Chapter 4 - Practice & Etiquette of A&S Flashcards
PRACTICE & ETIQUETTE OF A&S
Overview
1) general conduct of A&S
2) acceptance of brief
3) appearance in court
4) performance in court
5) fees of A&S
6) maintenance of account & record
7) office & publicity of A&S
GENERAL CONDUCT OF A&S
Overview
1) Only profession
2) No touting
3) Confidentiality
4) Lien
GENERAL CONDUCT OF A&S
Only profession
1) The law - S.30(1)(c)
- cannot apply for PC if he is gainfully employed.
2) executive position - r.7(b) LPPER
- must obtain consent from BC
3) trade - r.44 LPPER
- shall not be involved if BC declare it to be unsuitable
4) business - BCR 12.01
- can engage as long as not incompatible with dignity of profession
5) company secretary - BCR 12.02
- must notify BC if acting as company secretary
6) patent / trademark agent - BCR 12.03
- must notify BC if acting as trademark or patent agent
GENERAL CONDUCT OF A&S
No touting
1) The law - S.94(3)(h):
- touting is a form of misconduct.
2) The law - r.51:
- no touting direct or indirectly.
3) application - Balakrishnan Devaraj v Patwant Singh:
- Oral agreement entered between P & D for commission of every case constitutes touting.
- P’s claim to enforce agreement was unsustainable at law for illegality.
GENERAL CONDUCT OF A&S
Confidentiality
r. 35
- A&S shall not abuse confidence given to him by client.
GENERAL CONDUCT OF A&S
Lien
1) the law - r.55 & r.9.02 BCR:
- A&S shall not withhold client’s paper to their detriment.
- no A&S shall retain client documents or files in exercise of his lien if the subsequent A&S undertakes to settle the former solicitors’ fee or taxed cost.
2) application - M. Wealth Corridor Sdn Bhd v Chan Tse Yuwn & Co:
- lawyers are entitled to withhold papers until his fees are paid.
3) substitution of counsel - Kempas Arowana S/B & Inggeris Bibby Ltd v Woods:
- solicitor has a lien on the documents when the client has failed to pay legal fees.
- A solicitor’s lien is of two-fold character;
- He has a lien on the papers of his clients which are in his possession, and he can refuse to give up those papers so long as his costs are not paid.
ACCEPTANCE OF BRIEF
Overview
1) General rule
2) Conflict of interest
3) Inability to appear
ACCEPTANCE OF BRIEF
General rule
1) r.2 - accept:
- accepts all brief he professed to practice.
2) r.8 - assignment by court:
- when assigned, A&S shall accept the brief & shall do his best.
ACCEPTANCE OF BRIEF
Conflict of interest - the rule
1) embarrassment - r.3
- i.e. personal relationship
2) impugned - r.4
- may not accept if professional independence may be impugned.
3) difficult - r.5
- may not accept if it is difficult to maintain professional independence.
- e.g. appear for opponent in other proceedings.
ACCEPTANCE OF BRIEF
conflict of interest - application
1) Appear for opponent in other proceedings - Aw Sing Moey v Melombong Perumahan Sdn Bhd:
- other proceedings mean proceedings that are intimately connected with the current one.
2) previous client is the opponent of the current one - Tan Kim Hor v Tan Heng Chew:
- A&S shall not accept the brief.
3) attended EGM - Tunku Moksin v Bukit Barisan Sdn Bhd:
- A&S shall not accept brief as he has all information on the resolution of EGM.
4) developer & purchaser - S.84:
- may not act for both.
ACCEPTANCE OF BRIEF
Inability to appear - the rule
r.6:
- shall not accept unless he is reasonably certain of being able to appear;
- shall not withdraw once accepted, unless reasonable & sufficient notice is given.
ACCEPTANCE OF BRIEF
Inability to appear - application
Awaluddin bin Suratman v PP:
- A&S shall not abandon his client at the middle of trial.
APPEARANCE IN COURT
Overview
1) Pecuniary interest
2) Witness
3) Personal relationship
4) Represented party
APPEARANCE IN COURT
Pecuniary interest
r. 27(a):
- no appearance if he has pecuniary interest.
The rationale - RS Muthiah v Pembinaan Fiba Sdn Bhd:
- rule of prudence & good sense dictates that he should not accept his brief.
The rationale - Bonafac Lobo v Wong Wooi Meng:
- Rule 27 LPPER is to ensure A&S remain objective when conducting their case.
Application - Tanjong Marina Management Sdn Bhd v Penang Port Sdn Bhd:
- Mr. BH Lawrence has the direct personal and/or pecuniary interest in the Plaintiff being its Executive Director and shareholder;
- he has sworn all affidavits for and on behalf of the Plaintiff showing that he is the person who is directly and actively involved in the affairs and management of the Plaintiffs company.
- on a balance of probabilities and in the interest of justice that the firm of solicitors, Messrs. BH Lawrence, its partners, and/or legal assistants should be disqualified or barred from representing the Plaintiff as its advocates and solicitors in this proceeding.
Presenting himself - Bonafac Lobo v Wong Wooi Meng:
- Court held that the Plaintiff was barred from representing himself during the proceeding because he had already appointed the firm to represent him.
- Order 5 r 6 ROC 2012 clearly state that any person could bring and carry on proceedings either by a solicitor or in person and cannot be both.
- Court also held that to allow Plaintiff to take part in the proceeding would also contravene Rule 27 LPPER because he is claiming damages for himself as well.
- as r.27 is to ensure that the A&S remains objective when conducting their case, their impartiality could be called in question if they are pecuniary interested.
- OTF, court allowed preliminary objection filed by opponent opposing the Plaintiff’s own appointment.
APPEARANCE IN COURT
Witness
1) The rule - r.28:
- no appearance if he is witness.
2) Testifying witness - Million Group Credit v Lee Shoo Khoon:
- solicitor shall not appear if he will be the witness for the matter in dispute.
APPLICATION - Syarikat Pengangkutan Sakti Sdn Bhd v Tan Joo Khing T/A Bengkel Sen Tak:
- preliminary objection against counsel acting for the Plaintiff was allowed as the counsel for the Plaintiff would be called as a witness in the case.
- Court held that to allow the Plaintiff to do so would be gross misconduct on the part of the A& S who appeared.
3) Affirming affidavit - Abdul Halim v Pengarah Penjara Taiping:
- solicitor shall not affirm affidavit on behalf of his client.
4) Non-contentious matter - Lee Kam Sun v Ho Sau Lin:
- the rule is not applicable if the testimony of witness is required for non-contentious matter.
5) Possibility of being called - Lee Ah Hah v Teh Chin Lan & Ors:
- The possibility of being called does not automatically trigger r.28.
APPEARANCE IN COURT
Personal relationship
1) the rule - r.3:
- personal r/ship leads to embarrassment;
- A&S shall not appear if he is embarrassed.
2) meaning of personal relationship & pecuniary interest - Vijayalakshim Devi v Saraswathy Dev:
- PR: the fact or state of being related.
- PI: interest relating to money or monies’ worth.
3) example - family members - Vijayalakshim Devi v Saraswathy Dev:
- A&S shall not act for family members
4) example - husband & wife - RS Muthiah v Pembinaan Fiba Sdn Bhd:
- A wife cannot represent a company where her husband is the MD.
APPEARANCE IN COURT
Represented party
1) The general rule - r.42:
- r.42: shall not communicate with represented party.
- r.54: substitution is allowed with consent of previous solicitor.
2) Application - Techncrew Sdn Bhd v Nurhamizah Hamzah & Ors:
- court highlighted r.42;
- conduct of solicitor who was represented triggered r.42, although the solicitor is the client’s friend.
2) The rule on substitution - r.54:
- Conditions for substitution:
- consent of previous A&S; or
- remuneration has been paid; or
- inability to appear; or
- unwilling or refusal to appear.
- Conditions for lien:
- GR: Kempas Arowana Sdn Bhd v Tay Ah Gee: A solicitor has a lien on the documents when the client has failed to pay legal fees.
- Inggeris James Bibby Ltd v Woods [1949] stated that “A solicitor’s lien is of two-fold character. He has a lien on the papers of his clients which are in his possession, and he can refuse to give up those papers so long as his costs are not paid…” Ref. to Ramayah @ Ramasamy a/l Etican v Hussin bin Dahlan [1993] 2 AMR 51.
- r.55: an advocates and solicitor shall not withhold client’s papers to the detriment of the client.
- Rule 9.02 Bar Council Ruling: No advocate and solicitors shall retain client documents or files in exercise of his lien if the subsequent A&S undertakes to settle the former solicitors’ fee or taxed cost.
- M-Wealth Corridor Sdn Bhd v Chan Tse Yuwn & Co. Ltd: - Lien is a passive and not an active right.
- Lien does not extend to in allowing A&S to make an application to LHDN for refund of taxes paid in satisfaction of the fees owed by their client.
PERFORMANCE IN COURT
Overview
1) Dress code
2) Ready & avoid postponement
3) Do not delay
4) Conduct in criminal proceedings
5) Conduct in civil proceedings
6) Asking questions
7) No deception
8) Respect for the court
PERFORMANCE IN COURT
Dress code
1) the rule - r.30:
- wear robes at appropriate time & place.
2) application - PP v Shafee Abdullah:
- CA reminded the counsel that lawyers are not allowed to wear robes when representing himself as an accused.
PERFORMANCE IN COURT
Ready & avoid postponement
1) Ready & no postpone - r.24:
- Advocate and solicitor to be ready for the day fixed for trial;
- apply for postponement for good and cogent reasons only.
- notice of intention to make the application for postponement 48 hours prior.
2) Failure to attend - Syarikat Siaw Teck Hwa Realty v Malek & Joseph Au:
- failure to attend is a blatant non-compliance & a total disrespect for the court.
3) Personal problems - Sharma Kumari v PP:
- personal problems cannot be a ground to interfere with the schedule of the court.
PERFORMANCE IN COURT
Do not delay
r. 12:
- shall not take the brief if he intends to delay the proceedings.
PERFORMANCE IN COURT
Conduct in criminal proceedings
r. 9 - defence:
- undertakes all defence provided by the law/
r. 10 - prosecution:
- conduct prosecution that does not lead to conviction.
Tombling v Universal Bulb Company:
- counsel must make every effort to succeed.
