CIVIL SYARIAH

FIRM FIRM
1. Firm establishement Comparison
7.04 – may practice from residence
7.06 – setting up a new firm
Sec 85(1) LPA – Firm name certified by BC 1. Firm establishement
Under CCM and Companies Act
2. Partnership and Operation Not subjected to BC
7.06 – consent from BC
7.01 – minimum operation hours cv 2. Partnership and Operation
Formalities under CCM
3. Legal fees and Remuneration No specific ruling
Rule 11 LP(PE) – remuneration criteria
Sec 94(2) LPA – penalty for misconduct 3. Legal fees and Remuneration
Practice Direction - remuneration criteria
4. Account management SCR (Selangor) - penalty for misconduct
Rule 8.01 – authorization to open account
Sec 2 SAR – client account 4. Account management
Sec 3 SAR – duty to pay into client account No specific ruling

Comparative DUTIES & RESPONSIBILITIES

STUDY FIRM’S MANAGEMENT (CIVIL

AND SYARIAH)
• Lack of uniformity
GROUP 6
• Different academic
Challenges Qualification

• Unclear guideline

• Lack of Autonomy to
monitor
• Syarie Profession Act (FT)
Act 2019 Solution
• Majlis Peguam Syarie

• Uniformity
• Strong union between
Syarie counsels

References for Civil References for Shariah Articles

1. Legal Profession Act 1976 1. Administration of Islamic Religion (Selangor) 1. Zulkifli Hasan and Hasnizam Hashim. Ke Group 6 Professional Ethic Wan Muhammad Hafiz Bin Wan Zin
2. Legal Profession (P&E) Rules 1978 Enactment 2003 Arah Penubuhan Badan Peguam Syarie Muhammad Darwisy Bn Roslan
3. Legal Profession (Publicity) Rules 2001 2. Syarie Counsel (Selangor) Rules 2008 Malaysia Section 7 Muhammad Al Hakim Bin Abd Razak
4. Bar Council Ruling 3. Practice Direction no.4 Year 2002 2. Mohamad Isa . Peguam Syarie : Pengamalan Zainal Amshah bin Zainal
5. Solicitor Remuneration Order di Malaysia Mdm Majdah Muda Suriya Furqon
6. Solicitors Account Rules 1990 3. Others.
INTRODUCTION

In order to serve for justice and protect the dignity of their legal profession, lawyers are not only
living by the interpersonal code of ethics but also bound to some duties and responsibilities in managing
his firm’s operation. In Malaysia, since both areas of practice have different jurisdictions conferred by the
Federal Constitution, there are also some comparisons that can be made with regard to the firm
management in the perspective of both Civil and Syariah Firm.

Firm’s Establishment, Partnership and Operation

In civil perspective, a lawyer can operate his firm whether by method of sole-proprietorship,
partnership or group legal practice. This is subject to the rules provided in Bar Council Ruling or
Partnership Act or Legal Profession (Group Law Practice) Act respectively. However, despite the
provision on its establishment, the firm will always be subjected and monitored by the Legal Profession
Act and Bar Council Ruling. For example, in order to ensure the firm is completely set up, all sole
proprietor or partnership lawyers must first comply with ​Rule 7.06 ​of the Bar Council Ruling which
requires them to write a notice of intention to set up a firm to the Bar Council. Following that is ​Rule
7.06 (3)(a) where if the proposed name is already a registered name of another law firm or is not in
accordance with ​Section 85 of the Legal Profession Act (LPA)​, the intending sole proprietor or the
partners shall be required to submit a fresh name for approval. Following that, is ​Rule 7.06 (3)(c) where
upon the issuance of the letter of no objection which are subject to the need of the Sijil Annual and
Practicing certificate by the intended sole proprietor as well as the Professional Indemnity Insurance as
per ​Rule 7.06 (3)(b)​, the new firm and its particulars shall be recorded in the BC Membership Department
systemIn the context of the firm’s operating hours, it is clearly stated in ​Rule 7.01 which states that the
office must be open during usual office hours and at least five days a week. Being regulated with such
guidelines, the firm is understandably not similar to any other ordinary business. Instead, such a rule is
important to ensure that the firm is set up to uphold the rule of law and protect the interest of the legal
profession as well as to serve the best for the public.

A Syariah firm on the other side, is not regulated under the Bar Council Ruling or Legal
Profession Act since it is established under different sources of law as discussed before. While the
provisions governing syarie lawyers are silent on it, a syarie lawyer may only be subjected to the
procedure and formalities of the Companies Commission of Malaysia (CCM) in registering his
proprietorship or partnership. Pursuant to that, a Syarie firm may also be subjected to Companies Act,
Partnership Act and Limited Liability Partnership Act according to the specific matter of its operation.
These provisions are merely general. None of them provide a focused regulation ensuring an effective and
efficient management of the affairs of a syariah firm’s operation.

Legal Fees and Remuneration

On the issue of legal fees and remuneration, there are not many differences between civil law firm
management and syariah firm management. The service a lawyer provides are two folds; contentious and
non-contentious matters. Examples of contentious matters are civil litigation, criminal litigation and
general litigation. As for non-contentious matters, the most popular and easily understood example is

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conveyancing. In syariah firms, divorce(​talaq)​ , maintenance(​nafkah)​ and child custody(​hadhanah​) are
examples of cases that fall under contentious matters that syarie lawyers need to deal with.

For legal fees on contentious matters, there are two rules that lawyers need to refer to. For civil
practitioners, Rule 11 of Legal Profession (Practice and Etiquette) Rules 1978 will be applied while
for syariah practitioners will refer to ​Rule 12 Practice Direction No. 4 Year 2002​. Both rules are ​in pari
materia and stated that in determining the amount of fee for contentious matters, time, labour and skill
required are taken into consideration. The novelty and difficulty of the question; whether acceptance of
the particular employment will preclude his appearance for others of which he has a reasonable
expectation; the customary charges of the profession for similar services; the amount in controversy; the
benefit resulting to the client for the services; the character of the employment-whether casual or for and
established client; and the special position or seniority of the particular advocate and solicitors are
important aspects to pay attention to.

For civil practitioners, ​Section 94(2) of Legal Profession Act stated that any advocate and
solicitor who has been guilty of any misconduct shall be liable to be struck off the Roll or suspended from
practice not exceeding five years or ordered to pay a fine or be reprimanded or censured. Among
misconduct that will make the practitioner liable is charging of fees or costs which are grossly excessive
in all circumstances in absence of written agreement for professional services provided to a client as
provided in ​Section 94(3)(m)​. It should also be noted that ​Section 114 of the Legal Profession Act
empowers the advocate and solicitor to make agreement with the client on their remuneration. While for
syariah practitioners especially in Selangor, ​Rule 17(1) of Syarie Counsel Rule (Negeri Selangor) 2008
states that the Council may take disciplinary action on any syarie counsel on reasonable grounds laid
down in ​Rule 17(2)(g)​, among those are charging fees or costs that are excessive in all circumstances,
without any written agreement, for professional services provided to the client. ​Rule 20 laid down the
Order that the Council can make if the syarie counsel is found guilty. The Council can make an order to
strike off the counsel’s name from Daftar Peguam Syarie, impose a suspension or lay off a warning to the
Syarie Counsel at fault. For legal fees in non-contentious matters, civil practitioners are governed by the
Solicitors Remuneration Order 2005 and their failure to follow the Order might make them liable under
Section 94(3)(d)​. However, syarie counsel have no written law to govern them on non-contentious
matters.

Managing Accounts

As for managing accounts, the relevant provision is Rule 8.01 of the Bar counsel rules and ruling
which prohibits an unauthorized person not to operate any bank account maintained in the name of an
Advocate and Solicitor or his/her firm in connection with his/her practice as an Advocate and Solicitor.
Rule1.02 (j) further define “Unauthorised Person” has the meaning ascribed to that expression in ​Section
36 of the Act which provides, unless his name is on the Roll and he has a valid practising certificate that
no person shall practise as an advocate and solicitor or do any act as an advocate and solicitor. Another
specific statute which prescribes the matter related to the management of the account is Solicitors’
Account Rules 1990 whereby ​Section 2 defines Client Account as a current or deposit account at a bank
in the name of the solicitor in the title of which the word “client” appears. ​Section 3 further provides the
duty to pay money into client accounts where every solicitor who holds or receives client’s money.
Section 7A on the other hand stated Signatories to client account, being a) An advocate and solicitor

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practising as a sole proprietor; b) A partner or partners of a firm of solicitors; or c) A legal assistant
expressly authorized by a proprietor or a partner or partners of a firm of solicitors. Conversely, on the
shariah field there seems to be no specific provisions or rules provided as compared to civil practitioners
in managing accounts of advocates and solicitors. Serious consequences of not having a proper rule and
regulations governing the managing accounts will cause confusion and fusion of clients’ money in the
same accounts as lawyers or have its name as the lawyer himself. With regards to the accounts report, its
submission would enable the relevant authority to identify ​trends or any irregularities that may need
further investigation, but when there is no law provided, then there will be a relatively high possibility for
the lawyer to commit any unethical act whatsoever with the managing accounts as there is no obligation
imposed on him to submit the report. Further explanation on the issues of not having rules and regulation
is highlighted below.

​ISSUES

From all of the discussions, it can be inferred that there are many loopholes in Syarie's legal
profession. There is no specific provision relating to Syarie firm’s management such as on the
establishment, account management and remuneration as how provided in Bar Council Rulings​1 that may
monitor and ensure effective management among the legal practitioners. This lack of comprehensibility
is because Syarie legal profession does not have their own specific body to govern themselves.

In the Syarie counsels’ profession, there is no authorised body to regulate procedures except the
Religious Council of the State (Majlis Agama Negeri)​2​. All the rulings relating to Syarie counsel are
created under the Administration Of The Religion Of Islam Enactment according to the states. In contrast,
the civil lawyers have their own Bar Council whose members are elected among themselves, giving them
the power to govern themselves​3​.

Nevertheless, on 31​st July 2019, the Dewan Negara has passed the bill on Syarie Legal Profession
(Federal Territories) Act 2019 which is said to be ​in pari materia to Legal Profession Act 1976. With this,
the Syarie counsels profession shall have their Badan Peguam Syarie, Disciplinary Board and also their
own Legal Profession Qualifying Board (LPQB). They shall have the same power as the Bar Council for
civil lawyers. Having said that, the Badan Peguam Syarie may regulate a specific regulation and
procedure on the establishment of a Syarie law firm​4​. Nevertheless, though the bill has been passed, it is
still not looking too bright for Syarie Counsels as of now. This is due to lack of uniformity among the
syarie counsels and different states have different opinions with regards to their power in religious affairs.

i) Academic qualification

Syarie legal profession’s lenient nature allows anyone to enter into the profession as long as they
have a Shariah degree, subject to further requirements by each state. Hence, being the reason Syarie legal

1
Zulkifli Hasan and Hasnizam Hashim. ​Ke Arah Penubuhan Badan Peguam Syarie Malaysia​. p 24,
(2017)
2
Mohamad Isa, ​Peguam Syarie: Pengamalan Di Malaysia.​p 9.
3
Zulkifli Hasan and Hasnizam Hashim. ​Ke Arah Penubuhan Badan Peguam Syarie Malaysia​. p 24,
(2017)
4
Retrieved from https://www.wilayahku.com.my/perkasa-profesion-peguam-syarie/#.X9mtWtgzbIV . 16th
December 2020 at 2:50 pm.

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profession consists of people from various backgrounds. The disparity of variety had become a barrier
between each other making it difficult to govern a set of people.

ii) Political allegiance

Living in Malaysia, which is known for its political climate, has somehow caused disunity among
the Syarie counsels. Different political allegiance that exists within the Syarie legal profession has barred
them from agreeing in one voice and the situation becomes worse when the people within the Syarie legal
profession itself put their personal interest in mind before the interest of the profession as a whole.

iii) Too much divisions within the Syarie legal profession

There are many bodies established within the Syarie legal profession such as Persatuan Peguam
Syarie Malaysia (PGSM), Persatuan Peguam Muslim Malaysia (PPMM) and Persatuan Peguam Syarie
from every states. Despite the numbers of societies that have been established with the objective of
safeguarding the Syarie counsels’ interests, they still could not form a union to properly improve the
Syarie legal profession. Their lack of statutory authority to supervise their members have caused the
Syarie legal fraternity not to have a body that could really govern their conduct and protect their interest.

iv) No uniformity between states

List II Schedule 9 of the Federal Constitution provided that except for Federal Territories, all
matters related to Syariah courts will fall under the states' jurisdictions. This means that even if the
Parliament enacted an Act to govern Syarie counsels across Malaysia, it cannot be enforced in each states
unless the State Legislative Assembly decided to adopt the Act.

SOLUTION

Since the bill on Syarie Legal Profession (Federal Territories) Act 2019 has been passed, it is
good to ensure that the law is come into force. By having a specific act that governs the Syarie legal
profession, it is capable of establishing a union body such as Majlis Peguam Syarie despite the divisions
that exist within the Syarie legal profession. This is because, once the act is come into force, everyone
abides by the act regardless of the difference of interests that they have among themselves. The urgent
need is to have a body at national level which is able to monitor the proficiency of legal education, take
action on disciplinary breaches, admission process and interaction between practitioners across nations.
By having a form of uniformity, it is much simpler to just follow the lead. This also means to speak in the
context of having the same act as the Legal Profession Act governing the whole syarie lawyers.

By having this internal issue settled, it will be much easier for the Majlis Peguam Syarie to cover
the lack of comprehensibility in regards to the establishment of a Syarie firm, ruling on the remunerations,
ruling on account management and so on. By having this done, the guidelines to manage a Syarie firm
will be clearer without any contradiction in practice and leads to uniformity. On the same side, it is vital
to provide a strong check and balance system for lawyers to ensure the compliance and efficiency in
fulfilling their duties and responsibilities. Indirectly, this will elevate the dignity of Syarie legal profession
in the eyes of the public.