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UNIT 6 - PROFESSIONAL CONDUCT & ETHICS Cheat Sheet (DRAFT) by

The attorney's obligations toward their client regarding: 1. the taking and executing of instructions 2. the termination of the relationship 3. the obligation of confidentiality 4. ethical obligation in conflict of interests 5. the concluding of contracts 6. the taking of secret commission/gifts 7. liability of negligence

This is a draft cheat sheet. It is a work in progress and is not finished yet.

WHY PROFES­SIONAL ETHICS

Dual Function - assist the client & promote justice in society.
- these functions may come into conflict.

WHAT ARE PROFES­SIONAL ETHICS?

- It concerns the rules of conduct.
- Principles of profes­sional ethics
- Norms to judge fit and proper person

WHY BE GOOD?

Being moral demands 2 things of you:
(1) Determine the right course of action - DO THE RIGHT THING.
(2) Follow it
IF NOT?
- you will become unethical by cutting a corner here, by stretching the truth a bit there (white lies?)
- none of the little things that you will do, almost unthin­kingly, will seem to be so bad in itself - an added 15 minutes to a time sheet/­invoice here, a little white lie to cover a missed deadline there
After a few years, you won't even notice that you are lying, cheating, and stealing every day that you practice. Your entire frame of reference will change. Instead of reflecting the notions of right and wrong according to which you conduct your personal life, your decisions will reflect the set of values by which you conduct your profes­sional life - a set of values that embodies. not what is right or wrong, but what is profit­able, what you can get away with.

WHERE DOES ONE FIND RULES OF PROFES­SIONAL CONDUCT?

 
 

WHAT IS A PROFES­SION?

6 REQUIR­EMENTS
(1) an intell­ectual basis
(2) a private practice
(3) an advisory function
(4) a tradition of service
(5) repres­ent­ative body
(6) a code of conduct

THE PRACTI­TIONER & HIS CLIENT

TREATMENT OF CLIENT
- client is most important
- you are dependent on client
- the client does you a favour
- should not fight with your client
- lifeblood of your firm
*- under no obligation to accept a client's instru­ctions
Consider the following:
1. Potential conflict of interest.
2. Potential fraud, illegality
3. Compet­ence: knowledge & skill
Ebersohn v Tvl Law Society
ACCEPTING THE CLIENT OR MANDATE
Satisfy yourself of the following:
- the client's identity
- the client's competence
- the authority of holders of a power of attorney
- scope of instru­ction - good commun­ication is vital
- learn to listen
Financial Intell­igence Centre Act (FICA)
- aim to combat crime and money laundering
- s21 - provides that attorneys must verify the identity of the client
Costs:
- Must provide the client with a written cost estimate
- explain the question of costs: hourly fee, charges, disbur­sements
- provide an outline of the work to be done
- difference between party and party cost and attorney and client* cost
- fee agreement
Contin­gency Fees
"no win, no fee."
- not allowed in Matrim­onial matters & Criminal matters
- 100% more than normal fees or 25% of capital
- common law agreement - illegal
De La Guerre v Ronald Bobroff
Overch­arg­ing­/Ov­err­eaching*
excessive fees = removal from the roll
Fee Assessment Committee
Factors:
1. Difficulty
2. Seniority
3. Expertise
4. Urgency
5. Time spend
6. Importance & Value
Leite v Leandy & Partners
Attorneys who is drawing a contract between a client and a unrepr­esented party has a duty to act fairly to BOTH parties
Unrepr­esented party should seek indepe­ndent legal advice
Execution of the Instru­ctions
- duty to obey your client's specific instru­ctions
- obtain instru­ctions for every action you take
- ALWAYS act in the best interests of your client
Washaya v Washaya: settle­ments - get instru­ctions
Clients are NOT bound by the actions of lawyers where they exceed the mandate given.
- It is an implied term of the contract between yourself and your client that you are liable to your client in damages for breach of contract
- Duty of care
- the necessary skill & knowledge are expected. (Mouton v Mynwer­ker­sunie)
TEST: reasonable attorn­ey/­expert attorney
Liability towards non-cl­ients?
Pretorius v McCallum 2002
- disapp­ointed benefi­ciaries - invalid will - interstate succession applied
 

CONFID­ENT­IALITY & PROFES­SIONAL PRIVILEGE

It applies to commun­ica­tions made -
- in your profes­sional capacity
- confid­ent­iality
- for the purpose of seeking legal advice - institute action
All commun­ica­tions between you and your client are confid­ential
It remains confid­ential even after the termin­ation of the mandate
- it can only be waived by the client
POPI ACT
The Protection of Personal Inform­ation Act 4 of 2013 came into effect on 1 July 2021
- duty to protect personal inform­ation of clients.