Professional Ethics

Professional Ethics
LAD5093
DR. ZULKIFLI HASAN

Introduction
Professional Ethics
CONTENTS
Legal Profession (Practice and Etiquette) Rules
1978 and Peguam Syarie Rules
Conclusion

Related Provisions
LPA 1976
LPPER 1978
LPPR 2001
SAR1990
PSR (Selangor) 1991 and FT 1993.

Negative View
Professional myth lore and narrative.
Ethics is an open ended, reflective and critical
intellectual activity not capable of being settled by
agreement or by authority.
Ethics is self directed and attempt to lay down a
code binding on others is self contradictory.

Positive View
An ethical rule should be applied in the light of
advancing the trust in the profession and the
confidence in the law as a whole.

Tawhidic Paradigm
A concept of Tawhid is a philosophic foundation
and added value to every Muslim in preserving
what Allah commands and what He forbids.
As Allah knows everything and all mankind is
answerable to Him, the principle of khilafah,
amanah, taklif and al-adl
adl wal Ihsan that derived
form the supreme concept of Tawhid shall be the
foundation of the ethical principles of lawyers in
Islam

Ethics
The word ethics is derived from the Greek word
ethos, which means character.
In Islam, the word ethic is synonym with the
term adab and khuluq.
Surah al-Qalam
verse 4: Allah says: “And surely
you (Prophet Muhammad) have the best form
of morals”

Definition
Rules of or codes of conduct binding on members
of the legal profession whether as a matter of
contract or of statutory prescription.
A rule of morality and having statutory force.
Standard of conduct which an advocate and
solicitor has which are not in common with non-
advocate and solicitor.

LPPER
Advocate and Solicitor: LP (P&E) Rules 1978
laid down minimum standards of conduct to the
advocate and solicitor.
S 94 (5) of the LPA: A pupil shall mutatis mutandis
be subject to the same control by the DB.
An order may be made prohibiting the pupil from
petitioning the court for admission.
Syarie lawyers: Code of Ethics, PSR and syariah
principles.

Why it is so important
1) lawyers must assume personal moral
responsibility for the consequences of their
personal actions.
2) sharp separation between private and
professional morality.
3) Duty of care. Professional duties.
Surah An-Nisaa
Nisaa;105
“ we have revealed to you the
book with the truth so that you may judge between
people in accordance with the right way which
Allah has shown you, so not be an advocate for
those who betray us”.

To what extent
1) adopting and adhering to modes of practice
which are fair and just.
2) to preserve ethics in general ie to the profession,
to the client and to justice.
3) to observe any undertaking in conducting
contentious and non-contentious matter.

General and Ethics in Court
General ethics: Duty of lawyers to behave
accordingly in their daily life
not to be influenced by others, not to involve in
bribery, not to wary of litigants and to encourage
reconciliation.
In court: Behavior in the process of carrying out
justice and fair play in court.
shall remain calm, not to be influenced by those
around them, to give equal treatment, to avoid
lengthy proceedings, punctual and due respect to
witness

Dual practicing is not Allowed
S 30 (1) (c): shall not apply PC if he is gainfully
employed by any other person other than A&S.
Syed Mubarak Syed Ahmad v Majlis Peguam: : A&S should
exclusively practice the legal profession and not
otherwise.
For pupil: S 12 (3): Shall apply for special leave in
writing from BC before engaging in any employment of
any kind.
S 37 (1) (b): Unauthorized person who willfully
pretends as lawyer is guilty of an offence punishable
with fine up to RM2500 or 6 months imprisonment or
both.

Conduct with candour, courtesy and fairness
R 19 and S 16 PSR
Should not denigrate another lawyer or indulge in
comparative promotion.
Should not allow a deponent to an affidavit to allege
wrongdoing or illegality by another solicitor without first
giving the solicitor concerned an opportunity to answer
the intended allegations.
when make complaints against another solicitor, to
furnish with copies of document and should not
complaint upon unsubstantiated grounds.
Prophet prohibit us from cursing and making any
wrongful allegations.

Cont..
Abd Allah ibn 'Amr
said, the Prophet used to
say: "The best of you are those who have the
most excellent morals."
Narrated by Abu Hurairah, the Messenger of
Allah said: "The most perfect of the believers in
faith is the best of them in moral excellence, and
the best of you are the kindest of you to their
wives”.

To Uphold Interest of the Client, Justice
and Dignity of the Profession
Rule 16 and S 15PSR- shall acting with ail due
courtesy, fearlessly uphold the interest of his client,
the interest of justice and dignity of the profession
without regards to any unpleasant consequences
either to him or to any other person.
R 31: at all times uphold the dignity of high
standing of his profession.
Maintenance and advancement of trust in the
profession as a whole is the justification for rules
in promoting the interest of the profession.

Cont…
As an agent of the client, the lawyers must try to
assist him as well as possible either it relates to
contentious or non-contentious matter.
The duty to protect the client’s interest however
shall be balanced with the needs to uphold
justice and therefore, the act of hiding facts and
evidences to protect the guilty client is clearly
against the lawyers’ professional ethics.

Cont…
Eg. Family has direct interest with the client.
R27: An A& S shall not appear in any matter he is
directly pecuniarily interested.
The messenger of Allah said: “I’m only a human
being and you bring your disputes to me Perhaps some of
you indulge in logic to prove your assertions and it may be
that I give my decision or the strength of your
argumentation. ……
Neutrality- client’s interest always prevail.
To avoid Conflict of interest in the widest
possible.

Surah Al-An’am
An’am:152
Cont…
“whenever you speak be just even if it affects your
own relatives and fulfill your covenant with Allah”.
Confidentiality, just and not to involve in illegal
activities “afaf
afaf”.
Do not make wrongful allegations and be fair and
respect to witness, third party, other lawyers, and
the court.

Duty of diligence and competence
To complete any work as soon as is reasonably
possible. If not possible please inform the client.
Avoid unnecessary works. Moral responsibility.
Passed to client all information material including
progress and status of the case.
Prophet said: "Allah loves to see one's job done
at the level of itqan or wisdom.“
Trikkon Sdn Bhd v Dato Mahinder Singh Dulku:
Reasons for 9 years delay in filing complaint.
Guilty of misconduct.

Not to accept brief if embarrassed
R 3: if embarrassed
What instances would be considered as
embarrassment
1) Where A&S finds he is in possession of
confidential information as a result of having
previously advised another person in regard
to the same matter.
2) Where there is some personal relationship
between him and a party or a witness in the
proceedings.

Rhina Bhar v Malaysian Bar
The Bar Council had objected for RR Sethu to
represent the Plaintiff on the ground of R3.
Anuar J:-
General rule- member of public authority should
not be professionally engaged in any proceedings
for which the authority is a party or is directly
interested.
Exception-If exceptional circumstances justify any
departure from the general rule, it is the duty of the
solicitor to ensure that interests of the authority are
already protected.

Not to accept brief if professional conduct
likely to be impugned
Sykt Pengangkutan Sakti Sdn Bhd v Tim Joo Khing: a
lawyer should withdraw and entrust the conduct
of the case to another lawyer if he is required to
testify.

Not to accept brief if difficult to maintain
professional independence
Rule 5
Yong & Co v Wee Hood Teck: : A&S have failed to
discharge their duty as conflict of interest arose
when they acted for all three parties i.e. for the
Bank, the developer and the borrower.

Not to accept brief if unable to appear
R 6- if unable to appear.
Syarikat Siaw Teck Hwa Realty & Dev Sdn Bhd v
Malek and Joseph Au: the Dt failed to appear in
the court on the date fixed for hearing of an
appeal at the fed ct.

To be ready on the day of fixed trial
Be ready for trial
Good and cogent reason for postponement
Notice of 48 hours to opposite party
PP v Mokhtar Abd Latif: : Adjourned the hearing
for 14 times.

Not to appear if he will be a
witness
PP v Vengadasalam and Ors: : it is not desirable for
an A&S to appear as a counsel in a trial if he is
required to be a material witness.

Not to communicate with client
of another Lawyer
R 42 & S 37 PSR
The parties are free to communicate directly to
the parties. But if lawyer wants to communicate
directly with the opposite parties he must get
consent from their solicitors.
General rule- cannot directly or indirectly
communicate with the client of another solicitor
without the solicitor’s express consent.
Should avoid direct contact with the opposite
party.

Why
1) the danger of unfair or undue pressure is
presented.
2) the appearance of sharp practice is created.
3) the respect and courtesy to be shown to
another solicitors.
4) likely to lead to acrimony and accusations of
improper behavior.

Not to appear for party represented
by another lawyer
R 54 & S 49 PSR: The purpose of this provision is to
maintain fair and just practice amongst the practitioners.
No element of monopoly or domination and unfair
competition
A client must be free to seek legal advice from any lawyer.
Lawyer owes duty of fairness and courtesy to his fellow
solicitors unless:-
1) he obtains the consent. 2) He undertakes that the
proper professional remuneration of other lawyer has
been paid. 3) In ignorance 4) Other lawyer is unwillingly
or has refused to act further for such party.

What to do
Lawyer should insist on a clear termination of the
previous retainer by the client before he acts in a
new retainer for the same client.
Inform the previous lawyer of the new retainer.
Previous solicitor who receives request from
another solicitor to transfer a client’s file to that
other solicitors should do so.

Duty of disclosure
R 23 & S 21: To supply court all information as to the probable
length of a case and the possibility of a settlement.
Surah An-Nisa’
Nisa’:135
“O you who believe stand out firmly for
justice as witness to Allah even as against yourselves or your
parent or you kin and whatever it be against rich or poor”.
Not to conceal facts.
Abd Allah reported that the Prophet said: "Truthfulness
leads
to righteousness, and righteousness leads to Paradise. And a
man keeps on telling the truth until he becomes a truthful
person.
Falsehood leads
to Al−Fajur
(i.e.
wickedness,
evil−doing), and Al−Fajur
(wickedness) leads to the (Hell)
Fire, and a man may keep on telling lies till he is written before
Allah, a liar”.

Should charge fees which are reasonable
and proper.
Rule 11 & s 12-Fees
for litigious and contentious
matter.
Basis- 1. time 2. labor and 3. skill required.
Should inform the basis on which the fees will be
charged and the manner in the which the client is
expected to pay the fees and disbursement.
Other reasonably foreseeable payments.
The estimates of the fees and other payments
which shall not vary substantially from the final
amount.

Cont….
When we appoint a person to a position on his
provision. If he takes anything beyond that it is
illegal gains.
In
surah
As-Shua’ra’
verse 18 Allah
“Withhold not things justly due to others”.
says:
Every individual to gain what is really due to
him and not by depriving others

To Disclose To The Client All Circumstances
Rule 25-To disclose to the client all circumstances
of his relation to the parties and any interest in
connection with the controversy which may
influence the client in the selection of counsel.
Prophet said: “if you see any evil deed, prevent it
by your hand if not by your tongue and if not by
your heart”

Not to mislead
Rule 26 & S 24 PSR: Information given by the
lawyer should be reliable and not misleading.
Should not gain a tactical advantage for one’s client.
For eg. Delay the proceedings for technical
mistakes.
Lawyers shall honor the terms of his professional
undertakings given to any party.
Common courtesy in dealing with the documents.
Cheah Cheng Hock v PP: : the advocate has misled the
ct by concealing a document. Convicted of
Contempt of court.

Confidentiality
Rule 35 and S 31- not to abuse confidence
reposed by client.
to keep confidential all communications between
him and his client unless it against the public
interest.
Shall preserve his clients’ confidence and this duty
outlasts his employment.
To prevent a breach of confidentiality for eg
letters in sealed covers.

Professional Privilege
It is trite law that communications between
solicitors and their clients are privileged and,
therefore, are inadmissible in evidence in any
proceeding.
The privilege extends to communications
between a solicitor and his client which have the
purpose of seeking or giving legal advice and
communications between a solicitor and third
parties or between the client and third parties
which are made for the purposes of existing or
contemplated legal proceedings.

Why
In order to enable a party to legal proceedings to
prepare his case adequately and to facilitate
uninhibited access to legal advice.
promoting the efficacy of the legal procedure as
a means of just determination of disputes.

Under What Circumstances Does
Privilege Attach
In Three Rivers District Council v Bank of England,
Lord Scott of Foscote said:
‘… legal advice privilege arises out of a
relationship of confidence between lawyer and
client. Unless the communication or document
for which privilege is sought is a confidential
one, there can be no question of legal advice
privilege arising. The confidential character of
the communication… is an essential
requirement.'

Section 126 of Evidence Act 1950
no advocate shall at any time be permitted,
unless with his client’s express consent, to
disclose any communication made to him in the
course and for the purpose of his employment
as such advocate by or on behalf of his client, or
to state the contents or condition of any
document with which he has become acquainted
in the course and for the purpose of his
professional employment, or to disclose any
advice given by him to his client in the course
and for the purpose of such employment…’

Only confidential communication
Teow Chuan v Dato’ Anthony See Teow
Guan:
Facts: The written legal opinion was not
marked private and confidential and was faxed
to the defendant.
‘In our judgment it is settled law that where the
communications with solicitor is not intended to
be confidential, the privilege under section 126
of the Act will not apply.

Waiver of the Privilege
1. Client expressly consent to the waiver of the
privilege
2. Communication is made in furtherance of
illegal purpose
3. Discover that a crime fraud has been
committed upon the commencement of the
employment.

Not to actively carry on any trade
R 44: declared by the BC as unsuitable for A&S
to engage in or be an active partner or salaried
officer in connection therewith.
An A&S shall not be a full-time salaried
employee of any person or corporation as long
as he continues to practise.
Re an advocate: : The counsel allow the office to be
used as a display centre for ladies garments.

No division of costs or profits with
unqualified person or touting.
Rule 51 and 52 & S 46-47-Prohibition of touting and fee
sharing.
Unprofessional and improper conduct. Must not pay,
give, agree to pay or agree to give any commission,
gratuity or valuable consideration to influence any legal
business.
Not to act in respect of gift from the client.
Rhina Bar v Malaysian Bar: : Suspended for 3 months for
breach of touting rules.
Balakhrishnan Devaraj v Patwant Singh Niranjan Singh &
Anor: Touting agreement is against public policy.

Keeping proper records
R 55 and S 51: Shall not withhold the client’s
papers to the detriment of the client
Accurate and up-to-date.
Keep a record at least 6 years if it involves civil
cases.
Upon termination of the retainer and payment
of legal fees a solicitor should hand over all
documents to the client.

Not to advertise
Rule 45 & S 40-41: 41: Shall not solicit work or
advertise by circular, advertisements, touts…..
No A & S shall display outside his office facing a
public road a nameplate larger than in size 2.5
feet by 2 feet.
Rule 46: No personal advertisement.

Why
The need to ensure that the service is a matter of
quality rather than price.
To minimize commercialism in an honorable
profession and to preserve the dignity of the
profession.
Opponents view
Advertising is necessary in order to ensure
competitiveness and
To give access to relevant about the quality and price of
services.

Legal Profession (Publicity) Rules 2001
Rule 4. Not to publicize except in accordance with these Rules.
Rule 5. Publicity within Malaysia., Rule 6. Area of practice.
Rule 7. Letterhead and stationery. Rule 8. Advertisements in legal
and non-legal directory. Rule 9. Nameplate. Rule 10. Building
directory. Rule 11. Business card. Rule 12. Brochure, leaflet and
pamphlet. Rule 13. Journal, magazine and newsletter. Rule 14.
Notice. Rule 15. Interviews with press, radio and television., Rule
16. Participation in seminars, conferences, forums, etc.
Rule 17. Greeting card., Rule 18. Client's publicity.
Rule 19. Documents relating to property transaction., Rule 20.
Books, etc., written by Advocate and Solicitor.
Rule 21. Publicity through the electronic media.Rule
22. Free legal
advice. Rule 23. Publicity outside Malaysia. Rule 24. Responsibility
of Advocate and Solicitor in relation to publicity concerning him.

Approved Information
(a) and (b) the name and address of the firm; (c) the tel
numbers; (d) the business hours; (e) the year established; (f) the
merger or association; (g) historical data (h-l)
the designation
"A&S or Commissioner for Oaths“ or "Notary Public“ “; or
"Agent for Trademarks and Patents“ ; or "consultant“ ; (m) the
area of practice; (n) the language proficiency of the A&S
practising in the firm; (o) the name of the A&S practising in
the firm and whether he is a sole proprietor, partner, legal
assistant or consultant of that firm; (p) the year of admission
as an A&S practising in the firm and whether he has been
admitted as a practitioner in another jurisdiction; (q) the
academic and professional qualifications(r) such other
information which has had the prior written approval of the
Bar Council;

Solicitors’ Account Rules 1990
Rule 3. Duty to pay money into client account
Rule 4. Moneys to be paid into client account
Rule 5. Client's money in the form of cheque or draft
Rule 6. No other moneys to be paid into client account
Rule 7. Drawing money from client account
Rule 8. Manner of drawing money from client account
Rule 9. Client's money may not be paid into client account in certain cases
Rule 10. Ledger account transfer
Rule 11. Account books to be kept
Rule 12. Mechanical or computerised book-keeping
keeping
Rule 13. Solicitors to notify Bar Council particulars of client accounts and changes
Rule 14. Bar Council may require production of books of account, etc
Rule 15. Manner of delivery of intimation of the amount of a solicitor's costs and
notification relating to application of moneys
Rule 16. Requirements under these Rules to be made in writing
Rule 17. Right or recourse of a solicitor against moneys standing to the credit of a client
account not affected by the Rules
Rule 18. Revocation and savings

Duty to pay money into client account
Rule 3:(1) Subject to rule 9, every solicitor who
holds or receives client's money, or money which
under rule 4 he is permitted and elects to pay into a
client account, shall without delay pay such money
into a client account.
R7: only permits withdrawal of the client’s money
for payment to/on behalf of the client.
Gunasegaran Pararajasingam v PP: : The ct held that to
use one’s client money to settle a solicitor’s liability
to some other client is a criminal offence.

To seek knowledge: PSR
Section 4 PSR- Keep on going seeking knowledge.
Knowledgeable lawyers will ensure that any work
can be done effectively.
Knowledge includes substantive and procedural
laws on certain aspects of life.
Reported by Abu-Dawud
and Al-Tirmidhi
Tirmidhi, that
the Prophet Muhammad said, "An ‘Aalim
(learned
person in the deen) is as much superior to an
‘Aabid
(Worshiper) as the full moon is superior to
all stars”

Disciplinary Action
S 94 (3) (d) of the LPA- For breach of any rule of
practice and etiquette of the profession.
S 94 (2) who has been guilty of misconduct shall
be liable to be 1)Struck off 2) suspended not
exceeding 5 years.
Section 19 of PSR 1991-
1)Struck off or suspend
2)warning or any other order deems fit and
reasonable.

Conclusion
Professional ethics are very important in order to
safeguard against breach of the trust and
confidence of the public to the profession.
Lawyers and peguam syarie must have standard of
conducts which are not in common to the layman.
Islam requires lawyers to preserve good ethics,
conscience and piousness.