A.

THE CRISIS IN THE LEGAL PROFESSION

Professional code of ethics, distinguish jobs/careers from professions. This idea of a distinct profession - being
challenged and this crisis in legal profession is also prevalent in other professions egg, medical profession

FOUR REASONS WHY FAITH BEING LOST IN PROFESSIONAL ETHICS PER ROSSOUW

1. IT IMPEDES PROPER SERVICE - as rules don't protect the profession or the public, it enforces
effective marketing/advertising of services, Radloff survey concluded that many practitioners don't' regard certain
forms of marketing as unethical. Rules therefor equal antiquated marketing, stumbling blocks to proper exercise
of duties and is designed to antagonise.

2. IT CAN'T BE EFFECTIVELY ENFORCED - lack of trust in the capabilities of Law Society to enforce the
code and in practice, repeated and blatant transgressions goes unpunished.

3. ITS VIEWED MORE AS IDEOLOGY THAN PROFESSIONAL ETHICS - outsiders/clients regard the
code and its application merely as an instrument to protect practitioners, their honour, status and privileges
against complaints of public. Interest of client neglected, as copies of code are not easily available, formulated
in complicated way, difficult to understand as also enforced by colleagues of accused practitioners.

4. ITS NOT ECONOMICALLY VIABLE - as there's a five fold doubling of numbers of attorneys and lax
entrance policies in law faculties and affirmative action - thus severe numbers explosion - severe competition
resembling that of the business world. This competition = legal practitioners often see themselves as business
people competing for business in a dog eats dog fashion instead of professionals who serve the public. Argue for
replacement of professional ethics with ordinary business ethics estate agents and banks often play law firms off
against one another to cut fees/offer rewards in return for business. Competition = attorneys act in ways
unconscionable a decade ago ie. As long as it is not illegal, its justified en though the code may be violated eg.
Excessive entertaining, touting, kickbacks, pay-offs (eg cash, meat parcels, shopping vouchers, cell phones,
laptops). Large portions of legal fees are paid back to estate agents without buyers/sellers knowing this.
Attorneys therefore regard themselves as just another form of business ie selling goods and services at the
highest possible fee in order to make big profits - Survival morality so brought about by increase competition,
sluggish economic environment, affirmative action, rising operational costs, foreign competitors due to
globalisation. The competition is also increased by the entry into the previous fields of exclusive domain of
attorneys by estate agents, financial institutions, tax planners, accountants and in-house legal advisors.

REASONS OF MICHOLKON AND WEBB

1. ITS TOO FORMALISTICALLY INCLINED - duties of too narrow and individualist nature without
reference to context or consequences - concentrate on the letter rather than the spirit of ethical norms.
Obedience hereto and historical dominance = legal education focused more on technical skill, professional
success, rule regulation/compliance an issues of ethics. Morals and justice. Justice is assumed to flow from
correct application of law of facts and truth is conflated with factual truth. However vindication of clients rights =
lawyers act ethically to ensure justice as power imbalances - truth follows power. Lawyer creativity - also that
manipulations create right or evade rights and truths of a moral and political nature.

2. LIBERALISM INFLUENCES - middle class values = influenced justification for rules of professional
legal ethics: Social background, individual dignity, autonomy equality and values of democracy and rule of law
were not a guarantee for moral and ethical professional legal standard. Law don't impartially protect everyone's
dignity and autonomy as in its content and application, it is driven with discriminatory distinctions on race, class
gender. This = paternalistic invasion of client autonomy and unfounded assumptions about clients needs, desires
and interests. Cases are treated as purely technical problems of how most effectively to vindicate their client's
legal rights. Separation of powers and usurping of clients role in decision making therefore not ensured and
lawyers don't play a truly positive social role to further justice. Public perceive attorneys not as playing this
social role but merely enrichment of themselves in pursuant of a comfortable living.

OTHER REASONS

1. LAW NOT SEEM AS CALLING -the profession is not used to serve the public interest but as a means to
the unscrupulous pursuit of money and status at the expense of the basic values of profession. Lawyers seen
as being out to make money like in other trades/occupations. The ideals now are to work as corporate lawyers
for an in-house legal department in a big corporation or as a market-driven seller of expertise.

2. SOCIETAL FOCUS ON FINANCIAL SUCCESS - in USA and RSA = the financially successful and not
those displaying high moral character are honoured by society. Desire for wealth, affluence and influence has
eroded civic and community values. Despite these goals of increased levels of wealth and income, many
professionals experience a sense of unanimity and alienation and happiness.

3. MANIPULATION OF VALUES - Pierre Schlag argues that American lawyers use truth, rationality, justice
and other moral values in an instrumental sense to aid the manipulation of other legal actors. Lawyers that sell
their souls to the highest bidder and these values have no inherent value and meaning and are used to delay,
threaten, wheedle, manipulate situations therefore the ethical and professional ideal of good lawyer has
completely collapsed in respect of the idea that law is a normative enterprise. Lawyers no longer serve the
public good or the basic internal good of justice as the profession is used as a means to achieve pre-determined
objectives or external goods.

4. LAWLESSNESS IN RSA - leads to a blunting of moral sensitivities during apartheid. More relaxed
political and moral ties now prevalent in post-apartheid RSA as the transition from the pre-apartheid culture of
authority. Kruger Commission found a small percentage of practitioners involved in false/deceptive third party
claims and the use of trust funds for money laundering. Radloff survey also revealed that large percentages in
property law indicated that they don't regard certain forms of marketing as unethical.

WHAT IS A PROFESSION

The word "profession" is derived form the Latin profession that means "a public statement" or "promise". From
this may be inferred that a legal professional (whether an attorney, advocate, judge, magistrate, public
prosecutor or legal adviser) should be worthy of public trust, and should carry out his or her professional duties
with public-spiritedness and the highest standards of ethical conduct. Business persons on the other hand = a
person who trades goods/services for money to make a profit.

Although members of professions are paid for their services and manage their practices on sound business
principles, the professions may be distinguished from their jobs, businesses or trades, by virtue of the following
characteristics:

Professionals are required to have specialised intellectual knowledge and skills before they will be granted
access to their chose profession. This knowledge, which is not generally accessible to the lay person, puts the
professional in a position of authority vis-à-vis the client. The client has no other option but to trust the
professional and should therefore be able to rely on the last-mentioned's integrity.

Professionals are expected to have a commitment to promoting the basic good of society. In the case of the
legal profession, the basic good is justice, fairness.

Professionals are expected to have a commitment to serving the public in matter related to their particular field
and to protect, serve and enhance public good and public trust.

Professionals enjoy relative autonomy in the execution of their duties. They use their discretion in the execution
of their duties and do not blindly accede to their clients or other authorities.

Professionals should have a willingness to accept personal responsibility for their actions and for maintaining
public confidence in their particular profession.

Professionals share a sense of common identity and an established moral community.

Professionals are self-disciplined and abide by a code of legal ethics based upon what the best thinkers in their
particular profession regard as proper conduct for a member of that profession.

The above standards of professional conduct are reinforced by the profession itself or by the courts, taking into
account the views of the controlling body of the particular profession.
The crisis outlined above necessitates a restoration of the ethical basis of the legal profession. This module on
professional ethics therefore attempts to look at restoring this ethical basis, on the assumption that the law is
indeed a collective, normative enterprise and not merely a rhetorical smokescreen for the exercise of power or
the accumulation of wealth. To regard lawyers as no more than businessmen would mean that the idea of the
law and the objectives of justice, such as the fair and equal distribution of privileges and responsibilities relating
to property, liberty and life, would be thwarted. Only only practitioners, and only the rights and privileges of those
able would then accept the most profitable cases to pay the high price of legal services would be protected.
Justice would be denied to those who could not afford to pay for it. So, too, public trust in the legal profession
and the existing socio-political dispensation would be undermined if justice were no longer served. Furthermore,
the voices of those who need legal assistance would no longer be heard.

As indicated above we are of the opinion that the crisis in the legal profession should be addressed in the
following two ways: First, the nature of ethical conduct should be approached from a more comprehensive
philosophical viewpoint (preferably that of virtue ethics). Secondly, the requirements of membership of the legal
profession should be served for remnants of a more comprehensive ethical approach to legal practice, which
may have been in force in earlier times.

B. AN ETHICAL PHILOSOPHICAL PERSPECTIVE ON THE CRISIS IN THE LEGAL PROFESSION

DEFINITION OF LEGAL ETHICS

1. Combination of two separate disciplines of law and ethics.

2. Ethics = the philosophical discipline in which the difference between rights and use of good and evil are
studied together with requirement for decency with regard to human conduct.

3. Wide sense - "includes the study of debate between positivism and natural law (is the law's validity
dependent on its moral content) or between liberalism and communitarianism (can the law be used to
enforce moral views on abortion, homosexuality, prostitution or human cloning).

4. Narrow sense = the ethical standards of professional conduct applicable to the field of law ie how
"ought" a legal practitioner to behave in order to be a good, decent and proper legal practitioner ie its the
philosophical or theoretical investigation of moral behaviour.

IS THE TRADITIONAL PRACTICAL APPROACH TO RSA LEGAL ETHICS OF LEWIS AN INHERENT

CONTRADICTION

1. TRADITIONAL PRACTICAL APPROACH

Lewis - ethical philosophy - not the focus, as purpose of approach is to set out the Code of rules prescribing
conduct for attorneys that ahs to be obeyed. This code = as much a part of positive law can be objectively
described and need no deeper philosophy or history behind the code. What's required = an entirely practical
approach to professional conduct of legal practitioners to compliance only in accordance with legal mind set and
the positive law regulating the conduct of legal practitioners. This practical, positivistic approach of ethical
conduct of legal practitioners can be regarded as one of reasons for the growing crisis.

2. IS THE TRADITIONAL APPROACH A CONTRADICTION IN TERMS

The reduction of ethics to a code of conduct raises questions whether he should be using the term ethics. Ethics
= the philosophical/theoretical investigation of moral behaviour and if ethics is understood as the philosophical
reflection on morality, therefore is legal ethics not a contradiction in terms. Is there not a fundamental clash
between ethics and law? Legal and ethical philosophers have found very little of value in the way lawyers
approach ethics. This = what is taught as a law ethics is not ethics, but similar to rules made by administrative
entities/agencies. It is regulatory and appeals o sanction and not conscience and seeks mandate rather than
insight. Ethical and legal philosophy therefore not decisive to Lewis.

3. WHAT IS ETHICS REALLY

That ethical and legal philosophy is of decisive. NB Coqulette argues that the legal philosophy of lawyer will
influence his understanding of ethics. Formalistic positivistic approach = ethics - a question of compliance to a
codified closed and coherent set of legal rules. Spirited or cultural values therefore are too subjective and
individualistic to provide reliable guides to conduct. Enforcement/compliance and positive rules that prescribe
the do's and don'ts = a Kantian/; rule based or deontological approach to ethics. Emphasis = therefore on
compliance with minimum standards/rule which could be strictly enforced by law societies. Other lawyers will
see the positive rules as secondary and even sub-ordinate to spiritual and cultural sources of ethical guidance.
This approach is problematic and is on of the reasons for the crisis in profession.

4. THE NARROW VIEW OF ETHICS

Used in order to justify view that lawyer's job is not to judge wrong or right of client but to defend his client's
interests as best he can. Narrow approach to ethics = a technical application of law in interpreting ethical rules.
It = emphasise on the use of logical or rational thought without giving proper concern for values. Where present
day lawyers criticise legal positivism and formalism, they still have traditional notions of legalism that prevails as
per Stan Ross.
Legal ethics have traditionally been discussed without reference to ethics (Lewis). However the legalistic
approach to professional conduct is not philosophically neutral as suggested by Lewis as it rests implicitly on
philosophical assumptions of formalism, positivism and legalism instead of his claim of a purely practical
approach.

5. WHAT SHOULD THE APPROACH BE?

Should begin with bringing to light the philosophy of law and ethics upon which it rests and the influence it has
on ethics. This wider philosophical perspective exposes the unethical approach to legal ethics amongst lawyers.
Ethical philosophy = that ethical responsibility involves more/something difference to strict compliance with rules
either out of duty or from the bad man's perspective of Holmes that rule transgression will be enforced between
courts/regulatory bodies.

CAN A ROLE-DIFFERENTIATED APPROACH JUSTIFY UNETHICAL CONDUCT?

What its about - 1. Client's interests take preference above those of others;
2. Otherwise moral considerations rendered irrelevant in such approach;
3. Services duty = to the best of professional ability irrespective of the moral worth
of clients end/cause as long as its no illegal;
4. Professional therefore does for the client what the ordinary person won't do;
5. Criminal defence lawyer to do best for the client irrespective of his belief in the
client's innocence or not;
6. Professional job is not to approve /disapprove of character of client or his cause
nor to judge the rights and wrongs of client.
7. Private judgments of professional not to be substituted for the public institutional
policy of judgment as this would deprive the client of opportunity to have the
system determine guilt / innocence;
8. The adversary system therefore best method in order to determine
guilt/innocence else it would lead to an oligarchy of lawyers if there own private
views would be decisive;
9. This sometimes referred to as the ethics of hired gun.

CAN MORALITY IN PRIVATE LIFE BE DISTINGUISHED FROM PROFESSIONAL LIFE?

1. Professional regulation = lawyers are client-orientated and lose focus of broader ethical and civic
responsibilities;
2. The = they would do for clients, what they normally would have found immoral/unethical.
3. Lawyers own private views therefore to be disregarded due to the nature of profession.
4. Therefore not focussed on balancing interest of all involved, or try to ascertain true version of facts, or
apply the law objectively to the facts.
5. The rule based/role differentiated approach offered as a defence in that unethical conduct goes with their
role as a lawyer where in professionally capacity, they don't act as ordinary people but as occupants/actors
of a rule.
6. The role insulates them from moral conscience in which standards of ordinary morality don't apply.
7. Markowitz = morally good lawyer will be uncomfortable with this approach as role occupants/agents,
disregards the fact of them being autonomous, self driven entities to be judged on their own moral merit.
8. This approach = also a betrayal of their personal private moral ideals to always act honestly, justly an in
friendly/cordial manner.
9. Subjective approach = immoral/unethical behaviour = sub-ordination of their ideals to the adversary
system and reduction to more cogs in the machine of the legal
System;
10. This = loss of integrity/ideals/own life moral plan and an impression of acceptance of immoral conduct
having become part of their professional character.
11. Moral good character requires they have to identify with their own conduct and to know that it contributes
to the fulfilment of their moral ambitions.
12. Anything else would + that they would become estranged from their moral life and would use the
integrity that gives meaning to their lives.

CAN ROLE-DIFFERENTIATED APPROACH BE JUSTIFIED?

(a) Adversary System - judge = the impartial referee who listens to both sides of the opposing parties and
who has to se that the legal representatives adhere to the procedures and rules. Roles therefore divided - judge
to ascertain true version of facts and apply law objectively and lawyer focus on clients interests and not on
presumption of justice and the general good/or to balance the interest of all involved. As mouthpiece for the
client = have to fearlessly promote clients interests regardless of interests of other person. Justice and equal
protection is assured under this system as everybody has the opportunity to present their case before an
independent judge. It is set in context however that everyone has equal access to legal representation and
equal bargaining power. Partiality and client loyalty therefore justified under role-differentiated professional
ethics and regarded at the essence/NB virtue of legal profession. Professional rules = clients interests to be
fearlessly, jealously and even aggressively advanced and lawyer not to undermine clients case even if of the
opinion that client won't win the case. Client's morally undeserving often to be defended by lawyers and puts
them in a moral dilemma between partiality and personal ethical ideals of fair play and honesty.

(b) Sharp practices - eg aggressive cross-examination of truthful witnesses in order to undermine their
credibility or to confuse them. Also includes unnecessarily delaying a case, manipulating facts, making
statements they themselves don't believe and pleading technical defences (egg prescription) knowing full well
that their client morally obliged to compensate the claimant. Only issues of relevance is whether there
appearance in court was good or bad, whether their arguments was clever and whether their cross-examination
was skilful. Whether they told lies, abused power or acted unethically is not relevant to a role-differentiated
approach.

(c) Lawyerly virtues - the approach in respect of which morally good practitioners try to redescribe or
deprofessionalize their professional role = don't need to renounce their own ethical ideals/integrity. They
therefore act virtuously because they strive for professional virtues of client loyalty and statesmanship towards
the community ie they act selflessly and renounce themselves when promoting client's interests and uphold the
political culture of the community by promoting a variety of interests. These tasks therefore are to expose
weaknesses of all positions through aggressive cross-examination. These would not amount to the abuse of
people.

CRITIQUE - MARKOWITZ - lawyers still despite above, have to abandon certain virtues Statesmanship and
requirement to put both sides of a case and commitment to procedure rather than result still makes them morally
unfit. Redescribing professional role will solve the moral dilemma only if the outside world accepts this, which
seems unlikely. Lawyers are cast as villains by historical forces and must often abandon their integrity to be able
to have really successful practices.

WASSERSTROM - holds that the concept of the hired gun can best be defended in the case of criminal lawyer
and argues lawyers being subject more to the demand of moral point of view. His instructions are as follows:

1. The legitimacy of role-differentiated behaviour can be sustained only if the adversarial criminal law
system (where prosecutor and accused act as opponents) is itself legitimate. However, we have some cause
of scepticism about the justice and effectiveness of the present legal system.
2. Role-differentiated behaviour justifies a cut-thought, "winner takes all", capitalistic ethic, competitiveness
(rather than cooperation, aggressiveness (rather than accommodation and ruthlessness (rather than
compassion).
3. Lawyers cannot adopt a purely role-differentiated perspective as easily as medical doctors can, because
it is intrinsically good to cure a disease, but in no way can it be intrinsically good to win every lawsuit at all
costs, especially where lawyers need to portray that winning at all costs is the essence of justice.
4. Lawyers pay a price for their role-differentiated professional behaviours because it is hard if not
impossible, to divorce one's professional way of thinking from other aspects of one's life. "Cleverness" and
ruthlessness in professional life may have a devastating effect on a lawyer's private life. The professional life
one chooses often determines what kind of person one becomes.

ANSWER lies perhaps in move away from the legalistic/rule based/formalistic mind set that leads to role-
differentiated behaviour between lawyers and clients which is stripped of all moral depth and public/civic
responsibility. This = the bad man perspective of nothing but fear before enforcement of rules being relevant. If
legalistic mind set is discontinued a more rewarding and ethically defensible lawyer-client relationship is possible
on the basis of care (Menkel-Meadow) or the virtue of good judgement (Kronman).

Stan Ross - also argues that realistic approach leads to an inhumane present legal system but the moral
contractual approach leads to a situation where one can reconcile being a good lawyer with being a moral or
virtuous person.

PHILOSOPHICAL APPROACHES TO LEGAL ETHICS

1. Rule based ethics = recognised by his sense of duty;

2. Virtue-base ethics + recognised by types of character portrayed;
3. Consequentialist perspective - recognised by the types of consequences he affects;
4. Post-modern ethics - recognised by the sense of absolute responsibility to the other beyond the limits
defined by established rules, desired consequences or existing character.

1. Rule-governed Ethics (duty)

Also referred to as deontology (deontic ethics) = in order to judge human conduct you have to establish the
ethical rule governing particular conduct. Hereafter ethical rules take precedence over everything else eg. Over
the consequence of the conduct. Duty -

1. Prescribes what ought to be done in order to qualify as a morally good lawyer ie rule to be accepted as
duty;
2. Once accepted as a duty, then one has to obey it.

Immanuel Kant - most famous exponent of ethics of duty.

Categorical imperative - the universalising of one's conduct ie. Any ethical situation requires that one should
act in the same ay you would have others act in a similar situation ie. if conduct is morally good, for that reason it
ought to be the action of everyone it therefore should always treat other with respect and never regard persons
as merely means to an end. You should treat other in such a manner that your conduct towards them can
always be justified. What aught to be done in order to qualify as morally good and the prescribed rule may be
accepted as a duty and once accepted as a duty, one has an obligation to obey it. Universalising ones morally
good action imposes the duty on others to do the same and to accept and obey it since moral goodness is the
reason for the duty. Obedience is necessary because everyone desires moral goodness.

Hypothetical imperative - where people act contrary to the categorical imperative when moral goodness/ethical
rules are weekend, downgraded or completely put aside moral goodness therefore no lawyer the decisive
criterion as conduct complied with according to minimum standards outside them been trained to do so before
sake of keeping your job and for the good of profession. This move of duty = to fulfil minimum ethical
rules/obligations (formalism/positivism/legalism) whether you like it or not and failure to abide bring sanction.
Compliance = acting ethically because they hold this to be morally good, but because they have been trained in
this way and because it would be good for the practice and profession as a whole and out of fear of punishment
and not as one of prudence or sense of duty. Rule based ethics is haunted by the difficulty in explaining the
origin of the moral sense of duty in regards as key

2. Utilitarianism (Consequentialism) - Jeremy Bentham - famous philosopher.

Purpose orientated/teleological theory - that the only relevant thing is the purpose the action is intended to
achieve and to whether the action is unjust or wrong. Consequentialists therefore argue that purpose is to be
understood in terms of sense of end-result or consequences. Moral judgement therefore boils down to decision
whether or not a given result is useful ie a result which induces and promotes the happiness of the greater
number in society. Bentham argues for the greatest number. Usefulness and not duty and respect of legal rules
therefore = the criterion of moral judgment.

CRITIQUE = not everything that's useful is by necessity right. Useful things may be ethically wrong eg abuse of
scientific and technological processes. May any means be use in order to achieve greatest happiness for the
greatest number. Some say the end justifies the means and other say the end does not always justify the
means. Ends justifying means - lawyer who's convinced of client's innocence may lie in court/plot 2. Kill the
judge in order to vindicate client. Markowitz argues that the utilitarian would sacrifice one life to save the
remaining twenty, as this will have the best consequences arithmetically ie. The conduct of sacrificing one life
and the fact that murder of capture remains wrong therefore is of no consequence as the saving of 19 lives
caries more weight then the one sacrificed. Therefore each person ought to adopt the course of action that
contributes the most well being to the world. This approach therefore disregards personal moral integrity and
does not hesitate to use people as a means to an end.

Justifications - professional guidelines can be useful in order to help avoid errors that could lead to disciplinary
action. This = public/professions image and perception improved re self-regulation of profession. Satisfied
clients = the practice benefits as character screening and censure = tools for preserving professionalism.
Consequences of actions beyond minimum ethical standards = increase rewards and esteem/ respect of their
community thereby avoiding government regulation. The public and professions interests and image thus
protected as unethical conduct brings disrepute to the whole profession. Client screening and censure therefore
= useful tools to preserve professionalism. Those exceeding the minimum ethical standards therefore along
utilitarian lines, can argue that the consequences of their actions may be increased material reward and esteem
and respect of their community.

3. Virtue ethics - Kronman

Greek philosophy = virtue regarded as an excellence (arete) = accordingly that all ethics was virtue ethics.
Aristotle - ethics idea not based on obedience to prescriptive rules nor what useful consequences were, but on
excellence of character. Person' ethics and his personal success are intertwined = virtue ethics the virtuous
person to flourish. Ethics - is about favouring and satisfying appropriate ambitions and desires. Aristotle - how
to act = a question not of what rules prescribe nor what would be useful to achieve, but what a person of good
moral character would do in the same circumstances. Such person will act courageously/with virtue in a moral
crisis. In the sphere of fear and confidence, rashness = vice of excess and cowardice, a vice of deficiency and
between the two vices lies virtue of courage. Virtues essential to a perfect life can only be developed by
participating as an active citizen in the public affairs of State. Pursuit of private affairs (work/family) deprives one
of an essential component of good life. Man is described as a zoon politician - a political animal, to whom public
participation came naturally as a made to develop all his moral and intellectual virtues fully. Bios politikos = a life
devoted to public-political affairs/debate at polis was the highest level of life attainable. Participating in public
life, demanded courage and to stand up for ones beliefs therefore became the virtue par excellence. Public life
was fiercely competitive and individuality and human excellence could here be demonstrated by
courageousness. Public life pursuit = therefore the truly good life which was far better and more virtuous than
ordinary life.

Contemporary virtue ethics - revival of Greek thought and centres on the search for a specific virtue
(excellence) that requires acting ethically in a given situation. Predominant question therefore are "what makes
a particular human quality a virtue and what is the relation between being a virtuous person and doing the right
thing, what type of person you want to be come will determine the mode of conduct in a given situation. Actions
therefore will be determined between person you want to become, the excellence/virtue you want to embody and
not by way of prescribed rules or by what results you want to achieve.

Anthony Kronman - is one philosopher who has adopted a virtue based approach to the ethical conduct of
lawyers. He suggests that a life in the law is valuable not because of money or status or justice it makes
possible but because of the unique type of person or character it allows the lawyer to become. The primary
virtue of lawyers is the ability to make good, reflective judgments. Carrie Menkel-Meadow has suggested that
certain moral virtues can be described as feminine in nature (like caring for the needs of others), and hat women
are in a better position to add these virtues to the modern practice of law. This creates the opportunity of a
feminist version of legal practice, legal ethics and the good legal practitioner.

KRONMAN - "LIVING IN THE LAW"

Adopts a virtue-based approach and argues that value in law lies not in the moral justice or status that law
brings, but in the unique type of person/character it allows the lawyer to become. Lawyers have to value the
profession not for what it is but for what it brings. Lawyers should have public-spiritedness ie obligations of
citizenship, matters of public concern, well being of communities, preserving and perfecting legal institutions that
play part in the public order itself. Certain dispositional attitudes character traits should confirm the particular
sort of person he is. Such value should not so much in the limits of their work, as in the excellence of character.
The primary virtue of lawyers is the ability to make good reflective judgements and so too are courage ad
temperance, intuition, deduction, and deliberation. These often thought of as fights ie you have such original
ability or not. Judgment plays important role in respect of advice given and the political and personal choices we
make. Deliberation - compassionate survey of alternatives and viewed simultaneous from a distance and
required excellence in judgment in order to meet conflicting requirements and accommodate tensions to make
property choices after giving due consideration to each alternative. Wise judgments lead to integrity and good
choices. Aristotle argues that integrity/good judgment can only be outwardly sustained if the inward friendship is
sustained. Wholeness or integrity is characterised by steadiness of action and purpose, reliability of character,
dignity/self respect.

The specific virtues of a morally excellent lawyer:

Honour - certain qualities of mind and temperance, value lies in what the profession brings;
Public-Spiritless - re commitment to public good/public concern/community well being/responsibility;
Judgment - process of deliberating about and deciding personal, moral and political problems;
Deduction and intuition - ie deriving appropriate conclusions from a set of rules, fixed procedures - intuition = a
fight of natural occurrence usually associated with experience and age.
Sympathy and detachment - each alternative to be given due consideration compassionately and from a
distance in order to meet conflicting requirements and tension.
Deliberation and choice - sound judgment = multiple alternative range consideration and by making the property
choice amongst the alternatives/choices regularly.
Judgment and character - ie to think clearly but also to feel in a certain way also habitual dispositions - constitute
traits of character and defines one's person
Politics - bear the well being of the whole community.

4. FEMINIST ETHICS - MENKEL-MEADOW

FEMININE VIRTUE OF CARE, EMPATHY ETC
Appeal to the equitable, contextual and merciful sides of law rather than the draconian certainty of rules and
universal principles - females more likely to consider the other and to seek solutions that minimise harm to
others rather than to find universal principles that determine an issue. Move of a care meeting needs and
minimizing harm than a rights/justice orientation if male. Female - rely on notions of responsibility, human
connection and are and ten to re-arrange rules/ principles in order to seek inclusive solutions. In order to
meet/accommodate peoples needs and voice therefore focus on the connection to others, on the people
involved and their hardships and on the context of moral problems, male voice - traditional values of
independence, autonomy, separation from others and universal principles of it modern liberalism opposed to the
female voice of intimacy, care and responsiveness to hardships.

Critique - both females and males are capable of reasoning from different perspectives. Socialization and other
social factors eg peoples context also play a side in choices people make. Emphasizing female's differences =
legitimates discriminating treatment of females differences and assigns. Female the conventional domestic,
maternal and other caring roles. Law training can also blunt whatever gender differences that may exist.
Regard to also be had to situations other than traditional, white, middle class, nuclear family like other societal
forces like educational institutions, peers and media yardsticks also to be considered. Critique of Gilligan that
she merely re-stated dangerous gender stereotypes which would continue to separate the sexes and devalue
females in a hierarchical form. In summary therefore equity should satisfy law, mercy temper justice, common
law interpreting statute, discretion softening rules.
...TIAL OF FEMININE TRAITS/VIRTUES TO TRANSFORM LEGAL ETHICS

Female may be less confrontational in dispute resolution/mediation and more sensitive to clients needs and
interests and those of clients families/employees. They have less hierarchical managerial styles; have different
social justice/altruistic nature and different ethical and moral sensibilities. However, the impact of more female
entrants into law reduces the stark motivational differences. Students have generally also become more
conservative over time. Other studies show that there are no gender differences in motivation to study/practice
law at all therefore it may be too early to tell whether there is a push or pull in terms of which direct female or
other outsiders in law pursue. Female interest can be protected via advocating legal and doctrinal changes,
utilizing conventional categories, redrafting old categories, creating new categories of analysis (eg sexual
harassment and pornography) and exposing male and white bi. Can be useful in order to transform the legal
emphasis from rights to needs and in exposing how the law disadvantages females even when framed in neutral
terms. Can also broaden scope of area of practice for traditional female's issues to more conventional legal
doctrinal one. Inclusion of both genders - the number of available quality ideas/legal problem solving will
increase. Along the above lines, minorities, physically challenged, gays and ethnic and racial minorities could
also improve the quality of legal decision making. Females therefore don't focus on independent, autonomy and
rules, but on others, care, context empathy and reduction of harm. Females therefore value virtue, care,
contextualisation and responsibility to others over rules, decisions, justice and rights of the common law
adversary system.

Critics - ethical dilemmas should be seen s situational and contextual requiring a restructure of justice and care
to met each situation. Mercy should reason justice judgement and law and appeal to hers\feeling and concern
for others. Females therefore can reconstruct the profession and the legal system to be more c-operative, more
contextualized, less-rule bound, more responsible to others/clients and more conscious of social just ends.

A number, of feminists writing about law have developed a distinctive version of virtue ethics. They have argued
that the influx of women into the legal profession may bring about significant changes in the practice of law.
"Feminine" traits such as empathy, care, nurturing and social commitment may transform legal ethics and
processes, as well as the image of the typical "legal professional".

4. POST-MODERN ETHICS - CHARACTERISTICS

1. The demise of the belief in the universal validity of a particular (Western) life-style or morality;
2. The celebration of difference,
3. The rejection of absolutes as well as universals, and
4. The recognition of the necessity to accept uncertainty and indeterminacy as a way of life.

Therefore because universal morality has ended, a single universal ethical code applicable and binding on all at
all times don't apply. All aspects of like are confronted with difference or diversity and the challenge is how to
deal herewith as this diversity is not a given for all times nor is it immutable. Uncertainty and unpredictability
therefore underlies diversity and permeates the moral domain of postmodernism. It therefore begs the question
if it makes sense to try to seek and determine rules/absolutes in a situation if fundamental uncertainty flexibility
and indeterminacy.

Law = a sole, definite and authoritative point of reference in to terms of which human conduct is to be judged
and is underpinned by rules, universal principles applicable to all situations. However this is precisely what
postmodernism ethics denies and rejects. Question therefore is whether it is possible to have law in post-
modern times or to have a substantive moral/ethical code. Because of the uniqueness of the situation the true
differences involved in every person cannot be captured through general/universal rules. Practical norms and
not general rules/principles (Kant's claim) required in order to be receptive to otherness and differences in a truly
open, pluralistic and democratic world. Ethics thus unequal to a legal response prescribed by law, but acquires a
new meaning. Ethic be unequal to the substance/contempt of law, politics and morality but becomes a miring
flag reminding us that new situations require just response and not just legal/rule like response. Ethics can be
only point to what is not yet or what is not justice but not prescribe a substance content to our laws/morality nor
state what justice is. Ethics = its never sufficient to follow universal rules or to achieve universally beneficial
consequences. It encourages awareness of hidden violence in the particularity of things, situations and people
that such appeals to universality contain.
Ethics therefore emphasises paradoxes of morality and law ie without rules = there's a threat of anarchy - which
would make any claim to justice impossible (ie rules make justice possible). Rules = threat of bureaucratic
rigidity which would make justice towards unique persons in unique situations impossible (rules make true justice
impossible).

Conclusion

In the discussion above three important points were made. We first defined ethics as the philosophical or
theoretical investigation of what is regarded as moral conduct. We than explained that it is impossible to discuss
the norms regulating the professional conduct of lawyers without also entering into ethics as such. Lastly, we
introduced the most important ethical perspectives, which can be adopted when moral dilemmas have to be
solved. We saw that the moral character of conduct is determined, depending on the ethical philosophy which is
adopted, by either the obedience to rules which are obeyed out of a sense of duty, or by the consequences
which will flow from the conduct, or by the qualities of character which are exhibited and strengthened by the
conduct in question (including those character traits which feminists claim have been neglected in male
dominated Western societies), or by the nature of the response to the uniqueness or differences encountered in
plural post-modern societies.

We said that a brief overview of the most important ethical perspectives is important because lawyers have
traditionally adopted one of two approaches to the discussion of professional conduct. They have either claimed
that the professional conduct of the lawyer is a question of positive law and therefore unconnected to the
disputed philosophical questions of ethical philosophy the approach of Lewis); or they have simply assumed that
the only or best way to approach moral responsibility is in a rule based fashion, thus disregarding other ethical
approaches, like virtue ethics. Recently, however, feminist, communitarian, and post-modern critics of liberal
legalism have exposed the limits of the traditional approach to professional conduct. We believe that these
critiques are valuable.

REQUIREMENT OF GOOD CHARACTER OR OF BEING A FIT AND PROPER PERSON

Concept - the ideal closely linked to the idea that law is practised as a profession and therefore sound moral
character is essential to professionalism. Conduct - lawyer should justify the trust placed in him by his clients,
adversaries and courts. Only those of a certain character therefore allowed to practise law and via this virtue
ethical perspective, certain quality/excellence of character is required.

History - Theodosian Code = Roman Law advocates to be of suitable character with praiseworthy lives. Inns of
court = English lawyers to have sound character, integrity and ensure that truth would never be concealed.

MADOWELL - concept - gleamed but proof codes of ethics in that truthfulness, high competence levels,
dedication to clients, loyalty of the profession, trustworthiness and course in order to carry out proof respecting
and desire to serve the public and a disposition to make decent, rational decisions in actual contexts of difficult
judgment.

Reason - clients entrust lawyers with their affairs, honour, money, property and confidential issues and therefore
they are to be worthy of this trust and confidence. Lawyers of bad character therefore may fail to implement their
duty to the court, client or may abuse position of trust - therefore protection of public interests when lawyers are
honest, diligent and place clients right and the law above their own.

Criteria - admission strictly regulated by legislation and the inherent common law right of the court to regulate its
own processes. Extensive character screening prior to admission - not only relevant legal qualification but also
proof of a fit and proper person required. Section 15(10(a) and Section 22(1)(d) of Attorneys Act - court may
enrol it in its discretion the applicant - a fit and proper person to be admitted and may also strike person off roll it
in its discretion not a fit and proper person to continue practising as an attorney. This standard therefore
underlines the moral basis of the profession. Similar provisions cater for in admission/removal of Advocates.
Standard in "America - the person of good moral character and have, like in RSA, the onus of proof hereof lies
with the applicant. Law Society and the American bar retains control of character screening subject to judicial
oversight. State has an inherent duty to act for the public good and to safeguard the administration of justice
from those who might subvert it through dishonesty, perjury etc. Moral character - virtue and universal character
traits over the ages and access cultures as embracing truthfulness, high degree of honour, sense of discretion of
a strict observance of fiduciary responsibility.
Critique/Objections to character screening prior to admission to the profession

Post conduct and history of Applicant's may not be good indicators of whether they will be a threat to the public
once admitted. Argued that at disciplinary proceedings at proper disciplinary proceedings if a better preventative
measure that denial of individual perceived to be a risk. Problems therefore to be remedied after it occurs.
Public therefore can be better protected in this way than trying to prevent the possibility of future problems.
Further argument that the bar should carry the burden of proving unfit character in disciplinary proceedings.
Presently, formal procedural safeguards are that as the Applicant further is decided and subjective judgement
and predictions. Disciplinary hearings = procedural safeguards are in place and objective criteria and actual
wrongdoing = the basis for decision-making. Personal info required to be given also may bear no meaningful
relevance to the public interest and may also = infringement of the right to privacy.

Can our distinguish between the professional and private life of a legal practitioner

There are a number of obvious difficulties with the application of the "fit and proper person" standard. One
question is whether a clear-cut distinction can be drawn between the professional and private life of a lawyer.
For example, some aspects of strictly personal business dealings may spill over into a lawyer's professional life,
and vice versa. The fitness of a lawyer who has embezzled funds will be suspect, whereas his or her sexual
indiscretions may not have such a negative effect. Professional codes tend to reflect this lack of precision and
differ in their approach to the requirement of a good moral character in private life, as opposed to professional
life. The American Bar Association's Model Code of Professional Responsibility (the Model Code) does not
distinguish between professional and personal conduct, stating that a lawyer must comply with the rules at all
times whether or not he or she is acting in a private or professional capacity. It further prohibits lawyers from
engaging in illegal conduct involving "moral turpitude". This concept has never been defined, and could probably
include matters related to personal morality, such as adultery and promiscuity, which may not necessarily have
any specific bearing on the lawyer's fitness to practise law. However, the American Bar Association's Model
Rules of Professional Conduct (the Model Rules) do distinguish between private and professional life and state
that "committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a
lawyer in other respects" amounts to professional misconduct on the part of the lawyer. The issue of whether
there should be a distinction between professional and personal conduct has not been settled in South Africa,
and there seems to be a discrepancy in this respect between the rules of the bar and the side-bar. For example,
the purpose of ethical rules of professional conduct at the side-bar has been stated to be to "regulate an
attorney's conduct not only in his professional career but also in his personal life" while such a rule does not
apply to members of the bar. The rationale for the regulation of the "personal life" of the legal practitioner is
probably that if you do something which brings you into disrepute, the profession and the administration of
justice will also be brought into disrepute.

Eshete argues that lawyers are required to act in ways that are orally questionable but justifiable on grounds of
attaining morally important ends to present clients interest in the best possible light. Lawyer's goal therefore not
to be tempered by his personal attitude towards the client of moral insight might get in the way of cleverness,
cunning, manipulation on behalf of client. Satisfaction of the proof may come via the enjoyment of the spectacle
of others being subject to their power in court. They may therefore have to deliberately convey the impression
that their client is innocent and discredit testimony of truthful witnesses. Eshete argues that feelings of respect
and self-contempt may have adversarial lawyers. Self deception inner collision and instability may also be
present. However he argues that it may be suggested that character is screened from professional conduct
once they step out of the legal arena to resume their ordinary personal character. This can be achieved by
seeing their profession as a form of acting/role playing. He concludes however that such argument is hollow and
its difficult separating self from common and unattractive traits of character. Lawyers loss of good moral
character therefore = a case of self sacrifice, loss of personal good and public good also.

Not all philosophers accept the idea that virtue is inherent and consistent in some individuals, but not in others.
Some argue that virtue can indeed be developed, while Rhode ("Moral character as a professional credential"),
for one, questions the viewpoint that ethical behaviour is consistent or predictable or that fundamental character
traits govern social conduct. She argues that social research has failed to find evidence of consistent character
traits in humans. According to her, moral behaviour is more a function of specific habits and contexts than of any
general attributes. Persons with truly generalised consciences are reared. "Although individuals clearly differ in
their responses to temptation, contextual pressures have a substantial effect on moral conduct independent of
any generalised predisposition.: She holds that many individuals will, under some circumstances, violate the
norms of honesty, integrity and respect for others. Exposure to stress, strong competition, authority, or peer or
client pressure can alter patterns of moral behaviour and see individuals yield to temptation.

Critique of the concept of good moral character

However, the concept of a "good moral character" has also been criticised as an "unusually ambiguous", fuzzy
concept which creates the potential for arbitrary and discriminatory application and which of necessity reflects
the subjective views and prejudices of the person applying the criterion. It has been shown that in the United
States, the standard of a "good moral character" has often been applied in arbitrary and prejudicial fashion,
favouring those of a particular race, gender, politics and economic worth. Rhode argues that in the 19th century
in the Untied States, the character requirement was used to keep unpopular groups of people out of the legal
profession. eg. Women were considered too emotional, timid and delicate for legal practice (stark contrast to
idea that women do possess certain virtues which make them especially valuable to legal practice).

In the early years of the 20th century, Jews, blacks, Eastern European immigrants and other non-conformists
(such as radicals, divorcees, religious fanatics) were subject to such stringent character scrutiny that only a few
gained entry to the profession. During the second half of the 20th century, applicants were excluded because of
their perceived membership of the Communist party, and Rhode holds that this kind of prejudice does not augur
well for a profession charged with defending minority groups on the fringes of society. She believes a broader
range of values should be acknowledged, and that more debate and discussion are needed. It is noteworthy
that bar organisations consist mostly of mainstream practitioners who may wish to keep nonconformists out of
legal practice.

Today, individuals in the US (and SA) are typical denied admission on account of violations of the law (violation
of criminal law being considered as more reprehensible than that of civil law), acts involving dishonesty or fraud,
abuse of legal process, disregard for financial obligations and failure to file tax returns, mental or emotional
instability, and evidence of alcohol and drug abuse. The various US state bars differ on their attitude towards
matters such as religious fanaticism, ideology, civil disobedience and avoidance of military service (some states
regard these as acts of the highest moral courage and others do not.

In this respect, McDowell maintains that, if possible, a distinction should be made between non-conformist
actions that are valuable and enrich society, and those that are unethical and damaging. While the concept of a
"good moral character" should not be used to stifle innovation, difference and social criticism, it should
nevertheless be retained as a powerful inhibitor of unethical conduct and as a something to which to aspire

The US experience is echoed in the chequered past of the legal professions in SA. Whether somebody is a "fit
and proper person' to practise law as an advocate or attorney is essentially a discretionary value-judgment on
the part of the court. In Prokerersorde van Transvaal v Kleynhans the court stated that although its judgment
must be made on the totality of the facts before the court, judgment will in the end be based on the general
impressions formed by the court and its own sense of appropriateness. The court has an inherent common law
power to regulate the legal professions and therefore remains the final arbiter of what is appropriate in this
regard.

That the court's judgment about what is appropriate has frequently been influenced by political considerations is
an understatement. When Mahatma Ghandi applied to be admitted as an advocate of the High Court of Natal,
his application was opposed by the law Society of Natal because he was a person of Indian original and as such
not a "fit and proper person to practise law. This fact is not reflected in the official law report but is extensively
dealt with in Gandhi's autobiography. When Madeline Wooke wished to enter into articles of clerkship as a
future attorney, the Cape Incorporated Law Society objected and refused to register her articles because she
was a woman. In this case a full bench of the AD relied on Roman Dutch law and it seclusion from legal practice
of persons who could be termed "unfit and improper", including the deaf, the blind, pagans, Jews, persons who
denounced the Christian Trinity, and most importantly, women.

During the years of apartheid, the various Law Societies brought numerous court applications to have lawyers,
who had become involved in the struggle against apartheid, removed from the roll. The political abuse of the "fit
and proper person" standard is well illustrated by the case of Bram Fischer. Fischer was struck off the roll of
advocates in 1965 because of his opposition to apartheid. In 1995 the Johannesburg Bar Council recognised
the dilemma which faced Bram Fischer as a struggle lawyer and adopted the following resolution" "While
recognising that options might differ, the present JBC has resolved that it does not hold the view that Bram
Fischer was not a fit and proper person to continue to practise as an advocate. It believes that a grave injustice
was done to him and today it can only apologise to his family." legislation was subsequently enacted to allow for
the reversal of this injustice. In October 2003 Bram Fischer was posthumously re-instated on the roll of
advocates in terms of the provisions of the Reinstatement of Enrolment of Certain Deceased legal Practitioners
Act.

However, the end of apartheid and the reinstatement of Bram Fischer on the roll of advocates did not signal an
end to the abuse of the "fit and proper person" standard. In a highly publicised recent case, the Law Society of
the Cape of Good Hope refuses to register a contract of community service of a prospective attorney (Prince).
As a committed Rastafarian, he had in the past illegally used dagga during religious ceremonies and intended to
do so in future.

From Ghandi to Prince the modern history of the SA legal profession is marred by the arbitrary exclusion of
persons belonging to marginalised or oppressed groups (on account of their race, sex, political affiliation or
religious convictions) by having recourse to the "fit and proper person' standard.

CAN CHARACTER SCREENING BE CONSTITUTIONALLY JUSTIFIED

Given this history, it is not surprising that the character screening of lawyers has been the subject of a number of
constitutional challenges during the first decade after apartheid. What is more surprising is how little impact
these challenges have had on the traditional legal establishment.

A denial of admission to practise law has serious consequences of the individual and for his or her career. In this
respect it must be kept in mind that the right to choose one's trade, occupation or profession freely, although
subject to regulation by law, is recognised in section 22 of the SA Constitution 1996. The right to follow a legal)
profession may not be limited without fulfilling the requirements set out in section 36 of the Constitution.

One may therefore assume that any qualification for admission to the profession such as the criteria of
character) must be clearly related to the public interest and the applicant's fitness or capacity to practise law. It
could probably be argued that character traits or personal conduct that do not affect a lawyer's professional
performance or the public interest should not play a role in the decision whether to admit him or not.

The issue was first raised under the interim Constitution of 1993 in Prokurerusorde van Transvaal v Kleynhans.
In this case the court was called upon to comment on the constitutionality of its statutory power to remove "unfit
and improper" persons from the roll of attorneys. It was argued that this power violated section 26(1) of the
interim constitution (right to free economic activity). The court rejected the argument. It held that standards
could be set for the legal profession, both as far as "competence" and "unquestionable integrity" were
concerned, either on the basis of the internal imitation of the Section 26 right or in terms of the general limitations
clause, Section 33(1) of the Interim Constitution.

In Law Society of the Transvaal v Machaka the constitutionality of the power of the court to strike somebody off
the roll was again challenged. However, the challenge was brought under the final Constitution of 1996 and was
much broader in scope than that in Kleynhans. it was argued that the fit and proper person standard violated the
right to dignity, equality and freedom. The right not to be subjected to cruel, inhuman and degrading treatment,
and the right to choose one's trade, occupational or profession freely. Ruling on the judgment in Kleynhans, the
court rejected these arguments as well as the idea that membership of the legal profession should not be
subjected to the character screening of the person involved. The court held that character screening prevented
the right to freely choose one's profession from being abused by criminally minded attorneys.

the admission requirements for the legal profession were also challenged in Rosemann v General Council of the
Bar of SA. In this case it was argued that the division of work between the professions (advocates and
attorneys) and the referral rule was irrational, and as such an unreasonable limitation on the right to freely
choose one's profession. The Court once again rejected the argument and held that the freedom to choose a
profession was not violated by the dual structure of the profession. The applicant was at all times free to choose
whichever profession he wanted to pursue. Even if it was accepted that the restriction on attorneys to do the
work of advocates violated section 22, the restriction remained justifiable because of the benefits, which accrue
to the general public from the specialisation of legal services.
From these cases it is clear that the constitutional challenge to the admission requirements currently applicable o
the legal profession has thus far met with very little success. The "fit and proper person" standard and the
principle of character screening have both been accepted as constitutionally valid, without any serious
consideration given tot he exclusionary impact this test has had in the past. Nor have stricter rules for the
application of the character test been laid down to curb further and future abuse of this open-ended standard.

As mentioned above, the constitutional challenge to character screening in cases such as Kleynhans and
Machaka has thus far failed to establish any of these points as a matter of public and constitutional concern.

Nevertheless, in spite of these unanswered questions, we suggest that the requirement that lawyers must prove
that they are "fit and proper persons" for the legal profession opens the door of the development of a more
ethical profession grounded in an ethics of virtue. Once the importance of character (over and above legal
knowledge and technical skills) is acknowledged, the next question concerns, which character traits good
professional lawyers should exhibit. Then the suggestions of say, Kronman and Menkel-Meadow on he virtues
typical of good practitioners, come to the fore.

As we explain the next section, the above questions have generally not been asked in SA, mainly because the
character test encapsulated in the "fit and proper person" standard has been overshadowed by a concern with
the duty of lawyers to obey the law. In terms of this approach the first duty of a legal practitioner is to assist the
courts in their administration of the law. Legal practitioners are regarded as officers of the court and they have a
duty to uphold the law. Law is understood in a positivistic sense as the legal rules currently enforced by
recognised state institutions. The starting point for this thinking is that a person joins the legal profession out of
deep-seated respect of the law, and that he or she should respect the law under all circumstances.

In terms of the philosophical language developed above, one could also say that a virtue-ethical approach to the
legal profession has been overshadowed by a rule-based approach. When it mattered, the courts were inclined
to demand blind obedience to the rules of the positive law, rather than independent good judgment from lawyers.
A "fit and proper person" for the legal profession has generally been understood to be a person who faithfully
obeys the law, as opposed to one who exercises his independent good judgment (or the other feminine virtues
celebrated by Menkel-Meadow). This approach can partly be explained as a strategy to curb criticism by layers
of the apartheid legal order. The irony is that the same approach is still applied in post-apartheid SA, as the
Prince case makes clear.

SHIFT FROM CHARACTER (VIRTUE) TO RULES (DUTIES)

Ex parte Krouse - Krause practising advocate and ex Boer War prisoner of war who was released on parole in
England. Was admitted to the Middle Temple in England. Inns of Court was convicted for attempt to incite
murder after he wrote a number of letters suggesting that an author describing Boer forces as outlaws in
newspapers should be killed. Upon conviction, he was debarred but on return to RSA and upon expiry of the
sentence, resumed Advocate practice at the Cape Bar. Applied to be admitted to the ZAR (Transvall Bar
Council) granted as held.

1. Generally previous convictions would disqualify application;

2. Previous conviction, per se not decisive but whether such conviction reflected negatively upon the
personal honour.
3. Criminal conviction, usually - dishonourable character but if this was out of political nature and not out of
spite/private interest promotion then the criminal offence would not negatively reflect on moral character.

Mandela case - upon participation in the Defiance Campaign against Apartheid Mandela convicted for violating
a number of apartheid laws including the suppression of Communism Act. Transvaal Law Society failed in
attempt to have him removed from the roll in that:

1. Criminal conviction is prima facie evidence of misconduct;

2. However deliberate disobedience to the law - disqualification to practice law;
3. Removal follows in respect of offence unrelated to the practice if in respect of dishonesty leading to
doubts being raised if attorneys as officer of the court can be trusted;
4. Conduct therefore to be of dishonourable, disgraceful or dishonest kind making attorney unworthy to
remain in the ranks of a honourable profession;
5. Motivation for the unlawful conduct was to achieve vision of non racial RSA and though unlawful was not
of a personally disgraceful character;
6. Suspension of fractioned convicted of a crime therefore not to be punishment for an offence he was
already punished/sentenced.

Political motivation therefore was the exception.

Matthews Case - shift in the law from focus on character of politically motivated practitioners to a focus on duty
to obey the law. Articles not registered due to convictions under the suppression of Communism Act. Court
held:

1. Mandela and Krause character approach to narrow in scope and confined to the honesty and personal
honour of the person;
2. Actual question to be asked therefore is not whether defiant conduct portrayed a lack of integrity,
honesty and honour, but whether it could be reconciled with the duty of an attorney to uphold all existing laws of
the land;
3. Honourable motive/cause therefore not decisive, but duty to uphold law as officer of the court;
4. Officer of the court therefore cannot himself contravene the law/incite others to do so also even if the
motive therefore is political. This duty stems from oath of allegiance to the State and to the law that's required to
be sworn by every practitioner. Lawyers therefore to advise/further the desired case within the boundaries of
how the current law is set. This narrow rule-based ethical approach - apartheid government enacted many racist
laws/policies. Lawyer's duty was to obey duly enacted laws even if unjust.

TRC - asked this question to which the defence of legal proof was that lawyers duty was not shirked to obey the
law when they served the administration of justice under apartheid. TRC rejected this arguing that lawyers
legitimised the Apartheid State and sustained it s longevity by participating therein and by keeping its legal
system intact. Racism therefore provided with some decency while courts were portrayed as being independent.
Blind obedience to the law, even though of a fundamentally unjust nature, betrayed the ultimate purpose of the
laws quest for justice. The legal professionals uncritical attitude subconsciously/unwillingly contributed towards
the legislature and exertive pursuit of injustice. Use of the law - lawyers had opportunity to preserve basic
equity, decency and the pursuit of justice which was inherent in RSA common law. Duty to uphold the law = not
to uphold every positive law by the duty to hold the legal system accountable to its final objective or moral end ie
the pursuit of justice. TRC held that if more lawyers resisted legislature encroachments on basic rights and
lawless and had maintained equitable common law principles court would have had to curtail the jurisdiction of
the courts. This would have exposed the moral bankruptcy and degeneracy of its policy.

Prince Case - recently held that deep seated bona fide religious convictions of unlawfully using dagga in
religious ceremonies does reflect adversely on the good character therefore the shift from virtue (character to
duty to obey regardless of political/religious convictions - deliberate attempt to purify the legal profession in
service of the apartheid state and bears testimony to the hold of legal positivism and formalism mind set of
apartheid judiciary and legal profession therefore appears that the duty and not the character test was carried
over to the new RSA.

In the above overview of the campaign to have struggle lawyers struck off the rolls of attorneys and advocates
two approaches come to the fore: The first approach (virtue-ethical) emphasise the moral character of the legal
practitioner and asks whether the offence discloses a dishonourable or disgraceful character. The second
approach (rule-ethical) focuses not he objective duties of the legal practitioner who is an officer of the court. In
general, this includes the duty to obey all the existing laws of the land. Open defiance of the law and incitement
of others to defy the law are serious breaches of this duty, irrespective of the good moral character which the
political offender may exhibit.

Above, it was argued that the second approach (in which it is asked whether the legal practitioner fulfilled his
duty to uphold the law of the land) gradually displaced the first one (character approach), and that the courts
showed a growing reluctance to investigate the character of struggle lawyers as reflected in their political
convictions. The courts tended to focus on the seriousness of the crime involved and on apparently objective
standards such as criminal conduct (divorced from its political context).

DOES SERIOUSNESS OF CRIME CONVICTED OF PLAY A ROLE RE ADMISSION AND DOES THE END
RESULT (DEMOCRACY) JUSTIFY VIOLENT CONDUCT?
Hassim Case - convicted of assisting with recruitment of persons to undergo political and military training as part
of the armed resistance to apartheid. This contravention of the Terrorist Act led to application to remove from the
roll of attorneys. Evidence was led that he was of good moral character, good name and integrity and the
unlawful conduct was done out of a sense of loyalty to the political movement to which he belonged and that he
was personally opposed to violence. Argued also that this conduct was unrelated to his professional work and
that his good name, honesty and integrity as an attorney undisputed and the offences were born out of a desire
to bring about democracy. Court found that any attempt to conspire with others to violently overthrow the
government was disgraceful and a reprehensible method of voicing protest. Disobedience of the law out of
political conviction therefore was sufficient proof of bad character.

Moseneke Case - convicted for sabotage though never actually involved in any act of violence, sabotage or
rioting (the offence was that broadly defined) but merely because he had attended a number of PAC meetings
when still at school. Court held that the commission of a political offence, even as a child and without any
element of violence attached to it, reflects negatively on the character of the individual and if application
admission was made at such time, this would have rendered in an unfit person. however as he had undergone a
complete and permanent reformation - he now was a fit and proper person for the legal profession.

Magubela Case - convicted of high treason in which sabotage and explosions injured many civilians and caused
extensive damage. Even though he did not personally do these acts he acted in concert with two other accused
who actually did the sabotage. He conceded that high treason - to a serious offence, but that the political nature
- substantial extenuation in deciding if he was a fit and proper person to continue practising. Court held that
political nature for the offence per se does not dignify continuance to practice but also won't necessary excuse
such misconduct. Court held that the inherent offence especially a common law one is not altered by the fact
that the motive therefore was political. Court differed from the Krause case holding that the unlawful act was
directed at a hostile combatant at that time and no destruction of property and resultant injury to innocent people.
court therefore looked at grounds of the offence in that the nature thereof was in itself dishonourable and morally
reprehensible regardless of his moral character/motivations. The political offences exception in Krause and
Mandela therefore not considered.

Justification for violence

Ends don't always justify the means, never mind how noble the cause. However the apartheid State made it
difficult for reform within the system particularly due to its Parliamentary supremacy and formalistic mind set - ie
as long as laws (no matter how unjust) we procedurally/formally correctly passed, it had to be obeyed. Various
laws were so broadly defined, that any opposition by legislature means was almost impossible. Opposition
fighting for laws to reflect justice was therefore suppressed and the majority with the legal profession complied
uncritically wit unjust laws. Freedom fighters were branded as terrorist and saboteurs whereas their goal was
merely liberation and freedom and the constitutional ideal.

The question also arises on which grounds legal practitioners may decide to practise civil disobedience, or to
engage in violent resistance. Various answers are possible. It may be argued, eg. That resistance if justified
when

* The laws are immoral. It would then be a matter of the individual conscience to decide whether or not to
obey them (with no guarantee that this conscience is always correct, or that it doe snot conflict with somebody
else's' conscience).
* It is based on the individual's religious beliefs. The idea is that one should obey God rather than man
(bur we know that the Bible, eg, can be (and has been) interpreted in different ways. There have been attempts
to justify race discrimination on the basis of specific interpretations of the Bible).
* Positive law is unjust, and not worthy of respect. In this regard, appeal is generally made to natural law
(as a higher law against which positive law is measured) and man's reason. Locke's social-contract theory
stems from this idea. According to Locke's theory, the primary function of government is to protect individual
inalienable rights (eg. the right to life, freedom and property) in equal measure, and to act in the intersts of all.
The state and its laws need be obeyed only as long as they fulfil this function. Civil disobedience and violent
resistance would be justified if the state fails to uphold its side of the bargain
* Utility so dictates. Disobedience tot he laws of the land is regarded as an instrument for brining about
the greatest good for the greatest number. Conduct A (sabotage) may, according to the utilitarian viewpoint, hold
greater benefit for society than conduct B (obedience to the laws), since eventually it will result in a democratic
state, even tough it may mean that some people will be hurt or will suffer loss in the process.

We have already mentioned a number of difficulties, which might be associated with a more fully developed
virtue-ethical approach or character screening test for prospective legal practitioners. The discussion above has
revealed another possible danger, which might attach to the calls for a less rigid and rule-based approach to
legal responsibility. If we water down the duty to obey the law, or no longer make that our central concern, then
the threat of anarchy begins to loom large. Serious dangers may attach to civil disobedience, or worse, to
violent resistance. If each person was to decide which laws he or she wises to obey the country may become
ungovernable. Disrespect for the law, violence and anarchy may ensue.

CAN PREVIOUS CONVICTIONS PROVIDE EASY MEASURE TO EVALUATE FITNESS TO PRACTICE LAW
AND CAN THE CHARACTER TEST IN KRAUSE BE APPLIED WHERE DEFIANCE OF LAW ON RELIGIOUS
GROUNDS

Krause -

1. Generally previous convictions disqualify admission and justify removal;

2. It's not the conviction per se that's decisive, but whether such conviction reflected negatively upon
applicant's personal honour;
3. Criminal conviction - dishonourable character but excused if motive was out of political conscious or out
of spite/private interest promotion.

Mandela -

1. Criminal condition - prima facie evidence of misconduct;

2. However deliberate disobedience - disqualified to practice law;
2. Offence to be in respect of relation to the professional capacity;
4. An unrelated practice offence indispensable to continue practising eg dishonesty lead to doubts re
trustworthiness as an officer of court;
5. Conduct therefore to be dishonest, disgraceful, dishonourable making attorney unworthy to remain the
ranks of a honourable profession;
6. Unlawful act therefore to be of a personally disgraceful nature but is excused on basis of political
conviction/motivation;
7. Suspension/removal therefore as a punishment for an offence the lawyer already punished for.

Matthews case, Hassim Case, Moseneke Case and Magubela Case - conviction and nature and gravity of
previous convictions used to evaluate fitness on basis that political motivation exemption not to be considered,
but whether defiant/unlawful conduct could be reconciled with the duty of attorney to uphold the laws of the land.
Honourable cause therefore not decisive nor is the inherent nature of the offence altered if motive for it was
political. Held that nature and gravity of the act itself was dishonourable and morally reprehensible regardless of
the moral character/motives. Disobedience of the law out of politics conviction therefore was sufficient proof of
bad character.

Prince Case - devoted Rastafarian not allowed to register for articles as law society of cape refuse on basis of
previous convictions for possession of dagga and his intention to continue breaking the law in such regard.

First, he argued that the prohibition of the use and possession of dagga in section 4(a) of the Drugs and Drug
Trafficking Act was unconstitutional in so far as it did not make provision for an exception for its bona fide
religious use. Secondly, he argued that even if the prohibition were not unconstitutional, his contravention of the
prohibition in the past (and in the future) would not by itself prove that he lacked the character traits that would
make him a fit and proper person to practise law. Prince argued that he was constantly forced to choose
between his deep-seated and sincere religious beliefs and the law, and that by choosing his religion above the
law he was exhibiting precisely the moral fibre and integrity needed of lawyers.

Both these arguments were rejected it the HC (and eventually in the SCA). The courts now had to deal with an
offence stemming from deep-seated religious feelings, and had to answer the question whether the unlawful use
of dagga for religious purposes reflected adversely on the good character of the person. The SCA, after being
invited by Prince to do so, refused explicitly to follow the character approach developed in Krause and Mandela,
on the ground that the facts of the Prince case were materially different. The court preferred to adopt the rule or
duty approach, and emphasised the objective duty of legal practitioners to obey the law. It would thus seem as if
the duty test, and not the character test, has been carried over to the new SA.

There are however indications in the CC judgment that the position taken by the CC and the SCA on this issue
does not find universal support among AD's senior judges. In all three the judgments delivered in the Prince
case, the possibility is raised that Prince might still be a fit and proper person to practise law in spite of his
criminal convictions and continued defiance of the law.

Sachs J, egg, judges the defiance of the law by Prince against the politics of open democracy and of
"reasonable accommodation of difference". According to his understanding of democratic politics Prince should
not be forced by an inflexible application of the law to make the excruciating choice between his conscience and
his career. From a democratic-political perspective, Sachs J has no problem to concede that, in spite of his
opinion defiance of the dagga prohibition, Prince has shown himself to be "a person of principle, willing to
sacrifice his career and material interests in pursuance of his beliefs".

From this obiter remark one can infer that Sachs J is of the opinion that Prince's religious (but illegal) use of
dagga does not render him an unfit or improper person for the legal profession. This inference is supported by a
further statement by Sachs J to the effect that the Law Society in the past impoverished itself by excluding
persons of honour and integrity because their beliefs had brought them into conflict with the law. This implicit
reference to the struggle lawyers is significant. It suggests that the CC may well in the future return to the older
character approach of Krause and Mandela. Such a return would be significant because it may reopen the door
for a more fully developed virtue-ethical approach to the professional conduct of lawyers (as argued above).

DOES GHANDI'S STYLE OF LEGAL PRACTICE, SHOW ANY SIMILARITIES TO THAT OF MENKEL-
MEADOW?

Ghandi - commitment to justice rather than positive law and political action and participatory democratic
citizenship. Principles rather than influence convicted for him. Task of lawyers was not legal victories or to rake
up points in law, but to reconcile the litigants and establish a lasting and amicable relationship between them via
alternative dispute resolute methods like arbitration. He therefore tried to befriend the parties and bring them
together in order to achieve a compromise. He therefore had the true function of a lawyers role was to unite
parties driven asunder and to bring about private compromise. He also introduced the value of a public sprit and
political action to the Indian merchants to show that the community was one and indivisible. Ghandi applied to
be admitted as an advocate, but was opposed by the Natal Law Society because he was an Indian person.
Ghandi's approach therefore was the ideal of peaceful reconciliation.

Menkel-Meadow - also appeals to the equitable, contextual and merciful sides of the law. Also aims to seek
solutions that minimises harm to others. Also a care orientation inherent in feminine view of law that promotes
responsibility, care, compassion, inclusive solutions, accommodate peoples needs. Also focus on compromise,
reconciliation, arbitration, connection to others and responsiveness instead of the liberalist ideals of
independence, autonomy, separation from others and universal fixed rules/principles. They try to re-arrange
rules/principles in order to seek solutions and accommodate needs of others.

CAN LEGAL PRACTITIONERS POSSIBLY FULFIL HIS PROFESSIONAL DUTY TO OBEY THE LAW OF THE
STATE ALWAYS?

Fischer Case - one of the senior of lawyers during the struggle who tried to keep the Constitutional idea alive
during apartheid on basis of the moral ideal of just law. These lawyers denied the blind duty to obey the law and
claimed that their true virtue as lawyers (good judgment, care for the community and the oppressed etc) required
of them to obey the positive law of the State. State argued that this stance made them unfit to practice law. The
duty approach was applied int his case to counter Fischers challenge to the unjust laws of the land. He applied
for and was granted bail in order to attend Court in England. He returned to RSA to face the charge under the
Suppresion of Comunist Act but refuses to stand traial. CA held the deliberately misled court when applying for
bail, that the cotempt of court - dishonest and reflected negatively on his character. Court held that he is bound
to the same d as the cour to uphold the laws of the land that were duly enacted and promulgated. therefor it
would be inconsistent with the duty of the court to allow him to remain on the foll as he was defying those laws
and inciting other to do the same. his defence that his political conscience did not allow him to do otherwise was
to no avail. cort held that breach of faith in estreating his bail despite solemn assurances can be stigmatised as
dishonest conduct. Held that such conducts would be negative on the public opinoin in that othrs would also not
value their pledge to honour their bail conditions.

Prince Case - Court preferred to adopt the rule/duty approach instead of the character approach and
empahsised the objective dut of legal practitioners to obey the law. Cour theld Prince not to be a suitable
candidate as he had two previous convictions for dagga possession and because he made his intention clear to
continue breaking the law.

Sachs J, eg, judges the defiance of the law by Prince against the politices of open democracy and of
"reasonable accommodation of difference". According to his understanding of democratic politics Prince should
not be foreced by an inflexibel application of the law to make the excruciating choice between his conscience
and his carrer. From a democratic-political perspective, Sachs J has no porblem to concede that, in spite of his
open defiance of the dagga prohibition, Prince has shown himself to be "a person of principle willing to sacrifce
his career and matrial interests in pursuance of his beliefs".

From this boiter remakr one can infer that Sachs J is of the opinion that Prince's religious (but illegal) use of
dagga does not render him an unfit or improper person for the legal profession. Thsi inference is suppoted by a
further statment by Sachs J to the ffect that the Law Society int he past impoverished itself by excluding persons
of honour and integrity because their beliefs had brought them into conflict witht he law. Thsi implicit reference
tothe struggle lawyers is significant. It suggests that the CC may well int he future return to the older charactr
approach of Krause and Mandela. Such a return would ebe significant.

Mathews Case - the Cape Law Society refused to register Matthews's articles of clerkship because he had two
previous convictions under the Suppression of Communism Act (the same offence as int he Mandela case). In
deciding against the applicatn, the court rejected the character approach adopted in Mandela and Krause
because of it narrow scope. According tohte court, the Mandela judgment focused only on the question whether
the offence in question reflected negatively on the honesty or personal honour of th eperson invlved. The court
now reasoned that the real question was not hwether participation int he Defiance Campaign disclosed a lack of
integrity, Honesty and Honour, but whethe rit could be reconciled witht hed uty of an attorney to uphold allthe
existing laws of hte land. According to the court, therfore, the question was not whethe rthe motive for the
criminal conduct was honourable, but merely whethe ritw as consistent witht he duty of an officer of the cour to
uphold the law. An officer of the court cannot himself contravene the law or incite other to do si,even if the
motive for doing so is political.

The new duty approach rested ont he fact hta tevery legal practitioner is reqired to swear an oath of allegiance to
the sate and the law. The first dut of a legal practitioner is thus imply to uphold the laws of the state. The task of
a lawyer is tro advise this client onthe law as it is, and to further that client's case within the boundaries set by
the law. However, the SA apartheid experience has taught us that this rule baed approach to professional
conduct might be too naroow an understanding of the ethical limits of the legal profession. What if the laws in
force in a state are fundamentally unjust? Would the lawyer's duty to respect the law then be met if he merely
obeyed these (unjust) laws? Thsi question was raised during the TRC inquiry into the role of the legal profession
under apartheid. The aparthed government made extensive use of the law to implement its racist policies. What
was the duty of those person who practised law as attorneys and advocates during the aparthed years?

***

QUALITIES REQUIRED OT LEGAL PRACTITIONERS PER LM DU PLESSIS:

1. Integrity - also - upright stead fastness or impeccable honour, incorruptibility, non submission to
temptation, irregularity and dishonesty for the sake of personal gain - also full disclosure of facts and evidence
detrimental to the client, not aiding client to be dishonest, not misleading the court.

2. Objectivity - fairness, impartiality, focused judgment that bears no irrelevant considerations, reconiling
conflicting interest and choosing between various possibilities, what's in client's best interest therefore a natural
justice that's inborn that distinguishes facts from emotions.

3. Dignity - honest and objective judgmenets, keeping a level head and maintaining and promoting the
dignity of courts and maintaing inpeccable cour tmanners. Justice also to be seen to be done totally. shoudl
conduct themselve sin a dignified manner in court. Should not sell their services if they were hawkers wares
therefore advetising, touting and sharing of fees with non practitioners are unworthy practices. They are to
conduct themselves ino rder to be worty of respect eg improper to write threatening/meanacing letter to debotr
of Attorne.

4. Power of Judgment - to e skilled in judgment/decision making - unborn qualit but can be improved with
training. This qality to be linked up with a sound knowledge of law and a sensitive regard for the peculiarities of
each unique concrete situation. Should also be able to show equitable judgment via correct applicationa nd
careful deliberation.

5. Knowledge and Skill - should be legal experts in all branches of the profession as is embodied from
admission requirements.

6. Hard Work Capabilities - have to master huge volumes of work in a relativelyshort time.

7. respect for the legal order - ie this respect before the pursuit of legality moriclaly reflects the political
strings that the aparthed judiciary attached in Fischers Case. Though bail ws estreated and thsu - disrespect
before the legal order/procedures, such disregard of the law, was out of political motivation and respect for the
aim of the law ie justice itself. Legal order only justified to exist if aimed to further, promote and protect the
security and well being of citizens and should it fail this test, legal practitioners as servant of the law are justified
in defying such laws and call for it s adjustment/rescission.

8. Sense of Equity - rectification of the law in so far as the law is defective on account of its immersality
application of the normative perepts of the legal order of justice to achieve its objectives of just. Equity allows for
exceptions in order to accommodate .. cases without frustrating the objectives of a justice promtoing legal order.

***

SHOULD OBLIGATION TO BE HONEST AND TRUTHFUL GIVE WAY AT TIMES TO EXPEDIENCY FOR THE
BENFIT OF EITHER THE CLIENT OR THE LAWYER - DISCUSS FROM DEONTICY UTILITARIAN ETHICS IN
LIGHT OF MERRET CASE:

Merret Case - Lawyer pressured by divorce client to get divorce through asap. Attorney for the wife set down
divorce on unopposed roll including an order for interim mainteannce to which husband's attitude was that the
quantum of her claims were "outrageous in the extreme". At hearing the judge asked wifes attorney if husband's
attorney knew that the divorce wa going to proceed on an unopposed basis. his reply was evasive in that "they
know that we are proceeding. They have not filed an appearance." Divorce granted but it surfacd that
Defendant's attorney was not informed that divorce proceeding unopposed.

Court held that;

1. Attorney deliberately misled the High Court therefore not a fit and proper person to appear before High
Court or to remain on the roll of attorneys;
2. Requirement of Advocates to be honest and truthful in their dealings with each other and the court also
applied to attorneys.
3. if professionals were not scrupulous of the trusth, in dealing with each othr and with the court the
administration of justice would not survive;
4. that such demonsteable lack of integrity justifies removal of the attorney's name from the roll
5. that the court could never trust, believe what the attorney told it from the bar even though he protested
he had learnt his lesson and would never repeat his actions.

FROM DUTY (DEONTIC) RULE BASED PERSPECTIVE

University of rules - everyone duty bound to obey as its what's expected from a morally good lawyer. Thus
Merret was duty bound to fully disclose unopposed divorce date as befitting conduct of a morally good lawyer.
Ethical rules takes precedence over everything else even consequence of conduct and even the formal rules of
court. merrett acknowledged acting too formalistic and that he should have acted more ethically but having
regard to the under aspects of each particular case. Divorce order therefor had to be rescinded as the ethical
rules which takes precedence over everthing else, was violated. the categorical imperative - one should act in
the same way that you would wish others to act towards you. Merrt would therefore have wanted the other side
to act with the same consideration to them had the roles been reversed as this is what's required of a morally
good lawyer. People should not be regarded as a means to an end ie. the desparate situation of his client did
not justify unethical conduct. What ought to be done in order that the qualify as morally good conduct in terms of
presecribed rules, must be accepted as a duty and everyone has a duty to obey it. Minimum standards and
formal rules to be complied with not just out of fear of removal/disiplinary action but out of a sense of duty or
prudence.

FROM UTILITARIAN PERSPECTIVE

The purpose the action is intended to achieve is the only rlevant thing irrespective if the action is wrong or right
therefore the purpose is to be understood in sense of en-result or consequences. Moral judgment boils down to
the result which promotes the happiness of the greatest number in society. Usefulness and not duty/respect for
the legal rules therfore = the criterion of moral judgment. Merret was motivated by the purpose/end result
justifiying he means as client in desperate financial need and could not afford to appear again before the cour tin
an opposed trial. The cause of his client and the purpose of the action was to achieve the masimum good within
as short a time as possible without regard for whether the action was wrong or right. Ends therefore justify his
means but useful things not always ethially right as shown in Merret's disregard of personal moral integrity
leading to his removal from the roll. Merret probably fealt justified in being evasive , inconsistent in giving a
misleading reply to the judge upon the utilitarian view of purpose/consequences and usefulness for the cause of
his client.

HONESTEY IS ACHIEVABLE ONLY IF ONE HAS BEEN BORN INHERENTLY HONEST OR IF BEEN
TAUGHT TO BE HONEST FROM EARLY CHILDHOOD - DISCUSS PER VIRTUE ETHICS:

Du Plessis - also referred to as integrity, upright steadfastness or impeccable honesty and immunity against
tempastion to do something dishonest or irregular for the sake of personal gain or incorruptability. these and
other univeral timeless values are inborn and cannot be learnt or acquired. However most of these can be
worked upon, and improved by academic training provided they are by nature at least latent. Inner dispostion is
therefore decisive and thefore honesty and integrity cannot be taught. Academically, however, students shoudl
constantly be reminded that the legal profession is one of impeccable integrity.

Aristotle - integrity and good judgment can only be outwardly sustained if the inward frinedhsip is sustained.
Wholeness/integrity/honesty is therefor characterised by steadines of action, purpose, reliability of character,
dignity and self respect. The idea of ethics is therfore based on excellence of character. A persons ethics and
his personal success are intertwined implying that virtue allows the virtuous person to flourish. Therfore virtuous
conduct is about what a person of good moral character would do ie to act with virtue/courageously in a moral
crisis.

Virtue Ethicist - virtuous qualities like honesty is inherent and consistent in all people and can be developed.
However possession/non possession hereof is a matter a natural gift ie a certain talent that one may/may not
have ie something one has by chance, that can't be acquired or learnt.

Crit - if virtue can't be learnt/acquired - only those gifted with virtues and honesty can be ethical and those not
gifted are not expected to act honestly. If honesty = a character trait dfeveloped over time = then you can't see it
as a natural gift that you either have or not. Such virtuous character traits are generally associated with
distinctive patterns of feeling, of decsire of aversion and as well as modes of thought. To have thi trait = to hold
certain belief or to think in a particular way with steady regularlity over time ie a development process instead of
inborn gift.

***

VARIOUS ELEMENTS OF DELIBERATION PER KRONMAN

Person with such quality - will entertain wide-rangin alternatives, but will also make a proper choice amongst
them and a right decision regularly. The sorts of decisions and the deliberative procedures are connected and a
person who deliberates well, is likely to make sound/practically wise decisions. Entertaining a value or concern is
a attitude underway between adopting it and jmerely acknowledgining its existence ie. a combination between
compasion and detachment. A person having fellow feeling/friendship amongst the different parts of his own self
possesses a quality of wholeness best desvribed as integrity, steadiness of action and purpose, reliability of
character, dignity of self respect shown to others. Outward constancy possible only if person has inward
friendship. The pressure of the world can however destroy this inward friendship. The alternative is not
elimination of all conflict in the soul but sympathy towards oneself being the basic good upon which integrity
depends. The measure of integrity is also a function of the varioius choices made that over time will either
strengthen the friendly attitutde of encourage self hatred and regret. Wise personal decisions = shows good
judgmen ie it promotes integrity ie it inreases satisfaction of being able to live with yourself on amicable tersm.
Wise judgement = lead to integrity and universe ones to disintegration and regret.

WHY IS THE DEVELOPMENT OF A CHARACTER TRAIT IMPORTANT FOR A PERSON TO BE ABLE TO

APRECIATE WISE AS OPPOSED TO CLEVER ARGUMENTS?

Person who habitually shows good judgement in deliberation will be marked by his affecive dispositions, and
traits of character which will be a defining feature of that person. Someone with good judgment is discovered as
a person of a certain character = about the kind of person that he is and not mjerely about hsi interlectual
abilities. Character trais are generally associated with distinctive patterns of feelings, of desire, oversions and
modes of thought. particular traits - liking/dislinking thing with steady regularity instead of holding certain beliefs
or to think in a particular way. having sound judgment, power of deliveration and iscrenment is more than a
mere skill. It is a trait of charater and the choice of a way of life. Wise judgement thus stems form the
reconciling of conflicting claims of sympathy and detacment. This = the ability to see his clients situation from
within and yet at the same time from a distance and to give advice that's both compassionate and objective. The
merely clever lawyer (the hired gun) can't give such advice where practical wisdom is required and therefore his
counsel or judgment is not valued hightly. The use of sympathetic imagination can be employed by the wise
lawyer to accomodate conflicting interest within a framework of rights and obligations. Practical wisdom requires
more than cleverness/cunning, manipulative power, rhetoric and technique for making bad arguements appear
good and vice versa. Personal characters of good men and the persuasiveness of their arguments are more
readily believed than those of them having bad character. Character therefore may be called the most effective
means of persuasion as character has a dispositional dimension of making visible his habits of living. the lawyer
must place himself in the position of the judge ie to see things from his perspective and to fram his arguments to
show congruence betweeen his clients interests and those of the legal community as a whole. judges know that
clever arguement show inventiveness of use of legal and other materials to promote a clients cause. A wise
argument however establishes aforementieoned convergence between clients cause and the community of law
which judges have to protect. These arguments are given special weight. Acquiring such character traits in
seeing the legal dispute from the judges view is wha distinguishes wise arguments from characters.

***

Ex Fine Case - Advocate Fine signed letter on behalf of foreign lesee under fraudulent pretence of holding
sufficien tfunds to cover the first 6 months of the lease. Thsi also = a\contravention of Regulations of Law
Society in that he wa acting as advisor in salried employment which may have affected his professional
independence. he also allowed lessor to continue to labour under the misaprehension that money had bene
received and was held by him on behalf of client. Although acting in clients intrest, but acted in a dishonourable
way as scuh interest promottion on behalf of client was tained by fraud.

****

Prince Case - oath of allegience was an implied condition to be able to practice and violation of the oath reflects
on fitness to remain in the profession as this involved swearing loayalty to the laws of the country. (Drugs Act
and Medicines Act). Defiance of these laws and his resolve to contineu contravening law in the future - not being
regarded as a fit and proper person as this - repudiation of the oath of allegiance even before it was taken. thjis
reaking of the law = conduct that may bring the profession into disrepute and contrary to the standards of
behavoir expected of officer of the court. Prince argued that the constitutioal right to freedom of religion was
imipeded by the law not allowing an exemption for use of dagga in bona fide Rastafarian practice. Court held it
was a limitation on his reight to choose his profession, right to his dignity and freedom practice his religion but
that this was justified by a law of general application with a rational prupose of illegal drug control/enforcement.

***

Mandela case - his deliberate disobedience of the law and encouraging others to do the same had nothing to do
with his practice as an attorney. his conduct was also not dishonest, disgraceful nor dishonourable nor did it
impact on his personal character nor was it an offence connected to his profession. Disobeying the law per se =
unfit to continue but because of political motivation of defying unjust law in that justice should be the foundation
of the existence of law.

Fischer case - held that Fischer's breach of faith in entreating his bail was not worthy conduct of an Advocate
and that this breach of his solemn assurance to stand trial amounted to dishonourable conduct. The impact on
public opinion and the administration of justice would be deplorable, as nobody else would therefore honour their
undertaking as binding. Court held that he was not a fit and proper person as he openly stated that he would
defy laws duly promulgated (no matter how must it was) and encourage others to also defy these laws. His
commitment to obey just laws and political objection to unjust laws was not considered proof of his moral
character and integrity. This injustice was therefore his motivation to engage in civil disobedience.

Magubela Case - civil disobedience in respect of unjust law went too far according to the court in that this
political offences of sabotage, conspiracy and high treason was not altered by the nature of it commission. The
gravity of the offences is therefore especially not excused and the Respondent had to forfeit the right to practice
as the oath of allegiance to the RSA had been repudiated. Such conduct was regarded as dishonourable and
morally reprehensible and unbefitting a legal professional.