Professional Misconduct Among Lawyers

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TITLE: REVIEW ON CASES OF PROFESSIONAL MISCONDUCT AMONG LAWYERS TOPIC: REVIEW ON CASES OF PROFESSIONAL MISCONDUCT AMONG LAWYERS.
  1. Introduction and Nature of Misconduct
The field of law has numerous subdivisions of profession to be involved into. This includes conveyancer, barrister, solicitor, lawyer, public prosecutor, public defender, judicial commissioner, and judges. As all know, a career in the legal profession can be intellectually challenging, personally fulfilling and financially rewarding. The role of the lawyer varies significantly across legal jurisdictions. An important aspect of a lawyer's job is developing and managing relationships with clients. The client-lawyer relationship often begins with an intake interview where the lawyer gets to know the client personally, discovers the facts of the client's case, clarifies what the client wants to accomplish, and shapes the client's expectations as to what actually can be accomplished, begins to develop various claims or defences, and explains her or his fees to the client.[1] However, this profession has its own adversity. It is duly acknowledge that a lawyer has a duty of care towards their client. The breakdown of the fiduciary obligation will leads to misconduct in part of the lawyer. Misconduct can be defined as a dereliction of duty, which is unlawful or improper behaviour[2]. It also means no more than incorrect or erroneous conduct of any kind of a serious nature, and does not necessarily connote moral censure[3]. In legal terms, misconduct is wrongful, improper, or unlawful conduct motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts.[4] There are some other famous words which also have been used to describe the same meaning of misconduct i.e. negligence, misbehaviour, wrongdoing, and malpractice.
  1. Professional Misconduct
  1. General Overview
Despite of the promising handsome wedges in return, a lawyer has a fiduciary duty and obligation to his client. The failure to oblige with the duty will amount to breach of duty or legally known as a professional misconduct. In general, professional misconduct can be well-defined as a behaviour considered by the governing body of a profession to be unworthy of member of that profession. This may lead to removal from a professional register[5]. Other than that, it is also known as professional malpractice. It is an instance of negligence or incompetence on the part of a professional. A legal malpractice is a lawyer’s failure to render professional services with the skill, prudence and diligence that an ordinary and reasonable lawyer would use under similar circumstances[6]. Professional misconduct was described in Re A Solicitor, ex p Law Society[7] as conduct which would reasonably be regarded as disgraceful and dishonourable by solicitors of good repute and competency. In other case of Myers v Elman[8] Lord Wright opined professional misconduct can be regarded as an act of gross neglect or inaccuracy and failure on the part of a solicitor to realize his duty to aid in promoting in his own sphere the course of justice. Misconduct among lawyers encompasses variety of issues related to unethical or illegal conduct by a lawyer. Misconduct of lawyers may include conflict of interest, over billing, refusing to represent a client for political or professional motives, false or misleading statements, hiding evidence, abandoning a client, failing to disclose all relevant facts, arguing a position while neglecting to disclose prior law which might counter the argument, and in some instances having sex with a client.[9] In addition, lawyers are beneficiaries of the privilege of the practice of law and subject to higher duties and responsibilities than non-lawyers. A lawyer's fiduciary duties arise from his status as a member of the legal profession and expressed in the applicable rules of professional conduct. The idea of professional misconduct commonly related to the act of negligence in some particular profession such as lawyer. Furthermore, a lawyer’s profession is accompanied with statutes which govern the practice of law through its establishment of rules of conduct. These rules are then adopted, sometimes in a modified form, by state courts and enforced by court-appointed disciplinary committees or bar council which the implementation varies by country. Beforehand, there are some elements that need to be fulfilled in order to prove an act of negligence. Mere mistake by a lawyer not easily fall within the definition of negligence. To prove negligence occurred in part of the lawyer, there must be a duty of care owed to the plaintiff which is breached such that damage results.[10] A general theory of negligence liability was laid down there in the landmark case of Donoghue v Stevenson[11] namely, “I owe a duty of care to my neighbour and my neighbour is he whom I can reasonably foresee could suffer injury or damage by my act”. The principle in Donoghue’s case had been further clarified by Lord Wilberforce’s judgement in Anns v Merton LBC[12] that the principle had to be applied in two stages. The first stage was the determination of whether there was reasonable foreseeability of injury. The second stage was the determination of whether there were any considerations that ought to negative or reduce or limit the scope of the duty or the class of persons to whom it was owed or damages in respect of which recovery was possible.[13] Later, the decision in Anns’s case was reconsidered and overruled in Murphy v Brentwood District Council[14] where in that case there was certainly foreseeability of loss in part of plaintiff but proximity was absent. The issue of negligence liability in part of the lawyer may arise usually when there is deficiency in execution of work for example, if he or she fails to provide competent representation to a client, to act with diligence and promptness regarding a client's legal concerns, or to keep a client informed of legal proceedings.
  1. Malaysian View
In Malaysia, the legal profession is a fused profession. There is no distinction between the duties of a barrister and that of a solicitor, although in practice it is not uncommon to find certain practitioners merely indulge in solicitors work and some others undertaking solely litigation work. Yet, it does not mean that those undertaking litigation work are immune from negligence suit like in England before.[15] Under Malaysian law, misconduct is committed by an advocate and solicitor if a particular act or omission falls within Section 94 (3) (a) – (o) of the Legal Profession Act (LPA) 1976. As can be seen in the particular section, the word “includes” referring to the examples given are not thoroughly cover all possible misconduct that an advocate and solicitor may commit during the discharge of his professional duties. These are some examples of misconduct provided under the Act are as follows:-
  1. Conviction of criminal offence
  2. Breach of duty to a court including breach of an undertaking
  3. Dishonest and fraudulent conduct whilst in the discharge of duties
  4. Breach of the rules of practice and etiquette of the profession
  5. Being adjudicated a bankrupt and also contravening Section 33 of the Bankruptcy Act 1976
  6. Giving gratification to any person for having procured a legal business
  7. Directly or indirectly procuring or attempting to procure legal business
  8. Accepting employment in any legal business through a tout
  9. Allowing an unauthorized person to carry on legal business
  10. Carrying on any business which is incompatible with the legal profession
  11. Breach of any provision of the LPA 1976 or any rules made thereunder
  12. Disbarment, striking off, suspension or censure of an advocate and solicitor in the capacity of a legal practitioner in any other country
  13. Charging grossly excessive legal fees
  14. Gross disregard of client’s interest
  15. Being guilty of any conduct which is unbefitting of an advocate and solicitor
Section 117(4) of LPA 1976 further states that any provision in the agreement which states that the advocate and solicitor shall not be liable for negligence or that he shall be relieved from any responsibility to which he would otherwise be subject as an advocate and solicitor, shall be wholly void. It is therefore submitted that there is a contractual relationship between an advocate and solicitor and a client. The contractual relationship requires the advocate and solicitor to carry out the duties entrusted upon him with due care and skill. Any shortcomings on the part of an advocate and solicitor in doing so would necessarily allow a client to commence a suit in negligence against the said advocate and solicitor.[16] Then it would be up to the court to decide that the said advocate and solicitor was in fact committing negligence. The effect on professional misconduct was provided in Section 94 of LPA 1976 where any advocate and solicitor who have been guilty of any misconduct shall be liable to be struck off the Roll or suspended from practice for any period not exceeding five years. In Re An Advocate v Solicitor[17], the court recorded a censure and ordered the respondent to pay costs as the solicitor had prepared an affidavit that is untrue, and that is known to him to be untrue. The court held that this to be a very serious offence. In some cases of his kind the appropriate penalty would be either to strike off the offender (if it was a very bad case) or to suspend him for a period of time.[18]
  1. Cases on Professional Misconduct Among Lawyers
Section 94 (3) (b) of LPA 1976 provides that all attorneys and solicitors are subject to disciplinary actions if guilty of any misconduct breach of duty to a court including any failure by him to comply with an undertaking given to a court. In Home Office v Harman[19], a long term prisoner brought an action against the Home Office on the allegation that his detention was unlawful as he was kept in an experimental control unit isolated from the rest of the prison system. The prisoner was represented by a solicitor who had obtained documents in relation to setting up the prison by way of discovery. The solicitor had given an express undertaking that the document will not be used for any other purpose other than the case at hand. However, in breach of this express undertaking, the solicitor had allowed the journalist to have access to the said documents which resulted in the publication of a highly critical article about the Home Office. The Home Ministry then brought an action before the court. The House of Lords held that Harman was found guilty. Section 94 (3) (d) of LPA 1976 provides that all attorneys and solicitors are subject to disciplinary actions if guilty of any misconduct of breach of any rule of practice and etiquette of the profession made by the Bar Council under the Act or otherwise. In Lim Soh Wah & Anor v Wong Sin Chong & Anor[20] the Court of Appeal had occasion to consider the consequences of an advocate and solicitor failing to be present in court on the trial date and also failing to inform the client of the trial date. The Court of Appeal in holding the advocate and solicitor liable in negligence held that it is a fundamental duty of a solicitor to diaries the cases and keep the clients informed of dates and prepare the case with the client. In Saif Ali v Sydney Mitchell & Co[21], the plaintiff who was a passenger in a van was injured in a collision with a car driven by Mrs S. He was advised by a barrister to sue Mr S but it turned out that Mr S might be the wrong party to sue since he was not the one who drove at the time accident occurred. Counsel advised that no amendment of the pleading was necessary and later when the action against Mr S was dropped, it was too late to sue Mrs S. In holding the barrister liable for negligence, the House of Lords was impressed by the fact that the barrister’s negligence was the failure to advise that Mrs S should be joined as defendants. In other case of Neogh Soo Oh v Rethinasamy[22], the court held that a solicitor who did not conduct a land search failed to inform the client that the land which he wished to purchase has already been gazetted for compulsory acquisition. The court held that the solicitor is liable for negligence for breach of duty of care. In an illuminating judgment, his Lordship Gunn Chit Tuan J (as he then was) held that the defendant had failed in his duty to use reasonable care and skill in giving his advice and taking such action as the facts of this particular case demanded of a normally competent and careful practitioner. Section 94 (3) (i) of LPA 1976 provides that all attorneys and solicitors are subject to disciplinary actions if guilty of any misconduct allowing any unauthorized person to carry on legal business in his name without his direct and immediate control as principal or without proper supervision which makes him unfit to be a member of his profession. In Myers v Elman[23] illustrates the example of allowing an unauthorized person to carry on legal business of a lawyer. In this case, the respondent was a solicitor on record to one of the defendants. At the close of the case, the plaintiff made an application that the respondent should be ordered to pay the costs of the action on the ground that he had been guilty of unprofessional conduct. It was proved that the respondent had left the conduct of the case in the hands of his managing clerk, who was not a solicitor to prepare affidavits. The House of Lords in finding the solicitor guilty of professional misconduct held that as a solicitor he could not escaped his responsibility to the court for the proper discharge of his duties to the court by delegating them to a managing clerk who was not personally amenable to the jurisdiction exercised by the court over solicitors as its officers. Lord Atkin further held that the court is not concerned with a breach of duty to the other litigant, but the breach of duty itself.[24] Some of reported cases show that advocates and solicitor may found guilty for misbehaviour and improper conduct in court which leads to the offence of contempt of court. In the case of Re Kumaraendran, An Advocate & Solicitor[25], the counsel was defending an accused person charged with an offence under the Corrosive and Explosive Substances and Offensive Weapons Ordinance 1958. The defence counsel was shouting at the witness and had failed to conduct the case with decorum and proper manner. The learned President, Low Hop Bing recorded the defence counsel’s disorderly behaviour. The defence counsel later made an application to court for the matter to be heard by another judge. The court then ruled that the advocate had committed contempt of court and committed the advocate to two days imprisonment. Another case of Re TT Rajah; The Law Society of Singapore v Tampoe T Rajah[26], the respondent an advocate and solicitor used grossly offensive and improper expressions and threatening gestures to the defence counsel. The respondent had called the DPP, a government agent, a running dog and the court – a police court, an organ of power. The Attorney General then complained to the President of the Law Society who then instituted disciplinary proceedings. The Disciplinary Committee found the respondent’s conduct in court to be professional misconduct and ordered that he be suspended from practice for two years. On appeal to the court, his Lordship Wee Chong Jin CJ upheld the decision of the Disciplinary Committee.
  1. Immunity against Civil Suit
Notwithstanding of the cases given, the existence of immunity to advocate and solicitor from negligence liability is still an open question. In England, although a barrister’s immunity from negligence liability has a history of some 200 odd years; its precise formulation was of recent vintage and appeared in some cases.[27] In Rondel v Worsley[28], the appellant had been represented in a criminal assault charged by the respondent barrister on a dock brief. After his conviction, he brought a negligence suit against the respondent alleging that the respondent had been negligent in undertaking his defence, inter alia to reveal and prove that the victim’s wounds were not caused by a knife and the appellant was not in a the habit of using a knife. The allegation was negligence in failing to put certain questions to witnesses and failing to call certain witness. The House of Lords agreed with the Court of Appeal that no reasonable cause of action was disclosed affirming the rule that the barrister was immune from any negligence liability. Based in this case, there is rejection of the popular theory, which singling out of public policy in the administration of justice as the sole foundation of a barrister’ immunity. A first consideration was that a barrister’s duty to advance his client’s interest must be subject to a higher duty to the court to assist. In the absence of any immunity would mean that a disgruntled client who has been successfully prosecuted in a criminal suit can raise the issue of his guilt again in a civil suit for negligence against his barrister. This would have the undesirable consequence of retrying the criminal action in a civil action where the burden of proof is very different.[29]
  1. Conclusion
In the statements of Datuk Seri Dr Rais Yatim, Minister in the Prime Minister’s Department (as he then was), published in the newspapers on 30 June 2002, there are almost 400 complaints against lawyers was reported in Malaysia. With the membership of the Malaysian Bar growing at a fast rate (there are now about 10,300 lawyers on the Roll of Advocates and Solicitors), it is conceivable that instances of misconduct have correspondingly increased.[30] The Bar Council shall take a serious outlook of all complaints by the public about the misconduct of lawyers, and shall always taking steps to reduce the number of misbehaving lawyers.
  1. REFERENCES
  1. Paul J. Zwier. Anthony J. Bocchini. Fact Investigation: A Practical Guide to Interviewing, Counselling, and Case Theory Development. 2000. Louisville. National Institute for Trial Advocacy.
  2. L. B. Curzon. Dictionary of Law. 6ixth Edition. 2003. Malaysia. International Law Book Services.
  3. Tan. YL. 1998. The Law of Advocates and Solicitors in Singapore and West Malaysia. 2nd Editon. Kuala Lumpur. Malayan Law Journal.
  4. Ravi Nekoo. Parames K. Kevin J. 2007. Professional Practice. Second Edition. Petaling Jaya. LexisNexis.
  5. Legal Profession Act (LPA) 1976.
  6. Re A Solicitor, ex p Law Society [1912] 1 KB 302.
  7. Myers v Elman [1939] 4 All ER 484, HL.
  8. Donoghue v Stevenson [1932] AC 562.
  9. Anns v Merton LBC [1978] AC 728.
  10. Murphy v Brentwood District Council [1991] 1 AC 398.
  11. Re An Advocate v Solicitor [1962] MLJ 125.
  12. Home Office v Harman [1986] 1 MLJ 299.
  13. Lim Soh Wah & Anor v Wong Sin Chong & Anor [2001] 2 AMR 2001.
  14. Saif Ali v Sydney Mitchell & Co [1980] AC 198
  15. Neogh Soo Oh v Rethinasamy [1984] 1 MLJ 126
  16. Myers v Elman [1939] 4 All ER 484, HL
  17. Re Kumaraendran, An Advocate & Solicitor [1975] 2 MLJ 45.
  18. The Law Society of Singapore v Tampoe T Rajah [1973] MLJ 79.
  19. Rondel v Worsley [1969] 1 AC 191
  20. Misconduct of Lawyers. 2002. Malaysian Bar Council.
  21. R v Pharmaceutical Society ex p Sokoh (1986) The Times, 4 Disember 1986.
  22. Black’s Law Dictionary. Seventh Edition.
  23. http://en.wikipedia.org/wiki/Misconduct
  24. http://en.wikipedia.org/wiki/Attorney_misconduct

[1] Paul J. Zwier. Anthony J. Bocchini. Fact Investigation: A Practical Guide to Interviewing, Counselling, and Case Theory Development. 2000. Louisville. National Institute for Trial Advocacy. [2] Black’s Law Dictionary. Seventh Edition. [3] Webster J in R v Pharmaceutical Society ex p Sokoh (1986) The Times, 4 Disember. [4] http://en.wikipedia.org/wiki/Misconduct [5] L. B. Curzon. Dictionary of Law. 6ixth Edition. 2003. Malaysia. International Law Book Services. [6] Black’s Law Dictionary. Seventh Edition. [7] [1912] 1 KB 302. [8] [1939] 4 All ER 484, HL. [9] http://en.wikipedia.org/wiki/Attorney_misconduct [10] Tan. YL. 1998. The Law of Advocates and Solicitors in Singapore and West Malaysia. 2nd Editon. Kuala Lumpur. Malayan Law Journal. [11] [1932] AC 562. [12] [1978] AC 728. [13] Tan. YL. 1998. The Law of Advocates and Solicitors in Singapore and West Malaysia. 2nd Editon. Kuala Lumpur. Malayan Law Journal. [14] [1991] 1 AC 398. [15] Ravi Nekoo. Parames K. Kevin J. 2007. Professional Practice. Second Edition. Petaling Jaya. LexisNexis. [16] Ravi Nekoo. Parames K. Kevin J. 2007. Professional Practice. Second Edition. Petaling Jaya. LexisNexis. [17] [1962] MLJ 125. [18] Ravi Nekoo. Parames K. Kevin J. 2007. Professional Practice. Second Edition. Petaling Jaya. LexisNexis. [19] [1986] 1 MLJ 299 [20] [2001] 2 AMR 2001 [21] [1980] AC 198 [22] [1984] 1 MLJ 126 [23] [1939] 4 All ER 484, HL [24] Ravi Nekoo. Parames K. Kevin J. 2007. Professional Practice. Second Edition. Petaling Jaya. LexisNexis. [25] [1975] 2 MLJ 45. [26] [1973] MLJ 79. [27] Tan. YL. 1998. The Law of Advocates and Solicitors in Singapore and West Malaysia. 2nd Editon. Kuala Lumpur. Malayan Law Journal. [28] [1969] 1 AC 191 [29] Tan. YL. 1998. The Law of Advocates and Solicitors in Singapore and West Malaysia. 2nd Editon. Kuala Lumpur. Malayan Law Journal. [30] Misconduct of Lawyers. 2002. Malaysian Bar Council.
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