COURT

INTRO As an officer of the court, an advocate and soclitor’s paramount duty is to

the court in ensuring a proper administration of justice by acting honestly
with candour and competence. This has been established in the landmark
ase Shaw & Shaw Ltd v Lim Hock Kim (1958) whereby a lawyer is under
an obligation of frankness and candour due to the confidence reposed by
the judges. He is also obliged to carefully display accuracy in presenting his
case as well as to call the court’s attention to any case laws or statute which
are against him.

RESPECT TO CIVIL: Rules 15 LPPE

COURT
SHA: Rule 14 Practice Direction

CONDUCT IN CIVIL- Language: Rule 13 LPPE

COURT -Well Behaved: Rule 18 LPPE

SHA- Well Behaved: Rule 3 Practice Direction

NO DELAY & DELAY

NO Rule 12 of LPPE stipulated that an advocate and solicitor shall not conduct
POSTPONE a civil case with intention to delay the proceedings.

SHA: Rule 13 Practice Direction

In the case of Agi Ak bungkong v Ladang Sawit Bintulu Sdn Bhd (2010),
the court emphasises the duties of a counsel to the court by ensuring that all
the relevant documents disclosed to the opposing party at the earliest
opportunity and for a case to be disposed timeously.

In White Industries v Flower and Hart, the defendant firm was given
advice from a Queen's Counsel confirming that the defendants legal
position was weak but that there was one possibility of temporarily
improving the defendant's bargaining stance which was to start proceedings
under the Trade Practices Act alleging deceptive conduct and fraud. In a
strong criticism of the legal firm (Flower and Hart), the Federal Court held
that they had breached their duty to the court by instituting proceedings
without proper foundation. The manner in which the firm had conducted
the proceedings and delaying conduct that exacerbated the abuse of process
was also highly criticised in this case.

POSTPONEMENT
In regards to postponement, Rule 24(b) mentioned that an advocate and
solicitor may apply for postponement of a case for hearing when necessary
due to good and cogent reasons only. As such, an advocate and solicitor is
expected to be ready for the day fixed for a trial.
 SHA: Rule 22(b) and Rule 22(c)

EXTENSION OF TIME TO PLEAD

Under rule 57, where an extension of time to plead has been given to a
party, the advocate and solicitor representing that party shall accept short
notice of trial at the next sitting of the Court as though the pleadings have
been filed during the time limited for doing so. This is crucial to avoid the
party allowing such an extension from being prejudiced.

NO In relation to integrity, there are several related rules under the LPPE that
DECEPTION & are relevant to be discussed.
NO
MISQUOTE First and foremost, the general rule 16 of the LPPE shall be referred to
whereby it has clearly stated that in acting as an advocate and solicitor, it
shall be done fearlessly upholding the interest of his client, the interest of
justice and dignity of the profession. Also it has been further emphasised
under rule 31 which highlighted that an advocate and solicitor shall uphold
the dignity and high standing of his profession at all times.

In regards to respect to the Court, rule 15 of the LPPE stipulated that an

advocate and solicitor shall always maintain a respectful attitude towards
the Court.

Rule 17 further prohibited an advocate and solicitor from practicing any

deception on the Court.

Besides that, rule 21 of the LPPE can be referred which provided

impropriety for knowingly misquoting the contents of a paper, witness’s
testimony, opposing counsel’s argument or language of a decision, or to cite
a decision that has been overruled or a statute that has been repealed as an
authority upon knowing of its invalidity, as well as to assert an unproven
facts in an argument, or to mislead his opponent by concealing or
withholding in his opening speech positions upon which he intends to rely.

Rule 26 provided that an advocate and solicitor shall avoid from doing
anything that may tend to be misleading to a party which is not represented
by counsel, which will at the same time mislead the court.

In the case of Darshan Singh Khaira (1998), the court highlighted that one
of the duties of a counsel to the court is to conduct a case fairly and
honestly pursuant to rule 12, rule 16, rule 17 and rule 31 of the LPPE.

In addition to that, rule 28 of the LPPE also stated that an advocate and
solicitor shall not appear before the court where he is the witness for that
particular case. This has been further discussed by the court in Syarikat
 Pengangkutan Sakti Sdn Bhd (1997).

Also, an advocate and solicitor shall also avoid from testifying on behalf
of the client as has been provided under rule 29 of LPPE.

In Perbadanan Pengurusan 3 Two Square v 3 Two Square Sdn Bhd

(2018), there is an ex parte application by the plaintiff to commit the
defendant’s witness for contempt of court for perjury. In resisting the
application, the defendant filed an application to recuse one of the
plaintiff’s co-counsel from further conduct of the case due to conflict of
interest. Such an application was made by the defendant on the basis of non
compliance to rule 28 and 29 of LPPE. Nevertheless, since there are no
sufficient and cogent grounds portrayed by the defendant, the court
dismissed the defendant’s application.

Rule 30 of the LPPE stated that an advocate and solicitor shall not wear
robes if he appears as a party or as a witness to avoid any form of deception
or confusion to the court.

ATTIRE

ORDER OF Section 137 of the Evidence Act 1950 provided that there are three
SPEECH manners for examination to be done in a court proceeding. Firstly is the
examination in chief which is generally an examination of witness by the
party who calls him to be a witness if his favour. Secondly it will be
followed by cross-examination which is an examination of witness by the
adverse party, and lastly is the re-examination where the witness is
re-examined by the party who called him. This shall be the order as has
been stated under section 138(1) of the Evidence Act.

The order of speech has also been highlighted by the Rules of Court 2012
under Order 35 rule 4 which specified that the judge may give direction as
to the party to begin. Generally under paragraph (2), (3) and (4) of the rule,
the plaintiff or prosecution’s case will shall start firstly by the plaintiff or
the Public Prosecutor (PP) opening his case and proceed by calling his
witness for the examination in chief, and it will be followed by a cross
examination by the defendant or the defense counsel of the accused and a
re-examination by the plaintiff or the PP. On the other hand if it is at the
defense stage, then the defendant or the counsel for the accused will open
their case and start by calling their witnesses for examination in chief,
followed by the cross-examination by the plaintiff or the PP, and ended
with a re-examination by the defendant or the defense counsel for the
accused.

An exception to the general order is provided under (6) which stated that
the defendant shall be the party who starts first if the burden of proof lies
 on the defendant, or when there are two or more defendants appear
separately or separately represented.

In Pearl Amrin Sdn Bhd v Rizsilla Global Sdn Bhd (2019), there is an
action for breach of contract brought by the plaintiff. Since the plaintiff’s
first witness was not present during the trial due to an urgent business
overseas, the counsel for the plaintiff requested for an adjournment or to
proceed with the second plaintiff’s witness. However due to the fact that
there is no good ground for the plaintiff’s first witness’s absence and for the
court to skip the witness, an order for strike out the plaintiff’s action was
made by the court.

In deciding so, the court referred to section 138(1) of the Evidence Act
1950 which can be inferred that one witness can be stayed if there is a good
and coagent reason to do so. If a witness is allowed to give evidence in
installments, and in between his evidence other witnesses are called to
testify, there is real danger of tailoring evidence in order to suit the party
that called him, which will result in evidence-patching and anticipation of
cross examination to be done.

The court further gives emphasis on the purpose for such an order under
section 138(1) to be followed strictly to discourage evidence patching. The
witness is called for examination in chief to elicit all material facts within
his knowledge which will tend to prove the plaintiff’s case, while a cross
examination is made with the purpose of interrogating the witness by the
opponent party, and it will then ended with a re-examination which will
clarify the witness’ testimony and any subject matters provided and raised
by the opponent counsel during the cross-examination, which mainly done
to give the witness an opportunity to explain any matters raised during the
cross-examination. As such, re-examination shall only be restricted to
matters raised during the cross.

FAILURE TO Lawyers may be liable for contempt of court.

OBSERVE

PUBLIC
PRO BONO Rule 3 of LPPE prohibits an advocate and solicitor from accepting any
-Legal Aid brief if he is or would be embarrassed. An embrasement under rule 3(2)
Bureau refers to a situation where the advocate and solicitor finds he is in
- JBG possession of confidential information as a result of having previously
- Legal Aid advised another person in regard to the same matter, or where there is some
Centre at Bar personal relationship between him and a party or a witness in the
Council proceedings.
- National Legal
Aid Foundation Rule 4 of LPPE has clearly specified that an advocate and solicitor shall
not accept a case where he knows or has reason to believe that his own
professional conduct is likely to be impugned.

Also under rule 5, an advocate and solicitor shall not accept a brief if it will
result in difficulty for him to maintain his professional independence, or if
it is incompatible with the best interest of the administration of justice.

Rule 6 also prohibits an advocate and solicitor from accepting a brief if he

is unable to appear and represent the client on the required day. It was
further stated under rule 6(2) that an advocate and solicitor shall not
withdraw from an engagement once it has been accepted without sufficient
cause. Nevertheless, such a withdrawal may be made if a reasonable and
sufficient notice has been given to the client.

DUTY OF In general, rule 16 specified the general duty of care owed by an advocate
CARE and solicitor whereby in acting as an advocate and solicitor, it shall be done
fearlessly upholding the interest of his client, the interest of justice and
dignity of the profession. This rule shall also be read together with Rule 31
which stated that an advocate and solicitor shall uphold the dignity and high
standing of his profession at all times.

An advocate and solicitor is expected to use his skill fairly and accordingly
when representing the client. The public interest shall be taken into account,
or else he may be liable for breach of duty of care. In exercising his duty, an
advocate and solicitor is also expected to remain fair, honest and discharge
his duty with courtesy as has been stated under rule 18 of LPPE.

Rule 22(1) of LPPR stipulated that an advocate and solicitor is allowed to

give free advice so long as the firm’s name and business card is not
disclosed. The advocate and solicitor is also prohibited from acting on
behalf of the person seeking such an advice

CONFLICT In general, rule 16 specified the general duty of care owed by an advocate
and solicitor whereby in acting as an advocate and solicitor, it shall be done
fearlessly upholding the interest of his client, the interest of justice and
dignity of the profession. This rule shall also be read together with Rule 31
which stated that an advocate and solicitor shall uphold the dignity and high
standing of his profession all times.