Can ethics be taught?

April 1st, 2014

By Nomfundo Manyathi-Jele

The Law Society of South Africa (LSSA), in conjunction with the National Association of Democratic Lawyers, held a summit on professional legal ethics in Durban at the end of February. Topics debated included ethical lawyering in a constitutional democracy, ethics in the pursuit of transformation as well as legal ethics education.

Retired Constitutional Court Justice, Zak Yacoob, delivered the keynote address. Delegates who presented papers were admitted attorney and legal academic at Rhodes University, Helen Kruuse; attorney at Le Roux Matthews & Du Plessis, Chris du Plessis and attorney at Ngubane & Partners Incorporated, Madoda Nxumalo. The Chairperson of the LSSA ethics committee, Krish Govender gave the welcome address.

Following the code of ethics

Mr Govender referred to an International Bar Association conference held in Dublin some two years ago. He said that he was concerned to notice that during the plenary sessions of that conference, out of the approximately 5 500 delegates that attended the conference, only 30 to 50 attended the session on ethics.

Mr Govender said that the world was too overwhelmed by corporate lawyers with a corporate mentality. He urged South African lawyers to see themselves as lawyers in a developing, growing nation and to entrench ethical principles. According to Mr Govender, law students are being told ‘if you apply ethics to your work, you will not make money.’ He said that this was very worrisome and questioned what law students were being taught and what kind of values they were seeing in the profession. He added that this was all part of the way society was being structured.

Mr Govender said that practitioners who take ethics seriously were concerned about the type of practitioners that they see, hear and read about; and the difficulties that the public faces in relation to the type of practitioners they come across.

Mr Govender raised the vexed question of ‘how do you keep up ethics?’ He said that state attorneys must be empowered to act ethically, adding that the role of state attorneys needed to be reviewed. ‘I tell attorneys that the day you come back from court and win a bad case, you should hang your head in shame because you have done something that I believe violates the Constitution and Bill of Rights. We must practise law within a state on the basis of what is fair and just and never try to take advantage of the poor, the small firms, [or] those who cannot afford to run cases like the state can,’ he said.

Mr Govender noted that the LSSA has a code of ethics that was adopted by its council at its annual general meeting in March 2006. He said that the code of ethics applies to all law societies and attorneys, adding that it consists of nine points, namely:

‘All legal practitioners shall –

  • honour, respect and promote the values enshrined in the Bill of Rights;
  • maintain the highest standards of honesty, integrity and independence at all times;
  • act with care and skill, honour undertakings and maintain the reputation and high standards required in the performance of their duties;
  • conduct themselves with courtesy and respect towards participants in proceedings, especially persons without legal representation, so as to ensure compliance with the rules and procedures for the fair conduct of such proceedings;
  • maintain the highest standards of professionalism and promptly respond to correspondence and messages from colleagues, clients and members of the public;
  • comply with all ethical and professional rules of practice;
  • respect the legal privilege and confidentiality that exists with clients and former clients;
  • subject to the laws as regards contingency fees, and the rules and guidelines as regards advertising, not engage in any form of activity that may be construed as touting;
  • extend to all colleagues, judges, academics, professionals, litigants and students, including persons from foreign jurisdictions, cordiality and respect at all times.’

Mr Govender said that it was sad that some attorneys were not aware that this code exists. He added that getting ethics accepted, understood and applied has always been a major problem. He said that he believed that one cannot create an ethical lawyer as one cannot make a person ethical, adding that ethics was about the values one is born and brought up with.

Mr Govender said that some 40 or more years ago, those that had a calling to become lawyers wanted to do something to serve people. ‘There was a certain amount of honesty, integrity, value and satisfaction that you got to have done something good for someone and earned a small fee. The landscape today, or over the past 20 years, even worse, in the past five years, is that of absolute greed and corruption. This is the landscape that young lawyers have to confront and are swallowed up in at the moment,’ he said.

According to Mr Govender ethics is not about being honest and absolutely clean in what one does, as that has to be a given. ‘Ethics is something that is above that, much higher than that. It is about fairness and transparency.’ He concluded by saying that there was a fine line between ethics and attorney-client privilege as far as legal practice was concerned.

Ethical lawyering

Speaking on ethical lawyering in a constitutional democracy, Justice Yacoob said that he disagreed with Mr Govender as he did not believe that a lawyer is born ethical. He added that people grow, develop, change and learn with time. Justice Yacoob said that he also took that route. He said that in 1956 he was a racist, an opportunist and sexist, adding that ‘all of us have the potential to change and become better and also have the potential to become ethical lawyers, however we were born. All human beings have the right and the power to change themselves.’

Justice Yacoob said that the part of the Constitution that has an impact on lawyering in a constitutional order was the Bill of Rights and chap 8 of the Constitution, which apply to the courts and the administration of justice.

‘If we [want to practise] in accordance [with] the Bill of Rights and chap 8 of the Constitution, the first step for lawyers is to know and understand both documents.’ He said that the Bill of Rights contains approximately 30 clauses that are simple and straightforward. He added that chap 8 of the Constitution was also simple and straightforward and that it was impossible for lawyers to practise in accordance with the constitutional principles if they did not understand the values and injunctions of the Bill of Rights and what chap 8 required. ‘We must not only understand them, we need to internalise and live them,’ he said.

Justice Yacoob said that living the constitutional order was the most important thing for an ethical lawyer, because if you do not embrace constitutional values in your personal life, you cannot embrace them in your practice.

He added that everyone is equal before the law and is entitled to equal protection. The first port of call for people in trouble are lawyers ‘and when a person comes to you, you have to treat him with the understanding that this person is equal before the law.’ He explained that this meant that you must not treat your rich clients better than your poor clients, as people can only be equal before the law if you treat them equally to begin with.

Justice Yacoob said that honesty was a given but, like in all things, honesty was often qualified as far as practising law is concerned. He said that honesty is balanced by privilege and that only a few lawyers understand the importance of the privilege of their client. ‘It is not your privilege, but [that of] your clients. We need to examine what the precise balance is between honesty to the court on the one hand and privilege on the other,’ he said.

Justice Yacoob said that it was obvious that lawyers cannot stand by and watch their clients tell lies in the witness box, but queried what layers should do if a client tells them that he or she (the client) was committing another murder somewhere else on the day that he or she is accused of committing the murder the lawyers are defending him or her against and that the accused would like to tell the court that he or she was somewhere else with somebody else, which is a lie. ‘Do you put up with that? Those are difficult problems that we need to deal with carefully. Honesty must be qualified with privilege’, he said.

Moving on to the notion of a fair trial, Justice Yacoob said that s 25 of the Constitution has various individual provisions that ensure that an accused has a fair trial. He said that a very important ethical consideration was that all accused people deserved a fair trial, adding that the trial must be fair at all levels and it was the lawyer’s duty to contribute to the fairness of a trial. ‘Your object in [practising law] in a criminal case is not to get your client acquitted; that is not your mandate and your mandate is not to get the client convicted either. Your mandate is to represent the client to the best of your ability as honestly as you possibly can, bearing in mind privilege and to ensure that the client has a fair trial,’ he stated.

Justice Yacoob said that in civil trials, a constitutional right is not for people to win their cases but that the purpose of adjudication, judging, and court proceedings was to reach a fair result. He added that if one contributed as a lawyer to reaching an unfair result, then that person was not acting constitutionally as a lawyer. ‘The right that a person has is not to win their case, the only obligation you have, as a lawyer to your client is to ensure that those civil proceedings are fair, held before an independent tribunal and if you do that, you have done your job. If you go beyond that and win the case unfairly, that is unconstitutional conduct,’ he said.

Justice Yacoob concluded by saying that every attorney, advocate, candidate attorney and legal practitioner is potentially a judge and that they needed to bear this in mind, also that they are training with that vocation in mind. ‘Unless one has an independent, impartial legal system or lawyers who understand the distinction between fairness and unfairness and who treat people properly, there can never be proper judgments,’ he said.

Justice Yacoob added that lawyers must be able to say that they can be a judge. He said that if lawyers become corrupt, the profession will be corrupt. ‘You are contributing to judicial fairness. Those who behave unconstitutionally in court and treat the poor or blacks differently do so because this behaviour existed in the lawyers of yesterday. Behaving ethically and fairly leads to building the judiciary,’ he said adding that the lawyer of today is the judge of tomorrow. The ethical lawyer of today is building an ethical judicial system.

Legal ethics education

Ms Kruuse spoke on ‘the why, what and how of legal ethics education today’. She said that the legal profession in South Africa was suffering from an ethical crisis, adding that this can be noted from the media, case law and the recent LSSA LLB summit where there was an effort to interrogate legal ethics education. She said that the precise nature of the crisis was unclear. Ms Kruuse said that the origins or the causes of the ‘ethical crisis’ are not properly understood, which makes finding solutions all the more difficult.

Ms Kruuse focused on the potential issues facing the legal profession today. She said that the profession faced new economic and social conditions that tear at its ethical fabric. Her presentation dealt with three issues:

  • Why legal ethics?
  • What should be learnt at law schools and therefore what should be taught?
  • How can this be learnt and from whom?

She said that lawyers play a public role and also an important role in the justice system. Ms Kruuse said that it was clear that the courts, and those who appear in them, are expected to act as the main vehicles to protect and realise the rights of people, adding that lawyers are seen as especially responsible for what might happen to South Africa’s constitutional democracy over the next few years.

‘The promotion of ethical decision-making by lawyers is vital to support the justice system. If we do not interrogate legal ethics education or look at our ethical practices and adjust our actions accordingly, the legal profession risks even greater disrespect and even runs the risk of losing its monopoly. Is the profession only about staying in business and protecting its prospects, rather than serving the public’s interests?’ she asked.

Ms Kruuse defined the word ‘ethics’, and said that it comes from the Greek word ‘ethos’, which means ‘habit.’ ‘A habit can be defined as an internalised, repeated, or innate principle that naturally springs from within a person without reference to an outside rule or commandment,’ she explained.

According to Ms Kruuse, South Africa is a diverse society and the habits of its law school and graduates will not present themselves as a unitary homogenous set of values. Therefore, whatever a student learns at university and at practical legal training (PLT), must compete with the multiple moral and ethical influences he or she has had prior to and beyond the reach of the law faculty and PLT. Ms Kruuse said that ethics at law schools can be taught through summits such as this one, indabas, conferences and seminars. She said that some obstacles standing in the way of students learning ethics or being taught ethics include the students’ readiness and willingness to engage meaningfully with ethical issues, as well as the law teachers’ readiness. She added that law teachers resort to traditional teaching, adding that these ways alone simply will not do. Ms Kruuse said that in the United Kingdom experimental learning proved to be the best way to teach law students ethics.

Ms Kruuse said that ideally, on completion of their studies, students should be able to demonstrate:

  • a thorough understanding of the formal ethical and professional responsibilities in the lawyer’s role whether these are expressed in legislation, case law or in a professional code;
  • a thorough understanding of the values, social purposes, social responsibilities and limits of the lawyer’s role within the legal, political and social system in which South African lawyers practise;
  • a developing ability to recognise the typical situations in which ethical issues are likely to arise in legal practice, to engage thoroughly and to make ethically justifiable decisions whenever circumstances require this; and
  • an understanding that the law and codes are incomplete in addressing all ethical issues, and therefore develop an ability to exercise discretionary professional judgment, through recourse to core professional values, whenever circumstances require this.

Ms Kruuse said that there needed to be a compulsory course on ethics in the LLB degree curriculum at all universities, adding that most universities did not have it. She added that law students needed to be encouraged to appreciate the significance of ethical dimensions of legal practices. She said that lawyers needed to develop a personal style of practice that reflects this depth of appreciation and understanding.

Ethics in practice

Mr Du Plessis, one of the Chairpersons of the Law Society of the Northern Provinces (LSNP) disciplinary committee, and a PLT lecturer for the past 18 years, told delegates that he has heard a few thousand cases on the wrong end of ethics. He described the feeling he gets when he chairs a meeting that recommends that they contact the court to remove an attorney’s name from the roll, as devastating.

Mr Du Plessis said: ‘I can imagine that the judges in the old days when passing the death sentence felt like this, because labour law wise, we are passing the death sentence on somebody’s career, which is their life.’ Mr Du Plessis said that one of his students once told him that ethics stand in the way of making money when he asked his class what their views on ethics were. He said that the attorneys present at the summit were there because they had satisfied the court that they were fit and proper persons. ‘However, fit and proper is not defined anywhere in any of the Acts. It is a subjective phrase,’ he said. He added that the word ‘profession’ was derived from the Latin word ‘professio’, which means ‘worthy of public trust and admiration’. He asked the delegates whether they conduct themselves in such a way that people can admire and trust them.

According to Mr Du Plessis, the most important asset that one can ever have is their name as it encompasses integrity, reputation, wisdom, judgment, etcetera and it can be lost in the proverbial one second. If this happens, how and when do you get it back?’ He advised attorneys to guard their names jealously, adding that to be an attorney means that you are a person worthy of admiration. He said that one could not be a part-time honest or honorable person, as one is honest and honourable in totality or not at all.

Mr Du Plessis stated that in the past 13 years there had been about 20 newspaper articles per year about attorneys, besides the many letters. He said that the LSNP receives numerous attorney complaints, approximately 12 000 a year, adding that many of them are petty matters, such as a lack of communication between attorney and client by, for example, not replying to e-mails. He said: ‘Surprisingly and thankfully, serious complaints such as, for example, trust shortages, make up less than one per cent, which is still a shame but it is gratifying that it is such a small percentage.’

Regarding touting, Mr Du Plessis said that touting was different to pro bono work and that there was much confusion on the two matters. He said that there have been attorneys charged with touting because they bought cars in their names and then gave them to estate agents to use in exchange of transfers. ‘We have a firm in a certain town with three banks. Every Friday morning the wives of the bank managers phone the secretary at the firm of attorneys. The secretary then tells them how much they can spend in the next week on the attorney’s credit card and the amount is determined by how many conveyancing instructions were given to the firm.’

Du Plessis concluded by saying that non-ethical behaviour had horrible consequences. He said that practising law was an awesome privilege that came with awesome responsibility, and that ethics was not a question of rule on rule but a manifestation of one’s inner self. Ethics require the highest exercise of your highest self, adding that ethics eventually was to put your client’s interest before yours.

Transformation and ethics

Mr Madoda spoke on the impact of transformation on ethics. He said that, prior to 1994, historically disadvantaged practitioners were under the false illusion that, come democracy, they would eat pie in the sky. ‘When the reality struck home that the more things change, the more they stay the same attorneys, like all spheres of our society, tripped over each other to attain personal aggrandizement at the expense of ethics. The legal profession, and I have no doubt most professions, was so engrossed in transformation and inadvertently neglected ethics,’ he said.

According to Mr Madoda, in the name of transformation, ethics are flouted day in and day out in order to score large state contracts or to do shoddy work in courts to get a quick buck. He said: ‘We are prepared to hire previously disadvantaged practitioners in order to fulfil quotas and score cards, all under the pretext of economic empowerment … . Recently, an in thing is to swallow smaller firms, who happen to be black, by larger firms but only to attract contracts. There is nothing wrong with it as long as such hiring and merging are equally beneficial to both players. The problem only arises when there are sinister undertones. Once we invoked such mischievous thoughts, then we have ethical issues. Some of us view transformation as a threat to our wealth and we are prepared to protect it even if means defying ethics.’

Mr Madoda said that South Africa finds itself in a difficult place, adding that it was a nation in transition, a young democracy that has no identity. It is a country trying to find itself and one that is battling to synchronise ethics in line with the prescripts of the Constitution. ‘We are no longer afraid to express ourselves, thanks to freedom of expression, whether in print media or on social networks. The latter finds popularity with younger practitioners. If there are no clear rules, for example, on how, what and when to tweet, ethics becomes an unintended casualty. As a profession we need to embrace change and dare not falter.’ He advised attorneys to take full advantage of social media.

Mr Madoda said that he has been told that in KwaZulu-Natal younger practitioners are the main culprits when it comes to misconduct.  He said that he believes that seasoned practitioners were putting commercial interest before those of mentoring up-and-coming practitioners. ‘Indeed, time is now not only our stock in trade but it has also become the new currency. If we fall short in mentoring, surely ethics suffers. We need to balance the two’, he said.

Mr Madoda said that he hopes that the code of conduct, as envisaged by the Legal Practice Bill, will be able to align ethical standards in conformity with the Constitution.

To conclude, Mr Madoda said that unethical behaviour was not confined only to the legal profession but was ‘a cancer that is devouring all spheres of our society at unprecedented levels’. He said that it was in forums like these where we could try to curb such cancer.

Mr Madoda said that over the years the profession had introduced many interventions in order to be in sync with societal norms, principles and standards such as mandatory practice management, the Attorneys Development Fund and SynergyLink. South Africa was endowed with opportunities, however, we seem not to notice them. He said that the sooner South African citizens learn to stop complaining about what they do not have and started using what they have, the better for the country and the profession.

According to Mr Madoda, the judiciary and the media has been the profession’s beacon of hope in the battle against moral decay. He said that among all of this, the law was still a noble profession.

Breakaway session

Before the conclusion of the summit, a group discussion took place. The breakaway groups deliberated on five questions, namely:

  • What impact does the South African broader context have on professional legal ethics?

In answer to this question, most of the groups were of the opinion that culture, religion and the diversity of South African citizens had an impact on professional legal ethics. They questioned how all this diversity would be put into one ethical code that everyone must abide by. They said that there was a culture of a lack of consequence in South Africa and that a change of mindset was needed. They also questioned whether there was a common understanding of ethics, adding that the word ‘ethics’ needed to be defined.

  • Which rules are most relevant for the profession going forward in 2014?

Some of the groups said that they believed that all rules were relevant as no rule was more important than the other, while others said honesty, integrity, professionalism and mutual respect for colleagues were the most relevant. One group questioned what the difference was between ethics and morality and said that morals were unique to a person while ethics were unique to a profession.

  • What might be learned (and therefore should be taught) at LLB level and for the profession?

The general consensus was that there should be a standard LLB curriculum across the country. A point was also raised that the curriculum was too academic and not practical enough. The groups said that it was difficult to teach ethics as everyone was brought up differently. One group said that medical students do practical work during holidays, suggesting that law students should be doing the same. It was suggested that an ethics course be held for candidate attorneys and that legal ethics must be compulsory and must be taught every year as a part of every subject.

  • What is the best method of tuition at LLB level and for PLT and continuing legal education courses?

The groups unanimously said that practical work was the best method of tuition. They said that the profession should be engaged and that law students should partake in community and pro bono services.

  • What should be done to keep the momentum and promote awareness of ethical decision-making by the legal profession after the summit?

The groups said that the profession should use social media, radio and television to engage with practitioners. They also said that there should be frequent meetings between the profession and law deans, and that the LSSA should have a review to ascertain what has been achieved a year or two after this summit and to conduct a survey on what candidate attorneys think ethical awareness is.

One group said that the LSSA Trustline could also be used to report colleagues who are behaving unethically. Another group said that the presence of attorneys was needed to be felt at university campuses.

Nomfundo Manyathi-Jele,

This article was first published in De Rebus in 2014 (April) DR 8.