UniSZA

Faculty: FUHA
Programme Name: Bachelor of Law With Honours
Course Name: Ethics
Course Code: LLB 40603
Lecturer: Mdm. Ooi Chooi Gaik

1
Topic:
Professional Ethics

2
1. Questions?

• What are the qualities and criteria demanded of a legal practitioner?

• What are the ‘professional ethics’ of a lawyer?

• What are the consequences of a breach of professional ethics?

3
2. What is Ethics?

• Greek = system of rules of behaviour

• Modern usage = science of morals

• S.77 LPA

i. Empowers the Bar Council to make rules

ii. Legal Profession (Practice & Etiquette) Rules 1978

4
3. Acceptance of Brief

• R.2 : obliged to act for every person

• Exceptions:

i. R.3 : unless embarrassed

a) Possession of confidential information

b) Personal relationship

ii. R.4 : professional conduct is likely to be impugned (“subject to criticism”)

iii. R.5 : difficult to maintain professionalism

5
3. Acceptance of Brief cont.

• Exceptions under the Rulings of Bar Council 1997

i. Member of the board of directors

ii. Substantial shareholder

iii. Power of attorney of a client

iv. Representing a client in pending matter?

v. Panel of lawyers?

vi. Same firm had advised?

vii. Acted for in the agreement?

• Vijayalakshim Devi a/p Nadchatiram v Saraswathy Devi a/p Nadchathiram (beramal undang-
undangannya di bawah nama dan gaya Tetuan N Saraswathy Devi) [2000] 4 AMR 4243

i. Personal relationship v working relationship

ii. Court of Appeal’s view and Federal Court’s view

iii. Relationship of client and solicitor is based on trust

• Lai Cheng Chong v PP [1993] 3 MLJ 147

i. Failure to attend court after being on record

ii. Contempt of court

• R.24 : must be ready for trial on the day fixed

• PP v Mohtar b Abdul Latiff [1980] 2 MLJ 51

i. Only for good or cogent reasons

• Tan Pak v Cham Boon San & other action [1992] MLJ 271

i. Abuse of court’s process – a contempt of court even if no objection by the other party

• Sharma Kumari a/p Oam Prakash v PP [2000] 6 MLJ 282

i. Personal problem of lawyer of having many commitments cannot interfere with court’s schedule

8
5. Conduct in Court

• R.13 : exercise judgment on the questions put to the witness

• R.14 : refrain from attacking the character of witness

i. S.146 EA : questions lawful in cross-examination

ii. S.148 EA : court to decide, when question shall be asked and when witness compelled to answer

iii. S.151 EA : indecent & scandalous questions

iv. S.152 EA : questions intended to insult or annoy

• Nahar Singh v Pang Hong Ching [1986] 2 MLJ 141

i. Witness to be given opportunity to exculpate himself

• R v Chhoa Mui Sia [1937] MLJ 236

i. Court forbid offensive questions intended to insult or annoy

• R.18 : conduct with condor, courtesy and fairness

• Ruling of the Bar Council 1997

i. Governing notice of preliminary objections

ii. Streamlining exchange of list of authorities

• R.19 : not to refer facts not able to prove

• R.20 : to put relevant binding decision

• R.21 : improper to misquote

• R.22 : to bring attention to law in point

• R.23 : supply court with all information

11
6. No Deception in Court

• R.17 : not practise any deception

• R.26 : avoid any mislead to the unrepresented

• Re Ram Goswami [1988] 3 MLJ 376

i. Mitigate on bail money which was untrue

• Cheah Cheng Hoc v Public Prosecutor [1986] 1 MLJ 299

i. Concealment of document to affect witness credibility

12
7. Duty to Undertake Defence Fairly

• R.9 : to present all defence in fair and honourable manner

• R.10 : prosecution not to lead conviction of innocent

13
8. Respect The Court

• R.15 : respectful attitude towards court

• AG & Ors v Arthur Lee Meng Kuang [1987] 1 MLJ 206

i. Wrote letter to Supreme Court hearing appeal

• PP v Seeralan [1985] 2 MLJ 30

i. Accuse magistrate to be biased, unfair and prejudice

• Trustees of Leong San Tong Khoo Kongsi v SM Idris & Anor [1990] 1 MLJ 271

i. Press release of Supreme Court’s decision

ii. Dignity and integrity of Supreme Court provided under A.126 FC and S.13 CJA 1964 v. freedom of speech
under A.10 FC 14
8. Respect The Court cont.

• AG v Manjeet Singh [1991] 1 MLJ 167

i. Affidavit for application for leave for an order of committal to prison of LP

• Rhina Bar v Malaysian Bar [1994] 1 MLJ 24

i. Constitutional right under A.5 to have services of counsel

15
9. Dignity of The Profession

• R.16 : uphold interest of client, justice and dignity of profession fearlessly without regard to any
unpleasant consequences

• R.31 : uphold dignity and high standing of profession

• R.43 : not to volunteer advice to stir up litigation

16
10. Conduct Towards Opposing Party

• R.32 : not to allow client’s feelings to influence their relation with others

• R.33 : treat adverse witness with fairness and consideration

• R.34 : may interview witness without consent but subject to notice

17
11. Duty to Client

• R.25 : disclose relationship to client

• R.35 : refrain from taking advantage of confidence given

• S.126 EA : professional communication privilege

• R.36 : prevent clients from doing which he would not do

• Chua Su Yin & Co v Ng Sung Yee & Anor [1991] 2 MLJ 348

i. In order to claim privilege, there must be client–solicitor relationship

18
12. Conduct Towards Fellow Lawyers

• R.42 : shall not communicate with person who already has a lawyer (unless compelling reasons)

19
13. Attire

• R.30 : restrictions of robes on certain occasions

• Rulings of the Bar Council 1997

i. Attire in Open Court matters in High Court, Court of Appeal and Federal Court

ii. Chamber matters in High Court and all Subordinate Court matters

20
14. Advertisement

• See : Presentation Notes on Legal Professional Business

21
15. Legal Profession to be Only Profession

• See : Presentation Notes on Legal Professional Business

22
16. Remuneration

• R.7(a) : prohibits accepting any remuneration for work done in the capacity of MP or State Legislature

23
17. Assignment of Cases

• R.8 : for assigned cases, not to ask to be excused for trivial reasons and not to treat as second class
case

24
18. Surety or Bailor

• R.40 : prohibits being a surety or bailor on behalf of client

i. S.294 and 173A CPC : allows the court to sentence binding over. Not to act as surety in such a case as well

25
19. Fees For Litigious Matter

• See : Presentation Notes on Legal Professional Business

26
20. Contingency Fees

• See : Presentation Notes on Legal Professional Business

27
 21. Advocate And Solicitor As Witness

• R.28 : not appear if he will be a witness in that case

• R.29 : shall not testify on behalf of client

• Abdul Halim bin Abdul Hanan & Ors v Pengarah Penjara Taiping & Ors [1996] 4 MLJ 54

i. Unethical to swear substantial affidavit for client and later plead for his case

• Sykt Pengangkutan Sakti Sdn Bhd v Tan Joo Khing t/a Bengkel Sen Tak [1997] 5 MLJ 705

i. Court has power to refuse lawyer to appear if would be a witness

• Samsuri Welch bin Abdullah @ Samuel Ponniah Welch v Ong Liang Hee & Anor [1999] 3 AMR
2955
28
i. Affidavit affirmed by counsel contravenes O.41 R.5 RHC as no personal knowledge
22. Touting

• See : Presentation Notes on Legal Professional Business

29
23. Sharing of Profits

• See : Presentation Notes on Legal Professional Business

30
24. Charge of Solicitors

• R.54 : shall not act unless with prior consent of former lawyer

• O.64 RHC : notice of change of solicitors

• Yukilon Manufacturing Sdn Bhd v Dato’ Wong Gek Meng & Ors [1998] 5 MLJ 1

i. Filing for application does not automatically renders a lawyer to be on record

ii. Former lawyer still on record

31
25. Lien

• R.55 : should not withhold the client’s paper to the detriment of client except to secure his first to lien

32
26. Obtaining Judgment By Default

• R.56 : must give 7 days notice before taking JID

• RHB Finance Bhd v CN Network (M) Sdn Bhd [2000] 5 MLJ 686

i. Failure to give notice, court may set aside JID even though no breach of RHC

33
27. Extension of Time to Plead

• R.57 : if extension is given, lawyer must accept short notice of trial

34
28. Objection to Admissibility

• R.58 : not object to admissibility of unstamped document unless the objection goes to the root of the
subject matter or the suit

35
29. Branch Offices

• See : Presentation Notes on legal Professional Business

36