DUTIES TO CLIENTS

LAA 3064MOOT/MOCK AND PLACEMENTDUTIES TO CLIENTS

CONTENTSIntroductionDuty to Accept BriefDuty to Represent Unless EmbarrassedDuty to Uphold Interest of ClientDuty to Disclose all circumstances to ClientDuty of Skill and Care Towards ClientConflict of Interest.Other dutiesConclusion

Cont…Duties- It refers to duties of lawyer in hisprofessional capacity which carries liabilities.Peguam syarie has many duties towards hisclients. Governed by the LPA, LPPER or EtikaPeguam Syarie.Clients- Any person, individual or bodycorporate who engages professional servicewith the lawyer. Al-wakalah bil or khusumahRetainer ( solicitor-client relationship).

Duty To Accept BriefThe Cab Rank Rule-Rule 2 of LPPER 1978. AnA&S shall give advice on or accept brief in thecourts in which he professes to practice.The lawyer is bound to act for anyone whowishes to retain service.Originated from the English Bar in the case ofRondel v Worsley-Lord Pearce said:….Itwould be tragic if our legal system came toprovide no reputable defenders,representatives or advisers for the latter. Andthat would be inevitable result of allowingbarristers to pick and choose their clients.

Cont….Reason i). To ensure that anyone whorequires a lawyer will get one becauselawyers are not given the choice ofclient. (SM must come within the thepractice of the practical lawyer.) ii).Lawyers act for the sake of the duty as alawyer and not because he has a choiceto act or not to act.This rule only applies if the work “inthe courts”. “Contentious matter”.

Exception to the Cab RankruleRule 3-Not accept if embarrassed-Rule 4-In the event of conflict of interest.Rule 5- Difficult to maintain, professionalindependence.Rule 6-Unable to appearRule 27-Where the outcome will affect in apecuniary sense.Rule 28-It appears that you become materialwitness in the matter.Rule 54-knowingly agree to appear or to act toappear for a party represented by anotherlawyer.

Duty To Represent UnlessEmbarrassed.R 2-An A&S shall give advice on or acceptbrief in the courts in which he professes topractice.But special circumstances may justifyhis refusal at his discretion to accept aparticular brief. R3 justifies the refusal.What instances would be considered asembarrassment? 1) Where A&S finds he is inpossession of confidential information as aresult of having previously advised anotherperson in regard to the same matter.2) Where there is some personal relationshipbetween him and a party or a witness in theproceedings.

Cont…Rhina Bhar v Malaysian Bar-The Bar Council had objected for RR Sethu torepresent the Plaintiff on the ground of R3.Anuar J-General rule- member of public authorityshould not be professionally engaged in anyproceedings for which the authority is a partyor is directly interested.Exception-If exceptional circumstances justifyany departure from the general rule, it is theduty of the solicitor to ensure that interests ofthe authority are already protected.

Cont…Surah Al-An’am:152“whenever you speak be just even if itaffects your own relatives and fulfillyour covenant with Allah”.Lawyers are discouraged to representtheir own relatives in court. But whenthey represent someone related theyshould speak and represent justly evenit affects their own family.

Duty to Uphold Interest ofClientAt all times, lawyers are duty bound touphold the interest of the client.R16-shall fearlessly uphold the interestof his client without regard to anyunpleasant consequences either tohimself or to any other person.Lawyers are subject to disciplinaryaction. Section 94 (3)-gross disregard ofhis client’s interest.

Cont…Al-wakalah bil khusumah is a Contract ofamanah. Lawyers are bound to act for hisclient to the utmost.Prophet SAW said “I’m only a human being andyou bring your disputes to me ……Partisanshipmoralposition of lawyer is irrelevant.The scope of duty: I) carry out instruction inthe matter to which the retainer relates withdiligence and proper means. 2) consult withclient on related matter 3) keep his clientinformed and comply with reasonablerequest from him.

Duty to Disclose all circumstancesto ClientRule 25-To disclose to the client allcircumstances of his relation to the partiesand any interest in connection with thecontroversy which may influence the client inthe selection of counsel.Rule 23- Not to conceal facts.To supply courtall information as to the probable length of acase and the possibility of a settlement.

Cont….What things to disclose?Rights-civil rights, human rights.Liabilities-guilty, innocent, negligence.Options- to sue or not to sue, to plead guiltyor not and etc.Legal remedies- compensation, fine,injunction.Steps to be taken in obtaining the remedycost,probable length, documents and etc.

Cont…Surah An-Nisa’:135 “O you who believe standout firmly for justice as witness to Allah even asagainst yourselves or your parent or you kin andwhatever it be against rich or poor”.Prophet said’ if you see any evil deed,prevent it by your hand if not by your tongueand if not by your heart……..Therefore, lawyers are obligated to discloseall relevant information to their clients inorder to ensure that their interests areprotected.

Duty of Skill and CareTowards ClientPeguam Syarie Rules 1991 SelangorThe qualifications for admission as syarielawyer will be a person who holds a bachelordegree in syariah, has completed aprofessional training recognized by the Majlisin the in the field of Islamic judiciary,Knowledgeable in Islamic Law.Those requirements mirror the importantness of the duty to preserve skill and caretowards client by the lawyers. Rule 4 EtikaPeguam Syarie- Duty to improve knowledgein law and syariah.

Cont…Prophet SAW said:“I’m only a human being and you bring yourdisputes ……Prophet recognized the expertise of someindividual in representing something but itshould not be misused.Surah An Nisaa:58. “ Allah commands you torender back your trusts to those to whom they aredue and when you judge between mankind thatyou judge with justice, verily how excellent is theteaching which Allah gives to you for Allah is Hewho hears and sees all things”.

Cont….The lawyer must be honest andcompetent in order to ensure that judgesare able to deal with the cases that comebefore them justly and competently.A lawyer should refuse to accept anycase that is beyond his expertise becausethis will help the client’s money andtime and will inspire client confidence inthe honesty of the profession.

Conflict of Interest.Conflict of 2 or more interests-Interest of the lawyers directly or indirectly,interest of the client and interest of justice.No A&S to accept brief if professionalconduct likely to be impugned, difficult tomaintain professional independence, not toappear in a case where he is a witness.If there is conflict of interest, it would affectthe lawyers in presenting his case andvictimize the client’s interest.

Not to abuse the ConfidenceReposed to Him by Clientlawyers should not disclose anycommunication made to him, state thecontents of any document in which hehas become acquainted withunless the client has given consent to doso, in furtherance of any illegal purposeand indications that any crime or fraudhas been committed.

Render Proper Account toClientLawyers are required to keep separateaccounts namely client’s account and officeaccounts.He must never use the money from client’saccount for his own purpose.S 94 (4)- may be found guilty of any offenceinvolving dishonesty, misuse ormisappropriation of any money of the client,he might be liable to suspension, struck offand any other order deems fit by thedisciplinary board or majlis.

ConfidentialityLawyers must promote and protecttheir client’s interests. Thisrequires free and opencommunication between them, anda relationship assuringconfidentiality. Lawyers maintainconfidentiality through a speciallegal rule, called solicitor-clientprivilege. By this rule, lawyerscannot disclose any communicationthey receive from their clients,unless the client gives permissionfor the lawyer to do so.

Rules of Professional ConductLaw societies in every provincehave established codes of conductthat lawyers must obey. Lawyerswho do not follow these rules canbe disciplined by their law societyfor professional misconduct, withpunishments including fines,reprimands, suspension anddisbarment.

Retainer AgreementsLawyers should discuss theirretainer agreements duringinitial meetings with clients.The retainer represents acontract between the lawyerand the client, preferably inwriting, in which the lawyeragrees to provide legalservices to the client for a fee.

ConclusionFull responsibilitiesTo represent the client with fullresponsibilities whether as a defendant’s orplaintiff's solicitors.Pre-trial- To advice for “sulh” or reconciliation.During the trial-To assist the court inproviding true facts and etc.Punctuality,honest and competent.Post trial or after the judgment- To make surethat the Order made by the Court be obeyedby the disputed parties. To file an appeal ifdissatisfied with the decision.

ConclusionLPA, LPPER and Etika Peguam Syarie laiddown general duties of lawyers.Muslim lawyers have duties to create aproper image of the profession in the eyes ofthe public. They should perform their dutiesto the utmost towards client and at the sametime duty to justice is also preserved.In preserving the duties it is also importantfor them to have a good knowledge of thelaw, skill and care. They should continue toimprove and enhance their knowledge andcompetentness in performing their duties.

Required ReadingTan Yock Lin, The Law of Advocates andSolicitors in Singapore and West Malaysia, 1991MLJAhmad Ibrahim, Al Ahkam (Penghakiman danKepeguaman), Dewan Bahasa dan Pustaka, 1997,Kuala Lumpur.Relevant statutory legislations such as LPA,LPPER, PSR and Etika Peguam Syarie.Relevant cases such as Rhina Bhar v MalaysianBar (1994) 1 MJ 24-

Thank you“ Life has an end butnot justice”