ethics _ solicitor immunity

7/27/2019 Ethics _ Solicitor Immunity

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COUNSELS LIABILITY IN NEGLIGENCE FOR

Issue: Is there immunity for legal counsel in Malaysia?

INTRODUCTION

Rondel v. Worsley [1967]3 All ER 993 barrister in England have enjoyed immunity from any

negligence issue. The House of Lords declared that public policy dictated that barrister

should enjoy immunity against suits in negligence.

The other commonwealth jurisdiction, adopted a stance and ruled pre-trial work closely

connected with the trial. The immunity principle work closely connected with the trial. The

immunity principle was then extended to solicitors who at times carried out the functions of abarrister.

In Malaysia, however the court was not influenced by the decision in Rondel case. Unlike

England, the legal profession in Malaysia is fused possession. Therefore, the clear cut

distinction between a barrister and solicitor as it exists in England does not exist in Malaysia.

Here the profession of a barrister is combined with that of a solicitor. Under such

circumstance, there exist a contractual relationship between an advocate and solicitors with

their client.

The Legal Practitioner in Malaysia is under a contractual duty to use care and skill in the

manner in which a clients cause in undertaken. The failure to exercise such care and skill

would constitute negligence on the part of the advocates and solicitor. Therefore regardless of

whether the act of negligence committed by the legal practitioner may still be sued in

negligence.

Today, even in England with the decision in the case of Arthur JS Hall v Simons [2000] 3

WLR 543 barristers no longer enjoy immunity from any professional negligence suits

brought against them by their clients.

The reason advanced by the House of Lords for public policy are:

(1) Overriding duty to court every counsel has duty to his client to fearlessly raise every

issue, advance argument, and ask every question, however distasteful, which he thinkswill help his clients case.


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(2) Cab-rank principle - it has long been recognised that no counsel is entitled to refuse

to act in a sphere in which he practices, and on being tendered a proper free, for any

person however unpopular or even offensive he or his opinions may be, it is essential

that duty must continue.

(3) Absolute privilege a judge, witnesses and barristers alike have absolute privilege

with regard to what is said by them in court.

(4) Relitigation actions for negligence against a barrister would prolong litigation. A

client who claims that the barrister was at fault would bring a civil claim against the

barrister. Civil court would have to consider all the evidence which was adduced in

the criminal tril. In effect, this would bring about a retrial of the criminal case in the

civil courts.

In Saif Ali v Sydney Mitchell & Co, the House of Lords held that although public policy

required that a barrister should be immune from suit for negligence in respect of his acts or

ommisions in the conduct and management of litigation which caused damage to his client,

such immunity was an exception to the principle that a professional person who held himself

out as qualified to practise that profession was under the duty use reasonable care and skill

and was not to be given any sider application than was absolutely necessary in the interests of

administration of justice.

However the landscape of the immunity accords to barristers in England has changed with the

decision of the House of Lords in the three appeals which came before seven Law Lords

namely Lord Steyn, Lord Brown-Wilkinson, Lord Hoffman, Lord Hope of Craighead, Lord

Hutton, Lord Hobhouse of Woodborough and Lord Millet.

Lord Steyn then took the argument which supported the need for immunity in Rondel and

rebutted them as follows:

(a) Cab Rank Principle: may not pick and choose their clients as such barristers should

not be sued.

(b) Immunity: public policy demands that there must be freedom of speech in court so

that will have information about the issues in the case.

(c) Public Policy on relitigation

(d) The duty of the barrister to the court

Demarco v Unggaro (1979) 95 DLR (3d) 385 - held that in Canada, trial lawyers owe

a duty to the court and yet they do not enjoy any immunity from a suit in negligence.

United State, lawyers have no immunity from suits of negligence by their client s

except for a few state where prosecutors and public defenders enjoy immunity.


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Comparison with other countries

Australia

Giannnarelli & Ors v Daryl Wraith & Ors [1988] The Legal Reporter Vol 9 No 17 p 1

Singapore

Majid v Muthusamy [1968] 2 MLJ 89

Held that an advocate an solicitor can be sued for professional negligence where the act

complied of is an act done in his capacity of a solicitor but will not be liable for negligence if

the act complained of is done in his capacity as an advocate.

Canada

Demarco v Ungaro [1979] 95 DLR (3d) 385

Justice ruled that the public interest in the administration of justice does not require that the

lawyers enganged in court work be immunie form action at the suit of their cients for

negligence in the conduct of a civil case in court.

Malaysia

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 were indulging in solicitors work and some others undertaking solely litigation work.

Section 3 of the LPA 1976 provides the definition of an advocate and solicitor as well as a

client. An Advocate and solicitor is a person admistted and enrolled under the LPA 1976. A

client is a person who retains or employs an advocate and solicitor and is a person who is

liable to pay a solicitors cst

Section 114 of the LPA further state that an advocate and solicitor may enter into an

agreement on matters pertaining to the remunation with the client.

Lim Soh Wah & Anor v. Wong Sin Chang & Anor [2001] 2 AMR 2001 - Our law has

always different from English Law. Advocates here never enjoyed immunity from suits for

negligence

CONCLUSION

Legal practitioner in Malaysia have never been immune from suits against professional

negligence. Since the relationship between the client and the solicitors in entirely fiduciary,

the solicitor may be liable to compensate for any losses incurred by the client due to thenegligence of the solicitor.

ethics _ solicitor immunity

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