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To Decline or Not to Decline? That is the Question

When do we decline a running down matter? 
Let us look at a possible development after a road accident. Generally, the first persons on the scene apart from the injured party and the drivers involved are the tow truck agents. 
Cases are usually passed on to lawyers by these agents. However, anyone among the first to appear on the scene could be the middle person. It could include the police personnel or even the ambulance driver. 
We know this practice of a “middle man” is against the provisions as laid down in the Legal Profession Act 1976 (“LPA 1976”) and Legal Profession (Practice and Etiquette) Rules 1978 (“LPPER 1978”). See Rule 51 and 52 LPPER 1978.
Rule 51 – Advocate and solicitor not to do or cause any touting : 
“An advocate and solicitor shall not do or cause or allow to be done, anything for the purpose of touting directly or indirectly, or which is calculated to suggest that it is done for that purpose.”
Rule 52 – No division of costs or profits with unqualified person : [1] 
“It is unprofessional and improper conduct-
  1. for an advocate and solicitor to divide or agree to divide either costs received or the profits of his business with any unqualified person;
  1. for an advocate and solicitor to pay, give, agree to pay or agree to give any commission, gratuity or valuable consideration to any unqualified person to procure or influence or for having procured or influenced any legal business and whether such payment, gift or agreement be made  under pretext of services rendered or otherwise, but this rule does not prohibit the payment of ordinary bonuses to staff;
(c) …”   
Knowing that this is so clearly laid down in our statute book, it would be inadvisable for any solicitor to accept a brief on these facts. 

The decision in Rhina Bhar v Koid Hong Keat [1992] 3 CLJ 1465 is also instructive. 

The facts are relevant. The respondent filed a civil claim against the appellant lawyer. The respondent filed a complaint for non-payment of his commission. The disciplinary subcommittee found the respondent’s claim was contractual and was of the view that it ought to be proceeded by a civil action.

In the meantime, a disciplinary committee was set up pursuant to then-provision section 101 LPA 1976. The disciplinary committee suspended the appellant for 3 months. Hence the appeal was dismissed.  

The High Court accepted that the complaint constituted a breach of etiquette which was the subject matter of the inquiry.  

This case took another turn in Rhina Bhar v Malaysian Bar [1994] [HCKL] which is accessible via the Malaysian Bar website. In this case, the respondents attempted to exclude the counsel for the appellant in a declaration inter alia under Rule 3(a) citing embarrassment and conflict of duty. However, the learned judge rejected it. 

 The plaintiff did appeal against the High Court’s decision in confirming the suspension vide Supreme Court via Supreme Court Civil Appeal No 02-107-92. We are unable to track the outcome of this appeal. 

However, the civil claim by the plaintiff was struck out by the High Court for want of prosecution applied by the defendant. See [1996] 3 CLJ 286. Hence the issue of touting was never raised or ruled upon.  

Bear in mind the press statement on 11.05.2021 by the then-President of the Malaysian Bar, Incik Salim Bashir, who expressed abhorrence over touting and categorically said touting amounts to professional misconduct pursuant to section 94(3)(h) of the LPA 1976 and Rule 51 of the LPPER 1978 1978.

Rule 3 LPPER 1978– Advocate and Solicitor not to accept brief if embarrassed.
  1. An advocate and solicitor shall not accept a brief if he is or would be embarrassed.
  2. An embarrassment arises – 
    1. where the advocate and solicitor 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. 
What is the relevance of this rule in running down matters?  It is possible that a solicitor whose sole practice is on running down claims may unknowingly find he had acted for the plaintiff at some point in time as well as against the defendant. His practice is so large and the turnover of briefs is too fast, that he may miss this anomaly unintentionally. Hence, keeping a good record is essential. 

If it has happened, then the solicitor concerned must immediately take steps to hand over the brief to another solicitor after informing the client. 

He would have acted in giving advice and interviewing witnesses or even litigating the matter. Hence, he could run afoul of Rule 3(b)(ii). 

As for the defence, usually the insurer’s solicitors too may be caught in a web and could lose track of their involvement in a civil case where the solicitors may  have acted for the defendant. The same issues above could have arisen in the case of the defendant’s (insurer’s) solicitors.   

Another issue particularly in running down matters is limitation. Before accepting a brief, the solicitor must ensure that the claim is within the limitation period set by the Civil Law Act 1956. It may become complex if time is “short” and for serious injury cases, medical and specialist reports may take time. In such instances, solicitors are advised to decline the brief because once limitation sets in, negligence against the solicitor could arise.

In a practice where the plaintiff solicitors have a high turnover of running matters, it is possible that limitation periods may be missed. One should take note again that for fatal accidents, the limitation is only 3 years. See section 7 Civil Law Act 1965(3B)(5). 

In this article we are looking mainly from the plaintiff’s point of view.

There are other rules in the Practice and Etiquette Rules that may apply generally to all briefs. 

These views are the personal view of the writer and any errors are that of the writer.

 [1]Edits made based on this url: