In Malaysia, the rules that govern an advocate and solicitor are divided into two folds, first being the conventional rules that are in written form which includes but not limited to the Legal Profession Act 1976 (“the LPA”), Legal Profession (Practice and Etiquette) Rules 1978 (“the P&E Rules”), Solicitors’ Accounts Rules 1990 and Bar Council Rulings as well as the unconventional rules which are unwritten common standard of decency and fairness. These rules regulate the conduct and etiquette of an advocate and solicitor and a part of it encompasses the duty towards client. Failure to comply with the rules would potentially cause an advocate and solicitor to be liable for disciplinary proceedings1.
Duties to client
It is worthy to note that the relationship between an advocate and solicitor with his client is one of a fiduciary relationship. The word ‘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, an advocate and solicitor are expected to act in good faith and in the best interests of his client. The duties of an advocate and solicitor towards his client amongst others include:
- 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. He may refuse a particular brief provided that he is able to justify his refusal in the special circumstances2;
- At the commencement of his engagement and during the continuance thereof, an advocate and solicitor 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 engagement3;
- Shall not ordinarily withdraw from an engagement once it is accepted without sufficient cause and unless reasonable notice is given to the client4;
- 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 interests5;
- 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 solicitor6;
- 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 be7. 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 client9;
- 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 delay10. Furthermore, notwithstanding that the rule permits the withdrawal of a client’s money ‘for the payment to or on behalf of the client’11, an advocate and solicitor has a duty to not use the client’s money to settle his liability to some other client12;
- 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 reasons13. 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 other14, 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 profession15. 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 democracy16.
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.
* For clarity purposes, a lawyer will be referred to as an advocate and solicitor in this article as it is a fused profession in Malaysia unlike the existence of a separation of role between a barrister and a solicitor practising in the United Kingdom and countries alike.
- Section 94(d) of the LPA.
- Rule 2 of the P&E Rules.
- Rule 25 of the P&E Rules.
- Rule 6(b) of the P&E Rules.
- Rule 28 of the P&E Rules; Abdul Halim Bin Abdul Hanan & Ors v Pengarah Penjara Taiping & Ors  4 MLJ 54.
- Tetuan Theselim Mohd Sahal & Co & Ors v Tan Boon Huat & Anor  1 LNS 254; Sri Alam Sdn Bhd v Tetuan Radzuan Ibrahim & Co (sued as a firm)  1 MLJ 284.
- Rondel and Worsley  1 A.C. 191; Rule 9 of the P & E Rules.
- Rule 35 of the P&E Rules.
- Rule 6.05 of the Bar Council Rulings 2008; RS Muthiah v Pembinaan Fiba Sdn Bhd  2 CLJ 917.
- Rule 3 of the Solicitors’ Account Rules 1990.
- Rule 7(a)(i) of the Solicitors’ Account Rules 1990.
- Gnanasegaran a/l Parajasingam v Public Prosecutor  3 MLJ 1.
- Rule 24 of the P&E Rules.
- Rule 32 of the P&E Rules.
- Rules 15, 16, 17 and 31 of the P&E Rules.
- Yap Ban Tick & Ors v Standard Chartered Bank  3 MLJ 401.
Faizah Khamarudin & Farah Lina Adam Chuah (firstname.lastname@example.org)