The Malaysian Bar - 2011/2012 Legal Profession Committee Interim Report

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2011/2012 Legal Profession Committee Interim Report

Thursday, 08 December 2011 09:32am

The Legal Profession Committee (“LPC”) is continuing its function to address and deliberate upon a variety of enquiries, raised by Members of the Bar as well as the public, on issues relating to the professional conduct and practice of lawyers in Malaysia. LPC also renders its views relating to the application of the provisions of the Legal Profession Act 1976 (“LPA”) and the various rules and rulings issued under section 57.

During the period of 27 May to 9 Sept 2011, LPC met five times. In 2011, LPC discussed the following matters, among others:

(1) Bar Council Rulings

Pursuant to section 57(a) of the LPA, Bar Council issued the following rulings:

(a) Advocate and Solicitor Acting as Registered Patent, Trade Mark and/or Industrial Design Agent

12.03. Advocate and Solicitor acting as registered patent, trade mark and/or industrial design agent

(1) An Advocate and Solicitor shall notify the Bar Council within one (1) month of his first becoming a registered patent, trade mark and/or industrial design agent, or if he is already a registered patent, trade mark and/or industrial design agent, within one (1) month of the coming into effect of this Ruling.

(2) He shall perform his role as a registered patent, trade mark and/or industrial design agent within his full-time practice in a law firm.

(3) He shall comply with the Etiquette Rules and all other applicable laws and Rulings while acting as a registered patent, trade mark and/or industrial design agent.

(4) In his conduct as a registered patent, trade mark and/or industrial design agent, he shall be subject to all disciplinary rules governing an Advocate and Solicitor.

(5) Any law firm providing services of a registered patent, trade mark and/or industrial design agent may describe itself as providing such services on its letterhead.

(6) No Advocate and Solicitor is permitted to merely supervise a registered patent, trade mark and/or industrial design agent unless his law firm handles the work and fees for such work are paid directly to the law firm.

Members of the Bar were notified of the ruling via Circular No 055/2011 dated 8 Mar 2011, which came into effect immediately.

(b) Business Card Used by Non-Practising Advocate and Solicitor

4.05. Non-practising Advocate and Solicitor
A non-practising Advocate and Solicitor shall not be permitted to use a business card printed with the words “Advocate and Solicitor” unless the word “non-practising” in parenthesis appears immediately after the description “Advocate and Solicitor”.

Members of the Bar were notified of the ruling via Circular No 056/2011 dated 8 Mar 2011, which came into effect immediately.

(c) Responses from Bar Council/State Bar Committees Not to be Produced in Any Court or Tribunal

An advocate and solicitor shall not, without the prior written consent of the Bar Council, produce or disclose to any court or tribunal, any letter or any form of electronic communication from the Bar Council, State Bar Committees or any committee of the Bar Council, where such letter or electronic communication has been written in response to any query or complaint from such advocate and solicitor or from any other person.

Members of the Bar were notified of the ruling via Circular No 192/2011 dated 8 Sept 2011, which came into effect immediately.

(d) Amendment to Bar Council Ruling 9.01(3):Letter of Demand and Costs

(3) Letter of demand and costs

An Advocate and Solicitor shall not, in his letter of demand issued on behalf of his client, demand:
(i) his costs or fees for issuing such a letter, unless there is an agreement in writing to that effect between his client and the addressee; or
(ii) any payment other than that recoverable by the process of law.

Members of the Bar were notified of the ruling via Circular No 193/2011 dated 8 Sept 2011, which came into effect immediately.

(2) Anti-Money Laundering and Anti-Terrorism Financing Act 2001

Bank Negara Malaysia (“BNM”), the competent authority under the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (“AMLATFA”), conducted on-site examinations on selected legal firms from 16 Aug to 2 Sept 2010, and found law firms’ compliance with AMLATFA and the guidelines issued thereunder to be weak.

To help law firms improve the level of compliance, Bar Council has formulated a checklist to assist Members in working their way through the “Know Your Client” guidelines issued by BNM pursuant to AMLATFA. Prior to opening a client’s file, Members are advised to ask certain questions on the proposed transactions that their legal firms have been instructed to act upon. Members should go through the items listed in the checklist to ensure that all necessary information has been obtained. This checklist should be kept with every new client’s file and shown to BNM during an on-site examination.

Bar Council issued Circular No 147/2011 dated 12 July 2011 to inform Members of this checklist.

Further, to monitor the level of compliance, BNM has sought Bar Council’s assistance to urge law firms to complete and submit an AMLATFA Compliance Report on BNM’s website on a biennial basis. The Compliance Report is firm based and only requires a partner/managing partner/sole proprietor selected by the firm to make a submission on behalf of the entire firm.

Members have been asked to indicate whether their law firms have submitted the Compliance Report in their Sijil Annual and Practising Certificates 2012 application forms.

Bar Council issued Circular No 199/2011 dated 14 Sept 2011 to inform Members of the Compliance Report.

Law firms are strongly urged to ensure compliance with AMLATFA. Failure to comply could lead to BNM imposing more intrusive directives on all law firms, including legal penalties for non-compliance.

(3) Queries relating to compliance with AMLATFA

(a) Whether a firm is obliged to give a written confirmation to a bank pertaining to its Client’s Account in accordance with AMLATFA

LPC was of the view that a firm’s reporting obligations under AMLATFA is only to BNM. Thus, the firm need not give any written confirmation as requested by the bank. Bar Council has also decided to inform the Association of Banks in Malaysia of its decision on this matter.

(b) Where a firm acts for one client (eg a developer) and is instructed to attend to the sale of numerous houses in the same housing development, whether the firm is required to complete the “Know Your Client” checklist for each transaction

The checklist formulated by Bar Council is merely a guideline pursuant to the guidelines issued by BNM to assist Members to satisfy the customer due diligence process. Therefore, the firm is advised to complete the checklist for each transaction. In the alternative, the firm may set up its own compliance procedure to satisfy BNM’s customer due diligence process.

(4) Whether an advocate and solicitor is allowed to state on the firm’s letterhead that he/she has a First Class Honours Law Degree

Bar Council decided to allow an advocate and solicitor to state “First Class Honours” in the firm’s letterhead as it is within the category of “approved information” under rule 2(q) of the Legal Profession (Publicity) Rules 2001, which states that:

the academic and professional qualifications of the Advocate and Solicitor or Advocates and Solicitors practising in the firm, and any award, decoration, merit or title conferred upon him or them.

Bar Council decided that the term “First Class Honours” falls under the definition of “merit” of the abovementioned rule.

(5) Whether a firm can charge legal fees for issuing confirmations on contingent liability of companies who are also clients of the firm to auditors

LPC was of the view that there is no law or ruling preventing a firm from charging a reasonable fee for providing written statutory audit confirmations as requested by audit firms on matters handled by the firm on behalf of its clients.

(6) Whether a firm could publish its website in foreign languages (eg Chinese, Japanese, etc) to assist its clients to know more about the firm and its areas of practice

LPC had no objection to the proposed usage of foreign languages in a firm’s website. However, the firm is advised to comply with the Legal Profession (Publicity) Rules 2001, the Rules Governing the Websites of Law Firms, and all other Rules and Rulings of the Bar Council at all times.

Sarengapani K Rajoo

Chairperson

Legal Profession Committee

Dated 19 Sept 2010

(1) Sarengapani K Rajoo (Chairperson)

(2) Chen Kah Leng (Co-Deputy Chairperson)

(3) Ng Kong Peng (Co-Deputy Chairperson)

Members:

(4) Amar Chand Vohrah

(5) Andrew Khoo Chin Hock

(6) Benedict Cheang Chu Yong

(7) C Megalai