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Class notes LEV 3701 Law Of Evidence Admissibility Of Evidence Summary Exam Notes (PVL3701)
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- University Of South Africa
Class notes LEV 3701 Law Of Evidence Admissibility Of Evidence Summary Exam Notes (PVL3701)
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Questions and Answers 2009-2014 (May/June)What is ethics? [3]
Ethics is about what we ought and ought not to do, but it is also about setting priorities in
human behaviour. Ethics is not always about what is absolutely right or wrong, acceptable or
unacceptable, ideal or less ideal. It is also about what is the best decision in particular
circumstances, what is the lesser of two evils, what is the balance between doing good and
causing harm. Ethics is therefore about working out the principles on which we make these
sorts of decisions.
What is the meaning of “legal ethics” [5]
“Legal ethics” can be understood in a wide and a narrow sense. In the wide sense, it refers in
general to the relationship between law and ethics (or morality). For example, may the law be
used to enforce moral views on abortion, homosexuality, prostitution, or human cloning?
However, in the narrow sense, the term refers to the ethical standards of professional conduct
applicable to the field of law. Legal ethics in the narrow sense thus deals with the “oughts” of
providing legal services: “How ought a legal practitioner to behave in order to be a ‘good’,
‘decent’, and ‘proper’ legal practitioner?”
What according to you is the relation between ethics and a code of conduct? [3]
Ethical considerations guide a professional in specific situations. They set the standard of
conduct towards which all those in the profession should strive (eg “a practitioner must avoid
all conduct which, if known, could damage his or her reputation as an honourable lawyer and
honourable citizen”).
Clients are the basis of the legal profession. There is a difference between advocates
and attorneys where clients are concerned. Discuss the lawyer’s relationship with
clients and refer to:
1. The acceptance of a mandate from clients
2. The referral rule and its rationale
3. The need for a trust banking account
4. The duty of confidentiality owed to a client
5. Recourse for clients who are not satisfied with a legal practitioner’s work. [30]
Q&A by @yash0505
, 1. Although attorneys are considered to be officers of justice, they are not obliged to
accept a client’s brief. Before a mandate is accepted, the attorney should consider
whether he or she has the ability and knowledge to do the work. Attorneys should
consider any possible conflict of interests and whether the mandate involves any
illegality or other impropriety. A conflict of interests would arise, for example, if the
attorney were asked to represent both the claimant and the defendant. If there is a
conflict of interests, the mandate should not be accepted. An attorney who has
accepted a mandate has to see the matter through. An attorney may withdraw only
with the client’s consent, or with good reason, such as the client’s improper or
fraudulent behaviour. In this case, the attorney must withdraw timeously so that the
client can make other arrangements. Advocates, on the other hand, are obliged to
accept briefs if they are available and able to do the work. The fact that the advocate’s
political or religious beliefs conflict with those of the client does not justify refusal of a
brief. Advocates generally may not accept briefs directly from clients, and must be
briefed by an attorney. This is called the “referral rule”.
2. Advocates generally may not accept briefs directly from clients but must be briefed by
an attorney. This is called the referral rule. Direct instruction is sometimes allowed, for
example, from the Legal Aid Board. Attorneys take care of matters such as the
investigation of facts, the issuing and service of process, and the discovery and
inspection of documents (Society of Advocates v De Freitas & Another 1997 (4) SA
1134 NPD). Advocates are litigation specialists, and they prepare pleadings and
present clients’ cases in the courts. One of the reasons for the referral rule is that the
attorney and advocate can apply their respective skills for the benefit of the client.
3. There is another more obvious reason why advocates should not perform the duties of
attorneys: unlike attorneys, advocates are not required to open trust accounts for the
keeping of clients’ funds. 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. If advocates were permitted
to handle clients’ money, the danger of material prejudice to the client therefore exists.
It is in the public interest for the courts to enforce the referral rule: advocates may not
handle any money on behalf of clients as this is the task of the briefing attorney. A
client who does not employ an attorney, but instructs an advocate directly, does not
have the same protection, if any at all.
4. The contract between attorney and client 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. The attorney’s duty of confidentiality and the client’s
Q&A by @yash0505
, corresponding right to confidentiality continue even after the attorneyclient
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 South African law that
confidential communications made with a view to litigation, as well as confidential
communications made for the purpose of giving or receiving legal advice or
assistance, are considered to be “privileged information”. The privilege is the client’s,
and not the practitioner’s. Privilege must be claimed in court, and does not arise
automatically. The attorney, in claiming it, must not act in his or her own interest or
behalf, but for the benefit of the client. An exception to this principle would be where
the legislature expressly excludes this privilege, or where the client gave his or her
consent. Communications by a client in furtherance of a criminal purpose are not
protected. Communications made between friends (and not in their professional
capacity as client and legal representative) are not protected.
5. When an attorney accepts a client’s mandate, the attorney should carry out his or her
work with care, skill, and commitment that may reasonably be expected from the
average attorney. This duty is a silent term of the contract that came about between
the attorney and the client on the acceptance of the mandate. Apart from a claim for
damages resulting from breach of contract, an aggrieved client may institute a claim
for professional negligence against the attorney where, for example, he or she erred in
judgement or lacked the necessary skills. An attorney may be found negligent if he or
she did not exercise the necessary care in accepting a client and dealing with him or
her.
Write notes on acceptance of briefs by an advocate. (or)
An attorney approaches you as an advocate to represent his client who is suspected of
raping a 6 year old girl. Will you accept the brief or not? (or)
You are a practising advocate who receives a brief from an attorney’s firm to defend a
person accused of child molesting. Is there a duty on you to accept the brief? [5]
Advocates are expected to accept briefs if they are available and able to do the work. The fact
that an advocate’s political or religious beliefs conflict with those of the client does not justify
refusal of a brief. Advocates generally may not accept briefs directly from clients but must be
briefed by an attorney. Direct instruction is sometimes allowed, for example, from the Legal
Aid Board. Advocates may not “cross over” to the opposition after having obtained information
related to the client’s case, or accept the opposition’s briefing for the appeal case, since this
may lead to an abuse of confidential information.
Q&A by @yash0505
, Write notes on the challenge in Rosemann v General Council of the Bar of South Africa
2004 (1) SA 568 (SCA). [5]
The admission requirements for the legal profession were challenged in this case. It was
argued that the division of work between the professions (advocates and attorneys) and the
referral rule was irrational, and as such an unreasonable limitation on the right to freely
choose one’s profession (s 22 of the Constitution). The Court rejected the argument and held
that the freedom to choose a profession was not violated by the dual structure of the
profession. The applicant was at all times free to choose which profession he wanted to
pursue. Even if it was accepted that the restriction on attorneys to do the work of advocates
violated section 22, the restriction remained justifiable because of the benefits which accrue to
the general public from the specialisation of legal services.
Discuss the factors an advocate should consider in determining reasonable fees for
services rendered. [5]
It is proper to consider the following:
1. The time and labour required, the novelty and difficulty of the questions involved, and
the skill requisite to properly conduct the case.
2. The customary charges by counsel of comparable standing for similar services.
3. In cases regarding money, the amount involved in the controversy and its importance
to the client.
Advocates may not enter into partnerships with colleagues and may not share their
professional fees with anybody else.
Discuss when and how a judge may be removed from office. [5]
A judge may be removed from office only if the Judicial Service Commission (JSC) finds that
the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct,
and the National Assembly calls for that judge to be removed, by a resolution adopted with a
supporting vote of at least two thirds of its members. The President must remove a judge from
office upon adoption of a resolution calling for that judge to be removed. The President, on the
advice of the JSC, may suspend a judge who is the subject of a procedure regarding that
judge’s removal from office.
Discuss the duty owed by an advocate towards the court when he or she appears in an
ex parte application. [5]
Q&A by @yash0505
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