The document discusses the duties and professional responsibilities of lawyers. It covers 3 key areas: 1. Lawyers have a duty of competence and diligence to clients which includes meeting reasonable standards of skill and care. They must obtain necessary expertise for cases or consult experts. 2. Lawyers have fiduciary duties to clients including duties of honesty, avoiding conflicts of interest, accounting to clients, and preferring the client's interests. These duties are meant to protect clients who entrust lawyers. 3. Lawyers can be liable for professional negligence for breaching their duties of care and skill. The standard is that of a reasonably competent practitioner. Failures like missing deadlines and not informing clients can result in liability.

1. UK4244
DUTY TO CLIENT
PROFESSIONAL LIABILITY, FIDUCIARY DUTY & RISK MANAGEMENT

2. Legal
profession
(practice &
etiquette) rules
1978
2
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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
Rule 4: A&S to accept brief if professional conduct likely to be impugned
Rule 5: A&S to accept brief if difficult to maintain professional independence
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

3. 3
Legal
Profession
(Practice &
Etiquette)
Rules 1978
 Rule 24: A&S to be ready for the day fixed for
trial
 Rule 25: A&S to disclose all circumstances to
client
 Rule 31: A&S to uphold dignity of profession
 Rule 35: A&S not to abuse confidence reposed
in him by client
 Rule 40: A&S not to stand surety
 Rule 55: A&S’s lien

4. 4
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

5. A. Lawyer’s
Professional
Duty to Client
5
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DUTY SOURCES
Duty of Competence
and Diligence
CONTRACTUAL &
COMMON LAW
Duty of Honesty FIDUCIARY
Duty to Avoid Conflicts FIDUCIARY
Duty to Account FIDUCIARY
Duty to Prefer the
Clients Interest
FIDUCIARY

6. 6
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”

7. 7
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

8. Duty of competence and diligence
Timeless Accuracy
Work
Ethic
Responsi
bility
8

9. Attributes of a Good Lawyer
The Good
Lawyer
Skillful
& Reliable
Knowledge
able
Accountable
Willing & Helpful
Diligent & Timely
Careful &
Confirming to
Accepted Practices
9

10. Fiduciary duty to client
 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.”
10

11. Fiduciary duty to client
Duty of
honesty
Duty to avoid
conflict of
interest
Duty to
account
Duty to
prefer client’s
interest
11

12. 12
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”

13. 13
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”

14. 14
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.

15. 15
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.

16. 16
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

17. B.Professional negligence of lawyers 17
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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

18. Basic of claims for professional negligence
Contract
Terms of instructions
determine extent of
liability
Liability arises from
date of breach
Tort
•Liability arises from
damage occurs
•Contributory
negligence of Plaintiff
•Tort test to measure
Pre1979-ContractualBased
Post1979-Tortbased
18
Esso Petroleum Co Ltd v
Mardon (1976) QB 801 COA

19. Duty of care
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
19

20. 20
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.

21. The standard of care
Midland Bank v
Hett
Roger v
Whitaker (1992)
Kamalan a/p
Raman (1996)
Neogh Soo Oh
(1984)
Edward Wong
Finance (1984)
21
Failed to
exercise
reasonable
care & skill
Reasonably competent practitioner would do
having regard to the standards normally
adopted in his profession
Objective test conforming
to the degree of skill from
expected from a person in
the profession
General practise might not be
good

22. Liability for
breach of duty
22
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1 Filing Mof Appeal out of time Miranda v Khoo Yew Boon (1968) MLJ
2 Filing Appeal Record out of time Tan Ah Chin v Lim Kean Siew (2000)
MLJ
3 Failing to serve WoS within time K E Hiborne v New Ching Kee (1971)
MLJ
4 Failing to conduct search at Land Office Neogh Soo Oh v Rethinasamy (1984)
MLJ
5 Failing to inform client letter indicating
possible acquisition
United Indo-Singapura Corporation
(1985) MLJ
6 Failing to honour an undertaking Dato Seri Au Ba Chi v Malayan United
Finance Bhd (1989) MLJ
7 Giving incorrect advice (law is clear) Rumsey v Owen (1977)
8 Giving wrong advice on a course of an
action
Bryant v Goodrich (1966)
9 Failing to inform client progress of
matter
Stinchcombe &Cooper Ltd v Addison
(1971)
10 Failing to pursue an obvious remedy
available to client
Dickinson v Jones Alexander & Co
(1993)
11 Failing to advise client about right to
appeal
Corfield v D S Bosher (1922)

23. Liability for breach of duty 23
• Mirinda v Khoo
Yew Boon
Know Everything or
Common Ones?
• West London
Observer v Parsons
Duty to Advice or
Remind?

24. C. Counsel’s
(barrister’s)
immunity - in
England
24
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Pre 1968 Ruling in Rondel v
Worsley (1969)1 AC 191
Ruling in Arthur J S Hall
& Co v Simons (2000) 3
WLR 543
Pre-1968 in England: Solicitor
always liable; Barrister could
not liable
Purves v Lodell (Scotland)
1845
Lord Campbell: “Against
Barrister in England and the
Advocate in Scotland luckily,
no action can be maintained”
Mulligan v M’Donagh: 1860
Ireland
Pigot CB: An action against
Barrieter for neglect of duty
cannot be maintained
HOL, Lord Reid:
• Barrister immune
from negligence
related to Court
conduct
• Solicitor acting as
Advocate in lower
Court also immune
• Reason of public
policy
HOL:
• Advocate has no
immunity in Civil or
Criminal
• Abolish immunity to
strengthen legal
system through
disclosure
• Confidence eroded if
immunity kept
• Immunity is no
longer in public
interest

25. Preventive
measures
25
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Gather & read all available facts carefully
Check the updated law
Keep diary system to monitor timeframes
Do not accept cases outside area of familiarity /
competency

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

27. 27Immunity in a fussed profession
(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

28. 28
Immunity in a
fussed
profession
(Malaysia)
litigious
matters
Miranda v Khoo Yew Boon (1968)
FC, Azmi CJ:
1. An A&S is under contractual duty to use care and
this extends to the conduct of a cause;
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 immaterial to consider whether the act
is one normally done in England by a Barrister or a
Solicitor..
Lim Soh Wah v Wong Sin Chang (2001) Gopal Sr
Ram JCA:
“.. Our law has … always differed from English law.
Advocates here have never enjoyed immunity from
suits for negligence”

29. D. Mandatory Professional Indemnity
Insurance Scheme (PIIS)
Bar Council
Master
Insurance
Policy 010792
LPA
S.78A
010492
PIIS
All lawyers
irrespective
claim history
Varies
coverage for 1
year 250k-2M
PIIS negotiated
every year
based on claim
experience
29

30. E. Risk
management?
30
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Aim: Maintaining quality standards and systems that help to
reduce errors & misjudgment
Require: Lawyers to be more alert to their potential for liability
How:
• Staff, pupil & junior lawyer properly supervised
• Developed RM procedures & enforce strictly
• All exposed to potential liability
• Lawyers must learn asap

31. 31
Ethical
dilemma 2
 Can you defend a client whom you know
committed the offence?
 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?

32. 32
Ethical
Dilemma 3
 The accused to a murder charge confessed in
the office to you, his counsel. What should you
do?
 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