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TOPIC 2: DUTIES OF COUNSEL

2.1 Introduction

A lawyer should be honest, use tactics that are legal, respect the courts. A lawyer shall act with
integrity and professionalism, maintaining his or her principal responsibility at all times.

The Honest Lawyer [1983] 2 CLJ 174

Lord Denning:-“If there is one thing more important than any other in a lawyer, it is that he
should be honest. He must be honest with his client. He must be honest with his opponent. He
must be honest with the court. Above all, he must be honest with himself.”

2.2 Duty to the Court

2.2.1 Duty not to Mislead the Court

A lawyer cannot knowingly offer or rely on false evidence or misstate evidence. Misleading the
court includes actions such as knowingly misrepresenting or misstating the facts in argument,
inducing a witness to state misleading evidence and knowingly maintaining a false.

In Rondel v Worsley [1967], the appellant was convicted of the crime, six years later he sued his
counsel for negligence in the conduct of his defence. The court held that counsel owes a higher
duty to court than to client for true administration of justice. Therefore, the public policy grants
counsel the immunity from being sued for professional negligence in criminal/civil case and so,
a counsel should not mislead the court.

Examples of misleading the court:

 Concealing a document affecting the credibility of a witness in a civil suit

In Cheah Cheng Hoc v PP [1986], the court held that the counsel who concealed the
documents relevant to challenge the credibility of a witness could be liable for contempt of
court for obstructing proper conduct of case.

 Failing to exhibit the relevant documents in the affidavit

In Chin Sau Min & Anor v Sia Sung Ho & Anor [2005] 3 CLJ 113, the defendant
claimed that the plaintiff deliberately failed to exhibit their Public Bank Statement of
Account for the month of January 2005 so as to mislead the court. However, the defendant
failed to prove the case.

 Filing affidavits in court which contain misleading averment

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In Re An Advocate & Solicitor [1962], it was held that a professional man whom prepared
the false affidavit which he knew to be false is a serious offence. The appropriate penalty
would be either to strike off the offender/to suspend him for a period.

 Should not split words into distinct segment

In Mohd Samsudin Ismail v Tan Yeow Hwa [2000], the court held that counsels who
represent litigants in court should not attempt to split words into distinct segment and take
the court to the wrong route in suit just to sway the court to give a decision in his favour.

2.2.2 Duty not to Withhold Authorities

Lawyers are under a positive duty to make full disclosure of all the binding authorities relevant
to a case. This means that all such authorities on point must be brought before the court, whether
they support or undermine the position being argued by that party, even if opposing counsel has
not cited such authority. This element of the duty includes drawing a judge's attention to any
legal errors which have been made so that they can be corrected.

In Copeland v Smith [2000], the court was highly critical of advocates who did not assist the
court with relevant authorities. It is essential for advocates to keep themselves up to date with
recent authorities.

In Yap Ban Tick v Standard Chartered Bank [1995], the court held that however tempting it
may be Counsel should never suppress an adverse authority as to do so would mean that the
legal profession would cease to enjoy the confidence of the State and democracy will perish.

2.2.3 Duty not to Misrepresent Witness Giving Evidence in Court

In Re JLP Haris [1953], the court held that counsel should not procure an adjournment by
keeping witness away from court. On the facts Counsel had deliberately kept away an adverse
witness and procured an adjournment by false means. He was suspended from practice for 3
months and ordered to pay costs.

2.2.4 No Duty to inform court about the discredibility of witness

Tombling v Universal Bulb & Co (1951) 2 TLR 289, the principal witness who was serving a
prison sentence came to court in plain clothes to testify. The wardens are also in plain clothes.
The counsel that called the witness also knew that the witness came to court from the prison but
withheld these facts from the court.

Held that the duty of Counsel is to make every honest effort to succeed. He is not the judge of
the credibility of the witness or the validity of the arguments. No duty on Counsel to inform the
court that the witness came from prison or that he had previous convictions.

Meek v Fleming [1961] 3 ALL ER 148 (distinguish from Tombling)

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It is the duty of Counsel to inform court about the discredibility of the witness. In this case, the
plaintiff brought an action against the defendant. The defendant was told, by counsel, to come to
court in plain clothes to conceal the fact that the defendant had been demoted from Station
Inspector to Sergeant because of disciplinary proceedings. It was held that since this information
would have an impact on the decision of the court, the counsel should have informed the court.

2.2.5 Duty to Prevent Court from Enforcing Illegal Transaction

In Mercantile Credit Co Ltd v Hamblin [1997], the court held that the counsel may raise the
issue of illegality of the transaction even it is not pleaded. It is the counsel’s duty to prevent the
court from enforcing illegal transaction.

In Network Food (M) Sdn Bhd v Syabinas Holdings Sdn Bhd [1997], it was held that it is the
counsel’s duty to bring to the attention of the court if the counsel knows that the court is in
danger of enforcing an illegal transaction.

2.2.6 Duty not to Cast Aspersions on Witnesses without Sufficient Proof

Aspersions are abusive attacks on a person’s character / good name.

In Roy v Prior [1970], the defence counsel stated that he had subpoenaed a witness who had
failed to appear in court. He suggested that the witness was evading the court and sought a
warrant of arrest knowing that it was untrue. Witness was subsequently arrested and sued
defence counsel who claimed immunity. The court held that there are limits to immunity. If
privilege is abused, immunity will be lost. On the fact, the immunity was lost because the
defence counsel’s action was malicious.

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 2.3 Duty to Client
Legal Profession (Practice and Etiquette) Rules 1978 (LPPER)

Rule 2 - Obligation of advocate and solicitor to give advice on or accept any brief.
Rule 3 - Duty to Represent Unless Embarrassed
Rule 16 - Duty to Uphold Interest of Client
Rule 25 - Duty to Disclose all circumstances to Client
Rule 35 - Duty Not To Abuse Confidence Reposed to Him
Duty of Skill and Care Towards Client
Duty of competence and diligence
Duty of Honesty
Duty to avoid conflicts
Duty to account

2.3.1 Duties under the Legal Profession (Practice and Etiquette) Rules 1978 (LPPER)

The Cab Rank rule – Rule 2: An advocate and solicitor shall give advice on or accept any brief in the
Courts in which he professes to practise at the proper professional fee
dependent on the length and difficulty of the case, but special
circumstances may justify his refusal, at his discretion, to accept a
particular brief.

An A&S shall give advice on or accept brief in the courts in which he professes to practice.

The lawyer is bound to act for anyone who wishes to retain service.

Originated from the English Bar in the case of Rondel v Worsley - Lord Pearce said:
“….It would be tragic if our legal system came to provide no reputable defenders, representatives or
advisers for the latter. And that would be inevitable result of allowing barristers to pick and choose
their clients.”

Exceptions:

1. Rule 3: An advocate and solicitor shall not accept a brief if he would be embarrassed.
An embarrassment arises when:
(i) Where A&S finds he is in possession of confidential information as a result of having
previously advised another person in regard to the same matter.
(ii) Where there is some personal relationship between him and a party or a witness in the
proceedings.

2. Rule 4: No advocate and solicitor shall accept brief if his professional conducts is likely

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to be impugned.

3. Rule 5: No advocate and solicitor shall accept brief if it is difficult to maintain

professional independence or is incompatible with the best interest of the administration of
justice

4. Rule 6: An advocate and solicitor shall not accept any brief if he is unable to appear and
represent the client on the required day.

5. Rule 27: An advocate and solicitor shall not appear in any matter in which he is directly
pecuniarily interested.

6. Rule 28: An advocate and solicitor shall not appear in Court in any case in which he has
reason to believe that he will be a material witness in the disputed question of fact.

7. Rule 54: An advocate and solicitor shall not appear for a party represented by another
advocate and solicitor unless:
(i) he obtained the consent from the first-named advocate and solicitor
(ii) the proper remuneration of the first-named advocate and solicitor has been paid,
(iii) the first-named advocate and solicitor is /refused to act for such party

Rule 3
What instances would be considered as embarrassment?
1) Where A&S finds he is in possession of confidential information as a result of having previously
advised another person in regard to the same matter.
2) Where there is some personal relationship between him and a party or a witness in the
proceedings.

Tan Kim Hor & Ors v Tan Heng Chew & Ors [2004] 6 CLJ 338
Conflict of interest firm had previously advised the respondent co. issue of confidentiality whether
embarrassment professional independence whether against Rr. 3 & 5 of LPPER.

Rhina Bhar v Malaysian Bar

The Bar Council had objected for RR Sethu to represent the Plaintiff on the ground of R3.
Anuar J General rule- member of public authority should not be professionally engaged in any
proceedings for which the authority is a party or is directly interested.

Rule 4 & Rule 5 - Conflict of Interest

No A&S to accept brief if professional conduct likely to be impugned, difficult to maintain
professional independence, not to appear in a case where he is a witness.
If there is conflict of interest, it would affect the lawyers in presenting his case and victimize the
client’s interest.
At all times, lawyers are duty bound to uphold the interest of the client.

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Rule 16 - shall fearlessly uphold the interest of his client without regard to any unpleasant
consequences either to himself or to any other person.
Lawyers are subject to disciplinary action.
Section 94 (3)(n) of LPA - gross disregard of his client’s interest.
Example:
Carry out instruction in the matter to which the retainer relates with diligence and proper means.
Consult with client on related matter
Keep his client informed and comply with reasonable request from him.

Rule 25 - To disclose to the client all circumstances of his relation to the parties and any interest in
connection with the controversy which may influence the client in the selection of counsel.

Rule 23- Not to conceal facts. To supply court all information as to the probable length of a case and
the possibility of a settlement.
What things to disclose?
1. Liabilities-guilty, innocent, negligence.
2. Options- to sue or not to sue, to plead guilty or not and etc.
3. Legal remedies- compensation, fine, injunction.
4. Steps to be taken in obtaining the remedy cost, probable length, documents

Duty of Skill and Care Towards Client

The lawyer must be honest and competent in order to ensure that judges are able to deal with the
cases that come before them justly and competently.
A lawyer should refuse to accept any case that is beyond his expertise because this will help the
client’s money and time and will inspire client confidence in the honesty of the profession.
Lawyers owe a duty to deliver work which meets a reasonable standard of competence and with
reasonable care and diligence.
Consult clients on questions of doubts
Lawyers to be skillful and careful and should have a good knowledge of the law (when deciding to
take up the case)

Duty to account
Lawyers are not allowed to make 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.
Lawyers are required to keep separate accounts namely client’s account and office accounts.
He must never use the money from client’s account for his own purpose.
S 94 (4) of LPA – A&S may be found guilty of any offence involving dishonesty, misuse or
misappropriation of any money of the client, he might be liable to suspension, struck off and any
other order deems fit by the disciplinary board.

Duties under LPPER 1978

Acceptance of brief- R 2, 3, 4 & 5
Performance in court – R 6 & 24, 9, 10, 12-16, 17, 18, 20 & 23
Other general conduct - 27, 28, 30, 32, 35, 51, 54 & 56

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 CASES

In Rondel v Worsley [1967], it is a duty of the counsel to act fearlessly, to raise every issue, advance
every argument and ask every question, however distasteful, which he thinks will help his client’s
case.

In Tombling v Universal Bulb Co., it was held that it is the duty of the counsel to client in civil or
criminal case to make every honest endeavour to succeed.

In Dato Wong Gek Meng v Pathmanathan Mylwaganam, the obligations of solicitor towards
his clients are twofold.

(a) equity: the client-solicitor relationship is fiduciary – solicitor to act with strict fairness and
openness – failure to adhere to this renders the Solicitor liable to compensate for any loss
incurred by his client.

(b) common law: must act skilfully and carefully – must put at his client’s disposal not only his
skill but also his knowledge of the law as far as it is relevant and germane.

In Zainur Zakaria v PP, the Appellant had applied to disqualify the DPP Dato Abdul Gani
Patail and En. Azahar b Md from further prosecuting the case. He was cited him for
contempt of court and convicted to 3 months imprisonment.

FC:- Counsel owed a duty to his client to act fearlessly and uphold interests of his client, interest
of justice and dignity of profession, regardless of any unpleasant consequences.

2.4 Special Duty of Criminal Lawyers

2.4.1 Prosecuting Counsel

It is not the duty of Prosecuting Council to obtain a conviction by all means but rather the prosecuting
counsel must lay the facts and evidence of his case fairly and impartially.

In R v Banks [1961], the court held that it is the duty of the prosecuting counsel not to secure a
conviction at all cost. To show their impartiality, the prosecuting counsel should not address the
jury or court in a manner as to prejudice the accused.

In Reg v Puddick, his Lordship Avory J held that prosecuting counsel should ‘regard themselves’ rather
‘as ministers of justice’ assisting in its administration than as advocates.

2.4.2 Defence Counsel

(a) Accused’s confession
There will be a situation where the accused would confess to the defence counsel of having committed a
particular offence. This confession of the accused to his counsel must be treated with absolute

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 confidence as it amounts to privileged communication. Counsel has a duty not to divulge this
information to court or any persons without the accused’s express consent. In Malaysia,
privileged communication is governed by s 126 Evidence Act 1950.

In Tuckiar v The King (1934), the accused had confessed to the counsel. In his submission the counsel
made statements exonerating the police of any wrong doing and made statements that the
accused was involved in the crime. Upon the jury’s finding a verdict of guilty, the judge
postponed pronouncing sentence, which in this case of an aboriginal, is not necessarily death. On
appeal against the conviction against the accused, the High Court of Australia held that the
action of the prisoner’s counsel in openly disclosing the privileged communication of his client
and acknowledging the correctness of the more serious testimony against the accused is wholly
indefensible. It is the counsel’s duty to respect the privilege attaching to the communication
made to him as counsel, a duty, the obligation of which was by no means which he chose to
make the disclosure. The High Court of Australia having considered this situation as well as
other evidence quashed the conviction and directed that a verdict and judgement of acquittal be
entered.

(b) Plea bargaining

A situation where the defence plea bargain with the prosecuting counsel in criminal matters. The
prosecution and the defence would agree beforehand that the accused would agree to plead guilty
to the charge and the prosecution would agree not to press for a deterrent sentence.

Defence counsel must be completely free to give the defendant the best advice including to advise the
accused to plead bargain.

Pleading guilty is a strong mitigating factor as it shows an element of remorse on the part of the accused,
which may enable the court to give a lesser sentence.

However, the accused should be advised that he/she need not plead guilty unless he has committed acts
which constitute the offence charged. The accused must have the freedom to plead or not to
plead guilty.

In R v Turner (1970), the defendant was charged for theft. Counsel advised defendant to change plea to
one of guilty. Defendant did so and was convicted and sentenced to imprisonment. On appeal,
the court held that there was no evidence that defendant’s counsel exceeded his duty in advising
the defendant to plead guilty. The plea of guilty was a nullity because at the time of agreeing to
plead guilty, defendant was laboring under the impression that the counsel’s advice emanated
from the trial judge as the defendant saw the counsel walking with the prosecutor to the judge’s
chambers to the corridor. The court ruled that the conviction to be set aside and ordered a retrial.

In New Tuck Shen v PP (1982), the accused attempted to retract his plea of guilty after the plea
bargaining went wrong. Initially, the appellant’s counsel had reached an understanding with the
DPP, that in return for the appellant pleading guilty to the charge, DPP would leave the sentence
to the court. In consequence, the appellant pleaded guilty and was convicted by the court. The

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 defence counsel then delivered his plea in mitigation. However, the DPP in his reply, pressed for
a deterrent sentence. The appellant’s counsel protested at the DPP’s conduct and applied to
retract the plea. The court refused to allow and proceed to sentence the accused to 6 months
imprisonment.

Held:
The plea bargaining between prosecution and the defence could only form a ground of appeal if the
accused has been misled as to the consequences of his plea. The onus is on the appellant to
satisfy the court that he has been laboring under such mistaken belief of law or fact at that time
when he pleaded guilty to the charge.

The accused should have known that even if the prosecution had kept to its promise not to press for a
deterrent sentence, such promise will be of little or no use as the power to impose sentence lies
with the court and not with counsel for the prosecution or defence.

The court does not consider itself bound by the private bargaining between prosecution and the defence
as it is not a party and the court is judicially prohibited to participate. The right to impose
punishment on a guilty party is absolutely the court’s discretion. It will exercise that power
judicially but will not tolerate any encroachment by the prosecution or the defence in respect of
that right.

2.5 Duty to opposing Counsel

2.5.1 Duty of fairness to opposing counsel

In Clyne v New South Wales Bar Association (1960) 104 CLR 186, counsel had made unrestrained
and vicious public attack on solicitor which could not be possibly substantiated by the evidence
available to him. The High Court held that Mr Clyne was not a fit and proper person to practice as a
member of the Bar of New South Wales. Mr Clyne was struck off practicing barristers in and for the
state of New South Wales.

2.5.2 Duty not to engage in personal bickering (quarrelling) with opposing counsel in
court
In Beevis v Dawson [1956] 3 All ER 837, in a libel action, there was quarrelling / bickering between
the counsel. The court held that a member of the Bar (advocate) is a helper of administration of
justice. He is there to help the judge to arrive at a proper result in a dispute. Continuous bickering
becomes a burden for everyone in the court as it is impossible for the justice to be done if that goes
on. The immunity enjoys by an advocate will be lost when it is abused by malicious act by the
advocate.

2.5.3 Duty not to cast aspersions (slanders/ accusation) on opposing counsel

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 In Clyne v New South Wales Bar Association (1960) 104 CLR 186 - privilege if abused could be
lost. Counsel in a divorce case had made a vicious and unrestrained public attack on the professional
character of opposing Solicitor. The New South Wales Bar moved a motion to have Clyne to be
struck off the Rolls of NSW. SC upheld.

2.5.4 Counsel acting for a party in a proceedings should not be subpoenaed as witness
unless necessary.
In Wong Sin Chong & Anor v Bhagwan Singh & Anor (1993), the Supreme Court in acknowledging
that although it is the right of a party to procure the attendance of witnesses, this right must be
protected against any oppression or abuse. Where no useful result would be obtained by the
attendance of a witness, the subpoena should be refused.

On the facts, a subpoena was issued on Dato’ Wrigglesworth, the appellant’s solicitors. The Supreme
Court set aside the subpoena and held per curiam that if Dato’ Wrigglesworth were to be blamed
wholly or partly for the professional negligence alleged by the Wongs, then he should properly
be joined as a party in the proceedings and not merely called as witness.

2.6 Duty of Lawyers to Society at Large

S 42(1)(g) of LPA lays down that one of its objects is to protect and assist in public in all matters,
ancillary or incidental to the law.

S 42(1)(i) states that the Malaysian Bar shall make provision for or assist in the promotion of a
scheme whereby impecunious persons may be represented by A&S.

Rajasooria v Disciplinary Comimittee

CONCLUSION
Full responsibilities
To represent the client with full responsibilities whether as a defendant’s or plaintiff's solicitors.
Pre-trial- To advice for “mediation” or reconciliation.
During the trial-To assist the court in providing true facts. Punctuality, honest and competent.
Post-trial or after the judgment- To make sure that the Order made by the Court be obeyed by the
disputed parties. To file an appeal if clients dissatisfied with the decision.

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