The Right To an Advocate and Solicitor Of One’s Choice

Can you seek to recuse/disqualify your opponent’s lawyer from further representing him/her in court? The short answer to this is yes. 

The right of a particular individual to be represented by an advocate and solicitor of his own choice is not absolute. The Courts have an inherent power and authority to refuse to permit a particular advocate and solicitor from appearing on behalf of a particular individual in a particular case. The goal is not just to protect the interests of the individual litigant but even more importantly to protect public confidence in the administration of justice. 

A disqualification order during the pendency of litigation will cause hardship on the disqualified advocate and solicitor’s client. Thus, a disqualification application forces a court to confront a serious dilemma. The court needs to balance three (3) competing interests: the litigant’s right to representation of his choice; the other litigant’s complaint of the advocate and solicitor; and the public interest in maintaining the highest standards of administration of justice. 

This article will briefly discuss the circumstances where disqualification is allowed and not allowed and the standard of proof required to successfully disqualify a lawyer. 

A. GROUNDS OF DISQUALIFICATION 

“The decision to disqualify is not dependent on any finding of culpable conduct on the lawyer’s part. The disqualification of a counsel is not imposed as a punishment for misconduct. Rather it is a protection for the parties and the wider interest of justice” - Black v Taylor [1993] 3 NZLR 403. 

On occasion, Courts were asked to recuse/disqualify an advocate and solicitor because of alleged breaches of ethical standards. In Malaysia, all advocates and solicitors are governed by a set of ethical standards found in the Legal Profession (Practice and Etiquette) Rules 1978 and they include, among others, the following: 

Rule 3. An Advocate and solicitor shall not accept a brief if he is or would be embarrassed.

Rule 4. An advocate and solicitor shall not accept a brief in a case where he knows or has reason to believe that his own professional conduct is likely to be impugned. 

Rule 5. No advocate and solicitor shall accept a brief if such acceptance renders it difficult for him to maintain his professional independence or is incompatible with the best interest of the administration of justice.

Rule 27. An advocate and solicitor shall not appear in any matter in which he is directly pecuniarily interested.

Rule 28. An advocate and solicitor shall not appear in any case in which he has reason to believe that he will be a witness. 

Underpinning these rules is the avoidance of conflict of interest so as to ensure that public confidence in the administration of justice be maintained. In fact, what the court is more concerned with is not whether there is any actual conflict arising in the handling of the matter by a particular advocate and solicitor. The court is more concerned with what would be the perception of the general public and whether there is any appearance of impropriety in that particular advocate and solicitor so handling the matter. 

“It is within the inherent jurisdiction of a superior court to deny the right of audience to counsel when the interests of justice so require by reason of conflict or otherwise. This power does not depend on the rules of professional conduct made by the legal profession and is not limited to cases where the rules are breached. The issue here is not whether or not the rule was breached, or whether the solicitor worked for the government. Nor is it solely whether the patient lost confidence in the process. The issue is whether the fair minded reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor … The public interest in the administration of justice requires an unqualified perception of its fairness in the eyes of the general public …” - the Supreme Court of Victoria in Grimwade v Meagher, Hegland, Morgan, Lidgett, Reid & Bellheath Pty Ltd [1995] VR 446. 

i. Where There Is Some Personal Relationship 

An advocate and solicitor shall not accept work if there is some personal relationship between him/her and a party or a witness in the proceedings. In such circumstances, he/she is said to be “embarrassed” under Rule 3 of the Legal Profession (Practice and Etiquette Rules) 1978. 

In Vijayalakshmi Devi Nadchatiram v Saraswathy Devi Nadchatiram [2000] 4 CLJ 870, the lawyer who acted for her brother and sister was recused, the reason being that “an advocate and solicitor must be able to give an objective and independent judgment before he embarks on the task of advising a client. Thus the advocate and solicitor would not be in a position to do so if he is bound by ties of personal relationship to his client”. The Federal Court explained that “the mischief to be cured and the intention of the Rules are too clear to be ignored… They had been so framed to preserve the integrity of an advocate and solicitor so that he may not be in conflict of interest and by the same token ensures that when he acts for a client he is independent and free vis-a-vis both when representing the client and performing his duty as an officer of the court in which he appeared.”

ii. When the Advocate and Solicitor is in Possession of Confidential Information

Although the basis for application to recuse/ disqualify can vary, the most common circumstance involves an allegation of possession of confidential information by the lawyer. 

The legal test in relation to this had been summarised by the Court of Appeal in Dato’ Azizan bin Abdul Rahman & Ors v Pinerains Snd Bhd [2022] 1 MLJ 56. In order to succeed: 

(a) There must first be established a former solicitor-client or some fiduciary relationship between the lawyers sought to be disqualified, and the applicant of the disqualification order;

(b) The applicant must prove that the lawyers sought to be disqualified are in possession of confidential information which is relevant to the present matter. The applicant must place before the court full particulars of the relevant confidential information that was allegedly disclosed to the lawyers sought to be disqualified; and

(c) A strong case must be made out by the applicant to disqualify the lawyers from acting for the opposing party. 

With respect to the confidential information, the court would need to decide on whether the confidential information is likely to adversely affect the applicant’s interest; whether there is a real or appreciable risk that the confidential information would be disclosed; and whether in recognizing the significance and importance of the special fiduciary relationship which gives rise to the duty of protection, the court’s discretionary power to disqualify should be exercised. This is fact sensitive in each case. 

iii. Where the Advocate and Solicitor is Directly Pecuniarily Interested

An advocate and solicitor can be disqualified from representing his client on the ground of conflict of pecuniary interest. 

In Tanjong Marina Management Sdn Bhd v Penang Port Sdn Bhd [2014] 10 MLJ 120, the Plaintiff was a company. The Plaintiff company was represented by a lawyer who was also the executive director of the Plaintiff company. The High Court disqualified the lawyer from appearing further as the court held that the lawyer had pecuniary/financial interest in the matter, having been the executive director of the Plaintiff company. The Court reasoned that “the impartiality in the pursuit of the course of justice and the duty to the court may be compromised as it is human nature that one will not be loathed to abate one's personal interest particularly pecuniary interest in the conduct of the case where his personal and/or pecuniary interest is at stake”.  

iv. Where the Advocate and Solicitor would be Called as a Witness 

Rule 28(a) of the Legal Profession (Practice and Etiquette Rules) 1978 states that “an advocate and solicitor shall not appear in Court or in Chambers in any case in which he has reason to believe that he will be a witness in respect of a material and disputed question of fact, and if while appearing in a case it becomes apparent that he will be such a witness, he shall not continue to appear if he can retire without jeopardising his client's interests”. 

It is a well-established principle that lawyers should not act as counsel and witness in the same proceedings. The reason, as expounded by Beaumont CJ in Emperor v Dadu Ramu 1939 AIR Bom 150, is that: "An advocate cannot cross-examine himself, nor can he usefully address the court as to the credibility of his own testimony, and a court may feel that justice will not be done if the advocate continues to appear". This rule is expressly accepted by our Federal Court in Wong Sin Chong & Anor v Bhagwan Singh & Anor [1993] 3 MLJ 679. 

Therefore, in Syarikat Pengangkutan Sakti Sdn Bhd v Tan Joo Khing t/a Bengkel Sen Tak [1997] 5 MLJ 705, the Court allowed the preliminary objection to disqualify Mr. Gana Muthusamy from representing the plaintiff, as he had visited the defendant’s workshop and had spoken to the defendant, and would be a witness on material and disputed questions of fact. 

B. IT IS NOT EASY TO DISQUALIFY A COUNSEL 

“The threshold for removal is a high one” - Accent Management Ltd v Commission of Inland Revenue [2013] NZCA 155.

Attempts to disqualify an opposing lawyer are becoming increasingly frequent. In recent years, a number of high-profile disqualification applications have been reported. Many disqualification applications were well-founded and raised legitimate questions regarding the ethical obligations by legal practitioners. Others were nothing more than a litigation tactic. 

The Court in Perbadanan Pengurusan 3 Two Square v 3 Two Square Sdn Bhd [2018] 10 MLJ 648 had cautioned that the Court’s power to disqualify must be exercised judicially and fairly with care and caution on correct principles. A court may not disqualify an advocate and solicitor on the basis of conjecture or speculation.

Since an application to disqualify might bring about severe and far-reaching implications, a strong case must be established in order to disqualify a counsel on ground of conflict of interest. A strong case requires clear and cogent evidence. The onus of proof lies on the party alleging the conflict. See Mirza Mohamed Tariq Beg bin Mirza HH Beg v Margaret Low Saw Lui & Ors [2009] 4 MLJ 671. 

i. Disqualification Is Not Allowed Where The Disqualification Application Is Patently Frivolous And Intended To Harass And Delay

Some applications to recuse/ disqualify an opposing party’s lawyer, however, may be nothing more than a tactic to delay the proceedings or to remove the opposing lawyer, not because of the alleged conflict of interest, but because he is dangerously competent. In such cases, an application to disqualify is unethical.

As such, the court will not entertain an application to disqualify if it is used to cause inconvenience and delay. Courts have become sensitive to the tactical abuse of applications to disqualify.  

“…a judge should not too readily accede to an application to remove opposing counsel lest it is used for tactical reasons to cause inconvenience and delay” - Geveran Trading Co Ltd v Skjevesland [2003] 1 WLR 912

ii. Disqualification Application Ought To Be Made At The Earliest Possible Opportunity 

Further, it can be gleaned from case law that where a litigant did not object to the lawyer from acting in earlier proceedings, the litigant will be prevented from objecting later on. Thus, be mindful that when a litigant wishes to disqualify the opposing party’s lawyer, the litigant must raise his objections promptly.  

“… No objections have been raised by the petitioner thus far in all these suits. In the premises, the petitioner’s delay in objecting to counsel at the earliest possible opportunity had to be held against the petitioner himself.” - Teoh Soo Beng v Golden Castle City Sdn Bhd & Ors [2018] 8 MLJ 166

C. CONCLUSION

Where the integrity of the judicial process is perceived to be at risk from the proposed or continuing representation by a lawyer on behalf of one party, disqualification is the obvious and, in some cases, the only effective remedy to serve the interests of justice. 

However, regardless of the ultimate resolution, an application to disqualify invariably cause delay and uncertainty, in addition to the expense incurred in litigating the issue. Therefore, the Court will not permit the application to be manipulated for strategic advantage on the account of impropriety which exists only in the minds of imaginative applicants. 

Judicial attitude towards disqualification of counsel can be expected to result in fewer unjustifiable disqualifications. However, there will still be cases in which unjustifiable disqualifications will take place. The obligation for avoiding these frivolous applications when the conflict of interest is marginal, rests solely on the parties involved.