Lawyer Obligations and Client Relationship Dynamics

Duties to Client: Introduction

• Lawyers are expected to perform their duties with integrity and professionalism. Hence, the duty must be performed accordingly.
• The client-solicitor relationship is basically based on the retainer agreement, warrant to act, letter of appointment, or in some cases, it may arise by implied action or conduct of the lawyers concerned.
• This solicitor-client relationship provides legal rights to both parties.

Duties of Counsel

Primary Duties

• Duties to client
• Duties to court
• Duties to lawyers

Conduct & Duties Towards the Client

Client Engagement and Trust

• Clients approach solicitors with legal problems, requiring professional assistance from the lawyers.
• In some situations, clients retain lawyers when they need legal services.
• Hence, the clients take lawyers into their confidence and entrust them to protect and defend their rights and interests.
• The client also trusts the lawyers with monies, documents, and other confidential information.

Core Responsibilities

• Duties towards the client – this is the first and foremost duty in upholding the cause of justice.
• Clients come in all shapes and sizes: corporations, firms, individuals, societies, local, foreign, etc.
• Serve the client without prejudice and judgment.

Lawyer and Client Relationship

• As a legal professional, lawyers are expected to perform their duties with integrity and professionalism.
• Must perform their duties accordingly. This agreement is also known as a retainer agreement.
• The relationship may stem from a warrant to act, letter of appointment, or in some cases, it may arise by implied action or conduct of the lawyers concerned.
• This solicitor-client relationship provides legal rights to both parties.
• This is clearly provided under Section 86 of the Legal Profession Act 1976 (LPA).
• This section also grants rights to the lawyers when they have a claim for costs, but it will only be granted if the court deems it fair and reasonable.

Section 86 of the Legal Profession Act 1976 (LPA)

Scope of Lawyer’s Duty Towards Client

Judicial Precedents on Duty Scope

As regards a lawyer’s duties to their clients, it is best to refer to the case of Rondel v. Worsely, whereby Lord Reid of the House of Lords stated:

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the Courts, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession; he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. And by so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would not or may seek legal redress if that were open to him.

In Kesang Leasing Sdn. Bhd. v. Tetuan Zul Rafique & Partners (sued as a firm), the judge cited and referred to several cases, including Midland Bank Trust Co Ltd & Anor v. Hett, Stubbs & Kemp (at p. 583).

Regarding the standard of duty:

Now no doubt the duties owed by a solicitor to his client are high, in the sense that he holds himself out as practicing a highly skilled and exacting profession, but I think that the court must beware of imposing on solicitors, or on professional men in other spheres, duties which go beyond the scope of what they are requested and undertake to do. It may be that a particularly meticulous and conscientious practitioner would, in his client’s general interests, take it on himself to pursue a line of inquiry beyond the strict limits comprehended by his instructions. But that is not the test. The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession, and cases such as Dutchess of Argyll v. Beuselinck, Griffiths v Evans and Hall v Meyrick demonstrate that the duty is directly related to the confines of the retainer.

Important Notes on Professional Conduct

• The retainer/agreement between the solicitor-client is the important basis in building the solicitor-client relationship and scope of the lawyer’s duty.
• The standard is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession.

Specific Duties

• Duty to present unless embarrassed.
• Not to accept a brief if professional conduct is likely to be impugned.
• Duty to maintain professional independence.

Independence of Lawyers

Independence for lawyers refers to their capacity to carry out their professional responsibilities free from undue influence, pressure, or interference from external parties, such as the Government, clients, or other entities. This autonomy is crucial to ensuring that lawyers can offer objective and impartial legal advice and representation. Independence is essential for the fair administration of justice. Lawyers must be able to advocate for their client’s rights and interests without fear of repercussions or external pressure. Under the Legal Profession Act 1976 (LPA) in Malaysia, several regulations ensure that lawyers can advocate for their client’s rights and interests without fear of repercussions or external pressures.

• Duty to uphold the interest of the client.
• Disclose all circumstances to the client.
• Duties to exercise proper skill/duty of care towards the client and avoid negligence.

Duty of Care and Negligence

Professional negligence occurs normally when professionals, such as lawyers or doctors, fail to provide correct advice or fail to take proper measures or actions in handling their client’s case. Negligence is related to the law of torts. Judges need to determine whether the act committed by the lawyers amounts to negligence, and the client or plaintiff needs to prove the case on the balance of probabilities.

Case Study: Shern Delamore & Co v. Sadacharamani Govindasamy

The former client contended that the solicitors were negligent in respect of legal opinions they had given on the subject of intellectual property rights. The former client did not call any advocate or solicitor who specialized in intellectual property law to testify in court. The appeal was allowed, and the claim was dismissed. The Court of Appeal held:

In relation to professionals, the standards of care expected is that of a reasonable practitioner in that profession. Further, it is well settled that in professional negligence, the burden is on the Plaintiff to establish the standard of care has been breached before the defendant is required to call his witness to rebut the same.

Hence, the appellant as a legal firm, was not negligent, and the appeal was allowed.

Case Study: Ambank (M) Bhd v. Tetuan Abd Gani Che Man

The court found that the lawyer was negligent due to a breach of his duties. The appellant bank appointed the respondent to be its solicitor and to prepare loan documents. However, the borrower defaulted on the repayment of the loan. Later, the appellant discovered that the borrower and the solicitor for the borrower was the same person.

The issues in this case were: Whether the respondent had acted negligently in the discharge of its duties as the appellant’s solicitors in the preparation of the loan documentation; and whether the respondent was negligent in advising the appellant to release the loan monies to the borrower’s solicitors contrary to clause 4 of the sale and purchase agreement (SPA).

The court held that the respondent was not negligent in the preparation of the loan documentation but was negligent in advising the appellant to release the loan amount in favour of the borrower’s solicitors notwithstanding that clause 4 of the SPA specifically provided that the purchase price was to be paid to the vendor. The appeal was allowed.

Duty Not to Abuse Confidence

Not to abuse confidence reposed in him by the client. A lawyer and client can establish their right through a relationship, which is also known as a fiduciary relationship or confidential relationship. It is a relationship in which one party places special trust, confidence, and reliance in another who has a fiduciary duty to act for the benefit of the party.

Case Study: Price Jefri Bolkiah v. KPMG (A firm)

This case highlighted the duty of confidentiality and protecting a client’s confidential information. In this case, several principles were derived, among others, the lawyer’s duty is to keep the information confidential, not merely to take all reasonable steps to do so. It is not merely a duty to communicate the information to a third party but not to misuse it. However, the client cannot be entirely protected from accidental or inadvertent disclosure. But the client is entitled to prevent his solicitor from exposing him to any avoidable risk. The issue of confidential information is also related to protecting the privacy of client’s data. Thus, lawyers must also know the data protection law and privacy rights of their clients, as well as the proper practices in managing their firms and client’s data.

Case Study: Lam Ching v. Yong Selawati Alias

In this case, several issues were raised, including: (1) whether the defendant breached fiduciary duties and trust; and (2) whether the defendant breached terms of the retainer agreement. The court held that there was no breach of fiduciary duties. The defendants did not fail in her contractual duty, nor was she negligent because she did not settle for an amount less than the retainer and the mandate given by the plaintiff. Therefore, there was no breach of the terms of the retainer, and the defendant was not negligent in carrying out her duty as the solicitor for the plaintiff.

Bar Council Rulings Compliance

Chapter 14.09 (1)(a) of the Bar Council Rulings implies that fulfilling an undertaking is one of the lawyer’s legal duties towards his client. Failure to perform this duty is treated as misconduct.

Case Study: Ng Siew Lan v. John Lee Tsun Vui & Anor.

In this case, the Federal Court held that the first and second defendants (lawyers) owed the plaintiff a duty not to injure her by failing to do that which they had undertaken to do, which was to take all necessary steps to effect the transfer of the land to her upon execution of the sale and purchase agreement. The first and second defendants failed to discharge that duty in a manner that was expected of a reasonably competent solicitor, having regard to the standards normally adopted in the profession. The first and second defendants were clearly in breach of their contractual and fiduciary duties to the plaintiff. It amounted to misrepresentation by silence. Hence, the court allowed the appeal with costs.

The Effect of Failure to Perform Their Duties and Responsibilities Towards Clients

• The client may seek legal redress by lodging a complaint or filing a civil suit against the lawyers concerned.
• The complaints shall be based on misconduct or failure to perform their duties as prescribed by the laws, Rules and Regulation such as the Legal Profession (Practice and Etiquette) Rules 1978, Rules and Regulations, and Bar Council Rulings.
• In order to lodge a complaint under Section 99 of the LPA 1976, the client needs to establish that there is misconduct committed by the lawyers.

Section 94(3) of the LPA 1976 defines “misconduct” as “conduct or omission to act in Malaysia or elsewhere by an Advocate and solicitor in a professional capacity or otherwise which amounts to grave impropriety and includes (a) to (o) of the LPA.”