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DISCIPLINARY PROCESS
Presented by
Mr. Chang Hong Yun, Partner
DISCIPLINARY PROCEEDING

WHAT IS
DISCPLINARY HOW IS THIS
PROCEEDING BEING
? CONDUCTED?

WHY DO WE
NEED
DISCPLINARY
PROCEEDING
?
APPLICABLE LAWS
• Legal Profession Act 1976 (s 92A-s 111);

• Legal Profession (Disciplinary Board)


(Procedure) Rules 1994;

• Legal Profession (Disciplinary


Proceedings) Rules 2017
CONSTITUTION

DISCIPLINARY BOARD

COMPLAINT DISCIPLINARY
SECRETARIAT COMMITTEE PANEL

APPOINTMENT OF
DIRECTORS
DISCIPLINARY
(SECRETARY) COMMITTEE
COMPLAINT

• Disciplinary proceeding may be initiated in three


ways :

Private Judge or Bar Council or


Complaint Attorney General State Bar
(by Complainant Committee
or his solicitor)
MISCONDUCT

Definition of misconduct:

Section 94 (3)-
the term “misconduct” is defined as “any
conduct or omission to act in Malaysia or
elsewhere by an advocate and solicitor in a
professional capacity or otherwise which
amounts to grave impropriety and includes...
MISCONDUCT
(a) conviction of a criminal offence which makes him unfit to
be a member of his profession;
(b) breach of duty to a court including any failure by him to
comply with an undertaking given to a court;
(c) dishonest or fraudulent conduct in the discharge of his
duties;
(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;
MISCONDUCT
(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;
(h) accepting employment in any legal business through a tout;
(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;
MISCONDUCT
(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;

(n) gross disregard of his client's interests; and


(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.
STANDARD OF PROOF

• Standard of proof required in such proceedings:


beyond reasonable doubt
– Au Kong Weng v Bar Committee, Pahang [1980] 2 MLJ 89
“It is a question for the committee to decide, first, whether the facts alleged in
the charge had been proved beyond reasonable doubt and secondly whether the
appellant in relation to those facts, was guilty of such conduct.”

– Bhandari v Advocates Committee [1956] 3 All ER 742 (Privy


Council)
“In every allegation of professional misconduct involving an element of deceit
or moral turpitude, it is the duty of the professional domestic tribunal
investigating the allegations to apply a high standard of proof and not to
condemn on a mere balance of probabilities.”
LIMITATION PERIOD
No complaint concerning the conduct of any advocate and solicitor or
of any pupil shall be inquired into by the Disciplinary Board after the
expiration of 6 years from the date when the right of action to bring the
complaint accrued:
Provided that where—
• the complaint is based upon the fraud of the advocate and solicitor
or his agent or of any person through whom he or his agent claims; or

• the right of action to bring the complaint is concealed by the fraud of


the advocate and solicitor or of his agent or any person through
whom he or his agent claims,

The period of limitation shall not begin to run until the


complainant has discovered the fraud, or could with
reasonable diligence have discovered it
PUNISHMENT

Struck off from Suspended from practice Pay a fine not


the Roll from any period not exceeding
exceeding 5 years RM50,000

Reprimanded or Order of restitution


censured (if it is established that the Complainant’s monies were or are
held by the lawyer in his professional capacity and the
Complainant is entitled to the return such monies or part
thereof)
STATISTICS

2017:
21 lawyers being struck off
8 lawyers being suspended

2016:
23 lawyers being struck off
3 lawyers being suspended

2015:
40 lawyers being struck off
3 lawyers being suspended
STATISTICS
• As at 31 December 2017, the Bar Council Secretariat’s
Complaints and Intervention Department (“CID”) had received
866 complaints concerning the conduct of Members and
practice-related issues.

• 128 out of the 866 complaints had been referred to the Bar
Council by the Advocates and Solicitors Disciplinary Board
(“ASDB”). The Bar Council considered each complaint and, in 18
cases, decided to intervene and proceed as if the complaint
had been made of its own motion.

• CID lodged 24 complaints to ASDB in respect of breaches of


various provisions of the LPA, and Rules and Rulings made
thereunder, relating to misconduct involving clients’ monies,
etiquette, and conduct unbefitting an advocate and solicitor”.
STATISTICS
• 26 appeals were served on the Bar Council in
respect of adverse orders imposed on Members
of the Bar by ASDB.

• Members pay their fines within the one-month


deadline stipulated in ASDB orders. Members who
are in default can face suspension until the fine is
paid.

• As at 31 December 2017, 72 Members


who had been served with such orders had
paid, while five Members remain suspended.
CHIN HEIN CHONG V TEY SIN
SZE & ANOR [2016] MLJU 1156
FACTS:
Buyer entered into a sale and purchase agreement (‘the SPA’)
with the Vendor in relation to a property. By way of a letter
dated 8 January 2010, Vendor demanded the Buyer to settle
the purchase price within 14 days from the date of their letter
otherwise the deposit paid would be forfeited as liquidated
damages. The Buyer’s solicitors failed to communicate this to
the Buyer, causing the deposit to be forfeited and the property
sold without the Buyer’s knowledge and consent.

The Buyer lodged a complaint with the Disciplinary Board (the


“DB”), against the firm as it was alleged that the firm had
caused delays to advise the buyer’s financier to draw down
the housing facility obtained by the Buyer to purchase the
property.
CHIN HEIN CHONG V TEY SIN
SZE & ANOR [2016] MLJU 1156
HELD:
• The solicitor’s conduct was in breach of Section 94(3)(d) of
LPA 1976 as he failed to communicate and inform the
Buyer of his interest under the SPA.

• Punishment: Reprimand and imposed with a penalty of


RM5,000
AZIANA UDA BAHARI V GAN
KONG YOU [2009] MLJU 125
FACTS:
The lawyer was acting for the landlord under a writ of distress.
The Complainant owed a sum of RM3,600.00 being the arrears
of rental of the said Premises.

On 6/5/2004, the Complainant forwarded to the landlord’s


lawyer by courier service a banker's cheque MBB No. 108927
for the sum of RM3,600.00 being payment of the amount
claimed in the said Notice of Seizure and Sale.

The cheque by the Complainant as settlement was rejected


by the lawyer as her client instructed her to do so and insisted
on payment of costs as well. However, the lawyer
subsequently banked in the Complainant’s cheque on
20/10/2004 and issued a receipt of it as she was of the view
that it was the best interest of her client.
AZIANA UDA BAHARI V GAN
KONG YOU [2009] MLJU 125

• Lawyer’s action in rejecting the cheque as a settlement


HELD:
and later banking in the same showed dishonest conduct.
• She should not have kept the cheque and banked it in
later.
• Instead, she should have returned the cheque to the
Complainant.
• Lawyer was not acting in accordance to the standards of
reasonable and honest counsel,
• Punishment: Penalty of RM500
CHAN YIEW HOCK V KOH HONG TOONG & ANOR;
MAJLIS PEGUAM MALAYSIA (INTERVENER)
[2011] 4 CLJ 160
FACTS:
• Proceedings stemmed from a complaint by the
complainant/ vendor that:
• the lawyer had charged legal fees although he had not
been engaged to act for the complainant in the SPA
transaction;
• the lawyer had charged the complainant service tax at the
rate of 10% although the Government service tax was in
fact 5%;
• the lawyer had failed to remit to the complainant the sum
of RM23,200 paid to the lawyer by the purchaser towards
the balance purchase price;
• the lawyer had written letters directly to the complainant
despite knowing that the latter was represented by a
separate firm of solicitors; and
CHAN YIEW HOCK V KOH HONG TOONG & ANOR;
MAJLIS PEGUAM MALAYSIA (INTERVENER)
[2011] 4 CLJ 160

• Punishment: Lawyer was struck off from the Rolls of


HELD:
Advocates & Solicitors
MAJLIS PEGUAM V DATO’ SERI DR
MUHAMMAD SHAFEE ABDULLAH [2016]
MLJU 616
FACTS:
The respondent, an advocate and solicitor, had given an
interview to The Star newspaper about his work and career.
Following that, two articles were published by The Star where
the first article referred to the respondent as ‘a high profile
lawyer’, ‘a top lawyer’.

The council had contended that the reference to Shafee as a


“top lawyer” and “high profile lawyer” in the newspaper in an
interview would be construed as inducement for professional
mean, alleging that they amounted to misconduct on the part
of the respondent within the meaning, inter alia, of ss. 94(3)(k)
and 94(3)(o) of the Legal Profession Act 1976 (‘LPA’) and rr. 2,
5(1b)(vi), 15(2) and 24 of the Legal Profession (Publicity) Rules
2001 (‘2001 Rules’)
MAJLIS PEGUAM V DATO’ SERI DR
MUHAMMAD SHAFEE ABDULLAH [2016]
MLJU 616

• The Disciplinary Board found Shafee guilty of professional


HELD:
misconduct and fined him RM5,000.00.
• High Court later upheld the ruling.
• Federal Court upheld the findings of the Court of Appeal,
which had found Shafee not guilty.
• Judge Raus Sharif said:
a) The laudatory remarks reflected the journalist’s own
opinion which Shafee could not have prevented.
b) Although the respondent had control over what he
was saying during the interview, he had no control over
the information provided by him that led to the
journalist making the perceived laudatory remarks.
STAGES OF DISCIPLINARY
PROCEEDINGS

• COMMENCEMENT OF PROCESS
1

• WHAT HAPPENS AFTER A COMPLAINT IS LODGED


2

• DISCIPLINARY COMMITTEE PROCEEDINGS


3

• DELIBERATION BY DISCIPLINARY BOARD


4

• APPEAL
5
STAGE 1: COMMENCEMENT
OF PROCESS
• Any complaint concerning the conduct of any advocate and
solicitor shall be in writing.

GUIDELINES TO LODGE A COMPLAINT

 Complete the Complaint Form


 A Statutory Declaration (SD) is to be affirmed before a
Commissioner of Oath
 Supporting Documents – Provide proof of the allegation (eg.
Documents, agreements, receipts, etc.)
 A processing fee of RM200 (non-refundable) is to be made
either in cash/money order or cheque made payable to BAR
COUNCIL-DISCIPLINE FUND.
STAGE 2: WHAT HAPPENS AFTER A
COMPLAINT IS LODGED?

• If there are no merits, the complaint will be


dismissed by the Disciplinary Board without a formal
hearing.

• If there are merits, the Disciplinary Board may


request the relevant Advocate and Solicitor to
furnish a written explanation within 14 days of the
request and thereafter may:
• Deal with the complaint summarily; or
• Appoint a Disciplinary Committee (“DC”) to
carry out a formal investigation.
STAGE 2: WHAT HAPPENS AFTER A
COMPLAINT IS LODGED?

WITHDRAWAL OF COMPLAINT
• Complainant can withdraw the complaint at any time and inform
the Director of the Secretariat or, if the Disciplinary Committee has
been appointed, to the Chairman of that Disciplinary Committee.

• Notwithstanding withdrawal of complaint and without prejudice to its


rights to make a complaint of its own motion – Bar Council or State
Bar Committee may decide whether or not to intervene.

• If it considers there is merit in the complaint, Bar Council will intervene


and proceed with the complaint as if it was made of its own motion.

• In the event Bar Council intervenes, the original Complainant may be


called to appear as main witness.
STAGE 3: DISCIPLINARY COMMITTEE
PROCEEDINGS

CONSTITUTION OF THE DISCIPLINARY COMMITTEE:


• Two Advocates and Solicitors (one of whom shall be the
chairman of the Disciplinary Committee) of not less than ten
years’ standing and having valid practising certificate; and
• One lay person
STAGE 3: DISCIPLINARY COMMITTEE
PROCEEDINGS

THE ROLE OF THE DISCIPLINARY COMMITTEE:

• To commence inquiry within 1 month from the


date of appointment, by perusing the relevant
documentary evidence in the presence of the
Complainant and the advocate and solicitor
concerned, and by summoning the attendance
of witnesses (if any);

• To keep a note of the proceedings of the inquiry


and arrive at an appropriate finding on liability
(guilt) and/or sentence (if any), as the case may
be and furnish the finding/recommendation to
the Disciplinary Board.
STAGE 4: DELIBERATION BY
DISCIPLINARY BOARD

• DC shall deliver the DC Report to the Director within


4 months from the date of appointment. This period
can be extended for a further 2 months if a written
application has been submitted by the DC giving
valid reasons.

• Upon receipt of the findings by the DC, the


Disciplinary Board may either concur, enhance or
dismiss the complaint, as it deems fit.

• DB may also in appropriate cases impose a greater


or lesser penalty or punishment than that
recommended by the DC.
STAGE 5: APPEAL

• Any party aggrieved by any final order or decision made by


DB may appeal to the High Court by way of originating
motion against that decision within one month of the receipt
of the notification of that order or decision.

• Any appeal against the decision of the High Court shall lie to
the Court of Appeal and thereafter to the Federal Court.
STAGE 5: APPEAL
WHEN WILL THE COURT INTERFERE?

• In Gana Muthsamy v L.M Ong & Co. [1998] 3 MLJ 341, His
Lordship Gopal Sri Ram JCA penned the following:

"It is primarily for members of the Bar to decide what amounts


to conduct unbecoming of an advocate and solicitor in
particular circumstances, according to standards established
by members of that honourable profession. Courts must
necessarily exercise caution when entertaining on appeal in
which the control question is whether particular conduct in
unprofessional and cases meriting curial interference will be
rare. Otherwise it will be the court and not the profession that
will determine the yardstick of professional behavior.’
INJUNCTION – CAN A LAWYER SEEK AN INJUNCTION TO RESTRAIN
THE DISCIPLINARY HEARING FROM HEARING COMPLAINT?

Tetuan Choong & Co & Ors v Lembaga Tatatertib Peguam-


Peguam [2004] 1 CLJ 574
• The Bar Council pursuant to s. 99 of the Legal Profession Act
1976 made a complaint to the Disciplinary Board against
FACTS:
the plaintiffs.

• The complaint was for an alleged breach of the no-


discount rule under the Solicitor's Remuneration Order.

• The plaintiff filed an injunction to restrain the Disciplinary


Committee from hearing the complaint made against
them, on grounds that there has been inordinate delay on
the part of the Disciplinary Board in constituting the
Investigating Tribunal and such delay has caused much
prejudice to the plaintiffs who are senior members of the
Bar and their integrity being compromised by having the
complaint hanging over their heads.
INJUNCTION – CAN A LAWYER SEEK AN INJUNCTION TO RESTRAIN
THE DISCIPLINARY HEARING FROM HEARING COMPLAINT?

Tetuan Choong & Co & Ors v Lembaga Tatatertib Peguam-


Peguam [2004] 1 CLJ 574
• Not only should the interests of the advocates and solicitors be
HELD:
considered, but also that of the legal profession and, above all public
interest.

• To ensure that in the public interest, a legal profession of the highest


possible standard is upheld, Parliament has set up a scheme of
disciplinary proceedings under the Legal Profession Act 1976 for the
proper discipline of advocates and solicitors. Taking into consideration
the scheme of disciplinary proceedings provided for under the Act, an
application of this type should not be entertained.

• The plaintiffs must exhaust their domestic remedy under the Act before
coming to this court. The plaintiffs' arguments as to the validity of the
said complaint could and should be raised before the Disciplinary
Committee hearing. Further, the plaintiffs had the right to appeal to the
High Court and had a further right to appeal to the Federal Court. The
plaintiffs should not short-circuit the statutory disciplinary and appellate
process.
CAN A LAWYER LATER BRING AN ACTION AGAINST
THE COMPLAINANT IN COURT?

• Murugayah R Narayanasamy v Dato’ Tan Ting Wong & Anor


[2013] 2 CLJ 211
• The plaintiff, an advocate and solicitor, at the request of the first defendant,
FACTS:
acted on behalf of the second defendant in a suit. The plaintiff later sent a
professional bill in respect of the legal services rendered. However, the
defendants had failed and neglected to pay the plaintiff's fees, causing the
plaintiff to file a Civil action for the recovery of the same (“Shah Alam suit”).

• Three years later, the first defendant lodged a complaint against the
plaintiff. On a day before the hearing of the complaint, the defendants
proposed to withdraw the complaint on the conditions that the plaintiff's
firm pay to the defendants a sum of RM25,000, withdraw the Shah Alam suit
and execute of a letter of release confirming that the plaintiff's firm had
ceased from acting for the defendants.

• Subsequently the DC conducted investigation and upon its


recommendation to the Disciplinary Board, the complaint against the
plaintiff was dismissed. Hence, this action by the plaintiff where the plaintiff
claimed that the defendants' complaint to the Disciplinary Board against
the plaintiff was malicious and was premised on the defendants' ulterior
motive to pressure and induce the plaintiff into withdrawing the Shah Alam
suit.
CAN A LAWYER LATER BRING AN ACTION AGAINST THE
COMPLAINANT IN COURT?

• Murugayah R Narayanasamy v Dato’ Tan Ting Wong & Anor


[2013] 2 CLJ 211
The first defendant's lodgment of complaint against the
HELD:
plaintiff was clearly motivated by malicious intent, namely to
avoid payment of the plaintiff's professional legal fees and to
impose undue pressure on the plaintiff to withdraw the
plaintiff's claim in the Shah Alam suit. Accordingly the
plaintiff's claim was allowed for general damages in the
amount of RM100,000 and exemplary damages also in the
amount of RM100,000. Costs of RM20,000 was allowed with
interest at the rate of 4%.
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