Professional Practice 2022/2023 Ethics & Advocacy Lecture Notes

Comprehensive vocabulary flashcards covering the CLP Ethics and Advocacy lecture notes, including statutory provisions, case law, and professional conduct rules.

Section 3 Civil Law Act (CLA) 1956

A provision stating that subject to any written law, courts shall apply English common law and rules of equity, but if they conflict, equity prevails.

Legal Profession Act 1976

The primary legislation governing the legal profession in Malaysia, including the establishment of governing bodies and rules for professional conduct.

Ethics of the Legal Profession

The rules governing the proper conduct of an advocate & solicitor towards judges, clients, other lawyers, the interest of justice, and the legal profession.

Bar Council Malaysia & Anor v. Judy Blacious s/o AF Pereira [2017]

A case emphasizing that the legal profession is noble and practitioners must respect the rule of law and ethics to be eligible to practice.

Legal Profession Qualifying Board (LPQB)

A body established under Section 4 of the LPA 1976 responsible for prescribing entry qualifications, providing courses of instruction, and conducting the Bahasa Malaysia Qualifying Exam.

Malaysian Bar

A body corporate established under Section 41(1) of the LPA 1976 with perpetual succession and a common seal, consisting of every advocate and solicitor with a valid Practising Certificate.

Disciplinary Board (DB)

A body established under Section 93(1) of the LPA 1976 for the purposes of disciplinary proceedings against advocates, solicitors, and pupils.

Misconduct (s.94(3) LPA 1976)

Any conduct unbefitting of an advocate & solicitor, including criminal offences, breach of duty to the court, dishonesty, or charging excessively gross fees.

Qualified Person (s.3 LPA 1976)

A person who has passed the final LL.B exam at UM, is a Barrister-at-law of England, or possesses other qualifications declared sufficient by the LPQB.

Pupillage

A mandatory 9-month training period (s.12(2) LPA 1976) for a qualified person, known as a 'pupil', under the tutelage of a pupil master.

Pupil Master

An advocate and solicitor who has been in active practice in Malaysia for at least 7 years and is authorized to supervise pupils (s.13(1) LPA 1976).

Section 36(2) LPA 1976 (Short Call)

An order permitting a pupil to appear in Chambers before a Judge or Registrar, or before a Magistrate to mention a case or apply for bail.

Caveat against admission (s.17 LPA 1976)

A formal notice entered by any person to object to the admission of a petitioner as an advocate and solicitor.

The Roll (s.28 LPA 1976)

The official register of advocates and solicitors of the High Court kept by the Registrar in the order of their admission.

Practising Certificate (PC)

An annual certificate issued under s.29(1) of the LPA 1976 that authorizes an advocate and solicitor to practice law.

Unauthorised Person

A person practicing as an advocate and solicitor without having their name on the Roll or lacking a valid practising certificate (s.36 LPA 1976).

Articled Clerk (s.20 LPA 1976)

A person (at least 17 years old) who enters into articles with a principal with a view to admission as an advocate and solicitor.

Special Admission Certificate (s.28A LPA 1976)

A certificate issued by the Attorney General for the admission of a person who is not necessarily a 'qualified person' but has at least 7 years of relevant legal experience.

Section 18(1) LPA 1976 (Ad hoc Admission)

A provision allowing the Court to admit a person with special qualifications or experience for the purpose of one particular case.

Cherie Booth QC v. AG [2006]

A case ruling that 'special qualifications or experience' under s.18(1)(a) must be of a high degree that is not available among local advocates and solicitors.

Permitted Practice Areas (s.40A LPA 1976)

Prescribed areas of legal practice involving Malaysian law and at least one other national law, or solely non-Malaysian law, in which foreign lawyers may practice.

Selection Committee (s.40C LPA 1976)

A committee co-chaired by the Attorney General and the President of the Malaysian Bar that recommends the granting of licenses for international partnerships.

Fly-In-Fly-Out Provision (s.37(2B) LPA 1976)

A provision allowing foreign lawyers to enter Malaysia for up to 60 days in a calendar year to advise on non-Malaysian law matters.

Rule 3 LPPER 1978 (Embarrassment)

A rule stating a lawyer shall not accept a brief if they possess confidential info from a previous client or have a personal relationship with a party or witness.

Rule 27 LPPER 1978 (Pecuniary Interest)

An advocate and solicitor shall not appear in any matter in which they are directly pecuniarily interested, except for taxing their own costs.

Rule 28 LPPER 1978 (Witness)

A rule prohibiting a lawyer from appearing in a case where they have reason to believe they will be a witness on a material and disputed question of fact.

Rule 54 LPPER 1978 (Change of Solicitor)

A rule prohibiting a lawyer from acting for a party already represented unless they obtain consent or ensure professional remuneration has been paid to the first lawyer.

Rule 40 LPPER 1978 (Surety)

A prohibition against an advocate and solicitor standing as a surety or bailor for their client for the purpose of any legal proceedings.

Rule 56 LPPER 1978 (Judgment In Default)

A rule requiring a lawyer to give 7 days' written notice of intention to enter a JID against a client whose representation is known to the other side.

Touting (Rule 51 LPPER 1978)

Fundamentally inconsistent behavior involving soliciting clients, which is prohibited and considered professional misconduct.

Contingency Fees (s.112(1)(b) LPA 1976)

Agreements where payment is contemplated only in the event of success in the suit, which are strictly prohibited in Malaysia.

Stakeholding (BC Ruling 14.10(3))

A solicitor acting for two or more parties who must strictly adhere to the terms of the agreement and not release money or documents without express consent.

Solicitors' Account Rules 1990 (Rule 3)

The duty of a solicitor to pay any client's money received into a designated 'client account' without delay.

Accountant's Report

An annual report (s.32 LPA 1976) required for the issuance of a Sijil Annual, confirming the solicitor has complied with account rules.

AMLA (2001)

The Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, which imposes reporting obligations on lawyers for suspicious transactions.

Standard of Proof in Disciplinary Proceedings

The burden is beyond reasonable doubt, as established in Majlis Peguam v. Cecil Wilbert Mohanaraj Abraham [2019].

Section 107(1) LPA 1976 (Restoration)

The High Court's power to restore the name of an advocate and solicitor to the Roll if it thinks it is 'fair and reasonable' to do so.

Immunity from Suit

The Malaysian position (Miranda v Khoo Yew Boon [1968]) is that advocates and solicitors do not enjoy immunity and can be sued for contractual breach or negligence.

Professional Negligence Standard of Care

The degree of care and skill expected is that of a reasonably competent practitioner in the same profession (Shearn Delamore & Co v. Sadacharamani [2016]).

Undertaking

A special legal promise made by a solicitor in their professional capacity, the breach of which can attract legal liability or disciplinary action for misconduct.

Fiduciary Duty

An equitable obligation of loyalty (as described in Bristol & West v Mothew) requiring a lawyer to act in good faith and avoid conflicts of interest.

Civil Contempt

A reclassified category of contempt involving the breach of a particular court order or a specific undertaking given to the court.

Scandalising the Court

A form of criminal contempt involving acts or writing calculated to lower the authority or public confidence in the Judiciary as an institution.

Section 126 Evidence Act 1950 (Professional Privilege)

The absolute protection of communications made between an advocate and client in the course of professional employment, unless the client gives express consent.

Litigation Privilege

A common law privilege (Wang Han Lin v HSBC [2017]) covering confidential communications between client and solicitor made for the dominant purpose of litigation.

Leading Questions (s.141 EA 1950)

Questions which suggest the desired answer, generally prohibited in Examination-in-Chief and Re-examination except with court permission.

Hostile Witness (s.153 EA 1950)

A witness who shows a bias against the party calling them, allowing the court to permit that party to cross-examine their own witness.

Examination-in-Chief (s.138(1) EA 1950)

The first stage of witness examination by the party who calls the witness to elicit evidence relevant to the facts in issue.

Sijil Annual

A certificate issued by the Bar Council annually (s.32 LPA 1976) which is a prerequisite for an advocate and solicitor to apply for their Practising Certificate.

Legal Profession (Publicity) Rules 2001

Rules regulating how advocates and solicitors may publicize their practice, restricting information to 'approved information'.