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DISCIPLINARY PROCESS
Presented by
Mr. Chang Hong Yun, Partner
DISCIPLINARY PROCEEDING
WHAT IS
DISCPLINARY HOW IS THIS
PROCEEDING BEING
? CONDUCTED?
WHY DO WE
NEED
DISCPLINARY
PROCEEDING
?
APPLICABLE LAWS
• Legal Profession Act 1976 (s 92A-s 111);
DISCIPLINARY BOARD
COMPLAINT DISCIPLINARY
SECRETARIAT COMMITTEE PANEL
APPOINTMENT OF
DIRECTORS
DISCIPLINARY
(SECRETARY) COMMITTEE
COMPLAINT
Definition of misconduct:
Section 94 (3)-
the term “misconduct” is defined as “any
conduct or omission to act in Malaysia or
elsewhere by an advocate and solicitor in a
professional capacity or otherwise which
amounts to grave impropriety and includes...
MISCONDUCT
(a) conviction of a criminal offence which makes him unfit to
be a member of his profession;
(b) breach of duty to a court including any failure by him to
comply with an undertaking given to a court;
(c) dishonest or fraudulent conduct in the discharge of his
duties;
(d) breach of any rule of practice and etiquette of the
profession made by the Bar Council under this Act or
otherwise;
(e) being adjudicated a bankrupt and being found guilty of
any of the acts or omissions mentioned in paragraph (a) , (b) ,
(c) , (e) , (f) , (h) , (k) or (l) of section 33 (6) of the Bankruptcy
Act 1967;
MISCONDUCT
(f) the tendering or giving of any gratification to any person for having
procured the employment in any legal business of himself or any other
advocate and solicitor;
(g) directly or indirectly procuring or attempting to procure the
employment of himself or any other advocate and solicitor through or
by the instruction of any person to whom any remuneration for
obtaining such employment has been given by him or agreed or
promised to be so given;
(h) accepting employment in any legal business through a tout;
(i) allowing any unauthorised person to carry on legal business in his
name without his direct and immediate control as principal or without
proper supervision;
(j) the carrying on by himself, directly or indirectly, of any profession,
trade, business or calling which is incompatible with the legal
profession or being employed for reward or otherwise in any such
profession, trade, business or calling;
MISCONDUCT
(k) the breach of any provision of this Act or of any rules made
thereunder or any direction or ruling of the Bar Council;
(l) the disbarment, striking off, suspension or censure in his
capacity as a legal practitioner in any other country or being
guilty of conduct which would render him to be punished in
any other country;
(m) the charging, in the absence of a written
agreement, in respect of professional services
rendered to a client, of fees or costs which are
grossly excessive in all the circumstances;
2017:
21 lawyers being struck off
8 lawyers being suspended
2016:
23 lawyers being struck off
3 lawyers being suspended
2015:
40 lawyers being struck off
3 lawyers being suspended
STATISTICS
• As at 31 December 2017, the Bar Council Secretariat’s
Complaints and Intervention Department (“CID”) had received
866 complaints concerning the conduct of Members and
practice-related issues.
• 128 out of the 866 complaints had been referred to the Bar
Council by the Advocates and Solicitors Disciplinary Board
(“ASDB”). The Bar Council considered each complaint and, in 18
cases, decided to intervene and proceed as if the complaint
had been made of its own motion.
• COMMENCEMENT OF PROCESS
1
• APPEAL
5
STAGE 1: COMMENCEMENT
OF PROCESS
• Any complaint concerning the conduct of any advocate and
solicitor shall be in writing.
WITHDRAWAL OF COMPLAINT
• Complainant can withdraw the complaint at any time and inform
the Director of the Secretariat or, if the Disciplinary Committee has
been appointed, to the Chairman of that Disciplinary Committee.
• Any appeal against the decision of the High Court shall lie to
the Court of Appeal and thereafter to the Federal Court.
STAGE 5: APPEAL
WHEN WILL THE COURT INTERFERE?
• In Gana Muthsamy v L.M Ong & Co. [1998] 3 MLJ 341, His
Lordship Gopal Sri Ram JCA penned the following:
• The plaintiffs must exhaust their domestic remedy under the Act before
coming to this court. The plaintiffs' arguments as to the validity of the
said complaint could and should be raised before the Disciplinary
Committee hearing. Further, the plaintiffs had the right to appeal to the
High Court and had a further right to appeal to the Federal Court. The
plaintiffs should not short-circuit the statutory disciplinary and appellate
process.
CAN A LAWYER LATER BRING AN ACTION AGAINST
THE COMPLAINANT IN COURT?
• Three years later, the first defendant lodged a complaint against the
plaintiff. On a day before the hearing of the complaint, the defendants
proposed to withdraw the complaint on the conditions that the plaintiff's
firm pay to the defendants a sum of RM25,000, withdraw the Shah Alam suit
and execute of a letter of release confirming that the plaintiff's firm had
ceased from acting for the defendants.
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