TUTORIAL PROFESSIONAL PRACTICE I (WEEK 4)

Q1: THE HONEST LAWYER BY THE RIGHT HONBLE LORD DENNING

INTRODUCTION

Lord Denning stated that honest lawyers is what we actually need in laws and Lord Denning
also stated that there is no honest lawyers exist.

THE FIRST CHARGE

I. That they abuse their privileged

The lawyers function is to state his clients case as strongly as he can, the law grants
him full freedom to exercise this function without fear. He is given the cloak of an
absolute privilege. He may use the most abusive language about others, he may be
actuated by malice and ill-will and yet he cannot be made subject to a libel action.
This absolute privilege carries with it a special responsibility to see that it is it abused.

In the trial of Hauptmann, the Public Prosecutor in his closing speech to the jury
describe the accused man as that animal, that desperate character, burglar, murderer
Hauptmann. In a Texas case the prosecutor told the Jury, the will and wish of every
law abiding citizen wants a verdict of death. The jury gave the desired verdict but it
was reversed on appeal. Such language by prosecuting Counsel is not keeping with
the traditions of the Bar. The Canons of the American bar Association, the primary
duty of a lawyer engaged in public prosecution is not to convict but to see that justice
is done..

II. Duty to be fair & Cross Examination

Every Counsel who is instructed for the prosecution knows how essential it is to be
fair. The country expects it. The Judges require it. He must not press for a conviction.
If he knows of a point in favor of the prisoner, he must bring it out. He must state the
facts quite dispassionately, whether they tell in favor of a severe sentence or
otherwise. No Counsel would dream of doing otherwise.

There were case where an army officer had shot his wife dead. The defence was that
the crime was not murder but manslaughter because she has provoked him beyond
endurance. The only provocation, however, was by words alone she had nagged him
and abused him to distraction. In law, it was not sufficient. It had been held that words
can never be sufficient provocation to reduce a crime from murder to manslaughter.
The evidence of her intolerable behavior was so strong, however, that Counsel for the
prosecution very fairly did not press the charge of murder and the jury found him
guilty of manslaughter only.

Lay man comes to the law in order for justice. If the law itself cannot make justice to
themselves and cannot be fair, they will feel that it is no use for them to believe in
law. The Counsel need to be fair to the layman. If it is not their fault then they should
not be guilty for what they did not do.

No counsel is allowed to suggest to the Judge what the sentence should be as it is for
the Judge alone. Not only that No Counsel must attempt by advocacy to influence the
Court towards a more severe sentence. Likewise with the right of cross-examination,
Counsel for the prosecution is not allowed to bring up things in the accuseds past
history which are to his discredit, unless the accused man exposes himself to it. While
Counsel for the prosecution will not bring out the mans previous convictions except
when it is fair to do so, and he will always warn the prisoners Counsel beforehand so
as to give him the opportunity to avoid it. The reason is that tradition demands that he
should act, not as an advocate to condemn the accused, but as a minister of justice to
see that he is fairly treated.
 THE SECOND CHARGE

i. That they distort the truth

Lawyers are distort the truth for gain. It is natural for laymen to accuse the lawyers if
thus: because, after all is said and done, the lawyer is the paid mouthpiece of his client
, paid to win the case for his client if he can.

The Lawyer has a duty to his clients which cannot be doubt; but he has also duty to
the court which it means that a duty to the cause of justice itself.

For example duty to his client when they have to win the case and costs to others
while duty to the cause of justice when he needs to tell the truth. The lawyers cannot
distort the truth in order to take care of his client as it will amount to the dishonest
lawyer.

ii. Mouthpiece of the client

No matter how improbable or incredible or even impossible it may seem for his
clients case to succeed, he put it before the jury for them to judge.

For example, in criminal cases, even if the defence counsel believes that the accused
had committed the offence, the defence counsel must serve his duty from the
viewpoint of justice.

A lawyer is not to tell what he knows to be a lie; he is not to produce what he knows
to be a false deed; but he is not to usurp the province of the jury and the Judge and
determine what shall be effect of evidence what shall be the result of legal
argument.

A difficult question arises when the barrister gets to know during his trial itself that
his client is guilty. If he then publicly announces his withdrawal from the case, it may
seriously prejudice his client. It may therefore be his duty to his client to stay in the
case; but his conduct of the case must be regulated by the higher duty not to be a party
to a lie. He must not, therefore, assert that his client is innocent, for he knows him to
be guilty. He must not suggest that the witnesses for the prosecution are telling
untruths, for he knows then to be telling the truth. He must not put his client into the
witness-box to tell lie. All he can do is to urge that the prosecution have not proved
 their case; for even the worst criminal is entitled to require the case to be proved
against him.

Hence, honest lawyer must always tell the truth, whether it hurts our case or not. But
it has to be noted that telling the truth is a personal matter. We cannot force anyone to
tell the truth. But as a lawyer, we owe duty not only towards the clients, but also to the
court.

THE THIRD CHARGE

i. That they run up costs

Lawyers are more concern with their fees than with the interest of their clients; that
they will advise their client to go to law when they know or ought to know he had best
stay out of if; and that they run up costs in legal procedure and technicalities which
could well be done away with.

Even though things are not so bad not; but there are still complaints of the cost
litigation. A strong committee has recently sat for six years in an effort to reduce the
costs, but still they remain high. the legal profession is probably not to blame.
Lawyers often say that justice, as we require it, cannot be done on the cheap. Lord
Justice Singleton stated that No one but a lunatic goes to law unless he is compelled
to do so..

Even though the price of litigation cannot help as it was stated by the bar council but
the lawyer can actually help their client with the personal charge as in disbursement.
May be to give them a discount. Lawyer must give his best to his client without any
thought of his private gain.
The First Virtue Command of Language

It is important for the lawyer to have a good command in English , so that he can put
his clients case clearly and strongly before the judge. Not only that, he can present
the case in the possible light, and to do this he must have a command of the language
in which he speaks. The key to the correct presentation of a case is at the outset to
state the point at issue and then to recount the facts simply and in good order, keeping
to what matters and omitting the rest. But there are many advocates that fails to follow
the simple rules.

If the lawyer has good in English and also knows how to speak very well, it is
advantage for him to present the case. Not only that by presenting the case in order
also can help the lawyer to present very well and the judge will understand without
asking the lawyer so many times as they are confused on what the lawyer are trying to
present.

The Second Virtue Courage

Every Counsel for an accused man must spare no effort to defend him, no matter how
much public opinion is against the man, no matter how distasteful is the task, no
matter how inconvenient to himself, and no matter how small a fee. He must make
the most of every flaw and every gap in the net which seems to be closing round the
unhappy man. He must say anything on his behalf that can properly be said. If he is
instructed in a civil case which clashes with the defence of a prisoner in a criminal
case then he must return the brief in the civil case. The Law of England regards the
liberty of the individual so highly that the defence of any man accused of serious
crime must be put first.
 It is indeed the duty of the lawyer to prefer clients interest. To basically has full
knowledge regarding to the particular facts and to be honest with the client and has
courage as well. Not only that Lawyers should act fearlessly, and without favour to
anyone else. It is the duty of the Counsel to act fearlessly, to raise every issue,
advance every argument and ask every question, however distasteful, which he thinks
will help his clients case. Moreover, it is the duty of Counsel to make the every
honest endeavor succeed.

In the case of Zainur Zakaria v PP, where the Appellant applied to disqualified DPP
Dato Abdul Ghani Patail and Encik Azahar from further prosecuting the case, he was
cited him from contempt of court and convicted to three months imprisonment.
Federal Court held that Counsel has a duty to act fearlessly and uphold interests of his
client, interest of justice and dignity of profession, regardless of any unpleasant
consequences.

The Third Virtue Courtesy

The Lawyer must not only treat the Judge with courtesy that goes without saying- but
he must also treat his opponent with courtesy and the witnesses too. Many cases have
been won by courtesy but lost by rudeness.

This tradition of courtesy is, not one that can be enforced by the court itself. It is
enforced by the simple fact that anyone who offends against it forfeits the good will
of his fellows; and that is a thing that no one would willingly do. If people would try
to force courtesy on other people, that person who forced would certainly fail.

ii. Disciplinary Measures

It is rare that disciplinary measure, have to be taken against members of the Bars: but
the Inns of Court exercise a control over them which is founded on custom and
tradition and not on any statute or regulation. The Benchers have power to suspend a
barrister from practicing and even disbar him. In Malaysia can be refer to the Section
99(1) of legal Profession Act 1976. To enforce ethical standards and determine the
unprofessional conduct of lawyers.

It is necessary that the traditions of the Bar should always be maintained on the
highest level. Barristers are been given by our law great privileges. Unlike other
professional men, they cannot be sued for negligence. It their advice is wrong, even if
it be due to the grossest ignorance, they have nothing to fear. If their statements in
court are defamatory and malicious, still they cannot be sued. They are protected by
and absolute privilege. These privileges can only be granted in the confidence that
they will not be abused; and it is safe to say that they rarely are abused.