A.	THE CRISIS IN THE LEGAL PROFESSION

Professional code of ethics, distinguish jobs/careers from professions.  This idea of a distinct profession - being challenged and this crisis in legal profession is also prevalent in other professions egg, medical profession

FOUR REASONS WHY FAITH BEING LOST IN PROFESSIONAL ETHICS PER ROSSOUW

1.	IT IMPEDES PROPER SERVICE - as rules don't protect the profession or the public, it enforces effective marketing/advertising of services, Radloff survey concluded that many practitioners don't' regard certain forms of marketing as unethical.  Rules therefor equal antiquated marketing, stumbling blocks to proper exercise of duties and is designed to antagonise.

2.	IT CAN'T BE EFFECTIVELY ENFORCED - lack of trust in the capabilities of Law Society to enforce the code and in practice, repeated and blatant transgressions goes unpunished.

3.	ITS VIEWED MORE AS IDEOLOGY THAN PROFESSIONAL ETHICS - outsiders/clients regard the code and its application merely as an instrument to protect practitioners, their honour, status and privileges against complaints of public.  Interest of client neglected, as copies of code are not easily available, formulated in complicated way, difficult to understand as also enforced by colleagues of accused practitioners.

4.	ITS NOT ECONOMICALLY VIABLE - as there's a five fold doubling of numbers of attorneys and lax entrance policies in law faculties and affirmative action - thus severe numbers explosion - severe competition resembling that of the business world.  This competition = legal practitioners often see themselves as business people competing for business in a dog eats dog fashion instead of professionals who serve the public. Argue for replacement of professional ethics with ordinary business ethics estate agents and banks often play law firms off against one another to cut fees/offer rewards in return for business.  Competition = attorneys act in ways unconscionable a decade ago ie.  As long as it is not illegal, its justified en though the code may be violated eg. Excessive entertaining, touting, kickbacks, pay-offs (eg cash, meat parcels, shopping vouchers, cell phones, laptops).  Large portions of legal fees are paid back to estate agents without buyers/sellers knowing this.  Attorneys therefore regard themselves as just another form of business ie selling goods and services at the highest possible fee in order to make big profits - Survival morality so brought about by increase competition, sluggish economic environment, affirmative action, rising operational costs, foreign competitors due to globalisation. The competition is also increased by the entry into the previous fields of exclusive domain of attorneys by estate agents, financial institutions, tax planners, accountants and in-house legal advisors.

REASONS OF MICHOLKON AND WEBB

1.	ITS TOO FORMALISTICALLY INCLINED - duties of too narrow and individualist nature without reference to context or consequences - concentrate on the letter rather than the spirit of ethical norms.  Obedience hereto and historical dominance = legal education focused more on technical skill, professional success, rule regulation/compliance an issues of ethics.  Morals and justice.  Justice is assumed to flow from correct application of law of facts and truth is conflated with factual truth.  However vindication of clients rights = lawyers act ethically to ensure justice as power imbalances - truth follows power.  Lawyer creativity - also that manipulations create right or evade rights and truths of a moral and political nature.

2.	LIBERALISM INFLUENCES - middle class values = influenced justification for rules of professional legal ethics:  Social background, individual dignity, autonomy equality and values of democracy and rule of law were not a guarantee for moral and ethical professional legal standard.  Law don't impartially protect everyone's dignity and autonomy as in its content and application, it is driven with discriminatory distinctions on race, class gender. This = paternalistic invasion of client autonomy and unfounded assumptions about clients needs, desires and interests.  Cases are treated as purely technical problems of how most effectively to vindicate their client's legal rights.  Separation of powers and usurping of clients role in decision making therefore not ensured and lawyers don't play a truly positive social role to further justice.  Public perceive attorneys not as playing this social role but merely enrichment of themselves in pursuant of a comfortable living.

OTHER REASONS

1.	LAW NOT SEEM AS CALLING -the profession is not used to serve the public interest but as a means to the unscrupulous pursuit of money and status at the expense of the basic values of profession.  Lawyers seen as being out to make money like in other trades/occupations. The ideals now are to work as corporate lawyers for an in-house legal department in a big corporation or as a market-driven seller of expertise.

2.	SOCIETAL FOCUS ON FINANCIAL SUCCESS - in USA and RSA = the financially successful and not those displaying high moral character are honoured by society. Desire for wealth, affluence and influence has eroded civic and community values.  Despite these goals of increased levels of wealth and income, many professionals experience a sense of unanimity and alienation and happiness.

3.	MANIPULATION OF VALUES - Pierre Schlag argues that American lawyers use truth, rationality, justice and other moral values in an instrumental sense to aid the manipulation of other legal actors.  Lawyers that sell their souls to the highest bidder and these values have no inherent value and meaning and are used to delay, threaten, wheedle, manipulate situations therefore the ethical and professional ideal of good lawyer has completely collapsed in respect of the idea that law is a normative enterprise.  Lawyers no longer serve the public good or the basic internal good of justice as the profession is used as a means to achieve pre-determined objectives or external goods.

4.	LAWLESSNESS IN RSA - leads to a blunting of moral sensitivities during apartheid.  More relaxed political and moral ties now prevalent in post-apartheid RSA as the transition from the pre-apartheid culture of authority.  Kruger Commission found a small percentage of practitioners involved in false/deceptive third party claims and the use of trust funds for money laundering.  Radloff survey also revealed that large percentages in property law indicated that they don't regard certain forms of marketing as unethical.

WHAT IS A PROFESSION

The word "profession" is derived form the Latin profession that means "a public statement" or "promise".  From this may be inferred that a legal professional (whether an attorney, advocate, judge, magistrate, public prosecutor or legal adviser) should be worthy of public trust, and should carry out his or her professional duties with public-spiritedness and the highest standards of ethical conduct.  Business persons on the other hand = a person who trades goods/services for money to make a profit.

Although members of professions are paid for their services and manage their practices on sound business principles, the professions may be distinguished from their jobs, businesses or trades, by virtue of the following characteristics:

Professionals are required to have specialised intellectual knowledge and skills before they will be granted access to their chose profession.  This knowledge, which is not generally accessible to the lay person, puts the professional in a position of authority vis-à-vis the client.  The client has no other option but to trust the professional and should therefore be able to rely on the last-mentioned's integrity.

Professionals are expected to have a commitment to promoting the basic good of society.  In the case of the legal profession, the basic good is justice, fairness.

Professionals are expected to have a commitment to serving the public in matter related to their particular field and to protect, serve and enhance public good and public trust.

Professionals enjoy relative autonomy in the execution of their duties.  They use their discretion in the execution of their duties and do not blindly accede to their clients or other authorities.

Professionals should have a willingness to accept personal responsibility for their actions and for maintaining public confidence in their particular profession.

Professionals share a sense of common identity and an established moral community.

Professionals are self-disciplined and abide by a code of legal ethics based upon what the best thinkers in their particular profession regard as proper conduct for a member of that profession.

The above standards of professional conduct are reinforced by the profession itself or by the courts, taking into account the views of the controlling body of the particular profession.

The crisis outlined above necessitates a restoration of the ethical basis of the legal profession.  This module on professional ethics therefore attempts to look at restoring this ethical basis, on the assumption that the law is indeed a collective, normative enterprise and not merely a rhetorical smokescreen for the exercise of power or the accumulation of wealth.  To regard lawyers as no more than businessmen would mean that the idea of the law and the objectives of justice, such as the fair and equal distribution of privileges and responsibilities relating to property, liberty and life, would be thwarted.  Only only practitioners, and only the rights and privileges of those able would then accept the most profitable cases to pay the high price of legal services would be protected.  Justice would be denied to those who could not afford to pay for it.  So, too, public trust in the legal profession and the existing socio-political dispensation would be undermined if justice were no longer served.  Furthermore, the voices of those who need legal assistance would no longer be heard.

As indicated above we are of the opinion that the crisis in the legal profession should be addressed in the following two ways:  First, the nature of ethical conduct should be approached from a more comprehensive philosophical viewpoint (preferably that of virtue ethics).  Secondly, the requirements of membership of the legal profession should be served for remnants of a more comprehensive ethical approach to legal practice, which may have been in force in earlier times.

B.	AN ETHICAL PHILOSOPHICAL PERSPECTIVE ON THE CRISIS IN THE LEGAL PROFESSION

DEFINITION OF LEGAL ETHICS

1.	Combination of two separate disciplines of law and ethics.

2.	Ethics = the philosophical discipline in which the difference between rights and use of good and evil are studied together with requirement for decency with regard 	to human conduct.

3.	Wide sense - "includes the study of debate between positivism and natural law (is the law's validity dependent on its moral content) or between liberalism and 	communitarianism (can the law be used to enforce moral views on abortion, homosexuality, prostitution or human cloning).

4.	Narrow sense = the ethical standards of professional conduct applicable to the field of law ie how "ought" a legal practitioner to behave in order to be a good, decent 	and proper legal practitioner ie its the philosophical or theoretical investigation of moral behaviour.

IS THE TRADITIONAL PRACTICAL APPROACH TO RSA LEGAL ETHICS OF LEWIS AN INHERENT CONTRADICTION

1.	TRADITIONAL PRACTICAL APPROACH

Lewis - ethical philosophy - not the focus, as purpose of approach is to set out the Code of rules prescribing conduct for attorneys that ahs to be obeyed.  This code = as much a part of positive law can be objectively described and need no deeper philosophy or history behind the code. What's required = an entirely practical approach to professional conduct of legal practitioners to compliance only in accordance with legal mind set and the positive law regulating the conduct of legal practitioners.  This practical, positivistic approach of ethical conduct of legal practitioners can be regarded as one of reasons for the growing crisis.

2.	IS THE TRADITIONAL APPROACH A CONTRADICTION IN TERMS

The reduction of ethics to a code of conduct raises questions whether he should be using the term ethics.  Ethics = the philosophical/theoretical investigation of moral behaviour and if ethics is understood as the philosophical reflection on morality, therefore is legal ethics not a contradiction in terms.  Is there not a fundamental clash between ethics and law?  Legal and ethical philosophers have found very little of value in the way lawyers approach ethics.  This = what is taught as a law ethics is not ethics, but similar to rules made by administrative entities/agencies.  It is regulatory and appeals o sanction and not conscience and seeks mandate rather than insight.  Ethical and legal philosophy therefore not decisive to Lewis.

3.	WHAT IS ETHICS REALLY

That ethical and legal philosophy is of decisive.  NB Coqulette argues that the legal philosophy of lawyer will influence his understanding of ethics.  Formalistic positivistic approach = ethics - a question of compliance to a codified closed and coherent set of legal rules.  Spirited or cultural values therefore are too subjective and individualistic to provide reliable guides to conduct.  Enforcement/compliance and positive rules that prescribe the do's and don'ts = a Kantian/; rule based or deontological approach to ethics.  Emphasis = therefore on compliance with minimum standards/rule which could be strictly enforced by law societies.  Other lawyers will see the positive rules as secondary and even sub-ordinate to spiritual and cultural sources of ethical guidance.  This approach is problematic and is on of the reasons for the crisis in profession.

4.	THE NARROW VIEW OF ETHICS

Used in order to justify view that lawyer's job is not to judge wrong or right of client but to defend his client's interests as best he can.  Narrow approach to ethics = a technical application of law in interpreting ethical rules.  It = emphasise on the use of logical or rational thought without giving proper concern for values.  Where present day lawyers criticise legal positivism and formalism, they still have traditional notions of legalism that prevails as per Stan Ross.
Legal ethics have traditionally been discussed without reference to ethics (Lewis).  However the legalistic approach to professional conduct is not philosophically neutral as suggested by Lewis as it rests implicitly on philosophical assumptions of formalism, positivism and legalism instead of his claim of a purely practical approach.

5.	WHAT SHOULD THE APPROACH BE?

Should begin with bringing to light the philosophy of law and ethics upon which it rests and the influence it has on ethics.  This wider philosophical perspective exposes the unethical approach to legal ethics amongst lawyers.  Ethical philosophy = that ethical responsibility involves more/something difference to strict compliance with rules either out of duty or from the bad man's perspective of Holmes that rule transgression will be enforced between courts/regulatory bodies.

CAN A ROLE-DIFFERENTIATED APPROACH JUSTIFY UNETHICAL CONDUCT?

What its about - 	1.	Client's interests take preference above those of others;
			2.	Otherwise moral considerations rendered irrelevant in such approach;
			3.	Services duty = to the best of professional ability irrespective of the moral worth of clients end/cause as long as its no illegal;
			4.	Professional therefore does for the client what the ordinary person won't do;
			5.	Criminal defence lawyer to do best for the client irrespective of his belief in the client's innocence or not;
			6.	Professional job is not to approve /disapprove of character of client or his cause nor to judge the rights and wrongs of client.
			7.	Private judgments of professional not to be substituted for the public institutional policy of judgment as this would deprive the client of 					opportunity to have the system determine guilt / innocence;
			8.	The adversary system therefore best method in order to determine guilt/innocence else it would lead to an oligarchy of lawyers if there 				own private views would be decisive;
			9.	This sometimes referred to as the ethics of hired gun.

CAN MORALITY IN PRIVATE LIFE BE DISTINGUISHED FROM PROFESSIONAL LIFE?

1.	Professional regulation = lawyers are client-orientated and lose focus of broader ethical and civic responsibilities;
2.	The = they would do for clients, what they normally would have found immoral/unethical.
3.	Lawyers own private views therefore to be disregarded due to the nature of profession.
4.	Therefore not focussed on balancing interest of all involved, or try to ascertain true version of facts, or apply the law objectively to the facts.
5.	The rule based/role differentiated approach offered as a defence in that unethical conduct goes with their role as a lawyer where in professionally capacity, they don't 	act as ordinary people but as occupants/actors of a rule.
6.	The role insulates them from moral conscience in which standards of ordinary morality don't apply.
7.	Markowitz = morally good lawyer will be uncomfortable with this approach as role occupants/agents, disregards the fact of them being autonomous, self driven 	entities to be judged on their own moral merit.
8.	This approach = also a betrayal of their personal private moral ideals to always act honestly, justly an in friendly/cordial manner.
9.	Subjective approach = immoral/unethical behaviour = sub-ordination of their ideals to the adversary system and reduction to more cogs in the machine of the legal 
	System;
10.	This = loss of integrity/ideals/own life moral plan and an impression of acceptance of immoral conduct having become part of their professional character.
11.	Moral good character requires they have to identify with their own conduct and to know that it contributes to the fulfilment of their moral ambitions.
12.	Anything else would + that they would become estranged from their moral life and would use the integrity that gives meaning to their lives.

CAN ROLE-DIFFERENTIATED APPROACH BE JUSTIFIED?

(a)	Adversary System - judge = the impartial referee who listens to both sides of the opposing parties and who has to se that the legal representatives adhere to the procedures and rules.  Roles therefore divided - judge to ascertain true version of facts and apply law objectively and lawyer focus on clients interests and not on presumption of justice and the general good/or to balance the interest of all involved.  As mouthpiece for the client = have to fearlessly promote clients interests regardless of interests of other person. Justice and equal protection is assured under this system as everybody has the opportunity to present their case before an independent judge.  It is set in context however that everyone has equal access to legal representation and equal bargaining power.  Partiality and client loyalty therefore justified under role-differentiated professional ethics and regarded at the essence/NB virtue of legal profession.  Professional rules = clients interests to be fearlessly, jealously and even aggressively advanced and lawyer not to undermine clients case even if of the opinion that client won't win the case.  Client's morally undeserving often to be defended by lawyers and puts them in a moral dilemma between partiality and personal ethical ideals of fair play and honesty.

(b)	Sharp practices - eg aggressive cross-examination of truthful witnesses in order to undermine their credibility or to confuse them.  Also includes unnecessarily delaying a case, manipulating facts, making statements they themselves don't believe and pleading technical defences (egg prescription) knowing full well that their client morally obliged to compensate the claimant.  Only issues of relevance is whether there appearance in court was good or bad, whether their arguments was clever and whether their cross-examination was skilful.  Whether they told lies, abused power or acted unethically is not relevant to a role-differentiated approach.

(c)	Lawyerly virtues - the approach in respect of which morally good practitioners try to redescribe or deprofessionalize their professional role = don't need to renounce their own ethical ideals/integrity.  They therefore act virtuously because they strive for professional virtues of client loyalty and statesmanship towards the community ie they act selflessly and renounce themselves when promoting client's interests and uphold the political culture of the community by promoting a variety of interests.  These tasks therefore are to expose weaknesses of all positions through aggressive cross-examination.  These would not amount to the abuse of people.

CRITIQUE - MARKOWITZ - lawyers still despite above, have to abandon certain virtues Statesmanship and requirement to put both sides of a case and commitment to procedure rather than result still makes them morally unfit.  Redescribing professional role will solve the moral dilemma only if the outside world accepts this, which seems unlikely.  Lawyers are cast as villains by historical forces and must often abandon their integrity to be able to have really successful practices.

WASSERSTROM - holds that the concept of the hired gun can best be defended in the case of criminal lawyer and argues lawyers being subject more to the demand of moral point of view.  His instructions are as follows:

1.	The legitimacy of role-differentiated behaviour can be sustained only if the adversarial criminal law system (where prosecutor and accused act as opponents) is 	itself legitimate. However, we have some cause of scepticism about the justice and effectiveness of the present legal system.
2.	Role-differentiated behaviour justifies a cut-thought, "winner takes all", capitalistic ethic, competitiveness (rather than cooperation, aggressiveness (rather than 	accommodation and ruthlessness (rather than compassion).
3.	Lawyers cannot adopt a purely role-differentiated perspective as easily as medical doctors can, because it is intrinsically good to cure a disease, but in no way can it 	be intrinsically good to win every lawsuit at all costs, especially where lawyers need to portray that winning at all costs is the essence of justice.
4.	Lawyers pay a price for their role-differentiated professional behaviours because it is hard if not impossible, to divorce one's professional way of thinking from other 	aspects of one's life.  "Cleverness" and ruthlessness in professional life may have a devastating effect on a lawyer's private life.  The professional life one chooses often 	determines what kind of person one becomes.

ANSWER lies perhaps in move away from the legalistic/rule based/formalistic mind set that leads to role-differentiated behaviour between lawyers and clients which is stripped of all moral depth and public/civic responsibility.  This = the bad man perspective of nothing but fear before enforcement of rules being relevant.  If legalistic mind set is discontinued a more rewarding and ethically defensible lawyer-client relationship is possible on the basis of care (Menkel-Meadow) or the virtue of good judgement (Kronman).

Stan Ross - also argues that realistic approach leads to an inhumane present legal system but the moral contractual approach leads to a situation where one can reconcile being a good lawyer with being a moral or virtuous person.

PHILOSOPHICAL APPROACHES TO LEGAL ETHICS

1.	Rule based ethics = recognised by his sense of duty;
2.	Virtue-base ethics + recognised by types of character portrayed;
3.	Consequentialist perspective - recognised by the types of consequences he affects;
4.	Post-modern ethics - recognised by the sense of absolute responsibility to the other beyond the limits defined by established rules, desired consequences or 		existing character.

1.	Rule-governed Ethics (duty)

Also referred to as deontology (deontic ethics) = in order to judge human conduct you have to establish the ethical rule governing particular conduct.  Hereafter ethical rules take precedence over everything else eg. Over the consequence of the conduct.  Duty -

1.	Prescribes what ought to be done in order to qualify as a morally good lawyer ie rule to be accepted as duty;
2.	Once accepted as a duty, then one has to obey it.

Immanuel Kant - most famous exponent of ethics of duty.
Categorical imperative - the universalising of one's conduct ie. Any ethical situation requires that one should act in the same ay you would have others act in a similar situation ie. if conduct is morally good, for that reason it ought to be the action of everyone it therefore should always treat other with respect and never regard persons as merely means to an end.  You should treat other in such a manner that your conduct towards them can always be justified.  What aught to be done in order to qualify as morally good and the prescribed rule may be accepted as a duty and once accepted as a duty, one has an obligation to obey it.  Universalising ones morally good action imposes the duty on others to do the same and to accept and obey it since moral goodness is the reason for the duty.  Obedience is necessary because everyone desires moral goodness.

Hypothetical imperative - where people act contrary to the categorical imperative when moral goodness/ethical rules are weekend, downgraded or completely put aside moral goodness therefore no lawyer the decisive criterion as conduct complied with according to minimum standards outside them been trained to do so before sake of keeping your job and for the good of profession.  This move of duty = to fulfil minimum ethical rules/obligations (formalism/positivism/legalism) whether you like it or not and failure to abide bring sanction.  Compliance = acting ethically because they hold this to be morally good, but because they have been trained in this way and because it would be good for the practice and profession as a whole and out of fear of punishment and not as one of prudence or sense of duty.  Rule based ethics is haunted by the difficulty in explaining the origin of the moral sense of duty in regards as key

2.	Utilitarianism (Consequentialism) - Jeremy Bentham - famous philosopher.

Purpose orientated/teleological theory - that the only relevant thing is the purpose the action is intended to achieve and to whether the action is unjust or wrong.  Consequentialists therefore argue that purpose is to be understood in terms of sense of end-result or consequences.  Moral judgement therefore boils down to decision whether or not a given result is useful ie a result which induces and promotes the happiness of the greater number in society.  Bentham argues for the greatest number.  Usefulness and not duty and respect of legal rules therefore = the criterion of moral judgment.

CRITIQUE = not everything that's useful is by necessity right.  Useful things may be ethically wrong eg abuse of scientific and technological processes.  May any means be use in order to achieve greatest happiness for the greatest number.  Some say the end justifies the means and other say the end does not always justify the means.  Ends justifying means - lawyer who's convinced of client's innocence may lie in court/plot 2.  Kill the judge in order to vindicate client. Markowitz argues that the utilitarian would sacrifice one life to save the remaining twenty, as this will have the best consequences arithmetically ie. The conduct of sacrificing one life and the fact that murder of capture remains wrong therefore is of no consequence as the saving of 19 lives caries more weight then the one sacrificed.  Therefore each person ought to adopt the course of action that contributes the most well being to the world.  This approach therefore disregards personal moral integrity and does not hesitate to use people as a means to an end.

Justifications - professional guidelines can be useful in order to help avoid errors that could lead to disciplinary action.  This = public/professions image and perception improved re self-regulation of profession.  Satisfied clients = the practice benefits as character screening and censure = tools for preserving professionalism.  Consequences of actions beyond minimum ethical standards = increase rewards and esteem/ respect of their community thereby avoiding government regulation.  The public and professions interests and image thus protected as unethical conduct brings disrepute to the whole profession.  Client screening and censure therefore = useful tools to preserve professionalism.  Those exceeding the minimum ethical standards therefore along utilitarian lines, can argue that the consequences of their actions may be increased material reward and esteem and respect of their community.

3.	Virtue ethics - Kronman

Greek philosophy = virtue regarded as an excellence (arete) = accordingly that all ethics was virtue ethics.  Aristotle - ethics idea not based on obedience to prescriptive rules nor what useful consequences were, but on excellence of character.  Person' ethics and his personal success are intertwined = virtue ethics the virtuous person to flourish.  Ethics - is about favouring and satisfying appropriate ambitions and desires.  Aristotle - how to act = a question not of what rules prescribe nor what would be useful to achieve, but what a person of good moral character would do in the same circumstances.  Such person will act courageously/with virtue in a moral crisis.  In the sphere of fear and confidence, rashness = vice of excess and cowardice, a vice of deficiency and between the two vices lies virtue of courage.  Virtues essential to a perfect life can only be developed by participating as an active citizen in the public affairs of State.  Pursuit of private affairs (work/family) deprives one of an essential component of good life.  Man is described as a zoon politician - a political animal, to whom public participation came naturally as a made to develop all his moral and intellectual virtues fully.  Bios politikos = a life devoted to public-political affairs/debate at polis was the highest level of life attainable.  Participating in public life, demanded courage and to stand up for ones beliefs therefore became the virtue par excellence.  Public life was fiercely competitive and individuality and human excellence could here be demonstrated by courageousness.  Public life pursuit = therefore the truly good life which was far better and more virtuous than ordinary life.

Contemporary virtue ethics - revival of Greek thought and centres on the search for a specific virtue (excellence) that requires acting ethically in a given situation.  Predominant question therefore are "what makes a particular human quality a virtue and what is the relation between being a virtuous person and doing the right thing, what type of person you want to be come will determine the mode of conduct in a given situation.  Actions therefore will be determined between person you want to become, the excellence/virtue you want to embody and not by way of prescribed rules or by what results you want to achieve.

Anthony Kronman - is one philosopher who has adopted a virtue based approach to the ethical conduct of lawyers.  He suggests that a life in the law is valuable not because of money or status or justice it makes possible but because of the unique type of person or character it allows the lawyer to become.  The primary virtue of lawyers is the ability to make good, reflective judgments.  Carrie Menkel-Meadow has suggested that certain moral virtues can be described as feminine in nature (like caring for the needs of others), and hat women are in a better position to add these virtues to the modern practice of law.  This creates the opportunity of a feminist version of legal practice, legal ethics and the good legal practitioner.

KRONMAN - "LIVING IN THE LAW"

Adopts a virtue-based approach and argues that value in law lies not in the moral justice or status that law brings, but in the unique type of person/character it allows the lawyer to become.  Lawyers have to value the profession not for what it is but for what it brings.  Lawyers should have public-spiritedness ie obligations of citizenship, matters of public concern, well being of communities, preserving and perfecting legal institutions that play part in the public order itself.  Certain dispositional attitudes character traits should confirm the particular sort of person he is.  Such value should not so much in the limits of their work, as in the excellence of character.  The primary virtue of lawyers is the ability to make good reflective judgements and so too are courage ad temperance, intuition, deduction, and deliberation.  These often thought of as fights ie you have such original ability or not.  Judgment plays important role in respect of advice given and the political and personal choices we make.  Deliberation - compassionate survey of alternatives and viewed simultaneous from a distance and required excellence in judgment in order to meet conflicting requirements and accommodate tensions to make property choices after giving due consideration to each alternative.  Wise judgments lead to integrity and good choices.  Aristotle argues that integrity/good judgment can only be outwardly sustained if the inward friendship is sustained.  Wholeness or integrity is characterised by steadiness of action and purpose, reliability of character, dignity/self respect.

The specific virtues of a morally excellent lawyer:

Honour - certain qualities of mind and temperance, value lies in what the profession brings;
Public-Spiritless - re commitment to public good/public concern/community well being/responsibility;
Judgment - process of deliberating about and deciding personal, moral and political problems;
Deduction and intuition - ie deriving appropriate conclusions from a set of rules, fixed procedures - intuition = a fight of natural occurrence usually associated with experience and age.
Sympathy and detachment - each alternative to be given due consideration compassionately and from a distance in order to meet conflicting requirements and tension.
Deliberation and choice - sound judgment = multiple alternative range consideration and by making the property choice amongst the alternatives/choices regularly.
Judgment and character - ie to think clearly but also to feel in a certain way also habitual dispositions - constitute traits of character and defines one's person
Politics - bear the well being of the whole community.

4.	FEMINIST ETHICS - MENKEL-MEADOW
FEMININE VIRTUE OF CARE, EMPATHY ETC
Appeal to the equitable, contextual and merciful sides of law rather than the draconian certainty of rules and universal principles - females more likely to consider the other and to seek solutions that minimise harm to others rather than to find universal principles that determine an issue.  Move of a care meeting needs and minimizing harm than a rights/justice orientation if male.  Female - rely on notions of responsibility, human connection and are and ten to re-arrange rules/ principles in order to seek inclusive solutions.  In order to meet/accommodate peoples needs and voice therefore focus on the connection to others, on the people involved and their hardships and on the context of moral problems, male voice - traditional values of independence, autonomy, separation from others and universal principles of it modern liberalism opposed to the female voice of intimacy, care and responsiveness to hardships.

Critique - both females and males are capable of reasoning from different perspectives. Socialization and other social factors eg peoples context also play a side in choices people make.  Emphasizing female's differences = legitimates discriminating treatment of females differences and assigns.  Female the conventional domestic, maternal and other caring roles.  Law training can also blunt whatever gender differences that may exist.  Regard to also be had to situations other than traditional, white, middle class, nuclear family like other societal forces like educational institutions, peers and media yardsticks also to be considered.  Critique of Gilligan that she merely re-stated dangerous gender stereotypes which would continue to separate the sexes and devalue females in a hierarchical form.  In summary therefore equity should satisfy law, mercy temper justice, common law interpreting statute, discretion softening rules.

...TIAL OF FEMININE TRAITS/VIRTUES TO TRANSFORM LEGAL ETHICS

Female may be less confrontational in dispute resolution/mediation and more sensitive to clients needs and interests and those of clients families/employees.  They have less hierarchical managerial styles; have different social justice/altruistic nature and different ethical and moral sensibilities.  However, the impact of more female entrants into law reduces the stark motivational differences.  Students have generally also become more conservative over time.  Other studies show that there are no gender differences in motivation to study/practice law at all therefore it may be too early to tell whether there is a push or pull in terms of which direct female or other outsiders in law pursue.  Female interest can be protected via advocating legal and doctrinal changes, utilizing conventional categories, redrafting old categories, creating new categories of analysis (eg sexual harassment and pornography) and exposing male and white  bi.  Can be useful in order to transform the legal emphasis from rights to needs and in exposing how the law disadvantages females even when framed in neutral terms.  Can also broaden scope of area of practice for traditional female's issues to more conventional legal doctrinal one.  Inclusion of both genders - the number of available quality ideas/legal problem solving will increase.  Along the above lines, minorities, physically challenged, gays and ethnic and racial minorities could also improve the quality of legal decision making.  Females therefore don't focus on independent, autonomy and rules, but on others, care, context empathy and reduction of harm.  Females therefore value virtue, care, contextualisation and responsibility to others over rules, decisions, justice and rights of the common law adversary system.

Critics - ethical dilemmas should be seen s situational and contextual requiring a restructure of justice and care to met each situation.  Mercy should reason justice judgement and law and appeal to hers\feeling and concern for others.  Females therefore can reconstruct the profession and the legal system to be more c-operative, more contextualized, less-rule bound, more responsible to others/clients and more conscious of social just ends.

A number, of feminists writing about law have developed a distinctive version of virtue ethics.  They have argued that the influx of women into the legal profession may bring about significant changes in the practice of law.  "Feminine" traits such as empathy, care, nurturing and social commitment may transform legal ethics and processes, as well as the image of the typical "legal professional".

4.	POST-MODERN ETHICS - CHARACTERISTICS

1.	The demise of the belief in the universal validity of a particular (Western) life-style or morality;
2.	The celebration of difference,
3.	The rejection of absolutes as well as universals, and
4.	The recognition of the necessity to accept uncertainty and indeterminacy as a way of life.

Therefore because universal morality has ended, a single universal ethical code applicable and binding on all at all times don't apply.  All aspects of like are confronted with difference or diversity and the challenge is how to deal herewith as this diversity is not a given for all times nor is it immutable.  Uncertainty and unpredictability therefore underlies diversity and permeates the moral domain of postmodernism.  It therefore begs the question if it makes sense to try to seek and determine rules/absolutes in a situation if fundamental uncertainty flexibility and indeterminacy.

Law = a sole, definite and authoritative point of reference in to terms of which human conduct is to be judged and is underpinned by rules, universal principles applicable to all situations.  However this is precisely what postmodernism ethics denies and rejects.  Question therefore is whether it is possible to have law in post-modern times or to have a substantive moral/ethical code.  Because of the uniqueness of the situation the true differences involved in every person cannot be captured through general/universal rules.  Practical norms and not general rules/principles (Kant's claim) required in order to be receptive to otherness and differences in a truly open, pluralistic and democratic world.  Ethics thus unequal to a legal response prescribed by law, but acquires a new meaning.  Ethic be unequal to the substance/contempt of law, politics and morality but becomes a miring flag reminding us that new situations require just response and not just legal/rule like response.  Ethics can be only point to what is not yet or what is not justice but not prescribe a substance content to our laws/morality nor state what justice is.  Ethics = its never sufficient to follow universal rules or to achieve universally beneficial consequences.  It encourages awareness of hidden violence in the particularity of things, situations and people that such appeals to universality contain.

Ethics therefore emphasises paradoxes of morality and law ie without rules = there's a threat of anarchy - which would make any claim to justice impossible (ie rules make justice possible).  Rules = threat of bureaucratic rigidity which would make justice towards unique persons in unique situations impossible (rules make true justice impossible).

Conclusion

In the discussion above three important points were made.  We first defined ethics as the philosophical or theoretical investigation of what is regarded as moral conduct.  We than explained that it is impossible to discuss the norms regulating the professional conduct of lawyers without also entering into ethics as such. Lastly, we introduced the most important ethical perspectives, which can be adopted when moral dilemmas have to be solved.  We saw that the moral character of conduct is determined, depending on the ethical philosophy which is adopted, by either the obedience to rules which are obeyed out of a sense of duty, or by the consequences which will flow from the conduct, or by the qualities of character which are exhibited and strengthened by the conduct in question (including those character traits which feminists claim have been neglected in male dominated Western societies), or by the nature of the response to the uniqueness or differences encountered in plural post-modern societies.

We said that a brief overview of the most important ethical perspectives is important because lawyers have traditionally adopted one of two approaches to the discussion of professional conduct.  They have either claimed that the professional conduct of the lawyer is a question of positive law and therefore unconnected to the disputed philosophical questions of ethical philosophy the approach of Lewis); or they have simply assumed that the only or best way to approach moral responsibility is in a rule based fashion, thus disregarding other ethical approaches, like virtue ethics.  Recently, however, feminist, communitarian, and post-modern critics of liberal legalism have exposed the limits of the traditional approach to professional conduct.  We believe that these critiques are valuable.

REQUIREMENT OF GOOD CHARACTER OR OF BEING A FIT AND PROPER PERSON

Concept - the ideal closely linked to the idea that law is practised as a profession and therefore sound moral character is essential to professionalism.  Conduct - lawyer should justify the trust placed in him by his clients, adversaries and courts.  Only those of a certain character therefore allowed to practise law and via this virtue ethical perspective, certain quality/excellence of character is required.

History - Theodosian Code = Roman Law advocates to be of suitable character with praiseworthy lives.  Inns of court = English lawyers to have sound character, integrity and ensure that truth would never be concealed.

MADOWELL - concept - gleamed but proof codes of ethics in that truthfulness, high competence levels, dedication to clients, loyalty of the profession, trustworthiness and course in order to carry out proof respecting and desire to serve the public and a disposition to make decent, rational decisions in actual contexts of difficult judgment.

Reason - clients entrust lawyers with their affairs, honour, money, property and confidential issues and therefore they are to be worthy of this trust and confidence.  Lawyers of bad character therefore may fail to implement their duty to the court, client or may abuse position of trust - therefore protection of public interests when lawyers are honest, diligent and place clients right and the law above their own.

Criteria - admission strictly regulated by legislation and the inherent common law right of the court to regulate its own processes.  Extensive character screening prior to admission - not only relevant legal qualification but also proof of a fit and proper person required.  Section 15(10(a) and Section 22(1)(d) of Attorneys Act - court may enrol it in its discretion the applicant - a fit and proper person to be admitted and may also strike person off roll it in its discretion not a fit and proper person to continue practising as an attorney.  This standard therefore underlines the moral basis of the profession.  Similar provisions cater for in admission/removal of Advocates.  Standard in "America - the person of good moral character and have, like in RSA, the onus of proof hereof lies with the applicant.  Law Society and the American bar retains control of character screening subject to judicial oversight. State has an inherent duty to act for the public good and to safeguard the administration of justice from those who might subvert it through dishonesty, perjury etc. Moral character - virtue and universal character traits over the ages and access cultures as embracing truthfulness, high degree of honour, sense of discretion of a strict observance of fiduciary responsibility.

Critique/Objections to character screening prior to admission to the profession

Post conduct and history of Applicant's may not be good indicators of whether they will be a threat to the public once admitted.  Argued that at disciplinary proceedings at proper disciplinary proceedings if a better preventative measure that denial of individual perceived to be a risk.  Problems therefore to be remedied after it occurs.  Public therefore can be better protected in this way than trying to prevent the possibility of future problems.  Further argument that the bar should carry the burden of proving unfit character in disciplinary proceedings.  Presently, formal procedural safeguards are that as the Applicant further is decided and subjective judgement and predictions.  Disciplinary hearings = procedural safeguards are in place and objective criteria and actual wrongdoing = the basis for decision-making.  Personal info required to be given also may bear no meaningful relevance to the public interest and may also = infringement of the right to privacy.

Can our distinguish between the professional and private life of a legal practitioner

There are a number of obvious difficulties with the application of the "fit and proper person" standard.  One question is whether a clear-cut distinction can be drawn between the professional and private life of a lawyer.  For example, some aspects of strictly personal business dealings may spill over into a lawyer's professional life, and vice versa.  The fitness of a lawyer who has embezzled funds will be suspect, whereas his or her sexual indiscretions may not have such a negative effect.  Professional codes tend to reflect this lack of precision and differ in their approach to the requirement of a good moral character in private life, as opposed to professional life.  The American Bar Association's Model Code of Professional Responsibility (the Model Code) does not distinguish between professional and personal conduct, stating that a lawyer must comply with the rules at all times whether or not he or she is acting in a private or professional capacity.  It further prohibits lawyers from engaging in illegal conduct involving "moral turpitude".  This concept has never been defined, and could probably include matters related to personal morality, such as adultery and promiscuity, which may not necessarily have any specific bearing on the lawyer's fitness to practise law.  However, the American Bar Association's Model Rules of Professional Conduct (the Model Rules) do distinguish between private and professional life and state that "committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects" amounts to professional misconduct on the part of the lawyer.  The issue of whether there should be a distinction between professional and personal conduct has not been settled in South Africa, and there seems to be a discrepancy in this respect between the rules of the bar and the side-bar.  For example, the purpose of ethical rules of professional conduct at the side-bar has been stated to be to "regulate an attorney's conduct not only in his professional career but also in his personal life" while such a rule does not apply to members of the bar.  The rationale for the regulation of the "personal life" of the legal practitioner is probably that if you do something which brings you into disrepute, the profession and the administration of justice will also be brought into disrepute. 

Eshete argues that lawyers are required to act in ways that are orally questionable but justifiable on grounds of attaining morally important ends to present clients interest in the best possible light.  Lawyer's goal therefore not to be tempered by his personal attitude towards the client of moral insight might get in the way of cleverness, cunning, manipulation on behalf of client.  Satisfaction of the proof may come via the enjoyment of the spectacle of others being subject to their power in court.  They may therefore have to deliberately convey the impression that their client is innocent and discredit testimony of truthful witnesses.  Eshete argues that feelings of respect and self-contempt may have adversarial lawyers. Self deception inner collision and instability may also be present.  However he argues that it may be suggested that character is screened from professional conduct once they step out of the legal arena to resume their ordinary personal character.  This can be achieved by seeing their profession as a form of acting/role playing.  He concludes however that such argument is hollow and its difficult separating self from common and unattractive traits of character.  Lawyers loss of good moral character therefore = a case of self sacrifice, loss of personal good and public good also.

Not all philosophers accept the idea that virtue is inherent and consistent in some individuals, but not in others. Some argue that virtue can indeed be developed, while Rhode ("Moral character as a professional credential"), for one, questions the viewpoint that ethical behaviour is consistent or predictable or that fundamental character traits govern social conduct.  She argues that social research has failed to find evidence of consistent character traits in humans.  According to her, moral behaviour is more a function of specific habits and contexts than of any general attributes.  Persons with truly generalised consciences are reared.  "Although individuals clearly differ in their responses to temptation, contextual pressures have a substantial effect on moral conduct independent of any generalised predisposition.:  She holds that many individuals will, under some circumstances, violate the norms of honesty, integrity and respect for others.  Exposure to stress, strong competition, authority, or peer or client pressure can alter patterns of moral behaviour and see individuals yield to temptation.

Critique of the concept of good moral character

However, the concept of a "good moral character" has also been criticised as an "unusually ambiguous", fuzzy concept which creates the potential for arbitrary and discriminatory application and which of necessity reflects the subjective views and prejudices of the person applying the criterion.  It has been shown that in the United States, the standard of a "good moral character" has often been applied in arbitrary and prejudicial fashion, favouring those of a particular race, gender, politics and economic worth.  Rhode argues that in the 19th century in the Untied States, the character requirement was used to keep unpopular groups of people out of the legal profession.  eg. Women were considered too emotional, timid and delicate for legal practice (stark contrast to idea that women do possess certain virtues which make them especially valuable to legal practice).

In the early years of the 20th century, Jews, blacks, Eastern European immigrants and other non-conformists (such as radicals, divorcees, religious fanatics) were subject to such stringent character scrutiny that only a few gained entry to the profession.  During the second half of the 20th century, applicants were excluded because of their perceived membership of the Communist party, and Rhode holds that this kind of prejudice does not augur well for a profession charged with defending minority groups on the fringes of society.  She believes a broader range of values should be acknowledged, and that more debate and discussion are needed.  It is noteworthy that bar organisations consist mostly of mainstream practitioners who may wish to keep nonconformists out of legal practice.

Today, individuals in the US (and SA) are typical denied admission on account of violations of the law (violation of criminal law being considered as more reprehensible than that of civil law), acts involving dishonesty or fraud, abuse of legal process, disregard for financial obligations and failure to file tax returns, mental or emotional instability, and evidence of alcohol and drug abuse.  The various US state bars differ on their attitude towards matters such as religious fanaticism, ideology, civil disobedience and avoidance of military service (some states regard these as acts of the highest moral courage and others do not.

In this respect, McDowell maintains that, if possible, a distinction should be made between non-conformist actions that are valuable and enrich society, and those that are unethical and damaging.  While the concept of a "good moral character" should not be used to stifle innovation, difference and social criticism, it should nevertheless be retained as a powerful inhibitor of unethical conduct and as a something to which to aspire

The US experience is echoed in the chequered past of the legal professions in SA.  Whether somebody is a "fit and proper person' to practise law as an advocate or attorney is essentially a discretionary value-judgment on the part of the court.  In Prokerersorde van Transvaal v Kleynhans  the court stated that although its judgment must be made on the totality of the facts before the court, judgment will in the end be based on the general impressions formed by the court and its own sense of appropriateness.  The court has an inherent common law power to regulate the legal professions and therefore remains the final arbiter of what is appropriate in this regard.

That the court's judgment about what is appropriate has frequently been influenced by political considerations is an understatement.  When Mahatma Ghandi applied to be admitted as an advocate of the High Court of Natal, his application was opposed by the law Society of Natal because he was a person of Indian original and as such not a "fit and proper person to practise law.  This fact is not reflected in the official law report but is extensively dealt with in Gandhi's autobiography.  When Madeline Wooke wished to enter into articles of clerkship as a future attorney, the Cape Incorporated Law Society objected and refused to register her articles because she was a woman.  In this case a full bench of the AD relied on Roman Dutch law and it seclusion from legal practice of persons who could be termed "unfit and improper", including the deaf, the blind, pagans, Jews, persons who denounced the Christian Trinity, and most importantly, women.

During the years of apartheid, the various Law Societies brought numerous court applications to have lawyers, who had become involved in the struggle against apartheid, removed from the roll.  The political abuse of the "fit and proper person" standard is well illustrated by the case of Bram Fischer.  Fischer was struck off the roll of advocates in 1965 because of his opposition to apartheid.  In 1995 the Johannesburg Bar Council recognised the dilemma which faced Bram Fischer as a struggle lawyer and adopted the following resolution" "While recognising that options might differ, the present JBC has resolved that it does not hold the view that Bram Fischer was not a fit and proper person to continue to practise as an advocate.  It believes that a grave injustice was done to him and today it can only apologise to his family." legislation was subsequently enacted to allow for the reversal of this injustice.  In October 2003 Bram Fischer was posthumously re-instated on the roll of advocates in terms of the provisions of the Reinstatement of Enrolment of Certain Deceased legal Practitioners Act.

However, the end of apartheid and the reinstatement of Bram Fischer on the roll of advocates did not signal an end to the abuse of the "fit and proper person" standard.  In a highly publicised recent case, the Law Society of the Cape of Good Hope refuses to register a contract of community service of a prospective attorney (Prince).  As a committed Rastafarian, he had in the past illegally used dagga during religious ceremonies and intended to do so in future.

From Ghandi to Prince the modern history of the SA legal profession is marred by the arbitrary exclusion of persons belonging to marginalised or oppressed groups (on account of their race, sex, political affiliation or religious convictions) by having recourse to the "fit and proper person' standard.

CAN CHARACTER SCREENING BE CONSTITUTIONALLY JUSTIFIED

Given this history, it is not surprising that the character screening of lawyers has been the subject of a number of constitutional challenges during the first decade after apartheid.  What is more surprising is how little impact these challenges have had on the traditional legal establishment.  

A denial of admission to practise law has serious consequences of the individual and for his or her career.  In this respect it must be kept in mind that the right to choose one's trade, occupation or profession freely, although subject to regulation by law, is recognised in section 22 of the SA Constitution 1996.  The right to follow a legal) profession may not be limited without fulfilling the requirements set out in section 36 of the Constitution.

One may therefore assume that any qualification for admission to the profession such as the criteria of character) must be clearly related to the public interest and the applicant's fitness or capacity to practise law.  It could probably be argued that character traits or personal conduct that do not affect a lawyer's professional performance or the public interest should not play a role in the decision whether to admit him or not.

The issue was first raised under the interim Constitution of 1993 in Prokurerusorde van Transvaal v Kleynhans.  In this case the court was called upon to comment on the constitutionality of its statutory power to remove "unfit and improper" persons from the roll of attorneys.  It was argued that this power violated section 26(1) of the interim constitution (right to free economic activity).  The court rejected the argument.  It held that standards could be set for the legal profession, both as far as "competence" and "unquestionable integrity" were concerned, either on the basis of the internal imitation of the Section 26 right or in terms of the general limitations clause, Section 33(1) of the Interim Constitution.

In Law Society of the Transvaal v Machaka the constitutionality of the power of the court to strike somebody off the roll was again challenged.  However, the challenge was brought under the final Constitution of 1996 and was much broader in scope than that in Kleynhans.  it was argued that the fit and proper person standard violated the right to dignity, equality and freedom. The right not to be subjected to cruel, inhuman and degrading treatment, and the right to choose one's trade, occupational or profession freely.  Ruling on the judgment in Kleynhans, the court rejected these arguments as well as the idea that membership of the legal profession should not be subjected to the character screening of the person involved.  The court held that character screening prevented the right to freely choose one's profession from being abused by criminally minded attorneys.

the admission requirements for the legal profession were also challenged in Rosemann v General Council of the Bar of SA.  In this case it was argued that the division of work between the professions (advocates and attorneys) and the referral rule was irrational, and as such an unreasonable limitation on the right to freely choose one's profession.  The Court once again rejected the argument and held that the freedom to choose a profession was not violated by the dual structure of the profession.  The applicant was at all times free to choose whichever profession he wanted to pursue.  Even if it was accepted that the restriction on attorneys to do the work of advocates violated section 22, the restriction remained justifiable because of the benefits, which accrue to the general public from the specialisation of legal services.

From these cases it is clear that the constitutional challenge to the admission requirements currently applicable o the legal profession has thus far met with very little success.  The "fit and proper person" standard and the principle of character screening have both been accepted as constitutionally valid, without any serious consideration given tot he exclusionary impact this test has had in the past.  Nor have stricter rules for the application of the character test been laid down to curb further and future abuse of this open-ended standard.

As mentioned above, the constitutional challenge to character screening in cases such as Kleynhans and Machaka has thus far failed to establish any of these points as a matter of public and constitutional concern.

Nevertheless, in spite of these unanswered questions, we suggest that the requirement that lawyers must prove that they are "fit and proper persons" for the legal profession opens the door of the development of a more ethical profession grounded in an ethics of virtue.  Once the importance of character (over and above legal knowledge and technical skills) is acknowledged, the next question concerns, which character traits good professional lawyers should exhibit.  Then the suggestions of say, Kronman and Menkel-Meadow on he virtues typical of good practitioners, come to the fore.

As we explain the next section, the above questions have generally not been asked in SA, mainly because the character test encapsulated in the "fit and proper person" standard has been overshadowed by a concern with the duty of lawyers to obey the law.  In terms of this approach the first duty of a legal practitioner is to assist the courts in their administration of the law.  Legal practitioners are regarded as officers of the court and they have a duty to uphold the law.  Law is understood in a positivistic sense as the legal rules currently enforced by recognised state institutions.  The starting point for this thinking is that a person joins the legal profession out of deep-seated respect of the law, and that he or she should respect the law under all circumstances.

In terms of the philosophical language developed above, one could also say that a virtue-ethical approach to the legal profession has been overshadowed by a rule-based approach.  When it mattered, the courts were inclined to demand blind obedience to the rules of the positive law, rather than independent good judgment from lawyers.  A "fit and proper person" for the legal profession has generally been understood to be a person who faithfully obeys the law, as opposed to one who exercises his independent good judgment (or the other feminine virtues celebrated by Menkel-Meadow).  This approach can partly be explained as a strategy to curb criticism by layers of the apartheid legal order.  The irony is that the same approach is still applied in post-apartheid SA, as the Prince case makes clear.

SHIFT FROM CHARACTER (VIRTUE) TO RULES (DUTIES)

Ex parte Krouse - Krause practising advocate and ex Boer War prisoner of war who was released on parole in England.  Was admitted to the Middle Temple in England.  Inns of Court was convicted for attempt to incite murder after he wrote a number of letters suggesting that an author describing Boer forces as outlaws in newspapers should be killed.  Upon conviction, he was debarred but on return to RSA and upon expiry of the sentence, resumed Advocate practice at the Cape Bar.  Applied to be admitted to the ZAR (Transvall Bar Council) granted as held.

1.	Generally previous convictions would disqualify application;
2.	Previous conviction, per se not decisive but whether such conviction reflected negatively upon the personal honour.
3.	Criminal conviction, usually - dishonourable character but if this was out of political nature and not out of spite/private interest promotion then the criminal offence would not negatively reflect on moral character.

Mandela case - upon participation in the Defiance Campaign against Apartheid Mandela convicted for violating a number of apartheid laws including the suppression of Communism Act.  Transvaal Law Society failed in attempt to have him removed from the roll in that:

1.	Criminal conviction is prima facie evidence of misconduct;
2.	However deliberate disobedience to the law - disqualification to practice law;
3.	Removal follows in respect of offence unrelated to the practice if in respect of dishonesty leading to doubts being raised if attorneys as officer of the court can be trusted;
4.	Conduct therefore to be of dishonourable, disgraceful or dishonest kind making attorney unworthy to remain in the ranks of a honourable profession;
5.	Motivation for the unlawful conduct was to achieve vision of non racial RSA and though unlawful was not of a personally disgraceful character;
6.	Suspension of fractioned convicted of a crime therefore not to be punishment for an offence he was already punished/sentenced.

Political motivation therefore was the exception.

Matthews Case - shift in the law from focus on character of politically motivated practitioners to a focus on duty to obey the law.  Articles not registered due to convictions under the suppression of Communism Act.  Court held:

1.	Mandela and Krause character approach to narrow in scope and confined to the honesty and personal honour of the person;
2.	Actual question to be asked therefore is not whether defiant conduct portrayed a lack of integrity, honesty and honour, but whether it could be reconciled with the duty of an attorney to uphold all existing laws of the land;
3.	Honourable motive/cause therefore not decisive, but duty to uphold law as officer of the court;
4.	Officer of the court therefore cannot himself contravene the law/incite others to do so also even if the motive therefore is political.  This duty stems from oath of allegiance to the State and to the law that's required to be sworn by every practitioner.  Lawyers therefore to advise/further the desired case within the boundaries of how the current law is set.  This narrow rule-based ethical approach - apartheid government enacted many racist laws/policies.  Lawyer's duty was to obey duly enacted laws even if unjust.

TRC - asked this question to which the defence of legal proof was that lawyers duty was not shirked to obey the law when they served the administration of justice under apartheid.  TRC rejected this arguing that lawyers legitimised the Apartheid State and sustained it s longevity by participating therein and by keeping its legal system intact.  Racism therefore provided with some decency while courts were portrayed as being independent.  Blind obedience to the law, even though of a fundamentally unjust nature, betrayed the ultimate purpose of the laws quest for justice.  The legal professionals uncritical attitude subconsciously/unwillingly contributed towards the legislature and exertive pursuit of injustice.  Use of the law - lawyers had opportunity to preserve basic equity, decency and the pursuit of justice which was inherent in RSA common law.  Duty to uphold the law = not to uphold every positive law by the duty to hold the legal system accountable to its final objective or moral end ie the pursuit of justice.  TRC held that if more lawyers resisted legislature encroachments on basic rights and lawless and had maintained equitable common law principles court would have had to curtail the jurisdiction of the courts.  This would have exposed the moral bankruptcy and degeneracy of its policy.

Prince Case - recently held that deep seated bona fide religious convictions of unlawfully using dagga in religious ceremonies does reflect adversely on the good character therefore the shift from virtue (character to duty to obey regardless of political/religious convictions - deliberate attempt to purify the legal profession in service of the apartheid state and bears testimony to the hold of legal positivism and formalism mind set of apartheid judiciary and legal profession therefore appears that the duty and not the character test was carried over to the new RSA.

In the above overview of the campaign to have struggle lawyers struck off the rolls of attorneys and advocates two approaches come to the fore:  The first approach (virtue-ethical) emphasise the moral character of the legal practitioner and asks whether the offence discloses a dishonourable or disgraceful character.  The second approach (rule-ethical) focuses not he objective duties of the legal practitioner who is an officer of the court.  In general, this includes the duty to obey all the existing laws of the land.  Open defiance of the law and incitement of others to defy the law are serious breaches of this duty, irrespective of the good moral character which the political offender may exhibit.

Above, it was argued that the second approach (in which it is asked whether the legal practitioner fulfilled his duty to uphold the law of the land) gradually displaced the first one (character approach), and that the courts showed a growing reluctance to investigate the character of struggle lawyers as reflected in their political convictions.  The courts tended to focus on the seriousness of the crime involved and on apparently objective standards such as criminal conduct (divorced from its political context).

DOES SERIOUSNESS OF CRIME CONVICTED OF PLAY A ROLE RE ADMISSION AND DOES THE END RESULT (DEMOCRACY) JUSTIFY VIOLENT CONDUCT?

Hassim Case - convicted of assisting with recruitment of persons to undergo political and military training as part of the armed resistance to apartheid. This contravention of the Terrorist Act led to application to remove from the roll of attorneys.  Evidence was led that he was of good moral character, good name and integrity and the unlawful conduct was done out of a sense of loyalty to the political movement to which he belonged and that he was personally opposed to violence.  Argued also that this conduct was unrelated to his professional work and that his good name, honesty and integrity as an attorney undisputed and the offences were born out of a desire to bring about democracy.  Court found that any attempt to conspire with others to violently overthrow the government was disgraceful and a reprehensible method of voicing protest.  Disobedience of the law out of political conviction therefore was sufficient proof of bad character.

Moseneke Case - convicted for sabotage though never actually involved in any act of violence, sabotage or rioting (the offence was that broadly defined) but merely because he had attended a number of PAC meetings when still at school.  Court held that the commission of a political offence, even as a child and without any element of violence attached to it, reflects negatively on the character of the individual and if application admission was made at such time, this would have rendered in an unfit person.  however as he had undergone a complete and permanent reformation - he now was a fit and proper person for the legal profession.

Magubela Case - convicted of high treason in which sabotage and explosions injured many civilians and caused extensive damage.  Even though he did not personally do these acts he acted in concert with two other accused who actually did the sabotage.  He conceded that high treason - to a serious offence, but that the political nature - substantial extenuation in deciding if he was a fit and proper person to continue practising.  Court held that political nature for the offence per se does not dignify continuance to practice but also won't necessary excuse such misconduct.  Court held that the inherent offence especially a common law one is not altered by the fact that the motive therefore was political.  Court differed from the Krause case holding that the unlawful act was directed at a hostile combatant at that time and no destruction of property and resultant injury to innocent people. court therefore looked at grounds of the offence in that the nature thereof was in itself dishonourable and morally reprehensible regardless of his moral character/motivations. The political offences exception in Krause and Mandela therefore not considered.

Justification for violence

Ends don't always justify the means, never mind how noble the cause. However the apartheid State made it difficult for reform within the system particularly due to its Parliamentary supremacy and formalistic mind set - ie as long as laws (no matter how unjust) we procedurally/formally correctly passed, it had to be obeyed.  Various laws were so broadly defined, that any opposition by legislature means was almost impossible.  Opposition fighting for laws to reflect justice was therefore suppressed and the majority with the legal profession complied uncritically wit unjust laws.  Freedom fighters were branded as terrorist and saboteurs whereas their goal was merely liberation and freedom and the constitutional ideal.

The question also arises on which grounds legal practitioners may decide to practise civil disobedience, or to engage in violent resistance.  Various answers are possible.  It may be argued, eg. That resistance if justified when

*	The laws are immoral.  It would then be a matter of the individual conscience to decide whether or not to obey them (with no guarantee that this conscience is always correct, or that it doe snot conflict with somebody else's' conscience).
*	It is based on the individual's religious beliefs.  The idea is that one should obey God rather than man (bur we know that the Bible, eg, can be (and has been) interpreted in different ways.  There have been attempts to justify race discrimination on the basis of specific interpretations of the Bible).
*	Positive law is unjust, and not worthy of respect.  In this regard, appeal is generally made to natural law (as a higher law against which positive law is measured) and man's reason.  Locke's social-contract theory stems from this idea.  According to Locke's theory, the primary function of government is to protect individual inalienable rights (eg. the right to life, freedom and property) in equal measure, and to act in the intersts of all.  The state and its laws need be obeyed only as long as they fulfil this function.  Civil disobedience and violent resistance would be justified if the state fails to uphold its side of the bargain
*	Utility so dictates.  Disobedience tot he laws of the land is regarded as an instrument for brining about the greatest good for the greatest number. Conduct A (sabotage) may, according to the utilitarian viewpoint, hold greater benefit for society than conduct B (obedience to the laws), since eventually it will result in a democratic state, even tough it may mean that some people will be hurt or will suffer loss in the process.

We have already mentioned a number of difficulties, which might be associated with a more fully developed virtue-ethical approach or character screening test for prospective legal practitioners.  The discussion above has revealed another possible danger, which might attach to the calls for a less rigid and rule-based approach to legal responsibility.  If we water down the duty to obey the law, or no longer make that our central concern, then the threat of anarchy begins to loom large.  Serious dangers may attach to civil disobedience, or worse, to violent resistance.  If each person was to decide which laws he or she wises to obey the country may become ungovernable.  Disrespect for the law, violence and anarchy may ensue.

CAN PREVIOUS CONVICTIONS PROVIDE EASY MEASURE TO EVALUATE FITNESS TO PRACTICE LAW AND CAN THE CHARACTER TEST IN KRAUSE BE APPLIED WHERE DEFIANCE OF LAW ON RELIGIOUS GROUNDS

Krause - 

1.	Generally previous convictions disqualify admission and justify removal;
2.	It's not the conviction per se that's decisive, but whether such conviction reflected negatively upon applicant's personal honour;
3.	Criminal conviction - dishonourable character but excused if motive was out of political conscious or out of spite/private interest promotion.

Mandela -

1.	Criminal condition - prima facie evidence of misconduct;
2.	However deliberate disobedience - disqualified to practice law;
2.	Offence to be in respect of relation to the professional capacity;
4.	An unrelated practice offence indispensable to continue practising eg dishonesty lead to doubts re trustworthiness as an officer of court;
5.	Conduct therefore to be dishonest, disgraceful, dishonourable making attorney unworthy to remain the ranks of a honourable profession;
6.	Unlawful act therefore to be of a personally disgraceful nature but is excused on basis of political conviction/motivation;
7.	Suspension/removal therefore as a punishment for an offence the lawyer already punished for.

Matthews case, Hassim Case, Moseneke Case and Magubela Case - conviction and nature and gravity of previous convictions used to evaluate fitness on basis that political motivation exemption not to be considered, but whether defiant/unlawful conduct could be reconciled with the duty of attorney to uphold the laws of the land.  Honourable cause therefore not decisive nor is the inherent nature of the offence altered if motive for it was political. Held that nature and gravity of the act itself was dishonourable and morally reprehensible regardless of the moral character/motives.  Disobedience of the law out of politics conviction therefore was sufficient proof of bad character.

Prince Case - devoted Rastafarian not allowed to register for articles as law society of cape refuse on basis of previous convictions for possession of dagga and his intention to continue breaking the law in such regard.

First, he argued that the prohibition of the use and possession of dagga in section 4(a) of the Drugs and Drug Trafficking Act was unconstitutional in so far as it did not make provision for an exception for its bona fide religious use.  Secondly, he argued that even if the prohibition were not unconstitutional, his contravention of the prohibition in the past (and in the future) would not by itself prove that he lacked the character traits that would make him a fit and proper person to practise law.  Prince argued that he was constantly forced to choose between his deep-seated and sincere religious beliefs and the law, and that by choosing his religion above the law he was exhibiting precisely the moral fibre and integrity needed of lawyers.

Both these arguments were rejected it the HC (and eventually in the SCA).  The courts now had to deal with an offence stemming from deep-seated religious feelings, and had to answer the question whether the unlawful use of dagga for religious purposes reflected adversely on the good character of the person.  The SCA, after being invited by Prince to do so, refused explicitly to follow the character approach developed in Krause and Mandela, on the ground that the facts of the Prince case were materially different.  The court preferred to adopt the rule or duty approach, and emphasised the objective duty of legal practitioners to obey the law.  It would thus seem as if the duty test, and not the character test, has been carried over to the new SA.

There are however indications in the CC judgment that the position taken by the CC and the SCA on this issue does not find universal support among AD's senior judges.  In all three the judgments delivered in the Prince case, the possibility is raised that Prince might still be a fit and proper person to practise law in spite of his criminal convictions and continued defiance of the law.

Sachs J, egg, judges the defiance of the law by Prince against the politics of open democracy and of "reasonable accommodation of difference".  According to his understanding of democratic politics Prince should not be forced by an inflexible application of the law to make the excruciating choice between his conscience and his career.  From a democratic-political perspective, Sachs J has no problem to concede that, in spite of his opinion defiance of the dagga prohibition, Prince has shown himself to be "a person of principle, willing to sacrifice his career and material interests in pursuance of his beliefs".

From this obiter remark one can infer that Sachs J is of the opinion that Prince's religious (but illegal) use of dagga does not render him an unfit or improper person for the legal profession.  This inference is supported by a further statement by Sachs J to the effect that the Law Society in the past impoverished itself by excluding persons of honour and integrity because their beliefs had brought them into conflict with the law.  This implicit reference to the struggle lawyers is significant.  It suggests that the CC may well in the future return to the older character approach of Krause and Mandela.  Such a return would be significant because it may reopen the door for a more fully developed virtue-ethical approach to the professional conduct of lawyers (as argued above).

DOES GHANDI'S STYLE OF LEGAL PRACTICE, SHOW ANY SIMILARITIES TO THAT OF MENKEL-MEADOW?

Ghandi - commitment to justice rather than  positive law and political action and participatory democratic citizenship.  Principles rather than influence convicted for him. Task of lawyers was not legal victories or to rake up points in law, but to reconcile the litigants and establish a lasting and amicable relationship between them via alternative dispute resolute methods like arbitration.  He therefore tried to befriend the parties and bring them together in order to achieve a compromise.  He therefore had the true function of a lawyers role was to unite parties driven asunder and to bring about private compromise.  He also introduced the value of a public sprit and political action to the Indian merchants to show that the community was one and indivisible.  Ghandi applied to be admitted as an advocate, but was opposed by the Natal Law Society because he was an Indian person. Ghandi's approach therefore was the ideal of peaceful reconciliation.

Menkel-Meadow - also appeals to the equitable, contextual and merciful sides of the law.  Also aims to seek solutions that minimises harm to others.  Also a care orientation inherent in feminine view of law that promotes responsibility, care, compassion, inclusive solutions, accommodate peoples needs. Also focus on compromise, reconciliation, arbitration, connection to others and responsiveness instead of the liberalist ideals of independence, autonomy, separation from others and universal fixed rules/principles. They try to re-arrange rules/principles in order to seek solutions and accommodate needs of others.

CAN LEGAL PRACTITIONERS POSSIBLY FULFIL HIS PROFESSIONAL DUTY TO OBEY THE LAW OF THE STATE ALWAYS?

Fischer Case - one of the senior of lawyers during the struggle who tried to keep the Constitutional idea alive during apartheid on basis of the moral ideal of just law.  These lawyers denied the blind duty to obey the law and claimed that their true virtue as lawyers (good judgment, care for the community and the oppressed etc) required of them to obey the positive law of the State.  State argued that this stance made them unfit to practice law.  The duty approach was applied int his case to counter Fischers challenge to the unjust laws of the land.  He applied for and was granted bail in order to attend Court in England.  He returned to RSA to face the charge under the Suppresion of Comunist Act but refuses to stand traial.  CA held the deliberately misled court when applying for bail, that the cotempt of court - dishonest and reflected negatively on his character.  Court held that he is bound to the same d  as the cour to uphold the laws of the land that were duly enacted and promulgated.  therefor it would be inconsistent with the duty of the court to allow him to remain on the foll as he was defying those laws and inciting other to do the same.  his defence that his political conscience did not allow him to do otherwise was to no avail.  cort held that breach of faith in estreating his bail despite solemn assurances can be stigmatised as dishonest conduct.  Held that such conducts would be negative on the public opinoin in that othrs would also not value their pledge to honour their bail conditions.

Prince Case - Court preferred to adopt the rule/duty approach instead of the character approach and empahsised the objective dut of legal practitioners to obey the law.  Cour theld Prince not to be a suitable candidate as he had two previous convictions for dagga possession and because he made his intention clear to continue breaking the law.

Sachs J, eg, judges the defiance of the law by Prince against the politices of open democracy and of "reasonable accommodation of difference". According to his understanding of democratic politics Prince should not be foreced by an inflexibel application of the law to make the excruciating choice between his conscience and his carrer.  From a democratic-political perspective, Sachs J has no porblem to concede that, in spite of his open defiance of the dagga prohibition, Prince has shown himself to be "a person of principle willing to sacrifce his career and matrial interests in pursuance of his beliefs".

From this boiter remakr one can infer that Sachs J is of the opinion that Prince's religious (but illegal) use of dagga does not render him an unfit or improper person for the legal profession.  Thsi inference is suppoted by a further statment by Sachs J to the ffect that the Law Society int he past impoverished itself by excluding persons of honour and integrity because their beliefs had brought them into conflict witht he law.  Thsi implicit reference tothe struggle lawyers is significant.  It suggests that the CC may well int he future return to the older charactr approach of Krause and Mandela. Such a return would ebe significant.

Mathews Case - the Cape Law Society refused to register Matthews's articles of clerkship because he had two previous convictions under the Suppression of Communism Act (the same offence as int he Mandela case).  In deciding against the applicatn, the court rejected the character approach adopted in Mandela and Krause because of it narrow scope. According tohte court, the Mandela judgment focused only on the question whether the offence in question reflected negatively on the honesty or personal honour of th eperson invlved.  The court now reasoned that the real question was not hwether participation int he Defiance Campaign disclosed a lack of integrity, Honesty and Honour, but whethe rit could be reconciled witht hed uty of an attorney to uphold allthe existing laws of hte land.  According to the court, therfore, the question was not whethe rthe motive for the criminal conduct was honourable, but merely whethe ritw as consistent witht he duty of an officer of the cour to uphold the law.  An officer of the court cannot himself contravene the law or incite other to do si,even if the motive for doing so is political.

The new duty approach rested ont he fact hta tevery legal practitioner is reqired to swear an oath of allegiance to the sate and the law.  The first dut of a legal practitioner is thus imply to uphold the laws of the state. The task of a lawyer is tro advise this client onthe law as it is, and to further that client's case within the boundaries set by the law.  However, the SA apartheid experience has taught us that this rule baed approach to professional conduct might be too naroow an understanding of the ethical limits of the legal profession.  What if the laws in force in a state are fundamentally unjust?  Would the lawyer's duty to respect the law then be met if he merely obeyed these (unjust) laws?  Thsi question was raised during the TRC inquiry into the role of the legal profession under apartheid.  The aparthed government made extensive use of the law to implement its racist policies.  What was the duty of those person who practised law as attorneys and advocates during the aparthed years?

***

QUALITIES REQUIRED OT LEGAL PRACTITIONERS PER LM DU PLESSIS:

1.	Integrity - also - upright stead fastness or impeccable honour, incorruptibility, non submission to temptation, irregularity and dishonesty for the sake of personal gain - also full disclosure of facts and evidence detrimental to the client, not aiding client to be dishonest, not misleading the court.

2.	Objectivity - fairness, impartiality, focused judgment that bears no irrelevant considerations, reconiling conflicting interest and choosing between various possibilities, what's in client's best interest therefore a natural justice that's inborn that distinguishes facts from emotions.

3.	Dignity - honest and objective judgmenets, keeping a level head and maintaining and promoting the dignity of courts and maintaing inpeccable cour tmanners. Justice also to be seen to be done totally.  shoudl conduct themselve sin a dignified manner in court.  Should not sell their services if they were hawkers wares therefore advetising, touting and sharing of fees with non practitioners are unworthy practices. They are to conduct themselves ino rder to be worty of respect eg improper to write  threatening/meanacing letter to debotr of Attorne.

4.	Power of Judgment - to e skilled in judgment/decision making - unborn qualit but can be improved with training. This qality to be linked up with a sound knowledge of law and a sensitive regard for the peculiarities of each unique concrete situation. Should also be able to show equitable judgment via correct applicationa nd careful deliberation.

5.	Knowledge and Skill - should be legal experts in all branches of the profession as is embodied from admission requirements.

6.	Hard Work Capabilities - have to master huge volumes of work in a relativelyshort time.

7.	respect for the legal order - ie this respect before the pursuit of legality moriclaly reflects the political strings that the aparthed judiciary attached in Fischers Case. Though bail ws estreated and thsu - disrespect before the legal order/procedures, such disregard of the law, was out of political motivation and respect for the aim of the law ie justice itself.  Legal order only justified to exist if aimed to further, promote and protect the security and well being of citizens and should it fail this test, legal practitioners as servant of the law are justified in defying such laws and call for it s adjustment/rescission.

8.	Sense of Equity - rectification of the law in so far as the law is defective on account of its immersality application of the normative perepts of the legal order of justice to achieve its objectives of just.  Equity allows for exceptions in order to accommodate .. cases without frustrating the objectives of a justice promtoing legal order.

***

SHOULD OBLIGATION TO BE HONEST AND TRUTHFUL GIVE WAY AT TIMES TO EXPEDIENCY FOR THE BENFIT OF EITHER THE CLIENT OR THE LAWYER - DISCUSS FROM DEONTICY UTILITARIAN ETHICS IN LIGHT OF MERRET CASE:

Merret Case - Lawyer pressured by divorce client to get divorce through asap.  Attorney for the wife set down divorce on unopposed roll including an order for interim mainteannce to which husband's attitude was that the quantum of her claims were "outrageous in the extreme".  At hearing the judge asked wifes attorney if husband's attorney knew that the divorce wa going to proceed on an unopposed basis.  his reply was evasive in that "they know that we are proceeding. They have not filed an appearance."  Divorce granted but it surfacd that Defendant's attorney was not informed that divorce proceeding unopposed.

Court held that;

1.	Attorney deliberately misled the High Court therefore not a fit and proper person to appear before High Court or to remain on the roll of attorneys;
2.	Requirement of Advocates to be honest and truthful in their dealings with each other and the court also applied to attorneys.
3.	if professionals were not scrupulous of the trusth, in dealing with each othr and with the court the administration of justice would not survive;
4.	that such demonsteable lack of integrity justifies removal of the attorney's name from the roll
5.	that the court could never trust, believe what the attorney told it from the bar even though he protested he had learnt his lesson and would never repeat his actions.

FROM DUTY (DEONTIC) RULE BASED PERSPECTIVE

University of rules - everyone duty bound to obey as its what's expected from a morally good lawyer.  Thus Merret was duty bound to fully disclose unopposed divorce date as befitting conduct of a morally good lawyer.  Ethical rules takes precedence over everything else even consequence of conduct and even the formal rules of court.  merrett acknowledged acting too formalistic and that he should have acted more ethically but having regard to the under aspects of each particular case.  Divorce order therefor had to be rescinded as the ethical rules which takes precedence over everthing else, was violated.  the categorical imperative - one should act in the same way that you would wish others to act towards you.  Merrt would therefore have wanted the other side to act with the same consideration to them had the roles been reversed as this is what's required of a morally good lawyer.  People should not be regarded as a means to an end ie. the desparate situation of his client did not justify unethical conduct.  What ought to be done in order that the qualify as morally good conduct in terms of presecribed rules, must be accepted as a duty and everyone has a duty to obey it.  Minimum standards and formal rules to be complied with not just out of fear of removal/disiplinary action but out of a sense of duty or prudence.

FROM UTILITARIAN PERSPECTIVE

The purpose the action is intended to achieve is the only rlevant thing irrespective if the action is wrong or right therefore the purpose is to be understood in sense of en-result or consequences.  Moral judgment boils down to the result which promotes the happiness of the greatest number in society.  Usefulness and not duty/respect for the legal rules therfore = the criterion of moral judgment.  Merret was motivated by the purpose/end result justifiying he means as client in desperate financial need and could not afford to appear again before the cour tin an opposed trial.  The cause of his client and the purpose of the action was to achieve the masimum good within as short a time as possible without regard for whether the action was wrong or right.  Ends therefore justify his means but useful things not always ethially right as shown in Merret's disregard of personal moral integrity leading to his removal from the roll.  Merret probably fealt justified in being evasive , inconsistent in giving a misleading reply to the judge upon the utilitarian view of purpose/consequences and usefulness for the cause of his client.

HONESTEY IS ACHIEVABLE ONLY IF ONE HAS BEEN BORN INHERENTLY HONEST OR IF BEEN TAUGHT TO BE HONEST FROM EARLY CHILDHOOD - DISCUSS PER VIRTUE ETHICS:

Du Plessis - also referred to as integrity, upright steadfastness or impeccable honesty and immunity against tempastion to do something dishonest or irregular for the sake of personal gain or incorruptability.  these and other univeral timeless values are inborn and cannot be learnt or acquired.  However most of these can be worked upon, and improved by academic training provided they are by nature at least latent.  Inner dispostion is therefore decisive and thefore honesty and integrity cannot be taught.  Academically, however, students shoudl constantly be reminded that the legal profession is one of impeccable integrity.

Aristotle - integrity and good judgment can only be outwardly sustained if the inward frinedhsip is sustained.  Wholeness/integrity/honesty is therefor characterised by steadines of action, purpose, reliability of character, dignity and self respect.  The idea of ethics is therfore based on excellence of character.  A persons ethics and his personal success are intertwined implying that virtue allows the virtuous person to flourish. Therfore virtuous conduct is about what a person of good moral character would do ie to act with virtue/courageously in a moral crisis.

Virtue Ethicist - virtuous qualities like honesty is inherent and consistent in all people and can be developed.  However possession/non possession hereof is a matter a natural gift ie a certain talent that one may/may not have ie something one has by chance, that can't be acquired or learnt.

Crit - if virtue can't be learnt/acquired - only those gifted with virtues and honesty can be ethical and those not gifted are not expected to act honestly.  If honesty = a character trait dfeveloped over time = then you can't see it as a natural gift that you either have or not.  Such virtuous character traits are generally associated with distinctive patterns of feeling, of decsire of aversion and as well as modes of thought.  To have thi trait = to hold certain belief or to think in a particular way with steady regularlity over time ie a development process instead of inborn gift.

***

VARIOUS ELEMENTS OF DELIBERATION PER KRONMAN

Person with such quality - will entertain wide-rangin alternatives, but will also make a proper choice amongst them and a right decision regularly.  The sorts of decisions and the deliberative procedures are connected and a person who deliberates well, is likely to make sound/practically wise decisions. Entertaining a value or concern is a attitude underway between adopting it and jmerely acknowledgining its existence ie. a combination between compasion and detachment.  A person having fellow feeling/friendship amongst the different parts of his own self possesses a quality of wholeness best desvribed as integrity, steadiness of action and purpose, reliability of character, dignity of self respect shown to others.  Outward constancy possible only if person has inward friendship.  The pressure of the world can however destroy this inward friendship.  The alternative is not elimination of all conflict in the soul but sympathy towards oneself being the basic good upon which integrity depends.  The measure of integrity is also a function of the varioius choices made that over time will either strengthen the friendly attitutde of encourage self hatred and regret.  Wise personal decisions = shows good judgmen ie it promotes integrity ie it inreases satisfaction of being able to live with yourself on amicable tersm.  Wise judgement = lead to integrity and universe ones to disintegration and regret.

WHY IS THE DEVELOPMENT OF A CHARACTER TRAIT IMPORTANT FOR A PERSON TO BE ABLE TO APRECIATE WISE AS OPPOSED TO CLEVER ARGUMENTS?

Person who habitually shows good judgement in deliberation will be marked by his affecive dispositions, and traits of character which will be a defining feature of that person.  Someone with good judgment is discovered as a person of a certain character = about the kind of person that he is and not mjerely about hsi interlectual abilities.  Character trais are generally associated with distinctive patterns of feelings, of desire, oversions and modes of thought.  particular traits - liking/dislinking thing with steady regularity instead of holding certain beliefs or to think in a particular way.  having sound judgment, power of deliveration and iscrenment is more than a mere skill.  It is a trait of charater and the choice of a way of life.  Wise judgement thus stems form the reconciling of conflicting claims of sympathy and detacment.  This = the ability to see his clients situation from within and yet at the same time from a distance and to give advice that's both compassionate and objective.  The merely clever lawyer (the hired gun) can't give such advice where practical wisdom is required and therefore his counsel or judgment is not valued hightly.  The use of sympathetic imagination can be employed by the wise lawyer to accomodate conflicting interest within a framework of rights and obligations.  Practical wisdom requires more than cleverness/cunning, manipulative power, rhetoric and technique for making bad arguements appear good and vice versa.  Personal characters of good men and the persuasiveness of their arguments are more readily believed than those of them having bad character.  Character therefore may be called the most effective means of persuasion as character has a dispositional dimension of making visible his habits of living.  the lawyer must place himself in the position of the judge ie to see things from his perspective and to fram his arguments to show congruence betweeen his clients interests and those of the legal community as a whole.  judges know that clever arguement show inventiveness of use of legal and other materials to promote a clients cause.  A wise argument however establishes aforementieoned convergence between clients cause and the community of law which judges have to protect.  These arguments are given special weight.  Acquiring such character traits in seeing the legal dispute from the judges view is wha distinguishes wise arguments from characters.

***

Ex Fine Case - Advocate Fine signed letter on behalf of foreign lesee under fraudulent pretence of holding sufficien tfunds to cover the first 6 months of the lease.  Thsi also = a\contravention of Regulations of Law Society in that he wa acting as advisor in salried employment which may have affected his professional independence.  he also allowed lessor to continue to labour under the misaprehension that money had bene received and was held by him on behalf of client.  Although acting in clients intrest, but acted in a dishonourable way as scuh interest promottion on behalf of client was tained by fraud.

****

Prince Case - oath of allegience was an implied condition to be able to practice and violation of the oath reflects on fitness to remain in the profession as this involved swearing loayalty to the laws of the country. (Drugs Act and Medicines Act).  Defiance of these laws and his resolve to contineu contravening law in the future - not being regarded as a fit and proper person as this - repudiation of the oath of allegiance even before it was taken.  thjis reaking of the law = conduct that may bring the profession into disrepute and contrary to the standards of behavoir expected of officer of the court.  Prince argued that the constitutioal right to freedom of religion was imipeded by the law not allowing an exemption for use of dagga in bona fide Rastafarian practice.  Court held it was a limitation on his reight to choose his profession, right to his dignity and freedom practice his religion but that this was justified by a law of general application with a rational prupose of illegal drug control/enforcement.

***

Mandela case - his deliberate disobedience of the law and encouraging others to do the same had nothing to do with his practice as an attorney.  his conduct was also not dishonest, disgraceful nor dishonourable nor did it impact on his personal character nor was it an offence connected to his profession. Disobeying the law per se = unfit to continue but because of political motivation of defying unjust law in that justice should be the foundation of the existence of law.

Fischer case - held that Fischer's breach of faith in entreating his bail was not worthy conduct of an Advocate and that this breach of his solemn assurance to stand trial amounted to dishonourable conduct.  The impact on public opinion and the administration of justice would be deplorable, as nobody else would therefore honour their undertaking as binding.  Court held that he was not a fit and proper person as he openly stated that he would defy laws duly promulgated (no matter how must it was) and encourage others to also defy these laws. His commitment to obey just laws and political objection to unjust laws was not considered proof of his moral character and integrity.  This injustice was therefore his motivation to engage in civil disobedience.

Magubela Case - civil disobedience in respect of unjust law went too far according to the court in that this political offences of sabotage, conspiracy and high treason was not altered by the nature of it commission.  The gravity of the offences is therefore especially not excused and the Respondent had to forfeit the right to practice as the oath of allegiance to the RSA had been repudiated.  Such conduct was regarded as dishonourable and morally reprehensible and unbefitting a legal professional.