RULES THAT GOVERN CONDUCT TOWARDS CLIENTS

Legal Profession (Practice & Etiquttes) Rules 1978

Rule 3. Advocate and solicitor not to accept brief if embarrassed

[situations of embarrassment given]
Rule 4. No advocate and solicitor to accept brief if professional
conduct likely to be impugned.
Rule 5. No advocate and solicitor to accept brief if difficult to
maintain professional independence.
Rule 6. An advocate and solicitor not to accept brief if unable to
appear.
Rule 9. Advocate and solicitor to undertake defence fairly and
honourably.
Rule 16. Advocate and solicitor to uphold interest of client, justice
and dignity of profession.
Rule 24. Advocate and solicitor to be ready for the day fixed for
trial.
Rule 25. Advocate and solicitor to disclose all circumstances to
client.
Rule 31. Advocate and Solicitor to uphold dignity of profession.
Rule 35. Advocate and solicitor not to abuse confidence reposed
in him by client.
Rule 40. Advocate and solicitor not to stand surety.
Rule 55. Advocate and solicitors lien.

RULINGS OF BAR COUNCIL

Rule 14.08. Clients files

(1) An Advocate and Solicitor may proceed to close a clients file after he/she has finished the
work and the client has settled the bill.
(2) When a file is closed, the client is entitled to receive the original cause papers, the originals or
file copy of all correspondence (including those between lawyers and court) and all original or
stamped copies of documents executed by him/her

Rule 14.01. Courtesy

(2) An Advocate and Solicitor must promptly reply to correspondence from other Advocates and
Solicitors, the Bar Council, State Bar Committees, clients and former clients.

Cases
1. Rule 3 and 5
o

Dato Sri Bala Krishnan Vellasamy & Ors v Cityteam Meadia Sdn
Bhd & Anor [2015] 4 CLJ 247
A Tamil Newspaper known as Tamil Malar had published what was alleged
as defamatory articles. The first and second defendants were represented
by Messrs S Kandasami & Co. The solicitor who appears as counsel for this
matter is Ms Saraswathy which at the same times is also the shareholder
and director of the first defendant company at the time the alleged

defamatory articles were published. Plaintiff claims that Ms Saraswathy

has a personal relationship with both the first and second defendants of
which she lacks or will appear to lack impartiality. This will be difficult for
her to maintain her professional independence and act objectively.
Issue : Whether the plaintif can disqualify the learned counsel and the law
firm on record of the defendants for breac of provisions of the LPPER?
Judgement : According to Rule 3, for a solicitor to be disqualified, one must
be embarrassed which in this case the plaintiff relied on Rule 3 (b)(ii)
where embarrassment arises when there is some personal relationship
between the solicitor and the party or witness to the proceedings.
The word personal relationship in Rule 3 (b)(ii) of the LPPER must be
liberally and sensibly construed in accordance that such relationship would
make the solicitor not able to maintain professional independence or if so
he continues it would be incompatible with the best interest of the
administration of justice.
Thus, relating it to the present circumstance, Ms Saraswathy who is still a
shareholder and director to the first and second defendants does
constitute to a personal relationship. Because the company was small, it
gives rise to a higher degree of proximity and thereby creating a personal
or close relationship.
The court finds that because there exist the personal relationship, Ms
Saraswathy will have difficulty in maintaining a degree of professionalism
and independence as an officer to the court for the course of justice.
Therefore Rule 3 and 5 have been or will be breach. Hence, Ms Saraswathy
and the firm are disqualified for acting in the matter.

2. Rule 16
o

Molly Margrete Andrew Gomez v Tan Suat Ching; Majlis Peguam

Malaysia (Intervener) [2014] 8 CLJ 536
The Respondent appointed the Appellant to act for her in a divorce
proceeding. Later, on 4th October 2010, the Respondent instructed the
appellant not to act for her any further due to the excessive fees. Despite
the instruction, the Appellant appeared still on behalf of the respondent on
the reason that the Appellant was still the solicitor on record for the
respondent as long as she was not served with a notice of change of
solicitor. The respondent lodged a complaint against the Appellant to the
Malaysia Bar Council Disciplinary Board (DB).
Issue : Whether the Appellant had acted in the best interest of the client.
Judgment : The appellants appeal was dismissed. Zaleha Yusof J was in
the opinion that it was morally wrong for the Appellant to refuse to
discharge herself and her act of continuing to appear in court after

receiving the letter was without regards an act not in the best interest of
her client. Rule 16 of the LPPER requires the Appellant to uphold the
interest of her client. The said Rules were made in pursuant to section 77
of the LPA which clearly provides that failure to comply with any rule made
under this section would make an advocate and solicitor liable to
disciplinary proceedings.
3. Rule 55
o

Ng Poh Kwang v Tan Chuan Yong & Ors [2013] 7 CLJ 735
Plaintiff had retained the third defendant, a firm of advocates and
solicitors to sue professional fees owed by Olympia Land Bhd (OLB). The
first and second defendants were partners of the third defendant. On 10
January 2001, the arbitrator decided that the issue of the case was a
question of law and referred the matter to the High Court. The 3 rd
defendant informed the plaintiff that unless the outstanding bills were
settled, the 3rd defendant would not be able to act for the plaintiff. The
plaintiff told the 3rd defendant that the fees were too high and
subsequently appointed new solicitors. The High Court later decided that
the plaintiff did not have the right cause of action because the Plaintiff
sued the wrong party. Subsequently, the plaintiff pleaded that due to the
defendants breach for failure to determine that OLD was not the
respondent but MB Properties that the plaintiff had suffered damages and
also because the defendants had withheld all of the plaintiffs documents
from handing it to the new solicitors.
Issue: whether the defendants are liable on behalf of the plaintiff for their
act of withholding all the plaintiffs documents from the new solicitors.
Judgment : the court referred to Rule 55 of the LPPER which states that a
solicitor has a right to withhold the clients document to protect their lien
on legal fees even after he has been discharged.

RULES THAT GOVERN CONDUCT TOWARDS CLIENT (UNDER COMMON

LAW)
DUTY OF CONFIDENTIALITY
A lawyer is bound to this duty under the contract of retainer and common law.
the duty of confidentiality obliges solicitors (or attorneys) to respect the
confidentiality of their clients affairs. Information that solicitors obtain about
their clients affairs may be confidential, and must not be used for the benefit of
persons not authorized by the client. Confidentiality is a prerequisite for legal
professional privilege to hold.
CONTRACTUAL DUTY
1. DUTY OF COMPETENCE AND DILIGENCE
Under the contract of retainer, the lawyers are expected to meet reasonable
standard of competence and with reasonable care and diligence. As a lawyer, he

or she shall always make effort by improving their skills or knowledge. This is to
make sure the lawyers to equip by the skills that required in acting for the best
interest for their clients.
For example, a client might request the lawyer to do a case regarding the field of
law that the lawyer is not very familiar with. In this case, the lawyer can only
accept the case, if he can without undue delay and cost to the client to obtain
the necessary level of skill and knowledge.
a) Timeliness a lawyer has to be alert with the timeline as he has to comply
with the deadlines.
b) Accuracy The work done by a lawyer should be accurate. Mistakes shall be
precluded. Therefore, it is important to do sufficient research in doing any work
and check for mistake beforehand.
c) Work Ethics having a good work ethics enable a lawyer to build a good
reputation. The lawyer shall make sure everything is done and shall not giving
excuses for the uncompleted task.
d) Responsibility A lawyer has the responsibilities to complete the tasks
required by the client. Always keep up with the timeline and arrange other
person to handle the task when the lawyer himself is unable to do it.
e) Attributes of a good lawyer a good lawyer is a lawyer who is competent
and diligent to always keep their pace to a higher level of expertise in work.

FIDUCIARY DUTY
A lawyer owes his client a fiduciary duty. The lawyer is not allowed to abuse or
take any advantage of their relationship. A fiduciary relationship creates many
legal duties for the person in whom the trust has been placed. Generally this
person must act in the best interests of the other.
o

Hedley Byrne & Co Ltd v Heller & Partners LTd [1964] AC 465
Hedley Byrne were a firm of advertising agents. A customer, Easipower Ltd, put in a large
order. Hedley Byrne wanted to check their financial position, and creditworthiness, and
subsequently asked their bank, National Provincial Bank, to get a report from
Easipowers bank, Heller & Partners Ltd., who replied in a letter that was headed,
"without responsibility on the part of this bank"
It said that Easipower was,
"considered good for its ordinary business engagements".
The letter was sent for free. Easipower went into liquidation, and Hedley Byrne lost
17,000 on contracts. Hedley Byrne sued Heller & Partners for negligence, claiming that
the information was given negligently and was misleading. Heller & Partners argued
there was no duty of care owed regarding the statements, and, in any case, liability was
excluded.

Judgment : The court found that the relationship between the parties was "sufficiently
proximate" as to create a duty of care. It was reasonable for them to have known that the
information that they had given would likely have been relied upon for entering into a
contract of some sort. That would give rise, the court said, to a "special relationship", in
which the defendant would have to take sufficient care in giving advice to avoid
negligence liability. However, on the facts, the disclaimer was found to be sufficient
enough to discharge any duty created by Heller's actions. There were no orders for
damages, because

A man cannot be said voluntarily to be undertaking a responsibility if at the very momen

Caparo Industries plc v Dickman [1990] 2 AC 605; This concerned an auditor (Dickman)
who had negligently approved an overstated account of a company's profitability. A
takeover bidder (Caparo) relied on these statements and pursued its takeover on the
basis that the company's finances were sound. Once it had spent its money acquiring the
company's shares, and company control, it found that the finances were in poorer shape
than it had been led to believe. Caparo sued the auditor for negligence. The House of
Lords however held that there was no duty of care between an auditor and a third party
pursuing a takeover bid. The auditor had done the audit for the company, not the bidder.
The bidder could have paid for and done its own audit. Consequently, there was neither a
relationship of "proximity" nor was it "fair, just and reasonable" to make the auditor liable
for the lost sums of money that the takeover incurred.
In Caparo ada tiga requirements kena fulfilled harm must be reasonably foreseeable
as a result of the defendants conduct (as established in Donoghue v Stevenson) the
parties must be in a relationship of proximity it must be fair, just and reasonable to
impose liability.

Proximity not simple physical proximity but extends to such close and
direct relations that the act complained of directly affects a person whom
the person alleged to be bound to take care would know would be directly
affected by his careless act. Donoghue v Stevenson.
o

White v Jones [1995] 2 AC 207; In this case, which was carried by only a 3:2 majority,
a solicitor was told to draw up a new will, splitting the testator's estate between the
two plaintiffs, his daughters. He negligently failed to do this by the time of the testator's
death, and the estate passed in accordance with the testator's wishes expressed in a
previous will. The daughters sued the solicitor in negligence. It was held that the solicitor
had assumed a special relationship towards them, creating a duty of care which he had
carried out negligently, and therefore had to indemnify them for their loss. Once again,
that extended Hedley Byrne liability to a proximate third party

In relation to their clients, solicitors must act the following duties :

1. DUTY OF HONESTY

The 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. The lawyers cannot allow
his desire to litigate or his own contentious nature or his desire for fees to dictate
his advice to the client. Lawyers owe a duty to promote settlement and not to
encourage strife and litigation.
2. DUTY TO AVOID CONFLICTS OF INTEREST
Lawyers are not allowed to represent the client if they have a conflict of
interest. A conflict of interest can occur in a lot of situations for example, if the
attorneys personal interests, another clients interest, or former clients interests
conflict with (the lawyer that would like to represent the clients interest).
Besides, a conflict of interest also will arise if the attorney represents two
clients that are in dispute at that particular time in the same case. However,
there are exceptions to this rule, for example, the clients can agree to or waive
their lawyers conflict of interest but this situation is not common.
o

RE A FIRM OF SOLICITORS [1995] 3 All ER 482

In this case, a solicitor who had been employed by a firm acting for a
plaintiff in patent litigation moved firms. Some two and a half years later,
the new firm was retained to act for the defendants in the patent litigation.
The individual solicitor had never been involved in the case against these
defendants in his previous employment. In addition he managed to
establish that he had no information relating to the previous litigation that
would now be recallable, confidential or relevant, bearing in mind the
lapse of time and the complexity of the issues. The injunction prevent him
from acting was refused. The court was to balance two conflicting
principles, namely the protection of client confidence and the freedom of
the client to instruct a solicitor of its choice.

3. DUTY TO ACCOUNT
The relationship between the lawyer and his or her client is a fiduciary
relationship. Thus, as a fiduciary, the lawyer is not allowed to make profits from
the information that has been disclosed to him or use any of the property of the
client that has been deposited to him. This also means that the lawyer cannot
make any profits out of the knowledge or property that he or she gets from the
client. This is because any gain that the fiduciary receives from any source as a
result of using his clients 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.
4. DUTY TO PREFER CLIENTS INTEREST
At all times, lawyers are bound to uphold the interest of the client. The scope of
duty includes carry out instruction in the matter to which the retainer relates
with diligence and proper means, consult with the client on related matter and
keep the client informed and comply with reasonable request from the client.
This also includes when a personal interest conflict with the client, there is a duty
to prefer the interest of the client. The duty to act sincerely and honestly to the
client overrides all other duties.
5. DUTY OF CARE

In relation to tort, under the general law, the lawyer-client relationship gives rise
to a duty of care to the lawyer to exercise that care and skill on which he knows
that his client would rely. They will be liable in negligence if the lawyer has
commits an act or omit to do an act carelessly, or carelessly giving advice and
the failure has given rise to financial lose. To impose liability on the lawyer, it
must be shown, the lawyer was careless, and the client relied on the lawyer and
it is reasonable for the client to do so. This is the duty of care for a lawyer
towards their client. The standard of care of a lawyer is a standard of reasonable
man.
o

Objective test Rogers v Whitaker [1992] HCA 58

The court said that the standard of care is not determined solely or even
primarily by reference to the practice followed or supported by a
responsible body of opinion in the relevant profession or trade and the
ultimate question is whether it conforms to the standard of reasonable
care demanded by the law, that is a question for the court and the duty of
deciding it cannot be delegated to any profession or group in the
community.
This test is regarding to the standard of skill expected from the public
which will be adopted by a person in that particular field.

Subjective test Midland Bank v Hett, Stubbs & kemp [1979] Ch.
384
The court used the subjective test to determine the standard of care
where it was said that a professional person must carry out his work with
the care and skill which a normally competent practitioner would bring to
it and the test is what the reasonably competent practitioner would do
having to the standards normally adopted in his profession.

There are differences between the objective view and the subjective view in
deciding a solicitors standard of care. The objective view imposes a test which
sets a standard of care for a professional person based on the public standard
and it stipulates what should do from the view of public members. On the other
hand, the subjective test adopts a standard which requires a professional person
to do something which will be normally done by the members in the same field.

BREACH OF DUTY TOWARDS CLIENT

1. PROFESSIONAL NEGLIGENCE
It is common that lawyers to be sued for negligence. The basis of it is either
through contract or tort. In contract, the liability arises from the date of breach
whereas in tort, the liability commences from the date of damage occurs. Under
the LPA 1976, S117 states about costs recoverable from client by other person
not attested. S116 allows advocate and solicitor to enter agreement costing

contentious business but in Subs.117(4) the advocate and solicitor shall not be
liable for negligence in any such agreement.
o

ESSO PETROLEUM CO. LTD V MARDON [1976] QB 801 (CA)

In this case, the principle laid down is a person who has special
knowledge or skill, makes a representation by virtue of thereof to another
be it an advice, information or opinion with the intention of inducing
him to enter into a contract with him, he is under a duty to use reasonable
care to see that the representation is correct, and that advice, information
or opinion is reliable.
Applying the principle to the present case, as an advocate and solicitor
one must use reasonable care and reliable information to assist his client.
If the mistake is due to his negligence, then he is considered as not doing
his duty well using his professional skill and knowledge. He should be
responsible for his mistake and the client may sue him to claim for
damages incurred.

CROSSAN V WARD BRACEWELL & CO (1989) 5 PN 103

The plaintiff was involved in an accident as the driver of a car and
received a summons for reckless driving. He consulted McChrystal, a
partner in the defendant firm of solicitors. Having decided that the plaintiff
was not entitled to legal aid, McChrystal advised that the plaintiff should
either defend himself or instruct the defendants, in which event he would
have to pay $50 on account cost. The plaintiff took the former option and
the defendant was never instructed.
McChrystal had failed to inform the plaintiff that his insurance company
would arrange and pay for his legal representation. As a consequence, the
insurers had repudiated their liability due to the failure of the plaintiff due
to the failure of the plaintiff to inform them about the proceedings. Besides
that, the third party claim also had to be borne by the plaintiff. The court
held that : (a) the solicitor had held himself out as a man able to offer
some advice; (b) the solicitor had explored the possibility of obtaining
legal aid, but failed to consider the possibility that the insurer might pay
off the plaintiffs litigation; and (c) once the solicitor had elected to hold
themselves out as qualified to advise the plaintiff as to how he could
obtain funds to legal costs, they owed him a duty of care.

2. LIABILITY OF BREACH
There are cases in which the Courts have found the solicitors liable in negligence
such as failing to inform clients of a letter from the authority indicating possible
acquisition, filing an appeal record out of time, failing to honour an undertaking,
giving wrong advice on a course of action and many more. Though solicitors are
not expected to know the contents of every statutes but nevertheless one is
expected to know some of the common ones.
This has been explained in the judgment by Azmi CJ in the case of Miranda v
Khoo Yew Boon whereby the judge quoted the following :
Now it is not the duty of a solicitor to know the contents of every statute
of the realm. But there are some statutes which is his duty to know, and in

these days when the defendants in so many actions are public authorities,
the Public Authorities Protection Act 1948 is one of the statutes.
The period of limitation was one of those matters which the respondents
as the appellants legal advisers ought to have borne in mind. It was
negligence not to bear it in mind.