EPS0317/QB01/SRMK(1)

Bar Council Malaysia

Ethics and Professional Standards Course: Written Assessment
Instructions and terms for the Written Assessment
Please note that this assessment is a mandatory part of the Ethics and Professional Standards
Course.
Please prepare answers to the following five questions, and submit this document back to
saiful@malaysianbar.org.my when you have completed your answers.
Please write your answer in the space provided, and ensure that each answer does not exceed 300
words.
Please note that your answer should not comprise of any plagiarised material / content from any
source, and while you may refer to statutory provisions and cases and materials for the
purposes of writing the answers, if you are found to have plagiarised any material / content,
you will be deemed to have failed the Ethics and Professional Standards course, and may not
be allowed to re-do the course.
Please note that your answer should not be copied from any source (including the work of other
pupils in chambers), and if you are found to have done so, you will be deemed to have failed
the Ethics and Professional Standards course, and may not be allowed to re-do the course.
Please note that your answers should be written only by you, and not by any third party, whether for
payment or otherwise. If it is discovered that your answers have been written by a third party,
you will be deemed to have failed the Ethics and Professional Standards course, and may not
be allowed to re-do the course.
Please insert your full name and Bar Council Petition Number below. This will be treated as an
acknowledgement that you have read and understood the terms of this assessment.

Name: RISHAN KUMAR A/L RAGANDARAN

Petition No: WA-18-323-02/2018
Date: 2.11.2018.

Module 1: Role of the Bar: Question 1

Explain in your own words, the role that an Advocate & Solicitor has in the resolution of a dispute or
to ascertain the guilt or innocence of an accused person.
In general, the main duty of an Advocates & Solicitors is to uphold justice and to ensure that his
client have a fair trial. We can define the role into two categories, civil and criminal litigation.
Referring to Section 42(1) of the Legal Profession Act 1976 where it stated that the objectives of
Advocates & Solicitors is to uphold justice. An Advocate & Solicitor must act to his best ability and
without any fear. He if given a chance to promote settlement and not to stir up strife and litigation
(Rule 43 Legal Profession (Practice & Etiquette) Rules 1978 (LPPER 1978). He must understand the
facts of his case and to provide his client with the best advice available.
In criminal and civil cases, he has a duty under Rule 16 LPPER 1978 where it stated that lawyers
must act with due courtesy while upholding the interest of his client, the interest of justice as well as
the dignity of the profession.
In criminal litigation, there is a presumption that a person is innocent until proven guilty. As a
Defence counsel, he is bound under Rule 9 of the LPPER where it mentioned that any lawyer that
undertakes the defense of any person shall present every defense fairly and honorably regardless of
his personal opinion as to the case. He also has a duty to advice his client to plead guilty after

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determining that is in the best interest of his client. where thereafter he could mitigate to Court on
his sentence.
In conclusion, an Advocate & Solicitor has a duty exercise their roles to the best of their abilities, to
ensure that his client is given a fair trial and for the interest of justice.

Module 2: Professional Ethics: Question 2

You have been appointed to act for the Defendant in a debt collection case. Your instructions are to
delay the proceeding for as long as you possibly can. You proceeded to file the memorandum of
appearance and the Statement of Defence. Your client is unable to give you any information that
provides him with a defence. Not having a real defence, it was not possible for you to be ready when
the hearing date arrives. You decide to obtain a postponement by claiming to be unwell.
Discuss in what way, if any, you have behaved improperly.
No Advocate and Solicitors should accept a brief if it is difficult to maintain a professional
independence as per Rule 5 (a) and (b) (i) of the Legal Profession (Practice & Etiquette) Rules 1978
(LPPER 1978). I would have breach of Rule 12 LPPER 1978 where it says that Advocate and Solicitor
shall not to conduct civil case or make a defence which is intended to delay proceedings or to harass
or injure the opposite party or to work oppression or wrong. By using this delay tactics, I would
breach Rule 31 LPPER 1998 whereby it is stated that every Advocate and Solicitor shall uphold the
dignity and high standing of the profession. I would breach Rule 4 LPPER 1998 which stated that no
Advocate and Solicitor shall accept a brief where he knows or has reason to believe that his own
professional conduct is likely to be impugned.
I would also breach Rule 5(a) LPPER 1998 where it would be difficult for me to maintain my
professional independence or incompatible with the best interest of the administration of justice.
Rule 6 LPPER 1998 is breached because I am unable to appear on the hearing date due to the reason
that there is no real defence available to me to put forward. By claiming to be unwell, I have
disrespected the Court and breached Rule 15 and Rule 24 LPPER 1998 . By not preparing a real
defence, I have breached Rule 16 and 31 of LPPER 1998 for the failure to upload the dignity of the
profession, client and justice.
Since there was no real defence available, I would be breach of Rule 17 LPPER 1998 for deception
towards Court.

Module 3: Duty to and in Court: Question 3

Explain the different types of contempt and how each situation may arise. Consider the procedural
safeguards that exist before one may be punished for contempt?
There are two types of contempt of Court. The first would be a civil contempt and the next is
criminal contempt. Civil contempt is define as conduct which involves or assist in the breach of an
order of Court or an undertaking to the Court. Criminal contempt is define into 3 categories. First,
contempt in the face of the Court ie conduct during a trial before a Judge which may take place in a
courtroom or in chambers. Situation under this contempt involves challenging the authority of the
Court, arguing with the Judge, allegation of bias (Re Tai Choi Yu 1999) and others. It may also rise

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where there is obstruction of the proper conduct of litigation or an interference with the
administration of justice by concealing a documents, denying the right of access to the Court.
Next, scandalizing the Court, ie making remarks outside the Court that are derogatory of the Court
or the Judge. One of the situation for contempt arise in the case of AG v Arthur Lee Meng Kuang
where the lawyer wrote a letter criticizing the judgment of the Supreme Court and alleged the
decision was bias. It was held to be a contempt. The next category is Sub judice comment for
example making public comments about a matter that is to be heard or is being heard in Court as it
may prejudice the trial.
The procedural safeguard exist is defined in 4 categories. First, an opportunity to be heard must be
given to the alleged contemnor; second, the alleged contemnor is required to be informed of charge
against him and the evidence; third, burden of proof is beyond reasonable doubt and lastly, the
alleged contemnor should be transfer the proceeding for contempt to another court so he will be be
heard fairly without prejudice.

Module 4: Solicitors Accounts and Undertakings: Question 4

You act for a client on several matters including the sale of some shares to a purchaser.
The proceeds of the sale are held in your Client Account on an undertaking to release it to your client
once the sale is complete, but to return the money to the purchaser if the sale is aborted. The sum
deposited with you amounts to several million Ringgit.
In the meantime, your client has accumulated unpaid legal fees and disbursements of RM75,000
which is due to you. Your client tells you that the purchaser owes him RM100,000 from another
transaction, and tells you to deduct the fees he owes you from the money held in your Client
Account.
He reasons that the money will eventually be paid either to him or to the purchaser. If it is to be paid
to him, he will then have to pay the sum of RM75,000 to you. However, if it is to be paid to the
purchaser, he will then receive RM100,000 from the purchaser from which he will still have to pay
you. He feels therefore, that no harm will be done either way. Anyway, since he is your client, you
should just follow his instructions.
Discuss.
I will strictly disobey my client instruction. I as an Advocate and Solicitor is bound by the Solicitor
Account Rules 1990 (SRA 1990) where the function of the rule is to govern the manner in which
client monies is dealt with. I cannot obey my client instruction because the monies that that is held
by me in client account is for the payment of sale of shares. If i were to deduct it for my legal fees it
will amount to breach of trust.
It was also stated that I have gave my undertaking to release the money to my client once the sale is
complete but to return the money to purchaser if the sale is aborted. I will have to advice my client
that if I were to follow his instruction this will amount to breach of undertakings. An undertaking is a
promise to do or refrain to do an act. In the case of Packiam Ramalingam v Badan Peguam Malaysia,
undertaking is describe as an unequivocal declaration of intention addressed to someone and that
someone places reliance on it. Since I had make an undertaking, I will have to act honorably and
ethically.The promise that I made is binding upon parties and there will be consequences if I breach
it.
If I breach an undertaking I will be liable for summary enforcement by the Court on compensation in
lieu, there will be an action against me either in contract or tort and disciplinary action can be taken
against me. Breach of undertaking will amount to negligence from my part.

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I will also be bound by Rule 36 Legal Profession (Practice and Etiquette) Rules 1978 (LPPER), where it
stated that I should prevent my client from wrongdoing. Rule 16 and 31 LPPER 1978 also stated that
an Advocate and Solicitor must uphold the dignity of the profession.
In conclusion, I will advice my client that I will not be able to his instruction which will open me up to
consequences that I will face if I follow his instruction.

Module 5: Duty to Client: Question 5

You are advising your client on a takeover of a company. You are aware that the takeover will create
a lot of media interest, and probably result in the shares of the target company becoming more
valuable. You decide to make an investment in the target company to take advantage of the
likelihood that its share price will go up, once news of the takeover gets out.
Is there anything wrong with what you have done? What consequences could follow?
I will be liable for breach of fiduciary duty that I owed to my client. This duty required me as a
solicitor not to abuse or to take any advantages of the special situation that has been created by me
and my client which in this case I did knowing that the shares of the company might become more
valuable.
I will also be breach of duty of honesty which stated that I as a lawyer must act honestly in my
duties which in this case I have acted dishonestly by deciding to make an investment in the target
company. Rule 35 Legal Profession (Practice and Etiquette) Rules 1978 (LPPER) stated that an
Advocate and Solicitor shall refrain from any action whereby for his personal benefit or gain he
abuses or takes advantage of the confidence reposed in him by the client.

By taking advantages with the information that was present, I will be liable for breaching duty of
account to client. I as a fiduciary is not allowed to make a profit from information that was disclosed
to me. This means that I as the solicitor for my client, I cannot profit from the knowledge of my
client business deals and intentions, and any gain that I received from any source, as a result using
my client information or property which in this case I did.

The consequences for my action is that I will be liable for professional negligence. I will be liable for
breach of duty owed towards my client. For my conduct to amount to negligence, my client must
prove that I breached my duty of care and that breached caused my client to suffer damages. The
standard of proof required here is stated in the case of Dr Soo Fook Mun v Foo Fio Na where is the
standard of the ordinary skilled men exercising and professing to have that special skills. The act of
using the information that was given by my client whereby I've decided to make an investment in
the target company do amount to negligence conduct. Therefore I will be liable for professional
negligence.