Board Exam Preparatory Session: Attorney's Practice and Legal Ethics

Vocabulary-based flashcards designed to prepare for the August 2024 Attorney's Practice and Legal Ethics Board Exam, covering the Legal Practice Act, labor law, constitutional tools, and matrimonial regimes.

Conflict of interest

Occurs when an Attorney has competing professional or personal interests that make it difficult to fulfill their duties impartially; the general rule is that an Attorney cannot represent both parties in a dispute.

Confidentiality

An ethical duty requiring Attorneys to keep all information related to their client's cases private, including any communication or document shared within the professional relationship, persisting even after the attorney-client relationship ends or the client dies.

Legal professional privilege

A narrow legal right that protects communications between a client and their Attorney from being disclosed without the client’s permission; governed by the rule 'once privileged, always privileged' except in cases like the death of a testator-client or waiver by the client.

Section 33 of the Legal Practice Act

Specifies that only admitted and enrolled legal practitioners may provide legal services for compensation, such as appearing in courts or drawing up legal documents for court proceedings.

Fidelity Fund certificate

A mandatory certificate required for Attorneys practicing for their own account or in a commercial juristic entity, and for Advocates practicing directly for the public or holding trust accounts.

Contingency fee agreement

A 'no win no fee' arrangement where a fee is only payable on a favorable outcome, or an increased fee agreement where an Attorney can charge up to double their normal fee or 25% of the award, whichever is less.

Prescription

The period within which a legal action must be initiated; if the period expires, the claim is 'prescribed' and the right to enforce it is extinguished unless the defendant fails to raise it as a defense.

Trust account practice

A practice conducted by one or more Attorneys or an Advocate who are required to hold a Fidelity Fund certificate and manage client funds separately from personal funds.

Reading down

An interpretive tool used by Superior Courts to save a statutory provision from constitutional invalidity by narrowing its wording to a meaning that is constitutionally compliant.

Reading in

A remedy used after a provision is found constitutionally invalid because it lacks necessary language; the court adds words to the provision to make it compliant rather than waiting for the legislature to act.

Striking down

The act of a court entirely invalidating a law found to be fundamentally at odds with constitutional principles that cannot be corrected by reading in or reading down.

Severance

The process of removing only the unconstitutional parts of a statute while allowing the remainder of the law to remain in effect.

Recognition of Customary Marriages Act (RCMA)

Legislation providing for the legal recognition and registration of marriages conducted according to customary law, requiring parties to be 18 or older and to have negotiated/celebrated the marriage accordingly.

Dismissal

As per Section 186 of the Labour Relations Act, this occurs when an employer terminates employment, refuses to renew a fixed-term contract on similar terms, or when an employee resigns because the employer made continued employment intolerable.

Incapacity dismissal

A 'no fault' dismissal due to an employee's inability to perform job duties because of poor performance or health reasons, distinguishing it from misconduct which involves culpability.

Automatically unfair dismissals

Dismissals that infringe on fundamental rights, such as those related to pregnancy, participation in a lawful strike, or making a protected disclosure (whistleblowing) under the Protected Disclosures Act.

Conciliation

A confidential, voluntary process facilitated by the CCMA or a bargaining council to help parties resolve workplace disputes; the CCMA must attempt this within 30 days of referral.

Arbitration

A formal hearing where an arbitrator hears evidence and issues a final, binding award that is enforceable as a court order.

Unfair labour practice

Any unfair act or omission relating to promotion, demotion, probation, training, benefits, or unfair suspension short of dismissal.

Rule 41A of the Uniform Rules of Court

Mandates that an applicant or plaintiff serve a notice indicating whether they agree to or oppose referring a matter to mediation before proceedings.

Accrual calculation

$$\text{Accrual} = \text{Net end value} - \text{Net commencement value} - \text{Assets that do not form part of the accrual}$$

Costs de bonis propriis

A cost order leveled against a person acting in a representative capacity (like an Attorney) as a penalty for improper conduct, requiring them to pay the costs out of their own pocket.

Legal Practitioners’ Fidelity Fund (LPFF)

A fund intended to protect the public against the theft of trust funds by legal practitioners, excluding losses due to professional negligence.

Legal Practitioners’ Indemnity Insurance Fund (LPIIF)

Provides professional indemnity insurance to legal practitioners for claims of professional negligence, but does not cover intentional acts like theft.

Business email compromise (BEC)

A cyber scam involving unauthorized access to business email accounts to impersonate personnel and deceive others into making fraudulent transfers of funds or sensitive information.