Duty to Client (1)
You are are acting acting for compan company y AB AB for some some trans transac action tion.. Yo You did a very very good good job job and company CD noticed your performance. CD then ased you to act for them against AB. AB. !ill you do it for CD"
The professional lawyer’s duty to his client arises in contract and tort as well as from his position as a fiduciary to his client. [pg3] The client takes us into their confidence and entrust us with the task of doing our best to protect, preserve and defend their rights and interests. They They also also entr entrus ustt us with with thei theirr moni monies es,, secu securi rity ty docu docume ment nts s and and othe otherr conf confid iden enti tial al information. [pg1!] "n general, #conflict of interest$ occurs if the lawyer’s personal interests, another client’s interests, or former client’s interests conflict with his interests. %ince the lawyer’s duty to the client is e&tremely strict and demanding, he cannot generally represent ' clients that have adversar adversarial ial interests, interests, unless unless the clients can agree agree to or waive waive their lawyers’ lawyers’ conflict conflict of interest situation. [pg '!'] "n the current situation, technically " can act for () if it is all together another matter distinctive from what " have been acting from company *+ as there is no true conflict of interest. hat is it is merely a commercial conflict of interest, where " would bear the risk of losing work from company *+. * #commercial #commercial conflict of interest$ belies the fiduciary fiduciary obligation that a lawyer bears to act for any client no matter how unpopular the cause. "t is -ust plain unhealthy for any professional to have to lose his ability to act independently and fearlessly. awyers are made to choose between the economic viability of electing to serve one client over another. [pg1!3] "f lawy lawyers ers do not defend defend the integrit integrity y of their their profes professio sion n and and their their right right to act act witho without ut commercial interference from their clients, the time will come when the entire profession becomes subservient subservient to the market place. [pg1!3] /nder #ule $ of %egal &rofession (&ractice and 'tiuette) #ules 1*+, 1*+, an *dvocate and %olicitor may accept any brief in the (ourts in which he professes to practice at a proper professional fee dependent dependent on the length length and difficulty difficulty of the case. 0rovided that special special circumstances may -ustify his refusal, at his discretion, to accept a particular brief. [pg13] 2ence, it is -ustified for me to act for company () if the proper professional fee is agreed by the parties and there is no real conflict of interest.
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!hat !hat is &rof &rofes essi sion onal al ,nde ,ndemn mnit ity y ,ns ,nsur uran ance ce" "
0rofessio 0rofessional nal "ndemnit "ndemnity y "nsuranc "nsurance e is an insurance insurance scheme to provide provide indemnity indemnity against prof profes essi sion onal al liab liabil ility ity for for all all advo advoca cate tes s and and soli solici cito tors rs.. -*+A -*+A %&A %&A 1* 1* introduc introduces es a compulsory professional indemnity insurance for all law firms. "t empowers the +ar (ouncil to make rules on professional indemnity insurance. /nder this scheme, the +ar (ouncil would take out a master insurance policy to provide indemnity against professional liability for all advocates and solicitors no matter how adverse their claims history. The scheme provides cover from minimum mandatory imit of "ndemnity of 4'56,666.66 for 17lawyer
practice, increasing by 456,666.66 for every additional lawyer up to a ma&imum of 4',666,666.66. "n this mandatory scheme, lawyers are not stand7alone risks but rather viewed as a block. [pg361]
Duty /o and ,n Court (1)
!hat are the types of contempt and 0hen does it apply"
There are ' types of contempt generally, namely, civil contempt and criminal contempt. (ivil contempt involves or assists in the breach of an order of (ourt while criminal contempt involves an interference with the administration of -ustice. [pg'857'8!] There are 5 situations when contempt -urisdiction in the courts applies9 :i;
Breach of an order where a person breaches an order of the (ourt, or he aids or abets another to breach an order of the (ourt. Seaward v Paterson [1897] Ch 545 and Acrow (Automation) v Re Chain!e"t [1971] # A"" $R 1175 "t can arise where there is a breach of an implied undertaking to the (ourt. "n %arman v Secretar& o' State 'or the %ome eartment [198#] AC *8+ , the %olicitor was found guilty of having permitted a -ournalist access to a document disclosed in the process of discovery to enable him to write an article. "n Cheah Chen, %oe v PP [198-] 1 ./0 *99, the (ounsel has been found guilty of suppressing a document that should have been disclosed in discovery.
:ii;
Contempt in the face of the Court (ourt can act of its own motion when all the facts leading to the contempt are all within the knowledge of the (ourt .e eown v the in, [1971] 1- /R . "nsulting and contumacious behavior in (ourt or use of outrageous and provocative language may constitute contempt Re umaraendran2 An Advocate and So"icitor [1975] * ./0 45 and PP v Seera"an [1985] * ./0 #+ .
:iii;
:iv;
-candalising the Court "t occurred by speech and writing that is intended to scandali>e the (ourt itself, or by abusing parties to actions or by pre-udicing someone in favour of or against a party. *ny act done or writing published which is calculated to bring a (ourt or a =udge into contempt or to lower his authority or to interfere with due course or -ustice of the lawful process or the (ourt. Re am!oodriad A:P 197+
:v;
-ubjudice *n article written e&pressing an opinion on the merits of an issue that is before the (ourt and which carries a real risk that the fair trial of the action may be pre-udiced can also amounted to contempt. A; v
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-ubmission 2 the la0yer in charge of file needs to rush to the hospital because his 0ife is giving birth.
"f my ord pleases, "’m 4s =oanne from 4essrs ?ain @ (o appearing for the 0laintiff and my learned friend 4r )avid appearing for the )efendant. 4y ord, today’s case is fi&ed for hearing. 4y ord, "’m regret to inform this 2onourable (ourt that the lawyer in charge of the file, 4r Ag is unable to attend (ourt today as he needs to rush to the hospital because his wife is giving birth. "n this circumstance, " have been instructed to apply for an ad-ournment on the ground of unavoidable emergency. 4y ord, " made to understand that my learned friend is ready to proceed with the case and would likely to ob-ect for my application. 4y ord, "’m deeply regret for not being able to proceed today, but 4y ord, " have to say that this incident is unintentional from our behalf and if 4y ord agree for a short ad-ournment would be suffice for us. " humbly pray for this ad-ournment and " will leave all to the courtesy of this 2onourable (ourt.
-olicitor3s Account and -olicitor3s 4ndertaing (1)
!hy does Client3s Account need to be audited" Discuss.
*s lawyers are sub-ect to fiduciary duties towards (lients, and the nature of scope where awyers would be dealing with (lient’s money, there is plenty of room for solicitors to abuse this trust and use client’s money for his own gain. * client’s account is sub-ect to a yearly audit and an accountant’s report must be issued certifying that the account has been properly conducted before the 0artners of the firm will be entitled to renew their practicing certificates. Bollowing -* %&A 1*, the accountant’s report must relate to the previous 1' months of the practice where a breach of -* %&A 1* would render the solicitor liable to disciplinary proceedings under -*(+) %&A 1*. [pg'13]
#ole of a %a0yer 5 Bar Council (1)
A la0yer3s primary responsibility is to mae a living for himself. Discuss.
The practice of law needs to remain a noble, gracious and even elegant pursuit in spite the temptation of the materialistic and avaricious age in which we live. "t has in recent times simply becomes a means of earning a living or advancing personal ambition. awyers are accused of 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. (ourts are regularly manipulated by misrepresenting the law and tactics abound for securing delays in -ustice in the hope that memories will fade or evidence will be lost. Aumerous unmeritorious procedural ob-ections are taken to sap the will
to continue with litigation out of the opposite side. 4any lawyers are greedy or e&hibit low standards of responsibility and accountability. This results in instructions being accepted even when lawyers are ill eCuipped to handle them or cases are poorly handled. awyers need to be known and remembered more for the depth of their knowledge and their dedication to the law, and for their honesty, integrity and the Cuality of their work rather than for the magnitude of their wealth, popularity or fame. awyers, in history, regularly spoken out for what is right and proper. [pg] *n advocate and solicitor is sub-ect to a complicated set of duties. 2e owes D separate duties to his client, court, opponent and public. Aone 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. [pg'] The legal profession is also governed by a complicated set of rules, namely, %egal &rofession Act 1*6 %egal &rofession (&ractice 5 'tiuette) #ules 1*+6 -olicitors Account #ules 176 and Bar Council #ulings 1*. *lthough it is important for an advocate and solicitor to make a living for him, it should be balanced with the competing demands that he must face in this profession. ($)
A layman does not understand the role of an Advocate 5 -olicitor in Court (Civil and Criminal 8atter). Discuss the role of a la0yer based on the above statement.
awyers are being regarded as officers of the court. "t is our function to assist the (ourt in coming to a true and correct decision. The (ourt must accept the fact that it is counsel’s duty to act fearlessly and with all the force and vigour 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. (ounsel’s conduct must at all times accord with that decorum and dignity which is absolutely essential to the good administration of -ustice.[pg1D715] awyers are e&pected to respect and uphold the law of the land. Aaturally, the law can often be sub-ect to varying interpretations. That is why =udge is to determine the better view based on the arguments of counsels. 2owever, once a decision is made, it then becomes precedent and if the precedent is wrong, it can end up misleading another lawyer and even perhaps a whole generation of lawyers. 2ence, arguments need to be presented fairly and accurately.
awyers in protecting the rights of their clients and in prompting the cause of -ustice, 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. awyers shall always loyally respect the interests of their clients. [pg1!]
#ule 1 of the %egal &rofession (&ractice and 'tiuette) #ules 1*+ 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 -ustice and dignity of the profession without regard to any unpleasant conseCuences either to himself or to any other person. [pg1] #ule of the %egal &rofession (&ractice and 'tiuette) #ules 1*+ 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. [pg11]
