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 Table of contents

Table of conTenTs

Page

Introduction vi

study unit 1: The legal profession 1

1 Learning outcomes 1
2 Introduction 1
3 The legal profession 1
4 The attorney profession 2
4.1 What do attorneys do? 3
4.2 Admission requirements 3
4.2.1 Attorneys 3
4.2.2 Conveyancers and notaries 4
4.3 Professional associations 5
4.3.1 Law Society of South Africa 5
4.3.2 Attorneys Fidelity Fund 6
4.4 Regulated profession 6
4.4.1 Trust and business money 6
4.4.2 Trust and business accounts 7
4.4.3 Accurate and detailed bookkeeping records 10
4.4.4 Auditing of trust accounts 10
4.4.5 Reporting to and inspection by the Law Society 10
4.4.6 Fidelity fund certificates 10
4.4.7 Interest earned on trust monies 11
4.4.8 Sharing of fees 11
4.4.9 Ethical rules prescribed by the law societies 12
4.5 Reserved work and exclusivity of profession 12
4.5.1 Drafting and preparation of certain legal
documents 12
4.5.2 Pretending to be an attorney, coveyancer
or notary 13
4.5.3 Practising as an attorney, conveyancer or
notary 13
4.5.4 Court appearances 13

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Table of contents

Page

5 The advocate profession 17

5.1 What do advocates do? 17
5.2 Admission requirements 18
5.3 Professional associations 19
5.3.1 General Council of the Bar of South Africa 19
5.3.2 Independent Association of Advocates 19
5.4 Regulated profession 20
5.4.1 Referral profession 20
5.4.2 Sharing of fees 20
5.4.3 Ethical rules prescribed by the Bar 20
5.5 Exclusivity of profession and reserved work 20
5.5.1 Pretending to be an advocate 20
5.5.2 Practising as an advocate 21
5.5.3 Court appearances 21
6 A comparison of the attorney profession
and the advocate profession 21
7 The difference between paralegals
and legal professionals 23
7.1 Qualifications 23
7.2 Admission requirements 23
7.3 Professional associations 24
7.4 Regulated profession 24
7.5 Exclusivity of work 25
8 Conclusion 26
9 Self-assessment 26
10 Sources referred to in this study unit 27

study unit 2: The law firm 28

1 Learning outcomes 28
2 Introduction 28
3 What is a law firm? 28
4 People working at a law firm 29
4.1 Attorneys and candidate attorneys 29
4.2 Administrative staff 29
4.3 Human resources 30
4.4 IT support 30
4.5 Bookkeeping staff 30
5 Structure of a law firm 30
5.1 Office administration and bookkeeping 31
5.2 Legal departments 31
6 Role of paralegals in a law firm 32
7 Conclusion 33
8 Self-assessment 34
9 Sources referred to in this study unit 34

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 Table of contents

Page

study unit 3: ethical considerations 35

1 Learning outcomes 35
2 Introduction 35
3 What is ethics? 35
3.1 The difference between ethics and morality 36
3.2 When is an act unethical? 36
4 Approaches to ethical problems 37
4.1 Deontological ethics (rule-governed ethics) 37
4.2 Utilitarianism (consequences) 38
4.3 Virtue ethics (personal moral virtue) 39
4.4 A quick ethics test 41
4.5 Consequences of unethical behaviour
by paralegals 42
5 Specific ethical guidelines for
paralegals 42
5.1 Accepting instructions 42
5.2 The mandate 42
5.3 Confidentiality and privilege 42
5.4 Conflict of interest 44
5.5 Competence and diligence 46
5.6 Financial matters 47
5.7 Trust accounting 48
5.8 Paralegals and billing 48
6 Conclusion 49
7 Self-assessment 50
8 Sources referred to in this study unit 50

Glossary 51

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Introduction

InTRoDUcTIon

DeaR sTUDenT
Welcome to the module, business Practice and Workplace ethics
bWe1501!

In the module Introduction to Paralegal studies PaR1501, you were

introduced to paralegal practice. You know by now that there is a big difference
between a paralegal and a lawyer (legal professional). For example, you know
that lawyers are generally divided into two groups, namely attorneys and
advocates, and you have a basic idea about what they do.

In this module we want to teach you more about the legal profession, the legal
professionals themselves and what important ethical rules must be considered
in legal practice.

bWe1501 consists of the following study units:

o study unit 1: The legal profession

In this study unit we will look at the attorney profession and the advocate
profession in detail. We will also show what other differences exist between
paralegals and legal professionals.

o study unit 2: The law firm

In this study unit we will look at a law firm, the people who work in a law firm
and the structure of a law firm. We will also look at the role that paralegals
play in law firms.

o study unit 3: ethical considerations

In this study unit we will look at what ethics is and what ethical considerations
are applicable to paralegals. We will also look at how paralegals should
apply these ethical rules to everyday practice.

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 Introduction

How to use this study Guide:

1. There is no prescribed textbook for this module. You must study
this Study Guide together with the other tutorial letters for this module.
2. At the beginning of each study unit there is a block with the heading
“learning outcomes”. The contents of these blocks set out the
most important aspects covered in each specific study unit. At the end
of each study unit you should refer back to the learning outcomes
to ensure that you have attained the outcomes and can apply them to
that study unit.
3. You will notice that various activities are set out in this module. You
will need to work through all the activities on your own. We will provide
feedback in a further Tutorial Letter 201 so that you can assess whether
or not you answered the activities completely and correctly. It is very
important that you complete all the activities before you look at Tutorial
Letter 201 so that you can see what you understand and what you
do not understand about the work covered in this module. Keep all
your answers to the activities so that you can refer back to them when
working through the tutorial letters.
4. As this module is an introductory course, you will be provided with
some background information about the legal profession. This
background information is necessary for you to understand the legal
profession, but we will not examine you on these aspects. All such
discussions will contain an icon at the beginning which will indicate that
you do not have to study the sections for assignment or examination
purposes. Do not merely ignore these sections but read through them
attentively as they will help you understand the legal profession better
and will provide you with the background needed to understand the
other work covered in this module.
5. You will encounter many new terms throughout this module. Where
necessary we have explained certain terms throughout this Study Guide
as they are introduced to you. However, this Study Guide may also
contain other terms which might be unfamiliar to you. You will find a
glossary at the end of this Study Guide which contains an alphabetical
list of all these terms and their meanings. Such terms are indicated in
italics throughout this Study Guide when used for the first time.
6. At the end of each study unit (including at the end of this section) there
is a heading called “sources referred to in this study unit”.
These paragraphs indicate the sources used to compile this module
and you do not have to study them for assignment or examination
purposes. Of course, you are welcome to look at these sources if you
would like to know more about the specific subject.

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Introduction

7. We have used icons to indicate important information that will assist

you in using this Study Guide. The following icons will be used:

This icon indicates an activity.

This icon indicates that the specific paragraph forms

part of background information and will not
be formally examined in your assignments or the
examination. You should read through these sections
attentively but do not have to study them.
This icon indicates very important information
that will definitely form part of your assignments and
your examination.

We trust that you will enjoy this module and wish you success in your studies.

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 Study unit 1: The legal profession

sTUDy UnIT

1
The legal profession

1. leaRnInG oUTcomes
When you have worked through this study unit you should be able to
o summarise the important characteristics of the attorney profession
o summarise the important characteristics of the advocate profession
o compare the attorney profession and the advocate profession
o differentiate between paralegals and other legal professionals
o evaluate the consequences of performing prohibited actions reserved for
the legal profession

2. InTRoDUcTIon
Just like paralegals, legal professionals work in all sectors of society. Legal
professionals include attorneys, advocates, legal advisors and law graduates
employed by the Family Advocate, the Master of the High Court, the Public
Prosecutor, the State Attorney and the State Law Advisor. These five institutions
form part of government.

It is impossible to discuss all the careers that legal professionals can follow.
For the purposes of this module we will focus on the two main careers in the
legal profession, namely the attorney profession and the advocate profession.
As a paralegal, you will be required to know the difference between these two
professions and the relationship between the two, and where you as a paralegal
fit into this relationship.

3. THe leGal PRofessIon

In study unit 1 of the module Introduction to Paralegal studies: PaR1501
you learnt the main characteristics of a paralegal namely:

o A paralegal is not a legal professional (lawyer)

o A paralegal has a basic knowledge of the law
o A paralegal obtains his/her legal skills or knowledge through education,
training and work experience
o A paralegal works under the supervision of a legal professional
o A paralegal can be employed at different places

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Study unit 1: The legal profession

You also learnt the main differences between legal professionals (attorneys and
advocates) and paralegals. We summarised the main differences in the table
below:

legal professional (lawyer) Paralegal

Has a law degree Does not have a law degree but has one or more of the
following:
A paralegal diploma Received
informal legal training Practical
legal experience

attorney advocate law firm paralegals community-based

paralegals
Works at a law firm Does not work at a law Works at a law firm Works at a community
firm centre
Works directly with Receives work from an Works under the direct Works independently but
clients attorney supervision of an attorney refers work to an attorney
where necessary
Does all types of Specialises in court work
legal work

You learnt that attorneys and advocates are legal professionals who have a
law degree, while paralegals do not. However, there are further requirements
a law graduate must meet before he or she may be admitted as an attorney
or an advocate.

You further learnt that attorneys usually work in law firms and work directly with
the public, while advocates specialise in court work and may only accept work
from an attorney. This distinction also needs further exploration.

In this module we will be expanding on both these issues so that you will have
a better idea of where you, as a paralegal, fit into the legal profession.

4. THe aTToRney PRofessIon

As previously mentioned attorneys work with the public and are usually the first
points of contact when someone wants to obtain professional legal advice. This
means that attorneys have a broad knowledge of the law in order to provide
legal advice across different legal fields.

The fact that attorneys work with the general public has led to the attorney
profession being highly regulated. The profession is governed and regulated
by the Attorneys Act 53 of 1979 and the regulations issued in terms of this Act.
The reason for such vigorous regulation is because there is a trust relationship
between an attorney and his or her client. This means that the client does not
understand the legal rules and procedures and trusts that his attorney will protect
his or her rights and give him or her sound advice. It also happens regularly that
an attorney holds his client’s money in trust for a certain purpose and there are
specific rules governing when and how an attorney may hold money in trust on
behalf of his client. You will learn more about this specific issue below.

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 Study unit 1: The legal profession

4.1 What do attorneys do?

Attorneys are engaged in a large variety of legal work. This can include civil
matters, criminal matters, commercial work, labour law, property law, family law,
estate planning and tax planning. Attorneys also accept instructions from various
types of client, for example individuals, companies, banks and associations.

Owing to the fact that some of the areas of law can be complex, some attorneys
specialise in a specific field. However, many attorneys still engage in general
legal work across various fields and these attorneys are known as general law
practitioners.

Attorneys may appear in the lower courts (eg magistrates’ courts) and some
attorneys may even appear in the higher courts (eg the High Court). However,
attorneys generally make use of advocates to appear in court, especially
in complex legal matters.

Generally, attorneys do the following:

o consult with clients to take instructions and provide legal advice

o research legal principles applicable to a specific case
o draft legal documents (eg legal opinions, court documents and contracts)
o vet legal documents (eg legal opinions, court documents and contracts)
o correspond with clients, advocates, opposing parties and government
institutions
o appear in courts or other tribunals on behalf of clients
o attend to legal negotiations and settlement talks

4.2 admission requirements

4.2.1 Attorneys
Before someone may practice as an attorney, that person must be admitted
as an attorney by the High Court. The Attorneys Act prescribes the minimum
requirements that must be met before the High Court may admit someone as
an attorney. The main requirements can be summarised as follows:

o Prescribed age
The candidate must be 21 years of age or older.

o south african citizen or permanent resident

The candidate must be a South African citizen or have the right of permanent
residence in South Africa and be an ordinary resident of South Africa.

o law degree
Currently, a candidate must have an LLB degree before he or she can be
admitted as an attorney. An LLB degree is a bachelor’s degree in law which
takes a minimum of four years to complete. There are exceptions to the
above rule (eg if someone studied law overseas), but all of these exceptions
require a formal law degree.

o fit and proper person

The candidate must be regarded as a fit and proper person. This means
that the candidate must have the necessary personal attributes to practise
as an attorney. This refers to the moral integrity (especially honesty) of the

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candidate and the candidate must state that he or she has not committed any
criminal offence. This does not mean that you are automatically disqualified
from entering the attorney profession if you have been convicted of a criminal
offence, as it is up to the court to assess whether you are a fit and proper
person. However, you will have to explain the circumstances surrounding
the criminal conviction as well as provide the court with proof that you have
been rehabilitated.

o articles of clerkship
Before the candidate may be admitted as an attorney, he or she must have
the necessary practical experience, which is usually served under articles of
clerkship. This means that the candidate must work under the supervision of
an experienced attorney on a full-time basis. The service period differs from
between one and five years depending on different factors. To qualify for
a shorter period of service, the candidate may attend a full-time school for
legal practice for a period of six months. A person serving under articles of
clerkship is called a candidate attorney or an articled clerk. The supervising
attorney is called a principal. Before the Law Society will register articles of
clerkship, the candidate must be interviewed by a senior member of the Law
Society (ie a senior practising attorney) in order to establish whether or not
the candidate is a fit and proper person. The main focus of the interview is to
establish whether or not the candidate has any previous criminal convictions.

o attorneys’ admission examinations

The candidate must have successfully completed the four prescribed attorneys’
admission examinations. These examinations are practically orientated and a
candidate must have completed either a period of six months’ service under
his or her articles of clerkship or he or she must have attended a full-time
school for legal practice for a period of six months before he or she may
write these examinations.

o compulsory practical legal training

The candidate must attend a compulsory practical legal training course. The
course can be either a full-time school for legal practice for a period of six
months or the short course offered by the Law Society for five weeks during
or after the service period under the articles of clerkship.

As you can see from the above, there are many requirements that must be met
before someone may be admitted and practise as an attorney. The requirements
involve formal legal training, practical training and practical experience. These
requirements are all aimed at ensuring skilled attorneys are produced who can
assist the public with legal problems. Once the candidate is admitted by the
High Court to practise as an attorney, the attorney’s name is entered onto the
roll for attorneys which is a register kept by the Registrar of the High Court of
all the names of the attorneys admitted by that court.

4.2.2 Conveyancers and notaries

We have already mentioned that many attorneys specialise in specific legal
fields. Two of the fields in which attorneys may specialise are conveyancing and
notary practice.

Conveyancing deals with rights in respect of immovable or fixed property,

for example the ownership of a farm or a house. Conveyancers attend to the

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 Study unit 1: The legal profession

registration of ownership and other rights in immovable property at the Deeds

Office and the drafting of the documents necessary for such registration.

Notary practice refers to the practice of drafting, executing and registering notarial
deeds. Notarial deeds are also registered at the Deeds Office. Notarial deeds
are specialised legal documents that must be executed (signed) by a notary.
Examples of notarial deeds include antenuptial contracts, trust instruments and
deeds of donation. Notaries are obliged to keep a record of all the notarial
deeds executed by them. This record is called a protocol.

Only attorneys may be admitted as conveyancers and notaries after they have
passed the required examinations. After an attorney has passed the conveyancing
or notary examination, he or she may apply to the High Court to be admitted
as a conveyancer or a notary. His or her name will then be entered onto the
rolls for conveyancers or notaries that are kept by the Registrar of that specific
High Court.

4.3 Professional associations

4.3.1 Law Society of South Africa

The Law Society of South Africa is a statutory body created by the Attorneys
Act and aims to represent, promote and educate the attorney profession in the
public interest. It also regulates the profession. The Law Society of South Africa
can be divided into the following law societies:

o The law society of the northern Provinces

This law society covers Gauteng, Limpopo, Mpumalanga and the North
West Province areas.

o The law society of the free state

This law society covers the Free State Province area.

o The cape law society

This law society covers the Northern, Eastern and Western Cape Province
areas as well as the former Transkei and Ciskei areas.

o The KwaZulu-natal law society

This law society covers the KwaZulu-Natal Province area.

Once an attorney is admitted to practise as such, he or she becomes a member

of the law society of the province in which he or she practises. Details of all
practising attorneys (including conveyancers and notaries) for each area are
kept by the specific law society for that area. These records contain the basic
information for that attorney, conveyancer or notary, including his or her name,
date of admission, date and reasons for removal from the roll (if applicable) and
contact details. Attorneys are obliged to update this information as it changes
from time to time. This means that the public can check with the court and the
law societies whether someone who presents him- or herself as an attorney has
in fact been admitted and is permitted to act as such and obtain the contact
details of this attorney.

Section 58 of the Attorneys Act lists the main aims of the Law Society. The most
important aims are the following:

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Study unit 1: The legal profession

o to maintain and enhance the prestige, status and dignity of the profession
o to regulate the exercise of the profession
o to encourage and promote efficiency and responsibility within the profession
o to promote the integrity of practitioners
o to uphold and improve the standard of professional conduct and qualifications
of practitioners
o to provide for the effective control of professional conduct by practitioners
o to represent the general views of the profession

The Law Society enforces ethical rules of conduct issued by the Law Society.
If an attorney is suspected of contravening the provisions of the law or ethical
rules, the Law Society will investigate the matter. In appropriate circumstances
the Law Society may apply to the High Court to have the attorney struck off or
removed from the roll of attorneys, which means that the person may no longer
practise as an attorney.

4.3.2 Attorneys Fidelity Fund

The Attorneys Fidelity Fund is a statutory body established in terms of the
Attorneys’ Admission Amendment and Legal Practitioners’ Fidelity Fund Act
19 of 1941 and governed by the provisions of the Attorneys Act. The purpose
of this fund is to compensate or reimburse clients should their trust money be
misappropriated by an attorney. (You will learn more about trust money below.)
The protection granted by the Attorneys Fidelity Fund encourages the public
to make use of attorneys, conveyancers and notaries. The fund also promotes
the interests of the profession by providing funding for university law clinics and
bursaries for law students.

4.4 Regulated profession

As mentioned above, the attorney profession is regulated by the Attorneys Act
and the regulations issued in terms of this Act. We will discuss the main issues
dealing with regulation of the attorneys’ profession below:

4.4.1 Trust and business money

Generally, trust money refers to the situation where someone holds money
on behalf of someone else. The money does not belong to the person holding
the money and he has to look after the money on behalf of the owner. When
we talk about holding money in trust in the context of the attorney profession,
we are referring to a situation where the client pays money to the law firm, but
the money is not owed to the attorney at the time when it is paid (eg for legal
work that must still be carried out). Sometimes the attorney is never entitled to
this money but must pay the money to a third person (eg the purchase price for
a house that is paid into the attorney’s trust account and only paid to the seller
after the house has been registered in the name of the purchaser).

Trust money will include the following:

o advance deposits to cover legal fees and expenses (eg divorce matters)
o monies collected on behalf of a client (eg debt collection, Road Accident
Fund matters and Workmen’s Compensation Fund matters)

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 Study unit 1: The legal profession

o monies received from other attorneys or opponents where matters have been
successfully concluded (eg where the court case was successful and the court
ordered the opposing party to pay an amount to the client for damages)
o monies received in conveyancing matters (eg the purchase price for a house)

business money refers to all money that is owned by the law firm and that
can be used by the law firm as it deems fit. For example, the firm may use
business money to pay overheads or to divide as profit between the partners.
This is money that is owed to the law firm and has been received for legal
work already done or for expenses already paid in respect of a specific matter
(eg postage costs).

The difference between trust money and business money can be summarised
as follows:
o Trust money is the client’s money.
o business money is the firm’s money.

4.4.2 Trust and business accounts

Generally, attorneys receive and hold large sums of trust funds on behalf of their
clients. It has been said that a client entrusts his or her money to an attorney
because the legal profession is seen as a dignified profession. Unfortunately,
there are attorneys who have acted dishonestly and stolen trust funds belonging
to their clients. Therefore, the Attorneys Act prescribes and regulates the way in
which trust money must be managed by the attorney in question.

Firstly, it is important to remember that only practising attorneys are allowed to

receive and hold trust funds on behalf of their clients.

Secondly, a law firm is required to open and keep separate trust and business
accounts. These bank accounts are always in the attorney’s name or in the name
of the law firm for which the attorney works. For example, Mdlovu Attorneys
will have a trust account called Mdlovu Attorneys Trust Account and a business
account called Mdlovu Attorneys Business Account. Sometimes, people will talk
about a section 78(1) account when they are referring to a trust account. This is
because opening and keeping the trust account is prescribed by section 78(1)
of the Attorneys Act.

Thirdly, trust money must always be paid into the trust account as soon as
possible after it has been received.

Lastly, trust money must be held in the trust account for as long as it remains
the property of the client. No expenses incurred by the firm may be paid from
the trust account; they must be paid from the business account. Money can only
be paid into the business account or transferred from the trust account when
it comes due to the firm.

For example, a client pays a deposit into the trust account for legal work to be
carried out on a matter. When the client pays this money to the firm it is still the
client’s money, as the work has not yet been performed. Therefore, the deposit
is paid into the trust account and is held in trust on behalf of the client.

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Once the legal work has been performed and invoiced to the client, the amount
of money invoiced may be set off against the deposit paid by the client into the
trust account and that amount may be transferred to the business account. This
money has now been earned by the firm and is now owned by the firm to be
used as it deems fit.

When money is received by a law firm, the person receiving the money on behalf
of the firm may not always know whether the money is trust money or business
money. Therefore, many law firms deposit all money into their trust account,
because it is safer to deposit all money in the trust account and then transfer any
money to the business account once it has been established that such money
is owed to the firm. In this way, there is little chance that any trust money may
end up in the business account by mistake. If trust money is mistakenly paid
into the business account by the client, the law firm must transfer such money
to the trust account immediately.

In light of the above discussion you should now see that all monies received by
a law firm will be classified as either trust money or business money and must
be dealt with in the prescribed way.

acTIvITy 1
Mrs Ngcobo wants to institute divorce proceedings against her
husband. She consults with her attorney who advises her that he
is willing to act on her behalf but that he will require a deposit of
R5 000. Mrs Ngcobo decides to pay the deposit as she wants the
attorney to proceed with the divorce proceedings. Answer each of the following
questions separately with reference to the above facts.

(a) Is the R5 000 trust money or business money? Give reasons for your
answer.

answer

(b) After Mrs Ngcobo pays the deposit but before the attorney has proceeded
with the matter, Mrs Ngcobo and her husband reconcile. She tells her
attorney that she no longer wants to proceed with the divorce proceedings
against her husband. Is Mrs Ngcobo entitled to the return of her deposit?
Give reasons for your answer.

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 Study unit 1: The legal profession

answer

(c) Suppose that the attorney prepares a divorce summons, issues the
summons at court and sends the summons to the sheriff to serve on
Mr Ngcobo. However, after Mr Ngcobo receives the summons he and
Mrs Ngcobo talk and decide to give their marriage another chance.
Mrs Ngcobo then talks to her attorney and instructs him not to proceed
with the divorce proceedings. The attorney provides a final settlement
account in respect of the work done for R2 000 in legal fees and R140
for expenses (sheriff’s fee for serving the summons). Please explain what
amount Mrs Ngcobo will be entitled to receive from her attorney and
give reasons in your answer with reference to the difference between
trust and business monies.

answer

feeDbacK on acTIvITy 1
These questions test whether you understand the difference between trust money
and business money. If you have any difficulties with this question refer back
to the work dealt with in sections 4.4.1 and 4.4.2 above. Formal answers to
these questions will be given in a further Tutorial Letter 201.

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4.4.3 Accurate and detailed bookkeeping records

A practising attorney is obliged to keep faithful and detailed records of all trust
monies received. If not, the attorney will be guilty of unprofessional conduct and
may be struck off the roll or suspended, thus being prevented from practising
as an attorney for a specified period of time.

4.4.4 Auditing of trust accounts

Every law firm must submit its accounting records for inspection by accountants
approved by the Law Society. A list of trust balances must be drawn up every
three months showing the exact amounts of funds held on behalf of each client.
In addition, trust accounts must be submitted for an annual audit. An audit is
when a qualified accountant or auditor goes through all your bookkeeping
records to determine whether or not you have followed the correct bookkeeping
procedures.

4.4.5 Reporting to and inspection by the Law Society

After the auditors have completed the audit and have found no irregularities
they provide a certificate to this effect which must then be submitted to the Law
Society. This certificate states that the trust funds are intact and that all legal
requirements have been met. If the auditors have found any irregularities they
will report this to the Law Society and the Law Society will investigate the matter
to determine whether the attorney has acted unlawfully or unethically. If the Law
Society determines that the attorney has acted unlawfully or unethically they may
apply to the High Court to suspend or strike that attorney off the roll of attorneys.

In addition to the above reporting requirement, the Law Society may also inspect
an attorney’s bookkeeping records to ensure that the provisions of the Attorneys
Act have been met. If an attorney refuses to provide the Law Society with access
to his accounting records, the attorney will be guilty of unprofessional conduct
and may be struck off the roll or suspended from practising as an attorney for
a specified period of time.

It is very important for an attorney to ensure that trust money is dealt with in
the correct way and that it is not misappropriated. Special legal bookkeeping
software programs exist that assist in managing trust money in the correct way. A
good bookkeeper who understands the difference between these two concepts
and knows how to manage trust and business money is priceless to any law
firm, although it remains the attorney’s responsibility to ensure that trust money
is managed correctly.

4.4.6 Fidelity fund certificates

In terms of section 41 of the Attorneys Act, attorneys practising for their own
account or in partnership must be in possession of a fidelity fund certificate.
(You will learn when an attorney is practising for his or her own account or in
partnership in study unit 2 below.) A fidelity fund certificate is issued by the
Attorneys Fidelity Fund.

As every law firm will have at least one attorney practising for his or her own
account, every law firm should be in possession of at least one fidelity fund
certificate. Fidelity fund certificates are issued for one year only, which means

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that law firms must apply every year for a new certificate. The certificate must
be displayed in a prominent place in the law firm’s office.

Failure to comply with this rule may have two consequences. Firstly, the attorney
practising without a fidelity fund certificate will not be entitled to any fee or reward
for any professional services rendered. Secondly, such a person will be guilty
of a criminal offence. The penalty applicable is a fine of not more that R2000
and/or imprisonment for a period not exceeding six months.

When you refer a client to an attorney, you should ensure that the law firm you
are referring the client to has a current, valid fidelity fund certificate. If you have
been at the law firm’s office you should see a recent fidelity fund certificate on
the wall. If not, ask the attorney to provide you with a copy of the law firm’s
fidelity fund certificate or phone the relevant Law Society and confirm that the
firm has been issued with the required fidelity fund certificate.

4.4.7 Interest earned on trust monies

You may wonder what happens to the interest that is earned on any trust money.
The interest earned is not the firm’s money but must be paid over to the Attorneys
Fidelity Fund. This is the main source of income for the Fund and is used to
reimburse clients who are victims of trust fund theft and to provide funding and
bursaries to promote the interests of the attorney profession.

The nett interest earned on trust monies must be paid to this fund twice a year.
The nett interest refers to the interest earned on the trust money less the banking
charges. Thus:

Nett interest = interest earned less banking charges

There is an exception to the above rule. If the client specifically gives instructions
to the effect that his or her trust money must be invested on his or her behalf, the
attorney will do so and the interest will then accrue to the client. Such accounts
are referred to as section 78(2A) accounts, as this section in the Attorneys Act
governs these accounts.

Please note that the above rule applies to trust money only and is not
applicable to business money. Interest earned on business money belongs
to the firm, as business money belongs to the firm!

4.4.8 Sharing of fees

Attorneys may not share any of their fees by way of a partnership, commission,
allowance or in any other manner with someone who is not an admitted attorney
in South Africa. This means that attorneys may not share any fees with advocates,
paralegals, foreign attorneys or members of the public. Therefore, attorneys
may only share their fees with other attorneys. This rule is intended to prevent
solicitation of clients by paralegals for profit and to avoid the unauthorised
practice of law by paralegals. Contravention of this rule is a criminal offence.

BWE1501/1 11
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4.4.9 Ethical rules prescribed by the law societies

We have already mentioned that once a person is admitted as an attorney they
automatically become members of the specific law society for that area. This also
means that they are automatically subject to the rules of that law society and that
law society may take action to enforce these rules with regard to members. This
enforcement may include the instituting and holding of disciplinary proceedings
and applying to the High Court for the suspension or removal of that attorney
from the roll of attorneys.

4.5 Reserved work and exclusivity of profession

It is clear that the attorney profession is heavily regulated and for good reason
(to protect the public and to ensure good quality legal services). As such, there
must be rules to ensure that only attorneys provide certain legal services and
may hold trust monies on behalf of clients in legal matters. We will discuss
these rules below.

4.5.1 Drafting and preparation of certain legal documents

Section 83(8) of the Attorneys Act states that only an attorney may draw up,
prepare or cause to be drawn up or prepared the following documents for
financial gain:

o an agreement, deed or document relating to immovable property or any

right in or to immovable property (other than lease contracts for less than
five years, conditions of sale or broker’ notes)
o a will or other testamentary document
o a memorandum or articles of association or prospectus of any company
o an agreement, deed or document relating to the creation or dissolution or
amendment of a partnership
o any document relating to or required or intended for use in any action, suit
or other court proceeding in a court of civil jurisdiction in South Africa

Contravention of this section is a criminal offence and can lead to a fine of not
more than R2 000. Failure to pay any fine may lead to a term of imprisonment
not exceeding six months.

There is also other work that is specifically reserved for attorneys, conveyancers
or notaries in terms of other laws and rules. The laws and rules governing the
specific legal field will prescribe when any work may only be performed by an
attorney, conveyancer or notary. When you are practising in a specific legal
field, you should always check whether or not the specific rules do not preclude
you from performing certain work. For example, the Deed Registry Act 47 of
1937 deals with various issues in respect of the registration of various deeds.
In terms of section 87 of this Act, for example, only a notary may draw up and
sign an antenuptial contract that will be registered in the Deeds Office.

Please note that a person drawing up or preparing any of the above documents
in the course of their employment on behalf of their employer (if such an employer
is an attorney) will not be guilty of a criminal offence. This is because the attorney
is overseeing the work of the employee and takes responsibility for the work
carried out by the employee. This means that a paralegal working at a law firm
under the supervision of an attorney who receives instruction to prepare one of
these documents will not be committing a crime in doing so.

12
 Study unit 1: The legal profession

4.5.2 Pretending to be an attorney, conveyancer or notary

It is a criminal offence to misrepresent yourself as, or pretend to be, an attorney,
conveyancer or notary if you are not admitted or permitted to act as such. Section
83(1) of the Attorneys Act states that you may not make use of any name, title
or addition or description implying or creating the impression that you are an
attorney, conveyancer or notary or perform any act which may only be performed
by an attorney, conveyancer or notary. Contravention of this section can lead
to a criminal conviction and a fine of not more than R2 000 for each offence
(ie for each time you pretend to be an attorney).

Section 83(10) of the Attorneys Act states that if you directly or indirectly purport
to act as an attorney, conveyancer or notary without a fidelity fund certificate, you
are also guilty of a criminal offence. The penalty then applicable is a fine of not
more that R 2 000 and/or imprisonment for a period not exceeding six months.

4.5.3 Practising as an attorney, conveyancer or notary

Even if you do not misrepresent yourself as an attorney, conveyancer or notary,
section 83(10) also prohibits you from practising as an attorney, conveyancer or
notary for your own account or in partnership without a fidelity fund certificate.
This means that you may not carry out work that is exclusively reserved for
attorneys or that is traditionally carried out by attorneys, conveyancers or notaries
for your own account or in partnership. The penalty applicable is a fine of not
more that R2 000 and/or imprisonment for a period not exceeding six months.

For example, if you receive trust money from clients and hold such money in
trust for legal work without a fidelity fund certificate you will also be guilty of
contravening the above law, as only attorneys may hold money in trust provided
they are in possession of the prescribed fidelity fund certificate.

4.5.4 Court appearances

In terms of section 3 of the Right of Appearance in Courts Act 62 of 1995, any
attorney may appear on behalf of another person in any court in South Africa
except the High Courts and the Constitutional Court. However, an attorney may
apply to the registrar of the High Court to appear on behalf another person in
the High Courts and Constitutional Court. Candidate attorneys have limited
rights to appear on behalf of other persons in the magistrates’ courts.

A paralegal may not appear on behalf of another person in any court. However,
each tribunal or board will have its own rules in respect of who may appear
and in some tribunals a person may not be represented by an attorney. You will
need to check with each tribunal whether or not you may represent the client.

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acTIvITy 2
(a) You are a paralegal working at a community centre. You
consult with a client and realise that the matter should be
referred to an attorney. You ask around and Mr Ntsimang is
recommended. You go and see Mr Ntsimang to discuss the
possible referral. Nowhere in Mr Ntsimang’s office do you
see a fidelity fund certificate and Mr Ntsimang avoids any questions you
ask in this regard except to assure you that he is an attorney. What do you
think would be the best action you could take in the above circumstances?
Please discuss all the possible options, taking into account what you have
learnt about the attorney profession above.

ans wer

(b) You are a paralegal working at Ndlovu and Mhlangu Attorneys. Your
supervising attorney provides you with the necessary documents and
instructs you to prepare the first draft of a will for one of his clients. You
do as you are told and then give him the first draft to check and make
amendments. Are you guilty of a criminal offence? Give reasons for
your answer.

14
 Study unit 1: The legal profession

ans wer

(c) As a paralegal working on your own in a community, you open and

maintain a trust account. You are the only person who has signing powers
on this account and the only person administering this trust account. Is
this acceptable and what are the possible consequences?

ans wer

(d) You are a paralegal working at a community centre. When you have
to refer a matter to an attorney you always refer the client to a law firm
that pays you a set amount for each referral. Is this permissible? What
are the consequences of such action?

BWE1501/1 15
Study unit 1: The legal profession

answer

(e) You are a paralegal working at a law firm. You are paid on an incentive
basis based on a percentage of the fees paid by any new clients you
bring to the firm. Is this permissible and what are the consequences of
such actions?

answer

feeDbacK on acTIvITy 2
These questions deal with different aspects of the work covered in section 4.4
and section 4.5 above. If you have any difficulty with these questions, please
refer back to these sections. Formal feedback will be provided in a further
Tutorial Letter 201.

16
 Study unit 1: The legal profession

5. THe aDvocaTe PRofessIon

When we were discussing the attorney profession, we mentioned that attorneys
work with the public and are usually the first point of contact when someone
wants to obtain professional legal advice. This means that attorneys have a
broad knowledge of the law in order to provide legal advice across different
legal fields.

While attorneys generally provide a large variety of legal services directly to the
public, advocates specialise in preparing and presenting cases in court. They also
tend to specialise in a specific field of law. For these reasons, advocates do not
accept instructions directly from the public, but receive instructions from attorneys
who need specialised services in a specific matter. Generally, these services
are to present a case in court or to provide a legal opinion on a specific issue.

Advocates work independently and for their own account. In other words, they
are sole practitioners and do not form law firms with each other or with attorneys.

Sometimes, advocates are also referred to as “counsels”. Advocates are divided

into junior counsels and senior counsels. Advocates with extensive experience
and expertise and with more than 10 years of practice may be appointed as
“senior counsels” and are also referred to as “silks”. Silks usually wear a silk
robe which is different to the robe worn by junior counsels. Silks usually appear
together with a junior counsel in large and complex cases.

5.1 What do advocates do?

Advocates accept instructions from the attorney representing the client and
may not accept instructions directly from the public. Therefore, the advocate
profession is referred to as a referral profession.

When an attorney instructs an advocate to handle a specific matter, we usually

say that the attorney briefs the advocate on the case. The advocate is provided
with copies of all the relevant documents and information the attorney has on
file with the attorney’s instructions (eg to draft a certain court document or
attend to the hearing of the matter in court). This bundle of documents with
instructions is called a brief.

All advocates have the right to appear in all courts in South Africa, including
the magistrates’ courts, the High Courts, the Supreme Court of Appeal and the
Constitutional Court.

Generally, advocates do the following:

o research legal principles applicable to a specific case

o draft legal documents (especially court documents and those that entail complex
legal opinions)
o vet legal documents (eg legal opinions and court documents drafted by
attorneys before such documents are finalised)
o prepare legal arguments (called heads of argument) for use in court
o appear in courts or other tribunals on behalf of clients
o attend to legal negotiations and settlement talks prior to and during court
proceedings

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You will have noticed that there is an overlap between the things that attorneys
and advocates do. It sometimes happens that a case is not so legally complex
and an attorney may feel confident enough to handle the drafting of the court
documents and the court appearance him- or herself. As advocates are specialists
in presenting court cases, their fees for such work is higher than those charged
by attorneys and it is not economical to use advocates for every court case.
However, the more legally complex a matter, the more likely it is that an advocate
will be briefed to present the client’s case in court.

5.2 admission requirements

Before someone may practise as an advocate, that person must be admitted
as an advocate by the High Court. The Admission to Advocates Act 74 of 1964
prescribes the minimum requirements that must be met before the High Court
may admit someone as an advocate. The main requirements for admission as
an advocate can be summarised as follows:

o Prescribed age
The candidate must be 21 years of age or older.

o south african citizen or permanent resident

The candidate must be a South African citizen or have the right of permanent
residence in South Africa and be an ordinary resident of South Africa.

o law degree
A candidate needs a law degree to be admitted as an advocate.

o fit and proper

The candidate must be regarded as a fit and proper person. This means that
the candidate must have the necessary personal attributes to practise as an
advocate. This refers to the moral integrity (especially honesty) of the candidate
and the candidate must state that he or she has not committed any criminal
offence. This does not mean that you are automatically disqualified from
entering the advocate profession if you have been convicted of a criminal
offence, as it is up to the court to assess whether you are a fit and proper
person. However, you will have to explain the circumstances surrounding
the criminal conviction and provide the court with proof that you have been
rehabilitated.

o may not be on the roll of attorneys

If the candidate has previously been admitted as an attorney, he or she
must have his or her name removed from the roll of attorneys before he or
she may be admitted as an advocate. Therefore, it is impossible to be an
attorney and an advocate at the same time.

Once the candidate has been admitted by the High Court to practise as an
advocate, the advocate’s name is entered onto the roll for advocates. This is a
register of all the names of advocates admitted by that court and is kept by the
Registrar of that High Court.

Although it is not required, it is customary for an advocate to join one

of the bars. The General Council of the Bar of South Africa is the body that
represents the advocate profession in South Africa and its main purpose is to
ensure that members maintain professional standards. The Bars offer professional

18
 Study unit 1: The legal profession

training to advocates who want to join the Bar. The professional training consists of
a one-year apprenticeship (called a pupilage) and the passing of an examination
and the successful completion of this training is a requirement for joining the
Bar. This training tests the candidate’s practical ability to perform the duties of
an advocate. During the pupilage, the candidate (called a pupil advocate) will
work under an experienced advocate in order to observe the workings of the
profession.

5.3 Professional associations

5.3.1 General Council of the Bar of South Africa

As mentioned above, the advocate profession is represented and regulated by
the General Council of the Bar of South Africa (GCB). The term “Bar” is used
to refer to societies of advocates. As such, the GCB is made up of the different
advocate societies or Bars found in South Africa, namely:

o The Cape Bar

o Free State Society of Advocates
o Eastern Cape Society of Advocates (Port Elizabeth)
o Eastern Cape Society of Advocates (Grahamstown)
o Society of Advocates KwaZulu-Natal (Durban)
o KwaZulu-Natal Pietermaritzburg Bar Council
o Pretoria Society of Advocates
o Johannesburg Society of Advocates (Witwatersrand)
o Northern Cape Society of Advocates
o Bisho Society of Advocates
o North West Bar Association
o Society of Advocates Transkei

The most important objectives of the GCB are the following:

o to deal with all matters affecting the profession and to take action if necessary
o to uphold the interests of advocates in South Africa

Generally, the GCB aims to maintain professional standards and conduct among
its members and to enforce discipline when necessary. The Bars enforce ethical
rules of conduct issued by the GCB called the Rules of Professional Ethics. If
an advocate is suspected of contravening the law or ethical rules, the specific
Bar investigates the matter and may, in the appropriate circumstances, apply to
the High Court to have the advocate expelled from the profession. If the court
grants the expulsion order the person may no longer practise as an advocate.

5.3.2 Independent Association of Advocates

The Independent Association of Advocates was established in 1994 for advocates
who are not members of the Bars. Such advocates are still bound by the rules
of the Bar which can be enforced by the courts on application from that specific
Bar. However, the Bars may not institute disciplinary proceedings against non-
member advocates who do not adhere to the rules.

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5.4 Regulated profession

As advocates are professionals and specialists, the advocate profession is also
regulated by laws and rules. Specifically, this profession is regulated by the
Admission to Advocates Act and the rules issued by the Bar. We will look at the
main aspects dealing with the regulation of the advocate profession.

5.4.1 Referral profession

As mentioned before, advocates may not accept instructions directly from the
public. If an advocate does accept instructions directly from the public the
advocate will be guilty of unprofessional conduct that may lead to him or her
being suspended or struck off the roll of advocates.

The reason for this rule is that it promotes specialisation and the independence of
the advocate profession and is therefore in the public’s interests. Furthermore, if
advocates were allowed to receive instructions directly from clients, there would
be no laws or rules governing trust funds and the protection of trust funds from
misappropriation or theft.

5.4.2 Sharing of fees

In terms of section 9(2) of the Admission of Advocates Act, an advocate
may not share any portion of his professional fees (whether by way of
partnership, commission, allowance or any other manner) with any other person
who is not practising as an advocate. This means that advocates may not
share any fees with attorneys, paralegals or members of the public. Therefore,
advocates may only share their fees with other advocates. Contravention of this
rule is a criminal offence.

5.4.3 Ethical rules prescribed by the Bar

Advocates who are members of the Bar must comply with the ethical rules that
are prescribed by the Bar. If members do not comply with the prescribed rules,
the Bar may enforce these rules. This enforcement may include the instituting
and holding of disciplinary proceedings and applying to the High Court for the
suspension or removal of that advocate from the roll of advocates.

We have dealt with some of the rules that will be relevant to paralegals, but
there are many rules that we have not discussed. Some of the ethical rules that
should be observed by paralegals are also applicable to advocates. These will
be discussed in study unit 3 below.

5.5 exclusivity of profession and reserved work

5.5.1 Pretending to be an advocate

It is a criminal offence to misrepresent yourself as, or pretend to be, an advocate
if you have not been admitted or permitted to act as such. Section 9(1) of the
Admission of Advocates Act states that you may not make use of any name,
title or addition or description implying or tending to induce the belief that you
are an advocate or may perform any act which may only be performed by an
advocate. Contravention of this section can lead to a criminal conviction with
a fine of not more than R200 and/or twelve months imprisonment.

20
 Study unit 1: The legal profession

5.5.2 Practising as an advocate

Even if you do not misrepresent yourself as an advocate, section 9(1) also
prohibits you from practising as an advocate. This means that you may not carry
out work that is exclusively reserved for advocates or that is traditionally done by
advocates. Again, contravention of this section can lead to a criminal conviction
with a fine of not more than R200 and/or twelve months imprisonment.

5.5.3 Court appearances

In terms of section 2 of the Right of Appearance in Court Act, any advocate
shall have the right to appear on behalf of another person in any South African
court. From our discussion above in respect of attorneys, you already know that
paralegals may not appear in court on behalf of another person.

6. a comPaRIson of THe aTToRney PRofessIon

anD THe aDvocaTe PRofessIon
Now that you have learnt all about the attorney profession and the advocate
profession, you should be able to compare them and identify and discuss the
similarities and the differences between them.

acTIvITy 3
Below is a table that summarises some of the most important
differences between the attorney profession and the advocate
profession. Please insert the missing information and add a few
differences between the professions that you have identified yourself.

attorney profession advocate profession

Attorneys work directly with the public.

Advocates specialise in preparing

and presenting cases in court.

This profession is represented and

controlled by the Law Society of South
Africa.

Admission to this profession requires In order to join the Bar an advocate

articles of services for a period of one must ___________________
to five years.
________________________

This profession is governed and

regulated by the Admission of
Advocates Act.

BWE1501/1 21
Study unit 1: The legal profession

attorney profession advocate profession

Trainee at torneys are called Trainee advocates who want to

___________________________. join the Bar are called _________

Advocates may appear in all

the South African courts when
representing a client.

feeDbac K on acTIvITy 3
Formal feedback will be provided in a further Tutorial Letter 201.

acTIvITy 4
List five similarities between the attorney profession and the advocate
profession.

answer

22
 Study unit 1: The legal profession

feeDbac K on acTIvITy 4
Formal feedback will be provided in a further Tutorial Letter 201.

7. THe DIffe Rences beTWeen PaR aleGals anD

leGal PRofessIonals
You have learnt a lot about the legal profession and the differences between
attorneys and advocates. You should now be in a better position to understand
the differences between paralegals and legal professionals and be able to
identify whether someone is a legal professional or not. We have identified the
main differences between paralegals and legal professionals below:

7.1 Qualifications
Legal professionals are law graduates, which mean that most of them have
law degrees. In contrast, paralegals do not have law degrees, but will be in
possession of a diploma in law (formal tuition), will have attended workshops
or short courses on law (informal tuition), or will have extensive work experience
as a paralegal.

7.2 admission requirements

You should know by now that the legal profession prescribes further requirements
before law graduates may be admitted as attorneys or advocates in South Africa.
In study unit 3 of Introduction to Paralegal studies PaR1501 you learnt
that paralegal practice is not formally recognised as a profession or a career and
therefore there are no formal admission requirements for becoming a paralegal.
You also learnt that there are movements that are working towards the formal
recognition and regulation of paralegals in South Africa in order to enhance
the paralegal profession and protect public interests. In all probability, there
will be formal admission requirements for paralegals sometime in the future.

acTIvITy 5
Look at the following words and circle all the words you think refer
to a paralegal:

legal advisor notary lawyer’s assistant

legal services assistant paralegal specialist attorney
attorney assistant candidate attorney magistrate
legal clerk judge filing clerk
document clerk conveyancer lawyer’s aide
lawyer legal secretary legal assistant
legal typist public prosecutor

Which of these words are not associated with paralegals and why do you think so?

BWE1501/1 23
Study unit 1: The legal profession

answer

feeDbac K on acTIvITy 5
Formal feedback will be provided in a further Tutorial Letter 201. If you have
any difficulties with this question refer back to section 2 and section 3 above.

7.3 Professional associations

The attorney profession is represented by the Law Society of South Africa. The
Attorneys Fidelity Fund also promotes the interests of the attorney profession while
protecting the public against theft and dishonesty by attorneys. The advocate
profession is represented by the General Bar Council of South Africa. Advocates
who are not members of the Bar form part of the Independent Association of
Advocates.

In contrast, the paralegal profession is represented and promoted by the

National Community Based Paralegal Association and the National Paralegal
Institute. (Refer back to study unit 3 of Introduction to Paralegal Practice:
PaR1501.)

7.4 Regulated profession

Both the attorney profession and the advocate profession are regulated by laws
and rules that are enforced by their different professional associations and the
courts. The attorney profession is regulated mainly by the Attorneys Act and
the ethical rules issued by the Law Societies. These laws and rules are enforced
by the Law Societies and the High Court. The advocate profession is regulated
mainly by the Admission of Advocates Act and the rules issued by the General
Council of the Bar in South Africa. These laws and rules are enforced by the
Bars and the High Court.

24
 Study unit 1: The legal profession

In contrast, you learnt in study unit 3 of Introduction to Paralegal studies:

PaR1501 that there are no laws or rules governing and regulating paralegal
practice. However, the National Paralegal Institute is busy addressing the training
issues of and ethical codes for paralegals in order to obtain formal recognition
for paralegals and to regulate paralegal practice.

7.5 exclusivity of work

In this Study Guide you learnt that there is certain work that may only be
performed by attorneys and advocates. You also learnt that only an admitted
attorney or advocate may represent themselves as such and may practice as
an attorney or advocate. Therefore, paralegals may not carry out any of the
above actions that are reserved for the attorney and the advocate professions.

As a paralegal, you must ensure that you understand what you are not permitted to
do and that you never engage in any of these prohibited actions, as contravention
of these laws and rules have serious consequences!

acTIvITy 6
Look at the following actions and consider whether or not a
paralegal may do any of them:

1. Draft and sign court documents to be used in court (eg

summons).

2. Draft and execute an antenuptial contract.

3. Draft and execute all the documents necessary to transfer a property

into another party’s name.

4. Appear in the High Court before a judge on behalf of another.

5. Appear in the High Court before a judge on his or her own behalf.

6. Appear in the magistrates’ court before a magistrate on behalf of another.

7. Appear in the magistrates’ court before a magistrate on his or her own

behalf.

8. Make a presentation to a group of people in respect of how the law

works.

ans wer

BWE1501/1 25
Study unit 1: The legal profession

feeDbac K on acTIvITy 6
If you have any difficulty with this question refer back to the work covered in
sections 4.5 and 5.5 above. Formal feedback will be given in a further Tutorial
Letter 201.

8. conc lUsIon
In this study unit you were taught the difference between the attorney profession
and the advocate profession. You learnt how they are controlled and where
you, as a paralegal, fit in.

Now that you understand that you are not a legal professional we will take a
closer look at the workings of a law firm. In the next study unit, we will look at
what a law firm is, the different people who work at a law firm, the structure of
a law firm and the role of the paralegal in the law firm.

9. se lf-assessmenT
Before you start with the next study unit, please answer the following questions
on your own to ensure that you know and understand the work covered in this
study unit:

9.1 Summarise the important characteristics of the attorney profession.

9.2 Summarise the important characteristics of the advocate profession.

9.3 Compare the attorney profession and the advocate profession.

9.4 Differentiate between paralegals and other legal professionals.

9.5 Evaluate the consequences of performing prohibited actions reserved

for the legal profession.

26
 Study unit 1: The legal profession

10. soURces RefeRReD To In THIs sTUDy UnIT

Admission to Advocates Act 74 of 1964 (and the regulations issued in terms
thereof).
Attorneys Act 53 of 1979 (and the regulations and rules issued in terms thereof).
Attorneys’ Admission Amendment and Legal Practitioners’ Fidelity Fund Act 19
of 1947.
Borman, R, Raubenheimer, E, Van der Walt, R. 1998. 3rd edition. Paralegals:
Introduction to Legal Practice. Seytrade Publishers: Queenswood.
Cooks, A. 2010. Legal Bookkeeping for support staff. L.E.A.D – Law Society of
South Africa.
Deeds Registries Act 47 of 1937.
De Klerk, W. 2006. 2nd edition. Clinical Law in South Africa. LexisNexis
Butterworths: Durban.
General Council of The Bar of South Africa Access to Excellence [online]
available: www.sabar.co.za
Law Society of South Africa Career Guide to the Legal Profession [online]
available: www.lssa.org.za.
Right of Appearance in Courts Act 62 of 1995.
Statsky, WP. 1992. 4th edition. Introduction to Paralegalism: Perspectives,
Problems, and Skills. West Publishing Company: St. Paul.

BWE1501/1 27
Study unit 2: The law firm

sTUDy UnIT

2
The law firm

1. leaRnInG oUTcomes
When you have worked through this study unit you should be able to
o explain what a law firm is and compare the different business forms a law
firm may take
o identify the different positions within a law firm according to their functions
o construct and separate the different departments in a law firm
o formulate the role of a paralegal in a law firm

2. InTRoDUcTIon
In the previous study unit you were taught the difference between the attorney
profession and the advocate profession. You learnt how they are controlled and
where you, as a paralegal, fit in.

Now that you understand that you are not a legal professional, we will take a
closer look at the workings of a law firm. In this study unit, we will look at what
a law firm is, the different people who work at a law firm, the structure of a law
firm and the role of the paralegal in the law firm.

3. WHaT Is a l aW fIRm?
As mentioned in study unit 1 above, attorneys and candidate attorneys work at
law firms. A law firm consists of one of more attorneys supported by candidate
attorneys and/or administrative staff.

Once a person has been admitted as an attorney, he may practise

o for his own account

o in a partnership with other attorneys
o as a member of a professional company
o as a professional assistant in a partnership or a professional company

When an attorney works for his own account he is the sole owner of the law firm
and is entitled to all the profits of the law firm. “Partners” or “members” refers
to two or more attorneys who manage and own a law firm together and who

28
 Study unit 2: The law firm

share the profits of the law firm between them. All attorneys who are working
for their own account in partnership with other attorneys, or who are members
of a professional company of attorneys, must be in possession of a fidelity fund
certificate.

A professional assistant is an admitted attorney who works at a law firm as an

assistant to other more experienced attorneys. Professional assistants do not
work for their own account and do not share in the profits of the law firm, but
usually work for a fixed salary. Therefore they do not need to be in possession
of a fidelity fund certificate. Professional assistants are usually junior or newly
admitted attorneys who work for a few years before they have gained enough
experience to practise as partners or members of the law firm.

Candidate attorneys are precluded from sharing in the profits of the law firm
and as such also work for a fixed salary. As candidate attorneys have not yet
been admitted as attorneys, they cannot apply for a fidelity fund certificate.

A law firm may take the following business forms:

o sole practitioner
This is a law firm where one attorney works for his own account. He may be
assisted by professional assistants, candidate attorneys and/or administrative
staff.

o Partnership
This is a law firm where two or more attorneys own and manage the firm
together as partners. They are all liable for the liabilities of the law firm and
may all share in its profits. They may be assisted by professional assistants,
candidate attorneys and/or administrative staff.

o Professional company
A professional company is a law firm that is incorporated as a company of
attorneys in terms of section 23 of the Attorneys Act. You can identify law
firms that are incorporated companies by the letters “Inc” (abbreviation of
the term “incorporated”) after the firm name for example, Ndlovu Bester
and Nkosi Attorneys Inc. Only attorneys who are in possession of a fidelity
fund certificate may be members of such a company and share in its profits,
and they will all be liable for the liabilities of the company. The members
may also be assisted by professional assistants, candidate attorneys and/or
administrative staff.

4. PeoPle WoRKInG aT a laW fIRm

4.1 attorneys and candidate attorneys

As mentioned above, a law firm will be owned and managed by one or more
attorneys who may be assisted by professional assistants and/or candidate
attorneys.

4.2 administrative staff

The partners, professional assistants and candidate attorneys in a law firm will be
supported by administrative staff. Administrative staff will include receptionists,
switchboard operators, secretaries and typists.

BWE1501/1 29
Study unit 2: The law firm

4.3 Human resources

Most law firms employ at least one human resource specialist to manage all such
matters in the firm. This person or team will be responsible for the appointment
of new staff and all the administrative duties related to employee matters. For
example, unemployment indemnity fund registrations, employee tax deductions
and reporting requirements, retirement fund matters and employee disciplinary
matters and employee complaints.

4.4 IT support
Each law firm will require IT support to some extent. IT refers to information
technology and all the computer, software, internet and email requirements of
the firm. This team will be responsible for ensuring that all electronic information
is stored safely and is available to the employees when necessary. It will also be
responsible for controlling internet and email usage by employees of the firm.
It may also need to manage and understand the different software programs
used by the firm and ensure that they are used correctly. IT support will work
according to the instructions of the partners as communicated to it by the
responsible partner.

4.5 bookkeeping staff

You have already learnt about the specific bookkeeping procedures and
requirements applicable to law firms. It is of vital importance that a law firm
adheres and follows the specific bookkeeping requirements and procedures,
as failure to do so may have serious consequences. Specifically, special care
must be taken to ensure that the trust account of the law firm is managed
correctly. Therefore, every law firm requires the expertise and services of qualified
accountants and auditors. There are many accountants available who specialise in
legal bookkeeping and who are employed by law firms to ensure that their books
are in order and that the reporting requirements of the law societies are met.

5. sTRUcTURe of a laW fIRm

Each law firm will have its own structure depending on the number of attorneys
working at the law firm and the type of work it performs. A small law firm will
have fewer departments while a larger law firm will have more.

Typically, the average law firm will consist of the following departments:

30
 Study unit 2: The law firm

laW fIRm

offIce commeRcIal
booKKeePInG lITIGaTIon conveyancInG
aDmInIsTRaTIon laW

Companies and
Human resources Criminal matters
close corporations

IT support Civil matters Tax planning

General office
Debt collection Estate planning
support

Reception and Mergers and

switchboard acquisitions

5.1 office administration and bookkeeping

Most firms will have an office administration department and a bookkeeping
department. These two departments will be filled with administrative staff with
qualifications and/or experience in that specific field. For example, human
resources will be filled with staff with the required qualifications and/or experience
in human resource issues. The bookkeeping departments will be filled with
accountants and/or accounting clerks.

Usually, each of these departments will be headed and managed by a specific

partner. In addition, the bookkeeping and office administration departments
have to report to the partners of the law firm on a regular basis. Partners of the
law firm may also require that certain duties may only be carried out on specific
instructions from the partners or that a partner must sign off before a specific
action is taken. For example, it may be a requirement of the law firm that two
partners must sign any cheque prepared by the bookkeeping department. This
ensures that the partners remain aware and in control of all actions carried out
within the law firm.

5.2 legal departments

The different legal departments will differ from law firm to law firm depending
on their specific needs. For example, a law firm doing a lot of tax law work
may have a separate department that deals with tax matters. If a law firm
does not specialise in conveyancing work, it will probably not have a separate
conveyancing department and any occasional conveyancing work might be
dealt with by the commercial law department or by any of the attorneys who
have the expertise and experience to do the work.

Generally, each legal department is headed by a partner of the firm. This partner
manages and controls the specific department and will be assisted by one or
more professional assistants, candidate attorneys, secretaries, typists and/or

BWE1501/1 31
Study unit 2: The law firm

filing clerks. Larger law firms rotate candidate attorneys on a regular basis to
ensure that they are all exposed to and obtain experience in different legal fields.

6. Role of PaRaleGals In a laW fIRm

Paralegals in law firms play a more supportive role although they do work
independently to some extent. They have more responsibility than secretaries,
typists and filing clerks but still remain under the management and control of
the attorneys working in the department.

For example, a paralegal working in the companies and close corporations

department may be responsible for the registration of all new companies.
The paralegal will receive instructions from one of the attorneys to register a
specific company and must do all the related work to ensure the registration
of that specific company. He or she must have the necessary knowledge and
experience to know what forms must be completed and what documents must
be lodged at the Companies and Intellectual Property Commission. He or
she must further ensure that the necessary documents are lodged and must
follow up on the registration process at the Commission. All of this may be
done independently while keeping the instructing attorney up to date on any
developments. Therefore, the paralegal does not consult with the client or take
direct instructions from the client, but receives instructions from the attorney and
has to report back to that attorney.

This does not mean that all paralegals working at law firms have no contact
with clients. Depending on the type of work and the duties of the specific
paralegal, he or she may be required to contact clients directly. However,
almost all paralegals must report directly to one of the attorneys in respect of
all work done or an attorney must oversee or sign off on all the work done by
him or her. The paralegal usually has to report to the head of the specific legal
department. This is because the partners of the law firm are accountable and
responsible for all work done by the employees.

acTIvITy 7
In view of the above discussion, what do you think a paralegal’s
role in a law firm is? Write your ideas down in the space below.
Remember to provide some reasons for your ideas.

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 Study unit 2: The law firm

feeDbac K on acTIvITy 7
There is no right or wrong answer to this question, provided you have provided
good reasons for your opinion.

In your answer you should have indicated that a paralegal’s role in a law firm
will differ from law firm to law firm.

As a general rule, you should have mentioned that a law firm paralegal must
work under the supervision of an attorney and assists the attorney with drafting
and preparing documents. However, a paralegal may work quite independently
and be allowed to contact clients directly, provided that an attorney oversees
the work of the paralegal. This is especially true in situations where the work
is more of an administrative nature (completing forms) than a legal nature
(providing legal advice). For example, completing standard forms for submission
to government institutions.

In addition, you could have differentiated between the roles of community based
paralegals and law firm paralegals by pointing out that while a community based
paralegal will be the first point of contact with the client, a law firm paralegal
will receive instructions from an attorney and will not meet with clients the first
time they make contact with the law firm.

7. conclUsIon
In this study unit you were taught what your role as a paralegal is in a law firm.
You learnt what a law firm is, the different people who work in a law firm, the
structure of a law firm and the role of the paralegal in the law firm.

Now that you understand your position in a law firm we will take a closer look
at ethical issues in the workplace. In the next study unit, we will look at what
ethics is, the different ethical approaches that exist and specific ethical guidelines
applicable to paralegals.

BWE1501/1 33
Study unit 2: The law firm

8. self-assessmenT
Before you start with the next study unit, please answer the following questions
on your own to ensure that you know and understand the work covered in this
study unit:

8.1 Explain what a law firm is and compare the different business forms a
law firm may take.

8.2 Identify the different positions within a law firm according to their functions.

8.3 Construct and separate the different departments in a law firm.

8.4 Formulate the role of a paralegal in a law firm.

9. soURces RefeRReD To In THIs sTUDy UnIT

Borman, R et al. 1998. 3rd edition. Paralegals: Introduction to Legal Practice.
Seytrade Publishers: Queenswood.
De Klerk, et al. 2006. 2nd edition. Clinical Law in South Africa. LexisNexis
Butterworths: Durban.

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 Study unit 3: Ethical considerations

sTUDy UnIT

3
ethical
considerations

1. leaRnInG oUTcomes
When you have worked through this study unit you should be able to
o define ethics, differentiate ethics from morality and explain when an act is
unethical
o identify and differentiate between the three different approaches to ethical
problems
o apply ethical guidelines to specific case scenarios in order to reach a well-
thought-out and substantiated recommendation for action

2. InTRoDUcTIon
In study unit 2 you were taught what your role as a paralegal is in a law firm.
You learnt what a law firm is, the different people who work in a law firm, the
structure of a law firm and the role of the paralegal in the law firm.

Now that you understand your position in a law firm we will take a closer look
at ethical issues in the workplace. In this study unit, we will look at what ethics
is, the different ethical approaches that exist and specific ethical guidelines
applicable to paralegals.

3. WHaT Is eTHIcs?
“Ethics” can be explained with the following example:

Telling lies is wrong. Our relationships with each other only function well if there
is a presumption that what we say to each other is true. Trust is essential in
human relationships and in public life. One of the most painful experiences for
parents is if they discover that one of their children has lied to them. Similarly
children’s confidence in adults and indeed themselves can be seriously harmed
if their parents lie to them. Politicians tend to lose elections when they lose the
trust of the electorate. But is telling lies always wrong?

Suppose you are a German living in Berlin in the Second World War and that you
are hiding a Jewish family in your cellar. One day, the Gestapo, arrive at your
house and ask whether there are any Jews around. Almost certainly your answer

BWE1501/1 35
Study unit 3: Ethical considerations

will be ‘No’. You lie in order to protect those you are hiding. You recognise that
telling lies is usually wrong, but under these circumstances surrendering Jewish
fugitives to the gas chambers is worse.

While ethics is about what we ought and ought not to do, it is also about setting
priorities in human behaviour. Ethics is not always what is absolutely right or
wrong, acceptable or unacceptable, ideal or less than ideal. It is also about what
is the best decision in particular circumstances, what is the lesser of two evils.

In short, ethics is the study of right action (ie our values and their
justification), and good conduct (ie the actual values and standards of
conduct by which we live).

3.1 The difference between ethics and morality

Ethics and morals are intricately connected but they also have different denotations
and connotations.

morality refers to all the current and traditional norms, values and virtues and
moral conduct held by a society. Norms are moral rules or obligations. A norm
such as “do not kill” is a socially accepted standard of behaviour – something
that is “morally acceptable”. Values are expressed in attitudes, beliefs and
judgements about what is good and bad, right and wrong. Examples of values
include justice, responsibility and integrity. Virtues are dispositions of character
such as honesty, caring and fairness. Moral conduct concerns our interaction
with other people and how our actions affect other people. Norms, values,
virtues and moral conduct guide people in deciding what ought to be done or
not to be done.

ethics is the intellectual reflection on these norms, values, virtues and moral
conduct, both by individuals and by communities or groups. Ethics reflects on
the norms and values of individuals and of society as a whole. It is the ordering,
the questioning, the awareness and the investigation of what we believe to be
right. This reflection aims at balancing the interests of the various parties or
stakeholders affected by decisions and actions in a way that gives expression
to the norms and values that we believe should be adhered to within a society.

The difference then between morality and ethics is that morality refers to
the goodness or badness, rightness or wrongness, of behaviour, while ethics is
a theoretical examination of morals and morality. A moralist is someone who
tells us what he or she thinks is good or right, while an ethicist questions the
underlying principles of what is good or bad, right or wrong.

3.2 When is an act unethical?

Before we can answer the question: when is an act unethical?, we need to
determine what an ethical problem is. An ethical question arises in any situation
in which the wellbeing and interests of people are in conflict. For example,
suppose you are an employee of a firm that bottles water. You have realised
that in order to meet the demand, management has decided not to filter the
water. What should you do? There is a conflict of interests here: the interests
of the people who drink the water, the interests of the company, and your own
interests as an employee. What action should you take, if any? The issue here

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 Study unit 3: Ethical considerations

is an ethical one because there is a conflict of interests and the wellbeing of

those involved is at stake.

Let us now examine what makes an action unethical. There is no short answer
to this problem but the following general observations can be made:

An action is unethical if it

o disregards important interests and jeopardises the wellbeing of other people

o breaks an agreement
o conflicts with the moral norms and values of a person or society
o will result in harm to other people, groups, society as a whole, or the
environment

Note, with reference to the second point, that an agreement might be tacit as
well as explicit. For example, in a business environment it is tacitly agreed that
people turn up on time for meetings. It is thus unnecessary to make a written
agreement every time a meeting is called, because being punctual is what is
expected and has been tacitly agreed upon.

4. aPPRoacHes To eTHIcal PRoblems

In this study unit we will discuss three important approaches for contemplating
and answering moral questions. These are the following:

o deontological ethics (rule-governed ethics or duty ethics)

o utilitarianism (consequentialism)
o virtue ethics (personal moral virtue)

4.1 Deontological ethics (rule-governed ethics)

Deontology is an ethical approach that holds that there are certain universal
rules or principles that should determine our moral decisions. The deontologist
asks “is it right?” or “does it conform to moral norms or values?” You should try
to determine whether any rational person in your position would make exactly
the same moral decision that you are making.

The father of deontological ethics is Immanuel Kant (1724–1804). He laid down

two basic maxims that should guide moral decision making:

1. All moral decisions should be put to the universalisation test: Whether

the decision you are contemplating would be upheld by all rational
individuals in a similar situation across the boundaries of space, time
and circumstance?

2. The second criterion can be described as the “golden rule” – do to others

what you would want them to do to you.

When we view moral principles as universal rules, they become important

guides to our conduct. They tell us what we should or should not do. Examples
of a principle are “one ought not to steal” and “human life is sacred”. Moral
principles are the rules that regulate interactions between people so that, as
far as possible, no one’s vital interests and wellbeing are sacrificed. A principle
guides our conduct in a way that discourages us from pursuing our own self-

BWE1501/1 37
Study unit 3: Ethical considerations

interest. A person who acts “on principle” is not swayed in his or her opinion by
considerations of personal interest or by the private interests of other people.
For example, in cases of “whistle-blowing” it is usually not in a person’s interests
to expose corruption. It is, however, in the interests of the firm and the country
at large. It is the right thing to do, but it is often not personally expedient.

Think about the following:

Suppose you are offered a bribe to do work for someone. You would have
done the work anyway, but now in addition to doing the work, you have a
nice bank balance.

What should you have done?

What would a principled person do?

Why would a principled person act in that way?

Do you think a principled person can be successful in business? Why or

why not?

A principled person is someone who seeks to apply moral values to daily living.
The principles they subscribe to guarantee that their actions do not compromise
the authority of the people with whom they interact and the respect they owe
others. Never treat people as a means to an end. In other words, see people as
valuable rather than useful. A person of integrity will be motivated by goodwill
in their interactions with others, regardless of personal gain.

4.2 Utilitarianism (consequences)

Utilitarianism is concerned with the consequences of actions. In other words,
a utilitarian will ask whether the goals or consequences of certain actions are
good or bad. We can therefore say that utilitarianism is the ethical approach
of whatever works best for most people. In order to determine what the best
outcome will be, one has to take into account the effect of the proposed action
on all those who will enjoy or suffer the consequences. No action or state of
affairs is right or wrong in itself. To judge whether an action will bring the best
outcome, one looks at the effect the action will have on the wellbeing of the
people involved.

acTIvITy 8
You are working as a paralegal for a firm of attorneys. The firm is
approached by a State hospital that provides sophisticated care
and is one of the best organ transplant facilities in the country. They
have asked for extra funding in order to do another hundred very
urgent transplants. The government has refused because the money could be
better spent on immunising children in farming communities. From a utilitarian
perspective, what should be done?

What is your view? Defend your decision.

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 Study unit 3: Ethical considerations

answer

feeDbac K on acTIvITy 8
Formal feedback will be provided in a further Tutorial Letter 201.

4.3 virtue ethics (personal moral virtue)

A third approach to addressing moral problems is personal virtue. This approach
argues that what is important in moral decision making is the kind of person
you are, rather than focusing too narrowly on the actions you take. According
to this view, a moral person is a virtuous person. A virtuous person is someone
whose conduct exhibits virtues such as courage, fairness, kindness, honesty,
accountability and self-control. Virtues are aspects of a person’s character which
make it likely that he or she will judge wisely and well in situations of moral
perplexity. The virtuous person is not a blind follower of rules, nor a calculator
of outcomes. Virtues are qualities of character and conduct that are morally
excellent. As earlier scholars put it, action sequitur esse – actions follow from
who we are; good conduct is a consequence of good character.

It is important to remember that virtues are not inborn: they are learnt or
acquired through education and practice. This means that virtues need to be
nurtured. Moral education and formation are essential to the construction of

BWE1501/1 39
Study unit 3: Ethical considerations

moral character. Moral formation occurs when moral norms and values become
“internalised” as part of a person’s character and conduct. Moral formation is the
result of both external and internal factors. External factors include the influence
of parents, schools, religious groups, mentors and colleagues, while internal
factors refer to the choices that people make in response to their experiences.
Therefore, we become what we choose to become. Moral formation is also a
process. Thus the repetition of good actions leads to the formation of good
habits which in turn leads to the formation of a good character. This also means
that developing virtues will require the remaking of the social environment in
which we live. We should not view personal ethics in an individualistic manner.
Although it is true that virtue ethics is practised by individuals, it is not true that
individuals exist in a vacuum. All of us exist within a group or a social context
and we are intrinsically part of a community.

acTIvITy 9
You are working as a paralegal for a State department. The State
sends you on an expensive 18-month training course paid for by the
taxpayers’ money. You meet a lot of people there from the private
sector. You impress them and a few firms make you an offer. You
are extremely interested but have signed a post-training obligation with the state.
You decide to do part-time work for the firms but it soon takes up all your time.

How can the understanding and practice of personal virtue assist in this kind
of situation?

What kinds of virtues should be cultivated in the public sector to avoid this type
of situation? Can you make suggestions on how this should be done?

ans wer:

40
 Study unit 3: Ethical considerations

feeDbac K on acTIvITy 9
In your answer consider virtues like integrity and loyalty. Formal feedback will
be given in a further Tutorial Letter 201.

Remember:

The three approaches to moral problems discussed above are not mutually
exclusive.

4.4 a quick ethics test

We can now formulate the quick ethics test for each approach as follows:

Three ethical approaches The quick ethics test

A. Deontological Is it legal?
(rules)
Does it comply with a code of conduct?
Can it be universalised?
Does it comply with the Golden Rule –
do onto others …

B. Utilitarianism How would it look in tomorrow’s

(consequences) newspaper?
What would the consequences be?

C. Virtue ethics Will I consider myself a good person

(personal good conduct) if I do this?
How does it make me feel?

BWE1501/1 41
Study unit 3: Ethical considerations

4.5 consequences of unethical behaviour by paralegals

When a paralegal acts unethically, he or she is not in any danger of being
struck from any roll. However, this does not mean that unethical behaviour by a
paralegal cannot have serious consequences. A paralegal’s unethical behaviour
can result in a loss of respect for him or her, the loss of the employer’s client and
disciplinary action. In addition, the paralegal may lose his or her employment
and may even be subject to criminal prosecution or a civil law suit.

5. sPecIfIc eTHIcal GUIDelInes foR PaRaleGals

We will now look at specific ethical guidelines that you must consider and apply
in your workplace.

5.1 accepting instructions

Before accepting instructions, lawyers and paralegals should consider a few
important factors, such as whether there is a potential conflict of interests,
whether the clients’ instructions involve illegality and whether one possesses
the necessary skill to execute the mandate. You should also consider whether
you have sufficient time at your disposal to attend to the client’s instructions
efficiently and within a reasonable space of time. This applies equally to those
in private practice as those employed to render legal services to the poor, for
example clinicians and practitioners at the Legal Aid Board.

5.2 The mandate

Lawyers and paralegals may not act in any matter unless they have clear
instructions to that effect. The mandate need not be in writing. Paralegals must
at all times act according to the clients’ instructions. You may, however, exercise
your own professional judgement. Acting contrary to the scope of the mandate
may result in civil liability for damages.

5.3 confidentiality and privilege

With some exceptions, information given to a lawyer and a paralegal in the
course of representing a client must be kept confidential and may not be
discussed with others outside the office. The rule of confidentiality applies not
only to information given to the lawyer by the client, but also to information
relating to a client’s case from other sources as well.

What does “confidential” mean?

Confidential means that you are entrusted with the confidence of another
or with his or her private affairs or purposes. This information is intended
to be held in confidence or kept private.

All information obtained by a lawyer or a paralegal from or about a client

during the course of representation is presumed to be confidential. The duty of
confidentiality usually begins with the first meeting with the client and it continues
after the client–lawyer relationship has terminated. This rule is of special concern

42
 Study unit 3: Ethical considerations

for paralegals who leave one law firm to work for another. The paralegal may
never divulge confidential information learnt through previous employment –
especially if it would be to the detriment of former clients.

As with most ethical rules, there are exceptions to the rule of confidentiality. The
most common exceptions are the following:

o Confidential information may be divulged with the permission of the client.

o Confidential information may be disclosed when implicitly authorised in order
to carry out the representation of the client.
o Confidential information may be disclosed to prevent the client from committing
a criminal act.
o Confidential information must be divulged if so ordered by a court of law.

acTIvITy 10
(a) What does it mean when one says that paralegals are
“subject to the principles of attorney–client privilege”?

ans wer

(b) Is it permissible for a paralegal to release confidential information to a

photocopying service to be copied and bound?

ans wer

BWE1501/1 43
Study unit 3: Ethical considerations

feeDbac K on acTIvITy 10
Formal feedback will be provided in a further Tutorial Letter 201.

5.4 conflict of interest

What does “conflict of interest” mean?

A conflict of interest is a real or seeming incompatibility between the

interests of two clients, such that the lawyer or paralegal is disqualified
from representing both clients if the dual representation adversely affects
either client or if the client does not consent.

A conflict of interest can arise when

o the interests of two clients are directly adverse

o the interests of a client and a former client are materially adverse in a
substantially related matter
o the personal interests of a lawyer or paralegal are adverse to the interest
of the client
o the business interests of the lawyer or paralegal are adverse to the interest
of the client

As a paralegal, you must be aware of and abide by the ethical rules that govern
attorneys with regard to conflicts of interest. A paralegal not working in a law
firm who assists clients without the supervision of an attorney will be responsible
for ensuring that there are no conflicts of interest involving current clients and
between current and former clients – in much the same way that attorneys are.

If you change employers and you are not sure whether there might be a conflict
of interest, here are some guidelines you may follow:

o Keep a current list of client names and the matters on all the files on which
you work. This list should be kept confidential!
o When you leave your position, take a list of the clients on whose files you
have worked and the matters to compare with the files you may be assigned
to in future.
o If your employer takes on a client in whom you have a personal interest,
either a financial interest or a personal relationship, the information should
be reported to the supervising attorney as soon as possible.

44
 Study unit 3: Ethical considerations

o If you ever suspect that you may possibly be involved in a conflict-of-interest

situation, report it immediately to your supervising attorney or other appropriate
individual in your law firm or law department immediately.

acTIvITy 11
You have just started working as a paralegal with a law firm. You
are given a file and, while going through it, you realise that this firm
is representing a company you know; in your previous position you
worked at the company against whom the litigation is now being
directed. You get the feeling this might be a conflict of interest but you are still
on probation and therefore unsure about whether you should tell your new
employer of your past involvement with the case. What should you do? Why?

answer

feeDbac K on acTIvITy 11
Formal feedback will be provided in a further Tutorial Letter 201.

BWE1501/1 45
Study unit 3: Ethical considerations

acTIvITy 12
Suppose you are a paralegal at a law firm. You are reviewing a
list of new clients and you notice that your law firm has initiated a
lawsuit against a firm in which your wife or husband is a shareholder.
Do you have a conflict of interest? What should you do?

answer

feeDbac K on acTIvITy 12
Formal feedback will be provided in a further Tutorial Letter 201.

5.5 competence and diligence

Competence and diligence means to have the legal knowledge, skills,
thoroughness and preparation reasonably necessary for representation. You
must pursue matters on behalf of clients with commitment and dedication. As
a paralegal you must be certain you have the requisite knowledge and skills to
perform the tasks that have been assigned to you. If you do not possess such
skills, you must work to educate yourself and ask for help. It is important that
you do not misrepresent the level of your knowledge and skills, as doing so can
have serious consequences for you, the attorney you work for and the clients.
Paralegals must be diligent in the completion of their assignments, as attorneys

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 Study unit 3: Ethical considerations

will rely on your ability, skills and diligence to get the work done thoroughly
and on time.

acTIvITy 13
What skills should a paralegal possess in order to be
considered competent?

answer

feeDbac K on acTIvITy 13
Formal feedback will be provided in a further Tutorial Letter 201.

5.6 financial matters

Attorneys have the ultimate ethical responsibility for most financial matters.
However, because clients generally pay for the time paralegals spend working
on their files, paralegals must be familiar with the rules of ethics concerning
billing and fee splitting. In addition, because paralegals are often responsible
for the bookkeeping and record keeping associated with accounting for client
funds, it is imperative that they are familiar with the ethical rules applicable to
attorneys concerning client funds, as well as the rules for bookkeeping and
record keeping of client funds.

BWE1501/1 47
Study unit 3: Ethical considerations

5.7 Trust accounting

Paralegals are often responsible for trust accounting functions. As a paralegal
you might find that your work on real estate, personal injury or other types of
files requires you to set up and maintain trust accounts to hold and distribute
funds on behalf of clients.

Any attorney who delegates work involving trust accounting to you will have
the ultimate responsibility for the funds. However, as a paralegal you must be
aware of the ethical rules for handling client funds. Some of the tasks you may
be assigned with regard to clients’ trust accounts could include

o notifying clients of any disbursements or withdrawals from the trust accounts

o preparing statements of the accounts for clients, to be approved by the
supervising attorney
o reconciling monthly bank statements to trust account registers and calculating
interest

5.8 Paralegals and billing

Attorneys and paralegals have set billing rates. Billing rates are usually based
on the market, and the paralegal’s experience and level of expertise. It is very
important that you track your billable hours closely. It is your ethical responsibility
to keep accurate time records, reflecting the amount of time spent on each
client’s file and the work done for that client.

What is meant by “billable hours”?

Billable hours are hours and fractions of hours that are spent working on
a client’s file that will later be billed to that client.

Non-billable time includes time spent on training, interviewing, continuing education,

marketing, file maintenance, administrative matters, pro bono work and personal
matters.

acTIvITy 14
Suppose you are a paralegal in the corporate department of a law
firm. The work for a big contract is complete and you and another
paralegal have made a significant contribution to the success of
the case. Both of you have put in more and less the same amount
of hours to complete the work; however, the other paralegal has considerably
more billable time on the file than you. When you confront her she says “with
a bill this size, no one will notice if I add a few extra hours”. Your principal
has signed off the file already and you will be paid the following day. What, if
anything, should you do?

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 Study unit 3: Ethical considerations

answer

feeDbac K on acTIvITy 14
Formal feedback will be provided in a further Tutorial Letter 201.

6. conclUsIon
In this study unit you were taught general ethical guidelines as well as a few
specific ethical rules concerning paralegals. You will use these guidelines
extensively in paralegal practice. Therefore, it is of utmost importance that you
ensure that you are comfortable with all the work covered in this study unit.

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Study unit 3: Ethical considerations

7. self-assessmenT
Please answer the following questions on your own to ensure that you know and
understand the work covered in this study unit:

7.1 Define ethics, differentiate ethics from morality and explain when an act
is unethical.

7.2 Identify and differentiate between the three different approaches to ethical
problems.

7.3 Read through your answers for the Activities and ensure that you have
reach well-thought-out and substantiated recommendations for actions.

It is also the end of this module: Business practice and workplace ethics. We
hope you have enjoyed working through this module and wish you success with
your further studies.

8. soURces RefeRReD To In THIs sTUDy UnIT

Borman, R et al. 1998. 3rd edition. Paralegals: Introduction to Legal Practice.
Seytrade Publishers: Queenswood.
Schneeman, A. 2000. Paralegal Ethics. West Legal Studies: Canada.
UNISA. 2008. Department of Philosophy and Systematic Theology and
Theological Ethics Tutorial Letter 501: Theoretical and Applied Ethics
PLS2116. UNISA: Pretoria.

50
 Glossary

GlossaRy

antenuptial contract A contract between two people who are

planning to get married and which deals with
how the property of both will be controlled
by them during their marriage and how it will
be divided after the marriage

companies and Government office where a record is kept

Intellectual Properties of all the registered companies and close
commission corporations in South Africa.

conveyancing Legal work related to the transfer of property

from one person’s name to another person’s
name.

Deeds office Government office where a record is kept of

all the land in South Africa and the owners
thereof.

family advocate Government office that deals with divorce

matters in which children are involved. It
assists parties to resolve guardianship,
custody and access issues.

law graduate A person who has successfully completed a

law degree.

master of the High cour t Government office that deals with the
regulation and protection of the financial
interests of persons whose financial matters
are managed by others, for example minors
and the mentally challenged.

notarial practice Legal work related to the drafting and

preparation of certain legal documents
known as notarial deeds.

Public prosecutor Attorney employed by government to institute

and conduct criminal proceedings on behalf
of the State.

Purchaser A person who buys something from another

person.

Registrar of the High cour t The administrative manager of a specific

High Court who is responsible for ensuring
that all administrative procedures in that court
run as prescribed.

BWE1501/1 51
Glossary

serve A legal term to describe the delivery of

certain legal documents in accordance with
prescribed legal procedures.

seller A person who sells something to another

person.

sheriff An officer of the cour t who has the

responsibility for delivering certain legal
documents and taking possession of property
on behalf another person in terms of a court
order.

state attorney Government office that acts on behalf of the

State in legal matters.

state law advisor Government office that provides legal

services to the State.

statutory body An institution or company that has been

established in terms of legislation.

Tacit When something is understood without being

explicitly said or stated.

vet Careful and critical examination of a legal

document or opinion.

soURces RefeRReD To In THIs secTIon

Bryant J, Searle, J. 2005. Introduction to bioethics. Wiley: Chichester.
Law Society of South Africa Career Guide to the Legal Profession [online]
available: www.lssa.org.za.
Paralegal skills and establishing an advice centre [online] available:
www.paralegaladvice.org.za.
Oxford South African Concise Dictionary. 2006. Oxford University Press: Cape
Town.

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