The Malaysian Bar wishes to clarify and respond to the reports of the search for 21 lawyers allegedly involved in 39 cheating and criminal breach of trust cases, involving over RM30.4 million.1 Of the 21 persons named, we can confirm that 15 have been struck off the Roll of advocates and solicitors, four did not renew their annual practising certificates, while two are not and have never been Members of the Malaysian Bar. Of the 19 firms involved, the Bar Council has intervened into 17 firms.
The Malaysian Bar views dishonesty or fraudulent conduct of Members very seriously. Members of the public who are aggrieved are encouraged to lodge complaints with the Bar Council or the Disciplinary Board.
Dishonesty or fraudulent conduct in the discharge of one's duties is a "misconduct" under section 94(3) of the Legal Profession Act 1976 ("LPA"), which could result in an advocate and solicitor being liable for penalties or punishment. For the more serious misconduct, the advocate and solicitor can be suspended from practice for any period not exceeding five years or struck off the Roll, pursuant to section 94(2) of the LPA. These punishments are meted out by the Disciplinary Board, an independent board established under section 93 of the LPA, for the purposes of administering disciplinary proceedings.
The LPA allows the Bar Council to intervene into firms in instances of dishonesty as well as provides for the setting up of the Compensation Fund which provides some relief to persons who have sustained losses as a result of the dishonesty of an advocate and solicitor.
(1) Bar Council's Power to Intervene
Pursuant to the LPA's section 88A or 94(4), the Bar Council is empowered to take action against an advocate and solicitor guilty of dishonesty by applying to the Court or the Disciplinary Board for an order suspending the advocate and solicitor from practice. The Bar Council will then lodge a complaint against the advocate and solicitor at the Disciplinary Board, and if needed, intervene into the firm.
In intervention proceedings, an intervener solicitor –– armed with a Resolution issued by the Bar Council and Certificate under section 88(1) of the LPA –– where applicable, will proceed to take control of the files or documents of a firm and instruct the bank concerned to freeze the clients' accounts of the firm to enable a full investigation and audit to be carried out. If monies belonging to the clients are found, they will be returned to the clients. The intervener solicitor will then arrange for the winding–up of the firm with all files returned to the respective clients or appointed solicitors.
(2) Compensation Fund
The Compensation Fund was established in 1978 to mitigate the losses suffered by members of the public in consequence of the dishonesty of an advocate and solicitor. Every Member of the Malaysian Bar has to make a compulsory annual contribution of RM100 to the Compensation Fund. A person who has sustained a loss as a result of the dishonesty of an advocate and solicitor, can make an application for a grant from the Compensation Fund, contingent on fulfilling the criteria. Over the years, the Compensation Fund has paid out millions of ringgit to aggrieved persons. In 2017 for example, the Compensation Fund paid out RM1.9 million to 57 claimants.
The Bar Council takes its regulatory role of protecting members of the public very seriously and will always endeavour to do whatever it can within the powers given to it, under the LPA.
The Malaysian Bar wishes to reiterate that we will brook no dishonesty in our profession and we will do our utmost to root it out. Dishonest lawyers are a blemish to the legal profession and their actions tarnish the many honest and hardworking members of the profession.
Abdul Fareed Abdul Gafoor
14 October 2019
1 "Cops looking for 21 lawyers over RM30.4mil in CBT cases", The Star Online, 3 October 2019