Fit and proper person: The importance of professional ethics

In the Gauteng Division of the High Court in Pretoria, there is a separate roll for the striking off and suspension of attorneys from practice. These are the same people who passed the test of ‘fit and proper’ person when they were admitted into the profession. The question is what happened in between? Is it a moral lapse of judgment or simply a temptation that comes with running a law firm?

‘A “fit and proper” person is not defined or described in legislation. It is left to the subjective interpretation of and application by seniors in the profession and ultimately the court. In the apartheid years this requirement was applied arbitrarily’ (M Slabbert ‘The requirement of being a “fit and proper” person for the legal profession’ (2011) PER).

‘It is commonly accepted that in order to be “fit and proper”, a person must show integrity, reliability and honesty’ (Slabbert (op cit) 212). ‘These are the characteristics which could affect the relationship between a lawyer and a client or a lawyer and the public’ (Slabbert (op cit) 212).

The court exercises a value judgment when it decides whether the legal practitioner is a fit and proper person. The exercise of this discretion is not bound by the rules. Precedents have limited value. ‘Such value judgments have been politically influenced in South Africa in the past’ (Slabbert (op cit) 212). For example, ‘when Mahatma Gandhi applied to be admitted as an advocate of the High Court of Natal, his application was opposed by the Law Society of Natal because he was a person of Indian origin and as such not a “fit and proper” person to practice law’ (Slabbert (op cit) 212-213).

Similarly, ‘Madeline Wookey’s articles of clerkship were refused because she was a woman, and women were seen to be improper for legal practice’ (Slabbert (op cit) 213). During apartheid, ‘various Law Societies brought applications to have lawyers involved in the struggle against apartheid removed from the roll of attorneys or advocates’ (Slabbert (op cit) 213). One such application was brought by the then Law Society of Transvaal (later known as Law Society of the Northern Provinces) against Nelson Mandela. It is reported as Incorporated Law Society, Transvaal v Mandela 1954 (3) SA 102 (T).

The least qualities that a lawyer should possess, according to Du Plessis, are –

• integrity in the sense of ‘impeccable honesty or an antipathy to doing anything dishonest or irregular for the sake of personal gain’;
• objectivity in the sense that ‘no irrelevant considerations whatsoever should bear upon one’s judgment’;
• dignity in the sense that ‘practitioners should conduct themselves in a dignified manner, and should also maintain the dignity of the court’; and
• ‘possession of knowledge and technical skills’;
• ‘capacity for hard work’;
• ‘respect for the legal order’; and
• ‘a sense of equity and fairness’ (LM du Plessis ‘The ideal legal practitioner (from an academic angle)’ 1981 (Sept) DR 424 in Slabbert (op cit) 216).

Even though there are critics of Du Plessis on these values and/or qualities, I do not see how a legal practitioner can be a fit and proper person without at least all of these qualities.

In the past legal practitioners valued justice more than their own personal comfort. Classic examples are Nelson Mandela, Oliver Reginald Tambo and most notably, Bram Fischer.

Today’s lawyers are struck off the roll of attorneys and suspended from practice mainly because of the misappropriation of trust funds. The damage this conduct causes to the poorest of the poor is beyond measure. This shows lack of sense of equity or fairness on the part of legal practitioners. At the centre of all this is greed. It would seem that legal practitioners are not interested in rendering legal services for free, even when the interests of justice demands it.

Our firm was given pro bono instructions by the Legal Practice Council (LPC). We carried out those instructions. And we kept on receiving further instructions. We then enquired from some of our colleagues if they have received pro bono instructions from the LPC. All of them never received instructions from the LPC.

Concerned with this, we then asked the LPC what the criteria is for issuing pro bono instructions to a particular legal practitioner. Unfortunately, we did not receive a response from the LPC.

Now the LPC has introduced regulations 4A and 4B, compelling legal practitioners to do a certain amount of pro bono work per year. Regulation 41A and 41B would not have been necessary if legal practitioners understand their social responsibilities. Legal practitioners must strive for social justice.

It is high time that the legal profession prioritises moral development of legal practitioners. Legal practitioners chase the purse and no longer justice. We put the poor people in extreme situations of poverty by taking what belongs to them. Eventually, the public will lose trust and confidence in the legal profession. At the end of the day, it is up to every one of us to do the right thing.

Nare Simon Molele BProc (Unisa)
is a legal practitioner at SN Molele Incorporated in Pretoria.

Response from the LPC

The office of the Legal Practice Council (LPC) encourages legal practitioners to provide pro bono legal services to members of the public that cannot afford to pay for legal services. We also welcome all legal practitioners that express an interest in doing pro bono work. In 2022, our office sent specialisation forms to legal practitioners and requested them to update information on their areas of specialisation. We encourage all legal practitioners that are willing to do pro bono work to update their area of specialisation or expertise with the LPC and we will refer pro bono cases to them.

Having said that, it is important to note that prior to 11 August 2023 pro bono or community service was not mandatory under the Legal Practice Act 28 of 2014 and legal practitioners had a choice to accept pro bono referrals or to decline same.

The position has changed since the dawn of the regulations to the Legal Practice Act that came into effect on the 11 August 2023. In terms of regulation 4A and 4B pro bono work and community service is now mandatory and legal practitioners must do 40 hours of pro bono work every year and candidate legal practitioners have to do eight hours of pro bono work every year.

We will in due course issue out guidelines for community service and pro bono work for all legal practitioners under the umbrella of the LPC to use as a point of reference. The legal practitioners and candidate legal practitioners will be advised on the date of implementation of the regulations in due course.

Ramadimetja Neo Chokoe, Senior Legal Officer, Pro Bono Unit.

Commendation: Counsel: ICJ

We refer to the eloquent and articulate presentation of all counsel at the International Court of Justice (ICJ) and they have all made us proud Internationally and domestically. Their presentation of the case at the ICJ in the Hague was unblemished, passionate and weaved through International law with ease – this area of practice is generally not within the forte of general practice and the time allocated to prepare Counsel, was also limited.

We are also given to understand that some counsel compromised their fee and if this is so, this should follow their legacy as being the only counsel, against all odds, to tackle such a mammoth task.

It is the duty of the Legal Practice Council (LPC) to formally and publicly acknowledge their accolade and honour them for what they have achieved, and we are surprised that the LPC has not even uttered a whisper in this regard. We implore upon you to consider our suggestion in the light it is made when the world has congratulated them, our own have remained silent. Please take note and make a concerted effort to give credit to the team of counsel for their brave and unrelenting efforts.

Rashid Patel BProc (Unisa) is a legal practitioner at Rashid Patel and Co in Pietermaritzburg.

Response from the LPC

The LPC did comment on the matter and our comment was included in the Legal Industry Reviews (www.flipsnack.com).

Kabelo Letebele, Senior Manager of Communications, Branding, and
Stakeholder Engagement at the Legal Practice Council.

A note to candidate legal practitioners on consultations

Instructions are often said to be the lifeblood of an attorney’s practice. Without instructions, an attorney’s practice is reduced to a mere building, devoid of clients and worse still, bereft of fees. This is common knowledge. What is less spoken of, which in my humble view deserves more emphasis, is the art of consulting with clients. It comes down to what the author, Maya Angelou, once said: ‘People will forget what you said, people will forget what you did, but people will never forget how you made them feel.’

Clients approach attorneys in dire circumstances, requiring sensitivity, compassion and empathy. On other occasions, it is to be assisted through what may be a great personal victory that is daunting and requires the deft hand of an attorney to finalise. Given that most legal practitioners have not been met with a real-life consultation by the time they make it into their contract of practical vocational training, it is necessary to sum up the skills for effective consulting. These rest on three pillars, which have been suggested above.

The first is sensitivity. Sensitivity to the client’s plight, the client’s desired outcome and sensitivity to the time constraints surrounding the client’s issue. In my experience as a candidate legal practitioner at a non-profit organisation, clients would often be indigent, seeking a resolution to the legal issue, and such resolution should be, where possible, final and dispositive of their issue. For example: When a client approaches you facing an imminent eviction, it is always the case that they are severely anxious. Offering a glass of water or a cup of tea will assist in settling their nerves. This is an inexpensive and quick step to show the client you see them as a person and not merely another payment into the firm’s bank account.

The second pillar is compassion. Going with the example above, the nature of client assisted in an eviction situation may have had no access to ablution facilities or had the opportunity to dress in the manner expected in corporate spaces. Ample grace, compassion and humanity are necessary to enable the client to feel comfortable in your presence. This is by putting yourself in their shoes: listening attentively to communicate your empathy and maintain the direction of the consultation towards ascertaining the factual basis for the legal outcome they seek. Affirm them in their humanity as bearers of the right to dignity by stating clearly that you understand their situation and wish to assist them as best as possible within the confines of the law. It should not matter whether the client is assisted on a pro bono basis or is a paying client. Courtesy is the mark of a well-rounded attorney.

The third pillar, which is the last, is empathy. Be able to assess what practical outcome the client wants and be frank in explaining the limitations of the law in achieving that outcome. This needs to be communicated with empathy and regard for the client’s ability to fully comprehend what that means. Simple English, the use of examples and keeping room open for the client to ask questions will go a long way. Linked to this, is the ability to exercise your expertise without being condescending. Clients already know that an attorney is well-versed in the law. They do not need to be made to feel small for that reason. Instead, they seek that same expertise to feel fully defended by the might of the law. If you cannot do so, for whatever reason, it is advisable to inform the client of your inability to carry out the instruction, or the consultation itself.

While there is more to be said of what makes an ideal consultation in the formal sense, the above is intended to inform a would-be practitioner on the tone and spirit they should adopt when consulting with clients. Clients are more than the fee payable on performance of their instructions. They are fully human and are owed a duty of courtesy as humans sharing in the full measure of dignity as anyone else under the Constitution. Admittedly, legal practitioners will face difficult clients amid highly stressful situations and it will not always be possible to achieve full adherence to the pillars ideated above. In these instances, we owe ourselves as legal practitioners and aspirant legal practitioners, the same sensitivity, compassion and empathy that otherwise never makes it to us by caring for our holistic wellness.

Muano Nemavhidi LLB (Univen) Risk, Compliance and Governance Cert (LEAD)
is a former candidate legal practitioner at the Socio-Economic Rights Institute.

This article was first published in De Rebus in 2024 (July) DR 4.