Malaysia legislation
Section 4
Section 4
The principal Act is amended by inserting after section 40
the following Part:
“Part IVa
INTERNATIONAL PARTNERSHIPS, QUALIFIED FOREIGN LAW
FIRMS AND REGISTRATION OF FOREIGN LAWYERS
Interpretation 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;
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“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.
Licence required for foreign law firm 40b. (1) No foreign law firm shall practise in Malaysia unless it is licensed under this Part.
(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 40c. (1) A Selection Committee is established under this
Part to make recommendations to the Bar Council for the granting of licence for international partnerships and qualified foreign law firms and to Malaysian law firms to employ foreign lawyers and the registration of foreign lawyers to practise in the permitted practice areas.
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(2)
The Selection Committee shall consist of the following members:
(a)
the Attorney General;
(b)
the President of the Malaysian Bar;
(c)
a person to be appointed by the Attorney General from the public sector; and
(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.
Alternate members 40d. (1) The Attorney General may, in respect of the member appointed under paragraph 40c(2)(c), appoint a person to be an alternate member to attend, in place of the member, meetings of the Selection Committee.
(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.
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Meetings of the Selection Committee 40e. (1) Meetings of the Selection Committee shall be co-chaired by the Attorney General and the President of the
Malaysian Bar.
(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.
(3)
The quorum of the Selection Committee shall be five.
(4)
All decisions of the Selection Committee shall be by the affirmative vote of a majority of the members of the
Selection Committee.
(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 40f. (1) A foreign law firm and a Malaysian law firm may apply jointly to the Bar Council for an international partnership licence if they satisfy such conditions as the Bar Council may think fit to impose in any particular case.
(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.
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(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—
(a)
impose any new or additional conditions on the licence;
or
(b)
vary or revoke any of the conditions imposed on the licence.
(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.
(8)
An international partnership is entitled to—
(a)
practise in the permitted practice areas in accordance with such conditions as may be prescribed;
(b)
bill its clients as a single law firm; and
(c)
recover costs and retain payments in respect of such practice.
(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 40g. (1) A foreign law firm may apply for a qualified foreign law firm licence if it satisfies such conditions as the Bar Council may think fit to impose in any particular case.
(2)
Upon receiving the application, the Bar Council shall refer such application to the Selection Committee for consideration and recommendation.
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(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—
(a)
impose any new or additional conditions on the licence;
or
(b)
vary or revoke any conditions imposed on the licence.
(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.
Employment of a foreign lawyer by a Malaysian law firm 40h. (1) A Malaysian law firm may apply to the Bar Council for a licence to employ a foreign lawyer to practise in the permitted practice areas in the Malaysian law firm if it satisfies such conditions as the Bar Council may think fit to impose in any particular case.
(2)
Upon receiving the application, the Bar Council shall refer such application to the Selection Committee for consideration and recommendation.
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(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 40i. (1) The Bar Council may, by notice in writing, suspend or revoke the licence granted under section 40f, 40g or 40h if the Bar Council is satisfied that there is sufficient reason for doing so.
(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;
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(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.
(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 40j. (1) A foreign lawyer shall not practise in an international partnership, a qualified foreign law firm or a Malaysian law firm, or in any other manner, unless he has been registered under this section.
(2)
A foreign lawyer who satisfies such requirements as may be prescribed and wishes to practise 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.
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(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.
(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 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.
Suspension or revocation of registration 40k. (1) The Bar Council may, by notice in writing, suspend or revoke the registration of a foreign lawyer under section 40j if the Bar Council is satisfied that there is sufficient reason for doing so.
(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;
Legal Profession (Amendment)
(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 Disciplinary Board has recommended for the suspension or revocation of the foreign lawyer’s registration.
Professional conduct, ethics and accounts 40l. (1) International partnerships, qualified foreign law firms and registered foreign lawyers shall comply with such laws, rulings and directives applicable to advocates and solicitors under this Act relating to professional conduct or ethics.
(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 40m. A registered foreign lawyer shall be subject to, for the purposes of all disciplinary actions, the control of the
Disciplinary Board.
Power to require documents, etc.
Quoted provision
Section 40n
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
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documents, particulars or information as the Bar Council considers necessary for the purpose of ascertaining compliance of this Part.
Power to make rules 40o. 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;
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(g)
the permitted practice areas;
(h)
the manner and means by which an international partnership, a qualified foreign law firm or a Malaysian 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
(j)
any other matters for purposes of implementing the provisions of this Part.”.
Amendment of section 76