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2021 MarsdenLR 2027
HIGH COURT MALAYA SHAH ALAM
NAGARAJAN PERIASAMY – Appellant
Versus
MAHENDRAN CHELLADORAI – Respondent
[Civil Suit No: BA-22NCVC-493-11-2019]
An advocate can represent themselves without a conflict of interest when adequate external counsel is retained, confirming firm representation is permissible under legal ethics.
Headnote:(A) Legal Profession (Practice and Etiquette) Rules 1978 – Rules 3, 4, 5, 27(a), 28(a), and 30 – Disqualification request by the defendant against the plaintiff's counsel and firm – The plaintiff accepted a loan of RM 2,250,000.00 – The court examined the potential for conflict of interest and professional independence of the plaintiff acting as his own counsel. (Paras 6-10)
(B) Application for disqualification of legal firm – The court found no conflict as external counsel was retained, validating the firm's continuation. (Paras 12-16)
Facts of the case: The plaintiff, an advocate, initiated a suit for repayment of a loan and faced objections to representing himself as counsel.
Findings of Court: Objections to both the plaintiff as counsel and his firm as solicitors were unfounded.
Issues: The court addressed whether the plaintiff could represent himself without conflict and if his firm should be disqualified.
Ratio Decidendi: The plaintiff's concurrent roles did not breach rules of professional practice; the firm retained external counsel mitigating conflict risks.
Result: Defendant's application dismissed with costs.
JUDGMENT
Introduction
[1] The application before me (Encl 42) is taken out by the defendant for the following principal orders:
(i) that the plaintiff, Nagarajan Periasamy, an advocate and solicitor of the High Court of Malaya, be disqualified and/or barred from appearing in Court as counsel for himself in this action; and
(ii) that Messrs Nagarajan Peri & Co and all solicitors in Messrs Nagarajan Peri & Co be disqualified and/or barred from acting for and appearing in Court as solicitors or counsel for the plaintiff in this action.
Background Facts
[2] The application arose out of the following facts. The plaintiff commenced a suit against the defendant for the repayment of the sum of RM 2,250,000.00 advanced as a friendly loan. The trial proceeded on 8 April 2021.
[3] The plaintiff is an advocate and solicitor. He was seated at the Bar table with his counsel and was robed. He was represented by Mr Dinesh Athinarayanan as lead counsel for the plaintiff, and assisted by Miss Vinoshini Narayanasamy. Just before he took the stand to testify as the second witness for the plaintiff's case, an objection was taken by the defence to him being robed. Dato' Nagarajan then conceded to the objection and removed his robe before proceeding to the witness box to testfiy. The trial was then adjourned to the next day for continued hearing.
[4] The following day, before the plaintiff was called to continue with his testimony, defence counsel raised an objection on the issue of representation. He objected to Dato' Nagarajan acting as counsel for the plaintiff, as well as the firm of Messrs Nagarajan Peri & Co being retained as solicitors for the plaintiff. As this issue was raised for the first time, I then directed the defence to file a formal application setting out its specific grounds of objection in order for arguments to be heard, and a decision made on the issue.
Grounds For The Application
[5] The defendant contends that Dato' Nagarajan ought not to be allowed to appear as counsel for the plaintiff and neither should his firm continue to act as solicitors for him. A potential conflict of interest would arise and Dato' Nagarajan would be in a difficult position to maintain professional independence in this matter as he is also the plaintiff.
Analysis And Decision Of This Court
Disqualification As Counsel
[6] In support of the first objection taken as to Dato' Nagarajan acting as counsel for himself, the defendant cites rr 3, 4, 5, 27(a) and 28(a) of the Legal Profession (Practice and Etiquette) Rules 1978, which state:
Rule 3. Advocate and solicitor not to accept brief if embarrassed.
(a) An advocate and solicitor shall not accept a brief if he is or would be embarrassed.
(b) An embarrassment arises-
(i) 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;
(ii) where there is some personal relationship between him and a party or a witness in the proceedings.
Rule 4. No advocate and solicitor to accept brief if professional conduct likely to be impugned.
No advocate and solicitor shall 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 to accept brief if difficult to maintain professional independence.
(a) No advocate and solicitor shall accept a brief if such acceptance renders or would render it difficult for him to maintain his professional independence or is incompatible with the best interest of the administration of justice.
(b) (i) An advocate and solicitor who has at any time advised or drawn pleading or acted for a party in connection with the institution or prosecution or defence of any suit, appeal or other proceedings shall not act, appear or plead for the opposite party in that suit, appeal or other proceedings.
(ii) An advocate and solicitor shall not act unless the consent of the first party for whom
