Lavania & Balan Chambers

A solicitor derives his authority to act for his client from a contract known as a retainer. A retainer is an agreement entered between the solicitor and his client, be it oral, written or implied by conduct, in which the client employs the solicitor to represent him. In return, the solicitor undertakes to fulfil his obligations to act in the best interest of the client, including but not limited to, acting in accordance to the instructions of the client.

In construing the duties of lawyers, the Federal Court in Yong & Co v Wee Hood Teck Development Corporation^[1] held that the duty of a solicitor is directly related to the confines of the retainer, hence solicitors are required to consult his client on all questions of doubt which do not fall within the discretion left to him. Failure to do so not only amount to a breach of contractual duty but a breach of a solicitor’s duty.

Flowing from the above, if a solicitor acts without the authority of his client in an action, otherwise known as “acting in want of authority”, the solicitor will be penalised for cost personally and any actions done would be invalidated (See: Medoc Trading Pte Ltd v Vijay Kumar Natarajan & Ors [1999] 3 MLJ 289).

What happens when the client dies in the midst of a settlement or a lawsuit?

The general rule is expounded in the Federal Court case of Asiah Bte Abdul Manap & Anor v Capital Insurance Bhd^[2] . Here, the Plaintiff passed away intestate in the course of a personal injury action. The court held that the retainer of the solicitors ceased upon the death of their client, as no representative of the deceased Plaintiff has ratified or renewed the retainer. English cases which ruled that lawyers do not have the mandate to act if the client is incapable of giving instructions were referred to. As such, the court could not allow the action to continue, until and unless the grant of letters of administration is extracted and the lawyer is properly reappointed.

The rationale behind the above decision is that if the deceased dies intestate, the prospective administrator has to obtain letters of administration before renewing the retainer. Only upon extracting the grant of letters of administration, could a person be said to be duly clothed with a representative character and to have acquired a title to the estate so as to make him an administrator.^[3] Therefore, before extracting the letters of administration, the representative and/or next of kin cannot give instructions to the solicitors on behalf of the deceased, and the solicitor does not have the mandate to act on behalf for the late client.

On the other hand, if the deceased had appointed an executor in his will, then the executor could automatically step into the shoes of the deceased and the solicitors are now subject to the administrative instructions of the executors, even before probate is extracted.^[4]

The reason for the difference of legal positions for testate and intestate is pronounced in the settled authority of SMKR Meyappa Chetty v SN Supramanian Chetty [1916] 1 AC, which sets out the position of the law as such:

“It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator's death, and the consequence is that he can institute an action in the character of executor before he proves the will”

What can be garnered from the above authorities is that an executor could immediately step into the shoes of the deceased after his passing to proceed with any ongoing action, and to instruct the present solicitors, even before probate is extracted. However, if no representative is appointed, then the retainer will terminate upon death of client and no further actions could be taken by the solicitor unless he is rightfully authorised to do so.

Client’s confidentiality

Another interesting question that flows from the above is whether solicitor-client privilege, namely the duty to protect the confidentiality of the client will prevail after the death of the client. Often after the passing of a client, a lawyer will receive requests for information relating to the representation from the family members of the deceased. Is he entitled to reveal such information?

Section 126 of the Evidence Act 1950 is a codification of the common law legal profession privilege, which essentially provides that communications between a lawyer and his client should not be disclosed unless:

i.                the client’s express consent is obtained; or

ii.               the communication was made in furtherance of any illegal purpose; or

iii.             facts observed by advocate in the course of his employment showing that any crime has been committed since the commencement of his employment.

This provision however does not address whether the privilege will survive the death of clients.

The courts in Tan Thian Wah v Tan Tian Tiok was faced with a similar scenario. Here, the son of the deceased (“Applicant”), by virtue of being a beneficiary of the estate, wrote to the Defendant, the legal firm representing the deceased, to request for a copy of the will. In interpreting section 126 of the Evidence Act 1950, the court disallowed his application. It was held that unless there is permission from client to disclose the privileged communication, no disclosures will be allowed.

Therefore, following the passing of the client, no consent to disclose is obtainable. Even though the Applicant is one of the possible beneficiaries, the privilege did not belong to him. The legal profession privilege will survive the death of the client. Provided that beneficiaries and the representative are different entities, the privilege only belong to the representative, and not the beneficiaries.

Conclusion

In light of the foregoing, a solicitor-client relationship will not survive the death of the client unless an executor is appointed, whilst the legal profession privilege being the “a principle of fundamental justice^[5]” will survive the passing of a client, even if the retainer is terminated.

In any event, lawyers should always inform their opponent, the courts or any parties of the death of their client and whether they are validly appointed by the estate before proceeding with any negotiations or litigative actions.  To continue to deal with a matter on behalf of the client without disclosing the same amounts to misrepresenting their authority to act and communicating wrongful information in violation of the Legal Profession (Practice and Etiquette) Rules 1978, which requires lawyers to conduct matters with candour^[6] and not to mislead parties^[7].

 

This article is authored by Lavinia Kumaraendran (Partner) and Melody Tan Kar Yen (Pupil) of the Commercial Litigation Practice of Lavania & Balan Chambers. It contains general information only. The contents are not intended to constitute legal advice on any specific matter nor is it an expression of legal opinion and should not be relied upon as such.