Suriyadi JCA (delivering judgment of the court)

[1]The appeal before us was dismissed with costs, followed by the consequential orders that the order of the High Court be affirmed, and the deposit ordered towards account of taxed costs.

[2]We now state the background and facts of the case. This was an appeal by the defendants (the appellants) against the High Court’s decision in allowing the plaintiff’s (the respondent) application to disqualify M/s Lee Hishamuddin Allen & Gledhill (‘the firm’) from acting for the appellants in this action. The respondent was a partner in a firm known as KPMG, with 27 appellants being individuals who were profit sharing partners. The 28th appellant was a private limited company and a wholly owned subsidiary of PSP Nominee Sdn Bhd.

[3]Prior to this, the respondent had instituted an action against the appellants for unlawfully and illegally excluding him from the partnership of KPMG, pursuant to an allegation of sexual misconduct and rape made by one female employee of the appellants against him. The respondent had contended that:

(a)the procedures, acts and conduct undertaken by the appellants in removing him from the partnership was unlawful and illegal;

(b)the firm had been fully involved in all processes leading to his exclusion. Evidentially one Mr Lim Heng Seng, a solicitor of the firm, was present during the appellants’ executive committee (EXCO) meeting where the allegations of misconduct were aired against him whereupon the respondent was asked to respond. In fact the respondent had asserted that the said solicitor had chaired the meeting. The EXCO subsequently made a decision of the respondent’s position in KPMG;

(c)the respondent was instructed by the third appellant to meet one Datuk Naban, a senior partner of the firm who had asked him to leave KPMG in no uncertain terms (the words were ‘pack your bag and leave’);

(d)these acts showed that KPMG and Datuk Naban had clearly formed their stand or opinion as to the allegations made against the respondent even before an inquiry had been commenced against him;

(e)the solicitors from the firm were not independent and were in breach of their duty to court as well as to their client and would defend their actions or advice; and

(f)by their involvement the solicitors from the firm were material witnesses in the suit, thus raising the spectre of conflict of interest in the circumstances of the case. That being so the firm of Messrs Lee Hishamuddin Allen & Gledhill should be disqualified from acting as solicitors for the appellants.

[4]The appellants canvassed that:

(a)mere allegation that the named solicitors in the firm would be called as witnesses was not by itself sufficient for disqualification;

(b)the firm had never advised or acted for the respondent and thus r 5 of the Legal Profession (Practice and Etiquette) Rules 1978

5No 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 pleadings 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 the advocate and solicitor acted is obtained in writing and the advocate and solicitor is not embarrassed by so acting.

(c)the affidavits showed that the respondent’s association with Datuk Naban and the firm was strictly on a professional basis. The nature of the cordial, close working relationship between respondent and Datuk Naban or with the firm did not fall within the context of r 5(a) and (b) of the Rules;

(d)the opinion of the