Ethics: Time to reassess legal ethics in the changing environment

November 1st, 2018
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By Thomas Harban

‘The sad truth is becoming more and more apparent; our profession has seen a steady decline by casting aside established traditions and canons of professional ethics that evolved over centuries … When we speak of the decline in “ethical” standards, we should not use the term “ethics” to mean only compliance with the Ten Commandments or other standards of common, basic morality … A lawyer can [adhere to all these requirements] and still fail to meet the standards of a true profession, standards calling for fearless advocacy within established canons of service’ (Peter MacFarlane ‘The importance of ethics and the application of ethical principles to the legal profession’ (2002) 6 Journal of South Pacific Law (www.paclii.org, accessed 4-10-2018).

Introduction

Legal practitioners often refer to their profession as ‘honourable’ and ‘noble’. In order to maintain or retain, the profession as honourable and noble it is necessary to revert to the high ethical standards that underpin, and are at the cornerstones of the practice of law. Kirk-Cohen J in Law Society, Transvaal v Matthews 1989 (4) SA 389 (T) at 395 stated:

‘The attorney is a person from whom the highest standards are expected by the profession and [the] Court. … The profession itself is not a mere calling or occupation by which a person earns his living. An attorney is a member of a learned, respected and honourable profession and, by entering it, he pledges himself with total and unquestionable integrity to society at large, to the courts and to the profession … only the very highest standard of conduct and repute and good faith are consistent with membership of the profession which can indeed only function effectively if it inspires the unconditional confidence and trust of the public. The image and standing of the profession are judged by the conduct and reputation of all its members and, to maintain this confidence and trust, all members of the profession must exhibit the qualities set out above at all times.’

The ethical rules applied in the legal profession have developed and been upheld by practitioners for a number of years and, in some instances, even centuries. There are wide-ranging similarities with respect to the core substance of ethical standards applied by various regulators in the legal profession across the world, and many of the ethical rules (for example, confidentiality, acting in the best interests of clients and the avoidance of conflicts of interests) have broad universal application across jurisdictions. The principles of legal ethics are part of the lore and the law to which legal practitioners must adhere.

The landscape in which legal practice is conducted has changed considerably – since some of the ethical rules were initially developed – but this has not diminished the core principles. Legal practices, individual practitioners, the form and manner in which legal services are provided and the nature of the environment they operate in, have also undergone certain changes in this time. Allegations of unprofessional conduct on the part of certain legal practitioners negatively affect the public’s perception of the profession. There is a perception that there has been a watering down of compliance or a derogation from adherence to the high standards of ethical conduct. While it is dangerous to accept untested allegations as fact or to take conceptions (or even misconceptions) as fact, the image in which the profession is held by the general public and the consumers of legal services, is a matter of importance for all stakeholders in the profession. The legal profession is not the only profession that is under attack. Allegations of unprofessional conduct are also being made against other professions, such as the auditing/accounting and medical professions. It is important to note that the allegations have been levelled against a small proportion of the large pool of practitioners.

It is against this background that I argue that it is time for the legal profession in South Africa (SA) to reassess the effectiveness of the current ethical rules and to develop measures to increase the awareness of and adherence to the professional ethical rules by practitioners. The suggested reassessment will, by its nature, include an introspection by the individual members of the profession, as well as by the regulators on the effectiveness of the current ethical and professional rules. I submit that the reassessment of the current ethical rules should include an examination of whether or not they are sufficient to meet the current environment, the adherence by individual practitioners to these rules and the effectiveness of the enforcement thereof. The implementation of the new regulatory dispensation under the Legal Practice Act 28 of 2014 (LPA) provides an opportune moment for this reassessment and introspection.

Ethics, morals and the professional duties of practitioners

Ethics form part of the professional duties of practitioners whether or not they are codified and listed in codes of conduct and legislation. Ethics are recognised by the legal profession as part of a ‘social system’ in which legal practice is carried out and the rules to which members of the profession must adhere. Morals, on the other hand, are a personal standard to which individuals choose to apply in their own individual decisions (see ‘Ethics vs. Morals’ (www.diffen.com, accessed 4-10-2018); CH van Zyl IV and J Visser, ‘Legal Ethics, Rules of Conduct and the Moral Compass-Considerations from a Law Student’s perspective’ 2016 (19) PER (http://dspace.nwu.ac.za, accessed 9-10-2018); and K Gibson ‘Ethics in action in the Legal Profession’ (www.straussdaly.co.za, accessed 4-10-2018)). (This article does not focus on morals.)

Ethics and professional standards – in order to remain relevant to the practitioners, which they are aimed at regulating – must evolve and with the development of the environment in which they are applied.

The changing regulatory environment

With the full implementation of the LPA imminent, the regulatory environment for the South African legal profession will undergo substantial changes. The changes include the introduction of a code for professional conduct by legal practitioners and candidate legal practitioners (the code). The ethical rules applied in SA were developed before the constitutional dispensation in SA (brought about by the enactment of the Constitution). The Constitution provided for a new legal and administrative environment in the country. The Constitution ushered in a new approach to the administration of justice. Members of the legal profession form an integral part of the administration of justice in SA (see the Matthews case at p 395).

The purpose of the LPA includes –

  • providing for the establishment, powers and functions of a single South African Legal Practice Council (LPC) and Provincial Councils in order to regulate the affairs of legal practitioners and to set norms and standards (in the long title);
  • to regulate the professional conduct of legal practitioners so as to ensure accountable conduct (also in the long title);
  • to ensure that the values underpinning the Constitution are embraced and that the rule of law is upheld (in the preamble and s 3(a));
  • to ensure the accountability of the legal profession to the public (also in the preamble); and
  • creating a framework for the development and maintenance of appropriate professional and ethical norms and standards for the rendering of legal services by legal practitioners and candidate legal practitioners (s 3(g)) (my italics).

The provisions dealing with the LPC are set out in ch 2 of the LPA and its objects, include –

  • facilitating the realisation of the goal of a transformed and restructured profession that is accountable, efficient and independent (s 5(a));
  • enhancing and maintaining the status of the legal profession (s 5(f));
  • determining, enhancing and maintaining appropriate standards of professional practice and ethical conduct of all legal practitioners and candidate legal practitioners (s 5(g)); and
  • upholding and advancing the rule of law, the administration of justice and the Constitution (s 5(k)) (my italics).

In order to achieve its objects as set out in s 5 of the LPA, the LPC must ‘develop norms and standards to guide the conduct of legal practitioners, candidate legal practitioners and the legal profession’ (s 6(1)(b)(i), (my italics)). The maintenance of professional standards of persons who provide legal services is one of the factors to be taken into account when constituting the LPC (s 7(2)(e)(vi)) and a member of the LPC must, inter alia, be a ‘fit and proper person’ (s 8(1)(b)). Persons convicted (whether in SA or elsewhere) of an offence involving an element of dishonesty are disqualified from becoming or remaining members of the LPC (s 8(2)(c)(ii)). An LPC member may be removed, inter alia, on account of –

  • a disciplinary inquiry making a finding of any serious misconduct, as set out in the code of conduct for legal practitioners (s 12(1)(a));
  • incapacity or incompetence (s 12(1)(b); and
  • the member becoming disqualified to remain as a member of the LPC as contemplated by s 8(2) (s 12 (1)(e)) (my italics).

The requirements for the admission to practice and to be authorised to be enrolled as a legal practitioner, conveyancer or notary includes the requirement that the applicant satisfies the court that they are ‘a fit and proper person to be so admitted’ (s 24(2)(c)). The purpose of the assessment of a person who has undergone practical vocational training is for the LPC to assess whether the person has attained an adequate level of competence (nothing is said about a test for integrity) for admission and enrolment as a legal practitioner (s 28(1) and (2)). Neither the LPA nor the code defines what ‘fit and proper’ means or entails. However, I submit that the competence and integrity of the individual concerned should form part of the ‘fit and proper’ assessment. Over the years the courts have also developed jurisprudence in respect of a ‘fit and proper’ test (see M Slabbert, ‘The requirement of being a “fit and proper” person for the legal profession’ 2011 (14) 4 PER 209).

The provisions of the LPA applicable to the development of the code are set out in ch 4 of the Act. On 10 February 2018, the National Forum on the Legal Profession published the proposed code ‘Code of conduct for legal practitioners candidate legal practitioners and juristic entities’ GN81 GG40610/10-2-2017 (the code can be accessed at www.lssa.org.za).

The provisions of the code apply to all legal practitioners, candidate legal practitioners and, where applicable, legal practitioners who are not in private practice (s 2). The provisions of the code include the following –

  • the maintenance of the highest standards of honesty and integrity (para 3.1);
  • upholding the values of the Constitution and the principles and values enshrined therein, including the principle and value that the regulated persons and entities shall not, in the course of practice or business activities, discriminate against any person on one of the grounds prohibited in the Constitution;
  • the treatment of the interest of clients as paramount, subject to their duty to the court, the interests of justice, the observation of law and the maintenance of prescribed ethical standards (para 3.3);
  • honour any lawful undertaking given in the course of their business or practice (para 3.4);
  • refrain from doing anything prohibited by law or the code of the profession, which could place them in a conflict of interest with their clients (para 3.5);
  • the maintenance, according to law, of legal professional privilege and confidentiality regarding the affairs of current and former clients (para 3.6);
  • respecting the freedom of clients to choose to be represented by a legal practitioner of their choice (para 3.7); and
  • refraining from doing anything that could potentially bring the legal profession into disrepute (para 3.15) (my italics).

Non-practising attorneys will thus also have to comply with provisions of the code, where applicable. Practitioners will thus have to bring the applicable provisions of the code to certain clients, especially where receiving instructions from a non-practicing attorney acting as a General Legal Counsel, legal adviser or in some similar capacity.

Conflicts of interest have long been a concern for the profession. As put by Mjali AJ in Jordan and Another v Farber (NCK) (unreported case no 1352/09, 15-12- 2009): ‘Loyalty is an essential element of the attorney and client relationship’ (at para 18) and ‘[a]n ethical attorney is expected to maintain a measure of detachment from clients’ (at para 19). The court also referred to the following passage:

‘An attorney should not act for a client whose interests conflict with his or her (the attorney’s) interests or those of another client. The attorney must, while holding his position of trust and confidence, prefer the interest of the principal even to his or her own in case of conflict, and to his skill, diligence and zeal must be added good faith’ (see ‘Conflict of interests’ 14(2) LAWSA).

Ethics and risk

Slabbert quotes the following: ‘Ethics does not in this age, form an essential part of the sword or shield of the majority of legal practices. Ethics is more likely to be slashed by the slick lawyer and trodden upon to get to the loot’.

Compliance to the applicable ethical and professional standards will avoid and/or mitigate the risks of disciplinary action by the LPC, as well that of professional indemnity (PI) claims by clients and other third parties (see Van Zyl and Visser (op cit) at p 1 and MacFarlane (op cit)). By acting ethically at all times, practitioners can meet the standard of conduct expected of them. Practitioners must also take note of clauses 18 to 21 of the Attorneys Insurance Indemnity Fund NPC PI policy, which deals specifically with claims involving dishonesty and the higher deductible applied for certain types of dishonest conduct (clause 20 read with sch B).

Ethics must form part of the training program in every legal practice and every member of staff in the firm (including, third parties/contractors, where necessary) must be included in such a training program. Compliance to the applicable ethical and professional standards cannot be a ‘tick-box’ exercise and needs to be internalised by all in the legal profession. It remains to be seen how, if at all, the ‘fit and proper’ test, which candidate legal practitioners must complete at the beginning of their training will be extended and made more substantial. I submit that I align myself with those who hold the view that ethics should be one of the compulsory courses included in the academic programme for law students in SA.

The relationship between a legal practitioner and a client (and between one legal practitioner and another) is based on trust. It is thus important that all parties are assured that they are dealing with ethical counterparties rather than with unethical ones.

Unless the ethical issues are seriously addressed, some may find the reference by legal practitioners to their colleagues as ‘my learned friend’ or to the profession as ‘noble’, ‘honourable’ or ‘respectful’ as hollow legal jargon.

Thomas Harban BA LLB (Wits) is the General Manager of the Attorneys Insurance Indemnity Fund NPC in Centurion.

This article was first published in De Rebus in 2018 (Nov) DR 21.

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