Professional Paper - Ethics & Duties of Practitioners PDF

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PROFESSIONALPAPERCERTIFICATE IN LEGAL PRACTICEETHICS & DUTIES OF COUNSEL / ADVOCACYETHICSTHE STRUCTURE OF MALAYSIAN LEGALPROFESSION:[Legal Profession Act 1976 as amended in 2006 - governs profession of Advocates & Solicitors only in West Malaysia]A. ESTABLISHMENT OF LEGAL QUALIFYING BOARD : ...

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PROFESSIONAL PAPER CERTIFICATE IN LEGAL PRACTICE ETHICS & DUTIES OF COUNSEL / ADVOCACY

ETHICS THE STRUCTURE OF MALAYSIAN LEGAL PROFESSION: [Legal Profession Act 1976 as amended in 2006 - governs profession of Advocates & Solicitors only in West Malaysia] A. ESTABLISHMENT OF LEGAL QUALIFYING BOARD: [s. 4 LPA 1976] s. 26: decision of the Board may be reviewed = can be sued ● MEMBERSHIP OF THE BOARD: [s. 7 LPA] - AG - chairman -

2 judges appointed by Lord President

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Chairman of Bar Council A full time member of academic staff of faculty of law (appointed by Ministry of Education)

● FUNCTIONS OF BOARD: [s. 5 LPA] (a) Qualification required for entry into articles to his admission as advocate & solicitor (b) Provide courses & regulate training for articled clerks (s. 20-25 LPA) (c) Provide examination for articled clerks (d) Decide on qualification (other than notification under s. 3 LPA) [update & recognize qualification] (e) Provide courses & examination for person to be qualified persons (f) manage & conduct Bahasa Malaysia Qualifying Exam

● GENERAL POWER OF BOARD: [S. 6 LPA]

B. TYPES OF ADMISSION: 1) QUALIFIED PERSON: ● S. 3 LPA - DEFINITION: (a) Passed final examination leading to degree of Bachelor of Laws of UM; (b) Barrister at law of England; OR (c) Other qualification in Gazetted Local Uni gazetted/ Graduated from UK / Graduated from Australia / New Zealand (if only graduated after 1/5/1999 – take CLP) ● ADMISSION OF ADVOCATES & SOLICITORS: [S. 10 LPA] - High court may, at its discretion, admit as advocate & solicitor of High Court: (a) Any qualified person; and (b) Articled clerk (s. 20 LPA one gone through articleship) (who complied with s. 25 LPA)

Commented [1]: NOTIFICATION UNDER S. 3: (Qualified Person includes) 1) solicitor of supreme court of Judicature of England 2) Barrister-at-Law of the Honorable Society of King's Inn, Dublin, Eire 3) CLP by Qualifying Board (24.09.1984) - Advanced Diploma in Law by Institut Teknologi MARA (17.06.1985) - Degree of Bachelor of Laws by International Islamic University (30.06.1987) - Degree of Bachelor of Laws by University kebangsaa Malaysia (18.07.1990) 4) [Australia] - from 1.05.1999, those took exam in listed UNI + CLP qualified - if enrolled in the universities listed before 30.04.1998 exempted from CLP 5) Solicitor of Senior courts of England & wales (1.10.2009)

Note: Degree must be conferred, mere passing is insufficient. ● QUALIFICATIONS FOR ADMISSION: S. 11(1) LPA: (a) 18 year old; (b) Good character + I. II. III.

X Previous conviction that render him unfit to be member of profession e.g. fraud & dishonesty (x limited to this) X been adjudicated bankrupt X done act which can render him disbarred / suspended if being legal practitioner in

England / (iv) any other country. (c) Citizen / Permanent Resident in Malaysia (d) Served prescribed period of pupilage in Malaysia. S. 11(2) LPA: (from 1/1//1984)

6) passed final exam conducted by Universiti Sultan Zainal Abidin (18.10.2015)

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Passed / exempted from Bahasa Malaysia Qualifying Examination.

➔ PUPILAGE: [s. 12 LPA] (2) Pupilage - Period of 9 months (3) No other employment (full time / otherwise) during his period of pupilage [unless got special leave in writing from Bar Council] [can get remuneration from master] *OBJECTIVE* - s. 36 (access to court matters e.g. enter JID, consent judgement, apply for bail, conduct cause / matter) -

S. 13 LPA(1): Serve pupilage with advocate & solicitor who is & has been in active practice in Malaysia for a period not less than 7 years. Re Sunil Singh Gill F: pupilage in Labuan (Sabah) H: it’s part of Malaysia Akberdin v Majlis Peguam Malaysia H: serving in judicial and legal service (being Magistrate) can’t be termed as ‘practice’. Active Practice means active practice as advocate & solicitor. s. 13(2) LPA: BC may allow serving with different masters NOTE: EXEMPTION FROM PERIOD FOR PUPILLAGE – s. 13(3) LPA BC has discretion to exempt period up to 6 months IF (a) Special circumstances justifying / (b) Has a period not less than 6 months been pupil / in chamber in commonwealth / (c) Articled clerk in malaysia / (d) Engaged in active practice as legal practitioner (whatever name called) in commonwealth – X less than 6 months.

s. 13(4) – total exemption in Judicial service for at least 1 year -

S. 14, 15 & 16 LPA: Procedure for Petition S. 14 LPA file petition for admission & enrolment BC make inquiries into character petition being set down for hearing forward to chief justice such confidential report

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S. 15 LPA: affidavit verifying petition & exhibit - documentary evidence showing – qualified person - 2 recent certs as to good character - cert of diligence from master - cert from principal (for articled clerk) - documentary evidence – federal citizen / PR of Malaysia - BM exam

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S. 16 LPA: FILING OF AFFIDAVIT & OBJECTIONS file in registrar’s office AG / Bar Council / State Bar committee may object – notice of objection within 3 days, set for hearing within 1 month.

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S. 17 LPA: ENTERING CAVEAT: may enter (in Registrar’s office) caveat against admission Effect: application for admission not heard unless notice of hearing served not less than 3 days upon entry of caveat **Bar Council Ruling CH10: cant refuse cert of diligence except for acceptable reason must identify themselves as pupil must be under supervision of master

2) ADMISSION IN SPECIAL CASES - S. 18 LPA: [also known as - ad hoc admission] – Court has discretion ➔ CRITERIA: I. If he is Malaysian / Permanent resident in Msia, eligible to be admitted II. III.

Counsel has special qualification / experience not available amongst advocate & solicitor in malaysia; AND Instructed by advocate & solicitor in Malaysia E.g. Barrister was expert of defamation case in England - has special qualification (Peguam Negara v Geoffrey Robertson)

➔ PROCEDURE: S. 18 -

Originating motion + affidavit Serve on AG, Secretary of Bar Council & State Bar Committee

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Payment of RM100 to Secretary of Bar Council & State Bar Committee

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Registrar, on payment, issue certificate to practice (deemed under s. 29) Registrar shall not enter on the roll but separate roll - name of person admitted under this provision NOTE; ADMISSION IN SARAWAK Datuk Seri Gopal Sri Ram (2018) H: to be admitted in sarawak – Sarawak Advocates Ordinance S. 10 (in the interest of justice) must have sarawak connection (s. 4) e.g. born there/ has stayed there for last 5 years

3) AG’s POWER TO ISSUE SPECIAL ADMISSION CERTIFICATE - S. 28A LPA: [R: easier mechanism if govt were to admit appoint anyone from overseas, X need go through s. 18 procedure] ➔ CERT MAY BE ISSUED TO WHOM: - Qualified person / non qualified person but eligible to be Barrister or Solicitor / have been practising or employed as legal practitioner not less than 7 years. - AG to specify period for admission NOTE: Certificate issued is conclusive evidence.

➔ PROCEDURE (after issuance): -

[S. 28B] apply to HC to be admitted (OS)

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Renewal is at discretion of AG

➔ GUIDELINES IN RELATION TO SPECIAL ADMISSION CERTIFICATE: -

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Criteria: He is acting as Consultant for / employed by / going to be partner of, a legal firm OR Consultant for / employed by government Apply in writing through legal firm concerned / relevant department of government Bar council will be consulted before approval is given for the issuance of Special Admission Certificate Fee to AG - RM1000

4) INTERNATIONAL PARTNERSHIP / QUALIFIED FOREIGN LAW FIRMS & REGISTRATION OF FOREIGN LAWYERS: ➔ S. 40A - INTERNATIONAL PARTNERSHIP: Between foreign law firm + malaysian Law firm S. 40F – must apply for international partnership license to BC (Selection Committee recommend) Legal Profession (Licensing of International Partnerships and Qualified Foreign Law Firms and Registration of Foreign Lawyers) Rules 2014: -

R3: application Form A – Conditions: Good reputation

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Permitted practice areas (Rule 2) Not subject to disciplinary proceeding

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Must be in Malaysia for at least 182 days

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Selection Committee determines equitable ownership & voting rights Submit business plan to BC yearly License Validity – 3 years.

Commented [U2]: OBJECTIVES: 1)Globalization - compliance with World Trade Organization - Liberlise legal service 2)Government Policy - Malaysia Islamic Finance Centre (requires foreign expertise)

➔ S. 40G - QUALIFYING FOREIGN LAW FIRM: Only practice in permitted area 2014 Rules R4: max 5 license given a year. -

(similar criteria as r3) Can employ Malaysia Lawyers (numbers determined by selection committee)

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Validity – 3 years

➔ S. 40H - EMPLOYMENT OF FOREIGN LAWYER BY MALAYSIAN LAW FIRM: Only permitted area R5 – numbers determined by SC ➔ NOTE: Legal Profession Rules applicable to all 3 (R7 ~ R9 state)

● ADVOCATE & SOLICITOR (AUTHORISED PERSON): ➢ Definition (s. 3 LPA): person admitted & enrolled under this Act ➢ S. 36(1) LPA: Name on the Roll + has valid practicing certificate (obtained under s. 29 & 30 LPA) (person not qualified under this section = unauthorized person) ➢ S. 29 LPA: FOR PRACTICING CERT Every year deliver to Registrar: -

declaration in writing (full name, name kof practice or name of firm) sijil annual

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prescribed fee

➢ SIJIL ANNUAL S. 32: X prohibited under S. 30 LPA: Disqualied: a) Unless Practise on his own / in partnership b) Unless Is / about to be employed full time in msia by A&S / firm

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c) Gainfully employed other than as A & S

Commented [U3]: s. 33: Limited Sijil s. 34: if sijil not given under s. 32/33, may appeal to court to review decision

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Delivered ACCOUNTANT’S REPORT S. 79 [R: position of trustee – required to be fully accountable to client’s money] Yip Shou Shan

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Settle COMPENSATION FUND & ANNUAL SUBCRIPTION (s. 46) S. 80 [R: maintain public confidence – covers misappropriation of fund (due to fraud / dishonesty)] s. 80(8): if BC thinks fair and reasonable, MB may make grant out of the fund to person sustained loss in consequence of dishonesty on the party of A & S [for purpose of relieving / mitigating that loss] Compensation Fund Rules R7: BC May require oral evidence R8: Fund to be granted at discretion of BC, BC may require to first exhaust civil suit / criminal proceeding

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Practice under APPROVED NAME (s. 85(2)) own name / partner’s name/ acquired predecessors’ / combination of all

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NOTE: S. 78A PROFESSIONAL INDEMNITY INSURANCE To maintain fund (compensation for clients)

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Covers negligence & dishonesty Claim against solicitor / his firm

➢ Other possible persons (not A & S but may act as A & S) - s. 38 LPA - Members of AG Chambers -

Officer of Public Trust Corp Directors General of Legal Aid

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Public officer

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Person acting for himself Bona fide employee of insurance company (only limited to negotiation for settlement) Full time academic staff in faculty of law

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Accountant drawing up paper

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Trade Mark, Patent Agent

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Full time employee of A & S preparing documents under authority of A & S

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s. 37A LPA Arbitrator / any person representing

➢ Unauthorised person acting as A & S - s. 37 LPA: Fine / imprisonment Bar Malaysia v HF Vitality H: Private company offering legal services = committed breach of s. 37 LPA R: not qualified person, advocate & solicitor, cant apply for practicing cert & sijil annual Bar Malaysia v Index Continent F: D (respondent) providing information on law firm & made it clear it does not itself provide for legal service H: applicant has locus standi to commerce action against respondent for infringement of s. 37 LPA R: for benefit & protection of public Majlis Peguam Malaysia v Euro Prestasi & Partners F: D represented itself as law firm & put members of public under threat of litigation and / or criminal prosecution H: act of threatening tantamount to offences under s. 37 R: erode public confidence in legal profession

C. MALAYSIAN BAR: ● ESTABLISHMENT - S. 41 LPA: (as body corporate) = can sue / be sued ● MEMBERSHIP - S. 43 LPA: (every advocate & solicitor - automatically a member as long as holding valid practising certificate) -

RIGHTS OF MEMBERS - S. 44 LPA: (a) Attend & vote @ general meeting

(b) Elected to Bar Council (c) Right to vote on election of Bar Council. ● OBJECTS & POWERS OF THE BAR - S. 42(1)(a) ~ (n) LPA: (a) Uphold the cause of justice (uninfluenced by fear) (b) Maintain & improve standard of conduct (c) Facilitate acquisition of legal knowledge (d) When requested, express views on legislation & law in Malaysia (e) Represent, assist & protect members (f) Establish libraries (g) Protect & assist public (matters relating to law) (h) Make provisions (i) Award prize & schorlarship, subsidize lectureship (j) .. (k) .. (l) .. (m)

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(n) Compensation fund

D. BAR COUNCIL: ● ESTABLISHMENT - S. 47(1) LPA: Proper Management of affairs of Malaysian Bar (x sue / be sued) ➔ HOW BAR COUNCIL REGULATES THE PROFESSION?: ➢ S. 77 LPA - POWER TO MAKE RULES REGULATING PRACTICE: -

E.g. Legal Profession (Practice and Etiquette) Rules Legal Profession (Publicity Rules) Bar Council Rulings 2015

➢ S. 78 LPA - POWER TO MAKE PARTICULAR RULES: - E.g. Solicitor’s Accountants Rules NOTE: s. 78(5) - failure to comply - disciplinary proceedings

➢ S. 78A LPA - POWER TO MAKE RULES ON PROFESSIONAL INDEMNITY: -

Requirement - to be covered by professional indemnity insurance

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Usually deal with misconduct committed, negligence etc

➢ S. 79 LPA - ADVOCATE & SOLICITOR TO DELIVER ACCOUNTANT’S REPORT : -

E.g. Accountant’s Report Rules Note: Chong Yik Soon

➢ S. 80 LPA - COMPENSATION FUND: - S. 80(8) LPA: when any person sustained loss in consequence of dishonesty on the part of advocate and solicitor ● MEMBERSHIP - S. 47(2) LPA: -

Immediate past president + vice president of Malaysian Bar Chairman of State Bar Committee + members elected to represent each state bar committee (s. 70(7) LPA)

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Members elected (s. 50 LPA)

● POWERS & ACTS OF BAR COUNCIL - S. 56 LPA: Management of Malaysian Bar & its Funds ● SPECIFIC POWERS OF BAR COUNCIL - S. 57 LPA:

E. STATE BAR: ● ESTABLISHMENT - S. 68(2) LPA: (Advocate & solicitor practising in each state will automatically be a member) ● MEMBERSHIP - S. 69 LPA: ● ANNUAL GENERAL MEETING - S. 70/70A(1) / 70A(2) LPA: ● POWERS - S. 73 LPA: To look into interest of each member of the state bar

F. DISQUALIFICATION OF MEMBERSHIP TO BAR COUNCIL / STATE BAR COMMITTEE: S. 46A LPA - SHALL BE DISQUALIFIED IF: (a) Deleted (b) Is a member of House of Parliament/ State Legislative Assembly/ Local Authority (c) Hold any office in I. Trade union II.

Political party

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Other organization (political in nature)

PRIVILEGES OF ADVOCATES & SOLICITORS: -

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Royal Aquarium and Summer and WInter Garden Society v Parkinson H: Privilege in relation to statements made by him in court is not qualified but absolute. As Long As Munster v Lamb Acting bona fide (i.e. statement made based on proper ground)

NEED FOR ETHICS & RULES: Tuan Faiza Thamby Chik: Says - It bars advertising, poaching & undercutting - If a man uses trade weapon & employs people, he is taking unfair advantage over his fellows ❖ RULES OF PRACTICE & ETIQUETTE: - Clyne v the New South Wales Bar Association 2 classes of rules binding on members of body of professional men. 1) Written Rules (Conventional in nature) -

LPA

Bar Council Rulings - s. 77 LPA (enacting power) E.g.: Legal Profession (Practice and Etiquette) Rules 2) Unwritten Rules (Fundamental)

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Basic rules that one ought to know

➔ FAILURE TO COMPLY WITH RULES MADE UNDER S. 77 LPA: S. 77(3) LPA - Liable to disciplinary proceedings E.g. s. 77(2) - struck off from the roll / suspended from practice - Guilty of professional MISCONDUCT (defined in s. 94(3)(a)~(o) LPA) S. 94(3) LPA (a) Conviction of criminal offence makes him unfit to be member of profession (b) Breach of duty to court (including failure to comply with undertaking to court) (c) Dishonest / fraudulent conduct (d) Breach of any etiquette rules (e) Adjudged bankrupt (f) Give gratification to any person for procuring legal business (g) Directly / indirectly procured employment of himself through another person whom any remuneration has been given (h) Accepting legal business through tout (i) Allowing unauthorised person to carry on legal business without his direct /immediately control as principal & without proper supervision (j) Carrying on what’s incompatible with legal profession (k) Breach of any provision of this Act / rules made thereunder/ Bar Council ruling (l) Disbarment as legal practitioner in other country / guilty of conduct punishable in other country (m) Excessive charges (n) Gross disregard of client’s interests (o) Guilty of conduct unbefitting of an advocate & solicitor - bring legal profession into disrepute Gana Muthusamy F: solicitor received payment from tenant on behalf of landlord, yet alleged no proper renewal H: should pay back payment. OTF misconduct (conduct unbefitting of A&S) PENALTY UNDER S. 94(2) LPA: - Struck off the roll -

Suspension (x exceed 5 years) Fine (x exceed RM50k)

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Reprimanded / censured

❖ RULES FOR ACCEPTANCE / BRIEF AS AN ADVOCATE & SOLICITOR: ➔ RULE 2 - GENERAL RULE TO ACCEPT: -

Shall give advice on / accept any brief in the court BUT - special circumstances may justify his refusal, at his discretion, to accept a particular brief.

➔ RULE 3 - NOT TO ACCEPT IF EMBARRASSED: I. II.

Rule 3(b): Embarrassment arises when Advocate & Solicitor in possession of confidential information as a result of having previously advise another person in regard to the same matter; Personal relationship AG v Arthur Lee F: Advocate & solicitor was acting for company in which he & his family member have shares in it. H: counsel should not have acted for the company Vijayalakshimi Devi v Saraswathy Devi F: Party engaged her own brother to represent her H: brother could not act for the sister defendant R: the Bar had set a high standard of practice: An advocate & solicitor must be able to give an objective & independent judgement before he embark on the task of advising a client (advocate & solicitor = court officer - higher duty to serve justice) Note: Interpretation of Personal Relationship by Federal Court: Blood relationship is sufficient Re Vicnandan Maria Dass F: the advocate & solicitor acted for 3 parties - purchaser, vendor, subsequent purchaser to first purchaser H: application dismissed - costs to be borne by the counsel R: difficult to maintain his professional independence

RS Muthiah v Pembinaan FIBA F: the counsel was the wife of managing director of defendant company Main witness for defendant Secretary to defendant company H: personal relationship, counsel was prohibited from acting for defendant by virtue of r3 Teoh Soo Beng v Golden Castle City (2018) F: plaintiff alleged: confidential information was revealed to solicitor who gave his advise to plaintiff H: solicitor was not retained as advocate, plaintiff could ...