DUTY OF COUNSELTO CLIENT

DUTY OF COUNSEL TO CLIENT

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 counsel to client in a civil case or in defending an accused person to make “every honest endeavour to succeed”.

DUTY TO CLIENT 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.

Duty to client

Dato Wong Gek Meng v Pathmanathan Mylvaganam & Ors. Abdul Malik Ishak J held that the obligations of a

solicitor towards his client are twofold, namely at equity & at common law. At equity, the client-solicitor relationship is entirely fiduciary. This requires the solicitor to act with strict fairness & openness. At common law, the solicitor must act skillfully & carefully.

Duty to client Fiduciary duty – no conflict of interest, no

pecuniary interest. Therefore, sol must act fairly & openly.

Zainur Zakaria v PP FCt: an adv & sol owed a duty to his client to act

fearlessly & uphold the interests of his client, the interests of justice & the dignity of the profession regardless of any unpleasant consequences.

Duty to client

Contractual & fiduciary relationship Adv & sol as a fused profession, have contractual

& fiduciary duties towards client. The reason being that, the relationship of an adv &

sol with his client is founded on contract (retainer) irrespective of any distinction between employment as an advocate and as a solicitor.

From this contractual relationship, stems an adv & sol’s right to sue for his fees: Ss 114 & 116 LPA.

Duty to client

Duties of an adv & sol to client are mostly a matter of etiquette that are governed by the Legal Profession (Practice & Etiquette) Rule 1978 & Legal Profession (Practice & Etiquette) Rule 1994. S 77 of the LPA – …the BC may…make rules for

regulating the professional practice, etiquette, conduct & discipline of adv & sols.

Duty under the LPPER

Some of the duties of a counsel under the LPPER are overlapping with the duties of a counsel to the court.

Duties under the LPPER: Acceptance of brief; Performance in court; Other general conduct.

(a) Acceptance of brief This refers to the acceptance of a document to

appear in court by an adv & sol. R. 2 – obligation of adv & sol to give advice or accept

any brief (if refuse, has to justify the refusal). R. 3 – Adv & sol not to accept brief if embarrassed.

How ‘embarrassment” can arise? r 3(b) (i) – if adv & sol in possession of confidential

information; (ii) – there is personal relationship between adv & sol and a

party/a witness in the proceedings.

R. 4 – no adv & sol to accept brief if professional conduct is to be impugned

R. 5 – no adv & sol to accept brief if difficult to maintain professional independence The situation occurs when the acceptance of brief

may cause a conflict of interest on the lawyer’s part, involve the issue of confidentiality & embarrassment.

Cases: Che Ahmad Hj Che Daud & Ors. V DCB Bank Bhd.

[2001] 5 CLJ 333 – counsel acted for all parties concerned – question of professional independence – whether against r 5(a) LPPER.

Aw Sing Moey & Ors v Melombong & Perumahan Sdn Bhd [1999] 4 CLJ 721 – acceptance of brief – whether embarrassed – confidential information – professional independence – conflict of interest – adv acted for both sides wanted to act for one against the other in the same matter – rr. 3, 4, 5.

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.

Ex parte Vicnandan Maria Dass [2000] 3 CLJ 808 – sol represented purchaser in sale & purchase of land, and act for the vendor (applicant) in the case. There would be a conflict of interest – difficult to maintain professional independence.

R.S. Muthiah v Pembinaan Fiba Sdn Bhd [2004] 2 CLJ 917 – acceptance of brief – embarrassment – personal relationship between sol & party/witness of proceedings – wife of MD of D co. acting as solicitor for the D co & co’s secretary of D acting as solicitor for D – question of professional independence & whether incompatible with the best interest of administration of justice.

Saraswathy Devi Nadchatiram v Vijayalakshmi Devi Nadchatiram [1998] 1 CLJ 1035 – sol having personal relationship with clients – r 3.

(b) Performance in Court

Advocate must be ready for trial R 6 - adv & sol not to accept brief if unable to

appear/represent client R 24 – adv & sol to be ready for the day fixed for

trial (a) effort to be ready for trial (b) may apply for postponement for good & cogent

reasons only (c) improper to apply postponement in the absence of

the other counsel unless in emergency or has given 48-hour notice.

Cases: Zainuddin Husin v Yung Heng Farm Sdn Bhd [2004] 2

CLJ 231 – professional discipline – misconduct – failure to be ready for trial on hearing date – whether the conduct constituted a breach of LPPER & liable for disciplinary proceedings.

Sharma Kumari A/P Oam Prakash v PP [2000] 6 MLJ 282 – postponement – discretion of court to fix date of hearing – r 6(a).

Tan Pak v Cham Boon San & Other actions – counsel undertake to appear in another case when engaged for trial – application for adjournment – whether amount to contempt of court.

Lai Cheng Chong v PP [1993] 3 MLJ 147 – failure of appellant & counsel to attend hearing – withdrawal of counsel during course of trial – hearing postponed but again failed to attend – whther tantamount to contempt of court.

Awaluddin b Suratman & Ors v PP [1991] 3 CLJ 2459 – adv & sol not to abandon client in the midst of trial.

Advocate to undertake defence fairly & honourably R 9, 10 He must present every defence that the law permits,

so must defend the person accused regardless his personal opinion as to the guilt of the accused.

Not lead to the conviction of an innocent person. R 12 – not to conduct civil case intended to delay

proceedings R 13-14 – to guard against insulting/annoying

questions & irrelevant questions.

Respect to court R 15-16 AG & Ors v Arthur Lee Meng Kuang [1987] 1 MLJ 206

– the respondent not only criticised the judgment of the SC, but alleged that the decision was unjust & biased – contempt of ct.

PP v Seeralan [1985] 2 MLJ 30 – counsel holding watching brief – became emotional & made several allegations of bias against the magistrate – contempt of court

Tommy Thomas v Peguam Negara Msia & Other Appeals [2001] 3 CLJ 457 – A issued press statement in breaching of undertaking given in HCt – whether HCt has jurisdiction suo moto to punish A for contempt

Thiruchelvasegaram Manickagasegar v Mahadevi Nadchatiram [2003] 2 CLJ 752

Re Kumaraendran [1975] 2 MLJ 45 AG v Manjeet Singh [1991] 1 MLJ 167

Additional reading: Contempt of Court – Freedom of Expression & Rights of

the Accused by Jerald Gomez [2002] 3 MLJ ccxli

R 16 – uphold interest of client, justice & dignity of profession Rhina Bar v Malaysian Bar [1994] 1 MLJ 24

No deception - R 17, 18, 20, 23 Dato’ Wong Gek Meng v Pathmanathan Mylvanam

& Ors [1998] 1 CLJ 625 – duty to court – misconduct in proceeding for causing deception – bringing of vexatious & frivolous proceedings – “But misconduct that will stir the court to life & that will receive the vehement disapproval of judges is deception. To practice deception in the court is akin to “ridiculing” the court. That is misconduct so grave that words cannot describe it.”

Sambu (M) Sdn Bhd v Stone World Sdn bhd [1996] 2 CLJ 532

(c) General Conduct

R 27 – adv & sol not to appear where pecuniarily interested. Saraswathy Devi Nadchatiram v Vijayalakshmi

Devi Nadchatiram [1998] 1 CLJ 1035 – adv & sol was named as beneficiary to disputed subj matter in the action – whether adv & sol has direct pecuniary interest – Meaning of “personal relationship” & “directly pecuniarily interested”.

RS Muthiah v Pembinaan Fiba Sdn Bhd [2004] 2 CLJ 917 – co. secretary of Df acting as sol for Df – whether sol pecuniarily interested in outcome of matter before court – whether r. 27 LPPER would debar sol from appearing for Df co. – meaning of pecuniary interest.

Maris Housing Sdn Bhd & Anor v Lee Seng Wai [2004] 1 CLJ 654 – Df acting as counsel for co-Df - whether sufficient to show Df “pecuniarily interested” in outcome of suit brought by the Pf – whether to establish “direct pecuniarily interested”, or only “indirectly pecuniarily interested”.

R. 28 – Adv & sol not to appear in a case where he is a witness. Sykt Pengangkutan Sakti Sdn Bhd v Tan Joo Khing

t/a Bengkel Sen Tak [1997] 5 MLJ 705 – Df’s counsel raised objection against Pf’s counsel, the legal firm & legal assistants from acting/representing the Pf in open ct or in chambers – whether P’s counsel will jeopardise his client’s interest by continuing to act for Pf when it becomes apparent that he will be called as a witnessby opposing party – LPPER, rr. 3,4,5,27 & 28(a).

Zakiah Abu mansor v Samsuri Welch Abdullah [1998] 5 CLJ 816 – affidavit by sol – whether contrary to r 28 LPPER.

Hong Kong Bank Msia Bhd v Mohammed Noor Tamliho [2002] 3 CLJ 139 – conflict of interest & duty – Pf’s counsel attested Pf’s & Df’s signature in relevant charge documents – whether contrary to r 28(a) LPPER. Ct: Df would not challenge the validity of the charge document – no possibility to call the sol as witness.

Abdul Halim bin Abdul Hanan & Ors v Pengarah Penjara Taiping & Ors [1996] 4 MLJ 54

Attire – r 30 Adv & sol appearing as party or witness not to wear

robes.

R. 32 – Accountant’s Report Yip Shou Shan v Majlis Peguam [1994] 3 CLJ 150 –

Accountant’s Report of A’s previous firm showing discrepancies – whether BC can insist on a clean Accountant’s Report.

R 35 – Duty of confidentiality RS Muthiah – Df’s present sol having previously

acted for Pf – access to documents & confidential info pertaining to Pf – conflict of interest.

R. 51 – not to do or cause touting Seeking business by approaching potential

customers Balakrishnan Devaraj v Patwant Singh Niranjan Singh

& Anor [2005] 4 CLJ 210 – whether touting agreemnt between tout & sol illegal & against public policy – whether that arrangement could institute a valid contract – whether tout’s claims for commissions sustainable.

Rhina Bar v Koid Hong Keat [1992] 3 CLJ 1465

R 54 – change of solicitors Jaya Harta Realty Sdn Bhd v Koperasi Kemajuan Pekerjaan Bhd.

[2000] 8 CLJ 246 – duty of former sol & new sol to inform hearing date to garnishee. It is unethical & unlawful for the new sol to proceed with the hearing in the absence of garnishee without first having ascertained with the former sol whether or not the garnishee has been informed of the hearing date.

R 56 – obtaining judgment by default RHB Finance Bhd v CN Corporate Network (M) Sdn Bhd [2000] 5

MLJ 686 – failure to comply with r 56, whether judgment in default obtained can be set aside – oral notice is insufficient as r 56 requires written notice.

Kewangan Bersatu Bhd v Yap Ah Yit & Ors [1999] 1 CLJ 429 – failure to give 7 days’ notice

Acting for more than one party

Adv & sol cannot act for more than one party. Against rule 3,4,5.

Aw Sing Moey & Ors v Melombong & Perumahan Sdn Bhd [1998] 7 MLJ 239 – conflict of interest – acting for both parties – disqualify – rr. 3, 4, 5.

Acting for more than one party

S 84 LPA 1976 – adv & sol acting for developer not to act for purchaser in housing devt. Sinwara Sdn Bhd v Maris Housing Sdn Bhd & Ors

[2003] 6 MLJ 771 – counsel having an interest in the litigation – whether counsel should be barred from representing client – rr 3,4,5, 27.

Che Ahmad Haji Che Daud v DCB Bank [2001] 5 CLJ 333 – r 5(a)

Kayla Beverly Hills (M) Sdn Bhd v Quantum Far East Ltd [2003] 4 CLJ 587 – conflict of interest & duty – counsel for 3rd party acting for Pfs in another related suit – whether counsel should be disqualified from representing 3rd party – rr. 5(a) & (b) (i).

Gibb & Co v MBSB [1982] 1 MLJ 271