DUTY OF COUNSEL

Introduction Duty of counsel to Court

INTRODUCTION

The law is indeed a noble profession. The law cannot administer itself; the burden therefore falls on the lawyers to protect the society of injustices & uphold the 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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Lawyers handling litigation matters in court hold 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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In UK, counsel refers to barristers. In Msia, since we have a fused profession, counsel refers to an adv & sol who appears in court representing their client in a particular cause. A counsel representing a client in court is an officer of court.

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The counsel shoulders an additional duty of lending assistance to the court in the administration of justice. Duties of a counsel:

Duty to court; Duty to client; Duty to opposing counsel; Duty to society.

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 in finding the truth & ensuring that justice is upheld.

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(1) duty not to mislead the court

Rondel v Worsley: HOLs counsel owes a higher duty to the court than to the client. The reason that the counsel could not be sued for negligence is because they owe a duty to the court for the true administration of justice. Facts: The A who was facing a charge of causing grievous bodily harm, engaged the services of the R as counsel to defend him on a dock brief. The A was convicted & 6 years later he issued a writ alleging negligence in the conduct of defence on the Rs part.

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HOLs: The immunity of counsel from being sued for professional negligence in the conduct of a cause, criminal or civil, is based on public policy, not on his contractual incapacity to sue for fees, and it is in the public interest that the immunity should be retained, one factor being that counsel owes a duty to the court for the true administration of justice. Since the counsel owed a duty to the court for the true administration of justice, the counsel should not under circumstances whatsoever mislead the court.

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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 challenging credibility of a witness may be liable for contempt of court for obstructing the proper conduct of litigation.

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(b) filing affidavits in court which contain misleading averments

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

(c) an undischarged bankrupt does not disclose his incapacity i.e. his status as an undischarged; (d) failing to exhibit the relevant documents in the affidavit;

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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 upon which the greatest stress is laid is that he does owe a duty also to the court. This is an over-riding duty which he must observe even though to do so in a particular case may appear to be contrary to the interests of his client. Thus a barrister must never mislead or misguide the court, and must resist attempts at distortion.

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Whyatt CJ in Yee Chang & Co. Ltd. v NV Koninklijke Paketvaart Maaschappij [1958] MLJ 131 remarked that:

A solicitor owes a duty to the court to conduct litigation with due propriety & to assist in promoting in his own sphere the cause of justice. If, therefore, a solicitor becomes aware in the course of proceedings that his client is obstructing the interest of justice, it is his duty to advise his client as to the conduct which he ought to follow & if the client still persists in his wrong conduct, he should decline to act for him further.

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(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 to bring to the attention of the court all the relevant authorities on the said matter as he is assisting the court to find the truth. If counsel refuses to give case law that does not support his cause & resulted the court to deprive of making a reasoned judgment - this would not serve the administration of justice.

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In Glebe Sugar Refining Co. ltd. v Trustees of the Port & Habours of Greenock Held: it is a duty of counsel to bring to the notice of the court any authority within their knowledge both for & against client. In complicated cases, it is not possible for the judge to be aware of all authorities which may be relevant to the issue in a particular case.

The counsel is expected to present all authorities under debate to the court whether for or against him/his client. This is an obligation of confidence between courts & all those who assisted the courts in the administration of justice.

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(3) Duty not to misrepresent witness giving evidence in court

In Re JLP Harris, counsel had deliberately kept witness away from court as the witness is a disadvantage to clients case. Counsel had also procured an adjournment by a false means. Held: Counsel was guilty of misconduct where he was suspended for 3 months & had to pay the costs of the proceedings.

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

Whether the counsel holds this duty would depend on whether this matter would have an impact on the decision of the court. If there would be an impact, have to inform; otherwise, not have.

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Tombling v Universal Bulb Co. The counsel who called the witness knew that the witness came to court from the prison but withheld this fact from the court. The counsel then asked the witness if he resides at certain address, knowing that he was not residing there, & the witness replied in affirmative. The court accepted the testimony of the 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 no intention of misleading the court.

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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 a witness comes from prison to give evidence, any more than there is to tell the judge that he has had previous convictions.

In Meek v Fleming however, the COA distinguished Tomblings & 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 the decision of the court, the counsel should inform the court.

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Duty to prevent the court from enforcing illegal transaction.

Network Food (M) Sdn Bhd v Syabinas Holdings Sdn Bhd & Anor. [1997] 4 CLJ 49 held: it is the counsels 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 illegal transaction.

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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 is evading the court. He then applied for warrant of arrest to be issued against the witness. The witness was subsequently arrested. 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 lost because the counsels actions were malicious.

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

R. 15 adv & sol shall maintain a respectful attitude towards the court. R. 17 adv & sol shall not practice any deception on the court. R. 18 the conduct of an adv & sol before the court & in relation to other adv & sol shall be characterised by candour, courtesy & fairness.

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Conclusion:

Although the counsel is paid by his client to win the case & 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 of justice itself. Therefore, the counsel must never suppress or distort the truth.

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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 interests of truth & justice.