A thought piece on ethical conduct for attorneys, advocates and corporate counsel having regard to the Legal Practice Act, 2014

Provided by Kerron Edmunson Inc

By Kerron Edmunson

Topics Running Your Practice

27 Jul 2020

Prior to the introduction of the Legal Practice Act, 2014 (or the LPA), the concept of a “fit and proper person” was applied in the context of admission of an attorney to the High Court of South Africa. It was commonly accepted but not actually stated anywhere other than in case law, that in order to be “fit and proper” a person must most likely have integrity, and must at least be reliable and honest.[1]

One of the go-to standards in South Africa emanated from the case of General Council of the Bar of South Africa v Jiba and others 2017, in which Judge Legodi described a fit and proper person as someone possessing integrity, objectivity, dignity, capacity for hard work, respect for legal order and a sense of equality or fairness. The concept was also examined by Magda Slabbert in her (still relevant) article entitled “The Requirement of Being A “Fit And Proper” Person For The Legal Profession.”[2]

In 2016 the Law Society of South Africa examined the traits that anyone wanting to be a legal practitioner should exhibit, and noted that “Apart from general characteristics like ambition, dedication and a disciplined approach, the lawyer-to-be also needs to possess special characteristics like being impeccably honest, decisive, objective in a matter, confident, and able to solve problems. The prospective lawyer must also be able to handle stress and pressure, to resolve any crisis and elicit the utmost trust and respect from his clients and colleagues. It follows that, because of his constant interaction with people, a lawyer must have exceptional communication skills and be able to explain difficult legal concepts in easy terms. However, the most important characteristic of any prospective lawyer is a well-developed sense of fairness and justice and the willingness to serve people.”[3]

Another useful example from Australian law as it relates to lawyers, is that a practitioner must not engage in conduct which is dishonest or disreputable or which would demonstrate that a practitioner is not a fit and proper person to practise law, would diminish the public confidence in the administration of justice or bring the profession into disrepute [see Australian Solicitors’ Conduct Rules, Rule 5].

The purpose of the LPA which is described in section 2 includes:

to provide a legislative framework for the transformation and restructuring of the legal profession in line with constitutional imperatives so as to facilitate and enhance an independent legal profession that broadly reflects the diversity and demographics of the Republic
to regulate the professional conduct of legal practitioners so as to ensure accountable conduct

The objects of the LPA in section 5 include to “determine, enhance and maintain appropriate standards of professional practice and ethical conduct of all legal practitioners and all candidate legal practitioners.”

In section 24(2)(c) of the LPA, the term “fit and proper person” is again used in the context of admissions of attorneys, so that only persons who are “fit and proper” should be admitted to the High Court. But this term also is used in the context of the appointment of persons to various administrative bodies tasked with regulating the conduct of the legal profession in South Africa including the National and Provincial Councils. So not only must those who practise law be “fit and proper” but also those who oversee the practitioners.

The Regulations published under section 109(1)(a) of the LPA (Gazette 41879 of 31 August 2018) deal with the appointment of persons to each provincial council, but these are purely administrative provisions. The Rules published under section 95 (1), 95 (3) and 109(2) of the LPA don’t make reference to “fit and proper”.

The Regulations published under section 109(1)(bA) of the LPA (Gazette 42002 of 29 October 2018) deal with the characteristics of persons to be appointed to other positions, in terms of section 7(2) of the LPA. This section states that “When constituting the Council the following factors must, as far as is practicable, be taken into account:
(a) the racial and gender composition of South Africa;
(b) the objects of the Council;
(c) representation of persons with disabilities;
(d) provincial representation; and
(e) experience and knowledge of—
(i) the provision of legal services;
(ii) the principles of promoting access to justice;
(iii) legal education and training;
(iv) consumer affairs;
(v) civil and criminal proceedings and the functioning of the courts and tribunals in general;
(vi) the maintenance of professional standards of persons who provide legal services;
(vii) the handling of complaints; and
(viii) competition law.”

Does this help identify what the law is looking for from each of us?

Section 18.2 of the Code of Conduct (published under section 36(1) of the LPA) (Gazette 42364 of 29 March 2019) provides that “An attorney will be regarded as being guilty of touting for professional work if he or she either personally or through the agency of another, procures or seeks to procure, or solicits for, professional work in an improper or unprofessional manner or by unfair or unethical means, all of which for purposes of this rule will include, but not be limited to –

18.22.1 the payment of money, or the offering of any financial reward or other inducement of any kind whatsoever, directly or indirectly, to any person in return for the referral of professional work; or

18.22.2 directly or indirectly participating in an arrangement or scheme of operation resulting in, or calculated to result in, the attorney’s securing professional work solicited by a third party.”

But this only applies to touting. Still it gives an indication of what ‘ethical’ conduct would NOT be.

Section 9 of the Code of Conduct is marginally more helpful in terms of understanding what “ethical conduct” might be and what the characteristics of a “fit and proper person” might be in specific instances. The heading of this section is “Integrity in performance of professional services.” This is a long section, containing reference to a required behaviour:

A legal practitioner and a firm shall take reasonable steps to avoid and prevent any reasonable suspicion arising that his, her or its integrity is compromised in any respect (section 9.1);
Whenever a legal practitioner performs any act in a personal capacity, which is ostensibly of a professional nature, he or she shall not permit any confusion to exist on the part of any interested person about whether he or she acts in a personal or professional role or both (section 9.4);
A legal practitioner who is briefed to prepare a document articulating the reasons relied upon by any entity or person whose decision is being reviewed or subjected to administrative appeal, must scrupulously express the reasons, as instructed, and must not distort their meaning by the manner of formulation or by the addition or subtraction of additional material (section 9.8); and
A legal practitioner shall, in giving any advice about the prospects of success in any matter, give a true account of his or her opinion and shall not pander to a client’s whims or desires. However, in any matter in which the legal practitioner’s opinion is adverse to the prospects of success, the practitioner may upon client’s insistence place before a court the client’s case for the adjudicating officer to decide the matter and the legal practitioner shall advance that case as best as [possible].”

Apart from the very strict and formal wording of this Code, which would likely be more accessible to the ordinary person if it was phrased more simply or in a more friendly manner, even this section does not give terribly much insight into the general characteristics of a fit and proper person, or a person who could be said to have a suitable set of ethics for the practice of law. Neither does any other section of Part III of the Code other than in section 18 which relates more to the way in which legal services are to be performed but include such directives as “dress appropriately”[4] and “perform professional work or work of a kind commonly performed by an attorney with such a degree of skill, care or attention, or of such a quality or standard, as may reasonably be expected of an attorney.”[5]

Perhaps the most useful list of characteristics that might be said to describe “ethical conduct” is to be found in section 63.2 of the Code. This section applies to what are termed “corporate counsel”, meaning in-house legal practitioners. This section is also lengthy but in brief, corporate counsel are required to “act in an ethical manner”.

This section continues as follows “… and without limiting the general nature of this duty, adhere to the following standards of conduct – …” For convenience and ease of reading, we have consolidated the sections into one long list – something like an oath for lawyers, perhaps, starting, “I undertake to:

act in a fair, honest and transparent manner, and with dignity and integrity;
remain impartial and objective, and avoid subordination or undue influence of my judgment by others;
give effect to legal and ethical values and requirements, and treat any gap or deficiency in a law, regulation, standard or code in an ethical and responsible manner;
not engage in any act of dishonesty, corruption or bribery;
make disclosure to any relevant party any personal, business or financial interest in my employer or my employer’s business or in any stakeholder so as to avoid any perceived, real or potential conflict of interest;
not knowingly misrepresent or permit misrepresentation of any fact;
provide opinions, decisions, advice, legal services or recommendations that are honest and objective;
be free from any conflict of interest, financial interest or self interest in discharging my duty to my employer;
be and appear to be free of any undue influence or self-interest, direct or indirect, which may be regarded as being incompatible with my integrity or objectivity;
assess every situation for possible conflict of interest or financial interest, and be alert to the possibility of conflicts of interest;
immediately declare any conflict of interest or financial interest in a matter, and recuse myself from any involvement in the matter;
be aware of and discourage potential relationships which could give rise to the possibility or appearance of a conflict of interest;
not accept any gift, benefit, consideration or compensation that may compromise or may be perceived as compromising my independence or judgment;
act in a professional manner and without limiting the generality of this duty I will –
- - act with such a degree of skill, care, attention and diligence as may reasonably be expected from an attorney, an advocate or a corporate counsel;
  - communicate in an open and transparent manner with my employer and with third parties, and not intentionally mislead my employer or any third party;
  - make objective and impartial decisions based on thorough research and on an assessment of the facts and the context of the matter;
  - exercise independent and professional judgment in all dealings with my employer and with third parties;
  - remain reasonably abreast of legal developments, applicable laws, regulations, legal theory and the common law, particularly where they apply to my employer and the industry within which I operate;
  - comply with and observe the letter and the spirit of the law, and in particular those relevant to my employer or to the industry in which I operate, including internal binding and non-binding codes, principles and standards of conduct;
  - observe and protect confidentiality and privacy of all information made available to me and received during the course of performing my duties, unless there is a legal obligation to disclose that information; and
  - generally, to act in a manner consistent with the good reputation of legal practitioners and of the legal profession, and refrain from conduct which may harm the public, the legal profession or legal practitioners or which may bring the legal profession or legal practitioners into disrepute.”

It may be that lawmakers deliberately refrained from giving meaning to the term “a fit and proper person” so that secondary law makers could determine the meaning from time to time within a particular set of circumstances. But as medical practitioners and other professionals bind themselves to a particular code of behaviour that must generally govern their actions, it would be appropriate for today’s legal professionals to consider an over-arching set of principles that apply not only to in-house counsel, but to the profession in general.

[1] In an undated article on the website of Lyndsay Keller Attorneys, a candidate attorney examined the concept with regard to more recent case law, see https://www.lindsaykeller.com/when-may-a-candidate-attorney-be-considered-a-fit-and-proper-person/.

[2]Magda Slabbert. BA (Hons) HED B Proc LLB LLD (UFS) Professor Department of Jurisprudence, University of South Africa.2011.

[3]Accessed on 16 May 2019 at http://www.justice.gov.za/juscol/docs/2016-LSSA-Career_Guide_to_the_Legal_profession.pdf

[4]Section 18.19 of the Code.

[5]Section 18.14 of the Code.

Running Your Practice articles on GoLegal

Ensuring financial integrity: The vital role of FICA compliance in South Africa