A Practical Guide to Pupillage and Admission as an Advocate & Solicitor in Malaysia
OBJECT :
The object of pupillage is to give an opportunity to the pupil to gain some acquaintance with the work of an advocate and solicitor before commencing practice.
The graduate from law school has at least a basic knowledge of substantive and adjectival law but the advocate and solicitor is concerned with the practice of law which is very different from the academic study of law.
The work of an advocate and solicitor covers a very large field. He has to know the law or where to find it. The law is a vast subject and no one can hope to know all of it. A competent advocate and solicitor has a practical working knowledge of those parts of the law with which his practice is commonly concerned but he has to know where to look to be able to find the answers to the questions which his client's problem pose. A substantial part of his work consists of diagnosing accurately what questions arise out of the situation presented to him by his client and the research to find the answers.
In addition to this, the two other major parts of his work involve drafting and advocacy, two quite separate skills but both of which require a full and exact knowledge of the law pertaining to the particular transaction with which the drafting or advocacy is concerned.
Pupillage cannot hope to cover all of this. Knowledge of the law and these special skills develop throughout the professional life of the advocate and solicitor. But at least the pupil can acquire some experience of the law in action, of the relationship between the advocate and solicitor and his client and the relationship with other advocates and solicitors.
The purpose of this guide is to draw the pupil's attention to matters which he should devote himself during the pupillage so as to take full advantage of it and get as much as possible out of it.
THE LAW RELATING TO THE PROFESSION
The pupil must familiarize himself with the law relating to the profession, this includes :-
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The Legal Profession Act 1976 |
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The Advocates & Solicitors (Issue of Sijil Annual) Rules 1978 |
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The Legal Profession (Practice & Etiquette) Rules 1978 |
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The Advocate and Solicitor's Compensation Fund Rules 1978 |
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The Solicitors' Remuneration Order 1991 |
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The Solicitors' Account Rules 1990 |
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The Accountant's Report Rules 1990 |
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The Legal Profession (Professional Liability) Rules 1991 and Disciplinary Rules. |
Rulings are issued by the Bar Council from time to time. When you are admitted you will receive a copy of the booklet containing the consolidated rulings and you should keep it up-to-date with the rulings which the Council makes from time to time and which are published to all advocates and solicitors.
The rules relating to professional conduct and to practice and etiquette are very important. The profession is an ancient and honourable one. As a member, an advocate and solicitor has obligation to the court, to the public, to the client and to fellow members. Some of these are set out in the Practice and Etiquette Rules and the rulings of the Bar Council from time to time but these cannot cover every situation which may arise. The golden rule is to behave in a strictly honourable fashion at all times. If you are in doubt as to what this entails in any given situation, you may write to the Bar Council for a ruling. Professional misconduct including breaches of etiquette can give rise to disciplinary proceedings against the advocate and solicitor concerned. A pupil may also be liable to disciplinary proceedings. Part VII of the Act should be studied with care.
THE DUAL FUNCTION OF AN ADVOCATE AND SOLICITOR
Two basic skills have to be mastered: drafting and advocacy. Drafting forms the bulk of a solicitor's work and covers the drafting of documents of every kind. In Malaysia, by reason of the profession being fused, drafting skills extend to the settling of pleadings and other court documents as well. Drafting is an art which can only be developed by practice. It requires a thorough knowledge of the law, careful thinking out of the subject matter and meticulous and precise use of words in order to avoid obscurity and ambiguity. Proper drafting cannot be done rapidly. Hasty and sloppy drafting is inevitably ill-considered and can lead to litigation because of ambiguity, looseness in expression, vagueness and failure to cover the matter adequately. The ideal is to draft a complete comprehensive, watertight document expressed with clarity and precision. It is not possible for the human mind to envisage every possibility which may occur but careful thought will bring to light those possibilities which are likely to occur and these can be dealt with in the drafting.
Advocacy is primarily concerned with the pleading of cases in Court, but it also includes the mediation and negotiation of settlements between parties, advising clients, and persuading the other side to a particular point of view. Politeness and courtesy are an essential part of good advocacy. Advocacy is concerned with persuasion and Courts and other people are best persuaded by the advocate who has thoroughly mastered the facts, presents them clearly and puts forward reasonable arguments and is tactful in presentation. The Advocate must, of course, have the relevant law at his fingertips so as to he prepared to deal with any points which may be brought up by the Court or by Counsel on the other side. "le experience in advocacy can only be gained from observing good advocates pleading their clients' cases in Court as well as practising it yourself in as many of your own applications as possible, you can also profit by reading some of the many books on the subject.
THE ADVOCATE’S PRACTICE
The practice of an Advocate may be broadly divided into criminal litigation and civil litigation.
Criminal Litigation
The practice of criminal litigation, requires familiarity with the provisions of the Criminal Procedure Code. The pupil interested in criminal litigation should also endeavor to gain some experience in the following:-
- Interviewing clients (in the office, the police station, prison or other place of remand)
- Applications for bail
- Attending at hearings where accused person pleads guilty to the charge, and the consequent submission of a plea in mitigation on his behalf
- Attending a trial-within-a-trial (“'voir dire") for the admission of a statement made by an accused person
- Attending a case where a submission of "no case to answer" is made (at the close of the case of the prosecution)
- Drafting appeal papers (Notice of Appeal and Petition of Appeal), and attending the hearing of the appeal
- Attending a criminal hearing whenever possible
Civil Litigation
The practice of civil litigation requires familiarity with the Rules of High Court 1980 and the Rules of the Subordinate Court 1980. There are other rules also which should be known of such as the rules relating to appeals to the Supreme Court, Bankruptcy Rules and the rules made under the Companies Act 1965. Experience as follows is desirable:-
- Accompanying the firm's court clerk or filing clerk to the Court Registries to observe the filing and issuing of court documents, and inspection of documents and the various Court registers
- The drafting of pleadings and other court documents (including Statements of Claim, Defences, Reply to defence, Summonses for Direction, Summonses in Chambers, Affidavits in support of applications, Order 14 applications, draft orders and Judgments, and Judgments in Default of Appearance or Defence)
- Attending Order 14 proceedings
- Attending to applications for injunctions and interlocutory relief (interim injunctions, Mareva injunctions, Anton Piller orders), and drafting the court papers for them
- Attending general Motion hearings in the High Court
- Attending and observing civil trials in their various stages from the taking of instructions from clients, the taking of statements from witnesses, getting up for trial, preparing the bundle of authorities, agreed bundle of documents, subpoenas and other documents, trial hearing appeal (if any), drafting bill of costs, and taxation hearings
- Drafting opinions, and briefs to Counsel
- Drafting the documents for and attending on execution proceedings, writs of seizure, garnishee orders, charging orders, bankruptcy petitions, companies winding-up petitions, and writs of possession
- Drafting the documents for and attending on matrimonial proceedings such as divorce, annulments, maintenance, custody and adoption
- Drafting the documents for and attending on proceedings arising out of road traffic accident claims
THE SOLICITOR'S PRACTICE
The scope of a solicitor's practice is not easy to define, and there is much scope for specialization. It covers every sort of work apart from contentious work. Solicitors should have some experience in conveyancing, basic commercial work, and probate and administration.
The client will come to the solicitor for advice on all kinds of transaction some of which may be beyond the scope or experience of the solicitor, it is essential for a solicitor to be aware and to know when to seek advice either from senior members of the Bar with special experience, or professionals in other fields. For example, if a matter requires the examination of lengthy or complicated financial records of a company, it may be desirable to seek the client's permission to engage an accountant to do this.
In the field of conveyancing the pupil should attempt to follow from the beginning to the end as many types of transactions as possible. For example, conveyances, charges (legal and equitable, including by way of deed of assignment in case of properties for which title is yet to be issued), leases and assignments. Familiarity with the National Land Code is essential and experience in the use of the various documents prescribed by it should be sought. The pupil should also:
- accompany the search clerk on his rounds to the Registry of Titles and learn how to conduct a title search
- attend interviews with clients on financing arrangements
- attend with the clerk or master at the completion of a sale and purchase
For probate and administration, the pupil should learn to:
- prepare Petitions for Letters of Administration and Grants of Probate
- take instructions on and draft wills
Basic commercial law would include experience in the following:-
- the stamping of documents (this necessitates familiarity with the provisions of the Stamp Act)
- the registration of documents (pursuant to the Companies Act, the Hire Purchase Act, the Bills of Sale Act)
- the incorporation of a company and the registration of a business
- the drafting and vetting of security documents, such as debentures, charges, deeds of covenants and loan agreements
AREAS OF SPECIALIZATION
The list set out above is by no means exhaustive. Fields of specialization include:-
- Income tax matters
- Admiralty actions
- Ship mortgages and financing
- Trade marks, patents and copyright matters
- Land acquisitions
- Banking
- Building and developers' contracts
- Arbitration proceedings
- Muslim law
- Corporate financing
It is not possible for a pupil to cover all the aspects of a solicitor's practice mentioned above but as much should be done as possible.
BUSINESS MANAGEMENT
It may not be possible to see much of this during the pupillage but it is useful if the pupil can see something of office administration. The handling of clients' monies is a very serious responsibility and the rules relating 'o this and the system of handling them must be thoroughly known and strictly observed.
SOME PRACTICAL ADVICE
The master will be a senior practitioner. In consequence, he or she is likely to be a very busy person, with the exigencies of practice making large demands on his or her time. In terms of opportunity costs, the master is doing the pupil a favour by assuming the responsibilities of being a master. The master will set aside time willingly enough for the pupil, but the pupil must not expect to be spoon-fed. The emphasis is not on academic tutorials or discussions, but on following your master in his or her work, and watching and learning. If at any stage the pupil does not understand why things are done in a certain way, he should ask. The pupil should not be reluctant to ask questions frequently. That is how one learns. But the pupil should ask himself the question first and try to find the answer. Only then should the master be approached. Time should be set aside regularly by the master to discuss the progress of the pupillage. No master will begrudge time spent on a pupil genuinely interested in his or her craft.
During the pupillage, the pupil should take the trouble to get to know as many members of the profession as possible, not merely other pupils. An advocate and solicitor deals with fellow advocates and solicitors every day in all sorts of matters, and a pupil should make an effort taken at the beginning of his career to introduce himself to other members of the profession. This will make working relationships for the future so much easier, satisfying and personally rewarding. The more friends and acquaintances you make at the Bar, the richer is your professional life.
A pupil may decide that he will confine himself substantially to practising as an advocate or as a solicitor. Even if he does so decide, he should during his pupillage try and obtain as wide experience of both sides of the profession as possible. These sides are closely related and overlap and the solicitor must have some familiarity with the laws and procedures relating to the practice of the advocate and vice versa, Attendance at trials is very desirable. To hear an experienced advocate conducting a trial or appeal is a valuable experience. If while attending this, there is a point of presentation or procedure which the pupil does not understand, he should not hesitate, when the matter is over, to ask the Counsel concerned. Counsel will always be glad to explain these matters to a pupil or junior member of the profession.
The provisions for admission as an advocate and solicitor are set out in Part 11 of the Legal Profession Act 1976. Section 12 requires a "qualified person" (defined in Section 3) to serve a period of pupillage. The prescribed period is nine months but the Bar Council may exempt qualified person from any period up to six months pupillage in various circumstances set out in Section 13. The pupillage is served with a master who must be an advocate and solicitor for at least seven years immediately preceding the date of commencement of the pupillage. With the consent of the Council a pupil may serve different parts of the period of pupillage with different masters. It is intended that the pupillage will be full-time and a pupil may not, without the special leave in writing of the Council hold any office or engage in any employment of any kind whether full-time or otherwise during pupillage. He may however be remunerated by his master and this is the normal practice.
A pupil works under the personal direction and supervision of his master. The master's responsibility is to see to it that the pupil receives instruction or gains experience i n the usual type of work normally undertaken by an advocate and solicitor, and that the pupil has the opportunity of becoming acquainted with the laws and general rules of practice and procedure applicable to the legal profession in Malaysia.
THE APPLICATION TO COURT FOR ADMISSION
Pupils are advised to study carefully for themselves the court application for admission set out in the Act (particularly SS. 10- 19) and consult their masters if they are in any doubt. (A pupil should obtain a copy of the Act for himself). As an aspiring advocate and solicitor, a pupil is personally responsible for ensuring that all the documents for his admission are in proper order and are filed in good time.
APPLICATION FOR PRIVILEGE OF RESTRICTED AUDIENCE
By law, only an advocate and solicitor holding a current practising certificate has the right of audience in the Court to represent a client. However, the Act provides for a form of restricted audience for pupils.
A judge may order that a pupil be permitted to appear on behalf of the master or the master's firm in which the master is practising:-
a) during the period of three months from the date of the order-
- before a Judge or a Registrar of the High Court, in Chambers
- before a President of the Sessions Court or a Magistrate, in Chambers
- before a Registrar of the Subordinate Courts
b) at the expiration of the said period of three months in chambers in the High Court and in the Subordinate Courts and before any Magistrate, to conduct any cause or matter.
THE CALL
A pupil is represented on the hearing of his petition by Counsel who moves his call. The master will approach Counsel to do this on behalf of the pupil if the pupil has no Counsel of his own choice. It is not etiquette for the pupil to be represented by his master or any member of his master's firm. The pupil should call upon his Counsel, bringing copies of all the papers and draw his attention to any possible difficulty that might arise on the hearing.
THE CALL DAY
The dress code at the call is that applicable to all practitioners when they attend in open court. For men, this means a gown, a white long-sleeved shirt with a stiff wing collar, a very dark suit (preferably black) and black shoes. For women, this means a white blouse, bands, a very dark (preferably black) jacket, a conservative or traditional dress and black shoes.
The procedure in court on call day is generally as follows: The proceedings are held in open court. First, the pupil's counsel will rise to address the Court to request that the petition be granted. This is referred to as "moving the call". The pupil should rise and bow to the Court when Counsel first mentions the Petition, remain standing throughout the mention of the petition. Counsel for the Attorney General, the Bar Council and the State Bar Committee will state whether the petition is objected to.
PRACTISING CERTIFICATE
When the Order of Admission is made on the Petition the next step is to obtain a Practising Certificate from the Registrar. Section 29 sets out the procedure. A necessary preliminary to obtaining the Practising Certificate is the issue of a Sijil Annual from the Bar Council. The procedure for this is set out at Section 32-34 of the Act.
INSURANCE
Every practising member of the Bar must be covered by professional indemnity against professional liability: Section 78A of the Act and the Rules made under it. The Sijil Annual will not be issued unless this cover is in place. Â
RESPONSIBILITIES
The primary duty of a pupil master is to help, guide and advise his pupil in the traditions of the legal profession and to supervise the training of the pupil in the practice of an advocate and solicitor so that the pupil may obtain the maximum benefit from his period of pupillage.
A master should not accept more pupils than he is able to effectively guide and train. As a general rule, a master should not accept more than two pupils at any one time. Before accepting a pupil, a master should be satisfied that he is qualified to accept a pupil in the first place. Likewise the master should satisfy himself that the pupil is a qualified person.
The master should ensure that the pupil completes the prescribed period of pupillage. The date of commencement of pupillage should be noted, and thereafter, a record of any leave of absence should be kept, as any period of absence will not count towards satisfying the prescribed period of pupillage.
The master has to sign a Certificate of Diligence in support of the pupil's petition for admission to the Bar. This is not a mere formality. It is a representation to the Court that the pupil has devoted his full time and attention throughout the period of the pupillage to the acquisition of experience in professional practice.
In the distribution of work, the master should ensure that his pupil receives exposure to as wide a variety of work as possible.
The master should ensure that the pupil is well-grounded in professional ethics and, in particular in the practice and etiquette of the Bar.
The master should also require the pupil to read in advance his papers and draft pleadings or other documents relevant to the master's practice including opinions, agreements, conveyances, leases and all other documents which an advocate and solicitor would be expected to consider, draft or settle in his practice. The master should ensure that his pupil has the opportunity of attending Court with him. If the master attends Court infrequently, or if the master has no trials fixed for the period of the pupil's pupillage, the master should make arrangements for the pupil to attend at trials and appeals to be conducted or argued by senior members of the master's firm, or senior advocates of other firms.
Masters should also require their pupils to attend conferences (both with clients, and with the other p" or parties in the presence of their solicitors) and negotiations to enable the pupil to obtain sufficient experience in these matters.
A master should also take a direct interest in and monitor all work done by his pupil. When the master has obtained leave for restricted audience for his pupil under S.36 of the Act, the master should ensure that the pupil is well briefed before the pupil attends Court. After the pupil has attended Court on behalf of this master, the master should take the opportunity of discussing with his pupil the appearance in Court.
The master should strive to establish a relationship of mutual trust and confidence between himself and the pupil. If mistakes are made by the pupil, these should be drawn to the attention of the pupil as soon as possible, and the pupil should be shown how the matter should be correctly done. The master should make it clear to the pupil and his colleagues in his firm that the pupil is responsible to him alone. As a matter of courtesy to the master and to the pupil, no work or assignment should be given to a pupil without the consent of the master. Masters should advise their colleagues accordingly: a pupil may find it difficult to refuse week or assignment from another member of the firm. If the master's area of practice is a specialized one, the master may wish to consider the desirability of arranging for the pupil to spend time working with some other member of the master's firm in order to give the pupil broader exposure.
A master should ensure that his pupil does not take instructions from clients or give advice, or sign letters of documents on behalf of the master or his firm. He should also impress on his pupil the necessity for the strictest observance of confidentiality in relation to all matters relating to his clients.
The Bar Council welcomes every newly admitted advocate and solicitor and wishes them well. The Bar is an ancient and noble profession and the Council wishes to impress on all new members the obligation of maintaining the strictest ethical standard in accordance with the best traditions of the profession and a high standard of courtesy to the Bench, fellow-members and the public at all times.