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/akn/my/act/act/1976/166
*LEGAL PROFESSION ACT 1976
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- 1976
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- 2026
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About this act
*LEGAL PROFESSION ACT 1976 is Malaysia Act, cited as Act 166 1976, currently marked in force and first recorded in 1976.
Opening note
Preamble
- An Act to consolidate the law relating to the legal profession in Malaysia. [Peninsular Malaysia—1 June 1977, P.U. (B) 327/1977] BE IT ENACTED by the Seri Paduka Baginda Yang di-Pertuan Agong with the advice and consent of the Dewan Negara and Dewan Rakyat in Parliament assembled, and by the authority of the same, as follows:
Part I
PART I
Section 1
(2)
The Minister may appoint different dates for the coming into operation of the different parts or provisions of this Act and different dates may be appointed for the coming into operation of this Act in
Peninsular Malaysia, Sabah and Sarawak.
Application
Section 2
This Act shall apply throughout Malaysia but shall only be made applicable to Sabah and Sarawak with such modifications as the Yang di-Pertuan Agong may by order make; and such Order shall be published in the Gazette.
14 Laws of Malaysia ACT 166
Section 3
Interpretation
“advocate and solicitor”, and “solicitor” where the context requires means an advocate and solicitor of the High Court admitted and enrolled under this Act or under any written law prior to the coming into operation of this Act;
“articled clerk” has the meaning assigned to it in section 20;
“Bahasa Malaysia Qualifying Examination” means an examination conducted by the Board or other persons appointed by the Board for that purpose;
“Bar Council” and “Council” mean the central council of the
Malaysian Bar established under section 47;
“Bar Committee” means a Bar Committee elected under section 70;
“the Board” means the Legal Profession Qualifying Board established under section 4;
“client” includes—
(a)
in relation to contentious business, any person who as a principal or on behalf of another person retains or employs, an advocate and solicitor, and any person who is or may be liable to pay a solicitor’s costs;
(b)
in relation to non-contentious business, any person, who as a principal or on behalf of another, or as a trustee, executor or administrator, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, an advocate and solicitor, and any person for the time being liable to pay an advocate and solicitor for his service and costs;
“Compensation Fund” and “the Fund” mean the fund maintained and administered in accordance with section 80;
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“contentious business” means business done by an advocate and solicitor, in or for the purpose of proceedings begun before a court of justice, tribunal, board, commission, council, statutory body or an arbitrator;
“costs” includes fees, charges, disbursements, expenses and remuneration;
“Court” means the High Court or a Judge thereof when sitting in open
Court, and “Judge” means a Judge of the High Court sitting in Chambers;
“Faculty of Law” means the Faculty of Law of a University established under the Universities and University Colleges Act 1971
[Act 30], the Faculty of Law of the Universiti Teknologi MARA established under the Universiti Teknologi MARA Act 1976 [Act 173]
and the Kuliyyah of Law of the International Islamic University of
Malaysia established pursuant to the Companies Act 1965 [Act 125];
“legal officer” means a qualified person in the judicial and legal service;
“Malaysian Bar” and “Bar” means the body corporate established under section 41;
“Minister” means the Minister responsible for law;
“the Ordinance” means the Advocates and Solicitors Ordinance 1947
[M.U. 4 of 1947];
“pleader” means a pleader entitled to practise at the date of coming into operation of this Act;
“practising certificate” means a certificate issued by the Registrar under section 29;
“qualified person” means any person who—
NOTE—The Companies Act 1965 [Act 125] has since been repealed by the Companies Act 2016
[Act 777] w.e.f. 31 January 2017–see subsection 620(1) of Act 777.
16 Laws of Malaysia ACT 166
(a)
has passed the final examination leading to the degree of
Bachelor of Laws of the University of Malaya, the
University of Malaya in Singapore, the University of
Singapore or the National University of Singapore;
(c)
is in possession of such other qualification as may by notification in the Gazette be declared by the Board to be sufficient to make a person a qualified person for the purposes of this Act;
“Register of Practitioners” means the annual register kept by the
Registrar under section 31;
“Registrar” means the Registrar of the High Court and includes a
Deputy Registrar, Senior Assistant Registrar and an Assistant Registrar;
“Roll” means the Roll of advocates and solicitors of the High Court kept by the Registrar under section 28;
“Rules Committee” means the Rules Committee constituted under any written law and empowered to make rules regulating the procedure in the High Court;
“Sijil Annual” means the certificate issued by the Council under section 32;
“Solicitors Costs Committee” means the Solicitors Costs Committee constituted under section 113.
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Part II
PART II
LEGAL PROFESSION QUALIFYING BOARD
Section 4
There is established a body to be called the Legal Profession
Qualifying Board.
Section 5
Functions of Board
The Board shall have the following functions:
(a)
to prescribe the qualifications required for the entry of any person into articles with a view to his admission as an advocate and solicitor;
(b)
to provide courses of instruction for, and to regulate the training and instruction of, articled clerks;
(c)
to provide for the examination of articled clerks wishing to become qualified persons;
(d)
to decide on the qualifications, if any, other than those set out in paragraphs (a) and (b) of the definition of “qualified person” in section 3, which may entitle a person to become a qualified person for the purposes of this Act;
(e)
to provide courses of instruction for, and for the examination of, persons whose qualifications are not sufficient to make them qualified persons for the purposes of this Act except after undergoing the courses and passing the examination;
(f)
to provide for the management and conduct of the Bahasa
Malaysia Qualifying Examination.
NOTE—see subsections 4(2) –
(4)
of the Legal Profession (Amendment) Act 2006 [Act A1269].
18 Laws of Malaysia ACT 166
General power of Board and power to make rules
Section 6
(2)
Without prejudice to the generality of subsection (1) but subject to this Part, the Board may in particular make rules—
(b)
for the taking and retaining of articled clerks by principals and for the conduct, duties and responsibilities of the parties;
(c)
for regulating the manner in which articled clerks serve their period of articleship;
(d)
specifying the subjects in which articled clerks are required to be proficient in;
(f)
for the exemption of articled clerks from courses of instruction or from examination;
(g)
for the appointment of lecturers and examiners and for the payment of fees to them;
(h)
for the management and conduct of, and the exemption of certain categories of qualified persons and articled clerks from, the Bahasa Malaysia Qualifying Examination;
(i)
for prescribing the forms to be used and the fees to be paid under this Part.
Section 7
The Board shall consist of—
(d)
a full-time member of the academic staff of a Faculty of Law nominated by the Minister of Higher Education.
Election of acting Chairman
Section 8
(3)
The Board shall appoint such officers as it considers necessary and shall have power to pay remuneration to its employees.
Meetings of Board and quorum
Section 9
(3)
Each member of the Board shall have one vote and where there is an equality of votes, the Chairman of the meeting shall have a casting vote.
20 Laws of Malaysia ACT 166
Qualified Persons
Admission of advocates and solicitors
Section 10
The High Court may at its discretion and subject to this Act admit as an advocate and solicitor of the High Court—
(b)
any articled clerk who has complied with section 25:
Provided that no person who is a qualified person by reason of his having passed the final examination for the degree or other qualification which makes him a qualified person under paragraph (a),
(b)
or (c) of the definition of “qualified person” in section 3 shall be admitted as an advocate and solicitor before the degree or other qualification has been conferred upon him.
Qualifications for admission
Section 11
(i)
has not been convicted in Malaysia or elsewhere of a criminal offence as would render him unfit to be a member of his profession, and in particular, but not limited to, an offence involving fraud or dishonesty;
(ii)
has not been adjudicated bankrupt and has not been found guilty of any of the acts or omissions mentioned in paragraph 33(6)(a), (b), (c), (e), (f), (h), (k) or (l) of the Bankruptcy Act 1967 [Act 360];
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(iii)
has not done any other act which, if being a barrister or solicitor in England, would render him liable to be disbarred, disqualified or suspended from practice; or
(iv)
has not been, or is not liable to be, disbarred, disqualified or suspended in his capacity as a legal practitioner in any other country;
(d)
has satisfactorily served in Malaysia the prescribed period of pupillage for qualified persons.
(2)
As from the 1 January 1984, no qualified person shall be admitted as an advocate and solicitor unless, in addition to satisfying the requirements of subsection (1), he has passed or is exempted from the Bahasa Malaysia Qualifying Examination.
Period of pupillage of qualified person
Section 12
(2)
A qualified person shall, before he is admitted as an advocate and solicitor, serve a period of pupillage and, subject to this section and section 13, the prescribed period of pupillage shall be nine months.
(3)
No qualified person shall, without the special leave in writing of the Bar Council, hold any office or engage in any employment of any kind, whether full-time or otherwise, during his period of pupillage, but nothing in this subsection shall preclude a pupil from receiving remuneration from his master.
22 Laws of Malaysia ACT 166
Exemption from period and qualification for pupillage
Section 13
(2)
The Bar Council may allow a qualified person to serve different parts of his period of pupillage with different masters.
(3)
The Bar Council may, in its sole discretion, exempt a qualified person from any period up to six months’ pupillage upon application made to it supported by satisfactory evidence that—
(a)
there are special circumstances justifying a shortening of the period of pupillage; or
(b)
the applicant has for a period of not less than six months been a pupil or read in the chambers of a legal practitioner in active private practice, in the Commonwealth, of more than seven years’ standing; or
(d)
the applicant has been engaged in active practice as a legal practitioner by whatever name called in any part of the
Commonwealth for a period of not less than six months.
(4)
A qualified person who has served in the Judicial and Legal
Service for at least one year shall be exempted from serving any period of pupillage provided his application for admission as an advocate and solicitor is supported by a certificate from the Attorney General to the effect that he is a fit and proper person to be admitted as an advocate and solicitor.
(5)
(Deleted by Act A1444).
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Filing of admission petition and enquiries, etc.
Section 14
(2)
All the State Bar Committees (if more than one) in the States in which a person applying to be admitted pursuant to section 15 has served his pupillage, shall upon the person’s petition being set down for hearing make or cause to be made full inquiries into the character of the petitioner and the confidential report of the result of the inquiries shall be forwarded to the Chief Justice with such comments upon it as the Bar Council may consider necessary.
(3)
If any of the reports referred to in subsection (1) or subsection (2) is unfavourable to the petitioner the Chief Justice may, if he thinks fit, direct such report to be filed in Court and a copy thereof to be served on the petitioner and, subject to such directions as the
Court may give, such report shall be taken into consideration on the hearing of the petition.
(4)
All reports and communications under this section shall be absolutely privileged.
Petition for admission with affidavit
Section 15
(2)
An application for admission under this section shall be by a petition to the Court and verified by affidavit.
(3)
Every petitioner shall, not less than fourteen days before his petition is to be heard or such shorter period as the Court may allow, file an affidavit exhibiting—
24 Laws of Malaysia ACT 166
(a)
where applicable, true copies of any documentary evidence showing that he is a qualified person;
(c)
a certificate of diligence from his master with whom he served his pupillage in cases where he is required to serve a period of pupillage, or in the absence of such certificate any other evidence as the Court may require showing that he has served such pupillage with diligence;
(d)
where applicable, a certificate signed by the Secretary of the Board that the petitioner has attended the courses of instruction and passed the examinations, if any, required in his case under this Act;
(e)
where applicable, a certificate from his principal that he has satisfactorily served the appropriate period as an articled clerk;
(f)
true copies of any documentary evidence showing that he is either a Federal citizen or a permanent resident of
Malaysia; and
(g)
true copies of any documentary evidence that he has passed or is exempted from the Bahasa Malaysia Qualifying
Examination.
(4)
The petition, notice, affidavit and certificates referred to in this section shall be in the forms prescribed by the Board.
(5)
The petitioner shall file his petition at the Registrar’s Office at the Central Registry accompanied by notices intimating that he has so petitioned; such notices shall be posted and continue to be posted at all the High Courts for three months before the petitioner is admitted and enrolled as an advocate and solicitor.
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Filing of petition and objection
Section 16
(2)
If the Attorney General, the Bar Council or any State Bar
Committee intends to object to any petition, there shall be served on the petitioner and filed in the Registrar’s Office, not less than three clear days or any shorter period as the Court may allow before the date fixed for hearing the petition, a notice of objection which shall set out in brief terms the grounds of objection.
(3)
On a notice of objection being filed the petition shall be fixed for hearing within one month or as soon as may be before a Judge of the High Court.
(4)
The Attorney General, the Bar Council or the State Committee need not be represented at the hearing of any petition unless the
Attorney General, the Bar Council or the State Bar Committee, as the case may be, intends to object to that petition, but no order shall be made upon any petition unless the Court is satisfied that the petition, affidavit and true copies of each document have been duly served as required by subsection (1).
Entering of caveat against admission
Section 17
(2)
Every caveat under this section shall be entered in the
Registrar’s Office and shall contain the full name, occupation and address of the caveator, a brief statement of the grounds of his objection and an address for service.
(3)
If at any time after the admission and enrolment of any petitioner as an advocate and solicitor, it is shown to the satisfaction of the Court that any petition, affidavit, certificate or other document filed by a petitioner contains any statement which is false or misleading in substance or a suppression of any material fact the name of the petitioner may be removed from the Roll.
(4)
Where an advocate and solicitor has been removed from the
Roll pursuant to subsection (3), the Registrar shall upon any further petition for admission made by the same person bring this fact to the notice of the Court and the Court shall, in the absence of special circumstances refuse to grant such further petition.
Admission in special cases
Section 18
(a)
for the purpose of that particular case he has, in the opinion of the Court, special qualifications or experience of a nature not available amongst advocates and solicitors in Malaysia;
and
(2)
Any person applying to be admitted under this section shall do so by originating motion verified by his own affidavit, or that of the advocate and solicitor instructing him, stating the names of the parties
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and the brief particulars of the cause or matter in which the applicant intends to appear, and exhibiting in the affidavit the consent of the applicant to appear in the cause or matter; the originating motion and affidavit shall be served on the Attorney General, the Secretary of the
Bar Council and of the State Bar Committee in the State where such cause or matter is to be heard and the other party to the cause or matter;
at the time of such service the applicant shall pay one hundred ringgit each to the Secretary of the Bar Council and of the State Bar
Committee to cover their costs incurred in the application.
(3)
Before admitting a person under this section the Court shall have regard to the views of each of the persons served with the application.
(4)
The Registrar shall on payment of the prescribed fee, issue to every person admitted under this section a certificate to practise specifying in it the causes or matters in which he is permitted to appear;
and any person to whom a certificate to practise has been issued under this subsection shall for the purpose of his employment in such causes or matters be deemed to be a person to whom a certificate to practise has been issued under section 29.
(5)
The Registrar shall not enter upon the Roll but shall keep a separate roll for the names of persons admitted under this section.
(6)
In this section the words “cause or matter” include any interlocutory or appeal proceedings connected with any cause or matter.
Right of appeal by objectors
Section 19
The petitioner under section 15 and the applicant under section 18 and any one or more of the following namely—the Attorney
General, the Board, the Secretary of the Bar Council or the Secretary of any State Bar Committee objecting to any petition or to the making of any order on an originating motion pursuant to section 18 shall have a right of appeal to the Federal Court:
28 Laws of Malaysia ACT 166
Provided that a Judge who have made the order appealed from shall not be a member of the Federal Court.
Articled Clerks
Section 20
Qualification for articled clerks
(c)
has the necessary educational qualifications as may be prescribed by the Board.
(2)
For the purposes of this Part, a person who has entered into articles with an advocate and solicitor shall be known as an “articled clerk” and an advocate and solicitor who takes an articled clerk shall be known as a “principal”.
Conditions to be a principal and discharge of clerk
Section 21
(3)
No principal shall take or retain any articled clerk after he has ceased from active practice as an advocate and solicitor in Malaysia or while the articled clerk is employed by another advocate and solicitor.
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(4)
If any advocate and solicitor takes an articled clerk in contravention of this section the Board may of its own motion discharge the articles of the articled clerk upon such terms, including terms as to return of any premium, as the Board thinks fair and reasonable.
Discharge of clerk for unfitness
Section 22
If any allegation is made to the Board as to the unfitness of an articled clerk to be an advocate and solicitor, and the Board, after inquiring into that allegation is satisfied that the articled clerk is unfit to be an advocate and solicitor, the Board may of its own motion discharge the articles of that articled clerk upon such terms, including terms as to return of any premium, as the Board thinks fair and reasonable.
Section 23
Discharge of clerk generally
If the Board is satisfied on application made either by a principal or an articled clerk that the articles ought to be discharged, the Board may discharge the articles upon such terms, including terms as to return of any premium, as the Board thinks fair and reasonable.
Section 24
Period of articles and condition of articles
(3)
No articled clerk shall, without the special leave in writing of the Bar Council, hold any office or engage in any employment of any kind, whether full time or otherwise, during his articles but nothing in this subsection shall preclude an articled clerk from receiving remuneration from his principal.
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Condition of admission of articled clerk
Section 25
(b)
has attended such courses of instruction as may generally or specially be prescribed by the Board; and
(2)
As from the 1 January 1984, no articled clerk shall be admitted and enrolled as an advocate and solicitor unless, in addition to satisfying the requirements of subsection (1), he has passed or is exempted from the Bahasa Malaysia Qualifying Examination.
Reviews
Appeal from the decision of Board to Judge
Section 26
(2)
If the Board fails to determine any request within six weeks after it has been first submitted to it, the applicant may apply under this section as if the request had been determined adversely to him.
(3)
Every application under this section shall be made by summons in chambers on the petition of the appellant if he has filed a petition, otherwise by originating summons; the Judge hearing the application may in his discretion adjourn the application into open Court.
(4)
Every summons in chambers or originating summons, as the case may be, shall be supported by evidence on affidavit and shall be served together with the affidavit on the Board; such summons in
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chambers or originating summons shall not be heard before the expiry of twelve days after the date of service on the Board.
(5)
At or before the hearing of the application the Board may submit to the Judge a confidential report on the applicant; such report shall not be filed in Court but a copy thereof shall be furnished to the applicant.
(7)
At the hearing the Judge may dismiss the application or make any order under this Act as he considers fair and reasonable.
(8)
A Judge who is a member of the Board shall not hear any application under this section.
Hearing of Petitions and the Roll
Hearing by Judge, a member of Board
Section 27
A Judge who is a member of the Board shall not hear any petition for admission.
Section 28
Roll of advocates and solicitors
(2)
The name, with the date of admission, of every person admitted shall be entered upon the Roll in the order of admission.
(3)
Every person admitted as an advocate and solicitor shall pay the prescribed fee and the Registrar shall deliver to him an instrument of admission signed by the Chief Justice or the Judge who admitted the petitioner.
(4)
This section shall not apply to persons admitted under section 18.
32 Laws of Malaysia ACT 166
(5)
The Roll shall be open to inspection without payment by any person during office hours.
*PART IIA
SPECIAL PROVISIONS RELATING TO ADMISSION OF
ADVOCATES AND SOLICITORS
Attorney General’s power to issue Special Admission Certificates
Section 28A
(i)
is a qualified person; or
(ii)
is not a qualified person, but is in possession of a qualification which renders him eligible to practise as a barrister, or as a solicitor, or as an advocate and solicitor, or otherwise as a legal practitioner by whatever name called, or to be employed in a legal or judicial capacity in the service of any government, in any country, or in a part or division of any country, or in any territory or place, outside
Malaysia; and
(b)
has been practising as a barrister, or as a solicitor, or as an advocate and solicitor, or otherwise as a legal practitioner by whatever name called, or has been employed in a legal or judicial capacity by any government or by any authority, organization or body, constituted under any law, or has been sometimes so practising or sometimes so employed, wholly or partly within Malaysia or wholly or partly outside
Malaysia, for a period of, or for periods which amount in the aggregate to, not less than seven years.
*NOTE—This Part comes into force on 1 February 1999–see P.U. (B) 33/1999.
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(2)
Where the Attorney General issues a Special Admission
Certificate he shall specify therein the period for which the person issued with such Certificate shall be admitted as an advocate and solicitor.
(3)
A Special Admission Certificate shall be conclusive evidence that the requirements of paragraphs (1)(a) and (b) have been satisfied, and the validity of such Certificate shall not be reviewed or called in question in any court.
(4)
In subsection (1)—
“government” includes—
(i)
the Government of Malaysia;
(iii)
the government of any country, or of a part or division of any country, or of any territory or place, outside Malaysia;
and
“law” includes—
(i)
written law as defined in section 3 of the Interpretation Acts 1948 and 1967 [Act 388]; and
(ii)
the law of any country, or of a part or division of any country, or of any territory or place, outside Malaysia.
Admission and enrolment as an advocate and solicitor of a person issued with a Special Admission Certificate
Section 28B
(2)
A Judge hearing an application under subsection (1) shall, upon being satisfied as to the genuineness of the Special Admission
Certificate and the identity of the applicant, admit the applicant as an advocate and solicitor of the High Court for the period specified in the
Certificate; and a person so admitted as an advocate and solicitor shall be enrolled and given an instrument of admission under section 28.
(3)
The admission and enrolment of a person as an advocate and solicitor under subsection (2) shall not be reviewed or called in question in any court.
(4)
An advocate and solicitor admitted under subsection (2) shall be entitled to renew his admission from time to time upon presenting to the Registrar within a period of two months before the expiry of the period of admission or renewed admission, as the case may be, a
Certificate of Renewal issued by the Attorney General at the discretion of the Attorney General:
Provided that, with the leave of the Attorney General in writing, the
Certificate of Renewal may be presented to the Registrar at any time after the expiry of the period of admission or renewed admission, as the case may be.
(5)
A Certificate of Renewal issued under subsection (4) shall be for renewal of the admission or the renewed admission, as the case may be, for such period as may be specified in such Certificate, and the renewal under subsection (4) shall accordingly be for the period so specified.
(6)
The validity of a Certificate of Renewal issued under subsection (4) shall not be reviewed or called in question in any court.
(7)
Sections 10 to 19, both inclusive, shall not apply to the admission of a person as an advocate and solicitor under this Part, or to the renewal of the admission or the renewed admission, as the case may be, of such advocate and solicitor.
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Provisions as to Sijil Annual not to apply to an advocate and solicitor admitted under this Part
Section 28C
Sections 32 and 33, or any other provision of this Act relating to a Sijil Annual, shall not apply to an advocate and solicitor admitted under this Part.
Section 28D
Power of Attorney General to make orders
The Attorney General may, by order published in the Gazette, make such provision as he may deem necessary or expedient for giving effect to this Part or carrying out its purposes, and without prejudice to the generality of the foregoing, an order made under this section may provide for—
(a)
any supplemental, incidental or consequential matters in relation to this Part; and
(b)
the removal of any difficulty or anomaly whatsoever in any provision of this Act or in any other written law, or otherwise, that may be occasioned by any provision or provisions in this Part.
Provisions of this Part to prevail
Section 28E
The provisions of this Part or of any order made under this Part shall have effect notwithstanding anything to the contrary or inconsistent therewith contained in any provision of this Act other than this Part, or in any other written law, and the provisions of this Act
(other than this Part) or of any other written law shall be read—
(a)
mutatis mutandis with the provisions of this Part and of any order made under this Part; and
(b)
with all such modifications, adaptations, alterations or changes whatsoever as may be necessary to have the same to accord with the provisions of this Part and of any order made under this Part.
36 Laws of Malaysia ACT 166
Part III
PART III
PRACTISING CERTIFICATES
Advocate and solicitor to make declaration yearly
Section 29
(i)
his full name;
(ii)
the name under which he practises or the name of the advocates and solicitors or firm of advocates and solicitors employing him; and
(iii)
the principal and any other address or addresses at which he practises in Malaysia;
(b)
the last Sijil Annual or a true copy thereof, if any, issued to him by the Bar Council; and
(c)
the prescribed fee, and the Registrar shall on being satisfied that all the necessary documents are in order and that the firm name under which the advocate and solicitor is practising is on the register maintained under subsection 85(1) issue to the advocate and solicitor a practising certificate.
(2)
Subject to subsection (3), every practising certificate shall be signed by the Registrar and shall be valid from the date of issue to the end of the year:
Provided that—
(a)
where the name of an advocate and solicitor is removed from, or struck off, the Roll the practising certificate, if any, of that advocate and solicitor shall expire forthwith and the
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date of such expiration shall be entered by the Registrar on the Register of Practitioners;
(b)
where an advocate and solicitor is adjudicated 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.
(3)
Where an advocate and solicitor has duly complied with subsection (1) in the month of January of any year, the practising certificate issued to him in respect of that year shall be deemed to have been in operation from 1 January of that year.
(4)
In this section the word “year” shall mean the period from 1 January in any calendar year to 31 December in the same calendar year.
Disqualification for practising certificate
Section 30
(a)
unless he is practising or intends to practise either on his own account or in partnership in Malaysia; or
(b)
unless he is or is about to be employed full time in his practice in Malaysia by an advocate and solicitor or a firm of advocates and solicitors in practice in Malaysia; or
(c)
if he is gainfully employed by any other person, firm or body in a capacity other than as an advocate and solicitor.
(2)
For the purpose of this section a qualified person shall not be construed as being gainfully employed if he is serving in the Judicial and Legal Service.
38 Laws of Malaysia ACT 166
(3)
Any qualified person who is gainfully employed in accordance with paragraph (1)(c) shall surrender his practising certificate to the
Registrar.
Register of Practitioners
Section 31
(2)
If there is any change with respect to any advocate and solicitor in the particulars referred to in subsection (1) that advocate and solicitor shall within one month thereafter notify the Registrar and the
Bar Council, and the Registrar shall thereupon cause the entry to be made in respect of that advocate and solicitor in the Register of
Practitioners.
Issue of Sijil Annual
Section 32
(a)
the Bar Council is satisfied that the application complies with that subsection and any rules made under this section;
(b)
the Bar Council is satisfied that the applicant is not prohibited from holding a practising certificate under section 30;
(c)
the advocate and solicitor has delivered or is exempted from delivering an accountant’s report in accordance with section 79;
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(d)
the advocate and solicitor is not in arrears in respect of any contribution to the Compensation Fund, or of any subscription or levy lawfully due to the Bar Council or his
State Bar Committee under this Act; and
(2)
An application by an advocate and solicitor for a Sijil Annual shall be made in such form or forms as may be prescribed by and in accordance with rules made under this section and shall be accompanied by appropriate certificates showing that paragraph (1)(d)
has been complied with.
(3)
Disciplinary proceedings may be taken against any advocate and solicitor if in, or in relation to, an application under this section he makes a false statement material to the application.
(4)
Subject to this Act, the Bar Council may make rules regulating the issue of Sijil Annual.
(5)
Any rules made by the Bar Council under this section shall be signed by the Chairman of the Bar Council.
Issue of Sijil Annual in certain conditions
Section 33
(a)
after more than twelve months have elapsed since his admission and where he has held no valid practising certificate during that period;
(b)
who has held a practising certificate subject to terms and conditions at any time in the three years immediately preceding his application;
(c)
after more than twelve months have elapsed since he held a valid practising certificate;
40 Laws of Malaysia ACT 166
(d)
after the *Disciplinary Committee has ordered a penalty or costs to be paid by him;
(e)
when having been suspended from practice or having had his name removed from the Roll or struck off the Roll the period of suspension has expired or his name has been restored to the Roll, as the case may be;
(f)
whilst he is an undischarged bankrupt or a receiving order in bankruptcy is in force against him;
(g)
after having been adjudicated a bankrupt and obtained his discharge or after having entered into a composition with his creditors or a deed of arrangement for the benefit of his creditors;
(h)
after having had an order of committal or an order for the issue of a writ of attachment made against him.
(2)
In any of the circumstances mentioned in subsection (1), the applicant shall, unless a Judge or the Bar Council otherwise orders, give to the Bar Council not less than four weeks before his application for a Sijil Annual notice of his intention to apply therefor and the Bar
Council may in its discretion—
(b)
notify the applicant that he is required to make an application under section 34.
Applicant to apply to Court
Section 34
(2)
A Judge hearing an application under this section may make an order for the payment of costs by or to either the Bar Council or the applicant as he considers fair and reasonable.
Part IV
PART IV
PRIVILEGES OF ADVOCATES AND SOLICITORS
Right of advocate and solicitor
Section 35
(2)
Nothing herein contained shall affect the right which is hereby declared of—
(a)
legal officers, whose duties so require them to do, and qualified persons appointed temporarily to perform the duties of legal officers to appear and plead on behalf of the
Government in the Courts;
(b)
officers of the Public Trust Corporation, the Director
General of Insolvency, Deputy Director General of
Insolvency, Directors of Insolvency, Deputy Directors of
Insolvency, Senior Assistant Directors of Insolvency,
Assistant Directors of Insolvency and Insolvency Officers to appear and plead in the courts under any written law relating to such offices;
(ba) the Director General of Legal Aid or any person appointed to assist the Director General of Legal Aid under section 3
of the Legal Aid Act 1971 [Act 26] acting in the course of his duty; and
42 Laws of Malaysia ACT 166
(c)
existing pleaders.
Advocate and solicitor to have name on the Roll before practice
Section 36
(2)
A Judge may, upon application made in Chambers by a Master at the commencement of the pupillage of the Master’s pupil, make an order that the pupil be permitted to appear on behalf of the Master or of the firm in which the Master is practising—
(i)
before a Judge or a Registrar of the High Court, in
Chambers;
(iii)
before a Registrar of the Subordinate Courts, to mention a case, including entering judgment in default, or to apply for bail or to take a consent judgment or order; and
(b)
at the expiration of the said period of three months in chambers in the High Court and in the Subordinate Courts and before any Magistrate, to conduct any cause or matter.
(3)
The Judge shall make the order referred to in subsection (2) if he thinks it fair and reasonable to do so provided always that both the
Bar Council and the State Bar Committee have been served with the application and have had an opportunity to be heard on the application.
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(4)
The period of pupillage shall commence on the date of the filing of the petition referred to in subsection 15(5).
(5)
The Master of the pupil, the Bar Council or the State Bar
Committee may apply at any time during the pupillage of any pupil to any Judge in Chambers for a variation or rescission of the order referred to in subsection (2) and the Judge shall make such order on such application as in all the circumstances seems to be in the best interest of the profession.
(6)
Nothing in this section shall be construed to prevent a legal officer from performing any of his duties without holding a practising certificate or make a legal officer who has no valid practising certificate an unauthorized person.
No unauthorized person to act as advocate and solicitor
Section 37
(a)
acts as an advocate and solicitor or an agent for any party to proceedings or in any capacity, other than as a party to an action in which he is himself a party, sues out any writ, summons or process, or commences, carries on, solicits or defends any action, suit or other proceedings in the name of any other person in any of the Courts in Malaysia or draws or prepares any instrument relating to any proceedings in any such Courts; or
(b)
wilfully or falsely pretends to be, or takes or uses any name, title, addition or description implying that he is duly qualified or authorized to act as an advocate and solicitor, or that he is recognized by law as so qualified or authorized, shall be guilty of an offence and shall on conviction be liable to a fine not exceeding two thousand five hundred ringgit or to imprisonment for a term not exceeding six months or to both.
(2)
Without prejudice to the generality of subsections (1) and (2A), any unauthorized person who either directly or indirectly—
44 Laws of Malaysia ACT 166
(a)
draws or prepares any document or instrument relating to any immovable property or to any legal proceedings or to any trust; or
(b)
takes instructions for or draws or prepares any document on which to found or oppose a grant of probate or letters of administration; or
(c)
draws or prepares any document or instrument relating to the incorporation or formation of a limited company; or
(d)
on behalf of a claimant or person alleging himself to have a claim to a legal right writes, publishes or sends a letter or notice threatening legal proceedings other than a letter or notice that the matter will be handed to an advocate and solicitor for legal proceedings; or
(e)
solicits the right to negotiate, or negotiate in any way for the settlement of, or settles, any claim arising out of personal injury or death and founded upon a legal right or otherwise, shall, unless he proves that the act was not done for or in expectation of any fee, gain or reward, be guilty of an offence under this subsection.
(2A)
Any unauthorized person who does or solicits the right to do any act which is customarily within the function or responsibility of an advocate and solicitor, including but not limited to advising on law, whether Malaysian or otherwise, unless he proves that the act was not done for or in expectation of any fee, gain or reward, shall be guilty of an offence under this subsection.
(2B)
Subsection (2A) shall not apply to a foreign lawyer who —
(a)
is duly authorized or registered to practise law in a state or territory other than Malaysia; and
(b)
enters Malaysia to advise or consult with a client on matters pertaining to law not involving any aspect of Malaysian law, provided always that the accumulated period of stay of that foreign lawyer shall not exceed sixty days in total in
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any one calendar year and that immigration authorization for each period of stay shall have first been obtained.
(3)
Any unauthorized person who offers or agrees to place at the disposal of any other person the services of an advocate and solicitor shall be guilty of an offence under this subsection:
Provided that this subsection shall not apply to any person who offers or agrees to place at the disposal of any other person the services of an advocate and solicitor pursuant to a lawful contract of indemnity or insurance.
(4)
Every person who is convicted of an offence under subsection (2), (2A) or (3) shall, on conviction, be liable for the first offence to a fine not exceeding five hundred ringgit or in default of payment to imprisonment for a term not exceeding three months and for the second or subsequent offence to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding six months or to both.
(5)
Any act done by a body corporate which if done by a person would be an offence under subsection (1), (2) or (3) or is of the nature or in the manner as to be calculated to imply that the body corporate is qualified, or recognized by law as qualified, to act as an advocate and solicitor shall be an offence under this section and the body corporate shall, on conviction, be liable for the first offence to a fine not exceeding one thousand ringgit and for the second or subsequent offence to a fine not exceeding three thousand ringgit and where the act is done by a director, officer or servant thereof the director, officer or servant shall, without prejudice to the liability of the body corporate, be liable to the punishment provided in subsection (4).
(6)
Where any firm does an act which if done by a person would be an offence under subsection (1), (2) or (3) every member of the firm shall be deemed to have committed the offence unless he proves that he was unaware of its commission.
(7)
Any person who does any act in relating to a contemplated or instituted proceeding in the High Court which act is an offence under this section shall also be guilty of a contempt of the Court in which the
46 Laws of Malaysia ACT 166
proceeding is contemplated or instituted and may be punished accordingly irrespective of whether he is prosecuted for the offence or not.
Sections 36 and 37 not to apply to arbitral proceedings
Section 37A
Any unauthorized person who—
(c)
any person giving advice, preparing documents and rendering any other assistance in relation to or arising out of arbitral proceedings except for court proceedings arising out of arbitral proceedings.
(2)
In this section, “arbitral proceedings” means proceedings in an arbitration which is governed by the Arbitration Act 2005 [Act 646] or would have been governed by such Act had the seat of arbitration been
Malaysia.
Certain persons can act as advocate and solicitor
Section 38
(a)
the Attorney General or the Solicitor General or any other person acting under the authority of either of them;
(b)
officers of the Public Trust Corporation, the Director
General of Insolvency, Deputy Director General of
Insolvency, Directors of Insolvency, Deputy Directors of
Insolvency, Senior Assistant Directors of Insolvency,
Assistant Directors of Insolvency and Insolvency Officers acting in the course of their duties under any law relating to their offices;
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(ba) the Director General of Legal Aid or any person appointed to assist the Director General of Legal Aid under section 3
of the Legal Aid Act 1971 acting in the course of his duty;
(c)
any other public officer drawing or preparing instruments in the course of his duty;
(d)
any person acting personally for himself only in any matter or proceeding to which he is a party or acting solely for a company or organization which he serves as a full time paid employee in any matter or proceeding in which the company or organization is a party, but such person shall have no right to represent the company or organization in
Court or in Chambers or attest documents for the company or organization which are required to be attested by an advocate and solicitor;
(e)
any bona fide and full-time employee of an insurance company negotiating for the settlement of or settling a claim made or contemplated against any person or body corporate in cases where the claim arising out of personal injury or death relates to a risk insured by that insurance company;
(g)
any full-time member of the academic staff of a Faculty of Law acting solely in an advisory capacity upon instructions from a practising advocate and solicitor;
(h)
any accountant drawing or preparing documents in the exercise of his profession;
(j)
any person merely employed to engross any instrument or proceeding;
48 Laws of Malaysia ACT 166
(k)
any approved company auditor drawing or preparing any instrument referred to in paragraph 37(2)(c) or which he is empowered to do under any written law relating to companies;
(l)
any agent duly authorized to the satisfaction of the
Registrar of Trade Marks drawing or preparing documents in any matter relating to trade marks;
(m)
any full-time employee of an advocate and solicitor drawing or preparing any document under the authority of a practising advocate and solicitor and for the purposes of his employer.
(2)
The words “document” and “instrument” in section 37 do not include a will or other testamentary documents.
Instrument and document to be endorsed
Section 39
Section 37 shall not apply to—
Every person who draws or prepares any instrument or document referred to in section 37 shall endorse or cause to be endorsed thereon his name and address or the name and address of his firm or the firm employing him and any such person omitting so to do or falsely endorsing or causing to be endorsed any of the instruments shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one thousand ringgit.
Section 40
No cost payable to unauthorized person
(2)
Any payment to an unauthorized person for anything done which is an offence under section 37 or 39 may be recovered in a court of competent jurisdiction by the person who has paid the money.
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PART IVA
INTERNATIONAL PARTNERSHIPS, QUALIFIED FOREIGN LAW
FIRMS AND REGISTRATION OF FOREIGN LAWYERS
Interpretation
Section 40A
In this Part, unless the context otherwise requires —
“foreign law” means the law of any state or territory other than
Malaysia;
“foreign law firm” means a foreign law firm which provides legal services in foreign law and includes a corporation duly constituted for the purpose of practising law established or licensed to provide legal services by the appropriate licensing authority of a state or territory other than Malaysia;
“foreign lawyer” means a person who is—
(a)
duly authorized or registered to practise law in a state or territory other than Malaysia; and
(b)
a partner, director (who holds equity in the corporation, in the case of a corporation duly constituted for the purpose of practising law) or an employee of a foreign law firm or a Malaysian law firm;
“international partnership” means a partnership or any other arrangement between a foreign law firm and a Malaysian law firm in respect of which a licence has been granted under section 40F;
“permitted practice areas” means the areas of legal practice as prescribed;
“prescribed” means prescribed by the Bar Council by rules made under this Act;
“qualified foreign law firm” means a foreign law firm licensed under section 40G.
50 Laws of Malaysia ACT 166
Licence required for foreign law firm
Section 40B
(2)
Any foreign law firm which contravenes the provision of subsection (1) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit.
Selection Committee
Section 40C
(2)
The Selection Committee shall consist of the following members:
(d)
two members of the Malaysian Bar practising in the permitted practice areas relevant to the applications to be appointed by the Bar Council.
(3)
The Attorney General and the President of the Malaysian Bar shall be the Co-Chairmen of the Selection Committee.
(4)
The appointment of the members under paragraphs (2)(c)
and (d) shall be on an ad hoc basis.
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Alternate members
Section 40D
(2)
The Bar Council may, in respect of each member appointed under paragraph 40C(2)(d), appoint a person to be an alternate member to attend, in place of the member, meetings of the Selection
Committee.
(3)
When attending meetings of the Selection Committee, an alternate member shall for all purposes be deemed to be a member of the Selection Committee.
(4)
An alternate member shall, unless he sooner resigns his membership or his appointment is sooner revoked, cease to be an alternate member when the member in respect of whom he is an alternate member ceases to be a member of the Selection Committee.
Meetings of the Selection Committee
Section 40E
(2)
The Selection Committee shall meet on such date and at such time and place as the Attorney General and the President of the
Malaysian Bar may appoint.
(4)
All decisions of the Selection Committee shall be by the affirmative vote of a majority of the members of the Selection
Committee.
52 Laws of Malaysia ACT 166
(5)
The Selection Committee shall inform the Bar Council of its recommendation as to the granting of a licence under section 40F, 40G or 40H or the registration of a foreign lawyer under section 40J.
(6)
The Bar Council shall be the Secretariat for the Selection
Committee.
International partnership
Section 40F
(2)
A foreign law firm shall not be part of more than one international partnership in Malaysia at any one time.
(3)
Upon receiving the application, the Bar Council shall refer such application to the Selection Committee for consideration and recommendation.
(4)
The Bar Council shall, upon the recommendation of the
Selection Committee, grant an application made under subsection (1)
on such conditions as the Bar Council may think fit to impose in any particular case or refuse the application.
(5)
An international partnership shall pay to the Bar Council such licence fee at such times and in such manner as may be prescribed.
(6)
The Bar Council may, by notice in writing—
(7)
The Bar Council may renew a licence granted under this section for such period and upon such conditions as the Bar Council may specify.
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(8)
An international partnership is entitled to—
(a)
practise in the permitted practice areas in accordance with such conditions as may be prescribed;
(9)
The permissible equity ownership and voting rights of the foreign law firm in the international partnership shall be as determined by the Selection Committee from time to time.
Qualified foreign law firm
Section 40G
(2)
Upon receiving the application, the Bar Council shall refer such application to the Selection Committee for consideration and recommendation.
(3)
The Bar Council shall, upon the recommendation of the
Selection Committee, grant an application made under subsection (1)
on such conditions as the Bar Council may think fit to impose in any particular case or refuse the application.
(4)
A qualified foreign law firm shall pay to the Bar Council such licence fee at such times and in such manner as may be prescribed.
(5)
The Bar Council may, by notice in writing—
(b)
vary or revoke any conditions imposed on the licence.
54 Laws of Malaysia ACT 166
(6)
The Bar Council may renew a licence granted under this section for such period and upon such conditions as the Bar Council may specify.
(7)
A qualified foreign law firm is entitled to practise in the permitted practice areas in accordance with such conditions as may be determined by the Bar Council.
(8)
A Malaysian lawyer employed in a qualified foreign law firm shall be disqualified from obtaining a practising certificate under
Part III
Part III.
Employment of a foreign lawyer by a Malaysian law firm
Section 40H
(2)
Upon receiving the application, the Bar Council shall refer such application to the Selection Committee for consideration and recommendation.
(3)
The Bar Council shall, upon the recommendation of the
Selection Committee, grant or refuse an application made under subsection (1).
(4)
Any Malaysian law firm which employs a foreign lawyer in contravention of this section shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit.
Suspension or revocation of licence
Section 40I
(2)
Without prejudice to the generality of subsection (1), a licence under this Part shall be suspended or revoked if—
(a)
the appropriate licensing authority of a state or territory other than Malaysia suspends or revokes the licence of the constituent foreign law firm in the international partnership or the qualified foreign law firm as a result of criminal, civil or disciplinary proceedings;
(b)
there is any change in respect of any information regarding the foreign law firm which was submitted for the purposes of obtaining the international partnership licence or the qualified foreign law firm licence including but not limited to—
(i)
a change of any international partnership name without the prior approval of the Bar Council;
(ii)
a merger of the international partnership with any other firm or body corporate; or
(iii)
a change of up to one-half (½) in the number of the partners in any international partnership;
(c)
the international partnership or qualified foreign law firm fails to comply with any requirement imposed under this Act or any other written law;
(d)
the foreign law firm in the international partnership or the qualified foreign law firm is dissolved or is in liquidation or the Malaysian law firm in the international partnership is dissolved;
(e)
the international partnership or qualified foreign law firm fails to comply with any of the conditions imposed on its licence;
(f)
the international partnership has been reconstituted without the approval of the Bar Council; or
(g)
the international partnership is dissolved for any reason whatsoever.
56 Laws of Malaysia ACT 166
(3)
The international partnership and the qualified foreign law firm shall inform the Bar Council of the occurrence of any of the events referred to in subsection (2) as soon as they become aware of the same.
(4)
A licence shall not be suspended or revoked without the international partnership or qualified foreign law firm being given a reasonable opportunity to make representations to the Bar Council.
Registration of a foreign lawyer to practise in an international partnership, a qualified foreign law firm or a Malaysian law firm
Section 40J
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(2)
A foreign lawyer who satisfies such requirements as may be prescribed and wishes to practice in an international partnership, a qualified foreign law firm or a Malaysian law firm may apply to the
Bar Council to be registered to practise in the permitted practice areas in an international partnership, a qualified foreign law firm or a
Malaysian law firm.
(3)
Upon receiving the application, the Bar Council shall refer such application to the Selection Committee for consideration and recommendation.
(4)
The Bar Council shall, upon the recommendation of the
Selection Committee, grant or refuse an application made under subsection (2).
(5)
An application that has been granted under subsection (4) shall be subject to—
(a)
such conditions as the Bar Council may think fit to impose in any particular case; and
(b)
the payment of a registration fee to the Bar Council at such times and in such manner as may be prescribed.
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(6)
The registration of a foreign lawyer under this section shall be in respect of a calendar year and may be renewed annually subject to such conditions as the Bar Council may specify.
(7)
A foreign lawyer who is registered under this section may practise in the permitted practice areas through an international partnership, a qualified foreign law firm or a Malaysian law firm.
(8)
Any foreign lawyer who fails to comply with subsection (1)
shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit.
Suspension or revocation of registration
Section 40K
(2)
Without prejudice to the generality of subsection (1), the registration of a foreign lawyer under this Part shall be suspended or revoked if—
(a)
the international partnership licence or qualified foreign law firm licence issued in respect of the international partnership or qualified foreign law firm, as the case may be, is suspended or revoked under section 40I;
(b)
the foreign lawyer is in breach of any provision relating to his work permit or any relevant immigration laws in
Malaysia;
(c)
the foreign lawyer employed in a Malaysian law firm is no longer duly authorized or registered to practise law in a state or territory other than Malaysia as a result of criminal, civil or disciplinary proceedings; or
(d)
the foreign lawyer has been found guilty by the
Disciplinary Board of any disciplinary misconduct and the
58 Laws of Malaysia ACT 166
Disciplinary Board has recommended for the suspension or revocation of the foreign lawyer’s registration.
Professional conduct, ethics and accounts
Section 40L
(2)
Section 79 and any rules made thereunder shall apply to a foreign lawyer registered under section 40J with such modifications as may be prescribed by the Bar Council.
(3)
For the avoidance of doubt, nothing in this Part shall affect any solicitor-client privilege that may exist independently of this Part.
Disciplinary authority
Section 40M
A registered foreign lawyer and a foreign lawyer falling within the exception provided under subsection 37(2B) shall adhere to all the rules and rulings of the Bar Council and shall be subject to, for the purposes of all disciplinary actions, the control of the Disciplinary
Board.
Section 40N
Power to require documents, etc.
The Bar Council may require any international partnership, qualified foreign law firm, Malaysian law firm or foreign lawyer to provide the Bar Council with such documents, particulars or information as the Bar Council considers necessary for the purpose of ascertaining compliance of this Part.
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Section 40O
Power to make rules
The Bar Council may, with the approval of the Attorney General, make rules to provide for—
(a)
the conditions and criteria for the granting of international partnership licences, qualified foreign law firm licences or licences under section 40H and for the registration of foreign lawyers under section 40J;
(b)
the manner and means of application and the information and documents to be furnished for the application of international partnership and qualified foreign law firm licences and licences under section 40H, including but not limited to the forms, proceedings, fees, information and documents in connection therewith;
(c)
the conditions relating to qualifying legal skills, experience and expertise required under this Part;
(d)
the manner and means of application for registration of foreign lawyers including but not limited to the forms, proceedings, fees, information and documents in connection therewith;
(e)
the submission of information and particulars relating to foreign law firms, lawyers and other persons practising in or employed by the foreign law firms;
(f)
the maintenance of a register of international partnerships, qualified foreign law firms, Malaysian law firms which employ foreign lawyers under section 40H, foreign lawyers practising in Malaysia and Malaysian lawyers practising in international partnerships and qualified foreign law firms under this Part and the form and manner in which the registers are to be kept;
(h)
the manner and means by which an international partnership, a qualified foreign law firm or a Malaysian
60 Laws of Malaysia ACT 166
law firm licensed under section 40H may conduct its business or publicise itself;
(i)
the exemption of any person or class of persons from any provision of this Part; and
Part V
PART V
MALAYSIAN BAR
Establishment of Malaysian Bar
Section 41
(2)
The Malaysian Bar shall be a body corporate with perpetual succession and a common seal, and with power subject to this Act to sue and be sued in its corporate name and to acquire and dispose of property both movable and immovable and to do and to perform such other acts as bodies corporate may by law perform.
Object and powers of the Bar
Section 42
(a)
to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour;
(b)
to maintain and improve the standards of conduct and learning of the legal profession in Malaysia;
(c)
to facilitate the acquisition of legal knowledge by members of the legal profession and others;
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(d)
where requested so to do, to express its view on matters affecting legislation and the administration and practice of the law in Malaysia;
(e)
to represent, protect and assist members of the legal profession in Malaysia and to promote in any proper manner the interests of the legal profession in Malaysia;
(f)
to establish libraries and to acquire or rent premises to house the libraries and offices of the Malaysian Bar or amenities for the use of members either alone or in conjunction with any other body or society;
(g)
to protect and assist the public in all matters touching ancillary or incidental to the law;
(h)
to make provision for or assist in the promotion of a scheme whereby impecunious persons may be represented by advocates and solicitors;
(i)
to award prizes and scholarships and to establish and subsidise lecturership in educational institutions in subjects of study relating to law;
(j)
to grant pecuniary or other assistance to any association, institute, board or society in Malaysia in the interest of the legal profession or of the law students;
(k)
to afford pecuniary and other assistance to members or former members of the Malaysian Bar and to the wives, widows, children and other dependants, whether of members, former members or deceased members who are in need of any such assistance;
(l)
to promote good relations and social intercourse amongst members and between members and other persons concerned in the administration of law and justice in
Malaysia;
62 Laws of Malaysia ACT 166
(m)
to encourage, establish and maintain good relations with professional bodies of the legal profession in other countries and to participate in the activities of any local or international association and become a member thereof;
and
(2)
In addition to any other powers given by this Act, the
Malaysian Bar may—
(a)
purchase or lease any land or building required for any of the purpose of the Malaysian Bar;
(b)
sell, surrender, grant, lease, exchange or alter any land or building as may be found most convenient or advantageous;
(c)
borrow money whether by way of bank overdraft or otherwise for such of the purposes of the Malaysian Bar as the Malaysian Bar may from time to time consider desirable;
(d)
make rules governing the manner of convening general meetings of the Malaysian Bar and the procedure thereat which rules shall be approved and may be amended by ordinary resolution at a general meeting of the Malaysian Bar; and
(e)
do all such other things as are incidental or conducive to the achievement or betterment of the purposes of the Malaysian Bar.
(3)
In addition to any other rules that it may make under this Act the Malaysian Bar may make rules for giving effect to this Part.
Members of the Malaysian Bar and Subscriptions
Advocates and solicitors members of the Bar
Section 43
Every advocate and solicitor shall without election, admission or appointment become a member of the Malaysian Bar and shall remain
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a member under this section so long as he has a valid practising certificate.
Section 44
Eligibility of a member
All members who are not in arrears with their subscription under section 46 shall be eligible—
(c)
to vote on the election of members to the Bar Council.
Disqualification of a member
Section 45
Any member of the Malaysian Bar on ceasing to be qualified for membership shall thereupon cease to be a member.
Section 46
Annual subscription
(2)
In fixing the amount of its subscription, the Bar Council shall be at liberty to divide members into classes, and to provide that different amounts shall be paid by different classes and for different periods and generally to regulate and to vary from time to time the subscriptions payable by members or by different classes of members, as the Bar Council may think fair and reasonable.
(3)
The Bar Council may from time to time fix levies payable by members for any of the purposes of the Malaysian Bar.
(4)
The total of the subscriptions payable under subsection (1), the levies payable under subsection (3) and the annual contribution
64 Laws of Malaysia ACT 166
payable under section 80 shall not in any calendar year exceed three hundred ringgit for each member without the approval of two-thirds of the members present and voting in person at a general meeting of the
Malaysian Bar.
(5)
Liability to pay any annual subscription to the Malaysian Bar shall arise when the subscription has been fixed by the Bar Council.
All annual subscriptions to the Malaysian Bar shall be paid by 30 June of each year.
(6)
An advocate and solicitor shall, if he pays his annual subscription after the date mentioned in subsection (5), pay to the Bar
Council, in addition to the subscription due, an amount equivalent to the subscription so due.
Disqualification for Membership of Bar Council,
Bar Committee, etc.
Disqualification for membership of the Bar Council, a Bar
Committee, or of any committee thereof
Section 46A
(b)
if he is a member of either House of Parliament, or of a State
Legislative Assembly, or of any local authority; or
(i)
any trade union; or
(iii)
any other organization, body or group of persons whatsoever, whether or not it is established under any law, whether it is in Malaysia or outside Malaysia, which has
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objectives or carries on activities which can be construed as being political in nature, character or effect, or which is declared by the Attorney General by order published in the
Gazette, to be an organization, body or group of persons which has such objectives or carries on such activities.
(2)
An order made by the
Attorney
General under subparagraph 1(c)(iii) shall not be reviewed or called in question in any court.
(3)
Where a member of the Bar Council or a Bar Committee, or of any committee of the Bar Council or a Bar Committee, becomes disqualified under subsection (1), he shall immediately thereupon be deemed to have vacated his membership thereof and any office that he may hold therein.
The Bar Council
Establishment of Bar Council
Section 47
(2)
The Bar Council shall consist of the following:
(b)
the chairman of each State Bar Committee and the members elected to represent each State Bar Committee pursuant to subsection 70(7);
(c)
members elected pursuant to section 50.
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Period of holding office
Section 48
Subject to this Act, every member of the Bar Council shall hold office for one year but shall be eligible for re-election.
Election of Members of the Bar Council
Section 49
Election of Bar Council Members
(2)
Every nomination of a candidate for election—
(3)
The names of candidates for election nominated in accordance with subsection (1) shall be sent to or deposited at the office of the
Malaysian Bar in the month of October in each year.
Annual election of Bar Council
Section 50
(2)
The Bar Council shall fix and publish during the first week of
November in every year and notify every member of the Malaysian
Bar by letter of—
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(a)
the names of the candidates nominated for election in accordance with section 49;
(c)
the last day for the return of the postal ballot which shall be the last day of November;
(3)
The Bar Council shall at the same time also forward to every member a ballot paper containing the names of all the candidates nominated under section 49.
(4)
All envelopes containing ballot papers received by the Bar
Council shall be kept unopened and shall be delivered to the scrutineers on the first working day after the last day of November.
(5)
The scrutineers shall count the ballots and declare to the
Secretary of the Bar Council the persons elected not later than the end of the first week of December of each year and thereupon the Secretary of the Bar Council shall forthwith advise each State Bar Committee of the persons so elected.
(6)
Any accidental failure on the part of the Bar Council to comply with this section or of any rules made with respect to elections to the
Bar Council shall not invalidate an election.
When election deemed to be election
Section 51
(2)
If no nominations are made for the election of members of the Bar
Council the other members of the Bar Council shall appoint as members of the Council twelve persons qualified to be candidates under this Act.
(3)
Members of the Council appointed under subsections (1) and (2)
shall, for the purposes of this Act, be deemed to be elected members.
Bar Council when constituted
Section 52
Every incoming Bar Council constituted under this Part shall take office on the conclusion of the annual general meeting next following and shall hold office until the conclusion of the annual general meeting in the following year.
Section 53
Casual vacancy to be filled by qualified person
(2)
Notwithstanding any vacancy in the Council the continuing members of the Council may act if there is a quorum; and no act done by or under the authority of the Bar Council shall be invalid in consequence of any defect subsequently discovered in the election or qualification of the members or any of them.
Officers
President, Vice-President and Secretary of the Bar
Section 54
(2)
The President or in his absence the Vice-President shall be the
Chairman of the Bar Council and shall preside at all meetings of the
Bar Council and of the Malaysian Bar.
(3)
In the absence of both the President and the Vice-President, the
Bar Council shall elect a Chairman from amongst its members.
When a member of the Council to vacate office
Section 55
A member of the Bar Council shall vacate his office if—
(a)
he is struck off the Roll or is suspended from practising as an advocate and solicitor; or
(b)
he becomes bankrupt or insolvent or enters into composition with any creditor or takes or attempts to take the benefit of any written law to liquidate his assets or affairs; or
(e)
he is absent from three consecutive meetings of the Bar
Council without reasonable cause and the Bar Council resolves that he be removed from office.
Powers of the Council
Powers and acts of Bar Council
Section 56
The management of the Malaysian Bar and of its funds shall be vested in the Bar Council; and all the powers, acts or things which are not by this Act expressly authorized, directed or required to be exercised or done by the Malaysian Bar in general meeting may, subject to this Act or any rules made thereunder or any resolution
70 Laws of Malaysia ACT 166
passed from time to time by the Malaysian Bar in general meeting, be exercised or done by the Bar Council:
Provided that no such resolution of the Malaysian Bar shall invalidate the previous exercise of any powers or the previous doing of any act or thing by the Bar Council which would have been valid if the resolution had not been passed.
Section 57
Specific powers of the Bar Council
or the specific powers to make rules conferred by any other provisions of this Act the Bar Council shall have power—
(a)
to make rules to provide for all matters not expressly reserved to the Malaysian Bar in general meeting whether the same be expressed amongst its powers or not;
(b)
to answer questions affecting the practice and etiquette of the profession and the conduct of members;
(c)
to take cognizance of anything affecting the Malaysian Bar or the professional conduct of its members and to bring before any general meeting of the Malaysian Bar any matter which it considers material to the Malaysian Bar or to the interests of the profession and to make any recommendations and take any action as it considers fit in relation thereto;
(d)
to examine and if it considers fit to report upon current or proposed legislation and any other legal matters;
(e)
to represent members of the Malaysian Bar or any section thereof or any particular member in any matter which may be necessary or expedient;
(f)
with the prior approval of the Malaysian Bar in general meeting, to award prizes and scholarships for students of law and to lay down the conditions for their award;
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(g)
to appoint officers, clerks, agents and servants for permanent, temporary or special services as it may from time to time consider fair and reasonable and to determine their duties and terms of service;
(h)
to purchase, rent or otherwise acquire and furnish suitable premises for the use of the Malaysian Bar;
(i)
to communicate from time to time with other similar bodies and with members of the profession in other places for the purpose of obtaining and communicating information on all matters likely to be beneficial or of interest to members;
(j)
to institute, conduct, defend, compound or abandon any legal proceedings by and against the Malaysian Bar or its officers or otherwise concerning the affairs of the Malaysian
Bar and to compound and allow time for payment or satisfaction of any debts due or of any claims or demands made by or against the Malaysian Bar;
(k)
to invest and deal with any moneys of the Malaysian Bar from time to time in securities authorized for the investment of trust funds by any written law;
(l)
from time to time to borrow or raise money by bank overdraft or otherwise by the issue of debentures or any other securities founded or based upon all or any of the property and rights of the Malaysian Bar or without any such security and upon such terms as to priority or otherwise as the Bar Council shall consider fit; and
(m)
to exercise all such powers, privileges and discretions as are not by this Act expressly and exclusively required to be exercised by the members of the Malaysian Bar in general meeting.
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Appointment of Committees
Section 58
(2)
The number and term of office of the members of a committee appointed under this section, and the number of these members necessary to form a quorum, shall be fixed by the Bar Council and unless so fixed shall not be less than three.
(3)
A committee appointed under this section may include persons who are not members of the Bar Council.
(4)
The Bar Council shall not delegate to a committee appointed under this section any of its functions unless at least two thirds of the members of the committee (including the Chairman thereof) are members of the Council.
Rights to inspect file and copies of proceedings in bankruptcy
Section 59
The Bar Council shall be entitled, without payment of any fee, to inspect the file of proceedings in bankruptcy relating to any advocate and solicitor against whom proceedings in bankruptcy have been taken, and to be supplied with office or certified copies of the proceedings on payment of the usual charge for such copies.
Section 60
Power of Bar Council to accept gifts
(2)
Registers shall be kept of all donations to the Malaysian Bar including the names of donors and any special conditions on which any donation has been given.
(3)
All property, moneys or funds donated to the Malaysian Bar for any specific purposes shall, subject to the law relating to charities, be applied and administered in accordance with the purposes for which they have been donated and shall be separately accounted for.
Representation in court
Section 61
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The Malaysian Bar may be represented or appear in any court by any advocate and solicitor whether he is a member of the Bar Council or not.
Proceedings of the Bar Council
Section 62
Meeting of the Council
(2)
Nine members personally present at any meeting of the Bar
Council shall constitute a quorum for the transaction of any business.
(3)
A decision of the majority of the members of the Bar Council present and voting at any meeting of the Bar Council shall be deemed to be a decision of the Bar Council.
(5)
Subject to any rules of the Malaysian Bar, the Bar Council may regulate its own proceedings and in particular the holding of meetings, the notice to be given of any meetings, the proceedings at the meeting,
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the keeping of minutes and the custody, production and inspection of the minutes.
Expenses of members
Section 63
No fees shall be paid to any member of the Bar Council but a member may be reimbursed from the funds of the Malaysian Bar for travelling expenses incurred by him in relation to the affairs of the
Malaysian Bar.
General Meeting of the Malaysian Bar
Section 64
Annual general meetings
(2)
The Bar Council shall cause to be prepared and presented to the annual general meeting—
(a)
a report on the activities of the Malaysian Bar during its term of office; and
(b)
proper accounts, duly audited, of all funds, property and assets of the Malaysian Bar for the twelve months ending on 31 December immediately preceding such annual general meeting.
(3)
Notice of an annual general meeting of the Malaysian Bar shall be sent to members, in such manner as the Bar Council may determine, not less than fourteen days before the date of the meeting:
Provided that the period of not less than fourteen days shall not apply in the case of an annual general meeting that is adjourned pursuant to subsection (5).
(4)
The quorum for an annual general meeting shall be five hundred members of the Malaysian Bar; and no business shall be transacted at
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any annual general meeting unless a quorum is present when the meeting proceeds to business.
(5)
If a quorum referred to in subsection (4) is not present within one hour from the time appointed for holding the meeting, the meeting shall be adjourned to the following day at the same time and place unless otherwise notified to the members by the Bar Council in the notice convening the original meeting; and if at such adjourned annual general meeting the quorum is not present within one hour from the time appointed for holding the adjourned meeting, the members present shall constitute the quorum.
(6)
If any member desires to propose any motion to be considered at an annual general meeting convened under this section, he shall, not less than seven days before the date first appointed for holding the meeting, serve on the Secretary of the Malaysian Bar a notice of such motion in writing.
Extraordinary General Meetings
Section 65
(2)
Any one hundred and fifty members of the Malaysian Bar may at any time requisition an extraordinary general meeting by written notice in that behalf signed by them and served on the President, Vice-President or the Secretary of the Malaysian Bar; and the Bar Council shall convene an extraordinary general meeting to be held within thirty days of such service.
(3)
The written notice shall specify the object or objects of the proposed extraordinary general meeting.
(4)
If the Bar Council fails to convene an extraordinary general meeting in accordance with the requisition within thirty days of the service of such requisition, the requisitioning members may convene the extraordinary general meeting within sixty days of such service.
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(4A)
The quorum for an extraordinary general meeting convened under this section shall be five hundred members of the Malaysian Bar;
and no business shall be transacted at any extraordinary general meeting unless a quorum is present when the meeting proceeds to business.
(4B)
An extraordinary general meeting convened under this section shall be dissolved if a quorum is not present within one hour from the time appointed for holding the meeting.
(5)
If any member of the Malaysian Bar desires to propose any motion to be considered at an extraordinary general meeting to be convened under this section, he shall not less than seven days before the date of the meeting serve upon the Secretary of the Malaysian Bar notice of such motion in writing.
Voting
Section 66
At every annual general meeting and extraordinary general meeting, every member present shall have one vote and where there is an equality of votes, the Chairman of that meeting shall have a casting vote.
Section 67
(Deleted by Act A1269).
State Bar Committee
Section 68
Combined Bar — State Bar Committee
(2)
For the purposes of this Part, a member of the State Bar is deemed to be practising in a State if he ordinarily practises in that State.
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The opinion of the State Bar Committee shall be prima facie evidence that the member ordinarily practises in the State.
(3)
A member may ordinarily practise in more than one State and all members practising in the Federal Territory shall be deemed to be members of the Selangor State Bar.
(4)
Members practising in the Federal Territory of Kuala Lumpur shall be entitled to establish a separate bar for the Federal Territory of
Kuala Lumpur to be known as the Kuala Lumpur Bar. The decision to have a separate bar shall be made by a majority vote of the members present at a general meeting called for this purpose.
(5)
At the time of establishment of the Kuala Lumpur Bar any member who had paid the annual subscription for that calendar year to the Selangor State Bar Committee shall not be required to pay a second annual subscription for the same year to the Kuala Lumpur Bar
Committee.
(6)
The assets of the Selangor State Bar, which is commonly known as the Selangor and Federal Territory Bar, shall, upon establishment of the Kuala Lumpur Bar, be apportioned between the
Selangor State Bar and the Kuala Lumpur Bar in the proportions that their respective memberships bear to the membership of the former combined Bar.
Combination of members as State Bar
Section 69
The combination of any ten or more members in a State or of any ten or more members in two or more States for the purposes of Part IV of the Ordinance shall be recognized as a State Bar for the purposes of this Act provided that not less than ten of the members representing the State Bar have been practising in the relevant State or States for the whole of the period of the twelve months immediately before the coming into operation of this Act.
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Section 70
Annual general meeting of State Bar
(1A)
The State Bar Committee shall cause to be prepared and presented to the annual general meeting—
(b)
proper accounts, duly audited, of all funds, property and assets of the State Bar for the twelve months ending on the 31 December immediately preceding such annual general meeting.
(1B)
Notice of an annual general meeting of the State Bar shall be sent to members of the State Bar, in such manner as the State Bar
Committee may determine, not less than fourteen days before the date of the meeting:
Provided that the period of not less than fourteen days shall not apply in the case of an annual general meeting that is adjourned pursuant to subsection (2B).
(2)
At every annual general meeting, the Chairman of the State Bar
Committee shall preside and in his absence, the most senior member present who is willing to preside shall preside.
(2A)
The quorum for an annual general meeting shall be five percent of the total number of members of the State Bar as at the date of the notice of the meeting; and no business shall be transacted at an annual general meeting unless a quorum is present when the meeting proceeds to business.
(2B)
If a quorum referred to in subsection (2A) is not present within one hour from the time appointed for holding the meeting, it shall be
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adjourned to the following day at the same time and place unless otherwise notified to members by the State Bar Committee in the notice convening the original meeting; and if at such adjourned annual general meeting the quorum is not present within one hour from the time appointed for holding the adjourned meeting, the members present shall constitute the quorum.
(2C)
If any member desires to propose any motion to be considered at an annual general meeting convened under this section, he shall, not less than seven days before the date first appointed for holding the meeting, serve on the Secretary of the State Bar a notice of such motion in writing.
(3)
At every annual general meeting, every member present shall have one vote and where there is an equality of votes, the presiding member shall have a casting vote.
(4)
The meeting shall elect from among the members of the State
Bar a Chairman and not less than four but not more than ten members to form the State Bar Committee.
(5)
The Chairman and the members of the committee so elected shall hold office until the conclusion of the next annual general meeting of the State Bar.
(6)
Every State Bar Committee shall appoint a Secretary who shall be a Member of the State Bar.
(7)
After the election of the State Bar Committee members the meeting shall elect one member of the State Bar (who need not be a member of the State Bar Committee) to represent the State Bar on the
Bar Council:
Provided that where the Chairman of the State Bar Committee elected pursuant to subsection (4) is also the current President or Vice-President of the Malaysian Bar, the meeting shall elect two members instead of one to represent the State Bar on the Bar Council.
(7A)
If for any reason a member elected under subsection (4) or (7)
vacates office, the State Bar Committee shall appoint another member
80 Laws of Malaysia ACT 166
of the State Bar to take his place and the member so appointed shall hold office for the remainder of the term of office of the member he replaces.
(8)
The Chairman of the State Bar Committee shall inform the
Registrar and the Secretary of the Malaysian Bar the names of the persons elected and appointed as Chairman, members and Secretary respectively of the State Bar Committee and of the person or persons elected as representative or representatives of the State Bar on the Bar
Council.
(9)
(Deleted by Act A1269).
Extraordinary General Meeting of State Bar
*70A. (1) Every State Bar Committee may convene a general meeting of the State Bar other than the annual general meeting at any time the State Bar Committee considers it necessary or expedient; and such meeting shall be known as an extraordinary general meeting.
(2)
The quorum for an extraordinary general meeting convened under this section shall be five percent of the total number of members of the State Bar as at the date of the notice convening the meeting; and no business shall be transacted at any extraordinary general meeting unless a quorum is present when the meeting proceeds to business.
(3)
Any ten members of the State Bar or two percent of the members of the State Bar whichever shall be the greater may at any time requisition an extraordinary general meeting by written notice in that behalf signed by them and served on the Chairman or the Secretary of the State Bar Committee and the State Bar Committee shall convene an extraordinary general meeting to be held within thirty days of such service.
(4)
The written notice shall specify the object or objects of the proposed meeting.
*NOTE—see subsections 17(1) –
(2)
of the Legal Profession (Amendment) Act 2006 [Act A1269].
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(5)
If the State Bar Committee fails to convene an extraordinary general meeting in accordance with the requisition within thirty days of the service of such requisition, the requisitioning members may convene the extraordinary general meeting within sixty days of such service.
(6)
Any extraordinary general meeting convened under this section shall be dissolved if a quorum is not present within an hour from the time appointed for holding the meeting.
(7)
At every extraordinary general meeting every member present shall have one vote and where there is an equality of votes, the
Chairman of that meeting shall have a casting vote.
(8)
If any member of the State Bar desires to propose any motion to be considered at an extraordinary general meeting convened under this section, he shall, not less than seven days before the date of the meeting, serve on the Secretary of the State Bar a notice of such motion in writing.
Severance of combined Bar
Section 71
(2)
One month after the passing of such resolution, the combined
Bar shall be severed, and the members in each of the States forming the combined Bar shall thereafter form a separate State Bar.
(3)
The chairman of the meeting referred to in subsection (1) shall report the passing of any resolution to the Registrar and to the Bar
Council.
(4)
Where the number of members in one of the States forming a combined Bar does not exceed ten, the members of the Bar of that State
82 Laws of Malaysia ACT 166
may sever themselves from the members of the Bar of the other State if—
(b)
the members of the Bar of the first-mentioned State have found another State the members of whose Bar have expressed their willingness by a vote of a simple majority of their members at a general meeting to combine with the members of the Bar of the first-mentioned State.
(5)
Subsections (2) and (3) shall apply mutatis mutandis to a severance of a combined Bar effected pursuant to subsection (4).
(6)
Where severance takes place pursuant to this section, the assets of the former combined Bar shall be apportioned as provided in subsection (6) of section 68 mutatis mutandis.
Meeting of the State Bar Committee
Section 72
(2)
Each State Bar Committee shall regulate its proceedings in any manner that it considers fit; except that the quorum shall not be less than three members personally present:
Provided that a resolution circulated and signed by not less than three members or all the members present in Malaysia whichever is the greater at the date of the passing of the resolution shall be deemed to have been passed at a properly constituted meeting of the State Bar
Committee.
Powers of the State Bar Committee
Section 73
Each State Bar Committee shall have the following powers:
(i)
to levy subscriptions from its members of an amount not exceeding in any one year one hundred ringgit from each member unless it has been agreed to by the State Bar
Committee at its annual general meeting that the subscription shall be in excess of one hundred ringgit; and subscriptions shall be payable in each year to the appropriate
State Bar Committee by each advocate and solicitor by 30
June;
(ii)
to promote and safeguard the interests of advocates and solicitors who are members of the State Bar;
(iii)
to make appropriate representations to the Malaysian Bar upon matters concerning the State Bar;
(iv)
to entertain and deal with such matters as may from time to time be referred to it either generally or specifically by the
Bar Council or the State Bar in general meeting;
(v)
to provide amenities for and generally to promote the welfare of members of the State Bar;
(vi)
to inquire into and proceed with any complaint of the conduct of an advocate and solicitor in his professional capacity or of any pupil or articled clerk under Part VII;
(vii)
to co-opt as members of the Committee not more than two members of the State Bar who shall have no right to vote at any meeting of the Committee.
Fees not allowed to State Bar Committee
Section 74
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No fees shall be paid to any member of a State Bar Committee, except for any travelling expenses incurred by any member of the State
Bar Committee. Such expenses may with the approval of the State Bar
Committee, be reimbursed to the member from the funds of that
Committee.
84 Laws of Malaysia ACT 166
Section 75
Casual vacancy
(2)
Notwithstanding any vacancy in the State Bar Committee the continuing members of the Committee may act if there is a quorum;
and no act done by or under the authority of the State Bar Committee shall be invalid in consequence of any defect subsequently discovered in the election or qualification of the members or any of them.
General
Names of members of the Bar Council, etc., to be published and confidentiality of deliberations
Section 76
(2)
Except and in so far as may be necessary for the purpose of publishing a report or giving effect to any resolution passed or decision taken, confidentiality of deliberations at all meetings, proceedings or inquiries of the Board, the Bar Council, the State Bar Committee, the
Disciplinary Board and the Disciplinary Committee and in respect of all documents pertaining to the deliberative process shall be maintained by the members of the Board, the Bar Council, the State
Bar Committee, the Disciplinary Board and the Disciplinary
Committee and by their staff.
(3)
No member of the Board, the Bar Council, the State Bar
Committee, the Disciplinary Board, the Disciplinary Committee and their staff who are involved in any deliberations referred to in subsection (2) shall be compelled to disclose to any court any
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information relating to such deliberations unless the court considers such disclosure essential in the interest of justice.
Part VI
PART VI
PROFESSIONAL PRACTICE, ETIQUETTE, CONDUCT AND
DISCIPLINE OF ADVOCATE AND SOLICITOR AND CLERKS
Power to make rules regulating practice, etc.
Section 77
(2)
Any rules made pursuant to this section shall not come into operation until they have been published in the Gazette.
(3)
Any advocate and solicitor who fails to comply with any rules made under this section may be liable to disciplinary proceedings.
(4)
The Attorney General may, by order published in the Gazette, make such modifications as he deems necessary to any rules made and published under this section before the coming into operation of this subsection.
Power to make particular rules
Section 78
(a)
providing for the opening and keeping by advocates and solicitors of accounts at banks for clients’ moneys;
(b)
providing for the keeping by advocates and solicitors of accounts containing particulars and information as to moneys received, held or paid by them for or on account of their clients; and
86 Laws of Malaysia ACT 166
(c)
empowering the Bar Council to take such action as may be necessary to enable it to ascertain whether or not the rules are being complied with.
(2)
The Bar Council shall also make rules—
(a)
providing for the opening and keeping by every advocate and solicitor who is a sole trustee, or who is co-trustee with one or more of his partners, clerks or servants, of an account at a bank for moneys of any trust of which he is such a sole trustee or co-trustee;
(b)
providing for the keeping by every such advocate and solicitor of accounts containing particulars and information as to moneys received, held or paid by him for or on account of any such trust; and
(c)
empowering the Bar Council to take such action as may be necessary to enable it to ascertain whether or not the rules are being complied with.
(3)
(a)
Rules made under this section shall make provision for requiring an advocate and solicitor, in such cases as may be prescribed by the rules, either—
(i)
to keep on deposit in a separate account at a bank for the benefit of the client moneys received for or on account of a client if the client should so request; or
(ii)
to make good to the client out of his own moneys a sum equivalent to the interest which would have accrued if the moneys so received had been so kept on deposit.
(b)
Except as provided by any rules made pursuant to this section, an advocate and solicitor shall not be liable by virtue of the relation between advocate and solicitor and client to account to any client for interest received by him on moneys deposited at a bank being moneys received or held for or on account of his clients generally.
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(c)
Nothing in this subsection, or in any rules made pursuant to this section, shall—
(i)
affect any arrangement in writing, whenever made, between an advocate and solicitor and his client as to the application of the client’s moneys or interest thereon;
(ii)
apply to moneys received by an advocate and solicitor being moneys subject to a trust of which he is a trustee.
(4)
Any rules made pursuant to this section shall not come into operation until they have been published in the Gazette.
(5)
Disciplinary proceedings may be taken against any advocate and solicitor who fails to comply with any rules made under this section.
(6)
In this section, the words “trust” and “trustee” extend to implied and constructive trusts and to cases where the trustee has a beneficial interest in the trust property and to the duties incident to the office of a personal representative, and “trustee”, where the context admits, includes a personal representative.
Power to make rules on professional indemnity
Section 78A
(a)
authorize the Bar Council to take out and maintain insurance in the name of the Malaysian Bar with any person permitted by law to carry on professional liability insurance business or pecuniary loss insurance business and covering every practising advocate and solicitor;
(b)
authorize the Bar Council to establish and maintain a fund or funds for the aforesaid purpose; or
88 Laws of Malaysia ACT 166
(2)
Without prejudice to the generality of subsection (1), rules made under this section may—
(a)
specify the terms and conditions on which professional indemnity is to be available;
(b)
provide for the management, administration and protection of any fund established under subsection (1)
and require advocates and solicitors to make payments to any such fund;
(c)
require advocates and solicitors to make payments by way of premiums on any policy taken out under subsection (1)
and provide for proceedings by the Malaysian Bar or its insurers against any advocate and solicitor who fails to do so for recovery of the appropriate premiums;
(d)
prescribe the conditions which an insurance policy must satisfy for the purpose of paragraph (1)(c);
(e)
authorize the Bar Council to determine the amount of any payment required by the rules;
(f)
specify the circumstances in which where an advocate and solicitor has failed to comply with the rules, proceedings in respect of any sum paid by way of indemnity may be taken against him by the Malaysian Bar or its insurers;
(g)
prescribe that an advocate and solicitor shall not be entitled to a Sijil Annual unless he is insured as required by the rules for the period to which the Sijil Annual relates;
(h)
empower the Bar Council to take such steps as it considers necessary or expedient to ascertain and ensure that the rules are complied with; and
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(i)
contain such procedural, incidental or other provisions as may be necessary or expedient for the purposes of the rules.
(3)
Nothing in this section shall affect the right of any advocate and solicitor, in addition to the indemnity provided in the rules made under this section, to insure himself further against loss arising from such claims as may be instituted against him.
(4)
Any rules made under this section shall not come into operation until they have been published in the Gazette.
Advocate and solicitor to deliver accountant’s report
Section 79
(2)
The accountant’s report shall—
(a)
state that the accountant in compliance with this section and any rules made thereunder has examined the books, accounts and documents of the firm of the advocate and solicitor for such accounting period as may be specified in the report;
(b)
state whether or not the accountant is satisfied, from his examination of the books, accounts and documents produced to him and from the information and explanations given to him, that during the said accounting period of the advocate and solicitor or his firm has complied with any rules made under subsection 78(1);
(c)
state, if the accountant is not satisfied, the matters in respect of which he is not so satisfied;
(d)
contain such information as may be prescribed by rules made by the Bar Council under this section; and
90 Laws of Malaysia ACT 166
(e)
be delivered to the Secretary of the Malaysian Bar not more than twelve months (or such other period as may be prescribed by rules made under this section) after the end of the accounting period specified in the report.
(3)
Subject to any rules made under this section, the accounting period for the purposes of an accountant’s report shall—
(a)
begin at the expiry of the last preceding accounting period for which an accountant’s report has been delivered or from the date the advocate and solicitor commenced practice as the case may be;
(c)
terminate not more than twelve months before the date on which the report is delivered to the Bar Council; and
(d)
where possible, consistent with paragraphs (a), (b) and (c), correspond to a period or consecutive periods for which the accounts of the advocate and solicitor or his firm are ordinarily made up.
(4)
In this section “accountant” means an approved company auditor as defined in the Companies Act 1965. If in any particular case there shall not be an approved company auditor practising in the State in which an advocate and solicitor ordinarily practises and the Bar
Council shall be of the view that by reason of the difficulty or expense involved in securing the services of an approved company auditor from outside such State it would be unreasonable to expect the advocate and solicitor to secure his service, the Bar Council may approve any other auditor whom it shall consider competent for the purposes of this section.
(5)
The Bar Council shall make rules to give effect to this section and without prejudice to the generality of the foregoing such rules shall
NOTE—The Companies Act 1965 [Act 125] has since been repealed by the Companies Act 2016
[Act 777] w.e.f 31 January 2017–see subsection 620(1) of Act 777.
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prescribe the nature and extent of the examination to be made by the accountant of the books and accounts of the firm of an advocate and solicitor and of any other relevant documents with a view to the preparation of the report to be delivered by the advocate and solicitor under this section.
(6)
Any such rules may include provisions for—
(a)
permitting in any special circumstances as may be defined in the rules a different accounting period from that specified in subsection (3); and
(b)
regulating any matters of procedure or matters incidental, ancillary or supplemental to this section.
(7)
Any rules made by the Bar Council under this section shall not come into operation until they have been published in the Gazette.
(8)
Any advocate and solicitor who fails to comply with this section or any rules made thereunder may be liable to disciplinary proceedings.
Compensation Fund
Compensation Fund
Section 80
(2)
Every advocate and solicitor shall on each occasion he applies for a Sijil Annual pay to the Malaysian Bar a contribution of such sum as the Bar Council may from time to time determine and the Malaysian
Bar shall pay that contribution into the Fund:
Provided that an advocate and solicitor who applies for a Sijil Annual shall be required to pay only half the contribution so determined if the practising certificate for which he proposes to apply is valid for less than six months.
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(3)
The Malaysian Bar may invest any moneys out of the Fund which are not immediately required for any other purposes and, for the purposes of this section, the Malaysian Bar shall have all the powers of trustees under any written law.
(4)
The Malaysian Bar may for the purposes of the Fund borrow from any lender and may charge any investments of the Fund by way of security for such loan.
(4A)
The Bar Council may, for such of the purposes of the
Malaysian Bar as the Bar Council deems fit, borrow moneys from the
Fund and shall, in respect of any money so borrowed, pay to the Fund interest at the prime rate laid down by the Association of Banks in
Malaysia, prevailing from time to time.
(5)
The Malaysian Bar may insure the Fund with any registered insurance business in Malaysia for any purpose and on any terms as the Malaysian Bar may consider expedient.
(6)
There shall be carried to the credit of the Fund—
(a)
all annual contributions paid to the Malaysian Bar in pursuance of subsection (2);
(b)
all interests, dividends and other income or accretions of capital arising from the investments of the Fund;
(e)
all sums received by the Malaysian Bar under any insurance effected by the Malaysian Bar under subsection (5); and
(f)
any other moneys which may belong or accrue to the Fund or be received by the Bar Council in respect of the Fund.
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(7)
All moneys from time to time forming part of the Fund and all investments of the Fund shall be applicable—
(a)
for payment of any costs, charges and expenses of establishing, maintaining and administering the Fund;
(b)
for payment of any costs, charges and expenses of the Bar
Council in ascertaining whether the rules made under section 78 have been complied with, pursuant to the powers given by such rules;
(c)
for payment of any premiums on insurance effected by the
Malaysian Bar under subsection (5);
(d)
for repayment of any moneys borrowed by the Malaysian
Bar and for payment of interest on any moneys so borrowed;
(e)
for payment of any grants which the Malaysian Bar may make under subsection (8); and
(f)
for payment of any other sums payable out of the Fund by virtue of this section.
(8)
Where it is proved to the satisfaction of the Bar Council that any person has sustained loss in consequence of dishonesty on the part of any advocate and solicitor or any clerk or servant of an advocate and solicitor in connection with that advocate and solicitor’s practice in
Malaysia as an advocate and solicitor, or in connection with any trust of which that advocate and solicitor is a trustee, then subject to this section, the Malaysian Bar may, if the Bar Council thinks fair and reasonable, makes a grant to that person out of the Fund for the purpose of relieving or mitigating that loss.
(8A)
If in any year there has been neither an application made for a grant from the Fund nor a grant made from the Fund, the Bar Council may in its discretion transfer from the Fund all interests, dividends and other accretions of capital arising from the Fund, or any part thereof, to a Fund of the Malaysian Bar established for the purposes of purchasing or maintaining a library for the use of members of the
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Malaysian Bar and to a fund established for the purpose of providing legal aid.
(9)
A grant may be made under this section whether or not the advocate and solicitor had a valid practising certificate when the act of dishonesty was committed, and notwithstanding that subsequent to the commission of the act the advocate and solicitor has died or had his name removed from or struck off the Roll or has ceased to practise or been suspended from practice.
(10)
On any grant made by the Malaysian Bar under this section to any person in respect of any loss—
(a)
the Malaysian Bar shall to the extent of the amount of the grant be subrogated to all such rights and remedies as the person to whom the grant is made may have against the advocate and solicitor, clerk or servant in respect of the loss;
(b)
the person to whom the grant is made shall have no right by way of bankruptcy or other legal proceedings or otherwise to receive any sum out of the assets of the advocate and solicitor, clerk or servant in respect of the loss until the Fund has been reimbursed with the full amount of the grant.
(11)
Reference in paragraphs (10)(a) and (b) to the person to whom the grant is made or to the advocate and solicitor, clerk or servant shall include, in the event of this death, insolvency or other disability, reference to his personal representatives or any other person having authority to administer his estate.
(12)
The Bar Council may make rules in respect of the procedure to be followed in giving effect to this section and in respect of any matters incidental, ancillary or supplemental thereto or concerning the administration or protection of the Fund.
(13)
The income derived from the Compensation Fund shall be exempted from income and all other taxes, and the Fund shall be an institution approved for the purposes of section 45 of the Income Tax
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Act 1967 [Act 53] payments to which shall be good deductions for income tax purposes in arriving at the aggregate income of the person making the payment for the relevant year.
Advocate and solicitor shall not act as commissioner or notary without certificate
Section 81
No advocate and solicitor who is a commissioner for oaths or a notary public shall do any act as such commissioner or notary, as the case may be, unless he has a valid practising certificate.
Section 82
Advocate wilfully and knowingly acting as agent
(2)
No advocate and solicitor shall authorize any unauthorized person to operate any bank account in his name or in the name of his firm and maintained by him or his firm in connection with his practice as an advocate and solicitor.
(3)
Any advocate and solicitor who has acted in contravention of subsection (1) or (2) may be liable to disciplinary proceedings.
(4)
Any unauthorized person who acts or practises or purports to practise as an advocate and solicitor shall be guilty of an offence and shall on conviction be liable to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding one year or to both.
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Advocate and solicitor not to employ undischarged bankrupt
Section 83
(a)
struck off the Roll otherwise than at his own request in any part of Malaysia or in Singapore or elsewhere and remains struck off;
(b)
suspended from practising as an advocate and solicitor in any part of Malaysia or in Singapore or elsewhere and remains suspended;
(c)
convicted of an offence involving dishonesty or fraud or has been found guilty of an offence under the *Prevention of Corruption Act 1961 [Act 57];
(d)
convicted of an offence under section 15A of the Minor
Offences Act 1955 [Act 336] or under this Act;
(f)
employed as a public officer:
Provided that paragraph (f) shall not apply to any public officer who is an advocate and solicitor or a qualified person.
(2)
On application made by or on behalf of the Attorney General or the Malaysian Bar, the Court may make an order directing that, as from a date to be specified in the order, no advocate and solicitor shall in connection with his practice employ or remunerate any person who—
*NOTE—This Act has since been repealed by Anti-Corruption Act 1997 [Act 575] and later repealed by the Malaysian Anti-Corruption Commission Act 2009 [Act 694] –see section 73 of Act 694.
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(a)
has been a party to any act or default of an advocate and solicitor in respect of which a complaint has been or could have been made against him under this Act; or
(b)
has so conducted himself whilst employed by an advocate and solicitor that, had he himself been an advocate and solicitor, his conduct might have formed the subject of a complaint against him under this Act.
(3)
Every application under subsection (2) shall be served not less than ten days before the application is to be heard upon the person in respect of whom it is made and upon his employer or previous employer who is an advocate and solicitor.
(4)
Every order made under subsection (2) shall be filed in a file to be kept for this purpose by the Registrar which may be inspected by any advocate and solicitor without fee.
(5)
Before an advocate and solicitor employs or remunerates any person (other than an advocate and solicitor or a qualified person) in connection with his practice as such, he shall require that person to make a statutory declaration stating that he is not an undischarged bankrupt and that he does not come within the class of persons enumerated in paragraphs (1)(a) to (f) and that he is not a person in respect of whom an order has been made under subsection (2).
(6)
Any advocate and solicitor who acts in contravention of this section may be liable to disciplinary proceedings.
Advocate and solicitor acting for developer not to act for purchaser in housing development
Section 84
(2)
For the purpose of this section a certificate shall not be valid unless it is signed by the purchaser in the presence of a Commissioner for Oaths who is not an advocate and solicitor practising in partnership with, or as the employee of, the advocate and solicitor acting for the housing developer.
(3)
The developer and the purchaser shall each pay for the fees of its own advocate and solicitor.
(4)
In subsection (1)—
(a)
the term “housing development” has the meaning assigned to it in the *Housing Development (Control and Licensing)
Act 1966 [Act 118]; and
(b)
“sale of immovable property” includes the grant of a lease for a term exceeding three years.
(5)
Subsection (1) is without prejudice to any law affecting an advocate and solicitor who acts for parties where there is a conflict of interest or whenever a conflict of interest may arise.
(6)
An advocate and solicitor who acts in contravention of subsection (1) may be liable to disciplinary proceedings.
(7)
Subsection (1) shall not apply to any transaction where the contract for sale was entered into before the coming into operation of this
Act.
*NOTE—Previously referred to as “Housing Developers (Control and Licensing) Act 1966”–see Act A1142.
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Registrar to maintain register of firm names
Section 85
(2)
No person shall practise as an advocate and solicitor under a name that is not—
(c)
the names of his predecessors whose goodwill he has, or his partners have, acquired;
(d)
any one or the combination of the names specified in paragraphs (a), (b) and (c).
(3)
In any case where a name which complies with subsection (2)
cannot be registered without contravening subsection (1) then the person may practise under such name as he wishes which is approved by the Bar Council.
(4)
An advocate and solicitor who acts in contravention of subsection (3) may be liable to disciplinary proceedings.
(5)
The Bar Council shall, at the request of the partners practising under a firm name, and may, if it is satisfied that no one is practising under that name, remove a firm name from the register.
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Where solicitor and client relationship exists
Section 86
(2)
The Court or a Judge may order an advocate and solicitor to deliver to the applicant a list of the moneys or securities which he has in his custody or control on behalf of the applicant, or to bring into court the whole or any part of the same, within such time as the Court or Judge orders.
(3)
In the event of the advocate and solicitor alleging that he has a claim for costs, the Court or Judge may make such provision for the payment thereof or security therefor or the protection of the advocate and solicitor’s lien, if any, as the Court or Judge thinks fair and reasonable.
Where money is due from advocate and solicitor to the client
Section 87
(2)
Upon the filing of such certificate the Court or a Judge may order the moneys so certified to be paid forthwith to the client or brought into court.
Control of Property
Guilty advocate and solicitor, etc.
Section 88
(2)
Where the name of an advocate and solicitor is removed from the Roll or an advocate and solicitor is suspended from practice, he shall, within twenty-one days from the material date, satisfy the Bar
Council that he has made suitable arrangements for making available to his client or to some other advocate and solicitor or advocates and solicitors instructed by his client or by himself—
(a)
all deeds, wills, documents constituting or evidencing title to any property, papers, books of account, records, vouchers and other documents in his or his firm’s possession or control, or relating to any trust of which he is the sole trustee or co-trustee with one or more of his partners, clerks or servants; and
(b)
all sums of money due from him or his firm to, or held by him or his firm on behalf of, his clients or subject to any such trust as aforesaid.
(3)
If he fails so to satisfy the Bar Council, the said Schedule shall apply in relation to him.
(4)
In subsection (2), the expression “the material date” means the latest of whichever of the following dates:
(a)
the date when the order of the *Disciplinary Committee or of the Court by or in pursuance of which the advocate and solicitor’s name is removed from, or struck off, the Roll, or the advocate and solicitor is suspended from practice, is to take effect;
(b)
the last date on which an appeal against the order in paragraph (a) may be lodged;
*NOTE—See footnote on “Disciplinary Committee” or “Inquiry Committee” under paragraph 33(1)(d).
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(5)
In this section and in the Schedule, the words “trust” and
“trustee” have the same meanings as in subsection 78(6).
Suspension of advocate and solicitor
Section 88A
(a)
has been found guilty by a court of law of any offence involving dishonesty, misuse of his client’s moneys or dishonesty towards a client or in respect of any property belonging to a client;
(b)
has been disbarred, struck off, suspended or censured in his capacity as a legal practitioner in any other country;
(c)
in respect of whom a complaint has been made to the Bar
Council concerning any dishonest act committed by him in his capacity as an advocate and solicitor;
(d)
has left the country or has not attended at his office in such circumstances that the Bar Council may reasonably presume that he has absconded; or
(e)
is otherwise incapable, from infirmity of body or mind or any other cause, of effectively performing the functions of an advocate and solicitor, and the Bar Council considers that it would be in the public interest or in the interest of his clients or of the profession that such advocate and solicitor be suspended from practice, the Bar Council may apply by summons to the Chief Judge ex parte for an order suspending such advocate and solicitor from practice until further order.
(2)
The Chief Judge may order that the application be served on such advocate and solicitor.
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(3)
The Chief Judge if satisfied that such advocate and solicitor should be suspended from practice may make an order to that effect until any further order of the Court.
(4)
Such advocate and solicitor may within one month of the making of the order appeal against that order to the Federal Court whose decision shall be final.
(3)
shall apply mutatis mutandis to the advocate and solicitor in question; and for the purpose of subsection (4) of that section the expression “the material date” means the date of the order.
(7)
The Bar Council shall as soon as possible refer to the Disciplinary
Board a complaint against the advocate and solicitor in question.
Taking of possession of documents in the possession of advocate and solicitor
Section 89
Where an advocate and solicitor—
(a)
a complaint is made to the Bar Council that there has been undue delay on the part of an advocate and solicitor in connection with any matter in which he or his firm has been instructed on behalf of a client or any matter which relates to the administration of a trust of which that advocate and solicitor is the sole trustee or co-trustee with one or more of his partners, clerks or servants;
(b)
the Bar Council has by notice in writing invited the advocate and solicitor to give an explanation in respect of that matter;
(c)
the advocate and solicitor has, within a period of not less than twenty-one days specified in the said notice, failed to give an explanation in respect of that matter which the Bar
Council regard as sufficient and satisfactory; and
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(d)
the advocate and solicitor has been notified in writing by the Bar Council that he has so failed, the Schedule to this Act, other than paragraph 7 thereof, shall apply in relation to that advocate and solicitor, but as regards the documents specified in paragraph 1, and the sums of money specified in paragraph 9, of the Schedule, only in so far as they relate to the matter complained of:
Provided that for the purposes of the proviso to paragraph 6 of the
Schedule, the Bar Council may take copies of, or extracts from, documents which relate to the matter complained of or to that matter and to other matters in that advocate and solicitor’s practice.
(2)
In this section, the words “trust” and “trustee” have the same meanings as in subsection 78(6).
Taking of possession of property in Counsel’s possession when he is undischarged bankrupt, etc.
Section 90
Where—
(a)
is an undischarged bankrupt or a receiving order in bankruptcy is in force against him;
(b)
has entered into a composition with his creditors or a deed of arrangement for the benefit of his creditors;
(c)
has had an order of committal or an order for the issue of a writ of attachment made against him; or
(d)
is a mentally disordered person or patient as defined by the
*Mental Disorder Ordinance 1952 [Ord. 31 of 1952],
*NOTE—This Ordinance has since been repealed and replaced by the Mental Health Act 2001 [Act 615]–
see section 93 of Act 615.
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and the Bar Council or State Bar Committee have reasonable cause to believe that in consequence of the act, default or disability of the advocate and solicitor or of any clerk or servant of his—
(i)
there has been undue delay in connection with any matter in which the advocate and solicitor or his firm has been instructed on behalf of a client on any matter which relates to the administration of a trust of which the advocate and solicitor is the sole trustee or co-trustee with one or more of his clerks or servants; or
(ii)
any sum of money due from that advocate and solicitor or his firm to, or held by him or his firm on behalf of, his clients or subject to any trust of which he is such sole trustee or co-trustee as aforesaid is in jeopardy while in the control or possession of that advocate and solicitor or his firm, the Schedule to this Act, other than paragraph 7 thereof, shall apply in relation to that advocate and solicitor:
Provided that for the purposes of the proviso to paragraph 6 of the
Schedule, the Bar Council may take copies of, or extracts from, documents which relate to any matter referred to in subparagraph (i)
of this section or to any sum of money referred to in subparagraph (ii)
of this section or to that matter or sum of money, as the case may be, and to other matters in the advocate and solicitor’s practice.
(2)
In this section, the words “trust” and “trustee” have the same meanings as in subsection 78(6).
Personal representative liable for acts of advocate and solicitor
Section 91
(a)
the Bar Council has reasonable cause to believe that the personal representatives of a deceased advocate and solicitor who immediately before his death was practising as an advocate and solicitor in his own name, or as a sole
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advocate and solicitor under a firm name, have been guilty of dishonesty or undue delay in administering the affairs of that advocate and solicitor’s practice or in connection with any trust of which that advocate and solicitor was the sole trustee or co-trustee only with one or more of his clerks or servants; or
(b)
an advocate and solicitor dies and immediately before his death the Schedule applied to him, the Schedule, other than paragraph 7 thereof, shall apply in relation to the personal representatives and shall continue to apply to the personal representatives of the advocate and solicitor last mentioned as they apply or applied, as the case may be, in relation to the advocate and solicitor referred to in those provisions and as if the words “the personal representatives” were, with the necessary adaptations, substituted for the words “the advocate and solicitor” wherever these words occur in those provisions.
(2)
In this section, the words “trust” and “trustee” have the same meanings as in subsection 78(6).
Bar Council to operate bank account of deceased solicitors’ client
Section 92
On the death of an advocate and solicitor who immediately before his death was practising as an advocate and solicitor in his own name or as a sole advocate and solicitor in a firm name the right to operate, or otherwise deal with, any banking account in the name of the advocate and solicitor or his firm, being an account into which has been paid any clients’ money shall, notwithstanding anything to the contrary contained in this Act, vest in the Bar Council to the exclusion of any personal representatives of the advocate and solicitor and shall be exercisable as from the death of the advocate and solicitor.
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Part VII
PART VII
DISCIPLINARY PROCEEDINGS
Interpretation of “advocate and solicitor” in certain provisions
Section 92A
For the purposes of disciplinary proceedings under this Part, except under subsection 93(5), subsection 94(2), section 96 and paragraph 98(1)(a), “advocate and solicitor” includes a foreign lawyer registered under section 40J.
Section 93
Disciplinary Board
(2)
The Disciplinary Board shall have the same powers as those exercised by the Bar Council before the coming into force of this Part.
(3)
The Disciplinary Board shall consist of the following:
(a)
the chairman of the Disciplinary Board appointed by the
Chief Judge after consultation with the Bar Council for a term of two years and such person shall be a retired Judge of the High Court or the Court of Appeal or the Federal
Court or any other person who is qualified to be a Judge of the High Court or the Court of Appeal or the Federal
Court:
Provided that the Chief Judge may, after consultation with the Bar Council, extend such term of appointment for another two years and may reappoint for another period not exceeding two years;
(b)
the President of the Malaysian Bar or any member of the
Bar Council as his representative; and
(c)
fifteen practitioner members of the Malaysian Bar of not less than ten years’ standing appointed by the Chief Judge
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for a term of two years after consultation with the Bar
Council:
Provided that the Chief Judge may, after consultation with the Bar Council, extend such term of appointment for a period not exceeding a further two years.
(3B)
The qualification referred to in paragraph (3)(a) shall not in any way relate to the age of the person.
(4)
The quorum of the Disciplinary Board shall be seven members of whom one member shall be from paragraph (3)(a), one member from paragraph (3)(b) and five members from paragraph (3)(c):
Provided that the number of members from paragraph (3)(c) may be increased accordingly if the provisions of subsection (4A) or (4C)
applies in order to maintain the quorum at seven members.
(4A)
The chairman of the Disciplinary Board shall preside at the meetings of the Disciplinary Board and if the chairman disqualifies himself pursuant to subsection (4C) or if the chairman is unable, through illness or any other cause, to attend the meeting, the President of the
Malaysian Bar shall preside at the meeting.
(4B)
If the President of the Malaysian Bar also disqualifies himself from deliberating on any complaint pursuant to subsection (4C) or is unable, through illness or any other cause, to attend the meeting, the members present shall elect one of their number to preside at the meeting for the purposes of the complaint.
(4C)
The Chairman of the Disciplinary Board, the President of the
Malaysian Bar and any other member of the Disciplinary Board shall, where it is necessary in the interest of justice, disqualify himself from deliberating on any complaint.
(5)
The Secretary to the Disciplinary Board shall be a full time employee of the Bar Council appointed under section 98 and such person shall be—
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(b)
an advocate and solicitor of not less than three years’
standing and who has, in addition, worked with the Bar
Council or the Disciplinary Board for not less than two years.
(6)
The Disciplinary Board may make rules relating to its quorum and to regulate its procedure.
Power of Disciplinary Board to strike off the Roll, suspend for misconduct, etc.
Section 94
(2)
Any advocate and solicitor who has been guilty of any misconduct shall be liable to one or more of the following penalties or punishments:
(3)
For the purposes of this Part, “misconduct” means conduct or omission to act in Malaysia or elsewhere by an advocate and solicitor in a professional capacity or otherwise which amounts to grave impropriety and includes—
(a)
conviction of a criminal offence which makes him unfit to be a member of his profession;
(b)
breach of duty to a court including any failure by him to comply with an undertaking given to a court;
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(d)
breach of any rule of practice and etiquette of the profession made by the Bar Council under this Act or otherwise;
(e)
being adjudicated a bankrupt and being found guilty of any of the acts or omissions mentioned in paragraph 33(6)(a),
(f)
the tendering or giving of any gratification to any person for having procured the employment in any legal business of himself or any other advocate and solicitor;
(g)
directly or indirectly procuring or attempting to procure the employment of himself or any other advocate and solicitor through or by the instruction of any person to whom any remuneration for obtaining such employment has been given by him or agreed or promised to be so given;
(i)
allowing any unauthorized person to carry on legal business in his name without his direct and immediate control as principal or without proper supervision;
(j)
the carrying on by himself, directly or indirectly, of any profession, trade, business or calling which is incompatible with the legal profession or being employed for reward or otherwise in any such profession, trade, business or calling;
(k)
the breach of this Act or of any rules made thereunder or any direction or ruling of the Bar Council;
(l)
the disbarment, striking off, suspension or censure in his capacity as a legal practitioner in any other country or
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being guilty of conduct which would render him to be punished in any other country;
(m)
the charging, in the absence of a written agreement, in respect of professional services rendered to a client, of fees or costs which are grossly excessive in all the circumstances;
(o)
being guilty of any conduct which is unbefitting of an advocate and solicitor or which brings or is calculated to bring the legal profession into disrepute.
(4)
Where an advocate and solicitor—
(a)
has been found guilty by a court of law of any offence involving dishonesty, misuse or misappropriation of any money or property of a client or of any other person;
(b)
has been disbarred, struck off, suspended, reprimanded or censured in his capacity as a legal practitioner in any other country;
(c)
is the subject of a complaint concerning any dishonest act committed by him in his capacity as an advocate and solicitor;
(d)
has left the country or has not attended at his office in such circumstances that the Bar Council may reasonably presume that he has absconded; or
(e)
is otherwise incapable from infirmity of body or mind or any other cause of effectively performing the functions of an advocate and solicitor, and the Bar Council considers that it would be in the public interest or in the interest of his clients or of the profession that such advocate and solicitor be suspended from practice, the Bar Council may apply to the
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Disciplinary Board for an order suspending such advocate and solicitor from practice until further notice.
(4A)
Notwithstanding subsection (2), any registered foreign lawyer who has been guilty of any misconduct shall be liable to be suspended, for any period not exceeding five years, or revocation of his registration or reprimanded or censured or ordered to pay a fine, as the case may be.
(5)
A pupil shall mutatis mutandis be subject to the same control by the Disciplinary Board as is by virtue of this section exercised over an advocate and solicitor, and any reference to advocate and solicitor in this Part shall mutatis mutandis include a pupil but in lieu of an order striking him off the Roll or suspending him, an order may be made prohibiting the pupil from proceeding with any petition for admission until after a date to be specified in the order.
(6)
For the purpose of this section, “pupil” includes a person who has completed the prescribed period of pupillage and has yet to be admitted as an advocate and solicitor.
Disciplinary Committee Panel
Section 95
For the purposes of disciplinary proceedings under this Part, there shall be established a Disciplinary Committee Panel with a Disciplinary
Committee established under it.
Section 96
Appointment of Disciplinary Committee Panel
(2)
Every member of the Disciplinary Committee Panel shall serve for two years:
Provided that the Disciplinary Board may extend his term for a period not exceeding a further two years or reappoint him.
Section 97
(Deleted by Act A1269).
Section 98
Director and staff of the Complaints Secretariat
(i)
of not less than five years’ standing; or
(ii)
of not less than three years’ standing and who has, in addition, worked with the Bar Council or the
Disciplinary Board for not less than two years, to the office of the Director of Complaints Secretariat; and
(3)
The Bar Council shall be responsible for the remuneration of the Director and the staff and shall have the power to revoke their appointment.
(4)
The Director shall be responsible for the daily administration of complaints against advocates and solicitors under this Part.
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Complaint against advocate and solicitor or pupil
Section 99
(2)
Any court including the Industrial Court and a Syariah Court,
Judge, Sessions Court Judge or Magistrate or the Attorney General may at any time refer to the Disciplinary Board any complaint against an advocate and solicitor or a pupil.
(3)
Nothing in this section shall be taken to preclude the Bar
Council or a State Bar Committee from making any complaint of its own motion to the Disciplinary Board against an advocate and solicitor or a pupil.
(3A)
No complaint concerning the conduct of any advocate and solicitor or of any pupil shall be inquired into by the Disciplinary
Board after the expiration of six years from the date when the right of action to bring the complaint accrued:
Provided that where—
(a)
the complaint is based upon the fraud of the advocate and solicitor or his agent or of any person through whom he or his agent claims; or
(b)
the right of action to bring the complaint is concealed by the fraud of the advocate and solicitor or of his agent or any person through whom he or his agent claims, the period of limitation shall not begin to run until the complainant has discovered the fraud, or could with reasonable diligence have discovered it.
(4)
Where a complaint is made against a legal firm, it shall be deemed to be a complaint made—
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(a)
in the case of a sole proprietorship, against the advocate and solicitor who was at the material time the sole proprietor of the legal firm; or
(b)
in the case of a partnership, against all the advocates and solicitors who were at the material time partners of the legal firm, unless the legal firm satisfies the Disciplinary Board of the identity of the advocate and solicitor in the legal firm against whom the complaint has arisen.
(5)
Where at any stage of the proceedings the Disciplinary Board is satisfied that a complaint made against a legal firm should be directed against a particular advocate and solicitor, the Disciplinary
Board shall forthwith replace the name of the legal firm with the name of the advocate and solicitor concerned.
(6)
For the purpose of this section, “legal firm” includes an international partnership or a qualified foreign law licensed under
Part IVA.
Inquiry into application or complaint
Section 100
(a)
there is no merit in the application or complaint, dismiss the application or complaint and notify the complainant and the advocate and solicitor of its decision; or
(i)
post or deliver to the advocate and solicitor concerned a copy of the application or complaint together with all supporting documents, if any, furnished to the Disciplinary Board; and
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(ii)
request the advocate and solicitor to furnish his written explanation in quadruplicate together with supporting documents, if any, within fourteen days of the request or within such longer time as the
Disciplinary Board may allow.
(2)
Where the advocate and solicitor does not furnish his written explanation to the Disciplinary Board as requested under subparagraph (1)(b)(ii), the Disciplinary Board shall proceed to appoint a Disciplinary Committee.
(3)
Where the advocate and solicitor has furnished his written explanation to the Disciplinary Board under subparagraph (1)(b)(ii), the Disciplinary Board shall review the matter and—
(a)
if it is satisfied that there is no merit in the application or complaint, dismiss the application or complaint and notify the parties accordingly; or
(b)
if it is still of the view that there is merit in the application or complaint, proceed to appoint a Disciplinary Committee.
(4)
Notwithstanding subsection (2) and paragraph (3)(b), if the
Disciplinary Board considers that the application or complaint may be dealt with summarily, it shall give a written notice to the advocate and solicitor to determine whether the advocate and solicitor agrees that the application or complaint be dealt with summarily.
(5)
If the advocate and solicitor fails to respond within fourteen days from the date of the notice referred to in subsection (4), the
Disciplinary Board shall proceed to appoint a Disciplinary Committee.
(6)
If the advocate and solicitor agrees that the application or complaint be dealt with summarily, the Disciplinary Board may, having ascertained that the advocate and solicitor understands the nature and consequences of the application or complaint being dealt with summarily, proceed to do so.
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(7)
After dealing summarily with the application or complaint, the
Disciplinary Board may impose one or more of the following penalties or punishments:
(i)
not exceeding five thousand ringgit on the advocate and solicitor if no cause of sufficient gravity exists for a formal inquiry; or
(ii)
not exceeding fifty thousand ringgit on the advocate and solicitor where the advocate and solicitor has admitted to the misconduct or the material facts establishing the misconduct or where the material facts establishing the misconduct are evident and do not warrant further inquiry;
(c)
suspend the advocate and solicitor from practice or in the case of a foreign lawyer, recommend to the Bar Council for his suspension, as the case may be, for such period not exceeding five years as the Disciplinary Board deems appropriate in the circumstances; or
(d)
strike the advocate and solicitor off the Roll or in the case of a foreign lawyer, recommend to the Bar Council for the revocation of his registration.
(8)
Notwithstanding subsection (7), the Disciplinary Board may also make an order of restitution of the complainant’s monies if it is established that such monies were or are held by the advocate and solicitor in his professional capacity and the complainant is entitled to the return of such monies or part thereof.
(9)
Before imposing any one or more of the penalties or punishments under subsection (7) or making an order of restitution under subsection (8), the Disciplinary Board shall notify the advocate and solicitor of its intention to do so and give him a reasonable opportunity to be heard.
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(10)
An order of restitution made pursuant to subsection (8) shall be deemed to be an order of the High Court and be enforced accordingly by the complainant.
(11)
If the advocate and solicitor does not agree that the application or complaint be dealt with summarily, the Disciplinary Board shall proceed to appoint a Disciplinary Committee pursuant to section 103A.
(12)
The Disciplinary Board may, at any stage after an application or a complaint has been received, require the production of such further documents or explanations from either the complainant or the advocate and solicitor or both or from such other person as the Disciplinary
Board may require, and the parties to the application or complaint shall be provided with all such documents or explanations.
(13)
Any advocate and solicitor or any other person who without reasonable excuse refuses or fails to produce to the Disciplinary Board any document or fails to give any information which may relate to or be connected with the subject matter of the complaint shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding two thousand ringgit or to a term of imprisonment not exceeding three months or to both.
(14)
The Disciplinary Board may, at any stage of an inquiry into an application or complaint, determine that a formal inquiry is required and appoint a Disciplinary Committee accordingly.
(15)
Nothing in this section shall preclude the Disciplinary Board from dismissing an application or complaint at any stage.
Section 101
(Deleted by Act A1269).
Section 102
(Deleted by Act A1269).
Section 103
Effect of Disciplinary Board’s order of fine or restitution
(2)
A fine payable under this section shall be deemed to be a debt outstanding to the Malaysian Bar and may be recoverable as a civil debt.
Appointment of Disciplinary Committee
*103A. (1) Where—
(a)
the Disciplinary Board determines that a Disciplinary
Committee ought to be appointed;
(b)
an advocate and solicitor has been convicted of an offence of criminal breach of trust under section 409 of the Penal Code
[Act 574] or any other offence involving fraud or dishonesty;
or
(c)
the advocate and solicitor has been suspended under subsection 94(4), the Disciplinary Board shall, as soon as may be practicable, appoint a
Disciplinary Committee.
(2)
A Disciplinary Committee shall consist of three members of whom shall be—
*NOTE—see subsections 35(1) –
(3)
of the Legal Profession (Amendment) Act 2006 [Act A1269].
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(3)
The Disciplinary Board shall at the time of appointment of a
Disciplinary Committee appoint a member from paragraph (2)(a) to be the chairman of the Disciplinary Committee.
Inquiry by the Disciplinary Committee
Section 103B
(1A)
The Disciplinary Committee shall keep a note of the proceedings of the inquiry and submit the findings and the notes of the proceedings to the Disciplinary Board.
(2)
For the purposes of any inquiry under subsection (1) the
Disciplinary Committee may—
(a)
require the production for inspection by the Disciplinary
Committee of any book, document or paper which may relate to or be connected with the subject matter of the inquiry and may require any person to give information in relation to such book, document or paper;
(b)
require such person concerned to give all information in relation to any such book, document or paper which may be reasonably required by the Disciplinary Committee;
and
(c)
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 inquiry.
(3)
Any—
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(a)
advocate and solicitor or any other person who, without reasonable excuse, refuses or fails to produce to the
Disciplinary Committee for inquiry any book, document or paper or fails to give any such information relating thereto under paragraph (2)(a) or (b); and
(b)
person who, without reasonable excuse, refuses or fails to appear to give oral evidence under paragraph 2(c), shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding two thousand ringgit or to a term of imprisonment not exceeding three months or to both.
(4)
Before the Disciplinary Committee commences its hearing in respect of any matter, the Disciplinary Committee shall post or deliver to the advocate and solicitor concerned—
(a)
a copy of any written application or complaint and of any statutory declaration or affidavit that has been made in support of the written application or complaint; and
(b)
a notice inviting the advocate and solicitor concerned, within such period being not less than fourteen days as may be specified in the notice—
(i)
to give to the Disciplinary Committee any written explanation he may wish to offer which may be additional to any previous written explanation he may have proffered under section 100; and
(ii)
to advise the Disciplinary Committee if he wishes to be heard by the Disciplinary Committee.
(5)
The Disciplinary Committee shall allow the time specified in the notice to elapse and give the advocate and solicitor concerned reasonable opportunity to be heard if he so desires and shall give due consideration to any explanation he may make.
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Findings and recommendations of the Disciplinary Committee
Section 103C
(a)
that no cause for disciplinary action exists and that the application or complaint be dismissed;
(b)
that cause for disciplinary action exists but is not of sufficient gravity to warrant any punishment other than a reprimand or censure or that the circumstances are such that the advocate and solicitor should only be reprimanded or censured; or
(c)
that cause for disciplinary action exists and is of sufficient gravity to warrant the advocate and solicitor to be subject to one or more of the following penalties or punishments:
(i)
reprimand or censure;
(iii)
suspension of the advocate and solicitor from practice, or in the case of a foreign lawyer, recommendation to the Bar Council for suspension of registration, for such period not exceeding five years as the Disciplinary Committee deems appropriate in the circumstances; or
(iv)
striking the advocate and solicitor off the Roll or in the case of a foreign lawyer, recommendation to the Bar Council for revocation of the registration of the foreign lawyer.
(2)
The Disciplinary Committee may in appropriate cases in addition to its recommendation of an appropriate penalty or punishment recommend that the Disciplinary Board make an order of restitution by the advocate and solicitor of the complainant’s monies if
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it is established that such monies were or are held by the advocate and solicitor in his professional capacity and the complainant is entitled to the return of such monies or part thereof.
Consideration by the Disciplinary Board of the report of the
Disciplinary Committee
Section 103D
(2)
The Disciplinary Board may in appropriate cases impose a greater or lesser penalty or punishment than that recommended by the
Disciplinary Committee.
(3)
Where the Disciplinary Board does not agree with the finding or recommendation of the Disciplinary Committee, the Disciplinary
Board shall make such other order as it deems just.
(4)
Before the Disciplinary Board makes an order that is likely to be adverse against an advocate and solicitor under subsection (2) or (3), it shall notify the advocate and solicitor of its intention to do so and give him a reasonable opportunity to be heard.
(5)
Where the Disciplinary Board makes an order that the advocate and solicitor should make restitution to the complainant, it may stipulate the time within which such restitution ought to be made.
(6)
A sum ordered by the Disciplinary Board under subsection (5)
to be restituted may be recoverable by the complainant as a civil debt.
Appeal from the final order or decision of the Disciplinary Board
Section 103E
(c)
under section 103D, shall have the right to appeal to the High Court within one month of the receipt of the notification of that order or decision.
(4)
The appeal shall be by way of an originating motion setting out the ground of appeal supported by affidavit.
(5)
Any appeal against the decision of the High Court shall lie to the Court of Appeal and thereafter to the Federal Court.
(6)
The Bar Council may in its discretion intervene at any stage of any appeal under this section.
(7)
The Disciplinary Board shall not be cited as a party in any appeal under this section.
(8)
(Deleted by Act A1444).
Objection from any decision, etc., other than final order or decision made by the Disciplinary Board
103EA. (1)
Where a party is aggrieved by any decision, order, ruling or direction of the Disciplinary Committee or the Disciplinary Board, other than a final order or decision made by the Disciplinary Board referred to in section 103E, the aggrieved party may file an objection in writing in respect of any such decision, order, ruling or direction with the Disciplinary Committee or Disciplinary Board, as the case may be, within fourteen days of being duly notified of the decision, order, ruling or direction.
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(2)
Where the objection raised is in respect of the composition or participation of any member of the Disciplinary Committee or the
Disciplinary Board, as the case may be, in meetings, proceedings or inquiries before the Disciplinary Committee or Disciplinary Board, the procedures to deal with the objection shall be as set out in the rules made under this Part.
(3)
After the objection referred to in subsection (2) has been dealt with, the Disciplinary Committee or the Disciplinary Board, as the case may be, shall proceed with the inquiry or proceeding until its completion.
(4)
Where the objection raised is not related to matters referred to in subsection (2), the Disciplinary Committee or Disciplinary Board, as the case may be—
(a)
shall make such decision, order, ruling or direction on the objection as it deems just; and
(5)
Where the inquiry or proceeding referred to in subsection (3)
and paragraph (4)(b)—
(a)
is before the Disciplinary Committee, after the completion of the inquiry or proceeding, the Disciplinary Committee shall make its recommendation to the Disciplinary Board pursuant to section 103C; or
(b)
before the Disciplinary Board, after the completion of the inquiry or proceeding, the Disciplinary Board shall make its order or decision pursuant to section 103D.
(6)
The order or decision of the Disciplinary Board under paragraph (5)(b) shall be suspended from coming into effect for thirty days from the date of the order or decision or to such further time as the Court may allow to enable an aggrieved party to apply to the Court for a review.
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(7)
If an aggrieved party does not apply for review, the order or decision of the Disciplinary Board shall take effect immediately upon the expiration of the period of thirty days.
(8)
Nothing in this section shall preclude an aggrieved party from raising any objections under this section as grounds of appeal in any appeal he may file under section 103E.
Costs against frivolous or vexatious application or complaint
103EB. (1) Where the Disciplinary Board—
(a)
determines that the application or complaint be dismissed under paragraph 100(1)(a) or (3)(a) or subsection 103D(1);
and
(b)
further records the opinion that the application or complaint was frivolous or vexatious, the advocate and solicitor may, by originating summons to be heard before a judge, ask the Court to order that costs of the application or complaint shall be paid by the person who made the application or complaint.
(2)
After hearing the summons, the Court may determine the quantum of such costs, and may order that those costs or any part thereof shall be paid by that person.
(3)
Any order made by the Court pursuant to this section shall be enforceable in the same manner as any other order for costs made in proceedings in the Court.
Power to make rules
Section 103F
(2)
Any rules made under this Part shall not come into operation until they have been published in the Gazette.
Section 103G
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(Deleted by Act A1269).
Section 103H
Establishment of Discipline Fund
(2)
Every advocate and solicitor shall on each occasion he applies for a Sijil Annual pay to the Malaysian Bar a contribution to the Discipline
Fund of such sum as the Bar Council may from time to time determine:
Provided that where an advocate and solicitor is applying for a practising certificate which is to be valid for a period which is less than six months in a calendar year, he shall be required to pay a contribution of only one half of the sum determined for that year.
(3)
All costs, charges and expenses for the purposes of any disciplinary proceeding under this Act shall be defrayed out of the
Discipline Fund.
Payment of fees, fine, costs, etc., into Discipline Fund
Section 103I
There shall be paid into the Discipline Fund the fees prescribed pursuant to section 140 and any fine, penalty, or any other payment ordered by the Disciplinary Board to be paid.
Section 103J
Power to make rules
The Disciplinary Board may, in consultation with the Bar
Council and with approval of the Minister, make such rules as may be expedient or necessary for the better carrying out of the provisions of this Part of this Act.
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Section 104
(Deleted by Act A567).
Section 105
Advocate and solicitor may apply to remove his name from the Roll
(2)
Every such application shall be made by way of originating motion and shall be supported by an affidavit in the prescribed form which shall be served on the Bar Council not less than two months before the application is heard.
(3)
The Bar Council may for good cause require the applicant to advertise his intention to make the application in such manner as the
Bar Council shall direct.
(4)
An application under this section shall be heard by a Judge sitting in open court.
(5)
No order shall be made on an application under this section if the Judge is satisfied that—
(6)
On the hearing of any such application the Judge may make an order—
(b)
adjourning the same sine die or to such date as the Judge seems fair and reasonable, and such order for the payment of costs as may be just.
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Bar Council to give Registrar notice of order adverse to advocate and solicitor
Section 106
The Bar Council shall give the Registrar notice of every order made under this Part that is adverse to an advocate and solicitor, and the
Registrar shall cause a notice of the effect of that order to be entered on the Roll against the name of the advocate and solicitor concerned:
Provided that an order as to costs only need not be so entered on the
Roll.
Section 107
High Court may restore an advocate and solicitor
(2)
Any application that the name of an advocate and solicitor be restored to the Roll shall be by originating motion supported by affidavit, before the High Court.
(3)
Notice of the motion shall be served on the Bar Council which shall be represented at the hearing of the motion and shall place before the Court a report which shall include copies of the record of any proceedings as the result of which the name of the advocate and solicitor was removed from, or struck off, the Roll and a statement of any facts which have occurred since the name of the advocate and solicitor was removed from, or struck off, the Roll and which in the opinion of the Bar Council or any member of it are relevant to be considered or to be investigated in connection with the application.
(5)
Any appeal against the decision of the High Court shall lie to the Court of Appeal and thereafter to the Federal Court.
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Costs for proceedings under this Part
Section 108
The costs of and incidental to all proceedings under this Part shall be at the discretion of the Court hearing the proceedings and may include the costs of the Bar Council and the costs of proceedings before the Disciplinary Committee.
Section 109
If person inquired fails to attend
If the person whose conduct is the subject of inquiry fails to attend before the Court or the Disciplinary Committee, as the case may be, the inquiry or proceedings may be proceeded with without further notice to such person upon proof of service by affidavit or statutory declaration or in such other manner as the Court may direct.
Section 110
Publication and document presumed evidence of facts therein stated
(2)
When the person whose conduct is the subject of inquiry does not appear and the Disciplinary Committee determines under section 109 to proceed in his absence and in any other case with the consent in writing of that person, the Disciplinary Committee may either as to the whole case or as to any particular fact or facts, proceed and act on evidence by affidavit or statutory declaration.
No action against Disciplinary Committee, etc. for act done
Section 111
No action or proceeding shall lie against the Disciplinary
Committee, the Disciplinary Board, the Malaysian Bar, the Bar
Council or any State Bar Committee or any member thereof for any act
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or thing done under this Act including any pronouncement or publication of any decision of the Disciplinary Board unless it is proved to the Court that the act or thing was done in bad faith or with malice.
Part VIII
PART VIII
REMUNERATION OF ADVOCATES AND SOLICITORS
No advocate and solicitor to purchase interest of client
Section 112
(a)
purchase or agree to purchase either directly or indirectly an interest or any part of the interest which is the subject matter of his client or that of the other party in the same suit, action or other contentious proceeding brought or to be brought or maintained; or
(b)
enter into any agreement by which he is retained or employed to prosecute any suit or action or other contentious proceeding which stipulates for or contemplates payment only in the event of success in such suit, action or proceeding.
(2)
Nothing in this Act shall be construed to legalise any purchase or agreement prohibited by subsection (1) or to any disposition, contract, settlement, conveyance, delivery, dealing or transfer which is void or invalid against—
(b)
a liquidator or receiver under the law relating to the winding up of companies; or
(c)
a creditor in any composition.
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The Solicitors Costs Committee
Section 113
(a)
the Chief Judge or a Judge of the High Court nominated by the Chief Judge (in this section referred to as “the Chief
Judge or his nominee”);
(b)
the Attorney General or a member of the Attorney
General’s Chambers nominated by the Attorney General;
(c)
the Chief Registrar or a Senior Assistant Registrar nominated by the Chief Registrar;
(2)
The Solicitors Costs Committee shall be convened by the Chief
Judge at the request of any of its members.
(3)
The Solicitors Costs Committee or any four of the members of the Committee (the Chief Judge or his nominee being one) may make general orders prescribing and regulating in any manner as they think fair and reasonable the remuneration of advocates and solicitors in respect of non-contentious business and any order made under this section may revoke or alter any previous order so made.
(4)
An order made under this section may, as regards the mode of remuneration, prescribe that it shall be according to a scale of rates or commission or percentage, varying or not in different classes of business, or by a gross sum, or by a fixed sum for each document prepared or perused, without regard to length, or in any other mode, or partly in one mode and partly in another, and may regulate the amount or remuneration with reference to all or any of the following, among other, considerations:
(a)
the position of the party for whom the advocate and solicitor is concerned in the business, whether as vendor or
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purchaser, lessor or lessee, mortgagor or mortgagee, and the like;
(b)
the place where, and the circumstances in which, the business or any part it is transacted;
(d)
the skill, labour and responsibility involved on the part of the advocate and solicitor;
(e)
the number and importance of the documents prepared or perused, without regard to length.
(5)
An order under this section may authorize and regulate—
(a)
the taking by an advocate and solicitor from his client of security for payment of any remuneration, to be ascertained by taxation or otherwise, which may become due to him under any such order; and
(6)
So long as an order made under this section is in operation, taxation of bills of costs of advocates and solicitors in respect of non-contentious business shall, subject to section 121, be regulated by that order.
(7)
Section 136 shall apply to any order made under this section.
Advocate and solicitor may make agreement for remuneration from client
Section 114
(2)
The agreement may provide for the remuneration of the advocate and solicitor by a gross sum, or by commission or percentage, or by salary, or otherwise, and it may be made on the terms that the amount of the remuneration stipulated in the agreement shall or shall not include all or any disbursements made by the advocate and solicitor in respect of searches, plans, travelling, stamps, fees or other matters.
(3)
The agreement shall be in writing and signed by the person bound by it or as his agent on his behalf.
(4)
The agreement may be sued and recovered on or set aside in the like manner and on the like grounds as an agreement not relating to the remuneration of an advocate and solicitor:
Provided that if on any taxation of costs the agreement is relied on by the advocate and solicitor and objected to by the client as unfair or unreasonable, the taxing officer may inquire into the facts and certify them to the Court, and if on that certificate it appears just to the Court that the agreement should be cancelled, or the amount payable thereunder reduced, the Court may order the agreement to be cancelled, or the amount payable to be reduced, and may give such consequential directions as the Court thinks fair and reasonable.
Advocate and solicitor entitled to costs of negotiation of mortgagor
Section 115
(2)
If a mortgage has been made to, or has become vested by transfer or transmission in, an advocate and solicitor either alone or jointly with any other person, and any business is transacted or acts are done by that advocate and solicitor, or by the firm of which he is a member, in relation to that mortgage or the security thereby created or the property comprised thereunder, then he or they shall be entitled to recover from the mortgagor on whose behalf the business was transacted or the acts were done, and to charge against the security, such usual costs as he or they would have been entitled to receive if the mortgage had been made to, and had remained vested by transfer or transmission in, a person who was not an advocate and solicitor and that mortgagor has retained and employed him to transact that business and do these acts.
(3)
In this section, the word “mortgage” includes any charge on any property for securing money or money’s worth.
Contentious Business
Advocate and solicitor may enter agreement for costing contentious business
Section 116
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(2)
Every such agreement shall be signed by the client and shall be subject to this Part.
Costs recoverable from client by other person not attested
Section 117
(2)
Such an agreement shall be deemed to exclude any further claim of the advocate and solicitor beyond the terms of agreement in respect of any services, fees, charges or disbursements in relation to the conduct and completion of the business in reference to which the agreement is made, except such services, fees, charges or disbursements, if any, as are expressly excepted by the agreement.
(3)
Subject to this Part, the costs of an advocate and solicitor in any case where there is any agreement as is referred to in section 116, shall not be subject to taxation, nor to section 124.
(4)
A provision in any such agreement which states that the advocate and solicitor shall not be liable for negligence, or that he shall be relieved from any responsibility to which he would otherwise be subject as an advocate and solicitor, shall be wholly void.
Enforcement of agreements
Section 118
(2)
Upon any such summons, motion or petition, if it appears to the
Court or a Judge that such agreement is in all respects fair and reasonable between the parties, the agreement may be enforced by the
Court or a Judge by rule or order, in the manner and subject to the conditions, if any, as to the costs of the summons, motion or petition as the Court or the Judge thinks fair and reasonable.
(3)
If the substantive terms of any agreement are deemed by the
Court or the Judge to be unfair or unreasonable, the agreement may be declared void, and the Court or Judge may thereupon order the agreement to be given up for cancellation, and may direct the cost, fees, charges and disbursements incurred or chargeable in respect of the matters included therein to be taxed, in the same manner and according to the same rules as if the agreement has not been made:
Provided that the Court or Judge may amend or ratify the agreement where not all the substance of the agreement is unfair or unreasonable.
(4)
The Court or the Judge may also make such order as to the costs relating to the summons, motion or petition and the proceedings thereon as to the Court or the Judge seems fair and reasonable.
(5)
When the amount agreed under such agreement has been paid by or on behalf of the client or by any person chargeable with or entitled to pay the same, any Court or a Judge having jurisdiction to examine and enforce the agreement may, on application by the person who has paid the amount within twelve months after payment and, if it appears to the Court or Judge that the special circumstances of the case require the agreement to be reopened, reopen the agreement and order the costs, fees, charges and disbursements to be taxed, and the whole or any portion of the amount received by the advocate and solicitor to be repaid by him, on such terms and conditions as to the Court or Judge seems fair and reasonable.
(6)
Where any agreement is made by the client in the capacity of guardian or of trustee under a deed or will, or of committee of any person or persons whose estate or property will be chargeable with the
138 Laws of Malaysia ACT 166
amount payable under the agreement or with any part of the amount, the agreement shall before such payment be laid before the Registrar for his examination and the Registrar may disallow any part thereof, or may require the direction of the Court or a Judge to be taken thereon by summons, motion or petition.
(7)
If in any such case—
(a)
the client pays the whole or any part of the amount payable under the agreement without the previous approval of the
Registrar or the Court or the Judge, he shall be liable at any time to account to the person whose estate or property is charged with the amount paid, or with any part thereof, for the amount so charged; and
(b)
the advocate and solicitor accepts payment without such approval, any court which would have had jurisdiction to enforce the agreement may, if it thinks fair and reasonable, order him to refund the amount so received by him under the agreement or any part thereof.
Any party may set aside agreement of deceased advocate and solicitor not performed
Section 119
(2)
The Court, even if it considers the agreement to be in all respects fair and reasonable, may order the amount due in respect of the business done thereunder to be ascertained by taxation.
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(3)
The Registrar in ascertaining any such amount shall have regard, so far as may be, to the terms of the agreement.
(4)
Payment of the amount found to be due may be enforced in the same manner as if the agreement had been completely performed by the advocate and solicitor.
Where client changes counsel before agreement performed
Section 120
(2)
Upon any order being made for taxation of the amount due to an advocate and solicitor in respect of business done under the agreement, the Court shall direct the Registrar to have regard to the circumstances under which the change of advocate and solicitor has taken place.
(3)
Upon taxation the advocate and solicitor shall not be considered to be entitled to the full amount of the remuneration agreed to be paid to him unless it appears that there has been no default, negligence, improper delay or other conduct on his part affording reasonable ground to the client for changing his advocate and solicitor.
Where remuneration of advocate and solicitor not subject of agreement
Section 121
(a)
at any time before service upon him of a writ or other originating process for the recovery of costs included in a gross sum bill and before the expiration of three months from the date of the delivery to him of the bill, the party chargeable therewith may require the advocate and solicitor to deliver to him in lieu of the cost a bill containing detailed items, and the gross sum bill shall thereupon be of no effect;
(b)
where an action is commenced on a gross sum bill, the Court shall, if so requested by the party chargeable therewith before the expiration of one month from the service on that party of the writ or other originating process, order that the bill shall be taxed;
(c)
if a gross sum bill is referred to taxation, whether under this section or otherwise, nothing in this section shall prejudice any rules of court with respect to taxation and the advocate and solicitor shall furnish the taxing officer with such details of any of the costs covered by the bill as the taxing officer may require.
(2)
Subsection (1) shall not apply to fees paid to an advocate and solicitor who is briefed as a senior counsel.
Part IX
PART IX
RECOVERY AND TAXATION OF COSTS
Advocate and solicitor defined
Section 122
In this Part, the expression “advocate and solicitor” includes the executors, administrators and assignees of the advocate and solicitor in question.
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Section 123
Advocate and solicitor entitled to charge on property for costs
Any court in which an advocate and solicitor has been employed to prosecute or defend any suit, matter or proceeding may at any time declare the advocate and solicitor entitled to a charge on the property recovered or preserved in such suit, matter or proceeding for such advocate and solicitor’s taxed costs in reference to that suit, matter or proceeding, and may make such orders for the taxation of the costs and for raising money to pay, or for paying, the costs out of the property as it thinks fair and reasonable, and all conveyance and acts done to defeat, or operating to defeat, that charge shall, except in the case of a conveyance to a bona fide purchaser for value without notice, be void as against the advocate and solicitor:
Provided that no order shall be made if the right to recover the costs is barred by the Limitation Act 1953 [Act 254].
Section 124
No advocate and solicitor to sue for costs until delivery of bill of cost
(2)
Where a bill is proved to have been delivered in compliance with subsection (1) it shall not be necessary in the first instance for the advocate and solicitor to prove the contents of the bill and it shall be presumed until the contrary is shown to be a bill bona fide complying with this Act.
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Power of court to authorize solicitor to commence action
Section 125
The Court may authorize an advocate and solicitor to commence an action for recovery of his costs and also refer his bill of costs for taxation by the Registrar, although one month has not expired from the delivery of the bill, upon proof to its satisfaction that any party chargeable therewith is about to quit Malaysia, or to have a receiving order made against him, or to compound with his creditors or to take any other steps or do any other act which in its opinion would tend to defeat or delay the advocate and solicitor in obtaining payment.
An order for taxation of costs to be made within 6 months of delivery of bill of costs
Section 126
(2)
The order shall contain such directions and conditions as the court thinks proper, and any party aggrieved by any order of Court may apply by summons in chambers that the same may be amended or varied or set aside.
(3)
In any case where an advocate and solicitor and his client consent to taxation of a solicitor’s bill the Registrar may proceed to tax the bill notwithstanding that there is no order therefor.
The cost of obtaining an order for taxation
Section 127
The costs of obtaining an order for taxation of costs, including the petition order and service of order, other than any court fees payable thereon or disbursements, if the order is obtained by consent by the advocate and solicitor of either party shall be the sum of twenty five ringgit:
Legal Profession 143
Provided that if one of the parties does not consent to taxation the cost of obtaining an order of court shall be the sum of one hundred and fifty ringgit.
Section 128
Order for taxation of advocate and solicitor’s bill on notice given
(2)
No such order for taxation shall in any event be made after the expiry of one year from the delivery of the bill of costs.
Petition by party liable for a bill of costs
Section 129
All petitions by a party chargeable with or liable for a bill of costs shall, unless the same has been already paid, contain a submission by the party to pay the amount of the bill of costs to the advocate and solicitor when taxed.
Section 130
Order for delivery of solicitor’s bill of costs by way of petition
(2)
Upon the petition being filed, the Registrar shall mark the order thereon forthwith, and draw up the order if necessary.
(3)
Subject to this section, the Court shall have the like jurisdiction as the High Court in England to make an order under subsection (1).
144 Laws of Malaysia ACT 166
Court may order advocate and solicitor to deliver copy of bill to applicant
Section 131
When application is made by a party other than the party chargeable, the Court may order the advocate and solicitor to deliver to the party making the application a copy of the bill, upon payment of the costs of making the copy.
Section 132
Bill of costs to follow Rules of Court
Bills of costs for taxation as between advocate and solicitor and client shall be drawn in the manner provided by *the Rules of the High
Court, and the taxation shall be governed by the Rules.
Section 133
Registrar may allow interest on money disbursed by counsel
The Registrar may allow interest at any rate and from any time as he thinks fair and reasonable on moneys disbursed by an advocate and solicitor for his client, and on moneys of the client in the hands of the advocate and solicitor and improperly retained by him.
Section 134
Costs of order of taxation payable by solicitor
(a)
if the bill when taxed is less by a sixth part than the bill delivered, then the advocate and solicitor shall pay the costs;
*NOTE—The Rules of the High Court 1980 [P.U. (A) 50/1980] has been revoked by the Rules of Court 2012 – see Order 94 rules 1 [P.U. (A) 205/2012] which come into force on 1 August 2012.
Legal Profession 145
(b)
if the bill when taxed is not less by a sixth part, then the party chargeable or liable, if the application is made by him, or if he attends the taxation, shall pay the costs.
(2)
Every order for any reference under section 125 shall direct the
Registrar to tax the costs of the reference, and to certify what, upon the reference, is found to be due to or from the advocate and solicitor in respect of the bill, and of the costs of the reference, if payable.
(3)
The Registrar shall certify any special circumstances relating to the bill or taxation.
(4)
The court may thereupon make any order as it considers fair and reasonable respecting the payment of the costs of such taxation.
(5)
Where any such reference is made, but it is otherwise not authorized except under special circumstances, the Court may give any special directions relative to the costs of the reference.
Certificate of taxing officer final
Section 135
The certificate of the Registrar by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered by such certificate, and the Court may make any order in relation to the certificate it considers fair and reasonable, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.
Section 136
Right of Government to costs unaffected
Nothing in this Act shall affect the right, which is hereby declared, of the Government when represented by any of the persons mentioned in paragraph 35(2)(a) to recover costs awarded to it in or respecting any cause or matter, and in any such cause or matter the costs of the Government shall be taxed in accordance with any rules in force for the time being for the taxation of the fees and costs of advocates and solicitors as if an advocate and solicitor of the High
146 Laws of Malaysia ACT 166
Court who is not in the service of the Government had appeared on behalf of the Government.
Part X
PART X
MISCELLANEOUS
Board and Bar to maintain an office
Section 137
(2)
All writs, plaints, notices, pleadings, orders, summonses, warrants or other written communications required or authorized or ordered to be served on or delivered or sent to the Board or the
Malaysian Bar shall be deemed to be duly served, delivered or sent if left at the Board or the Malaysian Bar, as the case may be.
Document to be served may be sent by post
Section 138
(2)
A certificate in writing signed by an officer of the Malaysian
Bar or the Board, or a member of the Bar Council that any document was properly addressed and posted and setting out the date of posting shall be prima facie evidence of service of the document.
(3)
Any document addressed to an advocate and solicitor at his only or principal address last appearing in the Register of Practitioners shall be deemed to be properly addressed.
Bar Council or Malaysian Bar to recover sum of money
Section 139
In addition to any other method of recovery and to any other right, remedy or power vested in the Malaysian Bar or in the Bar
Council, any sum of money payable under this Act or any rules or
Legal Profession 147
by-laws made thereunder may be recoverable by the Bar Council or the Malaysian Bar as a debt in any court of competent jurisdiction.
Section 140
Fees to be prescribed by Rules Committee
The fees payable under sections 18, 28 and 29 shall be prescribed from time to time by the Rules Committee and the payment of such fee shall be noted by an impressed stamp on the relevant document.
Bank not bound to take notice of right against the account of advocate and solicitor
Section 141
(2)
Notwithstanding subsection (1), a bank at which an advocate and solicitor keeps an account of his clients moneys shall not, in respect of any liability of the advocate and solicitor to the bank, not being a liability in connection with that account, have or obtain any recourse or right, whether by way of set-off, counterclaim, charge or otherwise, against money standing to the credit of that account.
No estate duty payable for bequest to the Bar
Section 142
(2)
The Board and the Malaysian Bar shall each be deemed to be—
(a)
an institution specified in the First Schedule to, and under paragraph 13(1)(e) of the Income Tax Act 1967; and
(b)
an institution of a public character approved by the
Minister for the purposes of paragraph 37(2)(c) of the
Income Tax Act 1967.
Part XI
PART XI
TRANSITIONAL PROVISIONS
Definition
Section 143
(2)
This Part shall have effect notwithstanding anything to the contrary in any other provisions of this Act.
Nomination of members of Board
Section 144
(2)
The terms of office of members of the Board other than the
Attorney General shall commence on the day when the Board first meets for the despatch of business.
Legal Profession 149
Registrar to transfer to the Roll the names of advocates and solicitors
Section 145
(2)
The Registrar in making such transfer may omit the names of any person known to the Registrar to be deceased or not ordinarily resident in Malaysia.
(3)
Any person whose name has been wrongly or inadvertently omitted may apply to the Registrar to have his name entered and the
Registrar shall forthwith enter the applicant’s name, upon the Roll.
(4)
Every person whose name has been entered on the Roll under this section shall, until the contrary is proved, be deemed to have been duly admitted under this Act.
(5)
Section 107 shall apply to any person whose name was removed from, or struck off, the former roll.
Definition
Section 146
(b)
a petition filed before the coming into operation of Part II in which no order for the admission of the petitioner has been made when Part II comes into operation.
(2)
Notwithstanding the repeal of the Ordinance, any qualified person who is desirous of filing a petition for admission before the
Board is constituted may do so under the Ordinance.
(3)
Subject to this section, sections 5 to 9 of the Ordinance shall apply to every pending petition.
150 Laws of Malaysia ACT 166
(5)
If no order for the admission of a petitioner in a pending petition is made before the expiry of twelve months of the coming into operation of this Act or such extended period as the Court may allow that pending petition shall be deemed to have lapsed.
Certificate issued under section 26 deemed practising certificate
Section 147
In this section, the expression “pending petition” shall mean—
A certificate issued under section 26 of the Ordinance shall, subject to the provision relating to the suspension of practising certificates in this Act and notwithstanding any date endorsed thereon, be deemed to be a practising certificate issued under section 29.
Bar Council and Committee holding office at date of coming into force of this Act
Section 148
The Bar Council and the State Bar Committee holding office at the date of the coming into operation of Part V shall remain in office until meetings have been held and elections of new State Bar
Committees and a new Bar Council have taken place in the manner and at the times provided in this Act.
Section 149
Assets and property of Bar Council and Local Bar
Committees shall, upon the coming into operation of Part V, be vested in the Bar Council and the State Bar Committees respectively without further act or formality.
Section 150
Saving
(2)
This Act shall apply to all applications, complaints and proceedings, and in the event of any doubt or difficulty application shall be made by way of originating summons to a judge for directions, and any order made by a judge under this section shall not be the subject of appeal and shall for all purposes be deemed to be under this
Act.
Provisions of Advocates and Solicitors Ordinance to apply in respect of remuneration of advocates and solicitors until General
Orders made under the Act
Section 151
Until general orders prescribing and regulating the remuneration of advocates and solicitors in respect of non-contentious business are made under section 113 their remuneration shall be regulated in accordance with the Ordinance.
Part XII
PART XII
REPEAL
Section 152
(2)
The Advocates Ordinance of Sabah [Sabah Cap. 2] and the
Advocates Ordinance of Sarawak [Sarawak Cap.110] shall be repealed on the coming into operation of this Act in Sabah and Sarawak.
____________________________________
152 Laws of Malaysia ACT 166
Schedule
[Section 88]
CONTROL OF PROPERTY OF AN ADVOCATE AND
SOLICITOR IN CERTAIN CASES
1. The Bar Council may require the production or delivery to any person appointed by the Bar Council at a time and place to be fixed by the Bar Council, and may take possession, of all deeds, wills, documents constituting or evidencing the title to any property, papers, books of account, records, vouchers and other documents in the possession or control of the advocate and solicitor or his firm, or relating to any trust of which he is a sole trustee or is co-trustee only with one or more of his partners, clerks or servants.
2. If any person having possession or control of any such documents fails to comply forthwith with any such requirement—
(a)
he shall be guilty of an offence and shall on conviction be liable on summary conviction to a fine not exceeding five hundred ringgit; and
(b)
the High Court or a Judge may on the application of the Bar Council order that person to comply with the requirement within such time as may be specified in the order, and may at the same time order that on that person’s failure to comply with the requirement one or more officers of the Bar
Council, or one or more persons appointed by the Bar Council for the purpose, may forthwith enter upon any premises (using such force as is reasonably necessary for the purpose) to search for, and take possession of, the documents referred to in the foregoing paragraph.
3. Upon the taking possession of such documents, the Bar Council shall serve upon the advocate and solicitor and every person from whom those documents were received, or from whose premises they were taken by virtue of an order made under paragraph 2, a notice giving particulars and the date of taking possession thereof.
4. Any requirement or notice under this Schedule shall be made in writing under the hand of such person as may be appointed by the Bar Council for the purpose and may be served on any person either personally or by forwarding it by registered letter addressed to his last known place of business or residence.
5. Within fourteen days after the service of a notice under paragraph 3, the advocate and solicitor or other person upon whom the notice was served may apply to a Judge in chambers for an order directing the Bar Council to return those documents to the person from whom they were received, or from whose premises they were taken, as the case may be, by the Bar Council or to such other person as the applicant may require, and on the hearing of any such application the Judge may make such order with respect to the matter as he may think fair and reasonable.
Legal Profession 153
6. If no application is made under paragraph 5 or if the Judge to whom any such application is made directs that the documents shall remain in the custody or control of the Bar Council, the Bar Council may make inquiries to ascertain the person to whom those documents belong and may deal with those documents in accordance with the directions of that person:
Provided that, before dealing with the documents, the Bar Council may take copies of, or of extracts from, any of the documents.
7. The High Court or a Judge thereof may, on the application of the Bar Council, order that no payment shall be made, without the leave of the High Court or a Judge, by any banker named in the order out of any banking account in the name of the advocate and solicitor or his firm.
8. In any case where the Bar Council has taken possession of documents under paragraph 1, and has not been required to return them by virtue of paragraph 5 the following paragraphs shall apply, but without prejudice to the application of paragraph 16 so far as it affects any of the paragraphs preceding it.
9. The Bar Council may, on a resolution in that behalf made by the Council take control of all sums of money due from the advocate and solicitor or to his firm, or held by him or his firm on behalf of, his or his firm’s clients or subject to any trust of which he is the sole trustee or co-trustee only with one or more of his partners, clerks or servants, and for that purpose the Bar Council shall serve on the solicitor or his firm, and, except where section 98 applies, on any banker and on any other person having possession or control of any such sums of money a notice, together with a certified copy of the resolution, prohibiting the payment out of such sums of money otherwise than pursuant to paragraph 11 or 12.
10. Within fourteen days of the service of a notice under paragraph 9 the advocate and solicitor or his firm, or the banker or other person upon whom the notice was served, may apply to a Judge in chambers for an order directing the Bar Council to withdraw the notice, and on the hearing of the application the Judge may make any order with respect to the matter as he may think fair and reasonable.
11.
Subject to the service of any notice under paragraph 9, and to any application that may be made under paragraph 10, the Bar Council or any person in that behalf appointed by the Bar Council may withdraw the moneys, or from time to time any part of the moneys, in any banking account in the name of the advocate and solicitor or his firm due to be held on behalf of his client, and pay them into a special account or accounts in the name of the Bar Council or such person appointed by the Council and may operate, and otherwise deal with, such special account or accounts as the advocate and solicitor or his firm might have operated on, or otherwise deal with, the banking account:
Provided that a banker with whom any such special account or accounts is or are kept shall be under no obligation to ascertain that that account is or are being so operated or otherwise dealt with.
12.
(1)
Subject to paragraphs 10 and 11, the Bar Council may serve a notice on the advocate and solicitor, or his firm, or banker or other person upon whom a notice has
154 Laws of Malaysia ACT 166
been served under paragraph 9, directing that, immediately after the expiration of eight days from the service of the first-mentioned notice, such moneys as are referred to in that notice be transferred in accordance with the directions of the Bar Council:
Provided that—
(a)
no such directions shall be given by the Bar Council except with the approval of the person to whom the moneys belong, being in the case of a trust the trustee, and, where the advocate and solicitor is the sole trustee of a trust or a co-trustee thereof with one or more of his partners, clerks or servants, the person beneficially entitled to the moneys; and
(b)
the person upon whom the first-mentioned notice has been served shall be under no obligation to ascertain whether any approval has been obtained.
(2)
In any case where the Bar Council is unable to ascertain the person to whom the moneys belong or where the Bar Council otherwise thinks it expedient so to do, the Bar Council may apply to the High Court or a Judge thereof for directions as to the transfer of moneys.
13. If any person fails to comply with the requirements of any notice given under paragraph 9 or 12—
(a)
he shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five hundred ringgit; and
(b)
the High Court or a Judge thereof may, on the application of the Bar
Council, order that person to comply with the requirements of the notice within the time as may be specified in the order.
14. Subject to any order for the payment of costs that may be made on an application under paragraph 2, 5, 7, 10, subparagraph 12(2) or paragraph 13, any costs incurred by the Bar Council for the purpose of this Schedule shall be paid by the advocate and solicitor and shall be recoverable from him as a debt owing to the
Bar Council.
15.
If any claim or charge is made or any proceeding is taken against the Bar Council or its servants or agents for any act or omission by the Bar Council or its servants or agents done or made by it or them in good faith and in the execution or purported execution of the powers conferred or duties imposed on it or them under or by virtue of this Schedule, the Bar Council, or its servants or agents, as the case may be, shall be reimbursed out of the Compensation Fund for all or any costs or damages which it or they may have incurred in relation to the claim, charge or proceeding.
16.
The Bar Council may make regulations with respect to the procedure to be followed in giving effect to paragraphs 1, 3, 4, 6, 9, 11 and subparagraph 12(1) and with respect to any matters incidental, ancillary or supplemental to those provisions.
155
ACT 166
LIST OF AMENDMENTS
Amending law
Short title
In force from
Legal Profession (Amendment) Act 1977
01-06-1977
Legal Profession (Amendment) Act 1978
Whole Act;
24-01-1978;
except s. 2;
01-02-1999
[P.U. (B) 33/1999]
Legal Profession (Amendment) Act 1983 16-12-1983
Legal Profession (Amendment) Act 1992
01-04-1992
Legal Profession (Amendment) Act 1993 17-09-1993
Act A1197
Bankruptcy (Amendment) Act 2003
01-10-2003
[P.U. (B)
295/2003]
Legal Profession (Amendment) Act 2006 02-10-2006
Legal Profession (Amendment) Act 2012 03-06-2014
Act A1455
Legal
Profession
(Amendment)
Act 2012 (Amendment) Act 2013
03-06-2014
Act A1456
Legal Profession (Amendment) Act 2013 03-06-2014
Act A1509
Legal Profession (Amendment) Act 2016
10-06-2016
156
ACT 166
LIST OF SECTIONS AMENDED
Section
Amending authority
In force from 3
Act A1455 16-12-1983 01-04-1992 02-10-2006 03-06-2014
Part II
02-10-2006 4
Act A1455 02-10-2006 03-06-2014 5
6
7
16-12-1983 02-10-2006 8
9
16-12-1983 02-10-2006 10
11
12
13
Act A1444 01-06-1977 02-10-2006 03-06-2014
Legal Profession 157
Section
Amending authority
In force from 14
15
16-12-1983 01-04-1992 16
Act A567 01-06-1977 16-12-1983
18
19
25
26
28
28A
28B
28C
28D
28E
29
30
01-06-1977
32
33
35
02-10-2006 36
37
Act A1444 01-06-1977 03-06-2014 37A
Act A1456 03-06-2014
158 Laws of Malaysia ACT 166
Section
Amending authority
In force from 38
Act A1456 01-06-1977 02-10-2006 03-06-2014 40A
Act A1444 03-06-2014 40B
Act A1444 03-06-2014 40C
Act A1444 03-06-2014 40D
Act A1444 03-06-2014 40E
Act A1444 03-06-2014 40F
Act A1444 03-06-2014 40G
Act A1444 03-06-2014 40H
Act A1444 03-06-2014 40I
Act A1444 03-06-2014 40J
Act A1444 03-06-2014 40K
Act A1444 03-06-2014 40L
Act A1444 03-06-2014 40M
Act A1455 03-06-2014 03-06-2014 40N
Act A1444 03-06-2014 40O
Act A1444 03-06-2014 42
44
Act A419 24-01-1978
46
46A
Act A1269 24-01-1978 02-10-2006 47
50
54
57
Legal Profession 159
Section
Amending authority
In force from 62
64
16-12-1983 02-10-2006 65
16-12-1983 02-10-2006 66
02-10-2006 67
24-01-1978 16-12-1983 01-04-1992 02-10-2006
68
01-04-1992 70
24-01-1978 16-12-1983 01-04-1992 02-10-2006
70A
16-12-1983 01-04-1992 02-10-2006 71
16-12-1983 01-04-1992 73
76
Act A1444 16-12-1983 02-10-2006 03-06-2014 77
78
78A
Act A812 01-04-1992
160 Laws of Malaysia ACT 166
Section
Amending authority
In force from 79
01-06-1977 16-12-1983 80
Act A1444 16-12-1983 03-06-2014 83
01-06-1977
84
01-06-1977
85
88
88A
16-12-1983 01-04-1992 92
92A
Act A1444 03-06-2014
93
Act A1444 01-06-1977 16-12-1983 01-04-1992 02-10-2006 03-06-2014 94
Act A1444 01-04-1992 02-10-2006 03-06-2014 95
Act A1269 16-12-1983 01-04-1992 02-10-2006 96
Act A861 01-06-1977 16-12-1983 01-04-1992 17-09-1993
Legal Profession 161
Section
Amending authority
In force from 97
16-12-1983 01-04-1992 17-09-1993 02-10-2006
98
01-06-1977 16-12-1983 01-04-1992 02-10-2006
99
Act A1444 16-12-1983 01-04-1992 02-10-2006 03-06-2014 100
Act A1444 01-06-1977 16-12-1983 01-04-1992 17-09-1993 02-10-2006 03-06-2014 101
16-12-1983 01-04-1992 17-09-1993 02-10-2006 102
16-12-1983 01-04-1992 02-10-2006 103
Act A1269 16-12-1983 01-04-1992 17-09-1993 02-10-2006
162 Laws of Malaysia ACT 166
Section
Amending authority
In force from
Act A1444 03-06-2014 103A
01-04-1992 02-10-2006 03-06-2014
103B
Act A1444 01-04-1992 17-09-1993 02-10-2006 03-06-2014 103C
Act A1444 01-04-1992 02-10-2006 03-06-2014 103D
Act A1444 01-04-1992 17-09-1993 02-10-2006 03-06-2014 103E
Act A1509 01-04-1992 02-10-2006 03-06-2014 10-06-2016 103EA
Act A1444 03-06-2014 10EB
Act A1444 03-06-2014 103G
Act A1269 01-04-1992 02-10-2006
103H
103I
103J
104
105
Act A1444 03-06-2014
Legal Profession 163
Section
Amending authority
In force from 107
Act A1444 16-12-1983 03-06-2014 108
16-12-1983 01-04-1992 02-10-2006 109
01-04-1992 02-10-2006 110
01-04-1992 02-10-2006 111
01-04-1992 02-10-2006 117
118
119
121
Act A367 01-06-1977
123
Act A367 01-06-1977
136
137
138
139
141
01-06-1977 16-12-1983 142
145
146
01-06-1977
164 Laws of Malaysia ACT 166
Section
Amending authority
In force from 147
149
150
Schedule
_____________
Common questions
- What is AKTA PROFESION UNDANG-UNDANG 1976?
- *LEGAL PROFESSION ACT 1976 is Malaysia Act, cited as Act 166 1976, currently marked in force and first recorded in 1976.
- Is AKTA PROFESION UNDANG-UNDANG 1976 still in force?
- Yes — AKTA PROFESION UNDANG-UNDANG 1976 is currently in force.
- When did AKTA PROFESION UNDANG-UNDANG 1976 take effect?
- AKTA PROFESION UNDANG-UNDANG 1976 was first recorded in 1976.
- How many sections does AKTA PROFESION UNDANG-UNDANG 1976 have?
- AKTA PROFESION UNDANG-UNDANG 1976 contains 186 sections.
- What amends AKTA PROFESION UNDANG-UNDANG 1976?
- AKTA PROFESION UNDANG-UNDANG 1976 has been amended by AKTA PROFESION UNDANG-UNDANG (PINDAAN) 2012, AKTA PROFESION UNDANG-UNDANG (PINDAAN) 2013, AKTA PROFESION UNDANG-UNDANG (PINDAAN) 2016, AKTA PROFESION UNDANG-UNDANG (PINDAAN) 2025, and LEGAL PROFESSION (AMENDMENT) ACT 2026.
- Where can I read the official version of AKTA PROFESION UNDANG-UNDANG 1976?
- The official text of AKTA PROFESION UNDANG-UNDANG 1976 is published at lom.agc.gov.my.