1.

0 Introduction

A lawyer is construed as an employee under the law of employment, whereby the Minister

may prohibit employment other than under contract of service and the person engaged to carry out

the work shall be deemed to be an employee whereas the principle of the employment be an

employer1. A lawyer must be employed full time in his practice2.

An ‘advocate and solicitor’ is defined as a person who is admitted and enrolled under the

Act whereas a ‘client’ is defined as a person who retains or employs an advocate and solicitor and

responsible to pay a solicitor’s cost3. It shall be distinguished from the position in United Kingdom

whereby the legal profession is fused in Malaysia context. For the purpose of this paper, the author

shall address the advocate and solicitor as a lawyer.

Hence, the position of a lawyer as a professional employee under his contract of service

shall be reinstated. It is the lawyer who performs his duty in good faith and independently in

completing his task as an advocate and solicitor without his employer’s control under his contract

of employment. In this regard, problem arises as to the liability of the lawyer if the contract of

employment is breached. “I am a lawyer, I am blameless”, then becomes an arguable statement in

the legal fraternity.

In this assignment, the author shall first discuss the duties of a lawyer under his contract of

employment. Next, focus will be placed on the lawyer’s duty of care as an employee and followed

by the comparison of the approach on duty of care between the practice in Malaysia and Australia.

1
Section 2A, Employment Act 1955
2
Section 30(1)(c), Legal Profession Act 1976
3
Section 3, Legal Profession Act 1976

1
2.0 Duties of a Lawyer under His Contract of Employment.

In the pursuit of administration of justice and the contract of employment, there are several

duties entrusted upon lawyer under Legal Profession (Practice and Etiquette) Rules 1978, namely:
4

i. Duty to Court

A lawyer who is legally educated, is obliged to assist the court in finding the truth and

protect the interest of justice and hence, higher duty is imposed on a lawyer to the court than to the

client. The utter duty is to respect the court whereby it is advised that a lawyer shall maintain a

respectful attitude towards the court5. In A-G v Arthur Lee Meng Kuang6, the respondent was liable

for contempt of court for allegedly criticising the judgment of the Supreme Court. In this regard,

a lawyer is expected not to conduct civil cases with the intention to delay proceedings or to harass

or injure the opposite party or to work oppression or wrong7. Rule 248 further states that a lawyer

must be ready for the day fixed for trial and can only apply for postponement if there is a good and

cogent reason.

The next duty is not to mislead the court as provided in Rondel v Worsley9. It was held in

Mohd Samsudin Ismail v Tan Yeow Hwa10 that the counsel should not attempt to split words into

distinct segment and take the court on a wrong route to suit his agenda just to sway the court to

give a decision in his favour. Hence, a lawyer must not refer to facts that are not proven11. It is

4
Nekoo, R., Parames, K., & Sathiaseelan, J. K. (2007). Professional Practice (2nd ed.). Singapore: LexisNexis
5
Rule 15, Legal Profession (Practice and Etiquette) Rules 1978
6
[1987] 1 MLJ 206
7
Rule 12, Legal Profession (Practice and Etiquette) Rules 1978
8
Legal Profession (Practice and Etiquette) Rules 1978
9
[1967] 3 All ER 993
10
[2000] 4 CLJ 398
11
Rule 19, Legal Profession (Practice and Etiquette) Rules 1978

2
pertinent to note that a lawyer shall supplies relevant information as to the probably length of a

case and the possibility of a settlement to the court.12 In Cheah Cheng Hoc v PP13, it was held that

concealing a document effecting the credibility of a witness in a civil suit could be misleading to

the court.

Furthermore, a lawyer owes a duty not to withhold authorities as the judge might not be

aware of all relevant authorities as derived from Glebe Sugar Refining Company Limited v Trustees

of the Port and Harbours of Greenock14. A lawyer shall put before the court of any relevant binding

decisions regardless of it being for or against his contention, particularly for ex-parte proceedings15.

It would also be improper for a lawyer to misquote any reference he may be relying upon16. Even

after or when the court is deliberating a decision, a lawyer has the duty to bring the court’s attention

to any proposition of law17.

Also, a lawyer has no duty to inform court about the discredibility of witness as illustrated

in Tombling v Universal Bulb Co18. However, it shall be distinguished from a latter case of Meek

v Fleming19 stating that discredibility of the witness shall be informed to the court if it could impact

the decision of the court so that the justice is preserved.\

12
Rule 23 Legal Profession (Practice and Etiquette) Rules 1978
13
[1986] 1 MLJ 299
14
(1921) 37 TLR 436
15
Rule 20 Legal Profession (Practice and Etiquette) Rules 1978
16
Rule 21 Legal Profession (Practice and Etiquette) Rules 1978
17
Rule 22 Legal Profession (Practice and Etiquette) Rules 1978
18
(1951) 2 TLR 289
19
[1961] 3 All ER 148

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 ii. Duty to Client

Firstly, a lawyer owes an obligation to give advice on or accept any case 20. It is submitted

that a lawyer shall not be picky about his cases unless there is a justification to do so. Rule 3 states

that a lawyer can choose not to accept a case if he or she is embarrassed.

Next, a lawyer shall ensure his conduct with condour, courtesy and fairness21. A lawyer is

to undertake defence fairly and honourably regardless of his own personal opinion22. A lawyer

should not allow a client’s feeling to influence the conduct of one’s self as a lawyer23.

Besides, a lawyer has a duty towards client by acting fearlessly and make every honest

endeavor to succeed as illustrated in Zainut Zakaria v PP24. The duty aims to uphold the interest

of his client, the interests of justice and the dignity of the profession regardless of any unpleasant

consequences.

Furthermore, a lawyer has a duty not to cast aspersions without sufficient proof as illustrate

in Roy v Prior25. A counsel is not supposed to reduce himself to case aspersions on the conduct of

the opposing witness and he is at liberty to act in the best interests of the client.

Moreover, it is the lawyer’s duty to keep confidential all communications made between

him and his client arises as an implied term of the retainer26. A lawyer shall preserve his clients’

confidence and this duty outlasts his employment27. In criminal cases, a lawyer must treat the

20
Rule 2, Legal Profession (Practice and Etiquette) Rules 1978
21
Rule 18, Legal Profession (Practice and Etiquette) Rules 1978
22
Rule 9, Legal Profession (Practice and Etiquette) Rules 1978
23
Rule 32, Legal Profession (Practice and Etiquette) Rules 1978
24
[2001] 3 MLJ 604
25
[1970] 2 All ER 729 HL
26
Rule 24, Legal Profession (Professional Conduct) Rules 1998
27
Rule 35(b), Legal Profession (Practice and Etiquette) Rules 1978

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accused’s confession in a particular offence with absolute confidence28. A lawyer must not divulge

the privileged communication of his client to court without express consent of the accused as

pictured in Tuckiar v The King29.

Other obligations on a lawyer are attire 30 , the accountant’s report 31 , duty of

confidentiality32, non-involvement of touting33, changing of solicitors34, obtaining judgment by

default35, and absent from pecuniary interest36.

iii. Duty to Firm

A firm is a place of employment for a lawyer whereby he has a duty to take care of the

property or belongings of the firm. In Lister v Romford Ice and Cold Storage Co Ltd37, it was held

that there is an implied term in the employment contract that an employee owes a duty to take

reasonable care of the employer’s property in the performance of his tasks.

Next, a lawyer owes a duty of good faith. A breach occurs when there is an act done which

is injurious to the employer. In Robb v Green38, the court held that an employee shall honestly and

faithfully serve his master and do not abuse the master’s confidence.

Then, a lawyer owes a duty of trust and confidence to perform their duty professionally

based on the trust and confidence placed by the employer firm.

28
Section 126, Evidence Act 1950
29
(1934) 52 CLR 335
30
Rule 30, Legal Profession (Practice and Etiquette) Rules 1978
31
Rule 32, Legal Profession (Practice and Etiquette) Rules 1978
32
Rule 35, Legal Profession (Practice and Etiquette) Rules 1978
33
Rule 51, Legal Profession (Practice and Etiquette) Rules 1978
34
Rule 54, Legal Profession (Practice and Etiquette) Rules 1978
35
Rule 56, Legal Profession (Practice and Etiquette) Rules 1978
36
Rule 27, Legal Profession (Practice and Etiquette) Rules 1978
37
[1956] UKHL 6
38
[1895] 2 QB 315

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 iv. Duty to the Society

A lawyer owes a public duty to the society to uphold the rule of law by facilitating the

accessibility to the justice system. In this regard, a lawyer is obligated to protect and assist the

public in all matters by rendering legal aid and assistance.39

In short, it is abundantly clear that a lawyer owes various duties to the court, client, firm,

and the society under his contract of employment. Whether or not a lawyer breaches his contract,

standard of care shall be examined and further discussed in the next section.

3.0 A Lawyer’s Duty of Care as an Employee

Whether a lawyer can be blamed for his breach of duty, it is pertinent to discuss the

lawyer’s duty of care as an employee. A Malaysian lawyer differs from the position in United

Kingdom whereby advocate and solicitor are fused together. As discussed earlier, a lawyer is an

employee of a client as the client is the one who pay for his efforts. Hence, the relationship between

the lawyer and the client could be either contractual or fiduciary relationship trusted by confidence

and due care.

A lawyer can be sued either in contract and tort and vice versa. In Miranda v Khoo Yew

Boon40, the Federal Court stated that a lawyer is under the contractual duty to use skill and care.

He can be sued if negligence occurs. In Neogh Soo Oh v G Rethinasamy41, the lawyer had failed

to exercise his duty to use reasonable care and skill in taking action and advice when he did not

39
Section 42(1)(g), Legal Profession Act 1976
40
[1968] 1 MLJ 161
41
[1984] 1 MLJ 126

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conduct a land search and failed to inform his client that the land he wished to purchase was gazette

for compulsory acquisition.

Dato Wong Gek Meng v Pathmanathan Mylvaganam ruled that there is twofold of duty of

counsel to client, namely equity and common law.

“At equity, the relationship between a solicitor and his client is entirely fiduciary and it

carries with the obligations on the solicitor’s part to act not only with strict fairness but

also with an attitude of openness… At common law, a solicitor by his retainer must be

skillful and careful. He must put his client’s disposal not only his skill but also his

knowledge of the law as far as it is relevant and germane.”42

Hence, it is important to discuss the standard of care expected for a lawyer. In Bolam v

Friern Hospital Management Committee43, the court introduced the test in relation to standard of

care, stating what the reasonably competent professional practitioner would do having regard to

the standards normally adopted in his profession. However, it has been overruled in Foo Fio Na v

Dr Soo Fook Min44 whereby the Federal Court had opted to adopt the objective test as derived

from Rogers v Whitaker45, namely the defendant must conform to the degree of skill which a

member of public would expect from a person of his profession. The latter case states that there

must be an objective test based upon the court’s perception of what protection of the public requires.

However, the adoption of the perspective of a member of the public is not to say that a

lawyer can therefore shelter behind the lack of specific instructions from a client. A client retains

42
[1998] 1 CLJ 625
43
[1957] 1 WLR 582, 586-587
44
[2007] 1 MLJ 593
45
(1992) 175 CLR 479

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a lawyer to act for him and if a client must give specific instructions, he might as well act for

himself. A lawyer shall seek his client’s agreement as to whatever step should be taken next.

What is true is that an objective test as to the standard of care implies that inexperience or

overwork or such other pressure as might have led to the negligence will be no excuse, as illustrated

in a leading case of Nettleship v Weston46. In this case, a learner driver was held to owe a duty of

care to persons on or near the highway to drive with the degree of skill and care to be expected of

a competent and experienced driver. In Wilsher v Essex Area Health Authority47, it was decided

that an inexperienced doctor, who was called on to exercise a specialist skill, nevertheless satisfied

the necessary standard of care if he sought the advice and help of his superior when necessary.

Hence, the duty will be tailored to the act which the lawyer elects to perform. If a junior

lawyer or pupil undertakes a task for which he is inexperienced to perform, his inexperience will

be no excuse.

4.0 Compare the Approach on Duty of Care with the Practices in Australia

Australian Solicitors’ Conduct Rules (“the Rules”) was adopted by the Law Council of

Australia in 2011. The Rules serve to develop a single and uniform set of Australian Solicitor’s

Conduct Rules which are applicable to all solicitors within Australia. Analogous to ours, Rule 3 to

6 highlight the fundamental duties of solicitors and provide for the extensive guidelines on the

duties of a lawyer to the court and the client. For instances, a lawyer has a duty to respect the Court

46
[1917] 2 QB 691
47
[1986] 3 All ER 801

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and to refrain from dishonest and disreputable conducts as well as deliver legal services

competently, diligently and as promptly as reasonable possible48.

The Rules have highlighted the importance on competency of a lawyer via “unsatisfactory

professional conduct”. Similarly, the definition of “professional misconduct” had included where

the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard

of competence and diligence which is required of a lawyer.

Australia High Court in Naxakis v Western General Hospital49 had totally rejected the sole

application of medical opinion in determining the standard of care for a doctor’s duty to advice,

diagnose and treat. The standard of care owed by persons possessing special skills are not

determined ‘solely or even primarily by reference to the practice followed or supported by a

responsible body of opinion in the relevant profession or trade 50 Instead, whilst evidence of

acceptable medical practice is a useful guide for the courts in adjudicating on the appropriate

standard of care, the standard to be applied is nonetheless that of ‘ordinary skilled person

exercising and professing to have that special skill51. It has been accepted that the standard of care

to be observed by a person with some special skill or competence is that of the ordinary skilled

person exercising and professing to have that special skill as derived in Rogers v Whitaker.

This is analogous to Foo Fio Na’s case in Malaysia. The Federal Court held that it was for

the courts to judge what standard should be expected from the medical profession taking into

account not only medical opinion but other relevant factors surrounding the circumstances of the

patient.

48
Rule 4.1.3
49
(1999) 73 ALJR 782
50
Ibid, citing Rogers v Whitaker (1992) 175 CLR 479
51
Ibid

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 In short, Australia has the same standard of care as found in Malaysia, which is illustrated

in cases of Foo Fio Na and Rogers v Whitaker.

5.0 Conclusion

Needless to say, a lawyer is an admirable profession and still subject to the law of

employment. Lawyers are part and parcel in upholding the rule of law and preserving the justice

in the society. Hence, a lawyer not only owes a duty to the Court, to his client, to his firm, but also

to the society as a whole within his diligence and competence.

Similarly, both Malaysia and Australia have their own rules to regulate the lawyers’

obligation in serving their profession. A lawyer is expected to perform his profession according to

the reasonable standard of care having regard to the standards normally adopted in his profession

regardless of his experience. Hence, a junior lawyer or pupil with lesser experience is still treated

with the duty of care on par with senior lawyer. As such, both Australia and Malaysia have adopted

the same standard of care for professional negligence by relying on the objective test in Rogers v

Whitaker.

In short, is it submitted that the statement of “I am a lawyer, I am blameless” is not true. A

lawyer is liable for his failures in performing their duty professionally in accordance to the standard

of care imposed on them. In this context, a lawyer can be sued either by his client or firm for his

failures to carry out his duty in contract, where a contractual relationship exists, and tort for his

professional negligence. Disciplinary action can be taken and practicing license can be revoked by

the Bar Council. Hence, it is advised that a lawyer should take reasonable due care in performing

his obligations.

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