LAD 4213

PROFESSIONAL ETHICS
SEMESTER 2, 2019/2020
CLASS: TLB8, KLB2

WRITTEN ASSIGNMENT: GENERAL CONDUCT OF THE PROFESSION

LECTURER : Dr Rodziana
PREPARED BY :
Num. Matric number Name
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11. 1162973 WAN NUR AFIFAH BT CHE BAKAR
12. 1162975 FITRIAH RABIHAH BT MAT ZAHARI

Provision in Malaysia

Before advocate and solicitor called to the bar, he or she shall apply the practicing
certificate issued by the Registrar under section 29 of Legal Profession Act 1976 1.

1
Malaysia. 2012. Legal Profession Act 1976. [Act 166]. Section 2.
The general rule is that the barristers can only apply for practicing certificate as a
full-time practice in Malaysia according to section 30(1) LPA 1976. If a qualified
person has gainfully employed not by any other person, firm or body in a capacity as
an advocate solicitor, he shall cede his certificate to the Registrar 2.

This further elaboration in Chapter 12 Rules and Ruling of the Bar Council where an
advocate and solicitor may engage on a part time basis in a business or trade that is
in the opinion of the Bar Council compatible with the dignity of the legal profession.
Here, it is allowed to work on a part time basis provided that it does not infringe his
or her full-time employment by an Advocate and Solicitor or a firm of Advocates and
Solicitors in accordance with section 30(1)(b) of the LPA 1976 3.

Apart from that, Rule 44 of the LPPER provides that lawyers shall not actively carry
on any trade which is unsuitable to engage in or be an active partner or a salaried
officer. Lawyers also shall not be a full-time salaried employee of any person, firm or
corporation so long as he continues to practice 4. These provisions do not restrict
completely lawyers to involve in business. The restriction is only applicable if they
engage in business actively or unsuitable which may interrupt their duties. Recently,
the truth is that many of these advocates and solicitors are in fact paid board
members of various organizations and commercial enterprises whose engagement
in these roles can be classified as being full time salaried.

Thus, Rule 44 is intended to discourage the doubling up of employment by a solicitor

and advocate whilst in the discharge of their full-time duties as lawyers. For the
Muslim lawyers, the Prophet himself expressed his concern on this matter in hadith
where he said: “Justice can never be done by a government that conducts business
with its subjects”5. Although the Prophet directed this advice to judges, the lesson
from this hadith shall also be applicable to lawyers since the nature of both
professions is likely the same.

THE DUAL PRACTICE OF LEGAL PROFESSION IN UNITED STATE

2
Malaysia. 2012. Legal Profession Act 1976. [Act 166]. Section 30.
3
n.a. 16 May 2014. “Chapter 12 Rules and Ruling of Bar Council”. Malaysian Bar.
https://www.malaysianbar.org.my/article/members/laws-bc-rulings-and-practice-directions/bc-rules-and-
rulings/12-01-engagement-in-other-business-or-trade p. 1.
4
Malaysia. 2009. The Legal Profession (Practice and Etiquette) Rules 1978. Rules 44.
5
Wahbah al-Zuhailliyy. (1989). “Al-Fiqh al-Islami wa Adillatuhu”. (Transl.) Syria: Dar alFikr.
In considering dual practice in United State (US), the lawyer must first consider the
canons of ethics and the interpretation there holding the concurrent practice of law
and accounting to be unethical. In practising the dual practice, this individual has
taken appropriate examinations and has received his certificate as a certified public
accountant and has also taken a bar examination and admitted to the bar. The
Committee on Professional Ethics of the American Bar Association (ABA) in 1961, in
its Opinion 297 held that the person who is qualified as both a lawyer and accountant
must choose between holding himself out as a lawyer or as an accountant.

The American Institute of Certified Public Accountants (C.P.A), has declined to

pronounce the dual practice as unethical on ground of public interest. The dual
practice of law and another occupation is generally permissible, provided that certain
conditions are met according to ABA’s Model Rules of Professional Conduct. In
1971, the State Bar's Professional Ethics Committee cited New York State Bar
Opinion 206, take the position that if a lawyer provides "law-related" services to a
client in addition to legal services, then the lawyer is bound by the Rules of
Professional Conduct in the provision of both.

Section 5.4 and 5.5 of the Rules of Professional Conduct (R.P.C) further stated that
the law isolated the financial of non-lawyers. Section 5.4(a) of R.P.C generally
prohibits fee-splitting with non-lawyers. A lawyer was forbidden from forming a
"partnership with a nonlawyer if any of the activities of the partnership consist of the
practice of law." Besides, Rule 5.5(b) maintains the prohibition against assisting non-
lawyers to perform activities that constitute the unauthorized practice of law.

However, The Model of R.P.C does not prohibit a lawyer from serving other
professions that closely related to the practice of law while simultaneously serving as
its legal counsel. However, ethical concern and reasonably assure the outset of dual
practice should be considered. As noted in Opinion 98, it was stated that sharing
office space with a non-lawyer does not automatically result in a violation of Rule
5.4(b). Lawyers must take care, however, to keep the law practice and the non-law
business separate, including maintaining the confidentiality of law client files under
Rule 1,6 and ensuring, under Rules 5.1 and 5.3, that their lawyer and non-lawyer
employees of the law practice do the same.
Cases

In Chee Kuat Lin v Majlis Peguam6, the Court held that the appellant breached
Section 30(1)(c) of LPA when he applied for a practicing certificate in 2005 while he
was still a member of the police force who is gainfully employed. He was then
suspended from police force pending investigation on suspicion of accepting a bribe.

In Syed Mubarak bin Syed Ahmad v Majlis Peguam Negara 7, the appellant want to
practice a dual profession, however the Act does not permit it. Therefore, he needs
to choose which profession since he is self-employed which also consider as
‘gainfully employed’ by the court using the purposive approach.

In Badan Peguam Malaysia v Kerajaan Malaysia 8, the Bar Council prayed for a
declaration that the appointment of Dr Badariah as judicial commissioner was void. If
she wanted to apply for practising certificate, she would not able to raise similar
argument as in Syed Mubarak9 as she was employed by the university.

In Ibanez10, an attorney and Certified Public Accountant, responded to a reprimand

from the Florida Board of Accountancy for misleading ads. The Court found no
evidence supporting the board’s claims because the ads was truthful.

In re Roth11, the respondent created a conflict of interest by representing his client in

the capacities of both attorney and real estate broker. However, he acted in good
faith belief that his conduct was permitted. Therefore, no disciplinary action was
warranted.

In Re Bell12, the respondent is a counsel and partner in a business as in Indiana

Code of Professional Responsibility does not preclude an attorney from being an
entrepreneur or engaging in other lawful profession. However, it does provide that if
there is a conflict between these personal interests and professional obligations, the
latter must prevail.

6
[2012] 4 MLJ 407.
7
[2000] 4 MLJ 167.
8
[2008] 2 MLJ 285.
9
[2000] 4 MLJ 167.
10
Ibanez v. Fla. Dep't of Bus. & Prof'l Regulation [1994] 512 U.S. 136.
11
[1990] 120 N.J 665.
12
[1999] 718 N.E.2d 1115.
Best practice for possible reform

Despite the suppression of dual practice by advocates and solicitors in Malaysia, it is

perhaps desirable for some relaxations of this rule to be examined. This is in the
view that dual practice, to name one, practicing by a lawyer and at the same time an
accountant may serve a genuine public interest and suitably performs the proper
functions of both. The joint skills of the two professions are in the best public interest
and both professions set a high standard of professional practice and conduct,
however, several rules must be taken into strict consideration so as not make it
unconstitutional nor violating any rules provided either in the Legal Professions Act
1976, Accountants Act 1967 or Malaysian Institute of Accountants Rules 2001.

One of the guidelines is to not constitute the dual practice as self-touting, because
the lawyer-accountant firm would almost inevitably serve as a feeder to the legal
firm.

The employment by a firm of lawyers of a public accountant on a salaried basis for

the purpose of doing accounting work for the law firm in its practice of the law does
not in and of itself result in the law firm being engaged in unethical conduct. 13

The Committee on Professional Ethics of the Idaho State Bar, in an extensive

opinion, decided that:

An attorney who is also qualified as a certified public accountant may carry the
designation "Certified Public Accountant" on his office door, his professional card,
and on his letterhead; and may practice both professions from the same office,
providing that he adheres to the professional standards applicable to attorneys at law
with respect to advertising and solicitation. A practicing lawyer carries a high
standard to the eyes of the public that makes it vital for them to carry the dignity of
the legal profession up on their shoulders. By becoming a lawyer-accountant
practitioner, it is far from offending the tradition and lowering the tone of the legal
profession, the honor of being a lawyer is enhanced when he achieves the difficult
and coveted CPA certificate. A lawyer may engage in other businesses so long as
he does not use either his law practice or alternate business to aid the other.

13
COMMITTEE ON PROFESSIONAL ETHICS & GRIEVANCES, ABA, OPINIONS 11 (Supp. 1964) (Opinion 297, 1961)
at 10-11.
By similar reasoning, doctor-lawyers should be prohibited from dual practice
because of the obvious connection in personal injury cases. Lawyers should be
prohibited from selling insurance; from being real estate brokers; from holding public
office. All such activities tend to directly feed certain aspects of the lawyer's practice.
Conversely, the CPA-lawyer who handles solely personal injury cases should be
allowed to maintain a dual practice.

The challenges for dual practice

In Malaysia, before being allowed with conditions by Bar Council Rulings, dual
practice has been rejected by the court in 1998 14 because the judge held that one
could not perform both tasks professionally at the same time. 15

The question of to what extent a lawyer involve himself in dual practice of law and
another occupation such as accountant, doctor or law professor. Conflict of interest
may occur between the two jobs. 16 Lawyers providing non-legal services to clients
must always exercise care and comply with the ethical rules in promoting their
second occupation. He must be careful not to imply that his clients will get legal
benefits in his side job’s advertisement.

Furthermore, a lawyer’s standard of conduct may not be common to a layman.

Therefore, a dual-practising lawyer cannot go beyond the ethical restraints of the
profession. One must be careful when engaging in conducts that involves law
practices as to retain the professional status of a lawyer.

Another challenge is that a dual practicing lawyer must also choose to either hold
himself out as a lawyer or his other occupation. 17 This is because dual holding out is
considered as self-touting, because the lawyer uses his other occupation to feed his
legal profession and vice versa.

14
[2000] 4 MLJ 167.
15
N.a. (1998, January 27). Accountant fails in bid practise law, too. New Straits Times (Malaysia), National; p.13
16
N. Sundaralingam. (1998, March 30). Allow lawyers to contribute in other areas, too. New Straits Times
(Malaysia), Letters; p. 11.
17
Harrison, J. L. (2005). Faculty ethics in law school: shirking, capture, and “the Matrix.” University of Detroit
Mercy Law Review, 82, 397-429.
References

1. American Bar Association Journal, December, 1996, Vol 52 No.12.

2. Charles F. Luce, Jr. ‘‘When is a lawyer Not a Lawyer? Dual Practices’’. Moye
White. http://www.mgovg.com/ethics/10dualpr.htm
3. Harrison, J. L. (2005). Faculty ethics in law school: shirking, capture, and “the
Matrix.” University of Detroit Mercy Law Review, 82, 397-429.
4. https://www.americanbar.org/groups/professional_responsibility/publications/
model_rules_of_professional_conduct/
5. Malaysia. 2012. Legal Profession Act 1976. [Act 166].

6. Malaysia. 2009. The Legal Profession (Practice and Etiquette) Rules 1978.
Rules 44.
7. n.a. ‘‘Ethics and Professional Responsibility’’ Model Rules of Professional
Conduct 1983. American bar.
8. N.a. (1998, January 27). Accountant fails in bid practise law, too. New Straits
Times (Malaysia), National; p.13
9. n.a. 16 May 2014. “Chapter 12 Rules and Ruling of Bar Council”. Malaysian
Bar. <https://www.malaysianbar.org.my/article/members/laws-bc-rulings-and-
practice-directions/bc-rules-and-rulings/12-01-engagement-in-other-business-
or-trade>.
10. N. Sundaralingam. (1998, March 30). Allow lawyers to contribute in other
areas, too. New Straits Times (Malaysia), p. 11.
11. Wahbah al-Zuhailliyy. (1989). “Al-Fiqh al-Islami wa Adillatuhu”. (Transl.) Syria:
Dar alFikr.