Defence For Professional Negligence

LIABILITY OF LEGAL PROFESSION IN MALAYSIA; WHETHER THEY HAVE ANY
DEFENCE AGAINST PROFESIONAL NEGLIGENCE
TABLE OF CONTENTS
NO
.
1
PAGE
2
ABSTRACT
2
3
2
INTRODUCTION
THE LIABILITY OF LEGAL PROFESSION AND HOW IT CAN
AFFECT IN THE LEGAL PROFESSION S FIELD
5
9
EFFECTS AND CONSEQUENCES OF NEGLIGENT ADVICE

5
Implementation of principle duty of care by legal practitioner

in Malaysia.
9
10
DEFENSE AGAINST PROFESIONAL NEGLIGENCE

7
CONCLUSION
13
REFERENCES
14
PROFESIONAL PRACTICE AND ETHICS Page 1

Patricia Erma anak Honchin
ABSTRACT
A lawyer is legal representative and advisor of a client who only act when instructed by
the client and providing them advice which will not put the client under distress or undue
influence. Just like other professional profession, lawyer also holds several duties and
liabilities towards their clients in providing legal services. Giving an advice is one of
them. There are differences in the stance of term given to the legal practitioner in
Malaysia and England. There is a special relationship between the lawyers and clients
which gives rise to the duty of care. Such duty of care will be explained through in the
assignment. This assignment also will discuss on the two different of profession in the
field of law as well as any defence that available if such professional negligence arise.
INTRODUCTION
First and foremost, ones must know what legal profession means. In general
meaning, legal profession means that a profession which based on fields regarding on
law. For example, upon the common people understanding, legal profession can safely
been interpreted jobs which known in law such as judges, legal assistant, advocates,
solicitors and other related occupations. The duty of anyone in the legal profession is to
uphold justice and rights of person. It is the same with other law and regulations in other
nations. Again, ones should realize that, different country, in the field of law; there are
differences meaning between the terms of legal professions. In other words, there are
differences between the terms of lawyer, advocates, counsels barrister and solicitors.
The reason that there are different explanation in terms of the legal profession is due to
two different types of profession that been applied in the law fields. These two types of
profession are known as fused profession and split profession. 1 The question would
arise on the differences between both professions. For the fused profession, the words
fused itself indicated something to be combined or fused together. In our situation,
fused here indicated that the profession of solicitor and advocates are fused together
which allowed that person to practicing both profession without being penalized. The
countries who are using this type of profession are Malaysia, United States of America,
Australia and New Zealand.2 Moving on to the second types of profession which is the
1 PPE Presentation slides
2 Ibid

split profession, again the word split clearly indicate that the profession does not fused
to together like the previous one. This kind of profession has been applied and used in
England and Wales. Hence, anyone who want to practice and becoming a solicitor
could become a barrister at the same time. Fail to comply with such rules will resulted
being penalized by the court.
The terms Lawyer is well known by others as a profession that had something to do
with law. However, no one quite sure, what is the real definition of lawyer. According to
Blacks Law Dictionary3, lawyer can be defined as a person who leaned in the law, as
an attorney, counsel or solicitor, a person who has license to practicing in law. From the
statements given, it safely can be deduced that, the profession as a lawyer means that
the person has studied law and earn from his studying, a license to practicing law. In
Malaysia, there are solicitors and advocates. In general knowledge, people thought that
both solicitors and advocate play the same roles, which is representing the client in the
trial. However, it is not as they seem to think as it is. Example, for an advocate, he is the
ones who speak on behalf of another person, especially in a legal context meanwhile for
solicitor, he is the one who they so called traditional lawyer were this kind of lawyer
only deal with any legal matter or also called as advocacy. Here, the concept of the
general rules is that a person who is lacks the knowledge, skill ability or standing to
speak for they hire themselves an advocate to represent them in the courts.
Another term that usually known in the field of law is barrister. This term did not used in
Malaysia as the term only used in practice by the lawyers in England and Wales which
implement the split profession which is opposed to a fused profession. Just like lawyer,
the barrister is also a lawyer that is found in many common law jurisdictions in the
matter related to legal representation. In other words, their function is almost the same
with the functions of advocate in Malaysia. However, in England and Wales, the
Barrister is the person who is really specialized in the courtroom advocacy, drafting
legal pleadings and giving legal opinion. 4 It is to say that, anyone who wants to become
a barrister must at least have five or more years of experience in courtroom advocacy.
In addition to that, there is a rule practice by the barrister which is known cab rank
rule.5 Under this rule, a person who becomes the barrister is obliged to accept
instructions from the client regardless of any personal dislikes of the client or the case.
In relatively speaking, the barrister must take the client case regardless whether he
dislikes the case or the client himself or herself, and attend it as usual in their daily
3 Presentation slides
4 Ibid
5 http://en.wikipedia.org/wiki/Cab-rank_rule(The rule derives its name from the tradition by
which a Hackney carriage driver at the head of a queue of taxicabs is supposed to take the first
passenger requesting a ride.)

practice. It is an obligation that been set up by the Bar of England and Wales, in
paragraph 602 of the Code of Conduct, in order to protect the interest of the clients. 6
The main purpose of the Cab Rank Rule is to prevent any unjustified restrictions on
the clients choice of barrister.
Moving on to the next term which is the solicitor, generally, in both split profession
practiced by England and Wales and fused profession which practiced in Malaysia,
United States of America, Australia and New Zealand, have the same job scope which
is to handle litigation matters which requires them to interact with their client and
arranging any legal document concerns to the parties of the case. However, there is a
significant difference as to the types of legal profession which the country implemented
to. Again, in brief, the fused profession allowed the law practitioner or the lawyer to hold
or practice for two titles, which are the solicitor and advocate. 7 Differently practice in
England and Wales, where they implemented the Split profession, the legal practitioner
will usually allowed to hold one title per person only. Under the Split profession, it is safe
to say that barrister and solicitors are two different set of legal functions in the field of
law.8 Again, we know that the barrister is specialized in the courtroom advocacy
meanwhile the solicitors will handle the litigation matters.
Practices in England and Wales today is that the solicitor is an attorney, where they
have the power to act on behalf of the client in legal purposes especially in the matters
as in signing contracts. Other than that, they also hold the power to conduct litigation by
making an application to the court or writing a letters in litigation to the clients opponent
as the legal representative of his own client and so on. 9 Hence, the barrister is forbid
from encroaching the other job scope by conducting litigation. Fortunately, there is an
amendment is made, where on the 26 th March 201010, the prohibition in the Bars Code
of Conduct which governing on the rules relating on prohibition on the part of
barrister( other than employed barrister) supplying legal service to the public through or
on behalf of any other person will ceased to have effect. Thus, a new rule which allow
barrister to be able conduct litigation and share business premises with non-barrister
6 https://www.barstandardsboard.org.uk/media/1460590/bsb__cab_rank_rule_paper_28_2_13_v6__final_.pdf
7 Slides Presentation
8 Ibid
9 Ibid
10 http://www.lawgazette.co.uk/72005.article (Barristers freed to conduct litigation)

following approval of the Bar standards Boards new handbook by the Legal Service
Board will come into effect on January, 2014.11
Last but not least, the term counsel or a counsellor, if we read it literally is means to give
advice. In our field of law, the advice that would be given by the counsel will particularly
relating to legal matters. In England and Wales, the terms counsels is approximately
synonym for a barrister - at law. The definition of the words barrister of -law I
quoted from the Wikipedia as either a single person who pleads a cause, or
collectively, the body of barristers engaged in a case.12 However, the term of barrister
and counsel does not give the same meaning with each other. The differences between
both terms are subtle where again quoted from the Wikipedia, "Barrister" is a
professional title awarded by one of the four Inns of Court, and is used in a barrister's
private, academic or professional capacity. "Counsel" is used to refer to a barrister who
is instructed on a particular case.13 The four inns of court stated in the previous
statement is referred the Professional Associations for Barrister in England and Wales.
Done in acquainting ourselves with the term used in identifying the legal practitioner in
the field of law, we continue with the functions of having legal profession in the society.
There are four main responsibilities held by the legal profession which they are; doing
civil litigation, conveyancing matters, holding on the administrations of estates and also
have the power to do prosecution and defence in the criminal proceeding. For here, we
can said that the legal practitioner hold the heavy burden to uphold justice of a person
and never to abuse such right given to them. Abusing such right will resulted to
negligence which in the end construed to misconduct of the lawyers. Further
explanation on the liability of the legal profession and the resulted negligence affecting
the legal profession will be explained in the later page.
THE LIABILITY OF LEGAL PROFESSION AND HOW IT CAN AFFECT IN THE

LEGAL PROFESSION S FIELD.
Once more, we come cross with the word legal professions which referred to the legal
practitioner, also known as advocates and solicitors. In Malaysia, rules and regulations
which governs the legal provision is known as The Legal Profession Act 1976. The
Legal Profession Act which have been enacted in the year 1976 with the main
objectives of providing a provision to regulate the conducts of the legal practitioners.
Meanwhile in England, they are governs by the Code of Conduct of Bar of England and
11 Ibid
12 http://en.wikipedia.org/wiki/barrister-at-law
13 http://en.wikipedia.org/wiki/barrister-at-law

Wales. Under the said code, the barrister enjoyed the immunity from any negligence
suit. Such approach has not yet been implemented in Malaysia as for legal practitioner
in Malaysia must possess the duty of care and skills towards their client. This rule was
taken from the test of duty of care towards your neighbour as been laid down in the
case of Donoghue v Stevenson [1932] AC 562.14 It is well known that, a counsel or
legal practitioner, likewise in Malaysia or England, they have obligation towards their
jobs and owes a duty of care towards his client, as any person towards their neighbour.
The phrase duty of care has been define in Oxford dictionary of law 15 as
the legal obligation to take reasonable care to avoid causing damages. There is no
liability in tort for negligence unless the act or omission that causes damage is a breach
of a duty of care owed to the claimant. There is a duty to take care in most situation in
which one can reasonably foresee that ones action may cause physical damage to the
person or property of others. Such duty is owed to those people likely to be affected by
the conduct in question. However, there is no general duty to prevent others persons
from causing damage or to rescue people or property in danger. Besides that, the
existence and scope of duty of care will depend upon all the circumstances of the case
and the relationship of the parties.
From the excerpt taken from the dictionary, we can conclude that the rule of duty of care
can grasp as requirement for a person on how to act towards others and public at large
with watchfulness, attention, caution and prudence that any reasonable person in that
circumstances would have done. However, one should take note that, if the persons
action do not meet this standards of care, then the acts are consider negligent, and any
damages resulting may be claimed in a lawsuit for negligence.
The questions arise would be on how to determine there is liability of the part of the
legal practitioner towards the client. In general rule under the law of tort regarding on
duty of care, there are three important elements that need to satisfy.16 The first element
would be the existence of special relationship between the parties, in example; between
a client and solicitor. The second element that need to taken into account would be that
the party is acting in reliance of the other party. In our case, there must be proving that
show the client acted in reliance of solicitors instruction. Last but not least, the party
(who acted upon the advice given) suffered damages accordingly and the damages
must be foreseeable. If all the three element mentioned above are all satisfy and the
client, who is the plaintiff succeed that the legal practitioner hold liability towards him, he
14 [1932] AC 562
15 Oxford Dictionary of Law, pg 187
16 http://law.wustl.edu/sba/firstyearoutlines/torts/

can sue and claim compensation for the said damages from him. This can be proved in
the case of Saif Ali v Mitchell [1980] AC 198,17 Lord Salmon held that in this case,
the normal rule applied by the laws is that if any one holding himself out as possessing
reasonable competence in his avocation undertakes to advice or to settle a document,
he owes a duty to duty to advise or settle the document with reasonable competence
and care. This duty is owed to anyone he should foresee may suffer loss if the duty is
breached. In addition to that, if on breach of the said duty, it is proven that such person
fails to exercise reasonable competence or care and as a result the person to whom the
duty was owed suffers damage, he liable to compensate that person for that damage he
has suffered.18
Now, we discuss each element thoroughly in order to see how the element can be
proven. Back to the three important element of to be proved in order to constitute a
liability, the first element stated the existence of special relationship between the client
and his solicitor. From the statement mentioned beforehand on Special relationship can
be said to refer on a concept of fiduciary relationship which exists between an
employer and employee, agent and principal or solicitor and client. The word of
fiduciary come from a Latin words which is Fiducia which means trust. In other words,
fiduciary means in a position of trust or confidence 19. We take the example in the case
of Edwards v. Lee [1991] New LJ 1517 20 in order to illustrate the meaning of fiduciary
relationship. The fact of the case is that the first plaintiff, which is Mr Edwards,
advertised for sale of car owned by a company in which he and his wife had an interest.
The only response that they get was a call made by Mr Hawkes, who offered to sell the
car on behalf of Mr. Edwards at an agreed price on the basis that the plaintiff would
retain title to the car. It also been agreed by both parties that, Mr. Hawkes would return
the car back to Mr Edwards if it remained unsold after 28 days.
Mr.Hawkes took the car away. After a while, Mr. Edwards become suspicious about the
arrangement when a potential purchaser, Mr. Folley, rang him to tell him that he had
been offered of the said car by Mr. Hawkes at considerably less than the agreed value.
Then, the plaintiff confronted Mr. Hawkes upon the matters and he suggested that Mr.
Edwards contact the defendant, Mr. Julian Lee, who was his solicitor, for reference and
clarification. During the time of the event happens, Mr.Hawkes was actually on bail for
13 charge of dishonesty relating to the sale of cars which valued at 240,000 for owners
in transaction which were virtually identical to the arrangement between Mr. Edwards
17 [1980] AC 198
18 Ibid
19 Oxford dictionary of law, pg 229
20 [1991] New LJ 1517

and Mr. Hawkes. Mr. Julian Lee also acting upon the 13 charges as well. When Mr.
Edward call the solicitor, Mr. Julian Lee reassured him, that he had know Mr. Hawkes for
three years and Mr. Hawkes had done such deals before which was liable. However, Mr.
Lee fails to tell Mr. Edwards that Mr. Hawkes, at that time, was then on bail on charges
alleging criminal dishonesty. Hearing the reassurance from the solicitor, Mr Edwards
took no action in repossess back the car. Unfortunately, later from that date, Mr Hawkes
sold the car and fled the country while still on bail without paying the proceeds to the
plaintiff. This caused the plaintiff to bring an action against the solicitor in claiming for
damages.
Issue arise in this case clearly shows whether the solicitor who was asked to provide a
business reference on behalf of a client was held to be in special relationship with the
person who seeking the reference. According to judgment made in this case, Brooke J
referred to statement made by Lord Reid in the case of Hedley Byre & Co. Ltd v
Heller & Partners [1964] AC 46521 which stated that;
A duty would arise where it is plain that the party seeking information or advice trusted
the other to exercise such a degree of care as the circumstances required, where it was
reasonable for him to that, and where the other gave the information or advice when he
knew or ought to have known that the inquirer was relying on him.
In concluding that the necessary special relationship did not exist in the case, Brooke J
observed that, first is that the plaintiff had acted reasonably in relying on the solicitor,
secondly is that the plaintiffs lost was directly caused by the reliance on the solicitors
reference and lastly, the solicitor was at all material times the plaintiffs agent instead of
Mr. Hawkes. Hence, the solicitor does not to be held having liability towards the plaintiff.
Moving to the second element would be the client acted in reliance of his solicitors
instruction. Under this caption, the alleged party whose liability been imposed on the
part of solicitor must be able to prove that he has suffered loss because of the reliance
from the solicitor. By referring to the previous case, the court had ruled a strict
interpretation, apart from the existence of fiduciary duties, there must be reliance on the
part of the party to constitute the negligence. Looking back to the case of Hedley Byrne
&Co. Ltd v Heller& Partners Ltd, Lord Morris expresses that;
If, in a sphere in which a person is so placed that the others could reasonably rely on
his judgment or his skill or on his ability to make careful inquiry, a person takes it on
himself to give information or advice to, or allows his information or advice to be passed
on to, another person who, as he knows, will place reliance on it, then a duty of care will
arise.22
21 [1964] AC 465
22 [1964] AC 465

In the same case, Lord Pearce approved the dissenting judgment of Denning LJ in
Candler v. Crane, Christmas & Co [1951] 1 ALL ER 42623, where Lord Justice
Denning said:
Person who engaged in a calling which requires special knowledge and skill From
very early times it has been held that they owed a duty of care to those who are closely
and directly affected by their work apart altogether from any contract
The last element is concern on the party suffered damages accordingly and the
damages must be foreseeable. Here, we need to prove that the party suffered damage
due to the reliance and such damage is foreseeable from the start of the reliance
occurred. Take the example in the case of Groom v Crocker [1939] 1 KB 194 24., where
the issue relating on the correct measure of damages in against a solicitor for
negligence in conducting the clients affairs. The defendant had badly advised the
plaintiff in relation to divorce proceedings so that a decree was granted to her husband
on his undefended petition whereas she could have cross-petitioned on the ground of
his adultery. The defendant had also failed to make an application for maintenance of
the child of the marriage. The plaintiff claimed, inter alia damages for loss of earnings
attributed to a breakdown in health as a result of the mishandled proceedings. The
question arose whether this was a recoverable head of damages; Lawton J. held that
the claimed were too remote because the claim was one in contract.
EFFECTS AND CONSEQUENCES OF NEGLIGENT ADVICE

In the case where there was a negligent advice done by the lawyer, there were several
effect and consequence under Legal Profession Act 1976 where the client can sue the
lawyer for negligence.
Section 9425 gives power of disciplinary board to strike off the roll of lawyer if the clients
can prove that the lawyer is negligence in his act. They also may strike off or suspended
the lawyer for misconduct. The word misconduct is been interpreted by this act as any
act or omission to act in Malaysia or elsewhere by an advocate and solicitor in a
professional capacity and other act provided under this act.
23 [1951] 1 ALL ER 426

24 [1939] 1 KB 194
25 Legal Profession Act 1976

Section 99(1)26 provide that, the client can complaints the negligence done by the
lawyer to Bar Council and it must be in writing, the complaint will be brought to
Disciplinary Board.
Implementation of principle duty of care by legal practitioner in Malaysia.
In the case of Lim Soh Wah & Anor v Wong Sin Chong [2001] 2 AMR 2001 27, it is an
appeal case where there are two appeals and related cross appeal before the court.
Both of the appeal case was in relation to professional negligence on the part of the
appellant counsels for the respondent. This case related with causation in the law of
negligence under the law tort. The appellant advocate in this case delivered a defence
however fails to appear in court on the day fixed for the trail of the action. In addition to
that, he also fails to inform his clients, which is the respondent, of the date for the trial.
Due to those failures which cause the absence of the defendant on the fixed trail date
had cause judgment to be entered against the respondent. An application to set aside
the judgment had been made but fail on the ground that the defendant raised no triable
issue. Thus subsequent appeal also failed.
From this case, there are three issues arises. The first issue is that, whether the failure
to appear before the court during the hearing and failure to inform the hearing
date to the opponent, which in this cases the respondent, amounted to a
negligence which can be claimed by the respondent? The second issue is that
whether the application to set aside the judgment on the ground of no triable
issue as to the appellant negligence did not affect the appellant was applicable?
And the last issue is regarding on whether the causation as been established?.
The judgment of this case was given by the Honourable Judge, Gopal Sri Ram where
he held that;
That the appellants failure to inform the respondents of the hearing date caused the
respondents losing of an opportunity to produce any documentary evidence and oral
testimony to convince the judge in the case. In fact the respondents were able to
demonstrate to a conviction that the appellant had not prepared the respondents case
with the care and attention it deserved. Vital links in the evidence were omitted by a
singular failure to pursue the proper line of inquiry, especially in regard to the relevant
documentary evidence.28
26 Ibid
27 [2001] 2 AMR 2001
28 [2001] 2 AMR 2001

He also further added that, when an advocates or solicitor agrees to act on behalf of
the client, meaning that they have agreed to undertake an onerous task. There is also
assumption made that said that the advocate and solicitor lifted the weight of
responsibility as there was reliance by the client on the skill of the legal practitioner. 29
Nevertheless, the advocate and solicitors duty to exercise reasonable care and skill is
imposed both by contract and by the law of tort. In addition to that, another fundamental
duties of an advocate and solicitor his to diarize his cases, always keep his client up to
dated of the diarized dates and prepare the case with the client. The failure to oblige
with these duties was the main reason of such case arises from the first place. This was
a case where there was a failure to discharge that of such fundamental obligation has
resulted the respondents suffered. Therefore the causative link between the negligent
omission by the legal practitioners and the damage suffered by the respondent was
established.30
DEFENSE AGAINST PROFESIONAL NEGLIGENCE
The first that would be asked is the meaning of professional negligence? Professional
negligence is the breach of duty which causes damage and harm made by a person
who is professional in certain area of practice to another person who has fiduciary
relationship with them.31 For example, doctors, accountants, engineers and lawyer. So,
in general, a lawyer, owe a duty of care to a person once that person hires the lawyer as
his legal representative or lawyer. In broad terms, to succeed against a lawyer in
professional negligence, the claimant has to establish the existence of a duty of care on
the part of the lawyer. There must however be a close relationship between the two and
a breach of duty by the lawyer which has caused the loss. 32 The court also has
introduced some test in order to established professional negligence. In order to
determine the duty of care which may give rise to professional negligence, the court has
laid down several principles or rules which they are duty of care, balance of probabilities
and reasonable man test.33 The duty of care owed by a lawyers to their client are set out
in the case of Ross v Caunters [1979] 3AER 58034, where the court in this case held
that, when a lawyers have been approach by a client and then the client acted based on
his advice or seek advice from him, then it is concluded that the lawyers holds the duty
29 Ibid
30 Ibid
31 http://en.wikipedia.org/wiki/Professional_negligence_in_English_law
32 Ibid
33 http://en.wikipedia.org/wiki/Professional_negligence_in_English_law

of care to the said clients. We can confirm this with another case of White v Jones
[1995] 1 AER 69135, the court in this case stated that if there is a close and direct
relationship characterized by the law as proximity or neighborhood and the situation is
one where it is fair, just and reasonable that the law should impose the duty of the given
scope upon the one party for the benefit of the other.
Beside than proving there is duty of care, on behalf of the client, he must also prove that
the advice that had been given by the professional is based on the balance of
probabilities. For further explanation on the balance of probabilities, we can refer to the
case of In Downs v Chappel [1996] 3 ALL ER 34436, where the judge in that court held
that;
Where the client sues his solicitor for having negligently failed to give him proper
advice, he must show what advice should have given and ( on balance of probabilities)
that if such advice had been given, he would not have entered into the relevant
transaction or would not have entered into it on the terms he did same applies where
the clients complaint is that the solicitor failed in his duty to give him material
information...
The reasonable man test is attest when there is negligence on the part of the
professional; the court held that such professional should be treated with the same
person who have the same position and expertise which is par against him. We can
supported the statement with the case of Christopher Roger v Maree Lynette
Whitaker [1993] 1 CLJ 47937, where it was held that;
The law should recognize that a doctor has duty to warn a patient of a material risk
inherent in the proposed treatment; a risk is material if, in the circumstances of the
particular case, a reasonable person in the patients position, if warned of the risk,
would likely to attach significance to it or if the medical practitioner is or should
reasonably be aware that the particular patient, if warned of the risk, would be likely to
attach significance to it. This duty is subject to the therapeutic privilege.
Thus, by applying those test recommended, the court then can easily determined
whether there is exist duty of care between both parties. The test of duty of care are the
34 [1979] 3AER 580
35 [1995] 1 AER 691
36 [1996] 3 ALL ER 344
37 [1993] 1 CLJ 479

main test which applied to all professional profession including lawyers, which the court
will look at the duty owed by the lawyer to their own client and such client rely on the
advice and the guide from the lawyers that they seek. On the other hand, the client must
prove of such negligent advice based on balance of probabilities and the test of
reasonable man does apply to determine whether the advice is negligently made or not.
So, is there any defense that can be used by the legal practitioner when there is
professional negligence? The answer lies in the case of Rondel v Worsley [1969] 1
AC 19138 whereby in this case, Nobby Rondel, who was the plaintiff in this case was
previously charged for causing grievous harm to Manning. He was not given legal aid,
but after the case had been preceded for some time, he was afforded the facility of a
dock brief, and he chooses a barrister by the name of Worsley to represent him. The
case eventually ended in conviction as been confirmed by the Court of Appeal, and
Rondel underwent a sentence. Nearly six years later, he issued a writ against Worsley,
claiming damages for alleged professional negligence in the conduct of his duty. The
writ was dismissed by the court of appeal which causes Rondel to further appeal to the
House of Lords where it was hold by unanimous reasoning that;
The immunity of counsel from being sued for professional negligence in the conduct of
a cause, criminal or civil, is based on public policy, not on his contractual incapacity to
sue for fees, and it is in the public interest that the immunity should be retained, one
factor being that counsel owes a duty to the court for the true administration of justice. 39
Quoted from the judgment made from the House of Lord 40 on the advanced reason for
public policy are;
1.Overriding duty to the court. The counsel has a duty toward his clients welfare.
However, ones should take not that, as an officer of the court, the counsel should not
mislead the court, which cause apprehension toward the other party. Beside that, he
must not withhold authorities or document which may tell against his client but which
the law or the standards of his profession require him to produce.
2. Cab-rank principle has been recognized that no counsel is entitled to refuse to act in
a sphere in which he practices as it is important or essential that the duty must
continue.
3. Absolute privilege shows us that a judge, witness and barristers alike have absolute
privilege with regards to what is said by them in court.
38 [1969] 1 AC 191
39 Profesional practise book,2nd edition CLP series
40 Ibid ,page 29

4. Relitigation is where an action for negligence against the barrister would prolong
litigation a client who claims that the barrister was at fault would bring a civil claim
against the barrister. The civil court would have to consider all the evidence which have
been adduced in the criminal trial. In effect, this would bring about a retrial of the
criminal case in the civil courts.
However, such immunity can be removed under certain extent as the privilege of
immunity could not be interpreted to cover everything that lawyers do 41. We can support
this in the case of Saif Ali v Sydney Mitchell & Co [1978] 3 ALL ER 1033 42; whereby it
was held that:The general principle that barristers are entitled to some immunity was established, or
re-established, by unanimous decision of all their Lordships. It was argued that
barristers should enjoy no greater immunity than other professional men. But that
argument was rejected: barristers, it was firmly held, have a special status, just as a trial
has a special character: some immunity is necessary in the public interest, even if, in
some rare cases, an individual may suffer loss.
Furthermore, Lord Steyn, one of the Seven law lords that gave decision for three
different appeal cases but yet all three regarding on barrister immunity 43, had stated that
there benefit that can be gained from ending the immunity provided the following
reasons. The first reason is that there is a basic rule where there should be a remedy
for a wrong. However, it would not be applicable if the advocate did commit negligent
act and such the act will cause the immunity to cease. The second reason would be, as
one of the functions of law of torts is to set external standards of behavior for the benefit
of the public.
There is no such thing as immunity of counsels in Malaysia as all the legal practitioner is
deemed to carry out their duty of care.44
CONCLUSION
41 Profesional practise book,2nd edition CLP series

42 Co [1978] 3 ALL ER 1033
43 Profesional practise book,2nd edition CLP series . page 33
44 PP Slides presentation

In conclusion, the legal practitioner also have their own liability towards their client and
such the liability has been breach, it will caused or amounted to professional
negligence. In Malaysia, there is no defense of immunity that been given to the lawyers
as they are deemed to practice their duty of care towards their client. Differently, in
England and Wales, where at first such immunity has been provided to the barrister in
order to protect their right as legal practitioner. However, under some circumstances,
such immunity can be taken away from the barrister and they will be liable for
professional negligence.
REFERENCES
1) BOOKS
- PROFESIONAL PRACTICE , 2ND EDITION (CLP SERIES), RAVI NEEKO,
PARAMES K.& KEVIN JOSHUA, LEXIS NEXIS, 2007,DOLPHIN PRESS
SDN BHD
- HABDBOOK OF PROFESIONAL CONDUCT FOR SOLICITORS, 2 ND
EDITION,FRANCES
SILVERMAN,1992,BUTTERWORTH
&CO,EAST
KILBRIDE, SCOTLAND
2) DICTIONARY OF LAW
- OXFORD DICTIONARY OF LAW, 7TH
UNIVERSITY PRESS, NEW YORK
EDITION,
2009,
OXFORD
3) ACT
- LEGAL PROFESSION ACT 1976
4) WEBSITES
- http://en.wikipedia.org/wiki/Cab-rank_rule
- https://www.barstandardsboard.org.uk/media/1460590/bsb__cab_rank_rule_paper_28_2_13_v6__final_.pdf
- http://www.lawgazette.co.uk/72005.article
- http://en.wikipedia.org/wiki/Professional_negligence_in_English_law
- http://law.wustl.edu/sba/firstyearoutlines/torts/
- http://en.wikipedia.org/wiki/barrister-at-law
5) PROFESIONAL PRACTISE &ETHICS SLIDE PRESENTATION
( 1ST AND 2ND CHAPTER)


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LIABILITY OF LEGAL PROFESSION IN MALAYSIA; WHETHER THEY HAVE ANY

DEFENCE AGAINST PROFESIONAL NEGLIGENCE

EFFECTS AND CONSEQUENCES OF NEGLIGENT ADVICE

Implementation of principle duty of care by legal practitioner

DEFENSE AGAINST PROFESIONAL NEGLIGENCE

PROFESIONAL PRACTICE AND ETHICS Page 1

LIABILITY OF LEGAL PROFESSION IN MALAYSIA; WHETHER THEY HAVE ANY

Patricia Erma anak Honchin

LIABILITY OF LEGAL PROFESSION IN MALAYSIA; WHETHER THEY HAVE ANY

PROFESIONAL PRACTICE AND ETHICS Page 3

LIABILITY OF LEGAL PROFESSION IN MALAYSIA; WHETHER THEY HAVE ANY

LIABILITY OF LEGAL PROFESSION IN MALAYSIA; WHETHER THEY HAVE ANY

THE LIABILITY OF LEGAL PROFESSION AND HOW IT CAN AFFECT IN THE

LIABILITY OF LEGAL PROFESSION IN MALAYSIA; WHETHER THEY HAVE ANY

LIABILITY OF LEGAL PROFESSION IN MALAYSIA; WHETHER THEY HAVE ANY

LIABILITY OF LEGAL PROFESSION IN MALAYSIA; WHETHER THEY HAVE ANY

LIABILITY OF LEGAL PROFESSION IN MALAYSIA; WHETHER THEY HAVE ANY

EFFECTS AND CONSEQUENCES OF NEGLIGENT ADVICE

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LIABILITY OF LEGAL PROFESSION IN MALAYSIA; WHETHER THEY HAVE ANY

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LIABILITY OF LEGAL PROFESSION IN MALAYSIA; WHETHER THEY HAVE ANY

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41 Profesional practise book,2nd edition CLP series

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