DUTIES OF COUNSEL

Duties to the Lord Denning in Rondel v Worsley: “A&S has a duty to the Court which is paramount. It is a
Court mistake to suppose that he is the mouthpiece of his client to say what he wants, or his tool to do
what he directs. He is none of these things. He owes allegiance (commitment) to a higher
cause. It is the cause of truth and justice.”

Thus, A&S owes a higher duty to court than to client ‘for true administration of justice’. Public
policy grants the counsel immunity from being sued for professional negligence in conduct of a
cause, criminal or civil.

➢ Duty not to mislead the court

a) A&S cannot knowingly offer or rely on false evidence or misstate facts in
argument or inducing a witness to state misleading evidence.
b) Cheah Cheng Hoc v PP: concealing a document affecting the credibility of a
witness could be liable for contempt of court for obstructing proper conduct of
case.
c) Re An Advocate and Solicitor: preparing a false affidavit could result into
penalty of striking of the roll or suspend practice for a period with payment of
costs.
d) Mohd Samsudin Ismal v Tan Yeow Hwa: A&S who represents litigants in court
should not attempt to split words into distinct segment and take the court on a
wrong route to suit his or her agenda just to sway the court to give decision in his
or her favour.

➢ Duty not to withhold authorities

a) A&S are under a positive duty to make full disclosure of all the binding authorities
relevant to a case. This means that all such authorities on point must be brought
before the court, whether they support or undermine the position being argued by
that party, even if opposing counsel has not cited such authority. This element of
the duty includes drawing a judge’s attention to any legal errors which have been
made so that they can be corrected.

➢ Duty not to misrepresent witness giving evidence in court

➢ Duty not to cast aspersions on witness without sufficient proof
➢ Duty to prevent court from enforcing illegal transactions

Duties towards The relationship between an A&S with his client is one of fiduciary relationship. The word
client ‘fiduciary’ derives from the Latin ‘fiducia’ meaning trust or confidence. Therefore, in a
fiduciary relationship, one person (the client) places his or her confidence, reliance and trust in
another (the advocate and solicitor), whose advice is sought in some matter.

Bearing in mind the nature of a fiduciary relationship, the main duty of an advocate and
solicitor towards his client is the act of loyalty. In general, it is the duty of the A&S to raise
every issue, advance every argument & ask every question, however distasteful, which he
thinks will help his client’s case – Rondel v Worsley.

Duty to accept brief: It flows from the cab rank rule that A&S is bound to give advice on or
accept any brief in the Court in which he professes to practice at a fee that is proper with the
nature and complexity of the case. However, he may refuse a particular brief provided that he is
able to justify his refusal in the special circumstances.

At the commencement of his engagement and during the continuance thereof, an A&S shall
make full and frank disclosures to his client relating to his connection with the parties and any
interest in or about the matter involved as are likely to affect his client’s judgement in either
engaging him or continuing the engagement;
Shall not ordinarily withdraw from an engagement once it is accepted without sufficient cause
and unless reasonable notice is given to the client;

Shall not appear in court or in chambers in any case in which he has reason to believe that he
will be a witness, and if after being engaged by his client in a case, it becomes apparent that he
will be a witness, he should not continue to appear as an advocate and solicitor for his client. It
is his duty to retire, if he can without jeopardizing his client’s interests;

To exercise reasonable care and skill in giving his advice and taking the necessary steps and/or
action in respect of the matter involved which is demanded of a competent and reasonably
experienced advocate and solicitor – Tetuan Theselim Mohd Sahal v Tan Boon Huat;

To fearlessly uphold the interests of his client by all fair and honourable means without regard
to any unpleasant consequences to himself or any other. He shall defend a person accused of a
crime regardless of his personal opinion as to the accused and he should advance every
argument and ask every question which he thinks will help his client’s case, however distasteful
they may be – Rondel and Worsley, r.9 LPPER;

In brief, this means that an advocate and solicitor can do his best to create a doubt in the judge’s
mind so as to convince the judge that favour shall lie on his client without creating an artificial
defence that bears no truth;

To refrain from doing anything whereby he abuses or takes advantage of the confidence
reposed in him by his client for his personal benefit or gain and that this duty to maintain his
client’s confidence remains even after his employment with the client has ended8. The rationale
behind maintaining a client’s confidence that outlasts his employment is because an advocate
and solicitor should never make use of any weak points or material facts of his former client for
winning the case of another client. In all circumstances, the advocate and solicitor should strive
to earn the good faith and confidence of his client by discharging his duties diligently and with
integrity;

To avoid conflict of interest in cases whereby the advocate and solicitor who acts for a client in
various civil suits is asked to act for another party against the client, if the client can show that
specific information may be used by the advocate and solicitor which would give rise to a
conflict of interest or that the advocate and solicitor holds a current retainer from that client –
RS Muthiah v Pembinaan Fiba, Rule 6.05 BCR;

Shall not act on the instruction of any other person than his client or his authorized agent;

To pay money that was received from the client into the client’s account without any delay –
Rule 3 SAR.

Furthermore, notwithstanding that the rule permits the withdrawal of a client’s money ‘for the
payment to or on behalf of the client’, an advocate and solicitor has a duty to not use the
client’s money to settle his liability to some other client;

To ensure that he makes every effort to be ready for trial on the day fixed and that
postponement of a case fixed for hearing should only be done for good and cogent reasons. An
advocate and solicitor should not conduct cases in a manner with the intention to delay
proceedings as doing such is to disregard the client’s interest;

To communicate effectively and promptly with his client. As a matter of common practice and
courtesy, an advocate and solicitor should update his client regularly on the matter involved
such as happening of the court, correspondences between him and the opposing party(ies),
progress of the case and should there be any urgent issue(s) that requires the client’s attention
or clarification, such issue(s) shall be dealt with immediately;

Not to be influenced by the client’s feelings in his conduct and demeanour towards each
other, this is not intended to be an exhaustive list, but it is sufficient to indicate the nature of an
 advocate and solicitor’s duty towards his client.
Conflict between duties towards client and to the Court
While an advocate and solicitor owes a duty towards his client, he also owes duties to the court
and the profession. Whilst clients usually have priority, an advocate and solicitor cannot act in a
manner that undermines the law.

So then, what happens when a client’s instruction(s) goes against the principle of established
laws? Should the advocate and solicitor continue to act in the best interest of his client and
disregard the Court and law? Such is a conundrum that an advocate and solicitor face regularly.

The answer to the above is that, when such a conflict arises, the advocate and solicitor has an
overriding duty to the Court and have a greater duty as well as obligations to serve the interest
of justice so as to maintain continued public confidence in the system of justice and democracy
– Yap Ban Tick v Standard Chatered Bank
An advocate and solicitor has double loyalty – to his client and to the law. He must do his
utmost for one but never at the expense of the other. Hence, a client can expect an advocate and
solicitor to put his interests ahead of all others for the purpose of advancing his rights, claims
and objectives (for so long as the means are legal and permissible) while at the same time
upholding the law.

Duties ➢ Duty of fairness to opposing counsel – Clyne v NSW Bar Association: Counsel not
to entitled to cast imputations of dishonestly/ fraudulent conduct on opposing counsel
Opposing without any basis because counsel must accept there are two views to a dispute.
Counsel
➢ Duty not to engage in personal bickering with opposing counsel – Beevis v
Dawson: Continuous bickering between counsels would deprive the judge of assistance
and it becomes a burden for everyone in court. It is almost impossible for justice to be
done & would lead the Court in confusion.

➢ Counsel acting for a party in proceeding should not be subpoenaed as a witness unless
necessary. Wong Sin Chong v Bhagwan Singh: The right of a party to procure a
witness must be protected against abuse or oppression. Where no useful result would be
obtained by the attendant of a witness, the subpoena should be refused.