Duty to Client

(1)

You are acting for company AB for some transaction. You did a very good job
and company CD noticed your performance. CD then asked you to act for them
against AB. Will you do it for CD?

The professional lawyers 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 also entrust us with their monies, security documents and other confidential
information. [pg179]
In general, conflict of interest occurs if the lawyers personal interests, another clients
interests, or former clients interests conflict with his interests. Since the lawyers duty to the
client is extremely strict and demanding, he cannot generally represent 2 clients that have
adversarial interests, unless the clients can agree to or waive their lawyers conflict of
interest situation. [pg 292]
In the current situation, technically I can act for CD if it is all together another matter
distinctive from what I have been acting from company AB as there is no true conflict of
interest. What is it is merely a commercial conflict of interest, where I would bear the risk of
losing work from company AB.
A commercial conflict of interest belies the fiduciary obligation that a lawyer bears to act for
any client no matter how unpopular the cause. It is just plain unhealthy for any professional
to have to lose his ability to act independently and fearlessly. Lawyers are made to choose
between the economic viability of electing to serve one client over another. [pg193]
If lawyers do not defend the integrity of their profession and their right to act without
commercial interference from their clients, the time will come when the entire profession
becomes subservient to the market place. [pg193]
Under Rule 2 of Legal Profession (Practice and Etiquette) Rules 1978, an Advocate and
Solicitor may accept any brief in the Courts in which he professes to practice at a proper
professional fee dependent on the length and difficulty of the case. Provided that special
circumstances may justify his refusal, at his discretion, to accept a particular brief. [pg183]
Hence, it is justified for me to act for company CD if the proper professional fee is agreed by
the parties and there is no real conflict of interest.

(2)

What is Professional Indemnity Insurance?

Professional Indemnity Insurance is an insurance scheme to provide indemnity against

professional liability for all advocates and solicitors. S78A LPA 1976 introduces a
compulsory professional indemnity insurance for all law firms. It empowers 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 no matter how adverse their claims history. The scheme
provides cover from minimum mandatory Limit of Indemnity of RM250,000.00 for 1-lawyer

practice, increasing by RM50,000.00 for every additional lawyer up to a maximum of

RM2,000,000.00. In this mandatory scheme, lawyers are not stand-alone risks but rather
viewed as a block. [pg301]

Duty To and In Court

(1)

What are the types of contempt and when does it apply?

There are 2 types of contempt generally, namely, civil contempt and criminal contempt. Civil
contempt involves or assists in the breach of an order of Court while criminal contempt
involves an interference with the administration of justice. [pg265-269]
There are 5 situations when contempt jurisdiction in the courts applies:
(i)

Breach of an order where a person breaches an order of the Court, or he aids or

abets another to breach an order of the Court. Seaward v Paterson [1897] Ch 545
and Acrow (Automation) v Rex Chainbelt [1971] 3 All ER 1175 It can arise where
there is a breach of an implied undertaking to the Court. In Harman v Secretary of
State for the Home Department [1983] AC 280, the Solicitor was found guilty of
having permitted a journalist access to a document disclosed in the process of
discovery to enable him to write an article. In Cheah Cheng Hoe v PP [1986] 1 MLJ
299, the Counsel has been found guilty of suppressing a document that should have
been disclosed in discovery.

(ii)

Contempt in the face of the Court Court can act of its own motion when all the
facts leading to the contempt are all within the knowledge of the Court Me Keown v
the King [1971] 16 DLR. Insulting and contumacious behavior in Court or use of
outrageous and provocative language may constitute contempt Re Kumaraendran,
An Advocate and Solicitor [1975] 2 MLJ 45 and PP v Seeralan [1985] 2 MLJ 30.

(iii)

Obstructing the administration of Justice This includes the evasion of service of court
order Wee Choo Keong v MBF Holdings Bhd v Another and another appeal
[1995] 3 MLJ 549, disobey 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 It occurred by speech and writing that is intended to

scandalize the Court itself, or by abusing parties to actions or by prejudicing
someone in favour of or against a party. 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. Re
Namboodripad AIP 1970

(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 amounted to contempt. AG v Times Newspaper Ltd [1973] 3
All ER 54

(2)

Submission the lawyer in charge of file needs to rush to the hospital because
his wife is giving birth.

If my Lord pleases, Im Ms Joanne from Messrs Zain & Co appearing for the Plaintiff and my
learned friend Mr David appearing for the Defendant.
My Lord, todays case is fixed for hearing.
My Lord, Im regret to inform this Honourable Court that the lawyer in charge of the file, Mr
Ng is unable to attend Court today as he needs to rush to the hospital because his wife is
giving birth. In this circumstance, I have been instructed to apply for an adjournment on the
ground of unavoidable emergency.
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. My Lord, Im 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.
I humbly pray for this adjournment and I will leave all to the courtesy of this Honourable
Court.

Solicitors Account and Solicitors Undertaking

(1)

Why does Clients Account need to be audited? Discuss.

As lawyers are subject to fiduciary duties towards Clients, and the nature of scope where
Lawyers would be dealing with Clients money, there is plenty of room for solicitors to abuse
this trust and use clients money for his own gain.
A clients account is subject to a yearly audit and an accountants report must be issued
certifying that the account has been properly conducted before the Partners of the firm will
be entitled to renew their practicing certificates. Following S79 LPA 1976, the accountants
report must relate to the previous 12 months of the practice where a breach of S79 LPA
1976 would render the solicitor liable to disciplinary proceedings under S79(8) LPA 1976.
[pg213]

Role of a Lawyer & Bar Council

(1)

A lawyers primary responsibility is to make 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. It has in recent times
simply becomes a means of earning a living or advancing personal ambition. Lawyers 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. Courts 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 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 results in instructions being accepted
even when lawyers are ill equipped to handle them or cases are poorly handled.
Lawyers 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 quality of their work rather than
for the magnitude of their wealth, popularity or fame. Lawyers, in history, regularly spoken
out for what is right and proper. [pg7]
An advocate and solicitor is subject to a complicated set of duties. He owes 4 separate
duties to his client, court, opponent and 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. [pg2]
The legal profession is also governed by a complicated set of rules, namely, Legal
Profession Act 1976, Legal Profession (Practice & Etiquette) Rules 1978, Solicitors
Account Rules 1990, and Bar Council Rulings 1997.
Although 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.
(2)

A layman does not understand the role of an Advocate & Solicitor in Court
(Civil and Criminal Matter). Discuss the role of a lawyer based on the above
statement.

Lawyers are being regarded as officers 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 counsels duty
to act fearlessly and with all the force and vigour at their disposal in the interest of their
clients cause but wholly within the bounds of propriety and courtesy in the discharge of their
duties. Counsels conduct must at all times accord with that decorum and dignity which is
absolutely essential to the good administration of justice.[pg174-175]
Lawyers are expected to respect and uphold the law of the land. Naturally, the law can often
be subject to varying interpretations. That is why Judge is to determine the better view based
on the arguments of counsels. However, 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. Hence, arguments need to be presented fairly and
accurately. Otherwise 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 the 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. [pg174]
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. [pg19]

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. [pg177]
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.
[pg181]