FACULTY OF LAW

NATIONAL UNIVERSITY OF MALAYSIA

ETHICS ASSIGNMENT
NAME
Firm 19
NURADIBA ZARKASYA BINTI MOHD SALLEH
LING XIN JING
RAUDHAH BINTI MAZNAN
NAZRUL FARID BIN AMIRUDIN
Firm 20
MUHAMMAD HANIS BIN ZULKAPLI
NURUL IZZATI BINTI MD RASHID
NGOH JESS LYNN
UMMI AMYRA NATASHA BINTI AZHAR

MATRIC NO.

A146547
A146449
A146481
A146486
A146451
A146458
A146704

Firm 21
FARRAH SALWANI BINTI NAZERI
WOI PUI TEEN
NUR MUSFIRAH BINTI MUSTAK AHMAD
RISAL BIN ABD FIKKAH

A146452
A146471
A146780
A146495

Firm 22
WAN AHMAD HAKIMI BIN AHMAD JAAFAR
NURSYAFIQAH BINTI KHAIRUDDIN
THAM YONG WEN
AMIZA BINTI ABD KAHAR

A146503
A146453
A146480
A146781

Firm 23
JAILANI BIN MOH FARI
ABIR IZZATI BINTI MOHD AZMAN
CANDICE SHIH YUH RU
FATIMAH HANNAH BINTI ABD WAHAB

A146504
A146455
A146485
A146927

Firm 24
LEE AI YIN
NUR SYAHIRA BEGUM BINTI MUHAMMAD SHAHMIR KHAN
MOHAMMAD HAIQAL ASYRAF BIN SUHAIMI
NURFARZANA BINTI ROSLI

A146490
A146456
A145507
A146952

CONDUCT BETWEEN LAWYERS

Lawyers are always on the opposite side of a transaction or of contentious issue. Hence, it is
necessary to have some rules of fair play that control and regulate the conduct of lawyers. A
set of rules has been formulated to keep the relationship between parties measured and even
handed both in contentious and non-contentious method.

(A) Legal Profession (Practice & Etiquette) Rules 1978

1. Based on Rule 12, Advocate and solicitor not to conduct civil case intended to delay
proceedings etc.
An advocate and solicitor shall not conduct a civil case or make a defence which is
intended merely to delay proceedings or to harass or injure the

opposite party or

to work oppression or wrong.

Thus, the lawyers involved in civil cases shall not do something inappropriate to
delay the proceeding as it will harass the opposite party.
2. According to Rule 16, Advocate and solicitor to uphold interest of client, justice and
dignity of profession.
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..

3. According to Rule 18,Advocate and solicitor to conduct with condour, courtesy and
fairness.
The conduct of an advocate and solicitor before the Court and in relation to other
advocates and solicitors shall be characterised by candour, courtesy and fairness.
This is because the lawyers must dealt the matters effectively, fair and courteous so
that they will contribute materially to the end of a case
4.

According to Rule 24, Advocate and solicitor to be ready for the day fixed for trial.

(a) An advocate and solicitor shall make every effort to be ready for trial on the day
fixed.
(b) An advocate and solicitor may apply for postponement of a case fixed for hearing
for good and cogent reasons only.
c) Except in an emergency, it is improper for an advocate and solicitor to apply for a
postponement in the absence of counsel or the other side unless he has given the
counsel concerned at least forty eight hours notice of his intention to make the
application.
Hence, the lawyers should be punctual and ready for the trial.
5.

Based on Rule 31,Advocate and solicitor to uphold dignity of profession.

Every advocate and solicitor shall at all times uphold the dignity and high standing of
his profession.

6.

According to Rule 32, Client's feeling not to influence conduct of counsel.

The feeling existing between clients shall not be allowed to influence counsel in their
conduct and demeanour towards each other or towards parties and their witnesses in
the case.

7.

Referring to the Rule 42, Advocate and solicitor not to communicate with a person
represented by another advocate and solicitor.
An advocate and solicitor shall not communicate with a person upon any matter in
respect of which to his knowledge that person is represented by another advocate and
solicitor except with the other's express consent.
It means that the lawyers should not communicate with a person represented by a
legal practitioner except with the consent of the legal practitioner.

8.

Based on Rule 54, Advocate and solicitor not to appear for a party represented by
another advocate and solicitor.

Where in any matter or proceeding, the name of any advocate and solicitor or the
name of his firm appears on the records for any party, or an advocate and solicitor is
known to be acting for a party in a matter whether in a Court or not, no other advocate
and solicitor shall knowingly agree to appear or to act or continue to appear or to act
for such party in such matter or proceeding unless(a) he obtains the consent of the first-named advocate and solicitor; or
(b) he is satisfied that the proper professional remuneration of the first-named
advocated and solicitor has been paid or he undertakes that the same will be paid; or
(c) he has, in ignorance that such name so appears on the record or that such advocate
and solicitor has been so acting, already agreed to appear or to act for such party and
is unable by reason of circumstances or urgency or the like to refuse to appear or to
act further for such party, without exposing himself to a charge of breach of
professionalduty;or
(d) the first-named advocate and solicitor is unwilling or has refused to act further for
such party, in which event he shall, if so required, protect any lien which the firstnamed advocate and solicitor may have for costs.
9.

According to Rule 57, Extension of time to Plead.

Where an extension of time within which to plead has been given to a party, the
advocate and solicitor representing such party shall, if so required, accept short notice
of trial at the next sitting of the Court, in any case in which, had the pleading been
delivered in the time ordinarily limited for its delivery without any extension, the
party allowing the extension would have been in a position to have given notice of
trial for such sitting.

(B) BAR COUNCIL RULINGS 1997

Refer to the Ruling [H] 6, Accepting Documents On A Without Prejudice Basis.

An advocate and solicitor shall not accept service of documents on a 'without prejudice' basis,
except for good reasons which must be disclosed in writing at the time of such service.

Ruling [H] 7 Courtesy

(a) An advocate and solicitor calling another advocate and solicitor on the telephone should
be on the line first and ready to speak at once.
(b) An advocate and solicitor must promptly reply to correspondence from fellow advocates
and solicitors, the Bar Council, State Bar Committee, clients and former clients.
(c) An advocate and solicitor and his firm shall accept all correspondence from another
advocate and solicitor or another firm.
Ruling [H] 12 Soliciting And Poaching Of Staff
Whilst the concept of mobility of labour is recognized, it is unprofessional conduct for an
advocate and solicitor or his firm to solicit or poach staff of another advocate and solicitor or
firm by means of any inducement or promise of better remuneration or better term and
conditions of employment and without the prior written consent of the other advocate and
solicitor or firm.
Ruling [H] 19 Notice Of Preliminary Objections
(a) An advocate and solicitor shall give written notice, whether by letter, facsimile message or
otherwise, to the advocates and solicitors representing all the other parties in the litigation, of
his intention to raise a preliminary objection during the hearing of any matter before any
court, tribunal or other body authorized to conduct hearings.
(b) Such written notice shall be delivered to the other advocates and solicitors within a
reasonable period before the hearing but not later than 48 hours before the hearing to enable
the said advocates and solicitors to properly prepare themselves and to secure instructions
from their clients with regard to the proposed preliminary objection.
(c) Such written notice shall set out in sufficient detail:

i.

the nature of the proposed preliminary objection

ii.

a list of authorities that counsel moving the court for the preliminary objection
intends to rely on and

iii.

the proposed relief that counsel moving the court for the preliminary objection
will seek before the court in the event that the objection is upheld by the court.

Only in exceptional circumstances may counsel raise a preliminary objection during the
hearing of any matter before a court, tribunal or other body authorized to conduct hearings
without giving written notice as described in paragraphs (i) to (iii) above. In such event,
counsel representing the other parties in the litigation have an automatic right to seek an
adjournment of the preliminary objection. Further, counsel raising the preliminary objection
is precluded from objecting if such a request for an adjournment is made.
(d) Nothing in this Ruling affects the general discretion of the court, tribunal or other body
authorized to conduct hearings to deal with such matters, including making orders on costs.
(e) This Ruling supersedes the ruling made by the Bar Council on 26 April 1991 and comes
into force with immediate effect.
Ruling [H] 20 Exchange Of Legal Authorities
(a) Counsel shall exchange by written notice, whether by letter, facsimile message or by any
other written communication, with counsel representing all the other parties in the litigation,
a list containing all the authorities (with suitable citations)that counsel proposed to rely upon
during the trial or hearing of any matter or cause before any court, tribunal or other body
authorized by law to conduct hearings.
(b) The communication of the said List of Authorities should reach the other counsel within a
reasonable period before the trial or hearing but not later than 48 hours prior to the trial or
hearing to enable the other counsel to consider the authorities specified in the List and to
submit upon them during the trial or hearing.
(c) Where counsel intends to reproduce copies of authorities specified in his List into a
Bundle of Authorities he should endeavor to serve the said Bundle on the other counsel as

soon as it is practicable or convenient, but no later than when the counsel attends the court,
tribunal or body on the day of the trial or hearing but prior to the actual calling of the matter
or cause for disposal.
(d) It is good practice for counsel to agree, whenever possible, to an agreed or joint bundle of
authorities.

(C) COMMON LAW PERSPECTIVE

1. General Obligations
Based on a guide to Good Professional Conduct for Solicitors, Law Society of Ireland, a
solicitor should be honest in dealings with others solicitors. A solicitor must maintain his
personal integrity and observe the requirement of good manners towards other members.

A solicitor should honour his word given personally or by any other members of the solitors
firm in writing. For instances, in matter of undertaking, a copy of written undertaking, would
be an essential proof if there are any complaint.
A solicitor should not threat an opposing solicitor personally. Such a threat has no basis in
law, and accordingly, it is not appropriate to make such a threat.
If the solicitor on the other side made some amendments for one party to a transaction, the
first solicitor should be alerted to the amendments in the covering letter returning the
documents.
2. Communications with the Client of Another Solicitor
A solicitor does not have the right to communicate with any party on the other side of a
matter who, to the solicitors knowledge, has retained another solicitor. However, if a
solicitor has failed to reply in writing to correspondence from another solicitor, then the other
solicitor may be justified in wirting directly to the client of the solicitor.
3. Communication with an In-House Solicitor
In a situation when a company hired an in-house solicitor, the company or the organisation is
usually that solicitors client. If there is ongoing correspondence with in-house solicitor, all

communications should be directed to that solicitor. Other personnel in the organisation

should not be contacted directly.
4. Without Prejudice Communication Between Solicitors
Communication between parties are not previlaged since they are not confidential unless
there is an express or implied agreement that they should be.

The phrase without prejudice when used in correspondence, means that the
correspondence is without prejudice to the writers position if the terms set out are not
accepted by the party to whom the correspondence is addressed. It precludes the production
of that correspondence as evidence of any information thus imparted.
5. Supplying Information on Request to Another Solicitor
A solicitor can only supply information concerning documents in his possesion or furnish
information on a clients file to another solicitor upon receipt of the written instruction from
the client.
6. Transferring Files Between Solicitors

The file transferred should include instructions, briefs, copies of correspondence written to
third parties and documents prepared by third parties for the benefit of the client. Any item
which deals with the substance of the matter and which would assist the new solicitor should
be included. Certain papers belong to the previous solicitor and may be retained by him.
These include letters, papers and documents prepared by that solicitor for his own benefit and
for which he has not charged and does not intend to charge the client.
Next, according to Chapter 7, Code of Professional Conduct for British Columbia, a lawyer
Must:
(a)

reply promptly and completely to any communication from the Society;

(b)

provide documents as required to the Law Society;

(c)

not improperly obstruct or delay Law Society investigations, audits and inquiries;

(d)

cooperate with Law Society investigations, audits and inquiries involving the lawyer or

a member of the lawyers firm;

(e)

comply with orders made under the Legal Profession Act or Law Society Rules; and

(f)

otherwise comply with the Law Societys regulation of the lawyers practice

Lastly, according to Bar Council of Indias website, several principles have been lay out
which are:

(D) RULES ON ADVOCATES DUTY TO OPPONENTS

1. Not to negotiate directly with opposing party
An advocate shall not in any way communicate or negotiate or call for settlement upon the
subject matter of controversy with any party represented by an advocate except through the
advocate representing the parties.

2. Carry out legitimate promises made

An advocate shall do his best to carry out all legitimate promises made to the opposite party
even though not reduced to writing or enforceable under the rules of the Court.

(E) RULES ON AN ADVOCATES DUTY TOWARDS FELLOW ADVOCATES

1. Not advertise or solicit work
An advocate shall not solicit work or advertise in any manner. He shall not promote himself
by circulars, advertisements, touts, personal communications, interviews other than through
personal relations, furnishing or inspiring newspaper comments or producing his
photographs to be published in connection with cases in which he has been engaged or
concerned.
2. Sign-board and Name-plate

An advocates sign-board or name-plate should be of a reasonable size. The sign-board or

name-plate or stationery should not indicate that he is or has been President or Member of a
Bar Council or of any Association or that he has been associated with any person or
organisation or with any particular cause or matter or that he specialises in any particular
type of work or that he has been a Judge or an Advocate General.

3. Not promote unauthorized practice of law

An advocate shall not permit his professional services or his name to be used for promoting
or starting any unauthorised practice of law.

4.An advocate shall not accept a fee less than the fee, which can be taxed under rules
when the client is able to pay more.

5. Consent of fellow advocate to appear

An advocate should not appear in any matter where another advocate has filed a vakalt or
memo for the same party. However, the advocate can take the consent of the other advocate
for appearing.In case, an advocate is not able to present the consent of the advocate who has
filed the matter for the same party, then he should apply to the court for appearance. He
shall in such application mention the reason as to why he could not obtain such consent. He
shall appear only after obtaining the permission of the Court.

(F) CASES FOR RULES THAT GOVERN CONDUCT BETWEEN LAWYERS

Legal Profession Rules 1978

i) Rule 16
Molly Margrete a/p Andrew Gomez v Tan Suat Ching & Anor[2014] 7 MLJ 768
Fact:The respondent appointed the appellant to act as her lawyer in a divorce proceeding in
Kuala Lumpur High Court. However, on 4 October 2010, the respondent had instructed the
appellant not to act for her and further instructed the appellant not to appear in court. Despite
the instruction, the appellant continued to appear in court on behalf of the respondent on all
dates set by the court. The respondent lodged a complaint against the appellant to the
disciplinary board ('DB') which then the board fined the appellant RM3,000. The appellant
filed this appeal, inter alia, on the grounds that the DB failed to take into account that the
appellant was at all times the solicitor on record for the respondent as she was not served with
the notice of change of solicitor as provided by O 64 r 1 of the Rules of the High Court 1980 .
Issue:
Whether there is a breach of rule rule 16 of the Legal Profession (Practice and Etiquette)
Rules 1978 by the respondents?
Held:
Although that rule 16 of the Legal Profession (Practice and Etiquette) Rules 1978 requires
the respondents to uphold interest of her client. It must be noted that the said Rules were
made pursuant to s 77 of Act 166 which clearly provides that failure to comply with any rule
made under that section would make an advocate and solicitor liable to disciplinary
proceedings. Therefore the judge cannot agree with the appellant that just because there is no
notice of change of solicitor was filed, no disciplinary action can be taken against the
respondents, because it is so obvious that the respondent had acted contrary to her client's
interest.

ii) Rule 24 Advocate & Solicitor to be ready for the day fixed for trial

Lai Cheng Chong v Public Prosecutor [1993] 3 MLJ 147 High Court
Fact: In this case, appellant was convicted for an offence under s 20(1)(a) of the Drug
Dependants (Treatment and Rehabilitation) Act 1983 and was sentenced to ten months'
imprisonment. He then sign the notice of appeal to appealed against conviction and sentence
together with a signature and the address of a firm of solicitors of counsel for the appellant.
At the hearing of the appeal, both of the appellant and counsel were absent and the court
adjourned the matter to 27 October 1992. However, a few days before the new hearing date,
the solicitors informed the court by issue a letter to the senior assistant registrar that they
were no longer acting for the appellant as he request to engage new counsel represent
appellant and presence on the new hearing date be excused. Upon the court's instructions,
senior assistant registrar telephoned the office of the solicitors and informed a clerk that
counsel was required to appear in court on 27 October 1992. Both counsel and appellant were
absent again on that date and the matter was adjourned for the second time to 14 November
1992. On that date, a partner in the said firm appeared as counsel for the appellant and
apologized to the court.
Issue :Whether the appellants and counsels failure to appear to the court before the court
hearing having to be postponed, constituted a contempt of court.
Held :
(1) It is a poor justice to dismiss the appeal in default of appearance especially of counsel but
rather the court should protect the litigants right to have his grievance heard. The court
should find ways and means of dealing with the person responsible for the default and one
way is to apply the law of contempt.
(2) By placing themselves on record in the notice of appeal as representing the appellant, the
solicitors had a duty to ensure that the appellant attended with counsel before the court. Their
failure to do so which resulted in the hearing having to be adjourned, had effected the course
of justice and its administrative whereby a prima facie case of contempt had been made out.
(3) However, due to the conflicting versions of events between the appellant and counsel as
to the reason which led to their non-appearance, the court gave the benefit of the doubt to
both of them and made no order as to contempt of court since its proceedings are penal in
nature. The court also took into account both of them meant no disrespect and had

apologised to the court as well as the fact that this was the first time circumstances such
as these had been considered as constituting contempt.
Therefore, by applying the rule of 24, the appellants solicitor should have apply for
postponement of a case fix for hearing first instead of writing a letter to senior assistant
registrar informing that they were no longer lawyer to the appellant and request the new
lawyer to present to the court for hearing.

iii) Rule 32
Tanjong Marina Management Sdn Bhd v Penang Port Sdn Bhd [2014] 10 MLJ 120
Fact : The defendant applied to disqualify the firm of advocates and solicitors, Messrs BH
Lawrence & Co from representing the plaintiff in this action on the grounds that one of the
partners of the firm, namely Mr BH Lawrence was an executive director of the plaintiff who
was actively involved in the transactions and the dispute between the plaintiff and the
defendant. All affidavits filed in all proceedings were affirmed by BH Lawrence as the
executive director of the plaintiff. The defendant alleged that the involvement of the firm in
this action will raise a conflict of interest as the firm had the direct pecuniary interest since its
partner was an executive director who had pecuniary interest in the plaintiff. The defendant
submitted that the representation of the firm for the plaintiff contravened rule 3, 4, 5(a), 7(b),
27, 28, 29 and 32 of the Legal Profession (Practice and Etiquette) Rules 1978. The plaintiff
contended that rule 6.04 of the Bar Council Rulings ('BCR') allows a law firm to act for its
partners in respect of a personal claim by or against that partnerthat and rule 6.08 of the BCR
allows an advocate and solicitor who is a director of a company to act on behalf of his
company.
Issue: Whether the representation of Messrs BH Lawrence & Co for the plaintiff in this
action contravenes rules in Legal Profession (Practice and Etiquette) Rules 1978?
Held:If BH Lawrence were to appear personally for the plaintiff when he himself was an
executive director of the plaintiff and was directly involved in the whole dispute in this case,
the elements of the direct conflict of interest and the probable embarrassment, the inability to
maintain the professional conduct, professional independence on account of his personal and
direct pecuniary interest in the case as well as the probability that he may be the material

witness for the plaintiff being its executive director and person who had sworn all the
affidavits filed for the plaintiff, based on the rules in the LPR, BH Lawrence would
undoubtedly be unable to act and perform the duties and functions of an advocate and
solicitor professionally with his personal pecuniary interest being directly involved.

iv) Rule 56
RHB FINANCE BHD v CN CORPORATE NETWORK (M) SDN BHD [2000] 5 MLJ
686
Facts:
There were six defendants in this case. The writ of summons and statement of claim were
served on the first defendant on 27 March 1998, second defendant on 3 April 1998 and third
defendant on 1 April 1998. All three defendants were represented by solicitors who entered
appearance for them on 9 April 1998. The affidavit of service in respect of the defendants was
filed on 13 May 1998 but it is to be noted that there is no date to show when it was in fact
affirmed. On 27 November 1998, the solicitors for the defendants obtained a discharge but
the said fair order was only filed on 4 January 1999. The case was fixed for case management
on 5 January 1999 when both counsel appeared. The counsel for the defendants confirmed
that he was still on record as the fair order had not as yet been extracted from the registry.
The court then fixed 3 February 1999 for case management. This court had sent out a notice
to both solicitors on 26 January 1999 informing them that the case management fixed for 3
February 1999 had been postponed to 22 February 1999 as the court was on leave. This court
then by a letter dated 11 February 1999 informed the plaintiff's solicitors and the defendants
to attend on 22 February 1999. However the plaintiff had obtained judgment in default of
defence on 4 February 1999. The defendants applied to set aside the in default judgment. The
learned senior assistant registrar allowed the application and gave the defendants 14 days to
file the defence. Plaintiff's appeal against that decision.

Issue:
Whether the plaintiffs solicitor are bound to served notice pursuant to the rule 56 of the
Legal Profession (Practice and Etiquette) Rules 1978?

Held:
If the court had proceeded with the case management on 3 February 1999, certainly the
plaintiff would not have been able to obtain judgment in default of defence since the
defendants' counsel would have been present or at least the defendants would have been
present. Since there is no evidence before the court as to when the fair order in respect of the
discharge of the defendants' former solicitors was extracted and served on the plaintiff's
solicitors and since as at 5 January 1999 when both counsel appeared before court, the fair
order in respect of the discharge had not been extracted, therefore the judge was of the view
that as the defendants' solicitors were still on record it was the duty of the plaintiff's solicitors
to have given the usual statutory notice pursuant to rule 56 of the Legal Profession (Practice
and Etiquette) Rules 1978.

Kang Hock Hin v Tan Bon Kiat[2015] MLJU 926

Fact :Plaintiff applied to set aside the Judgment In Default of defence of the counterclaim
against the Plaintiff because The Plaintiff contends that the 1st Defendant did not comply
with Rule 56 of the Legal Profession (Practice and Etiquette) Rules 1978 by failing to give
the Plaintiffs solicitor 7 day notice of his intention to enter Judgment In Default against the
Plaintiff. Hence the Judgment In Default of defence obtained was irregular and should be set
aside.
Issue: Whether breach of R56 LPR renders the Judgment In Default of defence an irregular
Judgment.
Held: the Judgment In Default of defence obtained against the Plaintiff by the 1st Defendant
on 26.10.2014 was a regular Judgment. Breach ofRule 56 of the Legal Profession (Practice
and Etiquette) Rules 1978 does not render the Judgment In Default of defence an irregular
Judgment. It is clear that the Judgment In Default of defence was obtained against the
Plaintiff due to the fault of the solicitor acting for the Plaintiff. In such circumstances, the
Plaintiff should not be punished for the mistake of the solicitor.

LAWYERS CONDUCT TOWARDS COURT

(A) Legal Profession (Practice & Etiquette) Rules 1978
1) Rule 3 of the Legal Profession (Practice & Etiquette) Rules 1978, it is stated that
advocate and solicitor cannot accept brief if embarrassed. This rule indicates that lawyers are
not supposed to represent a case if he is aware that will cause him embarrassment.
Embarrassment means he is in possession of confidentiality information as the result of
previously advised another person in regards of the same matter and there is some personal
relationship between him and any party of the proceeding.
In simple manner, Rules 3 is regarding the prohibition of lawyers to represent a case if there
is or would have conflict of interest.
Under Rule 10 of the Law Society of New South Wales Uniform Conduct, Practice and
CPD for Solicitors 2015, the solicitor and law practice must avoid conflicts between the
duties owed to current and former clients except such situation whereby a written consent has
been made by the former client and an effective information barrier has been made.
As comparison, Rule 3 of Legal Profession (Practice & Etiquette) Rules 1978 did not stated
any exception to the general rule meanwhile the Rule 10 of The Law Society of New South
Wales Uniform Conduct, Practice and CPD for Solicitors 2015 give exceptions towards the
general rule via consent and change of law.
This can be seen in the case of Cuyler v. Sullivan whereby the defendants alleging a conflict
of interest in cases in which multiple defendants are being represented by the same attorney
in the same matter must demonstrate an actual conflict that adversely affected the
outcome. The court held that defendant must show that he there was an actual conflict that
adversely affected his case.
2) Rule 4 of the Legal Profession (Practice & Etiquette) Rules 1978 stated that advocate
and solicitor are not supposed represent a case if they are aware that the representation might
damage their reputation.

Under Rule 5 of the Law Society of New South Wales Uniform Conduct, Practice and
CPD for Solicitors 2015 it is stated that a solicitor must not engage in anything that might
diminish the public confidence and bring the profession into disrepute. As comparison, both
rules emphasize that solicitors are responsible in handling their reputation.
3) Rule 5 of the Legal Profession (Practice & Etiquette) Rules 1978 basically stated that
solicitors should not accept brief that may tarnish their professional independence or interest
of justice.
Under Rule 3 of the Law Society of New South Wales Uniform Conduct, Practice and
CPD for Solicitors 2015 stated that a solicitors duty to the court and the administration of
justice is paramount and prevails to the extent of inconsistency with any other duty. Under
Rule 4 of the Law Society of New South Wales Uniform Conduct, Practice and CPD for
Solicitors 2015, solicitors also must fulfil other fundamental ethical duties such as avoiding
compromise to their integrity and professional independence. As comparison, it proves that
both rules emphasize that the integrity of a lawyer is important.
4) Rule 6 of the Legal Profession (Practice & Etiquette) Rules is regarding the availability
of solicitors to represent their client and there shall be no withdrawal from the engagement
made. This indicates that once the retainer has been signed, then without solid reasoning, the
solicitors cannot cancel the engagement made with the client.
Rule 11 of the Law Society of New South Wales Uniform Conduct, Practice and CPD for
Solicitors 2015 is regarding the conflict of duties concerning the current clients. One of the
duties is to prepare the best for the interest of their clients. As comparison both rules stated
something regarding the interest of clients. This is because integrity of the lawyers relied
upon how they treated their client
5) Rule 8 of the Legal Profession (Practice & Etiquette) Rules stated that advocate and
solicitor should exert the best effort in the assignment and not find any excuse in doing the
best. Rule 11 of the Law Society of New South Wales Uniform Conduct, Practice and
CPD for Solicitors 2015 stated that conflict of duties concerning current clients. Exerting the
best efforts can also be seen in the rule which proves that either Malaysia or Australia,
consider the interest of lawyer is something important.

6) Rule 12 of the Legal Profession (Practice & Etiquette) Rules stated that solicitors
should not handle cases purposely to delay the proceeding. Lawyers should be bona fide in
managing their case not doing anything oppressive towards the oppressive party.
Rule 5 of the Law Society of New South Wales Uniform Conduct, Practice and CPD for
Solicitors 2015 stated about dishonest and disreputable dispute. Solicitors should not do
something against the proper conduct of practice that demonstrates the solicitors are not fit to
practice law. As comparison, in Malaysia the rules prohibit the usage of oppression towards
the opposite parties meanwhile the rule in Australian is general whereby the solicitors should
not do something that makes them as persons that unfit to practice law.
7) Based on Rule 13 of the Legal Profession (Practice & Etiquette) Rules, an advocate and
solicitor must prevent against being channel with questions for which intended to insult and
annoy and to exercise his own judgement as the substance and form the questions put.
8) In regards with the irrelevant questions, in Rule 14 of the Legal Profession (Practice &
Etiquette) Rules, any questions which will affect the credibility shall not be asked unless the
cross-examiners has the relevant reasons that the imputation is true and if it is relevant to the
actual inquiry.
9) Under Regulation 41 of Australian Legal Profession Conduct Rules 2010, a practitioner
must not confer with a witness, including a party or client, called by the practitioner on any
matter related to proceedings while that witness remains under cross-examination unless the
cross-examiner has consented beforehand to the practitioner conferring with the witness or
the practitioner believes on a reasonable grounds that special circumstances require the
practitioner to confer with the witness.
10) Respectful attitude shall be maintained by the advocate and solicitor towards the Court in
respect to Rule 15 of the Legal Profession (Practice & Etiquette) Rules.
According to the Nigeria Legal Practitioners Act, under Rule 1(a), it is the duty of the
lawyer to maintain towards the Court respectful attitude, not for the sake of the temporary
incumbent of the judicial office, but for the maintenance of its supreme importance. Judges,
not being wholly free to defend themselves, are peculiarly entitled to receive the support of

the Bar against unjust criticism and clamour. Where there is proper ground for serious
complaint of a judicial officer, it is the right and duty of the lawyer to submit his grievances
to the proper authorities. In such cases, but not otherwise, such charges should be encouraged
and the person making them should be protected.
11) According to Rule 16 of the Legal Profession (Practice & Etiquette) Rules, an
advocate and solicitor shall uphold the interest of the client, the interest of justice and dignity
while acting with all the courtesy to the trial in which he appears without any regard to any
bad consequences either to himself or to anyone. Under Bar Council of India Rules, in Rule
5, it shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair
and honourable means. An advocate shall do so without regard to any unpleasant
consequences to himself or any other. He shall defend a person accused of a crime regardless
of his personal opinion as to the guilt of the accused. An advocate should always remember
that his loyalty is to the law, which requires that no man should be punished without adequate
evidence.
12) Any advocate and solicitor shall not deceive anyone while having trial in Court as stated
in Rule 17 of the Legal Profession (Practice & Etiquette) Rules.
Under Rules of Professional Conduct of Canada, when acting as an advocate, a lawyer
shall not knowingly attempt to deceive a tribunal or influence the course of justice by
offering false evidence, misstating facts or law, presenting or relying upon a false or
deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any
fraud, crime, or illegal conduct.
13) In Rule 18 of the Legal Profession (Practice & Etiquette) Rules, the conduct before the
court by any advocate and solicitor and it is in relation to other advocates and solicitors shall
be in all honesty, courtesy and fairness and facts in which not proved shall not be referred to.
Under Nigeria Legal Practitioners Act, the conduct of the lawyer before the Court and with
other lawyers should be characterized by candour and fairness; and the lawyer should in court
inform the presiding judge of subsisting decided cases even where the decision is against his
client. It is not candid or fair for the lawyer knowingly to misquote the contents of a paper,
the testimony of a witness, the language or the argument of opposing counsel, or the language

of a decision or a textbook; or with knowledge of its invalidity, to cite as authority a decision

that has been over-ruled, or a statute that has been repealed; or in argument to assert as a fact
that which has not been proved, or in those jurisdictions where a side has the opening and
closing arguments, to mislead his opponent by concealing or withholding in his opening
argument positions upon which his side intends to rely.
14) Based on Rule 19 of the Legal Profession (Practice & Etiquette) Rules, any advocate
and solicitor cannot refer to any facts of the case that he is not in position to prove while
opening a case.
It is likely the same with Rule 4 of Nigeria Legal Practitioners Act in which there is stated
that a member of the Bar must not promote a case which to his knowledge is false, nor should
he file a pleading or other document which, he knows to be false in whole or in part, or which
is intended to delay the trial. A lawyer should not offer evidence which he knows the Court
would reject, in order to get the same before the jury by arguments for its admissibility; nor
should he address to the Judge arguments upon any point not properly calling for
determination by him.
Legal Profession (Practice & Etiquette) Rules 1978
15) Rule 20 of the Legal Profession (Practice & Etiquette) Rules stated that advocate and
solicitor to provide relevant binding decision relate to their

case whether for or against

them. It also applies for ex parte proceeding.

16) Rule 21 of the Legal Profession (Practice & Etiquette) Rules stated that it is improper
for advocate and solicitor knowingly misquote content of paper, witness, argument against
opponent, language of textbook. They also cannot use overruled or statue that has being
repealed. Counsel cannot use an argument which not being proved. Lastly, counsel cannot
mislead his opponent concealing or withholding in his opening speech positions upon which
he intends to reply.
In Cheah Cheng Hock v PP, the advocate has misled the trial by concealing a document. The
counsel convicted for Contempt of court.

17) Rule 22 of the Legal Profession (Practice & Etiquette) Rules stated that if counsels
discover a new proposition of law or case after conclusion of evidence or argument, while
judgement is not given yet. They must bring it to court and opponent, opponent must accept it
even against them. If opponent do not want to accept, counsel must submit additional
authority and proper cause to the court and opponent for comment.
18) Under Rule 23 of the Legal Profession (Practice & Etiquette) Rules, counsel must
bring all relevant information related to case and possibility of settlement.
Surah An-Nisa:135 O you who believe stand out firmly for justice as witness to Allah even
as against yourselves or your parent or you kin and whatever it be against rich or poor. The
proper conduct also had being promoted by Islam in uphold the true justice.
19) Rule 24 of the Legal Profession (Practice & Etiquette) Rules, counsel must make all
effort to attend for trial and only may apply for postponement for a good reason. It will be
improper to apply for postponement if the opponents counsel not available, unless he has
given his opponent 48 hours notice for the application.
In case of PP v Mokhtar Abd Latif, the case had being postponed for 14 times and it show
improper conduct of lawyer to postponed case for such number.
20) Based on Rule 31 of the Legal Profession (Practice & Etiquette) Rules, advocate and
solicitor shall at any time uphold the dignity and high standing of his profession.
21) Rule 32 of the Legal Profession (Practice & Etiquette) Rules provides that the feeling
existing between clients, shall not to be allowed to influence counsel in their conduct, and
demeanour towards each other, or towards parties and their witnesses in the case.
In the case of Kwan Yoon Fatt & Sons Sdn Bhd & Anor. V. Trends Building Sdn. Bhd. &
Ors, it was stated that counsel would do well to remember that as officers of the Court, they
have an overriding duty to the Court not to ambush their opponents with highly technical
points whose effect is only to cause needless embarrassment, expense and delay.

22) According to Rule 33 of the Legal Profession (Practice & Etiquette) Rules, all adverse
witnesses and parties are to be treated fairly and with due consideration by every advocate
and solicitor. Also, the advocate and solicitor shall not minister to the malevolence or
prejudices of a client in the conduct of a case.
Based on Nigerias Rules of professional Conduct for Legal Practitioners, 2007, Rule
32(3)(b) a lawyer shall not ask any question that he has no reasonable basis to believe is
relevant to the case, and that is intended to degrade a witness or other person.
Referring to Bar Council of India Rules, Part VI Rules Governing Advocates, Chapter II
on the Standards of Professional Conduct and Etiquette, Section I (4) states that an
advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or
unfair practices or from doing anything in relation to the court, opposing counsel or parties
which the advocates himself ought not to do. An advocate shall refuse to represent the client
who persists in such improper conduct.
23) Rule 36 of the Legal Profession (Practice & Etiquette) Rules provides that whatever
conducts an advocate and solicitor is not supposed to do, particularly towards the court and
judicial officers, jurors, witnesses, and parties, the advocate and solicitor shall use his best
efforts to prevent his client from doing such conducts, and he may terminate their relationship
if his client still persists in doing so.
Similarly, based on Nigerias Rules of professional Conduct for Legal Practitioners, 2007,
Rule 30 provides that a lawyer is an officer of the court and shall not do any act or conduct
himself in any manner that may obstruct, delay or adversely affect the administration of
justice. Also, Rule 36(e) states that a lawyer shall not engage in undignified or discourteous
conduct which is degrading to a Court or tribunal.
In the case of Re Zainur Zakaria, it is said to be superfluous to state that an advocate and
solicitor must conduct himself in court within the confines of law. Whatever may be the duty
of an advocate and solicitor to his client his duty to the court remains paramount in the
administration of justice. Based on definition given by Rule 36 of the Legal Profession
(Practice & Etiquette) Rules, it is therefore a fallacy for an advocate and solicitor to assume

that just because he is acting on instructions from his client he cannot be punished for
contempt whenever he is saying or reading something based on such instructions.
24) Rule 56 of the Legal Profession (Practice & Etiquette) Rules states that where the
name of the advocate and solicitor or his firm (Party A) appears on the court record, or the
fact of representation is known to the other side, no advocate and solicitor representing the
other party to the proceedings shall enter judgement by default against the client of Party A,
or to take advantages of delay in pleading or filing documents in the nature of pleadings, or in
taking any necessary steps or in complying with any other in the proceedings by Party A,
unless he shall have given to Party A written notice of his intention to do so, and seven days
shall have elapsed after the delivery of such notice to Party A.
25) Based on Rule 57 of the Legal Profession (Practice & Etiquette) Rules, the advocate
and solicitor representing the party who was granted an extension of time within which to
plead, shall accept short notice of trial at the next sitting of the court, if required. But if the
pleading had been delivered in the time ordinarily without any extension, the party allowing
the extension would have been in a position to have given notice of trial for such sitting.
26) According to Rule 58 of the Legal Profession (Practice & Etiquette) Rules, if any
document is not or is not sufficiently stamped, it is against etiquette to object the
admissibility solely on that ground, unless such objection goes to the root of the subject of the
matter of the suit.

LAWYERS CONDUCT TOWARDS CLIENTS

(A) Legal Profession (Practice & Etiquette) Rules 1978
As a comparison, we will compare and extract the rules governing the conduct and etiquette
of an advocate and solicitor in Australia that is The Law Society of New South Wales,
Revised Professional Conduct and Practice Rules into our Malaysian provisions.
1. Under Rule 3, an advocate and solicitor can not to accept brief if embarrassed. It
requires that a solicitor should not act against a party where he or she has obtained
confidential information from that party relevant to the current matter received as a
result of a previous solicitor/client relationship and where that information could
reasonably be perceived by the former client to be able to be used to his or her
detriment in the proceedings.
This rule had been similarly stated in Rule 3 of the New South Wales Revised
Professional Conduct and Practice Rules which mention about acting against
former client. A practitioner has to preserve the confidentiality of a clients affairs, a
practitioner must not accept a retainer to act for another person in any action or
proceedings against, or in opposition to, the interest of a person whom the practitioner
or the firm, of which the practitioner was a partner, has acted previously and whom
the practitioner or the practitioners firm has thereby acquired information
confidential to that person and material to the action or proceedings
2. Rule 4 stated that no advocate and solicitor shall accept a brief in a case where he
knows or has reason to believe that his own professional conduct is likely to be
impugned. For such, a lawyer should withdraw and entrust the conduct of the case to
another lawyer if he is required to testify which testimony might impugn his
profession as an advocate and solicitor.
3. Besides that, Rule 5 mentioned that no advocate and solicitor to accept brief if
difficult to maintain professional independence. An advocate and solicitor should
discharge their duties as an advocate and solicitor when a conflict of interest arose
involving parties that they have previously advised or information obtained which
may be detriment to those parties if the advocate and solicitor appear in proceedings
to present the opposite party. But, he can proceed if he obtain a consent in writing
from the first party.

For example, in the case of Yong & Co v. Wee Hood Teck. In this case, an advocate
and solicitor have failed to discharge their duty as conflict of interest arose when they
acted for all three parties i.e. for the Bank, the developer and the borrower.
To compare, in Rule 10 of the NSW Rules, it stated on avoiding a conflict between a
clients and a practitioners own interest. A practitioner must not, in any dealings with
a client allow the interests of the practitioner or an associate of the practitioner to
conflict with those of the client and exercise any undue influence intended to dispose
the client to benefit the practitioner in excess of the practitioners fair remuneration
for the legal services provided to the client
4. Rule 6 provided that an advocate and solicitor not to accept brief if unable to appear
unless he is reasonably certain of being able to appear and represent the client on the
required day. An advocate and solicitor cannot withdraw themselves after they have
agreed to represent the client on the required day unless there is a reasonable ground
such as briefs.
This has some similarity as in Rule 5.2 of the NSW Rules which is about the
termination of retainer. A practitioner, who has accepted instructions to act for a
Defendant required to stand trial in the Supreme Court or the District Court for a
criminal offence, must not terminate the retainer and withdraw from the proceedings
on the ground that the client has failed to make arrangements satisfactory to the
practitioner for payment of the practitioners costs, unless the practitioner has served
notice in writing on the client of the practitioners intention to terminate the retainer
and withdraw from the proceedings at the expiration of seven (7) days if the client
fails, within that time, to make satisfactory arrangements for payment of the
practitioners costs, and delivered a copy of that notice to the Registrar of the Court in
which the trial is listed to commence.
5. Other than that, in Rule 9, it required an advocate and solicitor to undertake defence
fairly and honourably. He has to present every defence that the law permits and to
undertake the defence of a person accused of an offence regardless of his personal
opinion as to the guilt or otherwise of the accused. It means that an advocate and
solicitor assigned as counsel or advocate and solicitor in any civil or criminal matter
shall not ask to be excused for any trivial reason and shall always exert his best effort
in that assignment.

There is no same provision as in the NSW Rules but still can relate it with Rule 23
which is concerning the Advocacy Rules. Under paragraph A33, a practitioner
retained to appear in criminal proceedings whose client confesses guilt to the
practitioner but maintains a plea of not guilty may cease to act, if there is enough time
for another practitioner to take over the case properly before the hearing, and the
client does not insist on the practitioner continuing to appear for the client or if the the
practitioner continues to act for the client, must not falsely suggest that some other
person committed the offence charged; he must not set up an affirmative case
inconsistent with the confession; but he may argue that the evidence as a whole does
not prove that the client is guilty of the offence charged; he may argue that for some
reason of law the client is not guilty of the offence charged: or he may argue that for
any other reason not prohibited and the client should not be convicted of the offence
charged.
6. In Rule 16, it provided that an advocate and solicitor to uphold interest of client,
justice and dignity of profession. He shall act with all due courtesy to 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. The
duty to protect the clients interest however shall be balanced with the needs to uphold
justice and therefore, the act of hiding facts and evidences to protect the guilty client
is clearly against the lawyers professional ethics.
7. Rule 24 mentioned that an advocate and solicitor to be ready for the day fixed for
trial. They shall make every effort to be ready for trial on the day fixed by the court
and if they want to postpone the case, the must have a good and cogent reasons only.
In case of emergency, it is improper for an advocate and solicitor to apply for a
postponement in the absence of counsel or the other side unless he has given the
counsel concerned at least forty eight hours notice of his intention to make the
application. This is to show that the advocate and solicitor must be professional and
have a courtesy to inform their absence to the other side counsel. By giving notice, the
other side party will be well inform about their postponement.
8. Besides that, Rule 25 required an advocate or solicitor to disclose all circumstances to
client. They have to disclose to the client all the 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. This is to prevent the advocate and solicitor to have
conflict of interest with their client.
To compare, in Rule 1 of the NSW Rules, a practitioner must disclose all the
circumstances unless in which the disclosure of the information required by Sections
175 and 177 of the Act will be considered to be not reasonably practicable

9. While Rule 31 stated that an advocate and solicitor shall at all times uphold the
dignity and high standing of his profession. This has some similarity with Rule 16 of
the Malaysian Legal Profession (Practice and Etiquette) Rules 1978.

10. Rule 35 provided that an advocate and solicitor not to abuse confidence reposed in
him by client. They shall refrain from any action whereby for his personal benefit or
gain he abuses or takes advantage of the confidence reposed in him by the client.
Besides, an advocate and solicitor shall preserve his client's confidence and this duty
outlasts his employment.
11. In Rule 40, it stated that an advocate and solicitor not to stand surety on behalf of
their client. This is for the purpose of any legal proceedings. The same apply for the
bailor too.
Rule 40 has some similarity with Rule 22, paragraph 22.2 of the NSW Rules where
it stated that a practitioner must not become the surety for the practitioners clients
bail.
12. And lastly, in Rule 55 which concern about the advocate and solicitor's lien. An
advocate or solicitor shall not withhold the clients papers to the detriment of the
client, except by way of securing his first to a lien. This can be seen in the case of Ng
Poh Kwang v Tan Chuan Yong & Ors [2013] 7 CLJ 735 which will be discussed in
the later part.
This Rule has some similarity with Rule 18 of the NSW Rules about the ownership
of the cliens documents. Under paragraph 8.2, a practitioner must retain, securely
and confidentially, documents to which a client is entitled, for the duration of the

practitioners retainer and at least six (6) years thereafter, or until such time as the
practitioner gives them to the client or another person authorised by the client to
receive them, or the client instructs the practitioner to deal with them in some other
manner.
While under paragraph 8.3, upon completion or termination of a practitioners
retainer, a practitioner must, when requested so to do by the practitioners client, give
to the client, or another person authorised by the client, any documents related to the
retainer to which the client is entitled, unless the practitioner has completed the
retainer; or the client has terminated the practitioners retainer; or the practitioner has
terminated the retainer for just cause and on reasonable notice; and the practitioner
claims a lien over the documents for costs due to the practitioner by the client.

(B) Bar Council Rulings 1997

1. Ruling [H] 10 Courtesy
Under Bar Council Ruling 1997, Ruling [H] 10 is regarding courtesy. This ruling
emphasize that an advocate and solicitor must promptly reply to correspondence from
fellow advocates and solicitors, the Bar Council, State Bar Committee, clients as well
as former clients.

(C) Malaysian Perspective

1. Rule 3 and Rule 5 of the Legal Profession (Practice and Etiquette) Rules 1978
Dato Sri Bala Krishnan Vellasamy & Ors v CityTeam Media Sdn Bhd & Anor [2015] 4
CLJ 247
Court:
High Court of Malaya Kuala Lumpur
Facts Of the Case:
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 time is
also the shareholder and director of the first defendant company at the time the alleged
defamatory articles were published. Plaintiff claims that Ms Saraswaty 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 plaintiff can disqualify the learned counsel and the law firm on record of the
defendants for breach of provisions of the LPPER?
Judgement:
First question to be answered is what is the purpose, object and intent of the LPPER. The
court referred to the case Vijayalakshmi Devi Nadchatiram v Saraswathy Devi Nadchatiram
[2000] 4 CLJ 870 where it said that the objective of the provision lies in the fact that the Bar
had set a high standard of practice. An advocate and solicitor before advising a client must
not be in a position such that he has ties of personal relationship with his clients. This is
intended as to ensure that when the acting for the client he is independent and free and able to
perform the duty as an officer of the court.

Next the court referred to the case of Black v Taylor which explained that the court has power
to prevent a barrister in acting as a counsel if he has conflict of interest and justice would not
be seen to be done.
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 circumstances, 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 Rule 5 have been or will be breach. Hence Ms Saraswathy and the firm
are disqualified for acting in the matter.

2. Rule 16 LPPER 1978

Molly Margrete Andrew Gomez v Tan Suat Ching; Majlis Peguam Malaysia (Intervener)
[2014] 8 CLJ 536
Court:
High Court of Malaya Kuala Lumpur
Facts of the Case:
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 Malaysian 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 Legal Profession Act 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 LPPER 1978

Ng Poh Kwang v Tan Chuan Yong & Ors [2013] 7 CLJ 735
Court:
High Court of Malaya Kuala Lumpur
Facts of the Case:
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 10th 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 3rd defendant
informed the plaintiff that unless the outstanding bills were settled, the 3rd defendant would
bot 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 OLB was not the respondent but MB Properties was, 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
discharge.
The court also referred to the case of Trikkon Sdn Bhd v Mahinder Singh Dulku [2010] 5 CLJ
850 where the learned Chew Soo Ho JC adopted the same principle. His lordship analysed
two English cases of Hughes v Hughes [1958] Probate Division 224 CA and In re London,
Brighton and Sounth Coast Railway Company [1968] Equity Cases Vol VI 325 which stated
that a solicitor has a lien to retain the files for taxation of costs or settlements of costs.
The principle of law quoted above is in line with Rule 55 of the LPPER, thus the defendants
could not be held to have breached Rule 55 thereof.

(D) Common Law Perspective

Duty of Confidentiality
A lawyer has a duty to keep confidential information passed to him by his client and others in
certain prescribed situations. A lawyer is bound to this duty under the contract of retainer and
common law.
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. For
example, a lawyer needs to file court documents in required period or reply the
correspondence within the period.
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
Always bear in mind that 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.

2. Duty of honesty
The lawyer must act accordingly to his duty. This means that the lawyers have a duty
to inform his clients fully about the nature of their cases. He should not be clouded
with his own personal desire or motive to dictate his advice to the client.
3. Duty to avoid conflicts of interest
The general rule regarding this duty is 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 interests, or
former clients interests conflict with the (the lawyer that would like to represent the
client)s 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, clients can agree to or waive
their lawyers conflict of interest situation, but this is not common)
4. 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.
5. Duty to prefer clients interest

At all times, lawyers are bound to uphold the interest of the client. The scope of duty
include 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.
6. 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 reasonableman. However, it may be varied when it
involves a person exercising professional skills.

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 Legal Profession Act
1976, Section 117 states on costs recoverable from client by other person not attested.
Although Section 116 allows advocate and solicitor to enter agreement costing
contentious business but in Subsection 117(4) states that and advocate and solicitor shall
not be liable for negligence in any such agreement.
2. Liability of Breach
There are cases in which the Courts have found solicitors have been 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 an 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 judgement 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 states 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
1893, is one of those statues.
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.

There are preventive measures that can be taken by solicitors in which he should at least
do the following:
1. Gather and read all the available facts carefully;
2. Check the law to ensure that you are up to date;

3. Keep some form of diary system to remind yourself of the relevant time
frames involved.
4. Do not take on an area of work with which you are not familiar or competence
without adequate guidance no matter how lucrative it may be to you or your
firm.

Duty to avoid conflict

Re a Firm of Solicitors [1995] 3 All ER 482
In the case of Re a Firm of Solicitors, 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.
The Rules tells barristers not to accept a brief which would professionally embarrass them
because there is a conflict of interest between the clients. If a solicitor acts for a client who is
suing a former client of the firm, then the solicitor may have access to useful confidential
information about the latter. Similarly, the Common Law laid down the principle that a
solicitor should not act for the new client unless the firm can successfully erect a Chinese
wall which prevents all possibility of leakage of confidential information taking place.

Professional negligence and liability of breach

The landmark case of professional negligence is case Esso Petroleum Co. Ltd v Mardon
[1976] QB 801 (CA) In this case, principle laid down is a person who has special knowledge
or skill, makes a representation by virtue thereof to another be it 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 present, as an advocate and

solicitor 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.
The question of solicitor's liability for holding out and his negligence in failure to inform
material information has also been considered in the case of Crossan v Ward Bracewell &
Co (1989) 5 PN 103. Here 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 to inform them about the proceedings. Besides that, the third
party claim also had to be borne by the plaintiff. The court held that:
1
1

the solicitor had held himself out as a man able to offer some advice;
the solicitor had explored the possibility of obtaining legal aid, but failed to

consider the possibility that the insurer might pay off the plaintiff's litigation; and
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.

Duty of care and the Standard duty of care

1. Objective test
The objective test was adopted in the case of Rogers v Whitaker [1992] HCA 58 where 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.
2. Subjective test

While in the case of Midland Bank v Hett, Stubbs & Kemp [1979] Ch. 384 (Ch), 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 regard 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.
Fiduciary duty
The fiduciary relationship which exists between the client and the solicitor. The recent
developments in Caparo Industries plc v Dickman7 [1990] 2 AC 605 appear to introduce a
new face in the interpretation of the doctrine of special relationship affecting professionals.
In the case of Edwards v Lee [1991] New LJ 1517 a solicitor who was asked to provide a
business reference on behalf of a client was held to be in special relationship with the person
seeking the reference. The first plaintiff, Mr Ed-wards, advertised for sale of a car owned by a
company in which he and his wife had an interest. The only response was a call from Mr
Hawkes who offered to sell the car for Mr Edwards at an agreed price on the basis that the
plaintiffs would retain title to the car and Mr Hawkes would return it if it remained unsold
after 28 days. Mr Hawkes took the car away but Mr Edwards became suspicious about the
arrangement when a potential purchaser, Mr Folley, rang him to tell him that he had been
offered the car by Mr Hawkes at con-siderably less than the agreed value. Mr Hawkes then
suggested that Mr Edwards contact the defendant, Mr Julian Lee, who was his solicitor, for a
reference. At the time Mr Hawkes was on bail on 13 charges of dishonesty relating to the
sale of cars valued at 240,000 for owners in transaction which were virtually identical to the
arrangement between Mr Edwards and Mr Hawkes. The solicitor was acting for Mr Hawkes
on those charges, Mr Edwards telephoned the solicitor (Mr Julian Lee) who told Mr Edwards
without qualifying his responsibility in any way that he had known Mr Hawkes for three
years and that Mr Hawkes had done such deals before and was very liable.

Mr Lee did not tell Mr Edwards that Mr Hawkes was then on bail on charges alleging
criminal dishonesty; Mr Edwards, reassured by the reassurance given by the solicitor, took no
action to repossess the car. Later Mr Hawkes sold the car and left the country while still on
bail without paying the proceeds to the plaintiffs, who brought an action against the solicitor
claiming damages. In the judgment, Brooke J referred to Hedley Byrne & Co Ltd v Heller &
Partners where Lord Reid said 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 do 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:
2
2
2

that the plaintiff had acted reasonably in relying on the solicitor;

that the plaintiff's loss was directly caused by the reliance on the solicitor's
reference; and
that the solicitor was at all material times the plaintiff's agent.

LAWYERSS CONDUCTS IN THE INTEREST OF

JUSTICE
It is the advocate and solicitors ultimate duty to follow the instructions of their clients or to
facilitate their clients' objectives. However, this is too subjected to conducts in the interest of
justice.

(A) LEGAL PROFESSION (PRACTICE AND ETIQUETTE) RULES 1978

Rule 2. Obligation of advocate and solicitor to give advice on or accept any brief.
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.[Subs.

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

(a) An advocate and solicitor shall not accept a brief if he is or would be embarrassed.
(b) An embarrassment arises(i) where the advocate and solicitor 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.

Rule 4. No advocate and solicitor to accept brief if professional conduct likely to be

impugned.
No advocate and solicitor shall accept a brief in a case where he knows or has reason to
believe that his own professional conduct is likely to be impugned.

Rule 5. No advocate and solicitor to accept brief if difficult to maintain professional

independence.
(a) No advocate and solicitor shall accept a brief if such acceptance renders or would render it
difficult for him to maintain his professional independence or is incompatible with the best
interest of the administration of justice.
(b) (i) An advocate and solicitor who has at any time advised or drawn pleading or acted for a
party in connection with the institution or prosecution or defence of any suit, appeal or other
proceedings shall not act, appear or plead for the opposite party in that suit, appeal or other
proceedings.(ii) An advocate and solicitor shall not act unless the consent of the first party for
whom the advocate and solicitor acted is obtained in writing and the advocate and solicitor is
not embarrassed by so acting.

Rule 7. No advocate and solicitor to accept remuneration in capacity as Member of

Parliament etc. except emoluments as Member of Parliament etc.
(a) An advocate and solicitor shall not accept any remuneration for that which he does in his
capacity as a Member of Parliament or of any State Legislature, other than emoluments
received by him as a Member of Parliament or of any State Legislature.
(b) No advocate and solicitor may accept the position of an executive director or executive
secretary of a company without the express consent of the Bar Council.

Rule 12. Advocate and solicitor not to conduct civil case intended to delay proceedings
etc.
An advocate and solicitor shall not conduct a civil case or make a defence which is intended
merely to delay proceedings or to harass or injure the opposite party or to work oppression or
wrong.

Rule 13. Advocate and solicitor to guard against insulting or annoying questions.
An advocate and solicitor shall guard against being made the channel for questions which are
only intended to insult or annoy, and to exercise his own judgment as to the substance and
form of the questions put.

Rule 14. Questions irrelevant to actual enquiry not to be asked.

(a) Questions which effect credibility by attacking character but are otherwise irrelevant to
the actual enquiry, shall not be asked unless the cross-examiner has reasonable grounds for
thinking that the imputation is well-founded or true.
(b) Where a question relates to matters so remote in time or of such a character that it would
not materially affect the credibility of a witness, it shall not be put.

Rule 16. Advocate and solicitor to uphold interest of client, justice and dignity of
profession.
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.

Rule 17. No deception on Court.

An advocate and solicitor shall not practice any deception on the Court.

Rule 26. Advocate and solicitor not to mislead.

An advocate and solicitor shall avoid everything which may tend to mislead a party not
represented by counsel.

Rule 27. Advocate and solicitor not to appear where pecuniarily interested.
(a) An advocate and solicitor shall not appear in any matter in which he is directly pecuniarily
interested.
(b) This rule does not apply to the case of an advocate and solicitor appearing himself to tax
his own costs.

Rule 28. Advocate and solicitor not to appear in a case where he is a witness.
(a) An advocate and solicitor shall not appear in Court or in Chambers in any case in which
he has reason to believe that he will be a witness in respect of a material and disputed
question of fact, and if while appearing in a case it becomes apparent that he will be such a
witness, he shall not continue to appear if he can retire without jeopardising his client's
interests.
(b) An advocate and solicitor shall not appear before an appellate tribunal if in the case under
appeal he has been a witness on a material and disputed question of fact in the Court below.
(c) These rule does not prevent an advocate and solicitor from swearing or affirming an
affidavit as to formal or undisputed facts in matters in which he acts or appears.

Rule 29. Advocate and solicitor not to testify on behalf of client.

Except when essential to the ends of justice or as to merely formal matters, and advocate and
solicitor appearing in any cause shall not testify in Court on behalf of his client only in that
cause.

Rule 30. Advocate and solicitor appearing as party or witness to wear robes.
(a) An advocate and solicitor who appears in person as a party or who is in the witness box
shall not wear robes.
(b) An advocate and solicitor appearing before Courts Martial may appear either in uniform
(if he is entitled to do so) or in robes.
(c) Except on such ceremonial occasions and at such places as the Bar Council or the Court
may prescribe, and advocate and solicitor shall not wear bands or robes in public place other
than in Court or whilst travelling to or from Court.

Rule 31. Advocate and solicitor to uphold dignity of profession.

Every advocate and solicitor shall at all times uphold the dignity and high standing of his
profession.

Rule 32. Client's feeling not to influence conduct of counsel.

The feeling existing between clients shall not be allowed to influence counsel in their conduct
and demeanour towards each other or towards parties and their witnesses in the case.

Rule 33. Advocate and solicitor to treat adverse witnesses with fairness and due
consideration.
An advocate and solicitor shall treat adverse witnesses and parties with fairness and due
consideration and he shall not minister to the malevolence or prejudices of a client in the
conduct of a case.

Rule 35. Advocate and solicitor not to abuse confidence reposed in him by client.
(a) An advocate and solicitor shall refrain from any action whereby for his personal benefit or
gain he abuses or takes advantage of the confidence reposed in him by the client.
(b) An advocate and solicitor shall preserve his client's confidence and this duty outlasts his
employment.

Rule 36. Advocate and solicitor to prevent client from wrongful conduct towards courts
etc.
An advocate and solicitor shall use his best efforts to prevent his client from doing things
which the advocate and solicitor himself ought not to do, particularly with reference to his
conduct towards Court and judicial officers, jurors, witnesses and parties. Where a client
persists in such wrong doing the advocate and solicitor shall terminate the relationship.

Rule 41. Advocate and solicitor who has advised Arbitrator cannot appear in arbitration
proceedings.
An advocate and solicitor who has in an arbitration acted for the Arbitrator in advising him on
points of law shall not advise or appear for one of the parties in any proceedings relating to
the arbitration or award.

Rule 42. Advocate and solicitor not to communicate with a person represented by
another advocate and solicitor.
An advocate and solicitor shall not communicate with a person upon any matter in respect of
which to his knowledge that person is represented by another advocate and solicitor except
with the other's express consent.

Rule 43. Advocate and solicitor not to stir up strife and litigation.
No advocate and solicitor shall volunteer advice to bring an action or to stir up strife and
litigation.

(B) Malaysian Perspective

1. General Principle
Amat Loyut & Ors v Ng Eng Kiat & Ors [2014] 1 CLJ 901
Although the specific rules on conducts in the interest of justice is not specifically cited and
discussed, the Court has addressed the significance of lawyers conduct in the interest of
justice.
It was held that in any event counsel who takes instructions from another advocate and
solicitor cannot be heard to say that he has no knowledge of the full facts or the strength or
weaknesses of the case. He takes the case as he finds it and must take equal responsibility if it
turns out to be vexatious. This shows the conducts towards client.
However, the Court has also stated that an advocate and solicitor must get his facts and the
law right before advising his client to proceed with litigation or to defend an action. He must
not act merely and solely on the basis of his clients wish without regard for the truth. This is
because lawyers are supposed to uphold the truth. Thus, it is clearly shows that the Court
upholds the professional ethics in lawyers conduct in the interest of justice despite of
fulfilling the clients objectives.

2. Rule 3, 4, 5, 16 of the Legal Profession (Practice and Etiquette) Rules 1978

Pancaran Gayabina Sdn Bhd v Chew Yong See [2015] 1 LNS 188
In this case, the Court cited Rule 3(a), Rule 4, Rule 5(a) are designed to prevent a situation of
conflict of interest. In this case, the Court held that the Plaintiff is not a considered as a
client to the Second Defendant (Respondent in this case) as Plaintiff did not sign a retainer
with Second Defendant.
The Court stated that if it were to rule out that Second Defendant is Plaintiffs solicitor, it will
cause an injustice as if Second Defendant has go against the rules governing the conducts in
the interest of justice as stated above. Those rules, designated to prevent conflict of interest in
made in the objective of justice.

The court has also cited Rule 16 that even when an advocate and solicitor shall act in the
interest of his clients, the interest of justice and the dignity of the legal profession must also
be uphold.

3. Rule 27, 28 of the Legal Profession (Practice and Etiquette) Rules 1978
Bonifac Lobo A/L Robert V. Lobo v Wong Wooi Meng
In this case, both plaintiff and defendants claim against each other is for defamation. The
defendants counsel objects to Mr Lobo appearing as counsel in the proceeding based on the
following grounds, among others, that He would put himself in an embarrassing position in
contravention of the Legal Profession Act 1976 (LPA) , Rule 27 and 28.
Mr Lobo, took umbrage with the objection and stated that the defendants preliminary
objection was in breach of the LPA and LP Rules, he had appeared and conducted the case a
litigant, and not as counsel, and the objection runs foul of Article 8(2) of the Federal
Constitution.
The Court held that to allow Mr. Lobo to take part in proceedings would contravene rule 27
of the LP Rules. In this suit, Mr. Lobo is amongst others, seeking for damages amounting to
RM6,500,000.00. Clearly he is pecuniary interested. In my considered opinion, the
prohibition under rule 27 is to ensure that advocates and solicitors remain objective when
conducting their case. Their impartiality could be called into question, if they have a
pecuniary interest in the subject matter. An advocate and solicitor is accorded special status,
for he is treated first and foremost as an officer of the court, and with that status, it carries
great responsibility, more so in an adversarial system such as ours, where the courts rely on
advocates to conduct proceedings fairly and honorably.
Based on this case, the Courts approach in considering lawyers conduct in the interest of
justice is rather strict. Even in the interest of client, the Court has looked upon beyond the
matter. Eventhough Mr Labo is acting in the interest of client, but in allowing him to do so,
would give injustice to the other party as it may, even by following his clients orders, violates
the principle of justice uphold by the Judiciary.

(C) COMMON LAW PERSPECTIVE

1. Rule 17 of the New South Wales Revised Professional Conduct and Practice Rules
Rule 17 mention about the preparation of affidavits. If a practitioner is aware that a client is
withholding information required by an order or rule of a court, with the intention of
misleading the court; or informed by a client that an affidavit, of the client, filed by the
practitioner, is false in a material particular; and the client will not make the relevant
information available, or allow the practitioner to correct the false evidence; the practitioner
must, on reasonable notice, terminate the retainer and, without disclosing the reasons to the
court, give notice of the practitioner's withdrawal from the proceedings.
A practitioner must not draw an affidavit alleging criminality, fraud, or other serious
misconduct unless the practitioner believes on reasonable grounds that: factual material
already available to the practitioner provides a proper basis for the allegation; the allegation
will be material and admissible in the case, as to an issue or as to credit; and the client wishes
the allegation to be made after having been advised of the seriousness of the allegation.

Myeres v Elman [1940] AC 282

In this case, the House of Lord held that a solicitor cannot simply allow the client to make
whatever affidavit of documents he thinks fit, nor can he escape the responsibility of careful
investigation or supervision a solicitor who has innocently put upon the file an affidavit by
his client, who subsequently discovers to be false, owes a duty to the Court to put the matter
right at the earliest moment if he continues to act as solicitor on the record.
Therefore, even when submitting affidavit or documents in which he finds would be in his or
his clients benefit, a solicitor must first be responsible to be careful in investigation, owing a
duty to the court, in the interest of justice to make sure that those affidavits and documents
are true. The court has interpreted that conduct in justice covers in relation with the client, the
proceedings and also the Court itself.

Coe v New South Wales Bar Association [2000] NSWCA 13

This case concerns a Barrister who was personally a party in Family Court proceedings who
swore an affidavit verifying a Statement of Financial Circumstances which to his knowledge
was untrue. The Legal Services Tribunal ordered that his knowledge was untrue. The Legal
Services Tribunal ordered that his name be removed from the Roll of Legal Practitioners
following a finding of professional misconduct.
The court in this case has strictly ruled out that by not practicing a correct legal ethics in
relation to his conducts as a legal practitioner, he had breached the interest of justice where he
had failed to recognize a false affidavit. It is a misconduct if it violates the interest of justice,
even it is under the interest of the clients objectives.

Vernon v Bosley [1997] 1 All ER 614

The Plaintiff in a claim for damages for post traumatic stress disorder (arising from
unsuccessful attempts to rescue his two children from a car which had plunged into a river
while being driven by their nanny) succeeded at first instance but the defendant appealed on
the basis of the contents of a medical report relating to the plaintiff which was obtained
during the course of the plaintiffs separate proceedings with his wife concerning custody
issue. The medical evidence in the first proceedings had been that the plaintiffs psychiatric
condition was not good whereas in the second proceedings evidence was that it had greatly
improved. The polarized views in regards to the plaintiffs mental condition were within the
knowledge of the Plaintiffs Counsel. Counsel argued that the second report obtained in the
Family law proceedings was privileged and could not be used in the other proceedings.
The Court, however, held that it had been misled by the failure of the plaintiff and his
advisers to correct an incorrect appreciation as it was well within the powers of the plaintiff
to authorize disclosure. In obliging his clients, the Counsel should have guided the plaintiff
with an honest decision. It is the responsibility of the Counsel in following the plaintiffs
interest, however it comes along with his responsibility to follow the conducts in the interest
of justice.

Kyle v Legal Practitioners Complaints Committee [1999] 21 WAR 56

The Supreme Court of Western Australia considered the conduct of practitioner K who had
acted as a solicitor advocate for his client in the Supreme Court litigation concerning the
circumstances in which the clients had entered into a deed with the Plaintiff. K did not inform
the Court, as advised a week before the trial, that one of his clients had signed the deed and
forged his wifes signature on it. While K ultimately intending to deceive the Court, Parker J
said In that state of mind he then not only did not disclose the truth, but propounded
pleadings and made factual assertions which were contrary to the truth, as he well knew from
his instructions. In my view that is enough to establish the mental element involved in this
allegation that the appellant intended to mislead the Court.
This is an example of a circumstances where your client has done something wrong or
unlawful and you are conflicted between obliging to his instructions or following the law,
when by following the law, would disadvantage your case.
In this case, K had clearly chosen the former- where he chose to disclose the truth. The Court,
in this case has addressed his conduct as misleading the Court hence violating the principle of
justice in which, he should have uphold.

(D) COMPARISON BETWEEN MALAYSIAN CASES AND COMMON LAW CASES

Based on the rules and cases that have been lay out above, it can be seen that both courts in
Malaysian cases and common law cases applied a strict approach in deciding a misconduct
behavior in interest of justice. The court will examine whether the legal practitioner uphold
the principle of justice regardless of he just obey the instructions from the clients.
Both courts are giving the approach that in following the instructions in the interest of a
client, a legal practitioner or a lawyer shall advices the client in a manner that to identify the
appropriate documents or evidences and a correct procedures in achieving the interest of the
client.

For the cases where the client is guilty for an offence, it is a duty of a legal practitioner to
defend the client. However, in order to comply with the conduct in the interest of justice, a
legal practitioner must consider that to what extent his client is guilty or the extent to which
his client should bear the penalty. A person might be guilty of an offence or a case, but by
serving him the punishment equals to other cases are not justice. Therefore, in this situation
the court guides the legal practitioner in applying the right approach, actions and proceedings
properly and legally.

(E) CONCLUSION

It can be seen from the cases cited above, that both the Malaysian Courts and the Common
law courts apply a strict approach regarding conducts in the interest of justice. The court has
put forth justice before clients objectives, regardless whether it is the client or the lawyer in
the question.

LAWYERS CONDUCT TOWARDS PROFESSION

(A) Comparison between Malaysia and Other Countries
Legal Profession (Practice & Etiquette) Rules 1978

Legal Profession (Practice & Etiquette) 1978 laid down minimum standards of conduct to the
advocate and solicitor.

1. Rules 44. Advocate and solicitor not to actively carry on any trade.
(a) An advocate and solicitor shall not actively carry on any trade which is declared by the
Bar Council from time to time as unsuitable for an advocate and solicitor to engage in or be
an active partner or a salaried officer in connection therewith.
b) An advocate and solicitor shall not be a full-time salaried employee of any person, firm
(other than advocate and solicitor or firm of advocates and solicitors) or corporation so long
as he continues to practise and shall on taking up any such employment, intimate the fact to
the Bar Council and take steps to cease to practise as an advocate and solicitor so long as he
continues in such employment.
Explanation: The rules above are very clear in prohibiting the advocates and solicitors from
engaging with any business that will affect the integrity of the legal professions.

Case: Chee Kuat Lin V Majlis Peguam [2013] 1 CLJ 359

Facts : Police Officer-interdicted-pending investigation-bribe-pupillage-sole proprietorshipJohore Bar Committee
Respondents Contention:
(i)

that the appellant was still an active member of the police force; and

(ii)

that the appellant was under suspension pending investigation by the ACA.

(iii)

that the appellant had knowingly breached s. 30(1)(c) of the Act and r. 44(b) of the
Legal Profession (Practice & Etiquette) Rules 1978 by practicing as an advocate
and solicitor when at all material times, he was gainfully employed as a police
officer.

Held : the appellant was in fact gainfully employed when he practiced as an advocate and
solicitor. I also agree that he ought not to have applied for a practicing certificate in the first

place and that by doing so and subsequently practicing as an advocate and solicitor, the
appellant had clearly breached s. 30(1)(c) of the LPA and r. 44(b) of the said rules.

Based on this case, it clearly shows that a practising advocate and solicitor cannot be
employed by any company etc.

Singapore
Singapore: Legal Profession (Professional Conduct) Rules 2015
38. Business, Trade or Calling
A legal practitioner or law practice must not engage in any business, trade or calling which
(a) derogates from the dignity of the legal profession;
(b) is likely to unfairly attract business in the practice of law; or
(c) is prohibited by
(i) the Act;
(ii) these Rules or any other subsidiary legislation made under the Act;
(iii) any practice directions, guidance notes and rulings issued under section 71(6) of the Act;
or any practice directions, guidance notes and rulings (relating to professional practice,
etiquette, conduct and discipline) issued by the Council or the Society.

Explanation: Though the provision above is detail than what we have in Malaysia, the
intention of the provision is still the same where a legal practitioner must not engage in any
business etc that will affect the dignity of the legal profession and is likely to unfairly attract
business in the practice of law.
Hong Kong
Hong Kong Code of Conduct
23.

(1) A barrister may not, without the permission of the Bar Council, or save as provided for in
Annex 4A to this Code, become or remain a practising barrister unless he is willing for his
practice to be his primary occupation; and he may not engage directly or indirectly in any
other occupation if his association with that occupation may adversely affect the
reputation of the Bar. (Circular No. 009/09)
(2) A practising barrister must not engage directly or indirectly in any other occupation if
his association with that occupation may prejudice his ability to attend properly to the
interests of his clients.
(3) (a) A practising barrister who wishes to engage in a supplementary occupation should
do so only in accordance with the general or special permission of the Bar Council.
(b) Supplementary occupations for which the Bar Council has granted general permission
are set out in a List of Approved Supplementary Occupations in Annex 4 and in the List of
Approved Occupations in Annex 4A to this Code. A practising barrister who wishes to engage
in an occupation not listed in Annex 4 or Annex 4A or is in doubt whether a proposed
occupation is within the approved list should seek the special permission of the Bar Council
before taking up the occupation. (Circular No.

009/09)

(4) (a) Save in the instance where general permission is given in Annex 4, a practising
barrister may not be an executive director of a company without seeking special permission
from the Bar Council; and he may not, as a non-executive director, do work for the
company which would ordinarily be done by an executive director.
(b) A practising barrister may not, as a director, undertake legal work for the company
which, as a barrister, he could only undertake if instructed by a person authorised to instruct
him in the matter. For example, he may not draft documents or appear for the company in
proceedings, enquiries or arbitration.
(c) A practising barrister may, as a director, give to the board the benefit of his learning
and experience on matters of general policy and of general legal principles which are
applicable to the company's affairs.
(d) He should ensure that his advice is compatible with his position as a director and is not
of the kind which he would give as a barrister advising a client. For example, it would be

proper for him to draw the attention of the board to the general effect of an Ordinance on the
company's affairs or to advise that the company's terms of business needed revision; but it
would be wrong for him to undertake to revise the terms of business himself.
(e) He should, therefore, avoid becoming concerned in specific legal matters affecting the
company. There may, however, be circumstances in which it would be proper for him to give
his advice in relation to a specific problem, either in a general way or as a matter of urgency.
In these circumstances, he should ensure that the company consults its solicitors as soon as
the matter reaches the point at which such consultation would normally take place.
(5) A barrister who is a pupil must apply himself full time to his pupillage save that a pupil
may, with the approval of the Bar Council, engage in part time occupation which does not
materially interfere with his pupillage. The general permission to engage in supplementary
occupations in Annex 4, or in occupations listed in Annex 4A, does not apply to barristers
serving pupillage. (Circular No. 15/99; Circular No. 009/09)
Explanation: The conduct of a barrister in Hong Kong in relation to other businesses and
trades is explained in a very complex manner in which there involve the general rule as well
as the exceptions. However, the intention is still the same as what we have in Malaysia

2. Rule 48. Advocate and Solicitor not to publish photograph

An advocate and solicitor shall not take steps to procure the publication of his
photograph as a member of the Bar in the press or any periodical.

[*This rule prohibiting a member from the publication of his photographs in the Press
or any periodicals has been waived by the Bar Council with the aprroval of the
Attorney General pursuant to Rule 62 with effect from 1 June 2003.]

Explanation: This means advocate and solicitor is allowed to procure the publication of his
photograph as a member of the Bar in the press or any periodical.

Nigeria
39 (3) of Rules of Professional Conduct for Legal Practitioner

Notwithstanding the provisions of paragraph (1) of this rule, a lawyer shall not solicit
professional employment either directly or indirectly by;
(c) procuring his photograph to be published in connection with matter in which he has been
or is engaged, or concerning the manner of their conduct, the magnitude of the interest
involved or the importance of the lawyers position;

Hong Kong
101.
(1) Subject to sub-paragraph (2), a barrister may engage in advertising or promotion in
connection with his practice and such advertising or promotion may include:
(a) subject to paragraphs 105 and 107 hereinafter, photographs or other illustrations of the
barrister;
Explanation: advertising or promotion like photographs is allowed.

3. Rule 49. Advocate and solicitor not to solicit reporting.

It is contrary to etiquette for an advocate and solicitor to solicit the reporting of any matter in
which he has been professionally engaged, but he may consider and revise reports of cases in
which he has been professionally engaged so as to ensure the correctness of the Report.
Explanation: This general rule is very clear in prohibiting advocate and solicitor not to
solicit reporting, however, there is an exception where he may consider or revise reports of
cases which he has been professionally engaged to ensure correctness of the report.
Singapore
42. General Responsibilities
(1) A legal practitioner must ensure that any publicity relating to the legal practitioners
practice complies with these Rules, whether that publicity is by the legal practitioner or by
any other person on the legal practitioners behalf.

(2) Where a legal practitioner becomes aware of any impropriety in any publicity relating to
the legal practitioners practice or the practice of a law practice of which the legal practitioner
is a director or a partner, the legal practitioner must use the legal practitioners best
endeavours to procure the rectification or withdrawal of the publicity, and to prevent the
recurrence of the impropriety.
Explanation: The same intention like the rules in rule 49.

4. Rule 51. Advocate and Solicitor not to do and cause touting

Rule 52. No division of cost or profit with unqualified person

Rule 51 and Rule 52(b) is interrelated to one another. Rule 51 states that :

Advocate and Solicitor shall not cause touting. An advocate and solicitor shall not do or
cause or allow to be done, anything for the purpose directly or indirectly, or which is
calculated to suggest that it is done for that purpose.

Touting is defined in Consise Oxford Dictionary, 10th edn as attempt to sell

(something), typically by a direct or persistent approach. In the legal sense, touting is
asking for seeking for reward and prohibited under the Legal Profession (Practice and
Etiquette) Rules 1978.

Rule 52 is regarding no division of costs or profits with unqualified person. There

are 3 limbs in Rule 52, which states that it is unprofessional and improper conduct:

(a) for an advocate and solicitor to divide or agree to divide either costs received or the
profits of his business with any unqualified person;
(b) for an advocate and solicitor to pay, give, agree to pay or agree to give any commission,
gratuity or valuable consideration to any unqualified person to procure or influence or for
having procured or influenced any legal business and whether such payment, gift or
agreement be made under pretext of services rendered or otherwise, but this rule does not
prohibit the payment of ordinary bonuses to staff;

(c) for an advocate and solicitor to accept or agree to accept less than the scale fees laid down
by law in respect of non-contentious business carried out by him except for some special
reason where no charge at all is made.

Reference should be made to the definition of who is a qualified person. Based on

Section 3 Legal Profession Act 1976, qualified person means any person who

(a) has passed the final examination leading to the degree of Bachelor of Laws of the
University of Malaya, the University of Malaya in Singapore, the University of Singapore or
the National University of Singapore;
(b) is a barrister-at-law of England; or
(c) is in possession of such other qualification as may by notification in theGazette** be
declared by the Board to be sufficient to make a person a qualified person for the purposes of
this Act;
Explanation: Thus an unqualified person, is someone who does not have the qualification,
therefore it is prohibited to share fees with the unqualified person.

Cases: Balakrishnan Devaraj v Patwant Singh Niranjan Singh & Anor. [2005] 4 CLJ 210.
Facts: In this case, the plaintif was in the business of introducing client to defendants law
firm. Based on the oral agreement between the plaintif and first defendant, the plaintif is paid
25%

commission for every client introduced.

The second defendant joined the first

defendant as a partner and accepted the oral agreement between the first defendant and
plaintif. Besides being a tout to the defendants, the plaintif is also elected as a financier and
manager of the defendants firm.
In 1996, the relationship between the respected parties turned sour and plaintif claimed that
he was barred from entering the firm and wrongfully and in breach of agreement his service
was terminated. Therefore plaintif commenced legal action for the agreed commission and
damages for slander and negligence. The court dismissed the appeal of the plaintif. The court
relied on Rule 51 and 52(b) of Legal Profession (Practice and Etiquette) Rules 1978 and
also Section 24 (a) and (e) of Contracts Act 1950. The judge states that it is forbidden by law
for an advocate and solicitor to practice touting in their business. The general rule of legal

profession is to let client seek them and not them seek client. The judge referred to several
authorities that affirmed the position that touting is illegal in legal, profession.
In Re A Solicitor [1945] 1 ALL ER 445, the court held that :
'Touting' for clients is, like advertising, fundamentally inconsistent with the interest of the
public and with the honour of the profession. The function of a solicitor is to advise or
negotiate or fight for a client, but only if retained. The client may seek him, but he must not
seek the client. And this rule of conduct must be made a reality, and not evaded by the
subterfuge of getting some laymen to do the touting for him. To ensure the success of this
fundamental policy of the profession, in the case of accident claims, where in practice the
danger is greatest, a veto is laid down in r. 4(B) against accepting clients who have been
brought to him by lay touts.
In the case of McQuade v. Barnes, the appellant was employed by the owner of a shop which
adjoins the street. The shop sold fish and chips. The cries annoyed several persons walking on
the promenade. The Magistrate's Court held that the act of the employee/appellant amounted
to touting and it annoyed the members of the public that were passing by. The Court found
him guilty of contravening the bye-law and he was convicted. On appeal, the conviction was
upheld by the Divisional Court The effect of touting agreement is that it will render the whole
contract as illegal under the provision of Section 24 Contract Act 1950, namely subsection (a)
and (e).
A contract is void ab initio and unenforceable if the object of the contract is illegal. In this
case, the object of the contract is 25% commission to be received by the plaintif for every
client introduced to the law firm of defendants. Next, based on Rule 52(b) it is prohibited to
share fees with an unqualified person. The plaintif in this case falls under the definition of an
unqualified person. He does not fit the crtiterias stated in Section 3 of Legal Profession Act
1976. He was just appointed as a financier and manager of defendants firm. Hence, the
plaintifs claim for the touting commissions was thus unsustainable.
India
Rule 51 is similar to Rule 36 of Bar Council of India Rules. Rules 36 reads as :
An advocate shall not solicit work or advertise, either directly or indirectly, whether by
circulars, advertisements, touts, personal communications, interviews not warranted by

personal relations, furnishing or inspiring newspaper comments or producing his

photographs to be published in connection with cases in which he has been engaged or
concerned. His sign-board or name-plate should be of a reasonable size. The sign-board or
name-plate or stationery should not indicate that he is or has been President or Member of a
Bar Council or of any Association or that he has been associated with any person or
organisation or with any particular cause or matter or that he specialises in any particular
type of worker or that he has been a Judge or an Advocate General."
Explanation: This rule disallows the advocate from employing any means to intimate he
client of his very existence. These include seminar and felicitation ceremonies too. The sign
plate or name board should be of moderate size. In the case Bar Council of India v. M.V.
Dhabolkar,1976 AIR 242 the court

held that: Law is not a trade, not briefs, not

merchandise, and so the heaven of commercial competition should not vulgarize the legal
profession. This rules was amended following the ruling of V.B Joshi v Union of India thus
advocates could furnish information on websites about names, telephone number, e-mails and
educational qualification.

Hong Kong
Rule 52 is similar to Rule 4 Chapter 159H. The heading of Rule 4 is sharing with nonqualified persons. A solicitor shall not share or agree to share with any person not being a
solicitor practising in Hong Kong his profit costs in respect of any business whether by way
of paying or agreeing to pay a commission on business introduced by any such person not
being a solicitor, or otherwise: Provided that(a) a solicitor carrying on practice on his own account may agree to pay an annuity or other
sum out of profits to a retired partner or predecessor or the dependants or legal personal
representative of a deceased partner or predecessor;
(b) a solicitor who has agreed in consideration of a salary to do the legal work of an
employer who is not a solicitor may agree with such employer to set off his profit costs
received in respect of contentious business from the opponents of such employer or the costs
paid to him as the solicitor for such employer by third parties of non-contentious business,
against the salary so paid or payable to him and the reasonable office expenses incurred by
such employer in connection with such solicitor and to the extent of such salary and

expenses; and (c) a solicitor whose firm is a party to an Association may share fees and
profits with the foreign firm or firms in that Association.
Explanation: This position is different from Malaysia. A solicitor may pay to an unqualified
person commission or other expenses that is related to the business. In Hong Kong is up to
the advocate and solicitor to pay to an unqualified person or not.

(B) Bar Council Rulings 1997

The Bar Council is the regulatory body of all Advocates and Solicitors in Peninsular Malaysia
by virtue of the Legal Profession Act 1976. The Rulings contained in this compilation were
issued over a period of time, and made pursuant to section 57 of the Legal Profession Act
1976.
PROFESSIONAL CONDUCT HANDBOOK, (British Colombia)
Published under the authority of the Benchers for the guidance of members of The Law
Society of British Columbia.
The rules in the handbook basically contained in Chapter 6,7,8 and 13which are having some
similarities with Bar Council Rulings
THE BAR STANDARD BOAD HANDBOOK (England and Wales)
The conduct rules basically contained in part 2 of the handbook and specifically explained
under Section C of part 2.

1) Ruling [E] 4 Solicitation of work

a) Application for appointment to panel of solicitors.
No advocate and solicitors or firm may make a formal application to a housing
developer, bank or other institution for emplacement in their panel of solicitors
unless requested by the institution concerned.

b) Tender exercise for legal work.

No advocate and solicitors shall participate in tender exercise conducted by banks or
other organization where fees for contentious matters are quoted without prior

knowledge

of facts relating thereto.

Explanation: This means that an advocate and solicitor shall not take advantages (interest)
before knowing of the facts relating to avoid conflict of interest.

2) Ruling F[1-8]on Conflict of Interest

(1) Litigation Involving A Body Of Which Advocate And Solicitor Is A Member

(a) Corporation or organization.
An advocate and solicitor who is a member of the Board of Governors or Directors of any
corporation or organization shall not appear on behalf of the corporation or organization in
any litigation or on behalf of any other party to such litigation.
(b) Bar Council and State Bar Committee
i.

A serving member of the Bar Council or State Bar Committee is precluded from
appearing in any contentious legal proceedings (including disciplinary proceedings
under the Legal Profession Act 1976) when the Bar Council or State Bar Committee
(as the case may be) is a party or in any way interested in such proceedings provided
if otherwise resolved by the Bar Council in special circumstances.

ii.

A Bar Council member who has been approached by a member of the Bar who is the
subject matter of discussion in the Bar Council shall disclose the fact that he has been
so approached and the subject matter in discussion before participating in the
deliberations of the Bar Council.

(2) Litigation Involving A Company of Which Advocate And Solicitor Is A Shareholder

Or Director
(a) An advocate and solicitor who is only a shareholder can appear on behalf of the company
in any court proceedings, provided that his professional independence is not affected. His

professional independence shall be deemed to be affected if the said Advocate and Solicitor is
a substantial shareholder as defined in the Companies Act 1965.
(b) An advocate and solicitor who is a director of a company shall not appear as counsel in
any litigation involving the company whether he appears on behalf of the company or any
other party.
Professional Conduct Handbook :
While under Rule 6 of Chapter 7 of the Professional Conduct Handbook, it stated that a
lawyer must not carry on any business or occupation other than the practice of law in such a
way that a person might reasonably find it difficult to determine whether in any matter the
lawyer is acting as a lawyer.
Handbook:
Rule C82 states that if the lawyer has a material commercial interest in an organisation which
is proposing to refer a matter to him/herself, he/she must tell the client in writing about
his/her interest in that organization before he/she accepts such instructions and make a clear
agreement with that organisation or other public statement about how relevant issues, such as
conflicts of interest, will be dealt with. Besides this, keep a record of referrals for review by
the Bar Standards Board on reasonable request.

(3) Advocate and Solicitor Acting In Dual Capacity

An Advocate and Solicitor shall not, pursuant to a power of attorney, issue any proceedings
on the client's behalf, and thereafter appear as counsel in the ensuing litigation.
Professional Conduct Handbook,
Explanation: Rule 6.3 of Chapter 6 states that a lawyer must not represent a client for the
purpose of acting against the interests of another client of the lawyer
While Rule 7 states that subject to Rule 7.4, a lawyer must not represent a client for the
purpose of acting against the interests of a former client of the lawyer .
Handbook:

Explanation: Rule C21 states that a lawyer must not accept instructions to act in a particular
matter if there is a conflict of interest between the prospective client and one or more of your
former or existing clients in respect of the particular matter unless all of the clients who have
an interest in the particular matter give their informed consent to your acting in such
circumstances.

(4) Advocate And Solicitor Acting For Another Advocate and Solicitor In Same Firm
There is no breach of r 3(b)(ii) of the Legal Profession (Practice and Etiquette) Rules 1978
when a firm acts for one of its partners or legal assistants in respect of a personal claim by or
against that person.

(5) Litigation Against An Existing Client

(a) This is permitted notwithstanding that the firm may be representing the client in other
pending matters.
(b) It is not objectionable for an advocate and solicitor who acts for a party in various existing
civil suits to act for another party against the former in an unrelated suit unless the former can
show that specific information is being used by that advocate and solicitor leading to a
conflict of interest.

(6) Litigation Against A Company For Which Advocate And Solicitor Is A Panel
Lawyer
-Subject to any express retainer to the contrary, it is permissible for an advocate and solicitor
who is a member of a panel of lawyers for any company, body or organization to act in a
matter against that company body or organization
-Provided that before he does so or as soon as it becomes apparent that he will have to act
against that company, body or organization, he informs his client that he is on the panel of
lawyers for that company, body or organization and advises his client that it may be in the
interest of the client to engage another Advocate and Solicitor, and

-if the client nonetheless desires that the Advocate and Solicitor represent him then in such
case the client shall make a statutory declaration or other statement in writing confirming that
he has been advised accordingly, but nevertheless still wishes to be represented by the
particular Advocate and Solicitor.
Handbook:
Explanation: Rule C17 of the handbook states that duty of the lawyer is to act in the best
interests of each client (CD2) includes a duty to consider whether the clients best interests
are served by different legal representation, and if so, to advise the client to that effect.

(7) Consultation By Opposing Parties

(a) It is unprofessional conduct for an advocate and solicitor to appear or continue to appear
in any matter where it is drawn to his attention that another lawyer in the same firm had
discussed facts in dispute with opposite party, even though no payment was received for the
consultation and the lawyer appearing did not know of the contents of the discussion between
his colleague and the other party.
(b) An advocate and solicitor who becomes aware of any suggestion of a conflict at any stage
(even at the final stage) should immediately withdraw from the case for the sake of
maintaining his professional independence and the dignity of the profession even though no
information was divulged to his partner or assistant acting for or consulted by the opposing
party.
Explanation: All firms should have a good internal mechanism for cross-checking to find out
whether a partner or assistant is already on record for or has been consulted by the opposing
party.

Handbook:
Rule C20 states that lawyers are personally responsible for their own conduct and for their
professional work.

Explanation: You must use your own professional judgment in relation to those matters on
which you are instructed and be able to justify your decisions and actions. You must do this
notwithstanding the views of your client, professional client, employer or any other person.

(8) Advocate And Solicitor Involved In Transaction Before Dispute Arose

(a) An advocate and solicitor who acts for both parties in an agreement cannot act for either
of the parties later on in the event of dispute.
Neither can the advocate and solicitor brief another solicitor to act for that party.
(b) An advocate and solicitor who witnesses the signature of a party to an agreement may not
appear as an advocate and solicitor in a dispute regarding the signature

Professional Conduct Handbook

Explanation: Under Chapter 6, rule 5 states that if a lawyer jointly represents two or more
clients, and a conflict arises between any of them, the lawyer must cease representing all the
clients.
While Rule 6 that, a lawyer who ceased joint representation under Rule 5 or who continued to
represent one or more clients under paragraph 5(a) may, with the informed consent of all the
clients, resume representation of all of them after the conflict has been resolved.

Bar Council Ruling: H 1-9, 10B, 11, 12, 13.

1. Dishonoured Cheque Issued From Clients Account

8.04. Dishonoured cheque issued from client account.

An Advocate and Solicitor, who comes across a dishonoured client account cheque
issued by another Advocate and Solicitor, is required to report the same to the Bar
Council, and the Bar Council may require the Advocate and Solicitor who issued the
dishonoured cheque to give the Bar Council a mandate authorising it to obtain from

the bank concerned, all relevant information in respect of the said cheque and the
account on which it was drawn.
Explanation:
There are two accounts for the law firms; companys account and clients account.
Clients Account is a current or deposit account at a bank in the name of the solicitor
in the title of which the word client appears. In the case where any Advocate and
Solicitor discovered the other side of the Advocate and Solicitor issue a dishonoured
cheque, a report must made to the Bar Council and the other side of the lawyer shall
disclose the authorizing from the bank concern to the Bar Council as a prove.
Bar Standard Board of England & Wales:
Rule C 73 states that except where you are acting in your capacity as a manager of an
authorised (non-BSB) body, you must not receive, control or handle client money
apart from what the client pays you for your services.
Rule C 74 states that if you make use of a third party payment service for making
payments to or from or on behalf of your client you must:
i.
Ensure that the service you use will not result in your receiving, controlling or
ii.

handling client money; and

Only use the service for payments to or from or on behalf of your client that
are made in respect of legal services, such as fees, disbursements or settlement

iii.

monies; and
Take reasonable steps to check that making use of the service is consistent
with your duty to act competently and in your clients best interests.

Rule C 75 states that The Bar Standards Board may give notice under this rule that
(effective from the date of that notice) you may only use third party payment services
approved by the Bar Standards Board or which satisfy criteria set by the Bar
Standards Board.
2. Effect of Suspension of Advocate & Solicitor under the Act.
13.10. Effect of suspension of Advocate and Solicitor.
(1) During the period of suspension of an Advocate and Solicitor who is a sole
proprietor, another Advocate and Solicitor cannot practise under the firm name of
such suspended Advocate and Solicitor.
(2) An Advocate and Solicitor suspended either under section 88A or Part VII of the
Act shall not:

(a) Act or be employed with or without remuneration as an Advocate and

Solicitor by any law firm;
(b) Be employed in any position/capacity whatsoever in a law firm;
(c) Attend at the office of his/her former law firm or any law firm without the
permission in writing of the Bar Council; or
(d) Be entitled to share profits or fees earned or accrued by any law firm
during the period of suspension.
Explanation:
In the situation where a sole proprietor of an Advocate and Solicitor has been
suspended, no replacement by any other Advocate and Solicitor is applicable and
there shall follow the effects and rules govern in section 88A or Part VII of the Act.
Bar Standard Board of England & Wales:
In an Appeal Section, Rules E 183 describes that in cases where one or more charges
of professional misconduct have been proved, and/or a disqualification order has been
made, an appeal may be lodged with the High Court in accordance with the Civil
Procedure Rules:
i.
By the defendant against conviction and/or sentence;
ii.
With the consent of the Chairman of the Bar Standards Board or the Chairman
of the PCC, by the Bar Standards Board against sentence on any of the
grounds in Rules E 185.

Rule 56: Judgment by default.

Where the name of the advocate and solicitor or his firm appears on the Court record
or the fact of representation is known to the other side, no advocate and solicitor
representing the other party to the proceedings shall enter Judgment by Default
against the client of the first-named advocate and solicitor or to take advantage of
delay in pleading or filing documents in the nature of pleadings or in taking any
necessary steps or in complying with any other in the proceedings by such first-named
advocate and solicitor, unless he shall have given to such first-named advocate and
solicitor written notice of his intention to do so, and seven days shall have elapsed
after the delivery of such notice to the first-named advocate and solicitor.

3. Legal Profesion (Practice & Etiquette) Rules 1978, Rule 44 & 56

Rule 44: Advocate and Solicitor to actively carry on any trade.

a) An advocate and solicitor shall not actively carry on any trade which is
declared by the Bar Council from time to time as unsuitable for an advocate
and solicitor to engage in or be an active partner or a salaried officer in
connection therewith.
b) An advocate and solicitor shall not be a full-time salaried employee of any
person, firm (other than advocate and solicitor or firm of advocates and
solicitors) or corporation so long as he continues to practise and shall on
taking up any such employment, intimate the fact to the Bar Council and take
steps to cease to practise as an advocate and solicitor so long as he continues
in such employment.

4. Solicitors Lien
9.02. Solicitors lien and right of set-off.
i.

A law firm may, after a bill of costs has been rendered, set-off or deduct from
monies payable to a client, such sum as may be due and payable by the client

ii.

to the firm under the bill.

No Advocate and Solicitor shall retain a clients documents or files in exercise
of his/her lien for fees in the same transaction if the clients subsequent
Advocate and Solicitor undertakes to settle the former Solicitors fees or taxed

iii.

costs.
All Rulings governing a Solicitors lien for costs and fees apply in syariah
matters undertaken by an Advocate and Solicitor.

Explanation:
Every law firm may reduce the cost payable by the clients and shall not retain a clients
documents or files to avoid the same transaction with another Advocates and Solicitor.

5. Change of Solicitors

11.06 Change of Solicitors

i.

An Advocate and Solicitor on record is deemed, as between himself/herself

and the opposing party, to represent his/her client unless he/she has been

ii.

discharged in accordance with the relevant rules of the court concerned.

As long as an Advocate and Solicitor remains on record, service on him/her is
valid service. An Advocate and Solicitor may only be discharged from liability
to accept service if he/she has been discharged in accordance with the relevant

iii.

rules of the court concerned.

The new Solicitors should obtain the consent of the Solicitors on record before
filing a Notice of Change of Solicitors. However such consent shall not be
unreasonably withheld. This Ruling shall not apply where the solicitor on
record cannot be traced or has refused or neglected to respond within

iv.

reasonable time.
Any Notice of Change of Solicitors must be promptly filed.

Explanation:
Where an Advocate and Solicitor cannot present in the court because they have been
discharged in the court, the new solicitors must obtain the consent of the Solicitors on
record before filing a Notice of Charge of Solicitors.
6. Accepting Documents on a without Prejudice Basis

14.06. Accepting documents on a without prejudice basis

An Advocate and Solicitor shall not accept service of documents on a without
prejudice basis except for good reasons, which must be disclosed in writing at the
time of such service.

Explanation:
Every services performed by the Advocate and Solicitor shall be prejudice free

7. Correspondences

Chapter 14: Profesional Practice

An Advocates and Solicitors shall comply with every rules in Chapter 14. Especially
in 14.09 that explains about Undertakings. In that section, it explains;

i.

Solicitors to return documents if unable to give the undertaking required.

a) Failure to honour an undertaking amounts to professional misconduct.

b) Where payments or documents are sent to a Solicitor subject to an undertaking

or subject to conditions, the Solicitor shall promptly return such payments or
documents to the sender if the undertaking or any of the conditions is/are
unacceptable to the Solicitor.
ii.

Solicitor not to impose or request unreasonable undertakings or conditions

No Solicitor shall impose on or request from another Solicitor any undertaking or
condition which is unreasonable in the circumstances or the performance of which is
beyond the control of that other Solicitor.

iii.

Disclaimer in e-mails
A law firm is prohibited from inserting a disclaimer at the foot of its e-mails to the
effect that undertakings given by e-mail purporting to bind the firm shall not be valid
unless the undertakings are confirmed in writing by letter on the firms letterhead and
signed by a partner or partners of the firm.

Explanation:
The correspondence clause does not clearly states in the Bar Council Rulings but as an
Advocates and Solicitors, they are bound with Chapter 14 of the BCR and shall comply
with it.
Bar Standard Board of England & Wales:
Correspondence between lawyers in different CCBE states
Rules C 153 states that if you want to send to a lawyer in a CCBE State other than the UK a
communication which you wish to remain confidential or without prejudice, you must,
before sending the communication, clearly express your intention in order to avoid
misunderstanding, and ask if the lawyer is able to accept the communication on that basis.
Rules C154 states that if you are the intended recipient of a communication from a lawyer
in another CCBE State which is stated to be confidential or without prejudice, but
which you are unable to accept on the basis intended by that lawyer, you must inform that
lawyer accordingly without delay.
8. Carrying on Profession of Advocate & Solicitor in Clients Office
7.02. Not to carry on practice in clients office

An Advocate and Solicitor shall not maintain an office or carry on the practice of an
Advocate and Solicitor in any manner whatsoever in his/her clients office, including
but not limited to a housing developers office.
Conclusion:
Carrying the duties of an Advocate and Solicitor in the clients office is not to be
encourage. In my opinion, this to shows the profesional life of an advocate not to create
discomfort to the clients.
Bar Standard Board of England & Wales:
According to Rules S 20, if you are a barrister of less than three years standing, you may:
i.
Only supply legal services to the public or exercise any right of audience by virtue
of authorisation by the Bar Standards Board; or
Only conduct litigation by virtue of authorisation by the Bar Standards Board, if

ii.

your principal place of practice (or if you are practising in a dual capacity, each of
your principal places of practice) is either:
a. A chambers or an annex of chambers which is also the principal place of
practice of a relevant qualified person who is readily available to provide
guidance to you; or
b. An office of an organisation of which an employee, partner, manager or
director is a relevant qualified person who is readily available to provide
guidance to you.
This is to ensure that another experience and qualified employee may assist the junior
lawyers whenever the junior lawyers are assisting their clients.

9. Courtesy (b)
14.01. Courtesy
i.
As an advocate and solicitor, calling another Advocate and Solicitor on the
telephone should be on the line first and ready to speak once the call is put
ii.

through.
An Advocate and Solicitor must promptly rely to correspondence from other
Advocates and Solicitors, the Bar Council, State Bar Committees, clients and

iii.

former clients.
An Advocate and Solicitor or his/her firm must accept all correspondence
from another Advocate and Solicitor or another firm.

Explanation:
As a practitioner and as an Advocate and Solicitor, having a common courtesy is very
much needed. A courtesy is the sense of understanding and making sure each side of the
lawyer is in good conditions and in good terms.
10. Making Threats of Criminal Proceedings
14.13. Threats of criminal proceedings are improper.
i.

It is improper to make threats of criminal proceedings as a means of exerting pressure

ii.

to recover a civil debt.

An Advocate and Solicitor may draw the attention of any person to the fact that
failure to comply with a statutory requirement may constitute an offence.

Explanation:It is improper to make threats of criminal proceedings as a means of exerting

pressure to recover a civil debt.