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Duties of a Lawyer - Lecture notes 3

Law (Universiti Teknologi MARA)

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Duties of Lawyers (Legal Profession (Practice and Etiquette) Rules)

Sec. 77, LPA:
- (1) The Ba Cou il a , ith the AG s app o al, ake ules fo egulati g the
professional practice, etiquette, conduct and discipline of advocates and solicitors
- (3) Any advocate and solicitor who fails to comply with any rules made under this
section may be liable to disciplinary proceedings.
Duties to Clients
- A breach of these duties could amount to a professional misconduct, namely a gross
dis ega d of the lie t s i terests under Sec. 94(3)(n), LPA.

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 .

Rule 2: Duty to give advice on or accept any brief

- Special circumstances may justify his refusal to accept a particular brief.
Rule 3: Duty not to accept brief if embarrassed
- Where he finds that he possesses confidential information as a result of having
previously advised another person in regard to the same matter.
- Black v Taylor: The plaintiff sought and was granted an injunction to restrain
the solicitor from acting as either solicitor or counsel for the de eased s estate
on the ground of onfli t of interest ased on the soli itor’s re eipt of
confidential information relevant to the issues in the proceeding.

- Where he has a personal relationship with a party or witness in the proceedings.

- AG v Arthur Lee Meng Kuang: The court found the advocate to be in breach of
Rule 3 by failing to disclose the fact that his family company are purchasers of
2½ lots of space in the building which formed the subject matter of the suit.
Thus, there was clearly a conflict of interest when the advocate appeared as
counsel for the respondents both in the High Court and in the appeal.
- RS Muthiah v Pembinaan Fiba Sdn Bhd: The court disqualified Pn Malliga of
Messrs Malliga & Associates from representing the defendant and in the
alternative from handling matters of the defendant company on the ground
that as the wife of Mr Balachandran, the managing director of the defendant
company, she clearly had a personal relationship with him.
- Saraswathy Devi Nadchatiram v Vijayalakshmi Devi Nadchatiram: The
appellant was not prohibited from acting for her brother, sister and niece as
such relationships with her kin did not fall within the ambit of a personal
relationship under the rule. For the prohibition to apply, the relationship must
be a personal one, namely an individual or a private relationship which is
beyond that of a solicitor and client relationship.

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- 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.

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- 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.

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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.

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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.

- Dato Wong Gek Meng v Pathmanathan Mylvaganam: The obligations of a solicitor

towards his client are twofold. Firstly, at equity the relationship between a solicitor
and his client is entirely fiduciary and it carries with it the o ligatio s o the soli ito s
part to act not only with strict fairness but also with an attitude of openness. Failure
to adhere to this obligation renders the solicitor liable to make compensation for any
loss incurred by his client. Secondly, at common law a solicitor by his retainer must be
skilful and careful. He must put at the lie t s disposal not only his skill but also his
knowledge of the law as far as is relevant and useful.
Rule 25: Duty to disclose all circumstances to a client of his relation to the parties, and any
interest in connection with the controversy, which may influence the client in selection of
counsel.
- Oriental Bank Bhd v Abdul Razak Rouse: The plaintiff applied for an order for the
defendant, an advocate and solicitor, to within 14 days register a charge in favour of
the plaintiff against two pieces of land. The defendant failed to register the charge for
the reason that he also acted for the borrower, which he failed to disclose to the
plaintiff. Held: The defendant had breached the undertaking he gave to the plaintiff in
his professional capacity.
Rule 31: Duty to uphold to the dignity and high standing of the profession at all times.
Rule 35: Duty not to abuse confidence given to him by client
- Sec. 126, Evidence Act: A counsel shall not disclose any information related to his
client without the lie t s consent.
- Rakusen v Ellis, Munday & Clarke: There is no general rule that a solicitor who has
acted in a matter for one party shall not in any circumstances subsequently act in the
same matter for the opposing party, but where there is a probability, or a danger, that

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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.

Rule 15: Duty to maintain a respectful attitude towards the court

- R v Gray: Contempt of court is any act or writing done to bring a judge or court into
contempt or lower his authority.

- Re Kumaraendran, an Advocate and Solicitor: The record of the proceedings before

the President of the Sessions Court sho ed that the ad o ate as shouting and
behaving in a a e hi h is ost u e pe ted . The advocate made an application
for the case to be heard before another President and said that if the application was
not granted he would apply to be discharged from further acting for the accused. The
President then allowed the application for the discharge of the advocate. The
advocate then made the following remarks in court: If you say this (referring to the
President’s ruling) outside the ourt, I will take on you ertainly . The President of
the Sessions Court then ruled that the advocate had committed contempt of court. In
exercising its revisionary powers, the High Court held: There is no doubt that the
words uttered by the advocate constituted insulting and contumacious (wilfully
disobedient) behaviour in outrageous and provocative language tantamount to a
deliberate challenge to the authority of the learned President and was clearly a gross
contempt in the face of the court.

- PP v Seeralan: During an inquest, the respondent made several allegations of bias

against the Magistrate. The Magistrate ordered the respondent to leave the court but
the respondent refused to comply. He continued to make allegations of bias against
the Bench saying that the Bench was unfair and prejudiced. The Supreme Court held:
The record clearly revealed the uncompromising attitude of the respondent and his
unabashed arrogance and disrespect towards the Magistrate. His continued
accusations that the court was biased, unfair and prejudiced clearly amounted to a
contempt of court. Such conduct and behaviour were not just disorderly acts, nor a

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mere use of unbecoming language; they constituted a contempt of court of a serious

kind, without any mitigating factor.
Rule 17: Duty not to deceive the court
- To produce and not suppress relevant documents or information:
- Cheah Cheng Hoc v PP: The concealment of documents relevant for the
purpose of challenging the credibility of a witness by a counsel may amount to
contempt of court for obstructing the proper conduct of litigation.
- The advocate misled the court by concealing a document which
affected the credibility of his witness and was convicted of contempt.
The Supreme Court held: It is very important for a counsel to remember
that whatever his duty to his client is, his duty to the court remains
paramount in the administration of justice.

- 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.

- To not submit false documents and false affidavits as exhibits:

- Myers v Elman: A solicitor who has innocently put on the file an affidavit by his
client which he has subsequently discovered to be certainly false owes it to the
court to put the matter right at the earliest date, if he continues to act as
solicitor upon the record.

- Re An Advocate & Solicitor: The preparation by a professional man of an

affidavit that is untrue, and that is known to him to be untrue, is a very serious
offence. In some cases of this kind the appropriate penalty would be either to
strike off the offender (if it was a very bad case) or to suspend him for a period.
- In this case, where the advocate and solicitor was found to have made
false assertions in preparing an affidavit for his client, the court found
him to be guilty of professional misconduct and recorded a censure.

- Rajasooria v Disciplinary Committee: Where the advocate and solicitor

knowingly and deliberately submitted a false document to the court, he was
guilty of grossly improper conduct as being dishonourable both to himself and
to his profession.
- The submission of such a document with such intention in itself
involved an element of deceit.

Rule 18: Duty to conduct with candour, courtesy and fairness

- The conduct of an advocate and solicitor must be exemplary.
- There is an expectation of honesty and frankness in all court proceedings.
- Rondel v Worsley: A counsel owes a higher duty to the court than to the client.

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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.

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- 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

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plaintiff made the application by way of a notice of motion supported by an affidavit

affirmed by the lawyer acting for him. The defendant raised an objection before the
application could be heard, stating that the affidavit was affirmed by the solicitor
handling the case contrary to Rule 28. Held: Rule 28 was introduced to ensure that a
solicitor acting in a matter do not appear as a witness. A solicitor should avoid from
swearing an affidavit and continuing his duty as a solicitor. A defective affidavit sworn
by a solicitor is wholly incompetent. The special position of advocates and solicitors
before the courts must not be tainted with trading that position as a witness and
thus, the affidavit should be re-sworn and re-filed.
Duties to the Profession
Rule 44: Duty not to actively carry on any trade which is declared by Bar Council as unsuitable
and not to be a full time salaried employee of any person, corporation, firm other than his
own as long as he continues to practice.

- 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.

- Re An Advocate: Where the respondent, an advocate and solicitor practising in

Sarawak, also took an active part in the business of selling ladies wear, the court found
that his conduct was such that would justify action to disbar him.

- 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.

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Rule 51: Duty not to do or cause touting

- Rhina Bhar v Koid Hong Keat: The parties entered into an oral agreement in which it
was agreed that the respondent would be paid 10% commission for each case referred
to the appellant. However, the appellant failed to make such payment. The
respondent could not successfully make a claim for the payment as the remedy sought
was based on the breach of an illegal contract. Subsequently, the Disciplinary
Committee found that a disciplinary action should be taken against the appellant for
touting and she was suspended from practice for 3 months. The court affirmed the
suspension as from the evidence adduced, the agreement was found to be in breach
of the Rules and the appellant was therefore guilty of misconduct under the LPA.
Duties to the Opposing Counsel
Duty not to cast accusations without sufficient proof:
- Beavis v Dawson: Counsels must not engage in personal bickering and acrimonious (ill-
feeling) exchange of words in court between one another.

- Roy v Prior: The veil of privilege/immunity of an advocate and solicitor may be

pie ed if a ou sel e gages in a deliberate or malicious act or where it can be shown
that he abused his position.

- 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.

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