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Duties of A Lawyer Lecture Notes 3 PDF
Duties of A Lawyer Lecture Notes 3 PDF
1) Acceptance of brief
- B ief : A epti g i st u tio s f o the lie t to p o eed ith the issues i the atte .
- Tunku Moksin v Bukit Barisan Sdn Bhd: The subject matter of the suit was a
resolution reached at an EGM of the respondent company. The court barred
Dato Manjit Singh or his firm from representing the respondents, as not only
was he the Chairman of the said EGM who had access to all crucial information,
he also held the proxy of the third respondent to vote.
Rule 4: Duty not to accept brief if professional conduct is likely to be impugned.
- I pug ed : Atta k a gu e t o iti is , oppose o halle ge as false o
questionable
- Where the lawyer is of the view that his professional conduct would be criticised
Rule 5: Duty not to accept brief if difficult to maintain professional independence.
- AG v Arthur Lee Meng Kuang: The advocate in this case, through a letter, accused the
Supreme Court of injustice. He implied that the court was biased in allowing the
appeal by alleging that it only gave consideration to the submission made by counsel
for the appellants but not that of the respondents. Such conduct was evidence of his
inability to maintain his professional independence. His personal interest was
overwhelming in that the underlying purpose of the criticism was to influence the
court to reverse its decision in favour of the respondents who are his clients.
- Aw Sing Moey & Ors v Melombong & Perumahan Sdn Bhd: Where the advocate was
found to be privy to privileged knowledge and/or confidential information with
regard to the suit, the court disqualified him from acting for the plaintiff as he was in
breach of his duties under Rules 3, 4 and 5, and held: The advocate and his legal firm
ought to have declined to accept instructions or be retained by the plaintiffs because
of the existence of special circumstances, namely him having acted for the various
parties involved in the matter while he was a legal assistant with another firm, which
would render it difficult for him and his current firm to maintain professional
independence. Clearly there will be a conflict of interest if he is allowed to act. He
should have refused to accept the brief as he had previously advised another party on
the same matter and also because of the fact that he was in possession of confidential
information.
- It is trite law that a counsel who receives briefs for both sides in the same case
should not accept one brief if he has already read the other; what more if
counsel had in fact been acting for both sides and now wishes to act for one
against the other in the same matter.
- RS Muthiah v Pembinaan Fiba Sdn Bhd: The court in disqualifying Pn Malliga from
acting for the defendant company held: Pn Malliga, being the legal secretary of the
defendant company had pecuniary interest in the company and ought to be prohibited
from acting for it. It would be impossible for her to maintain her professional
independence considering her relationship with the main witness of the case, namely
that of husband and wife and her position as secretary of the defendant company.
- Che Ahmad Che Daud v DCB Bank Bhd: The appella ts ou sel, Mess s Lua & Ma so ,
acted for all the parties in the preparation of an agreement for an overdraft facility for
which default judgments were later obtained against the respondents. The court
found the counsel to be in breach of its duty as Rule 5 clearly prohibits a counsel from
acting for all the parties to a case.
Rule 8: Duty not to ask to be excused from his assignment and to always exert his best effort
in that assignment.
- Assignment is done by way of notice in court seeking firms to take on the case.
Where there has been a change of solicitors:
- Concrete Engineering Products Bhd v Merces Builders Sdn Bhd: Unless and until a
notice of change of solicitor has been filed, the former solicitor shall still be considered
the solicitor of the party until the conclusion of the cause or matter. Where there is a
change of solicitor, the notice must (to be filed only at the Registry) acquiesce to
statutory specifications and be served on every other party to the cause or matter
including the former solicitor.
2) Performance in Court
Rule 6: Duty not to accept brief if unable to appear
- Syarikat Siaw Teck Hwa Realty v Malek & Joseph Au: The defendant represented the
plaintiff in a civil suit in the Kuantan High Court. On appeal to the Federal Court, the
appeal was struck off as the defendant failed to appear in court. The plaintiff then
commenced a suit against the defendant for professional negligence. Held: The overall
conduct of the defendant in the management of the Kuantan High Court case fell short
of that of a prudent and/or reasonable lawyer. His failure to attend court on the date
scheduled for the hearing of the appeal was a blatant non-compliance with the Rules
and a total disrespect to the Federal Court. It was unethical for him to justify his acts
or behaviour by questioning the merit of the appeal in relation to the lack of prospect
to succeed. He did not offer any reason for his absence in court for the appeal or
whether there were intervening circumstances which prevented him from doing so.
- PP v Mohtar Abdul Latiff: In this case, the date of the hearing was fixed in the presence
of the counsel. Subsequently, he successfully applied for the postponement of the trial
as he claimed to be engaged in other courts. Upon revision, the High Court held: The
general rule is that trial dates are fixed at the convenience of the court on a first come-
first served basis. In this case, the counsel had no good or cogent reasons to apply
for postponement and when the dates for trial were fixed he should not have
accepted briefs which clashed with the trial date of the case.
Rule 12: Duty not to conduct civil case intended to delay proceedings or injure, oppress or
wrong the opposite party.
- A counsel has a duty not to intentionally accept a case in order to delay proceedings.
- OCBC Bank Bhd v CTK Enterprise Sdn Bhd: In this case, the counsel sought for a
postponement from the High Court as he was e gaged i a Magist ate s court case in
Kuala Lumpur. The court in dismissing the application, held: Even if the Magistrate's
court hearing was one of particular importance, the counsel has a duty to make
necessary arrangements for someone else from his firm to not only appear but be
ready to proceed with the matter. It would be prudent for counsels who wish to seek
adjournments to write in to court at least three days before the hearing to apply for a
postponement and proffer valid grounds for postponement.
Rule 24: Duty to be ready for the day fixed for trial
- An application for a postponement can only be made for good and cogent reasons.
- Go Pak Hoong Tractor and Building Construction v Syarikat Pasir Perdana: Notice of
trial on August 17, 1980 was served on the defe da t s soli ito s o Ma h , .
The plai tiff s ou sel as p ese t at the t ial, ut oth the defe da t a d ou sel
were absent. Counsel for the plaintiff tendered in court a telegram which he had
e ei ed f o the defe da t s ou sel hi h ead as follo s: Defe da t fell si k.
Unable to attend court tomorrow. Have applied postponement of hearing. Kindly
e tio fo us as ou sel i ha ge u a le to o tai seat to fl to Kota Bha u. The
court in refusing to grant an adjournment ruled that the defe da ts soli ito s had
been notified of the date of trial as early as 20th March, 1980. They should have
booked the passage earlier. Further, there was no proper medical report from the
defendant. On appeal, the Federal Court, in dismissing the appeal, held: The facts
learly show a la kadaisi al lazy attitude towards lawyers’ duty to their lients and
their duty to the courts. Where the case had been fixed for hearing about five months
before the trial, an adjournment places the court in a difficult position.
- Sashi Kumar Suppiah v Timbalan Menteri Dalam Negeri Malaysia: The applicant was
detained at the Pusat Pemulihan Akhlak Simpang Rengam, Johor by a detention order
for two years. The applicant challenged the detention order, on three grounds, inter
alia, the refusal of the Advisory Board to grant an adjournment as to enable the
appli ant’s ounsel to represent the appli ant on the appointed date. There was a
e uest the appli a t s ou sel to the Boa d fo a postpo e e t of the ase o the
ground that the counsel handling the matter, Mr Suresh, would be engaged in a
continued criminal trial at the KL High Court on the appointed day. Held: Granting a
request for postponement made to the Board is not a matter of right. The appli ant’s
counsel had breached both, Rule 6 and 24, when he accepted the brief to represent
the applicant on the day fixed for the hearing. Thus, the Board cannot be faulted for
disallowing the postponement.
3) General conduct
Rule 9: Duty to undertake defence fairly and honourably.
- To present every defence which the law permits
- To undertake the defence of an accused person regardless of his opinion as to the
a used s guilt .
Rule 10: Duty to conduct prosecution so that no innocent person is convicted.
- To not suppress material capable of establishing the innocence of the accused.
Rule 16: Duty to uphold the interests of the client, justice and dignity of the profession.
- Rondel v Worsley: It is the duty of the counsel to act fearlessly, to raise every issue,
advance every argument and ask every question, however distasteful, which he thinks
would help i his lie t s ase.
- Tombling v Universal Bulb Co. Ltd: It is the duty of the counsel to his client in a civil
case or in defending an accused person to make every honest endeavour to succeed.
the solicitor will disclose to the opposing party confidential information which he has
obtained from his original client while acting for him, the court will restrain him from
doing so through an injunction.
Rule 36: Duty to prevent client s wrongful conduct towards the Court, judicial officers, jurors,
witnesses and parties.
- An advocate who becomes aware in the course of proceedings that his client is
obstructing the interest of justice, has a duty to advise his client and if his client
persists in the wrong conduct, the advocate should decline to act any further for him.
Duties to the Court
- Myers v Elman: It is a correct statement of the law to say that the solicitor should
fearlessly conduct the cause of action having both his duty to the court as well as his
duty to his client in mind, but the solicitor must always be mindful of the paramountcy
of his duty to the court.
- Castle Fitness Consultancy Pte Ltd v Manz: Where the plaintiff, in an ex parte
application, fails to disclose to the court all matters within his knowledge which
are material to the proceedings and which are or may be in favour of an absent
party.
Rule 20: Duty to put before the court any relevant binding decision which he is aware whether
it is for or against his contention.
- The ou t elies o a ad o ate a d soli ito to i g to the ou t s atte tio all
ele a t la , hethe fo o agai st that pa t s ase.
- Ablemerge (M) Sdn Bhd v Emville Sdn Bhd: It is the paramount duty of counsels to
thoroughly research the law and assist the court to arrive at a just decision. It is not
the duty of the court to do its own research in every case for otherwise there would
be no need for advocates.
- Glebe Sugar Refining Co Ltd v Greenock: It is the duty of the counsel to bring to the
notice of the court any authority within their knowledge which bears significance one
way or the other upon the matters under discussion, irrespective of whether or not it
assists the case of the party who is aware of it.
- Shaw & Shaw Ltd v Lim Hock Kim: The advocate must with regard to facts be careful
to display accuracy in his description of the materials before the court while
presenting them in the light which seems to him most favourable to his client. It is the
duty of the advocate to call the attention of the court to any case or statute which is
clearly against him.
Rule : Dut to i g to the ou t s atte tio a p opositio of la et .
- Copeland v Smith: The failure by professional advocates to discharge their duty to the
cou t ot i gi g to the judge s attention a recent reported decision of the Court
of Appeal that had a direct bearing on the case was a matter of very great concern.
- Henderson v Temple Pier Co Ltd: It is essential that advocates who hold themselves
out to be competent keep themselves up to date with cases reported.
Rule 23: Duty to supply to the court all information as to the probable length of a case and
the possibility of a settlement.
A counsel has a duty not to misrepresent a witness giving evidence in court.
- Re JLP Harris: Where the counsel had deliberately kept a witness away from the court
as the it ess as a disad a tage to his lie t s ase a d p o u ed a adjou e t
by false means, the court found him to be guilty of misconduct.
- However, there is no duty upon the counsel to inform the court of the discredibility of
a witness.
- A counsel is not a judge of a it ess credibility and is entitled to put his
witness before the court for what they are worth and leave it to the other side
to cross-examine them and destroy their credit.
- Tombling v Universal Bulb Co Ltd: In an action for the recovery of a debt, the witness
was a person serving time in prison. He came to court in his ordinary civilian clothes
and the counsel did not disclose his background to the court. Held: There is no duty
upon the counsel to tell the judge that a witness came from the prison to give
evidence. It is irrelevant to his credit and no counsel is bound to bring before the
judge the discreditable facts in the life of his witness; for they do not mean that he
is not to be believed on this occasion.
- However, in Meek v Fleming: The plaintiff brought an action against the defendant, a
police officer, for damages for false imprisonment. Counsel for the defendant told him
to come to court in civilian clothing to hide the fact that he had been demoted from a
Station Inspector to a Sergeant because of disciplinary proceedings. The plaintiff
appealed. In allowing the appeal, the court held: In this case it is clear that the judge
and the jury were misled on an important matter. Where the information had a
material bearing on the decision of the court, the counsel should have informed the
ourt of the witness’ a kground.
Rule 27: Duty not to appear where he is directly pecuniarily interested (read with Rule 3)
- Haji Abdul Ghani Ishak v PP: Any interest relating to money or moneys worth, any
interest that could be converted into money, or any interest the object of which is to
make money falls in the category of pecuniary interest.
- RS Muthiah v Pembinaan Fiba Sdn Bhd: Where the advocate and solicitor, Pn Malliga,
was also the secretary of the defendant company, the court found her to be
pecuniarily interested in the company and therefore ought to be prohibited from
acting on its behalf.
Rule 28: Duty not to appear where he is a witness except from swearing or affirming affidavit
as to formal or undisputed facts in matters which he acts or appears.
- Paruvathy Palany v Sathiasealan Govindasamy: Where there was a possibility that the
advocate and solicitor representing the defendant might be cross-examined by the
plaintiff on his affidavit, the court found that as he may end up as a witness for the
defendant, he would be caught under the provision. When he affirmed the affidavit,
he was no longer acting as counsel for the defendant but as a witness. Therefore, his
law firm and his partners and legal assistants should be barred from representing the
defendant.
- Quah Poh Keat v Ranjit Singh Taram Singh: Where the solicitors from the firm acting
for the appellants in the action were potential material witnesses, the court
disqualified them from acting for the appellants.
- Zakiah Abu Mansor v Samsuri Welch Abdullah: The defendant refused to obey a court
order obtained by the plaintiff ordering him to vacate certain premises. The plaintiff
applied for an order of committal (for contempt of court) against the defendant. The
- Read with Rule 7(b): Duty not to accept the position of an executive director or
executive secretary of a company without the express consent of the Bar Council.
- Syed Mubarak Syed Ahmad v Majlis Peguam Negara: The issue was whether an
advocate and solicitor may simultaneously practise another profession. The appellant,
a public accountant, was admitted and enrolled as an advocate and solicitor of the
High Court of Malaya. However, his application for an annual certificate was rejected
by the Bar Council on the ground that he was disqualified under Sec. 30(1)(c), LPA,
namely that he is gainfully employed by any other person, firm or body other than as
an advocate and solicitor. Upon a dismissal by the High Court, the appellant appealed.
The Court of Appeal in dismissing the appeal, held: The object of Parliament is to
maintain high standards in the profession because the general public must have
confidence in the integrity and the independence of the legal profession. It is obvious
that Parliament intended that persons who choose to be advocates and solicitors
must exclusively practise as such. If Parliament intended that an advocate and
solicitor should be permitted to practise more than one profession, one should be able
to find clear language in which such permission is to be found.
- Chee Kuat Lin v Majlis Peguam: The appellant, an officer of the Royal Malaysian Police,
had applied for admission to the Bar to practise as an advocate and solicitor whilst he
was suspended from duty as a police officer pending investigations on suspicion of
accepting a bribe. Prior to his admission to the Bar, the appellant failed to disclose the
fact that he was under suspension and was still employed as a police officer. The court
found such failure to be a breach of Sec. 30(1)(c), LPA and Rule 44.
- Clyne v New South Wales Bar Association: The counsel made a number of false and
unfounded allegations against the opposing lawyer i.e. professional impropriety so
that the Bar Association would take action against him which would render him unable
to represent his client in the case. Held: A counsel while in court must treat his
opposing counsel with due courtesy and should not accuse him of improper behaviour
which are false and unfounded. He is not entitled to cast imputation of dishonesty or
fraudulent conduct upon an opposing counsel without any basis for it.