Part A Role of the Bar or Lawyer 1.
Role of the Legal Profession towards public duties and responsibilities.
Page 7 – 8 Civilised and ordered society means that the laws must be applied to everyone without exception. That means applying it to all without favour. The law must also be applied without worry about the adverse consequences that may follow from applying the law. That means that the law must be applied without fear. Hence the motto of the Malaysian Bar, “without fear or favour” – words that come from Section 42(1)(a) of the Legal Profession Act. It has always been lawyers more than any other group of professional people who have in history regularly spoken out for what is right and proper; whenever the rising tide of societal evolution has turned away from the basic principles of fairness and justice that is the hallmark of our humanity; whenever the primal beast in society has tended to overcome the spirit of good within the human spirit, lawyers have always risen to stem the tide. Examples includes the “Walk for Justice” in 2007 on irregularities in the appointment in our Judiciary system, organising a forum to discuss and propose solutions for the very practical problems of jurisdictional conflicts between the Civil and Syariah Courts that devastate families, provides legal aid service to the poor, and etc. Sir Own Dixon, on his swearing in as Chief Justice of the High Court of Australia, noted the important role of lawyers in the administration of justice and said: “The Bar has traditionally been, over the centuries, one of the four original learned professions. It occupied that position in tradition because it formed part of the use and the service of the Crown in administration of justice. But because it is the duty of the barrister to stand between the subject and the Crown, and between the rich and the poor, the powerful and the weak, it is necessary that, while the Bar occupies an essential part in the administration of justice, the barrister should be completely independent and work entirely as an individual, drawing on … resources of learning, ability and intelligence, and owing allegiance to none…” No realm of human activity is free from the laws influence and lawyers are the only one trained to find, understand, know and interpret the law. This is a huge responsibility, or a burden imposed on the Bar since they are meant to know the law so well, it falls on them to fight to see that law is observed by all who are subject to it (rule of law). The Bar should stand up to fight for democracy, justice, protection of judiciary and the constitution as well as to protect the basic human rights. Hence, lawyers have a great responsibility to society and that responsibility is something the Bar has always taken very seriously.
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2.
“The Bar should only concentrate things that deal with their profession and not being involved in politics”
Page 4, 7 – 8 For much of its history, the Malaysian Bar has been criticised (and sometimes vilified) when attempting to give meaning to that ideal of lawyers upholding the cause of justice in society. Criticising the Bar's “Walk for Justice” in 2007, one Minister suggested that the Bar Council register as an opposition party. Others accused it of insensitivity and arrogance for organising a forum to discuss and propose solutions for the very practical problems of jurisdictional conflicts between the Civil and Syariah Courts that devastate families. For this, there are calls that the Bar should only concentrate things that deal with their profession and not being involved in politics. Nevertheless, the duties of lawyers include not merely advising and acting for their clients, but also upholding human rights and fundamental freedoms. The Malaysia Bar is a statutory body and as members of the Bar, advocates and solicitors are expected to observe, assist in and carry out the duties that have been imposed on the Bar by Parliament. The Federal Constitution has conferred a power on the Malaysian Bar to administer the legal profession in Malaysia. Section 42 of the Legal Profession Acts 1976 states the object and powers of Malaysian Bar. The Bar has its own motto, ‘without fear or favour’, and its derived from Section 42(1)(a) of the Legal Profession Act. Applying the motto ‘without fear or favour’ to the role of lawyer as stated in Section 42 of the Legal Profession Act, it has always been lawyers more than any other group of professional people who have in history regularly spoken out for what is right and proper; whenever the rising tide of societal evolution has turned away from the basic principles of fairness and justice that is the hallmark of our humanity; whenever the primal beast in society has tended to overcome the spirit of good within the human spirit, lawyers have always risen to stem the tide. No realm of human activity is free from the laws influence and lawyers are the only one trained to find, understand, know and interpret the law. This is a huge responsibility, or a burden imposed on the Bar since they are meant to know the law so well, it falls on them to fight to see that law is observed by all who are subject to it. The Bar should stand up to fight for democracy, justice, protection of judiciary and the constitution as well as to protect the basic human rights. The Bar should also should stand up bravely and comment against abuse of power and encroachment into the constitutional rights and liberties of Malaysian. At the very least, no one can accuse the Malaysian Bar of failing to take a stand on issues that are of concern to the public, even if they are controversial.
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3.
A lawyer’s primary responsibility is to make a living for himself.
Page 2, 7 It has in recent times, lawyers contrive to win cases at all costs, fees are often charged on a contingency and negotiations are conducted with a view of trapping the opposite party into a position as disadvantageous as possible. The court are regularly manipulated by misrepresenting the law and tactics abound for securing delays in justice in the hope that memories will fade or evidence will be lost. Numerous often unmeritorious procedural objections are taken to sap the will to continue with litigation out of the opposite side. Many lawyers are greedy or exhibit low standards of responsibility and accountability. This result in instructions being accepted even when lawyers are ill equipped to handle them or cases are poorly handled. The practice of law needs to remain a noble, gracious and even elegant pursuit in spite the temptations of the materialistic and avaricious age in which we live. The legal profession, like the medical profession was once described as a calling. Lawyers need to be known and remembered more for the depth of their knowledge and their dedication to the law, and also for their honesty, integrity and their quality of their work rather than for the magnitude of their wealth, popularity or fame. Besides that, professional lawyers are subject to a complicated set of duties. An advocate and solicitor, whether he is engaged in corporate, conveyancing or litigation work owes 4 separate duties to:(a) Client; (b) Court; (c) Opponent; and (d) Public. None of these duties can be said to carry greater prominence than the other and so each duty of the professional lawyer must be constantly balanced against the others. Furthermore, professional lawyers are subject to a complicated set of rules, inter alia: (a) Legal Profession Act 1976; (b) Legal Profession (Practice and Etiquette) Rule 1978; (c) Solicitors Account Rules; (d) Bar Council Rulings 1997; and etc. Although it is important for an advocate and solicitor to make a living for himself, it should be balance the competing demands that he must face in this profession.
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4.
Role of an Advocate & Solicitor in court (civil and criminal matters).
Page 174 – 175 As officer of the court it is our function to assist the court in coming to a true and correct decision. The court must accept the fact that it is counsel’s duty to act fearlessly and with all the force and viguour at their disposal in the interest of their client’s cause but wholly within the bounds of propriety and courtesy in the discharge of their duties. Counsel’s conduct must at all times accord with that decorum and dignity which is absolutely essential to the good administration of justice. Lawyers are expected to respect and uphold the law of the land. Naturally law can often be subject to varying interpretations. That is why we have a judge to determine the better view based on the arguments of counsel. However, once a decision is made, it then becomes a precedent and if the precedent is wrong, it can end up misleading another lawyers and even perhaps a whole generation of lawyers. Hence argument needs to be presented fairly and accurately. If not, there is a danger that Judges may make mistakes and these mistakes will in the end be perpetuated albeit innocently by other lawyers and judges. This will ultimately affect justice itself and public morality because an uncertain and inconsistent application of the law only benefits those who are dishonest. For as long as the law is wrong or unfair, it will be taken advantage of by the unscrupulous. Page 19 8th United Nations Congress on the Prevention of Crime and the Treatment of Offender Lawyers in protecting the rights of their clients and in prompting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognised by national and international law and shall at all times act freely and diligently in accordance with the law and recognised standards and ethics of the legal profession. Lawyers shall always loyally respect the interests of their clients. Page 177 Rule 16 of the Legal Profession (Practice and Etiquette) Rules 1978 states that an advocate and solicitor shall while acting with all due courtesy to the tribunal before which he is appearing, fearlessly uphold the interest of his client, the interest of justice and dignity of the profession without regard to any unpleasant consequences either to himself or to any other person. Page 181 Rule 9 of the Legal Profession (Practice and Etiquette) Rules 1978 states that an advocate and solicitor who undertakes the defence of a person in any criminal matters shall by all fair and honourable means present every defence that the law permits. This section also provides that an advocate and solicitor shall undertake the defence of a person accused of an offence regardless of his personal opinion as to the guilt or otherwise of the accused. 4
Part B Professional Ethics 1. Things to consider before taking a brief / approach by other advocate to assist
Page 173, 180 – 181 Rule 3(a) of the Legal Profession (Practice and Etiquette) Rules 1978 states that an advocate and solicitor shall not accept a brief if he is or would be embarrassed. Rule 4 of the Legal Profession (Practice and Etiquette) Rules 1978 states that no advocate and solicitor shall accept a brief in a case where he knows or has reason to believe that his own professional conduct is likely to be impugned. Rule 5(a) of the Legal Profession (Practice and Etiquette) Rules 1978 states that no advocate and solicitor shall accept a brief if such acceptance renders or would render it difficult for him to maintain his professional independence or is incompatible with the best interest of the administration of justice. Ruling [H] 12 of the Bar Council Rulings provides that whilst the concept of mobility of labour is recognised, it is unprofessional conduct for an advocate and solicitor or his firm to solicit or poach staff of another advocate and solicitor or firm by means of any inducement or promise of better remuneration or better terms and conditions of employment and without the prior written consent of other advocate and solicitor or firm.
2.
Share premise with inappropriate business / partner in those business
Page 185 – 186 The practice of law needs to remain a noble, gracious and even elegant pursuit in spite the temptations of the materialistic and avaricious age in which we live. The whole profession of law demands the loyalty and respect. The good name and reputation of the profession need to be maintained and enhanced. Rule 44(a) of the Legal Profession (Practice and Etiquette) Rules 1978 states that lawyers shall not carry on any trade which is unsuitable for the lawyers to engage in or be an active partner or a salaried officer in connection therewith. The involvement of
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lawyers in certain kind of business may bring the legal profession into disrepute as stated in Section 94(3)(o) of the Legal Profession Act 1976 and such involvement may amount to professional misconduct. Rule 7.03 of the Rules and Ruling of the Bar states that when a lawyer shares an office with another person, the premises must be partitioned with no connection door between 2 premises. Hence, [in this case that the lawyer is sharing an office without partition and separation entrance], he has breached the Rule 7.03. Besides that, Rule 12.01(1) of the Bar Council Ruling Council states that an advocate and solicitor who is a sole proprietor or partner of a law firm may engage on a part time basis in a business or trade that is in the opinion of the Bar Council not incompatible with the dignity of the legal profession. Rule 44(b) of the Legal Profession (Practice and Etiquette) Rules 1978 states that an advocate and solicitor shall not be a full-time salaried employee of any person, firm (other than advocate and solicitor or firm of advocates and solicitors) or corporations so long as he continues to practice and shall on taking up any such employment, intimate the fact to the Bar Council and take steps to cease to practise as an advocate and solicitor so long as he continues in such employment.
3.
Confidential duty (not to divulge client’s information)
Page 179, 182 Clients come to us when they have legal problems which require our professional assistance and in other situations clients retain us when they need us to perform some legal service. They take us into their confidence and entrust us with the task of doing our best to protect, preserve and defence their rights and interests. They also entrust us with confidential information. Rule 35(b) of the Legal Profession (Practice and Etiquette) Rules 1978 states that an advocate and solicitor shall preserve his client’s confidence and this duty outlasts his employment. It is the duty of the counsel not to disclose information relating to his clients. He is entrusted by his client with confidential information that cannot be disclosed to anyone. Solicitors shall “live and dies” with the information unless the client give permission or instruction to disclosed such information.
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4.
Act on behalf of relatives / close friend
Rule 3(a) of the Legal Profession (Practice and Etiquette) Rules 1978 states that an advocate and solicitor shall not accept a brief if he is or would be embarrassed. An embarrassment arises, according to Rule 3(b)(ii), where there is some personal relationship between him and a party or witness in the proceedings. Rule 4 of the Legal Profession (Practice and Etiquette) Rules 1978 states that no advocate and solicitor shall accept a brief in a case where he knows or has reason to believe that his own professional conduct is likely to be impugned. Rule 5(a) of the Legal Profession (Practice and Etiquette) Rules 1978 states that no advocate and solicitor shall accept a brief if such acceptance renders or would render it difficult for him to maintain his professional independence or is incompatible with the best interest of the administration of justice. Rule 32 of the Legal Profession (Practice and Etiquette) Rules 1978 states the feeling existing between clients shall not be allowed to influence counsel in their conduct and demeanour towards each other or towards parties and their witnesses in the case.
5.
Preliminary objection
Rule 18 of the Legal Profession (Practice and Etiquette) Rules 1978 states the conduct of an advocate and solicitor before the court and in relation to other advocates and solicitors shall be characterised by candour, courtesy and fairness. Rule 31 of the Legal Profession (Practice and Etiquette) Rules 1978 states that every advocate and solicitor shall at all time uphold the dignity and high standing of his profession. Ruling [H] 19 of the Bar Council Rulings 1997 provides on the notice of preliminary objections. Ruling [H] 19(a) provides that an advocate and solicitor shall give written notice, whether by letter of facsimile message or otherwise, to the advocates and solicitors representing all the other parties in the litigation, of his intention to raise a
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preliminary objection during the hearing of any matter before any court, tribunal or other body authorised to conduct hearings. Ruling [H] 19(b) of the Bar Council Rulings 1997 provides that written notice shall be delivered to the other advocates and solicitors within a reasonable period before the hearing but not later than 48 hours before the hearing to enable the said advocates and solicitor to properly prepare themselves and to secure instructions from their client with regard to the prepared preliminary objection. Such written notice shall set out in sufficient detail: i. The nature of the proposed preliminary objection; ii. A list of authorities that counsel moving the court for the preliminary objection intends to rely; and iii. The proposed relief that counsel moving the court for the preliminary objection will seek before the court in the event that the objection is upheld by the court. Only in exceptional circumstances may counsel raise a preliminary objection during the hearing of any matter before a court, a tribunal or other body authorised to conduct the hearings without giving written notice as described in paragraph (i) to (iii) above. In such event, counsel representing the other parties in the litigation has an automatic right to seek an adjournment of the preliminary objection. It should be noted that failure to adhere to Bar Council ruling may amount to professional misconduct as Section 94 (3)(k) of the Legal Profession Act provides that “misconduct” means conduct or omission to act in Malaysia or elsewhere by an advocate and solicitor in a professional capacity or otherwise which amounts to grave impropriety and includes the breach of any provision of this Act or of any rules made thereunder or any direction or ruling of the Bar Council
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Part C Solicitor Account and Undertaking 1.
Difference between “Client Account” and “Office Account”
Page 213 – 214, 221, 250 Solicitors will usually be holding large sums of money on behalf of clients they will have at least two bank accounts, one dealing with the firm’s own money, called OFFICE ACCOUNT and the other dealing with clients’ money called CLIENT ACCOUNT. A clients’ account must be open when the solicitor receives money from the client or money for and behalf of a client (client money). Client’s money is trust money held under client’s account in which solicitor is a solicitor trustee as provided under Rule 4 of the Solicitors Account Rules 1990. Rule 2 prescribed that trust money is money received and held on account of a person for whom he solicitor is acting in relation to holding that money as solicitor, or in relation to his practice as solicitor or as agent, bailee, stakeholder or in any other capacity. When a solicitor receives money from a client, and the money does not belong to the solicitor, it must be lodged in a client account without delay, and this normally means on the same day.
2.
Why does Client’s Account need to be audited?
Page 213 The main reason client’s account need to be audited is because solicitors are in a position of trust (fiduciary duties), after all there are not many individuals who would give several thousand ringgits to a complete stranger for a few months, and there is plenty of scope for solicitors to abuse this trust and use client money for its own gain. Arguably, the primary function auditing the client’s account is to stop this happening and ensure that all solicitors deal with client money correctly. Other reasons include the renewal of solicitors’ practising certificates. Client account is subject to a yearly audit and an accountant’s report must be issued certifying that the account has been properly conducted before the partners of the firm will be entitled to renew their practising certificates. According to Section 79 of the LPA, the accountant’s report must relate to the previous twelve months of the practice. A breach of Section 79 renders the solicitor liable to disciplinary proceedings under Section 79(8) of the LPA.
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3.
Use of client’s money
A solicitor cannot borrow money from the clients account to meet a temporary shortage in his office account or to make payment for another client. If the solicitor does so, it may amount to a breach of common law duty of care and also a fiduciary duty. This is because once a lawyer accepts a brief from his clients, he will have a contractual duty and a common law duty of care and also a fiduciary duty. Hence, if a lawyer has used his client’s money which is under his safekeeping as a stakeholder, he has committed a breach of trust towards his client. Not only that, he also breached an undertaking which is also amount to professional misconduct. Section 94(3)(c) of the Legal profession Act states that misconduct includes dishonest conduct in the discharge of his duties, under (k) breach of any provision of this act or any rules, under (n), misconduct includes gross disregard of his client’s interest and under (o) any conduct which is calculate to bring legal profession into disrepute. The aggrieved client may claim damages by summary procedure for enforcement of undertakings by the court or institute a civil action in contract or tort. The client may also make a report to the Bar Council. According to Section 88A(c) of the Legal Profession Act 1976, the Bar Council may apply to the Chief Justice for an order suspending that lawyer from practice until further notice and the bar will as soon as possible refer to the disciplinary board a compliant against the lawyer pursuant to Sections 99 and 100 of the Legal Profession Act 1976.
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4.
Can you take the money which was deposited by the purchaser to set off your legal fee?
At page 220, 222 A solicitor may set off fees due to him from monies standing to the credit of the client account but only if have issued a bill and the fees are legally due to him, and the funds held in client account are not subject to an express trust, ie they ha been specifically allocated for stamp duty, payment to the other party, security for costs or judgment etc. This was affirmed by the case of Vije & Co v The Co-operative Central Bank Ltd [1991] 2 CLJ 1403, and it was decided that Rule 15 of the Solicitors Account Rules allow the solicitor to set-off the amount owed against amount held by drawing on the account.
5.
Lawyer D gave Lawyer C a cheque and a letter stating that C will undertake not to release money until the client has delivered some documents to D. C replied that he did not agree to the terms of the letter of undertaking but nevertheless releases the cheque. [C’s clerk mistakenly released the cheque to the client.] Is C bound by the undertaking?
Page 227 - 228 For this situation, reference can be made to the case of Caldwell v Sumpters (a firm) and another [1972] 1 All ER 567. It was decided in this case that if the condition or undertaking imposed is not acceptable to a solicitor, he cannot accept the payment or make use of the document. That solicitor cannot remain silent and he must forthwith return the payment or document, or at least notify the other party and make available their return or collection. Otherwise, that solicitor will be deemed to have accepted (by conduct) the condition or undertaking. It should be noted also that it would not help even if the solicitor writes to reject the condition or undertaking but nevertheless utilises the payment or document. On the issue of whether C is bound by the undertaking, reference can be made to the case of United Bank of Kuwait Ltd v Hammoud and Other [1988] 3 All 418 and Tunku Ismail bin Tunku Md Jewa & Anor v Tetuan Hisahm, Sobri & Kadir [1989] 2 MLJ 489, that if an undertaking is of a nature that may be given in respect of an underlying transaction in which the solicitor may be acting, then it is considered to be given in the ordinary course of business. Whether something is in the ordinary course of business, or whether there was an underlying transaction, must be looked at from the point of view of the third party beneficiary of the undertaking.
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6.
Methods that can be taken to enforce the undertaking of a solicitor and what are the considerations that should be taken in order to decide the appropriate method?
Page 225 – 230 The following are the methods that can be taken to enforce the undertaking of a solicitor: (a) Summary enforcement by the court or compensation in lieu; (b) Action founded on contract or tort; (c) Disciplinary action. For summary procedure for enforcement of undertakings, it must be a clear case in order to succeed (Geoffrey Silver & Drake (suing as a firm) v Thomas Anthony Baines (trading as Wetherfield; Baines & Baines) a firm [1971] 1 All ER 473). What is meant by a clear case is explained in the case of John Fox (a firm) v Bannister King & Rigbeys (a firm) [1987] 1 All ER 737, and the test is akin to that which applies to a summary judgment application. It should be noted also what not all types of undertaking are subject to summary procedure. In order for an undertaking to be enforced summarily, it: (a) Must have been given in his personal capacity as a solicitor: Geoffrey Silver & Drake (suing as a firm) v Thomas Anthony Baines (trading as Wetherfield; Baines & Baines) a firm [1971] 1 All ER 473, Seah Choon Chye v Saraswathy Devi [1971] 1 MLJ 112, Oriental Bank Bhd v Abdul Razak [1986] 1 CLJ 619. (b) Must be an undertaking “personal” to the solicitor or his firm, ie not a mere communication (as an agent of his client) of an undertaking given by the client (note also the curious decision in Syarikat Jengka Sdn Bhd v Tri-Trade Properties (M) Sdn Bhd & Anor [1988] 3 MLJ 163). (c) Must be clear and unequivocal. Court will not read in additional terms (Oriental Bank Bhd v Abdul Razak [1986] 1 CLJ 619, T Damodaran v Choe Kuan Him [1979] 2 MLJ 267). Solicitor to be given benefit of the doubt if any ambiguity exists. (d) If undertaking is subject to any pre-condition, such pre-conditions must be fulfilled before the undertaking can be enforced (Seah Choon Chye v Saraswathy Devi [1971] 1 MLJ 112). Note also the baffling decision in Tai Lee Finance Credit Corporation Sdn Bhd v A Xavier & Co [1996] 4 MLJ 324. Remedies at law for breach of undertaking include: (a) Based on breach of contract (Lee Chee (f) & 15 Ors v Allen & Gledhill [1990] 1 CLJ 782), in which case consideration, and all other elements of contract must be present.
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(b) In tort (Ross v Caunters [1979] ChDiv). Duty of care owed not just to one’s own client, but also to envisaged party and may even include an opposite party in legal proceedings. In addition to the above, in deciding the appropriate method to enforce an undertaking using summary procedure and pursuing civil action, the complainant should also consider the following: (a) Use summary procedure only if the facts are clear (b) If there a deficiency at law (eg lack of consideration) which is not available when invoking court’s inherent jurisdiction over solicitors, then no choice but to use summary procedure (c) Otherwise, civil action may be preferable in Malaysia because possible argument premised on burden of proof in civil action is on balance of probabilities; whereas it is unclear whether the standard required when invoking summary jurisdiction is one of “beyond reasonable doubt” (Geoffrey Silver & Drake (suing as a firm) v Thomas Anthony Baines (trading as Wetherfield; Baines & Baines) a firm [1971] 1 All ER 473) (d) Summary jurisdiction is ultimately a discretionary one. The court may still decline to grant relief even where a case is made out, as did happen in Bentley & another v Gaisford & another [1997] 1 All ER 842. Breach of undertaking also amounts to professional misconduct: Conveyancing Practice Rulings 22(a) and 23 (under the Bar Council Rulings 1997). Such misconduct may be dealt with by the Disciplinary Board under Section 94(3)(b), (k) or (o) of the Legal Profession Act 1976.
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Part D Duty To and In Court – Candour, Decorum and Contempt 1.
Submission for adjournment
Page 257 – 259 If my Lord pleases [Tuan for subordinate court judges and registrars], I am Mr. Jose from Messrs. Alfred & Co appearing for the plaintiff/appellant and my learned friend Mr. Alex appearing for the defendant/respondent. My Lord, today’s case is fixed for [hearing]. My Lord, I have been instructed to inform the court that the learned counsel has ….. In the circumstances I have been instructed to apply for an adjournment on the ground of unavoidable emergency …….. My Lord, I am seeking your indulgence to adjourn this case as the lawyer in charge Mr. Felix, partners of Messrs. Alfred & Co involved in a road accident this morning. His car is broken down and has been send to a workshop [is on medical leave. The proof that Mr. Felix absence could be forwarded to the court if it is so required]. My Lord I made to understand that my learned friend is ready to proceed with the case and would likely to object for my application today. My Lord, I deeply regret for not being able to proceed today, but My Lord, I have to say that this incident is unintentional from our behalf and if My Lord agree for a short adjournment would be suffice for us. Therefore, I humbly pray for this adjournment and I will leave to all to the courtesy of this honourable court.
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2.
Draft a submission to court to appear on how you would explain the situation to the judge why you were late because your car broke down and you cannot attend court. You have asked your opposing counsel to stand down the case for you.
Page 257 – 259 If my Lord pleases [Tuan for subordinate court judges and registrars], I am Mr. Jose from Messrs. Alfred & Co appearing for the plaintiff/appellant and my learned friend Mr. Alex appearing for the defendant/respondent. My Lord, today’s case is fixed for [hearing]. My Lord, the hearing is supposed to be start on 9 am, but due to some unforeseeable circumstances, I am unable to attend court at that moment. My learned friend Mr. XXX, has apply and, with the courtesy of this honourable court, agreed to grant a short adjournment for this hearing. My Lord, my car broke down this morning and has to be send to a workshop. My Lord, I deeply regret for not being able to proceed on that day, but My Lord, I have to say that this incident is unintentional from our behalf. Therefore, I humbly apologise for the adjournment and much obliged of the courtesy of this honourable court.
3.
Authorities that support and oppose an argument or a stand / consequences that might happen from the court due to your bad decision.
Page 174, 190 Lawyers are expected to respect and uphold the law of the land. Hence, argument needs to be presented fairly and accurately. The professional lawyer owes a duty to the court. He cannot attempt to win a case by wilfully concealing authorities that are against him or misleading the judge on the law. Rule 20 of the Legal Profession (Practice and Etiquette) Rules 1978 provides that it is a duty of the counsel to put before the court any relevant binding decision of which he is aware is immediately in point. It does not matter whether it is for or against his contention. The reason is because Solicitor is an officer of the court, and it is the duty of the solicitor to assist the court in reaching the decision. 15
Besides that, the solicitor may succeed but he will likely to lose on appeal. Then the solicitor has done his client an injustice because he will have incurred costs unnecessarily. Rule 22(a) of the Legal Profession (Practice and Etiquette) Rules 1978 provides that where after the conclusion of the evidence and argument and while judgment is reserved, an advocate and solicitor discovers a proposition of law or a decision of law which is directly in point, he shall bring it to the Court’s attention and the advocate and solicitor appearing on the other side shall concur in the proposal even though the proposition is against him. Rule 31 of the Legal Profession (Practice and Etiquette) Rules 1978 provides that an advocate and solicitor shall at all times uphold the dignity and high standing of his profession.
4.
What are the types of contempt and when does it apply?
Page 265 – 268 The purpose of the contempt jurisdiction in the courts is to ensure that the administration of justice is not obstructed or interfered with. There are tow types of contempt generally spoken of, civil contempt and criminal contempt. The former is conduct which involves or assists in the breach of an order of court and the latter is conduct which involves an interference with the administration of justice. There are five situations when the contempt jurisdiction in the courts applies: i. Breach of an order: where a person breaches an order of court, or if he aids or abets another to breach an order of court: Seaward v Patterson [1897] Ch 545 and Acrow (Automation) v Rex Chainbelt [1971] 3 All ER 1175, at 1180. Examples of breach of an order include the breach of an implied undertaking to the court (Harman v Secretary of State for the Home Department [1983] AC 280), and suppressing a document that should have been disclosed in discovery (Cheah Cheng Hoe v Public Prosecutor [1969] 1 MLJ 299). ii.
Contempt in the face of the court: this class of contempt is significant because the court may act of its own motion. Examples of breach of this class of contempt include insulting and contumacious behaviours in court or the use of outrageous and provocative language (In Re Kumaraedran, An Advocate and Solicitor [1975] 2 MLJ 45 and Public Prosecutor v Seeralan [1985] 2 MLJ 30).
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iii.
Obstructing the administration of justice: examples of breach of this class of contempt include the evasion of service of court order (Wee Choo Keong v MBF Holdings Bhd & Anor and another appeal [1995] 3 MLJ 549), disobeyed an order for injunction and disrupt court proceedings by manoeuvring an adjournment (Dr Leela Ratos & Ors v Anthony Ratos s/o Domingos Ratos & Ors [1997] 1 MLJ 704).
iv.
Scandalising the court: contempt may also occur by speech or writing that is intended to scandalise the court itself. Any act done or writing published which is calculated to bring a court or a judge into contempt or to lower his authority or to interfere with due course or justice of the lawful process or the court can amount to a contempt of court (Re Namboodripad AIR 1990).
v.
Sub judice: an article written expressing an opinion on the merits of an issue that is before the court and which carries a real risk that the fair trial of the action may be prejudiced can also amount to contempt (Attorney General v Times Newspaper Ltd [1973] 3 All ER 54).
5.
Can two (2) persons standing at the same time to argue their case in open court?
Page 258 It is a traditional courtesy for courtroom etiquette that whenever a counsel addressing the judge he should stand up. Should the opposing counsel stand to make a submission or objection during the court of a counsel’s address, the latter should sit down. This avoids ‘yielding the floor’, viz the potential problem of counsel arguing between themselves rather than courteously addressing the court. It should not be necessary to interrupt opposing counsel. If the judge directs a question to an advocate who is not presently standing, the other counsel should take the cue and if he is standing. Conversely, a counsel should stand if he is the person to which the question is addressed.
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Part E Duty to Client – Professional Liability, Conflicts, Risk Management 1.
In addition to contractual duty and his common law duty of care, a solicitor also owes his client a fiduciary duty. What is fiduciary duty to the client?
Page 291 – 293 In addition to his contractual duty and his common law duty of care, a solicitor also owes his client a fiduciary duty. This fiduciary duty requires the solicitor neither to abuse nor to take any secret advantage of the special situation that has been created by their relationship. In Reading’s Petition of Right [1949] 2 All ER 68, at page 70, Asquith LJ explained when a fiduciary relationship arises: “A consideration of the authorities suggests that for the present purpose a fiduciary relation, exists (a) whenever the plaintiff entrusts to the defendant property tangible or intangible and relies on the defendant to deal with such property for the benefit of the plaintiff or for the purpose authorised by him and not otherwise (b) whenever the plaintiff entrusts to the defendant a job to be performed, for instance, the negotiation of a contract on his behalf or for is benefit, and relies on the defendant to procure for the plaintiff the best terms available.” Where his personal interests conflicts with that of his client, a fiduciary owes a duty to prefer the interest of his client. This principle is reflected in the lawyer’s duty to act for his client fearlessly and without favour to anyone else. Besides that, the lawyer must act honestly in the discharge of his duty and this means that the client must honestly be told of the merits of his case. A fiduciary is not allowed to make a 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. This means that he cannot profit from the knowledge of his clients business deals and information that come to him whilst he is a fiduciary. Any gain that the fiduciary receives from any source as a result of using his client’s information or property is held on trust for the client and the fiduciary is under a duty to account to the client for the gain.
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2.
Duty to avoid Conflict of Interest and Duty to Account
Page 291 – 293 Generally, lawyers are not allowed to represent you if they have a “conflict of interest”. A “conflict of interest” can occur if the lawyer’s personal interests, another client’s interests, or former client’s interests conflict with your interests. Furthermore, if the lawyer is part of a firm, each of the lawyers in the firm generally must ensure that none of their interests or those of their clients conflicts with your interests. Since the lawyer’s duty to the client is extremely strict and demanding (requiring the lawyer to treat the client’s interest with ‘utmost’ care), the lawyer generally cannot represent two clients that have adversarial interests. If the lawyer represented both clients, one case would eventually hinder the lawyer’s representation of the other. As to the duty to account, a lawyer, owes fiduciary to their client and is not allowed to make a 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. This means that he cannot profit from the knowledge of his clients business deals and information that come to him whilst he is a fiduciary. Any gain that the fiduciary receives from any source as a result of using his client’s information or property is held on trust for the client and the fiduciary is under a duty to account to the client for the gain.
3.
Downplaying the risk / client is a good friend
Page 292 – 293 A lawyer must act honestly in the discharge of his duty. This means that the client must honestly be told of the merits of his case. Rule 25 of the Legal Profession (Practice and Etiquette) Rules 1978 provides that an advocate and solicitor should disclose all information to their client. By virtue of this rule, an advocate and solicitor at the time of his retained should disclose to client all the circumstances of his relations to the party, and any interest in connection with the controversy, which may influence the client in the selection of the counsel. Generally, lawyers are not allowed to represent you if they have a “conflict of interest”. A “conflict of interest” can occur if the lawyer’s personal interests, another client’s interests, or former client’s interests conflict with your interests. Furthermore, if the 19
lawyer is part of a firm, each of the lawyers in the firm generally must ensure that none of their interests or those of their clients conflicts with your interests. Rule 31 of the Legal Profession (Practice and Etiquette) Rules 1978 provides that an advocate and solicitor shall at all times uphold the dignity and high standing of his profession. Rule 32of the Legal Profession (Practice and Etiquette) Rules 1978 provides that the feeling existing between clients shall not be allowed to influence counsel in their conduct and demeanour towards each other or towards parties and their witnesses in the case.
4.
What is Professional Indemnity Insurance?
Page 301 Professional Indemnity Insurance is an insurance scheme to provide indemnity against professional liability for all advocates and solicitors. Section 78A was added into the Legal Profession Act 1976, and this section introduces the compulsory professional indemnity insurance for all law firms, and also empowered the bar Council to make rules on professional indemnity insurance. Under this scheme, the Bar Council would take out a master insurance policy to provide indemnity against professional liability for all advocates and solicitors. Insurance will be provided to all lawyers who are allowed to practice by the Bar Council, no matter how adverse their claims history. The scheme provides cover from minimum mandatory Limit of Indemnity of RM250,000.00 for 1lawyer practice, increasing by RM50,000.00 for every additional lawyer up to a maximum of RM2,000,000.00.
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