ETHICS AND ADVOCACY

PP JULY 2023
DR HB CHEE
MD(USM),LLB,LLM
T E T UA N C H R I S & PA RT N E R S
DISCLAIMERS
1. PRO BONO CLASS
2. JUNIOR IN LAW
3. THE CLASS IS NOT AIMED TO COVER ALL AREAS OF LAWS
4. THE ACCURACY OF THE INFORMATION COULD NOT BE
GUARANTEED
5. NO CONFLICT OF INTEREST WITH ANY PARTIES PROVIDING
SIMILAR CLASS
6. FEEDBACK IS VERY MUCH WELCOME
TIME RUSHING

Q1 : 9.15 – 9.50am (35min)

Q2 : 9.50 – 10.25am (35min)

Q3 : 10.25 – 11.00am (35min)

Q4 : 11.00am – 11.35am (35min)
Q5 : 11.35am – 12.10am (35min)

5 minutes left : check ID + correct gross mistake

Answer Q1
Facts:
Ali – fresh graduate from LLB (Universiti Malaya)
Muthu – LLB from the University of Nigeria, no BM
Ah Hock – Barrister at Law  Lincoln’s Inn

3 Parts of Questions
1. Qualified Person
2. Authorised Person
3. Statutory Steps to admitted & enrolled as an A&S of High Court of Malaya
Answer Q1
A qualified person – means any person who [s.3 LPA 1976] –
a. has passed with an LLB of the University of Malaya, the University of Singapore, or the
National University of Singapore;

b, is a barrister-at-law of England;

c. is in possession of such other qualification published in the “Gazette” and declared by

the Board to be a qualified person.
s36. (1) LPA 1976 Subject to this section, no person shall practise as an advocate and solicitor or
do any act as an advocate and solicitor unless his name is on the Roll and he has a valid
practising certificate authorizing him to do the act; a person who is not so qualified is in this Act
referred to as an “unauthorized person”.

Making inferences from specific provision, an authorized person is an A&S whose name is on the
roll and he has a valid Sijil Annual and Practising Certificate

Case referred : Ramathan Vellu

Ali:

- qualified person under S3 (a) LPA 1976 – Bachelor of Laws of University Malaya

- By virtue of s10 LPA 1976 , the High Court may admit Ali as he is a qualified person.

Ah Hock :

- qualified person under s3 (b) LPA 197, is a barrister-at-law of England

- By virtue of s10 LPA 1976, the High Court may admit Ali as he is a qualified person

Muthu :

- not a qualified person. The University of Nigeria is not a recognized university in LPQB. He is not qualified to take
Certificate in Legal Practice Examination. Therefore, Muthu would have no chance to be an A&S in Malaysia unless
he retakes his LLB in a recognized university. The issue of Bahasa Malaysia is having no bearing on his admission.
Since Ali and Ah Hock are both qualified persons. Their statutory procedures to be admitted as anA&S
would be discussed collectively as follows.

Reading together with Section 14 of the Legal Profession Act 1976, Section 11 further provides that in
order for them to be admitted as an Advocate & Solicitor, he must:

1.Be at least 18 years old.

2.Be of good character, which includes:

1. Not being convicted of dishonesty or fraud.

2. Not being bankrupt.

3. Not being disbarred as a barrister or solicitor in England.

4. Not being disbarred, disqualified, or suspended from legal practice in any other country.

3.Be a Malaysian citizen or permanent resident.

4.Have satisfactorily served 9 months of pupillage in Malaysia.

In furtherance,

S11(2) – Ali, if he is from a local university, must prove that he has at least a “credit” in Sijil
Pelajaran Malaysia to get the LPQB exemption from sitting a Bahasa Malaysia Qualifying
examination. Similarly, Ah Hock would need the said proof of credit in SPM. Otherwise, he would be
required to sit for the BM Qualifying Examination done by LPQB

S12 (1) – Both of them shall undergo a nine-month pupillage, tagging with a Master who is in active
practice for at least 7 years in private practice

S12(3) – during the pupillage, they can only receive remuneration from their Master, and they cannot
engage in any employment without special written permission from Bar Council

When commence their pupillage, they should simultaneously submit their petition cause paper
pursuant to s10 & s15 of LPA 1976
 In brief, both of them must submit Borang 1 , 2 and 3 to Bahagian Kuasa-Kuasa Khas High Court of Malaya at Kuala
Lumpur for their admission petitions via E-Filing System

They must submit Borang 4,5,6 (OS + Affidavits) to their local High Court of Malaya to obtain a “short call order”.

Throughout the pupillage, they would be required to learn the advocacy knowledge and skills from their masters. They
are necessitated to attend the Professional Ethics Course conducted by State Bar and to perform their legal aid duty.

Towards the end of their pupillage, they must submit their Borang 7,8 and 9. If there are no objections from the three
bodies, namely AGC, State Bar, and Malaysian Bar. They would be called into the Bar in the High Court of
Malaya.

After the “long call” order, they are required to register their name at the instrument A&S. Then, they must purchase
Professional Indemnity Insurance and apply for SAPC.

Upon completion of all the brief procedures as described, Ali and Ah Hock can practise legally as an A&S in Malaysia
Answer 2(a)
Pursuant to S80 LPA 1976, the Malaysian Bar established the Advocates and Solicitors
Compensation Fund ("Compensation Fund") in 1978 to mitigate the losses suffered by members
of the public (who are clients of lawyers) arising out of the dishonesty of lawyers. One example
is where a lawyer misappropriates monies held by him or her as a stakeholder.

The funds in the Compensation Fund come from compulsory annual contributions from every
practising lawyer registered with the Bar Council.
2(a)
Saroja would be required to comply with Advocates and Solicitors' Compensation Fund Rules 1978 by

filing the

1. Forms A and B, together with the "Schedule of Particulars to be Annexed to Form A or B“

2. Statutory Declaration

3. Contact Details Form

And submit to Compensation Fund Unit Bar Council Malaysia.

2(a)
Referring to r8 of A&S Compensation Fund Rules 1978, the Bar Council may before deciding whether or
not to make a grant out of the Compensation Fund require, in respect of any application, the pursuit of any
civil remedy which may be available in respect of the loss, or the institution of criminal proceedings in
respect of the dishonesty leading to the loss, or the making of an application to a Disciplinary Committee.

Based on the facts, Soraja would likely have a fraud/negligence claim against Obiwan & Co – which sounds
like a sole proprietor firm, nevertheless, the fraudster is untraceable. There could be an issue of contributory
negligence on her part for not exercising due diligence to check the stakeholder money. Therefore, I
submit that Soraja would likely to get “partial compensation” from the fund, but not in full.
Answer 2(b)
The Professional Indemnity Insurance (“PII”) Scheme for the Malaysian Bar was introduced in 1992. PII is
mandatory under Section 78A of the Legal Profession Act 1976. The amendment in 1992 sets out the provisions
for the Bar Council to maintain a Mandatory PII Scheme.

The Malaysian Bar PII Scheme insures its Members against civil liability for claims arising out of the legal
practice for work customarily and legitimately performed by lawyers in Malaysia, which include damages
payable to claimants, including claimant’s costs and defense costs. A specific mandatory limit will apply to
every claim, upon exhaustion of the firm’s base excess.

Saroja would need to commence a civil action against Obee for fraud/negligence. If Obee was found liable, then
the insurance company would make the payout. Saroja cannot directly claim her loss from the insurance
company.
Answer 2(c)
S94(3) LPA 1976, misconduct means conduct or omission to act done by A&S in Malaysia or elsewhere
which amounts to grave impropriety. The list of misconduct was provided in subsection (a) to (o) of the
same provision.

In this case, Obee had fled away with the client’s money that he was holding as a stakeholder. He could be
convicted for cheating under s420 Penal Code, tantamount to an infringement under s94(3)(a) LPA 1976.

On top of that, he had breached r7 of Solicitors Account Rule 1990 ie: drawing money from client’s
account for his own purpose, which had breached s94(3)(c) LPA 1976

In conclusion, it is crystal clear that Obee’s conduct amounts to misconduct aforesaid.

Answer 2(d)
As discussed in answer 2(c), Obee had committed misconduct under s94(3) LPA 1976; as an aggrieved
party, Saroja can lodge a formal complaint against Obee to ASDB pursuant to s99 LPA 1976. She would
need to furnish the DB with the following documents :

1. A complete complaint form as in the ASDB website

2. Statutory Declaration

3. Copy of her identity card

4. Supporting Documents

5. Fee of RM200
After lodging the complaint, the procedure in S100 LPA 1976 and Legal Profession (Disciplinary Proceedings) Rules
2017 shall be followed. Pursuant to s94(2) LPA, should Obee be found guilty of misconduct may impose with one or
more of the following penalties or punishments: –

(a) to be struck off the Roll

(b) to be suspended from practice for any period not exceeding 5 years

(c) to be ordered to pay a fine not exceeding RM50,000

(d) to be reprimanded or censured.

Considering the culpability and severe nature of Obee’s misconduct, it is likely that Obee shall be struck off the
Roll. Case referred : Choong Yik Son v Majlis Peguam Malaysia
 Answer 3(a)
Buntu represents himself:

It is a well-established principle that lawyers should not act as counsel and witness in the same proceedings. The
reason, as expounded by Beaumont CJ in Emperor v Dadu Ramu that: "An advocate cannot cross-examine himself,
nor can he usefully address the court as to the credibility of his own testimony, and a court may feel that justice
will not be done if the advocate continues to appear". This rule is expressly accepted by our Federal Court in
Wong Sin Chong & Anor v Bhagwan Singh

In the given scenario, Buntu and/or his firm (sole proprietorship) was sued by the Moneylender, Saudagar
(Plaintiff); by right, Buntu could not represent himself as he would be the main witness (Defendant) of the suit
in a professional capacity. Nevertheless,? Litigation in person [don’t submit]
Chantek Represent Buntu

Legal Profession (Practice and Etiquette) Rules 1978 and they include, among others, the following:

Rule 3. An Advocate and solicitor shall not accept a brief if he is or would be embarrassed.

Rule 4. An advocate and solicitor shall not accept a brief in a case where he knows or has reason to believe
that his own professional conduct is likely to be impugned.

Rule 5. No advocate and solicitor shall accept a brief if such acceptance renders it difficult for him to
maintain his professional independence or is incompatible with the best interest of the administration of
justice.

Rule 27. An advocate and solicitor shall not appear in any matter in which he is directly pecuniarily
interested.

Rule 28. An advocate and solicitor shall not appear in any case in which he has reason to believe that he will
be a witness.
Husband – Wife Relationship

Chantek & Buntu are husband and wife; such a relationship will pose a challenge to Chantek to maintain her
professional independence (r5) and integrity while arguing the case, as she has a personal relationship with Buntu;
Vijayalakshmi Devi Nadchatiram v Saraswathy Devi Nadchatiram. Acting for her husband would cause her to be
embarrassed (r3) and her professionalism to be impugned (r4).

Sharing of Office / Telephone

These facts cast doubt that both firms have a common pecuniary interest. Both of the firms’ resources are tied
together under the same roof. Should anything happen to Messrs Buntu Chamber, Messrs Bangga & Co might also
suffer loss. Chantek might infringe r27, if she acted in this case for Buntu. Tanjong Marina Management Sdn Bhd
v Penang Port Sdn Bhd
Saudagar is Chantek’s Client

BC Ruling 6.05- (1) A law firm may institute legal proceedings against an existing client
notwithstanding that it may be representing that client in other pending matters.

(2) An Advocate and Solicitor who acts for a client in various existing civil suits may also act for
another party against that client in an unrelated suit, unless that client can show that specific
information may be used by that Advocate and Solicitor giving rise to a conflict of interest or that
the Advocate and Solicitor holds a current retainer from that client.

Chantek should perform a conflict of interest check, ie : holding any confidential information in
her hands (legal professional privilege, s126-128 EA 1950) and importantly, would Chantek be
named as a witness (r28) in this present suit between Buntu and Saudagar
In conclusion, it is best for Chantek to recuse herself from representing Buntu for the
aforementioned reasons.

If Chantek refused to do so, she might be subjected to a disqualification application by the

opposing counsel, Dato’ Azizan bin Abdul Rahman & Ors v Pinerains Snd Bhd. She might be
subjected to disciplinary action by ASDB for infringing the ethical rules.
Answer 3(b)(i)
Pursuant to s116 (1) LPA 1976, Lobo may make an agreement in WRITING with Kulasingam
about the cost with regard to the contentious litigation matters. Kulasingam shall be required to
sign the said agreement S116(2) LPA 1976.

Reading S116 together with S118 LPA 1976, Kulasingam is advised that oral agreement is not
enforceable
Answer 3(b)(ii)
Kulasingam shall be advised that:

A bill of costs to be delivered to any client under section 124 LPA 1976 includes a gross sum bill
which is a brief summary of the bill as well as a detailed bill drawn up pursuant to Order 59 of
the Rules of Court 2012.

A bill of costs under section 126 of the Act contemplates a detailed sum of costs ready for
taxation.
Answer 3(b)(iii)
Kulasingam is explained with the following information:

Taxation is a legal process where the court examines and adjusts the legal fees charged by a
lawyer to their client or the opposing party (in cases where the court awards costs). It involves
detailed assessment, calculation, and formulation of the legal costs. This procedure is designed
to ensure that the legal fees are fair and reasonable, considering the work done and the nature of
the case.

The governing laws for Taxation of Cost Proceeding is s126, s129 and s130 LPA 1976; Order
59 r 12 and /or Order 92 r4 Rules of Court 2012
Answer 3(b)(iii)
Procedure:

1. Kulasingam can initiate an Originating Summon + Affidavit against Lobo within 6 months after delivery of
bill of costs.

2. The respondent shall make an Affidavit in Reply

3. The High Court Judge / Registrar shall do the hearing. The parties are making written / oral submissions.

4. The assessment of the cost shall be made

5. The Court shall issue an Order

6. The aggrieved party may appeal if not satisfied with the said order
Answer 4(a)
The case of Jones v National Coal Board by Lord Justice Denning, beautifully encapsulates the essence and high ideals of the British
legal system, focusing on the roles played by the judge and the advocates within a trial.

The opening speech in a civil case is pivotal for setting the foundation of an advocate's argument, offering a clear, coherent narrative
of their client's position. It serves three main purposes: providing clarity and direction on the case's key issues, establishing a
framework for the judge to understand and evaluate the evidence and arguments, and beginning the process of persuading the
judge towards the advocate's interpretation of facts and law. This initial presentation is essential for shaping the court's perspective
and guiding the trial's trajectory.

The closing speech is the advocate's last chance to make an impact on the court, summarizing the evidence and reinforcing their
case's strengths while addressing any opposition. It involves detailed legal argumentation, linking facts with legal principles to argue
for the client's victory. This speech is crucial for final persuasion, aiming to solidify the judge's understanding and sway their
judgment in favor of the advocate's client..
 Answer 4(b)
This guiding philosophy directly influences the protocol for the examination of witnesses during a trial, which traditionally
follows a specific order, in line with s137 Evidence Act 1950:

1. Examination-in-Chief (Pemeriksaan Utama): Conducted by the party who called the witness, this stage is designed to
elicit favorable evidence. Advocates ask open-ended questions to allow the witness to narrate facts that support their case.

2. Cross-Examination (Pemeriksaan Balas) : Conducted by the opposing party, this phase aims to challenge the credibility
of the witness or the accuracy of their testimony, and possibly elicit favorable facts for the cross-examiner's case.
Questions are usually more leading in nature.

3. Re-examination (Pemeriksaan Semula): If necessary, after cross-examination, the party who called the witness may ask
further questions to clarify or rebut matters that arose during cross-examination. This phase is more limited in scope,
focusing on issues brought up during cross-examination.
A judge can change the traditional order of witness examination in a trial if it promotes justice,
especially in complex cases or when unexpected circumstances arise, s138(4) EA 1950 for example,
the court may in all cases permit a witness to be recalled either for further examination-in-chief or for
further cross-examination, and if it does so, the parties have the right of further cross-examination and
re-examination respectively.

This discretion is used cautiously to protect the parties' rights and ensure the trial's fairness, aiming
to reveal the truth following the principles of impartiality and fairness. This flexibility demonstrates
the legal system's commitment to justice, guided by the values highlighted by Lord Justice Denning.
Answer 4(c)
The passage underlines the judge's role in the English legal system, emphasizing their duty to seek the truth and administer justice,
while maintaining impartiality and not getting involved in the disputations between parties. The legal system is an adversarial
system, where the Judge should listen/hear more. The Judge is not encouraged to descend into the arena of arguments of the
lawyers. This philosophy shapes the protocol for witness examination and the extent of judicial intervention in questioning.

Court's Control Over Questions:

Scope and Limits: Judges ensure that questions asked during the trial are relevant, appropriate, and not prejudicial. They
have the authority to disallow any questions that may be misleading, confusing, or irrelevant to the case at hand. This control is vital
to keep the trial focused on material facts and legal issues.

Intervention in Questioning: While the primary responsibility for questioning witnesses lies with the advocates, judges can
intervene to ask questions for clarification or further exploration of the facts. This intervention is carefully balanced to avoid
any appearance of bias or preference for one side over the other.
Extent of Judicial Intervention:

Clarifying Testimony: Judges may interject to clarify a witness's testimony or to ensure the evidence is fully understood. This can

involve asking follow-up questions that probe deeper into the matters discussed, especially if something remains obscure or

inadequately addressed.

Maintaining Neutrality: Any intervention by the judge must be done in a manner that maintains their neutrality and impartiality. The

goal is to illuminate the truth without descending into the arena of dispute, thus avoiding any perception that the judge is favoring one

party over another.

Legal Framework and Ethical Standards: The judge's questioning must adhere to legal and ethical standards, ensuring that all

parties have a fair opportunity to present their case and that the evidence is examined thoroughly and impartially.

The essence of this approach is that the judge serves as a facilitator of justice, guiding the process to uncover the truth while

allowing advocates to present their cases. This role requires a delicate balance between passive observance and active engagement

when necessary to clarify the evidence or address gaps in testimony. Therefore, the judge's ability to question witnesses is a tool for

truth-seeking, used judiciously to maintain the integrity of the trial and the fairness of the proceedings.