@ Malay Mail Online (used by permission)
BY IDA LIM
KUALA LUMPUR, April 30 — The Bar Council has introduced a new requirement for law firms to get its approval for their logos, but said the new ruling — announced last Friday to lawyers in Peninsular Malaysia — was decided in March before the movement control order (MCO).
In a circular dated April 24 to Malaysian Bar members, the Bar Council announced that it has amended Ruling 3.05 of the Bar Council’s written Rules and Rulings related to logos law firms are permitted to use.
The previous Ruling 3.05 merely stated that “the use of any logo, insignia, seal of the firm and any elaborate or decorated script or style on a law firm’s letterhead and stationery in a manner which is unobtrusive and not incompatible with the dignity of the legal profession is permitted”, but the Bar Council has now added on the words “subject to the approval of the Bar Council”.
Saying that the new ruling was effective immediately, the Bar Council reminded lawyers to send their law firms’ logos by email to the Bar Council to seek approval before using them.
In the same circular, the Bar Council said the approval of logos will be guided by several factors, including the disallowing of logos that could bring the legal profession into disrepute, disallowing of slogans, phrases, images of animals or human figures in logos.
It also said that “words indicating that the logo belongs to a law firm — such as ‘Advocates & Solicitors’, ‘Law Firm’ and ‘Advocates’ — should not be part of the logo”.
A quick check by Malay Mail showed that the term “Advocates & Solicitors” — which to layman means lawyer — is a common feature in logos of many law firms including some well-established law firms, while there are also law firms that do not use the phrase in their logos.
Response from lawyers
When contacted, most lawyers who spoke to Malay Mail questioned the Bar Council’s priorities and the timing of the new ruling amid the MCO, details of the new ruling such as the disallowing of the use of “Advocates & Solicitors” in law firms’ logos, and how it would effectively place the Bar Council in a role of giving out approvals instead of self-regulation by law firms.
Former Malaysian Bar president Ragunath Kesavan said the timing was poor for such a new ruling and would add more worries for lawyers, when law firms in Malaysia are grappling with other problems and economic woes amid the MCO which is now in its seventh week.
Ragunath said the new ruling indicates a disconnect between Bar Council and members of the Malaysian Bar and that such a drastic change should not have been made without wider consultations.
“And also it’s a regressive move because logos have been used for many years now, and the change that is required is for approval to be given, which means that all the firms which are currently using logos cannot use them until they are approved.
“So there’s going to be a huge backlog of applications and it changes completely the structure of self-regulation and rules given where everybody complies, and if anyone does not comply, they can take action for breach of the rules, complaint can be lodged with the disciplinary board. There’s no need for an approval structure which creates unnecessary bureaucracy,” he said, questioning how long approvals would take.
“It says you can’t use Advocates and Solicitors in your logo, how does that gel with the legal profession? So I mean, what sense does that make, we are lawyers, we can’t put in our logo that we are lawyers?” he asked, confirming that law firms would have to comply with the ruling as failure to comply would be considered a disciplinary breach that the Bar Council can take action against.
Lawyer Lim Wei Jiet said that he believed that most lawyers are “primarily concerned that this recent ruling means that all law firms have to apply and obtain approval before they can use their respective logos”, adding: “This is unnecessarily bureaucratic and does not fit with modern-day practice where law firms should be allowed more entrepreneurial space.”
“No one is disputing that the Bar Council can take action against the errant few — but they should play a supervisory role and act only upon receiving complaints, instead of being an approving authority.
“Further, there has been no explanation so far on why the words ‘Advocates & Solicitors’, ‘Law Firm’ and ‘Advocates’ have been barred. I personally don’t see any reason why it is ‘incompatible with the dignity of the legal profession’ to merely indicate you are a legal practitioner.
“The Bar Council should, at the very least, come out with a clarification on the rationale behind these recent rulings,” said Lim, who was commenting in his personal capacity as a member of the Malaysian Bar.
Lawyer Nizam Bashir said it was not uncommon to find law societies in Commonwealth countries regulating the marketing of professional services, such as in the UK, New South Wales and Queensland in Australia and in Ontario in Canada but said such examples were against “false and misleading marketing”, but do not require “prior approval”.
While acknowledging that the Legal Profession Act 1976’s Section 57 empowers the Bar Council to make such rules, Nizam said he was inclined to the view that the Bar Council had “exercised its powers disproportionately by obligating firms to seek ‘prior approval’ of logos.”
Also commenting on the question of the timing of the amended rule, Nizam said he would “respectfully suggest that the Bar Council prioritise and exert more efforts in identifying a workable solution for firms to operate during the movement control order”, contrasting the current situation in Malaysia for law firms with the UK situation where the justice system and a large number of lawyers there have been categorised as a key public service since mid-March.
Lawyer Gavin Jay Anand Jayapal, who described the new ruling as a “policing” of law firms’ logos, said that it was appalling that law firms who have spent money for their logos and have used them for years are being told during the MCO to subject them to the Bar Council’s scrutiny.
“In the midst of an MCO, when law firms are concerned with survival and ensuring that salaries are payable, the threat of disciplinary action is an absolute hindrance,” he said, pointing out that failure to comply with the new ruling by the Bar Council may be considered to be a misconduct under the Legal Profession Act’s Section 94(3)(k) and may cause a lawyer to risk disciplinary action under Section 94(2) including a fine, being suspended from practice or being struck off the Roll of solicitors.
“What is of even more concern would be the fact that the ruling is absolutely arbitrary. No guidelines, SOP or guidance whatsoever has been provided,” he said, arguing that there was no grace period for compliance given and no advance warning was issued.
He also highlighted that a separate set of rules — the Legal Profession (Publicity) Rules 2001 — specifically includes the designation “Advocates & Solicitors” as “approved information”, but the Bar Council’s new circular specifically said logos cannot contain this term.
Bar Council explains
When contacted, Malaysian Bar president Salim Bashir Bhaskaran said that the Bar Council’s new ruling was made on March 7, which was before the government implemented the MCO.
“The amendments to the ruling were made by the Bar Council before MCO period. It’s a matter of practice that once a decision is made, it has to be informed to members,” he said in response to Malay Mail’s queries.
“All rulings made earlier can be revisited by Bar Council, if it’s deemed that it’s a most prudent and wise thing to do,” he added when replying to a question on whether the Bar Council would consider deferring the ruling until more details are available.
When asked why the ruling was amended, Salim noted that some logos used or suggested by law firms were “obtrusive and not compatible to the legal profession” while some logos were pictured in languages that need translations, adding that the amendment was done to harmonise two conflicting Bar Council rulings.
“Historically there exist in the rules of two contradictory rules, one which requires the firms to submit their logos for approval, and the other one says firms need to ensure that the logos is not obtrusive and incompatible to profession, this amendment is to harmonize both the rules,” he said.
He referred to Ruling 2.06 in Bar Councils’ Rules and Rulings as the contradictory rule, which states “A law firm’s logo which has been approved for publication on the firm’s letterhead and stationery may appear on the firm’s signboard.”
Also referring to the same Ruling 2.06, Salim said the requirements for law firms to seek approval for their logos “has been there for all the while”.
When asked if the amended Ruling 3.05 requiring Bar Council approval for law firms’ logos apply only to new logos or logos already in use by law firms, Salim confirmed that it applies to both “existing and the new ones, because [Ruling] 2.06 been there all the while, mandating approval before using”.
Asked if the amended ruling applies only to law firms’ logos for letterheads or when used elsewhere such as on signboards, business cards, newsletters, emails and websites, Salim confirmed that it applies to all such situations.
On why the phrase “Advocates & Solicitors” was not allowed in the logos that are typically used for branding purposes, Salim cited the Legal Profession (Publicity) Rules 2001, stating: “Rule 18(3) states in placing advertisement, impliedly the word ‘Advocates and solicitors’ shall not appear.”
Rule 18(3) states that when an advocate and solicitor places an advertisement in any newspaper or publications on behalf of his or his law firm’s client, that advertisement shall not contain any information relating to the lawyer or his firm, except for his name and the law firm’s name, address and telecommunication numbers.
The Legal Publicity Rules 2001 contains extensive publicity rules for lawyers, including a list of 18 types of “approved information” including the designation of “Advocates and Solicitor”, and only allowing information relating to a lawyer or law firm — covering a wide range of instances such as letterheads, stationery, nameplates outside the firm’s premises, business cards, journals, magazines, newsletters, and even greeting cards — if they are approved information.
Asked if the amended ruling which takes effect immediately would mean that all law firms in Peninsular Malaysia and the federal territories would have to immediately stop using their existing logos, Salim replied in the negative.
“No, the Bar Council does not do policing, if we receive complaints, we will seek explanation and/or ask to amend the logo. If there are continuous breaches, upon alert, it will entail disciplinary complaints based on the rulings,” he replied.
Salim confirmed that if the Bar Council receives complaints about a law firm’s logo, and that after the Bar Council alerts the law firm to seek explanation or amendment of the logo, and that the logo is decided to be inappropriate but continues to be used by the law firm, this would entail or require disciplinary complaints or disciplinary issues.
“It’s only upon continuous usage without amending or removing the logos, as decided by the Bar Council, that will be in breach of rulings made,” he said.
When asked if Malaysian Bar members were consulted before the ruling was amended, Salim, who as Malaysian Bar president sits on the 38-member Bar Council, noted: “Matters of rules and rulings are decided by the Bar Council pursuant to LPA.”
“As regulators, Bar Council, among others, our duty is to provide certainty on dos and don’ts, logo is deemed as an essential element of branding exercise, and some firms are using it, it’s better to get the logo approved rather than worrying about another firm complaining against them, and on economic side, if you have to spend to print letterheads and stationeries, and if later it is decided that the logo could not be used, there will be an economic loss,” he also said.