LEGAL PROFESSION ACT 1978

Admission into The Legal Profession-The advocates and solicitors of The High Court in Malaya has a monopoly control over the practice of law in Peninsular Malaysia.

THREE STAGES FOR ENTRY INTO LEGAL PROFESSION:

1.Acquired the requisite academic and professional qualification;2.Be called to the Bar, ie

• admitted by the High Court as an advocate and solicitor• and have his or her name entered on the Roll of Advocates and Solicitors

3.The Registrar of the High Court has issued a practising certificate (which is renewable annually by the Bar Council

Legal Profession admission by eligible person:“Qualified person”“Articled Clerks”

• QUALIFIED PERSONHolder of Bachelor of Law(degree)Qualification that has been notified n gazzetedA Barrister-at-law of court of England A possessor of such other qualification as may,by notification in the

gazetteIt is sufficient if QB declared the person qualified on purpose of LPA 1976

QUALIFIED PERSON ADDITIONAL REQUIREMENT

1.At least 18 years old2.Be of good character

Not a convicted criminal, especially fraud and dishonesty Not been adjudicated bankrupt and been found quilty of any acts or omission in the

provision of s 33 the Bankruptcy Act 1967 Not done any act that if barrister or solicitor in England would render them liable to be

disbarred, disqualified, or suspended from practice or Have not been or are not liable to be, disbarred, disqualified, or suspended in their

capacity as legal practicioner in any other country3.citizen or permanent resident of Malaysia4.have satisfactorily served in Malaysia the prescribed period of pupillageMust pass or be exempted from the Bahasa Malaysia qualifying examination as of

after 1 January 1984, unless exempted

ARTICLED CLERKA person who has entered into articles(service agreement) with an advocate and

solicitor.An alternative into the legal profession, which provide opportunity to lawyer’s clerk

to become lawyer in time of no law school in the countryArticles are served with an advocate and solicitor who has been in practice for a

period of not less than seven years immediately proceeding the commencement of articles.

ARTICLE CLERK REQUIREMENTAdmission requirement:

At least 17 years oldOf good characterSatisfied the educational qualification prescribed by the Qualifying board

Satisfactorily served the prescribed period of articleAttended such courses instruction and passed such examination as may be

prescribed by the QBMust pass or be exempted from the Bahasa Malaysia qualifying examination as of

after 1 January 1984

AD HOC BARS• A non Malaysian who is qualified person may be admitted by High Court

on an ad hoc basis to practice as an advocate and solicitor in Peninsular Malaysia in Special Cases

• A non-Malaysia shall no be admitted, unless• In the opinion of the High Court on application of admission is made where a

special qualification or experience is not avialable among advocates and solicitor in Malaysia.

• He or she has been instructed by an advocate and solicitor in Malaysia

ISSUE CONCERNING THE LEGAL PROFESSION

• Syed Mubarak Syed Ahmad v Majlis Peguam Negara• Whether an advocate and solicitor may simultaneously practise another profession.• Fact

• The appellant is a public accountant. He has been practising as such since 1979. • He practices under the name and style of M/s Syed Mubarak & Co. • On 9 January 1997, the appellant was admitted and enrolled as an advocate and solicitor

of the High Court of Malaya. • He then applied to the Bar Council for a sijil tahunan or annual certificate.• His application was rejected. He then applied to the High Court under s. 34 of the Legal

Profession Act 1976 ("the Act")for the certificate. • The High Court refused his application. He then appealed to Court of Appeal. The court

heard and dismissed his appeal.• Held: Gopal Sri Ram JCA

• the Legal Profession Act 1976 is to maintain high standards in the legal profession. It is obvious that parliament intended that persons who choose to be advocates and solicitors must exclusively practise as such

LEGAL PROFESSION (PRACTICE AND ETIQUETTE)RULES 1978

• Rule for practice and etiquette are found in the LPA 1976 of professional practice, etiquette, conduct and discipline of advocates and solicitors, legal firms, clerks, and pupils

• A self-governing and self-regulatory profession• Disciplinary proceeding against errant members of legal firms are conducted by organs

establish under the LPA 1976

MALAYSIAN BAR

• Determines, inculcates, and maintains the proper standards of practice, etiquette, conduct, and discipline of advocates and solicitors

• Establishes and administer the Compensation Fund and the Discipline Fund

• through the Bar Council makes rules concerning related issues:• Professional indemnity covering every legal practicioner against any class of

professional liability • The Disciplinary Board is a body whom primarily responsible for the

discipline of advocates and solicitors which establish under s 93(1) LPA 1976

DISCIPLINARY BOARD• The meeting is presides/conduct by the chairperson

• In his absence the President of Malaysian Bar(or his/her representative)presides• A. The chairperson or the President of Malaysian Bar must disqualify themselves from

deliberating on any complaint if they consider it proper in the interest of justice.• The quorum/minimum of DB is 7 members:

• 1 member must be from paragraph a.• 1 from paragraph b• 5 from paragraph c

• Made up of 17 members, comprises:a) The chairperson who is appointed by the Chief Judge after consultation with the Bar Council.

• Chairperson must be of a retired judge of the High Court or Court of Appeal or the Federal Court, and• Any other person who is qualified to be a judge of any of these court

b) The president of the Malaysian Bar or any other member of the Bar Council as his/her representative, and

c) Fifteen members of the Malaysian Bar of not less than fifteen years' standing appointed by the Chief Judge for a term of two years after consultation with the Bar Council

DISCIPLINARY PROCEEDING• Set out in Part VII/7of the LPA 1976, which has been simplified by the Legal

Profession (Amendment) Act 2006• The amendment has introduce a single tier system in investigation which any

complain against the advocates and solicitor to be conducted by the Disciplinary Committee(DC)

• Before the amendment, written complain were reffered by DB to an Investigating Tribunal(IT) which acted as filter, and

• The DC would be appointed by DB if IT recommended a formal investigation • Disciplinary proceeding initiated in three ways:

1. Where the DB receives written complain regarding the conduct of an advocates and solicitors

2. Where any court, judicial officer of the subordinate court or judge of one of the superior court or Attorney general refer any complaint against the same to the DB. Or

3. Where the Bar Council or State Bar Committee makes a complaint of its own motion against the same to the DB

• Purposes of disciplinary proceeding is to abstain misconduct which is conduct or omission to act in Malaysia or elsewhere by an advocate and solicitors in a professional capacity or which amounts to grave impropriety.• Conviction of a criminal offence• Breach of duty to a court • Dishonest or fraudulent conduct in the discharge of duties• Breach of any rule of practice and etiquette made by the Bar Council under the LPA

1976• Being adjudicated a bankrupt and being found quilty of any of the acts or omission

mention in the provision of s 33(6) of the Bankruptcy Act 1976• Accepting employment in any legal business through a tout• Gross disregard of client’s interest

• DB will investigate whether there is merit in it substances of any complain,• If complaint is with merit then DB convey a copy of the complaint and supporting

document to the advocate and solicitor concerned and,• invites him/her to provide a written explanation within 14 days of the request or such

longer time as the DB may allow• The DB may decide for formal investigation if necessary whether or not advocates and

solicitor furnishes a written report

• where there is no sufficient reason for formal investigation due to an advocates and solicitor admiteed to misconduct and the material fact establishing the misconduct are straight forward and do not warrant further investigation,

• DB may impose an appropriate penalty• The advocate and solicitors concerned has to be notify of the intention of penalty and be

given reasonable opportunity to be heard.• Penalties, DB may impose on:

• Record a reprimand against the name of the advocates and solicitors• Impose a fine for such sum as the DB deem just• Suspend the advocates and solicitors from practice for such period not exceeding 5 years as

the DB deems appropriate, or• Strike the advocates and solicitors of the Roll of Advocates and Solicitors

• Imposition of penalty does not exclude the restitution of any sum owing to the complaint which order by DB

• Failure of restitution may result in higher punishement, • The restitution is recoverable by the complainant as a civil debt• Fine imposed by DB must be paid within 1 month from the date of order, in default DB

may until the fine is paid, to:• Order the suspension of the defaulter from practise or,• If the defaulter is currently not in possession of a practising certificate, order that no Sijil

Annual be issued to him/her

DISCIPLINARY COMMITTEE

• DC is appointed from the Disciplinary Committee Penal established under s 96 LPA 1976.

• Is appointed to investigate make recommendation to the DB where:a) The DB is determines at any stages of the proceeding, that a formal

investigation is required,b) An advocates and solicitor has been convicted of criminal breach of trust

under s409 of the Penal Code (Act 574) or any other offence involving fraud or dishonesty, or

c) The advocate ad solicitor has been suspended from practice under s 94 (4) LPA 1976

DISCIPLINARY COMMITTEE PENAL

• The penal is set up from a list supplied by the Bar Council• Compromises of thirty members of whom:

• 20 advocates and solicitors of not less than ten years standing and having valid practising certificates, and

• Ten are lay persons• Number of member varied however must maintained the proportion prescribed

between advocates and solicitors and lay person• Member of the Panel served for 2 years, term may be extended but could not

exceed period of two years.• Members may be reappointed• A DC must comprises/consist 3 members

• 2 advocates and solicitor• 1 lay person

• Chairperson appointed must be from one of the two advocates and solicitors

DC COMMENCE ITS INVESTIGATION• Within one month of its appointment DC must commence its investigation• The advocates and solicitors involves must be convey of:

• A copy of any written complaint and of any statutory declaration, or affidavit made in support of the complaint, and

• A notice inviting him/her within a period of not less than 14 days:• To give to the DC any written explanation which may be additional to any previous

explanation that might have been given to DB , and• To inform the DC if he/she wishes to be heard by the DC

DC COMMENCE ITS INVESTIGATION• For the purpose of investigation, DC may

a) Required the production for any inspection of any documentary material relating to the subject-matter of the investigation

b) Required any person to give all information concerning such documentary material, andc) Require any person to appear before it to give oral evidence relating to the subject-matter

of the investigation

• DC make a recommendation to the DB after an investigating the written complaint based on the facts:

a) That no cause of disciplinary action existsb) Cause of disciplinary action is exists but is not enough evidence to issue warrant other than

a reprimandc) Complaint with merit to it shall subject the advocate and solicitor to the disciplinary actions:

i. Imposition of a fine such sum as the DC deems justii. Suspension from practice for such period not exceeding 5 years as the DC deems appropriate, oriii. Striking the advocate and solitors of their Roll

• Any party aggrieved by a decision made by the DB has the right to appeal to the High Court within one month of receiving the notification of the decision complained against(the further right of appeal lies to the Court of Appeal and thereafter The Federal Court),under the following provision:

1. s100(5):dismissing a complaint deemed of no merit2. S100(8): imposing one of four penalties on an advocate and solicitor after a complaint, deemed as no

warranting a formal investigation, is dealt with forthwit by the DB3. S100(9) ordering restitution of any sm owing to the complainant, in addition to imposing one of the

penalties under s100(8) or4. S103D: making an order after considering the report of the DC

• No appeal against the any other decision or order of the DB• No judicial review is allowed against any decision made by the board

• G• g

AMENDMENT OF DISCIPLINARRY PROCEEDDING

• S76 LPA 19761) new subsection (2) replaces old. Subsection provide that unless necessary

to give effect to any resolution passed or decision taken, secrecy should be maintained by the QB, the Bar Council, the State Bar Committee, the DB, the dc and their staff in all proceeding or matters conducted by each of these organs

2) New subsection (3) protect members of these same organs and their staff who are involved in any proceeding ormatters conducted by them from being compelled to disclose to any court any information concerning such proceeding or matters