Isolated acts of legal advice can constitute practicing law; a practicing certificate is required, particularly when one is a bankrupt.

Harmindar Singh Dhaliwal FCJ:

[1] This appeal concerns an issue of some importance to the legal profession. The question for our consideration is simply this: under what circumstances can it be said that a person is practising law. Can someone who has given some legal advice informally be said to have practised law? Can an isolated act of giving advice constitute practising law or must it require a systematic, regular and continuous act? Or does it require something more in the form of a solicitor-client status requiring a relationship of trust and confidence?

[2] The appellant, Darshan Singh Khaira, was a practising lawyer for many years. However, by a decision of the Disciplinary Board (the "DB") of the Majlis Peguam Malaysia dated 14 April 2016, he was struck off the Roll of Advocates and Solicitors of the High Court of Malaya. The basis for the said order was that the appellant was practising law without a practising certificate as he was a bankrupt.

[3] The appellant then filed an Originating Summons in the High Court at Kuala Lumpur to set aside the said order of the DB of the Majlis Peguam Malaysia. The High Court dismissed his application. He then filed an appeal to the Court of Appeal. He failed again. He was, however, successful in obtaining leave of this Court to file an appeal on a single question of law as follows:

"Whether the giving of advice to a client of a law firm amounts to practising as a lawyer"

The Background

[4] In order to appreciate how the appellant came to the predicament of being struck off the Roll, it is necessary to set out the relevant facts. It transpired that the appellant had assisted the complainant, Zulkefli bin Hashim, in a traffic case in the Magistrate's Court in Georgetown and later in proceedings before the High Court and Court of Appeal. Although the complainant had represented himself in these proceedings, he had engaged the appellant to prepare the legal documentation and had sought legal advice from him. When the Court of Appeal had struck out his appeal on a procedural ground in that prior leave to appeal had not been obtained, the complainant lodged a complaint with the Majlis Peguam Malaysia.

[5] The complaint was heard by the Disciplinary Committee ("DC") on 27 January 2015 and 15 January 2016. At the end of the hearing, the DC made the finding that the appellant had committed a serious misconduct by providing legal advice to the complainant at the relevant time between 22 August 2007 to 15 January 2009 when he was an undischarged bankrupt and did not hold a valid practicing certificate. The DC recommended that the appellant be struck off the Roll of Advocates and Solicitors of the High Court of Malaya. This recommendation was accepted by the DB and by an order dated 14 April 2016, the appellant was duly struck off the Roll of Advocates and Solicitors of the High Court of Malaya.

Proceedings In The Courts Below

[6] At the High Court, the appellant raised various grounds to set aside the order of the DB of the Majlis Peguam Malaysia. The only ground which was relevant to the appeal before us was that the charge of misconduct was not proved against the appellant as he had never practiced law during the bankruptcy order. The appellant took the position that any layman can give advice and assist a litigant. Further, no fees were collected by the appellant himself as all fees and disbursements were paid to the firm of M/s Darshan Singh & Co for prior work done.

[7] In this respect, however, the High Court particularly noted the findings of fact made by the DC:

(a) that the appellant had advised the complainant on the appeal procedure from the Magistrate's Court to the High Court and from the High Court to the Court of Appeal; and

(b) that the appellant had procured legal fees and disbursement from the complainant in his professional capacity as a practicing advocate and solicitor, as can be seen from the receipts dated 6 August 2007, 18 August 2007 and 14 February 2008.

[8] The High Cou