Notes On Legal Ethics For L485 2020-2021

LEGAL ETHICS
Known as the oldest profession, and dating as far back as the

biblical times, those who are legal practitioners are known to be
members of a “noble” profession. The description of the legal
profession to be called “noble” attracts therefore that certain
characteristics should attach to the profession so as to make it
noble. There are certain standards of behavior that those in the
legal profession must adhere to in order to maintain the nobility of
the profession. This behavior or standards are called “legal ethics”.
The sources of Legal ethics are; Professional codes of conduct, the
law and the rulings of the courts of law.
Some academics propose that the ethical principles can be

categorized into
a. Competence
b. Independence
c. Loyalty to client
d. Maintaining the confidentiality of a client secrets
e. Responsibility to the Courts of law and to colleagues
f. Honourable conduct in professional and personal matters.
g. Integrity
h. Objectivity
i. Knowledge and technical skill
j. Dignity
k. Capacity for hard work
l. Power of judgment
The Supreme Court of India in the case of Ramon Services Pvt.
Ltd vs Subhash Kapoor and Others on 14 November, 2000
succinctly put it as follows;
The legal profession is a solemn and serious occupation. It is a noble
calling and all those who belong to it are its honourable members.
Dec 15, 1986 - 1 C. Rama Swamy Sarma, Lawyer's Role in Present Society, Andhra Law Times
1987. (Journal ... Vol.V. 7 J. Mackenzie, A Manual of Ethics 2 (1980 Page 1
Although the entry to the profession can be had by acquiring merely
the qualification of technical competence, the honour as a
professional has to be maintained by its members by their exemplary
conduct both in and outside the court. The legal profession is
different from other professions in that what the lawyers do, affects
not only an individual but the administration of justice which is the
foundation of the civilised society. Both as a leading member of the
intelligentsia of the society and as a responsible citizen, the lawyer
has to conduct himself as a model for others both in his professional
and in his private and public life. The society has a right to expect of
him such ideal behaviour. It must not be forgotten that the legal
profession has always been held in high esteem and its members have
played an enviable role in public life. The regard for the legal and
judicial systems in this country is in no small measure due to the
tireless role played by the stalwarts in the profession to strengthen
them. They took their profession seriously and practised it with
dignity, deference and devotion. If the profession is to survive, the
judicial system has to be vitalised. No service will be too small in
making the system efficient, effective and credible. The casualness
and indifference with which some members practise the profession
are certainly not calculated to achieve that purpose or to enhance the
prestige either of the profession or of the institution they are serving.
If people lose confidence in the profession on account of the deviant
ways of some of its members, it is not only the profession which will
suffer but also the administration of justice as a whole. The present
trend unless checked is likely to lead to a stage when the system will
be found wrecked from within before it is wrecked from outside. It is
for the members of the profession to introspect and take the corrective
steps in time and also spare the courts the unpleasant duty. We say
no more."
The profession of lawyers ordains a high level of ethics as much as

in the means as in the ends. Justice cannot be attained without the
stream being pellucid throughout its course and this is of great
public concern, not merely profession care, the standards of
professional conduct, that is the legal ethics not only serve the
interest of the society but they also help the legal profession to
maintain the honour and dignity of the profession as well as the
system of administration of justice prevailing in the society.
Meaning of Ethics
The word 'ethics' is derived from the Greek word 'Ethos' meaning
custom or a habitual mode of conduct. Ethics is essentially a moral
science. It is the branch of philosophy which is only concerned with
human character and conduct. Generally 'ethics; is treated to be
the same as moral philosophy, Generally speaking, ethics can be
said to be the study of human actions in respect of they being right
or wrong actions of individuals and social groups with which we are
now concerned is the one belonging to the profession of law.
Legal ethics means the ethics of the legal profession. It is the body
of rules and practices which determine the professional conduct of
the members of the Bar and of the Bench. The phrase 'legal ethics'
shows the existence of a set of professional norms for lawyers apart
from the moral rules which regulate the conduct of men in general.
Legal ethics means "usages and customs among members of the
legal profession involving their moral and professional duties
towards one another, towards clients and towards the courts; that
branch of moral science which treats of the duties which a member
of legal profession owes to the public, to the court, to his
professional brethren, and to his client." Legal ethics are not
exclusively rules-based. The customs and cultures of lawyers, to the
extent that they have some effect on the delivery of legal services
should also be included within an extended definition. Lawyer’s
allegiance to these ethical values, and canons of conduct, have been
shaped through ages.
Prof. (Dr.) R.Venkata Rao, Vice Chancellor National Law School of

India University, Bengaluru in his book, Law, Justice and Human
Values records an encounter he had with the morally celebrated
Mother Teresa. He records the incident as follows:
Once during my interaction with Mother Teresa when she visited
Andhra University to address the University Community, 116 she
asked me a question –
Son, what are you?
I humbly said: I am a teacher.
Mother asked: What do you teach?
I said I teach Law.
Mother said: God Bless you, son, also teach Ethics.
I said I will.
Then Mother asked me: Do you know the meaning of Ethics?
I humbly said: Mother, kindly, enlighten me.
She said, by Ethics I mean: “Show concern for others”.
This takes us to the discussion on, what are the ideal qualities of an
ideal legal practitioner. we will look at this through the words
penned by L M du Plessis in his publication “the ideal legal
practitioner´” De Rebus Volume 1981, Issue 165. He tabulates them
as follows;
Integrity
"Integrity" can be described as "upright steadfastness" or
"impeccable honesty" - the immunity against the temptation to do
something dishonest or irregular for the sake of personal gain. With
judicial officers, integrity includes inter alia the quality of
incorruptibility. It is sometimes believed that legal practitioners -
being "businessmen" with a first duty "to make as much money as
possible" - are allowed to yield to at least some of the taboos which
judicial officers are obliged to avoid at all cost. This (of course!)
patently incorrect view, is also perilous. Legal practitioners are
officers of the court - the very court that allows them to practise. In
consequence they are and should be measured by the same
stringent criteria which apply to judicial officers. It is no mere
coincidence that judges are appointed mainly from the ranks of
practitioners. Practitioners are supposed to be trained servants of a
public legal order.
Objectivity
Objectivity is frequently identified with fairness and impartiality.
"Possessing integrity" inter alia amounts to not having one's
judgment determined, blurred or simply influenced by
considerations of personal gain. Objectivity, on the other hand,
requires that no irrelevant considerations whatsoever should bear
upon one's judgment. From judges and magistrates objectivity-
authoritatively embodied in the precepts audi et alteram par/em
and nemo imlex in re sua - is expected and required and required as
a judicial matter of course - hence its name "natural justice". If,
however, one is convinced that practitioners, as administrators of
justice, have a cause and not merely the personal interests of their
clients to further, objectivity is indispensable to them as well. The
best interests of his client within the authoritatively permissive and
prohibitive framework of a prevailing (public) legal order, is a
practitioner's first and foremost concern.
Dignity
It is not only considerations of professional pride and tradition
which require dignity from the members of the legal profession. The
man in the street ought to know that those who look after his legal
interests will display deliberate earnestness and will maintain a
healthy judicial aloofness in deciding and managing his affairs.
Worthily keeping a level head provides the setting for the
pronouncement of honest and objective judgments- for justice also
manifestly to be seen to be done. 9 For this highly relevant reason
dignity is required from legal practitioners. Not only should they
conduct themselves in a dignified fashion, but they also have a duty
to maintain and promote the dignity of the court.
Knowledge and technical skill
If the well-known dictum of an English Lord Chancellor that he
liked his judges to be gentlemen and if they also knew a little law,
so much the better, holds any good and can claim at least some
truth, then - for heaven's sake - let at least legal practitioners be
legal experts I I am not going to elaborate on this point at all.
Suffice it to say that perhaps the only justification for academic
presumptuousness may be sought in the fact that all branches of
the profession are looking for academically trained members, as
their respective admission requirements amply prove.
Capacity for hard work
The legal profession - as we "outsiders" are able to gather -
guarantees a sluggard's failure. Therefore the academic should help
to protect the practising profession against those with an
exceptional talent for laziness. High demands should be made of
law students in regard to their capacity for work. Not only should a
law student be able to master a considerable volume of work, but
he should also be able to do it in a relatively short time. To meet
this educational demand, diligent academics are of course also
required.
Respect for legal order
This essential quality for any legal practitioner, slightly rephrased,
also means "respect for the path(s) of the law" or "the pursuit of
legality".
Sense of equity
Equity is often, rather inaptly, identified with justice. The ancient
Greek philosopher, Aristotle, described equity as "a rectification of
law in so far as law is defective on account of its universality".
Equity may therefore be defined as the capacity to relate the
objectives of a legal order as an order of justice via the application
of its normative precepts, to the peculiarities of each unique,
concrete situation. Equity allows for exceptions in order to
accommodate "hard cases" without frustrating the objectives of a
justice promoting legal order.
The old saying that "hard cases make bad law" should not be
understood in an absolute sense. The notion of summum ill, summa
iniuria can also, as experienced jurists ought to know, claim at least
an equal amount of truth. A healthy sense of equity which legal
practitioners as counsellors of legal subjects with concrete legal
problems in life's concrete situations ought to display, can in
principle be cultivated in law students as well. When teaching any
law subject, continuous reference to concrete problems should be
made. Never should the belief that the application of a legal precept
to a legal problem is "all that simple" be nurtured. "Every legal
precept may have its exceptions when applied to concrete problems"
should become a law-teaching rule ... without exceptions.
A LAWYER'S DUTY TO THE COURT

Furlong, Jordan
A lawyer's duty to the court is a fundamental obligation that defines a lawyer's role within the
adversarial system. However, a lawyer's duties are not carried out in a vacuum. While facing
financial and competitive pressures, lawyers must fulfill and balance their duties to the client,
opposing counsel, the administration of justice and society.
READING MATERIAL
Duties to court
(1) Duty to act honestly, consciously and openly (conversely:
not to mislead the court and to disclose material facts):
 Kekana v Society of Advocates of SA 1998 (4) SA 649 (SCA)
 General Council of the Bar v Mattys 2002 (5) SA 1 (E)
 Van der Berg v General Council of the Bar [2007] SCA 16
(RSA) (2)
2. Duty to act with utmost good faith towards the court

 Jasat v Natal Law Society 2000 (3) SA 44 (SCA)
 Ulde v Minister of Home Affairs and Another 2008 (6) SA 483
(W) para 36ff
(See also order of the SCA in Jeebhai v Minister of Home Affairs
2009 (5) SA 54 (SCA)
3. Duty to acquaint him/herself with the rules of court and

articulate the best argument available
 PN Cele v SASSA and 22 related cases 2009 (5) SA 105 (D)
 Feni v Gxothiwe and another (2014 (1) SA 594 (ECG)
4. Duty not to abuse the process of the courts:

 Motswai v Road Accident Fund 2013 (3) SA 8 (GSJ) and
(2010/17220) [2013] ZAGPJHC 99 (2 May 2013)
. Motswai v Road Accident Fund (766/13) [2014] ZASCA 104 (29
August 2014)
5. Duty to disclose adverse facts
 Excursus: Revealing confidences to prevent future injury or

death: Spaulding v Zimmerman 263 Minn. 346, 116 N.W.2d
704 (1962) o R Cramton & L Knowles ‘Professional Secrecy
and its Exceptions: Spaulding v Zimmerman Revisited’ (1998)
83 Minnesota Law Review 63 19
6. Duty to disclose adverse authority

 Ulde v Minister of Home Affairs and Another 2008 (6) SA 483
(W) para 36ff
(See: also order of the SCA in Jeebhai v Minister of Home Affairs

2009 (5) SA 54 (SCA)
7. Duty in cross-examination
‘Cross-examination, intended as a scalpel to excise the tumour

of untruth, has become a bludgeon with which justice is
slowly clubbed to death. We have elevated cross-examination
to the status of a holy cow and forgotten its purpose. This
often bloated beast has to be culled and replaced with one
much leaner and more effective.’ (S v Baleka, Delmas Treason
Trial)
- Attorneys and advocates are officials of the court and should
always act with dignity and give the courts their due respect and
maintain and promote the dignity of the court. - The court should
be able at all times to rely on their honesty and on the veracity of
their statements. There can be no effective administration of justice
without legal practitioners being scrupulously truthful in their
dealings with one another and the courts. - Their sense of integrity
should guide them to keep abreast of the law and to inform the
court of all the relevant case law of which they are aware, even if
this may be to the detriment of their client’s case. - They may not
act in contempt of court [insulting a judge or magistrate. Se: R v
Silber 1952] or mislead the court, whether directly or indirectly, for
example by making misrepresentations or false statements.
Contempt of court is a common law as well as a statutory offence. –
They may not conceal anything that the court requires for the
administration of justice or abuse court procedures through the use
of delay tactics.[See: Ex Parte Jordaan: In Re Grunow Estates
(Edms) Bpk v Jordaan 1993 – application in excess of 800 pages. ]
If material facts are withheld from the court, this may lead to a
decision that the attorney or advocate involved is not a fit and
proper person to practise law. Ex parte Swain 1973
In ex parte applications, practitioners are obliged to act in the
utmost good faith and to put all relevant facts to the court so that
the court may have full knowledge of the circumstances of the case.
[Ex parte Cassim 1970] prior convictions withheld. Estate Logie v
Priest 1926 full circumstances not divulged.
In motion court proceedings, advocates should bring to the
attention of the court any deviations from the usual forms and offer
an explanation for this. [Ex Parte Satbel (Edms) Bpk: In re Meyer
v Satbel (Edms) Bpk 1984.]-
Matters should be settled by the courts and not the media. Legal
practitioners may not therefore make statements to the media with
regard to cases in which they are involved. - Legal practitioners’
duty to the court is greater than their duty towards their clients,
except as regards their duty not to disclose the confidences of the
client to the courts. The lawyer must subordinate his or her own
interests to those of the court and the client.
See further;
 Rondel v Worsley[1967]1QB443at 502 / [1969]AC 191
 Arthur J S Hall v Simons [2002] 1 AC 615 /[2000]3 ALL ER
673 at 687 and 693
 Barlow Rand Ltd V Lebo’s 1985 (4) SA (T) [see para p 344 BD
and 345D and 346 A]
 S v Ndima 1977(3)SA 1095 [see para 1095G-1096A]
 Washaya v. Washaya 1990 (4) SA 41
DUTY TO HIS/HER CLIENTS

Clients form a constant feature in the professional lives of legal
practitioners. The legal profession has put in place various systems
and processes that are aimed at protecting clients
(i) The acceptance of a mandate from clients:

Attorneys should be committed to the aggressive single-minded
pursuit of their client’s legal objectives, regardless of their
personal opinion of the character or the moral merits of the
client’s objectives. Whilst attorneys are not obliged to accept
client’s brief, an attorney should - if he does accept a client’s
mandate - carry out the work with the necessary due diligence -
encompassing the care, skill and commitment that may
reasonably be expected from any legal practitioner.
these include to: - seek to balance the interests of clients with
the interests of the community. - endeavour to reach a solution
by settling out of court, rather than initiating legal proceedings, if
it is in the client’s interests.
- be honest in advising the client on the merits of his or her case
and should tell a client when he is wrong, even if this might
mean that the client goes elsewhere for advice.
- act fairly towards unrepresented party to a contract.
- not acquire a financial interest in the subject matter of a case
which you are conducting.
- consider any possible conflict of interests and whether the
mandate involves any illegality or other impropriety and refuse to
co-operate or withdraw if dishonesty is required of the
practitioner himself by the client or any party.
- keep a separate banking account in which all money held or
received by them on account of other persons must be deposited.
- honour his duty of confidentiality. In respect of confidential
communications made with a view to litigation, as well as all
confidential communications made for the purpose of giving or
receiving legal advice or assistance, which are considered to be
privileged information. ▫
Once an attorney has accepted a mandate, he has to see the
matter through; he may withdraw only with the client’s consent,
or with good reason, such as the client’s improper or fraudulent
beha
The referral rule and its rationale; Advocates generally may not
accept briefs directly from clients but must be briefed by an
attorney. Hence - attorneys must facilitate access by the client to
an advocate, should the client’s brief or circumstances so
require. This is also known as the referral rule - which includes
to:
▫ initiate contract between advocate and client;
▫ negotiate and receive fees from the client;
▫ instruct the advocate specifically in relation to each matter
affecting client’s interest;
▫ oversees each step advised or taken by the advocate;
▫ keeps the client informed, and is present as far as possible
during interactions between the client and the advocate.
The rationale for the referral rule:
▫ The client is afforded the legal expertise required at the
appropriate time of the litigation process. ▫ The advocate is not
burdened by unnecessary detail, but only with what is essential
to the matter at hand.
▫ It is in the public interest that advocates do not handle any
money on behalf of clients as this is the task of the briefing
attorney.
(ii) The need for a trust banking account

All attorneys must keep a separate trust banking account - in
which all money held or received by them on account of other
persons must be deposited. No amount standing to the credit of
such an account is to be regarded as forming part of the assets of
the attorney. - Any shortfall in the account may be recovered
from the Fidelity Fund in proper circumstances. The law society’s
most fundamental rule is that the total amount in an attorney’s
trust account must at all times be sufficient to cover the
amounts owing to trust creditors (although it is no requirement
for admission as an attorney that the applicant should satisfy the
court of this ability). An attorney receiving money from his client
without having any trust account, would become involved in the
financial affairs of his client and would therefore lose his
professional independence and ability to act in the interest of his
client and may – if abuse is proven be summerly struck off the
roll.
(iii) The duty of confidentiality owed to the client?

The contract between attorney and client also brings about the
duty of confidentiality.
The attorney may not divulge confidences or communications made
to him or her by the client in the course of their professional
relationship. This applies whether the communication is oral or in
writing, and even where the client admits that he or she has
committed a crime. Hence a relationship develops between an
attorney and client wherein the attorney’s duty of confidentiality
and the client’s corresponding right to confidentiality continue even
after the attorney-client relationship has come to an end, and only
the client may waive this right.
Apart from this contractual obligation, it is also an established
principle of law that confidential communications made with a view
to litigation, as well as all confidential communications made for the
purpose of giving or receiving legal advice or assistance, are
considered to be “privileged information”. This means that privileged
information may not be disclosed to a court or in quasi-judicial
proceedings, or offered in evidence. It is an accepted legal principle
that to divulge this kind of information would not promote the
proper functioning of the litigation process or of the legal system in
its entirety.
S v Safatsa 1988 (1) SA 868 (A)
The privilege is the client’s, and not the practitioner’s
Algemene Balieraad van Suid-Afrika v Johan van den Berg 2005
(case no 2419/2005 C).
Further reading:
King Woolen Mills and Another v. Kaplan and Stratton Advocate’s
Nairobi Civil Appeal no.55 of1993
Gran Gelato Ltd v Richcliff (group) Ltd [1992] CH 560
AVOIDING CONFLICTS OF INTEREST

Concurrent conflicts Successive conflicts Imputed conflicts
(‘Chinese walls’ = remedy?)
 Prince Jefri Bolkiah v KPMG (a firm) [1999] 1 All ER 517
 Kyriackou v Commonwealth Bank of Australia [2009] VSCA 241
at [22] Suggested South African case law and scenarios:
 S v Hollenbach 1971 (4) SA 636 (NC)
 S v Jacobs and another 1970 (3) SA 493 (E)
 The Law Society of the Cape of Good Hope v Tobias and another
1991 (1) SA 430 (C)  S v Dintwe and Another 1985 (4) SA 539
(BAA) at 541A-H
 Martin NO v Road Accident Fund 2000 (2) SA 1023 (W)
 DH Swanepoel v The State [2006] SCA 171 (RSA) para 12ff. Public
interest conflicts of interest
 Client v cause (Children’s Resource Centre Trust v Pioneer Foods
(50/2012) [2012] ZASCA 182)
Management of trust funds:

 Law Society, Transvaal v Matthews 1989 (4) SA 389 (T)
 Holmes v Law Society of the Cape of Good Hope and Another 2006
(2) SA 139 (C)
 Summerley v Law Society, Northern Provinces 2006 (5) SA 613 SA
 The Law Society of the Cape of Good Hope v Peter [2006] SCA 37
(RSA) [Liability to third parties:
• Hirschowitz Flionis v Bartlett and another 2006 (3) SA 575 (SCA)
• Du Preez & Others v Zwiegers 2008 (4) SA 627 (SCA)
The referral rule / the advocate’s duty not to take work off the
street
 Society of Advocates of Natal v de Freitas and another (Natal Law
Society Intervening) 1997 (4) SA 1134 (N)
 General Council of the Bar of South Africa v van der Spuy 1999
(1) SA 577 (T)
 De Freitas v Society of Advocates of Natal 2001 (3) SA 750 (SCA)
 Commissioner, Competition Commission v General Council of the
Bar of South Africa and others 2002 (6) SA 606 (SCA)
 Rosemann v General Council of the Bar of South Africa 2004 (1)
SA 568 (SCA)
 Van der Berg v General Council of the Bar [2007] SCA 16 (RSA)

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LEGAL ETHICS

Known as the oldest profession, and dating as far back as the

Some academics propose that the ethical principles can be

The profession of lawyers ordains a high level of ethics as much as

Prof. (Dr.) R.Venkata Rao, Vice Chancellor National Law School of

A LAWYER'S DUTY TO THE COURT

2. Duty to act with utmost good faith towards the court

3. Duty to acquaint him/herself with the rules of court and

4. Duty not to abuse the process of the courts:

5. Duty to disclose adverse facts

 Excursus: Revealing confidences to prevent future injury or

6. Duty to disclose adverse authority

(See: also order of the SCA in Jeebhai v Minister of Home Affairs

‘Cross-examination, intended as a scalpel to excise the tumour

DUTY TO HIS/HER CLIENTS

(i) The acceptance of a mandate from clients:

(ii) The need for a trust banking account

(iii) The duty of confidentiality owed to the client?

AVOIDING CONFLICTS OF INTEREST

Management of trust funds:

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