Faculty of Law

(FOL)

PIL 0012
Introduction to Law

Foundation in Law

ONLINE NOTES

Chapter 5

LEGAL PROFESSION AND LEGAL SERVICE

MULTIMEDIA UNIVERSITY (436821-T)

MELAKA CAMPUS, JALAN AYER KEROH LAMA, 75450 MELAKA, MALAYSIA.
Tel 606 252 3594 Fax 606 231 8799
URL: http://fosee.mmu.edu.my/~asd/
PIL0012 Introduction to Law Chapter 5

1-LEGAL PROFESSION

• Legal profession refers to practice of law by lawyers.

• Legal service is carried out by legal officers of the government and the judges in
the judicial organization of the government.

• Legal service becomes a profession if the work is carried out by the registered
private practitioners of law.

• While the scope for earning in the private practice, social status and prestige is
very much attached with legal service.

• Legal profession and legal service are the legacies of the British.

• Though the legal profession is patterned after the British version, there is a
difference.

• In Britain the legal profession is performed by 2 kinds of functionaries namely the

Solicitors and Barristers (Advocates).

• In Britain, a Solicitor is a legal practitioner, authorized to advise clients and

prepare causes for barristers but not to appear as advocates in the Higher Courts.

• A barrister is one who pleads a cause in a civil or criminal court and has a right of
audience in nearly all judicial proceedings and this right is exclusive in the House
of Lords, the Privy Council, the Court of Appeal and the High Court.

• This division is in vogue since as early as 1340 in England.

• In Malaysia, the legal profession is a fused profession, that is to say, there is no

division of solicitors and barristers as in England.

• A Malaysian lawyer takes on both the functions and this is why he is called an
Advocate and Solicitor.

• As such he has the right of audience in Court.

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2-ADMISSION TO THE BAR

• The Legal Profession Act 1976 (Act 166), which came into force in West
Malaysia on 1st June 1977, is an Act which consolidates the law relating to the
legal profession.

• Under S.41 of the Act, a body corporate known as the Malaysian Bar (the Bar)
was established as a governing body of every advocate and solicitor in West
Malaysia.

• By virtue of S.35(1) of the Act, every advocate and solicitor who is a member of
the Bar shall have exclusive right to appear and plead in all court of justice in
West Malaysia.

• For admission to the Bar, the Act provides that one must be a “qualified person”,
who is defined under S.3 as follows:

(a) Has passed the final examination leading to the degree of Bachelor of Laws of
the University of Malaya, the University of Malaya in Singapore, the University
of Singapore or the National University of Singapore

(b) is a Barrister-at-Law of England; or

(c) in possession of such other qualifications as may by notification in the Gazette

be declared by the Qualifying Board to be sufficient to make a person a qualified
person for the purpose of this Act

• The Qualifying Board, pursuant to clause (c) above has declared the following to
be a ‘qualified person’:

(1) a Solicitor of the Supreme Court of Judicature of England;

(2) a Barrister-at-Law of the Honourable Society of Kings Inn, Dublin,Eire

(3) the holder of Certificate in Legal Practice issued by the Qualifying Board;

(4) the Holder of the Bachelor of Laws degrees of specified Australian and New
Zealand Universities, provided a graduate is qualified for admission in those
countries;

(5) the Holder of an advanced Diploma in Law from Universiti Teknologi

MARA;

(6) the Holder of the Bachelor of Laws degree from International Islamic
University Malaysia;

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(7) the Holder of Bachelor of Laws (Honours) degree from Universiti Kebangsaan
Malaysia; and

(8) the Holder of Bachelor of Laws (Honours) degree from Universiti Teknologi
MARA.

• A qualified person must:

i-have attained 18 years of age

ii-be of good character
iii-Malaysian citizen or a permanent resident & has satisfactorily served in the
country the prescribed 9 months of pupillage
iv-Pupillage must be with an advocate and solicitor who has been in active local
practice for not less than 7 years.

• Term ‘read in chambers’

= commonly used as a reference to the period of pupillage.

• In limited cases, the period may be shortened or exempted to a qualified person

who has worked in the Judicial and Legal Service for a minimum period of 3
years provided such application is supported by the Attorney General.

• Full exemption is granted only if the service has been for 7 years or more.

• Since 1984, a prospective lawyer is also required to pass a Bahasa Malaysia

qualifying examination, which is in effect a simple language test.

• Exemptions from the language test may be granted if the person can demonstrate
formal qualifications or competence in the language.

3-QUALIFYING BOARD

• A Qualifying Board is established under S.4 of the Legal Profession Act 1976.

• The Attorney General is the chairman of the Board.

• The Board will decide the qualification requirements other than those set out in
S.3 of the Act.

• Admission to the Bar in Sabah and Sarawak is determined by their respective

Advocates Ordinances.

• A prospective to the Bar in Sabah and Sarawak is required to have local

connections with the respective States such as birth or residence.

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• The Bar is separate and admission to practise in the peninsula does not entitle the
practitioner to practise in these two states except on an ad hoc basis for specific
cases.

4 – PRACTISING CERTIFICATE

• The Registrar of the High Court, on being satisfied that all the necessary
documents submitted by an advocate and solicitor are in order and that the firm’s
name under which he is practising is in the register shall issue an ‘annual
practising certificate’ to practise as an advocate and solicitor.

5 – MALAYSIAN BAR AND BAR COUNCIL

• The Malaysian Bar is a body corporate with perpetual succession with a common
seal and with power subject to the Legal Profession Act 1976 to sue and to be
sued in its corporate name and to acquire and dispose of property both movable
and immovable and to do and to perform such other acts as bodies corporate by
law may perform.

• Likewise, there is a Bar Council established for the purpose of proper

management of the affairs of the Malaysian Bar as well as for the purpose of the
proper performance of its functions under the Legal Profession Act 1976.

• The Bar Council consists of members of the legal profession, elected annually and
it takes responsibility for the regulation of professional ethics, giving comments
on proposed legislation and providing general representation to its members.

6 – LEGAL AID

• There are many poor and uneducated people in Malaysia, who are totally ignorant
of law and even unable to enforce their rights available to them under the various
laws of Malaysia.

• It is for these poor, innocent and ignorant people that the Government of Malaysia
has established the Legal Aid Bureau under the Legal Aid Act 1971.

• The Act provides for legal aid and assistance to people who cannot afford the cost
for legal advice and consultation.

• The Legal Aid Bureau provides legal advice and assistance on criminal and civil
matters but limited in subject matters.

• As the legal aid scheme is meant only for the poor and needy, every person
seeking legal aid under the scheme is required to undergo a mandatory ‘Means
Test’.

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• To qualify for the assistance under the Scheme, applicants will be asked their
income and expenditure in order to ascertain their disposable income.

• Another criteria considered is their assets.

• Applicants who own assets of above a certain level may not qualify for legal aid.

• Besides the means test, certain applications may also be considered under the
‘Merit Test’.

• The main difference between the Legal Aid Centre provided by the Bar Council
and the Government Legal Aid Bureau or ‘Biro Bantuan Guaman’ (BBG) is that
the BBG is government-funded and their lawyers consist of salaried government
officers and a panel of lawyers who may be assigned cases.

• When litigants are assigned counsel from the Government panel of lawyers, these
lawyers are paid certain assigned fees.

• This is contrast to lawyers providing Legal Aid services to the clients of the Bar
Council Legal Aid Centre-these lawyers provide their services for free.

7 – LEGAL EDUCATION

• Those were the days when Malaysians aspiring to become lawyers had to travel,
far and along, to England, Australia and New Zealand to pursue their legal
education.

• Now Malaysia is proud to produce its own advocates and solicitors.

• In 1956 the first Department of Law was established under the University of
Malaya then situated in Singapore.

• Subsequently the current Faculty of Law was set up in the University of Malaya
in 1972.

• The law course conducted by this University is a 4 year undergraduate course,

called the Bachelor of Law Degree.

• A person intending to pursue a law degree locally should pass the basic tertiary
education.

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STPM/A LEVEL/MATRICULATION/DIPLOMA

Local University Foreign University

4 years fist degree 3 years first degree

Chambering-9 months Certificate in Legal

Practice (1 year)

Call to the Roll of Advocates Chambering(9 mths)

& Solicitors

Call to the Roll of

Advocates & Solicitors

• Upon completion of 4 years degree / CLP, the ‘qualified person’ may then read in
chambers for a period of 9 months as a ‘pupil’ before he is admitted as an
advocate & solicitor.

• A qualified person must have attained 18 years of age and be of good character.

• He must be a Malaysian citizen or a permanent resident and has satisfactorily

served in the country the prescribed 9 months of pupillage.

• The pupillage must be with an advocate and solicitor who has been in active local
practice for not less than 7 years.

• The term ‘read in chambers’ is commonly used as a reference to the period of

pupillage.

• In limited cases, the period may be shortened or exempted to a qualified person

who has worked in the Judicial and Legal Service for a minimum period of 3
years provided such application is supported by the Attorney General.

• Full exemption is granted only if the service has been for 7 years or more.

• Since 1984, a prospective lawyer is also required to pass a Bahasa Malaysia

qualifying examination, which is in effect a simple language test.

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• Exemptions from the language test may be granted if the person can demonstrate
formal qualifications or competence in the language.

8 – LEGAL PROFESSION IN UNITED KINGDOM

Membership of the profession:

-Judge, barristers and solicitors constitute the 3 branches of the profession.

-Judges are usually selected from among the higher ranks of barristers and cannot
practise as barristers after their appointment to the judicial bench.

Barristers

• In the Middle Ages several Inns of Court were established for the training of
barristers i.e lawyers who conduct and argue cases in court.

• In 1852 a Council of Legal Education was set up to regulate standards of

professional education, and this body is today responsible for conducting
barristers’ qualifying examinations.

• Students begin their training by registering in one of the 4 remaining Inns of

Court i.e Gray’s Inn, Lincoln’s Inn, Middle Temple, Inner Temple and thereafter
by passing their Bar final exam and then being “called to the Bar” of their own
Inn of Court, by the senior members (or ‘Benchers’) of the Inn.

Job scope:

i-Barristers have exclusive right of audience in the superior court, and share with
solicitors a concurrent right of audience in all other courts.

ii-Advocating cases in court.

iii- Barristers cannot sue for fees owing to them, and are not liable to actions for
negligence by their clients (unlike solicitors)

iv-A barrister can only be briefed through the agency of solicitor or in some cases,
an accountant.

-Generally the solicitor is entitled to be present at any interview between the

barrister and the client.

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Solicitors

• The ancient professions of attorneys, proctors and solicitors were unified and
regulated by a succession of Solicitor’s Acts 1839-1957.

• These Acts established solicitors as officers of the Supreme Court and set up a
Law Society which supervises their training and discipline.

Job scope:

i- They are officers of the court

ii-They have no right of audience in superior courts, but can act as advocates (like
barristers) in the inferior courts i.e County and Magistrates Courts and also in
Crown Courts in some matters.

iii- They can sue for their fees and are liable for actions for professional
negligence by their clients.

iv- Solicitors are primarily concerned with office work, e.g drafting documents
and advising generally.

But in practice, many solicitors specialise in advocating cases in the inferior

courts and some barristers specialise in paper work, drafting documents etc.

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