensions may appear so obvious that
you might shake your head and mutter: “I would never have done that”.
While that will no doubt be true after you read this book, can you put your
hand on your heart and say that not a single mistake or misapprehension I
have listed brings back any suppressed memories?
265
Chapter 36
General mistakes and
misapprehensions 1
“The English have a low opinion of lawyers until they become judges.”
Lord Devlin, The Judge (1979)
Clients: mistakes
[36.05] Outlined below are common client-related mistakes to avoid:
Giving telephone advice to strangers
This is usually unremunerative because you may never hear from the person
again and any bills you send to the address given may be returned unclaimed.
It is also dangerous because the stranger may sue for negligence if, as a result
of instructions being incomplete, your advice turns out to be wrong. The only
people to whom you should give advice over the telephone are established
clients.
Forgetting to take down a new client’s contact details
This can be very embarrassing if you unexpectedly have to cancel an ap-
pointment you have made to see a client but have no way of contacting the
client. Alternatively, you will feel foolish if you spend a few hours researching
the problem that the new client outlined briefly to you over the telephone
only to find that the new client not only breaks the appointment but never
contacts you again.
Believing that you are bound to accept everyone as a client
As an attorney, you are not bound to accept every person who consults you.
Becoming personally involved
If you become so personally involved in your client’s case that you take all
points and matters offensively and aggressively, you are acting unprofes-
sionally and may do more harm than good by annoying the opposing
________________________
267
practitioner and removing the spirit of compromise. You should at all times
retain your professional independence, objectivity and detachment: see also
Chapter 7.
Inadequate explanation or comment

You should avoid acting as a post office for your client, in the sense of send-
ing documents to your client without adequate explanation or comment.
Do not assume that your client understands clauses in documents, such as
leases, mortgages and guarantees which you consider to be standard. You
have an obligation to adequately explain the provisions of documents you
prepare or review on behalf of your client before allowing your client to sign
them.
Partnership departures
Do not forget to advise clients who are in partnership that it is necessary for
them to notify suppliers of goods and services whenever any partner leaves
the firm.
Such notification is necessary to protect remaining partners from the pos-
sibility of being liable for any future debts incurred by the departing partner
purportedly on behalf of the partnership. Such notification could also protect
the departing partner from being liable for future debts of the firm.
Legislation relating to partnerships prescribes a procedure for notification
of changes in the membership of a firm. Business names legislation also
makes provision for notification of changes in the ownership of business
names.
Family law: mistakes

[36.10] Avoid the following family law mistakes:
Using documents to insult opposing party

Using affidavit and other documentary material as weapons for the purpose
of insulting the opposing party may win immediate adulation from your client
but will not assist your client’s case or assist the long-term relationship be-
tween the parties and their children.
Enlisting neighbours as part of client’s armoury

While some situations may demand evidence from neighbours, you should
always consider whether the value of the neighbours’ evidence is outweighed
by the deterioration in relations between the neighbours and one or both of
the parties to the marriage that might result if neighbours are required to
give damaging evidence. You should also take into account whether any chil-
dren of the marriage would be adversely affected.
268
Chapter 36: General mistakes and misapprehensions
Failing to warn client about emotional responses

Courts are not impressed by inflammatory, irrelevant and repetitious evi-
dence or affidavit material. You should inform your client that it is always
counterproductive to be overcome by anger, frustration and a desire to
avenge or inflict harm on the other party to the marriage when giving evi-
dence, especially if questions of custody are involved.
Guarantees: mistakes
[36.15] Watch out for the following guarantee-related pitfalls:
Releasing principal debtor when intending to sue guarantor

By operation of law, a discharge of the principal debtor automatically dis-
charges the guarantor also, so do not release the principal debtor if you still
intend to sue the guarantor for the debt.
Giving a release to one guarantor only

If you still intend to sue a co-guarantor for the debt, remember that by law,
a discharge of one guarantor may be held to automatically discharge all
other co-guarantors. Instead of a release, you should execute a covenant
not to sue in favour of the first guarantor to preserve the liability of the
co-guarantors.
When suing a guarantor, suing principal debtor first

A common mistake is believing that if you want to sue a guarantor you need
to either sue the principal debtor first or join the principal debtor in the ac-
tion against the guarantor. This is not so. However, you will need to satisfy
the court that the principal debtor has defaulted in his or her obligations be-
fore the guarantor becomes liable.
Failing to recommend independent legal advice

Do not fail to advise a client which is a financial institution to ensure that a
wife providing a guarantee over the family home for the business pursuits of
her husband, from which she will derive no financial benefit, has received in-
dependent legal advice: Garcia v National Australia Bank Ltd (1998) 194
CLR 395.
While this principle has been applied with respect to wives providing guar-
antees for their husbands, it would be prudent to advise your client to ensure
that a guarantor seek independent legal advice wherever there is a risk that
the guarantor may have been subjected to some undue influence.
269
Wills: mistakes
[36.20] The Wills Act 1953 (as amended) is a relatively short piece of legislation and
provides for
l the formalities required in the execution of a will;
l the powers of the court to declare a will to be revoked;
l the effect of a divorce or annulment of marriage on a will
l the entitlement of surviving spouses and descendants of certain persons
to certain benefits in terms of a will;
l the interpretation of wills;
l the validity of certain wills executed in accordance with the internal law
of certain other states;
l the competency to make a will; and
l the competency of persons involved in the execution of a will.
Do not send a will to a client for execution without proper advice as to the
way in which the will should be executed and witnessed so that it complies
with the requirements of the Wills Act 1953. There are many pitfalls involved
in relation to wills and unless you warn your client about what these are the
consequence might be that the validity of the will is challenged. You should
also warn your client that the executors or beneficiaries nominated in the will
may not be witnesses and that no alterations must be made to the will with-
out him or her first consulting you.
Criminal law: mistakes

[36.25] There are two common mistaken beliefs when considering criminal law:
Client confesses guilt to you, pleads not guilty, you leave client
The fact that your client has confessed to you does not mean that you cannot
defend him or her any longer. You can still present evidence and make sub-
missions urging the court to find your client not guilty. However, the confes-
sion imposes some limitations on how you conduct your defence. Whilst you
can test the evidence of prosecution witnesses and argue that the prosecu-
tion has not discharged its onus of proof, you cannot make positive asser-
tions (such as setting up an alibi) which you know are untrue having regard to
the confession. You should certainly not inform the court of the fact that the
defendant confessed to you: Tuckiar v The Queen (1934) 52 CLR 335 at 346.
Client on bail need not attend adjournment hearing

When bail is granted the accused is released on condition that he or she at-
tends court at the specified time; the fact that an adjournment will be sought
does not excuse non-attendance.
270
Cost-related mistakes
[36.30] For cost-related issues, see also Chapter 11.
Failing to obtain costs in advance from new clients

The risk is that you will do work for which your client will receive a benefit
but your client will not pay your bill. The result will be either that you will
have a bad debt on your hands or you will have to sue your client for your
costs. Both results are obviously undesirable.
Underestimating legal costs

Estimating costs is not always easy and, when you are asked by a client to
give a quotation, it may be prudent to give an approximate figure, or range of
costs, rather than a firm quotation.
Value-Added Tax and other charges

Two other cost-related mistakes are failing to make clear whether your pro-
posed fees are inclusive or exclusive of VAT and failing to take into account
outstanding disbursements such as government duties, counsels’ fees and
bank charges when you cost a file.
Irrevocable authorities
[36.35] The most common mistake here is accepting at face value that an irrevocable
authority is truly irrevocable.
An example of an irrevocable authority, that is familiar to practitioners, is a
letter from a new client stating “out of the net proceeds of sale of my house,
I irrevocably authorise you to pay R20 000 to my former attorney in respect
of outstanding legal costs”. What happens if, on the day of settlement, your
client gives you written instructions that notwithstanding the previous “irre-
vocable authority”, the entire net proceeds of sale are to be paid to him or
her?
This situation gives rise to apparent competing duties on your part. On the
one hand, you are obliged by legislation or rules of professional conduct and
practice to disburse your client’s funds as directed. On the other hand, the
latest instructions from your client seek to revoke a previous authority which
was described as “irrevocable” and was given for the benefit of a third party.
The question is whether irrevocable authorities are irrevocable as a matter of
law.
The authors of Wille’s Principles of South African Law (8th ed, Juta & Co.
Ltd) state in this connection and with reference to Ward v Barrett NO 1962
(4) SA 732 (N) on p 608 as follows:
“The question whether an authority to conclude a juristic act on behalf
of another can be granted irrevocably is a controversial one. It has
271
been held, in a number of cases that an authority is irrevocable in the

strict sense where the agent is . . . authorized to do an act for his own
and not for the principal’s benefit, as, or as it is generally styled, the
authority is ‘coupled with an interest’ or ‘forms part of a security; . . .
This proposition reflects Anglo-American rather than Roman-Dutch
law, which consistently refused to recognize the validity of an irrevo-
cable authority, notwithstanding the apparent exception of a procura-
tor in rem suam mentioned by Voet. Such a procurator was in Voet’s
time no more than a cessionary and of course the cedent lacked the
power unilaterally to revoke the cession. Whether the Appellate Divi-
sion will accept that an authority ‘coupled with an interest’ is irrevoca-
ble remains to be seen. The better view appears to be that an
authority is always revocable, even if it is linked with a contract of
mandate which cannot be terminated unilaterally. Of course, if the
principal has bound himself by contract not to revoke the authority,
but nevertheless does so, he will be liable in damages for breach of
contract.”
Other mistakes
[36.40] Other common mistakes made by practitioners include the following:
Wasting time researching case law

Take care not to spend days researching whether there is any case law on a
particular issue without first checking whether there is a statutory provision
that provides a simple answer to your client’s problem. Sometimes, there is
no case law because the issue is dealt with by statute.
Failing to obtain appropriate searches promptly

Searches, such as company searches, business name searches and title
searches, are essential to verify vital facts. For example, if you receive in-
structions to sue “Mean Machine Pty Ltd”, you should not assume that your
client has got the name of the company correct or that the potential defend-
ant is in fact a company. If you do a search you may find that the correct
name is “Mean Machine”, which is a business name owned by “Motorcycles
Pty Ltd”. Alternatively, you may find that the company is in liquidation. In ei-
ther of these cases, you would be negligent if you instituted proceedings
against “Mean Machine Pty Ltd” without conducting proper searches.
Unless the proceeding is about to become statute barred, it is better to de-
lay issuing proceedings for such time as it takes to conduct proper searches
rather than to issue immediately and then either have to withdraw the pro-
ceedings or seek leave to amend if you discover that you have made a mis-
take. Such a mistake will cost your client money, and may prejudice his or her
case.
272
Not seeking a second opinion

It may be unwise to research an unfamiliar area of law and act on your find-
ings without first consulting an experienced practitioner in the area who can
assist you with the “practical aspects” of that area of law.
Often the practice differs from the strict theoretical position. It is sound
policy to obtain a second opinion in appropriate matters in your early years
of practice. If you think you know the answer to a problem but have some
doubt, it is better not to take the punt; you should seek the views of more
experienced practitioners before taking any action. Your clients are entitled
to a minimum level of legal expertise, and it is no excuse for negligent advice
that you are not experienced in that particular area of law.
Believing counsel’s advice absolves you from negligence

The belief that if you obtain advice from counsel and act in accordance with
that advice you cannot be held liable for negligence leads to a false sense of
security. The fact that you have obtained counsel’s advice does not auto-
matically relieve you from your normal duty of care to your client.2
Assuming it is unethical to submit an argument you believe is wrong in law

This assumption is incorrect. You must obviously advise your client of your
opinion on the question but if instructed to put the argument, you should do
so unless the case is so hopeless as to amount to an abuse of the process of
the court.
Failing to maintain good working relationships with opposing practitioners

Your client’s interests can be disadvantaged when the relationship between
you and the other practitioner deteriorates or becomes hostile. If, on the
other hand, you have a good working relationship with the other practitioner,
you may be able to obtain concessions from him or her. Further, you will also
establish a reputation as being a reasonable practitioner with whom to deal
and your working life will be more pleasant. This can benefit your client as
other practitioners are more likely to prefer dealing with someone with
whom they have a good working relationship.
________________________
2 Halsbury’s Laws of England (4th ed re-issue, Butterworths LexisNexis, London, looseleaf), Vol 3(1), [424]; see also
Chapters 20 and 26.
273
Chapter 37
Common mistakes in property
matters 1
“The law the lawyers know about, Is property and land;

But why the leaves are on the trees,
And why the waves disturb the seas,
Why honey is the food of bees,
Why horses have such tender knees,
Why winters come when rivers freeze,
Why Faith is more than what one sees,
And Hope survives the worst disease,
And Charity is more than these
They do not understand.”
HDC Pepler, The Devil’s Devices (London, 1915), p 38, quoted in RE Megarry,
Miscellany-at-Law (Stevens & Sons Ltd, London, 1955), p 54
Acting for land purchaser: mistakes

[37.05] When you are acting for a purchaser of land avoid the following:
Forgetting to do a title search just prior to settlement
You should never rely on an old search or a title search provided by the seller;
rather, you must ensure that no unexpected dealings affecting the land have
taken place since your original search.
Failing to advise on implications of planning restrictions
It is easy to imagine a client who wishes to develop certain land for commer-
cial purposes returning to your office in an upset and angry state after he or
she learns that the proposed development is not allowed because of planning
restrictions upon which you failed to advise.
Failing to apply to relevant authorities for information about any other re-
strictions affecting the land or, even if you do receive them, failing to prop-
erly read the relevant information or explain it to your client are also
common pitfalls.
________________________
275
Acting for a seller of land: mistakes

[37.10] Avoid the following mistakes when acting for a seller of land:
Accepting personal cheque instead of bank cheque or cash at settlement

You must never take the risk that a cheque you accept will be dishonoured.
Failing to advise seller against purchaser taking early possession of land

Always advise the seller against allowing the purchaser to take possession of
the land being sold before registration of transfer.
Failing to obtain personal guarantees from directors of purchasing company

Without such guarantees, you may find that the company which has purchas-
ed your client’s property is insolvent and cannot complete settlement.
Acting for lessee: mistakes

[37.15] A common mistake when acting for a lessee is to allow the lessor to retain
the original stamped lease based on the belief that, as between lessor and
lessee, the lessor is entitled to possession. In fact, the lessor is entitled to the
original lease during the continuance of the term of the lease: Hall v Ball
(1841) 3 Man & G 242 at 253; 133 ER 1133 at 1138.
276
Chapter 38
Common mistakes in litigious matters 1
“‘Let the jury consider their verdict,’ the King said, for about the twentieth
time that day. ‘No, no!’ said the Queen. ‘Sentence first – verdict after-
wards.’”
Client-related litigious errors

[38.05] Failing to attend to the matters detailed below will result in disadvantage to
both you and your clients:
Failing to communicate adequately with your client
It is easy to become so involved in an action that you forget that you are act-
ing on behalf of someone else. Irrespective of the pressure you are under,
you should always obtain proper instructions for the steps you take and
should give regular progress reports to your client. It is also advisable to send
copies of important correspondence to your client so that he or she has a
clear idea of what you are doing.
You may also find that your client may be more willing to pay your bill if
you have kept him or her up to date during the course of the action.
Failing to obtain a written authority before commencing proceedings
Although the old view that you have a positive duty to obtain such written
authority is no longer fashionable, it is in your interests to ask your client to
give you written authority, instead of being satisfied with oral instructions to
sue. A written authority will avoid any dispute as to whether you had proper
instructions to commence proceedings.
Failing to obtain written instructions concerning settlement
You should not invite disputes as to whether a particular settlement was
authorised. Such disputes are avoided if you insist on precise written instruc-
tions: see [5.20].
________________________
277
Neglecting to promptly advise your client upon settlement

For you, the matter may be just another settlement, but to your client, it may
have far-reaching consequences. Accordingly, do not keep your client in sus-
pense with regard to settlements.
Failing to adequately explain procedures and expected delays
Spend a short period of time at your first meeting with your client explaining
the steps and delays that will be experienced before the case will come to
trial and you will avoid misunderstandings later on.
Neglecting to obtain receipts for documents sent to client
Whenever you send important documents to your client, you should list
them in a covering letter and enclose an additional copy of the letter to be
signed, dated and returned to you by your client as evidence that the docu-
ments have been received. Clients sometimes lose documents and then ac-
cuse you of misplacing them. A simple acknowledgement of receipt will avoid
later disputes with your client. The same approach should be adopted when-
ever you release important documents to other people.
In addition, you should keep file notes of the destination of any important
documents that leave your office. In large firms, such file notes are just as
important when the documents are given to a colleague for a specific pur-
pose as when they are given to someone outside the firm.
Unreservedly believing clients
Some clients will at the first interview declare that they will fight the case all
the way to the highest court and will insist on having only the best silk to ar-
gue the case. Do not be surprised if after further reflection such clients tell
you that they do not want to institute proceedings at all!
Expecting thanks
Generally, clients involved in litigation fail to respond to even the most bril-
liant result. Do not be disappointed or disgruntled if you think you have done
an extremely good job but your client does not acknowledge it. In most litiga-
tion neither party wins completely. The plaintiff usually receives less than he
or she seeks (even if the differential is in the costs recovered) and the de-
fendant usually has to pay something when he or she would prefer not to pay
anything at all.
278
Chapter 38: Common mistakes in litigious matters
Mistakes related to litigation costs2

[38.10] Failing to deal properly with litigation costs may cost you, so avoid the follow-
ing:
Failing to explain cost bases

Failing to explain the different ways in which costs may be assessed, namely
the party and party, attorney and client and attorney and own client bases, is
bound to cause confusion and complaints from your client. These different
bases and the one that will be used to assess your client’s costs should be ex-
plained to your client at the earliest possible opportunity so that he or she
understands that not all costs will be recovered.
Charging full fees for partial work

Charging a client a full fee for instructing in court when you only attend court
for a short time each day that the case is being argued amounts to improper
overcharging. If you practise as an attorney you are only entitled to charge
your client for such part of the day as you are actually in court on your cli-
ent’s behalf.
Neglecting to fully cover costs in a settlement agreement

If you act for the plaintiff and one of the proposed terms of settlement is that
you will file a notice of withdrawal, you should obtain an express acknow-
ledgement from the defendant’s practitioner that any agreement reached
regarding costs is in lieu of the defendant’s right to costs consequent upon
the withdrawal pursuant to the Rules of Court.
Forgetting to obtain instructions on unusual expenses before incurring them

Failure to take this precaution may mean that you must bear such expenses
yourself.
Claiming costs in a letter of demand

If you write a letter of demand on behalf of a client you are not entitled to
your costs from the other party where no proceedings have been issued: see
[42.30]. Generally, costs are not payable unless a court makes an order as to
costs. Accordingly, if you write a letter of demand to Jo Bloggs on behalf of
your client and Bloggs pays the amount demanded, Bloggs is not obliged to
pay you for the costs of the letter of demand. Your client will have to bear
that cost.
________________________
279
Counsel-related mistakes3
[38.15] Mistakes relating to counsel include:
l Forgetting about a case once the trial has commenced, on the premise
that counsel will take care of everything and your only remaining task is
to find out the outcome and send a bill to your client. In very minor cases
your absence from court may be excused but, generally speaking, your
client can legitimately expect that you will attend court to assist counsel.
Unless counsel has been involved in the case during the interlocutory
stages, it is unlikely that his or her knowledge of all the relevant facts is as
good as yours.
l Not marking a fee on briefs or making a fee agreement with counsel
when a brief is delivered. Any agreed fees should not exceed the fee (if
any) prescribed by a scale of costs unless you have express authority
from your client.
l Not preparing briefs to counsel adequately so as to ensure that counsel is
given all the facts and documents required to complete the task assigned
to counsel.
l Being reluctant to pressure counsel to expeditiously complete work. Re-
member that your client will hold you responsible for any delays that
prejudice his or her case.
l Not checking documents, such as statements of claim, drafted by coun-
sel, prior to filing or serving them. Not infrequently counsel make mis-
takes because they have misunderstood the facts. They can also get the
law wrong from time to time. More commonly, however, there may be
typographical errors that should be corrected; such errors can be signifi-
cant and can prejudice your client’s case. A simple review of documents
drafted by counsel may avoid delays or the need for amendment at a
later date.
l Making substantial alterations to documents, such as pleadings, which
are drawn by counsel and which bear counsel’s name without prior con-
sultation with counsel. As a matter of courtesy, you should ask counsel’s
permission before altering such documents.
Court documents: mistakes

[38.20] There are many mistakes you can make in relation to court documents. Avoid
the following:
Failing to serve documents on the practitioner acting for the other party
Where an original document is filed with the court, a copy should be served
on the other party and that party must sign a receipt on the attached dupli-
cate copy.
________________________
3 See also Chapters 20 and 33.
280
Not preparing or completing court documents in accordance with all applicable Rules of
Court
When you draft or complete a court document, you should ensure that you
use the correct forms and otherwise comply with all requirements of the
rules of the competent court.
Drafting pleadings in haste

Drafting pleadings in haste without a full consideration of the legal principles
involved in the particular case is too often done in the knowledge that in
most cases errors can be rectified by applying to the court for permission to
amend the pleadings. However, bear in mind that errors in pleadings lead to
expense and inconvenience, even if amendment is permitted. Repeated
amendments to pleadings can also give the impression to the opposing prac-
titioner that your client’s case is weak. Where amendment is not permitted,
the result may be disastrous both for you and your client.
Neglecting to allow client to check documents before they are filed or served
Documents sworn by your client, such as replying affidavits, which are sworn
by your client should definitely be read by your client. The same practice
should be followed for other documents, such as further and better particu-
lars, which you sign on behalf of your client.
Tolerating uninformative pleadings

Failing to ask for further and better particulars when your opponent’s plead-
ing is vague and uninformative is a common mistake.
Not relying on alternative causes of action

Take care not to base your client’s claim on only one cause of action. Con-
sider relying on alternative causes of action that may also be open. If there is
doubt, you should always plead in the alternative. The same applies for the
relief sought in the pleading.
Failing to ensure that file copies of documents are complete

Too often, file copies are made before the original document is signed and
dated. This may mean that you will not be able to determine when a particu-
lar document was signed unless you inspect the court file or ask your oppo-
nent. Although the phrase “the blank day of blank” is honoured by usage in
dictating documents, to be obliged to put to a witness that he or she swore
an affidavit on the “blank day of blank” is an unforgettable experience!
Denying every allegation when drafting defence

Ill-considered “blanket denial” defences can lead to criticism from the Bench.
The judge’s annoyance may be reflected in an order that your client pay the
281
costs involved in the other party being required to prove formal matters.
Court rules and practice directions often require defences to set out sub-
stantive responses to statements of claim and discourage bare denials.
Affidavits: mistakes4
[38.25] Avoid the following pitfalls:
Using affidavits to advance arguments, not present facts
In affidavit material, one paragraph of helpful facts is worth a dozen of argu-
ment.
Drafting an affidavit in complicated and esoteric language
Do not draft a complicated affidavit when it is to be sworn by a deponent
who, because of lack of education or lack of fluency in the English language,
cannot understand such language. Although it is proper for you to prepare an
affidavit for your client, it is your client who has to swear it and accordingly
you should use language that your client will understand. If your client is un-
familiar with the technical terminology used in his or her affidavit, he or she
will be found out if cross-examined at trial.
Drafting an affidavit which overstates your client’s case
This is counterproductive because if your client is cross-examined on the affi-
davit, it will become clear that it is pitched beyond the truth and this will
harm your client’s credibility.
Not advising your client to check affidavit before swearing
Apart from problems of perjury and unprofessional conduct, your client’s
case will be damaged if, under cross-examination, your client is forced to
admit that parts of the affidavit are inaccurate. You should always insist that
your client is satisfied with the accuracy of every word in any affidavit you
prepare for him or her. You should not discourage any suggested changes by
your client, even if this might result in inconvenience to you or your typist.
Never forget it is your client’s affidavit and not yours.
Discovery-related mistakes
[38.30] Two dangers related to discovery are detailed below:
Failing to properly explain discovery obligations
Clients do not fully appreciate their responsibilities in relation to discovery
and the consequences of deliberately or inadvertently destroying relevant
________________________
4 The points under this heading have been adapted from J Myers, “Twenty Common Mistakes Made in the Prepara-
tion and Filing of Documents” (1983) 57 Law Institute Journal at 549.
282
documents (see Chapter 14) or omitting them from the affidavit of docu-
ments. You must explain to your client that all relevant documents in his or
her possession must be preserved and must be given to you for inclusion in
an affidavit of documents. You cannot allow your client to make whatever af-
fidavit of documents he or she thinks fit, nor can you escape the responsibil-
ity of careful investigation and supervision.
Delegating preparation of affidavit of documents

It is dangerous to delegate the preparation of an affidavit of documents to be
sworn by your client to an employee who is not familiar with the rules gov-
erning discovery. The employee will probably list every document on file
without regard to questions of relevance or legal professional privilege.
Office errors5
[38.35] These simple office errors are easy to make but can have major conse-
quences:
Not using your diary and other follow-up systems

Use your diary and checklists to guard against unexpected expiration of time
limits for the taking of relevant steps in the litigation process. There are many
manual and computer-based diary systems that can be used to give you ap-
propriate warnings of impending court deadlines.
Failing to retain file copies of all documents

Keep file copies of all letters, memoranda to counsel and other documents
that leave your office.
Failing to keep adequate file notes

Notes that you leave on file should be as legible and as detailed as possible.
This will make it easier to resolve disputes as to precisely what was said or
done on a particular occasion. File notes sometimes are so important that
they are used as exhibits in court proceedings.
You should also bear in mind that at some stage in the future someone
else may be handling the file. That practitioner will not know what has hap-
pened if you keep everything in your head instead of preparing informative
file notes.
________________________
283
Your behaviour and attitude: mistakes

[38.40] Practitioners should avoid the following presumptions and actions:
Guessing the correct court procedure
Check the Rules of Court to verify the correct court procedure. Adopting the
wrong court procedure will not only lead to personal embarrassment but will
cause extra costs and delay for your client.
Omitting to read court directives
Practice directives are issued from time to time by the various courts to sup-
plement and give practical meaning to the rules of the court. Familiarity with
practice directives makes court work more efficient and less frustrating.
Failing to check jurisdiction
Remember to verify that the court in which your client is being sued has ju-
risdiction in relation to the matter before taking any step – such as entering
an appearance – which would constitute waiver of any jurisdictional problem.
Serving a company with writs and other documents personally
Company legislation usually provides that documents may be served on
companies by being posted to their registered offices.
Taking all threats by other practitioners seriously
In the context of negotiations for settlement, a lot of threats are mere bluff.
Over time, you will be able to detect what is bluff. Even if you perceive that
another practitioner intends to carry out a threat (such as issuing pro-
ceedings), you should let him or her go ahead if you think the action is mis-
conceived because that practitioner will ultimately pay for his or her error.
Being diffident about bringing proceedings against another practitioner
If your client has a valid cause of action against someone, the fact that he or
she is a practitioner should not colour your advice to your client. Similarly, if a
former practitioner of your client should pay particular costs, such as the
costs of an application to have a necessary defendant joined, because those
costs were occasioned by that practitioner’s negligence, you should inform
your client that he or she can insist that the former practitioner pay them.
Failing to consider mechanisms to induce settlement
Offers of settlement as a means of inducing the other party to settle an ac-
tion are valuable tactics to consider, particularly when you are acting for a
defendant.
Incomplete disclosure in ex parte applications
Making incomplete disclosure of facts in an application to the court without
notice to the other party (ex parte application) is a common mistake. You are
obliged to make full and frank disclosure of all relevant facts to the court.
284
Chapter 39
Common mistakes in commercial
matters 1
“The difficult task, after one learns how to think like a lawyer, is relearning
how to write like a human being.”
Floyd Abrams, quoted in “Lawyers: Jokes, Quotes, and Anecdotes 2003 Calendar”,
Commercial clients: mistakes

[39.05] The mistakes outlined below can have serious ramifications; take heed:
Not understanding your client’s business

Many of the mistakes made by practitioners in commercial matters can be
traced to this fundamental mistake. When a client comes to you for legal ad-
vice on a commercial matter, you must quickly obtain an appreciation of
what it is he or she intends to achieve.
Before meeting with a new commercial client for the first time, research
the company’s business. You may do this by looking at the company’s web-
site or its recent annual reports or by speaking to colleagues. Not only is this
important for your understanding of the company’s business and the risks
and issues that it faces, but it will also impress your client that you have some
knowledge of the company.
Sacrificing your independence2

As you develop a close working relationship with your client, he or she may
seek to pressure you into providing certain desired legal advice. For example,
in the haste to secure a commercially favourable deal, your client may ask
you to “cut corners” and provide advice that satisfies your client’s commer-
cial imperatives. You must always remain independent and professional and
not be forced into giving advice merely because it suits your client. If you do
________________________

285
so, your client may later blame you for not giving correct legal advice and you
may be the subject of professional discipline.
Notwithstanding this, it is acceptable to argue a position for your client
even if your own views differ from that position, so long as that position is
arguable. If the position is so manifestly untenable that to pursue it may
amount to unprofessional conduct, you should refuse to argue it on your cli-
ent’s behalf: see also Chapter 27.
Failing to assist your client to search for commercial solutions

Companies are generally in existence to increase value for their shareholders.
Accordingly, your legal advice should be more than merely a strict analysis of
the law. It should also offer other legal options to your client to enable your
client to achieve the desired commercial objectives. This is particularly im-
portant if your advice is that a proposed transaction cannot be implemented
in a certain way. Rather than merely providing the “bad news”, suggest to
your client other legally permissible ways of undertaking the transaction, if
any are available.
Contractual matters: mistakes

[39.10] Be careful to avoid the following mistakes in drafting contracts:
Failing to “road test” a contract before it is executed by your client

You must turn your mind to each of the clauses in a contract to ensure that it
actually works and all material aspects of the proposal have been addressed.
Many clauses contain complex legal principles and your client is likely to rely
on your analysis of these clauses and the way in which they will operate in
practice. A proper “road test” of the contract will help your client avoid ex-
pensive and time-consuming litigation at a later point in time. You must read
the entire contract, at least once, even if it is a precedent document, to make
sure that there are no material omissions and no wrong or irrelevant provi-
sions, having regard to the commercial terms of the transaction.
Relying on inappropriate precedents

When completing commercial matters for your client, it is common to rely on
precedent documents that have been used for other similar transactions in
the past. While the use of such documents is obviously time efficient and will
save your client considerable expense, exercise caution to ensure that the
documents are appropriate for the purpose for which you are using them.
Also make sure that you change the names of the parties and other details in
the precedent documents to ensure they are suitable for the particular client.
286
Chapter 39: Common mistakes in commercial matters
Omitting critical terms from contract

As an example, if your client is purchasing a business, it may be important for
your client to have a restraint of trade clause included in the contract to pre-
vent the previous owner from conducting a similar business in the same area
in the near future. Always turn your mind to whether certain clauses are
necessary in the contract to protect your client’s interests. If in doubt, speak
to more experienced colleagues.
Failing to secure appropriate warranties and indemnities

While precedent documents may contain standard clauses in this regard,
always ensure that these are appropriate for the desired purpose.
Failing to check company’s constitution allows proposed transaction

Do not assume that the clauses of the constitution will accord with those of
the Companies Act. A failure to check a company’s constitution may mean
that you have advised the directors to act in breach of their duties to the
company.
Acting for business purchaser: mistakes

[39.15] When acting for the purchaser of a business, be sure to avoid the following
errors:
Failing to understand your client’s rationale for purchase

Before advising your client on the legal aspects of the purchase, it is import-
ant that you are aware of your client’s commercial goals in relation to the
transaction. This will help you to provide legally correct and commercially
sensible advice.
Failing to conduct thorough due diligence before agreements are signed

The purpose of a due diligence is to understand the risks associated with the
purchase so that these risks can be considered in ascertaining an appropriate
price for the purchase of the business and are appropriately addressed in the
documentation. It is easy to focus on the aspects of the matter that are not
commercially imperative for your client, unnecessarily expending client
money. Together with your client, you must carefully plan which matters are
materially relevant, and commercially imperative, for your client, and focus
on these. For example, obvious as it may seem, check who is the owner of
each of the assets being sold.
It is important to prepare checklists to ensure that all matters which are
critical to your client’s purchase of the business are thoroughly checked. Also
make it clear to your client that your due diligence inquiries do not extend to
the appropriateness or calculation of the purchase price and, in this regard,
287
your client may wish to engage an accountant to undertake such financial

due diligence.
Failing to check your client has appropriate option over lease

Many businesses are worth very little without security of tenure over the
property upon which the business is conducted. It is also important to check
whether any planning permits or other permits which the business needs are
still in existence, whether they can be transferred to your client and whether
they are appropriate for your client’s future plans for the business.
Forgetting stamp duty

Always advise your client on the amount of stamp duty that is payable on the
purchase of the business and when this amount is payable.
Failing to advise on intellectual property issues

In many cases a company may be attractive for a prospective purchaser on
the basis that it has significant intellectual property capital. Accordingly, a
failure to advise on how to properly effect a transfer of these assets may
cause your client significant financial loss.
Failing to satisfy the deadlines outlined under purchase agreements

A failure to satisfy these deadlines may mean that your client’s interests are
prejudiced and further expense is incurred. Worse still, it could involve a
breach of contract upon which the other party may avoid the purchase alto-
gether. In this regard, it is advisable to keep checklists which will assist you in
the process of meeting these deadlines.
Neglecting to obtain appropriate guarantees

Do not forget to obtain guarantees from the directors of the target company,
or from other parties of substance, that they will satisfy any indemnities of-
fered at the time of purchase to your client on behalf of another party.
Forgetting taxation consequences

A common error is failing to consider and advise on, or to alert your client to
arrange for someone else to consider and advise on, the various taxation
consequences of the purchase. This advice should include the different ways
in which it is possible to structure and document the transaction to achieve
the desired tax outcomes.
288
Chapter 39: Common mistakes in commercial matters
Joint venture mistakes

[39.20] Two common joint venture mistakes follow:
Failing to advise your client on a range of options available

While a contractual joint venture is one way of effecting such an arrange-
ment, other avenues include a corporate joint venture, a partnership or a
corporate merger. Some of your clients may not have much experience in
commercial matters or may not have considered the benefits of these other
structures.
Neglecting to advise on the inclusion of a termination clause

At the outset, parties to a joint venture are often very excited about the
prospect of joining forces as a new entity. However, relationships often sour
later on. Accordingly, it is important to be the voice of reason and ensure
that a termination clause appropriate for your client is included in any joint
venture agreement. Other clauses should also deal with who will take over
the business and assets, or how they will be split up or disposed of, upon
termination of the joint venture.
Negotiating on behalf of your client: mistakes

[39.25] Avoid the following when negotiating:
Focusing on the wrong issues

In any transaction there are certain aspects of the proposed deal that are
more important to your client than others. It is unsatisfactory to secure a
successful resolution of one aspect that is of little relevance to your client
while providing a concession on an aspect that is critical to your client. From
the outset, ensure you are clear which aspects of a proposed deal are com-
mercial imperatives for your client.
Do not reach impossible compromises

As an example, it will be of little use to your client if you procure a compro-
mise in which your client will provide an accounting system if it does not have
the capabilities to do so. This will only serve to cost your client more money.
In this regard, be sure to always seek your client’s instructions before agree-
ing to any matter on his or her behalf and in particular, discuss the matter
with his or her accountants or auditors.
Overlooking the commercial imperatives of the other parties

By arriving at an understanding of the other parties’ needs, you will be in a
better position to negotiate a favourable outcome for your client.
289
Your role in commercial transactions: mistakes

[39.30] Inexperienced practitioners may overlook the following important tasks in
relation to commercial transactions:
Failing to conduct appropriate company searches

Searches of companies with whom your client is interested in dealing are im-
portant to ascertain the names of the current directors and to understand
the company’s ownership and structure and whether there are any charges
over the company’s assets which may affect your client’s dealings with the
company.
Failing to obtain money before incurring significant disbursements

Especially if you are acting for a new client, it is always prudent to obtain
money up-front to cover substantial disbursements.
Failing to brief foreign counsel

Brief foreign counsel to act on your behalf in a transaction which involves
complex legal issues in another jurisdiction for which you are not appro-
priately qualified.
290
Part 6
Communication and drafting
Chapter 40
Communication fundamentals
“Only the law insists on making a ‘party’ out of a single person.”
F Rodell, Woe Unto You, Lawyers. Quoted in E Kahn,
“The Seven Lamps of Legal Humour” (1984) De Rebus 251
Communication is the key

[40.05] Good communication is the key to your success as a legal practitioner. Almost
every minute of your life as a lawyer will be spent communicating with other
people: clients, lawyers, court officials, witnesses and employees of govern-
ment departments.
Few occupations stress the need for effective communication as much as
law. A surgeon can operate on a deaf person in the middle of a deserted is-
land and the patient will live. A plumber might advise you that your water
pipes need replacing and can then proceed to replace them in splendid isola-
tion. But for you, words are your tools.
You can know all the law there is to know but unless you can communicate
it effectively to others, you will not be a successful practitioner.
You will be a more successful communicator, and hence a more successful
practitioner, if the purpose of every word you utter or write is to convey a
clear message rather than to impress or confuse.
Part 6 of this book looks at some aspects of the art of effective communi-
cation. The chapters emphasise that the use of clear and simple language,
whether in telephone conversations, emails, letters or other documents, is
always preferable to technical and esoteric terminology. Do not forget that
the vast majority of your clients will not have spent years at a law school
mastering complex legal terms.
293
Chapter 41
Correspondence
“‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it
means just what I choose it to mean – neither more nor less.’ ‘The ques-
tion is,’ said Alice, ‘whether you can make words mean so many different
things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be Master –
that’s all.’”
Lewis Carroll, Through the Looking Glass, Ch 6
Your first letter

[41.05] One of your first tasks when you commence work in a legal office will be to
write a letter. While this may sound easy, even the simplest letter is likely to
take you several hours to write at first. You may know exactly what you want
to say but, somehow, the right words will not come to you.
When you finish your first letter and nervously take it to your principal for
approval, the chances are that he or she will shake his or her head and tear
up your letter or, at the very least, cover it with so much red ink that your
original draft is barely recognisable. As if to underline his or her disgust, your
principal may “show you how it is done” by picking up the dictaphone and
dictating “the perfect letter” in no time at all.
Do not get too depressed if most of your early letters end up in the rubbish
bin or are radically amended. The fault usually lies with the fact that univer-
sity taught you the theory required for legal practice, but did not train you to
write effectively. Also, be aware that your principal may even change advice
that is otherwise correct so that it is peppered with his or her favourite words
and expressions. Your task is to educate yourself to write letters of which you
and your principal will not be ashamed and that the recipients will under-
stand.
Remember that your clients and other practitioners will judge your compe-
tence by how well you can compose a letter.
295
Examples of sloppy letters

[41.10] The following is a letter written by a New South Wales solicitor to an expert
who had furnished a report:
“We thank you for orally telephonically communicating to us epitome
of your instant report on Monday 24th August 1981. As predicated to
you then, we have pleasure in furnishing herewith our client’s cheque
in your favour of $250, your nominated relevant fees.
We shall accordingly be appreciative of your provision to us at your
early convenience of your engrossed report, together with your receipt
pertaining to the said cheque.”
Funny? No, sad, if you consider that the solicitor may still be writing similar
letters to members of the public throughout New South Wales.
You must exercise particular care when you are drafting letters to clients
who are not fluent in English. A thought-provoking example is the following
letter written by a solicitor to a Vietnamese client who had recently arrived in
Australia and who had been involved in a car accident:
“I refer to my letter of 26th ultimo wherein I enclosed interrogatories
for your examination together with draft answers for your perusal,
consideration and return. This matter is now one of extreme urgency
as the plaintiff’s solicitor has threatened to take out a summons to en-
force delivery of answers. Please deal expeditiously with this matter.”
Presumably, the solicitor has still not heard from this client who is no doubt
overcome by perusement.
Another problem is that the language used by practitioners in letters does
not always measure up to professional standards. A Victorian solicitor once
wrote a letter to a debtor who owed his client money which began: “You
rude illiterate Teutonic peasant.”
Perhaps even worse than that effort was a letter by an English solicitor to
his client which said, in part: “You are a sinister little creature, a poisonous
creature – an offensive little wretch.” The English solicitor was held to be
guilty of conduct unbefitting a solicitor.1
Clinging to literary lifebelts

[41.15] Almost as a response to uncertainty in expression, some practitioners tend to
rattle off meaningless pieces of legal jargon and sentences which are choked
by clichés.
Because of their inexperience, many young practitioners tend to follow
closely precedents for their correspondence. They tend to treat precedents
________________________
1 The Council of the Law Society, A Guide to the Professional Conduct of Solicitors (The Law Society, London, 1974),
p 81; see also Law Society, The Guide to the Professional Conduct of Solicitors (8th ed, Law Society, London, 1999).
296
Chapter 41: Correspondence
as literary lifebelts to which they cling desperately when trying to think of a

way of communicating. The unfortunate result is that the errors and pompos-
ity of the past go on from one generation to another without any real ques-
tioning of the necessity of the language or the meaning intended.
More experienced practitioners will not look upon unsatisfactory letters
with much favour. A practitioner once responded to an over-lengthy letter
putting an offer of settlement on behalf of a client with the following:
“Dear Sir,
Smith & Jones
NO
Yours truly,”
Cut out unnecessary verbiage

[41.20] If you take care in choosing your words you will probably realise that many
words which are fashionable in the profession are merely surplusage. Let us
look at an example:
“Dear Sir,
Re Smith ats Jones
I acknowledge receipt of your letter of 26th instant. I wish to advise
that I have this day prepared draft answers to interrogatories, a copy
of which is enclosed herewith for your perusal and return.
Yours faithfully,”
But why not the following:
“Dear Mr Smith,
You and Jones
Thank you for your letter of 26 June. Enclosed is a copy of the draft an-
swers to the questions you were asked, which I prepared today. Would
you please check them and send them back soon?
Yours sincerely,”
Let us look at the first letter in detail:
l “I acknowledge receipt of your letter.” – We wonder at the cost to the le-
gal profession of secretaries in legal firms typing “I acknowledge receipt
of”. If you are acknowledging the document, then surely you must have
received it. “I acknowledge” is right, “receipt of” is unnecessary. Instead,
use “Thank you for your letter of 26 June”, which is not only more per-
sonal, but probably gives the recipient the impression that a person is
writing the letter and not a machine. Of course, “thank you” is not always
appropriate. For example, it would be inappropriate to write “Thank you
for your letter of 26 June demanding R20 000 from me”. In that case, try
“I have”, “I acknowledge”, “I refer to” or “I received”.
l “26th instant” – This is formal and stiff. “26 June” is clearer and simpler.
297
l “wish to advise” – This is mere verbiage. If you did not wish to advise you
would never have written in the first place.
l “this day” – This is pompous and stilted and more suitable for an age of
high stools and quills. Why not use “today”?
l “enclosed herewith” – Where else would the document be enclosed?
l “for your perusal” – Who peruses these days? “Perusal” lends itself to le-
gal posing, not easy communication. There are simpler words that can be
used in its place such as “consideration” or “checking”.
Think before you write

[41.25] Organise the structure of your letter before you start writing. Be clear about
what it is you want to say and then ensure that your letter achieves its pur-
pose.
Remember that a letter is a permanent way of communicating a view, a
fact or a suggestion. Make the letter say exactly what you want to convey to
the recipient. Once a letter is written and sent, you cannot change it. There-
fore get it right!
Write in plain English

[41.30] Find simple alternatives to the jargon and clichés that have been used in legal
offices for years. Compare the following alternative letters used as examples
in a booklet on plain English that was published by the Victorian government:
“Sir, it is desired to acknowledge receipt of your letter of the 4th Au-
gust, in which you requested advice of the progress of the con-
sideration of your application for the issuance of a licence under
section 40a of the regulations administered by this Department. It has
been ascertained that consideration of the application has not been
finalised; however it is anticipated that advice of the decision reached
will be despatched to you not later than seven days after date hereof.
Yours faithfully,”
“Dear Mr Watson,
You wrote to us on 4 August about your licence application. We have a
little more work to do but expect to let you know the result within a
week.
Yours sincerely,”
If you are writing to your client, write the type of letter that you would like to
receive if you were the client. For the preservation of a good legal practice it
is essential that you minimise the frustration, dissatisfaction and unease that
you cause to your clients by cumbersome legalistic letters. You will also re-
duce the number of telephone calls you get from your clients asking you to
explain what your letters mean!
298
A good example of a letter that practitioners often send is: “We have
searched the title and found that it is unencumbered, save for a mortgage to
the X Bank which will be discharged at settlement.” While even the most jun-
ior practitioner would understand such a letter, your client may not know
what the words “searched”, “title”, “unencumbered”, “discharged” and “set-
tlement” mean.
Do not resort to Latin or other foreign phrases in your correspondence.
You will not impress anyone and will only cause confusion and misunder-
standing. Your foreign phrases may also be inappropriate in the context of
your letter and will cause embarrassment to yourself. As Fowler puts it, “The
display of superior knowledge is as great a vulgarity as the display of superior
wealth.”
Although formal references to judicial decisions may be appropriate in cor-
respondence to other practitioners or clients who are legally qualified, it is
often inappropriate to send your clients letters containing extensive case ci-
tations.
Writing in plain English can also save you time. Writing simply often results
in fewer words which means less for you to dictate or type, less for your sec-
retary to type and less for you to check. Moreover, there is evidence to sug-
gest that the time taken to comprehend documents written in plain English is
much less than that taken to read traditional legal text. The results of a study
commissioned by the Law Reform Commission of Victoria demonstrated that
lawyers were able to comprehend plain English versions of legislation more
quickly than the original legislation.2 Writing clearly and simply may also pro-
tect you from professional negligence claims. In England, a firm of solicitors
was ordered to pay around £220 000 to a client because of a “disastrous” let-
ter of advice that the judge described as written in “very obscure” English.3
There are many advantages in plain English writing. Not only will you de-
liver better service to your clients, but your clients and colleagues will respect
your communication skills and will be better able to appreciate your legal
skills. You will also assist in demystifying a profession that has long been un-
intelligible to the general public.
Structure and style

[41.35] Wherever possible use short sentences and paragraphs. Experts suggest that
20–25 words is a good sentence length,4 although some flexibility is required.
Keep each sentence to one idea. Write as briefly as the material will allow
________________________
2 Victorian Law Reform Commission, Plain English and the Law, (1990 reprint) Report No. 9 pp 69, 70.
3 P Macalister, “Eliminating Legalese New Body to Clear the Fog from Legal Documents” (1992) 30 (1) Law Society
Journal 77 at 80.
4 E Kerr, “Plain Language: Is It Legal?” (1991) 29 (5) Law Society Journal 52 at 55; MM Asprey, Plain Language for
Lawyers (3rd ed, The Federation Press Sydney, 2003), p 106.
299
and, where appropriate, use paragraph headings. Remember that people as-
sociate a muddled letter with a muddled mind.
I am aware of a letter written by a practitioner which contains the longest
sentence that I have ever encountered. The sentence, which is 347 words
long, demonstrates the love affair which existed between the practitioner
and his dictaphone. His secretary was not heavily into full stops and the re-
sult was that nine similar sentences would have constituted an essay for uni-
versity purposes in any faculty. However, this example pales in comparison to
the unpunctuated sentence of over 450 words referred to by Stephen J in Na-
tional Bank of Australasia Limited v Mason (1975) 133 CLR 191 at 203 and the
single sentence of 722 words in a covenant found by the Law Foundation
Centre for Plain Legal Language.5
Make your letters reader-friendly. For letters over two pages in length, it is
a good idea to include a brief summary at the beginning of the letter. Your
clients are busy people and such a summary will assist them in gaining a quick
understanding of the advice set out in the letter.
The actual style of a letter to your client should take into consideration his
or her ethnic background, education and intellect. The tone and formality of
the letter should be specifically geared to that particular client.
Wherever possible, use the active, rather than the passive, voice. It helps
you to be far more positive, definite and specific. It is better, for example, to
write “The cow jumped over the moon” than “The moon was jumped over by
the cow”!
Use simple words such as:
l “buy” not “purchase”
l “sign” not “affix your signature”
l “if” not “in the event of”
l “allow” not “afford an opportunity”
l “because” not “by virtue of the fact that”
l “second last” not “penultimate”
l “about” not “in relation to” or “in respect of”
l “near” not “imminent”
l “use” not “utilise”
l “happen” not “eventuate”.
The phrase “in relation to” must win the prize as the most overused in legal
correspondence.6
________________________
5 P Macalister, “Eliminating Legalese New Body to Clear the Fog from Legal Documents” (1992) 30 (1) Law Society
Journal 77 at 79.
6 For a useful discussion of plain language vocabulary, see MM Asprey, Plain Language for Lawyers (3rd ed, The
Federation Press, Sydney, 2003), Chapter 13. See also E Kerr, “Plain Language: Is it Legal?” (1991) 29 (5) Law Soci-
ety Journal at 52.
300
On the quarantine list of words which should never be used are “afore-
said”, “albeit”, “before-mentioned”, “said”, “hereintofore” and “hereinafter”.
Even when working under pressure, you should resist the temptation to
use familiar phrases unless you are sure they mean exactly what you want to
say. It is a great discourtesy to send a precedent letter that is inappropriate
for the person to whom it is sent.
Write as directly as you can. It is better to say “I am sorry” than “It is re-
gretted”.
Be accurate
[41.40] Write as accurately as possible. Make sure that you have checked all the
facts. If you are unsure about some of the facts that your client has provided,
emphasise that you are providing the advice in the letter on the basis of the
facts provided and list these facts. This way, if your client has additional in-
formation, he or she can contact you with this information and you can
change your advice, if necessary. While simplicity is a desirable quality, you
should not take it to such an extent that your letter becomes inaccurate or
misleading.
Don’t show emotion

[41.45] Never write a letter in anger and post it on the same day. Some of the best
(or worst) letters I have ever written never saw the inside of a letter box. If
you are so angry that you feel you will burst if you do not write something
down, put something in writing and then leave it aside for a day. There is a
good chance that when you again look at the letter you will be embarrassed
by its contents and a much more conservative form of letter will be sent.
Slanderous statements, no matter how justified in your belief, usually ag-
gravate rather than improve a situation. They may also constitute unprofes-
sional conduct. I recommend that you seek advice from a dispassionate col-
league before launching a brilliant offensive or sending an acrimonious reply.
Always bear in mind that your letters may, at a later point in time, be read
by a judge.7 When you are presenting your client’s case to the court, you are
seeking to present your client as an honest and credible person who is not at
fault. Sarcastic, rude or disrespectful letters may indicate the contrary.
Standard or precedent letters

[41.50] If you must use standard or precedent letters, check them thoroughly and
make sure that they are informative and suitable to the circumstances of the
________________________
7 K Downes, “Writing to the Other Side” (2001) 21(4) Proctor at 28.
301
particular client. For example, if after winning a case for a client you are ad-
vised that the client does not wish to enforce the judgment, there is no point
in sending a standard letter to the effect: “Now that judgment has been en-
tered in your favour, the following options are open to you in enforcing
judgment.”
Similarly, if you write a lengthy letter of advice to one client and then dis-
cover that other clients require the same advice, you should make sure that
the name and address of the first client is changed not only on the envelope
and first page, but also on the top of each subsequent page and elsewhere in
the body of the letter. It will be extremely embarrassing for you if client X re-
ceives a letter commencing with “Dear X” and halfway through the letter the
client is referred to as “Y”, particularly if “Y” is a competitor.
Always check letters before sending them

[41.55] Never sign a letter you have dictated without first reading it. Unfortunately,
the foibles of secretaries are not limited to embarrassing spelling mistakes.
They may sometimes leave out words or even paragraphs or do something
else to a letter that completely alters its intended meaning. A common mis-
take is to omit the word “not” – an omission that can be disastrous. Similarly,
“not” is sometimes supplanted by its mischievous third cousin “now”.
If confusion or misunderstanding or even litigation arises from your letter,
you will not be able to hide behind your secretary. The alternative used by
some practitioners is to provide a standard last sentence, “Dictated but not
read or signed by the writer”, and to instruct their secretaries to sign the let-
ters. However, this is no solution at all and should be avoided in all but the
most extreme situations. Apart from the discourtesy to the recipient of such
a letter, the dangers of such a practice are obvious. We have all come across
letters signed by secretaries in the practitioner’s absence which contain hid-
den pearls such as “our client claims the sum of (Julie please look up this
amount and insert)”!
Manners are important

[41.60] Be polite and, where appropriate, pleasant in your correspondence. It is rare, if
ever, that an abusive letter is called for. Whenever you write, you should bear
in mind the following words that were quoted by Lord Denning MR from the
English Law Society’s Guide to the Professional Conduct of Solicitors (1974):8
“It [is] unbefitting conduct for a solicitor to write offensive letters to
clients of other solicitors, to government departments and to the
________________________
8 Weston v Central Criminal Court Courts Administrator (1977) QB 32 at 43; See now Law Society, The Guide to the
Professional Conduct of Solicitors (8th ed, Law Society, London, 1999) Chapter 17.01, note 6 and Chapter 19.01,
note 3.
302
public. The use of insulting language and indulging in acrimonious cor-

respondence is neither in the interests of the client nor conducive to
the maintenance of the good name of the profession.”
Bear in mind that, as a matter of courtesy and common sense, you should
aim to acknowledge correspondence as soon as possible, even if you have no
substantive answer to it. Where you are unable to respond fully to a letter for
some time, it is preferable to provide a brief response promptly to acknow-
ledge that you have received the letter and to specify a timeframe in which
you will respond to it.
Correspondence: conclusion
[41.65] The suggestions presented in this chapter are simple and sensible to adopt
from very early in your career. If you find that your principal is always chang-
ing your letters, do not be afraid to ask him or her the reasons for the
changes. This will assist you to improve future letters.
Do not fall into the habit of using jargon like many practitioners before
you. Eventually, it may become too late for you to change your ways.
303
Chapter 42
Letters of demand
“Woe unto you also, ye lawyers! for ye lade men with burdens grievous to
be borne, and ye yourselves touch not the burdens with one of your fin-
gers.”
The Bible, Luke 11:46
Threats in a letter of demand

[42.05] You must be careful about what you say in a letter of demand. For example,
it is unethical for you to threaten that criminal proceedings will be taken if
civil redress is not obtained.
Lewis, Legal Ethics (Juta & Co Ltd, 1982) p 257 states on this subject that
“whatever liberal view may be taken of the compounding of an of-
fence by compensation of the victim, it is not consonant with profes-
sional propriety to threaten the wrongdoer that he will be prosecuted
if he does not pay. The liberal view referred to may be said to apply to
such an instance as the theft by an employee from his employer and
his parent’s request to refrain from prosecution in consideration of re-
imbursement. It may well be venial to accede to such request: it is
quite another thing to initiate the arrangement by the threat that if
the theft is not made good prosecution will follow. . .”
Stories abound about letters of demand. One of my favourites is about a
candidate attorney who, when told to write a letter by his principal, and
given a rough precedent, wrote:
“We have been consulted by Mr X of . . . who is owed R1 000 by you in
respect of goods sold and delivered. Unless we receive the sum of
R1 000 together with our costs within 14 days, we will take such action
as will amaze you.”
Do not take letters of demand too lightly. The receipt of a letter of demand is
often a person’s first contact with the profession, the law and the legal sys-
tem. Ensure that your letters of demand are reasonable and do not become
the subject of a complaint to your Law Society. Such a complaint will distract
you from representing your client properly. The allegations against you may
put you on the back foot and make it more difficult for you to negotiate a
good settlement for your client if your own conduct is under a cloud.
305
Make your letters of demand brief, courteous and temperate. It is seldom

necessary to go into details.
[42.10] Is a letter of demand necessary?

A letter of demand is often sent before formal proceedings are instituted. In
certain cases it is, however, essential to send a letter of demand. A letter of
demand is necessary for instance to place a debtor in mora if no time for per-
formance has been agreed upon: Nel v Cloete 1972 (2) SA 150 (AD) at 159.
The demand need not be in writing but must comply with all the require-
ments of the Nel case in that it must require in unequivocal terms that the
debtor complies with his obligation before a certain or an ascertainable date.
The rendering of an account does not constitute sufficient demand for pur-
poses of mora unless the account contains a request or demand indicating
that the creditor wishes to receive his or her money: Dougan v Estment 1910
TPD 998.
The Prescribed Rate of Interest Amendment Act 1997 came into operation
on 11 April 1997. In terms of this amendment a plaintiff is entitled to claim
interest on unliquidated debts, i.e. damages claims, etc., from the date on
which payment is claimed by way of demand or of service, whichever is the
earlier.
A letter of demand is further necessary to place a debtor on terms when
the creditor intends cancelling an agreement if no right of immediate cancel-
lation has been incorporated in the original agreement. The demand must
request payment or performance of the obligation within a reasonable pe-
riod of time. In addition, the letter must state that if performance does not
take place within the stated time period, the agreement will be cancelled and
legal action instituted. If performance does not take place within a reason-
able time as stated in the letter, the agreement should indeed be cancelled
by a further letter of cancellation or by a prayer in the summons claiming
cancellation of the agreement: Kragga Kamma Estates CC v Flanagan 1995
(2) SA 367 (A).
A letter of demand may be necessary in some cases to complete the plain-
tiff’s cause of action. For example:
l a promissory note or acknowledgement of debt payable on demand;
l a notice in terms of s 11 of the Credit Agreements Act 1980 which is a re-
quirement before action may be taken;
l a notice to pay arrears before cancellation of an agreement or accelera-
tion of payments arising from a transaction entered into in terms of the
Alienation of Land Act 1980;
l a notice to an organ of state in terms of s 3 of the Institution of Legal Pro-
ceedings against Certain Organs of State Act 2002; and
l agreements, leases and similar transactions where notice is required in
terms of the agreement before cancellation can take place.
306
Chapter 42: Letters of demand
The plaintiff may well have a complete cause of action in many cases, but it
may still be advisable that a letter of demand be sent to the debtor before
summons is issued. If it was unreasonable not to send a letter of demand and
the debtor pays the claim on receipt of the summons, the plaintiff may not
be entitled to the costs of the summons: De Kock v Davidson 1971 (1) SA 428
(T) at 431.
[42.15] When is a letter of demand unnecessary?

A letter of demand is unnecessary where the obligation is fixed by date. Thus
if a cheque was dishonoured, the date upon which the cheque was presented
for payment is the date of mora and the date from which interest runs. A
demand is also not necessary in the case of an acknowledgement of debt
which has the effect of fixing the date of payment and in most other written
agreements: Joss v Barclays Western Bank 1990 (1) SA 575 (T).
[42.20] When does interest commence running?

Interest does not run from the date of the letter of demand, but from the
date on which the period for payment in the letter of demand expires. The
expiry date must appear or be capable of being calculated from the letter of
demand itself. If the date of performance is fixed by agreement, it need not
be fixed by a letter of demand. The debtor is then in mora if he or she does
not perform on a specified date. Interest will then automatically run from the
next day.
Defamation actions
[42.25] In a defamation action it is generally advisable to write a letter giving the
prospective defendant an opportunity to withdraw and apologise for the of-
fending statement before proceedings are issued. Whether you also ask for
damages depends upon the circumstances. The letter will demonstrate that
the plaintiff does not aim solely at making money out of the defamation but
seeks vindication of his or her character. There is also the advantage that if
the defendant refuses to accept this olive branch, his or her conduct may ag-
gravate the damages to be awarded by the court.
Claiming costs in a letter of demand

[42.30] Section 56 of the Magistrates Courts Act 1944 provides that if any person (in
the section called the debtor) pays any debt due by him or her to another
person (in the section called the creditor) after the creditor has caused a reg-
istered letter of demand to be sent to the debtor through an attorney de-
manding payment of the debt, the creditor shall be entitled to recover from
the debtor the fees and costs prescribed in the rules for a registered letter of
demand, provided that the amount of such fees and costs was stated in the
letter of demand.
307
Without prejudice1
[42.35] Never put the heading “without prejudice” on a letter of demand because if
proceedings ensue, you may need to rely on it.
The consequence of heading the letter “without prejudice” in some cir-
cumstances may be that neither the letter nor the answer to it can be used in
evidence. Letters of demand provide an opportunity for creating evidence in
your client’s favour, which may be defeated if you head them “without
prejudice”.
Replying to a letter of demand

[42.40] If your client receives a letter of demand, your response to it will depend on
your instructions. Sometimes it is advisable not to do anything and see
whether any threats contained in the letter of demand are actually carried
out. Often, letters of demand are written without any intention of com-
mencing proceedings, on the off chance that your client will pay.
If you do respond to a letter of demand and your client intends to defend
any proceedings that are issued, it is better not to give too much away in the
response. An appropriate letter in response may say tersely: “In reply to your
letter of . . . my client denies liability.”
On the other hand, if your client intends to admit the claim, you should re-
ply as soon as possible before any proceedings are commenced. You should
seek to take advantage of the rule that where a defendant has offered the
plaintiff the substance of the relief sought before proceedings are issued, the
plaintiff may be deprived of the right to costs.
Letters of demand: conclusion

[42.45] Letters of demand are useful in some cases. To maximise their effectiveness,
they should communicate your client’s case and the desired outcome briefly
and in a measured manner. They can be used to give notice of the com-
mencement of legal proceedings if the desired outcome is not achieved, but
should not be used to mislead or make improper claims or threats.
________________________
308
Chapter 43
Telephone
“Do you know who you are talking to!? . . . No? . . . Well, up yours you
snivelling little sycophantic toad.”
Cartoon by Pattok (1983) 57 Law Institute Journal 461
Convenient or disrupting?
[43.05] Have you ever wondered how much more you would get done in a day if the
telephone would just stop ringing? The telephone has been a feature of legal
practice for so long that practitioners often take for granted the convenience
and efficiency it brings and tend to focus on the disruption factor.
Modern telephones facilitate speedy and inexpensive communication with
clients, other practitioners, court officials and other persons who you need to
speak to in the course of handling a matter. With quick dial and multi-party
conference call facilities, telephones enable you to progress a matter towards
resolution without the need to leave your office. Yet, for all the convenience
of the telephone, many practitioners feel tyrannised by the incessant calls
they receive each day and do not know how to manage some situations in-
volving use of the telephone.
Telephone fundamentals
[43.10] Rudimentary instruction in the use of the telephone includes the following:
l When making a call, announce who you are, where you are from and
what matter you are calling to discuss. Do not go to the substance of your
call without introducing yourself first.
l Be sensible about delegating to your secretary the task of making tele-
phone calls on your behalf. In some cases, particularly where detailed in-
formation about the subject matter is required, it may be more efficient
for you to make your own telephone calls.
l If you instruct your secretary to call someone and then put them through
to you, make sure you are immediately available to take the call when
the other person answers. As you are the caller it is discourteous to keep
309
the other person waiting. You should never begin another call whilst
waiting for the telephonist to connect you with a number you have re-
quested.
l When you are on a telephone call, give your full attention to the person
with whom you are speaking. Do not busy yourself typing emails or read-
ing through correspondence, as you may miss important information.
You are also likely to give the impression that you are vague or, worse
still, rude.
l If you are in the office but unable to take a telephone call, try to encour-
age your secretary or receptionist to avoid phrases such as “he is unavail-
able” or “she is too busy”. Within reasonable bounds, encourage your
secretary to give the true reason why you cannot take the call at that
time. However, the line must be drawn somewhere. If you are out shop-
ping for the afternoon or playing a quick eighteen holes of golf, this
should remain confidential!
l As the receiver of calls, try to ensure that your staff only ask for informa-
tion about the incoming call when the information is useful and relevant.
Asking a caller for his or her name, address, telephone number and rea-
son for calling on three separate occasions – first by the receptionist,
then by your secretary and finally by you – is both time-consuming and
discourteous.
Telephone rudeness
[43.15] Some practitioners are offensive, bullying and generally unpleasant over the
telephone. They may be called “telephone heroes”. It is interesting that al-
though this group exists in the metropolitan area, they are almost non-
existent in the country. Does this mean that country practitioners are more
gracious and accommodating? Probably not.
The reason for the rudeness is likely to stem from the anonymity of it all. In
the city names are just names and practitioners can deal with each other al-
most daily without ever meeting. Behind this anonymity, rudeness is easy. It
is a totally different situation when practitioners have to meet in the street
and confront each other face to face.
You should always resist the temptation of becoming angry or abusive dur-
ing telephone conversations. Not only is it rude to become angry or abusive
but other practitioners will dread dealing with you. A cordial relationship
over the telephone with another practitioner can help establish a profes-
sional working relationship, which may benefit your client.
Winning cases over the telephone

[43.20] During your career you will be confronted from time to time by practitioners
who endeavour to win their cases over the telephone by attempting to
310
Chapter 43: Telephone
bludgeon you into submission. Such practitioners will argue forcefully that
your client’s case has no merit and will expect you to capitulate immediately.
My experience has been that practitioners who wish to prolong conversa-
tions about the merits of their case usually have plenty to worry about. When
a practitioner tends to enthuse too much about a client’s cause of action, it is
best to respond by saying: “Well, since your case is so strong, you obviously
don’t want to negotiate so I will see you in court.” The reply is often interest-
ing.
The converse situation, when you are confronted by a practitioner acting
for a defendant who virtually accuses you of abuse of process in pursuing a
worthless cause of action, is not much different. Faced with a verbal batter-
ing from the practitioner on the other side, a brisk “well, we’ll let the court
decide” is usually effective.
Without prejudice1
[43.25] Whether or not conversations by telephone are without prejudice has led to
a number of disputes between practitioners. Often the problem arises as a
result of a “mixed conversation”, i.e. a conversation which is partly an open
conversation and partly “without prejudice”. The ideal is to make a conversa-
tion by telephone either one thing or the other.
Just as it is advisable not to write a letter which is partly without prejudice
and partly open, it is better to separate your telephone calls, one totally pro-
tected with the words “without prejudice”, the other an open discussion. If a
telephone conversation is to be without prejudice, the words should not be
used as an almost apologetic aside, but they should preface in the clearest
terms any offer to settle or negotiate.
Always keep file notes of your telephone conversations. In the case of
“without prejudice” conversations this is imperative. Both the fact that it is
without prejudice and the amount of an offer or counter-offer should be re-
corded carefully.
Office systems gone mad

[43.30] Some zealots streamline their office systems to such an extent that they
create more difficulties and inefficiency than they avoid.
Some practitioners boast that they organise their day so that they never
take telephone calls between certain times, say 10 am and noon. Similarly,
others say that they only make telephone calls between 10 am and noon! But
what happens when a practitioner who only makes telephone calls between
those times wants to deal with one who is never available then?
________________________
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Don’t call me, I’ll call you

[43.35] Unfortunately, you will have to put up with the discourtesy of some practi-
tioners who never return calls and who are “not in” or “unavailable” when-
ever you telephone them. In such cases, perhaps the only solution is to put
everything you want to say in a letter.
Some years ago there was a practitioner who believed he had another an-
swer to the problem. Confronted by a constantly “unavailable” practitioner
(Mr X), he had his receptionist put through a call to Mr X’s office. She said it
was Tattslotto2 and that she had some very good news for Mr X. Mr X, who
had always been unavailable, was suddenly on the line waiting in breathless
anticipation. Not a nice way to get someone’s attention, but frustration can
drive the most proper practitioner to desperate remedies.
Speaker phones
[43.40] Many practitioners use speaker phones. A speaker phone permits you to
locate documents or flick through file papers while talking. Speaker phones
are also useful for telephone conferences between two or more people who
may be in different locations.
However, there are some problems with speaker phones; one is that the
voice quality is often inferior to a conventional telephone. The caller some-
times fades in and out – particularly if he or she is pacing up and down the
room while talking! Another problem is that you can never be sure who else
is listening on the other end of the line. If you are discussing confidential
matters, request the person using the speaker phone to identify who else is
present and if you object to their presence request that the loudspeaker
function be turned off. If you wish to use the speaker phone during a discus-
sion you should, as a matter of courtesy, ask whether you may use the loud-
speaker and introduce anyone who is with you and who will be listening to
the discussion.
If you are considerate when using a speaker phone it will assist you in be-
ing efficient. If you abuse a speaker phone, however, it will be a source of re-
sentment and friction when dealing with other practitioners.
Cellphones
[43.45] The advent of the cellphone means that your clients and colleagues are able
to contact you at any time of the day wherever you may be. While this can
help you service your clients’ needs, you must be wary that your level of pro-
fessionalism is not impaired in any way. Be careful not to divulge your
________________________
2 Tattslotto is a lottery game based in Victoria.
312
Chapter 43: Telephone
client’s confidential information by using your cellphone while on a street

corner, a bus or a coffee shop. You never know who could be within earshot
of the conversation. If you cannot speak at the time your client calls, politely
inform your client of this and say that you will call back as soon as possible.
When using your cellphone, it is very prudent to have a voice message fa-
cility which informs callers that you are not available and enables callers to
leave their name, telephone number and message so that you can return the
call as soon as you can. A message facility ensures that you receive urgent
messages and avoids disputes as to whether and when someone was trying
to contact you.
When attending court and formal meetings, such as mediations, ensure
your cellphone is switched off. In the case of conferences with clients and
other practitioners, it is best to switch off your cellphone, unless it is ex-
pressly agreed that cellphones may be left on (e.g. where you or others in at-
tendance expect to receive urgent calls relevant to the subject matter of the
meeting). In other situations establish whether any protocols apply in rela-
tion to the use of cellphones and abide by those protocols.
Modern cellphones with built-in digital cameras give rise to privacy and
other concerns. Some courts and other organisations are moving towards
banning the taking of such phones into particular premises. Ensure that you
comply with any rules that apply to your cellphone.
Telephone: conclusion
[43.50] Technological advances have ensured that telephones continue to have a
profound impact on how we practise law. These advances, particularly the
new generation of smaller and more powerful cellphones, bring added con-
venience as well as burdens. The challenge is to use telephone technology
sensibly so that the benefits outweigh the disadvantages.
313
Chapter 44
Faxes
“When Armageddon does come I hope that God will have the decency to
send me a fax first to prepare me.”
Anon
Instantaneous communication
[44.05] Facsimile machines, or fax machines, are standard office equipment in most
law offices and counsel’s chambers. They have brought about significant im-
provements in efficiency and client service. They have also brought about
their own set of problems for practitioners.
Together with email (see Chapter 45), the fax machine has significantly
changed the way in which lawyers practise on a daily basis. The key advan-
tage of sending faxes is the ability to transmit letters and other documents
instantaneously. This is an enormous benefit for lawyers operating under
time constraints. Where a client wants a letter of advice by a particular time,
the fax machine enables you to work on the letter until just before the dead-
line and then send it instantaneously by fax to your client. In the past you
would have had to finish the letter at least the day before the deadline if the
letter were to be posted.
The fax has become an indispensable part of legal practice for practitioners
who work regularly on transactions involving interstate or overseas parties. If
you are receiving instructions from an overseas client, you can prepare drafts
of documents, fax them to your client and then receive the client’s comments
in a few hours.
Overuse of faxes
[44.10] Some practitioners have been so taken by instantaneous communication that
they tend to send virtually all their formal written communications by fax and
virtually all their informal written communications by email and rarely use
the post or other forms of delivery.
Before sending a document by fax, ask yourself whether your client will
gain an advantage if you send it by fax as distinct from other modes of
315
delivery, such as the post, document exchange facilities or courier. In many

cases there is no particular urgency about the document which would justify
use of a fax.
The cost of sending documents by fax should always be borne in mind. If all
documents are sent by fax as a matter of routine, you may find that the client
will complain about the large facsimile charges, especially when you are
sending faxes overseas.
Practitioners who post the original of every document sent by fax are im-
posing an additional cost burden upon their clients. Unless it is essential that
the recipient receive the original, avoid the additional expense of sending by
post as well.
In the case of bulky documents which need to be sent to someone in the
metropolitan area, fax transmission may not only be more expensive than a
courier, but it may well be slower. The courier may be able to deliver the
whole document well before the last page of the document arrives at the re-
cipient’s fax machine.
Do not get into bad habits with faxes. Only send documents by fax if it is
necessary or if you are living in a country where the postal service is notori-
ously inefficient and your mail either ends up in a nearby river instead of in
your post box.
Increased time pressures

[44.15] Although faxes assist practitioners in meeting deadlines, they also signifi-
cantly add to the time pressures under which practitioners operate.
In the days when most correspondence was sent by post, a letter of in-
structions would arrive from the client in the post, a letter of advice would be
prepared and this would be sent by post. The client had an expectation of a
reasonable delay before receiving the letter of advice.
Now, however, the client is able to send a letter requesting advice by fax
and will expect a response by fax very promptly and, in many cases, on the
same day. If all clients had the same expectation, then a busy practitioner
simply could not cope with client pressures.
The best way to deal with such situations is to telephone the client as soon
as a fax is received and inform the client of when you are likely to respond.
Hopefully the client will be understanding and will modify his or her expecta-
tions.
Confidentiality of fax communication

[44.20] Faxes have created enormous difficulties with confidentiality.
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Chapter 44: Faxes
Privacy risks
One problem is the loss of privacy when personal letters are sent by fax to a
central fax machine. A myriad of administrative staff may be able to read pri-
vate correspondence before it is delivered to the intended recipient. To over-
come this problem, many senior executives in various organisations have
their own private fax machine. Where this is the case you should send all per-
sonal or confidential documents to the private fax machine rather than the
central fax machine.
Where the recipient does not have a private fax machine, you should tele-
phone him or her when you are about to send a confidential document in or-
der to enable the recipient to go to the fax machine and receive the docu-
ment personally.
Some firms have overcome this problem and the cost and inefficiency of
deliveries of faxes by “fax runs” by mailroom staff at fixed times during the
day, by routing all faxes to a central location, converting them to PDF format
and then emailing them to the intended recipients.
Another way of dealing with the problem is to be old-fashioned and send
the document by post or by courier in an envelope clearly marked “private
and confidential”. Only in situations of urgency or long distance will the post
or courier be unsuitable.
Wrong number
Another serious confidentiality problem with fax machines is the sending of a
fax to the wrong fax number. In the case of sensitive and confidential docu-
ments, your client may be able to sue you for such a breach of confidence. In
the US a large-scale trial had to be abandoned because a sensitive document
was erroneously transmitted to the attorneys for the opposing party.1
Sending a fax intended for your client to an opposing practitioner is not a
rare occurrence. If you are working on a matter where you are constantly
sending documents by fax to your client as well as the opposing practitioner,
it is relatively easy for the wrong fax number to be typed on the document or
for the wrong fax number to be dialled at the time of transmission. Irrepara-
ble harm can be done to your client’s case if such an error is made.
Always check transmission sheet

One way of dealing with the problem of misdirected faxes is to always check
the confirmation of transmission sheet that is normally printed when a docu-
ment is sent by fax. Most of these confirmation sheets record the recipient
fax number as well as the time of transmission and the number of pages
transmitted. If the recipient fax number printed on the confirmation sheet
does not correspond with the intended fax number, you should take
________________________
1 M Hansen, “Misfaxed Papers Stop Asbestos Trial” (1991) 77 (August) American Bar Association Journal at 22.
317
immediate steps to identify the recipient number and to make arrangements

for the recipient to return the document to you immediately.
Confidentiality clauses
Many practitioners have standard form “confidentiality clauses” in their fac-
simile cover pages which alert the recipient to the fact that the document
transmitted is confidential and request that the document be returned im-
mediately if it is transmitted in error. Such “confidentiality clauses” are obvi-
ously prudent. The difficulty with them, however, is that often the recipient
will not realise that the document was not intended for him or her until after
reading at least part of the document. The recipient obviously cannot erase
from his or her mind what has already been read. However, such a clause
may prevent any waiver of the confidentiality of the document.
Confidentiality clauses, of course, are no substitute for proper training of
staff to ensure that documents are always sent to the correct facsimile num-
ber.
Faxing counsel
[44.25] Some advocates share fax machines. For example, there may only be one fax
machine for all advocates on a particular floor of their chambers. In such
situations you should avoid using faxes because of the danger that an advo-
cate acting for the other side may share your advocate’s fax machine and
may have access to your confidential documents.
If you must send a document to an advocate who does not have a personal
fax machine, telephone him or her first and request that he or she attend the
fax machine to receive the document personally. Your documents should not
be left sitting on a fax machine in full view of anyone who may be passing by.
Proof of receipt
[44.30] Many fax machines automatically print on the top of each page that is re-
ceived the details of the sender, the date and time of receipt and the number
of pages received. Make sure that you keep the originals of such fax docu-
ments in case there is a dispute later as to the time and date of receipt.
Always check confirmation sheets of faxes you send to ensure that the fax
has been successfully sent to the correct recipient. Retain these confirmation
sheets because they may become useful evidence if a dispute arises over
whether a particular document was received by the intended recipient.
Faxes: conclusion
[44.35] Faxes continue to offer significant benefits to legal practice. The key chal-
lenges are to manage the excessive use of faxes and to reduce the risk of
breach of confidence.
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Chapter 45
Email
“Sending an email is about as private as sending a postcard.”
Advantages of email
[45.05] Electronic mail, or email, has revolutionised written communication not only
in legal circles but also in life generally. Email allows you to communicate in-
stantaneously with people, whether they are in the office next to you or on
the other side of the world, with the mere click of a mouse or a cellphone.
Such is the speed with which communication is possible using email that
sending a letter in the traditional way through the post is now often de-
scribed as “snail mail”.
The main advantage of email is that your typed message is delivered to the
recipient immediately and can be accessed and replied to within seconds.
The recipient will have an email address which specifies his or her individual
user name followed by the domain name of his or her organisation or inter-
net service provider. Each email address is unique, like each postal address
for hard-copy communications. An email address is often found alongside the
address and telephone and fax numbers on a letterhead or business card.
An additional advantage of using email is that you can check whether you
have received any messages wherever you are in the world. If your legal
practice takes you to another province or overseas, you can log into your
server by simply using a modem attached to your computer and check
whether anyone has communicated with you. Or you can simply check your
email on portable devices such as a cellphone.
You can also attach documents to your email messages, a function which
will enable you to deliver, for example, draft witness statements or pleadings
instantaneously to your clients.
Embarrassing emails
[45.10] Such is the efficiency and speed with which emails are sent that they can
reach all corners of the globe very quickly. By pressing the “forward” button
319
on an email, the recipients of your emails can distribute your email to many
other people without your knowledge.
Following are four examples where the use of email by lawyers has gone
horribly wrong. This will be sufficient to motivate you to take appropriate
precautions the next time you send an email.
1. In October 1999, a partner in an Australian law firm sent out the follow-
ing email entitled “Mewling excuses” to colleagues at 10:33 pm on a
weeknight:
“Any lawyer who responds, ‘I’d like to help, but I’ve got a lot on’ (or
words to that effect) when I approach him or her with work over
the next few days will be well advised to have a good explanation
why. Night Word Processors aside, the only people on level 24 at
10:30 tonight are [name deleted] and me (and both [name deleted]
and I are supposed to be on school holidays with our children).”
This email was circulated outside the firm and was not only quoted in a
national newspaper, but sparked intense debate about the work prac-
tices of law firms.
2. In December 2000, an English woman sent an email with a pornographic
title to her lawyer boyfriend complimenting him on his sexual prowess.
Obviously quite chuffed, the lawyer forwarded it to six of his friends, who
then forwarded it to others and, before long, the woman was a house-
hold name throughout the world for all the wrong reasons. She immedi-
ately went into hiding. Her boyfriend and several others at his firm were
disciplined for forwarding obscene material from the firm’s email ad-
dress.
3. In March 2003, a solicitor in an Australian law firm who discovered that
the solicitor’s lunch had been half-eaten sent the following email to col-
leagues:
“to the disgusting excuse for a person who ate part of my lunch –
including most of the chicken. What kind of horrible filthy person
are you? I ask you this, what on earth makes you think two things:
1. That you have the right to steal?
2. That I make my food, for my own consumption, with any re-
gard to hygiene and the possibility that someone else may eat
it?
I hope you get sick.”
It is not clear whether the culprit owned up. It is clear, however, that
notwithstanding that the email was headed “Confidential communi-
cation”, it was circulated outside the firm and was quoted in a national
newspaper.
4. In April 2003, a New South Wales magistrate sent his notes about the
shortcomings of the prosecution’s case not to his work email address
from his home email address, as he intended, but to a person having the
320
Chapter 45: Email
same surname as the defendant. The Supreme Court of New South Wales
enjoined the magistrate from hearing the case further. A complaint to
the Judicial Commission was dismissed on the basis that there was no
evidence of impropriety.
When drafting an email, be mindful that it may be forwarded to other peo-
ple. If the contents of the email may embarrass you or affect your reputation,
it is better not to send it.
Email and legal practice

[45.15] Email offers many benefits to legal practice. Many of your clients will expect
you to communicate with them by email. It is quick, easy and cheap.
Because email is an instantaneous mode of communication your client
benefits from receiving your advice faster. Email also assists practitioners in
seeking their clients’ instructions quickly and efficiently. If, for example, you
are preparing a witness statement for your client in a proceeding, you can
draft the witness statement and send it by email for his or her consideration.
By simply attaching the draft statement to your email your client is able to
receive it, open it, make any comments on the draft and then send it back by
email. This increases the speed with which you can offer legal services to
your clients.
Email also provides the additional advantage that you can send your cor-
respondence to a number of people at the one time and engage in a virtual
conversation by responding to all the recipients of the email. The ability to
correspond with a number of people at the one time is a significant benefit,
particularly when dealing with a large commercial client with many individu-
als having an interest in your advice.
Email fundamentals
[45.20] Here are some suggestions to ensure that you use email appropriately within
your legal practice:
l Ask your client whether he or she would prefer to receive correspond-
ence by email. Some clients prefer to receive information by fax or post.
If this is the case, respect their wishes and continue to correspond with
them in their preferred manner.
l Ensure that your computer system has an appropriate virus checking
program to ensure that no emails from external sources infect your sys-
tem.
l Ensure that your email system has a proper level of encryption so that
computer hackers are unable to invade your email system and obtain
confidential information.
321
l If the function is available on your email software, seek confirmation that

emails have arrived at their destination. If it is vital that the recipient read
the email by a particular time, telephone him or her to ensure that he or
she is available to read it. If the recipient is on leave and you do not check
his or her availability to read your important email, you may prejudice
your client’s interests. Some email programs have a useful tool which en-
ables you to ascertain whether the recipient has opened – and presuma-
bly read – your email.
l Do not allow the speed and relative informality of email to lull you into
offering a reduced standard of professional service. You must ensure that
legal advice given by email is as complete and accurate as any formal let-
ter of advice you send by post or facsimile transmission. You should also
check email correspondence in the same way as you would any other
correspondence leaving your office. If possible, attach a spell checking fa-
cility to your email program so that all emails are checked before being
sent to their recipients. It is advisable that you print out lengthy emails
and read them before you send them.
l Be careful not to use colourful, emotional, exaggerated or defamatory
language in emails to clients, even if you are responding to an email from
a client containing such language. The wording of all your emails must
not fall below an acceptable professional standard.
l Ensure that you comply with any email policy your firm may have about
when it is appropriate to send legal advice by email.
l Be aware of your firm’s policy on whether you may use email for per-
sonal correspondence. Where personal correspondence is permitted, en-
sure that recipients are not led to believe that the email represents the
views of your firm, as distinct from your personal views.
l If you are going to be out of your office for more than one day, use the
“out of office” tool within your email program, which automatically re-
plies to any emails you receive informing the sender of your absence and
when you will be back in the office to respond to the email. Where ap-
propriate, include in your automatic “out of office” reply a telephone
number on which the sender can contact you or your secretary if the
matter is urgent.
l Print and place on your file all email communications with your client,
counsel and practitioners acting for other parties, so that your file is
complete.
l Where you regularly use email to communicate with clients in a profes-
sional as well as personal capacity (especially where a client is also a per-
sonal friend), ensure that all your emails are not automatically, and
inappropriately, headed “privileged”. This label should only be included
in communications which are genuinely privileged.
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Chapter 45: Email
l Before replying to an email which has been copied to others, be careful

to select “Reply” rather than “Reply to All” if you intend only the sender
to receive your email.
l Before forwarding an email you have received (particularly if it contains
attachments), consider whether you may be breaching the sender’s
copyright if you do not obtain his or her permission.
Confidentiality of email communication

[45.25] One of the main concerns with email communication is maintaining con-
fidentiality. This problem can be overcome in part by installing appropriate
encryption and other software mechanisms to ensure that email communi-
cation cannot be intercepted by external sources.
Wrong email address
The greatest risk to your client’s confidentiality is that you will inadvertently
send an email to the wrong address. The best precaution against this is to
carefully check the email address of each and every email that leaves your of-
fice. The repercussions of sending an email to the wrong recipient can be dis-
astrous, as confidential information may be disseminated and lose its
confidentiality and privileged status. This has the potential to cause financial
loss to your client and render you liable.
What if you do send an email by accident to the wrong person? Your first
step should be to try and recall the email immediately. Most email software
allows you to recall an email that has not yet been read by the recipient. If an
email is delivered inadvertently to the wrong address and you are unable to
recall it, you should immediately contact the recipient and inform him or her
that the email has been sent in error and that it contains confidential infor-
mation. You should then ask him or her to delete the email immediately
without reading it and to confirm in writing that this has been done. If the re-
cipient is another practitioner, it might be prudent in some cases to seek an
appropriate undertaking.
Confidentiality statement
It is also advisable to include in all your emails a statement that the email is
confidential. The statement should also advise that the email is intended for
the named recipient only and that if it is received by someone other than the
named recipient, the email is not to be distributed or copied and the sender
should be contacted immediately. This standard statement should also
clearly state that if someone is not the named recipient, he or she is not
authorised to rely on the information contained in the email in any way. If
someone who has wrongly received an email contacts you, you should im-
mediately ask the recipient to destroy the email without reading it and to
confirm in writing that this has been done.
323
Email: conclusion
[45.30] Like other technological advances, such as the fax machine, email has made
the practice of law more efficient. As a legal practitioner, you should harness
the benefits of email so that you may offer your clients better service. Its use
is essential to legal practice in the 21st century.
324
Chapter 46
Without prejudice
“A man, having eaten his cake, does not still have it, even though he pro-
fessed to eat it without prejudice.”
Haynes v Hirst (1927) 27 SR (NSW) 480 at 489
Without prejudice: introduction

[46.05] There seem to be many practitioners who really do not understand the
meaning of the words “without prejudice”. They are probably the most mis-
used words in legal jargon.
There is story of a law student who was having a raging love affair with a
mild-mannered accountant. The student always put “without prejudice” on
top of the love letters to avoid any further commitment and the chance of fu-
ture litigation!
General “without prejudice” rule

[46.10] The general rule is that:
“statements which are made expressly or impliedly without prejudice
in the course of bona fide negotiations for the settlement of a dispute
cannot be disclosed in evidence without the consent of both parties.
The words ‘without prejudice’ mean without prejudice to the rights of
the person making the offer if it should be refused . . . The exclusion of
statements without prejudice is based upon the tacit consent of the
parties and the public policy of allowing people to try to settle their
disputes without the fear that what they have said would be held
against them if the negotiations should break down. Statements with-
out prejudice are usually said to be privileged, but this involves a
rather different use of the word ‘privilege’ from its usual meaning in
the law of evidence. Privilege generally means the right of a witness to
refuse to disclose evidence, but in connection with statements without
prejudice, it means the right of a party to make statements which can-
not be proved against them” (Sibeko v Minister of Police 1985 1 SA
151 (W)).
Thus if the defendant writes to the plaintiff and offers without prejudice, to
pay half of the plaintiff’s claim, the plaintiff cannot rely on that offer as an
325
admission of having a right to some payment. The plaintiff cannot give evi-
dence of the letter or tender it or use it as an exhibit to an affidavit.
Negotiations conducted without prejudice are designed to encourage par-
ties to a dispute to avoid litigation and all the expenses, delays, hostility and
inconvenience it usually entails, by resolving their differences amicably in full
and frank discussions: Naidoo v Marine & Trade Insurance Co. Ldt 1978 (3) SA
666 (A). If the negotiations result in a settlement, then evidence about the
settlement and the negotiations leading up to it should be made available to
the trial court because the whole basis for non-disclosure has fallen away:
Gcabashe v Nene 1975 (3) SA 912 (D).
[46.15] Use of words “without prejudice” not conclusive

There is no particular magic in the use of the words “without prejudice” (Si-
beko v Minister of Police above) and no conclusive legal significance attached
to this phrase. The mere fact that a communication carries the words “with-
out prejudice” does not in itself confer upon it the privilege against disclo-
sure, for example where there exists no dispute between the parties or it
does not form part of a genuine attempt at settlement: Jili v SA Eagle Insur-
ance Co. Ltd 1995 (2) SA 269 (N). Nor is a communication unadorned by that
phrase always admissible in evidence, for it will be protected from disclosure
only if it forms part of settlement negotiations (Gcabashe above).
In other words, the expression “without prejudice” need not be used. If a
letter is clearly part of the negotiations for a settlement then it will not be
admissible even if the letter is not headed “without prejudice”. Conversely,
merely putting the heading “without prejudice” on top of correspondence, or
prefacing discussions with another practitioner with words “this conversation
will be without prejudice”, cannot make the document or conversation privi-
leged from disclosure to the court, if the correspondence or discussions do
not form part of settlement negotiations. The rule looks not to whether the
words “without prejudice” are used, but whether the statements made form
part of genuine negotiations between the parties for the purpose of settling
the dispute.
Even though use of the words “without prejudice” is not conclusive, they
are useful because they provide evidence that the parties intended that if
negotiations fail, nothing that has been passed between them during the ne-
gotiations will be disclosed at the trial.
In effect, when you state in a letter that it is without prejudice you are say-
ing: “I want to make it quite clear to you that I am making this offer in an en-
deavour to settle this dispute without prejudice to my client’s claim. Should
you reject the offer, then the very fact that this offer is being made shall not
be used in evidence against my client if this matter proceeds to hearing.”
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Chapter 46: Without prejudice
Joint privilege
[46.20] Where a communication is protected by the without prejudice privilege, the
privilege belongs to both parties to the communication and in that sense it is
a joint privilege. Either party can invoke the privilege: Ingersoll Rand Co. SA
Ltd v Administrateur, Transvaal 1991 (1) SA 321 (T). If this privilege is in-
voked, third parties are also forbidden to testify about statements made in
the course of negotiations. The privilege is however not that of a third party:
Theodoropoulas v Theodoropoulas [1963] 2 All ER 772.
Conditional offers of settlement

[46.25] CWH Schmidt and H Rademeyer say that offers of settlement are invariably
conditions. The offeror will do X if the offeree will do Y. But if the offer of
compromise contains a threat, an act of insolvency or requires the offeree to
commit an unlawful act – will a claim to privilege prevent disclosure?
After examining a number of decisions, the authors of Law of Evidence
(LexisNexis, 2007) have come to the conclusion that the following can be dis-
tilled (see Issue 4 page 20–22):
“The privilege will only apply if there was a bona fide attempt to settle.
Even if there was a bona fide attempt to settle, public interest or a
statutory provision may sometimes provide that a statement is not
covered by the privilege, for instance where the statement indicates
that a crime has been committed.
In such cases the privilege is only forfeited where the concerned act
is a factum probandum and insofar as the statement is presented to
prove such act. The privilege still protects the declarant against the use
of the statement to cross-examine him or her in respect of credibility.
Where an offer of settlement is coupled with a threat, the privilege
is not forfeited, except if the threat constitutes an element of an
unlawful act or crime, which is in dispute and the statement is ten-
dered to prove the threat.
Obviously, if the negotiations result in a settlement, the terms of the
deed of settlement may be proved by adducing the statements of set-
tlement, provided such statements are otherwise admissible evi-
dence.”
Use of statements made “without prejudice”

[46.30] Whether a written communication is privileged depends on whether it satis-
fied the legal requirements for attracting privilege. Including words such as
“without prejudice” or “private and confidential” on letters, memoranda and
emails cannot convert a non-privileged document into a privileged docu-
ment, unless the persons are involved in litigation and it is apparent from the
document or a statement that its contents are aimed at settling a dispute.
Both the person making the statement and the person to whom it is made
327
are entitled to the privilege. Not only can the declarant therefore prevent an
opponent from proving the communication (for example an admission), but
the opponent may also prevent the declarant from proving his own state-
ment (for example an offer): Ingersoll Rand Co. SA Ltd v Administrateur,
Transvaal 1991 (1) SA 321 (T).
All related communications protected

[46.35] Generally, the whole of a negotiation is protected if its commencement is
without prejudice and thus all documents and discussions which form part of
the negotiation are covered. In other words the privilege exists if the docu-
ment or communication forms part of the settlement negotiations or is re-
lated to them: Wemyss v Stuart 1961 (3) SA 889 (D). What is required
therefore is that the statement must have some connection to the settle-
ment of the dispute before the court, but it need not be technically relevant
to the issue or issues involved.
Do not mix communications

[46.40] In order to prevent complications from arising, it is advisable to avoid mixing
“open” and “without prejudice” material in the same letter or conversation.
You should prepare separate letters and separate file notes dealing exclu-
sively with one or the other.
“Off the record”

[46.45] From time to time another practitioner may invite you to take part in an “off-
the-record” discussion. You should immediately seek clarification of what is
meant by “off the record” because this expression does not have a fixed legal
meaning. If what is meant is simply “without prejudice”, then use this expres-
sion rather than “off the record”. If what is meant is that you should not dis-
close the discussion to your client, then, in my view, you cannot agree to this
without knowing the subject matter of the discussion and without your cli-
ent’s instructions.
As a general rule, you are obliged to disclose to your client all information
in your possession about your client’s case. Accordingly, it is difficult to en-
visage situations where it would be proper for you to withhold “off-the-
record” information from your client.
Without prejudice: conclusion

[46.50] Appropriate and sensible use of without prejudice communications can serve
their intended purpose of promoting settlement and avoiding litigation costs.
Although the words “without prejudice”, where used incorrectly, have no ef-
fect, they may nevertheless give rise to distracting arguments about their ef-
fect by practitioners who do not understand the relevant legal principles.
328
Chapter 47
Drafting
“Layman to lawyer: ‘I think legal documents contain too many big words,
they should use shorter words.’ Lawyer’s reply: ‘Oh! you think we should
be eliminating polysyllables.’”
Anon, quoted in (1978) 52 Law Institute Journal 513
Basic principles of legal drafting

[47.05] Legal drafting is a skill that is developed through experience. It is not some-
thing that can be acquired easily through reading textbooks or academic arti-
cles.1 Drafting an agreement or even a legal letter (see Chapter 41) for the
first time is often one of the most difficult tasks for a young practitioner.
Fundamental rules for drafting include:
l Before putting pen to paper, dictaphone to mouth or fingers to keyboard,
make sure that your client’s instructions are clear and that you know pre-
cisely what your client wants. Do not hesitate to involve your client in the
revision of drafts. Your client’s opinion should be sought if there is any
doubt as to whether the draft reflects his or her instructions. After all, it
is the client’s document you are drafting.
l Never draft a legal document without first familiarising yourself with the
law that governs the subject matter of the document.
l Always know precisely what you want to say and how to say it.2 Turn
your mind to whether an agreement, a deed or some other document is
the most appropriate method of achieving your client’s objective.
l Remember that there is no such thing as “legal English”. The language of
the law is ordinary English. Therefore, use plain words and keep your sen-
tences as short as possible. Using plain English or any other language al-
lows you to convey a message simply and effectively.3 Beware of legal
________________________
1 There are, however, a number of very good texts and manuals on drafting skills. Your Law Society library should
have these. See, for example, J Wallace, Legal Writing for Good Business (Law Institute of Victoria, Melbourne,
1992).
2 S Murumba, “Good Legal Writing: A Guide for the Perplexed” (1991) 17(1) Monash University Law Review at 93.
3 IM Johnstone, “The Spirit of Plain Legal English” (1989) 27(5) Law Society Journal at 53.
329
clichés and avoid technical terms unless you understand them thor-
oughly.
l Develop a mental picture of the structure of your draft before you begin.
Remember that there must be some order in your draft. Begin at the be-
ginning and end at the end.
l Clarity must always take precedence over style.
l You must always use the same word when the same meaning is intended.
You must never use the same word with different meanings. To do so
may result in a dispute about the meaning of the document you drafted.
l Use definitions if they will save a great deal of repetition. However, use
your discretion. Definitions should be used to assist comprehension of
the document but should not be required to carry too much of the active
purpose of the document. Be sure to provide a definition at the begin-
ning of the document when using abbreviations and acronyms.
l Always use the active voice, the indicative or imperative mood and avoid
the subjunctive.
l Avoid words from the bygone era of legal language such as “heretofore”,
“hereinafter”, “said”, “aforesaid”, “same” and similar legalese.
l Use punctuation but do not rely on punctuation to make a word clear.
l Use headings, particularly in lengthy letters or documents.
l Avoid provisos.
l Draft in the singular.
l Beware of rushed jobs. There is an irreducible amount of time and
thought required for any drafting job. To skimp on either may lead to real
disasters.
l If the document you are drafting is based on specific provisions of an Act,
then you should adhere closely to the wording of those provisions.
l Be as brief as possible and avoid repetitive drafting.
l Keep in mind principles such as the ejusdem generis rule so that such
principles do not lead to unintended interpretations.
l Date and number successive drafts of a document.
l Do not become dependent on computer spell checking and grammar
checking programs. While such programs are useful, there is no substi-
tute for thoroughly reading and checking a document before sending it to
your client.
Legal precedents
[47.10] In many cases frustration and desperation may cause inexperienced practi-
tioners to rely excessively on precedents. While precedents will often save
330
Chapter 47: Drafting
your client money and save you significant time, when using them, bear in
mind the following:
l Use precedents with great care and thought.
l Do not assume that a precedent is correct or up to date. Find out the au-
thor of the precedent, when it was drafted and when it was last revised.
If the author was a candidate attorney who was dismissed for incompe-
tence, then obviously you should throw the precedent away. The same
applies if the author was an experienced partner of the firm – if that
partner drafted the document in 1910 and died soon after! Most areas of
the law do not remain static and are constantly changing. Therefore,
precedents become out of date and worthless over time.
l Ensure that the precedent you rely on suits your client’s requirements. A
precedent may be well drafted and up to date, but it cannot help you if
its contents are not appropriate for your client. Beware of using a prece-
dent in a different area from that for which it was developed.
l Never use a precedent unless you have first read it in full, especially for
standard documents on your firm’s computer system which only contain
a few variables. At first sight you may think it is easy to fill in the variables
and out will come your new agreement. However, unless you read it, you
cannot be sure that the standard provisions are the ones your client
wants. For example, I have seen a lease for a 200-hectare farm which re-
quired the lessee to keep the lifts and escalators in working order!
l Do not be fooled by the heading of a particular precedent. If you wish to
draft a mortgage, do not use the first document with the heading “mort-
gage” that you find in your office. There are many different kinds of
mortgages with many different kinds of provisions.
l Even if a precedent is suitable for your purposes, do not automatically
plagiarise it. See if you can improve it by redrafting ambiguous or prolix
provisions and removing archaic language.
l Even if your office has a comprehensive and refined system of precedents
to meet most of your client’s requirements, do not allow your client to
execute any agreement unless you have first checked it yourself, even if
the agreement is so standard that only the name and address of your cli-
ent needs to be filled in by your secretary. Things can still go wrong. For
example, a page may be missing which alters the whole thrust of the
agreement. Alternatively, your secretary may misspell the name of the
client and a doubt may later arise as to who are the parties to the agree-
ment. This may be a problem where your client belongs to a group of
companies with similar names.
l Never rely on any provision in a precedent unless you understand what it
means and why it is there. Do not assume that any particular provision is
either necessary or desirable. If in doubt, speak to the author of the
precedent.
331
l Never alter a part of a precedent without ensuring that there are no ad-
verse effects on the remainder of the document. A failure to do this may
lead to inconsistencies and ambiguities in the document. For example, if
a particular word is defined to mean something quite specific in the
precedent, then you should not, in ignorance, add a new clause which
uses that word in a different sense.
l If you choose to remove or add clauses to a precedent, always check that
any cross-referencing to clauses in the document is correct.
Client alterations
[47.15] Once you have drafted an agreement and you receive it back from your client
duly executed, before stamping or registering it always check to see whether
your client has altered any of the clauses without your knowledge. Fre-
quently agreements are the subject of direct negotiation between your client
and other parties and alterations may result from such negotiations. What
may seem to be a sensible alteration to a layperson may have serious legal
consequences for your client.
If you come across such alterations, you should alert your client to the con-
sequences. In any event, you should write to your client pointing out the al-
terations that were made without your advice and asking whether the client
wishes these alterations to remain.
332
Part 7
Practice management
Chapter 48
Importance of practice management
“A place for everything and everything in its place.”
Everybody’s mother
Get organised in order to succeed

[48.05] From the time that you commence your life as a lawyer, whether you opt for
life at the Bar, as an attorney or as an in-house lawyer, you will quickly realise
that organisation is critical to your success.
With competing demands on your time brought about by court timetables,
overzealous clients and energetic colleagues, it becomes obvious at a very
early stage that a lack of organisation on your part will hamper your ability to
effectively use your legal skills.
If you are disorganised, you will be quickly put on the back foot and will
find that most of your energies will be directed towards damage control. You
will often be in the position of merely being able to react to the demands of
clients and other practitioners. Your disorganisation will also limit your effec-
tiveness as a lawyer and reduce your ability to act in the best interests of
your client.
The simple fact is that to be a successful practitioner you must be in con-
trol of your practice. You must get organised. Once you do, you will immedi-
ately remove a potentially large source of stress from your professional life.
335
Chapter 49
Prioritising
“Everything should be made as simple as possible but not simpler.”
Albert Einstein
Prioritise
[49.05] In order to conduct a successful legal practice, you must be able to prioritise
your work.
Some priorities will be obvious, e.g. where a deadline is imposed by a court
for the completion of an interlocutory step in a proceeding. Other deadlines
are not so clearly defined. The priority that these matters are afforded often
depends on a combination of how demanding your client is, together with
the level of aggression of the practitioner acting on the other side.
Where there is no externally imposed deadline, the client is sheepish and
the opposing practitioner uninterested, you may be tempted to drop the
matter down your “to do” list time after time. This is dangerous. You must
give these matters appropriate priority otherwise you may reach the stage
where your client is prejudiced. For example, your client’s proceeding may be
struck out for failure to prosecute, exposing you to a potential negligence ac-
tion.
Be realistic about your workload

[49.10] No matter how good your intentions are, or how clever you are at devising
systems to prioritise your work, you simply cannot conduct an effective prac-
tice if you take on more work than you can handle. This will result in a feeling
of being totally out of control with the consequence that you will miss dead-
lines, be tardy in responding to clients and be unable to take a proactive role
in the conduct of any file.
If overwork becomes a habit, your clients will be dissatisfied and will go
elsewhere. There will be unhappiness and friction in your relationship with
colleagues and opposing practitioners. You will also be inviting an action in
negligence against you.
337
As tempting as it is for a new practitioner to take on all work that is offered

in a bid to impress more senior colleagues, this may be professionally disas-
trous. It is most important in the early stages of your career to handle a file
competently, in a timely manner and to the best of your ability. This will help
you to develop a reputation as a practitioner who completes tasks on time
and to a high standard. Neither your clients, nor principals or colleagues will
thank you if the price of never saying “no” to a new matter is the loss of a cli-
ent or a negligence suit against the firm.
Communicate your availability

[49.15] Fortunately for practising lawyers, most people are reasonable. You will find
that if you explain to a client or another practitioner that you will not be able
to respond until a particular date, most people will accept that, even if the
date is later than they had hoped. The key is to keep people informed and
explain your circumstances as soon as you become aware that something
cannot be completed by a certain date.
Of course, there are exceptions and some clients will steadfastly refuse to
accept any delay even though you may be in court, on leave or otherwise oc-
cupied. Obviously these clients need to be accommodated and are entitled to
have their expectations met, provided these expectations were reasonable in
the first place.
Office systems to help prioritisation

[49.20] It is essential that you adopt some sort of office system to assist you in
prioritising your work. Such a system must be simple to use and be effective.
It is up to you to establish a manual or electronic system that works for you
and your secretary. If you prefer an electronic system, there are a number of
computer programs which may assist you. A whiteboard, or other similar vis-
ual tool, may be suitable in some situations. Once the system is established
and tested, it should be used regularly and consistently.
Be flexible
[49.25] It is impossible to have rigid priorities when practising law. Clients’ demands
change, as do the priorities and timetables of the courts and other prac-
titioners. These changes in themselves may either inject new urgency into a
matter or remove it. Accordingly, you must be flexible. The ability to change
course and respond quickly to new or altered priorities is essential.
You will be involved in a continuing process of taking stock and assessing
what needs to be done so that the interests of all your clients are met. It is
often not easy and the demands of competing priorities are bound to cause
338
Chapter 49: Prioritising
stress at different stages. The need to consistently reassess circumstances

and note the change of priorities is important and will be one constant
throughout your legal career.
Prioritisation checklist
[49.30] Use these pointers to achieve more effective prioritisation:
l Plan your day. This is often optimistic because on many occasions none
of the tasks you plan to achieve gets done. Nevertheless persevere and
set your goals each day on arriving at work.
l Keep lists of things to do. There are many computer-based diary planners
that you can use. The humble pen and paper, however, are quite ade-
quate and user-friendly. The list of things to do should differentiate be-
tween long-term and short-term deadlines. You should be realistic about
the amount of work that you can complete each day.
l Involve your secretary or assistant in your system for prioritising work.
This is particularly useful when court deadlines are imposed or when
critical dates pursuant to agreements or contracts need to be met. The
system should be designed so that your secretary can assist you by re-
minding you of the due date an appropriate time in advance. Ensure that
your secretary has access to your computer-based calendar software for
this purpose.
l If you know that you will require more time than usual to respond to
your clients or practitioners on the other side, as a matter of courtesy, let
them know that you have received their letter or request and indicate
when you will be able to respond. While they may not be happy with the
delay, they will be far less happy if you do not advise them of the delay
until after the time they would normally be expecting a response.
l Do not forget to work on large tasks or tasks that have an unspecified
time-frame. These tasks require self-imposed deadlines and you should
adhere to them. If this is not done, you will quickly find that time has
elapsed while you have been occupied with immediate priorities. It
would be embarrassing to admit to your client that the matter has not
progressed for several months.
l Conduct a monthly review of all your files. Not only will this remind you
of things that have slipped through your diary system, but it will also en-
able you to assess whether you have the capacity to take on further
work. It is also a good idea to keep a list of things to do at the front of
each file so that, when you review the file, you can quickly ascertain what
work is outstanding.
339
Chapter 50
File management
“The leading rule for the lawyer as for the man of every other calling is
diligence.”
Abraham Lincoln
Learn to manage your files

[50.05] The legal work you perform in resolving your client’s problem manifests itself
in a file. You must “manage” the file by carrying out your client’s instructions
and doing whatever else is necessary to bring your client’s problem – and
your file – to a satisfactory conclusion.
Some of the common mistakes made by new practitioners in convey-
ancing, litigious, commercial and other matters are outlined in Part 5. Apart
from the legal pitfalls you should avoid in the course of managing a file, there
are certain organisational rules that you should follow: see [38.35]. Adhering
to these suggestions will not only make you more efficient, but will make
your work less stressful.
“I am a lawyer, not a manager”

[50.10] Wrong. Although law school has given you a good grasp of legal principles,
none of this learning will be of any use to your clients unless you are able to
manage your files in a way that enables you to bring your skills to bear. There
will be a large amount of routine correspondence and matters to attend to
on every file. If you cannot keep up with these more mundane aspects of le-
gal practice, you may not be able to properly consider and advise upon the
interesting legal issues that may present themselves.
Winning the paper war

[50.15] If you are sensitive about the destruction of forests, you will never stop
weeping as a lawyer. A lawyer’s office is always filled with paper and there is
a constant stream of correspondence every day. If the paper war is not under
341
control, you will lose documents, fail to respond to correspondence and be

miserable. It is important to involve your secretary or assistant in the process
of containing this paper warfare and ensuring that all relevant documents get
filed on the appropriate file promptly. While this is perplexing at first, you will
quickly get better at it.
Some people have said that the advent of the computer and the increased
use of electronic documents will eventually lead to a “paperless office”. This
has not yet eventuated, as many practitioners prefer to print electronic
documents. The increased computerisation of legal offices has not reduced
the need for you to maintain an organised office.
Personal style
[50.20] It quickly becomes obvious when you commence practice that the personal
style or habits of practitioners vary greatly. While some practitioners adhere
to a clean desk policy with only several documents gracing their desks at any
one time, others are less minimalist in their approach. These practitioners
adopt the “volcano” approach to desk organisation, hoping that the impor-
tant document will somehow erupt from the mass of papers on their desk.
While a clean desk is preferable from an organisational and aesthetic point
of view, the important thing is that you know where everything is and how to
access it quickly. There is nothing more embarrassing than having to rifle
through a bundle of assorted documents to find a letter while a client is wait-
ing on the telephone. If you regularly have clients in your office for confer-
ences, the appearance of disorganisation in your office may concern them.
File management checklist

[50.25] Take hold of your file management with the following pointers:
l Read correspondence and other documents as soon as you receive them.
Respond or take other appropriate action as soon as possible and place
the relevant documents on the appropriate file at the earliest opportu-
nity. A note of the action required should be made on your list of things
to do or in your diary prior to filing the document. If you file documents
immediately on receipt and prior to responding to them, you run the risk
that you will forget what action you must take. Other matters may con-
sume your attention and you may later overlook the document.
l Keep files neat and ordered by filing all correspondence and docu-
mentation in chronological order so that any document may be quickly
and easily located. Do not overcrowd files. If one is too full, start another
file.
l Together with your secretary, decide whether lever arch folders, manila
folders or other type of filing mechanism best suits you and ensures that
342
Chapter 50: File management
your documents remain orderly at all times. If your file mechanism in-
volves spikes, ensure the spike is as close as possible to the top left cor-
ner to avoid obstructing any part of the documents being filed. If your
filing mechanism involves punching holes in documents, ensure the holes
do not cut out parts of the text of the document.
l Always take proper file notes of telephone conversations. These file
notes should be dated and the time noted. The file note should be filed in
chronological order so that you may readily consult it should there be a
dispute at a later stage as to your instructions or statements made in the
course of conversations.
l Where the documentation is voluminous, keep separate files or separate
parts of files for general correspondence and other documents, such as
contracts or court documents. Keep file copies of your bills in a separate
file or a separate part of the file.
l Each separate matter for which your client gives you instructions should
have a separate file. Failure to do so may result in your client’s docu-
ments about a matter becoming submerged among unrelated docu-
ments, making them less accessible and causing confusion about the
relevance of documents and when they were received.
l All original contracts and similar documents provided by your client
should be clearly identified and placed in the office safe or other secure
place. If this is not available or practicable, then the document should be
kept in a protective pocket of your file to ensure the document is pre-
served and is not misplaced. If the document is not kept with the file,
make a file note of its whereabouts. Also, do not write on original docu-
ments of your client and do not retain them for any longer than neces-
sary.
l Do not retain original documents of title or security documents on your
file. While these documents are sometimes required for court, there are
very few other circumstances where a photocopy of the document is not
sufficient for your file. Such documents should be returned to your client
through a secure means as soon as you have finished with them and you
should ask the client to acknowledge in writing receipt of the documents.
l If you send a document to your client, do so with a covering letter so that
there is a record of what has happened to the document. Keep a file copy
of the covering letter and the document itself for identification purposes.
343
Chapter 51
Research
“Necessity knows no law; I know some attorneys of the same.”
Benjamin Franklin, Poor Richard’s Almanack (1732–1757), quoted in E Kahn,
“The Seven Lamps of Legal Humour, Part 3” (1984) De Rebus 251
Effective and efficient research

[51.05] Law school should have taught you the importance of being methodical in
your research. The need for efficiency in your research is much more pro-
nounced when you are in practice because the pressure of other work com-
mitments does not permit you to spend all day looking up a simple point for a
particular matter.
Ultimately, the goal of your research is to uncover the correct answer for
your client. In the age of the Internet and other digital research tools, you
may find that you have many resources at your fingertips. You must adopt a
systematic approach to ensure that you do not spend hour after hour search-
ing the innumerable resources that are available in the comfort of your of-
fice. Your research must be both effective and efficient. When you are
confronted with a problem involving an unfamiliar area of law, you should
adopt the most time-efficient approach possible to enable you to provide the
required advice. You certainly cannot charge your client for your inefficiency.
The opposite of over-research is, of course, under-research. Many new
practitioners suffer from the illusion that their lecture notes are the exclusive
repository of all legal knowledge. Do not rely on cases and legal propositions
contained in these notes without checking whether the law has changed
since your student days; the chances are that it has.
Looseleaf services
[51.10] It is wise to use an up-to-date looseleaf service that specialises in the relevant
area of law as a starting point for your legal research. These services can
point you to legislation, cases and relevant commentary. Look at the table of
contents and the index to find the location of relevant information and then
refer to the appropriate sections of the looseleaf service. Many looseleaf
345
services are now available on the websites of legal publishers and on CD-
ROM. If your firm has subscribed to these services, you may be able to find
your answer by searching the relevant catchwords.
The relevant sections of the looseleaf service may refer to a case or statute
that is directly on point. It is advisable to consult the case or statute. If more
than one case is cited, read the case decided by the highest court. If the cases
have been decided by the same court and you cannot read them all, start by
reading the most recent.
Books and articles

[51.15] If there is no specialist looseleaf service or you cannot solve your problem by
reference to one, you should consult recently written articles or textbooks in
the relevant area of law. Once again, these should refer to relevant cases or
statutes. Always check when a book or article was published and, if neces-
sary, update the information yourself to ensure that there have not been any
changes to the law since the article or book was published.
General references
[51.20] General reference works such as De Rebus, and Wille’s Principles of South
African Law, and even the Internet are also helpful sources of information.
Also consult indexes and annotations of statutes and digests of cases.
Many of these resources are available on the Internet and on CD-ROM.
Legislation
[51.25] With respect to relevant legislation, keep in mind that statutory provisions
are often supplemented by regulations and other subordinate rules. Regula-
tions often amplify or give meaning to general expressions found in Acts. In
particular, regulations often lay down specific requirements or procedures
and prescribe forms that need to be complied with. Use university or govern-
ment websites that are updated regularly to access up-to-date legislation.
Internet research1
[51.30] The Internet has revolutionised the way in which legal research is conducted.
Instead of spending time surrounded by books in your firm’s library or visiting
your Law Society’s library, you can now do many of the same tasks from the
comfort of your office.
________________________
346
Chapter 51: Research
At some cost to your firm you may subscribe to the websites of legal pub-
lishers, which will give you access to the resources that are published online.
This enables you to research different areas of law by simply entering catch-
words in the search engines provided. There are also a number of free ser-
vices which provide access to case law and legislation on the Internet.
In addition to the legal publishers’ websites and legal websites, a general
search of the Internet will sometimes uncover other relevant resources. For
example, you may find articles of interest that have been written by aca-
demics and published on university websites.
Another very useful website is that of De Rebus which is regularly updated
and provides you with a multitude of important information.
Other computer-based legal research2

[51.35] In addition to the Internet, you should also bear in mind that there are other
computer-based legal research programs available. For example, some pub-
lishers provide CD-ROMs containing publications in digital form. If you have
access to such resources, you should try them. By keying in the correct
catchwords, you may obtain instant access to pertinent information. The
drawbacks of some computer-based legal research programs are cost and,
like books, currency; they can quickly go out of date. You will have to weigh
up the cost-effectiveness of these products against other products, particu-
larly Internet search tools.
Opinion bank
[51.40] Your firm may have an office precedent management system that stores
opinions, precedents and advices prepared by the firm over time. This can be
kept in hard copy or on a general computer database.
You should check whether someone else has already advised on the area
you are dealing with. If so, you should not re-invent the wheel at your client’s
expense. It is also a good idea to keep your own personal opinion bank that
includes important advices you have prepared or received from advocates or
colleagues during your legal career.
Consult colleagues
[51.45] If you work in a large firm, you should consult those colleagues who are likely
to be familiar with the area you are dealing with before conducting inde-
pendent research. They will either give you the answer you need or put you
on the right track and thereby save you considerable research time.
________________________
347
Briefing counsel
[51.50] If the problem is too complicated and outside the areas in which your firm
practises, the most efficient course might be to obtain instructions from your
client to brief appropriate counsel.
Contact relevant officials

[51.55] Sometimes the quickest and easiest way to find the answer to a problem is to
pick up the telephone and talk to a person who knows the answer.
Court officials can be consulted on court procedure. You must recognise
that rules of court are not always a complete guide because the practice
sometimes differs from the literal wording of the rules and may have done so
for years.
If you need to know in a hurry what regulations have been passed under a
particular Act, try the Internet and, if this does not help you try De Rebus. Ob-
taining that information from the Government department administering the
Act may be a very arduous task before you find the right person and some-
one to answer the telephone. The Government Printer will probably be a use-
ful alternative. You should not feel as though you are cheating or lazy if you
find the answer to a question by telephoning an appropriate person rather
than by resorting to books. You are simply using a direct and more efficient
means, which benefits your client. Your methods of research should be gov-
erned solely by the objectives of speed and accuracy.
Keep up with the law

[51.60] Because the law changes so quickly, you should strive to keep up with devel-
opments. If you specialise in a particular area, you will need to follow
changes in that area very closely. However, you should not ignore changes in
other areas altogether. You should have at least a general knowledge of key
changes in core areas of the law. Such knowledge will make it easier to re-
search those changes in detail if it becomes necessary. Set aside some time
on a regular basis to read about recent legal developments.
A good way to maintain an overview of changes in the law is through read-
ing legal journals, especially regular journals like De Rebus which is the South
African Attorneys’ monthly journal and is published free of charge. Some Law
Societies, law firms and legal publishers also send emails on different areas of
law to keep practitioners abreast of recent developments.
Participation in continuing legal education programmes is an essential ele-
ment of legal practice and in some jurisdictions it is compulsory. Ask your
Law Society to give you details of what programmes it offers to practitioners.
348
Chapter 52
Technology
“The times they are a-changing.”
Bob Dylan
Using technology for success

[52.05] The legal profession is often criticised for being slow to respond to change.
This criticism is often valid. However, in relation to technological advances,
most practitioners have enthusiastically embraced the benefits offered by
such changes, particularly the benefits of computer-related technology. In
fact, those who are not prepared to embrace new technology are likely to be
left behind as fellow practitioners utilise such technology to deliver better
and more efficient service to their clients.
All types of technology impact on your practice. The term “technology” en-
compasses a range of tools such as computers, dictaphones, video conferen-
cing, online document searching, lodging and document imaging.
As competition both from within and outside the profession continues to
place pressure on practitioners’ ability to provide efficient and profitable ser-
vices, there is an increasing need for lawyers to look to technological ad-
vances to assist them to automate manual activities and improve their
productivity.
The lawyers who succeed in the future will be those who understand and
make sensible and effective use of on-going technological advances. One
commentator has gone so far as to say that, in the future, the legal profes-
sion will be divided not into attorneys and advocates but into the “dot.com
lawyers” who are comfortable with technology and the “technophobes” who
are technologically illiterate.1
It is no longer acceptable to think of the computer and other technological
tools as items that your secretary uses. Instead, an effective and efficient le-
gal practice will involve each practitioner making appropriate use of com-
puters and other tools. Those who ignore technology or fail to upgrade their
________________________
1 A Reynolds, “Is There a Future for the Technophobe Lawyer?” (2001) 75(5) Law Institute Journal at 49.
349
skills will find it harder to compete and offer a cost-efficient (and profitable)
legal service.
Listed in this chapter are a number of suggestions to assist you to make the
most of the technology available in your office. Related topics are discussed
throughout this Part.
Welcome and embrace technology

[52.10] The first and most important rule in relation to technology is an attitudinal
one. You must accept and embrace technology as a necessary tool that will
increase your efficiency and improve the quality of the legal services you de-
liver. Not only will technology make you and your firm more productive and
competitive, it will also free up some of your time to enable you to expand
the number of matters you can handle and therefore broaden your client
base and legal experience.
Increasingly, some types of transactions and litigation require particular
technology to enable them to be conducted efficiently. If your firm does not
have the requisite technology, your firm may be bypassed by clients for some
of their work.
Further, firms lagging in technology may find it more difficult to recruit jun-
ior practitioners who embrace technology and prefer workplaces with the
latest tools.
Computer-related technology
[52.15] There is no doubt that the computer is the key item of technology in your
office. In this the computer age, effective legal practice is almost impossible
without it.
With a computer, you can have legislation, case law and academic com-
mentary at the click of a mouse in the comfort of your own office. You can
also have a word processing system which makes your role as a practitioner
significantly easier. You can access the wide variety of legal information that
is available on the Internet: see Chapter 53.
More and more communication between practitioners and their clients
and with other practitioners is done via email: see Chapter 45. While there
are some older practitioners who ask their secretaries to print out their
emails each day for them to read, they are certainly a dying breed. The effi-
ciency of reading emails on screen and responding personally cannot be
matched.
Computers have also enabled a number of related technical advances, such
as online deal rooms, which store documents relevant to a takeover or other
transaction, and client relationship websites, which store all advices provided
350
Chapter 52: Technology
by your firm in one central and secure database which is accessible by your
client.2 Such technological tools enhance client service.
Here are some suggestions for making the most of your computer:
l Familiarise yourself with the different programs that are available on
your firm’s system. Speak to your secretary and your colleagues about
the different programs they think are useful in daily practice. If neces-
sary, enrol in appropriate courses so that you can make the most of these
programs.
l In particular, as soon as practicable after commencing with your firm,
learn how to use the firm’s word processing software package so that, at
the very least, you can amend and print out documents after hours when
your secretary is not available.
l It is also money well spent enrolling in a touch-typing course to improve
your use of the computer.
l Ensure that your computer system has an appropriate back-up mecha-
nism so that important documents are not lost if there is a system mal-
function, a computer virus infects your system or your laptop gets stolen.
l Consider whether it is appropriate to employ an information technology
manager to handle any computer issues that may arise in your firm.
Some large firms have entire departments which maintain computer sys-
tems for staff. Bear in mind that a computer system breakdown is likely
to adversely affect client service and cost your firm money.
Dictaphones
[52.20] A dictaphone can save you significant time each day. Based on the principle
that we can speak faster than we can write, the dictaphone offers practitio-
ners enhanced efficiency in the production of documents and the delegation
of tasks.
When you enter a law office for the first time, you are likely to be surprised
by the number of people who are sitting behind their desks talking into a dic-
taphone. Having spent most of your life writing and typing, the transition to
oral dictation is not easy and junior practitioners often find themselves suf-
fering from what is known as unstructured “verbal diarrhoea”.
Here are some handy lessons for learning to use the dictaphone:
l Speak slowly and clearly into your dictaphone and always minimise the
level of background noise when dictating.
l Give instructions to your secretary in a courteous manner.
________________________
2 E Broderick and C Burns, “Overseas Legal Technology Trends” (2003) 77(7) Law Institute Journal at 48.
351
l Initially restrict yourself to using dictation for simple tasks, such as filling
in variables in a precedent document or providing simple directions to
your secretary. You may even find it helpful to defer using a dictaphone
until you have mastered the skill of structuring letters and memoranda
on paper.
l When dictating longer letters of advice or memoranda, prepare a written
plan in point form to give your work structure before you commence dic-
tating. This will not only keep you on track as you dictate, it will also im-
prove the quality of your dictation.
l Do not forget punctuation marks when dictating. Your secretary will need
to know when to finish a sentence and when to start a new paragraph.
l Practise. Your dictation skills will improve with time. In this regard, do not
be afraid to ask your secretary for any tips that will assist you with your
dictation.3 To a certain extent, dictation is a team effort and if your secre-
tary is accustomed to your idiosyncrasies or specific ways of dictation,
you will both save significant time.
As you gradually build confidence and learn to structure your work as you
dictate, you should see significant improvement in your efficiency.
Voice-activated document production

[52.25] Voice-activated document production packages, commonly referred to as
“digital dictation” or “voice to disk”, are likely to become popular within the
legal profession. These packages consist of new software and a hand-held
device which plugs into your computer. They enable you to dictate a docu-
ment directly onto your computer, see it being generated “live” on your
screen, and print it as soon as you have corrected any spelling and formatting
errors.
If these packages become standard technology tools in legal offices, the
role of the practitioner and his or her secretary will change dramatically.
Practitioners will be more directly involved in the mechanical aspect of
document creation and secretaries will do less typing and more paralegal
tasks. The ratio of lawyers to secretaries in law firms and at the Bar will grow
further, with secretaries working for larger teams of lawyers.
While it will take a while for lawyers to become accustomed to using voice-
activated document production packages, the skills learned in using the dic-
taphone will no doubt prove handy.
________________________
3 RJ Bell, “Streamlining Dictation” (1986) 60(9) Law Institute Journal at 998.
352
Learn how to use basic office equipment

[52.30] You cannot be totally reliant on your secretary or other support staff for
everything that you do in the office. What if your secretary is sick for an en-
tire week or month and you are left to fend for yourself? You must familiarise
yourself with how to operate all basic office equipment, including the photo-
copier, fax machine and laser printer. Ensure you know how to turn them on
after hours and perform simple maintenance, such as clearing paper jams.
Murphy’s law ensures that these machines always break down at the most
crucial times. The last thing you want at 11 pm on the Sunday night before
your first trial is a paper jam in the photocopier or fax machine with no one
who is “qualified” present to fix it.
Your firm’s billing system

[52.35] Most law firms have integrated systems for recording billable time and
producing regular – often monthly – bills. In order for your firm’s system to
operate effectively, you need to understand the system and, in particular,
how it monitors your work in progress and disbursements on your files.
Make sure you and your secretary are familiar with the billing system and
know how to produce your own bills at the appropriate interval. If your office
renders accounts on a monthly basis, do not leave your bills for the last day
of the month. If a matter concludes early in the month, send a bill at that
time. If appropriate, spread your bills over the course of the month in order
to avoid the end-of-month rush.
If you have never experienced the stress of “bills day”, ask a legal secretary
about the last business day of a month. With proper preparation, this stress
can be avoided.
Other technology
[52.40] New technology is always finding a place in practitioners’ offices. While this
technology has in the past been confined to the larger firms, the cost of
equipment has decreased and thus all firms should be in a position to explore
at least some new technological frontiers. The following tools are now com-
mon in the offices of law firms:
l Laptop computers or “notebooks”, which enable you to have a mobile of-
fice. They can be used at home and, in appropriate cases, in court, where
they enable you to utilise online “live” transcript facilities. As witnesses
speak, the text of their evidence is simultaneously typed by a court ste-
nographer and appears on your lap-top computer. This can be accessed
by the judge, counsel and attorneys. Laptop computers with built-in mo-
dems also enable lawyers to enhance the service they provide. For exam-
ple, statements from witnesses can be taken personally in a client’s
353
office, at the site of an accident or overseas and then transferred elec-

tronically to your office at the click of a mouse.
l Transcript and other computer search packages, which can hold thou-
sands of pages of transcript and perform complicated searches of the
transcript to help with the cross-examination of witnesses.
l Document imaging and portable document format (PDF), which enable
hard copies of documents to be scanned into a computer and repro-
duced. For example, while it used to take hours to have a 100-page
document retyped, the same document can now be scanned into a word
processing package, amendments made and multiple copies reproduced
within a fraction of the time. Such technology also enables you to send
documents electronically to your clients quickly and easily.
l CD-ROM facilities, which enable large volumes of information to be
stored on single compact discs. Legislation, cases and other library infor-
mation that used to be stored on several bookshelves can now be ac-
cessed by a single CD-ROM using a CD player linked to a computer.
Discovered documents, which had to be wheeled to and from court daily
by hapless candidate attorneys or paralegals, can now be stored in CD-
ROMs and moved about easily with a laptop in a carry case. Instead of
papers being shuffled noisily in court and cluttering the Bar table, it is
now not unusual to see practitioners moving silently from document to
document on their computer screen by gentle manoeuvring of their
mouse.
l Multimedia technologies, which combine different forms of technology,
such as CD-ROM, word processing, computer packages and video tech-
nology. For example, a multimedia package might combine a videoed
witness statement with a word processed document including notes for
cross-examination. This is especially valuable if the case involves an inter-
state or international element. This multimedia package could be stored
on video and transferred electronically via a telephone line between of-
fices in, say, Brisbane and New York. A video or computer screen can
then be used in New York to play the video and simultaneously view the
typed comments for cross-examination.
Routine scanning of documents is becoming more common, particularly in
large law firms. Some firms now scan all incoming faxes and then forward
them as PDF attachments to emails to the intended recipients. The recipient
can print the fax or keep it in electronic form, or both, and can forward the
fax to others in the office by email. This procedure, coupled with software
which enables lawyers to send faxes from their own computer, provides
greater flexibility in dealing with faxes and reduces the need for mail room
staff to be doing “fax rounds” every 30 minutes. The procedure is proving so
successful that some firms are proposing to adopt it for all incoming mail.
354
Make technology work for you

[52.45] One of your first objectives when commencing legal practice should be to
master the technology in your firm’s office. This will help you to become a
more efficient and effective practitioner and, most importantly, offer im-
proved service to your clients.
Your computer, your dictaphone and basic office equipment should be
your first priority. As your confidence grows, you should test the bounds of
the other technology available.
Many sole practitioners and advocates have found that “working for your-
self” is more efficient and rewarding when you have appropriate technologi-
cal facilities to work for you. In this regard, you may wish to consider
engaging an information technology consultant to ascertain your computer
and technology needs and how best to meet them.
355
Chapter 53
Internet
“[M]any lawyers are becoming cyber prospectors, mining the Net for
golden nuggets of information.”
HV Samborn, “Database Detectives” (2000) ABA Journal 60
Internet advantages
[53.05] The Internet has made the world a much smaller place. By visiting the web-
site of an organisation or individual, you can obtain information about them
and conduct research at a speed that was previously impossible. With the as-
sistance of the Internet, you can visit a library on the other side of the planet
or access information on current events in cities far from home, all at the
click of a mouse.
By logging on to the Internet with the help of a modem, an Internet service
provider and a browser, you can “surf the Net”. Each entity that has an Inter-
net website has a unique address which enables you to access the informa-
tion on that website. The content will, of course, depend on the nature of the
entity and the purpose of the information on its website. Some organisations
publish information on their website to promote themselves and their goods
or services or to support a cause. With the millions of websites that exist on
the World Wide Web, the amount of information that can be accessed via
the Internet is immeasurable.
In terms of legal practice, the greatest benefit of the Internet is the ability
to conduct research quickly and efficiently. It also provides an information
source from which you can obtain details about entities which are doing
business with your client or with which your client is in dispute. In addition,
the Internet is becoming an important marketing tool for law firms and a
means of increasing the level of client service.
This chapter discusses the major benefits of Internet usage. It does not
profess to explain the many complexities of the Internet and the innumerable
ways in which its use can improve legal practice. My intention is to provide a
basic outline of the Internet and the ways in which it can be used in your le-
gal practice.
Related topics are discussed in Chapters 45, 51 and 52.
357
Internet as legal research tool

[53.10] As soon as you start working with a law firm, you should investigate the
range of legal research tools the firm has available via the Internet. You may
find, particularly in larger firms, that many texts and hard-copy looseleaf ser-
vices that you were accustomed to using at university are available online. A
number of legal publishers now provide academic commentary and legal re-
search material on their websites for subscribers. Generally, there is a signifi-
cant expense associated with having these resources. You must weigh up this
expense against the advantages these tools provide.
In Chapter 51 I explained the processes required to ensure that your re-
search is thorough. Many of the resources referred to in that chapter can be
accessed via the Internet. If this is the case, you may find that using the
Internet will save you significant time and may also save your firm the ex-
pense of buying materials in hard copy form.
In addition to those services to which you may subscribe through legal
publishers, you should also be familiar with legal information that is available
free of charge on different websites, particularly government and university
websites. You will also find judgments on the websites of the relevant courts,
which are available at no charge.
If you are researching law in a foreign jurisdiction, the Internet generally
enables you to access websites with legislation and cases in that jurisdiction.
Rather than sifting through the myriad of books in a library, the Internet
enables you to quickly find the information by entering catchwords into the
search engines of legal websites. From the computer on your desk, you may
come up with the answer to your problem in a manner which cannot be
matched by traditional research methods.
Internet as information source

[53.15] In addition to being able to conduct legal research on the Internet, you will
find that the Internet is a vast information source. By using any of the num-
ber of search engines that are available, you can simply type in a catchword
and you may find that there are tens, if not thousands, of “hits”.
This information source can be of great benefit to your legal practice. You
may find resources that are difficult to obtain in hard copy are available at a
website of an organisation of which you had previously not heard. Your
commercial clients will be particularly grateful for any annual reports or other
information that you can obtain via the Internet regarding entities with which
they propose to do business. You can also conduct some company searches
online at no charge to your client. As part of any due diligence process, you
would be well advised to look at the website of any company that a client is
intending to purchase to see if there is any information that would be of
benefit to your client in evaluating the worth of the proposed transaction.
358
Chapter 53: Internet
Notwithstanding the advantages of having this information available at the

click of a mouse, some of the information that you will find on the Internet
may not be correct. There are only limited restrictions on the information
that may be published on the Internet and there is usually no reliable exter-
nal quality control. Accordingly, exercise care when relying on information
downloaded from the Internet. If possible, confirm its veracity by reference
to independent sources.
Internet as marketing tool

[53.20] The Internet is increasingly being used by law firms as a marketing tool. Law
firms are able to publicise their recent achievements and areas of expertise
on their website. Websites are accessible to prospective clients not only in
the local jurisdiction but also to those who may wish to do business in the ju-
risdiction and require legal advice. In the commercial legal market of the 21st
century it is almost mandatory to be on the Internet. If you do not have an
Internet website address, your commercial clients will ask why. They may
think that the fact you are not up to date with this technology means that
you are not up to date with your legal knowledge.
Many prospective clients will investigate which law firm is appropriate for
their legal needs by searching the Internet. Most law firm websites contain
details about the partners of the firm, their attributes, expertise and the re-
cent matters upon which they have worked. Within the bounds of what is
permissible by the professional conduct and practice rules in your jurisdic-
tion, the Internet is a valuable tool for advertising the services your firm pro-
vides.
As part of this marketing process, some law firms publish regular updates
on different areas of law which they can email to clients and publish on their
website. This is a good way to keep in contact with clients and encourage
them to return to your firm the next time they require legal assistance.
A user-friendly and informative website can also assist a firm to attract
high calibre staff. Law graduates, practitioners and other staff tend to be
technology savvy and their decision to apply for a position with your firm
may be influenced by the quality of your website.
According to one commentator, such is the importance of the Internet as a
marketing tool that traditional marketing strategies, such as word-of-mouth
and reputation, will be challenged by emerging tools such as cyber branding
and on-line strategic alliances that cross borders.1
________________________
1 A Janssen, “Lawyers and the internet: Surf the Wave or be Dumped” (2001) 21(2) Proctor at 21.
359
Using the Internet to increase client service

[53.25] The Internet is a vehicle with which you can increase service to your clients
and offer them alternatives that were previously not available. In fact, clients
will expect their practitioners to provide more and more services on the
Internet in a form that can be accessed by different staff members at the cli-
ent’s organisation.
Some of the ways in which the Internet can be utilised to better serve your
clients include:
l You may be able to set up online deal rooms in which all documents that
are relevant to a particular transaction are collated and can be accessed
by authorised individuals. This makes processes such as due diligence in-
quiries significantly easier and saves the expense and inconvenience of
photocopying documents and transporting hardcopy versions.
l In litigation, the Internet can be used to store and access discovered
documents. Having the documents available electronically will save you
and your counsel significant time in terms of preparation. One of the
great benefits of such a system is that the documents can be linked by
hyperlinks which make switching between documents easier and signifi-
cantly quicker.
l At the request of a client, you can establish online databases of the ad-
vice which has been provided by your firm to the client in the past. This
way, staff at your client’s organisation can log into your website and in-
sert a password which will allow them entry to the legal advice.
l Some firms have prepared online legal products in a number of areas –
particularly heavily regulated and process-oriented areas such as super-
annuation and privacy. For a fee, clients can access these products to-
gether with regular updates.
l For high-volume, low-value debt collection and enforcement work, some
firms have developed programs enabling them to have Internet interface
with their clients, with clients being able to give instructions online.
Internet: legal issues

[53.30] Due to the omnipresence of the Internet, advising clients on their liability for
information published on the Internet has become a separate area of legal
advice work for some firms.
The Internet has also given rise to unique and very complicated legal is-
sues, particularly in private international law. For example, if a defamatory
statement is posted on the Internet in country A about a person in country B
and the statement is read by persons in various countries, including countries
A and B, where was the tort of defamation committed, which law applies to
an action in defamation and where should the action be brought?
360
Chapter 53: Internet
Internet: conclusion
[53.35] As a practitioner, you must not forget that, notwithstanding the efficiency
and informality of some information on the Internet, you must satisfy your
professional ethical obligations in the same way over the Internet as you
would using any other medium.
361
Part 8
Working in the law
Chapter 54
Career options
“Daddy’s a litigator. That’s the scariest type of lawyer. Even Lucy, our
maid, is terrified of him. And daddy’s so good he gets $500 to argue with
people. But he argues with me for free because I’m his daughter.”
Alicia Silverstone as Cher, Clueless, quoted in “Lawyers: Jokes, Quotes,
and Anecdotes 2003 Calendar”, Andrews McMeel Publishing
Diverse career choices

[54.05] Traditionally, lawyers have pursued either a career as an attorney or a career
as an advocate. Those who remained attorneys typically aspired to practise
as a principal, either on their own or as a partner of a firm. Those who went
to the Bar typically aspired to become a Senior Counsel and ultimately a
judge.
In the 21st century many lawyers view the traditional career options as too
limiting. With the law degree being seen by many as having replaced the arts
degree as the generalist degree which provides a large range of career op-
tions, lawyers have increasingly embraced the diverse job opportunities that
have become available to them.
Some of the career options involve practising law or working in the legal
field including the roles of in-house corporate lawyer, in-house government
lawyer, academic lawyer, and lawyers working for non-profit organisations
like the Legal Resources Centres.
Other career options do not involve practising law or working in the legal
field, although they may require the use of legal skills. They include careers as
a diplomat, politician, management consultant and business executive. Many
lawyers have risen to top positions in these non-legal fields.
Part 8 of the book discusses some of the main career options in the legal
field: attorney, advocate, in-house corporate lawyer, in-house government
lawyer, academic lawyer, and working as a lawyer overseas.
Part 8 also contains a survival kit for new lawyers and a chapter on women
in the law.
365
Chapter 55
Working as an attorney
“Two lawyers walked into the office one Monday morning talking about
their weekends.
‘I got a dog for my kids this weekend,’ said one.
The other attorney replied, ‘Good trade.’”
Quoted in “Lawyers: Jokes, Quotes, and Anecdotes 2003 Calendar”, Andrews McMeel
Publishing
Practising as a professional assistant or associate

[55.05] For many law graduates the first step in their legal career is to work as an
attorney after they have served their statutory period as candidate attorneys.
There are many ways in which to practise as an attorney: as a professional
assistant (see [55.10]), a sole practitioner (see [55.15]) or a member of a
partnership or director in a professional company: see [55.20]. There are a
myriad of different areas of law in which to practise and being an attorney
enables you to see the human face of the law. The people you encounter are
real people with real problems, rather than merely the names you read in law
reports while at university.
Attorney employed as a professional assistant

[55.10] Working as a professional assistant or associate is the most likely short-term
career option that you will pursue. If you have completed your articles of
clerkship or equivalent legal training with a particular firm, it is likely that you
will remain there in practice as a professional assistant or associate for some
time.
The main benefit of being a professional assistant, or in other words an
employee attorney is the security and stability of your employment. Your sal-
ary is likely to be adequate and it will probably remain so for several years.
Even though your hard work will be further enriching the partners of your
firm, you will have the opportunity of widening your experience in diverse
areas of law and building up your confidence and skill base as a lawyer. In
many ways, it is experience which makes a good legal practitioner, rather
than good academic qualifications.
367
There is much to learn when you enter the legal profession and take the
large step from theory to practice. This learning cannot all be squeezed into
one year of articles or practical legal training. It is advisable to remain an em-
ployed practitioner for at least a couple of years to acquire the skills of a
good lawyer and some basic confidence as a lawyer. Such experience is im-
portant before launching into practice on your own, or pursuing another ca-
reer in the legal profession.
Sole practitioner
[55.15] Establishing or purchasing a practice as a single practitioner is not an easy
option. There are many responsibilities involved, not all of which are of a le-
gal nature. Apart from seeing demanding clients, you will need to manage an
office, supervise staff, buy equipment and books, keep up with legal devel-
opments and make sure that your accounts – especially your trust accounts –
are in order. You will probably need to borrow money to fund your own prac-
tice and this will place financial strain on you in your early years.
Notwithstanding these pressures, the emotional rewards of a successful
and thriving practice, built up by your own efforts, are enormous. There are
also financial rewards and the fruits or profits of your labour are yours alone
(after a percentage has been paid to Inland Revenue, of course). As a sole
practitioner, you are your own boss. Your success (or your failure) is dictated
by your hard work and determination.
If you decide to practise on your own, you should talk to established sole
practitioners and seek their guidance on how to manage your practice effi-
ciently and profitably. Your Law Society may also have experts on law office
management. Alternatively, you may be able to obtain some assistance by
consulting relevant literature.
The key to establishing a successful sole practice is proper preparation.
Without it, you are likely to have difficulties in coping with the tremendous
pressures of legal practice. Not only must you ensure that proper office pro-
cedures are implemented, but, most importantly, you must make sure you
have a Fidelity Fund Certificate which enables you to practise on your own
account. Any assistance you can receive to establish your sole practice will
mean you have more time to focus on the essential aspect of any legal prac-
tice: the provision of high-quality legal services. Without this preparation
your clients may suffer because they may not be receiving the standard of
professional service which they expect and are paying for.
Entering a partnership
[55.20] “A bad partnership can be financially worse than a bad marriage. Your spouse
can only cost you everything you have. Your partner can cost you your future.”1
________________________
1 JG Foonberg, How to Start and Build a Law Practice (4th ed, American Bar Association, Chicago, 1999), p 31.
368
Chapter 55: Working as an attorney
Entering into a partnership is usually a long-term career option for prac-

titioners. If you work for a large and prestigious firm, the prospect of being
admitted into the partnership before your thirtieth birthday is extremely re-
mote. More likely than not, you will have to work hard as a professional as-
sistant or associate for several years before you have any chance of enjoying
the fruits of a partnership.
Aside from the financial benefits of being a partner, you have the advan-
tage of working in a team of lawyers. Unlike a sole practitioner, if you are
away for a short period of time, your partners can continue the work of the
legal practice. Between you and your partners, your clients have access to a
wide range of specialists in a number of different areas of law. While a sole
practitioner may have to be a “jack of all trades”, as a partner in a firm, you
are often able to specialise in your chosen area of law.
If, and when, you are offered a partnership, do not rush into it. While the
increased income may seem attractive, there may be a number of pitfalls.
Make sure you make an informed decision. You should seek information
about important matters, such as the financial position and management ar-
rangements of the firm, before committing yourself to the partnership. Speak
to as many partners as possible. Do not be content to accept what the
spokesperson for the firm tells you. It may be that there are differences of
opinion about the firm which are held by existing partners.
Partnership conditions
[55.25] Make sure that you carefully read any existing partnership agreement before
you enter into the partnership. Suggest amendments if you are not happy
with it. If the firm does not have a partnership agreement, then insist that
one be drawn up which covers the overall relationship of the partners to
each other. A comprehensive partnership agreement is necessary to establish
discipline, define conduct, reduce friction and minimise misunderstandings
among members of the partnership.
Trust and respect

While it is not possible to define an ideal partnership, there are some
essential ingredients required for any successful partnership. You must be
satisfied that you and your partners will respect and trust each other and will
enjoy a workable and profitable association with each other. It is not
essential that you are the closest of friends, but it is essential that you share
trust. Accordingly, consider the type of people that you want as partners. You
do not need to have mutual political or religious views. Mutual trust and
respect can flow from the most unlikely and different political, religious,
social and economic backgrounds. Diversity in a law firm may promote
strength and vitality.
369
Financial arrangements
Pay particular attention to the financial arrangements involved in entering a
partnership. If you have to contribute any capital in order to enter the part-
nership, make sure this will not be an excessive burden on your finances and
standard of living. If necessary, obtain independent financial advice.
Make sure you are clear about your entitlement to profits. Many partner-
ships encounter difficulties because of unequal sharing of income. In particu-
lar, some firms adhere to the notion that the “senior partner” should get a
greater share of the profits than the “junior partner” on the basis that the
“senior partner” started the firm, attracted all the “important clients” and it
would cause the immediate collapse of the practice if the “senior partner”
walked out. It is often the case, however, that the junior partner works
harder and earns more revenue for the firm than the senior partner who may
be less productive. Partnerships which are developed in this way are poten-
tial time bombs. The unfortunate long-term result may be that a quality prac-
tice is destroyed or fragmented. Perhaps the solution is for all the partners to
share profits equally and for the senior partner to be given non-financial con-
cessions, such as additional time off.
Office management
Make sure that all partners recognise that good communication between
them is fundamental, and that they agree that they will have regular and
uninterrupted meetings on budgeting, staffing, partners’ movements and
particular client initiatives or problems.
You should also consider how the office will be managed.2 Any time you
spend on administrative tasks leaves you with less time to devote to actual
legal work. In a partnership of any size it is money well spent to have an of-
fice manager who acts as a financial controller and staff supervisor. In large
firms it is necessary to have a management team comprised of partners and
non-lawyer professionals, with one partner designated as the firm’s manag-
ing partner or chief executive partner. The days when a partner could waste
time interviewing clerical staff or fixing the office plumbing have long since
gone.
Guide to legal partnership issues

[55.30] The Auckland District Law Society published a booklet many years ago enti-
tled A Guide to Legal Partnerships, which set out the following list of matters
that you should consider when contemplating entry into a partnership:
1. Incomes
(a) Are income levels satisfactory throughout the firm?
(b) How are relative incomes calculated?
________________________
2 See further, L Storrs, “Legal Practice and Corporate Governance” (2003) 2(4) Law Practice Management at 52.
370
(c) How long does it take to reach equality with senior partners?
(d) What expenses or other allowances are paid?
2. Goodwill/capital
(a) Is any payable?
(b) If so, how much and when? Is any assistance given by way of guaran-
tee?
3. Democracy
(a) How are decisions made within the firm?
(b) Are there regular partners’ meetings?
(c) Is the firm run on business-like lines?
4. Restraint of trade
(a) Are you expected to sign an agreement?
(b) Are its duration and radius reasonable?
(c) Does it exclude employment in commerce?
(d) If you agree to it, are you paid goodwill, etc by the firm on retiring?
5. Retirement
(a) What does a retiring or deceased partner receive? And when?
(b) What is the voluntary retirement age?
(c) What is the compulsory retirement age?
6. Disability
What happens if you become disabled from practising by reason of acci-
dent or ill health?
(a) For a short period (say three months)?
(b) In the long-term?
7. Potential problems
(a) Are all partners in good health?
(b) Is there a good age mix of partners?
(c) Does any existing partner plan to retire in the medium-term future?
(d) Does the firm plan to admit any new partner in the medium-term
future?
(e) Does any partner have a substantial outside interest which might
affect his or her contribution to the firm?
(f) How dependent is the firm on any one client or on any small number
of clients? Is the loss of such client(s) a serious present concern?
(g) Are there any professional negligence claims against the firm pend-
ing or anticipated?
371
(h) Does the firm have adequate insurance against:

(i) Professional negligence?
(ii) Loss of physical assets?
(iii) Consequential loss (e.g. costs of moving premises and replac-
ing lost documents)?
(iv) Sudden death of a partner?
(v) Long-term disability?
(vi) Is a shift of premises contemplated? Or substantial equipment
purchases? If so, what will the cost be and how will it be fi-
nanced?
8. Bank arrangements
(a) What borrowing arrangements does the firm have with its bankers?
(b) Does any partner or group of partners have substantial borrowings
from that bank? Is the liability of the other partners excluded?
9. Partnership investments
(a) Do the partners have any group investments (e.g. tax schemes)?
(b) Who owns the partnership premises?
10. Holidays
(a) How often and when?
(b) Are you entitled to sabbatical leave? What income will be received
whilst on leave?
11. Superannuation
Is there a superannuation scheme for partners?
12. Documentation
(a) Have you examined the last three years’ accounts of the partnership
and have you discussed them with the firm?
(b) Have you examined the partnership agreement?
Choosing to specialise
[55.35] Most practitioners, at some point in their career, have to consider whether to
specialise in a particular area, particularly partners and professional assis-
tants working in medium-sized and large law firms.
Specialising in an area of law is not only important to meet client demands,
but as the law develops rapidly, you cannot hope to be up to date with the
law in all areas at all times. Specialisation offers you the opportunity to iden-
tify an area in which you can seek to become known as an expert.
The decision to specialise is not always a decision which you make con-
sciously. Often, this will be dictated by the clients with whom you develop a
372
relationship or the partner for whom you work in your time as a professional
assistant or associate. It is advisable that you spend a year or two working in
diverse areas of law before you decide the area or areas in which you will
specialise. This will allow you time to discover what areas interest you, what
areas you are good at and where there is a need for lawyers.3
Working as an attorney: conclusion

[55.40] Practising as an attorney offers enormous diversity. You can work as a pro-
fessional assistant or partner of a small or large firm or you can practise on
your own account. You can practise in a variety of areas or specialise. The
common feature, and greatest advantage, of working as an attorney is that
you have direct client contact and primary responsibility for your clients’ af-
fairs. This gives you the opportunity to have a positive impact on your clients’
personal or professional lives.
________________________
3 JG Foonberg, How to Start and Build a Law Practice (4th ed, American Bar Association, Chicago, 1999), pp 38–39.
373
Chapter 56
Working as an advocate
“During the first few years at the Bar, every barrister suffers far more trials
than he ever conducts in court.”
RE Megarry, Lawyer & Litigant in England (Stevens & Sons Ltd, London, 1962), p 39
Becoming an advocate
[56.05] Working as an advocate is potentially very exciting and rewarding. As with
other career options, careful consideration should be given to what this op-
tion involves before pursuing it.
The basic requirement is either a four-year LLB or a three-year undergradu-
ate degree (BA, BCom, or a BSc) plus a two-year LLB from any South African
university. Any person who wants to practise as an advocate must undergo
one year of vocational training (pupillage) before being permitted to practise
as an independent professional advocate. Professional training to become an
advocate is provided by the constituent Societies of Advocates of the General
Council of the Bar of South Africa. Pupillage, beginning on 15 January and
ending on 31 December, including an examination is a prerequisite to join the
Bar. During pupillage a pupil advocate will be paired with an experienced
advocate to gain firsthand experience on how real work is carried out in
chambers and in courts. Pupillage is a learning experience, not a job and is
unpaid. Pupillage consists of practical courtcraft, legal document drafting
skills and procedural law.
Work done by advocates or attorneys practising at the Bar

[56.10] Working as an advocate exposes you to the practice of law at the “coalface”.
Advising on complex questions of law or persuading a judge in court about a
particular interpretation of legislation or case law is one of the great advan-
tages of work at the Bar. If you love the law, practising as an advocate en-
ables you to spend your working life considering how the law operates in
relation to real life problems.
Advocates appear in most major cases in South African courts. These
include the Constitutional Court, the Supreme Court of Appeal, Provincial
375
High Courts, the Labour and Labour Appeal Courts, Land Claims and Tax
Courts and the Magistrates’ Courts. Advocates appear in appeals in all
superior courts in South Africa. They also appear in trials and applications in
the High Courts and other superior courts situated in the nine provinces of
South Africa. In addition advocates appear in arbitrations which include com-
mercial, building, engineering and employment arbitrations. Advocates are
also instructed to provide written or oral opinions on matters involving South
African law. Where advocates are engaged in South African courts, they are
instructed by attorneys.
There are many different areas in which to practise at the Bar. Increasingly,
advocates are choosing to specialise in particular fields. This means that it is
not uncommon to find advocates who practise exclusively in areas such as
criminal law, family law, industrial law, commercial law, constitutional liti-
gation, human rights law, mining law, insurance law, media and broadcasting
law, computer and telecommunication law or alternative dispute resolution,
to name but a few.
Preparing for the move to the Bar

To become an advocate you must be admitted to the Roll of Advocates, a
statutory register kept by the Registrar of the High Court. You must apply to
the High Court, by means of an affidavit, stating that you are honest, have
not committed any criminal offences, have an LLB degree and are “fit and
proper” to be an advocate. You must appear before the High Court to
promise to uphold the Constitution, after which you may call yourself an
advocate. Members of the Bar are traditionally called junior counsel or senior
counsel (“silk”). Silks usually appear with a junior counsel in large or difficult
cases. A “silk” is an advocate of proven experience and skill, who after at
least ten years of practice is appointed by the President of South Africa as a
“senior consultus” (SC). Each year the Bar Councils make recommendations
about who should be appointed as silks. A senior consultus traditionally
wears a silk robe, different from those worn by junior counsel, and it is for
that reason he or she is called a “silk”. Silks are the leaders of the profession.
Although all practising and academic lawyers are eligible to be appointed as
Judges, most Judges appointed by the Judicial Services Commission are
advocates because of their experience in the arts of courtcraft.
Sources of work
[56.15] Advocates are sole practitioners. Their prime resources are their knowledge,
training, skills and specialisation. When you appoint an advocate you bring
those resources into your team. Where advocates are engaged in South Afri-
can courts, they are instructed by attorneys.
376
Chapter 56: Working as an advocate
What is the Bar?

[56.20] The “Bar” is the name traditionally used for Societies of Advocates. There are
ten Bars affiliated to the General Council of the Bar in South Africa. Each Bar
is an independent association governed by an elected Bar Council. Codes of
ethical conduct apply to every person who joins the Bar and these are
enforced by the Bar Councils. An advocate who transgresses the law or the
code of conduct may be expelled from the profession by way of an appli-
cation to the High Court. The codes regulate the ethical handling of a case,
duties to the court, attorneys, clients and to other advocates, and the
charging of fees which must be reasonable, having regard for the financial
capacity of the client and the complexity of the case.
Advocates who join the Bar “keep chambers” together in “sets of
chambers” where they enjoy a collegial professional life. Membership of the
Bar offers the opportunity both to learn from experienced advocates and in
turn as an experienced advocate to pass on skills to newcomers; in this sense,
the Bar is the training ground for new advocates. Advocates are required to
practise from chambers, and clients and attorneys usually call there to
consult.
The important value of the profession of advocacy is its uncompromising
independence. Advocates adhere to a “cab rank” rule which means that any
person no matter how grievous a crime they are accused of, how poor or rich
they may be or however unpopular they may be politically, is entitled to the
services of an advocate, and it is unethical for an advocate who is available to
take a case to refuse to do so, because the advocate disapproves of the
person’s acts or behaviour.
Working as an advocate: conclusion

[56.25] Practising as an advocate can be one of the most exciting, rewarding and
stimulating jobs in the law. Appearing in court on behalf of a client is a real
privilege. Winning a case on behalf of a deserving client can be deeply satis-
fying. As an advocate, you are an essential part of the legal system, an aspect
of your role which is very rewarding.
In order to achieve success at the Bar, you need to be self-motivated, or-
ganised, industrious and very good with people. As a result, life at the Bar
does not suit everyone. You should only set out on a career as an advocate
after you have spoken to other advocates and carefully considered your deci-
sion. If you decide to take the risk and become an advocate, the risks will be
balanced by the many advantages of practising as an advocate.
Of course, if you have an ambition of becoming a judge, there is no better
way of achieving it than by going to the Bar.
377
Chapter 57
Working as an in-house corporate
lawyer
“Many barristers and solicitors are employed as legal advisers, whole time,
by a single employer . . . They are regarded by the law as in every respect
in the same position as those who practise on their own account.”
Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2)
[1972] 2 QB 102 at 129
In-house corporate lawyers: introduction

[57.05] Since 1990 there has been a significant increase in the number of in-house
corporate lawyer positions all over the world. Many public companies and
some private companies now have a general counsel. The biggest public
companies have large internal legal departments which are equivalent in size
to mid-tier law firms. In light of these changes, working as an in-house cor-
porate lawyer has become an important career option for lawyers at all levels
of seniority.
Becoming an in-house corporate lawyer is a job of choice for many law-
yers.1 Generally, those who become in-house corporate lawyers start their
working life in a law firm, choosing to pursue in-house roles after some years
of experience in the law firm environment. For this reason the requirements
and training for corporate lawyers are the same as for advocates and attor-
neys.
Role of in-house corporate lawyers

[57.10] The role of an in-house corporate lawyer is to understand all facets of his or
her employer’s business, particularly the legal risks facing that business, and
to provide (either personally or through external lawyers) accurate and prac-
tical legal advice to the company.
________________________
1 See generally, C Lawrie, “The Pros and Cons of Working In-house” (1997) 35(7) Law Society Journal at 38.
379
Unlike lawyers in private practice who have many external clients, most in-
house corporate lawyers have one formal client, which may be a single com-
pany or a group of related companies. Within that single formal client, how-
ever, are various business units and executives who comprise the in-house
corporate lawyer’s internal clients.
In-house corporate lawyers provide advice on a variety of subject areas, in-
cluding contractual issues, financial agreements, damages claims, consumer
protection legislation, marketing, corporate law, intellectual property law,
corporate governance, taxation law and property law.2 The advice given to
internal clients must not only be legally correct, but it must also be commer-
cially feasible and easily comprehended.
Following is a discussion on some key attributes and advantages and disad-
vantages of working as an in-house corporate lawyer and how this career op-
tion compares to other options. The discussion is, of necessity, general in
nature and may not apply to every in-house corporate lawyer, as positions
may differ depending on various factors, particularly the size of the com-
pany’s internal legal department and the lawyer’s place in the hierarchy of
that department.
Dealing with internal clients

[57.15] An in-house corporate lawyer must have a clear understanding of his or her
client’s business and goals in order to provide advice that is both legally
sound and commercially viable. This necessitates working in close proximity
to, and developing strong relationships with, internal clients. Internal clients
often look to their in-house corporate lawyer for not just legal advice, but
also commercial advice. However, in-house corporate lawyers must be es-
pecially mindful of the nature of their role and be aware of the impact that
any non-legal advice they give may have on the client’s ability to claim legal
professional privilege. The issue of legal professional privilege is one of great
significance to in-house corporate lawyers because of the risk that legal pro-
fessional privilege will not apply if:
l the advice does not have the character of legal advice;
l the advice is given in a capacity other than as legal adviser; or
l the in-house corporate lawyer is not sufficiently independent of his or
her employer/client: see Chapters 7 and 9.3
________________________
2 See further, P Turner, “In-house Lawyers Versus Consultants: May the Best Adviser Win” (1998) 26(6) International
Business Lawyer at 247; HH Price, “What Do Corporations Want from their Corporate Lawyers?” (1983) 57 Law
Institute Journal at 836.
3 See also K Willcock, “Legal Professional Privilege and the In-house Lawyer: Principles and Practice” (1999) 27
Australian Business Law Review at 364; EJ Kyrou, “General Counsel with Dual Roles – Implications for Legal Profes-
sional Privilege” (2000) 74(3) Law Institute Journal at 53; EJ Kyrou, “Are Legal Services of In-House Corporate Law-
yers Privileged?” (2003) 13(1) Australian Corporate Lawyer at 18.
380
Chapter 57: Working as an in-house corporate lawyer
Project management and communication

[57.20] The ability to effectively manage projects both internally and externally is a
critical attribute of being an in-house corporate lawyer. Legal work is often
briefed out to external lawyers when the matter is large in size, when very
technical legal advice is required or when the in-house corporate lawyer does
not have the time to undertake that work in addition to his or her other re-
sponsibilities. An in-house corporate lawyer takes on more of a project man-
agement role and effectively acts as a “bridge” between the internal client
and the external lawyer. In this role you must manage the external lawyers
by providing clear instructions and ensuring that work is received in a timely
and digestible manner within the specified legal budget.
As an in-house corporate lawyer you must also understand the internal cli-
ents’ goals, manage their expectations and needs and ensure delivery of the
required legal outputs. This may involve ensuring that all relevant stake-
holders within the company, and outside the company, have been consulted
and all company policies are complied with.
In-house corporate lawyers must be good communicators. Advice must be
communicated in a clear and concise manner, whether verbally or in writing.
This means that it may be necessary to summarise any external advice into a
more digestible plain English format for the internal client. You must be will-
ing to recommend solutions, rather than merely offering a range of options,
and are often expected to be more decisive than external lawyers.
Ethical adviser
[57.25] In-house corporate lawyers should take a leading role in encouraging an
ethical business culture within their company. They should become an ethics
“sounding board” and diplomatically draw attention to matters which may
give rise to ethical concerns.4 They should be willing to express their views in
a firm and forthright manner where company executives seek to engage in
conduct likely to damage the company.
Be quick and organised

[57.30] Identifying the relevant issues quickly is crucial. An in-house corporate lawyer
is often faced with a concerned and frustrated internal client who does not
understand the legal ramifications of what he or she has done or proposes to
do. Accordingly, you must be able to quickly ascertain legal issues by asking
the right questions and explain the position clearly to the client.
________________________
4 J Weingarth, “Business Ethics and the In-house Lawyer: What Ought One to Do?” (1997) 7(3) Australian Corporate
Lawyer at 24.
381
Internal clients often need an immediate answer, which means in-house

lawyers must have a working knowledge of a broad range of areas of the law
relevant to the company’s business and have the courage to back their judge-
ments. You must be able to advise on the spot.
In-house corporate lawyers must also be proactive. They must have an
ability to identify potential problems in order to avoid them and are often
expected to offer solutions where a certain course of action cannot be imple-
mented. You should develop procedures that will assist your internal clients
in performing their functions. These can take different forms, such as regular
meetings to discuss current and proposed projects, training sessions and
presentations on current and future legal developments.
Often working to tight deadlines determined by internal clients, in-house
corporate lawyers must be highly organised and able to prioritise.
Flexibility
[57.35] In-house corporate lawyers must have sufficient technical legal expertise and
the personal and managerial skills to be able to work autonomously and take
responsibility for their own files. At the same time, work as an in-house cor-
porate lawyer involves working in a team and, in many cases, as an integral
part of that team in driving a project.
So, you must be flexible and responsive. The business environment is an
ever-changing one. As the company’s business and external demands change,
the in-house corporate lawyer must quickly accept and respond to these
shifting “goal posts” and respond quickly when different issues erupt
throughout the day. You must be willing to work out of your comfort zone,
often on unfamiliar areas of law.
You must also be able to work within budgetary constraints. While lawyers
in private practice often focus on generating revenue, in-house corporate
lawyers focus on cost reduction. This means that you should be able to judge
when it is appropriate to obtain external advice, as opposed to completing
the work internally.
Lifestyle advantages
[57.40] The lifestyle advantages of being an in-house corporate lawyer are many.
Generally, in-house corporate lawyers do not have to account for the time
that they spend while at work to the same extent as lawyers working in pri-
vate practice. The pressures of meeting billable targets, engaging in client
marketing activities and being a hostage of one’s timesheet are usually not
present.
Large corporations are often more amenable to flexible work hours and to
part-time work. Similarly, you are likely to have greater control over your
382
days and more autonomy. For example, as an in-house corporate lawyer, you
may have the luxury of choosing how to be involved in a particular project
and whether you take a “hands on” approach. More labour-intensive work,
or less interesting or technically difficult work, can usually be briefed out to
external lawyers, giving you greater opportunity to focus on project manage-
ment and what you feel are the more interesting aspects of the matter. The
above advantages, however, are not universal. Depending on the economic
climate, an internal legal department’s budget may be reduced, requiring in-
house corporate lawyers to perform many tasks personally, which increases
the hours worked and reduces the job satisfaction.
Get closer to your client’s business and be part of the team

[57.45] While lawyers in private practice may see different aspects of a client’s
business on each matter, as an in-house corporate lawyer, you have a greater
opportunity to understand, be involved in and be integral to your employer’s
business.
Being located in the corporation enables in-house corporate lawyers to see
and appreciate first-hand the environment in which their clients operate. For
in-house corporate lawyers, the physical proximity to their internal clients af-
fords them a greater opportunity to bond with, and develop a closer business
relationship with, their internal clients. Understanding clients’ motivations,
and the parameters in which they work, gives in-house corporate lawyers a
greater appreciation of the needs and requirements of their clients. Attor-
neys in private practice, on the other hand, no matter how knowledgeable
they may be on the law, are perceived as being one step removed from their
clients and their clients’ business.
As an in-house corporate lawyer, you are part of a team solving real prob-
lems. You are encouraged to offer not only legal advice, but also opinions on
other aspects of the matters you are handling. This enables you to combine a
mix of skills and to develop non-legal skills. In addition, you can see your ad-
vice in action and therefore have a greater sense of ownership of what you
do. This contrasts with the role of a lawyer in private practice who works for
multiple clients.
Also, you have a greater opportunity to deal directly with senior executives
of the company for which you work. You have more visibility in the company
because you are involved in projects from start to finish and have a unique
opportunity to take a lead role in negotiations with other parties.
Variety and opportunity

[57.50] A broader variety of work comes across the desk of an in-house corporate
lawyer. Because you are involved in a variety of matters, your abilities to
quickly identify issues and manage different projects will be refined.
383
Many career opportunities exist not only within the internal legal depart-
ment of the organisation, but also to move into more commercial roles, cul-
minating in leading a department or even the entire organisation.
When briefing out to external lawyers, the in-house corporate lawyer is ef-
fectively the client of the external lawyer, which means you are treated with
respect and are made to feel important. It feels good to be on the receiving
end of the long-standing legal principle that “the client is always right”!
Disadvantages of being an in-house corporate lawyer

[57.55] For in-house corporate lawyers there is often less support within the organi-
sation in terms of legal and non-legal resources compared to private practice.
For example, secretarial support, legal precedents, law reports and legal edu-
cation programmes are usually not as plentiful as in a private legal practice.
Unlike the hierarchy of private practice, where often work is checked by a
professional assistant or associate and then a partner, there is a greater risk
that an in-house corporate lawyer may provide advice that is incorrect. This
risk comes with the autonomy of the role, not having partner supervision and
being required to provide advice on the spot.
Working in a company can involve exciting career prospects, but may lack
automatic career progression. More often than not, private practice lawyers
are acknowledged as gaining seniority each year and their salaries increase
accordingly. In-house corporate lawyers, on the other hand, are not auto-
matically promoted each year and their salaries usually do not increase at the
same rate as their colleagues in private practice.
In-house corporate lawyers may have to spend time on work which is re-
petitive, less interesting and generally below their level of expertise if such
work cannot be briefed out to external lawyers due to budgetary or other
constraints. In contrast, attorneys in private practice are often able to dele-
gate such work to more junior practitioners.
Some legal skills, such as drafting and research skills, may be lost by in-
house corporate lawyers if their practice is to brief these matters out to ex-
ternal lawyers. However, what is lost in this respect is replaced with fine
tuned managerial skills.
If an in-house corporate lawyer is involved in, and manages, a broader va-
riety of work and does less research, he or she may lose some of his or her
specialised technical legal expertise.
The sheer volume of work that is often required of in-house corporate law-
yers may necessitate the briefing out of work that they would otherwise like
to do themselves if they had time.
384
Preparing to be an in-house corporate lawyer

[57.60] In-house legal work combines the intellectual challenge and professional
discipline of the law, with the “cut and thrust” of commercial life. Most in-
house corporate lawyers have generally worked in private practice before re-
alising that they want to get more involved in the business of their clients.
For those wishing to pursue a career as an in-house corporate lawyer, it is
best to gain experience in a corporate law firm first. Technical legal expertise
gained from working in a law firm is a valuable prerequisite to working as an
in-house corporate lawyer. In addition, knowledge of the market in which
companies operate is extremely valuable. Knowledge and experience gained
through further study, involvement on committees and in volunteer work are
also valuable in any organisation.
Comparison with other career options

[57.65] Given the greater focus of an in-house corporate lawyer’s work on managing
people and projects, rather than being a technical legal practitioner, you may
be better suited to a career in-house if you have these personal skills and at-
tributes. Conversely, those who prefer the technical side of the law such as
research, drafting and advising may be better suited to a career in private
practice or at the Bar.
In-house corporate lawyers usually have the opportunity of moving into
other roles in the internal legal department. This is common in large organi-
sations, such as large publicly listed companies which have significant legal
departments. In contrast, it becomes more difficult in private practice to
change legal specialties, the more senior you become. Similarly, there are
great opportunities for in-house corporate lawyers to move into commercial
roles at a later stage. This is not uncommon in recent times as in-house cor-
porate lawyers develop a close rapport with their internal clients and, in do-
ing so, learn a great deal about the entire organisation. Accordingly, in-house
corporate lawyers tend to be perceived as more commercially focused than
their private practice counterparts. This makes the transition to a commercial
role within the company easier.
Corporations tend to be more encouraging of their lawyers to have a bal-
anced life and pursue interests outside of their workplace. Further, they also
tend to be more flexible than law firms in accommodating more unconven-
tional working hours, such as part-time work and flexi-time. In some cases
they also have better maternity leave policies. A survey of solicitors in New
South Wales in 2000 revealed that more respondents working as in-house
corporate lawyers expressed satisfaction in terms of work/life balance than
their colleagues in private practice.5 This may reflect the more flexible work
arrangements available to in-house corporate lawyers.
________________________
5 Law Society of New South Wales, After Ada – A New Precedent for Women in Law, 2002, p 13.
385
While, generally speaking, salaries may not be as high for in-house corpo-
rate lawyers as their colleagues in private practice, the advantages of working
in-house, particularly the improved lifestyle considerations, are balanced
against the income differential. Flexible salary packaging is often offered to
in-house corporate lawyers. Valuable non-salary benefits, such as cellphones,
employee share schemes, company cars and subsidised products and ser-
vices, are often made available.
In-house corporate lawyers: conclusion

[57.70] Working as an in-house corporate lawyer enables you to straddle law and
business and improve your commercial skills. Where you perform some of
the legal work yourself and brief out the rest, you can experience being both
a lawyer and a client. Apart from prospects in the law, there are also oppor-
tunities to advance your career in management and other non-legal areas
within your company.
386
Chapter 58
Working as an in-house government
lawyer
“The illegal we do immediately.
The unconstitutional takes a little longer.”
Henry Kissinger, quoted in “Lawyers: Jokes, Quotes, and Anecdotes 2003 Calendar”,
In-house government lawyers: introduction

[58.05] Working as an in-house government lawyer is another career option available
to members of the legal profession. Given the reach of government regula-
tion in so many aspects of our daily lives, government departments are a sig-
nificant consumer of legal services. There are therefore various roles
available for lawyers who wish to work in-house in federal and State govern-
ment departments.
Role of in-house government lawyers

[58.10] The role of an in-house government lawyer is, in many ways, similar to that
of an in-house corporate lawyer: see Chapter 57. Like corporations, govern-
ment departments derive benefits such as the convenience, availability and
reduced costs from having an in-house legal department, compared with
briefing external law firms.1 An in-house corporate lawyer provides legal ad-
vice and services to the corporation for whom he or she works, while an in-
house government lawyer provides such advice and services to a government
entity. The main difference lies in the focus of the legal work. While govern-
ment departments implement government policy, corporations seek to in-
crease shareholder value. This difference in focus means that it can some-
times be more difficult to objectively measure success in a government
organisation.
________________________
1 S Gath, “Managing the In-house Legal Function in an Environment of Contestability” (1999) 91 Canberra Bulletin of
Public Administration at 23.
387
The role of an in-house government lawyer will vary markedly across dif-
ferent departments and across different roles within these departments. Ac-
cordingly, the observations made in this chapter are of a general nature and
may not apply to all roles that are held by in-house government lawyers. The
focus of this chapter is on exploring the role of those lawyers who decide to
work in-house at a government department. While many of the remarks will
also be relevant to those employed at the State Attorney’s offices, the offices
of the Director of Public Prosecutions, the National Prosecuting Authority, or
the Legal Aid Board, this chapter does not specifically deal with such posi-
tions. The work of a lawyer at the State Attorney’s office, for example, is in
many ways similar to that of a lawyer in private practice.
The role of an in-house government lawyer is to assist in the functioning of
the government department, and find solutions to the legal problems faced
by the government clients. The clients are the departmental staff who re-
quire legal advice for the discharge of their duties.
Key government practice areas

[58.15] The work of an in-house government lawyer is extremely varied. The work is,
however, likely to involve more government-related law than would be the
case in private practice. For example, areas such as access to information,
government appropriation of money, constitutional law and international
law, while also present in private practice, are more likely to be encountered
in a government department. One area of law that is especially prominent in
government departments is administrative law, which affects all government
decision-making. However, the focus on government-related areas of law
does not underestimate the relevance of other areas of law in the practice of
a government lawyer. For example, there are some government lawyers who
may deal with commercial law in their particular department, but in general
there remains less exposure to this type of law in government roles.
Nature of work of in-house government lawyers

[58.20] In terms of the daily work as an in-house government lawyer, a significant
amount of your time is likely to be spent making or reviewing government
decisions or providing advice on these decisions. All government depart-
ments are charged with making decisions and there are often provisions for
these decisions to be reviewed within the department and by external tri-
bunals. For example, most government departments will have a section
which is responsible for managing requests for access to information made
by members of the public. Upon receipt of a request for documents, an in-
house government lawyer may advise on the documents that should be re-
leased and those that are exempt from release. If the decision that is made is
later challenged in a tribunal, an in-house government lawyer may be
388
Chapter 58: Working as an in-house government lawyer
responsible for defending the decision or briefing external lawyers to assist

with this process. In-house government lawyers may also be defending deci-
sions if they are judicially reviewed. Accordingly, many in-house government
lawyers have a significant case load of matters for which they are responsi-
ble.
Where you have a significant workload, you will need to decide whether to
conduct certain legal work yourself or engage external lawyers to assist. Ex-
ternal law firms are often engaged where there are time-consuming complex
legal issues or where significant court or tribunal preparation is required.
Preparation of legislation and regulations

A government lawyer may also be involved in the process of preparing
legislation and regulations. The preparation of such instruments is the critical
step of translating government policy into law. As part of this process, an in-
house government lawyer will have to be familiar with government policy
and be able to instruct parliamentary counsel to draft the legislation.
A government lawyer will also, in some cases, prepare supporting docu-
mentation such as explanatory memoranda and second reading speeches for
the Minister.
Advising your Minister

Your role may also involve advising the Minister responsible for your
department or appearing before parliamentary committees to explain gov-
ernment policy. If, for example, it is your responsibility to draft particular
legislation, you may have to brief the relevant Minister on the progress of
this work.
You may also be asked to formulate a government policy working paper.
Accordingly, your role will provide you with the opportunity to contribute to
significant change by being a part of the machinery of government policy
making. Work which involves policy formulation and advice is less likely to be
briefed out to external lawyers given the sensitive nature of this work.
Managing risk
Another aspect of your work as an in-house government lawyer is to
anticipate and manage legal risks before they become problems for the
department.2 This may involve preparing manuals and procedures to ensure
that government decision making meets certain criteria. This proactive work
is an essential aspect of your work as an in-house government lawyer and
helps avoid potential liability and later expense for the government.
________________________
2 S Gath, “Managing the In-house Legal Function in an Environment of Contestability” (1999) 91 Canberra Bulletin of
Public Administration at 23, 27–28.
389
Advantages of working as an in-house government lawyer

[58.25] Many of the advantages that apply to working as an in-house corporate
lawyer (see Chapter 57) also apply to working as an in-house government
lawyer. Unlike those lawyers who choose to work in private practice, gener-
ally in-house government lawyers do not have to account for their time in
billable units. As all your work is for the one client, the department, there is
not the same need to account for your time.
An associated benefit of the absence of billable hours and the fact that
your employer is the government is that the hours you spend at work are
generally less than your colleagues in private practice. There are often pro-
grammes in place in government departments, such as flexi-time and time in
lieu, which compensate you for any additional hours spent at work. Such fac-
tors mean an in-house government lawyer may benefit in terms of his or her
lifestyle. There are also opportunities to work on a part-time basis.
One of the main attractions for those wishing to work as a lawyer in a gov-
ernment department is the exposure that you receive to areas of law that are
not traditionally encountered in private practice. For example, your exposure
to constitutional law and international law is likely to be greater than a col-
league who practises in a commercial law firm. You may have the opportu-
nity to be a part of a team negotiating a multi-lateral treaty or advising on
matters of international humanitarian law, tasks that are generally out of
reach for lawyers in private practice.
For many, a further advantage of working as an in-house government law-
yer is that there is less of a focus on increasing shareholder value and more
of a focus on matters such as improving the community and effecting positive
change. Much of your work is likely to involve the formulation of government
policy or its implementation in statutes and regulations.
If you have an interest in the political process, life as an in-house govern-
ment lawyer holds many advantages. You will have the satisfaction of seeing
policy become law, the interaction with Ministers and Members of Parlia-
ment and your work may even involve appearing before parliamentary com-
mittees.
Disadvantages of working as an in-house government

lawyer
[58.30] While it may be exciting to some, a potential disadvantage of working as an
in-house government lawyer is that there is an increased possibility that your
work will end up on the front page of the newspaper. Your work is more
likely to be heavily scrutinised and criticised by the media. Some of this criti-
cism may be unjustified but nevertheless you are likely to have to deal with
the increased exposure that your work will receive.
390
Chapter 58: Working as an in-house government lawyer
As an in-house government lawyer you are also more likely to be subject to

the politics of the day; if the Minister responsible for your department is be-
ing questioned on a political issue on that day in Parliament, you may be re-
quired to put your other work on hold to assist him or her in preparing for
the questions.
If you have a significant caseload, which is likely if you are responsible for
government decision-making on a particular topic, you may find that some of
the more interesting legal work has to be briefed out to external lawyers.
While this will reduce your stress, it will also mean that some of the interest-
ing aspects of practice are taken out of your hands and you may be left with
more repetitive administrative tasks.
Some in-house government lawyers find that, as public servants, they
sometimes face frustrating bureaucratic rules and practices. One common
area of complaint is the process of promotion, which can be less flexible than
private practice.
Another area of complaint is remuneration. As an in-house government
lawyer, there is a prospect that your salary package will be lower than your
colleagues in private practice.3
Preparing to be an in-house government lawyer

[58.35] There are no set career paths or prerequisites to life as an in-house govern-
ment lawyer. Rather, if your interests lie in areas of law which are govern-
ment-related such as, for example, access to information, constitutional law
or administrative law, you may be well-placed to work in a government de-
partment. Furthermore, if you have an interest in politics and in government
policy, life as an in-house government lawyer may be for you.
If you intend to work in the public service, it may be advisable to undertake
subjects which will assist you with this career option while at university. For
example, in addition to compulsory subjects such as administrative law and
constitutional law, you may wish to undertake optional subjects which com-
plement these, such as advanced public law subjects and international law.
You should also consider whether to undertake another course together with
your law degree and, if so, in which discipline. For example, if you also com-
plete a Bachelor of Science, you may be well prepared to gain employment in
a department such as the Department of Education and Training, or at the
Department of Science and Technology.
Working as an in-house government lawyer may be a good stepping stone
to other roles in the public service. It may also prepare you for a career as a
parliamentarian or as a ministerial adviser.
________________________
3 “Government Lawyers – Passion for the Public Interest” (2003) 77(8) Law Institute Journal at 23.
391
In-house government lawyers: conclusion

[58.40] Working as an in-house government lawyer offers the opportunity to in-
fluence the formulation of public policy or contribute to changes in statute
law. You are also likely to have exposure to the political process and be in-
volved in high-profile matters.
392
Chapter 59
Working as an academic lawyer
“A law school professor said to a graduating class, ‘Three years ago, when
asked a legal question, you could answer in all honesty, ‘I don’t know.’
Now you can say with great authority, ‘It depends.’”
Academic lawyers: introduction

[59.05] Academic lawyers are often one of the first influences on a budding lawyer’s
career. All lawyers, no matter what their subsequent career path, will have a
story or two about an academic lawyer who taught them or had an influence
on their choice of career.
Working as an academic lawyer is a further career option that is open to
those in the legal profession. Maybe you will one day be the person who has
an impact on an aspiring lawyer while they are at university!
This chapter considers life as an academic lawyer and its benefits and com-
pares this career path with other career options.
Role of academic lawyers

[59.10] An academic lawyer performs a variety of tasks. Generally, your day will
involve the pursuit of your research interests as well as preparing for, and
taking, a number of classes. You will also have the opportunity to present
your research at regular conferences in South Africa and overseas, as well as
to other members of the law school in which you work.
While the responsibilities of academic lawyers will vary across different
universities, they are generally expected to teach for approximately 25% of
their time. This amounts to teaching two or three different classes of stu-
dents. A similar amount of time is also likely to be spent on preparation for
these classes and on correcting exam papers and written assignments. As
part of preparation for classes an academic lawyer is expected to work with a
team of lecturers and organise the content of study programmes in a collabo-
rative manner. The balance of an academic lawyer’s time is spent on research.
393
Within the constraints imposed by the university in which you work, as an

academic lawyer you will have the opportunity to choose the areas in which
to specialise. Accordingly, academic lawyers generally teach and research in
the same area. While some academic lawyers choose from an early stage in
their career their field of expertise, others discover this at a later point in
their career. The fact that academic lawyers teach in the areas in which they
research means that students become the ultimate beneficiaries of their ex-
pertise in a particular field.1
Academic lawyers are generally expected to submit a number of articles to
refereed academic journals on an annual basis. Not only is this perceived as
important to ensure that the academic lawyer keeps abreast of develop-
ments in his or her field, but such publications increase the profile of the uni-
versity for which the academic lawyer works.
In addition to these teaching and research responsibilities, an academic
lawyer is also expected to be a member of a number of committees within
the law school, such as undergraduate studies committees, equal oppor-
tunity committees and faculty boards. It is important that academic lawyers
are members of such committees to ensure that they contribute to the de-
velopment of new courses and programmes and to the general administra-
tion of the law school.
Academic lawyers: benefits

[59.15] There are numerous benefits to being an academic lawyer. Most academic
lawyers say that their autonomy is the main benefit of their job. Academic
lawyers are immune from the demands of clients. As a result, an academic
lawyer is in more control of his or her work and can develop research inter-
ests free from external pressures. There are no timesheets and no late night
phone calls from clients! This independence may enable an academic lawyer
to choose to specialise in an area which may not be well-remunerated in pri-
vate practice.
Flexible work environment
An academic lawyer generally has a very flexible work environment. A
university lifestyle is often supportive of part-time work and is generally
conducive to a balanced work and family life. Provided that academic lawyers
satisfy their research and teaching responsibilities and attend university
when required, there often exists the possibility of working from home while
preparing for classes, correcting work and undertaking research. This is made
easier by technological advances (see Chapters 45, 52 and 53) that allow
academic lawyers to access research tools and email facilities while outside
of their university office.
________________________
1 P Birks, “The Academic and the Practitioner” (1998) 18 Legal Studies at 397, 410.
394
Chapter 59: Working as an academic lawyer
The inherent flexibility of life as an academic lawyer also enables some

academic lawyers to undertake other work in addition to their responsibil-
ities at university. For example, many academic lawyers are able to work in a
consultancy capacity with law firms or undertake work at the Bar. Academic
lawyers are particularly sought after for their advice in areas in which they
have a widely recognised reputation as evidenced by their publication his-
tory. While it is often difficult to balance life as an academic lawyer with pri-
vate practice or the Bar, the flexibility to do so is a great attraction for many
budding academics.
Diverse workload
Another benefit of working as an academic lawyer is the diversity that you
find in your daily work. Each day involves a mix of different activities and
challenges. There is not only variety in terms of your work, but, as an aca-
demic lawyer, there is an inherent diversity by virtue of the many different
students you meet with on a daily basis.
Contact with students

The contact with students, from undergraduate level through to post-
graduate level, is a particular advantage of working as an academic lawyer.
This contact can be extremely satisfying as you see the development and
progress of students as they undertake their studies. Further, you can often
have a significant influence on the career decisions of aspiring lawyers and
encourage them to make the most of their abilities. Being a part of the
education of future members of the profession is inspiring and enables you
to have a direct impact on the lives of students.
Research
There is great satisfaction in the broad impact that an academic lawyer’s
research can have on the community. Academic contribution is essential to
the development of the law in South Africa just as it is essential in the rest of
the world.
Interaction with other lawyers

Many academic lawyers thrive in the collegiality of work in a university
environment. Not only are there other staff with whom to work as a team in
preparing classes and undertaking research, but there is also a great pool of
legally talented people with whom to share ideas. Academic lawyers are also
members of a wider global community of people with whom they can share
their research and ideas. An added advantage of this is that academic lawyers
often have the opportunity to travel to conferences, or to work at an
overseas university as a visiting staff member. Such opportunities are
encouraged, and sabbatical leave is often also available, enabling you to
spend some months at another university.
395
Academic lawyers: disadvantages

[59.20] With the benefits of life as an academic lawyer come some pressures. For
example, universities expect staff to publish articles regularly. Much of a uni-
versity’s funding depends on the amount of research that is undertaken by its
staff members and, accordingly, faculties will often place pressure on staff to
maintain, or improve, their research workload. Universities are being man-
aged in an increasingly corporate manner and more research means more
funding, which can have the effect of placing additional stress on academic
lawyers.2 Your promotion to different positions in your university will often
depend on research output.
Like all jobs, the role of an academic lawyer does have some more tedious
aspects. For example, many academic lawyers say that the marking of exam
papers is the most tedious aspect of their job. Exam correction is also a pe-
riod during which academic lawyers are under intense pressure to finalise
students’ results in a short period of time.
Comparison with other career options

[59.25] As a general rule, an academic lawyer has more control over his or her daily
work than members of the legal profession who work in private practice. This
is because academic lawyers are not at the behest of their clients. Despite
enduring certain pressures from students, and from the university for their
publications, they still retain more control over their daily work.
Academic lawyers usually earn less than their colleagues in private prac-
tice. Many academic lawyers feel that this lower rate of pay is compensated
by the increased flexibility of their work at university. As outlined at [59.15],
some of the shortfall in your earnings as an academic lawyer can be made up
by undertaking consulting work with a law firm or accepting briefs at the Bar.
While some draw an analogy between advocacy at the Bar and teaching in
a law school, such differences are more apparent than real. Academic law-
yers who have also practised at the Bar often say that the two pursuits are
vastly different. Presenting before a judge or before a group of students re-
quires a thorough understanding of your audience and such is the chasm be-
tween the two audiences that the similarities are few. Nonetheless, often
those who are confident on their feet as advocates will also bring that same
confidence to the classroom setting.
If you have been successful as an academic lawyer, the ability to move to
full-time work outside of the university is sometimes easier. For example,
some successful academic lawyers have later moved to the Bar and then, in
some cases, assumed judicial office. It is more common for academic lawyers
________________________
2 R Collier, “The Changing University and the (Legal) Academic Career – Rethinking the Relationship Between
Women, Men and the ‘Private Life’ of the Law School” (2002) 22(1) Legal Studies at 1, 14–21.
396
Chapter 59: Working as an academic lawyer
who wish to change career paths to move to the Bar, rather than become at-
torneys. This may be because, as an academic lawyer, you have significant
autonomy in your day-to-day existence, an attribute also true of the Bar.
Preparing to become an academic lawyer

[59.30] If, during your undergraduate studies, you enjoy the stimulation of legal ideas
and the study of law, a career as an academic lawyer may be appropriate.
The pursuit of a career as an academic lawyer, however, is not a simple one.
In order to become an academic lawyer it is essential in almost all cases to
undertake some postgraduate studies. Academic lawyers are increasingly ex-
pected to have, or at least commit to the completion of, a Doctor of Philoso-
phy degree and to have demonstrated a firm commitment to furthering their
academic qualifications.
As well as significant academic qualifications, a history of publishing sev-
eral articles in respected law journals is well regarded. As a result, those
wishing to pursue life as an academic lawyer should begin publishing articles
at the earliest possible opportunity. Ideally, this would involve attempting to
publish papers while a student.
Not only must these academic qualifications and publications be well re-
garded, but they must demonstrate a particular expertise in an area. To ob-
tain employment in a university, it is important to have a particular expertise
in which you hope to publish and teach. Universities are unlikely to employ
an academic lawyer who markets him or herself as a “jack of all trades but
master of none”.
For those considering a move into academia from another field of the pro-
fession, it is common to begin teaching on a part-time basis. In addition to
this part-time teaching, those intending to pursue a career as an academic
lawyer often begin to publish articles and thus demonstrate their expertise in
an area of law.
Academic lawyers: conclusion

[59.35] The key advantages of working as an academic lawyer are the flexible work
environment, contact with students and more time to spend on researching
and debating legal issues. It is an attractive option if you prefer conducting in-
depth analysis of the law and publishing articles and books, rather than client
contact.
397
Chapter 60
Working overseas
“South Africa, my land”
Poem by Harry Cronje
The lure of working overseas

[60.05] Some South African lawyers will at some stage in their career be fortunate
enough to work overseas, either temporarily or on a more permanent basis.
Unfortunately work permits are not easily obtained if you are travelling on a
South African passport, which is a great shame.
Increasing globalisation is likely to continue to make the option of working
overseas popular.
This chapter discusses the experience of working overseas as compared to
practise in South Africa and provides some guidance for those who are think-
ing of heading overseas.
Benefits of working overseas

[60.10] Working overseas can have many benefits. The opportunity to live in a for-
eign city and to travel in another region, whether for work or pleasure, can
be exciting and is the driving force behind the decision for many young South
African lawyers to try and work overseas for a while. Stepping outside of your
“comfort zone” has the potential to contribute significantly to your personal
and professional development.
Remuneration
Financially the move is likely to be rewarding. Salaries for lawyers, relative to
the cost of living, can be much higher overseas than in South Africa.
Furthermore, in some countries such as, for example, Hong Kong and
Singapore, there will be more favourable tax regimes. Some firms, especially
those based in New York, also have a more structured approach to the
payment of substantial bonuses to lawyers. Additionally, there can be
financial benefits from transferring savings at the end of a stint overseas to
South Africa due to favourable exchange rates.
399
Change of direction
Deciding to move overseas can present you with an opportunity to change
the direction of your legal career. It may, for example, enable you to move
from private practice to an in-house corporate role or vice versa. You could
also try a different practice area.
Inevitably, it will take some time to become accustomed to practising law
in your new jurisdiction. This transitional time can be utilised to help you
change direction in your legal career. In larger legal markets such as New
York, London and Hong Kong, there will be more opportunities for you to
make this change.
Challenges of working overseas

[60.15] While there are many benefits to working in an overseas jurisdiction, decid-
ing to make such a big move will present challenges. There will be new laws
and procedures to learn. You will also need to adapt to a different office envi-
ronment with new colleagues and will have to establish a reputation in that
workplace. The degree to which your new legal and professional environ-
ment will differ from your South African experience will obviously depend on
where you decide to work overseas. In common law jurisdictions the laws
and processes you will encounter will be familiar and easier to adapt to than
those of a civil law jurisdiction. Working in a non-English speaking jurisdiction
will present its own challenges.
There are also issues regarding your qualifications. You may, for example,
need to pass rigorous qualification requirements, such as those that are set
by the Bar exam in New York.
Working overseas can present different styles of practice and challenges
which you may enjoy and which may invigorate your interest in the law.
However, if you are thoroughly dissatisfied with working as a lawyer in South
Africa, you are unlikely to find contentment in working as a lawyer overseas
doing essentially the same work. At best, you may find that this only prolongs
the time that you can bear being a lawyer.
If you practise overseas for a significant period of time, unless you make a
concerted effort, you may lose contact with the profession and legal devel-
opments at home. This can be addressed to some extent by maintaining a
profile at home, through keeping in contact with former colleagues and read-
ing or writing journal articles. You can also keep abreast of legal develop-
ments at home through the Internet and other electronic resources. If you
plan to return home, as most lawyers will, the loss of contact and profile in
South Africa may be of greater significance to you the more experienced and
senior you are.
Notwithstanding these differences and challenges, the rewards from work-
ing overseas are great. In fact, it is likely that after a period of time you will
400
Chapter 60: Working overseas
readily adapt to the new system. The overseas jurisdiction may become more
familiar to you than your “home” jurisdiction.
When should you work overseas?

[60.20] The ideal time to consider a move overseas is after you have worked for two
or three years as a qualified lawyer in South Africa. By this time you will have
acquired skills and experience that overseas employers will value. Addition-
ally, you should also have developed ideas about your interests and the di-
rection you would like to take with your career. On a personal level, a move
will also become more difficult, and less likely, with a family, which is a good
reason for considering an early move. While most lawyers who work over-
seas will do so within two or three years of becoming qualified at home, the
decision of when to make such a move will depend on your own individual
circumstances.
The decision of when to go will also be based, in part, on whether oppor-
tunities exist for you to work overseas. This will depend largely on the eco-
nomic climate of the overseas market of your choice, as well as your area of
practice.
Corporate and finance lawyers typically have the best prospects for secur-
ing overseas employment, particularly in a strong economic market. The lar-
ger law firms tend to focus on those practice areas, particularly mergers and
acquisitions. Fewer opportunities tend to arise in the more jurisdiction-
specific areas such as property law, employment law and litigation.
Preparing for the big move

[60.25] If you are thinking of moving overseas to work, there are many matters that
must be considered, for example:
l Are you interested in living in a particular foreign city? Why? What are
the experiences of people you know who have lived there?
l Are there barriers to your working in that jurisdiction, e.g. visa require-
ments, professional qualifications or languages? How can you overcome
these barriers?
l Would you like to work in an in-house corporate or government role or in
private practice? Do you want to do an internship? Are there oppor-
tunities to make a transition from what you are doing in South Africa to a
new position or practice area?
l How long do you intend to move overseas? If the move is permanent,
does the overseas position offer long-term advancement prospects?
l What size firm would you like to work with?
l Which firms are the market leaders in your area of practice?
401
l What level of experience will you be deemed to have in your new juris-
diction?
l What is your remuneration package (salary and bonuses)?
l How will your remuneration be taxed?
l What is the cost of living (especially rent, transport and food)?
l Will your overseas employer assist you, particularly with relocation logis-
tics and expenses, visas and temporary accommodation?
l Will your South African employer assist you, for example, with a leave of
absence, financial incentives and contacts to help you find overseas em-
ployment?
The decision to work overseas is a major one. You need to decide where you
want to live and work and whether the move is likely to keep you interested
and enhance your career. Before you embark on such a big move, make sure
you consider the answers to these questions or you may come to regret the
move.
Obtaining work overseas

[60.30] Ideally, you should obtain employment overseas while you are still working in
South Africa. This means that you will have a secure income when you come
to set yourself up in the foreign city, which can be a very expensive exercise.
Your overseas employer may also assist you with relocation expenses and
visa requirements and may even help you to find and pay for accommo-
dation.
Moving overseas without first securing employment can be a gamble. It
may also involve sleeping on a friend’s couch for a while! Notwithstanding
this, there are likely to be more opportunities for employment which are
open to you if you are in the country where your potential employers are.
This enables you to be interviewed in person and you will be ready to com-
mence work immediately. You will also have the benefit of experiencing the
country and meeting your prospective employers in person before commit-
ting to a job. While you are searching for permanent work, there may be
temporary legal work available.
There are recruitment agencies based in South Africa and overseas which
specialise in recruiting South Africans to work overseas and you should seek
their assistance as a first port of call. Alternatively, you can apply directly to
overseas employers. While both avenues are popular, if you intend to apply
directly to your prospective employer, it pays to have a contact within the
employer to whom you can direct your application in the first instance to en-
sure it arrives on the right desk. If it comes with a personal recommendation
from your contact, you are more likely to have a “foot in the door” for the
position.
402
Chapter 60: Working overseas
Interviews
[60.35] If you apply to work overseas from South Africa, it is common for the inter-
view process to be conducted by video conference. Some firms, particularly
US firms, tend to require a face-to-face interview. Aside from the vagaries of
using video conference technology in an interview setting, the interview and
selection processes are likely to be similar to an application for a local posi-
tion. Overseas employers will look for the same attributes, skills and experi-
ence in job applicants as South Africa employers. While it is unlikely you will
be expected to know the local laws, it will certainly assist your prospects of
securing employment if you can demonstrate some knowledge of the over-
seas legal market and practice. In this regard, the Internet is a valuable re-
source, as is any information that you can learn from friends who may be
working in that jurisdiction or from recruitment agencies.
It is also essential in interviews that you show some enthusiasm for the city
in which you are looking to live and work. Overseas employers will be inter-
ested in why you want to move and how long you intend to stay. They will
probably not be looking for a long-term commitment from you and they will
probably not believe you if you do espouse such a commitment. They will
wonder why anybody would want to leave a country famed for its beaches
and long summers! What they will be looking for is an indication that you will
make a smooth transition into your new environment for a couple of years at
least. You can best demonstrate this by giving clear reasons for why you want
to live and work in the particular location.
Working overseas: conclusion

[60.40] If you are very keen to work overseas, it can be tempting to seize any oppor-
tunity that presents itself, without much regard to the location or the particu-
lar position on offer. This would be a mistake. The decision to work overseas
is a major one. You need to decide where you want to live and work and
whether the move is likely to keep you interested and enhance your career. It
is important that you get these decisions right, so you do not come to regret
the move.
403
Chapter 61
Survival kit for new lawyers
“Fasten your seat belts. It’s going to be a bumpy night.”
Bette Davis, All About Eve
Fear and folly

[61.05] Most of us have vivid memories of our early days in a legal office. Some
lawyers have felt sick in the stomach every morning before going to work.
Others have had nightmares throughout their first year in practice and what-
ever confidence they had begun with, was lost by the end of the year. Most
of us have felt desperately insecure, ill-trained and probably unsuited to
practise law.
Many new lawyers believe:
l Partners never make mistakes.
l They are nigh on illiterate when it comes to drafting correspondence or
documents.
l The most junior worker in the office knows more than they do.
l If a matter has the potential to go wrong, then it surely will.
l There are not enough years left in their miserable lives to enable them to
find out what legal practice is all about.
l It is an act of charity that their employers should pay them as they have
done nothing to deserve it.
Some home truths

[61.10] Well, take heart, all new lawyers, because it is not nearly as bad as you
imagine. Here are some reassuring and comforting thoughts:
l Partners make mistakes. The perfect lawyer has not yet been invented.
l While some of your draft documents and letters may be rough and ready,
it is much easier to correct settled drafts than approach the initial prob-
lem of creation.
l Close supervision tends to highlight shortcomings in anyone’s work. For
example, take the case of a partner or employee solicitor leaving a firm.
405
Immediately access is gained to that person’s files, it is rare that unblur-

red hindsight does not reveal at least one skeleton in the legal cupboard.
l Everyone has their own particular drafting style. Within certain limits
there can be many “right” versions of the same thing. However, when it
becomes a debate as to whether the word to be used should be “ob-
tained” or “got”, “acknowledged” or “received”, “taken” or “obtained”,
“dispatched” or “sent”, then the views of the correcting principal will in-
evitably prevail.
l Other more senior employees do make mistakes too, but:
— no-one scrutinises their daily work;
— experience gives you the know-how to retrieve many threatening
situations; and
— they are not under the searchlight that is directed at new lawyers.
l Most of the mistakes that you make do not matter because they are part
of your “learning curve”. Because you are supervised, you are in a situa-
tion where the most damage you can do is to your own ego. Remember
that any system of training contemplates inexperience and a need for su-
pervision. Presumably that supervision is designed to ensure that any
mistakes are caught early.
l Law firms generally make allowances for the fact that you are in a learn-
ing phase of your career. Accordingly, do not be afraid to ask for advice
and be receptive to constructive criticism. You will find that day by day
your legal skills will improve and both your confidence and ability will
grow.
l Alan Rosenberg, in an article on professional insecurity published origi-
nally in the New York State Bar Association Journal, said that over the en-
suing years his first impressions gradually changed: those around him
became smaller and less awesome. He eventually learned that practising
law is an intellectually humbling experience.
l Partners do know more than inexperienced professional assistants or as-
sociates, although they were once inexperienced themselves. This supe-
riority can be attributed to experience, which is another way of saying
that they made the same mistakes as you, only they made them some
years ago.
l I know of one lawyer who in his first year of practice was required to
write letters to a particular insurance company with a view to making
recommendations about both liability and quantum. One of the partners
used to redraft them with such fury that the lawyer used to think that as
a culmination of his rage, he would tear them to shreds, throw the pieces
on the floor and begin to jump up and down on them. As it was, once the
letters had been duly emasculated, they were sent to the partner’s typist
(because the typist was the only one who could read his writing) and
406
Chapter 61: Survival kit for new lawyers
were retyped in their amended form. The young lawyer would shed tears
of frustration, until one day, on the suggestion of a senior (and very sym-
pathetic) secretary he went to the partner and said: “OK, you have torn
all my efforts to bits. Now what about some positive advice on how I
should go about it?” The partner looked startled, but to his credit he
pulled out half a dozen letters that he thought were of an acceptable
standard and then he sat down and told the lawyer why letters should be
in that particular form. With that positive advice something that had be-
come a source of dread for the lawyer suddenly disappeared.
l Remember there are few mistakes that cannot be rectified, particularly at
the level of responsibility entrusted to you as an inexperienced lawyer.
New lawyers’ survival kit

[61.15] Here is a checklist to help you in your early days of practice:
l Ensure that you know precisely what you have been asked to do.
l Find out how long you have to do it.
l Know the facts of the file backwards, forwards and sideways.
l If in doubt about what your principal has asked you to do, do not guess.
Ask again or, if your principal is absent, seek help from another partner
or senior lawyer.
l Keep memos of your instructions from your principal.
l If a mistake is made and you believe you are being unfairly used as a
scapegoat, say so.
l If your letters are being butchered and you do not know why, find out.
l New lawyers have been known to be right about some things – if you be-
lieve you are right, say so. The corridors of legal offices are strewn with
the egos of new lawyers who did not continually stick up for themselves
when the going got tough.
l Seek out mentors who will help you to make the transition from nervous
novice to confident new lawyer.
l Learn from those around you and enjoy the challenges of learning – prac-
tice does get easier with time.
407
Chapter 62
Women in the law
“The peculiar qualities of womanhood, its gentle graces, its quick sensibil-
ity, its tender susceptibility, its purity, its delicacy, its emotional impulses,
its subordination of hard reason to sympathetic feeling, are surely not
qualifications for forensic strife.”
Re Goodell, 39 Wisc 232 (Wisconsin SC, 1875) per Ryan CJ Quoted in D Weisbrot,
Australian Lawyers (1990), p 84
Status of women lawyers

[62.05] Notwithstanding that more women are breaking through the glass ceiling and
assuming positions of importance in the legal profession, true equality is still
a goal rather than a reality.
The legal profession has been known as a male preserve. Thankfully, this is
no longer an accurate description of the profession as a whole. However, as
this chapter demonstrates, there remain unacceptable disparities between
the position of males and females in the profession.
While in past decades the focus was on the identification of discriminatory
practices against women, the focus now lies on the elimination of the dis-
criminatory practices that remain. The elimination of any discrimination in
the legal profession is not only the province of legislators and professional
bodies, but it is the responsibility of all members of the profession, whether
male or female.
Women in the legal profession

[62.10] Women lawyers have, for some time, represented about fifty per cent of
students attending law schools in South Africa. On the whole, women repre-
sent approximately twenty percent of practitioners.
The representation of women in high academic positions and at partner-
ship level in law firms remains woefully lower than their male colleagues. In
terms of appointments to judicial office, there also remains a disparity be-
tween male and female judicial officers despite a concerted effort on the part
of some governments to rectify this situation. The problem of significant
female graduates from our law schools without a corresponding number in
409
senior positions in the profession has been described as a “clogged pipe-

line”.1 This theory posits that three to five years after admission the percent-
age of women remains disproportionately lower in terms of income and
status in private firms, government, academia, the Bar and judiciary, com-
pared to males who began to practise at the same time. The challenge for the
legal profession is to remove the “clogging” in the pipeline which prevents
women achieving success in their chosen profession.
In some circles there remains a misconception about the areas of law in
which women practise. People assume that women practise law in “female-
friendly areas” only, such as family law, conveyancing and deceased estates.
There are many successful women practitioners in other areas of law, includ-
ing previously male-dominated areas, such as corporate law.
Problems and prejudices

[62.15] Even though advances have been made, there remain problems and preju-
dices which women lawyers must deal with on a daily basis.
Some conservative male practitioners argue that women are not suited to
particular areas of practice because they lack experience. This argument is
dependent upon the same practitioners refusing to give women the basic
work to allow them to overcome this inexperience. It is a self-fulfilling proph-
ecy! While the practice of law does not require physical strength, there still
seems to be a veil of tradition and prejudice in some quarters which must be
lifted by female lawyers. These prejudices belong to a past era and the best
way for you to avoid being stereotyped and confined to so-called “feminine”
areas of legal practice is to make known your areas of interest and seek op-
portunities to demonstrate your skills in those areas.
A further excuse used covertly by some practitioners to deprive women of
equal career opportunities is that women have domestic chores and child-
raising responsibilities and are therefore unable to work the same number of
hours as men. In most cases this is a myth. The ability to work hard is not de-
pendent on gender but rather on one’s personality, career aspirations and
lifestyle choices. Although employers are not permitted to discriminate in
staff choices on the basis of gender or domestic arrangements, there are less
obvious biases that continue to operate against women. For example, it is
suggested that some women who have worked in large corporate law firms
have left the profession because of exhaustion, burn-out and the inability to
combine work with any sort of social or family life.2
________________________
1 P Easteal, Less Than Equal: Women and the Australian Legal System (Butterworths, Sydney, 2001), pp 208–210.
2 Justice M Gaudron, “Speech for Women Lawyers Association of New South Wales 50th Anniversary Gala Dinner”,
13 June 2002, Sydney. See also H Meadows, “Flexible Work Practices: Individual Experiences” (1995) 69(7) Law
Institute Journal at 646.
410
Chapter 62: Women in the law
Child-rearing and maternity leave

[62.20] One of the greatest difficulties confronting women in the law is the issue of
having children and taking time off to look after them. Employers are re-
quired by statute to accommodate women’s decisions about children and
provide maternity leave. However, a decision to have a child is construed by
some employers as a decision to abandon your career.
While there are more opportunities for part-time roles at the start of the
21st century, some women decide to leave private practice upon starting a
family. In a study undertaken by Victorian Women Lawyers in 2001 it was re-
ported that one of the reasons women leave private practice is because of
the onerous work arrangements that exist.
The United States experience is that 70 per cent of male lawyers who leave
their firms go to work for other law firms, compared with only 37 per cent of
women lawyers who choose to work at other firms.3
Notwithstanding that social research demonstrates that women assume a
heavier burden in terms of child-raising, the challenge faced by women law-
yers to combine this with their daily practice of law has not been addressed
satisfactorily by all law firms.
The need for law firms to be more understanding of issues facing women
lawyers was highlighted in the Australian 1998 Human Rights and Equal Op-
portunity Commission case of Hickie v Hunt & Hunt [1998] HREOCA 8. In that
case the failure of a law firm to retain a certain volume and type of work for a
partner upon her return from maternity leave was held to constitute indirect
discrimination. Commissioner Evatt said at [4.6.6]:
“[T]here is a need for clearly defined maternity leave and part-time
work policies . . . Basic maternity leave policies should allow work prac-
tices to be developed which enable a partner, associate or employee
to maintain their professional career and practice during and after ma-
ternity leave, with the full support of the firm. Such policies should also
ensure that an employee’s or partner’s practice and support staff are
adequately managed in their absence.”
If you are contemplating working for a particular firm after becoming a
mother, you should make enquiries about the attitudes of that firm to
working mothers by speaking to women already working at that firm.
Consider the firm’s parental leave policies on its website. If the corporate
culture of the firm is not conducive to rearing a family, you should think twice
about joining that firm.
Sexual harassment
[62.25] Sexual harassment in the workplace is a form of bullying or exploitation
which can take place in any work situation where there is an imbalance of
________________________
3 Victorian Women Lawyers, Flexible Partnership – Making It Work in Law Firms, 2002, p 7.
411
power between people. All jurisdictions now have equal opportunity and sex
discrimination legislation which prohibits unwelcome conduct of a sexual na-
ture in the workplace
Future for female practitioners

[62.30] There are a number of advances to be made both institutionally and by
individuals to improve the position of women in the law.
The first occasion in which discrimination may be found is in a job inter-
view. While it is both unlawful and reprehensible to ask women about their
marital status and plans for having children, it still occurs. Other questions in-
clude “What does your husband think of you working?” and “What does your
husband do?” These questions are often prefaced with a seemingly innocu-
ous “just out of interest”. Although many women are aware that such ques-
tions are improper, they answer them anyway for fear of prejudicing their job
prospects. You should not answer such questions. One option is to politely
say that you have not given any consideration to the matter because it never
occurred to you that it might be relevant to your ability to perform your work
well. You may also give serious consideration to whether you wish to work
for a firm that asks such questions.
On an institutional level, law firms must implement equal opportunity poli-
cies to ensure that people are promoted on the basis of merit and that gen-
der plays no part in who is recruited or who is promoted.
Other positive steps to equality in the law include establishing mentoring
for aspiring young women lawyers so that they may have role models. The
appointment of more female judges is another way of offering such role
models, but also, more importantly, it promotes judicial diversity and ensures
there is female representation in the development of the law by judges.
At the Bar, positive steps must be taken to ensure that more women are
briefed and that they gain experience, so that they may assume roles as Se-
nior Counsel and, later, as judges. Other informal processes involve encour-
aging Senior Counsel to adopt the policy of having more women junior
counsel appear with them. It is also critical to remove any stigma which is at-
tached to women lawyers attending to family responsibilities.4
Be confident
[62.35] You should take positive steps to counter prejudices and discriminatory
practices when you come across them. Whether such practices are deliberate
or borne of ignorance, point out politely that they are unacceptable and try
to educate the perpetrator why they are counter-productive.
________________________
4 R Hunter and H McKelvie “Balancing Work and Family Responsibility at the Bar” (1999) 12(3) Australian Journal of
Labour Law at 167, 179–191.
412
Chapter 62: Women in the law
It is important for you to be confident and positive in job interviews, per-

formance reviews and in your daily work. Present your work and ideas confi-
dently and without apology. Do not focus unnecessarily on what you do
wrong at the expense of what you do right. All new practitioners make mis-
takes.
Like all professionals, you will gain respect based on the quality of your
work, rather than how expensive your clothes are and how well you smile.
Set about producing excellent work and presenting it to the best of your skills
and ability to impress your supervising partner and clients. Even the least
progressive male partner or client will recognise the benefit of having the
best lawyer working for them, irrespective of gender.
413
Part 9
Leaving the law – common legal
diseases
Chapter 63
Legal malaise
“Every calling is great when greatly pursued.”
Oliver Wendell Holmes, “The Law”, Speeches, 1913. Quoted in D Schrager and E Frost,
The Quotable Lawyer (1986), p 198
Career highs and lows

[63.05] The practice of law has many professional rewards but it is often very stress-
ful.
There will be times where you will be ecstatic with your work, such as
when you win a case for a deserving client against an aggressive and un-
worthy opponent. There will be other times where the pressures of work and
the inevitable injustices that occur will depress you and cause you to reflect
on alternative ways of making a living.
If you find that you no longer have faith in what you do, you should seri-
ously consider making a career change. Unless you remedy the situation
quickly, you may find that not only the quality of your work will suffer, but
also your health and your relationship with your clients, colleagues and fam-
ily.
In Part 9 I discuss some of the common legal diseases that afflict lawyers.
417
Chapter 64
Professional paralysis
“I like work: it fascinates me. I can sit and look at it for hours. I love to
keep it by me: the idea of getting rid of it nearly breaks my heart.”
Jerome K Jerome, Three Men in a Boat, Ch 15
Professional paralysis: introduction

[64.05] As a new practitioner you are unlikely to be familiar with the dreaded disease
“professional paralysis”. This chapter provides an insight into the disease and
how to cope with it.
Some years ago there was a case of an attorney who failed to answer more
than thirty letters which had been written to him by his Law Society in rela-
tion to a number of complaints. That inability to cope with correspondence
was matched by his inability to handle current files. The attorney said that
each time he received an envelope with the Law Society’s logo on the outside
he had begun to shake and he had a special drawer in his desk where he
placed the envelope unopened. He received letters from clients which he
could identify from the handwriting which he placed in another desk drawer
unopened. Irrespective of the horrendous consequences, he was physically
incapable of facing up to the contents of those letters and he hoped that they
would go away. He became a legal ostrich.
The failure of some solicitors to reply to correspondence is due to a dis-
ease, a terrible, debilitating psychological disease that virtually paralyses the
attorney whenever any pressure situation develops.
The complaint is unrelated to logic and can incapacitate any attorney,
young or old. The result is a total inability to cope with work pressure, a
growing heap of files in the “too-hard basket”, a multitude of dissatisfied cli-
ents, piles of unanswered correspondences and deep resentment of the tele-
phone.
Indeed, if all the time spent making excuses to clients and other attorneys
for inactivity were redirected towards getting on with the job, a partial recov-
ery would be possible.
It is a form of professional breakdown; a bewildering, mind-blurring con-
dition that is illogical, inexplicable and sometimes untreatable.
419
Symptoms of professional paralysis

[64.10] Because of its insidious nature and because it is frequently a lonely com-
plaint, a very private condition which cannot be shared with other practi-
tioners, professional paralysis is not always easy to diagnose. Some of the
symptoms are:
l File stagnation – You pick up a file and then put it down again. Then you
pick up another file and, without doing anything, put it down. You cannot
decide which file should receive precedence and in the end, none does.
l Unopened drawer of the filing cabinet – There is a standing joke about a
too-hard basket, but a symptom of the condition is an actual drawer in
the filing cabinet which you prefer not to open or are physically incapable
of opening. Some of the files become so pressing that you cannot bear
the sight of them and there is an increasing tendency to pretend that
they do not exist.
l Fast lane for the easy files – By doing the easy jobs, those that involve a
quick turnover and easy client satisfaction, you delude yourself that you
are on top of your practice. A check of the month’s earnings is used to
satisfy yourself that the practice is really healthy and has no problems. It
is a self-induced delusion.
l Excuses – To explain the inactivity in particular matters, you begin to
make weaker and weaker excuses to your clients. It becomes addictive.
At first the excuses are difficult, but then they become easier and easier.
When at first quick action could give reality to the excuse, the passing of
time makes that impossible. You become more reckless. Clients are told
that actions are set down for hearing in the full knowledge that within
weeks or months the client will be badgering you for a hearing date. Cli-
ents are told that conveyancing matters are ready for settlement, when
you know well there are problems associated with the transaction.
l Procrastination and explanation – You become involved in attendances
that do not advance the file at all. You do the easy peripheral things
without coming to grips with the real problem. Hours are spent on the
telephone, giving weak excuses as to why matters have not been at-
tended to. If that time were redirected into positive action, the difficul-
ties in the file might be overcome.
l Non-response – You do not telephone back; you do not answer letters.
You pull down the shutters and hope it will all go away.
Causes of professional paralysis

[64.15] The most difficult thing of all is to state definitely the causes of the disease. I
have seen it at close hand and the following is a list of some of its causes:
l Genuine overwork – Some attorneys believe that a successful practice
can be measured by the number of files in a filing cabinet. That overwork
420
Chapter 64: Professional paralysis
can lead to a convincing flow of easy work on the surface but with a se-
ries of more difficult files slowly slipping to the bottom of filing cabinets,
where they remain untouched.
l Incompetence in some areas – Some very competent and effective attor-
neys have an Achilles’ heel. For example, I have known attorneys who
have been excellent common lawyers, but utterly incapable of making
workers’ compensation applications. The result is that they concentrate
on the areas of the law in which they are very competent and hope that,
by some miracle, the areas in which they are less competent can be at-
tended to by negotiation or compromise, rather than through taking the
procedural steps necessary to advance the matter.
l Fear of losing clients – Whether due to greed or insecurity, some attor-
neys can never refuse a client. A dog-with-a-bone mentality develops and
all clients are accepted, whether the instructions involve a transfer of a
property in Constantia or a collision or a passenger liner with a fishing
boat: see Chapter 66.
l Lack of assistance – This particularly affects young attorneys who have
started their own firm from scratch and built up a reasonable practice but
yet are uncertain at what stage they should either take on an employee
attorney or a partner. If the decision is delayed too long, the swell of
work becomes overwhelming and the only way the attorney can cope is
by doing the quick, easy and profitable work at the expense of more diffi-
cult matters.
l Failure to come to grips with basic economics – Some attorneys who have
suffered from the disease have told me that they could not afford to put
on a locum attorney or engage an employee to handle a backlog of trou-
blesome matters. They seem incapable of appreciating that it is better to
pay someone R3 000 per week to complete and cost 50 difficult files
worth R250 000 than to allow those files to remain dormant and un-
costed.
l Psychological breakdown – Legal practice involves enormous stresses.
Those stresses are exacerbated by the competition within the profession
itself, the demands of clients and the strict requirements of courts and
public offices. All those pressures can lead to an attorney feeling utterly
beleaguered.
l Ego – I asked an attorney who suffered from the disease why, when he
realised that he was in great trouble with his practice, he did not consult
other practitioners and seek their assistance in matters which he was in-
competent to handle. He told me that such a step would humiliate him
and he did not want to become the subject of talk in his local profession
that he was incompetent or a bungler.
421
Treatment for professional paralysis

[64.20] Whether professional paralysis is terminal or can be treated depends on the
particular case. In the case of a total psychological breakdown, brought about
by overwork and work-related stress, some attorneys must clearly wind
down their practices and look for something easier to do.
I once knew an attorney who dreaded coming into the office and who
treated one drawer of his filing cabinet as though it contained a number of
anti-social vipers. He felt sick in the stomach when he walked into his office
and towards the end it became physically impossible for him to open some
files or to respond to correspondences about them.
On my advice he went into his office one Sunday morning, took every file
out of its cabinet and spread them in rows on the floor and sat down and la-
boriously went through each matter one by one. Seeing the files and physi-
cally handling them in an atmosphere where there was no telephone inter-
ruption or client pressure allowed him, for the first time, to identify some of
the horrors that he had on his hands. Once he had isolated those files he
classified them into those matters which he did not have the expertise to
handle, those matters where the delays were so bad that he could not re-
trieve them and those matters which only required something to be done
quickly. His actions included all the ingredients of trying to cope with profes-
sional paralysis:
l Physically face up to the problem, make time, open the file and find out
just how bad it is.
l If the problem is lack of expertise, agree with your client that you can
send the file to an attorney who specialises in the particular area of the
law and, irrespective of whether your client agrees that you may receive
any costs over and above the other attorney’s charges, get the matter
moving and completed.
l Where the file is entangled in a web of deception, get your client in, ex-
plain the situation without admitting liability and let him or her decide
whether he or she wants to take the file away or persevere with you
while you straighten out the matter. If you have prejudiced your client’s
position, suggest that he or she obtain independent legal advice. You
should also notify your professional indemnity insurer.
l Where the problem stems from overwork, telephone a legal employment
agency and endeavour to engage a locum or an employee attorney to
help you cope with the overall pressure.
l Share the problem with someone else. Talk to a friend. If you keep every-
thing to yourself, legal practice can be desperately lonely.
422
Chapter 65
“I can’t say no” syndrome
“I’m just a lawyer who can’t say no
I’m in a terrible fix
I always say come on let’s go
Just when I oughta say nix.”
(With apologies to Rodgers & Hammerstein, Oklahoma.)
Not saying no: introduction

[65.05] In considering the claims statistics published in respect of professional in-
demnity insurance policies each year or the number of defalcations which
have been committed by lawyers during the past decade, I can only wonder
how many of them would have been avoided if the lawyer in question had
shaken his or her head and sadly walked away.
The inability to refuse instructions or avoid making outlandish promises is a
prime cause of trouble, both in the area of professional negligence and defal-
cations.
When to say no: examples

[65.10] Here are some of the scenarios which occur again and again. Make sure you
are not one of these attorneys.
A badly overworked attorney is unable to cope with his or her day-to-day
practice. He or she has more files than a fruit cake smuggled into prison and
still clients come to him or her. Does he or she knock them back and say “I’m
sorry but I can’t handle the files I’ve already got”? No, he or she takes them
on board until unknowingly their files join the great morass of inactive mat-
ters in his or her filing cabinet. Somehow the attorney fondly believes that
some catastrophe will ensue should he or she turn a client away, or send that
client to another attorney who may either want the work or have the neces-
sary expertise to perform it.
The file miser – the attorney who collects files like some of us collect
books, stamps or butterflies – receives instructions for a difficult drainage
matter. Does the attorney say to the clients, “Look, I’ve only ever done one of
these and it’s not my area of expertise. You should go to see Roach & Roach
423
who are the best in the drainage game”? No, because of ego, avarice or stu-
pidity the attorney takes the clients on. And like most things that are beyond
our intellectual capacity, our experience or our workload, nothing occurs.
There is nothing as hard as the “too-hard basket”. And so the matter lan-
guishes there, until one day the clients no longer believe the half-baked ex-
cuses they have been served up. They become impatient and go to another
attorney who ultimately finds that the matter is hopelessly out of time and so
yet another claim is referred to the professional indemnity insurer.
When he was in third year, Jimmy Hayho was elected the most popular law
student. He loves being popular, he wants to please everyone and so what-
ever he is asked, he grants. Or at least he agrees to grant. No case is too diffi-
cult, no claim too small. His optimism is infectious. He is the most popular
lawyer on the block. He is incapable of breaking bad news to clients or of dis-
pleasing them by telling them that they are either wrong or that they have no
cause of action. Ultimately they are displeased, but some thousands of Rands
later.
Fiddling with the trust account

[65.15] Some attorneys develop reputations as money managers. When money is
almost unobtainable they keep their practices alive through their reputation
for obtaining funds at reasonable rates. Sometimes that reputation is justly
earned, but sometimes it is a fabrication.
Too many of the defalcations by attorneys are unrelated to any desire for
personal gain. Rather, they have been associated with a desire to achieve
personal popularity or a fear of losing the client to someone who might have
the funds available for a particular transaction. Sometimes the fiddling begins
on a temporary basis. But once you begin it becomes easier the next time
and so the deception grows and grows until, truthfully, the attorney has no
comprehension of how much has been taken or from whom.
The task of unravelling the mess is left to either the auditors or the legal
profession regulators. The public always presumes that when an attorney
steals trust money there has been personal benefit. That is not necessarily
correct. In many cases, some clients benefit a great deal, but, of course,
when there are winners there are also losers.
Just say no
[65.20] Here are some warnings for the attorneys who want to be Mr or Ms Popu-
larity:
l It is better to lose clients at the outset by giving accurate advice and by
properly assessing their chance of success than to lose them eventually
by giving incorrect advice.
424
Chapter 65: “I can’t say no” syndrome
l Before you agree to act for a client ask yourself whether you have the
expertise.
l Before you agree to pull that filing cabinet drawer open just once more
to force yet another file in, ask yourself whether you are coping with the
work that you currently have on hand. If the answer is “No”, ask yourself
why you are agreeing to take on this additional matter. Are you an ego-
tist, are you greedy or do you just want to be popular? If the answer to
any of these is yes, take out a Lawyer Directory and send your clients to
someone who can look after them properly.
l If you are asked for finance which you have not got in order to keep ma-
jor conveyancing or commercial matters, do not fiddle with it. Imme-
diately send the client away.
l If, in order to keep a client, there is a temptation to adjust the trust ac-
count a little bit to enable you to provide short-term finance, you are
very close to losing your right to practise.
l If you are worried about what your clients might think of you if you re-
fuse to act for them, think again and contemplate what they will think of
you after you have finished acting for them.
l Practise making comments such as:
— “I’m sorry Mr Smith, you haven’t got a cause of action.”
— “You’re wasting your time, Mrs Smith. That matter of principle will
cost you a fortune.”
— “Look, I don’t know anything about it, you need an expert in this
field. Why don’t you go and see Bloggs?”
— “I’m just too busy to take on any more matters. The file will just lie
around in my filing cabinet for months. Why don’t you go to see Ms
Chapel? She’s an excellent lawyer who has just opened up a new
practice. She’ll be pleased to act for you.”
— “Look, I’d like to act for you in this R4 million transaction, but quite
frankly I just can’t provide the finance.”
All too simple? Perhaps so, but each year there are a multitude of lawyers
who do not know any better. Some are the most popular people in prison.
425
Chapter 66
“Time to quit” condition
“A heart specialist once said: ‘I have two questions for you – firstly, what
do you spend most of your time doing? And secondly, is your heart in it?’”
T Norquay, “Burnout” (1985) 59 Law Institute Journal 1046 at 1049
When it’s time to quit

[66.05] The inability of a lawyer to refuse instructions when unable to cope with
work on hand is a symptom of a major problem: the failure of lawyers to rec-
ognise when it is time to quit.
Legal mid-life crisis

[66.10] Several years ago a lawyer sought advice about some problems he had
encountered with his practice. As it turned out, the practice itself was the
biggest problem of all and in that situation it is difficult to come up with any
smart ideas. When told that he should dispose of his practice and take a job
either as an employee lawyer or in some other capacity, he looked goggle-
eyed.
Certainly the advice was not what he wanted to hear and he became an-
gry. But what else can you say to someone whose practice had not grossed
more than R200 000 in each of the past five years and which, after payment
of salaries, rental and other overheads, had netted him an average of
R50 000 per annum during that time? It was pointed out to him that his net
income for that year promised to be R7 000 more than he was paying his sec-
retary, who was a single woman of 20, while he had three children and a
working wife. Still the penny did not drop.
He talked about “things getting better”, “cutting overheads”, “a lousy pe-
riod”. He was told that his income figures indicated that he was not able to
make a go of it in the previous favourable economic climate of the late 1990s
so he had no hope now that the tide had turned.
He asked why he could not make a go of it. Well, the truth is, some people
have it and some people do not. Certainly some people are more secure
earning a salary and despite all the advice in the world find it difficult to run a
427
business. But in this case, as a lawyer aged 38 years with some 14 years of
practice behind him, the important thing was that he should recognise that
none of the variables he mentioned were likely to rescue him from the finan-
cial squeeze in which he found himself.
It is not that uncommon to meet lawyers who should give up practice. Bal-
ance sheets are sometimes relevant, but more often than not there are other
danger signs which call for a lawyer to face up to reality. Forty seems to be a
dangerous age in this regard and it seems to be this legal mid-life crisis which
catches up with lawyers of both genders.
Time to quit: examples

[66.15] Do you fit any of these examples?
You have been in practice for 15 years and for the last ten you have been
practising by yourself. You have a candidate attorney and a secretary, who
also doubles as your search and registration clerk. You have a receptionist
but she only wants to work part-time because of a growing family. Fifteen
years after commencing practice you are earning R10 000 a year more than
your secretary. Your wife returned to work two years ago and is now earning
twice your gross income working as a nurse. It surely must be time to think
again?
You are 45 years of age and have been practising law for 20 years. You
have been doing what you are doing now, be it litigation, conveyancing,
commercial law, for most of those 20 years and you are pretty good at it. You
are earning big money, you own a Mercedes Benz, you sail your yacht at the
weekends and you are a member of several of the “best” clubs. Above all
else, you are absolutely sick and tired of legal practice because:
l If you are a litigation lawyer, the clients now take three times as long to
give you draft answers to questions. Even the simplest question as to
whether they sounded the horn of their motor vehicle causes them to re-
flect, when you know what the answer is. You often feel like shaking
them.
l If you are a conveyancer, the clients always seem to want to take posses-
sion prior to settlement or lock their furniture in the garage of their new
house before they are entitled to.
l In commercial law, clients seldom read what they sign and they often go
behind your back in negotiations with the other party without telling you
what is going on. Frankly, you are tired of the sight of them.
l The receptionist does not get your telephone calls quickly enough, the
word processors seem to give priority to every other lawyer in the office
and your own secretary, who has been with you for seven years, has sud-
denly become absolutely unreasonable.
428
Chapter 66: “Time to quit” condition
When you go home at night you want to kick the dog, run over the bicycle
that is left in the driveway and light the incinerator next to your neighbour’s
lounge room window.
In the mornings you do not want to get up, you are sick to death of the
screaming and punching that goes on between the children before they go to
school and you have even taken to listening to talkback radio on the way to
the office – and sometimes you find yourself agreeing with the callers!
Clearly, it is time to quit.
Make the change

[66.20] Whether it is economic necessity or sheer professional fatigue, there comes a
time when, irrespective of how much money you are making or how good
you have become at your craft, you must ask yourself the question: do I want
to do this for the rest of my days? If a small voice inside you cries out “No!”,
then it is time not only to think about quitting but to turn your mind to what
else you would like to do.
No remuneration, no prestige, no professional pride can justify entrapping
yourself in a daily environment which has long since ceased to be satisfying.
You are clearly having a legal mid-life crisis, which may not necessarily in-
volve you leaving the law. Perhaps rescue can be achieved by a dramatic
change in your surroundings or in the type of work that you do.
Is it time that you had a new challenge? Should you turn your back on the
malingering plaintiff, the routine medical examinations, the faltering answers
to questions and learn new skills? For example, does your firm brief counsel
in the local court or an administrative appeals tribunal? Why not volunteer to
act as your firm’s advocate in any appearances there, rather than briefing
out? Perhaps there may be other partners within the firm who feel exactly as
you do and who would be prepared to virtually swap professional responsi-
bilities and act as a tutor to provide you with some in-house education in
their particular area of practice.
Certainly there are no glib answers and it is worthwhile sitting down with
someone (a senior partner, a colleague, your spouse or domestic partner) to
try to identify what it is that you have tolerated for 15 years but can no
longer cope with. Unfortunately, at about 40 the trap is well and truly set.
The responsibilities are at a maximum, the schooling is at its most expensive,
the family is at its most dependent, the mortgage is at its largest, the social
pressures are at their most oppressive. And yet it is at about that age that
many practitioners have made brave decisions.
429
Part 10
Questions
Chapter 67
Questions
“‘What do you know about this business?’ the King said to Alice. ‘Nothing,’
said Alice. ‘Nothing whatever?’ persisted the King. ‘Nothing whatever,’
said Alice. ‘That’s very important,’ the King said turning to the jury.”
Are you prepared?

[67.05] A key theme of this book has been that common sense is a necessary pre-
requisite to the practice of law. If you have been generously endowed with
common sense, you will be in a better position to resolve the many problems
that arise in practice for which the law does not provide a direct answer.
If you think you have learned anything from reading this book, have a go at
the following questions. The questions are based on actual complaints and
inquiries received by the Law Society of the Cape of Good Hope.
Responsibility for sexual predilections of candidate

attorneys
[67.10] You have been appointed Director of the Law Society of the Cape of Good
Hope (God help you!) and you receive a complaint from an irate husband
that the attorney acting for his wife in a matrimonial dispute is having sexual
intercourse with her. You cannot believe that a practitioner would do such a
thing and you write a letter to the complainant husband telling him that he
will have to have proper proof before you will investigate. You think that that
is the last of it.
Then comes a letter from the triumphant husband enclosing photographs
of the goings-on which he has taken from a hill near the wife’s home through
a camera with a telescopic lens. You take up the complaint and write to the
attorney acting for the wife who replies indignantly saying that the photo-
graphs disclose not him but recognisable portions of his candidate attorney.
Would you:
(a) Take sick leave?
(b) Regard the matter as being none of your business and do nothing?
433
(c) Suggest to the candidate attorney that he pull down the blinds in fu-
ture?
(d) Point out to the husband that although the candidate attorney’s con-
duct is disgraceful, you have no control over his private life?
(e) Hold the practitioner primarily responsible for the sexual predilections
of his candidate attorney; after all, he is supposed to be supervising and
controlling him, isn’t he?
(f) Slip a note to the Board of Examiners so as to prevent the candidate
attorney from being admitted as an attorney?
Defective will
[67.15] You are consulted by a husband and wife who claim to have been left a large
estate pursuant to a will of a friend. The estate is worth approximately
R2,25 million and there are a number of living nephews and nieces who get
nothing. You examine the will and note that there is only one witness. You
tell the clients that the will is invalid and unless another can be found the de-
ceased will have died intestate.
Your clients are very disappointed and suggest that perhaps you could wit-
ness the will there and then. You mumble something about the fraudulent
action and look pompous. They thank you for your advice and ask how much
they owe you and then begin to leave. You (stupidly) ask them what they in-
tend to do. They reply that they will probably obtain the signature of another
witness to the will and instruct another attorney to apply for letters of execu-
torship.
Would you:
(a) Volunteer to help in that regard for 10% of the estate?
(b) Do nothing?
(c) Telephone your Law Society and ask what to do?
(d) Telephone the Master of the High Court, say what has happened and
advise him or her to keep an eye open?
(e) Watch for the advertisement of the liquidation and distribution account
and contact the attorney named?
(f) Contact the police?
(g) Immediately advise your clients not to tamper with the will, tell them
the consequences if they do and send them a confirmatory letter?
Other side’s brief

[67.20] You act for a plaintiff company in a major commercial case involving
R20 million. Your client company has received advice from you and your
counsel that there are grave difficulties associated with the proceeding. Your
434
Chapter 67: Questions
firm frequently uses advocate X in commercial litigation but, on this occasion,

he has been retained by the attorneys representing the defendant company.
A bundle of briefs is sent back to your office by advocate X’s secretary and
inside one of the briefs you find a written memorandum which contains ad-
vice unrelated to the brief itself but in respect of the commercial case in
which you are acting for the plaintiff company.
The memorandum from counsel to the defendant’s attorneys occupies five
pages but the thrust of it is that advocate X does not like the defendant’s
case at all. He recites adverse facts to support this view of which you and
your client company were previously unaware and he recommends a settle-
ment offer of R7,5 million but urges the defendant to go to R15 million rather
than allow the matter to go to court.
Would you:
(a) Block your ears, wash out your mouth with soap and water, put your
eyes out with a burning stick and continue to act?
(b) Do nothing?
(c) Read the memorandum a second time and begin to walk around the
room with a new spring in your step?
(d) Return the memorandum with a “with compliments” card to advocate X
and continue to act?
(e) Return the memorandum to advocate X with an appropriate note and
advise your client company that for reasons you cannot disclose you
cannot continue to act further?
(f) Advise the defendant’s attorneys what has happened, undertake not to
use or disclose the contents of the memorandum to anyone and con-
tinue to act?
(g) Adopt the course of action in (d) and (f) with the client company’s
authority without telling the client company the contents of the memo-
randum?
Recalcitrant insured
[67.25] You have been instructed by an insurance company to handle the defence of
a High Court action issued on behalf of a passenger who suffered severe inju-
ries as a consequence of a vehicle running off the road and colliding with a
tree. The plaintiff’s father, who claimed to have been driving, seems to have
been totally to blame for the collision and the tree completely innocent. The
passenger has been rendered a paraplegic. The father was uninjured.
An investigator’s report was obtained and it reveals that there are two
witnesses who saw the father and son leave a restaurant near the scene of
the collision just before the accident and it was the son who got behind the
steering wheel.
435
You have to deliver a defence and when the father comes in you put it to
him that his story is a pack of lies. You also put to him what the two wit-
nesses have said. The father describes the story of the witnesses as nonsense
and reaffirms his instructions that he was the driver of the vehicle. You say
that you do not believe him. You tell him that you will deliver a defence deny-
ing that he was the driver and that is the way that you propose to handle the
case.
The father replies by saying that he will admit being the driver of the car in
answer and that he will give oral evidence supporting his son’s story whether
you like it or not. Would you:
(a) Obtain a prescription for valium in cake form?
(b) Do nothing?
(c) Suggest that the defendant seek independent legal advice immediately?
(d) Warn the defendant about the criminal law and what happens to peo-
ple who commit perjury?
(e) Make application for a restraining order to prevent the defendant being
allowed within the precincts of the High Court?
(f) Rely upon the doctrine of derapulative nugency?
(g) Advise the defendant that effective immediately you only act for the
insurance company which now reserves its position about coverage and
that he should make his own arrangements?
(h) Hide the plaintiff’s statement from the defendant?
Mad client
[67.30] You are consulted by Mrs X, who has been severely injured in a motor acci-
dent. You take the usual instructions and obtain copies of medical reports
from all the hospitals and doctors where she has received treatment. You
also have her medically examined by specialists. Although she has been in-
jured, there is no reference to concussion and it does not seem that she lost
consciousness as a consequence of the accident.
However, during the course of acting for her, it becomes apparent that
Mrs X is somewhat unusual. Her conduct is quite erratic, with the instructions
you receive from her varying from meeting to meeting. On one occasion she
will tell you that she will not accept less than R20 000, while on the next oc-
casion she will tell you that the figure is really R200 000. Your fears about her
are strengthened when she tells you that she believes that the collision was
not an accident, but a deliberate attempt to kill her by the driver of the other
vehicle.
The defendant serves an offer of compromise of R50 000. When you con-
tact Mrs X and ask her to come in to see you, she tells you that the offer of
R50 000 is far too much, that it is contrary to her religious beliefs to profit
436
from an accident, that it was clearly God’s will and insists that the maximum
she wants is R10 000.
Would you:
(a) Prepare a detailed memorandum of settlement, explain it to Mrs X in
the presence of a witness and have Mrs X sign it before following her in-
structions?
(b) Accept the offer of compromise, give Mrs X R10 000 and keep the rest?
(c) Advise the insurance company that the offer of compromise is rejected
by the plaintiff and put a counter offer of R10 000?
(d) Contact the relatives of Mrs X and advise them of your doubts about her
sanity?
(e) Without any instructions from Mrs X, or anyone else, make application
for a guardian to be appointed to represent Mrs X?
(f) Buy a thumbscrew and re-interview Mrs X?
(g) Obtain a medical opinion about Mrs X’s mental capacity before pro-
ceeding further?
Crooked client
[67.35] You see on your diary that a client whose name rings a bell with you has
made an appointment to see you. You read the morning paper and there you
see that a large public company has gone into liquidation and that it is likely
that criminal proceedings will be commenced against its former directors.
The name of one of the directors is the same as that of the client who is com-
ing to see you.
The client arrives and you satisfy yourself from the photograph in the
newspaper that he is one of the directors against whom criminal proceedings
are contemplated. The accusation is that the directors have transferred a
large proportion of the company’s funds into Swiss bank accounts.
The client director seeks your advice on the laws of extradition and, in par-
ticular, wishes to know which is the most difficult country from which to be
extradited back to South Africa. Would you:
(a) Bring the client down with a rugby tackle and bind him hand and foot?
(b) Telephone the police from another room while having your secretary
serve your client with tea and biscuits?
(c) Accept the client’s instructions on the basis that you are prepared to
advise him where it is difficult to be extradited from, but that you will
not tell him where he should escape to?
(d) Ask for costs in advance and then set about the research necessary to
advise him properly in accordance with your professional obligations?
(e) Refuse to advise him?
(f) Quadruple your fees and ask for payment in Swiss francs?
437
Reneging client
[67.40] In a long, drawn-out action you have acted on behalf of a plaintiff who, at
various times, has been the most unreasonable, rude and difficult client you
have ever acted for. At long last the action is listed for hearing and at the
door of the court the defendant’s attorney offer an amount of R200 000 in
full and final settlement of the plaintiff’s case.
You obtain instructions from the plaintiff to accept this amount and, be-
cause of the difficulties which you have had with him in the past, you arrange
for those instructions to be given in writing. The plaintiff signs a release.
Twenty-eight days later, in accordance with the terms of settlement, a
cheque for R200 000 is received which you pay into your trust account and
subsequently draw against, to forward a cheque to the plaintiff for his enti-
tlement from the settlement.
The plaintiff returns the cheque to you with a brief note saying that the
amount is insufficient, that you misled him and that he is now no longer pre-
pared to settle for that amount. You return the cheque to him with a note
telling him not to be silly. He returns the cheque to you. Would you:
(a) Contact the defendant’s insurer and tell him or her that the settlement
is off and that it was all just a silly mistake?
(b) Tell your client that he is bound by the settlement and that if he does
not accept the cheque he should instruct another solicitor to act for
him?
(c) Keep the sum of R200 000 in trust after writing a letter to the plaintiff
telling him that you hold the money on his behalf and it will remain
there without earning interest until he claims it?
(d) Telephone your Law Society and seek guidance?
(e) Keep returning the cheque to him over and over?
(f) Send a cheque for the sum of R200 000 to the Guardians Fund?
(g) Invest the settlement in an authorised trustee investment at call and
advise the client it will remain there until he claims it?
Lying client
[67.45] You are an experienced Magistrates’ Court practitioner and you know that,
whatever happens, you are not allowed to let your client commit perjury or
give evidence that is contrary to the instructions that he or she has given you.
But then it happens! In a case involving breaking and entering, you put the
defendant in the witness box and begin to examine him in accordance with
the instructions he has given you.
His responses can only be described as startling. The version of the facts
which he now proceeds to give in response to your questions is as different
438
as Alice in Wonderland is to Moby Dick. You try to re-direct his answers but
he seems intent upon perjuring himself. His replies are even more fanciful in
cross-examination.
Would you:
(a) Stop after a few questions, get the matter stood down and ask him
what the hell he is trying to do?
(b) Shrug your shoulders and put it down to experience?
(c) Tell the magistrate that it is all news to you and that your client is clear-
ly lying in the witness box and suggest that he should be severely pun-
ished?
(d) Advise the court that you wish to withdraw as the practitioner repre-
senting the defendant, but refuse to give reasons for your request?
(e) Assume that the defendant is only now telling the truth for the first
time and that previously he was just too shy to come out with it?
(f) Telephone your Law Society from a public telephone box with coins
borrowed from the prosecutor?
Would your answer be any different if the defendant made an unsworn
statement from the body of the court and the substance of what he said not
only differed from his original instructions to you, but should have been
included in a volume of the world’s great short stories?
439
Afterthought
“There ain’t nothing more to write about and I’m rotten glad of it, because
if I’d a knowd what a trouble it was to make a book, I wouldn’t a tackled
it.”
Mark Twain, Huckleberry Finn
441
Table of cases
Page
A
A Barrister and Solicitor, Re (1984) 58 ACTR 1 ...................................................................201
A Firm of Solicitors, Re [1992] 1 All ER 353........................................................................... 65
A Firm of Solicitors, Re [1995] 3 All ER 482........................................................................... 47
Aarons v Law Society (Society of Advocates of Witwatersrand Intervening)
1997 (3) SA 750 (T) .......................................................................................................... 31
AB (a solicitor), Re [1939] ALR 208 ....................................................................................... 60
Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) ............................172
Afglow Land & Cattle Co (Pvt) v Napier 1972 (1) SA 430 (RA) .............................................. 23
Alfred Crompton Amusement Machines Ltd v Commissioners of Customs and Excise
(No 2) [1972] 2 All ER 353 (QB) ....................................................................................... 37
Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners
(No 2) [1972] 2 QB 102.................................................................................................... 39
AM & S Europe Ltd v Commission of the European Communities [1983] 1 QB 878 ............ 40
Ambard v Attorney-General (Trinidad and Tobago) [1936] AC 322 ...................................211
Anissa Pty Ltd v Parsons [1999] VSC 430 ............................................................................223
Anton Piller KG v Manufacturing Processes Ltd 176 RPC 719 (CA)
(1976) Ch 55; [1976] 1 All ER 779.......................................................................... 111, 112
Attorney General, Northern Territory v Maurice (1986) 10 FCR 134 ................................... 51
Attorney-General (NSW) v Bailey (1917) 17 SR (NSW) .......................................................222
Attorney-General for NSW v Mundey [1972] 2 NSWLR 887 ..............................................223
Attorney-General for Qld v Lovitt [2003] QSC 279 .............................................................223
Attorney-General v Bax [1999] 2 Qd R 9.............................................................................202
Audio Vehicle Systems v Whitfield 2007 (1) SA 434 (C)......................................................112
Australian Hospital Care Pty Ltd v Duggan (No 2) [1999] VSC 131 ................................. 40, 41
Australian Liquor Marketers Pty Ltd v Tasman Liquor Traders Pty Ltd
[2002] VSC 324 .................................................................................................... 67, 68, 69
B
Baker v Campbell (1983) 49 ALR 385.................................................................................... 49
Balogh v St Albans Crown Court [1975] 1 QB 73 ................................................................214
Bar Association of Queensland v Lamb [1972] ALR 285 ............................................. 120, 121
Barlow Rand Ltd v Lebos 1985 (4) 341 TPD .......................................................................... 27
443
Page
Bayer SA (Pty) Ltd v Frost 1991 (4) SA 559 (A)....................................................................172
Beinash v Wixley 1997 (3) SA 721 (SCA) ............................................................................... 29
Belan v Casey [2002] NSWSC 58 ........................................................................................... 69
Bertelsmann v Per 1996 (2) SA 375 (T) ...............................................................................140
Blue Chip Consultants v Shamrock 2002 (3) SA 23 (W) ........................................................ 50
Blyth & Fanshawe, Re (1882) 10 QBD 207............................................................................ 83
Bogoshi v Director, Office for Serious Economic Offences 1993 (3) SA 953 (T);
1996 (1) SA 785 (A).......................................................................................................... 49
Borstlap v Spangenberg 1974 (3) SA 695 (A) ........................................................................ 51
Botes v Daly 1976 (2) SA 215 (N) .......................................................................................... 51
Botha NO v EM Mchunu 1992 (4) SA 740 (N) ............................................................. 100, 101
Botha v Law Society Northern Provinces 2009 (1) SA 277 (SCA) ........................................199
Botha v White 2004 (3) SA 184 (T)........................................................................................ 31
Bovungana v Road Accident Fund 2009 (4) SA 123 E ........................................................... 82
British American Tobacco Services Ltd v Blanch [2004] NSWSC 70...................................... 69
Brooklyn House Furnishers (Pty) Ltd v Knoetze and Sons 1970 (3) SA 264 (A) ............ 99, 101
Brott v Almatrah [1998] 2 VR 83........................................................................................... 90
Brown v Putnam [1975] 6 ALR 307 .....................................................................................153
Buls v Tsatsarolakis 1976 (2) SA 891 (T)..............................................................................171
C
Cachia v Hanes (1994) 179 CLR 403...................................................................................... 90
Callachor v Black [2000] NSWCA 347 ................................................................................... 62
Cambridge Plan AG v Cambridge Diet (Pty) Ltd 1990 (2) SA 574 (T) .................................... 78
Cape Law Society v Elliott 1994 (unreported) ....................................................................199
Cape Law Society v Luyt 1929 CPD 281 ............................................................................... 90
CE Heath Underwriting & Insurance (Australia) Pty Ltd v Daraway Constructions
Pty Ltd (unreported, Vic Sup Ct, Batt J, 3 August 1995) ................................................110
Chickweche, In re 1991 (4) SA 284 (ZH)..............................................................................219
Chunguete v Minister of Home Affairs 1990 (2) SA 836 (W) ..............................................224
Claase v Information Officer South African Airways (Pty) Ltd 2007 (5) SA 649 (SCA) .......... 81
Clyne v The New South Wales Bar Association (1960) 104 CLR 186 ............................ 30, 197
Commissioner South African Revenue Service v Hawker Aviation Services Partnership
2005 (5) SA 283 (T) .......................................................................................................... 30
Council of the Law Institute of Victoria v A Solicitor [1993] 1 VR 361.................................. 59
Countrywide Banking Corporation Ltd v Kingston [1990] 1 NZLR 629 ...............................170
Court v Berlin [1897] 2 QB 396 ............................................................................................. 19
Creative Car Sound v Automobile Radio Dealers Association 1989
(Pty) Ltd 2007 (4) SA 546 (D) .........................................................................................176
D
David Lee & Co (Lincoln) Ltd v Coward Chance [1991] Ch 259............................................. 65
De Klerk v Scheepers 2005 (5) SA 244 (T) ............................................................................. 30
De Kock v Davidson 1971 (1) SA 428 (T) .............................................................................307
444
Table of cases
Page
Delfante v Delta Electrical Industries Ltd 1992 (2) SA 221 (C) .............................................. 81
Die Prokureursorde van die Oranje-Vrystaat v Schoeman 1977 (4) SA 588 (O).................192
Ditedu v Tayob 2006 (2) SA 176 (W)...................................................................................175
Dobree v Hoffman (1996) 18 WAR ....................................................................................... 90
Donoghue v Stevenson [1932] AC 562 ..............................................................................171
Dougan v Estment 1910 TPD 998 .......................................................................................306
E
Ebersohn v Prokureursorde van Transvaal 1996 (1) SA 661 (T) ............................................. 6
Ellis and Ellis, Re [1908] WN 215 .......................................................................................... 95
Estate Bliden v Sarif 1933 CPD 271....................................................................................... 52
Euroshipping Corp of Monrovia v Minister of Agricultural Economics and Marketing
1979 (1) SA 637(C)............................................................................................... 49, 50, 52
Euroshipping Corporation of Monrovia v Minister of Agricultural Economics and
Marketing 1972 (1) SA 637 (C) ........................................................................................ 58
F
Farrington v Rowe McBride and Partners [1985] 1 NZLR 83 ................................................ 72
Farrow Mortgage Services Pty Ltd (In Liq) v Mendall Properties Pty Ltd [1995] 1 VR 1....... 64
Ferreira v Ntshingila 1990 (4) SA 271 (A)............................................................................174
Flanagan v Pioneer Permanent Building Society Ltd [2002] QSC 346 .................................. 69
Fortune v Fortune 1996 (2) SA 550 (C) ...............................................................................144
Free State Agriculture & Ecotourism Development (Pty) Ltd v Mthembu & Mahomed
2002 (5) SA 343 (O) ............................................................................................... 100, 101
Fruehauf Finance Co Pty Ltd v Feez Ruthning [1991] 1 Qd R 558......................................... 68
G
Garcia v National Australia Bank Ltd (1998) 194 CLR 395 ..................................................269
Gavaghan v Edwards [1961] 2 QB 220.................................................................................. 62
Gcabashe v Nene 1975 (3) SA 912 (D) ................................................................................326
General Council of the Bar v Matthys 2002 (5) SA 1 (E) ....................................................... 29
Giannarelli v Wraith (1988) 165 CLR 543.............................................................................. 32
Goodricke & Son v Auto Protection Insurance Co. Ltd 1967 (2) SA 501 (W)............ 19, 23, 86
Goody v Baring [1956] 1 WLR 448; 2 All ER 11 ............................................................... 61, 62
Governing Body, Mikro Primary School v Minister of Education,
Western Cape 2005 (3) SA 504 (C) .................................................................................. 81
Griffiths v Evans [1953] 2 All ER 1364................................................................................... 24
Groom v Crocker [1939] 1 KB 194 ........................................................................................ 74
H
Hall v Ball (1841) 3 Man & G 242........................................................................................276
Hamilton Paneelkloppers v Nkomo 1991 (2) SA 534 (O) ....................................................101
445
Page
Harksen v Attorney-General, Cape 1999 (1) SA 718 (C) ....................................................... 51
Hawkes v Hawkes 2007 (2) SA 100 (SE) ..............................................................................167
Hawkins v Gelb 1959 (1) SA 703 (W) .................................................................................... 78
Haynes v Hirst (1927) 27 SR (NSW) 480..............................................................................325
HEG Consulting Enterprises (Pty) Ltd v Siegwart 2000 (1) 507 (C) .....................................195
Hickie v Hunt & Hunt [1998] HREOCA 8 .............................................................................411
Hirschowitz Flionis v Barlett 2006 (3) SA 575 (SCA)............................................................174
Holt v Holt (1935) 77 Fed (2nd) 538 ...................................................................................117
Höltz v Douglas & Associates (OFS) CC 1991 (2) SA 797 (O) ...............................................211
Hotel Victoria (Rhodesia) Ltd v Alexander 1952 (2) SA 637 (SR) ........................................102
Hudson v Hudson 1927 AD 529 ............................................................................................ 29
I
In the Marriage of Kennedy (1995) FLC 92-605..................................................................122
Incorporated Law Society of the Transvaal v S 1957 (3) SA 780 (T) ........................... 198, 199
Incorporated Law Society v Behrman 1957 (3) SA 221 (T) .................................................194
Incorporated Law Society v Bevan (1908) TS 724................................................................. 31
Incorporated Law Society, Natal v Roux 1972 (3) 146 (N)..................................................191
Incorporated Law Society, Natal v Vermaak 1976 (2) SA 192 (N).......................................199
Incorporated Law Society, Transvaal v Bothma 1962 (4) SA 177 (T) ..................................201
Incorporated Law Society, Transvaal v G 1953 (4) SA 962 (T) ............................................200
Incorporated Law Society, Transvaal v Meyer 1981 (3) SA 962 (T) ....................................200
Incorporated Law Society, Transvaal v van E 1954 (4) SA 155 (T) ......................................198
Incorporated Law Society, Transvaal v Visse 1958 (4) SA 115 (T).......................................199
Ingelyfde Wetsgenootskap van Transvaal v Du Preez 1963 (1) SA 198..............................201
Ingersoll Rand Co. SA Ltd v Administrateur, Transvaal 1991 (1) SA 321 (T) ............... 327, 328
Inter-Continental Finance and Leasing Corporation (Pty) Ltd v Stands 56 and 57
Industria Ltd 1979 (3) SA 740 (W) ................................................................................... 23
J
Jasat v Natal Law Society 2000 (3) SA 44 (SCA) ............................................................ 29, 194
Javor v United States of America 724 F 2d 831 (9th Cir 1984) ...........................................247
Jeeva v Receiver of Revenue, Port Elizabeth 1995 (2) SA 433 (SE)....................................... 49
Jennings v Zilahi-Kiss (1972) 2 SASR 493............................................................................... 62
Jili v SA Eagle Insurance Co. Ltd 1995 (2) SA 269 (N) ..........................................................326
Johannesburg Taxi Association v Bara-City Taxi Association 1989 (4) SA 808 (W).............169
John Fox v Bannister, King & Rigbeys [1987] 3 WLR 480....................................................201
Jordaan, Ex parte: In re Grunow Estates (Edms) Bpk v Jordaan
1993 (3) SA 448 (OPD) ............................................................................................ 29, 196
Joss v Barclays Western Bank 1990 (1) SA 575 (T)..............................................................307
446
Table of cases
Page
K
Kaplan v Incorporated Law Society, Transvaal 1981 (2) SA 762 (T)....................................191
Kauesa v Minister of Home Affairs 1995 (1) SA 51 (Nm) ....................................................224
Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA)......................... 28, 198
Keppie v Law Society of the Australian Capital Territory (1983) 65 FLR.............................201
Kerly, Son & Verden, Re [1901] 1 Ch 467 ...........................................................................166
Kragga Kamma Estates CC v Flanagan 1995 (2) SA 367 (A) ................................................306
Kyle v Legal Practitioners’ Complaints Committee (1999) 21 WAR 56................................. 27
L
Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458.......................................131
Land Bank v Mans 1933 CPD 16.................................................................................... 99, 101
Law Society of New South Wales v Foreman (1991) 24 NSWLR 238..................................202
Law Society of New South Wales v Harvey [1976] 2 NSWLR 154................................... 71, 72
Law Society of the Cape of Good Hope v Holmes 2006 (2) SA 139 (C)...............................198
Law Society of the Cape of Good Hope v King 1995 (2) SA 887 (C) ....................................193
Law Society of the Cape of Good Hope v Tobias 1991 (1) SA 430 (C) ............ 62, 90, 199, 201
Law Society of Transvaal v Matthews 1989 (4) SA 389 (T) .................................................199
Law Society, Cape v Karjieker CPD 9 June 1980 (unreported)............................................202
Law Society, Cape v Koch 1985 (4) SA 379 (C) ....................................................................199
Law Society, Cape v Peter [2006] SCA 37 RSA ....................................................................199
Law Society, Transvaal v Blumberg 1987 (3) SA 650 (T) ............................................. 195, 202
Law Society, Transvaal v Matthews 1989 (4) SA 389 (T) ....................................................199
Lenco Holdings v Eckstein 1996 (2) SA 693 (N)..................................................................... 46
Lewis v Little (unreported, Vic Sup Ct, 21 May 1986).........................................................222
Lewis v Ogden (1984) 153 CLR 682.....................................................................................218
Lincoln v Daniels [1961] 3 All ER 740 .................................................................................... 45
Linwood v Andrew (1888) 58 LT 612 .................................................................................... 31
Lloyd v Biggin [1962] VR 593...............................................................................................217
London Scottish Benefit Society v Chorley Crawford and Chester (1884) 13 QBD 872 ....... 90
Long, Re [1929] VLR 318 ....................................................................................................... 96
Loots v Loots 1974 (1) SA 431 (E).......................................................................................... 78
Lotter v Arlow 2002 (6) SA 60 (T).......................................................................................... 47
Lynn and Main Inc v Naidoo 2006 (1) SA 59 (N) ................................................................... 54
M
MacDonald Estate v Martin (1991) 77 DLR (4th) 249........................................................... 65
Macdonald t/a Happy Days Café v Neethling 1990 (4) SA 30 (N)......................................... 20
Machumela vs Santam Insurance Co. Ltd. 1977 (1) SA 660 (A) ............................................ 30
Madzunye v Road Accident Fund 2007 (1) SA 165 (SCA)...................................................... 80
Mafara v Law Society of Zimbabwe 1988 (3) SA 247 (ZS)...................................................195
Magajane v Chairperson, North West Gambling Board 2006 (5) SA 250 (CC)....................112
447
Page
Maia v Total Namibia (Pty) Ltd 1991 (2) 352 (Nm HC).......................................................... 30
Makuwa v Poslson 2007 (3) SA 84 (T)........................................................................... 82, 174
Malcolm Lyons & Munro v Abro 1991 (3) SA 464 (W).......................................................... 81
Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357........................... 64, 66
Mallesons Stephen Jaques v KPMG Peat Marwick (1991) 4 WAR 357................................. 65
Manana v Johannes 1999 (1) SA 181 (LCC)........................................................................... 32
Manase v Minister of Safety and Security 2008 (1) SA 567 (Ck).........................................174
Manning v Wilkin [1848] 12 LTOS 249................................................................................179
Mbanga v MEC for Welfare, Eastern Cape 2002 (1) SA 369 (SE) .......................................... 24
McKaskell v Benseman [1989] 3 NZLR 75 ............................................................................. 47
McVeigh v Linen House Pty Ltd [1999] 3 VR 394.................................................................. 69
MEC for Public Works Roads and Transport Free State v Esterhuizen
2007 (1) SA 201 (SCA) ..................................................................................................... 80
MEC for Roads and Public Works Eastern Cape v Intertrade Two (Pty) Ltd
2006 (5) SA 1 (SCA) .......................................................................................................... 81
Mechanical and General Inventions Co Ltd v Austin [1935] AC 346 ..................................244
Meerkin & Apel v Rossett Pty Ltd [1998] 4 VR 54................................................................. 24
Mercantile Mutual Insurance Co Ltd v Gosper (1991) 25 NSWLR 32 ................................... 10
Meter Systems Holdings Ltd v Venter 1993 (1) SA 409 (W) ................................................. 44
Mills v Day Dawn Block Gold Mining Co Ltd (1882) 1 QLJR 62 ............................................. 63
Minister of Land Affairs & Agriculture v D & F Wevell Trust 2008 (2) SA 184 (SCA) ............ 80
Mitchell v Dixon 1914 AD at 525 ............................................................................................ 6
Mofokeng v General Accident Insurance Co. Ltd 1990 (2) SA 712 (WLD) ............................ 30
Mohamed v President of the Republic of South Africa 2001 (2) SA 1145 (C)..... 37, 39, 42, 50
Moody v Cox & Hatt [1917] 2 Ch 71 (CA) 91................................................................... 61, 62
Moshal Gevisser (Trademark) Ltd v Midlands Paraffin Co. 1977 (1) SA 645 (N) .................. 80
Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A) .................................................. 171, 173
Muller v The Master 1992 (4) SA 277 (T).............................................................................. 78
Myers v Elman [1940] AC 282 ............................................................................................110
N
Naidoo v Marine & Trade Insurance Co. Ldt 1978 (3) SA 666 (A).......................................326
National Bank of Australasia Limited v Mason (1975) 133 CLR 191 ...................................300
National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 ........................ 43
Nel v Cloete 1972 (2) SA 150 (AD) ......................................................................................306
Nel v Waterberg Landbouwers Ko-operatiewe Vereniging 1946 AD 597 ............................ 78
Newman v Phillips Fox (1999) 21 WAR 309.......................................................................... 64
Ngwane v the Road Accident Fund Bhisho Case No. 151/2007 ........................................... 82
Ngwenya, Ex parte: In re Ngwenya v Society of Advocates, Pretoria
2006 (2) SA 87 (W).........................................................................................................192
Nyembezi v Law Society, Natal 1981 (2) SA 752 (A) ................................................... 193, 201
448
Table of cases
Page
O
O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204...................................... 71
Oceana Leasing Services (Pty) Ltd 1980 (3) SA 267 (W) .....................................................101
P
Pakes v Mosley 1909 TPD 166 .............................................................................................. 85
Parry-Jones v Law Society [1969] 1 Ch 1......................................................................... 45, 47
Photocure ASA v Queen’s University at Kingston (2002) 56 IPR 86 ............................... 68, 69
Pienaar v Pienaar 2000 (1) SA 231 (O).......................................................................... 29, 197
Potter v South British Insurance Co. Ltd 1963 (3) SA 5 (W).................................................. 52
Pradhan v Eastside Day Surgery Pty Ltd [1999] SASC 256 .............................................. 64, 67
Pretoria City Council v Meerlust Investments (Pty) Ltd 1962 (1) SA 321 (A)........................ 23
Pretorius v McCallum 2002 (2) SA 423 (C).................................................................. 174, 176
Prince Jefri Bolkiah v KPMG [1999] 1 All ER 517........................................... 64, 65, 66, 67, 69
Prince v President, Cape Law Society 2002 (2) SA 794 (CC) ......................................... 31, 194
Prokureursorde Transvaal v Van der Merwe 1985 (2) SA 208 (T) ......................................195
Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T) ........................................202
Prothonotary of Supreme Court of Victoria v Parsons [2000] VSCA 83 .............................223
R
R v Bekker 1956 (2) SA 279 (A) ................................................................................... 109, 110
R v Butelezi 1960 (1) SA 284 (N) .........................................................................................221
R v Cox and Railton (1884) 14 QBD 153..............................................................................154
R v Gray [1900] 2 QB 36......................................................................................................222
R v Mans 1950 (2) SA 602 (C)..............................................................................................211
R v Perkins [1980] 4 WWR 763 ...........................................................................................216
R v Pitje 1960 (4) SA 706 (A) ...............................................................................................221
R v Silber 1952 (2) SA 475 (A) .............................................................................................222
R v Steyn 1954 (1) SA 324 (AD) ............................................................................... 54, 55, 150
R v Szabo [2001] 2 Qd R 214 ...............................................................................................123
Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831 .............................................................. 67
Ras v Liquor Licensing Board, Area No. 11 Kimberley 1966 (2) SA 232 (C).........................167
Rath v Rees 2007 (1) SA 99 (C).................................................................................... 111, 112
Retha Meiring Attorney v Walley 2008 (2) SA 513 (D) ................................................... 68, 70
Reyneke v Wetsgenootskap van die Kaap die Goeie Hoop 1994 (1) SA 359 (A) ................202
Ridon v Van der Spuy & Partners (Wes-Kaap) Inc 2002 (2) SA 121 (C)............... 168, 169, 182
Robinson v Randfontein Est GM Co. Ltd 1921 AD 168 177 ............................................ 36, 71
Robinson v Van Hulsteyn, Feltham & Ford 1925 AD 12.................................................. 43, 64
Rondel v Worsley [1967] 1 QB 443 ............................................................................... 36, 196
S
S v Boesman 1990 (2) SACR 389 (E) ...................................................................................... 51
S v Gibson 1979 (4) SA 115 (D) ...........................................................................................214
449
Page
S v Hartmann 1984 (1) SA 305 (ZS) .....................................................................................224
S v Jija 1991 (2) SA 52 (E) ...................................................................................................... 55
S v Lwane 1966 (2) SA 433 (A) ............................................................................................234
S v Makwanyane 1995 (3) SA 391 (CC) ................................................................................. 53
S v Mamabolo (E TV Intervening) 2001 (3) SA 409 (CC).............................................. 212, 213
S v Memami 1994 (1) SA 515 (W) .......................................................................................222
S v Mkize 1962 (2) SA 457 (N) ..................................................................................... 110, 211
S v Moila 2006 (1) SA 330 (T) ..............................................................................................212
S v Mongwe 1974 (3) SA 326 (T) .........................................................................................221
S v Moseli (2) 1969 (1) SA 650 (O) ........................................................................................ 53
S v Nel 1991 (1) SA 730 (A) .................................................................................................214
S v Ntuli 2003 (4) SA 258 (W)................................................................................................ 32
S v Safatsa 1988 (1) SA 868 (A) ....................................................................................... 49, 53
S v Tobias 1966 (1) SA 656 (N) ............................................................................................222
S v Van Niekerk 1972 (2) SA 279 (D) ...................................................................................224
Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) ........................................................................... 70
Savage & Lovemore Mining (Pty) Ltd v International Shipping Co (Pty) Ltd
1987 (2) SA 149 (W)......................................................................................................... 80
Savage v Taylor [1996] ANZ Conv R 385 ............................................................................... 10
Seager v Copydex Ltd [1967] 2 All ER 415 CA ....................................................................... 44
Sent v John Fairfax Publication Pty Ltd [2002] VSC 429.................................................. 69, 70
Serrurier v Korzia 2010 (3) SA 166 (W) ...............................................................................140
Shabalala v Attorney-General of the Transvaal 1996 (1) SA 725 (CC) .......................... 55, 150
Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam;
Maphanga v Officer Commanding, South African Police Murder and
Robberty Unit, Pietermaritzburg 1995 (4) SA 1 (A) .......................................................111
Sibeko v Minister of Police 1985 (1) SA 151 (W) ........................................................ 325, 326
Simpson v Brereton [1964] VR 332.....................................................................................167
Slomowitz v Kok 1983 (1) SA 130 (A) ..................................................................................171
Smith v Mansi [1962] 3 All ER 853 (CA) ................................................................................ 61
Smith v Price 1988 (1) SA 53 (W) ........................................................................................173
Soane v Lyle 1980 (3) SA 183 (D) ........................................................................................101
Sopher v Sopher 1957 (1) SA 598 (W)................................................................................... 81
South African Liquor Traders’ Association v Chairperson, Gauteng Liquor Board
2009 (1) SA 565 (CC)........................................................................................................ 82
South African Rugby Football Union v President of the Republic of South Africa
1998 (4) SA 296 (T) .......................................................................................................... 53
Southern Equities Corporation Ltd (In Liq) v Arthur Andersen & Co (No 7)
[2002] SASC 1 ............................................................................................................ 41, 42
Southern Law Society v Westbrook (1910) 10 CLR 609........................................................ 70
Spector v Ageda [1973] 1 Ch 30................................................................................ 60, 61, 70
Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 .................................................. 69
Standard Credit Corporation Ltd v Bester 1987 (1) SA 821 (W) .........................................221
450
Table of cases
Page
Stevens v Lamb unreported, Qld Sup Ct, Full Ct, 15 October 1971 ....................................120
Stewart v Secretary, Department of Health (unreported, NSW CA, 6 August 1986) .........118
Sussman v Testa 1951 (2) SA 226 (O) ................................................................................... 29
T
Terrapin Ltd v Builders’ Supply Co (Hayes) Ltd, Taylor Woodrow Ltd and
Swiftplan Ltd [1960] RPC 128 (CA) .................................................................................. 44
The Ophelia [1916] 2 AC 206 ..............................................................................................110
Theodoropoulas v Theodoropoulas 1963 2 All ER 772.......................................................327
Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v Director of
National Public Prosecutions 2009 (1) SA 1 (CC)............................................................. 57
Thomson, Re (1855) 20 Beav 545; 52 ER 714 ....................................................................... 95
Toto v Special Investigating Unit 2001 (1) SA 673 (E) ........................................................... 27
Townsend-Turner v Morrow 2004 (2) SA 32 (C).................................................................222
Tshabalala-Msimang v Makhanja 2008 (6) SA 102 (W) ........................................................ 97
Tuckiar v The Queen (1934) 52 CLR 335 .............................................................................270
U
Udall v Capri Lighting Ltd (In Liq) [1987] 3 WLR 465...........................................................201
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 17 WAR 98 ...................... 65
United Building Society v Smookler’s Trustee and Galombik’s Trustees 1906 TS 623 ......... 99
V
Van der Berg v General Council of the Bar of South Africa [2007] 2 All SA 499 (SCA)........197
Van der Heever v Die Meester 1997 (3) SA 93 (T) ................................................................ 54
Van Niekerk v Pretoria City Council 1997 (3) SA 839 (T)....................................................... 54
Van Wyk v Lewis 1924 AD 438........................................................................................ 6, 171
Vassen v Law Society of the Cape of Good Hope 1998 (4) SA 532 (SCA)............................191
Vernon v Bosley (No 2) [1997] 3 WLR 683............................................................................ 31
Village Roadshow Ltd v Blake Dawson Waldron [2003] VSC 505 ......................................... 69
W
Wallace v Health Commission of Victoria [1985] VR 403 ...................................................235
Wan v McDonald (1991) 33 FCR 491 .................................................................................... 69
Wan v McDonald (1992) 33 FCR 491 .................................................................................... 60
Ward v Barrett NO 1962 (4) SA 732 (N) ..............................................................................271
Warmington v McMurray [1937] 1 All ER 562...................................................................... 86
Washaya v Washaya 1990 (4) SA 31 ZHC...................................................................... 24, 167
Waste Products Utilisation (Pty) Ltd v Wilkes (BICCARI Interested Party)
2003 (2) SA 590 (W)................................................................................................... 46, 81
Waste Products Utilisation (Pty) Ltd v Wilkes 2003 (2) SA 515 (W) ..................................... 44
Waterford v Commonwealth (1986) 163 CLR 54.................................................................. 35
Wemyss v Stuart 1961 (3) SA 889 (D) .................................................................................328
451
Page
Wentworth v De Montfort (1988) 15 NSWLR................................................................. 94, 96
Weston v Central Criminal Court Courts Administrator (1977) QB 32 ...............................302
Wheatcroft, Re (1877) 6 Ch D 97.......................................................................................... 95
White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169............................ 29, 197
Woji v Santam Insurance Co. Ltd 1981 (1) SA 1020 (A) ......................................................197
World Medical Manufacturing Corporation v Phillips Ormonde & Fitzpatrick Lawyers
[2000] VSC 196 .......................................................................................................... 64, 65
Wright v Carter [1903] 1 Ch 27 at 57.................................................................................... 72
Y
Young v Robson Rhodes [1999] 3 All ER 524 ........................................................................ 68
Yunghanns v Elfic Ltd (unreported, Vic Sup Ct, Gillard J, 3 July 1998).................................. 68
452
Index
[References are to paragraph numbers]

A Alternative dispute resolution
Academic lawyer advantages of [19.20]
advantages of working as [59.15], [59.30] courts and [19.10]
comparison with other career options [59.25] growth of [19.10]
see also Career lawyers’ role in [19.25], [19.30]
disadvantages of working as [59.20] organisations promoting [19.30]
role [59.05], [59.10] professional rules [19.25]
preparation for [59.30] types [19.05], [19.15]
arbitration [19.15]
Accepting instructions see also First interview conciliation [19.15]
with client; Refusing instructions
expert appraisal [19.15]
confirmation in writing of [2.30], [2.35]
mediation [19.15]
considerations before[1.05] [2.10]
costs see Costs Advocates
direct from client [2.35], [5.30] becoming a [56.05],
evidence to support instructions [2.40] preparation for [56.10]
friends or relatives, from see Acting for what is the Bar [56.20]
friends or relatives work [56.10]
limited instructions [2.55] sources [56.15]
matters of principle [2.50]
retainer see Retainer Attorney’s lien
telephone [2.35] general [13.05], [13.10], [13.35]
third party, from [5.30] application of [13.10] [13.15]
verbal [5.15] discharge of [13.20]
written [5.15] examples [[13.25]
professional rulings [13.25]
Acting for friends or relatives particular [13.15]
acting for oneself [15.50] types of [13.10]
competency issues [15.20] undermining by opposing practitioner [13.30]
conflicts of interest [15.30] undertaking by new practitioner to preserve
cutting corners [15.15] [13.25]
discounts [15.25]
objectivity [15.40] Attorney, working as an
obtaining instructions [15.10] advantage of working as [55.40]
other practitioner [15.45] employee [55.10]
risks associated with [15.05], [15.55] partnership [55.20]
sexual relations with clients see Clients conditions [55.25]
453
Attorney, working as an – continued Chinese walls see Conflict of interest

partnership – continued
Clients see also Acting for friends or relatives;
legal issues [55.30]
First interview with client
practising as [55.05]
borrowing from [27.60]
sole practitioner [55.15]
professional rules [27.60]
specialising [55.35]
commercial dealings with [27.60]
C communication with see Communication
confidentiality see Confidentiality
Career
contact with see Communication
academic lawyer see Academic lawyer
costs [2.20] see also Costs
advocates , working as see Advocates
criminal matters see Instructions
“can’t say no” syndrome [65.05]
disadvantaged (pro bono), free work for
time to quit: examples [66.15]
[24.05]
warnings [66.20]
how to get involved [24.25]
when to say no [65.10]
incentives to undertake [24.15]
choices [54.05]
meaning [24.25]
in-house corporate lawyer see In-house
reasons to undertake [24.20]
corporate lawyer
research on need for [24.25]
in-house government lawyer see In-house
documents, entitlement to see Documents
government lawyer
duty to [1.05], [6.05]
leaving law [63.05] [66.00]
overview [1.05]
examples [66.15]
legal mid-life crisis [66.10]
feelings about [1.05]
planning [66.20]
first interview with see First interview with
timing [66.20]
client
professional paralysis [64.05]
former, acting for [10.25]
causes [64.15]
duty of loyalty to [10.50]
symptoms [64.10]
treatment [64.20]
friends or relatives as see Acting for friends
attorney working as see Attorney
or relatives
working as a
independence from see Independence
women in the law [62.05] [62.35]
interviews with see First interview with
future for [62.30]
client
maternity leave [62.20]
mistakes and misapprehensions see Mistakes
problems [62.15]
and misapprehensions
sexual harassment [62.25]
relationship with [1.05]
statistics [62.10]
retainer see Retainer
status [62.05], [62.10]
sexual relations with [16.05]
working overseas [60.05]
banning [16.15]
advantages [60.10]
Cape Law Society experience [16.35]
challenges [60.15]
doctor-patient relations [16.10]
considerations [60.40]
effects on client [16.15]
interviews [60.35]
effects on lawyer [16.15]
obtaining work overseas [60.30]
effects on profession [16.15]
preparing for move [60.25]
guidelines for proper behaviour [16.25]
timing [60.20]
judge-practitioner relations [16.40]
Case Lamb’s case [16.20]
conducting a see Conducting a case Law Institute of Victoria examples [16.30]
454
Index
Clients – continued Communication – continued

sexual relations with – continued without prejudice see Without prejudice
regulation of [16.15] witnesses, with [21.25]
relations v harassment [16.10] professional rules [21.25], [21.30]
threats against practitioners [22.15] Conduct
example [22.10], [22.15] confidentiality see Confidentiality
responding to [22.05] court see Conducting a case; Court etiquette
Communication see also Email; Fax; Telephone courtesy [2.15], [32.90], [34.90], [34.100]
ethical obligations see Ethical obligations
another practitioner’s client, with [21.05]
fit and proper person [27.05]
professional rules [21.05], [21.10]
negative duty [27.15]
where client is company [21.15] professional rules see Professional rules
where delay prejudicing client [21.10] sexual relations with clients see Clients
where insurer involved [21.20] standards of professional [27.05]
client, with [41.05] breaches and penalties [27.10], [27.20],
delays [3.20] [27.25]
first interview see First interview with unprofessional [27.15]–[27.115]
client attesting affidavits [27.40]
legislation: Financial Intelligence Act [2.40] borrowing from clients [27.60]
maintaining [3.10], [3.30] commercial dealings with clients [27.60]
offer of settlement [3.25], [5.20] conducting another business [27.70]
progress reports [3.10], [3.15] defrauding partners [27.50]
repercussions of not communicating [3.20] delays [27.80]
written confirmation of instructions [3.05] discourtesy to public [27.110]
confidentiality see Confidentiality false statements [27.35]
correspondence [41.05]–[41.65] ignorance [27.95]
accuracy [41.40] obligations not honoured [27.65]
courtesy [41.60] overcharging [27.85]
personal life [27.105]
emotion [41.45]
jargon and clichés [41.15]
requirements [27.100]
plain English [41.30] staff supervision [27.55]
plan [41.25] taxation offences [27.75]
reviewing [41.55] trust funds [27.45]
sloppy writing, examples of [41.10] undertaking, breach of [27.90]
standards and precedents [41.50]
structure and style [41.35] Conducting a case see also Court etiquette
wordiness [41.20] checklists [32.20]
reverse [32.25]
drafting see Drafting
cross-examination [32.70]–[32.95]
effective [40.05]
courtesy [32.90], [32.100]
email see Email
demeanour, witness’ [32.85]
fax see Fax effective questioning [32.80]
letters of demand see Letters of demand example [32.70]
negotiations see Negotiations guidelines [32.90]
plain English [2.25], [5.20], [41.30] know the answer [32.75]
simple language [2.25] necessity for [32.65]
telephone see Telephone objects of [32.70]
unrepresented prospective defendants, with examination-in-chief [32.45]–[32.60]
[21.35] forgotten evidence [32.50]
455
Conducting a case – continued Conflict of interest – continued

examination-in-chief – continued Chinese walls [10.30]
guidelines checklist [32.60] judicial attitudes to [10.35]
importance of [32.45] undertakings [10.40]
leading questions [32.55] commercial dealings with clients [27.60]
examples, humble cases [32.30] duty to client [2.10], [10.05], [10.95]
familiarity with court procedures [32.10] friends or relatives as see Acting for friends
familiarity with magistrate [32.35] or relatives
guidelines [32.15], [32.90], [34.100] gifts [10.60]
instructing in court [33.05] legal action against practitioner [10.70]
beginning of trial [33.15] non-clients [10.90]
during hearing [33.20] personal interest [10.55]
preparation [33.10] professional rules [10.55]
role [33.05] practitioner as witness [10.65]
settlement discussions [33.25], [33.30] professional rules [10.65]
see also Settlement prior clients [10.25]
judge, interruptions [32.105] duty of loyalty to [10.50]
mistakes and misapprehensions see Mistakes family law matters [10.45]
and misapprehensions professional rules [10.25]
opening a case [32.40]
opponent, interruptions [32.100] Contact see Communication
ordering witnesses out of court [32.40] Contempt of court
preparation [32.05], [32.15] contempt of [30.05]–[30.100]
re-examination [32.95] abuse of process [30.70]
withdrawal from court proceedings [4.15] antagonistic Bench [30.50]
Confidentiality see also Legal professional documents, destruction of [30.80]
privilege examples [30.15]–[30.55]
caution [8.05] failure to appear in court [30.90]
faxes [44.20] interfering with official duties [30.75]
duty of confidence [8.05], [8.10], [8.35], meaning [30.10]
[15.35] obstruction [30.75]
contravention of [8.25], [15.35] orders, breach of [30.85]
exceptions to [8.35] scandalising [30.95]
professional rules [8.10], [8.30] sub judice [30.100]
scope [8.20] types of [30.10], [30.60]–[ 30.100]
failing to preserve [8.30] undertakings, breach of [30.85]
consequences of [8.25] US courts [30.25]
fiduciary obligation [8.15]
Costs
purpose of [8.05], [8.10], [8.15]
acting for oneself [11.75]
Conflict of interest agreements [11.70]
acting for both parties to a transaction legislation [11.60]
[10.10], [10.15] attorney and client costs [11.20]
professional rules [10.10], [10.20] awarded against practitioner personally
acting for friends or relatives [15.30] [11.30]
acting for insurer and insured [10.85] bills [11.35], [11.40]
associated bodies [10.75] interim [11.50]
borrowing from clients [27.60] lump sum [11.45]
check [10.80] professional rules [11.35]
456
Index
Costs – continued Court – continued

calculating [11.10] courage [30.05]
attorney and client basis [11.20] courtesy [30.05]
cost bases [11.10], [11.20]–[11.30] etiquette see Court etiquette
costs de bonis propriis [11.30] instructing in see Conducting a case
example [11.10] issuing and filing documents [29.05]
indemnity basis [11.20]
mistakes and misapprehensions see Mistakes
party and party basis [11.10] and misapprehensions
contingency fees [11.55]
officer of the [28.05]
discounts [11.65]
officials, courtesy towards [29.10]
estimates [2.20]
explaining to clients [11.05], [11.15] Court etiquette
professional rules [11.35] experienced practitioners, guidelines,
file management [11.80] [34.105]
managing clients’ cost expectations [11.05] conduct in court [34.10]–[34.110]
mistakes and misapprehensions see Mistakes courtesy to court administration [34.105]
and misapprehensions
courtesy to opponent [34.100]
overcharging [11.60], [27.85]
tactics [34.95]
payment of [2.50]
in advance [11.40] inexperienced practitioners, guidelines
taxation of [11.35] [34.10]
witness’s expenses [31.40] addressing judge [34.65]
adequate instructions [34.80]
Counsel asides [34.35]
brief [20.40] awareness of actions [34.25]
content [20.40] bowing [34.30]
preparing [20.40]
cellphones [34.15]
briefing [20.10], [20.40]
chewing [34.50]
choosing [2.05]
clients’ expectations [20.55] demeanour [34.45]
delays [20.35], [20.50] dress code [34.85]
fees [20.05], [20.10] humour [34.70]
agreeing [20.05], [20.10] leaving Bar table unattended [34.90]
cancellation [20.15] messages for counsel [34.40]
legislation [20.35], [11.55] peeping into courtroom [34.55]
mistakes and misapprehensions see Mistakes silence [34.20]
and misapprehensions standing [34.75]
negotiations [20.20] obligations [34.05]
other side’s [20.25] rules of [34.100]
pleadings, signing of [20.45]
role of [20.20] Cross-examination see Conducting a case
Senior [20.05]
fees [20.05] D
settlements [20.20] Documents
Court Anton Pillar orders [14.30]
case see Conducting a case charging for [12.25]
conduct see Conducting a case; Court professional rules [14.20]
etiquette storage [12.25]
contempt of see Contempt of court condition of [12.15]
457
Documents – continued Ethical obligations – continued

destruction of [14.05], [14.15], [14.25] duty not to corrupt administration of justice –
ethical issues continued
formal information-gathering notices purpose [6.30]
[14.35] requirements [6.30]
legislation [14.10] duty of candour [6.15]
professional rules [14.20] civil proceedings [6.20]
sources of law on [14.10] in presentation of facts [6.20]
special legal requirements [14.10] in presentation of law [6.20]
entitlement to [12.05], [12.35] professional rules [6.20]
lien see Solicitor’s lien requirements [6.20]
litigation [14.25] duty to client [1.05], [6.05]
destruction of documents, consequences duty to conduct cases efficiently and
of [14.25] expeditiously [6.35]
duplicate documents, [14.25] duty of honesty [6.20]
management of [14.05], [14.35] requirements [6.35]
potential [14.25] duty to court [6.05], [6.45]
retention of potentially discoverable breach of [6.40]
documents [14.25] officer of the court [6.10]
medical reports [12.30] professional rules [6.15], [6.20]
ownership of [12.10] duty to fellow practitioners [17.05]
guidelines [12.10] advantage of good relations [17.10]
types of documents [12.10] duty to profession [23.10]
retention of [12.20] duty to uphold administration of justice
[23.05]
Drafting
prior clients, duty of loyalty to [10.50]
client alterations [47.15]
guidelines [47.05] Examination-in-chief see Conducting a case
legal precedents [47.10]
F
E Fax
Email advantages [44.05]
advantages [45.05], [45.15] confidentiality [44.20]
confidentiality [45.25] clause [44.20]
statement [45.25] privacy risks [44.20]
wrong address [45.25] transmission sheet [44.20]
embarrassing [45.10] wrong number [44.20]
examples [45.10] counsel [44.25]
guidelines for use of [45.20] overuse of [44.10]
proof of receipt [44.30]
Ethical obligations see also Professional Rules
timeliness [44.15]
confidentiality see Confidentiality
duty not to abuse process [6.25] First interview with client see also Accepting
abuse of process, examples [6.25] instructions; Instructions; Refusing
associated costs [6.25] instructions
requirements [6.25] client to bring prepared questions [2.30]
duty not to corrupt administration of justice considerations [2.10], [2.40], [2.65]
[6.30] before accepting matter [2.10]
example [6.30] before advising [2.45]
professional rules [6.30] contact see Communication
458
Index
First interview with client – continued In-house corporate lawyer – continued

costs estimate [2.20] see also Costs flexibility [57.35]
courtesy [2.15] independence see Independence
criminal matters see Instructions internal clients [57.15]
decisions [2.10] legal professional privilege see Legal
accepting the matter [2.10] professional privilege
referring on [2.10] preparation for role [57.60]
delays [2.15] project management [57.20]
environment [2.15] role [57.10]
explanations [2.20] ethical advice [57.25]
Financial Intelligence Act [2.40] skills [57.30]
general [2.05]
instructions see Accepting instructions In-house government lawyer
organise meeting [2.30] advantages of working as [58.25]
plain language [2.25] disadvantages of working as [58.30]
planning for [2.20] independence see Independence
probable length of [2.30] practice areas [58.15]
retainer see Retainer role [58.05], [58.10], [58.40]
preparation for [58.35]
Friends and relatives as clients see Acting for
work [58.20]
friends or relatives
Instructing in court see Conducting a case
Fraud
general [2.10] Instructions see also Accepting instructions;
First interview with client; Refusing
G instructions
Gifts see Conflict of interest accepting see Accepting instructions
acting without authority [5.10], [5.20]
I criminal matters [2.60]
Independence character evidence statement [2.60]
Advocates [7.20] check charge details [2.60]
professional rules [7.20] client confidence [2.60]
client expectations [7.15] interview client alone [2.60]
commercial transactions [7.15] offenders, types of [2.60]
corporate collapse [7.15] police questions [2.60]
in-house government lawyers [7.20] direct from client [2.35]
in-house lawyers [7.20] duty to obey [5.05]
legal professional privilege [7.10 ] see also evidence to support [2.40]
Legal professional privilege failure to obey [5.05]
in-house lawyers [7.25] following [5.05], [5.35]
meaning [7.05], [7.25] limited [2.55]
In-house corporate lawyer obtain complete [2.30]
advantages of working as [57.40], [57.70] refusing see Refusing instructions
teamwork [57.45] settlement see Settlement
variety and opportunity [57.50] telephone [2.35]
career progression [57.05] verbal [5.15]
comparison with other career options [57.65] written [5.15]
see also Career written confirmation of [2.30], [2.35], [5.15]
disadvantages of working as [57.55] uneconomical matters [2.50]
459
L Mistakes and misapprehensions – continued

Legal professional privilege commercial matters [39.05]
as a defence – public interest benefit [9.80] acting for business purchaser [39.15]
communications by third parties [9.60] contracts [39.10]
docket privilege – witness statements [9.85] joint ventures [39.20]
duration of privilege [9.45] negotiating [39.25]
extent of privilege [9.40] role in [39.30]
forfeiture of privilege [9.50] common [36.40]
importance of privilege [9.05] costs, relating to [36.30]
information gathering [9.105] criminal law, relating to [36.25]
in-house legal advisers [9.15] family law, relating to [36.10]
insolvency – admissions [9.70] file management [38.35]
insolvency section 417 enquiries [9.75] guarantees, relating to [36.15]
introduction [9.05] how to avoid [35.05]
onus of proof [9.65] irrevocable authorities [36.35]
privilege as a defence – public interest litigious matters [38.05]
benefit [9.80] affidavits [38.25]
privilege between insured and insurer [9.110] client-related errors [38.05]
requirements of privilege [9.10] costs [38.10]
search and seizure – validity of warrants counsel [38.15]
[9.90] court documents [38.20]
the right to privilege [9.95] discovery [38.30]
the s 29(11) mechanism for settling claims of hearings [38.40]
privilege [9.100] interrogatories [38.30]
waiver [9.30] office errors [38.35]
when can privilege be claimed [9.55] property, related to [37.05]
when does privilege arise [9.20] acting for lessee [37.15]
when does privilege not operate [9.25] acting for purchaser [37.05]
who owns the privilege [9.35] acting for seller [37.10]
wills, relating to [36.20]
Letters of demand
claiming costs in [42.30] N
defamation actions [42.25]
Negligence, avoiding
drafting [42.05]
commercial transactions [26.135]
necessity [42.10]
consultations: last minute [26.90]
reasons for not writing [42.15]
counterclaims [26.110]
reasons for writing [42.10]
defendants: acting for more than one [26.95]
replying to [42.40]
defendant’s insurance cover [26.100]
threats in [42.05]
duty of care [26.60]
“without prejudice” [42.35] see also Without
free legal advice to acquaintances [26.125]
prejudice
general [26.150]
Lien see Solicitor’s lien injuries, stabilisation of [26.85]
lack of knowledge [26.25]
M legal opinion: incorrect [26.55]
Mistakes and misapprehensions liability [26.05]
behaviour and attitude [38.40] managing professional skills: SA scenario
clients, relating to [36.05], [38.05] [26.20]
460
Index
Negligence, avoiding – continued Practice management – continued

office systems [26.145] see also practice importance [48.05]
management priorities [49.05]
other practitioner: matter taken over from availability [49.15]
[26.120] guidelines [49.30]
overseas considerations [26.140] flexibility [49.25]
pleadings: drafted by counsel [26.115] office systems [49.20]
precautions against negligence [26.155] workload assessment [49.10]
prescription [26.45], [26.70] research see Research
proceedings: instituted for tactical purposes technology see Technology
[26.80]
property transactions [26.130] Professional conduct: ethical obligations
reasonable skill: what constitutes [26.10] acting for both parties to a transaction
[10.10], [10.20]
Rules of Court: failure to observe [26.35],
[26.40] acting for clients [2.10]
alternative dispute resolution [19.25]
service of proceedings [26.75]
attorney’s lien [13.05]
specialists, standard [26.15]
borrowing from clients [27.60]
trust funds: disbursements without
instructions [26.50] client confesses guilt [2.60]
trust funds: failure to invest [26.30] client settlement statement [5.20]
what happens when you have acted communicating with another practitioner’s
negligently [26.65] client [21.05]
Will Act: failure to observe formal communicating with witnesses [21.25]
requirements [26.60] conducting another business [27.70]
Witnesses: signed statements [26.105] contempt of court [30.105]
costs agreement [11.70]
Negotiation counsel [20.35]
alternative dispute resolution see Alternative document storage, charging for [12.25]
dispute resolution disclosure of confidential information [8.30]
bluff [18.30] duties to court [6.15]
concessions [18.40] duty not to corrupt administration of justice
confirm in writing [18.65] [6.15], [6.30]
duty to client [18.05] duty of candour [6.20]
guidelines on behaviour [18.15]–[18.20], duty of confidence [8.10]
[18.35], [18.55], [18.60], [18.65] duty of confidentiality [8.10]
limitation periods [18.45] duty to conduct cases efficiently and
mistakes and misapprehensions see Mistakes expeditiously [6.35]
and misapprehensions duty to fellow practitioners [17.05]
styles [18.10] entitlement to documents [12.10]
timing of [18.45] estimating costs [11.15]
evidence contrary to known facts [31.35]
P fiduciary duty of confidence [8.15]
Practice management see also Email; Fax; incomplete disclosure in ex parte applications
Telephone [38.40]
file management [50.05] independence, importance of [7.15]
guidelines [50.25] in-house lawyers and independence [7.20]
learn [50.05], [50.10] letters of demand, threats in [42.05]
paper [50.15] lien [13.15]
personal system [50.20] personal interest, conflict and [10.55]
461
Professional conduct: ethical obligations – Retainer – continued

continued termination of – continued
personal undertakings [25.15] good cause to terminate [4.15]
practitioner as witness [10.65] professional rules [4.25]
pre-trial meeting with multiple witnesses reasonable notice [4.20]
[31.10] solicitor’s lien [4.10]
prior clients [10.25] transfer to another practitioner [4.25]
progress reports to clients [3.15] what is a [4.05], [4.10]
settlement amount [33.30]
termination of retainer [4.15] S
transfer of matter to another practitioner Settlement
[4.25] discussions [5.20], [20.30], [33.25], [33.30]
unprofessional conduct [27.05] drafting terms of [33.30]
witness’s duty of confidentiality [31.45] acting for defendant [33.30]
acting for plaintiff [33.30]
Property professional rules [33.30]
avoiding negligence in property transactions taxation implications [33.30]
[26.130] negotiations [18.05]
mistakes and misapprehensions see Mistakes offer [3.25], [5.20]
and misapprehensions client statement, signed [5.20]
R communication to client [3.15]
dispute with client [5.20]
Refusing instructions see also Accepting professional rules [5.20]
instructions; First interview with client verbal instructions [5.20]
reasons for [1.05], [2.10], [2.50], [5.05] written instructions [5.20]
Research
T
books and articles [51.15]
colleagues [51.45] Technology see also Email; Fax; Telephone
computer-based [51.35] attitude towards [52.10], [52.45]
counsel [51.50] billing system [52.35]
general references [51.20] computer-related [52.15]
Internet [51.30], [53.10] CD-ROM [52.40]
legislation [51.25] guidelines for beneficial use of [52.15]
looseleaf services [51.10] notebooks [52.40]
officials [51.55] PDF [52.40]
opinion bank [51.40] scanning [52.40]
overview [51.05] dictaphones [52.20]
technology see Technology guidelines for use of [52.05]
timeliness [51.60] impact on practice [52.05]
Internet [53.05]
Retainer advantages [53.05]
breach of contract [4.10] client service [53.25]
entire contract [4.10] information [53.15]
general [4.05], [4.35] legal issues [53.30]
termination of [4.15] marketing tool [53.20]
attorney’s lien [4.25] research [53.10]
client withdrawal from [4.10] multimedia [52.40]
duty of confidence [4.30] office equipment [52.30]
fees [4.10] voice-activated document production [52.25]
462
Index
Telephone Without prejudice – continued

advantages [43.05] joint privilege [46.20]
cellphone [34.15], [43.45], [43.50] meaning [46.05]
efficiency [43.30] mixing communications [46.40]
guidelines [43.10], [43.20], [43.50] off the record [46.45]
instructions via [2.35] rationale [46.15]
returning calls [43.35] related communications protected [46.35]
rudeness [43.15] rule [46.10]
speaker phones [43.40] scope [46.20]
“without prejudice” [43.25] see also Without third parties [46.40]
prejudice use of words [46.30], [46.50]
U Witness
child as [31.50]
Undertakings coaching of [31.35]
accepting from another practitioner [25.40] conferring with other side [31.45]
enforcement of [25.15], [25.35] courtroom behaviour [31.30]
nature of [25.10] expenses [31.40]
personal [25.15] experience [31.05], [31.15]
professional rules [25.15] legal professional privilege [31.60]
release from [25.15] order called [31.55]
when not to give [25.15] procedure [31.25]
on behalf of client [25.20] pre-trial conference with [31.10]
terminology used [25.25], [25.30] methods of holding [31.10]
multiple witnesses [31.10]
W
proof of evidence [31.10]
Without prejudice preparation of [31.15], [31.25], [31.30]
communications not protected [46.45] professional rules [31.10], [31.35], [31.45]
conditional offers of settlement [46.25] statements [31.20]
general rule [46.10] who to call as [31.55]
463

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Lewis and Kyrou’s

Adapted from Lewis and Kyrou’s

First edition 1985 Second edition 1993

Editor: Elaine Smit

Printed and bound by Interpak Books Pietermaritzburg

GORDON D LEWIS LL B (Melb) is a former Judge of the County Court of

Editor of the South African edition

matters and assistance to practitioners, her office as chairman of the Interna-

The Hon Sir Gerard Brennan

lawyer will be of great assistance to those contemplating employment in one

The RT Hon Sir Ninian Stephen

freedoms, the presumption of innocence, the right not to be imprisoned

When I was still lecturing Professional Conduct and Business Administration

useful guidelines and practical tips specifically with regard to professional

l Maintaining contact with clients and termination of retainer are dealt

A large number of people assisted us in various ways in the preparation of

Incorporated Council of Law Reporting for England & Wales

Law Council of Australia

Law Institute of Victoria

The Consultative Council of Australian Law Reporting

Part 1 Relationship with your client

Part 2 Relationships with other practitioners

Part 4 Relationship with the courts

Part 5 Mistakes and misapprehensions

Part 6 Communication and drafting

Part 8 Working in the law

Part 9 Leaving the law – common legal diseases

competence, but must not in any circumstances descend to the dishonour-

1 Lewis, Legal Ethics (Juta & Co Ltd, 1982) p 15.

First client interview

Accepting the client

understand your client’s problem.2 This is best achieved by carefully listening

Take time to explain

prevents communication, either arrange an interpreter or refer the client to a

Instructions direct from your client

Evidence to support instructions

Do not give hurried advice

be enquired into. Personal details, including family, education, outside influ-

Client confidence in you

Client interviews: conclusion

Maintain regular contact

Client contact: conclusion

Good cause to terminate

Smooth transfer to new practitioner

Ongoing duty of confidence

Duty to obey instructions

Acting without authority

Doing good by stealth

Instructions direct from your client

Following instructions: conclusion

Duties to the court

Officer of the court

The various duties to the court

2 Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA).

Duty not to abuse process

3 General Council of the Bar v Matthys 2002 (5) SA 1 (E).

were so unnecessary that they could with justification be described as vexa-

6 De Klerk v Scheepers 2005 (5) SA 244 (T).

Duty not to corrupt the administration of justice

Duty to conduct cases efficiently and expeditiously

Consequences of breaching your duties to the court

Ethical obligations: conclusion

legally and ethically correct position in response to self-interest or pressure