Nicolene Schoeman-Louw

As attorneys, we are approached by clients regularly with various issues and disputes. The duties of legal professionals are regulated by the rules of the profession and the Legal Practice Act 28 of 2014, as amended.

There is often a fine line between the Client’s right to be heard, the emotions constantly surrounding these matters, and our professional duties as attorneys. For example, in an article published by Justice Roger in Advocate December 2017, he noted the following quote:

“My Lords, in this appeal, there are three points. One is arguable, one is unarguable, and one is unanswerable.” The presiding judge politely asks: “Well, why don’t you tell us what your unanswerable point is?” To which counsel replies, “Aah, that is for your Lordships to discover.”

Justice Rogers further stated in this insightful article that:
“Counsel’s ethical duties in relation to the hopeless case must not be confused with the cab rank rule which requires counsel to accept a brief if she is available and offered her usual fee. The purpose of that rule is to ensure that an unpopular litigant or a litigant with an unpopular cause is not prejudiced in obtaining the services of counsel.”

Although a few years ago, it is still relevant today, mainly when Covid -19 pandemic restrictions have seen our courts and the legal system more burdened than ever. The time and cost burden has also impacted the economy and the ability of small businesses to grow and become more sustainable. That has also raised the question of access to justice and what it truly means, not only in access to the system but in a much broader economic sense.

It should be stated that a case is not hopeless just because the legal practitioner thinks it will probably fail. However, the position is different if the court concludes that there has been improper time-wasting by the practitioner or the practitioner has knowingly lent himself to an abuse of process.

If we hope to see a more swift conclusion to matters and the economy, in turn, less strained, it is therefore suggested and summarized that:

(i) “Pleadings and affidavits must be scrupulously honest. Nothing should be asserted or denied without reasonable factual foundation.
(ii) It is improper for counsel to act for a client in respect of a claim or defence which is hopeless in law or on the facts.
(iii) A necessary correlative is that counsel must properly research the law and insist on adequate factual instructions.
(iv) In principle counsel may properly conclude that a case is hopeless on the facts though in general counsel cannot be expected to be the arbiter of credibility.
(v) There is an ethical obligation to ensure that only genuine and arguable issues are ventilated and that this is achieved without delay.”

Clients and legal practitioners should always bear in mind that their conduct affects the ability of others who may have matters that require the intervention of the courts. Therefore, the denial of access to justice is also an issue surrounding the system as it involves parties functioning within it.

Contributed by:
Nicolene Schoeman-Louw


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