ETHICS AND PROFESSIONAL

RESPONSIBILITY
2011

Lecturer:
Email:

Cameron McConnachie
[email protected]

With grateful thanks to Ms H Kruuse who developed this course outline.

1.

OVERVIEW AND PURPOSE

Ethics and Professional Responsibility is an elective course in the final year of LLB. Legal
ethics (in the broad sense) forms part of both the Attorneys and Advocates Admission
Examinations. This course should go some way to preparing you to write and pass these
examinations. But examinations aside, this course begins by examining the relation
between practical legal training in ethics (based on articles and pupilage training) and
general ethical theorising. The focus on this relation at the beginning of the course arises
out of the fear that rote-learning of legal ethical rules and practice without theory lacks
direction, becoming little more than a loose amalgam of reactions to specific cases.1 The
course combines both the theory of ethical lawyering and the practice of lawyers
governed by the various rules of the law society, general bar and case law. This structure
attempts to speak to the two dimensions of legal ethics, that is, to individual and to
collective responsibility both to personal decision making and to professional
regulation.
2.

ASSUMPTIONS OF PRIOR LEARNING

In order to successfully complete this course, students should:

be capable of communicating competently in written and spoken English;
be capable of critically analyzing and extracting relevant legal information from case
law, legislation and other source material;
be aware of the influence of Constitutional principles on source material; and
be capable of independent learning.
3.

OUTCOMES

3.1
Knowledge Outcomes:
It is intended that students know and understand:
The different approaches to legal ethics.
The purpose and function of legal ethics.
The sources of legal ethical rules.
The kinds of ethical dilemmas which lawyers face.
Some of the most important rules and principles of legal ethics.
Typical professional negligence situations.
3.2
Skills Outcomes:
It is intended that students should be able to:
Debate current ethical issues and think critically about existing practices.
Apply ethical rules to practical scenarios.
Research and write an essay on a selected topic in legal ethics.
Present the results of the above essay to the class, and in so doing demonstrate
presentation skills.

See LaFollettes remarks about ethics in general in H LaFollette (ed) The Oxford Handbook of Practical Ethics
(2003) 8.
1

3.3
Values Outcomes:
Reflected under Overview and Purpose heading above.
4.

TEACHING METHOD:

This elective course runs for 13 weeks. The course is divided into 4 sections (cf. section 5
below) which will be covered in the 2nd semester in the form of vive voce lectures, seminar
discussions and presentations by students.
Students are expected to read ahead of the next lecture so that they may participate in the
lecture and consider practical scenarios either individually or in groups. There is no
comprehensive handout for the course and as such, students are expected to take their
own notes during lectures and to supplement these with readings provided in the course
outline. Students are expected to assume responsibility for their own learning by
independent study according to guidance provided by the reading list. Throughout the
course and in test and exam evaluation, problem-solving scenarios will be put before
students on a regular basis.
Students are required to write a research essay on a particular part of legal ethics which is
of current significance potential topics will be handed out to students in the first two
weeks of term which students may, not must, use as a basis for their project. Students
may choose to work individually or in groups of two. In finalising a research topic,
students must consider and complete the Learning Contract document (see appendix
III) and arrange a meeting with me to finalise their research topic. At this meeting, a
topic proposal and a hand-in date will be negotiated. At the presentation, students must
share their findings, research and own opinions with the rest of the class in the form of a
presentation at a date to be arranged with me.
Students are referred to the Facultys Law Survival Guide in respect of DP requirements
for attendance of lectures. Students are welcome to discuss problems with the lecturer.
5.

COURSE CONTENT:

B
C
D

Lawyers and ethics:

A1
Introduction to theoretical approaches to legal ethics
A2
Institutions and sources that regulate the conduct of attorneys and
advocates.
Duties of the lawyer selected topics
Student presentations selected topics
Professional Liability

6.

SOURCES OF REFERENCE:

You need not purchase any book(s) for this course. Useful material will be made
available for you to read on shortloan:
-

the Practical Legal Education (PLT) notes on Attorneys Practice is a primary

reference.

A useful source of reference for the whole course, but especially for attorneys ethics
is: E A L Lewis Legal ethics: a guide to professional conduct for South African attorneys (1982)
Juta: Cape Town.

J R Midgley Lawyers Professional Responsibility (1992) Juta: Cape Town will be the main
reference for section E.

Unfortunately, there is very little written in South Africa regarding the nature of ethics in
the legal profession apart from the more practical book written by Hoffman (see I M
Hoffman Lewis & Kyrou's handy hints on legal practice (1997) Butterworths: Cape Town).
However, the following international texts are extremely useful:
-

K Economides (ed) Ethical Challenges to Legal Education and Conduct (1998) Hart
Publishing: Oxford

M Freedman and A Smith Understanding Lawyers Ethics 3 ed (2004) LexisNexis:

Newark

G Hazard and D Rhode The Legal Profession: Responsibility and Regulation (1985) The
Foundation Press: New York

L Lerman and P Schrag Ethical Problems in the Practice of Law 2 ed (2004) Wolters
Kluver: New York

D Luban Lawyers and Justice: An Ethical Study (1988) Princeton University Press:
Princeton

D Luban Legal Ethics and Human Dignity (2007) Cambridge University Press:
Cambridge

D Nicholson and J Webb Professional Legal Ethics: Critical Interrogations (1999) Oxford
University Press: Oxford

Y Ross Ethics in Law: Lawyers Responsibility and Accountability in Australia (2005)

LexisNexis Butterworths: Australia

You are advised to consult the Attorneys journal, De Rebus, and the Advocates journal,
The Advocate, for topical ethical issues in legal practice.
7.

STUDENT ASSESSMENT:

The final mark for the course is comprised of the following components:
Class work:
out of 40 marks
Examination: out of 60 marks
Total:
100 marks

7.1

Class work

Students are assessed for the class work component on the basis of two pieces of work
(assignment/presentation and test). The assignment / presentation will count 30% (15%
for each part) and the test will count 10% of the final class mark.
Please note that no late assignments / the failure to present such assignment on the due
date will be accepted for purposes of the class mark. Late assignments / late
presentations will receive 0% unless the student has a valid leave of absence. The test
(date to be announced) may contain:
Problem questions which require the application of theory, law society rules and/or
case law to solve practical issues;
Case notes;
Theory-type questions, in which students are required to describe, explain and
critically evaluate the current law.
The failure to complete the class work on time will be considered a failure to perform the
work of the class. This may result in the taking away of a students DP for the course by
the Dean.
7.2
Examination:
The November examination for this course will comprise a two-hour long examination
paper out of 60 marks. The ethics component of this course will comprise of +-50
marks while +-10 marks will be allocated to the professional liability component.
8.

GENERAL:

Please feel free to approach me about any aspect of this course. If you have a specific
query, to ensure availability, please email me to arrange an acceptable consultation time
for us both.
I hope that you will find this course interesting and worthwhile.
Cameron McConnachie
July 2011

Ethics and Professional Responsibility

2011
Tentative schedule of topics and cases to be discussed in class
Date

Topics and problems

Sources & materials

Week

Lawyers and ethics

S Pepper The Lawyers Amoral Ethical Role: A Defence, a Problem and some Possibilities (1986)

1. Introduction to the course

American Bar Foundation Research Journal 613.

G Postema Moral Responsibility in Professional Ethics (1980) New York Law Review 63-64; 73-83.

2. Alternate views of the lawyers role

W Simon Ethical Discretion in Lawyering (1987-1988) Harvard Law Review 1083-1119.

Lewiss Golden Thread and the characteristic qualities of an attorney: A practitioner must avoid all
conduct all conduct which, if known, could damage his reputation as an honourable lawyer and honourable citizen
(Lawyers Ethics)

Week

Lawyers and ethics -

Prior reading required for hypotheticals:

1. Discussion of alternate roles

(1) Rule 35 of the Uniform Rules of Court (Discovery)

2. Two practical examples of ethical quandaries:

(2) Rule 3.2 of the Uniform Rules of Professional Conduct (General Council of the Bar South Africa)

(scenarios to be handed out in class)

(see http://www.sabar.co.za/ethics_rules.pdf)

Week

(A) The law governing lawyers - Institutions

See appendix I for quick source sheet re: institutions and sources

and sources that regulate the conduct of attorneys

and advocates
General:

E A L Lewis Lawyers Ethics

Quick revision of difference between

attorneys and advocates

(B) Admission (and re-admission) to

practice as an attorney and as an advocate

fit and proper person requirement

Examples of necessary disclosures

Fit and proper requirement (professional and personal life)

Attorneys (ss 15(1)(a) and 22(1)(d)):

Prince v President of the Cape Law Society and others 2000 (3) SA 845 (SCA) and 2002 (2) SA 794 (CC)

Kaplan v Incorporated Law Society, Tvl 1981 (2) SA 762 (T)

Ex Parte Postma 1999 (3) SA 762 (T)

Law Society of the Cape of Good Hope v Budricks 2003 (2) SA 11 (SCA)

Cape Law Society v Reyneke 1990 (4) SA 437 ECD

Law Society, Transvaal v Blumberg 1987 (3) SA 659 (T)

Prokureursorde Transvaal v Van der Merwe 1985 (2) SA 208 (T)

Prokureursorde van die Oranje Vrystaat v Roodt 1996 (2) SA 498 (O)

Transvaal Law Society v Kleynhans 1995 (1) SA 839 (T)

Swartzberg v Law Society, Northern Provinces 2008 (5) SA 322 (SCA)

Issues arising from discussion:

Advocates (ss 3(1)(a) and 7(1)(d)):

1. Is s22(1)(d) of the Attorneys Act constitutional

Fine v Society of Advocates of SA (WLD) 1983 (4) SA 488 (A)

(in the light of s22 of the Constitution of South

Hayes v The Bar Council 1981 (3) SA 1070 (ZAD)

Africa, 1996)?
2. Can a person be re-admitted on the basis that

Society of Advocates of Natal and the Natal Law Society v Merret 1997 (2) All SA 273 (N)

Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA)

In re Ngwenya v Society of Advocates, Pretoria, and another 2006 (2) SA 88 (W)

they were originally disbarred because of a

wrongful conviction, alternatively, that they
show remorse?
3. Should a person who has plagiarised at
university or the side-/ bar examinations be
admitted to practice (or in the former case, be
registered as a candidate attorney)?

Necessary disclosures:
Attorneys:

Ex parte Maharaj 1959 (4) SA 522 (N)

Ex Parte Gunguluza 1971 (4) SA 212 (N)

Ex Parte Singh 1964 (2) SA 389 (N)

In Re Legal Profession Act 2004; re OG [2007] VSC 520 [Australian case]

Advocates :

Ex Parte Cassim 1970 (4) SA 476 (T) at 477E-H

In re Rome 1991 (3) SA 291 (A)

S v Mkhise; S v Mosia; S v Jones; S v Le Roux 1988 (2) SA 868 (A)

Week

Lawyers duties to court:

Duties to court includes:

(1) Duty to act honestly, consciously and openly (conversely: not to mislead the court and to

4&5

Being a good person in an adversary system

(Lerman and Schrag 594-598)

The Perjury Trilemma (Freedman and Smith

159-173; 193-195)

Attorneys duty to court (CLS Rule 14.3.2)

Advocates duty to court (URPC 3.2 at C.2)

disclose material facts):

Aaron v Law Society (Society of Advocates of Witwatersrand intervening) 1997 (3) SA 750 (T)

Kekana v Society of Advocates of SA 1998 (4) SA 649 (SCA)

General Council of the Bar v Mattys 2002 (5) SA 1 (E)

Van der Berg v General Council of the Bar [2007] SCA 16 (RSA)

(2) Duty to act with utmost good faith towards the court

Pienaar v Pienaar en Andere 2000 (1) SA 231 (0)

Issues arising from discussion:

Jasat v Natal Law Society 2000 (3) SA 44 (SCA)

1. Duty to disclose adverse facts?

Toto v Special Investigating Unit and others 2001 (1) SA 673 (E)

Flight from Sudan (Hypothetical to be

Ex Parte Hay Management Consultants (Pty) Ltd 2000 (3) SA 501 (W)

handed out in class)

Ulde v Minister of Home Affairs and Another 2008 (6) SA 483 (W) para 36ff. (see also order of the SCA

1.1 Revelation about past criminal conduct?

in Jeebhai v Minister of Home Affairs (139/08) [2008] ZASCA 160 (27 November 2008)

The missing persons case (hypothetical to be

handed out in class)

(3) Duty to acquaint him/herself with the rules of court and articulate the best argument

1.2 Revealing confidences to prevent future injury available

or death

Ferreira v Ntshingila 1990 (4) SA 271 (A)

S v Ntuli 2003 (4) SA 258 (W)

Spaulding v Zimmermanv 263 Minn. 346,

PN Cele v SASSA and 22 related cases (unreported case no. 7040/07 DCLD (19 March 2008))

116 N.W.2d 704 (1962) (see R Cramton

& L Knowles Professional Secrecy and

(4) Duty not to abuse the process of the courts:

its Exceptions: Spaulding v Zimmerman

Re Grunow Estates (Edms) Bpk v Jordaan 1993 (3) SA 448 (OPD)

Revisited (1998) 83 Minnesota Law Review

Mofokeng v General Accident Insurance Co Ltd 1990 (2) SA 712 (WLD)

Machumela v Santam Insurance Co Ltd 1977 (1) 660 (A)

Maia v Total Namibia (Pty) Ltd 1991 (2) SA 352 (Nm HC)

63)
1.3 Revealing inconsistent statements to the
defence (as a prosecutor)

S v Xaba 1983 (3) SA 717 (C)

2. Duty to disclose adverse authority

(5) Duty not to use coarse, lavatorial & abusive language (including irrelevant or slanderous
material)

Shoprite Checkers (Pty) Ltd v Bumpers Shwarmas CC 2003 (5) SA 354 (SCA) concurring judgment of
Marais JA.

Ulde v Minister of Home Affairs and Another 2008

(6) SA 483 (W) para 36ff. (see also order of

D Davis, G Marcus & J Klaaren The Administration of Justice in Joubert (ed) LAWSA
Findlay v Knight 1935 AD 58 at 71-73

the SCA in Jeebhai v Minister of Home Affairs

Preston v Luyt 1911 EDL 298

(139/08) [2008] ZASCA 160 (27 November

Basner v Trigger 1946 AD 83 at 106-107

2008)

Glucksman v Schneider 1936 AD 151 at 161-162

10

3. Cross-examination (following the instructions

of your client)

Dalkon Shields litigation example (to be

handed out in class)

Week

Lawyers duty to client

Duties to client includes:

Attorneys duty to client (CLS Rule 14.3.2.1)

(1) The attorneys duty when he/she represents a client and an unrepresented party

Advocates duty to client (URPC 3.1 at C.1)

Issues arising out of discussion:

1. The different type of conflicts that can arise:
1.1. Concurrent conflicts
1.2 Successive conflicts
1.3 Imputed conflicts (chinese walls = remedy?)
1.4 Present and former government lawyers

Prince Jefri Bolkiah v KPMG (a firm) [1999] 1 All

Leite v Leandy & Partners 1992 (2) SA 309 (D)

(2) Duty to avoid conflicts of interest

S v Hollenbach 1971 (4) SA 636 (NC)

S v Jacobs and another 1970 (3) SA 493 (E)

The Law Society of the Cape of Good Hope v Tobias and another 1991 (1) SA 430 (C)

S v Dintwe and Another 1985 (4) SA 539 (BAA) at 541A-H

Martin NO v Road Accident Fund 2000 (2) SA 1023 (W)

DH Swanepoel v The State [2006] SCA 171 (RSA) para 12ff.

Problems 1, 2 and 3 (Appendix II)

ER 517 & Freshfields [2004] EWCA Civ 741.

Conflict of interests in Hlophe case

News24.com (20 August 2008)

11

(3) Independence and control in and over a case

2. Possible problems surrounding contingency fee

R v Matonsi 1958 (2) SA 450 (AD) at 456A-457F and S v Majola 1982 (1) SA 125 (A) and S v Louw

arrangements

1990 (3) SA 116 (A)

R Kiser, M Asher, B McShane Lets not

Carolus and another v Saambou Bank Ltd; Smith v Saambou Bank Ltd 2002 (6) SA 346 (SE)

make a deal: An Empirical Study of Decision

F Coetzee Eis teen regslui Die Volksblad 6 June 2009

Making in Unsuccessful Settlement

Negotiations (2008) 5 Journal of Empirical
Studies 551-591

(4) Contingency fee arrangements

Contingency Fees Act 66 of 1997

Price Waterhouse Coopers Inc v National Potato Cooperative Ltd 2004 (6) 66 (SCA)

Law Society of South Africa and Others v Road Accident Fund and Another 2009 (1) SA 206 (C)

Problem 4 (Appendix II)

Week

Particular duties of the attorney:

(1) Management of trust funds:

1. Management of trust funds (ss78 & 83(9) of

Law Society, Transvaal v Matthews 1989 (4) SA 389 (T)

the Attorneys Act 53 of 1979 and CLS Rule 20)

Holmes v Law Society of the Cape of Good Hope and Another 2006 (2) SA 139 (C)

2. Duty to his/her law society (CLS Rule 15)

Summerley v Law Society, Northern Provinces 2006 (5) SA 613 SA

The Law Society of the Cape of Good Hope v Peter [2006] SCA 37 (RSA)

12

Issues arising out of discussion:

(2) Duties to his /her law society

1. Incompetence rather than intention regarding

Lambert v Incorporated Law Society 1910 TPD 77 at 79

the operation of trust funds

Hurter v Hough 1987 (1) SA 380 (C)

Summerley v Law Society, Northern Provinces 2006

Law Society of the Cape of Good Hope v Budricks 2003 (2) SA 11 (SCA)

(5) SA 613 SA

Law Society, Northern Provinces (Incorporated as the Law Society of the Transvaal) v Maseka and another 2005

The Law Society of the Cape of Good Hope v Peter

[2006] SCA 37 (RSA)

(6) SA 372 (BH) at 378ff

Problem 5 (Appendix II)

2. Liability to third parties

Hirschowitz Flionis v Bartlett and another 2006 (3)

SA 575 (SCA)

Du Preez & Others v Zwiegers 2008 (4) SA 627

(SCA)
Week

Particular duties of the advocate:

Duty to obey the rules of the profession:

1. Duty to obey the rules of the profession

Olivier v Die Kaapse Balieraad 1972 (3) SA 485 (AD) at 498A-B

2. The referral rule / The advocates duty not to

Society of Advocates of SA (WLD) v Cigler 1976 (4) SA 350 (T) at 354

take work off the street (URPC 5.12 at E12-

General Council of the Bar of South Africa v Van der Spuy 1999 (1) SA 577 (T)

12bis)

13

Issues arising out of discussion:

Duty not to take work off the street

1. Freedom of trade?

Society of Advocates of Natal v de Freitas and another (Natal Law Society Intervening) 1997 (4) SA 1134 (N)

2. Obeying the rules of an organisation that you

General Council of the Bar of South Africa v van der Spuy 1999 (1) SA 577 (T)

are not part of?

De Freitas v Society of Advocates of Natal 2001 (3) SA 750 (SCA)

3. New Legal Services Sector Charter?

Commissioner, Competition Commission v General Council of the Bar of South Africa and others 2002 (6) SA
606 (SCA)

(http://www.doj.gov.za/LSC/legal_charter.htm)

Week

Selected topic: Client vs cause in public

interest litigation

Rosemann v General Council of the Bar of South Africa 2004 (1) SA 568 (SCA)

Van der Berg v General Council of the Bar [2007] SCA 16 (RSA)

Readings to be announced

Hypothetical scenario to be handed out in

class

Week
10 &

Student presentations & test

11

14

Week

Professional negligence

The care that is to be reasonably expected of the average attorney

12

Introduction: difference between ethical

Ebersohn v Prokureursorder van Transvaal 1996 (1) SA 661 (T)

duties and legal duties

Bouwer v Harding 1997 (4) SA 1023 (SE)

Duties to clients

Responsibility for actions of employees

Duties to clients

Guardian National Insurance Co Ltd v Weyers 1988 (1) SA 255 (A)

Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A)

Honey and Blankenberg v Law 1996 (2) SA 43 (A)

Responsibility for actions of employees

Mazibuko v Singer 1979 (3) SA 258 (W)

Mashigo v Rondalia Assurance Corporation of South Africa 1977 (3) SA 431 (W)

Manyeka v Marine & Trade Insurance Co Ltd 1979 (1) SA 844 (SE)

Mkhomolo v President Versekeeringsmaatskappy Bpk 1984 (1) SA 342 (T)

S v Longdistance Pty Ltd 1986 (3) SA 437 (N)

Guthrie v AA Mutual Insurance Association Ltd 1986 (4) SA 979 (W)

Week
13

Revision

15

Appendix I
Quick source sheet for institutions and rules that regulate the conduct of
attorneys and advocates
Attorneys:
(1)
Attorneys Act 53 of 1979 (as amended) specifically ss 15(1)(a) and 22(1)(d).
Deals with variety of matters but most importantly, it deals with qualifications and
admission requirements for attorneys.
Also deals with the manner in which trust accounts are held, the attorneys fidelity
fund, the law councils and their councils in SA, the work which may only be
performed by attorneys etc.
(2)
Regulations promulgated under Attorneys Act
What constitutes appropriate legal experience for purposes of admission (one would
look at regulations when preparing admission docs and payment in respect thereof).
(3) Rules of various law societies (and attorneys duties towards his or her law
society)
Rules of the four provincial law societies are promulgated in terms of s74 of the
Attorneys Act: The Law Society of the Cape of Good Hope Rules: GG 5255/76 and
specifically:
Rule 14 (professional conduct)
Rule 15 (disciplinary)
Rule 20 (investment practice rules)
Rule 21 (pro bono services)
(www.capelawsoc.law.za)
(4)

Rulings of the Council

The Cape Law Society publishes these rulings in their annual yearbook. These rulings
deal with a variety of matters, especially regarding allowances, sharing of fees with
persons other than legal practitioners, contingency fees, dealing with public and trust
monies etc. Please note that s19 of the Judicial Matters Amendment Act 66 of
2008 amends s72 of the Attorneys Act so as to allow the Council to impose fines of
up to R100 000 for unprofessional, dishonourable or unworthy conduct (up from
R10 000). In the case of candidate attorneys, the maximum fine that may be imposed
has increased from R2000 to R20 000.

(5)

Court decisions

(6)

Common law

(7)

Interpretation of ethical rules by textbook writers (Lewis etc)

(8)
Foreign influences
International bar association
International code of ethics

16

English Bar association

The Law Society: Solicitors Practice Rules and Codes and the professional conduct
of solicitors

(9)
The public interest
For examples: issues relating to competitive practices, Road Accident Fund matters,
conduct of lawyers in high profile cases etc.
(10)

The Legal Services Sector Charter

Importance of Act and rules?

In Die Prokureursorde van the Oranje Vrystaat v Schoeman 1977 (4) SA 588 (O), the court
stated:
An attorney who does not take the trouble of familiarising himself with the Act
and the Rules and who, as a result lands on the wrong track, cannot expect much
sympathy on punishment.
Importance of the role of law societies?
As early as 1903 the Full Court in Incorporated Law Society v Dagg 1903 TS 583 at 589
expressed the view that, as a general rule, action for unprofessional conduct should be
taken against a practitioner by the Law Society and not by the Court on its own initiative.
In Kaplan v Incorporated Law Society, Tvl 1981 (2) SA 762 (T), the court saw the law societys
as guardians by stating that the law societies are:
[i]nstitutions which right from the beginning of their existence had an important
and significant part to play in assisting the Courts to regulate and discipline the
profession for the protection of the prestige, status and dignity of the profession
and the public interests in so far as they are affected by the conduct of members
of the profession.
Advocates:
(1)
(2)
(3)

Admission of Advocates Act 74 of 1964 (as amended) specifically ss 3(1)(a) and

7(1)(d).
General Council of the Bar and The Uniform Rules of Ethics (available on
www.sabar.co.za)
Rules of Practice in the Eastern Cape Division of the Supreme Court of South
Africa (now Eastern Cape High Court)

17

Appendix II
Problem questions re: conflicts of interest, contingency fee arrangements and
attorneys duty to his or her society
Problem 1:
Mr Groenewald of Humansdorp is missing. His wife suspects that he has been
murdered. She contacts you to try find him. You suspect that your acquaintance, Piet, a
car mechanic is involved. You contact him and ask him whether he knows anything. Piet
informs you that the police are at his door. He hasnt told you anything over the phone
except to ask you whether he should co-operate fully with the police.
Problem 2:
Two clients of your firm, namely, W and D want to conclude a deed of sale with each
other. They ask you to draw up the deed of sale. In particular, they want you to draft a
clause in the agreement to the effect that the purchase price will be payable to the
purchaser D upon registration of transfer (to be registered by your law firm). They insist
that they want you to act for them in this matter. W, in the meantime, wants you to
register a bond over the property that he is in the process of selling to D, prior to the
registration.
Discuss what you should do in the circumstances with reference to any conduct rules or
case law which govern the matter.
Problem 3:
One of the biggest law firms in South Africa (Clifford&Laters) merges with another
medium-sized law firm (Braun&Major). You are a director at the CL. It is clear that CL
and BM represent clients who are litigating against each other or have conflicting
interests in the commercial sphere. In a meeting of the directors, the following proposal
is made to the directors to resolve the apparent conflict of interests:
The new law firm will rely on the so-called chinese walls approach.
This involves establishing procedures to prevent information in the possession of
one practitioner from being communicated to other practitioners in the same office
quarantining legal practitioners who have dealt with client X from those practitioners
who are now dealing with client Y.
This proposal will resolve any conflict of interests because the firm can guarantee
that, in following the above procedures, no confidential information from X will be
used in acting for Y.
In these circumstances, it is argued that it would not be improper for the law firm to
accept a retainer from both X and Y.

18

Problem 4:
You are the in-house legal advisor to the Eastern Cape Pineapple Co-operative Board.
You are tasked with investigating certain irregularities allegedly committed by the Boards
erstwhile general manager, Peter Pine. In the course of your investigation, you find
several irregularities committed by Pine which caused huge financial loss to the Board. In
your opinion, the independent auditor to the Board, Andrew Apple and Co, should have
picked up on these irregularities which occurred over a 10-year-period. You include your
findings in a report to the Board and, as a result of this report; the auditor firm resigns.
In order to recoup the losses suffered by the Board, you suggest that Andrew Apple and
Co be sued by the Board for breach of contract. It is your opinion that the auditor failed
to carry out audits properly in accordance with the relevant common-law and statutory
rules. The Board is under severe financial stress and cannot finance the proposed
litigation against the auditor. One of the members of the Board suggests that the Board
approach a reputable law firm on the basis that it will litigate on behalf of the Board on a
no win, no fees basis. In addition, he suggests that the law firm should share a
percentage of the profits.
Prepare a memorandum to the Chairperson of the Board in which you advise whether
such an approach is permissible and if so, any legal requirements that need to be met.
Problem 5:
The Cape Law Society has received several complaints about the non-payment of Road
Accident Fund awards and dishonoured cheques by Pam, an attorney practising for her
own account in Grahamstown. In addition, there are several allegations by estate agents
that Pam has spent monies in her trust account for her day-to-day business expenses.
After correspondence between Pam and the Law Society, the Law Society decides to
sends an auditor to Grahamstown to inspect Pams books (in terms of s70 of the
Attorneys Act 53 of 1979). Pam objects to this, stating that the actions by the Law
Society (viz. inspecting her financial records) amounts to administrative action as
contemplated in section 1(1) of the Promotion of Administrative Justice Act 3 of 2000
(PAJA). As such, she submits that the Law Society has to comply with the
requirements of PAJA, in particular, that she be afforded a hearing before the Society
inspects her books.
Discuss whether the Law Society must afford Pam a hearing before inspecting her books.
In the course of your answer, discuss the general duty of an attorney in handling trust
money.

19

Appendix III
Learning contracts
What is a learning contract?

A document used to assist in the planning of a learning project

A written agreement negotiated between a learner and a teacher/lecturer/facilitator
that a particular activity will be undertaken in order to achieve a specific learning goal
or goals
An agreement negotiated between students and staff regarding the type and amount
of study to be undertaken and the type and amount of assessment resulting from this
study.

The idea of a learning contract is based on the ideas of educators such as Malcolm
Knowles that:

as autonomous human beings, adult learners should be encouraged to take more

responsibility for their own learning and to use their existing skills and experiences as
the basis for new learning
they should be allowed, in formal educational settings, to learn things which are of
importance to them.

A learning contract can be adapted for different contexts or purposes. It can provide a
way of managing the negotiation of learning activities in a negotiated curriculum. The use
of learning contracts highlights the participants responsibility in facilitating her or his
own learning process and contributing to the course. From the start we want you to
examine your role in facilitating learning and how you are going to contribute to the
process. We would particularly like to use the learning contracts to guide the process of
learning.
Basic structure of this learning contract:
1.
2.
3.
4.

Set out the topic for your research project;

Set out your learning objectives or goals;
Set out the resources available to you to achieve these objectives;
Set out the evidence which will be produced to indicate the objectives have been
achieved;
5. Note the criteria which will be used to assess this evidence
These categories have been adapted. Note the last category (assessment criteria) has been
established for the research project. Learning contracts are negotiated between learner
and lecturer. You may want to revisit your learning contract and come back to it before
and after your presentation to see how your thoughts have changed or developed and
what new developments have taken place.

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LEARNING CONTRACT BETWEEN AND

CAMERON MCCONNACHIE IN THE COURSE: ETHICS AND
PROFESSIONAL RESPONSIBILITY
1. Set out a proposal for your research project in the space provided below:

2. What are your goals or objectives in researching the chosen topic?

3. What resources are available to you and what strategies will you adopt in order
to achieve these objectives?
(Think about resources very broadly, including the usual legal resources such as legislation, case law,
codes of conduct etc, as well as interdisciplinary resources. Think of any past and current experiences
as resources for learning, including your time at the Legal Aid Clinic as well as any vacation or
other work experience. When thinking about your project, think about whether you will be able to
contribute to the group learning process).

4. What evidence will you produce to demonstrate that you have met the
outcomes of the research project and your own goals?

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Assessment Criteria for Research Project

Criteria

Content
20%

Understanding of
relevant concepts
30%

Insight
30%

Structure
10%

Presentation
10%

Overall comment

Overall mark

Competent

Not yet
competent/Does
not meet
minimum criteria

Unacceptable

Appropriate and
accurate
Relevant theory
and/or case law
Detailed coverage

Mainly appropriate
and accurate
Minor inaccuracies
Some relevant
theory and/or case
law
Sufficient coverage

Some irrelevant
and/or inaccurate
content
Key theory and/or
case law absent

Superficial
Much
irrelevant,
inaccurate content
No theory or case
law

Familiarity with
and clear
understanding of
relevant concepts
Appropriate use of
terminology
Good integration

Moderate
understanding of
relevant concepts
Some inappropriate
use of terminology
Moderate
integration

Clear insight
Critical argument
Sound reasoning
Ability to apply
theory and/or case
law

Moderate argument
Reasoning fairly
clear
Superficial
application of
theory and/or case
law

Structured layout
Well organised
Clarity of thought
Grammatically
sound

Mainly well
structured
Moderate
organisation
Few grammatical
errors
Thoughts
reasonably clear

Not well structured

Weak organisation
Grammatical errors
Thoughts unclear

No introduction
and/or conclusion
Many grammatical
errors
No development
of a logical,
coherent argument
No organisation

Evidence of effort
spent
on
presentation
Well referenced
and accurate

Moderate attention
to detail
Moderate
referencing

Not well
referenced
Little evidence of
proof-reading
Reference sources
not acknowledged

Poor referencing
No evidence of
proof-reading
Gross errors

Excelle
nt

Very
Good

Competent

Satisfactory

Just
below
standar
d

Weak

Very
weak

Little of
relevance

85
100%

75
85%

65
75%

50
65%

45
50%

35
45%

25
35%

0
25%

Highly
Competent

Confusion
regarding relevant
concepts
Sparse use of
terminology
Some
understanding but
unclear
Rote repetition
Weak argument
Some
understanding but
reasoning unclear
Little attempt to
apply theory
and/or case law
Uncritical

Vague and
confusing
Lack of use of
terminology
Conceptual
misunderstanding
and gross errors

Conceptual
misunderstanding
Off the topic
Confusion
No insight

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Assessment Criteria for Research Presentations

(Ethics and Professional Responsibility)

Content
30%

Delivery
30%

Appropriate and accurate reflection of law and / or description of issue

Relevant theory and / or case law
Detailed coverage
Evidence of preparation prior to presentation (ie. evidence of adequate
adjustment of assignment to a conference-type setting).

Did presenter simply read from his / her notes?

Did presenter exhibit confidence in his / her thesis?
Was the general delivery style appropriate in respect of: posture, use of
gestures, eye contact, pace / speed, volume (clearly audible?), voice
modulation (monotone not great), articulate, economy of words,
projection of confidence, actually listening to questions asked?
Did the presenter make habitual use of eg OK or Right?

Structure

30%

Etiquette

10%

Overall mark

Was there logic in the presentation? (ie. easy to follow, well set out, golden
thread etc.)
Was the presenter able to integrate questions asked during the presentation
with structure? (ie. ability to move about the presentation if necessary)

Did the presenter introduce his / her topic to the audience in a way that is
appropriate to a conference-type setting?
Did presenter refer to cases, authors, etc, appropriately?
Was there an appropriate rounding off?
Did presenter manage the allocated time appropriately?

Combination of above categories

100%

With grateful thanks to Ms H Kruuse who developed this course outline.

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