AYUNI & ASSOCIATES

PROCESS OF COMPLAINT & INVESTIGATION AGAINST ADVOCATE AND SOLICITOR OR PUPIL

PRESENTED BY:

1. NUR AYUNI AB RAHIM 2011277868 LWH2C2. NURUL AZMELIA ABU BAKAR 2011455474 LWH2C3. HILWA NAZIFA BUSTAM 2011443204 LWH2C4. MOHD EFENDI MOHD RAZALI 2011471464 LWH2C5. AINA AMARLINA ROSLI 2011675202 LWH2C

INTRODUCTION

All advocates and solicitors of the High Court of Malaya and pupils shall be subject for the purposes of all disciplinary actions to the control of the Disciplinary Board.

Who is the advocate and solicitor? "advocate and solicitor" means the advocate and

solicitor or pupil against whom a complaint has been made.[Rule 2 Legal Profession (Disciplinary Proceedings) (Investigating Tribunal And Disciplinary Committee) Rules 1994]

Can you lodge a complaint against an advocate & solicitor on any matter?

No, your complaint must be limited to only the conduct or omission to act by an advocate & solicitor in a professional capacity which amounts to grave impropriety. It includes the category of misconduct in s.94(3) of the Legal Profession Act 1976.

This does not include for example, partnership dispute, family dispute, employment matters, pure breach of contract or friendly loan agreements or any dispute which is personal in nature.

Under Section 94 (4) LPA 1976, if any of the situations or circumstances committed by the advocate and solicitor and the Bar Council considers that it would be in the public interest or in of his clients or of the profession that such advocate and solicitor be suspended from practice, the bar council may apply to the disciplinary board for an order suspending such advocate and solicitor from practice until further notice.

Where should you lodge the complaint?

A complaint can be lodged with the Advocates & Solicitors Disciplinary Board (“ASDB”).

What is the ASDB? The ASDB is a statutory body established under section

99(3) of the LPA. It is a body entrusted with powers to conduct disciplinary proceedings against advocates and solicitors and to mete out appropriate punishments.

Is the ASDB under Bar Council?

(a) The ASDB and Bar Council (“BC”) are separate and distinct entities established pursuant to section 93 and section 47 of the LPA 1976; and

(b) The ASDB and BC are independent of each other. The independence of the ASDB ensures transparency and accountability so that there is no perceived bias in its conduct and decisions. BC does not exercise any right or control over the investigation process.

Could you file complaints against law firm?

Disciplinary action is personal/individual in nature. So, you should name the particular advocate(s) and solicitor(s) concerned. Whilst you may name a firm, it will delay the processing of your complaint as the Secretariat would have to first request the firm to identify the advocate & solicitor concerned. However if no advocate and solicitor is identified, the complaint will be proceeded with against all the partners of the law firm at the material time.

1ST STAGE

LODGING A COMPLAINT

How to lodge a complaint against Advocates & Solicitor or Pupil

[s99 of LPA] All complaint shall be

made in writing by the complainant or his solicitor

How to prepare your letter of complaint?

(i) It must be in BM or English

(ii) Must be legible, typewritten is advisable

(iii) State clearly your name, NRIC, address,contact no,name of your lawyer, name of A&S complaint against & the name of the law firm he/she was attached to when the subject matter of the complaint arose

(iv) State the subject matter of your complaint clearly & comprehensively (important)

v) Please ensure your Letter of Complaint is signed

vi) Submit 3 copies of your Letter of Complaint together with your Statutory Declaration & other supporting documents.

viii) The processing fee is RM100

What are supporting documents?

(i) Proof of appointment of counsel

(ii) Agreement as to fees, proof of payment of fees and disbursements (receipts)

(iii) All relevant documents/ correspondence relevant to the subject-matter of complaint; and

(iv) Chronological narration of all record of meetings & phone calls, record of documents &/or correspondence to &/or 3rd party witnesses where applicable

Rule 3 of Legal Profession (Disciplinary Proceedings) (Investigating Tribunal & Disciplinary Committee) Rules 1994

[Failure to provide the Disciplinary Board with any of the above particulars/ documents, it may result in your complaint being rejected]

Can you lodge a fresh complaint if you have rejected my complaint due to non-compliance?

Yes, you can

Can you lodge a fresh complaint on the same subject matter if your complaint has been dismissed?

No

Who will decide whether there is merit in the complaint?

The Disciplinary Board shall decide whether there is a merit in the complaint.

No merit: The complaint is dismissed

The complaint has merit: Disciplinary Board will request for an explanation from A&S or pupil

2ND STAGE

INVESTIGATIONSTAGE

What if the complaint is of sufficient gravity?

A Disciplinary Committee will be appointed [s100(2) of LPA]

What if :

(a) The complaint is of no sufficient gravity or;

(b) The A&S / pupil concerned admits to the misconducts?;

(c) If the material facts establishing the misconduct are straightforward?

(i) The Disciplinary Board is empowered to deal with the complaint forthwith without the Disciplinary Committee

(ii) The Disciplinary Board before making any order & imposing any penalty or punishment shall notify the A&S/ pupil of its intention to do so and give him the reasonable opportunity to be heard

[s100(6) and (7) of LPA]

DISCIPLINARY COMMITTEE (DC) PROCEDDINGS

When will your complaint be referred to the DC?(i) If there is no merit

(ii) There is cause of sufficient gravity to warrant a formal investigation

Who is DC?It comprises of 2 A&S and 1 lay person [103A LPA]

When does the DC commence its investigation?Within 1 month of its appointment [s103B(1) LPA]

What is the role of DC in the cause of proceeding?(a) To make findings of facts & liability

(b) To make recommendation on punishment to the Disciplinary Board

DC may:-

(i) Require the inspection of any book, documents or paper that may be related to the subject matter of the complaint

(ii) Require such person concerned to give all information in relation to the above matter which may be reasonably required by DC

(iii) Require any person whom it considers necessary to appear before it to give oral evidence relating to or connected with the subject matter of the investigation

[s103B(2) LPA]

Would you know the decision on your complaint from the DC?No because the DC’s findings of facts, liability & recommendation are submitted in the form of a report to the Disciplinary Board for determination and decision.

The DC may recommend dismissal of the complaint, a reprimand, imposition of a fine, suspension for a period not exceeding 5 years or striking off the Roll of Advocates & Solicitors [103C(1) LPA]

How does the Disciplinary Board deal with the Disciplinary Committee Report?

DB usually meets once a month to decide on complaints, which included decisions on DC reports

DB may affirm/disagree with the DC’s findings and/or recommendation

DB may also call the A&S concerned to appear before it Before the DB makes an order that is likely to be adverse

against an A&S/pupil, it shall notify them of its intention to do so and give them a reasonable opportunity to be heard

[s103C &130D of LPA]

3RD STAGE

RIGHT TO APPEAL

Can a decision of the Disciplinary Board be appealed?

Section 103E LPA 1976 Only decisions made under subsections 100 (5),

(8) or (9) or Section 103 are appealable under Section 103E

How can an appeal be done?

It shall be heard by a single Judge of the High Court: Sec 103E (3)

By way of originating motion supported by an affidavit: Sec 103E (4) and Sec 107(3) of the Act

Time period which an appeal can be made to the High Court is within 1 month from the date of receipt of notification of the final decision: Rule 3(1) LP Rules and Section 103E LPA

It is advisable that a counsel is appointed in assisting the complainant on the points of law.

Can the Disciplinary Board or the Disciplinary Committee be named as the Respondent in the appeal case?

The Disciplinary Board or the Disciplinary Committee may not be named as the Respondent in the appeal case: 103E(7)

Why?This is because they are the adjudicating body.

What is the role of the Bar Council in appeals against the Disciplinary Board’s decision?

The Bar Council may in its discretion intervene at any stage of any appeal under this section: Section 103E (6)

The appeal papers shall be served to the Respondent, the Director of the Complaints Secretariat and the Bar Council Also known as “the 3 parties”

The papers shall be serve by personal service, courier or registered post within 7 days from the date of the filing of the originating motion.

SERVICE:Rule 3(3) LPR 1994

APPEAL DEPOSIT: Rule 4(1) Appeal Rules 1994

RM500.00 payable within 7 days from the date of the filing of the originating motion.

Cash or cheque or money order

Payable to the “Bar Council-Discipline Fund”

Made to the Complainants Secretariat

CERTIFIED TRUE COPY Within 3 weeks from the date of receipt of the

payment of the appeal deposit, secretariat will prepare a certified true copy of the documents: Rule 4(4) of the Appeal Rules 1994

Within 6 weeks of receipt of the documents, an affidavit shall be filed containing the appeal record in the High Court Serve to the 3 parties

Whether the lawyer can appeal when dissatisfy with the decision?

WITHDRAWING AN APPEAL

Filing a notice of withdrawal in the High Court and serving it on the 3 parties. Rule 6(1) Appeals Rules 1994

Upon dissatisfaction of the High Court’s decision, an appeal can be made to the Court of Appeal and thereafter to the Federal Court.

Similarly, the papers of appeal must be sent to the 3 parties: Rule 6(2) Appeal Rules 1994

SYED MUBARAK BIN SYED AHMAD V MAJLIS PEGUAM NEGARA [2000] 4 MLJ 167

The appellant a public accountant was admitted and enrolled as an advocate and solicitor of the High Court of Malaya.

His application for an annual certificate was rejected by the Bar Council on the ground that he was disqualified under s 30(1)(c) of the Legal Profession Act 1976 ('the Act').

ADVANTAGES AND

DISADVANTAGES

ADVANTAGES DISADVANTAGES

BAR COUNCIL •Convince the public that Bar Council performs their duty in ensuring the ethics in this profession is practised. •Upholding the reputation of the Bar Council as a professional body.

•Only take action upon complaint. •Breach principles of natural justice ie ‘no man shall be a judge of his own case’, as per Ngeow Yin Ngee v Majlis Peguam Negara

TO THE COURT •Upholding the justice as undisciplined or problematic lawyers are eliminated. •Help the court to maintain its reputation as:“A defence counsel is also an officer of court. He owes duty both to court and client”

•Increase the cases to be heard which causes backlog of cases.•Need to adjourn cases especially when the affected clients need to engage other lawyers because their lawyers have been suspended or barred.

ADVANTAGES DISADVANTAGES

TO THE LAWYER HIMSELF

•A lesson to himself to lead a better way of life.•A chance for them to give better service to clear their names.

•Bad reputation as a lawyer and loss the trust of the clients.•Feel shame towards the family, friends and society as their name has a bad record.

TO THE CLIENT/ PUBLIC •The action brings justice for the complaining clients.•Being protected against further potential harm of the lawyers’ wrongdoings.

•Need to find new lawyer to continue the proceeding of the case.•Suffer from lost of trust towards professional people.

ADVANTAGES DISADVANTAGES

TO THE FIRM/FIRMATES

•As an example to them and in a way deters them from committing the same mistake.

•People/public would blame the whole firm to be untrustworthy.•Lost other clients as well.

THANK YOU