Ethics in action in the Legal Profession
“We have to link ethics to justice. If there is no justice in the world, nothing good will come from it.” Mr. Krish Govender, Chairperson of the Law Societies of South Africa (Ethics Committee).
1. Ethics: Broadly defined
Ethics consists of knowing what we ought to do, and ethical decision-making consists of actually doing what we know we ought to do.
No person is born ethical; rather, just as there are stages of growth in physical and emotional development, so too are similar stages present when it comes to ethics and ethical decision-making. Therefore, just as we possess the power to change our personal outlooks, beliefs and habits, so too do we possess the power to alter our approach to how we view the role of ethics within our personal lives and how this role translates into our professional lives and, ultimately, into the legal profession as a whole.
2. Ethics and the Law
a) The Constitution
Behaving ethically is however far easier said than done. Individuals within the legal profession often find themselves guided solely by factors such as income and status, as oppose to ethical principles, which more often than not erode the possibility for ethical results.
While we are very familiar with and necessarily pedantic with legal requirements for drafting agreements, wills, court papers and other documents (because the applicable legislation so requires), when we speak of ethics, many view the subject as one far removed from one being mandated by legislation. However, the obligation to behave ethically stems directly from the Constitution. Chapter 10 thereof mandates that public administration be governed by the democratic values and principles enshrined therein and, specifically that a high standard of professional ethics be promoted and maintained by all.
Practically however, that part of the Constitution that has an impact on lawyering in the constitutional era is the Bill of Rights and Chapter 8, which applies to the courts in the administration of justice. Naturally, the first step along the path to ethical lawyering is that we understand both of these documents. Without that understanding, it will be impossible for us to internalise their values and injunctions, and to ultimately act in accordance with them.
One of the founding values of the Constitution is that everyone is equal before the law and as such are entitled to equal protection under the law. This value can however only truly have substance if we treat everyone equally to begin with.
To act ethically, one necessarily needs to act honestly in all one’s dealings. Such honesty is only ever qualified by the client’s privilege. That being said, an intricate balance needs to be struck between honesty to the court on the one hand, which necessarily implicates fair trial considerations, and privilege to the client on the other.
In considering the right to a fair trial, there are various safeguards in section 25 that ensure that an accused has a fair trial. Of particular importance, and one which was emphasised by Justice Yacoob, is that all accused persons deserve a fair trial and that such fairness needs to exist at all levels. As such, lawyers have a duty to contribute to the fairness of a trial. It must be emphasised that the mandate of any lawyer is to represent the client. In criminal trials, this fairness translates not into securing an acquittal of the client, but rather in fulfilling one’s mandate, namely to represent the client to the best of one’s ability and as honestly as one possibly can. In civil trials, this fairness translates into ensuring that the purpose of adjudication, judging, and proceedings are aimed at achieving a fair result
Ultimately every individual that forms a part of our legal profession is potentially a judge. It is crucial that we adopt this view in order to get closer to the goal of having an independent and impartial system with lawyers who not only understand the distinction between fairness and unfairness, but are willing and capable of carrying out such fairness in their day to day dealings. Until we have such, there can never really be proper judgments. Reaching this goal will necessarily involve that we always bear in mind and are congniscant of the fact that we are a part of a ‘bigger picture’ and while our actions may appear to affect only those immediately around us, they ultimately create a ripple effect within the legal fraternity. The legal profession can only ever be as great, or as ethical, as the constituent parts that make it.
If lawyers become corrupt, the profession becomes corrupt. We are all ultimately contributing to judicial fairness as lawyers. Professionals who behave unconstitutionally in court, or treat persons that appear ‘different’ to them differently, do so because that approach and that behavior existed in the lawyers of yesterday. Today however, there is no room, and should be no tolerance, for such behavior. The only time that we should look to the lawyers of yesterday is to remind ourselves of how we should not be. Emphasising this point, Yacoob has stated that “the lawyer of today is the judge of tomorrow”. Therefore, the ethical lawyer is building the ethical legal system. A legal system that is “the guardian of the dignity of the nation”.
It must be noted however that embarking on this path is, and will never be easy. This is often expounded by the attitude of “but I am only one, and there are many against me”. This has been acknowledged by Chief Justice Mogoeng when he highlighted that transformation requires sacrifice and for one to be prepared to be deliberately misunderstood, condemned and mocked. But this builds solid character. Our character is something that we need to work on every day. Naturally, this will require us to engage in frequent introspection which in turn will enable us to ensure that we act with integrity and embrace ethical self-leadership.
Introspection will also remind us why we are here and why we do what we do. Our positions and actions taken in line with them, when confronted and embraced with integrity, afford us to be of greater benefit to the people that we are in fact so privileged to serve. In essence, when clients approach us, they do so because they lack the technical skills, knowledge and objectivity necessary to form their own judgement and ultimately place all their trust in us to do so for them. It is our duty and responsibility to assist them in the best way that we can. It is for this reason then that we need to act, always, with the best interests of our client in mind.
Leading a professional lifestyle that lacks such integrity, deprives not only us the ability or capability to assist our clients to the highest degree because we have in fact stunted our own professional growth; but it also entirely prevents us from acting in our client’s best interest, resulting in a complete injustice.
b) Other legislation
Besides the Constitution, there are various places in which we could look in order to assist us, or help guide us along the path to ethical lawyering. These include, the Code of Ethics adopted by the Law Society in 2006, the general principles for the legal profession as set out by the International Bar Association, Part IV of the Uniform Rules of Court, the Legal Practice Act 28 of 2014 and the Attorney’s Act 53 of 1979.
In the Supreme Court of Appeal case of Jasat v Natal Law Society, the Court held that, in terms of section 22(1)(d) of the Attorney’s Act, a practicing attorney may be struck off the role if that attorney is deemed, by the court, to not be a fit and proper person to continue practicing as such. It was held that establishing whether an attorney is a “fit and proper” person involves a three-staged inquiry: first, the court must decide whether the alleged offending conduct has been established on a preponderance of probabilities; secondly, the court must, within its discretion decide whether the person concerned is not a fit and proper person to continue practice (naturally, this is a value judgment involving the weighing up of the conduct complained of against the conduct expected of an attorney); and thirdly, the court must consider whether, in all the circumstances, the person in question is to be removed from the roll of attorneys or whether an order suspending him from practice for a specified period will suffice.
3. Ethics and the ever-changing legal landscape
Our commitment to an ethical profession is especially crucial in the ever-changing landscape, presenting an array of new challenges that we find ourselves encountering. Challenges faced by lawyers, inter alia, include those relating to competition, clientele and what can only be described as an “IT explosion”.
With regard to competition, massive technological and process innovation means that firms need to offer something more, a unique kind of ‘human’ experience that is entirely indispensable. Basically, an experience that cannot be obtained through Google. The ever increasing advances and innovations in technology are primarily felt where firms are largely process driven. This is so because such innovations have led to more standardized solutions for the delivery of legal processes and have resulted in the ability to commoditise many legal services. A clear example of this, with the aim to enhance access to justice; resolve disputes more easily, cheaply and quickly, is the introduction of online dispute resolution.
Technology is exerting a significant effect on the consumer buying behaviour across a range of sectors and purchase needs. The legal profession is inheriting the impact of change made by leading consumer brands to successfully build reputation and interact with purchasers online. There is and will be a great amount of uncertainty among consumers about different types of lawyer and legal business. As such, the reputation of a firm is crucial to its success.
Technological innovation also means that there will be greater access to information. This enables potential clients to more efficiently compare the cost of legal services and source them to most cost-effective service provider. Therefore, innovation in service and service delivery is crucial in order to differentiate our firm from not only other law firms, but to give our clients reason to choose us over conducting independent research.
In order to stay ahead of competition, there is a need for all types of lawyers to expand their skills base beyond technical legal knowledge. Non-attorneys are calling upon the Competition Commission to allow them to do reserved work in areas such as the Road Accident Fund, Conveyancing and Estates. At present, there are pending cases before our courts relating to the sharing of fees with non-attorneys. The challenge then is to retain this reserved work given to our profession in light of the high esteem the profession has held in being the guardian of the integrity of the nation.
It must be noted that, although adaptation to a profession advanced by technology necessarily involves making changes, it is important that we keep at least one thing constant: upholding our professional values, ethics, standards and legal integrity.
One also needs to be cognizant of changing clientele. While numbers are decreasing in the traditional (the physical individual) and online sectors, the opposite is occurring in the social or community based sector. This sector is characterized by a group of potential clients who, when faced with a legal problem, search for a shared experience of what others did in the same situation. This goes back to the importance of maintaining a good reputation within a firm. Further, clients are also connected through social media platforms and, on such platforms, it is very easy to submit ones opinions and rate ones experience, through praise or complaint, of a law firm.
At a symposium held by the Law Society of South Africa (LSSA) in conjunction with the International Bar Association (IBA) young lawyers engaged with international and local speakers on the new frontiers of legal ethics and their relevance in practice to social media, globalization and the new business of law. It was noted that the legal profession is expected to hold high standards of conduct when dealing with their clients especially because the profession deals with highly confidential information. The Co-chairperson of the LSSA, Richard Scott, stated that “attorneys are expected to carry out instructions with due diligence and integrity. This is a duty we owe both our clients and the courts. We should always remain constant and ensure that we maintain high standards of ethical conduct”.
It was also noted that the rapid speed of globalization and the effect that social media has had on society means that attorneys need to adapt but, at the same time, remain cautious of ethical considerations surrounding social media. While social media can be used to advance business, this needs to be done in an ethical manner.
c) The IT explosion
The introduction of computers has also affected the way in which attorneys are expected to perform their duties in the sense that we are expected to be technologically able. Ultimately, technology enhances productivity and at the same time provides an instant “now” means of socialization and interaction. In this sense, it has altered modern communications and social behavior. Further, the legal recognition of data messages has adapted the ways in which legal requirements may be met i.e. the requirements of writing, signature and contract formation may now be met by data messages.
It must be noted that while such innovations have made for a quick, convenient and, in some ways, simpler landscape in which the profession operate, it also imposes a greater responsibility on its role players in that reasonable efforts by legal professionals need to be made in an effort to safeguard client information and prevent inadvertent disclosure, unauthorised disclosure and unauthorised access of said information.
In conclusion, placing emphasis on ethics in the workplace and ethical behavior ultimately enhances the reputation of lawyers as honest persons who act with both integrity and dignity. This reputation of the individual translates to the reputation of the firm and finally to the reputation of the fraternity as a whole. Professionals who act with such integrity and dignity will be recognised by the court and will ultimately always obtain the ears of the court. Respect cannot be demanded but rather, through acting honestly and ethically, can be earned.