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 a barrister.

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 thinks will help his clients case.

(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.

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 the negligence of the solicitor.