DUTY OF COUNSEL

-TO OPPOSING COUNSEL- TO SOCIETY

Duty of Counsel to Opposing Counsel

Counsel owes certain duties not only to the court and client, but also to the other fellow counsel.

Hence, counsel acting for one party has certain duties towards the counsel of the other party.

(1) Duty of fairness Counsel is not entitled to cast imputations

of dishonesty or fraudulent conduct on opposing counsel without any basis. Clyne v New South Wales Bar Association

[1960] 104 CLR 186 - Counsel had made unrestrained & vicious public attack on sol which could not be substantiated by the evidence available to him. Held: Mr Clyne was not a fit & proper person to practise as a member of the Bar of NSW. He was struck of from the roll.

(2) Counsel not to engage in personal bickering with opposing counsel in court

Beevis v Dawson – In this case of libel action, from the commencement there was bickering/quarrelling between the counsel & it lasted thru’out the case. When the court brought for an appeal, Singleton LJ commented: “…continuos bickering becomes a burden for

everyone in court – for the judge & for jury – and it is almost impossible for justice to be done if that goes on. …sometimes it leads to confusion.”

(3) Counsel should not cast aspersions on opposing counsel

Counsel should not attack the reputation/ integrity of the opposing counsel. Clyne v NSW Bar Assoc. – held: eventho’

the counsel was protected by the shield of privilege for anything said/done in court, this privilege must not be abused. In this case, the A made a vigorous attack on the professional integrity of Mr Mann, an opposing solicitor. So SC ordered Clyne’s name be truck off the roll.

(4) Counsel not to be subpoenaed as a witness unless necessary Wong Sin Chong & Anor v Bhagwan Singh

& Anor [1993] 3 MLJ 679 – SC to consider if a sol acting for a party to the proceedings may be issued a subpoena to attend court as a witness. SC acknowledged that altho’ it is the right of the party to procure the attendance of witnesses, this right must be protected against any oppression or abuse. Where no useful result would be obtained by the attendance of a witness, the subpoena should be refused.

Duty of Lawyers to Society

Being learned in law, it is not sufficient to use this knowledge in furtherance of pure materialistic benefits.

It is incumbent upon lawyers to play a meaningful role in the society.

Duty of Lawyers to Society

This may be in the form of: rendering legal aid & assistance to

those requiring legal services but are unable to afford them.

Initiate law reform. Educate the public of their legal

rights.

Legal aid & assistance Legal aid/assistance – provided for the

poor & needy. Known as pro bono service. Pro bono publico, shortened as pro

bono, means “for the public good”. The term generally used to describe

professional work undertaken voluntarily & without payment, to provide services to those who are unable to afford them.

Pro bono service as a statutory duty of a lawyer

The first purpose of Msian Bar – “to uphold the cause of justice without regard to its own interest or that of its members, uninfluenced by fear o favour” – s 42(1)(a).

Another object – to protect & assist public in all matters, ancillary or incidental to the law - S 42(1)(g) LPA.

Pro bono service as a statutory duty of a lawyer

S 42(1)(i) – Msian Bar shall make provision for or assist in the promotion of a scheme whereby impecunious persons may be represented by adv & sol.

In fact, Art 8 FC provides – “all person are equal before the law & entitled to the equal protection of the law”.

Pro bono service To realise this objective, the Msian Bar

has launched Legal Aid Scheme where Legal Aid Centre has been set up to initiate programmes to assist poor persons & ensure that members of the public are not deprived of their legal rights due to financial constraints.

Note: The government also provide Legal Aid Bureau (Biro Bantuan Guaman) which is govt-funded legal aid.

Pro bono service The scope of legal advice:

Family matters – custody of children, divorce, maintenance, matrimonial property, etc;

Industrial accidents Employment Housing & tenancy matters; Detention; Consumer problems; Criminal matters.

Additional reading: The Role of Lawyers & the Bar Council

in Society, by S Sothi Rachagan [1995] 2 MLJ xxix.

The Role Of The Advocate In Our Society by The Rt Hon'ble Lord Alexander of Weedon QC [1992] 1 MLJ xxxvii.

The Honest Lawyer by Lord Denning [1983] 2 CLJ 174.