'MISCONDUCT' BY AN ADVOCATE & SOLICITOR

In Malaysia, the law on conflict has largely been codified: s 94 of the Legal Profession Act
1976
Section 94(3) defines an act of 'misconduct' by an Advocate & Solicitor as including 'breach
of any rule or practice made by the Bar Council' and 'the breach of any provision of (the LPA
1976) or of any rules made thereunder or any direction or ruling of the Bar Council'. 51

Section 112(1)(a) LPA 1976 provides that no Advocate & Solicitor shall purchase or agree
to purchase a direct or indirect interest which is the subject matter of his client or that of the
other party in the same proceeding.
The Legal Profession (Practice & Etiquette) Rules 1978 is particularly instructive. The
rules relevant to conflict of interest are codified in the P&E Rules 1978.

SHALL NOT ACCEPT A BRIEF

One rule is that an Advocate & Solicitor is not to accept a brief if he would be
embarrassed, for example where he is in possession of confidential information of a former
client whom he had advised in the same matter.52

The P & E Rules 1978 refers extensively to what is termed a 'brief'. Rohana Yusof J in Lim
Ts-Fei v Lee Lai Tiam 57 defined a 'brief' as such:

Therefore, when the Rules say that an advocate and solicitor 'accepts a brief', it
generally means he accepts instructions; be it from his client or another advocate and
solicitor.
that a 'brief' need not relate to the conduct of court proceedings. This is because a
'brief' need not necessarily be followed by court proceedings. There are, needless to say,
alternative ways of settling disputes; mediation, the current 'buzz-word', being one.
Therefore, instructions to lodge a private caveat in this case is a 'brief' under the Rules.

SHALL NOT ACT FOR AN OPPOSITE PARTY IN A SUIT

Rule 5 of the P&E Rules 1978 provides that no Advocate & Solicitor shall act for an
opposite party in a suit, appeal or proceeding (where he has advised, drawn up pleadings or
acted for the first party), except with the written consent of the first party53 .

Rule 28 of the P&E Rules 1978 prohibits an Advocate & Solicitor from acting where 'he has
reason to believe' that he will be a witness in the matter, whether that matter is envisaged or
ongoing. The rule does not apply to affirmation of affidavits on formal or undisputed matters.
The P&E Rules 1978 also acknowledges that an Advocate & Solicitor has a duty not to
abuse his clients' confidence that is reposed in his person, and this duty is owed towards not
just his present clients, but also to former clients.54
Chapter 6 of the Bar Council Rulings 2008 concerns conflict of interest. Ruling 6.05 and
6.06 is particularly illuminating. Ruling 6.05 states that an Advocate & Solicitor can act against
his present client in an unrelated suit unless he holds a current retainer from that client or that
client can show that specific information may be used by the Advocate & Solicitor against him,
giving rise to a position of conflict of interest.
In Vellasamy a/l Pennusamy & Ors (on their behalf and for the 213 sub-purchasers of plots of
land known as PN 35553, Lot 9108, Mukim Hutan Melintang, Hilir Perak) v Gurbachan Singh
a/l Bagawan Singh & Ors,59 the appellants were subpurchasers of some plots of land. The first
respondent was an Advocate & Solicitor who had initially attended to the woes of some of
these subpurchasers. Subsequently, the first respondent bought the said plots of land in his
personal capacity and set up the fourth respondent company ('Regal') with himself, his wife
and friend as directors. The first respondent then transferred the said plots of land to Regal.
Surprisingly, the Court of Appeal did not consider Prince Jefri's case in its decision. Zainun
Ali JCA delivered a strong dissenting judgment. Her Ladyship applied the test in Strother's
case to the facts of the instant case and held that the retainer 'merely consisted of the first
defendant lodging caveats for some of the subpurchasers and writing one or two letters to
relevant parties for them'.60 This, Her Ladyship held, was insufficient to place the first
respondent in the position of a fiduciary.
In allowing the appeal however, Abdul Malik Ishak JCA61 for the majority cited the principle
in Rakusen's case with approval. His Lordship held that the first respondent owed fiduciary
duties to the appellants after analysing the evidence on the basis that '... all these documents
together with the conduct of the first defendant speak a thousand words. They establish the
solicitor-client relationship between the first defendant and the sub-purchasers in respect of the
latter's rights in the land'.
It would therefore appear that the Rakusen test represents the law in Malaysia on conflict
of interest. The apex court has not had the opportunity yet to rule on the point.

Ruling 6.06 meanwhile states that an Advocate & Solicitor who is on the panel of lawyers
of a company, body or organisation may act against the same, but before he so acts, he must
inform his client in writing that he is on the panel of lawyers of the company, body or
organisation.
It is opportune to note that s 84 LPA 1976 governs the position for conveyancing lawyers.
Section 84(1) provides that an Advocate & Solicitor acting for a housing developer cannot also
act for the purchaser, unless there is a certificate signed by the purchaser agreeing to him so
acting.55
The danger this poses for conveyancing lawyers has been noted by Syed Agil Barakbah
FCJ in Yong & Co v Wee Hood Teck Development Corporation: 56

It is apparent therefore that the Appellants had acted in favour of the Developers whose
instructions directly conflicted with those of the Respondents. Being a common solicitor for two
different clients whose interests were directly in conflict, the Appellants acted at their own peril and the
onus of showing that the conflicting interests did not prevent them from doing their duty to both clients
rested firmly on them.

The possibility of a firm-wide conflict has been considered in Malaysia. The test has been
laid down by Suriyadi JCA in Quah Poh Keat & Ors v Ranjit Singh a/l Taram Singh 62 ('Quah's
case') as follows:

Whether the firm was able to maintain its professional independence or

would it be put in a potentially embarrassing situation on the basis of a conflict of
interest.

Quah's case concerned the respondent who was a partner at KPMG. The decision was made
by the EXCO of KPMG to remove the respondent from the partnership. The EXCO meeting
was attended by a solicitor from Lee Hishamuddin Allen & Gledhill ('LHAG'). A senior partner of
LHAG then delivered an ultimatum to the respondent to leave the partnership. The respondent
sought to disqualify the law firm from acting against him on the basis that the two solicitors
involved may be called as witnesses in the matter, in accordance with r 28 of the P & E Rules
1978. The Court of Appeal upheld the disqualification order made by the High Court judge,
agreeing with the respondent's contention.
In Berjaya Land Bhd v Wong Chee Hie & Ors ,63 a similar challenge was made against the
same firm. The defendants alleged that by virtue of an email that was circulated among three
solicitors in LHAG (it was a legal opinion in anticipation of litigation), the said solicitors were
part of an illegal action plan hatched by the plaintiff and would potentially be called as
witnesses in the suit by the defendants.
Varghese George J held that the email was merely a legal opinion and was not, as
alleged, in furtherance of an illegal purpose. As such, it was not shown that LHAG would not be
able to maintain its professional independence in the matter. Moreover, the fact that some
particular solicitor from the firm might be called as a witness did not conflict the whole firm. His
Lordship noted that in Quah's case, as a serving partner of the firm had delivered the
ultimatum, the professional independence of the whole firm became suspect, or it would
become embarrassing to the firm as a whole.
In the final analysis, an advocate and solicitor would have to himself assess if he is in a
position of actual or potential conflict of interest and act accordingly in the highest standards of
the profession. It would be prudent to obtain written consents from clients after making full and
frank disclosure of his position. The duty of loyalty is guided by the solicitor's own discretion of
what is right and wrong -- in the end, 'The life of the law has not been logic, it has been
experience'