UK4244

DUTY TO CLIENT
PROFESSIONAL LIABILITY, FIDUCIARY DUTY & RISK MANAGEMENT

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Rule 2: Obligation of A&S to give advice on or accept any brief

Rule 3: A&S not to accept brief if embarrassed

Legal profession Rule 4: A&S to accept brief if professional conduct likely to be impugned
(practice &
etiquette) rules Rule 5: A&S to accept brief if difficult to maintain professional independence

1978 Rule 6: A&S not to accept brief if unable to appear

Rule 9: A&S to undertake defence fairly and honorably

Rule 16: A&S to uphold interest of client, justice and dignity of profession

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Legal  Rule 24: A&S to be ready for the day fixed for trial
Profession  Rule 25: A&S to disclose all circumstances to client
Rule 31: A&S to uphold dignity of profession
(Practice &


 Rule 35: A&S not to abuse confidence reposed in

Etiquette) him by client
 Rule 40: A&S not to stand surety
Rules 1978  Rule 55: A&S’s lien

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Bar Council Rulings 1997

Ruling 14.01: Courtesy

(2) An A&S must promptly reply to correspondence from fellow A&S, the Bar
Council, State Bar Committee, clients and former clients

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DUTY SOURCES
Duty of Competence and CONTRACTUAL &
Diligence COMMON LAW
A. Lawyer’s Duty of Honesty FIDUCIARY
Professional Duty to Avoid Conflicts FIDUCIARY
Duty to Client Duty to Account FIDUCIARY
Duty to Prefer the Clients FIDUCIARY
Interest

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Duty of competence and diligence

 Duty to meet a reasonable standard of competence; cares and diligence

Re Robb (1996)134 FLR 294

“It is no answer to a failure to meet reasonable standards of competence &
diligence demanded of him for a solicitor to cite fatigue, stress or distraction due
to other work”

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Ethical dilemma 1

 How do you deal when approached with cases outside expertise?

 Dealing with cases outside expertise:

1. Without undue delay & cost to client
2. Obtain necessary level of skill & knowledge on his own
3. Or consulting other lawyer having expertise
4. May proceed if client insist after disclosure

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Duty of competence and diligence 8

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Timeless Accuracy

Work Ethic
Responsib
ility
Attributes of a Good Lawyer 9

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Skillful
& Reliable

The GoodCareful
Lawyer & Confirming
Diligent
Willing
Accountable
&
&toHelpful
Timely
Accepted Practices

Knowledgeable
Fiduciary duty to client 10

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 FD requires the solicitor neither to abuse nor to take any secret advantage of the special
situation that has been created by their relationship
In Reading’s Petition of Right (1949):
“A consideration of the authorities suggests that for the present purpose a fiduciary duty exist:
i. Whenever the Plaintiff entrusts to the Defendant property tangible or intangible and relies on
the Defendant to deal with such property for the benefit of the Plaintiff or for the purposes
authorized by him and not otherwise
ii. Whenever the Plaintiff entrusts to the Defendant a job to be performed, for instance the
negotiation of a contract on his behalf or for his benefit, and relies on the Defendant to
procure for the Plaintiff the best terms available.”
Fiduciary duty to client 11

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Duty to avoid
Duty of honesty conflict of
interest

Duty to prefer
Duty to account
client’s interest
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Cases

Rondel vs Worsley (1967) 3 WLR 1666 (HOL)

 Lord Reid:
“duty to act fearlessly, to raise every issue, advance every argument and ask
every question, however distasteful, which he thinks will help his client’s
case”

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Tombling vs Universal Bulb (1951) 2 TLR 28

Lord Denning:
“duty of counsel to client in a civil case or in defending an accused person was to
make “every honest endeavor to success” ie to put such matters in evidence or omit
such others as in his discretion, those he thought could be most advantageous to his
client, put every fair argument which appeared to him to help client towards winning
the case but short of “knowingly mislead court”

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Duty of honesty

Yee Chang & Co Ltd v Nv Koninklijke Paketvaart Maatschappij (1958) MLJ

131

it was held that an advocate who becomes aware in the course of proceeding that his
client is obstructing the interest of justice has a duty to advise his client about this and
if the client persists in his wrong conduct, the advocate should decline to act for him
further.

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Spector vs Agenda (1973) Ch. 30

Megarry VC:
A solicitor must put at his client’s disposal not only his skill but also his knowledge,
so far as is relevant; and if unwilling to reveal that information to his client, he should
not act for him. What he cannot do is to act for the client and at the same time
withhold from him any relevant knowledge that he has.

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Conflict of interest

Rakusen vs Ellis Munday & Clarke (1912) 1 Ch. 831

 Plaintiff applied for an injunction to prevent Lawyer from acting for Defendant
where Plaintiff had earlier consulted with the Lawyer’s partner on same matter
 Cozens Hardy MR:
… solicitors of highest honour and integrity may frequently be able to act in
the same manner for a new client, and the same time may be able to avoid disclosing
secrets without putting any strain upon their memory conscience and integrity

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B.Professional negligence of lawyers

Basis of claims for professional negligence

Duty of care to client

Duty of care to Third parties

The standard of care

Liability for breach of duty

Preventive measures

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Basic of claims for professional negligence 18

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Pre 1979 - Contractual Based

Esso Petroleum Co Ltd v Mardon

(1976) QB 801 COA

Post 1979 - Tort based

Duty of care 19

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Test for Breach of Contract
Lawyers done something
in breach of Express / implied terms

Test for Negligence

Lawyer acted carelessly/ omitted to act or
gave careless advice
give rise to financial loss
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Duty to Third parties
Hedley Byrne test

Ross v Caunters (1980) Ch 297

 A solicitor who is instructed by his client to carry out a transaction that will confer a benefit on an
identified third party owes a duty of care towards the third party in carrying out the transaction, in
that the third party is a person within his direct contemplation as someone who is likely to be so
closely and directly affected by his acts or omissions that he can reasonably foresee that the third
part is likely to be injured by those act or omission.

White vs Jones (1995) 2 AC 207

 Failure to carry out the testator instruction to change the beneficiary of will to plaintiff, causing
the Pl to suffer lost.
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 The standard of care 21

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Midland Reasonably competent practitioner would do having
regard to the standards normally adopted in his
profession
Bank v Hett
Edward Wong
Finance (1984)
General practise might not be good Objective test conforming to
the degree of skill from
Failed to Roger v Whitaker expected from a person in the
profession
exercise (1992)
reasonable
care & skill

Neogh Soo
Oh (1984)
Kamalan a/p
Raman (1996)

1 Filing Mof Appeal out of time
2 Filing Appeal Record out of time
3 Failing to serve WoS within time
4 Failing to conduct search at Land Office
Liability for 5 Failing to inform client letter indicating
possible acquisition
breach of duty
6 Failing to honour an undertaking
7 Giving incorrect advice (law is clear)
8 Giving wrong advice on a course of an action Bryant v Goodrich (1966)
9 Failing to inform client progress of matter
10 Failing to pursue an obvious remedy
available to client
11 Failing to advise client about right to appeal
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Miranda v Khoo Yew Boon (1968) MLJ
Tan Ah Chin v Lim Kean Siew (2000)
MLJ
K E Hiborne v New Ching Kee (1971)
MLJ
Neogh Soo Oh v Rethinasamy (1984) MLJ
United Indo-Singapura Corporation
(1985) MLJ
Dato Seri Au Ba Chi v Malayan United
Finance Bhd (1989) MLJ
Rumsey v Owen (1977)
Stinchcombe &Cooper Ltd v Addison
(1971)
Dickinson v Jones Alexander & Co (1993)
Corfield v D S Bosher (1922)
Liability for breach of duty 23

Know
Mirinda v Khoo Yew
●
Everything or
Boon
Common Ones?

Duty to
West London
●

Advice or Observer v Parsons

Remind?
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Pre 1968 Ruling in Rondel v Worsley Ruling in Arthur J S Hall

(1969)1 AC 191 & Co v Simons (2000) 3
WLR 543
Pre-1968 in England: Solicitor HOL, Lord Reid: HOL:
always liable; Barrister could not • Barrister immune from • Advocate has no

C. Counsel’s
liable negligence related to immunity in Civil or
Court conduct Criminal
Purves v Lodell (Scotland) • Solicitor acting as • Abolish immunity to
(barrister’s) 1845
Lord Campbell: “Against
Advocate in lower Court
also immune
strengthen legal system
through disclosure

immunity - in Barrister in England and the

Advocate in Scotland luckily, no
action can be maintained”
• Reason of public policy •

•
Confidence eroded if
immunity kept
Immunity is no longer
England Mulligan v M’Donagh: 1860
in public interest

Ireland
Pigot CB: An action against
Barrieter for neglect of duty
cannot be maintained

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Gather & read all

available facts carefully

Check the updated law

Preventive
measures
Keep diary system to
monitor timeframes

Do not accept cases

outside area of familiarity
/ competency

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 Immunity in a fussed profession (Malaysia)non-litigious 26
matter

Yong & Co vs Wee Hood Teck Development Corp (1984) 2 MLJ 39

 Syed Agil Barakbah FJ:
“the liability of a solicitor may be viewed in two aspects. At common law the retainer
imposes upon him an obligation to be skillful and careful and for failure to fulfill his
obligation he may be liable in contract for negligence... On the other hand, like any other
individual, a solicitor is liable for his wrongful acts and if the circumstances justify the
charge, he may make liable to his client in tort. He owes a duty not to injure his client by
failing to do that which he had undertaken to do and which his client has relied on him to
do”

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 Immunity in a fussed profession 27
(Malaysia)non-litigious matter

Neogh Soo Oh vs G. Rethinasamy 1994 1 MLJ 126

Solicitor fail to inform client that the land which he wishes to purchase had already been gazetted for
purpose of compulsory acquisition (failure to conduct land search)
HC: Gunn Chit Tuan J
“It is clear and settled law that a client of a Solicitor may bring an action against him in contract,
based on the retainer of the Solicitor by the client, or in tort, or in both…”
Anthony Ting vs Wong Bing Seng 1997 2 CLJ 831
Action against Solicitor for negligence and / or breach of contractual duty and negligent misrepresentation
in handling client’s purchased of a piece of land.
HC: The Solicitor was negligent and liable for the loss suffered

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Immunity in a Miranda v Khoo Yew Boon (1968)

FC, Azmi CJ:

fussed 1. An A&S is under contractual duty to use care and this

extends to the conduct of a cause;
profession 2. The position of an A&S is exactly the same as that of a
Solicitor in England and if there is an act of negligence it is
(Malaysia) immaterial to consider whether the act is one normally done
in England by a Barrister or a Solicitor..

litigious Lim Soh Wah v Wong Sin Chang (2001) Gopal Sr Ram
matters JCA:
“.. Our law has … always differed from English law.
Advocates here have never enjoyed immunity from suits for
negligence”

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D. Mandatory Professional Indemnity 29

Insurance Scheme (PIIS)

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LPA Bar Council
Master
S.78A Insurance
Policy
010492 010792

PIIS

Varies
coverage
for 1 year
250k-2M
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Aim: Maintaining quality standards and systems that help to

reduce errors & misjudgment

●
Staff, pupil & junior lawyer properly supervised
●
Developed RM procedures & enforce strictly
All exposed to potential liability

E. Risk
●

●
Lawyers must learn asap

management?
Require: Lawyers to be more alert to their potential for liability

How:

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Can you defend a client whom you know committed

Ethical

the offence?

dilemma 2  What are the ethical views that governs a criminal

defence?

1. Are you duty bound to defend?

2. Can you take up the case to defend him?
3. What sort of defence can you raise?

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The accused to a murder charge confessed in the

Ethical

office to you, his counsel. What should you do?

Dilemma 3  Principle: No duty to inform Court of your clients’

confession. Duty of confidentiality to your client
 Note: As a counsel, you cannot:
1. Run a defence that someone else has committed the
offence
2. Put your client in the box to deny because you will
be abetting him

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