ETHICS OF THE LEGAL PROFESSION

LAW 598

INTRODUCTION
TO LAW 598
Compiled & Prepared by;
DATIN PADUKA SAUDAH SULAIMAN
ASSOCIATE PROFESSOR
FACULTY OF LAW
UiTM

1
 INTRODUCTION

“The greatest happiness of the greatest number

is the foundation of morals and legislation”

- Jeremy Bentham

2
 ETHICS?
- The word ‘ethics’ come from the Greek & Latin
word – ethos & mores
- Both mean “character”
- A system of rules of “behaviour”
- Science of morals/moral philosophy
- Ethics is somewhere between law & morality
- Persons who display greater honesty &
integrity exhibit a higher standard of ethics
than those who display lesser honesty &
integrity
3
 ETHICS?
- Common aim of ethics is to “evaluate” what we do
- People label actions when making ethical judgements
• The most common are:
• Right, wrong, good & Bad or
• Moral, immoral, ethical & unethical
• Just, fair & unfair
• Righteous, sinful, good & evil
• Sacred & profane
• Positive & negative

4
 What is Legal Ethics?
- the set of rules that regulate the conduct of
members of the legal profession
- the standard of minimally acceptable conduct
within the legal profession, involving duties that
its members owe one another, their client & the
court
- maintains the honour & dignity of legal
profession in promotion of justice

5
 What is Legal Ethics?

• Rules of or conduct binding on members of

the legal profession whether as a matter of
contract or of statutory prescription

• A rule of morality & having statutory force

• Standard of conduct which an Advocate &

Solicitor has which are not in common with
non-Advocate & Solicitor
6
 Legal Ethics

• Legal implies mandatory rules

• Ethics implies discretionary rules

• To distinguish rules that are professionally

binding on a lawyer (ethical rules) from rules
that are legally binding (legal rules)

7
 Definition of Legal Profession
• Australian Royal Commission on Legal Services
(1992):
- A body of men & women:
a. Identifiable by reference with some register or
record;
b. Recognised as having a special skill & learning in
some field of activity in which the public needs
protection against incompetence, the standards
of skill & learning being prescribed by the
profession itself
8
 What is a Professional?
• Someone who works in a profession.
• UK’s Royal Commission on legal Services 1977 defines a
‘profession’ as an occupation that:

o requires central organization;

o is self-regulated;
o has required minimum standard of training;
o places significant importance on duty to client; and
o involves the giving of specialist advice.

Other professions – accountants, architects, dentists, doctors,

engineers, pharmacists, and teachers. The list is open ended.

9
 What is Legal Professional?
In widest sense this includes:

• Judges at all levels and Magistrates;

• Advocates and solicitors – who are qualified to
lawyers entitled to practise law by offering their
advice professionally;
• Pupils or chambering students, none of whom
have yet qualified to offer their services;
• Academic lawyers, who write about or teach law.

10
 Other Legal Services Providers
• Legal executives;
• Patent attorneys;
• Trade mark attorneys.

11
 Legal Services – ‘Reserved Activities’
• Advocacy in courts;
• Administration of oaths;
• The conduct of litigation;
• Handling probate matters;
• Notarial activities; and
• Reserved instrument activities – e.g. power of
attorney

12
 Non-Reserved Activities
These mostly cover non-contentious (i.e. not involving litigation or advocacy) matters.
• Commercial law, including international trade;
• Corporate finance (banking, debt finance, capital market);
• Corporate regulatory compliance (company procedure, director’s duties,
shareholders’ rights, merger and acquisitions);
• Employment law (workplace safety, redundancy, unfair and wrongful dismissal);
• Environmental and planning law;
• Family law (non-contentious aspects of divorce, abuse, rights of children);
• Financial services law (advising specific financial products);
• Immigration law (asylum and deportation);
• Insurance law (claims handling, reinsurance, the Lloyd’s market);
• Media and intellectual property law (licensing and media finance);
• Professional negligence;
• Tax compliance by individuals and businesses;
• Legal aspects of new media and internet.

13
 Importance of Legal Services
Healthy legal profession providing accessible
legal services is vital to the Rule of Law and the
wider economy.

Idea of ‘justice’ is central in modern society –

enforcement of rights; establishing rights,
obligations, and relationships within the legal
framework adopted by society.

14
Legal Profession in England and Wales
• The legal profession in England and Wales is
divided into 2 branches: solicitors and barristers

• Each is governed by its own professional body

• Solicitors are represented by the Law Society and

Barristers by the Bar Council

See: The Split Profession www.thefoxfund.com/reports/court.pdf

15
The role of solicitors:

Lawyers in the UK generally practise as

solicitors in private firms, as legal
advisors in corporations or government
departments
They can do advocacy, draft legal
documents and give written advice
Specialisation (contracts, wills,
conveyancing etc.)
Direct access by clients
16
Client Representation

• Solicitors are responsible for all the

preparatory pre-court work, while
barristers represent the client in the
court

• Solicitors traditionally have the right of

audience only in inferior courts
17
The Role of Barristers

 The right of audience in every court in England and Wales

 They are the court advocates and consultant specialists of

the legal profession

 Court work – providing representation

 Specialist legal advise – giving opinions

 Sole traders with unlimited liability

 Self-employed practice – chambers

 Most barristers work in chambers, but it is no longer

compulsory for them to do so
 They are now permitted to practise alone, working from an
office or home
18
 Legal profession in Malaysia
• Legal profession in Malaysia is of English origin.

• It dates back to the grant of the First Charter of

Justice of 1807 which set up the Court of Judicature
in Penang.

• Whereas English legal profession is a ‘split’

profession - historically it is divided into 2 separate
branches - Barristers, who specialize in litigation,
and Solicitors, who traditionally did not appear in
court, but undertaking works away from courts, such
as taking brief from clients.
19
 Legal profession in Malaysia
• Malaysian legal profession is a ‘fused’ profession,
ie a legal practitioner in Malaysia is both an
‘Advocate and Solicitor of the High Court'.

• Malaysian legal practitioners do both the work

done by English barristers and solicitors.

• In addition, Malaysia also has Peguam Syarie -

those who practice specifically in the Shariah
courts
20
 Towards Specialization of Profession
• But even then, there is the tendency towards
specialization among Malaysian lawyers.

• This is especially in big law firms where members

tend to specialize: some in litigation, others in
solicitor's work (primarily conveyancing and
corporate law - the more lucrative practice).

• The legal profession in Malaysia has a

membership of approximately 13,000 and its
membership is increasing by 10-15% annually. 21
 THE END

Compiled by
DATIN PADUKA SAUDAH SULAIMAN
ASSOCIATE PROFESSOR
FACULTY OF LAW
UiTM

22
ETHICS OF THE LEGAL PROFESSION
LAW 598

INTRODUCTION TO
THE MALAYSIAN LEGAL
PROFESSION

Compiled by
DATIN PADUKA SAUDAH SULAIMAN
ASSOCIATE PROFESSOR
FACULTY OF LAW
UiTM

23
 History of Legal Profession in Peninsula
Malaysia

• It has been said that the history of the modern

Malaysian judiciary began with the acquisition of
Penang Island in 1786 by Captain Francis Light.

• As the island flourished into a strategic trading

post with its growing population, Captain Light
was compelled to seek the counsel of the
Governor-General in India on the legal aspects of
governing the people of this settlement. 24
 History of Legal Profession in
Peninsula Malaysia

• By 1807, a Royal Charter was granted to

Penang which provided for the setting up of a
Supreme Court. This was followed by the
appointment of the first Supreme Court judge
designated as the “Recorder”. The Supreme
Court of Penang was first housed at Fort
Cornwallis and was opened on 31st May,
1808.

25
 History of Legal Profession in Peninsula Malaysia

• The first Superior Court Judge in Malaya

originated from Penang when Sir Edmond
Stanley assumed office as the First Recorder
of the Supreme Court in Penang in 1808.
• Interestingly, Sir Stamford Raffles, the founder
of Singapore, was the first Registrar of the
Supreme Court of Penang.
• Later, and with changes made to the judiciary
of the Straits Settlements, the designation
“Judge” was substituted for “Recorder”.
26
 History of Legal Profession in
Peninsula Malaysia

• Hence, the Malaysian legal profession actually

originated from Penang at the turn of the 19th
Century.

• This was acknowledged in the Bar Council

Pictorial Biography entitled, “Justice Through
Law” which was published in conjunction with
the Bar Council’s 50th Anniversary.
27
The legal establishment in Penang
was later progressively extended
to the Federated Malay States in
1937 and much later to the
Unfederated Malay States in 1951.

28
 History of the Malaysian Bar

• A semblance of the present day Bar Council was

established vide Advocates & Solicitors Enactment
1914 (FMS No. 22/1914) covering the legal
practitioners in the Federated Malay States.

• This was replaced by the Advocates & Solicitors

Ordinance 1940.

• The UnFederated Malay States like Johore had their

own Enactments like the Advocates & Solicitors
Enactment of Johore.
29
 History of the Malaysian Bar
• The Solicitors in the Straits Settlements of
Malacca and Penang together with Singapore
were covered by the Advocates & Solicitors
Ordinance of the Straits Settlements.

• After the Japanese Occupation, the Advocates

& Solicitors Ordinance 1947 replaced all the
statutes covering the UnFederated and
Federated Malay States and the Straits
Settlements of Malacca and Penang.
30
The 1947 Ordinance can be referred to as the starting
point that established the 1st Bar Council covering
Malaya.
It was the 1st time a self-elected and self-regulated Bar
Council was established. But its role was somewhat
limited to:
o representing the Bar in matters affecting the legal
profession as a whole
o make rules regarding practice and etiquette of the
profession
o examine and report on current legislation
o deal with admission and entry requirements into the
profession
o oversee standards and discipline among members of
the Bar 31
But the Legal Profession Act 1976 which replaced the 1947
Ordinance provided for a truly independent Bar.

The Bar Council represents the Malaysian Bar at:

• the Qualifying Board which decides on the qualification for entry
into the profession.
• the Disciplinary Board - all Advocates & Solicitors are subject to
the control of this Board in all matters relating to discipline.
• the Solicitors Costs Committee which makes general orders
regulating the remuneration of Advocates & Solicitors in respect
of non-contentious business.
• the Rules Committee which is empowered to make rules
regulating the procedures in court.

Singapore lawyers could freely practice in West Malaysia until its

doors were closed on 31 December 1970.
32
 ‘Bar’ – Origin of the Word
The origin of the term bar is from the barring furniture dividing a
medieval European courtroom.

In USA and in Europe and many other countries referring to the

law traditions of Europe, the area in front of the barrage is
restricted to participants in the trial: the judge or judges, other
court officials, the jury (if any), the lawyers for each party, the
parties to the case, and witnesses giving testimony.

The area behind the bar is open to the public. This restriction is
enforced in nearly all courts. In most courts, the bar is
represented by a physical partition: a railing or barrier that serves
as a bar.

Today, The Bar commonly refers to the legal profession as a

whole.
33
34
 Advocate and Solicitors - Governing Bodies
There are 3 separate bodies of legal practitioners in
Malaysia:

• Malaysian Bar,

• Sabah Bar (known as Sabah Law Association), &

• Sarawak Bar (known as the Advocates Association

of Sarawak).

They are relics of Malaysian history. 35

 Governing Laws/Rules
• The Malaysian Bar is subject to the Legal Profession
Act 1976 & the rules made thereunder [e.g. Legal
Profession (Practice and Etiquette ) Rules 1978]
*The Act applies throughout Peninsular Malaysia
only.

• The Sabah Law Association is governed by the

Advocates and Solicitors Enact of Sabah 1966 &

• The Advocates Association of Sarawak by the

Advocates and Solicitors Ordinance of Sarawak 1966

36
 SCOPE OF LPA
LPA regulates every aspect of the legal
profession, e.g.
- Practice and etiquette rules of
profession.

- Disciplinary proceedings

- Legal fees for contentious and non-

contentious matters

- Maintaining clients’ account; 37

 Implications of Separations
• Members of the Malaysian Bar who are Ads &
Sols of the H.Court in Malaya are entitled to
practice ONLY in Peninsular Malaysia, but
NOT in Sabah and Sarawak.

• Likewise, Ads and Sols of the High Court in

Sabah and Sarawak are NOT entitled to
practise in Peninsular Malaysia.

• Further, no member of the Bar in Sabah is

entitled to practise in Sarawak, and vice versa.
38
 The Malaysian Bar
• Malaysian Bar - a corporate body established under
s41 LPA 1976.

• S43 LPA - Every A & S of the High Court in Malaya is

automatically a member of the Malaysian Bar and
remains a member so long as he or she has a valid
practising certificate(PC)

• S46 LPA – each member has to pay

o an annual subscription, and
o contributions to the Compensation, Discipline and
Legal Aid Funds, as determined from time to time
by the Bar Council.
39
 Objectives of Malaysian Bar
S42 LPA 1976
Most prominent objectives:
• to uphold the cause of justice;
• to maintain and improve the standards of the LP;
• facilitate acquisition of knowledge;
• to express its view on matters affecting legislation
and the administration and practice of the law;
• to protect and promote the interests of the legal
profession;
• to protect and assist the public in legal matters;
40
 Powers of Malaysian Bar
S42 LPA 1976
• to establish libraries;
• To provide legal aid services;
• to award prizes and scholarship;
• to grant pecuniary or other assistance in the interest of
the legal profession or of the law students;
• to afford pecuniary and other assistance to families of
deceased members of the Bar;
• to promote good relations and social intercourse
amongst members and the Bench;
• to maintain good relations with professional bodies of
the legal profession in other countries; and
• to establish a Compensation Fund.
41
Additional Powers:
Section 42(2) LPA:
• purchase or lease any land or building required for any of the purpose
of the Malaysian Bar;
• sell, surrender, grant, lease, exchange or alter any land or building as
may be found most convenient or advantageous;
• borrow money whether by way of bank overdraft or otherwise for
such of the purposes of the Malaysian Bar as the Malaysian Bar may
from time to time consider desirable;
• make rules governing the manner of convening general meetings of
the Malaysian Bar and the procedure thereat which rules shall be
approved and may be amended by ordinary resolution at a general
meting of the Malaysian Bar; and
• do all such other things as are incidental or conducive to the
achievement or betterment of the purposes of the Malaysian Bar.
Section 42 (2) LPA:
In addition to any other rules that it may make under the Act, the
Malaysian Bar may make rules for giving effect to its powers. 42
 Important Governing Organs
The Malaysian Bar - a self-governing and self-regulatory
body – managed by the Bar Council

• The LPA 1976 establishes 3 main organs namely, the:

• Bar Council (BC)

• Legal Profession Qualifying Board (LPQB) &
• Disciplinary Board (DB)

To govern:
• the administration of – the legal profession,
• the admission into – the legal profession, &
• the conduct of members of - the legal profession
43
 *Sabah Law Association (SLA)*
Commonly known as the Persatuan Undang-Undang Sabah in Malay.

Sabah Law Association (SLA) is a body of legal practitioners in Sabah,

Malaysia.
The main objectives of the Sabah Law Association (SLA) are:
* To uphold the cause of justice without regard to its own interests or
that of its members, uninfluenced by fear or favor
* To maintain and improve the standards of professional practice
etiquette conduct discipline and learning of the legal profession in
Sabah.
* To facilitate the acquisition and dissemination of legal knowledge by
members of the legal profession in Sabah.
* To assist the Government and the Courts in all matters affecting
legislation and the administration and practice of the law in Sabah.
* To represent protect and assist members of the legal profession in
Sabah and to promote in any proper manner the interest of the legal
profession in Sabah.

44
 *Advocates Association of Sarawak (AAS)*
Advocates Association of Sarawak (AAS) is a
body to represent the Advocates on the Roll of
the Sarawak Bar.

Membership of the Advocates Association of

Sarawak (AAS) is open to all Advocates who have
been called to the Bar of the High Court of
Borneo, which was renamed to the High Court in
Sabah and Sarawak in 1995.

45
 Bar Council (Majlis Peguam) – s47 LPA
• The Malaysian Bar is managed by the
Bar Council.

• This is its executive body that manages

the affairs of the MB

• It was established under s 47 LPA 1976.

46
 Bar Council (Majlis Peguam)
Some important functions of the Bar Council are to:
o make rules to regulate the practice and
conduct of legal practitioners;
o manage the Malaysian Bar and its funds;
o deal with complaints of misconduct against
legal practitioners;
o institute, conduct or defend any legal
proceedings by and against the Malaysian
Bar; and
o settle any debts due or any claims made by
or against the Malaysian Bar. 47
48
 Composition of the Bar Council
Section 47(2) LPA:
The Bar Council comprises the following members (36) who are
elected annually to manage the affairs and execute the functions
of the Malaysian Bar.

• the immediate past President and Vice-President of the

Malaysian Bar;
• the chairman of each of the Eleven (11) State Bar Committee;
• one (1) member elected by each of the eleven (11) State Bars
to be its representative to the Bar Council and
• twelve (12) members elected from throughout Peninsular
Malaysia by way of postal ballot (pursuant to section 50).

49
 Office Bearers
Section 54 (1) LPA:
The Office Bearers, namely President, Vice-President,
Secretary and Treasurer are elected annually by the Bar
Council at its first meeting which is traditionally held
immediately after the Annual General Meeting (AGM) of
the Malaysian Bar.

They are full time practitioners and their honorary

appointments are subject to re-election every year. In any
event save for the post of the Treasurer which is not
provided for in the Act, the Office Bearers cannot hold
office for more than two (2) consecutive years.

50
 Officers
Section 54 (1) LPA:

The President is also the

Chairperson of the Bar Council and
presides at all meetings of the Bar
Council and the Malaysian Bar.

51
 Committees
Section 58 LPA:
Various committees are appointed to assist the
Bar Council to discharge its statutory functions.

Membership of these committees is not

confined to members of the Bar Council. But
normally, these committees are made up of
Bar Council members .

52
 Powers of Bar Council
S56 LPA: gives bar Council to manage Malaysian Bar and its funds.
S57 lays down specific powers of Bar Council.
• to make rules to provide for all maters not expressly reserved to the MB in general
meeting whether the same be expressed amongst its powers or not;
• to answer questions affecting the practice and etiquette of the profession and the
conduct of members;
• to take cognizance of anything affecting the MB or the professional conduct of its
members and to bring before any general meting of the MB any mater which it
considers material to the MB or to the interests of the profession and to make any
recommendations and take any action as it considers fit in relation thereto;
• to examine and if it considers fit to report upon current or proposed legislation and
any other legal maters;
• to represent members of the MB or any section thereof or any particular member
in any mater which may be necessary or expedient;
• with the prior approval of the MB in gen meeting, to award prizes and scholarships
for students of law and to lay down the conditions for their award;
• to appoint officers, clerks, agents and servants for permanent, temporary or special
services as it may from time to time consider fair and reasonable and to determine
53
their duties and terms of service;
• to purchase, rent or otherwise acquire and furnish suitable premises for the use
of the Malaysian Bar;58 Laws of Malaysia ACT 16 (i) to communicate from time
to time with other similar bodies and with members of the profession in other
places for the purpose of obtaining and communicating information on al
maters likely to be beneficial or of interest o members;
• to institute, conduct, defend, compound or abandon any legal proceedings by
and against the Malaysian Bar or its officers or otherwise concerning the affairs
of the Malaysian Bar and to compound and allow time for payment or
satisfaction of any debts due or of any claims or demands made by or against he
Malaysian Bar;
• to invest and deal with any moneys of the Malaysian Bar from time to time in
securities authorized for the investment of trust funds by any written law;
• from time to time to borrow or raise money by bank overdraft or otherwise by
the issue of debentures or any other securities founded or based upon al or any
of the property and rights of the Malaysian Bar or without any such security
and upon such terms as to priority or otherwise as the Bar Council shall
consider fit; and
• to exercise al such powers, privileges and discretions as are not by this Act
expressly and exclusively required to be exercised by the members of the
Malaysian Bar in general meeting.
54
Viewpoint:
The Malaysian Bar plays a vital role in the regulation of
the legal profession. It determines, inculcates, and
maintains the proper standards of practice, etiquette,
conduct, and discipline of advocates and solicitors.

Apart from making rules regulating these matters, the

Malaysian Bar through the Bar Council makes rules
concerning related issues such as professional indemnity
covering every legal practitioner against any class of
professional liability.

The Malaysian Bar also establishes and administers the

Compensation Fund and the Discipline Fund.
Wan Arfah Hamzah55
 State Bar Committee (SBC)

S68(2) LPA:
• A SBC is established in each State.
• A member practising in a particular State shall
also be a member of the SBC.

56
 State Bar Committee (SBC)
S73 LPA: lays down powers of SBC.
• to levy subscriptions from its members;
• to promote and safeguard the interests of advocates and
solicitors who are members of the State Bar;
• to make appropriate representations to the Malaysian Bar
upon maters concerning the State Bar;
• to entertain and deal with such maters as may from time to
time be referred to it;
• to provide amenities for and generally to promote the
welfare of members of the State Bar;
• to inquire into and proceed with any complaint of the
conduct of an advocate and solicitor in his professional
capacity or of any pupil or articled clerk ;
• to co-opt as members of the Committee not more than two
members of the State Bar.
57
 Legal Profession Qualifying Board (LPQB)

The LPQB is established under s4 LPA

Membership of the LPQB: s7 LPA

QB comprises of;
• the Attorney General who is the Chairperson;
• 2 judges nominated by the Chief Justice;
• the Chairman of the Bar Council; and
• a full-time member of the academic staff
(lecturer) of a Faculty of Law nominated by the
Minister of Higher Education.
58
 Functions of Qualifying Board – s5 LPA

Main functions of the QB are to :

• prescribe the proper standards of education
and training of persons to qualify them for
admission into the legal profession;
• provide courses of instruction and conduct
examination which must be undertaken by
aspirants to become qualified persons for the
purpose of the LPA 1976;
• manage and conduct Bahasa Malaysia
Qualifying Examination.
59
 Functions of Qualifying Board – s5 LPA
• Basically the role of the LPQB is to;
a. accredit the institutions conducting law
courses &
b. prescribe the qualifications required for the
entry of any person who aspires to be
admitted as an A & S
This is to ensure that such person has been
properly instructed by a recognized & accredited
institution before being accepted into the
profession. 60
 DISCIPLINARY BOARD (DB)
The DB is also a statutory body prescribed by the LPA –
Part VII (s93 – s111 LPA)

The DB is a ‘watchdog” for the profession

Ensuring that the members of the MB are subject to the

control of the DB in respect of all matters relating to
discipline & conduct

S93-s111 prescribe the membership of the DB & the power

that the DB has in managing matters of misconduct –
which is defined in s94 LPA

61
 CONCLUSION
• The respective roles of the 3
organs/bodies (BC, LPQB & DB) each
ensures that it links up with each
other in ensuring the
professionalism, dignity & decorum
of those entering the legal profession

62
 The End
Thank you
COMPILED BY;
DATIN PADUKA SAUDAH SULAIMAN
ASSOCIATE PROFESSOR
FACULTY OF LAW UiTM

REFERENCE;
MOHD DARBY HASHIM
HEAD OF DEPARTMENT (POSTGRADUATE CENTRE)
KULLIYAH OF LAW, UIA
63