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Tutorial 2

Question 1
Critically comments on duties of counsel in Legal Profession by referring to the
article of The Honest Lawyer (1983) 2 CLJ 174
Answer:
1. Lawyers should be honest and never distort the truth for gain
- Honest with his client
- Honest with his opponent
- Honest with the Court
- Above all, he must be honest to himself.
- This means that he has a duty to uphold justice. Therefore, he must never
suppress or distort the truth.
- Examples: A difficult question arises when the lawyers get to know during
the trial itself that his client is guilty. If he then publicly announces his
withdrawal from the case, it may seriously prejudice his client. It may
therefore be his duty to his client to stay in the case, but his conduct of
the case must be regulated by the higher duty not to be a party to a lie.
He must not, assert that his client is innocent, for he knows him to be
guilty. He must not suggest that the witnesses for the prosecution are
telling the truth.
All he can do is to urge that the prosecution have not proved their
case; for even the worst criminal is entitled to require the case to be
proved against him.
2. Lawyers have a duty not to withhold authorities.
- You must tell the truth, whether it hurts your case or not.
- Lawyers are required to make full disclosure of all the binding authorities
relevant to a case as they have a duty to assist the court.
- Although the documents may hurt your case, you must not keep them
back: everything must be put before the Court to enable it to do justice.
- E.g: Sometimes it happens that at the very last moment before the trial,
the client suddenly puts a document into the hands of Counsel which
ought to have been disclosed. The duty of Counsel is forthwith to show it
to the other side even though it hurts his own case.
- Copeland v Smith Buxton LJ and Brooke LJ were 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 relevant
authorities.
3. Lawyers should be fair.
- The country expects it and the Judge require the Lawyers to be fair.
- No counsel is allowed to suggest to the Judge what the sentence should
be.

Farah Farhana Binti Hassan

No counsel must attempt by advocacy to influence the Court towards a


more severe sentence.
E.g: No counsel should allowed to bring up things in the accuseds past
history which are to his discredit, unless the accused man exposes himself
to it.
Md. Samsudin Ismail v Tan Yeow Hwa Counsel who represents
litigants in court should not attempt to spilt words into distinct segment
and take the court on a wrong route to suit his or her agenda just to sway
the court to give a decision in his or her favour.

4. Lawyers should concern about the laws and not the cost/fees
- Lawyers need to advice their clients to go to law when they know or ought
to know he had best stay out of it. (not to go to law unless he must)
- Lawyers must give his best to his client without any thought of his private
gain.
- E.g: He must not let his views be influenced by the thought that, if he
advises a fight, he will earn fees in the course of it. Instead, he must state
the chances of success or failure without regard to his own position.
5. Lawyers must have courage.
- Every counsel for an accused man must carried out his duty diligently to
defend him, no matter how much public opinion is against the man, no
matter how distasteful the task is, no matter how inconvenient to himself,
and no matter how small a fee.
- Rondel v Worsley It is a duty of the counsel to act fearlessly, to raise
every issue, advance every argument and asks every question, however
distasteful, which he thinks will help his clients case.
6. Courtesy
- Lawyers must not only treat the Judge with courtesy, but he must also
treat his opponent with courtesy and the witnesses too.
- Lawyers must maintain good manners.
- Many cases have been won by courtesy and lost by rudeness.

Farah Farhana Binti Hassan