EPS 2017 QB5 - Edited (WA-18-1141-08 - 2017)

EPS0317/QB05/SRMK(5)
Bar Council Malaysia

Ethics and Professional Standards Course: Written Assessment
Instructions and terms for the Written Assessment
(1) Please note that this assessment is a mandatory part of the Ethics and Professional Standards
Course.
(2) Please prepare answers to the following five questions, and submit this document back to
[email protected] when you have completed your answers.
(3) Please write your answer in the space provided, and ensure that each answer does not exceed
300 words.
(4) Please note that your answer should not comprise of any plagiarised material / content from
any source, and while you may refer to statutory provisions and cases and materials for the
purposes of writing the answers, if you are found to have plagiarised any material / content,
you will be deemed to have failed the Ethics and Professional Standards course, and may not
be allowed to re-do the course.
(5) Please note that your answer should not be copied from any source (including the work of
other pupils in chambers), and if you are found to have done so, you will be deemed to have
failed the Ethics and Professional Standards course, and may not be allowed to re-do the
course.
(6) Please note that your answers should be written only by you, and not by any third party,
whether for payment or otherwise. If it is discovered that your answers have been written by
a third party, you will be deemed to have failed the Ethics and Professional Standards course,
and may not be allowed to re-do the course.
Please insert your full name and Bar Council Petition Number below. This will be treated as an
acknowledgement that you have read and understood the terms of this assessment.
Name: NUR ATHIRAH BINTI MOHD NORDIN

Petition No: WA-18-1141-08/2017
Date: 13 MARCH 2018
Module 1: Role of the Bar: Question 1

What role do lawyers and judges play in promoting the Rule of Law?
The Rule of Law is a principle that stipulates that an authority is only legitimate if it is exercised in
accordance with the laws of the land. In common law countries, the rule of law is sustained primarily
by an independent judiciary and lawyers who are responsible in providing the community with legal
advice and representation in the Courts.
The Rule of Law is critical to a free society as it encompasses the principles of constitutional
supremacy and separation of powers. Lawyers and judges play a role in promoting the Rule of Law
by preserving the status of the Federal Constitution as the supreme law of the land. Any law that
conflicts with the Federal Constitution is deemed void to the extent of its inconsistency. Thus,
lawyers and judges have a duty to uphold the Rule of Law by challenging any law that is arbitrarily
made or that is made by persons acting ultra vires.
Further, democratic societies also place great importance on the concept of separation of powers
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which provides for the separation of the government into three branches exercising distinct
functions which are the Legislative, the Executive and the Judiciary. As these branches should be
independent and free of each other's influence, lawyers and judges also help to promote the Rule of
Law by ensuring the independence of these branches of government.
The rule of law also stipulates that the law is equally applicable to everyone, even to the
government. Thus, lawyers and judges have a duty pursuant to Section 42 of the Legal Profession Act
1976 to uphold the cause of justice and apply the law equally without regard to its own interests or
that of its members, uninfluenced by fear or favour.
Module 2: Professional Ethics: Question 2

You are asked to represent a lady in a dispute with a bank over an unpaid loan. You advise the lady
to settle the debt with the bank, and discuss the assets and sources of income available to her, and
work out a repayment plan which she can live with. With these instructions, you then approach the
Bank’s solicitors and negotiate a settlement.
Soon after that, your client’s husband approaches you for help. He says his wife has told him you are
a very good lawyer. It seems their marriage is in trouble and he would like you to act for him in
divorce proceedings against her.
Discuss with reasons whether you can accept the brief. Are there any safeguards you should
put into place for you to take on the case?
Rule 3(a) of the Legal Profession (Practice & Etiquette) Rule 1978 (“Rules”) provides that an advocate
and solicitor should not accept a brief if he is or would be embarrassed. “Embarrassment” according
to Rule 3(b)(i) of the Rules arises, inter alia, where the advocate and solicitor is in possession of
confidential information as a result of having previously advised another person in regard to the
same matter.
Pertaining to this case, I had previously represented the wife against a bank in a dispute over an
unpaid loan. However, the husband has approached me to act for him in a divorce proceeding
against the said wife.
This situation may not fall under the scope Rule 3(b)(i) as it may be argued that the two matters are
not the ‘same matter’ as envisaged under the Rules. This is due to the fact that the initial proceeding
where I acted for the wife against the bank was not a domestic related matter.
However, if I do decide to act for the husband in a divorce proceeding against the wife, I must be
mindful of the confidentiality issues that may arise. The duty of confidentiality subsists even after
the conclusion of a case as provided under Rule 35(b) of the Rules. Therefore, I have a duty to
maintain my silence on all matters that were confided in me by the wife for the purpose of the
previous proceeding against the bank and these matters may not be used against her in the divorce
proceeding. If these matters actually form the bulk of the divorce proceeding, I may want to
reconsider my decision to act for the husband as I would not be able to represent him to the fullest
capacity which would be unfair to the husband.
Module 3: Duty to and in Court: Question 3

A has been engaged to act for a very important client. He is keen to impress his client and is aware
that his client, the Plaintiff, wants him to be aggressive.
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A has filed an application to strike out the defence in the case, and served this on the Defendant's
lawyers at the beginning of December. The deadline for filing of the affidavit in reply expires on
Friday the 20th December. His opponent, who is celebrating Christmas, intends to go on leave from
17th December. The Defendant is already away overseas and cannot be reached.
A receives a request, on 15th December, for a two-week extension of time to file the affidavit. The
hearing is fixed for 7th April next year.
Discuss whether A should grant the request for an extension of time, giving reasons for your
answer.
In conducting a case and their business, lawyers should act in a courteous, candid and fair manner.
There is one basic premise that forms the foundation of the rules and customs of courtroom
etiquette which is that due consideration and respect should be given for the interests and concerns
of all parties involved in the administration of justice. This is reflected in Rule 18 of the Legal
Profession (Practice & Etiquette) Rules 1978 (“Rules”) whereby the conduct of an advocate and
solicitor before the Court and in relation to other advocates and solicitors shall be characterised by
candour, courtesy and fairness.
Pertaining to this case, it is generally considered bad practice to apply for an extension of time but it
is possible to obtain such extension by agreement between the parties if the circumstances really
justify it. It is undeniable that A should give due consideration to his client’s request for him to be
aggressive in conducting the case but he should also show due respect his opponent. This is because
based on Rule 18 above, it is important to conduct your legal battles with friendliness, courtesy and
honesty and to be sensible and fair at all times. Considering that the Defendant’s lawyer will not
have adequate time to prepare the affidavit in reply and that there is plenty of time before the
hearing date, it may be more advantageous for both parties if the extension of time is granted in
order to ensure proper administration of justice.
However, it remains to be said that A must be mindful to first and foremost protect the interests of
his own client and ensure that the extension of time will not prejudice or be detrimental to his own
case.
Module 4: Solicitors Accounts and Undertakings: Question 4

Give reasons why `Client Accounts' should be audited.
Legal firms are required to maintain two separate accounts for keeping funds; an office account and
a client account. Under Rule 2 of the Solicitor’s Account Rules 1990 (“SAR”), “client’s money” means
money held or received by a solicitor on account of a person for whom he is acting in relation to
holding such money as a solicitor or in connection with his practice as a solicitor, agent, bailee,
stakeholder.
The manner by which the operation of client accounts are to be audited are governed by the
Accountant’s Report Rules 1990 (“ARR”). It provides that the client account is subject to a yearly
audit and that before the partners of the law firm will be entitled to renew their practising
certificates, an Accountant’s Report relating to the previous twelve (12) months of practice must be
issued certifying that the account has been properly conducted. Thus, the obligation to maintain
client accounts and to produce the Accountant’s Report rests with the partners of the firm.
Lawyers have a strict duty to keep clients funds separate from their own because even though the
money is held by the lawyer, it remains the property of the client. However, many lawyers do not
understand the sanctity of their role as trustees of their client’s funds. There are many instances of
lawyers ‘borrowing’ funds from their clients or using the funds from one client to pay the costs and
expenses of another. Many are unaware that this is absolutely prohibited and that such borrowing
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amounts to a breach of trust and can render the solicitor liable to disciplinary proceedings under the
Legal Profession Act (“LPA”). Therefore, it is of absolute importance that client accounts are audited
to ensure transparency in such accounts.
Module 5: Duty to Client: Question 5

You are engaged to identify legal risks arising from a transaction between Rich Co and another
company.
You identify several issues that are not favourable to Rich Co but also several that represent little or
no risk. You communicate all this to the Managing Director of Rich Co.
The Managing Director of Rich Co is an old friend, and asks you to address the Board of Directors
with your findings. He also asks that you dress up your report to the Board, so that the several
unfavourable issues are downplayed.
He explains that as the Managing Director, he believes that the risks are worth taking because the
commercial advantages of the deal with the other company clearly outweigh the legal risks of
proceeding with the transaction.
Is there any harm in doing as the Managing Director asks? Are there any risks to yourself, if you do?
Pertaining to this case, it may not necessarily be advisable to act as the Managing Director
instructed. In discharging their duties, lawyers owe, amongst others, certain fidicuary duties to their
clients. For instance, lawyers have the duty to act honestly and to inform the clients of the actual
merits and risks of the case. This duty is reminiscent to the duty found under Rule 16 of the Legal
Profession (Practice & Etiquette) Rules 1978 (“Rules”).
Further, lawyers also owe a fiduciary duty to prefer the clients’ interests over their own personal
interests. They must not allow their own personal agenda or interests get in the way of them giving
sound advise to the client. Thus, lawyers must be mindful in discharging their duties to prioritise the
clients’ interests and benefits above anything else as the duty to act sincerely and honestly for the
client is paramount, provided that it does not compromise the lawyers’ duty to the Court.
Accordingly in this case, it is immaterial whether in the Managing Director’s opinion, the commercial
advantages of the deal outweighs the legal risks. The client should be provided will all the necessary
and relevant information relating to the transaction in order for them to make an informed decision
of their own.
Moreover, if I do decide to do as the Managing Director asks, there is a risk of breaching the
fiduciary duties stated above. As a result I may be subjected to a professional negligence suit for my
failure to act honestly and sincerely in dealing with the client. If I am found to have acted not in
accordance with the Rules, I may also be subject to disciplinary proceedings. Additionally, it may also
hurt my personal reputation as a lawyer as well as the firm’s reputation in general.

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EPS0317/QB05/SRMK(5)

Bar Council Malaysia

Name: NUR ATHIRAH BINTI MOHD NORDIN

Module 1: Role of the Bar: Question 1

Module 2: Professional Ethics: Question 2

Module 3: Duty to and in Court: Question 3

Module 4: Solicitors Accounts and Undertakings: Question 4

Module 5: Duty to Client: Question 5

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