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Class notes LEV 3701 Law Of Evidence Admissibility Of Evidence Summary Exam Notes (PVL3701)
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LJU4802-Professional EthicsStudent Number: 64532968
October/November 2022
Portfolio Examination
Question 1: The Legal Profession
1.1
(a).
The question of who can be a legal practitioner in South Africa is strictly regulated by legislation and
by the inherent common-law right of the court to regulate its own processes. It is not sufficient to
have a thorough knowledge of the law to become a legal practitioner. Even those with all the
relevant legal qualifications will be admitted to the legal profession only once they have proven that
they are indeed “fit and proper persons”.
Membership of the legal profession is subject to extensive character screening.In terms of section
24(2)(c) of the Legal Practice Act the High Court must admit a legal practitioner [thus, an attorney or
an advocate] if the applicant satisfies the court that he or she “is a fit and proper person to be so
admitted”.
This means that only persons of a certain character are allowed to practise as lawyers. The
requirement that you, as an aspirant lawyer, must prove that you are “a fit and proper person” for
the legal profession underlines the moral basis to the profession.
(b)
Section 1 of the Act (definitions clause) defines “legal practitioners” and “candidate legal
practitioners” as follows:
-Legal practitioner means an admitted and enrolled advocate or attorney.
-Candidate legal practitioner means a person undergoing practical vocational training,
either as a candidate attorney or as a pupil.
1.2
(a).
Firstly, the word “profession” is derived from the Latin professio which 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 you
should carry out your professional duties with public-spiritedness and the highest standards of
ethical conduct.
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, Although members of professions are paid for their services and should manage their practices on
sound business principles, the professions may be distinguished from other 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 chosen profession. This knowledge, which is not easily 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.
• Professionals are expected to have a commitment to serving the public in matters related to their
particular field.
• 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.
Therefore regarding lawyers as no more than businessmen would mean that the idea of the law and
the objectives of justice, such as the fair and equal distribution of privileges and responsibilities
relating to property, liberty and life, would be thwarted. Only the most profitable cases would then
be accepted by practitioners, and only the rights and privileges of those able to pay the high price for
legal services would be protected. Justice would be denied to those who could not afford to pay for
it. So, too, public trust in the legal profession and the existing socio-political dispensation would be
undermined if justice were no longer served.
(b)
Zodwa’s criticism of professional codes is referred to the “insider” criticism.
Practitioners are suspicious of codes of ethics and this suspicion concerns two different aspects, namely (i)
practical concerns and (li) theoretical concerns.
(I). Practical concerns
Professional codes are not always enforced by regulatory bodies and those who transgress them are not always
dealt with effectively. Since many practitioners feel that the codes are not properly enforced, they argue that the
profession might as well abandon them, or replace them with codes of business ethics. Others are afraid of
upholding ethical values and sticking to the rules when their colleagues are not. They fear that by trying to
encourage their clients to do the right thing, these clients may go to somebody else who is willing to carry out
their wishes.
(ii)Theoretical concerns
The very idea that the practice of law is a profession (and not merely a job in which bureaucratic tasks associated
with a business is executed) counters the idea that legal be reduced to the
"rules of 'professional conduct. One justification for the self-regulation of the profession is that the practice of law
requires complex professional judgments, the reasonableness of which can be judged only by fellow
professionals. Self-regulation presumes that the conduct of a practitioner will not be judged against a code, but by
colleagues who exhibit those virtues inherent in morally good practitioners.
The formalistic idea that legal ethics is no more than the compliance with a legal code makes in our view, a
mockery of this justification, reduces law to another business enterprise, and exposes the continued existence of
the law and bar societies as no more than agencies created to protect vested interests.
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