DUTIES OF COUNSEL

DUTY TO THE COURT

- A lawyer shall be honest, used tactics that are legal, respect the courts
- A lawyer shall act with integrity and professionalism, maintaining his or her principal
responsibility at all times
- A lawyer shall educate clients about the court processes in the interest of promoting the public's
confidence in the administration of justice
- A lawyer's duty to the court relates to his or her status as a professional who serves, not only
clients, but also the public interest.

PRINCIPLES DUTIES

a) DUTY NOT TO MISLEAD THE COURT

- A lawyer cannot knowingly offer or rely on false evidence or misstate evidence. Misleading the
court includes actions such as knowingly misrepresenting or misstating the facts in argument,
inducing a witness to state misleading evidence and knowingly maintaining a false.
 Rondel v Worsley [1967] 3 All ER 993 HL
- Appellant was convicted of the crime. 6 years later he sued his Counsel for negligence in the
conduct of his defence.
- HL: - Counsel owes a higher duty to court than to client - ‘for true administration of justice’.
Public policy grants Counsel Immunity from being sued for professional negligence in conduct
of a cause, criminal or civil
- Lord Denning in the case stated that “(Counsel) … has a duty to the Court which is paramount. It
is a mistake to suppose that he is the mouthpiece of his client to say what he wants, or his tool to
do what he directs. He is none of these things. He owes allegiance (commitment) to a higher
cause. It is the cause of truth and justice”.

- Example of misleading the court:-

- concealing a document affecting the credibility of a witness in a civil suit
 Cheah Cheng Hoc v PP [1986] 1 MLJ 299 – concealing relevant documents - could be
liable for contempt of court for obstructing proper conduct of case

- filing affidavits in court which contain misleading averment

 Re An Advocate & Solicitor [1962] MLJ 125– preparing a false affidavit – penalty could
be to strike off the roll or suspend practice for a period with payment of costs.

 Md. Samsudin Ismail v Tan Yeow Hwa & Anor [2000] 4CLJ 398 - Counsel who
represents litigants in court should not attempt to split words into distinct segment and
take the court on a wrong route to suit his or her agenda just to sway the court to give a
decision in his or her favour.

 The Topps Co Inc v Mally Jaya Sdn Bhd [1998] 2 CLJ 235 – an undischarged bankrupt
does not disclose his incapacity at the time of affirming an affidavit

This study source was downloaded by 100000858574478 from CourseHero.com on 12-26-2022 21:35:42 GMT -06:00

https://www.coursehero.com/file/76678820/Duties-of-Counsel-Notesdocx/
 b) Duty not to withhold authorities
 Copeland v Smith [2000] 1WLR 1371 C/A
- Buxton LJ and Brooke LJ were highly critical of advocates who did not assist the court with
relevant authorities. It is essential for advocates to keep themselves up to date with recent
authorities.
 Yap Ban Tick v Standard Chartered Bank [1995] 3 AMR 2580-
- however, tempting it may be Counsel should never suppress an adverse authority as to do so
would mean that the legal profession would cease to enjoy the confidence of the State and
democracy will perish.

- Lawyers are under a positive duty to make full disclosure of all the binding authorities
relevant to a case. This means that all such authorities on point must be brought before the court,
whether they support or undermine the position being argued by that party, even if opposing
counsel has not cited such authority. This element of the duty includes drawing a judge's attention
to any legal errors which have been made so that they can be corrected.

C) Duty not to misrepresent witness giving evidence in court

 Re JLP Haris [1953] MLJ 161 – should not procure an adjournment by keeping witness
away from court. On the facts Counsel had deliberately kept away an adverse witness and
procured an adjournment by false means. He was suspended from practice for 3 months and
ordered to pay costs.

D) Duty to prevent court from enforcing illegal transaction

 Mercantile Credit Co Ltd v Hamblin [1964] 1 All ER 680
- Even where not pleaded Counsel could raise the issue of illegality of the transaction. It is
Counsel’s duty however embarrassing to prevent a court from enforcing an illegal transaction.
 Network Food (M) Sdn Bhd v Syabinas Holdings Sdn Bhd [1997] 4 CLJ 49 –
- Duty of Counsel to appraise court of any illegality.

E) Duty not to cast aspersions on witness without sufficient proof.

 Roy v Prior[1970] 2AER 729 HL –
 D Counsel stated that he had subpoenaed a witness who had failed to appear in court.
He suggested that the witness was evading the court and sought a warrant of arrest
knowing that it was untrue. Witness was subsequently arrested and sued D Counsel
who claimed immunity.
 HL: limits to immunity. If privilege was abused immunity will be lost. On the facts D
Counsel’s actions were malicious.

DUTY TO CLIENT – LPPER

- Duty to Accept Brief

- Duty to Represent Unless Embarrassed
- Duty to Uphold Interest of Client
- Duty to Disclose all circumstances to Client
- Duty of Skill and Care Towards Client
- Duty of competence and diligence
This study source was downloaded by 100000858574478 from CourseHero.com on 12-26-2022 21:35:42 GMT -06:00

https://www.coursehero.com/file/76678820/Duties-of-Counsel-Notesdocx/
 - Duty of Honesty
- Duty to avoid conflicts
- Duty to account
- Duty under the LPPER

Ablemerch Sdn Bhd v Emville Sdn Bhd

- Paramount duty of counsel is to research the law & assist court to drive at a just decision
- It is not the duty of courts to do its own research for every case, otherwise there would be no
need of litigants
- A lawyer must do extensive research & assist the court – if they fail to do so they fail in their
duty to client and fail as an officer of court

Datuk Seri S Samy Vellu v S Nadarajah

- Advocates must assist courts correctly as to the law

- Objective of trial is to determine the truth and apply laws correctly to the truth
- Public interest is best served not at who wins, but whether justice is done in accordance with the
law

 Rondel v Worsley
- it is a duty of the counsel to act fearlessly, to raise every issue, advance every argument & ask
every question, however distasteful, which he thinks will help his client’s case.

 Tombling v Universal Bulb Co.

- it is the duty of the counseevery honest endeavour to succeedl to client in a civil case or in
defending an accused person to make “”.

 Lord Denning
- a counsel has a great responsibility towards his client. This responsibility must be carried out
diligently towards the end no matter how much public opinion is against his client (if he is an
accused person), no matter how distasteful is the task, no matter how inconvenient to him & no
matter how small a fee.

 The Cab Rank Rule-Rule 2 of LPPER 1978.

- An A&S shall give advice on or accept brief in the courts in which he professes to practice.
- The lawyer is bound to act for anyone who wishes to retain service.
- Originated from the English Bar in the case of Rondel v Worsley-Lord Pearce said:
 ….It would be tragic if our legal system came to provide no reputable defenders,
representatives or advisers for the latter. And that would be inevitable result of
allowing barristers to pick and choose their clients.

 Exception to the Cab Rank rule

- Rule 3-Not accept if embarrassed

- Rule 4-In the event of conflict of interest
- Rule 5- Difficult to maintain, professional independence.
- Rule 6-Unable to appear
This study source was downloaded by 100000858574478 from CourseHero.com on 12-26-2022 21:35:42 GMT -06:00

https://www.coursehero.com/file/76678820/Duties-of-Counsel-Notesdocx/
 - Rule 27-Where the outcome will affect in a pecuniary sense.
- Rule 28-It appears that you become material witness in the matter.
- Rule 54-knowingly agree to appear or to act to appear for a party represented by another lawyer.

 R 2- An A&S shall give advice on or accept brief in the courts in which he professes to practice. But
special circumstances may justify his refusal at his discretion to accept a particular brief.

 R.3 – Not to reject any brief except embarrassed

 What instances would be considered as embarrassment?

 1) Where A&S finds he is in possession of confidential information as a result of having

previously advised another person in regard to the same matter.

 2) Where there is some personal relationship between him and a party or a witness in the
proceedings.

 Tan Kim Hor & Ors v Tan Heng Chew & Ors [2004] 6 CLJ 338
 Conflict of interest firm had previously advised the respondent co. issue of
confidentiality whether embarrassment professional independence whether against Rr.
3 & 5 of LPPER.

 Rhina Bhar v Malaysian Bar-

 The Bar Council had objected for RR Sethu to represent the Plaintiff on the ground of
R3. Anuar J General rule- member of public authority should not be professionally
engaged in any proceedings for which the authority is a party or is directly interested.

- Conflict of Interest – R.4 & R.5

- No A&S to accept brief if professional conduct likely to be impugned, difficult to maintain
professional independence, not to appear in a case where he is a witness.
- If there is conflict of interest, it would affect the lawyers in presenting his case and victimize the
client’s interest.
- At all times, lawyers are duty bound to uphold the interest of the client.
- R16-shall fearlessly uphold the interest of his client without regard to any unpleasant
consequences either to himself or to any other person.
- Lawyers are subject to disciplinary action. Section 94 (3)-gross disregard of his client’s interest.

- Example:

o carry out instruction in the matter to which the retainer relates with diligence and proper
means.

o consult with client on related matter

o keep his client informed and comply with reasonable request from him.

- Rule 25-To disclose to the client all circumstances of his relation to the parties and any interest in
connection with the controversy which may influence the client in the selection of counsel.

- Rule 23- Not to conceal facts. To supply court all information as to the probable length of a case
and the possibility of a settlement.
This study source was downloaded by 100000858574478 from CourseHero.com on 12-26-2022 21:35:42 GMT -06:00

https://www.coursehero.com/file/76678820/Duties-of-Counsel-Notesdocx/
 - What things to disclose?

o Liabilities-guilty, innocent, negligence.

o Options- to sue or not to sue, to plead guilty or not and etc.

o Legal remedies- compensation, fine, injunction.

o Steps to be taken in obtaining the remedy cost, probable length, documents

DUTY OF SKILL AND CARE TOWARDS CLIENT

- The lawyer must be honest and competent in order to ensure that judges are able to deal with the
cases that come before them justly and competently.
- A lawyer should refuse to accept any case that is beyond his expertise because this will help the
client’s money and time and will inspire client confidence in the honesty of the profession.
- Lawyers owe a duty to deliver work which meets a reasonable standard of competence and with
reasonable care and diligence.
- Consult clients on questions of doubts
- Lawyers to be skilful and careful and should have a good knowledge of the law (when deciding
to take up the case)

 Duty to account

o Lawyers are not allowed to make profit from information that is disclosed to him in his
capacity as a fiduciary or from the use of any property of the client that has been
deposited with him.

o Lawyers are required to keep separate accounts namely client’s account and office
accounts.

o He must never use the money from client’s account for his own purpose.

- S 94 (4)- may be found guilty of any offence involving dishonesty, misuse or misappropriation of
any money of the client, he might be liable to suspension, struck off and any other order deems
fit by the disciplinary board.

Duties under LPPER 1978

o Acceptance of brief;- R 2,3,4 & 5

o Performance in court; R6 & 24, 9, 10, 12-16, 17, 18, 20 & 23

o Other general conduct: 27, 28, 30, 32, 35, 51, 54 & 56

DUTY TO OPPOSING CLIENT

- Duty of fairness to opposing counsel

 Clyne v New South Wales Bar Association (1960) 104 CLR 186
- Not to cast unsubstantiated aspersions of dishonesty. Held: - struck of the Rolls.

- Duty not to engage in personal bickering (quarrelling) with opposing counsel in court
 Beevis v Dawson [1956] 3 All ER 837
This study source was downloaded by 100000858574478 from CourseHero.com on 12-26-2022 21:35:42 GMT -06:00

https://www.coursehero.com/file/76678820/Duties-of-Counsel-Notesdocx/
 - Continuous bickering between counsels and the court becomes a burden to all. Duty of Counsel
to assist the court. Immunity could be lost where it is abused under the cloak of privilege.

- Duty not to cast aspersions (slanders/ accusation) on opposing counsel

 Clyne - privilege if abused could be lost. Counsel in a divorce case had made a vicious and
unrestrained public attack on the professional character of opposing Solicitor. The New South
Wales Bar moved a motion to have Clyne to be struck off the Rolls of NSW. SC upheld.

Conclusion

Full responsibilities

- To represent the client with full responsibilities whether as a defendant’s or plaintiff's solicitors.
- Pre-trial- To advice for “mediation” or reconciliation.
- During the trial-To assist the court in providing true facts. Punctuality, honest and competent.
- Post trial or after the judgment- To make sure that the Order made by the Court be obeyed by the
disputed parties. To file an appeal if clients dissatisfied with the decision.

Other responsibilities – See S 42 LPA on Powers of Bar Council

1. S 42(1)(g) LPA – Protect/ Assist public in law matters

2. S 42(1)(h) LPA – Bar Council help financially distressed person to have legal aid – for the purpose of
this objective: establishment of Legal Aid Department
3. Duty to initiate law reforms

e.g. Juvenile Act replaced to Child Act / Amendment to CPC on body search to women, etc.

4. Bar Council duty to educate public on their rights

Whether Immunity under Rondel v Worsley is still applicable?

Rondel v Worsley [1967] AC 191

- House of Lords determined that for good reasons of policy, a counsel was entitled to immunity
from suit of negligence in respect of his conduct in the client’s case in court.
- Lawton J. at the trial held the view that any advocate be he a barrister or solicitor who appears for
a client before a court of law should be protected from suits brought by disgruntled litigants.
- But on appeal to the Court of Appeal the court held that only a barrister as such should be
protected and not a solicitor irrespective as to whether the negligent act was in reference to the
conduct of a trial or elsewhere.

Rees v Sinclair [1974] 1 NZLR 180

- Court of Appeal followed Rondel’s case and extended immunity to conduct out of court which
was ‘intimately connected’ to conduct in court.

Miranda v Khoo Yew Boon [1968] 1 MLJ 161

- An action of negligence arose against a solicitor out of civil action

- The respondent had failed in his defence and instructed the appellant to appeal – the notice of
appeal was filed within prescribed time, but the memorandum of appeal was not
This study source was downloaded by 100000858574478 from CourseHero.com on 12-26-2022 21:35:42 GMT -06:00

https://www.coursehero.com/file/76678820/Duties-of-Counsel-Notesdocx/
 - The solicitor argued, that he was an officer of the court therefore based on public policy he
should be protected from suits brought by disgruntled litigants.
- Court made observations on liability of advocate and solicitors:
- Advocate and solicitors are under contractual duty to use care and this extends to the conduct of a
case
- In an action against solicitor for negligence in litigation, the burden is on solicitor to show the
client was not damnified
- In this case the action of negligence succeeded and damages were awarded to the client.

Ali bin Jais v Linton Albert & Anor [1999] MLJU 323

- Plaintiff claimed damages against defendant for negligence while the defendant was acting as the
plaintiff’s advocate and solicitor
- In a prior suit of the plaintiff, he instructed the defendant to lodge an appeal against the court
decision – however the defendant failed to fulfil conditions in Section 102 of Sarawak Land
Code hence the appeal was incompetent and dismissed
- Based on the facts of the case, the Plaintiff would have succeeded in the land appeal case had the
appeal been heart on its merit – Therefore it was forceable that losses suffered by Plaintiff was
due to negligence of defendants
- The court referred to Miranda’s case and find the defendant guilty of negligence in his conduct
on behalf of the plaintiff.

Lim Soh Wah & Anor v Wong Sin Chong & Anor [2001] 1 MLRA

- Appellant failed to appear in court on the day fixed for trial and did not inform his clients
(respondent) of the trial judgement
- Gopal Sri Ram JCA remarked that advocates and solicitors in Malaysia have never enjoyed
immunity from negligence suits
- His Lordship referred to Miranda and Ali bin Jais for authorities.

This study source was downloaded by 100000858574478 from CourseHero.com on 12-26-2022 21:35:42 GMT -06:00

https://www.coursehero.com/file/76678820/Duties-of-Counsel-Notesdocx/
Powered by TCPDF (www.tcpdf.org)