Professional Documents
Culture Documents
Introduction
Relevant Acts & Rules applicable for Disciplinary Proceedings
• The lawyer should not involve in professional misconduct because it will lower the dignity
of the profession and weaken the sense of confidence of the public to the administration of
justice.
(b) breach of duty to a court including any failure by him to comply with an undertaking given
to a court;
(d) breach of any rule of practice and etiquette of the profession made by the Bar Council
under this Act or otherwise;
(e) being adjudicated a bankrupt and being found guilty of any of the acts or omissions
mentioned in paragraph (a) , (b) , (c) , (e) , (f) , (h) , (k) or (l) of section 33 (6) of the
Bankruptcy Act 1967;
(f) the tendering or giving of any gratification to any person for having procured the
employment in any legal business of himself or any other advocate and solicitor;
(g) directly or indirectly procuring or attempting to procure the employment of himself or any
other advocate and solicitor through or by the instruction of any person to whom any
remuneration for obtaining such employment has been given by him or agreed or promised to
be so given;
(i) allowing any unauthorised person to carry on legal business in his name without his direct
and immediate control as principal or without proper supervision;
(j) the carrying on by himself, directly or indirectly, of any profession, trade, business or
calling which is incompatible with the legal profession or being employed for reward or
otherwise in any such profession, trade, business or calling;
(k) the breach of any provision of this Act or of any rules made thereunder or any direction or
ruling of the Bar Council;
(l) the disbarment, striking off, suspension or censure in his capacity as a legal practitioner in
any other country or being guilty of conduct which would render him to be punished in any
other country;
(m) the charging, in the absence of a written agreement, in respect of professional services
rendered to a client, of fees or costs which are grossly excessive in all the circumstances;
(o) being guilty of any conduct which is unbefitting of an advocate and solicitor or which
brings or is calculated to bring the legal profession into disrepute.
Limitation Period
S.99 (3A)
• No complaint concerning the conduct of any A&S / any pupil shall be inquired into by the
Disciplinary Board (DB)
• after the expiration of 6 years from the date when the right of action to bring the
complaint accrued.
Exception
(a) If the complaint is based upon the fraud of the A&S / his agent / any person through
whom he/his agent claims; or
(b) the right of action to bring the complaint is concealed by the fraud of the A&S /of his
agent /any person through whom he/his agent claims,
• the period of limitation shall not begin to run until the complainant has discovered the
fraud /could with reasonable diligence have discovered it
Rule 6 - Legal Profession (Disciplinary Proceedings) Rules 2017
No complaint relating to the alleged misconduct of any A&S concerned / the legal
firm shall be lodged by the complainant after the expiration of six years from the
time when the right to bring the complaint accrued or when the complainant first
became aware of the act / the last of the acts complained of had occurred entitling
him to lodge a complaint.
The Disciplinary Board (DB) [Lembaga Tatatertib]
•Officially established in 1992 under S.93(1)
•S.93(3): DB comprises of
(a) the Chairman appointed by the Chief Judge after consultation with the BC for a term of 2
years. Such person shall be a retired Judge of the HC/COA/FC or any other person who is
qualified to be a Judge of the HC/COA/FC.
(b) the President of the Malaysian Bar / any member of the Bar Council as his
representative; and
(c) 15 practitioner members of the Malaysian Bar of not less than 10 years' standing
appointed by the Chief Judge for a term of 2 years after consultation with the BC.
Function of DB
• S.103F gives power to DB to make rules to regulate the procedure for disciplinary
proceedings such as Legal Profession (Disciplinary Proceedings) Rules 2017
• By virtue of s.103J, DB may, in consultation with the Bar Council and with approval
of the Minister, make such rules as may be expedient or necessary for the better
carrying out of the provisions relating to disciplinary proceedings under the LPA.
(2) For the purposes of subrule (1), the quorum prescribed under s.93(4) shall be read as 6
members
The Chairman of DB
• S.93((4B): If the President of the Malaysian Bar also disqualifies himself from
deliberating on any complaint pursuant to subsection (4C) /
- is unable, through illness or any other cause, to attend the meeting,
- the members present shall elect one of their number to preside at the meeting for the
purposes of the complaint.
• Rule 2 - LP(DB)(P)R 1994: The Chairman may appoint the date, time & place of
meeting
S.93((4C) The Chairman, the President of the Malaysian Bar and any other member of the DB shall, where it is
necessary in the interest of justice, disqualify himself from deliberating on any complaint.
The Secretary of DB
• S.93(5)
▫ shall be a full time employee of the Bar Council appointed under s.98
▫ A&S having at least 5 years standing; or
▫ A&S having at least 3 years standing and worked with Bar Council / DB for at least 2
years.
• S.95: In addition to the DB there shall also be established a DCP (with a Disciplinary
Committee) for the purpose of disciplinary proceedings.
• S.96(1) – DB must appoint DCP from a list supplied by the Bar Council, comprising of 30
members:
•S.103A - appointment of DC
•DC shall consists of 3 members (from DCP list)
▫2 A&S (one of them shall be appointed as chairman of DC)
▫1 lay person
•The role of DC
▫S.103B: To conduct a full inquiry (within one month of its appointment) by perusing
the relevant documentary evidence in the presence of the complainant and the A&S
concerned by summoning the attendance of witnesses ( if any); and
▫S.103C: To arrive at an appropriate finding on liability (guilt) and or sentence, as the
case may be and furnish the finding/ recommendation to the DB :
The Director of the Complaints Secretariat (DCS)
• S.98(4): The Director shall be responsible for the daily administration of complaints
against A&S.
a. Complainant
• Rule 2: "complainant" = any person, whether natural/legal, who has made a complaint,
whether personally / through its officer / a solicitor, and includes the Bar Council, State
Bar Committee and the person/body enumerated in subsection 99(2) LPA.
• S.99(2): Any court (including the Industrial Court, Syariah Court), Judge, Sessions Court
Judge / Magistrate / the AG may at any time refer to the DB any complaint.
• S.99(3): BC / a State Bar Committee also can make a complaint on its own motion to the
DB.
b. Against Whom?
(1) A&S
• S.94(1): All A&S shall be subject for the purposes of all disciplinary actions to the control
of the DB.
• S.3: “A&S“ = A&S of the HC admitted and enrolled under LPA / under any written law
prior to the coming into operation of LPA
• S.92A: For the purposes of disciplinary proceedings, except under subsection 93(5),
subsection 94(2), s.96 and paragraph 98(1)(a), “A&S” includes a foreign lawyer
registered under s.40J;
• Disciplinary action is normally personal/individual in nature. The complainant should
name the particular A&S concerned
• However if no A&S is identified, the complaint can be made against the legal firm.
(b) in the case of a partnership, against all the A&S who were at the material time partners of
the legal firm
- unless the legal firm satisfies the DB of the identity of the A&S in the legal firm against
whom the complaint has arisen.
• S.94(5): A pupil shall mutatis mutandis be subject to the same control by the DB
- as is by virtue of this section exercised over an A&S, and
- any reference to A&S in this Part shall mutatis mutandis include a pupil
• However, the penalty is different namely an order prohibiting the pupil from proceeding
with any petition for admission until after a date to be specified in the order. (in lieu of an
order striking off the Roll/suspension)
• S.94(6): “pupil” includes a person who has completed the prescribed period of pupillage
and has yet to be admitted as an advocate and solicitor.
Form & Content of Complaint
• S.99(1): Any complaint concerning the conduct of any A&S / pupil shall be in writing
• Rule 4(1): A complaint must be made in the prescribed form as specified in the
Schedule.
Exception: if the complaint is made by the BC, a State Bar Committee/any person/bodies
mentioned in s.99(2).
• Statutory Declaration
Where to lodge?
• Rule 3: All complaints shall be lodged to the Director together with a non-refundable
processing fee (RM200) under Rule 5(1).
- Not applicable if the complainant is the BC, a State Bar Committee, a court, a Judge, a
SC Judge, a Magistrate or the AG.
- the Chairman may dispense totally/ partly with the payment of the processing fee
- where a complaint is sent to the BC/a State Bar Committee, the BC/ the State Bar
Committee, shall refer the complaint to the Director.
Duties of Director Upon receiving a Complaint
Rule 7(6): After the complaint has been registered in the Complaints Register, the Director
shall forward the complaint to the Chairman of the DB for his directions.
• Rule 7(2): If the complainant has not complied with the requirements of rules 3 and/or
4, the Director will not register the complaint, instead a written request will be send to the
complainant to satisfy the necessary requirements (except where the non-compliance is in
relation to the name and/or address of the complainant).
• Rule 7(4): The complainant must submit the particulars required within 21 days from
the date of receipt of the written request.
• The Director shall reject the complaint and enter that fact in the Rejected Complaints
Register (rule 11) if -
(a) the complaint does not contain the name/address of the complainant (Rule 7(3)); or
(b) the complainant fails to comply with a written request (Rule 7(5)).
(2.) Inquiry by DB
• S.100(3): if the A&S has furnished his written explanation, DB shall review the matter -
(a) if it is satisfied that there is no merit in the application/complaint, dismiss the
application/complaint and notify the parties accordingly; or
(b) if it is still of the view that there is merit in the application/complaint, proceed to
appoint a DC.
• S.100(2): if the A&S does not furnish his written explanation, DB shall proceed to
appoint a DC.
Summary Proceeding
• S.100(5): If the A&S fails to respond within 14 days from the date of the notice,
- the DB shall proceed to appoint a DC.
• S.100(6):If the A&S agrees that the application/complaint be dealt with summarily,
- the DB may, having ascertained that the A&S understands the nature & consequences of the
application/complaint being dealt with summarily, proceed to do so.
• S.100(11): If the A&S does not agree that the application/complaint be dealt with
summarily, the DB shall proceed to appoint a DC .
•S.100(7): The DB may impose one/more of the following penalties/punishments:
(a) reprimand/censure;
(b) impose a fine –
(i) not exceeding 5,000 ringgit on the A&S if no cause of sufficient gravity exists for a formal
inquiry; or
(ii) not exceeding 50,000 ringgit on the A&S where the A&S has admitted to the
misconduct/the material facts establishing the misconduct/ where the material facts
establishing the misconduct are evident and do not warrant further inquiry;
(c) suspend the A&S from practice / in the case of a foreign lawyer, recommend to the BC for
his suspension, for such period not exceeding 5 years as the DB deems appropriate in the
circumstances; or
(d) strike the A&S off the Roll / in the case of a foreign lawyer, recommend to the BC for the
revocation of his registration.
S.100(8): The DB may also make an order of restitution of the complainant’s monies if it is
established that such monies were/are held by the A&S in his professional capacity and the
complainant is entitled to the return of such monies or part thereof.
• S.103B(1): The DC shall, within 1 month of its appointment, commence its inquiry &
shall make its findings expeditiously.
i. Before Hearing
• S.103B(4): Before the DC commences its hearing in respect of any matter, the DC shall
post/deliver to the A&S concerned –
(a) a copy of any written application/complaint & of any statutory declaration/affidavit that
has been made in support of the written application/complaint; and
(b) a notice inviting the A&S concerned, within such period being not less than 14 days as
may be specified in the notice—
(i) to give to the DC any written explanation he may wish to offer which may be additional
to any previous written explanation he may have proffered under s.100; and
(ii) to advise the DC if he wishes to be heard by the DC.
• S.103B(5): The DC shall allow the time specified in the notice to elapse and give the A&S
concerned reasonable opportunity to be heard if he so desires and shall give due
consideration to any explanation he may make.
Record of Complaint
• Rule 12(1): The Director shall compile the following documents which constitute the
record of a complaint:
(a) a copy of the complaint/application together with any supporting document and
statutory declaration;
(b) a copy of the written explanation & supporting document from the A&S;
(c) a copy of the letter of withdrawal/letter of intervention, if any, and
(d) a copy of further letter of explanation & supporting document, if any.
• Rule 12(2): A copy of the record of complaint must be served to the complainant & the
A&S before the DC commences its inquiry.
• Rule 13: The DC shall conduct its proceedings at the premises of the DB, State Bar
Committee / at such other place as approved by the DB on such date and at such time as
the Chairman of the DC may appoint.
• Rule 14: The DC shall send a notice of hearing to the complainant & the A&S / their legal
representatives,
- by prepaid A.R. registered post/personal service to the last known address of the
complainant & the A&S / their legal representatives.
- Such notice shall specify the date, time & place of the hearing.
ii. Hearing
• Rule 15(1): The DC shall complete the hearing and submit the report within 4 months
from the date of its appointment.
• Rule 15(3): However, the Chairman of the DC may, grant a period of extension not
exceeding 2 months upon an application in writing to the Chairman of the DB and that
there are reasonable grounds to do so.
• Rule 16: If the complainant / the A&S / both fail to appear before the DC on the date
fixed for the hearing of the complaint, the DC may, upon being satisfied that rule 14
(service of notice) has been complied with, proceed to hear the complaint in the absence
of such person, without further notice to such person and make its determinations and
recommendations to the DB.
• Rule 17: The complainant and the A&S shall have the right to be represented by an A&S
of his choice during the hearing.
• Rule 18(1): At the commencement of the hearing, the Chairman shall introduce the
members of the panel and record the names of all parties present.
• Rule 18(2): Unless permitted by the Chairman, only the complainant, the A&S and their
respective legal representatives shall be present before evidence is taken.
• Rule 18(4): All evidence shall be given separately under oath administered and
recorded by the chairman.
• Rule 18(5): The Chairman shall
(i) First direct the complainant to present his case
- the substance of the evidence given shall be recorded & the docs tendered shall be marked
- if the complainant/his legal representative is absent, the hearing will proceed based on the
record of complaint; and
(ii) Then call upon the A&S to respond to the complaint.
• Rule 18(6): At any hearing both parties may cross-examine each other and their
witnesses.
• Rule 18(7): The Chairman/members of the Committee may ask any question/request the
attendance of any person as a witness/for the production of anything/documents as the
Committee may reasonably consider relevant to the inquiry to clarify any matter arising out
of the evidence.
• Rule 18(9): At the close of the proceedings, the Chairman may call upon the parties to
make their final submissions, with the A&S making the first submission.
• Rule 20: Where the DC is not unanimous on any question/matter to be determined, the
decision of the majority shall be deemed to be the decision of the DC.
iii. Findings & Recommendations of the DC
• S.103B(1A): The DC shall keep a note of the proceedings of the inquiry and submit
the findings and the notes of the proceedings to the DB.
• Rule 19: The DC shall compile a record of proceedings consisting of all evidence
including documentary evidence tendered & shall submit the record of the
proceedings together with its report under rule 21 to the DB.
• Rule 21(1): The report of the DC shall state the findings of fact, recommendations &
reasons for the findings of fact & recommendations.
• Rule 21(3): The report of the DC together with the record of the proceedings
shall be sent to the Director within the time stipulated in rule 15 (i.e. 4 months).
• S.103C(1): Upon conclusion of the inquiry, the DC shall determine and make any one of
the following recommendations to the DB:
(a) that no cause for disciplinary action exists - hence the application/complaint be
dismissed;
(b) that cause for disciplinary action exists but is not of sufficient gravity to warrant any
punishment other than a reprimand/censure /that the circumstances are such
that the A&S should only be reprimanded/censured; or
(c) that cause for disciplinary action exists and is of sufficient gravity to warrant the A&S to
be subject to one/more of the following penalties/punishments: (as provided under
s.94(2)):
(i) reprimand/censure;
(ii) imposition of a fine not exceeding RM50,000;
(iii) suspension of the A&S from practice /in the case of a foreign lawyer, recommendation
to the BC for suspension of registration, for such period not exceeding 5 years as the DC
deems appropriate in the circumstances; or
(iv) striking the A&S off the Roll or in the case of a foreign lawyer, recommendation to the
BC for revocation of the registration of the foreign lawyer.
• S.103C(2):The DC may in appropriate cases in addition to its recommendation of an
appropriate penalty/punishment - recommend that the DB make an order of restitution
by the A&S of the complainant’s monies if it is established that such monies were/are held
by the A&S in his professional capacity and the complainant is entitled to the return of
such monies or part thereof.
4. Disciplinary Board’s Decision
• S.103D(1): After consideration of the report of the DC, the DB may make an order
affirming/rejecting the finding/ recommendation of the DC
- if the DB rejects the finding/recommendation of the DC, the DB shall record the reason for
the rejection.
• S.103D(3): Where the DB does not agree with the finding/recommendation of the DC,
the DB shall make such other order as it deems just.
• S.103E(1): Any party aggrieved by any final order / decision made by the DB —
(a) pursuant to subsection 94(4);
(b) under paragraph 100(1)(a), (3)(a) or subsection 100(7), (8) or (15); or
(c) under s.103D
• S.103E(4): The appeal shall be by way of an originating motion setting out the ground
of appeal supported by affidavit.
• Rule 3(1): An appeal under s.103E(1) shall be brought by filing an originating motion
substantially in Form 9 of the Rules of the High Court 1980 (now Rules of Court 2012).
• Rule 4: Within 7 days from the date of filing of originating motion, the appellant shall pay
to the Director a non refundable sum of RM500 as the deposit for obtaining copy of the
following documents:
(a) application/complaint made under s.99 and all documents which support the
application/complaint;
(b) written explanation made under subparagraphs 100(1)(b)(ii) & 103B(4)(b)(i);
(c) record of proceeding before the DC under s.103B;
(d) report that contains findings & recommendations of the DC under s.103C; and
(e) order made by the DB under s.103D.
• Rule 5(1): Within 6 weeks of the receipt of the documents, the appellant shall file an
affidavit which contains the appeal record in the High Court.
• S.103E(5): Any appeal against the decision of the HC shall lie to the COA and thereafter
to the Federal Court.
• Rule 11: Any appeal under s.103E(5) shall be made in accordance with the Court of
Judicature Act 1964 [Act 91], the Rules of the Court of Appeal 1994 [P.U. (A) 524/1994]
and the Rules of the Federal Court 1995 [P.U. (A) 376/1995]
• S.103E(7):The DB shall not be cited as a party in any appeal under this section.