Darshan Singh Khaira v Majlis Peguam Malaysia (02(f)-72-09/2019(W))

(a) that the appellant had advised the complainant on the appeal 6 procedure from the Magistrate’s Court to the High Court and from the High Court to the Court of Appeal; and

(b) that the appellant had procured legal fees and disbursement from the complainant in his professional capacity as a practicing advocate and solicitor, as can be seen from the receipts dated 6 August 2007, 18 August 2007 and 14 February 2008. [8] The High Court went on to hold (at para 24): “[24] In the present case, when the appellant was adjudged a bankrupt on 22,8.2007, his practicing certificate was automatically suspended and he cannot practice without the consent of the Bar Council. Therefore, based on the evidence before the DC and the admission of the appellant himself that he had advised the Complainant on the appeal process when he did not hold a valid practicing certificate, the appellant had acted against section 29(2)(a) of the LPA

1976.” [9] Now, the appellant also argued that as a lay person, there was nothing wrong for him to give legal advice and also that merely advising a party is not practicing law. This contention by the appellant was, however, not accepted by the High Court. Relying on the Australian case of Legal Services Commissioner v Walter [2011] QSC 132 (“Walter”), the High Court held that 7 based on the evidence, all the acts of the appellant can be said to lie at or near the very centre of the practice of law, and hence amount to practicing law. Added to that was the fact that the appellant was paid for the legal services that he had rendered. [10] On appeal to the Court of Appeal, the appellant raised, among others, the same issue in that the mere giving of legal advice cannot amount to practicing law. The Court of Appeal, however, relied on Walter’s case, and held that the appellant was giving legal advice for reward although he himself did not receive the fees. The following is how the Court put it: “[18] As found by the learned High Court Judge, the appellant had admitted that the "yuran guaman dated 18.8.2007 and 6,8.2007" were payment for the drafting of the written submission in the Magistrates' Court, while the receipt dated 4.3.2011 was for the outstanding fees for the High Court matter. This shows that the appellant was giving legal advice for reward and this can be said "to lie at or near the very centre of the practice of law" and hence amount to practising law. Although we agree that mere giving of advice would not tantamount to practising law, but the giving of advice for fees or reward would definitely bring to that conclusion.” 8 [11] Needless to add, the appellant again failed on this issue and his appeal was accordingly dismissed. The Instant Appeal [12] Seemingly undeterred, the appellant successfully obtained leave to appeal to this Court. The issue for our determination, following from the single leave question, was whether the giving of advice to a client of a law firm amounts to practicing as a lawyer. Allied to this issue, as raised by the respondent, is also the question of whether payment is necessary before the giving of advice becomes legal practice. If that is indeed the case, an issue which must follow is whether payment must be received by the person giving the assistance, before that assistance becomes legal advice. [13] Now, it must be noted at the outset that an undischarged bankrupt cannot practice law without the consent of the Bar Council. This is provided under s. 29(2)(b) of the Legal Profession Act 1976 (“LPA 1976”) which reads: “Advocate and solicitor to make declaration yearly.

(1) ….. 9

(a)….

(b) where an advocate and solicitor is adjudicated a bankrupt or a receiving order is made against him, the practising certificate, if any, of that advocate and solicitor shall be suspended forthwith, until the consent of the Bar Council to reinstate it is obtained.” [14] It must follow that when the appellant was adjudged a bankrupt on 22 August 2007, his practising certificate was automatically suspended and he could not practice without the consent of the Bar Council. The evidence before the DC, however, disclosed that the appellant had given legal advice to the complainant when he did not have a valid practicing certificate. He had also procured legal fees and disbursements from the complainant as evidenced by the receipts issued. By his own admissions to the DB, he would have ex hypothesi acted in breach of s. 29(2)(b) of the LPA 1976. [15] As he had done before the courts below, the appellant maintained before us that as a lay person, there was nothing wrong for him to give legal advice. Any lay person could give legal advice and assist a litigant. In short, he argued that merely advising a party is not practicing law. He also claimed 10 that he did not collect the legal fees for himself as they were paid to the legal firm of M/s Darshan Singh & Co for work done by him. [16] In order to contemplate upon these assertions by the appellant, it is pertinent to observe at the outset that there is no inherent right to practice law. It is only an advocate and solicitor who is given certain privileges which attach to his profession under Part IV of the LPA 1976. So, for example, under s. 35 of the LPA 1976, an advocate and solicitor has the exclusive right to appear and plead in all courts of justice. The only condition is that he/she must have his/her name on the Roll and have a valid practicing certificate. Any person who is not so qualified is deemed to be an “unauthorized person” (see s. 36 LPA 1976). So, an unauthorized person who acts as an advocate and solicitor commits an offence (see s. 37 LPA 1976). Section 38 of the LPA 1976, however, provides some exceptions to acting as an advocate and solicitor, for example, a full-time employee of the advocate and solicitor can draw up and prepare documents (see s. 38(1)(m)). [17] Although the LPA 1976 is instructive as to the types of conduct which are within the exclusive domain of advocates and solicitors, the statute does 11 not provide any determinative test as to what amounts to practicing as an advocate and solicitor in all other cases. We should also add, lest it is carried too far, that although the LPA 1976 itself describes these functions as the privilege of advocates and solicitors, implicit within the provisions is the need to protect the public against persons who, although being without the necessary qualifications and competence of an advocate and solicitor, may purport to provide such services which may clearly be outside their competence to the detriment of unsuspecting members of the public. The penalties that will be visited upon such “unauthorized persons” is testament of the policy reasons behind such protection. After all, an advocate and solicitor has the necessary educational qualifications and training and is required, as a prerequisite, to be of good character. Importantly as well, an advocate and solicitor will be subject to discipline if he/she falls short of the prescribed standards under the law. [18] Be that as it may, the present appeal presents quite a different state of circumstances. It is not about a lay person holding himself out to be an advocate and solicitor. The appellant here has become an unqualified person by virtue of being suspended from practice. He may have been fully 12 competent in going about his profession as an advocate and solicitor but he is prohibited from doing so by law when he became a bankrupt. [19] The appellant nevertheless contends that isolated acts of giving advice can never constitute practising law. Practising law, he says, requires a systematic, regular and continuous act. He submitted that isolated acts of advice do not require a practising certificate and cannot amount to professional misconduct. He is saying, in effect, as he is probably compelled to do, that he was not engaging in legal practice when he assisted the complainant. [20] With respect, we do not agree. In our view, even a single or isolated act can amount to acting as an advocate and solicitor. It is not so much a single or isolated piece of advice but rather whether the impugned act or acts is what a lawyer usually does in carrying out his functions and duties as an advocate and solicitor. [21] There are a dearth of precedents in this area of the law in Malaysia. The Australian courts, however, have had the opportunity to deal with such matters in some cases. In Cornall v Nagle [1995] 2 VR 188, JD Phillips J of the Supreme Court of Victoria endorsed the Sanderson test laid down in Re 13 Sanderson. Ex parte Law Institute of Victoria [1927] VLR 394, in which Cussen J set out the following practical test of whether a person has engaged in legal practice: "If a person does a thing usually done by a solicitor, and does it in such a way as to lead to the reasonable inference that he is a solicitor - if he combines professing to be a solicitor with action usually taken by a solicitor - I think he then does act as a solicitor". [22] The three ways in which a person could be said to be practising as a solicitor was summarized by the court as follows: “Based upon the foregoing, I conclude that a person who is neither admitted to practise nor enrolled as a barrister and solicitor may "act or practise as a solicitor" in any of the following ways:

(b) assisting parties to litigation in the preparation of cases for litigation;

(c) drafting court documents on behalf of parties to litigation;

(d) drafting legal correspondence on behalf of parties to litigation; and

(e) purporting to act as a party’s agent in at least one piece of litigation.” [25] On our part, we find no reason to think that the matters listed above are not matters which lie at the heart of the practice of law. So, in the present case, although being an “unauthorized person” as he was suspended from practice, the appellant not only actively advised the complainant on the procedures applicable in the Court of Appeal but also prepared the documents for the appellant to file in the Court of Appeal. The said advice and documents were directly relevant to the complainant’s rights and were tailored to meet the particular needs of the complainant (see Australian Competition & Consumer Commission v Murray [2002] FCA 1252). [26] In drafting and preparing the documents needed for the complainant’s appeal, the appellant provided a service which went beyond mechanical or 16 clerical tasks and was of a kind required to be performed by a solicitor as the knowledge of the layman in these matters would be wholly inadequate. In Legal Practice Board v Adams [2001] WASC 78, a case before the Supreme Court of Western Australia, the defendant faced a charge of contempt for acting as a solicitor when he was not a duly certified legal practitioner. He had drawn up various documents relating to legal practice. His defence was that he was acting more in a clerical capacity than as a solicitor. [27] In coming to his decision, Hasluck J accepted that the practice of law “includes the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not then or ever be the subject of proceedings in a court”. [28] In finding the defendant guilty of contempt, Hasluck J observed: “If the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the person giving such advice possess legal skill and a knowledge of the law 17 greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitutes the practice of the law…[W]here an instrument is to be shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing laws in order to ensure a specific result and to guard against others, more than the knowledge of the layman is required. A charge for such service brings it definitely within the term ‘practice of the law’.” [29] In the circumstances, we did not think, as the appellant had asserted, that he was merely giving legal advice and assisting the litigant as any lay person would. By actively advising the complainant on his appeal and preparing the necessary documents, the appellant was plainly doing something which is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor. The legal advice and the documents to be prepared required the expertise of a legally trained mind. Although legal clerks also prepare such documents, they do so with the supervision and approval of the solicitor. [30] Put simply, the appellant was doing, as the evidence disclosed, what a lawyer does when a client comes for advice and it was intended for the complainant to act on the legal advice provided. In our view, there existed quite plainly a relationship of confidence and trust between the appellant and 18 the complainant which is an essential of legal practice (see New York County Lawyers Association v Dacey, 28 A.D. 2d 161 (1967)). It was not a case where some legal advice was given casually or informally and importantly, lacking the necessary setting and status of a solicitor dealing with a client. [31] For all the preceding reasons, we were in agreement that the courts below were justified in concluding that the appellant was involved in the practice of law. His conduct was in violation of the LPA 1976 as he was a bankrupt who had not obtained the consent of the Bar Council to practise law. [32] Now, that should be sufficient to dispose of this appeal. However, there is still outstanding an issue which was raised by the appellant which appeared to be accepted by the Court of Appeal. The appellant claimed that he did not collect the legal fees for himself as they were paid to the legal firm of M/s Darshan Singh & Co for work done. In other words, the non-collection of fees for himself, it was submitted, was decisive in establishing in his favour the issue of whether he was practicing law. Much of the confusion arose from the following conclusion by the Court of Appeal, as was set out earlier, and as reported in [2020] MLJU 339 at para [18]: 19 "…This shows that the appellant was giving legal advice for reward and this can be said "to lie at or near the very centre of the practice of law" and hence amount to practising law. Although we agree that mere giving of advice would not tantamount to practising law, but the giving of advice for fees or reward would definitely bring to that conclusion". [33] This passage suggests as asserted by learned counsel by the respondent that the mere giving of advice without reward cannot amount to practicing law. In other words, the giving of legal advice must be coupled with receiving fees or reward before it can be said that one is practicing law. [34] We must say at once that if that was what was intended by that passage, it was most unfortunate and is certainly not an acceptable proposition of law. To be fair, some of the confusion may have arisen because of the reference to “reward” in some of the precedents referred to by the Court of Appeal which we will deal with shortly. In our judgment, the more reasonable proposition is that any payment or receipt of fees or reward is not a pre-requisite to a finding that a person has engaged in legal practice. However, if such fees or reward is received, then it is more likely that a person may be deemed to have been practicing law. 20 [35] If this was not the case, it would turn out to be quite a remarkable circumstance for a lawyer following from his suspension as an advocate and solicitor to continue to advise clients and even appear in court on their behalf with the excuse that he cannot be said to be practising law because he is acting pro bono or without reward. In our respectful view, any such solicitor, if he/she had acted as such, would be in breach of the LPA 1967. [36] Now, the Court of Appeal was very much influenced by a passage purportedly in Walter’s case, supra, where it was observed that the giving of legal advice, at least as part of a course of conduct and for reward, can properly be said to lie at or near the very centre of the practice of law. With respect, this passage ought to be attributed to JD Phillips J’s pronouncement in Cornall v Nagle, supra. Be that as it may, Daubney J in Walter’s case clarified the position as follows: “[21] In short, the fact that a person is engaged in the business of providing legal services is indicative of that person practising law, but a person may be practising law without being in business. It is clear, for example, that an Australian legal practitioner can exercise the profession of law for clients without any entitlement to or expectation of reward or remuneration from those clients. But an Australian legal practitioner who habitually acts pro bono for needy clients can hardly be said to be not engaged in legal practice 21 because he or she provides professional legal services without reward from those clients.” [37] Returning to the instant appeal, and in view of what we have observed, it must follow that it would not make any difference if the appellant did not receive payment for the work done. As we had pointed out, giving legal advice for reward is not a pre-requisite for a finding of practicing law. In any case, as it turned out, the services provided by the appellant were not without payment. Payment was indeed made to the firm of M/s Darshan Singh & Co by the complainant. So, for the reasons we have mentioned, the appellant’s arguments in this context were without merit. [38] Finally, we come to the issue of whether the punishment of being struck off the Roll was disproportionate to the conduct of the appellant. The appellant claimed it was harsh and totally disproportionate. He had not raised this issue in the courts below and we did not therefore have the benefit of a prior consideration of this issue before us. At any rate, we did not consider the punishment to be disproportionate. The appellant was certainly guilty of serious misconduct when he continued to practice law when he knew he was disqualified from doing so. So, we think the punishment was justified. 22 [39] Be that as it may, it is pertinent to observe that the punishment of being struck off the Roll may not mean the end of a career as an advocate and solicitor. An advocate and solicitor who has been struck off can apply for reinstatement under s. 107 of the LPA 1967. He/she will have to satisfy the Court that it would be fair and reasonable to restore the said advocate and solicitor to the Roll based on the criteria settled in decided cases (see Charan Jit Singh a/l Santokh Singh v Majlis Peguam Malaysia & Anor [2013] 9 MLJ 400; Teoh Hooi Leong v Bar Council, Malaysia [1991] 2 MLJ 190; Chan Chow Wang v Malaysian Bar [1986] 2 MLJ 159; and Thavananthan a/l Balasubramaniam v Majlis Peguam [2010] 3 MLJ 316). Conclusion [40] In conclusion, and for the reasons mentioned, we did not find any merit in the issues raised by the appellant. The Courts below were entitled to come to the findings on the core issues as they did subject to our observations as expressed in paragraphs [32] to [37] above. On the question of law posed before us, we considered that it would require this Court to demarcate or define the nature of legal advice which would constitute “practicing law”. Although we have endeavored to set out the law in relation to the leave 23 question but, as the cases show, a lot depends upon the contextual facts and circumstances. We therefore decline to answer the question. [41] In the circumstances, the appeal is dismissed with no order as to costs. The orders made by the Courts below are hereby affirmed. Dated: 13 August 2021 Signed (HARMINDAR SINGH DHALIWAL) Judge Federal Court of Malaysia Counsel/Solicitors: For the Appellant: Darshan Singh Khaira (Acting in person) For the Respondent: Oh Teik Keng (M/s Oh Teik Keng & Partners)