Duty of Counsel (2)

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DUTY OF COUNSEL

Introduction

Duty of counsel to Court


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INTRODUCTION

The law is indeed a noble profession.

The law cannot administer itself; theburden therefore falls on the lawyers to

protect the society of injustices & upholdthe rule of law.

Edmund Burke wrote, where the law ends,

the tyranny begins. The onus is on the lawyers to uphold the

rule of law.


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Intro

Lawyers handling litigation matters in courthold heavier burden to uphold justice.

They are often referred to as counsel. Counsel here refers to a legal adviser

engaged in the conduct of a cause.


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Intro

In UK, counsel refers to barristers. In Msia,since we have a fused profession, counselrefers to an adv & sol who appears in courtrepresenting their client in a particular cause.

A counsel representing a client in court is anofficer of court.


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Intro

The counsel shoulders an additional duty oflending assistance to the court in theadministration of justice.

Duties of a counsel:

Duty to court;

Duty to client;

Duty to opposing counsel;

Duty to society.


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DUTY OF COUNSEL

TO COURT As an officer of the court, a counsel owes a

higher duty to the court than to the client.

Counsel has a duty to assist the court infinding the truth & ensuring that justice isupheld.


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Duty to Court

(1) duty not to mislead the court Rondel v Worsley: HOLs counsel owes a higher

duty to the court than to the client. The reasonthat the counsel could not be sued for negligenceis because they owe a duty to the court for thetrue administration of justice.

Facts: The A who was facing a charge of causinggrievous bodily harm, engaged the services of the

R as counsel to defend him on a dock brief. The Awas convicted & 6 years later he issued a writalleging negligence in the conduct of defence onthe Rs part.


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Duty to Court

HOLs: The immunity of counsel from beingsued for professional negligence in theconduct of a cause, criminal or civil, is basedon public policy, not on his contractualincapacity to sue for fees, and it is in thepublic interest that the immunity should beretained, one factor being that counsel owes aduty to the court for the true administration of

justice. Since the counsel owed a duty to thecourt for the true administration of justice, thecounsel should not under circumstanceswhatsoever mislead the court.


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Duty to Court

Circumstances amount to misleading the court:

(a) conceal document effecting the credibility of a

witness in a civil suit; Cheah Cheng Hoc v PP Held: counsel who concealed

documents relevant for the purposes of challengingcredibility of a witness may be liable for contempt ofcourt for obstructing the proper conduct of litigation.


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Duty to Court

(b) filing affidavits in court which contain misleadingaverments

Re An Advocate & Solicitor Held: the preparation by aprofessional man of an affidavit that is untrue & knownto him to be untrue, is a very serious offence.

(c) an undischarged bankrupt does not disclose hisincapacity i.e. his status as an undischarged;

(d) failing to exhibit the relevant documents in theaffidavit;


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Duty to Court

In Cahaya Ideal (M) Sdn Bhd [1999] 1 CLJ 575,Malik Ishak J had quoted Lord Diplock who said:

The special characteristics of a barristers work uponwhich the greatest stress is laid is that he does owe aduty also to the court. This is an over-riding duty whichhe must observe even though to do so in a particularcase may appear to be contrary to the interests of his

client. Thus a barrister must never mislead or misguidethe court, and must resist attempts at distortion.


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Duty to Court

Whyatt CJ in Yee Chang & Co. Ltd. v NVKoninklijke Paketvaart Maaschappij [1958] MLJ 131remarked that: A solicitor owes a duty to the court to conduct litigation

with due propriety & to assist in promoting in his ownsphere the cause of justice. If, therefore, a solicitorbecomes aware in the course of proceedings that hisclient is obstructing the interest of justice, it is his duty to

advise his client as to the conduct which he ought tofollow & if the client still persists in his wrong conduct,he should decline to act for him further.


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Duty to Court

(2) Duty not to withhold authorities In a quest to win a cause in court, a counsel

should not withhold any case law that goes

against his matter. The counsel has a duty tobring to the attention of the court all the relevantauthorities on the said matter as he is assistingthe court to find the truth.

If counsel refuses to give case law that does notsupport his cause & resulted the court to depriveof making a reasoned judgment - this would notserve the administration of justice.


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Duty to Court

In Glebe Sugar Refining Co. ltd. v Trustees of thePort & Habours of Greenock Held: it is a duty ofcounsel to bring to the notice of the court any

authority within their knowledge both for & againstclient. In complicated cases, it is not possible forthe judge to be aware of all authorities which maybe relevant to the issue in a particular case.

The counsel is expected to present all authoritiesunder debate to the court whether for or againsthim/his client. This is an obligation of confidencebetween courts & all those who assisted the courts inthe administration of justice.


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Duty to Court

(3) Duty not to misrepresent witness givingevidence in court

In Re JLP Harris, counsel had deliberately kept

witness away from court as the witness is adisadvantage to clients case. Counsel had also

procured an adjournment by a false means.

Held: Counsel was guilty of misconduct where hewas suspended for 3 months & had to pay thecosts of the proceedings.


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Duty to Court

(4) Counsel has no duty to inform court aboutthe discredibility of witness.

Whether the counsel holds this duty would

depend on whether this matter would have animpact on the decision of the court. If there wouldbe an impact, have to inform; otherwise, not have.


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Duty to Court

Tombling v Universal Bulb Co. The counsel whocalled the witness knew that the witness came tocourt from the prison but withheld this fact fromthe court. The counsel then asked the witness ifhe resides at certain address, knowing that hewas not residing there, & the witness replied inaffirmative. The court accepted the testimony ofthe witness & the claimants suit was dismissed.

The claimant later found about the fact & claimed. The appellate court, in dismissing the claim ruled

that counsel had acted honestly & had nointention of misleading the court.


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Duty to Court

Lord Justice Denning held, inter alia: there is nothing improper in the conduct of the case for

the Pf. There is no duty on counsel to tell the judge that awitness comes from prison to give evidence, any more

than there is to tell the judge that he has had previousconvictions.

In Meek v Fleming however, the COA distinguishedTomblings & held, it is a duty of the counsel to

inform the court of the discredibility of the witness.Since the information would have an impact on thedecision of the court, the counsel should inform thecourt.


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Duty to Court

Duty to prevent the court from enforcing illegaltransaction.

Network Food (M) Sdn Bhd v Syabinas HoldingsSdn Bhd & Anor. [1997] 4 CLJ 49 held: it is thecounsels duty as an officer of the court to bring to

an attention of the court if the counsel knows that

the court is in danger of enforcing an illegaltransaction.


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Duty to Court

Duty not to cast aspersions on (attack the integrity of)

witness without sufficient proof.

Roy v Prior the defence counsel in a summons case claimed

that he had served a subpoena on a witness. He added that,the failure of the witness to appear is because the witness isevading the court. He then applied for warrant of arrest to beissued against the witness. The witness was subsequentlyarrested. The witness sued the defence counsel but the

counsel raised the defence of immunity. HOLs: there are limits to immunity. If privilege is abused,

immunity will be lost. On the facts, the immunity was lostbecause the counsels actions were malicious.


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Duty to Court

Duties under the Legal Profession (Practice &Etiquette) Rules 1978:

R. 15adv & sol shall maintain a respectful

attitude towards the court.

R. 17adv & sol shall not practice any deceptionon the court.

R. 18the conduct of an adv & sol before thecourt & in relation to other adv & sol shall becharacterised by candour, courtesy & fairness.


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Duty to Court

Conclusion:

Although the counsel is paid by his client to win thecase & he has to do his best for the interest of his

client, this duty cannot be accepted in its entirety. While the duty to the client is no doubt, counsel still

has a duty to the court a duty to the cause ofjustice itself. Therefore, the counsel must never

suppress or distort the truth.


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Duty to Court

Lord Chief Justice Cockburn: It is the advocates

duty to seek to reconcile the interests he is bound

to maintain, and the duty it is incumbent upon him

to discharge with the eternal & immutable interestsof truth & justice.

Documents

Duty of Counsel (2)