GENERAL

LPPE LPA- Misconduct BCRR

CHAMPERTY Under Rule 27 of LPPE, it stated that An ALL:

advocate and solicitor shall not appear in any - Section 94(3)(d)- Breach
matter in which he is directly pecuniarily of LPPE
interested i.e has monetary interest. - Section 94(3)(k)- Breach
of any rules under LPA /
Rule 43 further provided that no advocate BCRR
and solicitor shall volunteer advice to bring - Section 94(3)(n)- Gross
an action or to stir up strife and litigation. disregard of client’s interest
- Section 94(3)(o): Conduct
unbefitting & bring
profession into disrepute

KICKBACK & It has been an established rule under Rule 16 By conducting so, an
BRIBERY that in acting as an advocate and solicitor, it advocate and solicitor is
shall be done fearlessly upholding the interest guilty of misconduct
of his client, the interest of justice and dignity enlisted under section
of the profession. 94(3)(f) of the LPA for
tendering or giving of any
This rule shall be read together with Rule 31 gratification to any person
which specified that an advocate and solicitor for procuring an
shall uphold the dignity and high standing of employment in any legal
his profession at all times. business for himself.

Rule 52 can also be referred to whereby any

act of an advocate and solicitor that divide
costs or profits of his business with any
unqualified person, or give commission,
gratuity or valuable consideration to any
unqualified person, or accept less than the
scale fees laid down by law in respect of
non-contentious business carried out by him,
shall be regarded as unprofessional and
improper conduct.

MLM Rule 16 specified that in acting as an Section 30(1)(b) of the An exception was
LAWYERS advocate and solicitor, it shall be done LPA specified that if an however stated under
(so long as the fearlessly upholding the interest of his client,
advocate and solicitor Chapter 12.01 of the
business the interest of justice and dignity of the gainfully employed by any BCRR whereby an
contributed profession. other person, firm or body advocate and solicitor
back to the in a capacity other than as may engage in a
profession) This was further strengthened with Rule 31 an advocate and solicitor, part-time business that is
which provided that an advocate and solicitor he shall not be entitled to not incompatible with
shall uphold the dignity and high standing of apply for practicing the dignity of the legal
 his profession at all times. certificate, and if he already profession, and (2) of
has one, he shall surrender the ruling provides the
A reference shall further be made to Rule 44 that practicing certificate to same for a legal assistant
too which stated that an advocate and the Registrar. in a law firm.
solicitor shall not actively carry on any trade
which is declared by the Bar Council as It is also a misconduct
unsuitable for legal profession, and it was pursuant to section 94(3)(j)
further stated under (b) that he shall not be a as he carried on himself
full-time salaried employee of any person, with trade incompatible
other firm or corporation so long as he with the legal profession.
continues to practise.

TOUTS Rule 51 of the LPPE clearly stated that An Accepting any employment Ruling 5.01(2) also
advocate and solicitor shall not do or allow to
in a legal business through mentions the same
be done anything with the purpose of touting,touting is a misconduct where an advocate and
be it directly or indirectly, or which is under section 94(3)(h), as solicitor shall do or
calculated to suggest that it is done for that
well as under section cause to do any act of
purpose. 94(3)(g) in relation to touting either directly or
procuring employment by indirectly.
It was further strengthened with Rule 52 agreeing for remuneration
which prohibits division of costs and profit for any other person.
with an unqualified person (refer Rule 52).

MORALLY This prohibition has been clearly mentioned

DEGRADED under Rule 16 whereby in acting as an
advocate and solicitor, it shall be done
fearlessly upholding the interest of his client,
the interest of justice and dignity of the
profession.

Also to be read together with Rule 31 which

stated that an advocate and solicitor shall
uphold the dignity and high standing of his
profession at all times.

It can also be inferred from Rule 18 which

provided that the conduct of an advocate and
solicitor before the Court as well as to other
advocates and solicitors shall be
characterised by candour, courtesy and
fairness.

STEALING Rule 18 provided that the conduct of an

CLIENTS advocate and solicitor before the Court as
well as to other advocates and solicitors shall
be characterised by candour, courtesy and
 fairness.

CHAMPION It has been clearly stated under Rule 32 that

AMONG the feeling existed between clients shall not
CLIENTS influence the counsel in their conduct
towards each other or towards parties and
their witnesses in the case.

Also under Rule 36, it has been duly stated

that an advocate and solicitor shall use his
best efforts in preventing his client from
doing improper acts which the advocate and
solicitor himself ought not to do, especially
in regards to his conduct towards Court,
witnesses and parties. In any situation where
the client persists in such wrongdoing, the
advocate and solicitor shall terminate the
relationship.

CLASSIC In this regard, Rule 26 of LPPE has clearly Intruding into another party Ruling 11.06 of the
INTRUSION mentioned that an advocate and solicitor is a misconduct under BCRR has specified the
shall avoid misleading a party which is not section 94(3)(d) as it was manner for change of
represented by counsel. an act in breach of the solicitor, in which the
LPPE. new solicitor shall
Also under Rule 42, it was provided that obtain the consent of the
except with an express consent, an advocate solicitor on record
and solicitor shall not communicate with a before filing the Notice
person on matters about a person that is of Change of Solicitors
represented by another advocate and solicitor. in accordance with
Order 64 rule 1 of the
A proper guideline has been stated under Rules of Court 2012, in
Rule 54 which provided that an advocate and which Form 136 shall be
solicitor not to appear for a party represented duly filed to the
by another advocate and solicitor except he Registry.
obtained the consent of the advocate and
solicitor representing the party, or when the
remuneration of the first-named advocate and
solicitor has been duly paid up, or in case of
ignorance to the refusal of the first-name
advocate and solicitor, or when the
first-named advocate and solicitor is
unwilling or has refused to act further for
such party
POACHING Rule 18 provided that the conduct of an
STAFFS advocate and solicitor before the Court as
well as to other advocates and solicitors shall
be characterised by candour, courtesy and
fairness.

UN- Section 94(3)(i) of LPA

AUTHORISED stated that an advocate and
TO ACT ON solicitor shall not allow any
BEHALF unauthorised person to
carry on legal business in
his name without his direct
and immediate control as
principal or without proper
supervision, or else it is a
misconduct under the
provision.

CASE LAWS

CHAMPERTY Saraswathy Devi v Vijayalakshmi (1998)

TOUTING Rhina Bhar v Koid Hong Keat (1992)

The principle of indirect touting was discussed by the court in this case whereby it is when a discount
is offered for a non-contentious matter. A reference was made to the Solicitors’ Remuneration Order
1991 which has clearly stated that there shall be no discount unless expressly provided by the
scheduled, which under Order 6(1) in regards to only the fees specified in First and Third Schedules, a
discount up to 25% may be given. The judge also made a reference to section 15A of the Minor
Offences Act which stated that touting is an offence.

Balakrishnan a/l Devaraj v Patwant Singh a/l Niranjan Singh (2004)

This case concerns the plaintiff who introduced clients in accident cases to various legal firms. The
defendant who has just wanted to open his own firm has approached the Plaintiff and requested for the
Plaintiff to finance his firm. There was an oral agreement between the parties in which 25% of
commission shall be given to the plaintiff for each case that he introduced. Later when the relationship
turned sour, the defendant refused to pay the commission agreed, and thus the plaintiff claimed breach
of contract for the non-payment. In the parties’ argument, it was argued by the plaintiff that since he is
not a solicitor, thus the provision under the LPPE does not apply on him, whereby the defendant
claimed that since touting is illegal, there will no cause of action for the breach as it is against the
public policy under section 24(e) of the Contract Act 1950. The court held that a touting agreement
between a solicitor and a tout is per se against the public policy as it is fundamentally inconsistent with
the interest of the public and the honour of the profession as has been cited by the court in reference to
the case of Re A Solicitor. Also referring to the case of Phool Din & Ors, the court ruled that tout
concerns on which law firm gives the better remuneration to that tout, and not the best service. Thus
this resulted in the client being deprived of the best service that he is entitled to. Therefore pursuant to
rule 51 and 52 of the LPPE as well as section 24(e) of the Contract Act 1950, such an agreement is
 void, unenforceable and is a clear misconduct under section 94(2) of the Act.

Koid Hong Keat v Rhina Bar (1989)

Ong Guek Siang v Asset First Sdn Bhd (2012)

BRIBERY MACC’s News that detained Lawyer who tried to bribe the DPP
A former session court judge, the DPP and lawyer were all charged with receiving gratification of
RM1000 in order to resolve a robbery offence case which is charged under section 393 of the Penal
Code.

CLASSIC Marcel Jude a/l Ms Joseph v Messrs Jayasuriya & Co (2012)

INTRUSION In this case, the plaintiff firm which has been engaged priorly by a company (CBSB) claimed that he
suffered from loss when the defendant firm has undertaken the conduct of the suit without firstly
obtaining plaintiff’s consent, without firstly having the plaintiff discharged as an advocate and solicitor
to CBSB as well as without firstly having the plaintiff secured of outstanding fees due from the
company. It was ruled by the judge that the defendant was not in any way purported to act on behalf of
the company based on the documentary evidence presented. The court also emphasised that even if the
defendant has breach of rule 54 of the LPPE as well as order 64 rule 1 of the Rules of Court 2012,
it does not give rise to cause of action against the defendant for a professional negligence suit as it
merely concerns etiquette complaints which shall be subjected to the disciplinary action by the
disciplinary board. In deciding so, the court referred to Asia Commercial Finance Bhd v Bank
Bumiputra Malaysia (1988) which stated that the LPPE only regulate professional practice and
etiquette of an advocate and solicitor, and it does not in any way regulate the procedure for legal
proceeding in the High court as such power was not conferred to the Bar Council under LPA. Since
breach to the LPPE as well as order 64 rule 1 of the Rules of Court 2012 is merely procedural and not
of substantive laws, it does not attract any civil liability, but the solicitor may still be liable for
disciplinary proceedings under the LPA.

MLM Chee Kuat Lin v Majlis Peguam (2012)

LAWYERS The appellant in this case claimed not to be a police officer that is a full-time salaried employee when
he practiced as an advocate and solicitor as he was under a suspension. Due to the suspension, he
received only half of his salary and allowance. The court in this case highlighted that the words
‘gainfully employed’ under section 30(1)(c) of the LPA has two qualifications to be satisfied which is
firstly is the use of the service and secondly on the payment of the service. Looking back to the facts of
the case, it was found that since the appellant is still a police officer though suspended, he still received
half month salary and allowance from the police force, and is allowed to carry his police identification.
Therefore, he is in fact gainfully employed from the police officer position making him liable for
violating section 30(1) of LPA as well as rule 44 of LPPE.

DUE CARE, Mohd Nor Dagang v Tetuan Yusof Endut & Associates (2010)
SKILLS &
DILIGENCE Neogh Soo Oh v G Rethinasamy (1984)

SHARIAH Rule 15 of Practice Direction No 4 Year 2002: Peguam Syarie shall, while acting before the court in
DUTIES which he is present, dares to defend the interests of justice, his service and the honor of his profession
 PUBLICITY
INTRO Rule 2 of LPPR defined publicize as to make known to the public through
any form of advertisement either published in the newspaper… (refer rule
2). Generally as has been provided under rule 4, an advocate and solicitor
shall not publicise except in accordance with LPPR. An advocate and
solicitor shall also not solicit professional business if the publicity to his
practice is inconsistent with what has been permitted under the LPPR.

PUBLICITY Rule 5(1)(a) of LPPR stated that an advocate and solicitor who publicise
his practice shall not do so in a way that is likely to diminish the public
confidence in the legal profession, or in any manner regarded as
ostentatious, misleading, deceptive, inaccurate, false, sensational, offensive
or in any way unbefitting to the profession’s dignity.

And in such publicity, rule 5(1)(b) stated that an advocate and solicitor shall
not make any claim that he is an expert or specialist in any area of practice,
or to make any reference to the number of cases that has been successfully
undertaken, or any laudatory references to himself extolling the quality of
the professional services offered.

GENERAL Generally, Rule 24(1) of LPPR stipulated that an advocate and solicitor is
RESPONSIBILI responsible to ensure that any publicity done by him or his firm shall be in
TY accordance with LPPR. and in any event that the advocate and solicitor
become aware of any impropriety in any publicity, then he shall
immediately rectify or withdraw the publicity, and shall also ensure that the
Bar Council is informed in writing in relation to that matter as has been
provided under rule 24(2). This responsibility is strictly non-delegable.

PHOTOGRAPH Rule 48 of LPPE stated that an advocate and solicitor shall not publish
photographs as a member of Bar in the press. However pursuant to rule 62
of LPPE, rule 48 has been waived by the Bar Council with the approval of
AG.

Ruling 5.10 of the BCRR shall also be referred here where it provided that
the publication of photographs of an advocate and solicitor in a brochure or
other publicity material is permissible so long as it is not incompatible with
the legal profession’s dignity.

REPORTING Rule 49 of LPPE has also emphasized that an advocate and solicitor shall
not solicit reporting of any matter which he is professionally engaged in.

DIRECTORY Rule 8(1) of LPPR provided that an advocate and solicitor may advertise
OF his practice in a legal or non-legal publications approved in writing by the
ADVERTISE Bar Council upon application, or in other publication which its contents
befitting the dignity of legal profession, or in any media permitted by LPPR,
and such an advertisement shall only contain approved information as has
been defined under rule 2.

BUSINESS Rule 11(1) of LPPR provided that an advocate and solicitor may distribute
CARD his business card so long as it was done discreetly and only during the
occasion which is proper to do so, and such business card shall only contain
approved information under rule 2.

BROCHURE In general, rule 12(1) of LPPR provided that an advocate and solicitor may
distribute brochures, leaflets or pamphlets. However, it is subject to two
strict conditions which are firstly, the information in the said brochure shall
only be approved information, and ist distribution may only be made to the
solicitors’ employees, his clients, any person making an unsolicited
inquiries with good faith on the professional service that he offers, as well
as any person with whom he has professional dealings. So long as it was
done discreetly in a manner befitting the profession’s dignity.

Place of brochures
Rule 12(2) further restricted this publicity by stating that such brochure,
leaflet and pamphlet may only be put on display within the premises of that
firm.

NOTICE Rule 14 of LPPR provided that an advocate and solicitor may insert a
notice in any newspaper or law journal, or send to the firm’s clients or with
whom he has professional dealings with. Such a notice under rule 14(1)
shall only be for the purpose of conveying information on commencement
or dissolution of his practice, merger of his practice with other firm,
opening of new branch, admission, withdrawal, retirement or death of any
advocate and solicitor, any change of name or particulars of firm, or any
other matters approved by the Bar Council.

INTERVIEW At the request of press, radio or television, rule 15(1) of LPPR stipulated
WITH PRESS that an advocate and solicitor may consent to be interviewed even in his
professional capacity so long as such an interview is not in relation of
matters or nothing was said by him that could be reasonably inferred to
attempt in publicising his practice in a manner inconsistent with LPPR, and
any information publicised shall only be approved information as has been
provided under rule 15(2).

CASE: Majlis Peguam v Dato Sri Dr Muhammad Shafee Abdullah (2016)

SEMINAR Rule 16(1) of LPPR allows an advocate and solicitor to give public lectures
or to participate in any conference so long as nothing was said by him that
could be inferred as an attempt to publicise his practice in a manner
 inconsistent with LPPR. Additionally, sub-rule 16(2) stated that any paper
presented at such public lecture or conference may be distributed provided
that it shall only contain approved information in relation to the advocate
and solicitor.

BOOKS In any event that an advocate and solicitor has written in a book or an article
intended to be published in any newspaper or journal, rule 20 of LPPR
stipulated that such information contained under the writing shall strictly
only be approved information.

ELECTRONIC Only approved information is allowed to be transmitted through electronic

MEDIA media as has been provided under rule 21 of LPPR.

WEBSITE An advocate and solicitor may provide a website for the firm so long as it
complied with ruling 17 of BCRR. To begin, ruling 17.03 stated that the
presentation of the website shall comply with LPPR, specifically rule 5 of
LPPR.
Ruling 17.04 further stated that an advocate and solicitor shall report the
website address to the Bar Council within 1 month after the publication of
the website on the internet.

The permissible information to be included in the website has been

provided under ruling 17.05 to include disclaimers, links, hidden text or
hidden graphics, tracking, comments or inquiries, approved information of
solicitor-client relationship, as well as other permissible informations
stipulated under the LPPR.

Information which is not permissible were further stated under ruling

17.06 to include information indecent, false, offensive, defamatory or
sedition under Malsyain laws, publication which in contradiction to rule 5
of LPPR or is in any way likely to diminish confidence of public to the Bar,
or publicity of another person other than the advocate and solicitor and his
firm. Ruling 17.07 has also strictly prohibited a solicitor from using the
website for the purpose of doing touting.

SHARIAH SHA: Rule 15.02 of BCRR stated that all the Rulings shall apply to
DUTIES & Syariah Practitioners in the course of their Syariah practice if such
RESPONSIBILI Syariah Practitioners are also Advocates and Solicitors. Therefore, all the
TY rulings of publicity under the BCRR shall be equally applicable to syarie
practitioners.