The Honest Lawyer

TUTORIAL PROFESSIONAL PRACTICE I (WEEK 4) Q1: THE HONEST LAWYER BY THE RIGHT HON’BLE 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.

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The lawyer’s function is to state his client’s 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 sub!ect to a libel action. This absolute privilege carries with it a special responsibility to see that it is it abused.

"n the trial of Hauptmann, the #ublic #rosecutor in his closing speech to the !ury describe the accused man as $that animal, that desperate character, burglar, murderer  Hauptmann.% "n a Texas case the prosecutor told the &ury, $the will and wish of every law abiding citi'en wants wants a verdict of death.% The !ury gave the desired verdict but it was reversed on appeal. (uch language by prosecuting )ounsel is not keeping with the traditions of the *ar. The )anons )anons of the +merican bar +ssociation, +ssociation, $the primary duty of a lawyer engaged in public prosecution is not to convict but to see that !ustice is done..%

II. II.

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very )ounsel who is instructed for the prosecution knows how essential it is to be fair. The country expects it. The &udges re-uire it. He must not press for a conviction.

"f he knows of a point in favor of the prisoner, he must bring it out. He must state the facts -uite dispassionately, whether they tell in favor of a severe sentence or  otherwise. o )ounsel 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. "n law, it was not sufficient. "t 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 )ounsel for the  prosecution very fairly did not press the charge of murder and the !ury found him guilty of manslaughter only.

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

 o counsel is allowed to suggest to the &udge what the sentence should be as it is for  the &udge alone. ot only that o )ounsel must attempt by advocacy to influence the )ourt towards a more severe sentence. Likewise with the right of crossexamination, )ounsel for the prosecution is not allowed to bring up things in the accused’s past history which are to his discredit, unless the accused man exposes himself to it. /hile )ounsel for the prosecution will not bring out the man’s previous convictions except when it is fair to do so, and he will always warn the prisoner’s )ounsel 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 !ustice to see that he is fairly treated.

THE SECOND CHARGE

i.

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Lawyers are distort the truth for gain. "t is natural for laymen to accuse the lawyers if  thus0 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 doubt1 but he has also duty to the court which it means that a duty to the cause of !ustice itself. 2or example duty to his client when they have to win the case and costs to others while duty to the cause of !ustice 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.

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$o matter how improbable or incredible 3 or even impossible 3 it may seem for his client’s case to succeed, he put it before the !ury for them to !udge.% 2or 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 !ustice. + lawyer is not to tell what he knows to be a lie1 he is not to produce what he knows to be a false deed1 but he is not to usurp the province of the !ury and the &udge and determine what shall be effect of evidence 3 what shall be the result of legal argument. + difficult -uestion arises when the barrister gets to know during his trial itself that his client is guilty. "f he then publicly announces his withdrawal from the case, it may seriously pre!udice his client. "t may therefore be his duty to his client to stay in the case1 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. +ll he can do is to urge that the prosecution have not proved

their case1 for even the worst criminal is entitled to re-uire the case to be proved against him. Hence, honest lawyer must always tell the truth, whether it hurts our case or not. *ut it has to be noted that telling the truth is a personal matter. /e cannot force anyone to tell the truth. *ut as a lawyer, we owe duty not only towards the clients, but also to the court.

THE THIRD CHARGE &.

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Lawyers are more concern with their fees than with the interest of their clients1 that they will advise their client to go to law when they know or ought to know he had best stay out of if1 and that they run up costs in legal procedure and technicalities which could well be done away with.

ven though things are not so bad not1 but there are still complaints of the cost litigation. + 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 !ustice, as we re-uire it, cannot be done on the cheap. Lord &ustice (ingleton stated that $o one but a lunatic goes to law unless he is compelled to do so..%

ven 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. 4ay be to give them a discount. Lawyer must give his best to his client without any thought of his private gain.

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"t is important for the lawyer to have a good command in nglish , so that he can put his client’s case clearly and strongly before the !udge. ot 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. *ut there are many advocates that fails to follow the simple rules.

"f the lawyer has good in nglish and also knows how to speak very well, it is advantage for him to present the case. ot only that by presenting the case in order  also can help the lawyer to present very well and the !udge will understand without asking the lawyer so many times as they are confused on what the lawyer are trying to  present.

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very )ounsel 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. "f 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 ngland regards the liberty of the individual so highly that the defence of any man accused of serious crime must be put first.

"t is indeed the duty of the lawyer to prefer client’s interest. To basically has full knowledge regarding to the particular facts and to be honest with the client and has courage as well. ot only that Lawyers should act fearlessly, and without favour to anyone else. "t is the duty of the )ounsel to act fearlessly, to raise every issue, advance every argument and ask every -uestion, however distasteful, which he thinks will help his client’s case. 4oreover, it is the duty of )ounsel to make the every honest endeavor succeed. "n the case of 5ainur 5akaria v ##, where the +ppellant applied to dis-ualified D## Dato’ +bdul 6hani #atail and ncik +'ahar from further prosecuting the case, he was cited him from contempt of court and convicted to three months imprisonment. 2ederal )ourt held that )ounsel has a duty to act fearlessly and uphold interests of his client, interest of !ustice and dignity of profession, regardless of any unpleasant conse-uences.

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The Lawyer must not only treat the &udge with courtesy that goes without saying but he must also treat his opponent with courtesy and the witnesses too. 4any 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. "t is enforced by the simple fact that anyone who offends against it forfeits the good will of his fellows1 and that is a thing that no one would willingly do. "f people would try to force courtesy on other people, that person who forced would certainly fail. &&.

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"t is rare that disciplinary measure, have to be taken against members of the *ars0 but the "nns of )ourt exercise a control over them which is founded on custom and tradition and not on any statute or regulation. The *enchers have power to suspend a  barrister from practicing and even disbar him. "n 4alaysia can be refer to the (ection 7789: of legal #rofession +ct 97;