In law, ethics and morality are closely associated; one can even argue that since the law condemns immoral and unethical behaviour, it would be unfitting to place the law in the hands of someone with moral turpitude.
Over the years, it has become apparent that merely holding an LLB degree or having a thorough knowledge of the law is not sufficient: one also has to possess qualities such as honesty, candour, trustworthiness and fairness.
Determination of a fit and proper person
The determination of a fit and proper person is done through a pre-admission screening process consisting of an interview, which usually takes only 15 minutes. The main objective of the interview is to determine if the candidate is a fit and proper person for the profession; the assessor uses his or her discretion to decide this, and makes a subjective value judgement in order to arrive at a decision.
While legislation does not describe or define what a fit and proper person is, there have been useful albeit limited discussions of the definition in case law. In General Council of the Bar of South Africa v Jiba and others 2017, Judge Legodi described a fit and proper person as someone possessing integrity, objectivity, dignity, capacity for hard work, respect for legal order and a sense of equality or fairness.
Although Judge Legodi’s list may not be exhaustive, it does provide a perfect guide as to how an aspirant attorney or advocate is supposed to conduct himself or herself. The most common rationale for character screening is to protect society from sub-standard practitioners who use their knowledge of the law to their own advantage, while prejudicing the layman-client, and to further urge practitioners to handle matters with due diligence, honesty and virtue. The conduct of any law practitioner should bear a rational connection with the purpose of maintaining the integrity and honour of the profession.
Is the ‘fit and proper’ screening process effective?
Despite the high standard of integrity that the profession demands from its members, law practitioners have on numerous occasions been found inter alia to lack sound moral principles and be corrupt.
In the case of Vassen v Law Society of the Cape of Good Hope 1998 ZASCA, the appellant’s name was struck from the roll of attorneys because he abused his executorship of a trust bank account by using money from the account for his personal commitments.
The counsel who appeared for the appellant based his defence argument on the fact that the court branded the appellant a ‘thief’ instead of highlighting his commendable community service. He held that the appellant was a human rights lawyer who served the community with dedication and diligence and further submitted that he protected his clients regardless of their ability to pay fees. However, Acting Judge Eksteen provided that:
“A client who entrusts his affairs to an attorney must be able to rest assured that the attorney is an honourable man who can be trusted to manage his affairs meticulously and honestly. When money is entrusted to an attorney or when money comes to an attorney to be held in trust, the general public is entitled to expect that money will not be used for any other purpose than for that which it is being held, and that it will be available to be paid to the persons on whose behalf it is held whenever it is required.”
In essence, Acting Judge Eksteen underlined the fact that the good moral conduct expected from an attorney requires honesty, reliability and integrity, which cannot be disregarded because of one’s good deeds. As a matter of fact, when clients entrust attorneys with money it is not because of the attorney’s good deeds in the community, but because they are recognised as legal experts who constantly deal with sensitive issues, including the handling of clients’ funds. Accordingly, clients rely on them to maintain the standards of their profession.
Traditionally, the role of a lawyer in society is to be a servant of the statute, officer of the court and defender of the country’s constitution – together with its people. The public views lawyers as noble members of society who have the ability to rise above their self-interest in order to promote the rule of law and pursue the common good. Over the years, courts have however been confronted with cases where legal practitioners displayed outright greed at the expense of their clients.
In the case of KwaZulu-Natal Law Society v Moodley 2014 JDR 1041 (KZP), the KwaZulu-Natal Law Society sought an order to strike the first respondent’s name from the roll of attorneys because the first respondent had wrongly applied the contingency fees to insurance policies worth R600 000 against the Old Mutual Insurance Company. After an inspection by the applicant, the respondent, among other things, admitted that his understanding of the contingency fee agreement was skewed and that the fees charged to the client were excessive. In his judgment, judge Vahed cited another judgment made by him in a similar case:
“… A high degree of honesty and integrity is expected from attorneys. The interests of the public are paramount because they are vulnerable to exploitation when they entrust their affairs to an attorney. Attorneys are officers of the court and a vital cog in the judicial machinery. If dishonest attorneys are allowed to practise, the administration of justice will be brought into disrepute.”
Over time, it has become impracticable to determine whether a person is in fact fit and proper. The cases mentioned are indicative of the fact that the pre-admission character-screening process can be ineffective and does not guarantee that a person will act in accordance with the standards of the legal profession. It can only be determined whether a person is in fact fit and proper to practise law through years of assessment. In an address to mark the 30th anniversary of the Black Lawyers Association, theologian and human rights activist Professor Barney Nyameko Pityana asserted:
“Effective lawyering takes a great deal of patience, diligence, hard work, systematic drilling and strategy and always a measured temperament. There are no short-cuts, no instant gratification and no guaranteed wealth – only diligence and sheer hard work. Almost always there will be satisfaction for a job well done, and one will earn the respect of one’s clients and colleagues by reason of adherence to professional standards and integrity.”
As one travels through different institutions in life, each of the institutions imposes certain rules and obligations that shape his or her moral compass. Blake McDowell once submitted that “we live in a cynical age and do not expect to find good moral characters. If no one expects virtuous conduct; less of it will be perceived and displayed”. Code of conduct and ethics should thus be deeply entrenched in people, so that the development of moral character can be achieved and sustained.
Having an excellently drafted Constitution does not guarantee that the rule of law will be upheld, especially if the people entrusted with duties related to the administration of justice fail to act in a professional manner. Ultimately, the objective is to ensure that fit and proper conduct is so deeply etched into a legal practitioner’s character that it cannot be affected when they face ethical dilemmas or challenging circumstances.