LIABILITY OF LEGAL PROFESSION IN MALAYSIA; WHETHER THEY HAVE ANY DEFENCE AGAINST PROFESIONAL NEGLIGENCEDecember 15, 2013

TABLE OF CONTENTS

NO.PAGE

1 ABSTRACT2

2INTRODUCTION2

3THE LIABILITY OF LEGAL PROFESSION AND HOW IT CAN AFFECT IN THE LEGAL PROFESSION S FIELD5

4EFFECTS AND CONSEQUENCES OF NEGLIGENT ADVICE

9

5Implementation of principle duty of care by legal practitioner in Malaysia.9

6DEFENSE AGAINST PROFESIONAL NEGLIGENCE

10

7CONCLUSION

13

8REFERENCES14

Patricia Erma anak Honchin

ABSTRACTA lawyer is legal representative and advisor of a client who only act when instructed by the client and providing them advice which will not put the client under distress or undue influence. Just like other professional profession, lawyer also holds several duties and liabilities towards their clients in providing legal services. Giving an advice is one of them. There are differences in the stance of term given to the legal practitioner in Malaysia and England. There is a special relationship between the lawyers and clients which gives rise to the duty of care. Such duty of care will be explained through in the assignment. This assignment also will discuss on the two different of profession in the field of law as well as any defence that available if such professional negligence arise.

INTRODUCTION First and foremost, ones must know what legal profession means. In general meaning, legal profession means that a profession which based on fields regarding on law. For example, upon the common people understanding, legal profession can safely been interpreted jobs which known in law such as judges, legal assistant, advocates, solicitors and other related occupations. The duty of anyone in the legal profession is to uphold justice and rights of person. It is the same with other law and regulations in other nations. Again, ones should realize that, different country, in the field of law; there are differences meaning between the terms of legal professions. In other words, there are differences between the terms of lawyer, advocates, counsels barrister and solicitors. The reason that there are different explanation in terms of the legal profession is due to two different types of profession that been applied in the law fields. These two types of profession are known as fused profession and split profession.[footnoteRef:1] The question would arise on the differences between both professions. For the fused profession, the words fused itself indicated something to be combined or fused together. In our situation, fused here indicated that the profession of solicitor and advocates are fused together which allowed that person to practicing both profession without being penalized. The countries who are using this type of profession are Malaysia, United States of America, Australia and New Zealand.[footnoteRef:2] Moving on to the second types of profession which is the split profession, again the word split clearly indicate that the profession does not fused to together like the previous one. This kind of profession has been applied and used in England and Wales. Hence, anyone who want to practice and becoming a solicitor could become a barrister at the same time. Fail to comply with such rules will resulted being penalized by the court. [1: PPE Presentation slides] [2: Ibid]

The terms Lawyer is well known by others as a profession that had something to do with law. However, no one quite sure, what is the real definition of lawyer. According to Blacks Law Dictionary[footnoteRef:3], lawyer can be defined as a person who leaned in the law, as an attorney, counsel or solicitor, a person who has license to practicing in law. From the statements given, it safely can be deduced that, the profession as a lawyer means that the person has studied law and earn from his studying, a license to practicing law. In Malaysia, there are solicitors and advocates. In general knowledge, people thought that both solicitors and advocate play the same roles, which is representing the client in the trial. However, it is not as they seem to think as it is. Example, for an advocate, he is the ones who speak on behalf of another person, especially in a legal context meanwhile for solicitor, he is the one who they so called traditional lawyer were this kind of lawyer only deal with any legal matter or also called as advocacy. Here, the concept of the general rules is that a person who is lacks the knowledge, skill ability or standing to speak for they hire themselves an advocate to represent them in the courts. [3: Presentation slides]

Another term that usually known in the field of law is barrister. This term did not used in Malaysia as the term only used in practice by the lawyers in England and Wales which implement the split profession which is opposed to a fused profession. Just like lawyer, the barrister is also a lawyer that is found in many common law jurisdictions in the matter related to legal representation. In other words, their function is almost the same with the functions of advocate in Malaysia. However, in England and Wales, the Barrister is the person who is really specialized in the courtroom advocacy, drafting legal pleadings and giving legal opinion.[footnoteRef:4] It is to say that, anyone who wants to become a barrister must at least have five or more years of experience in courtroom advocacy. In addition to that, there is a rule practice by the barrister which is known cab rank rule.[footnoteRef:5] Under this rule, a person who becomes the barrister is obliged to accept instructions from the client regardless of any personal dislikes of the client or the case. In relatively speaking, the barrister must take the client case regardless whether he dislikes the case or the client himself or herself, and attend it as usual in their daily practice. It is an obligation that been set up by the Bar of England and Wales, in paragraph 602 of the Code of Conduct, in order to protect the interest of the clients.[footnoteRef:6] The main purpose of the Cab Rank Rule is to prevent any unjustified restrictions on the clients choice of barrister. [4: Ibid] [5: http://en.wikipedia.org/wiki/Cab-rank_rule(The rule derives its name from the tradition by which aHackney carriagedriver at the head of a queue of taxicabs is supposed to take the first passenger requesting a ride.)] [6: https://www.barstandardsboard.org.uk/media/1460590/bsb_-_cab_rank_rule_paper_28_2_13_v6__final_.pdf]

Moving on to the next term which is the solicitor, generally, in both split profession practiced by England and Wales and fused profession which practiced in Malaysia, United States of America, Australia and New Zealand, have the same job scope which is to handle litigation matters which requires them to interact with their client and arranging any legal document concerns to the parties of the case. However, there is a significant difference as to the types of legal profession which the country implemented to. Again, in brief, the fused profession allowed the law practitioner or the lawyer to hold or practice for two titles, which are the solicitor and advocate.[footnoteRef:7] Differently practice in England and Wales, where they implemented the Split profession, the legal practitioner will usually allowed to hold one title per person only. Under the Split profession, it is safe to say that barrister and solicitors are two different set of legal functions in the field of law.[footnoteRef:8] Again, we know that the barrister is specialized in the courtroom advocacy meanwhile the solicitors will handle the litigation matters. [7: Slides Presentation] [8: Ibid]

Practices in England and Wales today is that the solicitor is an attorney, where they have the power to act on behalf of the client in legal purposes especially in the matters as in signing contracts. Other than that, they also hold the power to conduct litigation by making an application to the court or writing a letters in litigation to the clients opponent as the legal representative of his own client and so on.[footnoteRef:9] Hence, the barrister is forbid from encroaching the other job scope by conducting litigation. Fortunately, there is an amendment is made, where on the 26th March 2010[footnoteRef:10], the prohibition in the Bars Code of Conduct which governing on the rules relating on prohibition on the part of barrister( other than employed barrister) supplying legal service to the public through or on behalf of any other person will ceased to have effect. Thus, a new rule which allow barrister to be able conduct litigation and share business premises with non-barrister following approval of the Bar standards Boards new handbook by the Legal Service Board will come into effect on January, 2014.[footnoteRef:11] [9: Ibid] [10: http://www.lawgazette.co.uk/72005.article (Barristers freed to conduct litigation)] [11: Ibid]

Last but not least, the term counsel or a counsellor, if we read it literally is means to give advice. In our field of law, the advice that would be given by the counsel will particularly relating to legal matters. In England and Wales, the terms counsels is approximately synonym for a barrister - at law. The definition of the words barrister of -law I quoted from the Wikipedia as either a single person whopleadsa cause, or collectively, the body of barristersengaged in acase.[footnoteRef:12] However, the term of barrister and counsel does not give the same meaning with each other. The differences between both terms are subtle where again quoted from the Wikipedia, "Barrister" is a professional title awarded by one of the fourInns of Court, and is used in a barrister's private, academic or professional capacity. "Counsel" is used to refer to a barrister who is instructed on a particular case.[footnoteRef:13] The four inns of court stated in the previous statement is referred the Professional Associations for Barrister in England and Wales. [12: http://en.wikipedia.org/wiki/barrister-at-law ] [13: http://en.wikipedia.org/wiki/barrister-at-law ]

Done in acquainting ourselves with the term used in identifying the legal practitioner in the field of law, we continue with the functions of having legal profession in the society. There are four main responsibilities held by the legal profession which they are; doing civil litigation, conveyancing matters, holding on the administrations of estates and also have the power to do prosecution and defence in the criminal proceeding. For here, we can said that the legal practitioner hold the heavy burden to uphold justice of a person and never to abuse such right given to them. Abusing such right will resulted to negligence which in the end construed to misconduct of the lawyers. Further explanation on the liability of the legal profession and the resulted negligence affecting the legal profession will be explained in the later page.

THE LIABILITY OF LEGAL PROFESSION AND HOW IT CAN AFFECT IN THE LEGAL PROFESSION S FIELD.Once more, we come cross with the word legal professions which referred to the legal practitioner, also known as advocates and solicitors. In Malaysia, rules and regulations which governs the legal provision is known as The Legal Profession Act 1976. The Legal Profession Act which have been enacted in the year 1976 with the main objectives of providing a provision to regulate the conducts of the legal practitioners. Meanwhile in England, they are governs by the Code of Conduct of Bar of England and Wales. Under the said code, the barrister enjoyed the immunity from any negligence suit. Such approach has not yet been implemented in Malaysia as for legal practitioner in Malaysia must possess the duty of care and skills towards their client. This rule was taken from the test of duty of care towards your neighbour as been laid down in the case of Donoghue v Stevenson [1932] AC 562.[footnoteRef:14] It is well known that, a counsel or legal practitioner, likewise in Malaysia or England, they have obligation towards their jobs and owes a duty of care towards his client, as any person towards their neighbour. [14: [1932] AC 562]

The phrase duty of care has been define in Oxford dictionary of law[footnoteRef:15] as [15: Oxford Dictionary of Law, pg 187]

the legal obligation to take reasonable care to avoid causing damages. There is no liability in tort for negligence unless the act or omission that causes damage is a breach of a duty of care owed to the claimant. There is a duty to take care in most situation in which one can reasonably foresee that ones action may cause physical damage to the person or property of others. Such duty is owed to those people likely to be affected by the conduct in question. However, there is no general duty to prevent others persons from causing damage or to rescue people or property in danger. Besides that, the existence and scope of duty of care will depend upon all the circumstances of the case and the relationship of the parties.From the excerpt taken from the dictionary, we can conclude that the rule of duty of care can grasp as requirement for a person on how to act towards others and public at large with watchfulness, attention, caution and prudence that any reasonable person in that circumstances would have done. However, one should take note that, if the persons action do not meet this standards of care, then the acts are consider negligent, and any damages resulting may be claimed in a lawsuit for negligence.The questions arise would be on how to determine there is liability of the part of the legal practitioner towards the client. In general rule under the law of tort regarding on duty of care, there are three important elements that need to satisfy.[footnoteRef:16] The first element would be the existence of special relationship between the parties, in example; between a client and solicitor. The second element that need to taken into account would be that the party is acting in reliance of the other party. In our case, there must be proving that show the client acted in reliance of solicitors instruction. Last but not least, the party (who acted upon the advice given) suffered damages accordingly and the damages must be foreseeable. If all the three element mentioned above are all satisfy and the client, who is the plaintiff succeed that the legal practitioner hold liability towards him, he can sue and claim compensation for the said damages from him. This can be proved in the case of Saif Ali v Mitchell [1980] AC 198,[footnoteRef:17] Lord Salmon held that in this case, [16: http://law.wustl.edu/sba/firstyearoutlines/torts/] [17: [1980] AC 198]

the normal rule applied by the laws is that if any one holding himself out as possessing reasonable competence in his avocation undertakes to advice or to settle a document, he owes a duty to duty to advise or settle the document with reasonable competence and care. This duty is owed to anyone he should foresee may suffer loss if the duty is breached. In addition to that, if on breach of the said duty, it is proven that such person fails to exercise reasonable competence or care and as a result the person to whom the duty was owed suffers damage, he liable to compensate that person for that damage he has suffered.[footnoteRef:18] [18: Ibid]

Now, we discuss each element thoroughly in order to see how the element can be proven. Back to the three important element of to be proved in order to constitute a liability, the first element stated the existence of special relationship between the client and his solicitor. From the statement mentioned beforehand on Special relationship can be said to refer on a concept of fiduciary relationship which exists between an employer and employee, agent and principal or solicitor and client. The word of fiduciary come from a Latin words which is Fiducia which means trust. In other words, fiduciary means in a position of trust or confidence[footnoteRef:19]. We take the example in the case of Edwards v. Lee [1991] New LJ 1517[footnoteRef:20] in order to illustrate the meaning of fiduciary relationship. The fact of the case is that the first plaintiff, which is Mr Edwards, advertised for sale of car owned by a company in which he and his wife had an interest. The only response that they get was a call made by Mr Hawkes, who offered to sell the car on behalf of Mr. Edwards at an agreed price on the basis that the plaintiff would retain title to the car. It also been agreed by both parties that, Mr. Hawkes would return the car back to Mr Edwards if it remained unsold after 28 days. [19: Oxford dictionary of law, pg 229] [20: [1991] New LJ 1517]

Mr.Hawkes took the car away. After a while, Mr. Edwards become suspicious about the arrangement when a potential purchaser, Mr. Folley, rang him to tell him that he had been offered of the said car by Mr. Hawkes at considerably less than the agreed value. Then, the plaintiff confronted Mr. Hawkes upon the matters and he suggested that Mr. Edwards contact the defendant, Mr. Julian Lee, who was his solicitor, for reference and clarification. During the time of the event happens, Mr.Hawkes was actually on bail for 13 charge of dishonesty relating to the sale of cars which valued at 240,000 for owners in transaction which were virtually identical to the arrangement between Mr. Edwards and Mr. Hawkes. Mr. Julian Lee also acting upon the 13 charges as well. When Mr. Edward call the solicitor, Mr. Julian Lee reassured him, that he had know Mr. Hawkes for three years and Mr. Hawkes had done such deals before which was liable. However, Mr. Lee fails to tell Mr. Edwards that Mr. Hawkes, at that time, was then on bail on charges alleging criminal dishonesty. Hearing the reassurance from the solicitor, Mr Edwards took no action in repossess back the car. Unfortunately, later from that date, Mr Hawkes sold the car and fled the country while still on bail without paying the proceeds to the plaintiff. This caused the plaintiff to bring an action against the solicitor in claiming for damages.Issue arise in this case clearly shows whether the solicitor who was asked to provide a business reference on behalf of a client was held to be in special relationship with the person who seeking the reference. According to judgment made in this case, Brooke J referred to statement made by Lord Reid in the case of Hedley Byre & Co. Ltd v Heller & Partners [1964] AC 465[footnoteRef:21] which stated that; [21: [1964] AC 465]

A duty would arise where it is plain that the party seeking information or advice trusted the other to exercise such a degree of care as the circumstances required, where it was reasonable for him to that, and where the other gave the information or advice when he knew or ought to have known that the inquirer was relying on him. In concluding that the necessary special relationship did not exist in the case, Brooke J observed that, first is that the plaintiff had acted reasonably in relying on the solicitor, secondly is that the plaintiffs lost was directly caused by the reliance on the solicitors reference and lastly, the solicitor was at all material times the plaintiffs agent instead of Mr. Hawkes. Hence, the solicitor does not to be held having liability towards the plaintiff.

Moving to the second element would be the client acted in reliance of his solicitors instruction. Under this caption, the alleged party whose liability been imposed on the part of solicitor must be able to prove that he has suffered loss because of the reliance from the solicitor. By referring to the previous case, the court had ruled a strict interpretation, apart from the existence of fiduciary duties, there must be reliance on the part of the party to constitute the negligence. Looking back to the case of Hedley Byrne &Co. Ltd v Heller& Partners Ltd, Lord Morris expresses that;

If, in a sphere in which a person is so placed that the others could reasonably rely on his judgment or his skill or on his ability to make careful inquiry, a person takes it on himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows, will place reliance on it, then a duty of care will arise.[footnoteRef:22] [22: [1964] AC 465]

In the same case, Lord Pearce approved the dissenting judgment of Denning LJ in Candler v. Crane, Christmas & Co [1951] 1 ALL ER 426[footnoteRef:23], where Lord Justice Denning said: [23: [1951] 1 ALL ER 426]

Person who engaged in a calling which requires special knowledge and skill From very early times it has been held that they owed a duty of care to those who are closely and directly affected by their work apart altogether from any contract

The last element is concern on the party suffered damages accordingly and the damages must be foreseeable. Here, we need to prove that the party suffered damage due to the reliance and such damage is foreseeable from the start of the reliance occurred. Take the example in the case of Groom v Crocker [1939] 1 KB 194[footnoteRef:24]., where the issue relating on the correct measure of damages in against a solicitor for negligence in conducting the clients affairs. The defendant had badly advised the plaintiff in relation to divorce proceedings so that a decree was granted to her husband on his undefended petition whereas she could have cross-petitioned on the ground of his adultery. The defendant had also failed to make an application for maintenance of the child of the marriage. The plaintiff claimed, inter alia damages for loss of earnings attributed to a breakdown in health as a result of the mishandled proceedings. The question arose whether this was a recoverable head of damages; Lawton J. held that the claimed were too remote because the claim was one in contract. [24: [1939] 1 KB 194]

EFFECTS AND CONSEQUENCES OF NEGLIGENT ADVICE In the case where there was a negligent advice done by the lawyer, there were several effect and consequence under Legal Profession Act 1976 where the client can sue the lawyer for negligence. Section 94[footnoteRef:25] gives power of disciplinary board to strike off the roll of lawyer if the clients can prove that the lawyer is negligence in his act. They also may strike off or suspended the lawyer for misconduct. The word misconduct is been interpreted by this act as any act or omission to act in Malaysia or elsewhere by an advocate and solicitor in a professional capacity and other act provided under this act. [25: Legal Profession Act 1976]

Section 99(1)[footnoteRef:26] provide that, the client can complaints the negligence done by the lawyer to Bar Council and it must be in writing, the complaint will be brought to Disciplinary Board. [26: Ibid]

Implementation of principle duty of care by legal practitioner in Malaysia.

In the case of Lim Soh Wah & Anor v Wong Sin Chong [2001] 2 AMR 2001[footnoteRef:27], it is an appeal case where there are two appeals and related cross appeal before the court. Both of the appeal case was in relation to professional negligence on the part of the appellant counsels for the respondent. This case related with causation in the law of negligence under the law tort. The appellant advocate in this case delivered a defence however fails to appear in court on the day fixed for the trail of the action. In addition to that, he also fails to inform his clients, which is the respondent, of the date for the trial. Due to those failures which cause the absence of the defendant on the fixed trail date had cause judgment to be entered against the respondent. An application to set aside the judgment had been made but fail on the ground that the defendant raised no triable issue. Thus subsequent appeal also failed. [27: [2001] 2 AMR 2001]

From this case, there are three issues arises. The first issue is that, whether the failure to appear before the court during the hearing and failure to inform the hearing date to the opponent, which in this cases the respondent, amounted to a negligence which can be claimed by the respondent? The second issue is that whether the application to set aside the judgment on the ground of no triable issue as to the appellant negligence did not affect the appellant was applicable? And the last issue is regarding on whether the causation as been established?.

The judgment of this case was given by the Honourable Judge, Gopal Sri Ram where he held that;

That the appellants failure to inform the respondents of the hearing date caused the respondents losing of an opportunity to produce any documentary evidence and oral testimony to convince the judge in the case. In fact the respondents were able to demonstrate to a conviction that the appellant had not prepared the respondents case with the care and attention it deserved. Vital links in the evidence were omitted by a singular failure to pursue the proper line of inquiry, especially in regard to the relevant documentary evidence.[footnoteRef:28] [28: [2001] 2 AMR 2001]

He also further added that, when an advocates or solicitor agrees to act on behalf of the client, meaning that they have agreed to undertake an onerous task. There is also assumption made that said that the advocate and solicitor lifted the weight of responsibility as there was reliance by the client on the skill of the legal practitioner.[footnoteRef:29] Nevertheless, the advocate and solicitors duty to exercise reasonable care and skill is imposed both by contract and by the law of tort. In addition to that, another fundamental duties of an advocate and solicitor his to diarize his cases, always keep his client up to dated of the diarized dates and prepare the case with the client. The failure to oblige with these duties was the main reason of such case arises from the first place. This was a case where there was a failure to discharge that of such fundamental obligation has resulted the respondents suffered. Therefore the causative link between the negligent omission by the legal practitioners and the damage suffered by the respondent was established.[footnoteRef:30] [29: Ibid] [30: Ibid]

DEFENSE AGAINST PROFESIONAL NEGLIGENCE

The first that would be asked is the meaning of professional negligence? Professional negligence is the breach of duty which causes damage and harm made by a person who is professional in certain area of practice to another person who has fiduciary relationship with them.[footnoteRef:31] For example, doctors, accountants, engineers and lawyer. So, in general, a lawyer, owe a duty of care to a person once that person hires the lawyer as his legal representative or lawyer. In broad terms, to succeed against a lawyer in professional negligence, the claimant has to establish the existence of a duty of care on the part of the lawyer. There must however be a close relationship between the two and a breach of duty by the lawyer which has caused the loss.[footnoteRef:32] The court also has introduced some test in order to established professional negligence. In order to determine the duty of care which may give rise to professional negligence, the court has laid down several principles or rules which they are duty of care, balance of probabilities and reasonable man test.[footnoteRef:33] The duty of care owed by a lawyers to their client are set out in the case of Ross v Caunters [1979] 3AER 580[footnoteRef:34], where the court in this case held that, when a lawyers have been approach by a client and then the client acted based on his advice or seek advice from him, then it is concluded that the lawyers holds the duty of care to the said clients. We can confirm this with another case of White v Jones [1995] 1 AER 691[footnoteRef:35], the court in this case stated that if there is a close and direct relationship characterized by the law as proximity or neighborhood and the situation is one where it is fair, just and reasonable that the law should impose the duty of the given scope upon the one party for the benefit of the other. [31: http://en.wikipedia.org/wiki/Professional_negligence_in_English_law ] [32: Ibid] [33: http://en.wikipedia.org/wiki/Professional_negligence_in_English_law] [34: [1979] 3AER 580] [35: [1995] 1 AER 691]

Beside than proving there is duty of care, on behalf of the client, he must also prove that the advice that had been given by the professional is based on the balance of probabilities. For further explanation on the balance of probabilities, we can refer to the case of In Downs v Chappel [1996] 3 ALL ER 344[footnoteRef:36], where the judge in that court held that; [36: [1996] 3 ALL ER 344]

Where the client sues his solicitor for having negligently failed to give him proper advice, he must show what advice should have given and ( on balance of probabilities) that if such advice had been given, he would not have entered into the relevant transaction or would not have entered into it on the terms he did same applies where the clients complaint is that the solicitor failed in his duty to give him material information...

The reasonable man test is attest when there is negligence on the part of the professional; the court held that such professional should be treated with the same person who have the same position and expertise which is par against him. We can supported the statement with the case of Christopher Roger v Maree Lynette Whitaker [1993] 1 CLJ 479[footnoteRef:37], where it was held that; [37: [1993] 1 CLJ 479]

The law should recognize that a doctor has duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patients position, if warned of the risk, would likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.

Thus, by applying those test recommended, the court then can easily determined whether there is exist duty of care between both parties. The test of duty of care are the main test which applied to all professional profession including lawyers, which the court will look at the duty owed by the lawyer to their own client and such client rely on the advice and the guide from the lawyers that they seek. On the other hand, the client must prove of such negligent advice based on balance of probabilities and the test of reasonable man does apply to determine whether the advice is negligently made or not.So, is there any defense that can be used by the legal practitioner when there is professional negligence? The answer lies in the case of Rondel v Worsley [1969] 1 AC 191[footnoteRef:38] whereby in this case, Nobby Rondel, who was the plaintiff in this case was previously charged for causing grievous harm to Manning. He was not given legal aid, but after the case had been preceded for some time, he was afforded the facility of a dock brief, and he chooses a barrister by the name of Worsley to represent him. The case eventually ended in conviction as been confirmed by the Court of Appeal, and Rondel underwent a sentence. Nearly six years later, he issued a writ against Worsley, claiming damages for alleged professional negligence in the conduct of his duty. The writ was dismissed by the court of appeal which causes Rondel to further appeal to the House of Lords where it was hold by unanimous reasoning that; [38: [1969] 1 AC 191]

The immunity of counsel from being sued for professional negligence in the conduct of a cause, criminal or civil, is based on public policy, not on his contractual incapacity to sue for fees, and it is in the public interest that the immunity should be retained, one factor being that counsel owes a duty to the court for the true administration of justice.[footnoteRef:39] [39: Profesional practise book,2nd edition CLP series]

Quoted from the judgment made from the House of Lord[footnoteRef:40] on the advanced reason for public policy are; [40: Ibid ,page 29]

1.Overriding duty to the court. The counsel has a duty toward his clients welfare. However, ones should take not that, as an officer of the court, the counsel should not mislead the court, which cause apprehension toward the other party. Beside that, he must not withhold authorities or document which may tell against his client but which the law or the standards of his profession require him to produce. 2. Cab-rank principle has been recognized that no counsel is entitled to refuse to act in a sphere in which he practices as it is important or essential that the duty must continue.3. Absolute privilege shows us that a judge, witness and barristers alike have absolute privilege with regards to what is said by them in court.4. Relitigation is where an action for negligence against the barrister would prolong litigation a client who claims that the barrister was at fault would bring a civil claim against the barrister. The civil court would have to consider all the evidence which have been adduced in the criminal trial. In effect, this would bring about a retrial of the criminal case in the civil courts.However, such immunity can be removed under certain extent as the privilege of immunity could not be interpreted to cover everything that lawyers do[footnoteRef:41]. We can support this in the case of Saif Ali v Sydney Mitchell & Co [1978] 3 ALL ER 1033[footnoteRef:42]; whereby it was held that:- [41: Profesional practise book,2nd edition CLP series] [42: Co [1978] 3 ALL ER 1033]

The general principle that barristers are entitled to some immunity was established, or re-established, by unanimous decision of all their Lordships. It was argued that barristers should enjoy no greater immunity than other professional men. But that argument was rejected: barristers, it was firmly held, have a special status, just as a trial has a special character: some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer loss.Furthermore, Lord Steyn, one of the Seven law lords that gave decision for three different appeal cases but yet all three regarding on barrister immunity[footnoteRef:43], had stated that there benefit that can be gained from ending the immunity provided the following reasons. The first reason is that there is a basic rule where there should be a remedy for a wrong. However, it would not be applicable if the advocate did commit negligent act and such the act will cause the immunity to cease. The second reason would be, as one of the functions of law of torts is to set external standards of behavior for the benefit of the public. [43: Profesional practise book,2nd edition CLP series . page 33]

There is no such thing as immunity of counsels in Malaysia as all the legal practitioner is deemed to carry out their duty of care.[footnoteRef:44] [44: PP Slides presentation]

CONCLUSIONIn conclusion, the legal practitioner also have their own liability towards their client and such the liability has been breach, it will caused or amounted to professional negligence. In Malaysia, there is no defense of immunity that been given to the lawyers as they are deemed to practice their duty of care towards their client. Differently, in England and Wales, where at first such immunity has been provided to the barrister in order to protect their right as legal practitioner. However, under some circumstances, such immunity can be taken away from the barrister and they will be liable for professional negligence.

REFERENCES

1) BOOKS PROFESIONAL PRACTICE , 2ND EDITION (CLP SERIES), RAVI NEEKO, PARAMES K.& KEVIN JOSHUA, LEXIS NEXIS, 2007,DOLPHIN PRESS SDN BHD HABDBOOK OF PROFESIONAL CONDUCT FOR SOLICITORS, 2ND EDITION,FRANCES SILVERMAN,1992,BUTTERWORTH &CO,EAST KILBRIDE, SCOTLAND

2) DICTIONARY OF LAW OXFORD DICTIONARY OF LAW, 7TH EDITION, 2009, OXFORD UNIVERSITY PRESS, NEW YORK

3) ACT LEGAL PROFESSION ACT 1976

4) WEBSITES http://en.wikipedia.org/wiki/Cab-rank_rule https://www.barstandardsboard.org.uk/media/1460590/bsb_-_cab_rank_rule_paper_28_2_13_v6__final_.pdf http://www.lawgazette.co.uk/72005.article http://en.wikipedia.org/wiki/Professional_negligence_in_English_law http://law.wustl.edu/sba/firstyearoutlines/torts/ http://en.wikipedia.org/wiki/barrister-at-law 5) PROFESIONAL PRACTISE &ETHICS SLIDE PRESENTATION ( 1ST AND 2ND CHAPTER)

PROFESIONAL PRACTICE AND ETHICSPage 13