In the realm of South African legal practice, attorneys are bound not only by the instructions of their clients, but also by the ethical obligations imposed by the Legal Practice Act 28 of 2014 and the rules of the Legal Practice Council. A critical tension often arises between what clients want and what they need, and understanding this distinction is essential to ethical and effective legal practice.
Understanding the Difference
- Client’s Wants: These are outcomes or actions that a client desires, often influenced by emotions, misinformation, or misunderstanding of the law.
- Client’s needs: These are legally sound, strategic, and ethically appropriate actions required to protect a client’s rights and interest within the confines of the law.
Attorneys Ethical Obligation
South African attorneys have a duty to act in the best interest of their clients while maintaining independence, objectivity, and integrity. Rule 3.1 of the Legal Practice Council’s Code of Conduct provides that a legal practitioner must “act in the best interest of his or her client” and “must not allow the client’s instructions to override his or her duty to the court and to the administration of justice.”
Practical Examples Family Law:
- Client Want: A parent want full custody of a child solely to punish the other parent.
- Client need: To act in the best interest of the child, which might involve shared custody or supervised visitation.
Criminal Law:
- Client want: A suspect wants a lawyer to “fix” a case by contacting the investigating officer or judge informally.
- Client need: Representation that upholds the rule of law and trial procedure
Civil Procedure:
- Client want: A client wants to delay proceedings to frustrate the other party.
- Client need: To comply with court rules and avoid abuse of process.
Property law:
- Client want: A landlord wants to evict a tenant immediately due to non-payment.
- Client need: To follow proper eviction processes under PIE Act.
Balancing the Tension
Navigating the tension between wants and needs requires:
- Clear communication: Explaining legal consequences and processes in plain language.
- Client Education: Helping clients understand legal realities and risks
- The Courage to say No: Ethically refusing to act on unlawful or improper instructions
- Strategic Compromise: Achieving a client’s legitimate interests legally and ethically.
In South African legal practice, ethical lawyering involves more than fulfilling the clients’ desires, it requires a principled approach that distinguishes between what a client wants and what they legally need. Upholding this distinction is not a hallmark of professionalism but also a necessary safeguard for justice, the court system, and the integrity of the profession.
Ultimately, the duty of care extends beyond the courtroom representation. It encompasses honest advice, candid legal assessment, and an unwavering commitment to justice – even when that means telling a client something they may not want to hear.
The ethical practitioner must also recognize when it is necessary to counsel a client against litigation altogether, opting instead for alternative dispute resolution methods such as mediation or arbitration. These decisions reflect the attorneys duty to avoid unnecessary litigation and to act in the most beneficial and cost-effective manner for the client.
For example, an attorney may advise against defending a matter on a technical basis where it would only delay proceedings and result in greater legal costs for the client. Even if the Rules allow such a defense, pursuing it may not be ethical if it does not promote a fair and just outcome or serves no genuine legal interest.
Rule 3.1 of the Legal Practice Council Code of Conduct reiterates that a legal practitioner must act in the best interests of their client. This means providing honest, well-informed advice –even when it may be unpopular or contrary to the client’s immediate wishes. Attorneys are not mouthpieces for client’s instructions; they independent professionals tasked with guiding clients through complex legal landscapes.
A critical part of legal ethics is recognizing that just because a legal avenue is available under the Rules of Court does not mean it is always appropriate or in the clients best interest to pursue it. Attorneys are expected to apply sound judgment and ensure that their advice is not only legally permissible but also practically and ethically aligned with the client’s circumstances.
In addition to legal competency, attorneys in South Africa are bound by ethical standards that require them to act in a manner that promotes justice, protects the integrity of the profession, and most importantly serves the best interest of the client. These ethical procedures are not mere formalities; they are essential safeguards in the client-attorney relationship.
Conclusion and Ethical Accountability
In the cases of S V Moshesh and Others (1973); Cape Bar v Silinga (2013); South African Legal Practice Council v Teffo (2022) and S v Chabedi (2004), just to name a few, serves as a compelling reminder that attorneys are not mere mouthpieces for clients demands, but officers of the court with an ethical duty to act with diligence in the interpretation of the law, honesty and integrity. In these cases, the court sharply criticized the conduct of legal representatives who neglected their duty to provide competent, ethical and diligent representation. These precedents underscores the principle that a legal practitioner must balance client instruction with professional, meticulous and ethical judgment at all times.
Failure to do so may result in serious consequences. Client’s, Fellow Professionals, or members of the public may report unethical conduct to the Legal Practice Council (LPC). The LPC established under the Legal Practice Act, is empowered to investigate and sanction practitioners for breaches of Code of Conduct, including fines, suspensions, or being struck from the roll. Such accountability ensures that attorneys uphold the integrity of the legal system and consistently act in the best interest of their clients, even when that involves delivering difficult advice or discouraging legally permissible but ethically questionable actions. True client service requires courage to offer sound, ethical advice, even when that advice may not align with the client’s expectations or desires, that’s what separates a legal technician from a true legal professional.
