DUTIES OF LAWYERS [LEGAL PROFESSION (PRACTICE AND ETIQUETTE) RULES 1978]

Cab Rank rule: duty to accept a task by client at first instance

Duties to Clients

Rule 3 Duty not to accept brief if embarrassed:

a. Where he finds that he possesses confidential information as a result of

having previously advised another person in regard to the same matter.
- Karamjit Singh a/l Sarup Singh & Ors v Kirat Singh Sandhu a/l
Mancharanjit Singh & Ors [2021] MLJU 160: the court held that
the learned counsel for the plaintif has breached Rule 3 of the
Legal Profession (Practice and Etiquettes) Rules 1978 as he
admitted that he was in contact with an opponent party and the
opponent party has revealed certain things to him and as a result of
that revelation, the Learned Counsel for the 1st and 2nd
Defendants has intimated to the Court, he may now be a possible
witness for the Defendants because of the discussions that he
admitted took place.

b. Where he has a personal relationship with a party or witness in the

proceedings.
- AG v Arthur Lee Meng Kuang: The court found the advocate to
be in breach of Rule 3 by failing to disclose the fact that his family
company are purchasers of 21⁄2 lots of space in the building which
formed the subject matter of the suit. Thus, there was clearly a
conflict of interest when the advocate appeared as counsel for the
respondents both in the High Court and in the appeal.
- Tunku Moksin v Bukit Barisan Sdn Bhd: The subject matter of
the suit was a resolution reached at an EGM of the respondent
company. The court barred Dato’ Manjit Singh or his firm from
representing the respondents, as not only was he the Chairman of
the said EGM who had access to all crucial information, he also
held the proxy of the third respondent to vote.

Rule 4 Duty not to accept brief if professional conduct is likely to be impugned

- ‘Impugned’: Attack by argument or criticism, oppose or challenge
as false or questionable
- Where the lawyer is of the view that his professional conduct would
be criticised

Rule 5 Duty not to accept brief if difficult to maintain professional independence

- AG v Arthur Lee Meng Kuang: The advocate in this case, through
a letter, accused the Supreme Court of injustice. He implied that the
 court was biassed in allowing the appeal by alleging that it only
gave consideration to the submission made by counsel for the
appellants but not that of the respondents. Such conduct was
evidence of his inability to maintain his professional independence.
His personal interest was overwhelming in that the underlying
purpose of the criticism was to influence the court to reverse its
decision in favour of the respondents who are his clients.

Rule 8 Duty not to ask to be excused from his assignment and to always exert his
best effort in that assignment.

Performance in court

Rule 6 (a) An advocate and solicitor shall not accept any brief unless he is
reasonably certain of being able to appear and represent the client on the
required day
- Dato’ Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor and
other appeals (No 4) [2022] 5 MLJ 159 : where counsel has
accepted a brief, he should be deemed as ‘reasonably certain of
being able to appear and represent the client on the required day’.
The 1978 Rules also appear to recognise the general disposition of
the courts in this country to disfavour adjournments unless cogent
reasons are provided. The general rule is that counsel shall make
every effort to be ready for trial (and we think by extension appeals)
on the day fixed

Rule 6(b) An advocate and solicitor shall not ordinarily withdraw from an
engagement once accepted, without sufficient cause and unless
reasonable and sufficient notice is given to the client

Rule 24 Duty to be ready for the day fixed for trial

- An application for a postponement can only be made for good and
cogent reasons.
- Go Pak Hoong Tractor and Building Construction v Syarikat
Pasir Perdana: Defendant and his counsel failed to attend to the
court at the date of hearing although notice of trial has been served
earlier, defendant fell sick and counsel unable to book flight
passage. The court in refusing to grant an adjournment ruled that
the defendants’ solicitors had been notified of the date of trial as
early as 20th March, 1980. They should have booked the passage
earlier. Further, there was no proper medical report from the
defendant.

General conduct
Rule 16 Duty to uphold the interests of the client, justice and dignity of the
profession
- Tombling v Universal Bulb Co. Ltd: It is the duty of the counsel to
his client in a civil case or in defending an accused person to make
every honest endeavour to succeed.

Rule 25 Duty to disclose all circumstances to a client of his relation to the parties,
and any interest in connection with the controversy, which may influence
the client in selection of counsel.
- Oriental Bank Bhd v Abdul Razak Rouse: The plaintiff applied for
an order for the defendant, an advocate and solicitor, to within 14
days register a charge in favour of the plaintiff against two pieces of
land. The defendant failed to register the charge for the reason that
he also acted for the borrower, which he failed to disclose to the
plaintiff. Held: The defendant had breached the undertaking he
gave to the plaintiff in his professional capacity.

Rule 28 Advocate and solicitor not to appear in a case where he is a witness.

- Panetra Parking Services Sdn Bhd (alleged as the minority
shareholder of Platinum Parking Sdn Bhd and bringing this action
on behalf and for the priority of Platinum Parking Sdn Bhd) & Ors v
TTDI Harta Sdn Bhd [2021] 11 MLJ 302
- The court held that the defendant's solicitor is indeed the witness
required in this relating matter thus, shall not representing the
defendant.

Rule 35 Duty not to abuse confidence given to him by client

- Sec. 126, Evidence Act = A counsel shall not disclose any information
related to his client without the client’s consent.
- Rakusen v Ellis, Munday & Clarke = There is no general rule that a
solicitor who has acted in a matter for one party shall not in any
circumstances subsequently act in the same matter for the opposing
party, but where there is a probability, or a danger, that the solicitor will
disclose to the opposing party confidential information which he has
obtained from his original client while acting for him, the court will
restrain him from doing so through an injunction.

Duties to the Profession

Rule 44 Duty not to actively carry on any trade which is declared by Bar Council as
unsuitable and not to be a full time salaried employee of any person,
corporation, firm other than his own as long as he continues to practice.
- Chee Kuat Lin v Majlis Peguam [2012] = The appellant knowingly
 breached section 30(1)(c) of the LPA and Rule 44(b) of the Legal
Profession (Practice & Etiquette) Rules 1978 (the said Rules) by
practicing as an advocate and solicitor when at all material times the
appellant was ‘gainfully employed’ as a police officer with the Royal
Malaysian Police.

Rule 51 Duty not to do or cause touting

- Rhina Bhar v Koid Hong Keat = The parties entered into an oral
agreement in which it was agreed that the respondent would be paid
10% commission for each case referred to the appellant. However, the
appellant failed to make such payment. The respondent could not
successfully make a claim for the payment as the remedy sought was
based on the breach of an illegal contract. Subsequently, the
Disciplinary Committee found that a disciplinary action should be taken
against the appellant for touting and she was suspended from practice
for 3 months. The court affirmed the suspension as from the evidence
adduced, the agreement was found to be in breach of the Rules and the
appellant was therefore guilty of misconduct under the LPA.
ADMISSION AS ADVOCATE & SOLICITOR (LPQB)

Bil Sections (LPA) Matters

Sec 3 Definition of advocate & solicitor

1. Sec. 4 Establishment of LPQB

2. Sec. 5 Funtions of the board:

a. Prescribed qualifications for admission of advocates and solicitor
b. Provide courses of instruction, training and instruction for
articled clerk
c. Provide examination for articled clerk
d. Decided any other qualifications other than in sec 3
e. Provide courses of instruction and examination for those who is
insufficient to be admitted.
f. Management and conduct of Bahasa Malaysia Qualifying
Examination (BMQE)

3. Sec. 6 Power of the board

a. To make any rules or regulations that is incidentals to the carry
out objects in this part and functions of the board.
b. Make rules for regulating the meeting and proceedings of the
board
c. Rules for taking and retaining of articled clerks & conduct, duties
and responsibility of the parties
d. Regulating the manner in which artickled clerks serve their
period of articleship
e. Specifying the subjects in which articled clerks are required to
be proficient in
f. For the examination from time to time of articled clerks
g. For the exemption of articled clerk from courses of instruction of
from examination
h. Management and conduct and the exemption of articled clerks
from the BMQE
i. Prescribing the forms be used and fees to be paid under

4. Sec 7 Membership of Board

a. AG
b. 2 judges nominated by CJ
c. Chairman of BC
d. 1 full-time member of academic staff of a faculty of law.

4. Sec 10 Admission of advocates and solicitors

a. Qualified person
b. Articled clerk subjected to sec 25

5. Sec 11 Qualifications of admission

a. Attained 18 yrs old
 b. Good character
c. Federal citizen or permanent resident
d. Complete the period of pupilage in Malaysia

6. Sec 12 Period of pupilage

a. 9 months

7. Sec 13 Exemption from period and qualification pupilage

a. The master must be 7 yers in practise
b. May undergoes pupilage with different masters
c. Exception to 9 months period:
i. Special circumstances
- Sec 13(1) requirements:
- Samantha Murthi v Attorney-General [1982]2 MLJ 126
: for the purpose of complying with section 13(1) of the
Legal Profession Act as to the period of pupillage, the
master of the petitioner must be firstly "an advocate and
solicitor" within the meaning of section 3, and secondly
he must be a person who had been in active practice in
Malaysia.
- Followed by Malaysian Bar v Mutang Tagal : the
petitioner’s master was not regarded as “advocate and
solicitor” under section 3 of LPA, hence the period of
pupillage served by the petitioner in Sarawak was not
valid and did not comply with sec 13(1).

Sec 15 Petition for admission with affidavit

- Sec 15(5) requires the petitioner to post the notice of his petition
at all High Courts for 3 months before the petitioner is admitted
and enrolled as advocate and solicitor
-
- ONG SIEW IM PAMELA v MAJLIS PEGUAM & ORS [1995] 4
MLJ 233, The petitioner had post on the Notice Boards of 14 out
of 15 High Courts in West Malaysia had been duly carried out in
accordance with Section 15(5) of the Act, save that in respect of
the High Court at Shah Alam, as at the date of hearing of this
application, the requisite notice had remained posted from
2.6.95 i.e. for a period of over one month, which is about two
months short of the three months requisite period of posting. As
such, compliance with Section 15(5) of the Act had been virtually
completed though not completely carried out by the Applicant.
- The Applicant had made this application on behalf of her
chambering–pupil, one Lau Chow Ong (the Petitioner) for
abridgment of the time of posting the notice on the Notice
Boards of all the High Courts in Malaya, as required under
Section 15(5) of the Legal Profession Act 1976 (the Act) stating
that the Petitioner has filed her petition for admission to the
 Malayan Bar; in particular, posting on the Notice Board of the
Shah Alam High Court.
- The court held, section 15(5) is crystal clear beyond
peradventure, not only that the notices shall be posted but also
that such notices shall continue to remain posted for the
stipulated period of three months. Hence,both the duty to give
notice and the period requirement is intended to be mandatory.
And, as this particular section is bereft of any express provision
for the court to abridge the period of posting, the court clearly
has no express or inherent powers to do so

8. Sec 18 Admission in special cases

- JUDE PHILOMEN BENNY v MAJLIS PEGUAM MALAYSIA &
ANOR [1997] 5 MLJ 306
- The applicant was a lawyer in Sinagapore who said to be
expert in shipping and admiralty law which applied to be
admitted as advocate and solicitor of the HC of Malaya
for the adhoc purposes.
- Malaysian Bar rejected as that field was that the
applicant had no special qualifications or experience of a
nature not available amongst advocates and solicitors in
Malaysia.
- The chairman of the Kuala Lumpur Bar Committee
contended that the issues raised in connection with the
civil suit were not difficult issues of marine insurance law
but were issues encountered regularly in marine
insurance which had already been dealt with and litigated
in Malaysia in a number of cases in which local
Malaysian counsel had appeared.
- Dismissed the application as In this case, the issues
raised in the civil suit were not novel or complex
issues which have not been dealt with before by
Malaysian lawyers. Further, the applicant had not
demonstrated his special qualifications and
experience relating to his advocacy skill as a trial
lawyer. Nor had he shown by means other than
affidavit evidence that he possessed the necessary
qualifications and experience to deserve admission
as an advocate and solicitor in Malaya.

Cases
1. Daljit Kaur a/p Grimale Singh lwn Majlis Peguam Malaysia [2019] 10 MLJ 823
- The Respondent already filed a caveat for the petitioner from being admitted to
the bar due to health problems which is schizo.
- However, the petitioner argued that she already recovered by tendering a letter
form KKM as well as a letter from the firm that she undergoes her pupilage that
affirm her health.
- Therefore the court held that she was fulfilling the requirements of
“qualified person” pursuant to Sec 10 and Sec 3 of LPA.

2. Akberdin Bin Hj Abdul kader & Anor v Majlis Peguam Malaysia [2001] 4 MLJ 381
- The first Plaintiff has only practised as advocates and solicitors for 3 months
before entering judiciary. On 2 June 1997, he resigned from the judiciary and
back to practise on 01.07.1997.
- The first Plaintif took the second Plaintif as his pupilage on 17.08.1998.
- Second Plaintif was admitted as adcvoates adn solicitors on 15.08.1999.
- However, on 26.08.1999, Malaysian Bar said that the first plaintiff was not entitled
to be master as he is not “active practice” since he joined the judiciary.
- The court held that requirement of “active practise” for master in Sec 13(1)
is to be meant as advocates and solicitors, not judiciary.
DISCIPLINARY BOARD

Establishment

● Section 93(1) of LPA: Disciplinary Board is established.

Composition

● Section 93(3): consists of –

○ Chairman of DB
■ Appointment: By Chief Judge
■ Term: 2 years
■ Qualification: Retired Judge of HC, COA, FC or persons qualified to be
Judge.

○ President of Malaysian Bar or any member of the Bar Council as representatives

○ 15 members of Malaysian Bar

■ Appointment: By Chief Judge
■ Term: 2 years
■ Qualification: not less than 10 years standing

● Section 94(4): Quorum of DB

○ 7 members
○ 1 from s 93(3)(a)
○ 1 from s 93(3)(b)
○ 5 from s 93(3)(c)

Powers of DB

● Section 93(2): Shall have the same power of BC before coming into force of this Part.
● Section 93(6): Power to make rules of DB quorum and regulate its procedure.
● Section 94(1): All advocates and solicitors and pupils shall be subject for the purposes
of all disciplinary actions to the control of the Disciplinary Board.
● Section 100: Power of DB to make the investigation of complaints
● Section 103: Power of DB to order fine

Disciplinary Committee

● Section 95: Establishment of Disciplinary Committee Panel under the Disciplinary

Committee.
● Section 96(1): Composition of DC Panel
○ Appoint from a list supplied by BC
○ 30 members (20 advocates and solicitors hv not less than 10 yrs standing, 10 lay
persons)
○ Can vary number of members of DC Panel with consult of BC.
 ● Section 96(2): Shall serve for 2 years, may extend but not exceeding another 2 years

Misconduct of Advocates and Solicitors

● Section 94(4): BC can apply to DB for an order to suspend from practice if adv & sol
committed acts under Section 94(4).
● Section 94(3): list of misconducts.

CASES:

1. Majlis Peguam Malaysia v Lim Yin Yin [2018] MLJU 986

The Respondent had withdrawn client’s money from the clients’ account in order to finance the
purchase of the family’s house. The client lodged a written complaint with Bar Council since the
balance purchase price under a sale and purchase agreement was not released within the
stipulated period. The DB then made the decision to strike the respondent off the Roll for the
breach of the undertaking and stakeholding by the respondent amounted to grave impropriety
and the respondent was guilty of misconduct within the meaning of Section 94(3) of the Legal
Profession Act 1976.

2. Majlis Peguam Malaysia v Hari Krishnan a/l Jeyapalan [2017] 1 MLJ 770
Facts: The complainant had appointed the respondent to recover a sum of RM59,000. Ariasamy
(debtor) had made payments to the respondent but the last three cheques issued by the
respondent to the complainant were dishonoured and two of the cheques were drawn on the
respondent’s client’s account. The Respondent was guilty of misconduct under Section 94(3)(c)
for the offence of dishonest or fraudulent conduct in the discharge of his duties, Section
94(3)(n) for the offence of gross disregard of his client’s interests, and Section 94(3)(i) for the
offence of allowing any unauthorised person to carry on legal business in his name without his
direct and immediate control as principal or without proper supervision. The Respondent was
struck off the Roll.

3. Rosli bin Kamaruddin v How Hock Sing @ Low Kim Chwee, Majlis Peguam
Malaysia [2018] MLJU 1559
The 1st Respondent lodged two complaints with the Disciplinary Board against the Appellant to
carry out the respondent’s instructions and failure to comply with ‘unless order’, resulted in
striking out. The respondent is liable for misconduct under Section 94(3)(n) of the LPA for gross
disregard of the Respondent’s interest. The court held that the Appellant is not liable for
misconduct as the appellant has withdrawn the second complaint against the appellant during
the inquiry. Also, the threshold before filing the application for injunction has failed to be
complied with as there were shortcomings in the documentary proof hence the appellant failed
to file for an injunction.

4. Oh Keh Keong v Lembaga Tatatertib Peguam-Peguam [2020]

The Applicant was found guilty under Section 94(3)(c) for dishonest & fraudulent conduct when
the Applicant amended or altered terms of the SPA without the knowledge and consent of the
Complainant.
 5. Koh Mui Tee v Chin Lee & Ors
The Appellant was found guilty under Section 94(3)(m) for the offence of charging excessively
in the absence of written agreement when the Appellant asked the Complainant to pay legal
fees amounting to 25% while the contingency fee was left blank during the signing of the letter
of appointment by the client .

6. Dinesh Kanavaji a/l Kanawagi & Anor v Ragumaren a/l N Gopal (Majlis Peguam
(Intervener)) [2018]

The court ruled that the DC was correct and the Appellants are guilty under Section 94(3)(o) for
gross disregard of client’s interest for failure to dissipate the trust fund of compensation money
that was supposed to be received by several orang asli that the Appellants had represented.

7. Murali Chan P.E. Achan v Majlis Peguam Malaysia [2022]

The Appellant was found guilty under Section 94(3)(c) as he misled the Complainant on the
status of the legal action & was struck off the Roll. However, the application for restoring his role
was allowed as there is honest regret and repentance by the Appellant.

8. Reventharen Suppiah v Majlis Peguam Malaysia [2022]

The Appellant was found guilty under Section 94(3)(c) as he failed to release BPP to the
vendor of RM247,500 and was struck off from the Roll.

9. Dato’ Kanalingam a/l Veluppillai v Majlis Peguam Malaysia [2022]

The Appellant was found guilty under Section 94(3)(a) for conduct unbefitting which brings or
calculated to bring disrepute as the Appellant was captured in a video on an online news portal,
Malaysiakini discussing and alluding to a form of brokering of judicial appointments to place
judges at a convenient level. The DB ordered the Appellant to be struck off the Roll.

10. Suhaimi Mat Daud v PP [2011]

The Respondent was found guilty under Section 94(3)(a) for criminal breach of trust as the
Respondent failed to hand over the balance of the purchase price to the vendor while acting for
the vendor. The Respondent was sentenced to 6 years of imprisonment.

POWER TO REINSTATE LAWYER’S NAME IN THE ROLL

- Sec 107 of LPA : High Court may restore an advocate and solicitor (fair and reasonable
test)
- Teoh Hooi Leong v Bar Council Malaysia [1991] 2 MLJ 190: the word ‘fair’ must
necessarily mean that the decision must be fair to the members of the public, to court
and last but not least to the advocate and solicitor concerned. To be reasonable the
Supreme Court further stated that the decision must be based on reasonable grounds
and be supported by cogent evidence and not one based on conjecture or speculation.
- Teoh Hooi Leong v Bar Council Malaysia [1991] 2 MLJ 190: The court should not
however forget that once removed from the roll it must not be construed that the door is
 shut forever to the lawyer. A conviction should not be regarded in every case as a
permanent unfitness. Disbarment is not necessarily intended to be permanent but that a
heavy burden lay upon an applicant to show that he is now a fit and proper person to
have his name restored to the roll.
- Che Man bin Che Mud v Majlis Peguam Malaysia [2022] 8 MLJ 961: the plaintiff has
been struck off the roll for committing grave misconduct under ss 94(3)(c), (d) and (o) of
the Legal Profession Act 1976 (‘the LPA’), the plaintiff applied for his name to be restored
to the roll of advocates and solicitors pursuant to s 107 of the LPA (‘the plaintiff’s
application’). The crux of the Bar Council’s objection against the plaintiff’s application
was premised on a suit filed by the plaintiff in 2017 (‘the 2017 Suit’) against the Bar
Council, the Disciplinary Board (‘the DB’) and two members of the DC.
- Held: This court is of the considered view that the 2017 Suit cannot be taken as a fact or
proof or indication that the plaintiff has no remorse and has not repented. The plaintiff
has also settled his debt and was discharged from bankruptcy before his application for
reinstatement. he plaintiff is fit and proper person to be re-admitted to the roll and to be
able to practice again
- Chan Chow Wang v Malaysian Bar [1986] 2 MLJ 159 : The onus is therefore on the
plaintiff to show that (a) there has been such a change in his character as to make him a
fit and proper person to resume practice at the Bar; (b) he is truly penitent; and (c) he
has made restitution.