Five basic universal principles applicable in the conduct of a candidate attorney

November 1st, 2018
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By Francois Terblanche

There are many different cultures in South Africa (SA) and one cannot simply choose one culture as being the appropriate ‘one-size-necessarily-fits-all’ culture for the attorneys’ profession.

This article attempts to distil universally applicable conduct principles, regardless of culture. These principles apply regardless of whether one is practising in (or articled to) a Rivonia sole practitioner, a Sandton ‘mega’ firm, the London office of an international law firm or a niche South African firm.

The list is not perfect, and I would welcome colleagues’ comments on these principles.

Principle 1: Treat all of your colleagues with respect, courtesy and consideration

Starting articles of clerkship (or Practical Vocational Training (PVT) under the Legal Practice Act 28 of 2014 (LPA)) is a daunting prospect. That is normal, as you are entering the world of real legal practice. Some CAs deal with this by trying to befriend each and every colleague. That approach is not recommended. You are now working in a legal firm, which is a professional business.

Other CAs deal with this by acting superior to their colleagues with lesser education levels. That approach is counter-productive. It will probably result in that CA being summoned to the Human Resources (HR) department.

The correct approach is to treat all colleagues (the senior partner, the tea lady, the Chief Executive Officer, the security guard, the head of HR and the receptionist) with respect, courtesy and consideration. ‘Thank you’ and ‘please’ are not difficult words to say. Nor are they time consuming.

The late senior partner of a Sandton firm was well liked by the firm’s support staff, for the simple reason that he took the time to greet each and every employee by name whenever he passed them, regardless of their position in the firm.

The current senior partner of a Sandton firm has set the bar even higher, he will keep the lift doors (and any other doors for that matter) open for everyone else, again regardless of their position in the firm. If those senior partners can do it, there is no reason why the rest of us cannot.

Principle 2: Be honest (which does not simply mean ‘do not lie’)

Trust is a critical element of a successful employment relationship. If an employee discovers that their employer has lied to them, they will inevitably lose trust in the employer and probably look for employment elsewhere. Equally, if an employer discovers that a CA has not been honest in their dealings with them, the same loss of trust will occur. With prejudicial career consequences. The reality is that if an employee cannot be trusted in all respects, they cannot be trusted in any respect.

Honesty means, firstly, ‘do not lie’. Do not lie to a colleague, but also, do not lie about a colleague. Here is an example of the latter: Jenny and Jane are CAs, at different firms. They are also friends. One day over lunch, Jane tells Jenny that she heard through the grapevine that Mike (the partner to whom Jenny reports) said that Jenny is about to lose her job and will become unemployed. Jenny is understandably concerned. She approaches Angela, another partner at her firm, and tells her that ‘Mike said I am about to lose my job’. That is, of course, a lie. At most, what Jenny could have said is ‘I heard from Jane that she heard that Mike said I am about to lose my job’. Stating a rumour as a fact is lying. Actually, Jenny should have gone to Mike first, not to Angela (more about that later). Ask yourself the following questions before you say anything about someone who is not present:

  • Do I know as a fact that what I am about to say is true?
  • Is it really necessary and appropriate for me to say what I am about to say?
  • Am I prepared to say this to the face of the person concerned?

If the answer to any of those three questions is no, you should not say anything at all.

Secondly, honesty also means ‘tell the whole truth’. Making perfectly true statements but withholding critical information, and thus intentionally creating a misleading impression, is still being dishonest. Hence the expression ‘the truth, the whole truth and nothing but the truth.’

Principle 3: Give credit where credit is due

An example will illustrate this principle: You have worked long hours to compile an important discovery bundle. The bundle runs into more than 20 lever arch files. You have ensured that the bundle is correct, complete and neatly organised.

You, and the associate who you report to, meet with the client. The client is very impressed with the bundle and says to the associate: ‘Well done, this is excellent work. I will let the partner that you report to know how pleased I am with your work’. The associate responds: ‘Thank you. It was hard work and I spent many a late night on it’.

You are understandably furious. You have worked hard to prepare a good bundle, and the associate has just claimed the credit for your work.

For exactly the same reason you should never claim credit for someone else’s work or ideas. Give credit where credit is due. For example, if you have to draft a particular type of agreement and a colleague gives you a very good precedent to use, acknowledge your colleague’s contribution if the partner that you report to praises you for producing a good agreement.

Principle 4: Do not go behind someone’s back

There is (hopefully) not a CA who is not familiar with the audi alterem partem rule. This rule basically says that an employer cannot impose a sanction against an employee without first giving the employee an opportunity to tell their side of the story.

The same is true the other way around: You should never go behind the back of a colleague to someone more senior than that colleague without taking up the matter properly with that colleague first (except in truly exceptional, objectively justifiable circumstances, such as an instance of sexual harassment).

Here is an example: Jenny (a CA) asks her firm to fund her attendance of a maritime law course. Mike (the director who she reports to) advises Jenny that her application was rejected since the firm does not practise maritime law and the requested funding would not be in the firm’s interest. Jenny simply says to Mike that she is ‘very surprised’ by that decision, but she does not say anything further and seems to accept the decision. Two days later Jenny approaches Lebo, the firm’s senior partner, ostensibly for advice on another matter of hers. At the end of their meeting Jenny asks Lebo: ‘As a matter of interest, did the partners decide not to approve my application for funding of the maritime course?’

If Jenny was unhappy with the decision, she should have first raised it with Mike. She should not have gone behind Mike’s back to someone else. If she had raised it properly with Mike and was still aggrieved by the decision, then she was of course fully within her rights to then follow the applicable grievance procedures.

Acting like this is normally career limiting. It leads to a breakdown in the trust component that is so vital to any healthy employment relationship.

Principle 5: Do not use colleagues for your own personal gain

No employee wants to feel exploited by their employer or colleagues.

The converse is also true: No employer, or colleague, wants to feel that an employee has taken unfair advantage of them.

Here is an example: Nigel, a director at a law firm, is a leading finance lawyer. He has unique expertise in very complex finance transactions. Joan, a CA in that firm’s corporate department, formally applies to rotate to Nigel’s team (CA rotations at that firm are uncommon). Joan tells Nigel that she has a passion for finance, wants to learn as much as possible from him and sees herself as being a member of his team for a long time. Nigel responds that he will only agree to the rotation if Joan assures him that she will not use the rotation as a stepping stone to move to a better position elsewhere once he has taught her everything that he had to learn himself. Joan assures him that she will not do that. Based on that undertaking Nigel agrees to the rotation. Over the next year he spends a lot of time and energy to train and develop Joan into a competent finance lawyer.

When Joan’s articles end, Nigel offers her a position in his team. She readily accepts. He continues to train and develop her. During her first post-article performance appraisal Joan tells Nigel that she is very happy in the firm and definitely wants to continue as a finance lawyer in his team.

Six months later, without any warning, Joan resigns in order to take up a more lucrative finance law position elsewhere.

Ultimately, everyone lost in some way:

  • Joan secured a more lucrative position, but she lost the respect of Nigel and his colleagues.
  • Nigel wasted his time and energy (and inadvertently benefitted a competitor).
  • Vicariously, Nigel’s firm’s time and energy have been wasted.
  • The most unfortunate consequence is that Nigel, and his firm, may not be quite so prepared to train and develop junior attorneys in the future. Innocent future junior attorneys may find themselves excluded from that skills transfer through no fault of their own.

Act with integrity. Do not take unfair advantage of your employer or a colleague. Let your word be your bond. If your circumstances change so that your undertakings no longer stand, summon up all your courage and be honest and transparent with your employer.

Francois Terblanche BCom Law (cum laude) LLB (cum laude) (UJ) is an attorney at Knowles Husain Lindsay Inc in Johannesburg.

This article was first published in De Rebus in 2018 (Nov) DR 20.

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