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On the Frontier of Change: South African Legal Ethics Education

On the Frontier of Change: South African Legal Ethics Education (Program)

Helen Kruuse, Rhodes University (South Africa) (Moderator); Lesley Greenbaum, University of Cape Town (South Africa); Freddy Mnyongani, University of South Africa (South Africa); Lourens Grové, University of Pretoria Law Clinic (South Africa); and Prosper Nkala, University of Pretoria Law Clinic (South Africa)

On the Frontier of Change: South African Legal Ethics Education

Helen Kruuse/Lesley Greenbaum/Freddy Mnyongani/Nicola Whitear: On the Frontier of Change: South African Legal Ethics Education

Twenty two years into a constitutional democracy, South African legal ethics education is at a critical juncture. Amidst massive changes to the legal profession’s organization and structure (through the Legal Practice Act 28 of 2014), legal education faces two challenges: first, South Africa’s Council on Higher Education (CHE) will be reviewing all law schools in the country as to their ‘fitness for purpose’ which ultimately entails accreditation decisions being made. The review focuses attention on whether there is appropriate and sufficient commitment to social justice, transformation and ethical values evident in the curricula taught at law schools. Second, the law profession and those in legal education face increasing criticism that the unquestioning acceptance of the South African lawyer’s role as neutral partisan is inappropriate for the present South African context.

In dealing with these two challenges, this panel evaluates the current state of legal education in South Africa, and then attempts to map out the contours of where it might be going in relation to the form and content of legal ethics within the South African LLB curriculum. More particularly, members of the panel consider whether it is possible to re-imagine an ‘African’ approach to lawyering which best aligns with South African history and constitutional culture. In this regard, we envision the inclusion of an ‘Afro-communitarian’ ethic to counter the individualism that dominates Kantian and utilitarian approaches to lawyering.

Part of the discussion will revolve around the outline a new research initiative which aims to address the lack of data available on South African law students’ commitment to social justice, ethics and altruism. In the light of such initiative, the panel will suggest how the demands of law students for a more relevant law curriculum which reflects an African ethos may open up possibilities for incorporating explicit ethics teaching into re-designed materials.

Lourens Grové and Prosper Nkala: Teaching Students Ethics And Professionalism When and Where it Matters – Using a Clinical Setting To Teach Ethics Beyond the Ethics Course

Most law faculties in South Africa, similar to their global counterparts, present courses in ethics and/or professional conduct to law students. These students invariably perform well when answering openly directed ethics questions.

However, it has been found, upon teaching (particularly applied negotiation skills) in a clinical setting that students often inadvertently breach principles of ethics and professionalism. Such breaches were initially regarded as unique to certain groups of students, but have since proven to be widespread, being almost universal in some cases.

All of these breaches may prove fatal in practice to negotiations or even the careers of some law students. Moreover, when a competitive atmosphere similar to which law students may experience in practise is cultivated, such breaches become more common and serious.

Some of the problems identified include:

  • The pre-arranged structure of a negotiation group breaking down and several different “mini-negotiations” happening simultaneously between two groups;

  • Students settling outside of their mandates or not carrying out their mandate to settle when they should;

  • Students actively lying about surrounding circumstances in an effort to better their bargaining position;

  • Groups engaging in blackmail on behalf of their ‘clients’;

  • Students believing they understand and apply ethics when they demonstrably do not.

This presentation will expand and reflect on these problems and try to identify likely causes. We will also argue that ethics and professionalism, to be effectively taught, should not only be taught in a focused subject, but should also be embedded in general practical legal education.

Based on our experience, there are some particularly effective ways to teach ethics - which led some alumni to observe that the ethics lessons so taught are lessons they most vividly remember from their University educations. This approach will be discussed as well.

Katherine Kruse, Mitchell Hamline School of Law: Legal Ethics in the Low-Bono Space

The world of legal practice is changing rapidly in response to changes in technology. The ABA’s Ethics 2020 initiative took some initial steps toward recognizing and responding to those changes, mostly to the logistics of practice (e.g. protecting client confidentiality in electronic communications and file storage). However, advances in computer-assisted legal searches, document review, document drafting and document assembly are driving a more fundamental redefinition of legal service and legal representation.

The premise of my presentation is that these changes—particularly changes in the redefinition of legal practice—are generally a good thing for clients of modest means. The premise assumes that the widening access to public information about the law, the direct availability to clients of low-cost document assembly services, and the ability for lawyers to decrease overhead expenses, create the potential for more clients to access cost-effective legal services.

If we accept this premise, however, we need to think about the effect of technological changes on the changing role of lawyers in new ways. How do these changes affect the professional ethical duties relating to limited scope representation, reasonable fees, communication, diligence, the division of decision making responsibility between lawyers and clients, and pro bono representation? This presentation will explore the ethical possibilities and constraints as they are unfolding in landscape of the new “low-bono” space.

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