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Ethics Notes

Ethics Board exam Question paper and answers - memorandum

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Bongani
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56 views62 pages

Ethics Notes

Ethics Board exam Question paper and answers - memorandum

Uploaded by

Bongani
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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ETHICS. NB Discuss the various fetors taken into account when determining a reasonable fe for vou ‘senses (nonItgiousl: ‘Sompleity of matter Importance of matter to cent “imespent in doing the work ‘Knowledge and expertise eauired “Time and place at which werk was done including consultations ‘Uerency of mater ‘Amount of money involved ‘Senlorty of practioner 9. Extent of perusal and consieration of documents 10, Extent of work done by youand by other non-qualified stat ‘What vps transaction wl be subject to VAT? 4 Matinee stn 7 of VAT Act: ‘On the supply bya reistered vendor of goods o services supplied by him inthe course of ‘any business ‘+ On the importation of goods ito the RSA + On thesunplyafany imparted services by a person ued to do when commlssloner of vats, Wh fait 2) 2. Sasty self asto deny ofdeponent Deponent may ether swear to an affidanit or tis too confi ts content 3. When administering an atorey must ask the deponent 2. fhe know and undertandsthe contents ofthe ative 2 Whethere nes any gledion aig the oath oc aking affemation €._ Whether he considers to oath afrmaton lading on icone 4 Thereafter deponent must ln the afdan presence of commissioner who mus ceri below the depanent's inate tat he ater has acknowledged that he knows and understands the afidavit 5. The commissioner must inwrting indicate the date and place of sansture; pit fullnames, sdesiqnation 2nd addres below his signature; and state the area for which he hol is aopointment PSST ‘etaon you deal with? (3 1. Section 21 of he FICA het provides as flows: |. an Accountable nsttution hel al atorneys) may not establish a business relationship or ‘conclude since transaction whith a lent unless the Accountable institution has taken the prescribed steps: > 1. Toverfy¢hdTdentindtthectent; 2, the cent sai m 1 person, to establish and verify the LC if that other person and Chem bls a business relationsia orto canchude the snee ‘uansaction on beta ofthat other perso; ana 4 sranomer persons acu on penal ofthe client, ogstablish and very i. thee brat other person end 'w, That atherersons authority to act on behalf ofthe cent 4. The diferent categories of dents tobe Mdentified and verified areas folows: Natural persons (re 2-6) 5 tk Legal persons regs 7-12) i Bartnershins (regs13-14) hy Truats (regs 15.16, utes towond seem to breach usual duty of confident 1 Accousblelnstutons ae sled teen deta So ces busines ans, a Gaia seeds hey are abbuder an ebigation te: ch eo eo te Franca! linc Cente ote stem o2 gb eens So © fesoncasntansaaionssoove spresetbeaameuns tthe vente ord “AD d. Report to the Centre the conveyance of a transaction with a client of gash above a xtsribed amount or through 2 speed account or institution eal ity on behal sh ‘admited gull you. (3 4 An accusedis always entited to plead nat ity 2. Onus of proof son prosecution/Stas 53. Pleading nc uity doesn equal denying acs alleged but puting the Stat to proof eI ‘4 Presiding offer and prosecution understand this ad ae not “misled” unless you cll evidence ‘or make submission n conflict with the version the accused gave YoU 5. However, attorney may not allow cient o give evidence which the attorney knows is untrue 6 attorney by 105s examination in regard to matters of entifcation Conds Pais court Define confit of interest and give 3 exams (5) 1 Anything which adversely affects judgment or loyalty in representing or advising your cent 2 gs judged by examiners ‘Gens ot otnersttomeys want you to take over nex mandates, What stvsal/grotesional siderations aply to both attomeys? (3 pala ground 1. Clent/princps ey terminate» mandte at any ine 2 roe tes aan New attomey must get written letter of termination from client 1 Newatomey shoul naact unt costs flare zald ‘ld attorney has fightotetenon or len for costs ve docs drawn bhi New attomey should nots any docs ul coss ai ether tore shoul be bald to ‘thecal would be unconscionable tothe cent 3. Usually 2 gon idea to speak to ol attorney o see there ae facts cents did't dlsbse what are the consequences of not sicussng fees si in max court tigaton with cent?) 4L_Attorey will usualy be regarded a acting fora reasonable fee which it assumed tobe the mmatcour tac 2. antares intr fee sn common aw only enthled to fe when mandate ben SAE 2 ‘blitte recone asin ats ay hve oa serfs forse uo Your mandate le complet, You must rende uo “TO fee for arranging the appointment, consultation with you and the purchaser (2), perusal of your memorandum and paiculars about the transaction (1), preparing the fst da, copies or you and purchaser, deliver or faxing thereo (0), dseussions with purchasers attorney about amendments to ‘the contac (2), preparation of second drat, copies thereof, delivery to younelf and to purchasers attorney (1), receipt of telephonic instruction to false the contract final arendments and draft final draft (1), telephone cals between you, the purchaser and his attorney tomate arrangements forthe signing ofthe contract 1), attendance at signing (1), corespondence, other telephone cals as wellas postage and sundry expenses (2) xominers can use decretion acount setting out the details of ll work samples of work done for account cle Perasl of your memorandum Preparing fist drat Copies of erat to client, other party, delivery or tletax Teleghonic conversation with cent abovt proposed changes to craft Discussion wth ather party's attorney about amendments Preparation of second drat copies to lent and other party, delery of copy Preparation offal daft ‘elephonic consultation with ather attorney to arrange fr signing of contract 10, covespondence, oer vlephone cl, postage ana sundry expenses You act on bass wil get 15% of A's aword, Court swords A 60k damages tocar but nds your dient 1. clam: 80% x 60K = 48k 3. Award to: 48k ak= 4k “A, 18800: 44h 15% = R560 astomney back amounts held in trust, which may hae be “Gahts one hs and what has tobe done to exerle thoee rights (10) 1. Because you del withthe frm, they ae able to repay vou 2. Yours inform the law society and the attomeys fidelity fund of the theft and potenti oss 3, The ABE my require you to exhaust all emedies in particular against the attorney ste fund sa ford of osteesort 4, Hfattomey is unable to ces, the AE wil reimburse and pay reasonable costs and interest 5. FARE nreasonable refuse, you may se them Diffrence awn attorneys duty to keen the affairs aa cent confidential andthe atteney: silent pring 5) 1. Attorney sin contrac obliged to Keep afar of cent confidential 2. Bross in legislation whch compel ftorney in certain creumstances fo disclose certain information 3. Legaariiee belongs tothe clint and the attomey cannot be competed to disclose in evidence information gven by client wit view to legal action or advice 4. Rissqualy rule of evidence [some cet may be gven If deal with ules regarding which dsclosures are subject to legal Privilege and not) How to handle an offer by lent o lend you money if you woul keto borrow thi amount 1. Imorazerto borrow money rom sliantunles client inthe business of ending money o has 1, Costs according to tani which a successful tigant may recover fom losing part if court makes _avardin favour of winner 2. feos cannot be recovered, successful partes ttorey may only recover the party and party ‘costs tom oun cllent (unless agreement that may charge more) 3. lfattomey falls to discuss ees, may not change more than party and arty ‘Astomneyand own lent fees (2) 1. Feesattomey entitled to recover from own cient 2. Mannan which fees must be determined is incorporated in agreement betwen attorney and lent Preferably the agreement should be in writing or at east confirmed in etter 4 Fees must be easonable ‘You ate convicted of driving under the nluence of quo. Law society apis m1 Whe key todo and why? we dishonesty?) 1 High court not kelytostike off 2. Test tobe applied is whether Individual sand paper to practise as.an attorney 3. Court wil prob award costs tothe sacety 2s performing a ducing duty 4. offence were to include dishonesty, would clear affect the fitness and would prob be struc: off ‘May you commission and affidavit drawn up by our partner in urgent aplication? would it be sittin a conveyancing mater? (4) 4 Youmy nt administer he oath n mater in which you have an intrest '5y definition, sour ase in vou im is mattr fm has interes in 3. permissible to administer oath ngonvevancing matter the Act and Regulation speticaly ‘aludlgonvevancindmaters trom thse n which youhave an interest Discus the purpose of FICA ond vour 0 1. cad onthe raina cole ndindenendence ofthe storeys prosion, an upon ‘he confident of allommunicains between storey nd tects 2 Duty to establish an ery identy of certs od ofthe author, they ied tea sete cod of lens, busines relaonshin, ne of ansacions for pected period 3. Rtoreys under ebigatin to Make Soh cards aalabeto Francia Inteligance Centre on thesvengthof warrant © Inform te cere on request of the exltence of curent or past mandate; © Report cash transaction above a prescribed amount othe Cente; Report thecrte the onvevacan eso ansaction witha cent oh shoves pesrbed amount oof woush a peced account or instttion. ‘You at of the pinion es 2 lent of or work done, What is vour 7 2 1. Advise individual to request the Law Society to have the fee determined (tex) by an ‘sessment Panel to establish whether ts reasonable 2. Nothing prevent you from negotiating a fee with your olleague that you thik rsonable ‘Gananattomey botrow money ftom a cient affered? 41 Ris tmaroper for an attorney to borrow money from his lent unless he i 2 money ender ors Independent advised 2. Unless these requirements are met, you must dedine the offer. Whats the effet ofextinstve prescrnton ona laim/debt? Ifa clain/aebs has prescribes til exes 05 9 natural obligation but becomes unenforceable Was ertos apy to she most ommon clams: "Normal prescrintion period s 3 years but years in respect of aim asng fom a negotiable lee a summons fr alam that hae al ribed, what ate the consequences: 1. tt lsnot unprofessional to sue even if prescribed a ong as client is infommed of he Impleations as flows: |. Any Baument by the debtor may be recived: 1. Presiding officer may not mero mut aie the isu of presciption; Ti, debtor may raise special plea of prescription which iskalyt succeed; uc this may recut inorder of costs aginst lent 1 Wins touting for work unprofessional? ‘An attomey must avoid giving the Impression that his intentions ae designed to touting his practice ‘campaign ot romtions by lavish entertainment is unprofessional and amounts to touting outing detracts from the dant ofthe rofesion ond could ead to dishonesty 4 ives an unfair advantage tothe Immoral and causes problems with the public expecting sscounts 5. Remember subtle diference between touting and legltimate marketing ‘eral ofsionl PaleneChotorgs te te clert) *+ Lea professions! privle apollo communications between you an your ent: 1 nee thoy relat to your profesional lations 2 Made or pumas of skin or ebing zal advice or or senegal proceedings 5. Whether weten a ora 4. yen here lent confesses to you the gommison of proc cime or fraud ‘= Professional privilege does not apalto: 1 Documents which are not otherwise rived (nt privileged merely becouse client ‘hands them to you) ‘Communications made for purpose of faciltating a eime or fraud ‘The name af your clint - you canbe compelied to disclose it Fcts learned by you with your own sans ‘And where statute express or by implication provides thatthe privlege i Inapliable. hates ate suitable fra debs-callection? 1. Various aw societies have prescribed attornev-ond-ent fees for debt collection 2) Youmay ae enor int» gontingency ine agceemen: What fes and debursements may you recover from the debtor Jegranted In ‘debt collection matter? 1 May recover theta stipulated nthe rules of the magistrates cour for undetended actions 2._oF any atornerand-lient fees ifthe debtor hs consented in wing = irre feeheremmtnce ink wtp ‘when may an attorney refuse to ‘mandate and when lhe ever obliged to accept.a mandate? e 1. Anattorey may in principle fuse ® accept any mandate 2. -Attomey MUST cefuse: {tif he doesnot have necessary expertise Does not have sufisent ie |i. Cannot come toa satisfactory arrangement about fess Iv. Instruction unlawful, immoral an contrary to public ple, 3. Attorney must accept 2 mandate from an gusting dent patuary naan emergency situation 4 Aso acept mandate if limited numberof attorneys in a partlar area which has effect that there sno other attorney to assist cent ‘Section 83(8) provides that only an attorney may prepare the following documents with the ‘cactaton ofa fe, gan or reward 1. An agreement or deed in respect of immovable property or rights in orto immovable ‘property, othe than leases not exceeding years, conltons af sale or brokers notes; 2 wl or testamentary writing: memorandum and articles of esocation or prospectus ofa company, 4 documents eating to the creation or dissolution ofa partneriipor any variation ofthe terms, thereof and 5, anyinstrument or document required or intended for any use in ell proceedings nthe Republic ow may one cove ldgment deb from a debtor who: Obtain emolumentstachment order to ecover gat of salar det rom employer Haan ‘tached the velele and have same sold inexecution Has a claim against brother for money ent ‘Altachthe claim sgsinet brother by way of gamizhesonder ‘Canyou consul with your lent while that cllent is beng cross-examined? “+ No-once under eross examination you may not const with your lent a al. + This sfor sbvious reasons 2s may 24vse Nim on how tc answer questions and react to dence ee ‘Mayan attomey in any circumstances dive information given by clent.in confidence? 1 Yen ver limited crcumstances. 2. For example oan executor after clients death oro curator lent placed under curstorship 2. Ut alee ontdentaty rut afer the content ofthis declaration” ‘NOTE: sn attorneys atomatcally 2 Commisoner of Oaths exoficle 4 Ateduction of changes maybe justified cent gves you s arg volume of work What todo should a matter sescibe: rethas rnile ‘On discovering claim had prescribed MfSta lune ofthe postion 2. Dont admit ablit but advise cent to consult with another attorney to assert his its 3. Youmay nalongeractinshe matter 4. Glent to get newattomey to send letter of demand nd this sto be passed onto Attorney. {indemnity Insurance Fund 5. Generally covered for in [AFF normally instructs own attorneys to handle matter ad to either dafend or stile same as ‘they may be advise in consultation with you a the storney ‘May ou pay an estate agen or any agen the commission due prior to transfer ofthe property? 4 Thiemay be regarded as touting 2. genuine transaction, payment made at attorneys sk 3. Mustbe done out of um funds attorney mat the fee on a brit to an advocate without discussing beforehand? 1. Isentitled obit nt advised, 2. More correct discuss fst with advocate 3. Whedoes, advocate may acceptor refuse eR - 2 1 fuer Gengiauna pain arate esting nan atom fice 2 fet pating she a aha ender aproprae cnstnces wih spd pemeon, toaoso lent to consult with counsel wi ev present? ‘An attorney orp must abways be present wien advocate consuts with cent How to resolve depute of fees bety ney and Sbvocate 4. (Attorney to arrange to discuss. fees with counsel and endeavour to resove disute 2. Sh not possible, refer meter to Ombudsman at the Bur who wil endeavour to mediate > 3. not successful lodge complaint with Secretary of Bar Counc! who wil range prope! ‘hearing and debate matter, What sa fdetity fund certificate? 1 Certificate sued ito 42 ofthe Attorneys Act 53 of 1979 to any practitioner practising fr his 2. remains yalld unt 34 December of every year (cenewed annual) How and when fssuch a certifiate obtained? 1 Annled fr to Sacatar of Law Sociaty concerned and against payment of rested fe and ‘ertain required information 2. Each practing attorney must be on possession of such certificate BEFORE commencing practise 3. Certificate to be renewed annually ‘Consequences should attorney alto renew certcate? 1. Moy not continue to pacts o charge fees for services rendered 2. Whe continue: o practise - committing an offen ito hw Society Rules 3. May be suspended or removed from the ot 4 Ghent sil etainrihts against the Fdeliy Fund ‘Can an storey plek and choose between mandates? (fone will produce fr more prof than the ster ete) 1. Generel ule: attorney may accept or refuse any work offered to him UNLESS for special "aasans thors isome sblgation to acceptor refuse 2. Roan eps dle sene wth aaped lan ae ene eS cesone a Pann Foc 8 pombon iNv expenctbuy MuRjcte: nthe adrisibiy in evidence of eter written without prejudice ‘fe another nthe couse of tigation, 4 Statements whic are made exorestv or impliedly without prelude inthe course of bona fide ‘egotitons forthe yettlement ofa dispute CANNOT be dslosec in evdence without ‘CONSENT of both parties 2. Letter riten by one attorney to another with abet of setting ispute is not admissible 3. Considered public policy to allow people to tr set dispute without fear that they may have said thngs which wil be held agaist them f negotiations should break down 4. Statement to be privileged mst form part ofthe negotiations and isnot privileged merely by havingbeen labelled "wthout prejudice. 5. Thus, ie content of eter etc isthe deciding factor ©. HOWE/ER: statements are made in prvlened document defomatory stotements etc) hich re NOT elevant tothe matter, such statements are admisible 7. An acknowledgment ofan inability to pay debts isan act of insolvency even if made without posludce 8. When afer of settlements accepted, and disputes settled, bath eters writen without rejudce pling and aseeting uch attement wil become admizible [Nisan Attome entitled to Contingency fees? 1, Broe to 23 Apri! 1999 an agreement to charge fees ony If proceedings ae sucessful was ‘garded as against public policy and thus unenforceable 2. Now- Contingency Fees Act 6 of 997, 3. Now possblefor attorney to conclude 2 contingency fee agreement with client ublect to ‘onerous consitons 14. Agreement ust: Be lawetng in reseed form |i. Glent enjoys 14 day “epoling off” period 1 Agreed fee nay oot be moe than ue the ‘normal fas ofthe storey Ih. Ghims may sot be mare than 25% ofthe amount obtained by cient > Weieer «© Agreement be gountersiand badocate emake

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