EPS0317/QB06/SRMK(6)

Bar Council Malaysia

Ethics and Professional Standards Course: Written Assessment
Instructions and terms for the Written Assessment
(1) Please note that this assessment is a mandatory part of the Ethics and Professional Standards
Course.
(2) Please prepare answers to the following five questions, and submit this document back to
saiful@malaysianbar.org.my when you have completed your answers.
(3) Please write your answer in the space provided, and ensure that each answer does not exceed
300 words.
(4) Please note that your answer should not comprise of any plagiarised material / content from
any source, and while you may refer to statutory provisions and cases and materials for the
purposes of writing the answers, if you are found to have plagiarised any material / content,
you will be deemed to have failed the Ethics and Professional Standards course, and may not
be allowed to re-do the course.
(5) Please note that your answer should not be copied from any source (including the work of
other pupils in chambers), and if you are found to have done so, you will be deemed to have
failed the Ethics and Professional Standards course, and may not be allowed to re-do the
course.
(6) Please note that your answers should be written only by you, and not by any third party,
whether for payment or otherwise. If it is discovered that your answers have been written by
a third party, you will be deemed to have failed the Ethics and Professional Standards course,
and may not be allowed to re-do the course.
Please insert your full name and Bar Council Petition Number below. This will be treated as an
acknowledgement that you have read and understood the terms of this assessment.

Name: SYED MOHAMMAD DILNAWAZ BIN SYED NASEEM

Petition No: WA-18-623/2018
Date: 1/10/2018

Module 1: Role of the Bar: Question 1

The layman does not understand the role played by Advocates & Solicitors in Court to resolve a
dispute or to ascertain the guilt or innocence of an accused person. Explain in your own words the
role of an Advocate & Solicitor about the statement above.
The roles played by Advocates & Solicitors in court are to uphold justice and to ensure a fair and just
trial that is taken place. As officers of the court, lawyers are to assist the court in coming to an
accurate decision. Firstly, Section 42(1) of the Legal Profession Act 1976 states the objectives of
Advocates & Solicitors as part of the Malaysian Bar which includes to uphold justice and not to be
swayed by own interests. This means that as lawyers, the interest of justice is priority when it comes
to ascertaining the guilt or innocence of an accused person. Rule 16 of the Legal Profession (Practice
and Etiquette) Rules 1978 (“LPPER”) states that lawyers must act with due courtesy while upholding
the interest of his client, the interest of justice as well as the dignity of the profession. As seen in
Dato’ Wong Gek Meng v Pathmanathan a/l Mylvaganam [1998] 5 MLJ 560, the court highlighted
that a lawyer must be careful and skillful in court to ensure that his client’s interest is being upheld
as well as the interest of justice. Lastly, Rule 9 of the LPPER mentions that any lawyer that

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undertakes the defense of any person shall present every defense fairly and honorably regardless of
his personal opinion as to the case. Lawyers are the ones that uphold the law which interpretations
may vary and it is up to the judge to determine the better view depending on the arguments of the
lawyers. In conclusion, Advocates & Solicitors play a momentous role to determine the guilt and
innocence of a person in court. If lawyers do not execute their roles to the best of their abilities, a
fair trial may not be taken place and this will affect the justice system itself as a whole.

Module 2: Professional Ethics: Question 2

You have just started your own firm and you run the practice as a sole proprietor, but the economy
has been bad and you have had difficulty making ends meet. You have also had difficulty collecting
payments due to you from your clients.
a. Your sister has also started a new business, and has suggested that you both share premises
and staff, to keep office expenses low. She is involved in the sale of slimming products, and
provides slimming massages, which may involve having her clients walk around the premises
half clothed.
Is this arrangement ethical? Give reasons for your answer.
b. To add to your bad financial situation, judgment of a sum of RM5,000.00 was taken against
you for not paying your hire purchase installments on your car, and the Court Bailiff is now at
your office to execute the judgment. Your accounts clerk tells you that you have a sum of
RM12,000.00 in the Client Account which is not due to be utilised for another two months, and
suggests that you use part of that money to pay the Bailiff. Would you do what is suggested by
your clerk, so that seizure may be called off? Provide reasons for your answer.
a.

The first issue is whether the arrangement of sharing premises between my firm and my sister’s
business is ethical under the Legal Profession Act 1976. Rule 31 of the Legal Profession (Practice
and Etiquette) Rules 1978 (“LPPER”) states that as an advocate & solicitor, they have the duty to
maintain and uphold the dignity of the profession. This means that by sharing the firm’s premise
with the slimming product business and having half clothed clients walking around the firm, it would
be detrimental to the dignity of the legal profession. Next, Rule 44(a) of the LPPER states that an
advocate and solicitor shall not actively carry on any trade which is unsuitable. In this situation, the
arrangement includes sharing the premise as well as the staff which means there is a sharing of
profits and expenses. The business of slimming products may be considered as an unsuitable trade
which then leads to this arrangement being unethical under the Legal Profession.
Lastly, Rule 55 of the LPPER mentions that it is not professional for a lawyer to divide cost received
or the profits of his business with any unqualified person. This means that by sharing my premises
with my sister’s business, we are dividing the costs of the premises and clearly a person running a
slimming product business is considered as an unqualified person under the Legal Profession Act. In
conclusion, the arrangement made is considered as unethical as a legal practitioner.

b.

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The second issue here is whether my act of using the client’s money for personal matter is consistent
with the Legal Profession Act. Firstly, Section 94(2) of the Legal Profession Act 1976 (“LPA”) states
that any advocate and solicitor who are guilty of any misconduct shall be liable to be struck off the
Roll or be suspended from practice. Next, Rule 7 of the Solicitors’ Account Rules 1990 (“SAR”)
illustrated the method of drawing out the client’s money which includes for a payment to or on
behalf of the client. This means that the client’s money can’t be used as and when needed by an
advocate and solicitor despite having personal financial issues. Even though the money will not be
utilized in the near future, it is still considered as unethical and constitutes misconduct when a
lawyer uses the client’s money for a personal matter which then makes me liable under Section
94(2) of the LPA. As seen in Marzaini bte Zainuddin v Majlis Peguam Negara [2007] 8 MLJ 697,
whereby the court held that when the advocate and solicitor had used the money in her client’s
account for purposes that is not stated under Rule 7 of the SAR, she was then found to be guilty of
misconduct and was ordered by the court to be suspended from practice. Lastly, the suggestion by
the clerk to use the client’s money in the client account is an unethical and immoral alternative
which should not even be considered by a legal practitioner. Upholding the interest of the clients
and justice is one of the most crucial duties that are bestowed upon an advocate and solicitor and by
using the client’s money; I would be blatantly disregarding the interest of his clients.

Module 3: Duty to and in Court: Question 3

You are a Counsel for the Plaintiff in a certain case. You have a few reported decisions (both local
and foreign) to support your submissions before the Court. However, there is one decision which is
relevant but which is against the Plaintiff’s case. You have decided NOT to bring this decision to the
attention of the Court.
Discuss if you have made a poor ethical choice and what consequences could flow from the
Court not having the benefit of the decision you have withheld.
When I have decided not to bring the decision which is relevant but against the Plaintiff’s case, I then
have breached Rule 20 of the Legal Profession (Practice & Etiquette) Rules 1978 (“LPPER”). Rule 20
of the LPPER clearly states the duty of an advocate & solicitor to put before the court any relevant
binding decision despite it being for or against his case. This is illustrated in the case of Shaw & Shaw
Ltd v Lim Hock Kim [No 2] [1985] MLJ 129, whereby the court held that a lawyer must be careful
when displaying facts before the court while presenting them in the light which seems most
favorable to his client and it is the duty of the lawyer to call the attention of the court to any case
which is clearly against him. Next, Rule 17 of the LPPER states that lawyers owe the duty to not
suppress relevant documents to the court. By not bringing the relevant decision that is against the
Plaintiff’s case, I may be seen as suppressing a relevant document to the court. In addition to that,
Rule 22 of the LPPER mentions that it is also the duty of lawyers to bring to the court’s attention any
proposition of law. In applying all the authorities, I have made a poor ethical choice when I had
neglected to bring a relevant decision to the attention of the court. The consequences of the
decision being withheld from the court include an unfair trial that may be taken place as a result of
the case being prejudiced against the defendant. This will ultimately affect the carrying out justice by
the courts as a whole in a negative manner.

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Module 4: Solicitors Accounts and Undertakings: Question 4

Discuss the possible methods of enforcing a solicitor’s undertakings, and the considerations one
would take into account in deciding on the method of enforcement.
A solicitor’s undertaking is a promise to do or not to do an act. As in Packiam (Madam) Ramalingam
v Badam Peguam Malaysia [1999] 4 CLJ 804, an undertaking is defined as an unequivocal
declaration of intention addressed to someone and that someone places a reliance on it. Under
Ruling 14.09 of the Bar Council Rulings, the failure to honor an undertaking amounts to a
professional misconduct. For example, if a solicitor undertakes to another solicitor to release a sum
of money to the client upon a specific condition, this means that the vendor’s solicitors may only
release it when the condition is fulfilled. If the vendor’s solicitors release the sum before, it then
amounts to a breach. The methods of enforcing of undertaking includes by way of a civil claim in
contract or tort depending whether the breach of the solicitor gives rise to a claim in contract for
damages or in negligence as a breach of duty owed, as illustrated in the case of Al-Kandari v J.R
Brown & Co [1987] 2 ALL ER 302. Besides that, a summary jurisdiction of court over solicitors is
another possible method to enforce an undertaking. In Myers v Elman [1939] 4 ALL ER 484, the
court highlighted the nature of the summary jurisdiction which includes that the court has a right
and duty to supervise its solicitors, the matter need not be criminal, it need not involve dishonesty
as inaccuracy may suffice and it need not involve personal obliquity. In relation to the considerations
that are taken into account for summary jurisdiction, it must be when the facts are clear and there is
a deficiency in law. On the other hand, the consideration for a civil action is based on the balance of
probabilities when determining the burden of proof.

Module 5: Duty to Client: Question 5

You are involved in a share sale agreement between a Director of a public listed company and a Tan
Sri who is well connected. You learn from your client that, once the Tan Sri becomes a major
shareholder, all the business from the Tan Sri’s various companies will be channeled to this public
listed company. You know for certain that when this news leaks out, the share price will substantially
rise.
You purchase one million shares at RM1 using your own money. After one month, and the
publication of the news about the share sale agreement, the shares have gone up in value to RM3
per share.
Discuss whether you have done anything wrong, and the consequences to you if this fact is
discovered.
The issue here is whether the act of purchasing one million shares by me of the public listed
company based on confidential information amounts to a breach under the Legal Profession Act
1976(“LPA”). Firstly, Section 35 of the Legal Profession (Practice & Etiqutte) Rules 1978 (“LPPER”)
states that a lawyer shouldn’t abuse the confidence given to him by his clients. This simply means
that any and all information the lawyer has by dealing with the client should not be used for his own
personal benefit or enrichment. In addition to that, Rule 31 of the LPPER also states that the lawyer
has the duty to uphold the dignity of the profession and the interest of the clients. By profiting from
the information gained in confidence by me is a direct breach of this rule as the act of benefiting
from the shares means that I not only have disregarded the dignity of the profession but was
upholding my own interest rather than my client’s interest. Lastly, Section 126 of the Evidence Act
1950 clearly states that a counsel should not disclose any information related to his client without
the client’s consent. In applying all the authorities mentioned, it is clear that the act of using the
information I received from the share sale agreement to profit by purchasing one million shares of
the same company is considered as unethical and a violation of the Legal Profession Act. In this case,
I have done something wrong and the consequences of my actions makes me liable under Section

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94(2) of the LPA, whereby any lawyer who is guilty of any misconduct may be liable to any of the
punishment stated under the provision including being struck off the Roll.