Chapter 2 PP

GOLDEN RULES OF ADVOCACY

1. Act for the best interest of your client and ensure that your duty duty to court remain
paramount.

 A lawyer should not act in a way that would put the administration of justice and the
community's confidence in the profession at risk.
 Never take unfair advantage of an opposing party’s lack of legal knowledge nor use
your professional status or qualification to take unfair advantage of another
individual to advance your clients interest. 
 Be courageous on behalf of the client using all the proper weapons, but no improper
weapons.

2. Be professional , respectful , relevant and calm.

 Act with intergrity and professionalism

 Use tactics that are legal, honest and respectful of courts and tribunals
 Do not call the judge by the wrong title
 Do not harass, intimidate or argue with the witness
 Keep the affairs of the client confidential unless otherwise required by the law

3. Ability to persuade.

 To persuade the court to believe in your version of story by doing so within the
scope of relevant rules
 Able to recognize half of the cases presented cannot win thus make an effort to
settle for the best possible term

4. A lawyer shall educate clients about the court processes in the interest of promoting the
public's confidence in the administration of justice.

 Educate the client about the limits of the law, the professional obligations and the
judicial system in order to ensure that they understand the law and know the value
of it

5. Tell the truth and not to misrepresent the truth. 

  The primary purpose of the legal profession is to find, recognize, interpret and
preserve the truth

6. Be honest in every dealings. 

 Intergrity Is the key you must not only be honest but you must also manintain the
appearance of honesty
 If you are wrong admit it. If you are not wrong be courageous to stand on your
ground in accordance with your duty to the client
 It is better to lose than not to fight according to the rules. It is extremely easy for a
young lawyer to violate these rules. There is a strong temptation to become lax on
your professional morals

7. Be punctual

 It is a lawyer duty to appear before the court if he or she is the counsel of the record
 Tardiness is a waste of time and may effects the administration of justice

8. Dress appropriately

 As a human being respond very strongly to visual stimuli – we make snap decision in
less than a few seconds and then spend the next minutes tryig to confirm our initial
impresssion

9. Be courteous to the court, your opponents, witnesses and court staff.

 These are the people evolve around you during the trial and might help you in
winning your case.

10. Be accommodating and flexible regarding scheduling and routine matters.

 A lawyer shall agree to reasonable request concerning trial dates adjournment, the
waiver of procedural formalities and similar matter that do not prejudice the rights
of the client.

11. Good advocates are good listeners.

 The advocate must have a quick mind an undertsnading heart and charm of
personlaiyty since he has to understand another man’s life story and catch up
overnight a client’s or witness’s lifelong experience in another profession
 Advocate must also listens to the judges commands
12. Advocates have to be firm and confident

 Advocate must have the courage to be polite but firm and not scared of the court
 You must firmly stand on your ground in order to win your case according to the
scope of relevant rules
 Confident and courage is needed in order to be presence. It is a quality that can grow
over time

13. Be prepared

 Always knows your case inside out

 Make a research according to your case in order to defend your case

14. The courtroom is where the showdown comes

 Trial work is essential for the general practitioner until you have a fair estimate of
what you can or cant do at the courthouse you have no true standard by which to
measure your case. This is the place where you can disar, your opponent in a just
way.

15. Advocates must have the ability to simplified a facts or a story.

 Right words must be use as the words chosen can leave a strong impact and make a
difference. 
 It is advisable for an advocate to make a summary of chronology of facts and
proceedings.
 Avoid too much narrative or too much case law

[Link] simple words 

 Be brief and ask short questions.

 Use a simple words and short sentence rather than a bombastic words and a long
sentence. 
 The most important thing is to be clear , precise and accurate.

17. Advocates must ensure that the judge understand what they are implying 

18. Do not offer or rely on false evidence.

  A lawyer should always avoid from any actions that will mislead the court such as
knowingly misrepresenting or misstating the facts in arguments and inducing a
witness to state misleading evidence.

19. Cite a relevant and proper authorities

 Lower courts are bound by higher courts decisions. Thus , a lawyer should cite higher
local authorities as it binds the courts. They should only cite the foreign authorities if
necessary.

20. Prepare all necessary bundles of authorities and documents 

 The bundle of authorities should be highlighted and paginated as it is more easier

and systematic.
 Provide written arguments and documents to the court before hearing.

21. Lawyers must know their audibility

[Link] must always ensure that the judge are listening and keeping up with their
submissions. 

23. Lawyers should avoid hostile and intemperate communications with the opposing
counsel.

24. Commit to the theatre of the courtroom. Do not do it by halves.

25. Accept and respect the decisions of the court

 Do not utter bad or negative words in the or engage in any personal attacks on the
judiciary or unfairly criticize judicial decisions . The best solution is to appeal.
 Avoid all actions that may erode, tarnish or delay the administration of justice and
avoid any actions that may lead to the contempt of court.

DUTIES OF LAWYERS TO CLIENTS AND THE COURTS

DUTY TO CLIENT
As per stated by Lord Henry Brougham, 1st Baron Brougham and Vaux, former Lord
Chancellor of Great Britain; “An A&S by the sacred duty which he owes to his client knows in
the discharge of that office but one person in the world- that client and none other. He must
not regard the alarm, the suffering, the torment, the destruction which he may bring on any
other.”

Duty to Client

When a person (client) appointed an Advocate & Solicitor to become his lawyer, the A&S
owes a particular duty to the client due to the sacred duty vested upon him.

In Incorporated Law Institute of New South Wales v R D Meagher Isaacs J made the
following statement which is important in reflecting the role of the lawyer in society:- 

“... There is therefore a serious responsibility on the Court - a duty to itself, to the rest of the
profession, to its suitors, and to the whole of the community to be careful not to accredit
any person as worthy of public confidence who cannot satisfactorily establish his right to
that credential.” 

Legal Profession (Practice and Etiquette) Rules 1978

In Malaysia, certain duties of the A&S to their client are enumerate under this rule. Other
are included inside the legal profession act as well as extracted under the common law.

Rule 2 : Duty to Accept Brief

 An a&s shall give adbice on or accept any brief in yhje curts in which he profess
 This particular provision was developed from the “ Cab Rank Rule” which originated
from the common law
 It is the obligation of a barrister to accept any work in a field in which they professes
themselves competent to practice at a court at which they normally appear and at
their usual rates
 The significance of this rule is that without it an unpopular person might not get legal
representation

EXCEPTION TO RULE 2:-

Rule 3

A&S may not accept the brief if embarrassed

RULE 4:
Duty not to accept the brief if he knows or has a reason to believe that his own professional
conduct is likely to be impugned.

RULE 5:

Duty not to accept brief if it is difficult to maintain his professional independence or

incompatible with the best interest of the administration of justice.

RULE 6:

Duty not to accept brief unless he is reasonably certain he is able to appear & represent the
client on the required day

Shall not withdraw from the engagement once accepted without sufficient cause, unless
reasonable and sufficient notice has been given to the client.

RULE 27:

Duty not to appear in any matter in which he is directly pecuniarily interested except
appearing for himself to tax his own cost.

Rule 28 Duty not to appear in a case which he belive that he will be a witness

Rule 54 a&s not to appear for a party represented by another a&s.

Duty to uphold client interest

Rule 16 a&s shall fearlessly uphold the interest of his client without regard to any
unpleasant consequences (S94(3))

Rule 25 duty to disclose all the cicumstances of his relation to the party

Duty Not To Abuse Confidence Reposed to Him:

RULE 35 – A&S shall refrain from any action in which he abuses or taken advantage for his
own benefit of the confidence reposed in him by the client.

He shall also preserve his client’s confidence upon him throughout the employment.

Duty In Preventing Client From Wrongful Conduct Towards Courts

RULE 36 – A&S shall use their best effort to prevent their clients from doing things; with
reference to the conduct of his clients towards the Court for example contempt of court.

Duty Not To Withhold Client’s Papers to the Detriment of Clients

RULE 55 – Except as to right of lien and in order to compel the client to pay legal fees so as
to obtain the necessary documents from his client, the lawyer is not permitted to withhold
client’s papers to the detriment of the client.

RHINA BHAR v. MALAYSIAN BAR 1994 

The plaintiff (Rhina Bhar) in this originating summons, is a practising advocate and solicitor.
She applies to the court for a declaration that the decision of the defendant (Bar Council),
that RR Sethu, her intended counsel in this case, ought not to appear, is unconstitutional,
illegal, inoperative, null and void and of no effect.

The plaintiff was suspended for three months by a disciplinary committee convened under
the Legal Profession Act 1976

The Bar Council adds that Sethu, as a current Bar Council member, is placed in a position of
conflict of interest and embarrassment.

General rule under Rule 3 is that the member of public authority must not be professionally
engaged in any proceedings for which the authority is a party or is indirectly interested.
However; if exceptional circumstances justify the departure from the general rule, it is
allowed.

DUTY TO THE COURT

“It was probably inevitable that certain occupations requiring public avowals of faith or
purpose should become known as professions. Originally, there were three: medicine, law,
and theology. They were dignified by that title and set apart from other occupations
because they were more than a livelihood: they represented a calling to some higher
satisfaction than a commercial gain...Although rigorous asceticism was seldom required,
doctors, lawyers and clergymen demonstrated enough selflessness down through the years
to gain general respect.”

-Roddenberry, E.W, “Professionalism Revived: Diagnosing the Failure of Professionalism

among Lawyers and Finding a Cure"

Legal Profession Practice And Etiquette Rules 1978

 In Malaysia, the duties to clients and to the courts are laid down under rule 1-63 of
the aforementioned text.
  The duty of a lawyer to the court mainly relates to the duty of the lawyer to respect
the court and to ensure justice is delivered fairly and honestly even though the
interest of his client may be compromised.
 Among the duties laid down by the 1978 rules are;

*See in the phone

WHY A DUTY TO THE COURT?

 Principally, a lawyer owes a duty to the court to ensure that the administration of
justice is not prejudiced for the sake of winning on behalf of his client.
 A lawyer's duty to the court helps limit the high probability of an over-zealous
representation of a client. The need to create ethical boundaries within an
adversarial system was addressed by Gavin MacKenzie in his article “The ethics of
advocacy” by stating

“Adversarial tactics tend to escalate despite the best of intentions in a competitive

system. Lawyers adopt adversarial tactics because to refrain from doing so would put
their clients at a competitive disadvantage relative to the clients of lawyers who show no
such restraint.”

 However, in order to serve the purpose of facilitating the administration of justice, a

lawyer may not be able to act in a way that serves the client's best interests if doing
so would put the administration of justice and the community's confidence in the
profession at risk. 
 Thus, a lawyer's duty to the court may take priority over the interests of the client.
Without such limits being adequately defined and respected, the profession risks an
ethical race to the bottom

RE ZAINUR ZAKARIA

 Dato' Seri Anwar bin Ibrahim, the accused filed a notice of motion through the law
firm of Messrs Zainur Zakaria & Co praying for an order that the senior deputy
prosecutors Dato' Abdul Gani Patail and Encik Azahar bin Mohamed the prosecution
 team - be prevented, prohibited or discharged from further prosecuting the case and
that the matter of their conduct be referred to the Attorney General for appropriate
action. 
 The motion was supported by an affidavit affirmed by the accused, which in turn was
based on a statutory declaration alleging improper prosecution The affidavit further
alleged that both AGP and Azahar had abused their position and gone out of their
way to fabricate evidence against the accused, in order that more charges could be
preferred against him. It was further averred that the involvement of both the
prosecutors raised grave doubts as to the evidence already adduced by the
prosecution in the accused's trial. 
 When the motion came up for hearing on 30 November 1998, the learned judge
informed the parties that he intended to commence proceedings for contempt of
court against En Zainur Zakaria ('ZZ') for having filed the motion and affidavit. 

Held:

On the facts, the allegations against the prosecutors amounted to contempt of court on
exactly the same principles applicable with regard to criticism of a judge.

The allegation that the involvement of the two prosecutors in the instant case raised grave
doubts as to the integrity of the evidence would seriously affect public confidence in the
trial.

Thus, the filing of the motion by ZZ was scandalous, frivolous, vexatious and an abuse of the
process of the court with the objective of undermining the integrity of the trial and
amounted to a contempt in the face of the court 

Whatever may be the duty of an advocate and solicitor to his client, his duty to the court
remains paramount in the administration of justice.

Instructions from a client are insufficient to protect an advocate and solicitor when he
makes a contemptuous application, as was done in the instant case.

Vijayalakshmi Devi a/p Nadchatiram v Saraswathy Devi a/p Nadchatiram [1996] 

This case involve the solicitor having blood relation with the litigant she was representing

Held: Mohd Noor Abdullah J delivering the judgment of the court observed succinctly ; 
“Here the blood relationship between the defendant and the litigants is so closely
connected that the defendant's duty to the court becomes subordinate to her obligation to
her client or is otherwise marred by her personal feeling for one party against the other
thereby putting her personal interest over her head and her duty to court under her feet.
The court must not allow it.”

Agi ak Bungkong & Ors v Ladang Sawit Bintulu Sdn Bhd & Ors.

“Counsels must note that they not only have a duty to their client, they also have a duty to
the court which is paramount and in the context of what we are discussing he or she must
ensure that all documents which are relevant to his or her cause are disclosed to the
opposing side at the earliest opportunity. Only by adhering to this duty can the court be able
to dispose of the case in an efficient manner.”

HAJI MOHD TAHA BIN MOHD SAAD & ANOR v CHEONG SOON HENG & ORS

Facts: The case was concerning a sale of land which was first fixed for hearing on 4thand 5th
December, 1993 and after several postponements it was finally fixed for hearing before me
on 5th and 6th February, 1995. Yet again, the defendant’s solicitors asked for a
postponement, without a cogent reason which the judge refused to and the solicitor was
unable to present his case and did not call any witnesses to testify on his behalf. The 14th
defendant informed the Court that his lawyer, Mr. Annamalai, asked him to wait in Court as
he was engaged in Court 2. 

Held: The court bore in mind the progress of the case from its very inception and the steps
taken by the parties to expeditiously conclude the case in the shortest possible time
especially when it has been outstanding for more than 15 years and also the breach of duty
to court under Rule 6(a) as well as Rule 24(a) and (b) of the Legal Profession (Practice and
Etiquette) Rules 1978 which states

 Rule 6(a) An advocate and solicitor shall not accept any brief unless he is reasonably
certain of being able to appear and represent the client on the required day.
 Rule 24 (a) An advocate and solicitor shall make every effort to be ready for trial on
the day fixed.
 (b) An advocate and solicitor may apply for postponement of a case fixed for hearing
for good and cogent reasons only.
HELD;

In the above circumstances, and the obvious lackadaisical attitude of counsel towards their
duty to clients and their duty to Court, left the judge with no option but to strike off the
defendants' counter-claim.

CURRENT ISSUES 
 Got three point in phone
Contempt of court - Freedom of expression

Recent Cases on Contempt of Court by the Counsels.

Datuk V.K. Lingam's case

Attorney-General Tan Sri Abdul Gani Patail has filed an application to prosecute lawyer
Datuk V. K. Lingam and 24 others for alleging that a Federal Court bench had plagiarised its
judgment. 

Federal Court judge Tan Sri Suriyadi Halim Omar, who is chairing a five-man bench, then
lamented that the court seemed to have been scandalised and no one had stood up for
them. 

The case is still on going.

BREACH OF TRUST BY LAWYERS

Breach of trust can be defined as :

Any act which is in violation of the duties or a trustee or of the terms of the trust. Such
breach need not be intentional or with malice, but can be due to negligence. 

Breaking a promise or confidence (investing in unauthorize investment or maladministration

that cause losses to the property)

Section 409 of Penal Code

Criminal Breach of trust by public servant or agent

John Wilibrod Concisom case

A 49 year old former lawyer who is currently serving 6 years imprisonment for CBT which
inbolve a huge amount of monet worth 484,682. He allegedly missapropriated 59800 and
13650 respectively and was charged under s409 penal code
Herlina Khamisiah's case

A real estate lawyer was jailed for six years by the Sessions Court after she pleaded guilty 

to a charge of criminal breach of trust involving RM 418,500 three years ago.

Meanwhile in another court, Khamisiah also pleaded guilty to charges of misappropriating

funds in Herlina & Co. clients account in Al-Rajhi Bank, Taman Connaught, Cheras totaling
RM261,000

 A lawyer should shall agree to reasonable request concerning trial dates ,

adjournments , the waiver of procedural formalities and similar matters that do not
prejudice the rights of the client.

FACTS

Legal Profession (Practice And Etiquette) Rules 1978

 In Malaysia, certain duties of the A&S to their clients are enumerated under this
rules.

 Others are included inside the Legal Profession Act 1976 as well as extracted from
the Common law.

 RULE 2: Duty To Accept Brief 

 An advocate and solicitor shall give advice on or accept any brief in the Courts in
which he profess.
 This particular provision was developed from ‘The Cab-Rank Rule’ which originated
from the English Common Law.
 Basically, it is the obligation of a barrister to accept any work in a field in which they
professes themselves competent to practice, at a court at which they normally
appear, and at their usual rates.
 The significance of this rule is that without it, an unpopular person might not get
legal representation.

 Act with integrity and professionalism

  Use tactics that are legal, honest and respectful of courts and tribunals
 Do not call the judge by the wrong tittle
 Do not harass , intimidate or argue with the witness
 Keep the affairs of the client confidential unless otherwise required by the law

 To persuade the court to believe in your version of story and by doing so within the
scope of relevant rules.

 Able to recognize half of the cases presented cannot win , thus make an effort to
settle for the best possible terms.

CASES ON POINT

 The advocate must have a quick mind, an understanding heart and charm of
personality since he has to understand another man's life story and catch up
overnight a client's or a witness's lifelong experience in another profession.
 Advocate must also listens to the judges commands.

 Avoid hostile communication even though in a stressful conditions as such

communications will only deteriorate further during the trial and affect the
administration of justice.
 Avoid unnecessary motion practice or other judicial intervention with the opposing
counsel by negotiating whenever practicable.

 The primary purpose of the legal profession is to find, recognize, interpret, and
preserve the truth.

 Law is a profession and lawyers have certain obligations to their clients and to the
court. 

 These obligations are generally articulated in the Legal Profession Act 1976.

HELD:
  “Real advocacy takes courage , imagination and it takes the ability to get up and
keep going when your mouth goes dry and you want to burst into tears , and all
without showing it incidentally and without letting it break your heart and your
spirits”.

 Integrity is the key, you must not only be honest but you must also maintain the
appearance of honesty.
 If you are wrong, admit it. If you are not wrong be courageous to stand on your
ground in accordance with your duty to the client. 
 It is better to lose than not to fight according to the rules. It is extremely easy for a
young lawyer to violate these rules. There is a strong temptation to become lax on
your professional morals.

 These are the people evolve around you during the trial and might help you in
winning your case.

 In order to win a case, the advocate must be able to understand the facts of the case
and able to convey it to the judge well.
 Judge would want to know the facts of the case , prayers that they are asking and
the right order that should be given.

Trial work is essential for the general practitioner until you have a fair estimate of what you
can or can’t do at the courthouse, you have no true standard by which to measure your
case.

This is the place where you can disarm your opponent in a just way.

 Vary your pace and your tone 

 Be aware of timing and the power of pause
 Only repeat for emphasis if necessary

This case involved the solicitor having blood relations with the litigants she was representing

HELD;
  As a human being respond very strongly to visual stimuli – we make snap decisions in
less than a few seconds and then spend the next few minutes trying to confirm our
initial impression

CONCLUSION

CONTEMPT OF COURT

EXCEPTION TO RULE 2:-

RULE 3:

A&S may not accept the brief if embarrassed.

What constitute embarrassment?

Where the advocate and solicitor finds he is in possession of confidential information as a

result of having previously advised another person in regard of the same matter.

Where there is some personal relationship between him and a party or a witness in the
proceedings.

Breaking a promise or confidence 

RECENT CASES ON BREACH 

OF TRUST BY LAWYERS

Duty to Uphold Client’s Interest:

RULE 16 – Advocate and Solicitor shall fearlessly uphold the interest of his client without
regard to any unpleasant consequences either to himself or to any other person.

*Failure to do so shall be subjected to disciplinary action under Section 94(3) of the Legal
Profession Act.

Duty to Disclose all Circumstances to Client:

RULE 25 – Duty to disclose all circumstances of his relation to the parties and any interest in
connection with the controversy which may influence the client in the selection of the
counsel.

 Therefore, the public must be able to have confidence in this legal profession and
the Code in order to protect the sanctity of administration of justice.
A 49-year old former lawyer, who is
currently serving six years jail sentence
for criminal breach of trust which involved a huge amount of money worth RM 484,682
Recently, he also claimed for trial to two charges of Criminal Breach of Trust at the
Sessions Court of Ipoh on 29th July 2015.

 Criminal breach of trust by public servant or agent

“Whoever, being in any manner entrusted with property, or with any dominion over
property, in his capacity of a public servant or an agent, commits criminal breach of trust in
respect of that property, shall be punished with imprisonment for a term which shall not be
less than two years and not more than twenty years and with whipping, and shall also be
liable to fine”.

It has been an issue that the law on contempt of court is a deprivation of the right to
freedom of expression. 

The most common acts of contempt are by publication or public discussions of ongoing
court proceedings or matters related to it, which amounted to criminal contempt of
scandalising the court and prejudicing or impeding court proceedings .

It is the inalienable right of everyone to comment fairly upon any matter of public
importance. This right is one of the pillars of individual liberty freedom of speech which
our Courts have always unfailingly upheld. It follows that no criticism of a judgment,
however vigorous, can amount to contempt of Court, provided it keeps within the limits
of reasonable courtesy and good faith.
-Salmon LJ
John Wilibrod Concisom's case.

 Advocates must have the courage to be polite but firm and not scared of the court.
 You must firmly stand on your ground in order to win your case according to the
scope of relevant rules.
 Confidence and courage is needed in order to be presence. It is a quality that can
grow over time.
The court bore in mind the progress of the case from its very inception and the steps taken
by the parties to expeditiously conclude the case in the shortest possible time, especially
when it has been outstanding for more than 15 years and also the breach of duty to court
under Rule 6(a) as well as Rule 24(a) and (b) of the Legal Profession (Practice and Etiquette)
Rules 1978 which states;

 Investing in unauthorized investments

 Maladministration that cause losses to the

property.

SECTION 409 OF THE PENAL CODE 

He allegedly misappropriated RM59,800 and RM13,650 respectively and was charged

under Section 409 of the Penal Code. 
The case is still on going.