Good Example Of Essay On Legal Practice In South Africa
The world of legal practice is one that has numerous dynamics and complexities. It requires a person to be sharp and on edge to avoid shortcomings, although they are inevitable from time to time. A while back, a number of claims and complaints were raised about inappropriate treatment and handling by lawyers and advocates of the law. As a result, an oversight and governing body had to be created to help in running and providing guidelines for practice to its members (Chanock 34).
Law societies were developed with this intention. Over time, they developed the code of conduct, and they have grown to attain numerous other roles. This paper looks at the case example of inappropriate conduct by a lawyer in South Africa. It looks at the code of conduct for lawyers in South Africa, before coming up with a legal opinion regarding the standards of practice that may have been violated in the case of Joe De Maggio vs. Edgar Smith.
The lawyers, just like any other professional field, are guided and governed by predetermined standards of operations. Codes of ethics also exist to provide the lawyers with proper guidelines for conducting their practice. The dynamics of being a lawyer are quite complex as compared to other fields or occupations (Higgs-Kleyn, Nicola, and Dimitri364).
Ethical standpoints are often put to the test within the legal field on numerous fronts, and this comes with the legal territory. For years, the law profession was considered to be noble and not every individual would be allowed to practice. Admission and removal from the bar of practicing lawyers are dependent on several factors. By exploring these factors, it becomes easy and justifiable to pronounce a judgment, or an opinion regarding the case at hand.
Law societies have rules and regulations that have to be adhered to by the members. The aims and goals of such guidelines are to ensure that the legal profession is protected in as much as it may be promoted. However, the greatest beneficiary is and has always been the client in the context of the relationship that may exist between the lawyer and the client. Ethics remains the single most important aspect and component within the legal field. A lawyer is expected and bound by the law to act according to the specific codes of ethics that ensure that the client is well represented and catered for.
Integrity, honesty, and reliability are also core elements that have to be observed when it comes to the legal field. However, the nobility of the legal field has been eroded and lost over the years as a result of cunning and dishonest members. A lawyer is expected to try and establish the presence of any form of conflict of interest in the case before engaging in it. Wide and deep consultations have to be made between the client and the lawyer to ascertain the absence of any form of conflicting interests (Simon 1085). In the event that an attorney, during the course of consulting, finds out that a reasonably foreseen idea or material may bring about a scenario in which interests may conflict, the ethical guidelines allow them to turn down the offer.
A case that results in a hampered discharge of duties and responsibilities can be turned down by a lawyer citing ethical guidelines. The lawyer, however, is allowed to continue with the previous mandate that had been accorded to him. However, a number of scenarios do arise where, due to lack of proper consultations with the lawyer at the first meeting, conflicting interests may arise in the cause of the proceedings of a case. In such cases, under the provisions and guidelines of the court, the lawyer is expected to withdraw from both cases with immediacy. It is, however, important to note that the legal profession comes with a number of challenges that may result in an attorney working under pressure (Kutz 45).
Such provisions and observations have been included in the lawyer’s code of conduct. The lawyer, as a representative of a client, has a number of duties that he or she has to accomplish in effect. The first important duty is to avoid any form of personal bias towards the client or the responsibility being mandated (Moore 72).
The second duty and obligation to the client by the attorney is to ensure that he or she advances the case to the most rewarding and satisfying level of the client. In several situations, the client may complacent with the case at hand or may fail to understand it (Merwe19). It becomes the duty of the attorney to ensure that they make their clients comprehend and understand the case at hand, any obligations and resulting consequences from choices made.
Law Society’s Legal Opinion
The concept of conflict of interest arises in the case presented in this paper. Most relationships are built on trust and confidence in one another. These relationships can be formed either on friendly terms or on professional terms. In most cases, a person is expected to act in the best interest of the other, owing to the level of trust that has been accorded to them. However, when a scenario arises where one member has to represent another, in this case as a lawyer, a clash between personal interests and the duty at hand may become an obstacle.
This individual may want to act in the best interest of the partner and ensure that they get the best outcome. Conflicts of interest are bound to occur in situations where a person is likely to bring about a clash with fiduciary duties. A good example could be when a lawyer is asked to commence an action against a company in which he holds shares or is a major shareholder. The greatest challenge in the legal word is merging and finding compatibility between individual interests and professional duties (Menkel-Meadow 65).
A lawyer cannot and should not represent two parties in a given dispute and should ensure that he or she avoids the appearance of conflict. The attorney is not expected to commingle funds with a client or make joint business ventures with a client. By Edgar Smith accepting the offer made by Mrs. Belinda De Maggio, he violates a number of ethical and professional codes of conduct. From the description of the case, there is a clear indication that Joe De Maggio and Edgar Smith had a history of working together.
The lawyer had made investments in the past on behalf of the client, hinting at the existence of mutual trust and confidence between the two. The relationship had been in existence for a while; thus Edgar, the attorney, was aware of the criminal background of the client and his involvements in a criminal syndicate.
After five years have elapsed, Edgar receives a new client in his office, by the name Mrs. Belinda De Maggio who turns out to be the wife of a former client, Mr. Joe. Upon this realization, it is expected that Edgar should have turned down the request for representation by Mr. Joe’s wife in their divorce case. There is a clear indication of a conflict of interests on various fronts (Sarat and Stuart 85).
Having lost Mr. Joe’s money, it is clear that his involvement in the case would be biased. The second perspective is that having worked with Mr. Joe in the past, he was privy to confidential information that would greatly affect the outcome of the divorce case. For instance, being aware of the involvement of Mr. Joe in a criminal syndicate could be the very determinant of the divorce case. In an attempt to redeem himself in the eyes of his former client, Edgar may be biased in the case to ensure that Mr. Joe gets to win the case (McQuoid-Mason 44).
Lawyers hold the responsibility of being guardians of the law. They have a significant role in ensuring that they preserve the society. To attain and fulfill this role, they are mandated to understand the relationship that they hold between themselves and the legal system. The overarching obligation that comes with being a lawyer is that one has to maintain the highest possible standard of ethical conduct. The case discussed in this paper indicates a clear violation of these guidelines.
Analysis and Conclusion
The codes of conduct and ethics may not necessarily be exhaustive or comprehensive. In as much as they may not cover each and every point of the profession, it is up to the lawyers to make judgment calls regarding their ethical standpoints. The stipulations, according to the above-mentioned guidelines, have to be observed by attorneys, failure to which complaints may be launched. Further charges are also likely to be made regarding the unprofessional conduct of a lawyer. The clients in the respective cases have the liberty to claim for damages against such a lawyer, and more adverse consequences may arise from such incidents.
The inclusivity of the ethics and professional codes has been for years been questioned and criticized. That alone is evidence enough regarding the moral and ethical fabric that it should take to make a legal practitioner. The ethical obligation and duty are largely determined and observed at a personal level. The absence or presence of a law society should not be the main consideration when it comes to matters of ethics to clients. General dynamics and operations within the legal world may be tough and all that, but that is not reason enough to flout and violate guidelines and professional codes.
Punitive charges and measures may be directed to the lawyer from both the client and the law society. In this case, Edgar Smith should be disciplined by the law society owing to the clear violation of the professional and ethical codes that have been stipulated by the law society of South Africa. Ethical and professional codes do not necessarily provide comprehensive stipulations and guidelines, but the lawyers have, from time to time, to depend on their conscience in making decisions and choices. Loopholes may be found within the stipulated guidelines and regulations, but that should not give the leeway for unethical behavior by the legal practitioners.
Chanock, Martin. The Making of South African Legal Culture, 1902-1936: Fear, Favour, and Prejudice. Cambridge: Cambridge Univ. Press, 2001. Print.
Higgs-Kleyn, Nicola, and Dimitri Kapelianis. "The role of professional codes in regarding ethical conduct." Journal of Business Ethics 19.4 (1999): 363-374. Print.
Kutz, Christopher. "Complicity: Ethics and law for a collective age." (2000). Print.
McQuoid-Mason, David J. "Delivery of Civil Legal Aid Services in South Africa" Fordham Int'l 111 (2000): 24. Print.
Menkel-Meadow, Carrie. "Lawyer as Consensus Builder: Ethics for a New Practice" Tenn. L. Rev. 70 (2002): 63.Print.
Merwe, C G. Introduction to the Law of South Africa. The Hague: Kluwer Law Internat, 2004. Print.
Mhlungu, Thuli. "Educating and Licensing Attorneys in South Africa." Ga. St. UL Rev. 20 (2003): 1005. Print.
Moore, Nancy J. "Lawyer Ethics Code Drafting in the Twenty-First Century." Hofstra L. Rev. 30 (2001): 923. Print.
Sarat, Austin, and Stuart A. Scheingold, eds. The world’s cause lawyers make: structure and agency in legal practice. Stanford University Press, 2005. Print.
Simon, William H. "Ethical discretion in lawyering." Harvard Law Review (1988): 1083-1145. Print.
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