JULY 30 — A lawyer representing a litigant in court (counsel) has three main duties.

The first is the duty to the court. This duty means that a counsel must assist the court in the expeditious, just and economical administration of justice by the court which encompasses the compliance with all directions given by the court unless there is good reason shown.

This duty is embodied in rule 12 of the Legal Profession (Practice and Etiquette) Rules 1978 (Practice and Etiquette Rules) which states that an advocate and solicitor shall not conduct a civil case or make a defence which is intended merely to delay proceedings or to harass or injure the opposite party or to work oppression or wrong.

The second is the duty to the profession. It means that he must conduct himself in an appropriate manner when handling a case before the court so as to uphold the dignity and high standing of his profession.

This is provided in rule 31 of the Practice and Etiquette Rules.

The third duty is the duty a counsel owes to his client. It means that he must fearlessly uphold the interest of his client. In other words, he must present his client’s case in the best possible light before the court with all due courtesy to the court.

This is provided in rule 16 of the Practice and Etiquette Rules.

The Practice and Etiquette Rules provide for other duties of a counsel. Rule 24(b) states that a counsel may apply for postponement of a case fixed for hearing for good and cogent reasons only.

Rule 6(a) reminds counsel that he shall not accept any brief unless he is reasonably certain of being able to appear and represent his client on the required day. This duty was emphasised by High Court Judge Su Geok Yiam in Tan Sri Datuk Diong Hiew King @ Tiong Hiew King v Lau Swee Nguong @ Lau Sui Guang (2014).

In that case, the judge ruled that the new counsel who took over from the previous counsel had to make sure he was able to comply with the court’s directions for parties to file and exchange their witness statements on or before the concerned date. Otherwise, he ought not to have agreed to take over the brief.

The judge construed rule 6(a) to mean an advocate and solicitor should not accept any brief unless he was able to comply with the directions given by the court with regard to pre-trial case management.

A counsel’s duty to the court is first and paramount. —  Picture by Hari Anggara
A counsel’s duty to the court is first and paramount. — Picture by Hari Anggara

Perhaps it is opportune to recall what High Court Judge Harun Hashim (as he then was) said in Public Prosecutor v Mohtar Bin Abdul Latiff (1980):

It will not be out of place here to remind all concerned of the Legal Profession (Practice & Etiquette) Rules, 1978 made under section 77 of the Legal Profession Act, 1976 which provides:

Rule 2: No advocate and solicitor is obliged to act as adviser or advocate for every person who may wish to become his client but the advocate and solicitor may accept any brief in the Courts in which he professes to practise at a proper professional fee dependent on the length and difficulty of the case: Provided that special circumstances may justify his refusal, at his discretion, to accept a particular brief.

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.

Any advocate and solicitor who fails to comply with any rules made under this section may be liable to disciplinary proceedings — Section 77(3) of the Legal Profession Act 1976.

In that case, counsel had no good or cogent reasons to apply for postponement of the hearing. The hearing dates had been fixed well in advance to suit his convenience. He should not have accepted this brief or the other briefs which clashed with the trial dates of this case.

A counsel’s duty to the court is first and paramount.

It is to assist the court in the expeditious, just and economical administration of justice and this includes not to accept any brief unless he is reasonably certain of being able to appear and represent his client on the required day.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.