Etika Perundangan/Legal Ethics

1. Tujuan:
Menerangkan tentang peranan peguam dalam
pelbagai forum antaranya dalam masyarakat dan
profesyen. Dihujahkan bahawa peguam mempunyai
peranan yang besar dalam memastikan kebajikan
masyarakat, namun disebabkan oleh meningkatnya
aduan berhubung kelakuan peguam, kemurnian
profesyen ini menjadi semakin tercabar.
TOPIK: PERANAN PEGUAM

2. Kritikan terhadap profesyen
 'The first thing we do, let's kill all the
lawyers' Shakespeare: Henry VI, Pt 2.
 Malaysian society is dissatisfied with
legal profession.
Manjeet Singh Dillon, The Legal Profession-Back to the Future [1992] 1 MLJ
lxxiii, lxxiv.
 1981 – 104 aduan; 1994 – 797 aduan.
Rachagan, S S, ‘The Role of Lawyers and Bar Council in Society’ [1995] 2
MLJ xxix

3. Hickling, R H, Legal Profession 1983,
Survey of Malaysian Law 1983, 254.
…the legal profession is not probably, particularly
highly regarded by the Malaysian public at
large. The public will be well aware of the
nature of fees demanded and received by
lawyers, and see them as group of professional
men and women whom tend to regard their
profession as a business rather than a vocation.
In consequence, eloquent spokesman of the
highest principles of liberty, truth and justice,
there are others who are observed by a cynical
public and a critical press. A few black sheep
can give an honourable profession a bad name.

4. Sebab-sebab peningkatan
kritikan
 Salahfaham mengenai fitrah cara kerja
peguam; R H Lord Denning, The Honest Lawyer [1983] 2 CLJ
174
 Meningkatnya tahap pendidikan orang
ramai;
 Lapuran yang salah oleh media;
 Penglibatan orang awam dalam
mendisiplinkan peguam.

5. Peranan Peguam
1. Our essential function can be stated simply: to ensure
that both sides of a dispute are heard, and that each side
can be argued strongly, whatever the nature of the cause,
and however popular or unpopular it might be, and
without any comeback against the advocate.
2. It is not enough for us simply to argue our cases and
stick to our last. It is important that as a profession, with a
special learning, experience and perspective, we
contribute to the law or procedures.
RH Lord Alexander of Weedon QC, The Role of Advocate in our Society [1992] 1 MLJ xxxvii.

6. Legal Profession Act 1976
s.42 Object and Powers of the Bar
 (1) …
 (a) to uphold the cause of justice without
regard to its own interests or that of its
members, uninfluenced by fear or
favour;
 (g) to protect and assist the public in all
matters touching ancillary or incidental to
the law;

7. Majlis Peguam Yang Bebas
Dr Chandra Muzaffar, Importance of an Independence Bar in Malaysia
1983] 2 CLJ 231
 An independent Bar is not one that is uninvolved in public
debate, that does not take sides on ethical issues. To borrow a
concept from international relations, an independent Bar is one
that is not aligned. It is, in other words, a non-aligned Bar. It
may support the government on one issue and oppose it on
another; it may concur with the opposition on some other
controversy and yet disagree with it on a different matter. Its
crucial characteristic is that it is not aligned, on an institutional
basis, to either the government or the opposition. Neither is it
attached to any other group or interest.
 an independent Bar will not allow itself to be swayed by ethnic
considerations. It cannot permit ethnic biases to influence the
entrance requirements of, or disciplinary actions against, its
members. Neither, should ethnicity condition the Bar’s attitude
towards public issues. Only if it is free of ethnic pulls and
pressures can the Bar claim to protect the professional interests
of its members.

8. Teori Perlumbaan “Sporting
Theory”
 JS Mill mengatakan ‘adversarial trial”
…as a sort of game, partly of chance,
partly of skill, in which the proper end to
be aimed at is not that then truth be
discovered, but both parties may have
fair play..
 Roscoe Pound: …the idea that
procedure must of necessity be wholly
contentious…disfigures our judicial
administration at every turn.

9. Sistem Adversari
 Pihak dalam litagasi, melalui peguamnya
bertanggungjawab mengemukakan
keterangan di hadapan penimbangtara
yang pasif.

10. Kritikan
 In the adversary system, "[t]he advocate's
prime loyalty is to his client, not to [the] truth as
such." As a result, the practicing lawyer, while in
pursuit of the client's interests, can spend a lot
of time actually attempting to avoid or subvert
the truth that the system is supposedly seeking.
The unfortunate result of this "win at all costs"
mentality is that "legal victory does not
necessarily follow virtue; it sometimes goes to
the wily warrior."

11. Rupabentuk Peraturan
mengawal kelakuan
Sesama
peguam
Terhadap
Mahkamah
dan Hakim
Terhadap
anakguam
Menjaga
kepentingan
keadilan
Menjaga
kepentingan
profesyan

12. ADVOCATE DUTY
TO CLIENT

13. Advancing client’s interest
 Two underlying principles (a) partisanship; (b) neutrality.
 Partisanship illustrated in Queen Caroline case
‘An advocate, in the discharge of his duty, knows but one person in all the
world, and that person is his client. To save that client by all means and
expedients, and at all hazards and costs to other persons, and, among
them, to himself, is his first and only duty; and in performing this duty he
must not regard the alarm, the torments, the destruction which he may
bring upon others. Separating the duty of a patriot from that of an
advocate, he must go on reckless of consequences, though it should be
his unhappy fate to involve his country in confusion.’

14. Neutrality
 Tom Paine’s case
 Erskine replies to the request not to defend Tom Paine;
 ‘I will forever, at all hazards, assert the dignity, independence and integrity
of the English Bar, without which impartial justice, the most valuable part
of the English Constitution, can have no existence. From the moment that
any advocate can be permitted to say that he will, or will not, stand
between the Crown and the subject arraigned in the court where he daily
sits to practice – from that moment the liberties of England are at an end.
If the advocate refuses to defend, from what he may think of the charge or
the defence, he assumes the character of the judge; nay, he assumes it
before the hour of judgment; and, in proportion to his rank and reputation
puts the heavy influence of perhaps a mistaken opinion into the scales
against the accused, in whose favour the benevolent principle of English
law makes all presumption, and which commands the very judge to be his
counsel.’

15. Rondel v Worsley [1967] 3 All ER
993
 Duty to act fearlessly.
 Every counsel has a duty to his client
fearlessly to raise every issue, advance
every argument, and ask every question,
however distasteful, when he thinks will
help his client’s case.

16. Cont..
 But, as an officer of the court concerned in the
administration of justice, he has an overriding duty to the
court, to the standards of his profession, and to the public,
which may and often does lead to a conflict with his client’s
wishes or with what the client thinks are his personal
interests. Counsel must not mislead the court, he must not
lend himself to casting aspersions on the other party or
witnesses for which there is no sufficient basis in the
information in his possession, he must not withhold
authorities or documents which may tell against his clients
but which the law or the standards of his profession require
him to produce.

17. Zainur Zakaria v PP [2001] 3 CLJ; [2001] 3
MLJ 604
 The counsel in this case was cited for contempt by the
trial judge when he applied for the disqualification of the
AG and Azhar Mohamed (DPP) from conducting the
prosecution of DSAI. At the Federal Court, the learned
FCJ acknowledged the duty of counsel to act fearlessly
and protect the interest of his client, thus held that the
conduct does not amount to contempt and there are
reasonable justification for the application.

18. Diligence & Competence
 Mohd Noor Dagang case, failure to call material witness and to
produce relevant documents is negligence. So does failure to inform the
date of trial.
 ‘It may be a common practice for an advocate and solicitor to remind a
client or his witness to be present in court on an appointed date, but my
view is that, there is no legal obligation to do so. Failure to remind a
client to attend court is therefore not a negligent act if, as in the instant
case, the advocate and solicitor had taken all the necessary and
reasonable steps to inform the client. Neither the LPA 1976 nor the rule
make thereunder provide for such a specific obligation, even though in
all cases, there is, a matter of etiquette, a need for an advocate and
solicitor to always uphold the interest of his client, which in particular
case, would include ensuring the latter's appearance in the court.’
 ‘reasonably competent advocate and solicitor’,
 Kesang Leasing Sdn Bhd v Tetuan Zul Rafique & Partners (sued as a
firm) [2015] 7 MLJ 573

19. Mirinda v Khoo Yew Boon
 while a solicitor is not expected to know
every statute, there are statutes some of
which it is his duty to know.’

20. Sykt Siaw Teck Hwa Realty
[1999] 5 MLJ 588
 Failure to attend court was against the LPA 1976.
 “His failure to attend court on the date scheduled for the hearing of
the appeal was a blatant non-compliance with the relevant
provisions of the Legal Profession (Practice and Etiquette) Rules
1978 and a total disrespect to the Federal Court.”


21. Ngeoh Soo Oh v Rethinasamy
[1984] 1 MLJ 126
 test ‘the reasonable care and skills to be
expected from a normally competent and
careful practitioner’.

22. To advise on client conduct
 Yee Chang & Ors
 ‘a solicitor owe a duty to the court to conduct litigation with
due propriety and to assist in promoting in his own sphere
the course of justice. If, therefore, a solicitor becomes
aware in the course of proceedings that his client is
obstructing the interest of justice, it is his duty to advise his
client as to the conduct which he ought to follow and if the
client still persists in his wrong conduct, he should decline
to act for him further.’

23. Cab Rank Rule
 ‘You shall neglect no one’s interest…You
shall not refuse cases or complaint
reasonably founded.’ Barrister oath.

24. 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.

25. Exceptions
 R3 if accepting the brief causes
embarrassment;
Embarrassment –
i. in possession of confidential
information;
ii. When there exists a personal
relationship.

26. Mere personal relationship is
not prohibited
 SARASWATHY DEVI A/P NADCHATIRAM v VIJAYALAKSHMI
DEVI A/P NADCHATIRAM [1998] 1 MLJ 89
 Rule 3 of the Legal Profession (Practice and Etiquette) Rules
1978 does not prohibit a solicitor from acting for his client
merely because he is related by blood to his client. For the
prohibition to apply, the relationship must be that of a personal
one, meaning an individual or a private relationship which is
beyond that of a solicitor and client relationship

27. Cont…
 R4 if his professional conduct is likely to
be questionable;
 R5 if difficult to maintain professional
independence
 R6 if unable to appear in court.

28. r5
 Quah Poh Keat & Ors v Ranjit Singh a/l
Taram Singh [2009] 4 MLJ 293
 The possibility that the lawyer may be
call as a witness will make him difficult to
maintain professional independence.
 See also r 28(a)

29. SUING COUNSEL FOR
PROFESSIONAL NEGLIGENCE?
 Lim Soh Wah & Anor v Wong Sin Chong & Anor
[2001] 2 AMR 2001
 Gopal Sri Ram JCA
 Our law has always differed from English law.
Advocates here have never enjoyed immunity
from suits for negligence
 Rondell v Worsley Barrister is immunity from
liability in negligence; current position, immunity
only in criminal cases not civil.

30. Dato’ Wong Gek Meng v Pathmanathan
Mylvagam [1998] 1 CLJ 625
 Nature of Counsel-Client relationship, Abdul Malik Ishak J;
At equity, the relationship between a solicitor and his client is
entirely fiduciary and it carries with it the obligations on the solicitor’s
part to act not only with fairness but also with an attitude of
openness. Failure to adhere to this onerous obligations renders the
solicitors liable to compensation for any loss incurred by his client.
On the other hand, at common law, a solicitor by his retainer must
be skilful and careful. He must put at his client’s disposal not only
his skill but also his knowledge of the law as far as it is relevant and
germane.

31. Contractual relationship
 S114 LPA 1976; advocates & solicitors may enter
into contract of remuneration.
 S117(4) ; any contract exempting advocates &
solicitors from liability if the client suffers loses is
void.