PROFESSIONAL MISCONDUCT

GENERAL RULE

 Sec 77 LPA – conferred power to BC to make regulations in regards to the conduct of

A/S and therefore is bound by all the rules and etiquette laid down under the Legal
Profession (practice and etiquette) rules 1978. LPPER

Who r bound?

 S36 of LPA- Person who obtained the P.C and become A/S shall be bound to all the
rules/ etiquette laid down LPPER

Failure to abide

 Sect 77(3)- shall be liable to disciplinary Board

 Sec 94(3) (a) until (o)- failure by A/S to abide those rules will amount to misconduct
and if found guilty will be punished.
 Forms of punishment S94(2) of the LPA will be subjected to strike off, suspended
liable to fine or reprimanded.

1.DUTIES TO CLIENT

GR: Lawyer must try their best to assist the client in matter relates to either contentious or non-
contentious matter

 R2- have the obligation to give advice to their client and also to accept any brief,
- Brief refers to accepting instructions from the client to proceed w certain issues

 R3- Discretion to refuse brief if by accepting brief will embarrassed them

Embarrassed two meaning
1. A/S posses confidential info w regards to issue at hands or had advised both
parties regarding the same matter- conflict of interest
- R5- Lawyers is strictly forbidden from accepting any brief if he finds it is
difficult to maintain his professional indepence
- Aw Sing Moey v Melombong & Perumahan
PF makes application to disqualify DF’s solicitor because he had previously act
for PF. DF’s solicitor holds confidential info relating the PF’s current case
CT held PF had breached rule 5 to maintain independence
 2. Personal relationship w any parties or witness in the proceeding
Saraswathy v Vijayalakshmi
- Prohibits personal relationship such as sexual relationship
- Does not prohibit any a/s to act for next of kin and related by blood
 R4 LPPER
Not to accept brief if likely to be impugned, impugned refers to being attack by
argument or criticism from the member of public
Credibility will be challenged better to withdraw form such cases

 R25 LPPER
Requires solicitors to disclose to the client all circumstances which might influence the
client in the selection of counsel
Oriental Bank Bhd v Abdul Razak House
- PF gave an order to DF an A/S to register charge of land in favour to PF w/in
14 days
- H/ever failed to register for the sole reasons he had also acted for the borrow
- Breach the undertaking he gave to PF in his professional duty
 Charging Reasonable fees
- R 11/12 of LPPER- required to charge reasonable fees-depending on their
invested time, labour skill which was required in a particular case
- O6 of Solicitor Remuneration Order- No discount on fees specified in fees
- O7 of SRO- withdrawal of money from client account must only be benefit for
the client- contrary to this amount to breach of turst
- R52(C) of LPPR- unprofessional and improper conduct of an advocates and
solicitor to accept less than the scale fees laid down in the law
 2.DUTIES TO THE COURT

GENERAL RULE

 Rondel v Worsley – primary duty of lawyer is to the court- therefore, lawyer has an
overriding duty to the CT and this duty may prevails to the extent of inconsistency with
any other duties.

Good conduct in the CT

R18 LPPER( respect the court)

 The conduct of a lawyer to act professionally in accordance to decorum/ dignity which

is absolutely essential to the good administration of justice
 Respectful attitude towards the CT
 PP v Seeralan – Allegation of bias against the Magistrate. CT held the accusations was
biased, unfair and prejudiced clearly amounted to contempt of CT

( duty of proper disclosure) lawyer- witness -documents

 Impossible for the judges to be aware of all authorities, very much in need to assistance
of counsel (Ablemerge Sdn Bhd v Emvillee)
 R20- Lawyer must bring the CT attention to all relevant law and binding decision
 Re JLP Harris- counsel in this case had deliberately kept a witness away from the CT
as the witness was a disadvantage to his client’s case, contempt
 Re an Advocate & Solicitor
Solicitor cannot submit any false doc or affidavits as exhibits since it will cause
injustice towards the other parties to the proceedings

Duty not to mislead the CT

 R26- A/S not to misleadthe CT and to avoid anything that may mislead a party not
represented w counsel
 R17- not to deceive the CT in order for the CT to arrive w just and fair decision
 Cheah Cheng Hoc v PP- counsel was guilty for contempt as he had mislead the CT by
concealing a document which affected the credibility of his witness
Duty to appear in the CT

 R6- impose duty to lawyer to appear in CT and prohibits them from accepting any brief
unless he is reasonably certain he is able to appear and represent
 R24- a/s must be ready at the fixed for trial- must be punctual
 Sykt Siaw Teck Hwa Realty v Malek Joseph Au
PF sued the DF for professional negligence due to DF failure to appear in CT for fixed
date which result the PF from being struck off from the Roll
CT held that the defendant is liable as he provided no cogent reasons for his absence

3.DUTIES TO OPPOSING COUNSELS

Duty not to postpone case
 R12- duty not to conduct civil case intended to delay proceedings to injure, oppress or
wrong the opposite party
 OCBC Bank v CTK Enterprise Sdn Bhd
Counsel sought for postponement from the HC as he was engaged in a Magistrate CT
in KL. The court dismiss such application and held that the counsel should had sent
representatives from his own firm and it would be prudent to write to the CT at least 3
days b4 applying for postponement
Must give good reasons to postpone
 Go Pak Hoong Tractor and Building v Syarikat Pasir perdana
Reasons to postpone was unjustified as the case has been fixed 5 months prior, and no
proper medical report from the DF
 Roy v Prior
Cannot cast imputation or harass opposing party w/out any basis. Every counsel must
accept that there are two views to a dispute
 4. DUTIES TO LEGAL PROFESSION
Dual Profession
 R44 LPPER- lawyers cannot actively carry on any trade which is declared by BC
unsuitable
 R31 LPPER- - uphold the dignity and high standing of profession
 R24 –must be ready for the day fixed for trial, burden will be heavier if allowed to
practice dual profession
 Re An advocate & solicitor
Resp is an advocate and solicitor practising in Sarawak, also took active part in business
in selling ladies wear
The CT found about this she was immediately struck off from the roll
 Syed Mubarak Syed Ahmad v Majlis Peguam Negara
Practising accountant is not allowed to apply for P.C. Thus, objective R44 is to maintain
high standards in the profession in order for the general public to have full confidence
in the integrity and independence of legal profession

TOUTING

 The act of attempting to sell something by pestering people in aggressive bold manner
 Solicit business in persistent in annoying manner
 R51- Lawyers cannot actively solicit for clients either by themselves or by employing
runner to go and find clients for them
 R52-Lawyers cannot pay the runner w some percentage of their fees or any salary in
order to get client for them
 Rhina Bhar v Koid Hong Keat
Wrongdoer will be subjected to disciplinary punishment for touting and may be
suspended from practice
 Touting will be illegal if injures public interest
Re A solicitor
Duty of the solicitor not to do any kind of acts “ambulance chasing”, which equals to
any kind of acts to find client