Complete and detailed Legal Skills notes. Includes detailed class notes, relevant textbook summaries, case summaries and lecturer's test/exam tips and examples. Notes are set out in an organised, structured manner making it easy to understand.
Contents
1 Comparative Law................................................................................................................................2
2 Practice and Procedure.......................................................................................................................4
Relationship with your Client.............................................................................................................4
Relationship with Other Practitioners..............................................................................................25
Relationship with the Profession and Community...........................................................................28
Relationship with the Courts...........................................................................................................37
3 Ethics................................................................................................................................................40
Introduction.....................................................................................................................................40
What are (Legal) Ethics?..................................................................................................................41
Importance of Legal Ethics...............................................................................................................46
Introduction to Ethical Theories and Major Ethical Philosophers....................................................48
Sources of Legal Ethics.....................................................................................................................50
Putting It into Practice.....................................................................................................................64
1
,1 COMPARATIVE LAW
Meaning
- Comparative Law is the study of the relationship between legal systems, including their
differences and similarities
o On a macro level
- Macro-comparison vs. micro-comparison
o Macro comparison: difference between legal system
o Micro comparison: comparing different elements of different legal systems
- Foreign law
o The study of foreign law is a precursor to comparative law but simply considering a
foreign legal system does not encompass comparative law
o You need to compare the laws and draw conclusions from it
- Legal history
o Comparative law and legal history is closely related
o Comparative law typically needs a legal historical dimension to understand the laws,
processes and institutions it considers
o Legal history also needs a comparative law dimension to understand whether
certain phenomena are applicable only to a particular region or to understand
whether it is more common
Eg the reception of roman law in Europe can only be understood if you look
at Europe as a whole
- Different lenses
o Legal historical lens
o Literature based approach
Compare literature
Case law, legislation and other sources
o Functional approach
You assume that different jurisdictions have adopted different solutions to
the same problems
o Balanced approach
Consider literature applicable to the topic, but in order to have a good
understanding of the topic you take legal history into account
Different countries have different cultures
Need to consider why we are comparing these legal systems
Purpose
- Informs national law-making
- Assist judges in resolving difficult questions
- Provide a basis for legal unification or harmonization
- Increase knowledge and extend awareness, especially in legal education
2
,Problem
- Foreign system: nothing to report
- Rethink original question – avoid looking at it from perspective of own legal system
- Focus on concrete problem – don’t allow vision to be clouded by concepts of one’s own
national system
- Avoid limitations and restraints
o Applies particularly to the question of sources of law
- First look at South African system because you need to have a proper understanding of what
the problem is before looking at foreign jurisdictions
3
, 2 PRACTICE AND PROCEDURE
- Legal practitioners
o Relationship with various individuals and institutions, commencing with client
Relationship with your Client
- Am I able to accept this matter?
o On what basis can you decline a mandate from a client?
- Crystallised grounds when you don’t need to accept client’s mandate, now codified in Legal
Practice Code of Conduct
- You can refuse to take on a client for any reason as long as it is not discriminatory
- Don’t act for client
o Lack of expertise
To what extent must you be equipped before accepting instruction?
Before you have done research
Are there limitations to your ability to take on new clients depending on
your field of expertise?
The discretion to take a client on is an important one because once you have
done this the mandate governs the standard of your work
Code 18.14 “Any attorney shall perform professional work or work of a kind
commonly performed by an attorney with such a degree of skill, care or
attention, or of such a quality or standard, as may reasonably be expected of
an attorney”
o Potential conflict of interest
For example, client has a case against Nedbank and Nedbank is one of your
clients
Usually bigger firms send out a conflict notice asking whether it
would be a conflict of interest to provide advice to a specific
person/company
If you have a personal interest in the issue
Then you need to remove yourself from the litigation
o Client gives unethical, unreasonable, conflicting or fraudulent instructions
Example, client gives you a brief overview of what happened over the
phone, but then at the first meeting your client gives you a different story
What is the risk if you take on this client?
o Not clear what the instructions are that was given
Rule 9.6 of the code “A legal practitioner shall, when a client gives
conflicting instructions, or attempts to retract earlier instructions,
withdraw from the matter if continuing to act for the client would
cause unavoidable embarrassment to the legal practitioner.”
o Time available
o Another mandate
If another firm has given out a mandate then you cannot act on behalf of
that same client
Code 18.13 “An attorney shall not accept a mandate knowing there to be an
existing mandate, or a freshly terminated mandate, given to another
attorney without explaining to the client all the implications of his doing so,
including in particular the cost implications”
4
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