Durban - The legal profession in South Africa is in an ethical crisis with claims relating to thieving attorneys peaking at R200 million last year and one law society receiving 6 000 complaints because of their “I don’t care attitude”.
“We need another way of educating our law students to do away with the ‘just don’t get caught’ and ‘ethics don’t pay the rent (or the BMW)’ ethos,” Nic Swart, the chief executive of the Law Society of South Africa, said yesterday.
He was addressing delegates at the annual Society of Law Teachers of Southern Africa conference in Durban.
“The public are watching us … as the late (Chief Justice) Pius Langa said, our profession is the guardian of the dignity and integrity of the nation.
“We need to make sure that we give effect to what the constitution expects of us, and our customers want to be served with integrity.”
Regarding the requirement that one had to be a “fit and proper person” to be lawyer, he questioned whether all that meant was that one had no criminal or disciplinary record and performed well at an interview when, in fact, it should be looked at far more seriously.
“Ethics means don’t steal, not don’t get caught,” Swart said.
One incident he recounted was when a lawyer would “bribe” someone at a master’s office.
“It took a bag of groceries delivered round the corner at lunchtime for a file to come to the top of the pile. No money changed hands, so there was no trail.”
Swart said he had recently become aware of a matter involving a contract drafted for a property developer which, he said, was “horrifying” in that purchasers had absolutely no protection.
“The complainant was not living in the house, still in his shack, but paying the bond all because of the inefficiencies of the attorney.”
The majority of complaints were about a lack of diligence, about attorneys not caring, not accounting properly and not responding to calls.
“If this is not unethical then I don’t know what is … and yet less than 1% are ever struck off.”
He said there were initiatives under way to instil a “smart people are ethical” branding campaign.
“Students must ask themselves what defines and drives them, because we do not need people who do not have the ability to do what is right.”
Helen Krause, of Rhodes University, said psychological tests and experiments could show up a person’s “blind spot”, particularly when under time or authority pressure.
“The Legal Practices Act is the closest we come to collective statements about values and ideals ... but we also need to debate and analyse the students’ own views on what the legal system can and should achieve. And they need to become aware of their own dispositions,” she said.
KwaZulu-Natal Judge President Achmat Jappie said lawyers, like funeral directors and doctors, “lived on the misery of others” but were the most despised.
“There is an immediate conflict of interest with every client. The client wants the case resolved quickly and cheaply and the lawyer wants to drag it out to make it more expensive.”
He cautioned that lawyers were not hired guns but the foot soldiers of the constitution, whose ultimate role was to administer justice.
“Yes, they defend people who are guilty. But they are not there to judge. That is up to the court. They are there to present all arguments in favour of their clients.
“But they need to do it with the highest standard of integrity.”
His advice to young lawyers when faced with ethical dilemmas was: “If what you are about to do is something you don’t want to read about in a newspaper, then don’t do it. If you don’t want anyone else to know about it, then you should definitely not do it.”
Professor Tshepo Mongalo, president of the Society of Law Teachers of Southern Africa, said it was incumbent upon legal academics – particularly those who taught commercial law – to demystify the belief that a legal qualification was a sure guarantee of a life of luxury.
The conference, hosted by Varsity College, continues for another two days.
The Mercury