Lawyers are guardians of integrity

THE late Chief Justice Pius Langa said: “The legal profession is the guardian of the dignity and integrity of the nation.”

His comment can be adopted as a guiding benchmark for evaluating our ethical performance as legal practitioners.

Both the legal profession and legal educators must take responsibility for ensuring that aspirant lawyers are adequately trained in the standards of professional conduct and ethical norms that define them as legal professionals.

A legal practitioner must be driven by the principle of justice. Even if an issue seems clear from a legal perspective, the lawyer must be courageous enough to ask “what is the right thing?” in morally challenging circumstances.

Justice requires that we show compassion for the vulnerable and disadvantaged while following the instructions of our clients.

As professional practitioners, we must constantly be aware of the constitutional imperatives that impact on our work. We may, therefore, not fail to act when we find that a basic constitutional right has been violated.

Integrity should not become a commodity which is used only when formulating a mission statement or designing a market strategy.

The courts, the public and colleagues should have no doubt that they can rely on undertakings or submissions at all times and in all circumstances.

Why is this important? The public has become much more critical. Unless we meet their expectations, the consumers of legal services may look to alternate providers.

This could have serious consequences for the quality of legal services and the protection that the public currently enjoys from dealing with professionals who are adequately trained and regulated, and who act within an ethical code.

When it comes to the state of ethics in the profession today, generally practitioners adhere to the ethical norms and standards for professional conduct, although on occasion there may be a tendency to diminish the importance of ethics

A person must be “fit and proper” to be admitted as a legal practitioner.

The concept of fit and proper refers to the ethical disposition and the competency of the particular candidate in question.

Although perhaps difficult to determine objectively, there must be a rigorous interrogation of the candidate in addition to relying on a consultation with a senior attorney or a check of his or her disciplinary/criminal record.

To some, ethics means merely “don’t steal”. Others say that ethics consist of the formal rules of the profession that are approved by the chief justice.

It must, however, be more than that. Situations may arise that are not catered for by the rules.

The adage that the client is always right cannot be applied in the legal profession. A blind adherence to a client’s wishes may affect the independence of the practitioner and cause him or her to subject ethical considerations to whatever the client may want.

Many complaints are made to the regulatory law societies. Although a large percentage of the complaints may be frivolous, it is clear that the public is exposed to an unacceptable degree of unprofessional conduct.

Although far less than one percent of the 23 000 practising attorneys are struck from the roll for theft in a given year, the number is still unacceptable.

In KwaZulu-Natal only two of the 3 134 attorneys were struck from the roll by the high court between June 2014 and June 2015.

The majority of complaints against attorneys are based on an alleged lack of diligence; failure to account or respond to the client.

The profession must address this as it goes to the core of behaviour as professional lawyers. How can this be done?

The Law Society of South Africa (LSSA) offers ethics training to candidate attorneys at its practical legal training programmes, and it will present an event for young lawyers later this year in conjunction with the International Bar Association, the focus of which will be on the individual’s approach to ethical dilemmas in a modern context.

However, practitioners are not easily attracted to seminars on ethics, probably because other topics are seen to be of more direct value for their work.

So new ways must be found to educate and inform them. A campaign to put ethics back at the heart of the profession is necessary. It must convey the message that “smart lawyers are ethical”.

The introduction of mandatory continuing professional development under the new Legal Practice Act will be one method to ensure greater and continuous exposure to the profession’s code of ethics.

Law faculties will carry a great responsibility in the future:

The new standards for the LLB degree will refer prominently to ethics as an applied competency. The important question is: how will this be taught?

A new curriculum will be designed by the South African Law Deans Association in cooperation with the LSSA to ensure that all law students learn the fundamental norms of ethics during their LLB studies.

During the vocational training phase following the academic phase, the profession can then focus on practice-specific norms.

It is suggested that law students be exposed to robust debate based on real-life scenarios. Graduates must be given situations that they will confront in practice, however harsh or shocking their reality may be.

Universities may consider having every law student sign a declaration of professional responsibility to personalise the concept. This is being done at the LSSA’s School for Legal Practice.

Hopefully graduates will be empowered to develop the individual capacity to make a judgment beyond what the rules provide for.

It could also be seen as an individual compass for ethical and moral awareness and judgement.

The profession will face major changes in the future. These relate to greater competition, technological advancement, client expectations to receive more for less, new fields of practice and new governance and regulatory procedures.

This will certainly introduce greater complexity, place even more pressure on practitioners, increase the need to adjust and be innovative, and require more in terms of learning. Undoubtedly, this change will bring greater challenges in terms of ethics.

We should ask the question whether, in 2025, and despite considerable change, our law graduates will have moral autonomy to meet the ethical demands of the profession.

The answer to this question is crucial if the legal profession is to maintain its rightful place as the guardian of the dignity and integrity of the nation.

As a profession, we must aspire to exemplary lawyers and leaders like Nelson Mandela and Mahatma Gandhi, whose actions in developing the nation, placing others’ interests before their own and espousing the greater good have shown how they embraced the role of morality in society.

Also, we dare not disappoint the late Chief Justice Langa.

Swart is chief executive officer of the Law Society of South Africa.