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LJU4802 - Professional Ethics Study Guide
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LJU4802NOTES
,A. THE CRISIS IN THE LEGAL PROFESSION
Professional code of ethics, distinguish jobs/careers from professions. This idea of a distinct
profession - being challenged and this crisis in legal profession is also prevalent in other professions
egg, medical profession
FOUR REASONS WHY FAITH BEING LOST IN PROFESSIONAL ETHICS PER ROSSOUW
1. IT IMPEDES PROPER SERVICE - as rules don't protect the profession or the public, it
enforces effective marketing/advertising of services, Radloff survey concluded that many practitioners
don't' regard certain forms of marketing as unethical. Rules therefor equal antiquated marketing,
stumbling blocks to proper exercise of duties and is designed to antagonise.
2. IT CAN'T BE EFFECTIVELY ENFORCED - lack of trust in the capabilities of Law Society to
enforce the code and in practice, repeated and blatant transgressions goes unpunished.
3. ITS VIEWED MORE AS IDEOLOGY THAN PROFESSIONAL ETHICS - outsiders/clients
regard the code and its application merely as an instrument to protect practitioners, their honour,
status and privileges against complaints of public. Interest of client neglected, as copies of code are
not easily available, formulated in complicated way, difficult to understand as also enforced by
colleagues of accused practitioners.
4. ITS NOT ECONOMICALLY VIABLE - as there's a five fold doubling of numbers of attorneys
and lax entrance policies in law faculties and affirmative action - thus severe numbers explosion -
severe competition resembling that of the business world. This competition = legal practitioners often
see themselves as business people competing for business in a dog eats dog fashion instead of
professionals who serve the public. Argue for replacement of professional ethics with ordinary
business ethics estate agents and banks often play law firms off against one another to cut fees/offer
rewards in return for business. Competition = attorneys act in ways unconscionable a decade ago ie.
As long as it is not illegal, its justified en though the code may be violated eg. Excessive entertaining,
touting, kickbacks, pay-offs (eg cash, meat parcels, shopping vouchers, cell phones, laptops). Large
portions of legal fees are paid back to estate agents without buyers/sellers knowing this. Attorneys
therefore regard themselves as just another form of business ie selling goods and services at the
highest possible fee in order to make big profits - Survival morality so brought about by increase
competition, sluggish economic environment, affirmative action, rising operational costs, foreign
competitors due to globalisation. The competition is also increased by the entry into the previous
fields of exclusive domain of attorneys by estate agents, financial institutions, tax planners,
accountants and in-house legal advisors.
REASONS OF MICHOLKON AND WEBB
1. ITS TOO FORMALISTICALLY INCLINED - duties of too narrow and individualist nature
without reference to context or consequences - concentrate on the letter rather than the spirit of
ethical norms. Obedience hereto and historical dominance = legal education focused more on
technical skill, professional success, rule regulation/compliance an issues of ethics. Morals and
justice. Justice is assumed to flow from correct application of law of facts and truth is conflated with
factual truth. However vindication of clients rights = lawyers act ethically to ensure justice as power
imbalances - truth follows power. Lawyer creativity - also that manipulations create right or evade
rights and truths of a moral and political nature.
2. LIBERALISM INFLUENCES - middle class values = influenced justification for rules of
professional legal ethics: Social background, individual dignity, autonomy equality and values of
democracy and rule of law were not a guarantee for moral and ethical professional legal standard.
Law don't impartially protect everyone's dignity and autonomy as in its content and application, it is
driven with discriminatory distinctions on race, class gender. This = paternalistic invasion of client
autonomy and unfounded assumptions about clients needs, desires and interests. Cases are treated
as purely technical problems of how most effectively to vindicate their client's legal rights. Separation
of powers and usurping of clients role in decision making therefore not ensured and lawyers don't play
a truly positive social role to further justice. Public perceive attorneys not as playing this social role
but merely enrichment of themselves in pursuant of a comfortable living.
, OTHER REASONS
1. LAW NOT SEEM AS CALLING -the profession is not used to serve the public interest but as
a means to the unscrupulous pursuit of money and status at the expense of the basic values of
profession. Lawyers seen as being out to make money like in other trades/occupations. The ideals
now are to work as corporate lawyers for an in-house legal department in a big corporation or as a
market-driven seller of expertise.
2. SOCIETAL FOCUS ON FINANCIAL SUCCESS - in USA and RSA = the financially
successful and not those displaying high moral character are honoured by society. Desire for wealth,
affluence and influence has eroded civic and community values. Despite these goals of increased
levels of wealth and income, many professionals experience a sense of unanimity and alienation and
happiness.
3. MANIPULATION OF VALUES - Pierre Schlag argues that American lawyers use truth,
rationality, justice and other moral values in an instrumental sense to aid the manipulation of other
legal actors. Lawyers that sell their souls to the highest bidder and these values have no inherent
value and meaning and are used to delay, threaten, wheedle, manipulate situations therefore the
ethical and professional ideal of good lawyer has completely collapsed in respect of the idea that law
is a normative enterprise. Lawyers no longer serve the public good or the basic internal good of
justice as the profession is used as a means to achieve pre-determined objectives or external goods.
4. LAWLESSNESS IN RSA - leads to a blunting of moral sensitivities during apartheid. More
relaxed political and moral ties now prevalent in post-apartheid RSA as the transition from the pre-
apartheid culture of authority. Kruger Commission found a small percentage of practitioners involved
in false/deceptive third party claims and the use of trust funds for money laundering. Radloff survey
also revealed that large percentages in property law indicated that they don't regard certain forms of
marketing as unethical.
WHAT IS A PROFESSION
The word "profession" is derived form the Latin profession that means "a public statement" or
"promise". From this may be inferred that a legal professional (whether an attorney, advocate, judge,
magistrate, public prosecutor or legal adviser) should be worthy of public trust, and should carry out
his or her professional duties with public-spiritedness and the highest standards of ethical conduct.
Business persons on the other hand = a person who trades goods/services for money to make a
profit.
Although members of professions are paid for their services and manage their practices on sound
business principles, the professions may be distinguished from their jobs, businesses or trades, by
virtue of the following characteristics:
Professionals are required to have specialised intellectual knowledge and skills before they will be
granted access to their chose profession. This knowledge, which is not generally accessible to the
lay person, puts the professional in a position of authority vis-à-vis the client. The client has no other
option but to trust the professional and should therefore be able to rely on the last-mentioned's
integrity.
Professionals are expected to have a commitment to promoting the basic good of society. In the case
of the legal profession, the basic good is justice, fairness.
Professionals are expected to have a commitment to serving the public in matter related to their
particular field and to protect, serve and enhance public good and public trust.
Professionals enjoy relative autonomy in the execution of their duties. They use their discretion in the
execution of their duties and do not blindly accede to their clients or other authorities.
Professionals should have a willingness to accept personal responsibility for their actions and for
maintaining public confidence in their particular profession.
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