LEGAL PROFESSION ACT 1976
(1) This Act may be cited as the Legal Profession Act 1976 and shall come into operation on such date or dates as the Minister may, by notification in the Gazette , appoint.
(2) The Minister may appoint different dates for the coming into operation of the different parts or provisions of this Act and different dates may be appointed for the coming into operation of this Act in PeninsularMalaysia, Sabah and Sarawak.
This Act shall apply throughout Malaysia but shall only be made applicable to Sabah and Sarawak with such modifications as the Yang di-Pertuan Agong may by order make; and such Order shall be published in the Gazette .
In this Act unless the context otherwise requires:
"advocate and solicitor", and "solicitor" where the context requires means an advocate and solicitor of the High Court admitted and enrolled under this Act or under any written law prior to the coming into operation of this Act;
"articled clerk" has the meaning assigned to it in section 20;
"Bahasa Malaysia Qualifying Examination" means an examination conducted by the Board or other persons appointed by the Board for that purpose; [Ins. by Act A567: s.2]
"Bar Council" and "Council" mean the central council of the Malaysian Bar established under section 47;
"Bar Committee" means a Bar Committee elected under section 70 4 PART II LEGAL PROFESSION QUALIFYING BOARD-4. Legal Profession Qualifying Board.
[Am. by Act A1269: s.4]
(1) There is established a body to be called the
[Am. by Act A1269: s.4]
Note:
(1) All references to the Qualifying Board in any written law or in any instrument, document, bond, agreement or working arrangement subsisting immediately before the date of coming into operation of this Act shall, on and after the date of coming into operation of this Act, be construed as references to the
(2) The change of name from the "Qualifying Board" to the "Legal Profession Qualifying Board" shall not affect any powers, rights, privileges, liabilities, duties or obligations of the Qualifying Board, or renders defective any legal proceedings by or against it.
(3) Legal proceedings pending or that could have been continued or commenced by or against the Qualifying Board prior to the date of coming into operation of this Act may be cont
5 PART II LEGAL PROFESSION QUALIFYING BOARD-5. Functions of Board.
The Board shall have the following functions:
(a) to prescribe the qualifications required for the entry of any person into articles with a view to his admission as an advocate and solicitor;
(b) to provide courses of instruction for, and to regulate the training and instruction of, articled clerks;
(c) to provide for the examination of articled clerks wishing to become qualified persons;
(d) to decide on the qualifications, if any, other than those set out in paragraphs (a) and (b) of the definition of "qualified person" in section 3, which may entitle a person to become a qualified person for the purposes of this Act;
(e) to provide courses of instruction for, and for the examination of, persons whose qualifications are not sufficient to make them qualified persons for the purposes of this Act except after undergoing the courses and pas
6 PART II LEGAL PROFESSION QUALIFYING BOARD-6. General Power of Board and power to make rules.
(1) In addition to any other powers conferred by this Act the Board may make rules and do all things which are necessary and incidental in order to carry out into effect the objects of this Part and the functions of the Board.
[Am. by Act A567: s.4]
(2) Without prejudice to the generality of subsection (1) but subject to this Part, the Board may in particular make rules*:
(a) for regulating the meetings and proceedings of the Board;
(b) for the taking and retaining of articled clerks by principals and for the conduct, duties and responsibilities of the parties;
(c) for regulating the manner in which articled clerks serve their period of articleship;
(d) specifying the subjects in which articled clerks are required to be proficient in;
(e) for the examination from time to time of articled clerks;
(f) f
7 PART II LEGAL PROFESSION QUALIFYING BOARD-7. Membership of Board.
The Board shall consist of:
(a) the Attorney General who shall be the Chairman;
(b) two Judges nominated by the Lord President;
(c) the Chairman of the Bar Council; and
(d) a full-time member of the academic staff of a Faculty of Law nominated by the Minister of Higher Education.
[(d) Am. by Act A1269: s.5; Subs. by Act A567: s.5]
8 PART II LEGAL PROFESSION QUALIFYING BOARD-8. Election of acting Chairman.
(1) The Chairman shall preside at meetings of the Board; and in the absence of the Chairman, the members of the Board present at the meeting shall elect an acting Chairman who shall have and exercise all the powers of the Chairman.
(2) The Chief Registrar shall be the Secretary of the Board.
(3) The Board shall appoint such officers as it considers necessary and shall have power to pay remuneration to its employees.
[Subs. by Act A567: s.6]
9 PART II LEGAL PROFESSION QUALIFYING BOARD-9. Meetings of Board and Quorum.
(1) The Board shall meet at such times and such places as the Chairman may appoint.
[Am. by Act A567: s.7]
(2) The Board shall have power to fix a quorum for its meetings.
[Am. by Act A567: s.7]
(3) Each member of the Board shall have one vote and where there is an equality of votes, the Chairman of the meeting shall have a casting vote.
[(3) Am. by Act A1269: s.6]
10 Qualified Persons-10. Admission of advocates and solicitors.
The High Court may at its discretion and subject to this Act admit as an advocate and solicitor of the High Court:
(a) any qualified person; and
(b) any articled clerk who has complied with section 25:
Provided that no person who is a qualified person by reason of his having passed the final examination for the degree or other qualification which makes him a qualified person under paragraph (a) , (b) or (c) of the definition of "qualified person" in section 3 shall be admitted as an advocate and solicitor before the degree or other qualification has been conferred upon him.
[Subs. by Act A567: s.8]
11 Qualified Persons-11. Qualifications for admission.
(1) Subject to section 14, a qualified person may be admitted as an advocate and solicitor if he:
[Am. by Act A567: s.9]
(a) has attained the age of eighteen years;
(b) is of good character and
(i) has not been convicted in Malaysia or elsewhere of a criminal offence as would render him unfit to be a member of his profession, and in particular, but not limited to, an offence involving fraud or dishonesty;
(ii) has not been adjudicated bankrupt and has not been found guilty of any of the acts or omissions mentioned in paragraph 33 (6) (a) , (b) , (c) , (d) , (e) , (f) , (h) , (k) or (l) of the Bankruptcy Act 1967 [Act 360] ;
(iii) has not done any other act which, if being a barrister or solicitor in England, would render him liable to be disbarred, disqualifi
12 Qualified Persons-12. Period of pupillage of qualified person.
(1) For the purposes of this Part, a qualified person shall during his period of pupillage be known as a "pupil", and a person with whom a pupil serves his period of pupillage or any part thereof shall be known as a "master".
(2) A qualified person shall, before he is admitted as an advocate and solicitor, serve a period of pupillage and, subject to this section and section 13, the prescribed period of pupillage shall be nine months.
[Am. by Act A567: s.10]
(3) No qualified person shall, without the special leave in writing of the Bar Council, hold any office or engage in any employment of any kind, whether full-time or otherwise, during his period of pupillage, but nothing in this subsection shall preclude a pupil from receiving remuneration from his master.
13 Qualified Persons-13. Exemption from period and qualification for pupillage.
(1) Subject to subsection (4) a pupil shall serve his period of pupillage with an advocate and solicitor who is and has been in active practice in Malaysia for a total period of not less than seven years immediately preceding the date of commencement of his pupillage:
Provided that the Bar Council may on special grounds allow a pupil to serve his period of pupillage with an advocate and solicitor of less than seven years' standing.
(2) The Bar Council may allow a qualified person to serve different parts of his period of pupillage with different masters.
(3) The Bar Council may, in its sole discretion, exempt a qualified person from any period up to six months' pupillage upon application made to it supported by satisfactory evidence that:
(a) there are special circumstances justifying a shortening of the period of pupillage; or
(b) the applicant has for a period of not less than six
14 Qualified Persons-14. Filing of admission petition and enquiries, etc.
(1) Upon any petition for admission and enrolment as an advocate and solicitor being filed, the Bar Council shall make or cause to be made full inquiries into the character of the petitioner and upon such petition being set down for hearing, to forward to the Chief Justice a confidential report of the result of such inquiries.
(2) All the State Bar Committees (if more than one) in the States in which a person applying to be admitted pursuant to section 15 has served his pupillage, shall upon the person's petition being set down for hearing make or cause to be made full inquiries into the character of the petitioner and the confidential report of the result of the inquiries shall be forwarded to the Chief Justice with such comments upon it as the Bar Council may consider necessary.
(3) If any of the reports referred in subsection (1) or subsection (2) is unfavourable to the petitioner the Chief Justice may, if he thinks fit, direct such
15 Qualified Persons-15. Petition for admission with affidavit.
(1) This section shall apply to every person who proposes to apply to be admitted and enrolled as an advocate and solicitor.
[Am. by Act A567: s.12]
(2) An application for admission under this section shall be by a petition to the Court and verified by affidavit.
(3) Every petitioner shall, not less than fourteen days before his petition is to be heard or such shorter period as the Court may allow, file an affidavit exhibiting:
[Am. by Act A567: s.12]
(a) where applicable, true copies of any documentary evidence showing that he is a qualified person;
(b) two recent certificates as to his good character;
(c) a certificate of diligence from his master with whom he served his pupillage in cases where he is required to serve a period of pupillage, or in the absence of such certificate any other evidence as the Court
16 Qualified Persons-16. Filing of petition and objection.
(1) A copy each of the petition and the affidavit required to be filed under section 15 together with the true copies of each document exhibited pursuant to that section shall, within seven days of the filing thereof in the Registrar's Office, and not less than ten days or such shorter period as the Court may allow before the date fixed for hearing the petition, be served on the Attorney General, the Bar Council and the State Bar Committee of the State in which the pupil has served any part of his period of pupillage.
[Am. by Act A567: s.13]
(2) If the Attorney General, the Bar Council or any State Bar Committee intends to object to any petition, there shall be served on the petitioner and filed in the Registrar's Office, not less than three clear days or any shorter period as the Court may allow before the date fixed for hearing the petition, a notice of objection which shall set out in brief terms the grounds of
17 Qualified Persons-17. Entering of caveat against admission.
(1) Any person may enter a caveat against the admission of any petitioner and upon such caveat being entered no application for the admission of the petitioner shall be heard unless a notice of hearing of not less than 3 clear days has been served on the person entering the caveat.
(2) Every caveat under this section shall be entered in the Registrar's Office and shall contain the full name, occupation and address of the caveator, a brief statement of the grounds of his objection and an address for service.
(3) If at any time after the admission and enrolment of any petitioner as an advocate and solicitor, it is shown to the satisfaction of the Court that any petition, affidavit, certificate or other document filed by a petitioner contains any statement which is false or misleading in substance or a suppression of any material fact the name of the petitioner may be removed from the Roll.
(4) Where an advocate and solicitor has b
18 Qualified Persons-18. Admission in special cases.
(1) Notwithstanding anything contained in this Act, the Court may, for the purpose of any one case and subject to the following subsections, admit to practise as an advocate and solicitor any person who, if he was a citizen of, or a permanent resident in, Malaysia, would be eligible to be admitted as an advocate and solicitor of the High Court and no person shall be admitted to practise as an advocate and solicitor under this subsection unless:
(a) for the purpose of that particular case he has, in the opinion of the Court, special qualifications or experience of a nature not available amongst advocates and solicitors in Malaysia; and
(b) he has been instructed by an advocate and solicitor in Malaysia.
[Subs. by Act A567: s.14]
(2) Any person applying to be admitted under this section shall do so by originating motion verified by his own affidavit, or th
19 Qualified Persons-19. Right of appeal by objectors.
The petitioner under section 15 and the applicant under section 18 and any one or more of the following namely - the Attorney General, the Board, the Secretary of the Bar Council or the Secretary of any State Bar Committee objecting to any petition or to the making of any order on an originating motion pursuant to section 18 shall have a right of appeal to the Supreme Court:
[Am. by Act A567: s.15]
Provided that a Judge who have* made the order appealed from shall not be a member of the Federal Court.
* This word should be read as "has".
20 Articled Clerks-20. Qualification for articled clerks.
(1) Except as authorised by this Act and any rules made by the Board no person shall enter into articles with a view to his admission as an advocate and solicitor unless he:
(a) has attained the age of seventeen years;
(b) is of good character; and
(c) has the necessary educational qualifications as may be prescribed by the Board.
(2) For the purposes of this Part, a person who has entered into articles with an advocate and solicitor shall be known as an "articled clerk" and an advocate and solicitor who takes an articled clerk shall be known as a "principal".
21 Articled Clerks-21. Conditions to be a principal and discharge of clerk.
(1) No advocate and solicitor shall, without the special leave in writing of the Board, qualify as a principal unless he has been in active practice as an advocate and solicitor in Malaysia for a period of not less than seven years immediately preceding the commencement of the articles and is in active practice.
(2) No principal shall have more than two articled clerks at the same time.
(3) No principal shall take or retain any articled clerk after he has ceased from active practice as an advocate and solicitor in Malaysia or while the articled clerk is employed by another advocate and solicitor.
(4) If any advocate and solicitor takes an articled clerk in contravention of this section the Board may of its own motion discharge the articles of the articled clerk upon such terms, including terms as to return of any premium, as the Board thinks fair and reasonable.
22 Articled Clerks-22. Discharge of clerk for unfitness.
If any allegation is made to the Board as to the unfitness of an articled clerk to be an advocate and solicitor, and the Board, after inquiring into that allegation is satisfied that the articled clerk is unfit to be an advocate and solicitor, the Board may of its own motion discharge the articles of that articled clerk upon such terms, including terms as to return of any premium, as the Board thinks fair and reasonable.
23 Articled Clerks-23. Discharge of clerk generally.
If the Board is satisfied on application made either by a principal or an articled clerk that the articles ought to be discharged, the Board may discharge the articles upon such terms, including terms as to return of any premium, as the Board thinks fair and reasonable.
24 Articled Clerks-24. Period of articles and condition of articles.
(1) The period of articles for an articled clerk who is a graduate of a University recognised by the Board for the purpose of this section shall be three years.
(2) The period of articles for every other person shall be five years.
(3) No articled clerk shall, without the special leave in writing of the Bar Council, hold any office or engage in any employment of any kind, whether full-time or otherwise, during his articles but nothing in this subsection shall preclude an articled clerk from receiving remuneration from his principal.
25 Articled Clerks-25. Condition of admission of articled clerk.
(1) Subject to sections 22 and 23 and any rules made by the Board no articled clerk shall be admitted and enrolled as an advocate and solicitor unless he:
[Am. by Act A567: s.16]
(a) has satisfactorily served the prescribed period of articles;
(b) has attended such courses of instruction as may generally or specially be prescribed by the Board; and
[Am. by Act A567: s.16]
(c) has passed such examination as may be prescribed by the Board.
(2) As from the 1 January 1984, no articled clerk shall be admitted and enrolled as an advocate and solicitor unless, in addition to satisfying the requirements of subsection (1), he has passed or is exempted from the Bahasa Malaysia Qualifying Examination.
[Ins. by Act A567: s.16]
26 Reviews-26. Appeal from the decision of Board to Judge.
(1) Any person dissatisfied with any decision of the Board may apply to a Judge for a review of the decision.
(2) If the Board fails to determine any request within six weeks after it has been first submitted to it, the applicant may apply under this section as if the request had been determined adversely to him.
(3) Every application under this section shall be made by summons in chambers on the petition of the appellant if he has filed a petition, otherwise by originating summons; the Judge hearing the application may in his discretion adjourn the application into open Court.
(4) Every summons in chambers or originating summons, as the case may be, shall be supported by evidence on affidavit and shall be served together with the affidavit on the Board, such summons in chambers or originating summons shall not be heard before the expiry of twelve days after the date of service on the Board.
(5) At or before the hearing
27 Hearing of Petitions and the Roll-27. Hearing by Judge, a member of Board.
A Judge who is a member of the Board shall not hear any petition for admission.
28 Hearing of Petitions and the Roll-28. Roll of advocates and solicitors.
(1) The Registrar shall keep a Roll of advocates and solicitors with the dates of their respective admission.
(2) The name, with the date of admission, of every person admitted shall be entered upon the Roll in the order of admission.
(3) Every person admitted as an advocate and solicitor shall pay the prescribed fee and the Registrar shall deliver to him an instrument of admission signed by the Chief Justice or the Judge who admitted the petitioner.
(4) This section shall not apply to persons admitted under section 18.
(5) The Roll shall be open to inspection without payment by any person during office hours.
[Ins. by Act A567: s.18]
28A PART IIA SPECIAL PROVISIONS RELATING TO ADMISSION OF ADVOCATES AND SOLICITORS-28A. Attorney General's power to issue Special Admission Certificates.
(1) The Attorney General may issue a special certificate for admission as an advocate and solicitor of the High Court (hereinafter referred to as a "Special Admission Certificate") to any person who, in his opinion, satisfies the following requirements:
(a) (i) is a qualified person; or
(ii) is not a qualified person, but is in possession of a qualification which renders him eligible to practise as a barrister, or as a solicitor, or as an advocate and solicitor, or otherwise as a legal practitioner by whatever name called, or to be employed in a legal or judicial capacity in the service of any government, in any country, or in a part or division of any country, or in any territory or place, outside Malaysia; and
(b) has been practising as a barrister, or as a solicitor, or as an advocate and solicitor, or otherwise as a legal practitioner by whatever name called, or has been employed in a legal or
28B PART IIA SPECIAL PROVISIONS RELATING TO ADMISSION OF ADVOCATES AND SOLICITORS-28B. Admission and enrolment as an advocate and solicitor of a person issued with a Special Admission Certificate.
(1) A person issued with a Special Admission Certificate may apply by ex-parte originating summons to a Judge of the High Court in Chambers to be admitted as an advocate and solicitor of the High Court.
(2) A Judge hearing an application under subsection (1) shall, upon being satisfied as to the genuineness of the Special Admission Certificate and the identity of the applicant, admit the applicant as an advocate and solicitor of the High Court for the period specified in the Certificate; and a person so admitted as an advocate and solicitor shall be enrolled and given an instrument of admission under section 28.
(3) The admission and enrolment of a person as an advocate and solicitor under subsection (2) shall not be reviewed or called in question in any court.
(4) An advocate and solicitor admitted under subsection (2) shall be entitled to renew his admission from time to time upon presenting to the Registrar within a period of
28C PART IIA SPECIAL PROVISIONS RELATING TO ADMISSION OF ADVOCATES AND SOLICITORS-28C. Provisions as to Sijil Annual not to apply to an advocate and solicitor admitted under this part.
The provisions of sections 32 and 33, or any other provision of this Act relating to a Sijil Annual, shall not apply to an advocate and solicitor admitted under this Part.
[Ins. by Act A419: s.2]
28D PART IIA SPECIAL PROVISIONS RELATING TO ADMISSION OF ADVOCATES AND SOLICITORS-28D. Power of Attorney General to make orders.
The Attorney General may, by order published in the Gazette, make such provision as he may deem necessary or expedient for giving effect to the provisions of this Part or carrying out its purposes, and without prejudice to the generality of the foregoing, an order made under this section may provide for:
(a) any supplemental, incidental or consequential matters in relation to this Part;
(b) the removal of any difficulty or anomaly whatsoever in any provision of this Act or in any other written law, or otherwise, that may be occasioned by any provision or provisions in this Part.
[Ins. by Act A419: s.2]
28E PART IIA SPECIAL PROVISIONS RELATING TO ADMISSION OF ADVOCATES AND SOLICITORS-28E. Provisions of this part to prevail.
The provisions of this Part or of any order made under this Part shall have effect notwithstanding anything to the contrary or inconsistent therewith contained in any provision of this Act other than this Part, or in any other written law, and the provisions of this Act (other than this Part) or of any other written law shall be read:
(a) mutatis mutandis with the provisions of this Part and of any order made under this Part; and
(b) with all such modifications, adaptations, alterations or changes whatsoever as may be necessary to have the same to accord with the provisions of this Part and of any order made under this Part.
[Ins. by Act A419: s.2]
29 PART III PRACTISING CERTIFICATES-29. Advocate and solicitor to make declaration yearly.
(1) Every advocate and solicitor shall in each year before he does any act in the capacity of an advocate and solicitor deliver or cause to be delivered to the Registrar:
(a) a declaration in writing stating:
(i) his full name;
(ii) the name under which he practises or the name of the advocates and solicitors or firm of advocates and solicitors employing him; and
(iii) the principal and any other address or addresses at which he practises in Malaysia;
(b) the last Sijil Annual or a true copy thereof, if any, issued to him by the Bar Council; and
(c) the prescribed fee,
and the Registrar shall on being satisfied that all the necessary documents are in order and that the firm* name under which the advocate and solicitor is practising is on the register maintained under section 85 (1) issue to the advocate and solicitor
30 PART III PRACTISING CERTIFICATES-30. Disqualification for practising certificate.
(1) No advocate and solicitor shall apply for a practising certificate:
(a) unless he is practising or intends to practice+ either on his own account or in partnership in Malaysia; or
(b) unless he is or is about to be employed full time in his practice in Malaysia by an advocate and solicitor or a firm of advocates and solicitors in practice in Malaysia; or
(c) if he is gainfully employed by any other person, firm or body in a capacity other than as an advocate and solicitor.
(2) For the purpose of this section a qualified person shall not be construed as being gainfully employed if he is serving in the Judicial and Legal Service.
(3) Any qualified person who is gainfully employed in accordance with paragraph (c) of subsection (1) shall surrender his practising certificate to the Registrar.
[Am. by Act A367: s.4]
31 PART III PRACTISING CERTIFICATES-31. Register of practitioners.
(1) Upon the issue of every practising certificate the Registrar shall cause to be entered in an annual register known as the Register of Practitioners, the particulars contained in the declaration delivered under section 29(1) (a) , and any person may inspect the Register of Practitioners during office hours without payment.
(2) If there is any change with respect to any advocate and solicitor in the particulars referred to in subsection (1) that advocate and solicitor shall within one month thereafter notify the Registrar and the Bar Council, and the Registrar shall thereupon cause the entry to be made in respect of that advocate and solicitor in the Register of Practitioners.
32 PART III PRACTISING CERTIFICATES-32. Issue of Sijil Annual.
(1) Subject to this section and sections 33 and 34, the Bar Council shall at any time after the month of June in the preceding year issue a Sijil Annual to an advocate and solicitor within twenty-one days of the receipt of an application under subsection (2) if:
(a) the Bar Council is satisfied that the application complies with that subsection and any rules made under this section;
[Am. by Act A567: s.20]
(b) the Bar Council is satisfied that the applicant is not prohibited from holding a practising certificate under section 30;
(c) the advocate and solicitor has delivered or is exempted from delivering an accountant's report in accordance with section 79;
(d) the advocate and solicitor is not in arrears in respect of any contribution to the Compensation Fund, or of any subscription or levy lawfully due to the Bar Council or his State Bar Co
33 PART III PRACTISING CERTIFICATES-33. Issue of Sijil Annual in certain conditions.
(1) Subsection (2) shall have effect with respect to an application for a Sijil Annual made by an advocate and solicitor:
[Subs. by Act A567: s.21]
(a) after more than twelve months have elapsed since his admission and where he has held no valid practising certificate during that period;
(b) who has held a practising certificate subject to terms and conditions at any time in the three years immediately preceding his application;
(c) after more than twelve months have elapsed since he held a valid practising certificate;
(d) after the *Disciplinary Committee has ordered a penalty or costs to be paid by him;
(e) when having been suspended from practice or having had his name removed from the Roll or struck off the Roll the period of suspension has expired or his name has been restored to the Roll, as the case may be;
34 PART III PRACTISING CERTIFICATES-34. Applicant to apply to Court.
(1) An advocate and solicitor who is required to make an application under this section or any advocate and solicitor who is dissatisfied with the refusal, neglect or delay in the issue to him of a Sijil Annual may apply to a Judge by originating summons for an order directing the Bar Council to issue him with a Sijil Annual.
(2) A Judge hearing an application under this section may make an order for the payment of costs by or to either the Bar Council or the applicant as he considers fair and reasonable.
35 PART IV PRIVILEGES OF ADVOCATES AND SOLICITORS-35. Right of advocate and solicitor.
(1) Any advocate and solicitor shall, subject to this Act and any other written law, have the exclusive right to appear and plead in all Courts of Justice in Malaysia according to the law in force in those Courts; and as between themselves shall have the same rights and privileges without differentiation.
(2) Nothing herein contained shall affect the right which is hereby declared of:
(a) legal officers, whose duties so require them to do, and qualified persons appointed temporarily to perform the duties of legal officers to appear and plead on behalf of the Government in the Courts;
(b) officers of the Public Trust Corporation, the Director General of Insolvency, Deputy Director General of Insolvency, Directors of Insolvency, Deputy Directors of Insolvency, Senior Assistant Directors of Insolvency, Assistant Directors of Insolvency and Insolvency Officers to appear and plead in the courts under an
36 PART IV PRIVILEGES OF ADVOCATES AND SOLICITORS-36. Advocate and solicitor to have name on the roll before practice.
(1) Subject to this section, no person shall practise as an advocate and solicitor or do any act as an advocate and solicitor unless his name is on the Roll and he has a valid practising certificate authorizing him to do the act; a person who is not so qualified is in this Act referred to as an "unauthorized person".
(2) A Judge may, upon application made in Chambers by a Master at the commencement of the pupillage of the Master's pupil, make an order that the pupil be permitted to appear on behalf of the Master or of the firm in which the Master is practising:
(a) during the period of three months from the date of the order:
(i) before a Judge or a Registrar of the High Court, in Chambers;
(ii) before a President of the Sessions Court or a Magistrate, in Chambers;
(iii) before a Registrar of the Subordinate Courts,
to mention a case, including entering jud
37 PART IV PRIVILEGES OF ADVOCATES AND SOLICITORS-37. No unauthorised person to act as advocate and solicitor.
(1) Any unauthorized person who:
(a) acts as an advocate and solicitor or an agent for any party to proceedings or in any capacity, other than as a party to an action in which he is himself a party, sues out any writ, summons or process, or commences, carries on, solicits or defends any action, suit or other proceedings in the name of any other person in any of the Courts in Malaysia or draws or prepares any instrument relating to any proceedings in any such Courts; or
(b) wilfully or falsely pretends to be, or takes or uses any name, title, addition or description implying that he is duly qualified or authorized to act as an advocate and solicitor, or that he is recognized by law as so qualified or authorized,
shall be guilty of an offence and shall on conviction be liable to a fine not exceeding two thousand five hundred ringgit or to imprisonment for a term not exceeding six months
37A PART IV PRIVILEGES OF ADVOCATES AND SOLICITORS-37A. Sections 36 and 37 not to apply to arbitral proceedings.
(1) Sections 36 and 37 shall not apply to:
(a) any arbitrator lawfully acting in any arbitral proceedings;
(b) any person representing any party in arbitral proceedings; or
(c) any person giving advice, preparing documents and rendering any other assistance in relation to or arising out of arbitral proceedings except for court proceedings arising out of arbitral proceedings.
(2) In this section, "arbitral proceedings" means proceedings in an arbitration which is governed by the Arbitration Act 2005 [Act 646] or would have been governed by such Act had the seat of arbitration been Malaysia.
[Ins. by Act A1456 of the year 2013]
38 PART IV PRIVILEGES OF ADVOCATES AND SOLICITORS-38. Certain persons can act as advocate and solicitor.
(1) Section 37 shall not apply to:
(a) the Attorney-General or the Solicitor-General or any other person acting under the authority of either of them;
(b) officers of the Public Trust Corporation, the Director General of Insolvency, Deputy Director General of Insolvency, Directors of Insolvency, Deputy Directors of Insolvency, Senior Assistant Directors of Insolvency, Assistant Directors of Insolvency and Insolvency Officers acting in the course of their duties under any law relating to their offices;
[Subs. by Act A1269: s.9]
(ba) the Director General of Legal Aid or any person appointed to assist the Director General of Legal Aid under section 3 of the Legal Aid Act 1971 acting in the course of his duty;
[Ins. by Act A1269: s.9]
(c) any other public officer drawing or preparing instruments in the course of his
39 PART IV PRIVILEGES OF ADVOCATES AND SOLICITORS-39. Instrument and document to be endorsed.
Every person who draws or prepares any instrument or document referred to in section 37 shall endorse or cause to be endorsed thereon his name and address or the name and address of his firm or the firm employing him and any such person omitting so to do or falsely endorsing or causing to be endorsed any of the instruments shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one thousand ringgit.
40 PART IV PRIVILEGES OF ADVOCATES AND SOLICITORS-40. No cost payable to unauthorised person.
(1) No costs in respect of anything done by an unauthorised person as an advocate and solicitor or in respect of any act which is an offence under section 37 or 39 shall be recoverable by any person in any action, suit or matter.
(2) Any payment to an unauthorised person for anything done which is an offence under section 37 or 39 may be recovered in a Court of competent jurisdiction by the person who has paid the money.
40A PART IVA INTERNATIONAL PARTNERSHIP, QUALIFIED FOREIGN LAW FIRMS AND REGISTRATION OF FOREIGN LAWYERS-40A. Interpretation.
In this Part, unless the context otherwise requires:
"foreign law" means the law of any state or territory other than Malaysia;
"foreign law firm" means a foreign law firm which provides legal services in foreign law and includes a corporation duly constituted for the purpose of practising law established or licensed to provide legal services by the appropriate licensing authority of a state or territory other than Malaysia; "foreign lawyer" means a person who is:
(a) duly authorized or registered to practise law in a state or territory other than Malaysia; and
(b) a partner, director (who holds equity in the corporation, in the case of a corporation duly constituted for the purpose of practising law) or an employee of a foreign law firm or a Malaysian l
40B PART IVA INTERNATIONAL PARTNERSHIP, QUALIFIED FOREIGN LAW FIRMS AND REGISTRATION OF FOREIGN LAWYERS-40B. Licence required for foreign law firm.
(1) No foreign law firm shall practise in Malaysia unless it is licensed under this Part.
(2) Any foreign law firm which contravenes the provision of subsection (1) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit.
[Ins. by Act A1444 of the year 2012]
40C PART IVA INTERNATIONAL PARTNERSHIP, QUALIFIED FOREIGN LAW FIRMS AND REGISTRATION OF FOREIGN LAWYERS-40C. Selection Committee.
(1) A Selection Committee is established under this Part to make recommendations to the Bar Council for the granting of licence for international partnerships and qualified foreign law firms and to Malaysian law firms to employ foreign lawyers and the registration of foreign lawyers to practise in the permitted practice areas.
(2) The Selection Committee shall consist of the following members:
(a) the Attorney General;
(b) the President of the Malaysian Bar;
(c) a person to be appointed by the Attorney General from the public sector; and
(d) two members of the Malaysian Bar practising in the permitted practice areas relevant to the applications to be appointed by the Bar Council.
(3) The Attorney General and the President of the Malaysian Bar shall be the Co-Chairmen of the
(4) The appointment of the members under paragraphs (2)(c) an
40D PART IVA INTERNATIONAL PARTNERSHIP, QUALIFIED FOREIGN LAW FIRMS AND REGISTRATION OF FOREIGN LAWYERS-40D. Alternate members.
(1) The Attorney General may, in respect of the member appointed under paragraph 40C(2) (c) , appoint a person to be an alternate member to attend, in place of the member, meetings of the Selection Committee.
(2) The Bar Council may, in respect of each member appointed under paragraph 40C(2) (d) , appoint a person to be an alternate member to attend, in place of the member, meetings of the Selection Committee.
(3) When attending meetings of the Selection Committee, an alternate member shall for all purposes be deemed to be a member of the Selection Committee.
(4) An alternate member shall, unless he sooner resigns his membership or his appointment is sooner revoked, cease to be an alternate member when the member in respect of whom he is an alternate member ceases to be a member of the Selection Committe.
[Ins. by Act A1444 of the year 2012]
40E PART IVA INTERNATIONAL PARTNERSHIP, QUALIFIED FOREIGN LAW FIRMS AND REGISTRATION OF FOREIGN LAWYERS-40E. Meetings of the Selection Committee.
(1) Meetings of the Selection Committee shall be co-chaired by the Attorney General and the President of the Malaysian Bar.
(2) The Selection Committee shall meet on such date and at such time and place as the Attorney General and the President of the Malaysian Bar may appoint.
(3) The quorum of the Selection Committee shall be five.
(4) All decisions of the Selection Committee shall be by the affirmative vote of a majority of the members of the Selection Committee.
(5) The Selection Committee shall inform the Bar Council of its recommendation as to the granting of a licence under section 40F, 40G or 40H or the registration of a foreign lawyer under section 40J.
(6) The Bar Council shall be the Secretariat for the Selection Committee.
[Ins. by Act A1444 of the year 2012]
40F PART IVA INTERNATIONAL PARTNERSHIP, QUALIFIED FOREIGN LAW FIRMS AND REGISTRATION OF FOREIGN LAWYERS-40F. International partnership.
(1) A foreign law firm and a Malaysian law firm may apply jointly to the Bar Council for an international partnership licence if they satisfy such conditions as the Bar Council may think fit to impose in any particular case.
(2) A foreign law firm shall not be part of more than one international partnership in Malaysia at any one time.
(3) Upon receiving the application, the Bar Council shall refer such application to the Selection Committee for consideration and recommendation.
(4) The Bar Council shall, upon the recommendation of the Selection Committee, grant an application made under subsection (1) on such conditions as the Bar Council may think fit to impose in any particular case or refuse the application.
(5) An international partnership shall pay to the Bar Council such licence fee at such times and in such manner as may be prescribed.
(6) The Bar Council may, by notice in writing:
40G PART IVA INTERNATIONAL PARTNERSHIP, QUALIFIED FOREIGN LAW FIRMS AND REGISTRATION OF FOREIGN LAWYERS-40G. Qualified foreign law firm.
(1) A foreign law firm may apply for a qualified foreign law firm licence if it satisfies such conditions as the Bar Council may think fit to impose in any particular case.
(2) Upon receiving the application, the Bar Council shall refer such application to the Selection Committee for consideration and recommendation.
(3) The Bar Council shall, upon the recommendation of the Selection Committee, grant an application made under subsection (1) on such conditions as the Bar Council may think fit to impose in any particular case or refuse the application.
(4) A qualified foreign law firm shall pay to the Bar Council such licence fee at such times and in such manner as may be prescribed.
(5) The Bar Council may, by notice in writing:
(a) impose any new or additional conditions on the licence; or
(b) vary or revoke any conditions imposed on the licence.
(6) Th
40H PART IVA INTERNATIONAL PARTNERSHIP, QUALIFIED FOREIGN LAW FIRMS AND REGISTRATION OF FOREIGN LAWYERS-40H. Employment of a foreign lawyer by a Malaysian law firm.
(1) A Malaysian law firm may apply to the Bar Council for a licence to employ a foreign lawyer to practise in the permitted practice areas in the Malaysian law firm if it satisfies such conditions as the Bar Council may think fit to impose in any particular case.
(2) Upon receiving the application, the Bar Council shall refer such application to the Selection Committee for consideration and recommendation.
(3) The Bar Council shall, upon the recommendation of the Selection Committee, grant or refuse an application made under subsection (1).
(4) Any Malaysian law firm which employs a foreign lawyer in contravention of this section shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit.
[Ins. by Act A1444 of the year 2012]
40I PART IVA INTERNATIONAL PARTNERSHIP, QUALIFIED FOREIGN LAW FIRMS AND REGISTRATION OF FOREIGN LAWYERS-40I. Suspension or revocation of licence.
(1) The Bar Council may, by notice in writing, suspend or revoke the licence granted under section 40F, 40G or 40H if the Bar Council is satisfied that there is sufficient reason for doing so.
(2) Without prejudice to the generality of subsection (1), a licence under this Part shall be suspended or revoked if:
(a) the appropriate licensing authority of a state or territory other than Malaysia suspends or revokes the licence of the constituent foreign law firm in the international partnership or the qualified foreign law firm as a result of criminal, civil or disciplinary proceedings;
(b) there is any change in respect of any information regarding the foreign law firm which was submitted for the purposes of obtaining the international partnership licence or the qualified foreign law firm licence including but not limited to:
(i) a change of any international partnership name wit
40J PART IVA INTERNATIONAL PARTNERSHIP, QUALIFIED FOREIGN LAW FIRMS AND REGISTRATION OF FOREIGN LAWYERS-40J. Registration of a foreign lawyer to practise in an international partnership, a qualified foreign law firm or a Malaysian law firm.
(1) A foreign lawyer shall not practise in an international partnership, a qualified foreign law firm or a Malaysian law firm, or in any other manner, unless he has been registered under this section.
(2) A foreign lawyer who satisfies such requirements as may be prescribed and wishes to practise in an international partnership, a qualified foreign law firm or a Malaysian law firm may apply to the Bar Council to be registered to practise in the permitted practice areas in an international partnership, a qualified foreign law firm or a Malaysian law firm.
(3) Upon receiving the application, the Bar Council shall refer such application to the Selection Committee for consideration and recommendation.
(4) The Bar Council shall, upon the recommendation of the Selection Committee, grant or refuse an application made under subsection (2).
(5) An application that has been granted under subsection (4) shall be subject to:
40K PART IVA INTERNATIONAL PARTNERSHIP, QUALIFIED FOREIGN LAW FIRMS AND REGISTRATION OF FOREIGN LAWYERS-40K. Suspension and revocation of registration.
(1) The Bar Council may, by notice in writing, suspend or revoke the registration of a foreign lawyer under section 40J if the Bar Council is satisfied that there is sufficient reason for doing so.
(2) Without prejudice to the generality of subsection (1), the registration of a foreign lawyer under this Part shall be suspended or revoked if:
(a) the international partnership licence or qualified foreign law firm licence issued in respect of the international partnership or qualified foreign law firm, as the case may be, is suspended or revoked under section 40I;
(b) the foreign lawyer is in breach of any provision relating to his work permit or any relevant immigration laws in Malaysia;
(c) the foreign lawyer employed in a Malaysian law firm is no longer duly authorized or registered to practise law in a state or territory other than Malaysia as a result of criminal, civil or disci
40L PART IVA INTERNATIONAL PARTNERSHIP, QUALIFIED FOREIGN LAW FIRMS AND REGISTRATION OF FOREIGN LAWYERS-40L. Professional conduct, ethics and accounts.
(1) International partnerships, qualified foreign law firms and registered foreign lawyers shall comply with such laws, rulings and directives applicable to advocates and solicitors under this Act relating to professional conduct or ethics.
(2) Section 79 and any rules made thereunder shall apply to a foreign lawyer registered under section 40J with such modifications as may be prescribed by the Bar Council.
(3) For the avoidance of doubt, nothing in this Part shall affect any solicitor-client privilege that may exist independently of this Part.
[Ins. by Act A1444 of the year 2012]
40M PART IVA INTERNATIONAL PARTNERSHIP, QUALIFIED FOREIGN LAW FIRMS AND REGISTRATION OF FOREIGN LAWYERS-40M. Disciplinary authority.
A registered foreign lawyer and a foreign lawyer falling within the exception provided under subsection 37(2B) shall adhere to all the rules and rulings of the Bar Council and shall be subject to, for the purposes of all disciplinary actions, the control of the Disciplinary Board.
[Ins. by Act A1444 of the year 2012; Subs. by Act A1455 of the year 2013]
40N PART IVA INTERNATIONAL PARTNERSHIP, QUALIFIED FOREIGN LAW FIRMS AND REGISTRATION OF FOREIGN LAWYERS-40N. Power to require documents, etc.
The Bar Council may require any international partnership, qualified foreign law firm, Malaysian law firm or foreign lawyer to provide the Bar Council with such documents, particulars or information as the Bar Council considers necessary for the purpose of ascertaining compliance of this Part.
[Ins. by Act A1444 of the year 2012]
40O PART IVA INTERNATIONAL PARTNERSHIP, QUALIFIED FOREIGN LAW FIRMS AND REGISTRATION OF FOREIGN LAWYERS-40O. Power to make rules.
The Bar Council may, with the approval of the Attorney General, make rules to provide for:
(a) the conditions and criteria for the granting of international partnership licences, qualified foreign law firm licences or licences under section 40H and for the registration of foreign lawyers under section 40J;
(b) the manner and means of application and the information and documents to be furnished for the application of international partnership and qualified foreign law firm licences and licences under section 40H, including but not limited to the forms, proceedings, fees, information and documents in connection therewith;
(c) the conditions relating to qualifying legal skills, experience and expertise required under this Part;
(d) the manner and means of application for registration of foreign lawyers including but not limited to the forms, proceedings, fees, information an
41 PART V MALAYSIAN BAR-41. Establishment of Malaysian Bar.
(1) There is established a body corporate to be called the "Malaysian Bar".
(2) The Malaysian Bar shall be a body corporate with perpetual succession and a common seal, and with power subject to this Act to sue and 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 may by law perform.
42 PART V MALAYSIAN BAR-42. Object and powers of the Bar.
(1) The purpose of the Malaysian Bar shall be:
(a) to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour;
(b) to maintain and improve the standards of conduct and learning of the legal profession in Malaysia;
(c) to facilitate the acquisition of legal knowledge by members of the legal profession and others;
(d) where requested so to do, to express its view on matters affecting legislation and the administration and practice of the law in Malaysia;
[Subs. by Act A567: s.23]
(e) to represent, protect and assist members or of the legal profession in Malaysia and to promote in any proper manner the interests of the legal profession in Malaysia;
(f) to establish libraries and to acquire or rent premises to house the libraries and offices of the Ma
43 Members of the Malaysian Bar and Subscriptions-43. Advocate and solicitors members of the Bar.
Every advocate and solicitor shall without election, admission or appointment become a member of the Malaysian Bar and shall remain a member under this section so long as he has a valid practising certificate.
44 Members of the Malaysian Bar and Subscriptions-44. Eligibility of a member.
All members who are not in arrears with their subscription under section 46 shall be eligible:
(a) to attend and vote at any general meeting;
(b) subject to section 46A, to be elected to the Bar Council; and
[Ins. by Act A419: s.3]
(c) to vote on the election of members to the Bar Council.
45 Members of the Malaysian Bar and Subscriptions-45. Disqualification of a member.
Any member of the Malaysian Bar on ceasing to be qualified for membership shall thereupon cease to be a member.
46 Members of the Malaysian Bar and Subscriptions-46. Annual subscription.
(1) The amount of the annual subscription to be paid by members of the Malaysian Bar shall, subject to subsections (4) and (5), be fixed from time to time by the Bar Council.
(2) In fixing the amount of its subscription, the Bar Council shall be at liberty to divide members into classes, and to provide that different amounts shall be paid by different classes and for different periods and generally to regulate and to vary from time to time the subscriptions payable by members or by different classes of members, as the Bar Council may think fair and reasonable.
(3) The Bar Council may from time to time fix levies payable by members for any of the purposes of the Malaysian Bar.
(4) The total of the subscriptions payable under subsection (1), the levies payable under subsection (3) and the annual contribution payable under section 80 shall not in any calendar year exceed three hundred ringgit for each member without the approvaI of
46A Disqualification for Membership of Bar Council, Bar Committee, Etc-46A. Disqualification for membership of the Bar Council, a Bar Committee, or of any committee thereof.
(1) A person shall be disqualified for being a member of the Bar Council or a Bar Committee, or of any committee of the Bar Council or a Bar Committee:
(a) [Deleted by Act A1269: s.10] ;
(b) if he is a member of either House of Parliament, or of a State Legislative Assembly, or of any local authority; or
(c) if he holds any office in:
(i) any trade union; or
(ii) any political party; or
(iii) any other organization, body or group of persons whatsoever, whether or not it is established under any law, whether it is in Malaysia or outside Malaysia, which has objectives or carries on activities which can be construed as being political in nature, character or effect, or which is declared by the Attorney General by order published in the Gazette , to be an organization, body or group of persons which has such objectives or carries on such activities.
47 The Bar Council-47. Establishment of Bar Council.
(1) For the proper management of the affairs of the Malaysian Bar and for the proper performance of its functions under this Act there shall be a Council to be known as the Bar Council.
(2) The Bar Council shall consist of the following:
(a) the immediate past President and Vice-President of the Malaysian Bar;
(b) the chairman of each State Bar Committee and the members elected to represent each State Bar Committee pursuant to section 70(7);
[Subs. by Act A567: s.25]
(c) members elected pursuant to section 50.
48 The Bar Council-48. Period of holding office.
Subject to this Act, every member of the Bar Council shall hold office for one year but shall be eligible for re-election.
49 Election of Members of The Bar Council-49. Election of Bar Council Members.
(1) Every year at least one week before the month of October the Bar Council shall inform all members of the Malaysian Bar that nominations for the election of the members of the Bar Council referred to in section 47(3) (c) may be made and must reach the office of the Malaysian Bar during the month of October.
(2) Every nomination of a candidate for election:
(a) shall be of a person qualified to be a candidate under this Act;
(b) shall be in writing signed by not less than three members;
(c) shall name only one candidate and his consent shall be endorsed thereon.
(3) The names of candidates for election nominated in accordance with subsection (1) shall be sent to or deposited at the office of the Malaysian Bar in the month of October in each year.
50 Election of Members of The Bar Council-50. Annual Election of Bar Council.
(1) The annual election of members of the Bar Council referred to in section 47(2) (c) shall, subject to section 51, be by postal ballot.
(2) The Bar Council shall fix and publish during the first week of November in every year and notify every member of the Malaysian Bar by letter of:
(a) the names of the candidates nominated for election in accordance with section 49;
[Am. by Act A567: s.26]
(b) the number of persons for whom each member is entitled to vote;
(c) the last day for the return of the postal ballot which shall be the last day of November;
(d) the address to which the postal ballot shall be returned;
(e) the names of three scrutineers.
(3) The Bar Council shall at the same time also forward to every member a ballot paper containing the names of all the candidates nominated un
51 Election of Members of The Bar Council-51. When election deemed to be election.
(1) If only so many candidates are nominated for election to the Bar Council as are required to be elected, those candidates shall be deemed to be elected; if fewer, the candidates nominated shall be deemed to have been elected and they together with the other members of the Council shall appoint such further members as may be necessary to satisfy the requirements of subsection (2) (c) of section 47.
(2) If no nominations are made for the election of members of the Bar Council the other members of the Bar Council shall appoint as members of the Council twelve persons qualified to be candidates under this Act.
(3) Members of the Council appointed under subsections (1) and (2) shall, for the purposes of this Act, be deemed to be elected members.
52 Election of Members of The Bar Council-52. Bar Council when constituted.
Every in-coming Bar Council constituted under this Part shall take office on the conclusion of the annual general meeting next following and shall hold office until the conclusion of the annual general meeting in the following year.
53 Election of Members of The Bar Council-53. Casual vacancy to be filled by qualified person.
(1) Any casual vacancy arising amongst the elected members of the Bar Council shall be filled by the Bar Council by the appointment of a person qualified under this Act, and the new member shall hold office for the remainder of the term of office of the member he replaces.
(2) Notwithstanding any vacancy in the Council the continuing members of the Council may act if there is a quorum; and no act done by or under the authority of the Bar Council shall be invalid in consequence of any defect subsequently discovered in the election or qualification of the members or any of them.
54 Officers-54. President, Vice-President and Secretary of the Bar.
(1) There shall be a President, a Vice-President and a Secretary of the Malaysian Bar to be elected by the Bar Council from amongst its members; but no President, Vice-President or Secretary shall hold office for more than two consecutive years, and in the event of any casual vacancy arising in respect of the office of the President, the Vice-President or the Secretary of the Malaysian Bar, the Bar Council shall at its next meeting or as soon as may be thereafter elect one of its members to fill the vacancy.
(2) The President or in his absence the Vice-President shall be the Chairman of the Bar Council and shall preside at all meetings of the Bar Council and of the Malaysian Bar.
(3) In the absence of both the President and the Vice-President, the Bar Council shall elect a Chairman from amongst its members.
[Am. by Act A567: s.27]
55 Officers-55. When a member of the Council to vacate office.
A member of the Bar Council shall vacate his office if:
(a) he is struck off the Roll or is suspended from practising as an advocate and solicitor; or
(b) he becomes bankrupt or insolvent or enters into composition with any creditor or takes or attempts to take the benefit of any written law to liquidate his assets or affairs; or
(c) he becomes of unsound mind; or
(d) he resigns his seat on the Council; or
(e) he is absent from three consecutive meetings of the Bar Council without reasonable cause and the Bar Council resolves that he be removed from office.
56 Powers of the Council-56. Powers and acts of Bar Council.
The management of the Malaysian Bar and of its funds shall be vested in the Bar Council; and all the powers, acts or things which are not by this Act expressly authorised, directed or required to be exercised or done by the Malaysian Bar in general meeting may, subject to this Act or any rules made thereunder or any resolution passed from time to time by the Malaysian Bar in general meeting, be exercised or done by the Bar Council:
Provided that no such resolution of the Malaysian Bar shall invalidate the previous exercise of any powers or the previous doing of any act or thing by the Bar Council which would have been valid if the resolution had not been passed.
57 Powers of the Council-57. Specific powers of the Bar Council.
Without prejudice to the general powers conferred by section 56 or the specific powers to make rules conferred by any other provisions of this Act the Bar Council shall have power:
(a) to make rules to provide for all matters not expressly reserved to the Malaysian Bar in general meeting whether the same be expressed amongst its powers or not;
(b) to answer questions affecting the practice and etiquette of the profession and the conduct of members;
(c) to take cognizance of anything affecting the Malaysian Bar or the professional conduct of its members and to bring before any general meeting of the Malaysian Bar any matter which it considers material to the Malaysian Bar or to the interests of the profession and to make any recommendations and take any action as it considers fit in relation thereto;
(d) to examine and if it considers fit to report upon current or proposed
58 Powers of the Council-58. Appointment of Committees.
(1) The Bar Council may appoint one or more committees for any general or special purpose as in the opinion of the Bar Council may be better regulated or managed by means of a committee and the Bar Council may delegate to any committee so appointed, with or without restrictions or conditions, the exercise of any functions of the Bar Council.
(2) The number and term of office of the members of a committee appointed under this section, and the number of these members necessary to form a quorum, shall be fixed by the Bar Council and unless so fixed shall not be less than three.
(3) A committee appointed under this section may include persons who are not members of the Bar Council.
(4) The Bar Council shall not delegate to a committee appointed under this section any of its functions unless at least two thirds of the members of the committee (including the Chairman thereof) are members of the Council.
59 Powers of the Council-59. Rights to inspect file and copies of proceedings in bankruptcy.
The Bar Council shall be entitled, without payment of any fee, to inspect the file of proceedings in bankruptcy relating to any advocate and solicitor against whom proceedings in bankruptcy have been taken, and to be supplied with office or certified copies of the proceedings on payment of the usual charge for such copies.
60 Powers of the Council-60. Power of Bar Council to accept gifts.
(1) The Bar Council may on behalf of the Malaysian Bar accept by way of grant, gift, testamentary disposition or otherwise property or moneys in aid of the finances or purposes of the Malaysian Bar on such conditions as the Bar Council may determine.
(2) Registers shall be kept of all donations to the Malaysian Bar including the names of donors and any special conditions on which any donation has been given.
(3) All property, moneys or funds donated to the Malaysian Bar for any specific purposes shall, subject to the law relating to charities, be applied and administered in accordance with the purposes for which they have been donated and shall be separately accounted for.
61 Powers of the Council-61. Representative in court.
The Malaysian Bar may be represented or appear in any court by any advocate and solicitor whether he is a member of the Bar Council or not.
62 Proceedings of The Bar Council-62. Meeting of the Council.
(1) The Bar Council may decide to call a meeting at any time and place and as often as may be necessary, and the Chairman of the Bar Council may on his own or at the request in writing of not less than one half of its members call an emergency meeting of the Bar Council to consider any urgent matter.
(2) Nine members personally present at any meeting of the Bar Council shall constitute a quorum for the transaction of any business.
(3) A decision of the majority of the members of the Bar Council present and voting at any meeting of the Bar Council shall be deemed to be a decision of the Bar Council.
(4) At any meeting of the Bar Council the Chairman shall have a casting vote.
[Subs. by Act A567: s.29]
(5) Subject to any rules of the Malaysian Bar, the Bar Council may regulate its own proceedings and in particular the holding of meetings, the notice to be given of any meetings, the proceeding
63 Proceedings of The Bar Council-63. Expenses of Members.
No fees shall be paid to any member of the Bar Council but a member may be reimbursed from the funds of the Malaysian Bar for travelling expenses incurred by him in relation to the affairs of the Malaysian Bar.
64 General Meeting of the Malaysian Bar-64. Annual General Meetings.
(1) The Bar Council shall each year convene an annual general meeting of the Malaysian Bar to be held before the first day of April.
[Am. by Act A567: s.30]
(2) The Bar Council shall cause to be prepared and presented to the annual general meeting:
(a) a report on the activities of the Malaysian Bar during its term of office; and
[Am. by Act A567: s.30]
(b) proper accounts, duly audited, of all funds, property and assets of the Malaysian Bar for the twelve months ending on the 31 day of December immediately preceding such annual general meeting.
[Am. by Act A1269: s.11]
(3) Notice of an annual general meeting of the Malaysian Bar shall be sent to members, in such manner as the Bar Council may determine, not less than fourteen days before the date of the meeting:
Provided that t
65 General Meeting of the Malaysian Bar-65. Extraordinary General Meeting.
[Am. by Act A1269: s.12]
(1) The Bar Council may convene a general meeting of the Malaysian Bar other than the annual general meeting at any time the Bar Council considers it necessary or expedient and such meeting shall be known as an extraordinary general meeting;
[Am. by Act A1269: s.12; Act A567: s.31]
(2) Any one hundred and fifty members of the Malaysian Bar may at any time requisition an extraordinary general meeting by written notice in that behalf signed by them and served on the President, Vice-President or the Secretary of the Malaysian Bar; and the Bar Council shall convene an extraordinary general meeting to be held within thirty days of such service.
[Am. by Act A1269: s.12; Act A567: s.31]
(3) The written notice shall specify the object or objects of the proposed extraordinary general meeting.
[Am. by Act
66 General Meeting of the Malaysian Bar-66. Voting.
At every annual general meeting and extraordinary general meeting, every member present shall have one vote and where there is an equality of votes the Chairman of that meeting shall have a casting vote.
[Am. by Act A1269: s.13]
67 General Meeting of the Malaysian Bar-67. [Deleted by Act A1269].
[Deleted by Act A1269] .
68 State Bar Committee-68. Combined Bar - State Bar Committee.
(1) In this Part:
"combined Bar" means a State Bar which combines all the members in any two or more States and recognized as such under section 69. (2) For the purpose of this Part, a member of the State Bar is deemed to be practising in a State if he ordinarily practises in that State. The opinion of the State Bar Committee shall be prima facie evidence that the member ordinarily practises in the State.
(3) A member may ordinarily practise in more than one State and all members practising in the Federal Territory shall be deemed to be members of the Selangor State Bar.
(4) Members practising in the Federal Territory of Kuala Lumpur shall be entitled to establish a separate bar for the Federal Territory of Kuala Lumpur to be known as the Kuala Lumpur Bar. The decision to have a separate bar shall be made by a majority vote of the members present at a
69 State Bar Committee-69. Combination of members as State Bar.
The combination of any ten or more members in a State or of any ten or more members in two or more States for the purposes of Part IV of the Ordinance shall be recognised as a State Bar for the purposes of this Act provided that not less than ten of the members representing the State Bar have been practising in the relevant State or States for the whole of the period of the twelve months immediately before the coming into operation of this Act.
70 State Bar Committee-70. Annual General Meeting of State Bar.
[Am. by Act A567: s.33]
(1) The Secretary of each State Bar shall, before the first day of February in each year, summon all members of the State Bar to an annual general meeting to be held in the month of February at a time and place to be fixed by him. Only members of the State Bar shall be entitled to attend and vote at the meeting.
[Am. by Act A1269: s.15; Act A567: s.33]
(1A) The State Bar Committee shall cause to be prepared and presented to the annual general meeting:
[Am. by Act A1269: s.15]
(a) a report on the activities of the State Bar during its term of office; and
(b) proper accounts, duly audited, of all funds, property and assets of the State Bar for the twelve months ending on the 31st day of December immediately preceding such general meeting.
[Ins. b
70A State Bar Committee-70A. Extraordinary General Meeting of State Bar.
[Am. by Act A1269: s.16]
(1) Every State Bar Committee may convene a general meeting of the State Bar other than the annual general meeting at any time the the State Bar Committee considers it necessary or expedient; and such meeting shall be known as an extraordinary general meeting.
[Am. by Act A1269: s.16]
(2) The quorum for an extraordinary general meeting convened under this section shall be five percent of the total number of members of the State Bar as at the date of the notice convening the meeting; and no business shall be transacted at any extraordinary general meeting unless a quorum is present when the meeting proceeds to business.
[Subs. by Act A1269: s.16]
(3) Any ten members of the State Bar or two percent of the members of the State Bar whichever shall be the greater may at any time requisition an extraordinary general meeting by
71 State Bar Committee-71. Severance of combined Bar.
(1) Where the number of members in each of the States forming a combined Bar exceeds ten, the members of the Bar of a State may, at any general meeting called for the purpose, pass by a majority of the members present and voting a resolution that such combined Bar be severed.
(2) One month after the passing of such resolution, the combined Bar shall be severed, and the members in each of the States forming the combined Bar shall thereafter form a separate State Bar.
(3) The chairman of the meeting referred to in subsection (1) shall report the passing of any resolution to the Registrar and to the Bar Council.
(4) Where the number of members in one of the State forming a combined Bar does not exceed ten, the members of the Bar of that state may sever themselves from the members of the Bar of the other State if:
(a) the number of members in the other State exceeds ten; and
[A
72 State Bar Committee-72. Meeting of the State Bar Committee.
(1) Each State Bar Committee shall meet at such time and place as the Chairman may appoint.
(2) Each State Bar Committee shall regulate its proceedings in any manner that it considers fit; except that the quorum shall not be less than three members personally present:
Provided that a resolution circulated and signed by not less than three members or all the members present in Malaysia whichever is the greater at the date of the passing of the resolution shall be deemed to have been passed at a properly constituted meeting of the State Bar Committee.
73 State Bar Committee-73. Powers of the State Bar Committee.
Each State Bar Committee shall have the following powers:
(i) to levy subscriptions from its members of an amount not exceeding in any one year one hundred ringgit from each member unless it has been agreed to by the State Bar Committee at its annual general meeting that the subscription shall be in excess of one hundred ringgit; and subscriptions shall be payable in each year to the appropriate State Bar Committee by each advocate and solicitor by the 30 day of June;
[Am. by Act A567: s.36]
(ii) to promote and safeguard the interests of advocates and solicitors who are members of the State Bar;
(iii) to make appropriate representations to the Malaysian Bar upon matters concerning the State Bar;
(iv) to entertain and deal with such matters as may from time to time be referred to it either generally or specifically by the Bar Council or the State Bar in general meeting;
74 State Bar Committee-74. Fees not allowed to State Bar Committee.
No fees shall be paid to any member of a State Bar Committee, except for any travelling expenses incurred by any member of the State Bar Committee. Such expenses may with the approval of the State Bar Committee, be reimbursed to the member from the funds of that Committee.
75 State Bar Committee-75. Casual vacancy.
(1) Any casual vacancy in a State Bar Committee shall be filled by the continuing members of the State Bar Committee by the appointment of a member of the State Bar concerned and any member so appointed shall hold office for the remainder of the term of office of the member he replaces.
(2) Notwithstanding any vacancy in the State Bar Committee the continuing members of the Committee may act if there is a quorum; and no act done by or under the authority of the State Bar Committee shall be invalid in consequence of any defect subsequently discovered in the election or qualification of the members or any of them.
76 General-76. Names of members of the Bar Council, etc, to be published and confidentiality of deliberations.
[Am. by Act A1444 of the year 2012; Act A1269: s.18]
(1) The names of the members of the Bar Council and of the Secretary of the Malaysian Bar and of the Chairman and members of the State Bar Committees and of the Secretaries appointed by them including that of any persons appointed to fill any vacancies shall be published in the Gazette .
(2) Except and in so far as may be necessary for the purpose of publishing a report or giving effect to any resolution passed or decision taken, confidentiality of deliberations at all meetings, proceedings or inquiries of the Board, the Bar Council, the State Bar Committee, the Disciplinary Board and the Disciplinary Committee and in respect of all documents pertaining to the deliberative process shall be maintained by the members of the Board, the Bar Council, the State Bar Committee, the Disciplinary Board and the Disciplinary Committee and by their staff.
77 PART VI PROFESSIONAL PRACTICE, ETIQUETTE, CONDUCT AND DISCIPLINE OF ADVOCATE AND SOLICITOR AND CLERKS-77. Power to make rules regulating practice, etc.
(1) Without prejudice to any other power to make rules provided under this Act, the Bar Council may, with the approval of the Attorney General make rules for regulating the professional practice, etiquette, conduct and discipline of advocates and solicitors.
[Am. by Act A567: s.38]
(2) Any rules made pursuant to this section shall not come into operation until they have been published in the Gazette .
(3) Any advocate and solicitor who fails to comply with any rules made under this section may be liable to disciplinary proceedings.
(4) The Attorney General may, by order published in the Gazette , make such modifications as he deems necessary to any rules made and published under this section before the coming into operation of this subsection.
[Ins. by Act A567: s.38]
* [Legal Profession (Practise & Etiquette) Rules 1978]
78 PART VI PROFESSIONAL PRACTICE, ETIQUETTE, CONDUCT AND DISCIPLINE OF ADVOCATE AND SOLICITOR AND CLERKS-78. Power to make particular rules.
(1) The Bar Council shall make rules+:
(a) providing for the opening and keeping by advocates and solicitors of accounts at banks for clients' moneys;
[Am. by Act A567: s.39]
(b) providing for the keeping by advocates and solicitors of accounts containing particulars and information as to moneys received, held or paid by them for or on account of their clients; and
[Am. by Act A567: s.39]
(c) empowering the Bar Council to take such action as may be necessary to enable it to ascertain whether or not the rules are being complied with.
(2) The Bar Council shall also make rules:
(a) providing for the opening and keeping by every advocate and solicitor who is a sole trustee, or who is co-trustee with one or more of his partners, clerks or servants, of an account at a bank for moneys
78A PART VI PROFESSIONAL PRACTICE, ETIQUETTE, CONDUCT AND DISCIPLINE OF ADVOCATE AND SOLICITOR AND CLERKS-78A. Power to make rules on professional indemnity.
(1) The Bar Council may, with the approval of the Attorney General, make rules concerning the taking out of professional indemnity for advocates and solicitors against any class of professional liability and the rules may for the purpose of providing such indemnity do all or any of the following:
(a) authorize the Bar Council to take out and maintain insurance in the name of the Malaysian Bar with any person permitted by law to carry on professional liability insurance business or pecuniary loss insurance business and covering every practising advocate and solicitor;
(b) authorize the Bar Council to establish and maintain a fund or funds for the aforesaid purpose; or
(c) require advocates and solicitors to take out and maintain insurance.
(2) Without prejudice to the generality of subsection (1), rules made under this section may:
(a) specify the terms and conditio
79 PART VI PROFESSIONAL PRACTICE, ETIQUETTE, CONDUCT AND DISCIPLINE OF ADVOCATE AND SOLICITOR AND CLERKS-79. Advocate and solicitor to deliver accountant's report.
(1) Every advocate and solicitor shall, unless exempted by the Bar Council, deliver to the Secretary of the Malaysian Bar with every application made by him for a Sijil Annual a report signed by an accountant, referred to as an "accountant's report" in this section.
[Am. by Act A567: s.40]
(2) The accountant's report shall:
(a) state that the accountant in compliance with this section and any rules made thereunder has examined the books, accounts and documents of the firm of the advocate and solicitor for such accounting period as may be specified in the report;
(b) state whether or not the accountant is satisfied, from his examination of the books, accounts and documents produced to him and from the information and explanations given to him, that during the said accounting period of the advocate and solicitor or his firm has complied with any rules made under subsect
80 Compensation Fund-80. Compensation Fund.
(1) The Malaysian Bar shall maintain and administer in accordance with this section a fund to be known as the "Compensation Fund".
(2) Every advocate and solicitor shall on each occasion he applies for a Sijil Annual pay to the Malaysian Bar a contribution of such sum as the Bar Council may from time to time determine and the Malaysian Bar shall pay that contribution into the Fund:
Provided that an advocate and solicitor who applies for a Sijil Annual shall be required to pay only half the contribution so determined if the practising certificate for which he proposes to apply is valid for less than six months.
(3) The Malaysian Bar may invest any moneys out of the Fund which are not immediately required for any other purposes and, for the purposes of this section, the Malaysian Bar shall have all the powers of trustees under any written law.
(4) The Malaysian Bar may for the purposes of the Fund borrow from any lender an
81 Compensation Fund-81. Advocate and solicitor shall not act as commissioner or notary without certificate.
No advocate and solicitor who is a commissioner for oaths or a notary public shall do any act as such commissioner or notary, as the case may be, unless he has a valid practising certificate.
82 Compensation Fund-82. Advocate wilfully and knowingly acting as agent.
(1) No advocate and solicitor shall wilfully and knowingly act as agent in any legal proceedings of any kind or in any matter which under this Act can be done only by an advocate and solicitor who has a valid practising certificate for another advocate and solicitor who does not have a valid practising certificate or permit his name to be made use of in any such proceedings or matter on the account or for the profit of such other advocate and solicitor or send any process to such other advocate and solicitor or do any other act enabling such advocate and solicitor to appear, do, practise or purport to practise as an advocate and solicitor in any such proceedings or matter.
(2) No advocate and solicitor shall authorise any unauthorised person to operate any bank account in his name or in the name of his firm and maintained by him or his firm in connection with his practice as an advocate and solicitor.
(3) Any advocate and solicitor who
83 Compensation Fund-83. Advocate and solicitor not to employ undischarged bankrupt.
(1) No advocate and solicitor shall, in connection with his practice, without the consent of the court obtained on an application by originating summons served upon the Attorney General and upon the Malaysian Bar, employ or remunerate any person who to his knowledge is an undischarged bankrupt or has been:
(a) struck off the Roll otherwise than at his own request in any part of Malaysia or in Singapore or elsewhere and remains struck off;
(b) suspended from practising as an advocate and solicitor in any part of Malaysia or in Singapore or elsewhere and remains suspended;
(c) convicted of an offence involving dishonesty or fraud or has been found guilty of an offence under the Prevention of Corruption Act, 1961 [Act 57] ;
[Am. by Act A367: s.8]
(d) convicted of an offence under section 15A of the Minor Offences Act, 1955 [Act 336
84 Compensation Fund-84. Advocate and solicitor acting for developer not to act for purchaser in housing development.
(1) Where an advocate and solicitor acts for a housing developer in a sale of immovable property developed under a housing development neither he nor any member or assistant of the firm of which he is a member either as partner or employee shall in the same transaction act for the purchaser of that property, and a written agreement prepared by an advocate and solicitor or any member or assistant of the firm acting for the developer in respect of such transaction shall be scrutinised by an advocate and solicitor acting for the purchaser:
[Am. by Act A367: s.9]
Provided that if any such written agreement in respect of the transaction is not scrutinised by an advocate and solicitor acting for the purchaser, the advocate and solicitor acting for the housing developer shall obtain a certificate signed by the Purchaser showing that Purchaser does not intend to engage an advocate and solicitor to scrutinise the agreement
85 Compensation Fund-85. Bar Council to maintain register of firm names.
(1) The Bar Council shall maintain a register of firm names under which advocates and solicitors practise. No firm name shall be registered or struck off the register without a certificate from the Bar Council. The Bar Council may refuse a certificate for registration on the grounds that the proposed firm name is likely to be confused with a registered firm name or is likely to mislead the public. An advocate and solicitor who is dissatisfied with a decision of the Bar Council may appeal to the High Court whose decision shall be final.
[Am. by Act A567: s.42]
(2) No person shall practise as an advocate and solicitor under a name that is not:
[Am. by Act A567: s.42]
(a) his own name;
(b) the names of advocates and solicitors who are or were his partners;
[Am. by Act A567: s.42]
(c) the names
86 Compensation Fund-86. Where solicitor and client relationship exists.
(1) Where the relationship of advocate and solicitor and client exists, or has existed, a summons may be issued by the client or his representative for the delivery of a cash account, or the payment of moneys, or the delivery of securities.
(2) The Court or a Judge may order an advocate and solicitor to deliver to the applicant a list of the moneys or securities which he has in his custody or control on behalf of the applicant, or to bring into court the whole or any part of the same, within such time as the Court or Judge orders.
(3) In the event of the advocate and solicitor alleging that he has a claim for costs, the Court or Judge may make such provision for the payment thereof or security therefor or the protection of the advocate and solicitor's lien, if any, as the Court or Judge thinks fair and reasonable.
87 Compensation Fund-87. Where money is due from advocate and solicitor to the client.
(1) If, during the taxation of any bill of costs or the taking of any account between the advocate and solicitor and client, it appears to the Registrar that there are moneys due from an advocate and solicitor to the client, the Registrar may make an interim certificate as to the amount so payable by the advocate and solicitor.
(2) Upon the filing of such certificate the Court or a Judge may order the moneys so certified to be paid forthwith to the client or brought into court.
88 Control of Property-88. Guilty advocate and solicitor, etc.
(1) The Bar Council may if it has reasonable cause to believe that an advocate and solicitor, or a clerk or servant of an advocate and solicitor, has been guilty of dishonesty in connection with that advocate and solicitor's practice as an advocate and solicitor or in connection with any trust of which that advocate and solicitor is a trustee, issue a certificate to that effect and thereupon the Schedule, except paragraph 7 thereof, shall apply in relation to that advocate and solicitor.
[Subs. by Act A567: s.43]
(2) Where the name of an advocate and solicitor is removed from the Roll or an advocate and solicitor is suspended from practice, he shall, within twenty-one days from the material date, satisfy the Bar Council that he has made suitable arrangements for making available to his client or to some other advocate and solicitor or advocates and solicitors instructed by his client or by himself:
88A Control of Property-88A. Suspension of advocate and solicitor.
(1) Where an advocate and solicitor:
(a) has been found guilty by a court of law of any offence involving dishonesty, misuse of his client's moneys or dishonesty towards a client or in respect of any property belonging to a client;
(b) has been disbarred, struck off, suspended or censured in his capacity as a legal practitioner in any other country;
(c) in respect of whom a complaint has been made to the Bar Council concerning any dishonest act or acts committed by him in his capacity as an advocate and solicitor;
(d) has left the country or has not attended at his office in such circumstances that the Bar Council may reasonably presume that he has absconded; or
(e) is otherwise incapable, from infirmity of body or mind or any other cause, of effectively performing the functions of an advocate and solicitor;
and the Bar Council consid
89 Control of Property-89. Taking of possession of documents in the possession of advocate and solicitor.
(1) Where:
(a) a complaint is made to the Bar Council that there has been undue delay on the part of an advocate and solicitor in connection with any matter in which he or his firm has been instructed on behalf of a client or any matter which relates to the administration of a trust of which that advocate and solicitor is the sole trustee or co-trustee with one or more of this partners, clerks or servants;
(b) the Bar Council has by notice in writing invited the advocate and solicitor to give an explanation in respect of that matter;
(c) the advocate and solicitor has, within a period of not less than twenty-one days specified in the said notice, failed to give an explanation in respect of that matter which the Bar Council regard as sufficient and satisfactory; and
(d) the advocate and solicitor has been notified in writing by the Bar Council that he has so failed,
90 Control of Property-90. Taking of possession of property in Counsel's possession when he is undischarged bankrupt, etc.
(1) Where an advocate and solicitor practises in his own name or as a sole advocate and solicitor under a firm name and:
(a) is an undischarged bankrupt or a receiving order in bankruptcy is in force against him;
(b) has entered into a composition with his creditors or a deed of arrangement for the benefit of his creditors;
(c) has had an order of committal or an order for the issue of a writ of attachment made against him; or
(d) is a mentally disordered person or patient as defined by the Mental Disorder Ordinance 1952 [Ord. 31 of 1952] ,
and the Bar Council or State Bar Committee have reasonable cause to believe that in consequence of the act, default or disability of the advocate and solicitor or of any clerk or servant of his:
(i) there has been undue delay in connection with any matter in which the advocate and soli
91 Control of Property-91. Personal representative liable for acts of advocate and solicitor.
(1) Where:
(a) the Bar Council has reasonable cause to believe that the personal representatives of a deceased advocate and solicitor who immediately before his death was practising as an advocate and solicitor in his own name, or as a sole advocate and solicitor under a firm name, have been guilty of dishonesty or undue delay in administering the affairs of that advocate and solicitor's practice or in connection with any trust of which that advocate and solicitor was the sole trustee or co-trustee only with one or more of his clerks or servants; or
(b) an advocate and solicitor dies and immediately before his death the provisions of the Schedule applied to him,
the provisions of the Schedule, other than paragraph 7 thereof, shall apply in relation to the personal representatives and shall continue to apply to the personal representatives and shall continue to apply to the personal representatives
92 Control of Property-92. Bar Council to operate bank account of deceased solicitors' client.
On the death of an advocate and solicitor who immediately before his death was practising as an advocate and solicitor in his own name or as a sole advocate and solicitor in a firm name the right to operate, or otherwise deal with, any banking account in the name of the advocate and solicitor or his firm, being an account into which has been paid any clients' money, shall, notwithstanding anything to the contrary contained in this Act, vest in the Bar Council to the exclusion of any personal representatives of the advocate and solicitor and shall be exercisable as from the death of the advocate and solicitor.
[Am. by Act A567: s.45]
92A PART VII DISCIPLINARY PROCEEDINGS-92A. Interpretation of "advocate and solicitor" in certain provisions.
For the purposes of disciplinary proceedings under this Part, except under subsection 93(5), subsection 94(2), section 96 and paragraph 98(1) (a) , "advocate and solicitor" includes a foreign lawyer registered under section 40J;
[Ins. by Act A1444 of the year 2012]
93 PART VII DISCIPLINARY PROCEEDINGS-93. Disciplinary Board.
(1) For the purposes of disciplinary proceedings under this Part, there shall be established a
(2) The Disciplinary Board shall have the same powers as those exercised by the Bar Council before the coming into force of this Part.
(3) The Disciplinary Board shall consist of the following:
(a) the chairman of the Disciplinary Board appointed by the Chief Judge after consultation with the Bar Council for a term of two years and such person shall be a retired Judge of the High Court or the Court of Appeal or the Federal Court or any other person who is qualified to be a Judge of the High Court or the Court of Appeal or the Federal Court:
Provided that the Chief Judge may, after consultation with the Bar Council, extend such term of appointment for another two years and may reappoint for another period not exceeding two years
[(3)(a) Subs. by Act A1444 of the year 2012]
94 PART VII DISCIPLINARY PROCEEDINGS-94. Power of Disciplinary Board to strike off the Roll, suspend for misconduct, etc.
(1) All advocates and solicitors shall be subject for the purposes of all disciplinary actions to the control of the Disciplinary Board.
(2) Any advocate and solicitor who has been guilty of any misconduct shall be liable to one or more of the following penalties or punishments:
(a) to be struck off the Roll;
(b) to be suspended from practice for any period not exceeding five years;
(c) to be ordered to pay a fine not exceeding fifty thousand ringgit; or
(d) to be reprimanded or censured.
[(2) Subs. by Act A1444 of the year 2012]
(3) For the purposes of this Part, "misconduct" means 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:
(a)
95 PART VII DISCIPLINARY PROCEEDINGS-95. Disciplinary Committee Panel.
[Am. by Act A1269: s.21]
For the purposes of disciplinary proceedings under this Part, there shall be established a Disciplinary Committee Panel with a Disciplinary Committee established under it.
[Am. by Act A1269: s.21; Subs. by Act A812: s.11]
96 PART VII DISCIPLINARY PROCEEDINGS-96. Appointment of Disciplinary Committee Panel.
(1) The Disciplinary Board shall, from time to time as may be required, appoint a Disciplinary Committee Panel, from a list supplied by the Bar Council, comprising thirty members of whom twenty members shall be advocates and solicitors of not less than ten years' standing and having valid practising certificates and ten members who are lay persons:
[Am. by Act A861: s.2]
Provided that the Disciplinary Board may, whenever it deems it necessary or expedient, and after consulting the Bar Council, vary the number of members of the Disciplinary Committee Panel. Any variation of the number of members shall be in the same proportion of advocates and solicitors and lay persons as described above.
[Ins. by Act A861: s.2]
(2) Every member of the Disciplinary Committee Panel shall serve for two years:
Provided that the Disciplinary Board may extend his term for a period not exce
97 PART VII DISCIPLINARY PROCEEDINGS-97. [Deleted by Act A1269: s.22].
[Deleted by Act A1269: s.22] .
98 PART VII DISCIPLINARY PROCEEDINGS-98. Director and staff of the Complaints Secretariat.
[Subs. by Act A1269: s.23]
(1) The Bar Council shall, from time to time as may be required, appoint:
(a) an advocate and solicitor:
(i) of not less than five years' standing; or
(ii) of not less than three years' standing and who has, in addition, worked with the Bar Council or the Disciplinary Board for not less than two years, to the office of the Director of Complaints Secretariat; and
(b) such number of staff to assist the Director.
[Subs. by Act A1269: s.23]
(2) The Director shall serve as the Secretary to the Disciplinary Board.
[Am. by Act A1269: s.23]
(3) The Bar Council shall be responsible for the remuneration of the Director and the staff and shall have the power to revoke their appointments.
[Am. by Act A1
99 PART VII DISCIPLINARY PROCEEDINGS-99. Complaint against advocate and solicitor or pupil.
(1) Any complaint concerning the conduct of any advocate and solicitor or of any pupil shall be in writing and shall in the first place be made or referred to the Disciplinary Board which shall deal with such complaint in accordance with such rules as may from time to time be made under the provisions of this Part.
(2) Any court including the Industrial Court and a Syariah Court, Judge, Sessions Court Judge or Magistrate or the Attorney General may at any time refer to the Disciplinary Board any complaint against an advocate and solicitor or a pupil.
[Subs. by Act A1269: s.24]
(3) Nothing in this section shall be taken to preclude the Bar Council or a State Bar Committee from making any complaint of its own motion to the Disciplinary Board against an advocate and solicitor or a pupil.
[Subs. by Act A812: s.11]
(3A) No complaint concerning the conduct of any advocate a
100 PART VII DISCIPLINARY PROCEEDINGS-100. Inquiry into application or complaint.
(1) Where a written application or complaint is made or referred to the Disciplinary Board, the Disciplinary Board shall, if it is satisfied that:
(a) there is no merit in the application or complaint, dismiss the application or complaint and notify the complainant and the advocate and solicitor of its decision; or
(b) there is merit in the application or complaint:
(i) post or deliver to the advocate and solicitor concerned a copy of the application or complaint together with all supporting documents, if any, furnished to the Disciplinary Board; and
(ii) request the advocate and solicitor to furnish his written explanation in quadruplicate together with supporting documents, if any, within fourteen days of the request or within such longer time as the Disciplinary Board may allow.
(2) Where the advocate and solicitor does not furnish his wri
101 PART VII DISCIPLINARY PROCEEDINGS-101. [Deleted by Act A1269: s.26].
[Deleted by Act A1269: s.26] .
102 PART VII DISCIPLINARY PROCEEDINGS-102. [Deleted by Act A1269: s.27].
[Deleted by Act A1269: s.27] .
103 PART VII DISCIPLINARY PROCEEDINGS-103. Effect of Disciplinary Board's order of fine or restitution.
[Am. by Act A1444 of the year 2012; Act A1269: s.28]
(1) Where the Disciplinary Board has ordered a fine to be paid by an advocate and solicitor or has ordered a restitution to be made by an advocate and solicitor, such fine shall be paid orsuch restitution shall be made within one month from the date of the order or such further date as the Disciplinary Board may allow, and in default thereof the Disciplinary Board may order suspension of the advocate and solicitor from practice until the payment of such fine or sum to be restituted or if the advocate and solicitor is currently not in possession of a practicing certificate, order that no Sijil Annual shall be issued to him until payment of the fine or sum to be restituted is made or in the case of a foreign lawyer, recommend to the Bar Council to suspend his registration until the payment of such fine or sum to be restituted is made.
[(1) Subs.
103A PART VII DISCIPLINARY PROCEEDINGS-103A. Appointment of Disciplinary Committee.
(1) Where:
(a) the Disciplinary Board determines that a Disciplinary Committee ought to be appointed;
[(1)(a) Subs. by Act A1444 of the year 2012]
(b) an advocate and solicitor has been convicted of an offence of criminal breach of trust under section 409 of the Penal Code [Act 574] or any other offence involving fraud or dishonesty; or
(c) the advocate and solicitor has been suspended under subsection 94(4),
the Disciplinary Board shall, as soon as may be practicable, appoint a Disciplinary Committee.
[Am. by Act A1444 of the year 2012]
(2) A Disciplinary Committee shall consist of three members of whom shall be:
(a) two advocates and solicitors; and
(b) one lay person,
appointed from the Disciplinary Committee Panel.
(3)
103B PART VII DISCIPLINARY PROCEEDINGS-103B. Inquiry by the Disciplinary Committee.
[Am. by Act A1444 of the year 2012; Subs. by Act A1269: s.30]
(1) The Disciplinary Committee shall, within one month of its appointment, commence its inquiry into the written application or complaint and shall make its findings expeditiously.
[(1) Subs. by Act A1444 of the year 2012]
(1A) The Disciplinary Committee shall keep a note of the proceedings of the inquiry and submit the findings and the notes of the proceedings to the Disciplinary Board.
[(1A) Ins. by Act A1444 of the year 2012]
(2) For the purposes of any inquiry under subsection (1) the Disciplinary Committee may:
(a) require the production for inspection by the Disciplinary Committee of any book, document or paper which may relate to or be connected with the subject matter of the inquiry and may require any person to give information in relation to suc
103C PART VII DISCIPLINARY PROCEEDINGS-103C. Findings and recommendations of the Disciplinary Committee.
[Am. by Act A1444 of the year 2012; Act A1269: s.31]
(1) Upon conclusion of the inquiry, a Disciplinary Committee shall record its findings in relation to the facts of the case and according to those facts shall determine and make any one of the following recommendations to the Disciplinary Board:
(a) that no cause for disciplinary action exists and that the application or complaint be dismissed;
[(1) & (1)(a) Am.Act A1444 of the year 2012]
(b) that cause for disciplinary action exists but is not of sufficient gravity to warrant any punishment other than a reprimand or censure or that the circumstances are such that the advocate and solicitor should only be reprimanded or censured; or
(c) that cause for disciplinary action exists and is of sufficient gravity to warrant the advocate and solicitor to be subject to one or more of t
103D PART VII DISCIPLINARY PROCEEDINGS-103D. Consideration by the Disciplinary Board of the report of the Disciplinary Committee.
(1) After consideration of the report of the Disciplinary Committee, the Disciplinary Board may make an order affirming or rejecting the finding or recommendation of the Disciplinary Committee and if the Disciplinary Board rejects the finding or recommendation of the Disciplinary Committee, the Disciplinary Board shall record the reason for the rejection;
[(1) Subs. by Act A1444 of the year 2012]
(2) The Disciplinary Board may in appropriate cases impose a greater or lesser penalty or punishment than that recommended by the Disciplinary Committee.
[(2) Am. by Act A1444 of the year 2012]
(3) Where the Disciplinary Board does not agree with the finding or recommendation of the Disciplinary Committee, the Disciplinary Board shall make such other order as it deems just.
(4) Before the Disciplinary Board makes an order that is likely to be adverse against an advocate and s
103E PART VII DISCIPLINARY PROCEEDINGS-103E. Appeal from the final order or decision of the Disciplinary Board.
(1) Any party aggrieved by any final order or decision made by the Disciplinary Board:
(a) pursuant to subsection 94(4);
(b) under paragraph 100(1)(a), (3)(a) or subsection 100(7), (8) or (15); or
[Am. Act A1509:s.2]
(c) under section 103D,
shall have the right to appeal to the High Court within one month of the receipt of the notification of that order or decision;
[(1) Subs. by Act A1444 of the year 2012]
(2) [Deleted by Act A1444 of the year 2012]
(3) [Deleted by Act A1444 of the year 2012]
(4) The appeal shall be by way of an originating motion setting out the ground of appeal supported by affidavit.
(5) Any appeal against the decision of the High Court shall lie to the Court of Appeal and thereafter to the Federal Court.
(6) The Bar Council ma
103EA PART VII DISCIPLINARY PROCEEDINGS-103EA. Objection from any decision, etc., other than final order or decision made by the Disciplinary Board.
(1) Where a party is aggrieved by any decision, order, ruling or direction of the Disciplinary Committee or the Disciplinary Board, other than a final order or decision made by the Disciplinary Board referred to in section 103E, the aggrieved party may file an objection in writing in respect of any such decision, order, ruling or direction with the Disciplinary Committee or Disciplinary Board, as the case may be, within fourteen days of being duly notified of the decision, order, ruling or direction.
(2) Where the objection raised is in respect of the composition or participation of any member of the Disciplinary Committee or the Disciplinary Board, as the case may be, in meetings, proceedings or inquiries before the Disciplinary Committee or Disciplinary Board, the procedures to deal with the objection shall be as set out in the rules made under this Part.
(3) After the objection referred to in subsection (2) has been dealt with, the D
103EB PART VII DISCIPLINARY PROCEEDINGS-103EB. Costs against frivolous or vexatious application or complaint.
(1) Where the Disciplinary Board:
(a) determines that the application or complaint be dismissed under paragraph 100(1) (a) or (3) (a) or subsection 103D(1); and
(b) further records the opinion that the application or complaint was frivolous or vexatious,
the advocate and solicitor may, by originating summons to be heard before a judge, ask the Court to order that costs of the application or complaint shall be paid by the person who made the application or complaint.
(2) After hearing the summons, the Court may determine the quantum of such costs, and may order that those costs or any part thereof shall be paid by that person.
(3) Any order made by the Court pursuant to this section shall be enforceable in the same manner as any other order for costs made in proceedings in the Court.
[Ins. by Act A1444 of the year 2012]
103F PART VII DISCIPLINARY PROCEEDINGS-103F. Power to make rules.
(1) The Disciplinary Board shall, from time to time, make rules to regulate the procedure pertaining to disciplinary proceedings.
(2) Any rules made under this Part shall not come into operation until they have been published in the Gazette .
[Ins. by Act A812: s.11]
103G PART VII DISCIPLINARY PROCEEDINGS-103G. [Deleted by Act A1269: s.34].
[Deleted by Act A1269: s.34] .
103H PART VII DISCIPLINARY PROCEEDINGS-103H. Establishment of Discipline Fund.
(1) The Malaysian Bar shall establish, maintain and administer a fund which shall be known as the "Discipline Fund".
(2) Every advocate and solicitor shall on each occasion he applies for a Sijil Annual pay to the Malaysian Bar a contribution to the Discipline Fund of such sum as the Bar Council may from time to time determine:
Provided that where an advocate and solicitor is applying for a practising certificate which is to be valid for a period which is less than six months in a calendar year, he shall be required to pay a contribution of only one half of the sum determined for that year.
(3) All costs, charges and expenses for the purposes of any disciplinary proceeding under this Act shall be defrayed out of the Discipline Fund.
[Ins. by Act A861: s.9]
103I PART VII DISCIPLINARY PROCEEDINGS-103I. Payment of fees, fine, costs, etc, into Discipline Fund.
There shall be paid into the Discipline Fund the fees prescribed pursuant to section 140 and any fine, penalty, or any other payment ordered by the Disciplinary Board to be paid.
[Ins. by Act A861: s.9]
103J PART VII DISCIPLINARY PROCEEDINGS-103J. Power to make rules.
The Disciplinary Board 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 of this Part of this Act.
[Ins. by Act A861: s.9]
104 PART VII DISCIPLINARY PROCEEDINGS-104. [Deleted by Act A567: s.50].
[Deleted by Act A567: s.50] .
105 PART VII DISCIPLINARY PROCEEDINGS-105. Advocate and solicitor may apply to remove his name from the Roll.
(1) Any advocate and solicitor may, subject to this section and to any rules made in that behalf, apply to the Court to have his name removed from the Roll.
(2) Every such application shall be made by way of originating motion and shall be supported by an affidavit in the prescribed form which shall be served on the Bar Council not less than two months before the application is heard.
(3) The Bar Council may for good cause require the applicant to advertise his intention to make the application in such manner as the Bar Council shall direct.
(4) An application under this section shall be heard by a Judge sitting in open court.
(5) No order shall be made on an application under this section if the Judge is satisfied that:
(a) disciplinary action is pending against the applicant; or
(b) the conduct of the applicant is the subject of inquiry under this Part.
[Am. by Act A567: s.51]
(2) Any application that the name of an advocate and solicitor be restored to the Roll shall be by originating motion supported by affidavit, before the High Court.
[Am. by Act A567: s.51]
(3) Notice of the motion shall be served on the Bar Council which shall be represented at the hearing of the motion and shall place before the Court a report which shall include copies of the record of any proceedings as the result of which the name of the advocate and solicitor was removed from, or struck off, the Roll and a statement of any facts which have occurred since the name of the advocate and solicitor was removed from, or struck off, the Roll and which in
108 PART VII DISCIPLINARY PROCEEDINGS-108. Costs for proceedings under this Part.
The costs of and incidental to all proceedings under this Part shall be at the discretion of the Court hearing the proceedings and may include the costs of the Bar Council and the costs of proceedings before the Disciplinary Committee.
[Am. by Act A1269: s.36; Subs. by Act A567: s.52; Am. by Act A812: s.12]
109 PART VII DISCIPLINARY PROCEEDINGS-109. If person inquired fails to attend.
If the person whose conduct is the subject of inquiry fails to attend before the Court or the Disciplinary Committee, as the case may be, the inquiry or proceedings may be proceeded with without further notice to such person upon proof of service by affidavit or statutory declaration or in such other manner as the Court may direct.
[Am. by Act A1269: s.37]
110 PART VII DISCIPLINARY PROCEEDINGS-110. Publication and document presumed evidence of facts therein stated.
(1) In any proceedings under this Part any publication purporting to be printed under the authority of the General Council of the Bar or the Law Society in England and any document purporting to be signed under the authority of those bodies shall, until the contrary is proved, be evidence of the facts therein stated or of any rule, practice or usage prevailing in England as therein stated.
(2) When the person whose conduct is the subject of inquiry does not appear and the Disciplinary Committee determines under section 109 to proceed in his absence and in any other case with the consent in writing of that person or the Disciplinary Committee may either as to the whole case or as to any particular fact or facts, proceed and act on evidence by affidavit or statutory declaration.
[Am. by Act A1269: s.38; Act A812: s.14]
111 PART VII DISCIPLINARY PROCEEDINGS-111. No action against Disciplinary Committee, etc, for act done.
No action or proceeding shall lie against the Disciplinary Committee, the Disciplinary Board, the Malaysian Bar, the Bar Council or any State Bar Committee or any member thereof for any act or thing done under this Act including any pronouncement or publication of any decision of the Disciplinary Board unless it is proved to the Court that the act or thing was done in bad faith or with malice.
[Am. by Act A1269: s.39; Subs. by Act A812: s.15]
112 PART VIII REMUNERATION OF ADVOCATES AND SOLICITORS-112. No advocate and solicitor to purchase interest of client.
(1) Except as expressly provided in any written law, or by rules made under this Act, no advocate and solicitor shall:
(a) purchase or agree to purchase either directly or indirectly an interest or any part of the interest which is the subject matter of his client or that of the other party in the same suit, action or other contentious proceeding brought or to be brought or maintained; or
(b) enter into any agreement by which he is retained or employed to prosecute any suit or action or other contentious proceeding which stipulates for or contemplates payment only in the event of success in such suit, action or proceeding.
(2) Nothing in this Act shall be construed to legalise any purchase or agreement prohibited by subsection (1) or to any disposition, contract, settlement, conveyance, delivery, dealing or transfer which is void or invalid against:
(a) t
113 PART VIII REMUNERATION OF ADVOCATES AND SOLICITORS-113. The Solicitors Costs Committee.
(1) The Solicitors Costs Committee shall consist of the following persons:
(a) the Chief Judge or a Judge of the High Court nominated by the Chief Judge (in this section referred to as "the Chief Judge or his nominee"),
(b) the Attorney-General or a member of the Attorney-General's Chambers nominated by the Attorney-General;
(c) the Chief Registrar or a Senior Assistant Registrar nominated by the Chief Registrar;
(d) four advocates and solicitors nominated by the Bar Council.
(2) The Solicitors Costs Committee shall be convened by the Chief Judge at the request of any of its members.
*(3) The Solicitors Costs Committee or any four of the members of the Committee (the Chief Judge or his nominee being one) may make general orders prescribing and regulating in any manner as they think fair and reasonable the remuneration of advocates and solicito
114 PART VIII REMUNERATION OF ADVOCATES AND SOLICITORS-114. Advocate and solicitor may make agreement for remuneration from client.
(1) Whether or not any order is in force under section 113, an advocate and solicitor and his client may, either before or after or in the course of the transaction of any non-contentious business, make an agreement as to the remuneration of the advocate and solicitor in respect thereof:
Provided that such agreement shall not provide for costs at a scale lower than that provided by any order made under section 113.
(2) The agreement may provide for the remuneration of the advocate and solicitor by a gross sum, or by commission or percentage, or by salary, or otherwise, and it may be made on the terms that the amount of the remuneration stipulated in the agreement shall or shall not include all or any disbursements made by the advocate and solicitor in respect of searches, plans, travelling, stamps, fees or other matters.
(3) The agreement shall be in writing and signed by the person bound by it or as his agent on his behalf.
115 PART VIII REMUNERATION OF ADVOCATES AND SOLICITORS-115. Advocate and solicitor entitled to costs of negotiation of mortgagor.
(1) If a mortgage is made to an advocate and solicitor, either alone or jointly with any other person, he, or the firm of which he is a member, shall be entitled to recover from the mortgagor in respect of all business transacted and acts done by him or them in negotiating the loan, deducing and investigating the title to the property, and preparing and completing the mortgage, such usual costs as he or they would have been entitled to receive if the mortgage had been made to a person who was not an advocate and solicitor and the mortgagor had retained and employed him or them to transact that business and do these acts.
(2) If a mortgage has been made to, or has become vested by transfer or transmission in, an advocate and solicitor either alone or jointly with any other person, and any business is transacted or acts are done by that advocate and solicitor, or by the firm of which he is a member, in relation to that mortgage or the security th
116 Contentious Business-116. Advocate and solicitor may enter agreement for costing contentious business.
(1) Subject to the provisions of any written law, an advocate and solicitor may make an agreement in writing with his client respecting the amount and manner of payment for the whole or any part of his costs in respect of contentious business done or to be done by such advocate and solicitor, either by a gross sum, or otherwise, and either at the same rate or at a greater or lesser rate than the rate at which he would otherwise be entitled to be remunerated.
(2) Every such agreement shall be signed by the client and shall be subject to this Part.
117 Contentious Business-117. Costs recoverable from client by other person not attested.
(1) Any agreement entered into pursuant to section 116 shall not affect the amount of, or any rights or remedies for the recovery of, any costs recoverable from the client by any other person or payable to the client by any other person, and any other person may require any costs payable by him to or recoverable by him from the client to be taxed according to the rules for the time being in force for the taxation of such costs, unless such other person had otherwise agreed:
[Am. by Act A567: s.53]
Provided that the client who has entered into any agreement shall not be entitled to recover from any other person, under any order for the payment of any costs which are the subject of the agreement, more than the amount payable by the client to his own advocate and solicitor.
(2) Such an agreement shall be deemed to exclude any further claim of the advocate and solicitor beyond the terms of agreement in respect
118 Contentious Business-118. Enforcement of agreements.
(1) No action or suit shall be brought or instituted upon any agreement as is referred to in section 116, but every question respecting the validity or effect of any such agreement may be examined and determined, and the agreement may be enforced, varied or set aside by suit or action by summons, motion or petition by any person or the representatives of any person being a party to such agreement, or being alleged to be liable to pay, or being or claiming to be entitled to be paid the costs, fees, charges or disbursements in respect of which the agreement is made, by the Court in which the business or any part thereof was done, or a Judge of the Court, or, if the business was not done in any Court, then by the High Court or a Judge of the High Court.
[Am. by Act A567: s.54]
(2) Upon any such summons, motion or petition, if it appears to the Court or a Judge that such agreement is in all respects fair and reasonabl
119 Contentious Business-119. Any party may set aside agreement of deceased advocate and solicitor not performed.
(1) Where an advocate and solicitor has made an agreement with his client in pursuance of section 116 and anything has been done by the advocate and solicitor under the agreement, and, before the agreement has been completely performed by him, the advocate and solicitor dies or becomes incapable of acting an application may be made to the court by any party to the agreement or by the representatives of the party, and the Court shall thereupon have the same power to enforce or set aside the agreement, if it had not be acted upon.
[Am. by Act A567: s.55]
(2) The Court, even if it considers the agreement to be in all respects fair and reasonable, may order the amount due in respect of the business done thereunder to be ascertained by taxation.
(3) The Registrar in ascertaining any such amount shall have regard, so far as may be, to the terms of the agreement.
(4) Payment of the amount found to be due
120 Contentious Business-120. Where client changes counsel before agreement performed.
(1) Notwithstanding the existence of any agreement under section 116, a client may change his advocate and solicitor before the conclusion of the business to which the agreement relates and in that case the advocate and solicitor who is a party to the agreement shall be deemed to have become incapable of acting under the same within the meaning of this section.
(2) Upon any order being made for taxation of the amount due to an advocate and solicitor in respect of business done under the agreement, the Court shall direct the Registrar to have regard to the circumstances under which the change of advocate and solicitor has taken place.
(3) Upon taxation the advocate and solicitor shall not be considered to be entitled to the full amount of the remuneration agreed to be paid to him unless it appears that there has been no default, negligence, improper delay or other conduct on his part affording reasonable ground to the client for changing
121 Contentious Business-121. Where remuneration of advocate and solicitor not subject of agreement.
(1) Where the remuneration of an advocate and solicitor in respect of contentious business done by him is not the subject of an agreement made pursuant to section 116, the solicitor's bill of costs may at the option of the advocate and solicitor either contain detailed items or be for a gross sum:
[Am. by Act A367: s.14]
Provided that:
(a) at any time before service upon him of a writ or other originating process for the recovery of costs included in a gross sum bill and before the expiration of three months from the date of the delivery to him of the bill, the party chargeable therewith may require the advocate and solicitor to deliver to him in lieu of the cost a bill containing detailed items, and the gross sum bill shall thereupon be of no effect;
(b) where an action is commenced on a gross sum bill, the Court shall, if so requested by the party chargeable therewi
122 PART IX RECOVERY AND TAXATION OF COSTS-122. Advocate and solicitor defined.
In this Part the expression "advocate and solicitor" includes the executors, administrators and assignees of the advocate and solicitor in question.
123 PART IX RECOVERY AND TAXATION OF COSTS-123. Advocate and solicitor entitled to charge on property for costs.
Any court in which an advocate and solicitor has been employed to prosecute or defend any suit, matter or proceeding may at any time declare the advocate and solicitor entitled to a charge on the property recovered or preserved in such suit, matter or proceeding for such advocate and solicitor's taxed costs in reference to that suit, matter or proceeding, and may make such orders for the taxation of the costs and for raising money to pay, or for paying, the costs out of the property as it thinks fair and reasonable, and all conveyance and acts done to defeat, or operating to defeat, that charge shall, except in the case of a conveyance to a bona fide purchaser for value without notice, be void as against the advocate and solicitor:
[Am. by Act A367: s.15]
Provided that no order shall be made if the right to recover the costs is barred by the Limitation Act 1953 [Act 254] .
124 PART IX RECOVERY AND TAXATION OF COSTS-124. No advocate and solicitor to sue for costs until delivery of bill of cost.
(1) Except as authorised by this Act, no advocate and solicitor shall without the leave of the court commence or maintain any action for the recovery of any costs due for any business done by him until the expiration of one month after he has delivered to the party to be charged therewith, or sent by post to, or left with him at, his office or place of business, dwelling house or last known place of abode, a bill of costs, which bill shall be signed either by the advocate and solicitor, or in the case of a partnership, by any of the partners, either with his own name or with the name or style of the partnership, or by another advocate and solicitor employed by the first-named advocate and solicitor or the partnership, or be enclosed in or accompanied by a letter, signed in the like manner, referring to the bill.
(2) Where a bill is proved to have been delivered in compliance with subsection (1) it shall not be necessary in the first instance fo
125 PART IX RECOVERY AND TAXATION OF COSTS-125. Power of court to authorise solicitor to commence action.
The Court may authorise an advocate and solicitor to commence an action for recovery of his costs and also refer his bill of costs for taxation by the Registrar, although one month has not expired from the delivery of the bill, upon proof to its satisfaction that any party chargeable therewith is about to quit Malaysia, or to have a receiving order made against him, or to compound with his creditors or to take any other steps or do any other act which in its opinion would tend to defeat or delay the advocate and solicitor in obtaining payment.
126 PART IX RECOVERY AND TAXATION OF COSTS-126. An order for taxation of costs to be made within 6 months of delivery of bill of costs.
(1) An order for the taxation of a bill of costs delivered by any advocate and solicitor may be obtained by a petition as a matter of course by the party chargeable therewith, or by any person liable to pay the cost either to the party chargeable or to the advocate and solicitor, at any time within six months from the delivery of the bill, or, by the advocate and solicitor after the expiration of one calendar month, and within a year from, the delivery.
(2) The order shall contain such directions and conditions as the court thinks proper, and any party aggrieved by any order of Court may apply by summons in chambers that the same may be amended or varied or set aside.
(3) In any case where an advocate and solicitor and his client consent to taxation of a solicitor's bill the Registrar may proceed to tax the bill notwithstanding that there is no order therefor.
127 PART IX RECOVERY AND TAXATION OF COSTS-127. The cost of obtaining an order for taxation.
The costs of obtaining an order for taxation of costs, including the petition order and service of order, other than any court fees payable thereon or disbursements, if the order is obtained by consent by the advocate and solicitor of either party shall be the sum of twenty-five ringgit:
Provided that if one of the parties does not consent to taxation the cost of obtaining an order of court shall be the sum of one hundred and fifty ringgit.
128 PART IX RECOVERY AND TAXATION OF COSTS-128. Order for taxation of advocate and solicitor's bill on notice given.
(1) After the expiration of six months from the delivery of a bill of costs, or after payment of the bill of costs, no order shall be made for taxation of a solicitor's bill of costs, except upon notice to the advocates and solicitors and under special circumstances to be proved to the satisfaction of the Court.
(2) No such order for taxation shall in any event be made after the expiry of one year from the delivery of the bill of costs.
129 PART IX RECOVERY AND TAXATION OF COSTS-129. Petition by party liable for a bill of costs.
All petitions by a party chargeable with or liable for a bill of costs shall, unless the same has been already paid, contain a submission by the party to pay the amount of the bill of costs to the advocate and solicitor when taxed.
130 PART IX RECOVERY AND TAXATION OF COSTS-130. Order for delivery of solicitor's bill of costs by way of petition.
(1) An order for the delivery of a solicitor's bill of costs, and for delivery up of any deeds, documents or other papers in the possession of the advocate and solicitor may, subject to any lien which such advocate and solicitor may have, and for the taxation of the bill when delivered, be obtained on a petition of course.
(2) Upon the petition being filed, the Registrar shall mark the order thereon forthwith, and draw up the order if necessary.
(3) Subject to this section, the Court shall have the like jurisdiction as the High Court in England to make an order under subsection (1).
131 PART IX RECOVERY AND TAXATION OF COSTS-131. Court may order advocate and solicitor to deliver copy of bill to applicant.
When application is made by a party other than the party chargeable, the Court may order the advocate and solicitor to deliver to the party making the application a copy of the bill, upon payment of the costs of making the copy.
132 PART IX RECOVERY AND TAXATION OF COSTS-132. Bill of costs to follow rules of court.
Bills of costs for taxation as between advocate and solicitor and client shall be drawn in the manner provided by the Rules of the High Court, and the taxation shall be governed by the Rules.
133 PART IX RECOVERY AND TAXATION OF COSTS-133. Registrar may allow interest on money disbursed by counsel.
The Registrar may allow interest at any rate and from any time as he thinks fair and reasonable on moneys disbursed by an advocate and solicitor for his client, and on moneys of the client in the hands of the advocate and solicitor and improperly retained by him.
134 PART IX RECOVERY AND TAXATION OF COSTS-134. Costs of order of taxation payable by solicitor.
(1) In case any order for taxation is made upon the application of the party chargeable or liable, or of the advocate and solicitor, the costs of the order and taxation, except when the order has been made after the expiration of one year, shall be paid according to the event of such taxation :
(a) if the bill when taxed is less by a sixth part than the bill delivered, then the solicitor shall pay the costs;
(b) if the bill when taxed is not less by a sixth part, then the party chargeable or liable, if the application is made by him, or if he attends the taxation, shall pay the costs.
(2) Every order for any reference under section 125 shall direct the Registrar to tax the costs of the reference, and to certify what, upon the reference, is found to be due to or from the advocate and solicitor in respect of the bill, and of the costs of the reference, if payable.
(3) The Regist
135 PART IX RECOVERY AND TAXATION OF COSTS-135. Certificate of taxing officer final.
The certificate of the Registrar by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered by such certificate, and the Court may make any order in relation to the certificate it considers fair and reasonable, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.
136 PART IX RECOVERY AND TAXATION OF COSTS-136. Right of Government to costs unaffected.
Nothing in this Act shall affect the right, which is hereby declared, of the Government when represented by any of the persons mentioned in section 35(2) (a) to recover costs awarded to it in or respecting any cause or matter, and in any such cause or matter the costs of the Government shall be taxed in accordance with any rules in force for the time being for the taxation of the fees and costs of advocates and solicitors as if an advocate and solicitor of the High Court who is not in the service of the Government had appeared on behalf of the Government.
[Am. by Act A567: s.56]
137 PART X MISCELLANEOUS-137. Board and Bar to maintain an office.
(1) The Board and the Malaysian Bar shall each keep and maintain at all times an office and shall respectively publish in the Gazette the address of that office and any change of such address.
[Subs. by Act A567: s.57]
(2) All writs, plaints, notices, pleadings, orders, summonses, warrants or other written communications required or authorized or ordered to be served on or delivered or sent to the Board or the Malaysian Bar shall be deemed to be duly served, delivered or sent if left at the office of the Board or the Malaysian Bar, as the case may be.
[Am. by Act A567: s.57]
138 PART X MISCELLANEOUS-138. Document to be served may be sent by post.
(1) Any document other than the process of court that is required to be served or delivered under this Act may be sent by post.
(2) A certificate in writing signed by an officer of the Malaysian Bar or the Board, or a member of the Bar Council that any document was properly addressed and posted and setting out the date of posting shall be prima facie evidence of service of the document.
[Subs. by Act A567: s.58]
(3) Any document addressed to an advocate and solicitor at his only or principal address last appearing in the Register of Practitioners shall be deemed to be properly addressed.
139 PART X MISCELLANEOUS-139. Bar Council or Malaysian Bar to recover sum of money.
In addition to any other method of recovery and to any other right, remedy or power vested in the Malaysian Bar or in the Bar Council any sum of money payable under this Act or any rules or by-laws made thereunder may be recoverable by the Bar Council or the Malaysian Bar as a debt in any court of competent jurisdiction.
[Am. by Act A567: s.59]
140 PART X MISCELLANEOUS-140. Fees to be prescribed by Rules Committee.
The fees payable under sections 18, 28 and 29 shall be prescribed from time to time by the Rules Committee and the payment of such fee shall be noted by an impressed stamp on the relevant document.
141 PART X MISCELLANEOUS-141. Bank not bound to take notice of right against the account of advocate and solicitor.
(1) Subject to this section, no bank shall, in connection with any transaction relating to the account of any advocate and solicitor kept with it or with any other bank (other than an account kept by an advocate and solicitor as trustee for a specified beneficiary), incur any liability or be under any obligation to make any inquiry, or be deemed to have any knowledge of any right of any person to any money paid or credited to any such account, which it would not incur or be under or be deemed to have in the case of an account kept by a person entitled absolutely to all the moneys paid or credited to it:
[Am. by Act A567: s.60]
Provided that nothing in this subsection shall relieve a bank from any liability or obligation under which it would be liable under section 93 or this section.
(2) Notwithstanding subsection (1), a bank at which an advocate and solicitor keeps an account of his clients' moneys shall
142 PART X MISCELLANEOUS-142. No estate duty payable for bequest to the Bar.
[Am. by Act A567: s.61]
(1) No estate duty shall be payable in respect of any amount of any bequest to the Malaysian Bar, and the value of the property passing on the death of a deceased donor shall not be deemed to include the amount of the bequest for the purpose of assessing the rate of estate duty.
[Am. by Act A567: s.61]
(2) The Board and the Malaysian Bar shall each be deemed to be:
(a) an institution specified in the First Schedule to, and under paragraph 13(1) (e) of the Income Tax Act 1967; and
(b) an institution of a public character approved by the Minister for the purposes of paragraph 37(2) (c) of the Income Tax Act, 1967.
143 PART XI TRANSITIONAL PROVISIONS-143. Definition.
(1) In this Part unless the context otherwise requires:
"former roll" means the roll of advocates and solicitors kept under section 3 of the Ordinance.
"Local Bar Committee" and "Bar Council" shall have the meanings assigned to these expressions in the Ordinance. (2) This Part shall have effect notwithstanding anything to the contrary in any other provisions of this Act.
144 PART XI TRANSITIONAL PROVISIONS-144. Nomination of members of Board.
(1) The respective authorities mentioned in section 7 shall nominee persons to be members of the Board in accordance with that section within one month of the coming into operation of Part II.
(2) The terms of office of members of the Board other than the Attorney General shall commence on the day when the Board first meets for the despatch of business.
145 PART XI TRANSITIONAL PROVISIONS-145. Registrar to transfer to the Roll the names of advocates and solicitors.
(1) The Registrar shall transfer to the Roll the names of all advocates and solicitors on the former roll with the dates in the order of their respective admissions.
(2) The Registrar in making such transfer may omit the names of any person known to the Registrar to be deceased or not ordinarily resident in Malaysia.
(3) Any person whose name has been wrongly or inadvertently omitted may apply to the Registrar to have his name entered and the Registrar shall forthwith enter the applicant's name, upon the Roll.
[Am. by Act A567: s.62]
(4) Every person whose name has been entered on the Roll under this section shall, until the contrary is proved, be deemed to have been duly admitted under this Act.
[Am. by Act A567: s.62]
(5) Section 107 shall apply to any person whose name was removed from, or struck off, the former roll.
146 PART XI TRANSITIONAL PROVISIONS-146. Definition.
(1) In this section the expression "pending petition" shall mean:
(a) a petition filed pursuant to subsection (2); or
(b) a petition filed before the coming into operation of Part II in which no order for the admission of the petitioner has been made when Part II comes into operation.
(2) Notwithstanding the repeal of the Ordinance, any qualified person who is desirous of filing a petition for admission before the Board is constituted may do so under the Ordinance.
(3) Subject to this section, sections 5 to 9 of the Ordinance shall apply to every pending petition.
(4) Sections 27 and 28 shall apply to every pending petition.
(5) If no order for the admission of a petitioner in a pending petition is made before the expiry of twelve months of the coming into operation of this Act or such extended period as the Court may
147 PART XI TRANSITIONAL PROVISIONS-147. Certificate issued under section 26 deemed practising certificate.
A certificate issued under section 26 of the Ordinance shall, subject to the provision relating to the suspension of practising certificates in this Act and notwithstanding any date endorsed thereon, be deemed to be a practising certificate issued under section 29.
[Am. by Act A567: s.63]
148 PART XI TRANSITIONAL PROVISIONS-148. Bar Council and Committee holding office at date of coming into force of this Act.
The Bar Council and the State Bar Committee holding office at the date of the coming into operation of Part V shall remain in office until meetings have been held and elections of new State Bar Committees and a new Bar Council have taken place in the manner and at the times provided in this Act.
149 PART XI TRANSITIONAL PROVISIONS-149. Assets and property of Bar Council and Local Bar.
All property and assets of the Bar Council and the State Bar Committees shall, upon the coming into operation of Part V, be vested in the Bar Council and the State Bar Committees respectively without further act or formality.
[Am. by Act A567: s.64]
150 PART XI TRANSITIONAL PROVISIONS-150. Saving.
(1) All applications and complaints made under sections 27, 28 and 30 of the Ordinance and all proceedings before a Disciplinary Committee appointed under the Ordinance or before the court under section 31 of the Ordinance shall proceed as though the applications or complaints were made or the proceedings commenced under this Act, and for the purposes of this section any Disciplinary Committee appointed under the Ordinance shall be deemed to be a Disciplinary Committee appointed under this Act.
[Am. by Act A567: s.65]
(2) This Act shall apply to all applications, complaints and proceedings, and in the event of any doubt or difficulty application shall be made by way of originating summons to a judge for directions, and any order made by a judge under this section shall not be the subject of appeal and shall for all purposes be deemed to be under this Act.
151 PART XI TRANSITIONAL PROVISIONS-151. Provisions of Advocates and Solicitors Ordinance to apply in respect of remuneration of advocates and solicitors until general orders made under the Act.
Until general orders prescribing and regulating the remuneration of advocates and solicitors in respect of non-contentious business are made under section 113 their remuneration shall be regulated in accordance with the Ordinance.
152 PART XII REPEAL-152. Repeal.
(1) The Advocates and Solicitors Ordinance 1947 is hereby repealed.
(2) The Advocates Ordinance of Sabah [Sabah Cap. 2] and the Advocates Ordinance of Sarawak [Sarawak Cap. 110] shall be repealed on the coming into operation of this Act in Sabah and Sarawak.
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