Examen
LJU4802 EXAM PACK 2023
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LJU4802 EXAM PACK 2023
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LJU4802 EXAMPACK 2023
QUESTIONS
AND
ANSWERS
, 1
QUESTION 1:
X is approached by the law society to check on the drafting of a
new code for legal ethics. Write a memo in which you express
your views on the following:
a. The legitimacy crisis which existing comprehensive codes
of ethics suffer among both outsiders and insiders” to the
profession
OUTSIDERS INSIDERS
• There is no access to a • The codes aren’t always
simple, easy to understand enforced by law societies
set of professional codes = • Those who don’t obey the
the public don’t know what codes aren’t dealt with
conduct is unprofessional properly
• Some ethical rules protect • Since the codes aren’t
the professionals against applied they should be
the public or serve the replaced with business
members of the profession rules
• Rules aren’t universal and • By trying to force their
change with the times client to do the right thing,
• Complaints are handled by the client will go somewhere
colleagues else
• Practitioners aren’t willing • Legal ethics should be
to testify against one reduced to rules of
another professional conduct, this
would justify self regulation
b. The idea that a code of ethics should comprise a number
of levels. Refer to the approach of Nicholson and Webb
(20)
They believe that the problem with ethics is due to formalism – the
focus is too much on rules.
RULES:
1. In legal education: students are taught the legal rules and not
the practical application of the law
2. Adversarial system: creates the belief that rules will always
provide the correct answers
According to the ethics need to be CONTEXTUALISED – using 3 levels
of codes:
1. General statement of values: good faith is required
2. Specific principles:
a. Loyalty – confidentiality
, 2
b. Integrity – moral responsibility
c. Candor – used with good faith
d. Consent – consultation
3. Contextual factors:
The clients needs: emotional, financial and psychological
Requirements which show the lawyer what is expected of
him in order to avoid removal
The type of case: criminal, civil, mediation
These codes help to develop moral character and helps the law
student to make a more informed decision on why to study law and
what field of law to go into = shows them the moral dilemmas that
they might face.
This contextual approach has been criticized:
Too hard argument: it is too hard for lawyers to be expected to
know all the codes that apply to a situation
Its too easy for a lawyer to be immoral – they already don’t
respect the rules that exist
The plan to make the ethics more contextual includes:
1. Micro regulation: compliance officer at each firm
2. Fees: more transparent
3. Firms dealing with the community: requires more
creative advice giving
4. Demography of the profession: allow for more woman in
the profession as they have an ethic of care (community
based approach) rather than the male ethic of justice
(individualistic approach)
5. Change the adversarial system: to an inquisitorial
system = encourage co-operation rather than competition
, 3
Question 2:
The residents of Sandton are upset about new traffic lights, which
have been erected outside the house of the local representative of
the town council. The purpose of the traffic lights is to allow the
representative access to a busy road in peak hour traffic. The
residents have written letters to the town council requesting the
traffic lights be removed; they have not received a reply. You are
an attorney in the area and the residents approach you to take
their case. They want to organize a campaign of civil
disobedience in which they will deliberately refuse to stop at the
traffic lights for a certain period. You are uncertain on whether
you should get involved. The residents remind you of the
important role that lawyers such as Mandela and Ghandi have
played in other campaigns of civil disobedience in SA.
Write a memo in which you address:
a) The duty of lawyers to uphold the law and the state
o Lawyers must respect the law of the state
o The oath they take on admission includes an undertaking to be
faithful to the Republic.
o Behrman: an attorney who tried to corrupt a policeman and was
found guilty of bribery, corruption and defeating the ends of
justice was removed from the roll.
o Lawyers cannot contravene the law or encourage others to do so
= they mustn’t help their clients break the law – even if it is to
their client’s advantage.
o They can however advise their clients how to organize their
affairs so that they limit their liability and to use loopholes in
the law (avoid paying taxes).
Personal life – he must be an honorable citizen and should act morally
in his personal relationships:
Kleynhans: an attorneys conduct – giving gifts to the magistrate haring
his case and previous conviction (malicious damage to property and
being drunk in public) = isn’t the image of a legal practitioner and he
wasn’t a fit and proper person to practice.
b) The meaning of civil disobedience
If it’s argued that the character test be used today rather than the rule
based approach – there is a danger of civil disobedience – each person
can decide which laws they are going to obey
Civil disobedience could occur on the following grounds:
1. If laws are immoral
2. If its based on religious beliefs
3. If positive laws are unjust
4. Utility
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