4a) Confidentiality in a general sense is to keep something either a secret or private.

In a legal
sense, confidentiality is the act of an attorney maintaining the privacy/secrecy of all communications
between himself/herself and the client. The rule of confidentiality is not only privacy of oral and
written information between legal practitioner and client, but is expressed in all exchange of
information regarding a client’s affairs. Confidentiality is essentially a tacit contract between two
people preventing any possible disclosure of such shared information to external parties besides
those who require it. Allowing the client to honestly disclose all relevant information without the fear
of the information being shared to any other people, therefore the information is ‘taken to the grave’.
b) Legal professional privilege is essentially a right or a doctrine that is given to a client in order to
protect certain documents and communications from being accessed by the others party in the
litigation matter and used as evidence. This right can prevent certain pieces of information from
being heard in court. The privilege belongs to the client of the legal practitioner and the client has
control over what information they choose to waive such privilege over. The client can express
information that he/she does not wish to expose to the others involved in the litigation, in order to
attain legal advice.
c) Confidentiality is the tacit contract that information shared between client and legal advisor will
not be disclosed to any source other than those that are required in the resolution of the legal
litigation- and is much broader in effect than a doctrine. And Legal professional privilege is the
further right possessed by the client to decide which information can and cannot be used in the
litigation process, further binding the privacy of the information possessed by the legal practitioner-
and is considered a doctrine. Information must first be said to be confidential before it can be
privileged.
5) The norm regarding confidentiality is that it is present in the form of an express or a tacit contract
within a legal or ethical relationship between two or more people, and or in the form of a delictual
duty preventing one from discussing or disclosing the information shared between the parties
involved.
6a) Legal advice privilege applies to all forms of communication between a legal practitioner and the
client in which the client wishes to receive legal advice.
b) Litigation privilege protects communications between either party involved in the litigation
between the legal practitioner/client and a third party obtaining information in relation to litigation or
collecting evidence for the litigation during the investigation or preparation for a court trial.
7) The right to professional privilege is said to be a negative right. As it works against the legal
system by negating certain information shared between clients and legal practitioners, which could
aid in a case, inaccessible by the courts for use as evidence. It cannot be a positive right as it does
not work to remedy an issue that has already arisen such as information being leaked. Therefore
legal professional privilege cannot be claimed against the whole world, protecting involuntary
disclosure. It is negative as others must refrain from taking action to infringe on the right.
8) Yes, professional legal privilege is limited. Previously, if SARS requested certain information from
a tax payer in terms of an audit or interview, the tax payer could choose to refuse the disclosure of
the information on the basis of it being legally privileged. However as of s 42A of Act 23 of 2015, tax
payers must prove that the information is protected by the privilege by providing a list of information
such as the details of all documents not put forwards as well as all the details of the legal
practitioner involved. As well as accountable institutions are required to report all and any
suspicious activities or transactions undertaken by clients, to the FIC.
9) In cases where an instance of misconduct in the legal profession is are authenticated in court,
those who engaged in the misconduct are most likely to be disbarred (struck from the role of
attorneys or advocates). As due to their misconduct, they no longer fall into the category of a ‘fit and
proper person’ in the eyes of the law, and no longer possess the capacity to serve in the legal
fraternity.
10) In terms of my moral compass, a person is considered a fit and proper person when they exhibit
certain factors associated with respectable and trustworthy individuals. Such as not only being
truthful to others, but to themselves, exhibiting honesty in all aspects of their lives. When they have
strong ethical and virtuous values, a strong exhibition of integrity and strive for justice and the
abidance of the law in all facets of their life. They must also have a strong sense for what is right
and wrong, and be able to act in accordance with that at all times, as well as have a good bearing in
terms of their moral compass to help guide their decision making when what they are faced with
opposes some of their values.
11) Legal practitioners may be unlikely to act as ‘fit and proper’ persons for a multitude of reasons.
Such as the increased competition amongst rival law firms when a professional level is reaches,
resulting in a tendency to sacrifice morality in order to have a higher win to loose ratio in terms of
cases, when compared to rival firms. Legal education does not adequately prepare lawyers for all
the possible challenges that their morality will face in the real working world. There is a general
lawfulness in society where persons simply do not use their internal moral compass as they are
either relaxed or do not possess one. As well as pressures from an opposing party, where the
lawyer is pressured into putting his client’s interest ahead of his own as well as ahead of the
interests of justice.
12) The narrow definition of legal ethics is essentially the ‘system of professional regulations
governing the conduct of lawyers’.
13) A moral compass is important to a legal practitioner as it is their internal natural feeling of what
is considered right and wrong. It is essentially their ability to judge the validity of what they are doing
and helps them act in accordance with that understanding. It allows legal practitioners to navigate
their traits in an honest and virtuous manner. As well as helps them maintain the status of a ‘fit and
proper’ person, preventing them from being disbarred.
14) The cardinal values of an internal moral compass essentially provide the foundation from which
one can construct their more personally designed compass suited to their preferences. Each moral
compass will have its own unique set of moral codes and characteristics for each categorically
different person. However there are some cardinal values which should be indispensable and
present in every person’s moral compass, being the basic building blocks from which we hinge our
development of our internal moral compasses. Such as wisdom, courage, temperance and justice.
15) Yes, I do think legal institutions can teach legal ethics. However they can only guide the already
present moral compass in students, which they have developed from their parents, family, school
and their religion. They can mould already present beliefs and values to what is expected in the
legal field, by teaching them legal ethics. Lecturers in legal institutions expose students to the
possible tests of their morality and their code of ethics that they will face in the legal field. As well as
further develop their ideology of the diversity within morality, allowing them to further adapt and
learn what is legally ethical and what isn’t. Essentially they can teach the legal requirements of what
is and isn’t ethical and imprint their own moral compass on the students.
Essay
There are many characteristics that make up the basis of what is considered to be a ‘good’ lawyer.
Specifically they must be categorised as a ‘fit and proper’ person in the eyes of the law, as well as
possess the virtues associated with a strong moral compass. However most importantly, be honest,
not only with others, but with himself/herself on who they are in terms of who they need to be.
A ‘fit and proper’ persons test (done through a 15 minute screening process) is one of the
mandatory requirements that all prospective legal practitioners must satisfy if they wish to be a legal
practitioner in South Africa. Which begs the question, what is a ‘fit and proper’ person? However
this is a controversial question as it constitutes many factors which results in varying answers.
However the majority agree upon select values and a basic standard that a ‘fit and proper’ should
satisfy in order to be considered ‘fit and proper’.
Due to the fact that a legal practitioner is trusted with very important tasks and affairs in society,
ones which if done with malpractice can have devastating consequences such as resulting in
someone losing their whole life. Therefore a ‘fit and proper’ person should exhibit high values of
integrity, objectivity, honesty, dignity, capacity for hard work, respect for legal order and a sense of
equality or fairness. As well as possess a general desire for justice in all aspects of their life. A ‘fit
and proper’ person should possess sound and strong moral fibre as well as a good sense of what is
right and wrong, and express the ability to act in accordance with that understanding wherever
possible.
Furthermore, ideally, a ‘fit and proper’ person should be an exemplar representation of the standard
that all citizens within a society should strive to parallel. They should be an upstanding citizen in
general, who understands how to navigate morally questionable decisions and emerge having
made the best decision possible whilst abiding by the code of conduct. This is due to their ability to
navigate tough situations using their internal moral compass as a guide for what is legally and
ethically right and what is wrong. This involves their possession and use of the basic cardinal virtues
associated with a strong and reliable moral compass. These virtues are the essential building blocks
found at the foundation of a reliable moral compass which has been adapted to suit the specifics of
an individual.
These virtues associated with one’s internal moral compass are the traits of a character that are to
be admired, traits that render the possessor a better, either morally, or intellectually, or in the
conduct of specific affairs. These virtues are often shared amongst most people as they can be
found in societal norms, and they directly influence one’s ability to judge the difference between
right and wrong, and act in accordance with that understanding. Possessing virtues makes the
difference between someone being virtuous or simply acting in a virtuous way, and they are
essential to the betterment of who we are as individuals. There are said to be four main virtues
through which we hinge our understanding of fundamental virtues off of.
Firstly is the virtue of wisdom, and the practical wisdom known as prudence. Wisdom as a legal
practitioner refers not only to a sound knowledge base, but to a sound theoretical knowledge of the
law and all of its inner workings and essential legal ethics. As well as the ability to apply a lawyers
“practical common sense” when approaching all aspects of their life, be it work or their social life.
Moreover, prudence allows one to navigate the line between impulsiveness and over-cautiousness,
as well as aid in the navigation of ones ethics in terms of good and evil.
Secondly, courage, being bravery and the ability to face ones fears, as well as fortitude, being
perseverance in times of hardship. To be a legal practitioner is to be courageous and express
values pertaining to fortitude, being the ability to withstand the extensive stressors and pressures
associated with dealing with cases. And the courage to maintain justice and follow the rules at the
risk of great loss, acting according to their moral compass and the Code of Conduct despite the
possibility of a great downfall.
Thirdly, Temperance, expanding into virtues of self-restraint or moderation. This means the ability to
go just the right length for the correct outcome and no further. Essentially the ability to explore
pleasures only to the extent of his/her benefit and not to his/her harm, in a non-greedy way. The
basic ability to know when to stop and have basic self-control over possibly self-destructive
behaviours in one’s life.
Lastly is the virtue of justice. Being the central virtue for the legal profession, as it is the intention to
“give him what he deserves” and can be associated for the desire for overall fairness. Therefore
justice can be said to be the ability to obey the law and simultaneously treat everyone fairly. This
particular virtues encompasses many others, such as honestly, truthfulness and trustworthiness. It
is the most pivotal virtue as it governs the functioning and extent to which all the other virtues are
utilised. Virtues are essentially very personal as they govern every action we take and allow us to
assess ourselves to the particular standard held by virtuous characteristics.
Which brings me to my own personal assessment of who I am in terms of the standard set out by
the virtues associated with a ‘fit and proper’ person. I personally believe every single person
possesses an inner potential to be led astray from what is right, despite their own beliefs. And we
are who we want to be, not who we are told to be. In saying that, I was my parent’ 4th child and was
thus raised in a family who did not force me to be anyone other than who I wanted to be. I was of
course guided in the right direction, but I was never “spanked” for misbehaviour, but rather told that I
now have to deal with the consequences of my actions (my parents still stood by me of course,
however I had to take action). And if in future I do not want to deal with those consequences, I
should not part-take in that activity again.
So through gentle guidance and the freedom to make my own mistakes and decisions, I learnt right
from wrong rather early in life. My parents would encourage me to be what is considered to be a ‘fit
and proper’ person, however instead of saying I “have to be!” they let me deviate (obviously not to
my endangerment or illegal) to learn that nothing good ever comes from being dishonest,
untrustworthy, mischievous and overall “not a good person”. My parents never told me “don’t ever
drink alcohol!” but rather, “if you want to, it is okay, but we would be slightly disappointed, but still
love you with all that we are” and “if you get bad grades that okay, but you will have to live with the
knowledge that you wasted this opportunity, for the rest of your life”. Over time I learnt that if one
wants to be held to a superior standard, one must act in accordance with that standard. If I want
people to believe me, I must always tell the truth, and if I want people to trust me, I must never let
them down. Therefore over time I developed my moral compass. Through freedom I was able to
choose the right path myself.
So am I a ‘fit and proper’ person? I am who I want to be, which is constantly striving to be the best
possible person I can be at every opportunity I get. I am unable to make assumptions about myself,
as they would be of a biased opinion. I am not perfect, I have gotten demerits, I have been
untruthful and I have cheated on a test before and I took a labelled pencil from the ground in 2nd
grade that wasn’t mine (I almost died of guilt and ended up returning it the following day) (I haven’t
done anything illegal however, I did get tipsy once at a friend’s house when I was 17 as
experimentation). But in my opinion, that has made me closer to being a ‘fit and proper’ person and
having a sound moral compass than someone who has never made a mistake and learnt from it. So
as a result, through experience and learning right from wrong, so in my opinion I am a ‘fit and
proper’ person who has a sound moral compass.