The Malaysian Bar - Solicitors’ Remuneration Enforcement Committee 2010/2011 Interim Report

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Solicitors’ Remuneration Enforcement Committee 2010/2011 Interim Report

Thursday, 18 November 2010 09:57am

The Solicitors’ Remuneration Enforcement Committee (“SREC”) has met five times during its current term, on 18 June, 16 July, 13 Aug, 24 Sept 2010 and 12 Nov 2010.

Update on the suits against the Malaysian Bar in relation to the Solicitors’ Remuneration (Enforcement) Rules 2004 (“SRER”)

(a) Suit by Abdul Razak bin Hashim vs Bar Malaysia (KL High Court Originating Summons No: R2-17-5-06)

The SRER, made under section 57(a) of the Legal Profession Act 1976 (“LPA”), was declared null and void by the High Court on 26 Apr 2010.

The Judge ruled that Bar Council’s power under section 57(a) of the LPA does not include the power to make enforcement rules. However, the Judge upheld the no-discount ruling in the Solicitors’ Remuneration Order 2005 (“SRO”). Therefore, any breach of the SRO will amount to a misconduct for which disciplinary action may follow.

It seems that the High Court, whilst acknowledging Bar Council’s power to make rules pursuant to section 57(a), held the view that Bar Council may not make any rules to enforce compliance. The High Court decision was conveyed to Members of the Bar via Circular No 151/2010 (dated 24 May 2010).

Bar Council filed an appeal on 19 May 2010 and thus far, no hearing date has been set.

(b)    Suit by Seah Choon Chye vs Bar Malaysia (Seremban High Court Originating Summons No: 24-569-2007)

The Deputy Registrar has fixed the matter for case management on 15 Nov 2010 for parties to file their skeletal submissions.

(c)    Suit by Thavamani Subramaniam vs Bar Malaysia (Seremban High Court Originating Summons No: 24-1902-2007)

Thavamani Subramaniam withdrew the suit on 29 Mar 2010 with no order as to costs.

(d)    Suit by Cheong Wai Meng & Van Buerle vs Bar Malaysia (Penang High Court Originating Summons No: 24-941-2007 (MT4))

Consent Order recorded on 26 Mar 2008 stating that the suit is stayed pending disposal of the abovementioned cases at Kuala Lumpur High Court and Seremban High Court and the Malaysian Bar will not lodge any complaint against Cheong Wai Meng & Van Buerle with the Advocates and Solicitors Disciplinary Board (“DB”) under the SRER pending disposal of the Abdul Razak case.

In view of the court decision in item (a) above, SREC has ceased to issue notices to Members to file returns pursuant to SRER and no action has been taken on any return received previously since then.

Currently, SREC only handles complaints received from members of the public and Members of the Bar on issues involving fees that are not in accordance with the scale specified in SRO, ie overcharge, and discount, of fees and disbursements. If there is evidence of breach of SRO, SREC will request the Member to clarify the issue(s) raised by the complainant. In most instances of overcharging, the lawyer will refund the excess to the complainant. In cases where there is a violation of SRO, SREC will advise the complainant to lodge a complaint with DB. If there has been a serious breach and the complainant decides not to lodge a complaint, SREC will itself lodge a complaint with DB, in order to protect the interest of the public, and Members.

Ong Siew Wan
Chairperson
Solicitors’ Remuneration Enforcement Committee

Dated 18 Nov 2010

(1) Ong Siew Wan (Chairperson)
(2) Sally Chee (Deputy Chairperson)
Members:
(3) Abdul Murad Che Chik
(4) Andrew Wong
(5) A Ramanathan
(6) Asmadi Awang
(7) Balbir Singh
(8) Goh Kuan Hock
(9) Jadadish Chandra
(10) Mansor Dato Hj Wan Mohamed
(11) Mariadass A
(12) Ngan Teck Keong
(13) Nicholas Chang
(14) Noorfajri Ismail
(15) Rosnah Faisal
(16) Sumathi Murugiah
(17) Zalina Abidin
Officer-in-charge: Angela Fernandez

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