Chapter 7 - Duties of Counsel

Question 1

DUTIES OF COUNSEL

Overview

Answer 1

1) Duties to the court

2) Duties to client

Question 2

DUTIES OF COUNSEL

Duties to the court - overview

Answer 2

1) General
2) Duty of disclosure
3) Duty not to mislead
4) Attack credibility or integrity
5) Illegal transaction

Question 3

DUTIES TO THE COURT

general

Answer 3

Rondel v Worseley:

• NO MISLEAD: must not mislead the court
• NO ASPERSIONS: not to cast aspersion on the other party
• HONESTY & INTEGRITY: counsel has a duty to act with honesty & integrity

Question 4

DUTIES TO THE COURT

Duty of disclosure

Answer 4

1) Thoroughly research the law - Ablemerge (M) Sdn Bhd v Emville Sdn Bhd:

• counsel must thoroughly research the law & assist the court to reach a just decision;
• this is an onerous duty of every counsel.

2) Recent authorities - Copeland v Smith:
- advocates must keep up to date with recent authorities of the field he is in.

Question 5

DUTIES TO THE COURT

Duty not to mislead

Answer 5

1) Misrepresentation & withholding of witness - Re Jlp Harris:
- withholding & deliberately arranged witness to be kept out of prosecution was grossly improper.
2) False affidavits - Soo Shiok Liong v PP:
- counsel should prevent from being a party to a statement included in affidavit which he knew is untrue.
3) False exhibits - Rajasooria v DC:
- counsel deliberately submitting a false document was grossly improper & dishonourable.
5) relevant agreed facts & issues to be tried - Sunrise West Sdn Bhd v Pravin Ramchand:
- it is the duty of counsel to present agreed facts & issues to be tried at the case management for the proper management of justice.
6) concealment of document - Cheng Hoe v PP:
- counsel concealing documents which affect the credibility of witness was convicted for contempt.

Question 6

DUTIES TO THE COURT

Attack on credibility & integrity

Answer 6

Treating opponent - Clyne v New South Wales Bar Association:

• counsel must treat opponent with a due courtesy.
• counsel must not accuse his opponent of improper behaviour which are false & unfounded.

Question 7

DUTIES TO THE COURT

Illegal transactions

Answer 7

1) illegality not pleaded - Mercantile Credit Co Ltd
- counsel can still raise the defence even if it is not pleaded;
2) counsel’s duty - Network Foods (M) Sdn Bhd v Syabinas Holdings Sdn Bhd:
- counsel must bring to the attention of the court if it is in danger of enforcing an illegal transaction.

Question 8

DUTIES TO CLIENT

Overview

Answer 8

1) general duty
2) prosecuting officer
3) defence counsel
4) plea bargaining
5) solicitor in conveyancing

Question 9

DUTIES TO CLIENT

general duty

Answer 9

1) w/o fear - Rondel v Worseley:
- a counsel is under duty to act fearlessly & advance every argument.
2) no obstruction of justice - Yee Chang & Co Ltd v NV Koninklijke:

• counsel should advise client not to obstruct justice;
• if client persist in his wrong conduct, counsel should decline to act him for further.

3) honest endeavour - Tombling v Universal Bulb:
- a counsel owes duty to make every honest endeavour to succeed in every case.

Question 10

DUTIES TO CLIENT

prosecuting officer

Answer 10

1) Not to secure convictions & prejudice the accused - R v Banks:
- prosecuting officer have a duty not to secure conviction at all costs & not to address jury so as to the prejudice of the accused.
2) Fair presentation of the case - PP v Mohd Fadzil Awaluddin:
- PO is to lay before the court the whole fact which is relevant to the case, including the ones favourable to the accused.

Question 11

DUTIES TO CLIENT

defence counsel

Answer 11

1) presenting defence - McFadden:
- to present the court defence fearlessly & without regard to his personal interest.
2) extra-judicial confession - Tuckiar v The King:

• defence counsel is not under a duty to inform the court of the client’s confession;
• there is duty of confidentiality to the client.

Question 12

DUTIES TO CLIENT

plea bargaining

Answer 12

1) guidelines - R v Turner:

• counsel must completely free to give advices to client;
• client must have complete freedom to plead guilty or not;
• there must be freedom of access between the counsel & the judge;
• the judge should never indicate the sentence he is minded to impose.

2) retraction of plea - New Tuck Shen v PP:

• can only be done if the accused has been misled;
• onus on the accused to show such.

Question 13

DUTIES TO CLIENT

solicitors in conveyancing

Answer 13

Spector v Agenda:

• it is undesirable that solicitor is acting for both parties in conveyancing transaction.

S.84 LPA

Question 14

DUTIES TO OPPOSING COUNSEL

no personal bickering

Answer 14

Beevis v Dawson:

• counsel must not engage in personal bickering & ill-exchange of words with opposing counsel.

Question 15

DUTIES TO SOCIETY AT LARGE

the duties

Answer 15

S.42(1)(g) & (h) LPA