Dear Johannesburg Bar Pupils of 2020,
Welcome to pupillage and to the strange and wonderful world of advocates’ practice!
We look forward to spending time with you introducing you to professional ethics in the context of advocates’ practice. During the course of this year, we will guide you through the curriculum required for exam purposes; but more importantly, we will introduce you to a method of thinking about ethical practice (and the many diverse quandaries and dilemmas that pop up throughout one’s career) which will equip you to exercise good professional judgment at those unexpected but critical moments.
This course is not about morality or ethical conduct in your personal affairs. The Bar is not particularly concerned with what you do in your spare time, it does act to protect the integrity of the profession of advocacy. Your private conductis not subject to regulation by the Bar as long as it does not harm the profession. But consider for moment whether it is even possible to maintain a distinction between your private characterand your professional characterwithout becoming an increasingly fragmented person: one whose words and actions diverge and become irreconcilable over time. In this more limited way, then, professional ethics are related to how you choose to lead life. That said, however, the course focuses specifically on ethics in the profession of advocacy.
While integrity is probably the most fundamental attribute of an effective advocate, vague homilies about honesty being the best policy will not always suffice as a reliable guide to ethical professional conduct as an advocate.
For example, what are an advocate’s duties when her client informs her in consultation that he committed the crime he is charged with, but that he doesn’t think the State can prove the charge? Can the advocate advance a ‘not guilty’ plea on behalf of her client, or cross-examine the prosecution witnesses? Or what if a witness contradicts himself during evidence in court, to the extent that he was either lying to you during consultation, or is now lying to the court? To what extent must we believe our client’s version of events in order to represent him? Can we pick and choose our clients according to our personal morals, political views or opinion of the client or the cause which it promotes? Can we refuse to act for someone accused of a hideous crime? All these and many other engaging and difficult topics will be discussed during this course.
At the heart of ethical advocates’ practice is a system of values that underpin the explicit rules of professional conduct. These values, properly understood in the context of an advocates’ practice, provide the context for understanding and applying the express rules, and the less formal (but still important) traditions and unwritten rules of practice.
The underlying values or qualities of character to which advocates should strive — such as integrity, truthfulness, courage, faithfulness, trustworthiness, courtesy and fair-mindedness — are, we think, universal human standards, not just “hurrah words” that can be reduced to relativistic cultural norms or conveniently bent to suit a convenient argument.
The express rules of advocates’ ethics may, at first glance, come across as too obvious to , mysterious, random or outdated. Some rules may seem paternalistic or elitist. Not to worry — we try and deal with the rules in a systematic fashion, and discuss in depth each rule, the underlying values that it serves to protect, and the problems that can arise in practice if the rule is breached, or where it clashes with other rules, values or interests.
It is important to emphasise at the outset that the nature of an advocate’s practice is complex, not just in the subject-matter of the briefs that you will (hopefully) receive, or the issues of substantive law applicable to a particular matter, but also ethically. The nature of the role of an advocate, the varied and sometimes competing demands of practice, and the dual nature of the advocate as defender of his or her client’s interests, and simultaneously as an officer of the court (with onerous duties towards the proper administration of justice) result in a web of duties and relationships (towards the court, towards colleagues, towards clients, witnesses, etc) that create complex ethical dilemmas, which no course on ethics can fully cover.
What we aim to achieve in this course is to help you develop a structured approach to thinking about ethical problems, grounded in a solid understanding of the advocate’s role, the interrelated and sometimes conflicting duties towards client and court, and the relevant legislation, case law and formal and informal rules of practice. This will hopefully equip you with the necessary tools to understand the rules of ethical practice, and to apply that understanding and methodology to the Bar exams, but also to general practice.
A note on course materials
The curriculum and exam is set by a national committee of the General Council of the Bar (GCB), and applies to all affiliated Bars in South Africa. We have no insight into or influence over the curriculum or exam paper.
The GCB has in place the Uniform Rules of Professional Conduct (also known as the Red Book), regulating advocates’ practice, though not exhaustively. These rules apply across all Bars. In addition, each Bar publishes local rules of practice, designed to supplement the Uniform Rules and to regulate certain aspects of practice relevant to a specific Bar. Until last year, the Uniform Rules formed the basis of the exam curriculum.
However, we are currently undergoing a seismic shift in the regulation of professional ethics. After many years of debate and delay, the Legal Practice Act (LPA) has come into force, as has the Code of Conduct promulgated under the LPA. The Code applies to all legal practitioners in South Africa, and is now in force.
The Code of Conduct issued under the LPA does not replace the Uniform Rules in their entirety, and a process of updating and aligning the Uniform Rules to conform to the Code will have to be undertaken. This is likely to result in many changes to the Uniform Rules.
This state of uncertainty in the current regulatory regime is not ideal for the anxious pupil. Not to worry: we are all in the same morass together. And rest assured that the underlying values which underpin all the various rules have not changed.
We would encourage you not to get bogged down in the detail of the rules or case law until much later in the year, and, at the outset, to allow yourself the space to think deeply about the broader values you are undertaking to uphold.
You may disagree with some cases or rules, and you are free to express such disagreement for further debate. But it is far more important that you think, rather than try to memorise.There will be plenty of time for exam preparation; for now it is more profitable to understand how seemingly clashing values might or might not cohere, and how to reflect on ethical questions and practice ethical decision-making.
As with every other subject taught during pupillage, there is simply no better exam preparation than daily, conscientious involvement in your mentor’s practice. You will, in all likelihood, encounter potential ethical issues and challenges from the first consultation you attend with your mentor, and within a few weeks of starting to attend court. We encourage you to create the space to discuss these issues and challenges with your mentor just as you would ask questions about drafting or motion court practice.
First steps
In advance of the formal lectures, you are requested to read (and re-read and read slowly and mark up and think about) the note of a speech given by one of the greatest advocates of modern times, Sir Sydney Kentridge KMCG, QC. Note how even after 70 years’ experience (of which 30 were at the Johannesburg Bar, representing Nelson Mandela, Steve Biko and others), Kentridge QC still professes to grapple with difficult ethical dilemmas facing an advocate. (The article is available at https://ethics.bar/wp-content/uploads/2019/01/sir-sydney-kentridge-qc-the-ethics-of-advocacy.pdf).
There are no easy answers to some of these dilemmas, and probably never will be, but in this course we will guide you as to how properly to engage with such problems, what values are in play, and what rules guide you to an ethical course of professional conduct as an advocate. Because the nature of the role of a barrister in the UK and an advocate in South Africa are largely identical, all of the values discussed in the article are relevant to modern practice, as are most of the old English cases discussed, although some things have changed, such as the liability of an advocate towards his client for professional negligence. But do not be put off by what may appear to be outdated references and cases – the principles still apply, and these questions still arise in contemporary practice.
Course materials
We will endeavour to supply most course materials in electronic format. To access these materials, we will be using the website https://ethics.bar. We will also be posting blogs on relevant topics throughout the year, and adding case summaries, notes and other materials that you will hopefully find useful in your studies.
It is essential that you have access to a device with email and internet access, even if it is a smartphone or tablet and not a laptop or desktop computer. If you cannot arrange regular access to any device, please speak with us to arrange copies of course materials. Your mentor or group should have Wifi access and printing facilities for your use, without charge. Again, if this is not the case, please let us know.
We look forward to meeting in person and engaging in interesting discussions with you in class. Any questions you have can be dealt with in or directly after class.
Greg Fourie SC
Eric Mkhawane
Salim A Nakhjavani
Chambers, 27 January 2020
Ethics blog for pupils 