| 2. | The provisions of Part II of the code shall apply to, and be observed by, all legal practitioners, candidate legal practitioners and juristic entities including, where the context requires, legal practitioners who are not in private practice, but are not exhaustive. If legal practitioners, candidate legal practitioners and juristic entities are at any time in doubt about the meaning or applicability of any part of this code they may apply for a ruling from the Council. |
Misconduct on the part of a legal practitioner, candidate legal practitioner or juristic entity will include (without limiting the generality of these Rules)—
| 2A.1 | a breach of the Act or of the code or of any of the rules, or a failure to comply with the Act or the code or any rule with which it is the legal practitioner’s, candidate legal practitioner’s or juristic entity's duty to comply; |
| 2A.2 | any conduct which would reasonably be considered as misconduct on the part of a legal practitioner, candidate legal practitioner or juristic entity or which tends to bring the legal profession into disrepute. |
[Part II 2A (Misconduct) inserted by the South African Legal Practice Council, Notice No. 2235, GG49833, dated 8 December 2023]
| 3. | Legal practitioners, candidate legal practitioners and juristic entities shall— |
| 3.1 | maintain the highest standards of honesty and integrity; |
| 3.2 | uphold the Constitution of the Republic and the principles and values enshrined in the Constitution, and without limiting the generality of these principles and values, shall not, in the course of his or her or its practice or business activities, discriminate against any person on any grounds prohibited in the Constitution; |
| 3.3 | treat the interests of their clients as paramount, provided that their conduct shall be subject always to: |
| 3.3.1 | their duty to the court; |
| 3.3.2 | the interests of justice; |
| 3.3.3 | observance of the law; and |
| 3.3.4 | the maintenance of the ethical standards prescribed by this code, and any ethical standards generally recognised by the profession; |
| 3.4 | honour any undertaking given by them in the course of their business or practice, unless prohibited by law; |
| 3.5 | refrain from doing anything in a manner prohibited by law or by the code of conduct which places or could place them in a position in which a client's interests conflict with their own or those of other clients; |
| 3.6 | maintain legal professional privilege and confidentiality regarding the affairs of present or former clients or employers, according to law; |
| 3.7 | respect the freedom of clients to be represented by a legal practitioner of their choice; |
| 3.8 | account faithfully, accurately and timeously for any of their clients' money which comes into their possession, keep such money separate from their own money, and retain such money for only as long only as is strictly necessary; |
| 3.9 | retain the independence necessary to enable them to give their clients or employers unbiased advice; |
| 3.10 | advise their clients at the earliest possible opportunity on the likely success of such clients' cases and not generate unnecessary work, nor involve their clients in unnecessary expense; |
| 3.11 | use their best efforts to carry out work in a competent and timely manner and not take on work which they do not reasonably believe they will be able to carry out in that manner; |
| 3.12 | be entitled to a reasonable fee for their work, provided that no legal practitioner shall fail or refuse to carry out, or continue, a mandate on the ground of nonpayment of fees and disbursements (or the provision of advance cover therefor) if demand for such payment or provision is made at an unreasonable time or in an unreasonable manner, having regard to the particular circumstances. |
| 3.13 | remain reasonably abreast of legal developments, applicable laws and regulations, legal theory and the common law, and legal practice in the fields in which they practise; |
| 3.14 | behave towards their colleagues, whether in private practice or otherwise, including any legal practitioner from a foreign jurisdiction, and towards members of the public, with integrity, fairness and respect and without unfair discrimination, and shall avoid any behaviour which is insulting or demeaning; |
| 3.15 | refrain from doing anything which could or might bring the legal profession into disrepute; |
| 3.16 | unless exempted therefrom, pay promptly to the Council or any organ of the Council, or to the Fund, all amounts which are legally due or payable in respect of fees, charges, levies, subscriptions, penalties, fines or any other amounts of whatsoever nature levied on legal practitioners, candidate legal practitioners or juristic entities in terms of any powers arising under the Act or the rules; |
| 4. | Legal practitioners, candidate legal practitioners and juristic entities are required to become fully acquainted with this code and comply with its provisions; |
| 5. | Legal practitioners, candidate legal practitioners and juristic entities are encouraged to report unprofessional conduct by other legal practitioners, candidate legal practitioners or juristic entities to the Council in the manner prescribed in the rules prescribing the disciplinary procedure. |
| 6. | Harassment and sexual harassment |
| 6.1 | No legal practitioner or candidate legal practitioner may subject any person to sexual harassment. |
| 6.2 | No legal practitioner or candidate legal practitioner may subject any person to harassment, including sexual harassment. |
| 6.3 | For purposes of this paragraph 6: |
| 6.3.1 | “sexual harassment” is unwanted conduct of a sexual nature, or other unwelcome conduct based on the gender or sexual orientation of a person, which has the purpose or effect of violating a person’s rights, or creating an uncomfortable, degrading, humiliating or hostile environment or has the effect of violating a person’s dignity; |
| 6.3.2 | “harassment” is unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to a person’s membership or presumed membership of a group identified by one or more of the constitutionally prohibited discriminatory grounds or a characteristic associated with such group; |
| 6.3.3 | “conduct” may take the form of non-verbal conduct, verbal conduct, and/or physical conduct. Conduct qualifying as sexual harassment may occur in a single instance or may include conduct that occurs on a repeated basis where the effect is to sexually harass the person. |
| 7. | Approaches and publicity |
| 7.1 | For purposes of Part II of this code: |
| 7.1.1 | "publicity" shall include any direct or indirect reference to a legal practitioner or firm, published or disseminated by any written, pictorial or oral means, in any medium (including electronic and social media), irrespective of whether such publicity or reference: |
| 7.1.1.1 | is made in connection with any sponsorship, patronage, welfare activity, other similar benevolent purpose or support in any cause; or |
| 7.1.1.2 | is made, or is paid for, at the instance, or with the knowledge or consent, of the legal practitioner or firm; or |
| 7.1.1.3 | appears, or is contained, in any editorial, advertorial or advertisement and "publicise" has a corresponding meaning. |
| 7.2 | Legal practitioners shall ensure that all written and oral approaches (including letterheads) to clients, or potential clients, and all publicity, including the offering of services by publicity, made or published by or on behalf of a legal practitioner: |
| 7.2.1 | are made in a manner which does not bring the legal profession into disrepute; |
| 7.2.2 | are not offensive or inappropriate or do not constitute conduct which is in bad faith, unreasonable or unfair in respect of a matter in which another legal practitioner has already received instructions; |
| 7.2.3 | do not misrepresent the nature of the service offered; |
| 7.2.4 | accord in every respect with the requirements of this paragraph; |
| 7.2.5 | do not misrepresent, disparage, compare, criticise the quality of or claim to be superior to, the service provided by any other legal practitioner, whether or not such other legal practitioner is identified; |
| 7.2.6 | do not refer to a client by name in any publicity or advertisement published by or on behalf of a legal practitioner unless: |
| 7.2.6.1 | the prior written consent of the client had been obtained; or |
| 7.2.6.2 | the advertisement relates solely to the sale or letting of a client's property. |
| 7.3 | Legal practitioners' responsibilities set out in paragraph 7.2 cannot be delegated. Where a legal practitioner or a firm becomes aware of publicity referring to him or her or it which is in conflict with or infringes this paragraph 6, he or she or it shall immediately take appropriate steps reasonably necessary to have the publicity rectified or withdrawn and to further publish the rectification in the same medium or media as that in which the conflicting or infringing publicity appeared. |
| 8. | Specialisation and expertise |
Legal practitioners may, on the basis of specialised qualifications or experience—
| 8.1 | advertise or hold themselves out as being specialists or as offering specialist services, provided that if a legal practitioner claims specialisation or expertise in any branch of the law, the Council may: |
| 8.1.1 | require the legal practitioner to show good cause by a specified date why he or she should not be ordered by the Council to cease to hold himself or herself out as a specialist or as expert in any particular branch of the law; |
| 8.1.2 | order him or her to cease holding himself or herself out as a specialist or expert in the branch of the law concerned if it is the opinion of the Council that the claim is not justified; and |
| 8.1.3 | declare that such order shall serve as notice in terms of the rules relating to disciplinary procedures without in any way limiting the Council's powers in terms of those rules; |
| 8.2 | be accorded senior counsel or senior attorney status in accordance with criteria and procedures prescribed by the Council. |
| 9. | Integrity in performance of professional services |
| 9.1 | A legal practitioner and a firm shall take reasonable steps to avoid and prevent any reasonable suspicion arising that his, her, or its integrity is compromised in any respect. |
| 9.2 | A legal practitioner shall not, in giving advice to a client, advise conduct that would contravene any law; more particularly, a legal practitioner shall not devise any scheme which involves the commission of any offence. |
| 9.3 | A legal practitioner may give advice about whether any act, omission or course of conduct may contravene any law. |
| 9.4 | Whenever a legal practitioner performs any act in a personal capacity, which is ostensibly of a professional nature, he or she shall not permit any confusion to exist on the part of any interested person about whether he or she acts in a personal or professional role or both. |
| 9.5 | Whenever a client charged with an offence confesses at any time to a legal practitioner that the client is guilty of the offence, the legal practitioner must at once explain to that client that the future conduct of the matter shall be subject to these strictures: |
| 9.5.1 | the legal practitioner shall not assert or imply any fact, or permit the assertion or implication of any fact, which he or she knows to be untrue, nor shall he or she connive to substantiate a falsehood; |
| 9.5.2 | the legal practitioner shall not put forward any affirmative case inconsistent with the confession of the client; |
| 9.5.3 | the legal practitioner may argue that the evidence adduced to support the charge is insufficient to justify a conviction; |
| 9.5.4 | the legal practitioner may invoke or assert any point of law that might be of advantage to a resistance to a conviction; |
| 9.5.5 | the client may choose to retain the legal practitioner on the basis set out or choose to relieve the legal practitioner of the brief. |
| 9.6 | A legal practitioner shall, when a client gives conflicting instructions, or attempts to retract earlier instructions, withdraw from the matter if continuing to act for the client would cause unavoidable embarrassment to the legal practitioner. |
| 9.7 | A legal practitioner shall in the composition of pleadings and of affidavits rely upon the facts given to him or her by the instructing attorney or client, as the case may be, and in so doing: |
| 9.7.1 | shall not gratuitously disparage, defame or otherwise use invective; |
| 9.7.2 | shall not recklessly make averments or allegations unsubstantiated by the information given to the legal practitioner. |
| 9.8 | A legal practitioner who is briefed to prepare a document articulating the reasons relied upon by any entity or person whose decision is being reviewed or subjected to administrative appeal, must scrupulously express the reasons, as instructed, and must not distort their meaning by the manner of formulation or by the addition or subtraction of additional material. |
| 9.9 | A legal practitioner shall, in giving any advice about the prospects of success in any matter, give a true account of his or her opinion and shall not pander to a client’s whims or desires. However, in any matter in which the legal practitioner’s opinion is adverse to the prospects of success, the legal practitioner may upon client’s insistence place before a court the client’s case for the adjudicating officer to decide the matter and the legal practitioner shall advance that case as best as |
| 9.10 | Legal practitioners shall not abuse their positions of influence over clients by undue pressure upon them to: |
| 9.10.1 | plead guilty or plead guilty to a lesser charge; |
| 9.10.2 | accept a settlement of a matter. |
| 10. | Disputes about fees in non-litigious matters |
| 10.1 | Any disputes about the quantum or rate of fees charged by a legal practitioner or about work done by and value received from a legal practitioner in relation to non-litigious matters shall be subjected to a fees enquiry to be conducted by an authorised sub-structure of the Council. |
| 10.2 | An onus shall rest on the legal practitioner to justify the reasonableness of fees charged and that the work charged for was done and was reasonably necessary to be done, or was done at the request of the client or of the instructing attorney, as the case may be. |
