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PART VII

DISCIPLINARY PROCEEDINGS

93. Disciplinary Board.

[Am. Act A812]

(1) For the purposes of disciplinary proceedings under this Part, there shall be established a Disciplinary Board.

(2) The Disciplinary Board shall have the same powers as those exercised by the Bar Council before the becoming into force of this Part.

(3) The Disciplinary Board shall consist of the following:

(a) the chairman of the Disciplinary Board appointed by the Chief Justice and such person shall be a Judge of the High Court or Supreme Court, a retired Judge of the High Court or Supreme Court or any other person who is qualified to be a Judge of the High Court or Supreme Court: Provided that in a case where a Judge of the Supreme Court is to be appointed as the chairman, such appointment shall be made by the Chief Justice in consultation with the Lord President;

(b) the President of the Bar Council with the Vice-president as his alternate; and (c) fifteen practitioner members of not less than fifteen years standing appointed by the Chief Justice for a term of two years: Provided that the' Chief Justice may extend their term for a period not exceeding a further two years or re-appoint them.

(4) The quorum of the Disciplinary Board shall be seven members of which one member shall be from paragraph (a), one member from paragraph (b) and five members from paragraph (c) of subsection (3).

(5) The secretary to the Disciplinary Board shall be a full-time employee of the Bar Council appointed under section 98 and such person shall be an advocate and solicitor of not less than five years' standing.

(6) The Disciplinary Board may make rules relating to its quorum and to regulate its procedure.

94. Power of Disciplinary Board to strike off the Roll, suspend for misconduct, etc.

[Am. Act A812]

(1) All advocates and solicitors shall be subject for the purposes of all disciplinary actions to the control of the Disciplinary Board.

(2) Any advocate and solicitor who has been guilty of any misconduct shall be liable to be struck off the Roll or suspended from practice for any period not exceeding five years.

(3) For the purposes of this Pant, misconduct means conductor omission to act in Malaysia or elsewhere by an advocate and solicitor in a professional capacity or otherwise which amounts to grave impropriety and includes-

(a) conviction of a criminal offence which makes him unfit to be a member of his profession;

(b) breach of duty to a court including any failure by him to comply with an undertaking given to a count;

(c) dishonest or fraudulent conduct in the discharge of his duties;

(d) breach of any rule of practice and etiquette of the profession made by the Bar Council under this Act or otherwise;

(e) being adjudicated a bankrupt and being found guilty of any of the acts or omissions mentioned in paragraph (a), (b), (c), (e). (f). (h), (k) or (l) of section 33(6) of the Bankruptcy Act 1967;

(f) the tendering or giving of any gratification to any person for having procured the employment in any legal business of himself or any other advocate and solicitor;

(g) directly or indirectly procuring or attempting to procure the employment of himself or any other advocate and solicitor through or by the instruction of any person to whom any remuneration for obtaining such employment has been given by him or agreed or promised to be so given;

(h) accepting employment in any legal business through a tout;

(i) allowing any unauthorized person to carry on legal business in his name without his direct and immediate control as principal or without proper supervision;

(j) the carrying on by himself, directly or indirectly, of any profession, trade, business or calling which is incompatible with the legal profession or being employed for reward or otherwise in any such profession, trade, business or calling;

(k) the breach of any provision of this Act or of any rules made thereunder or any direction or ruling of the Bar Council;

(l) the disablement, striking off, suspension or censure in his capacity as a legal practitioner in any other country or being guilty of conduct which would render him to be punished in any other country;

(m) the charging, in the absence of a written agreement, in respect of professional services rendered to a client, of fees or costs which are grossly excessive in all the circumstances;

(n) gross disregard of his client's interests; and

(o) being guilty of any conduct which is unbefitting of an advocate and solicitor or which brings or is calculated to bring the legal profession into disrepute.

(4) Where an advocate and solicitor-

(a) has been found guilty by a count of law of any offence involving dishonesty, misuse or misappropriation of any money or property of a client or of any other person;

(b) has been disbarred, struck off, suspended or censured in his capacity as a legal practitioner in any other country;

(c) is the subject of a complaint concerning any dishonest act committed by him in his capacity as an advocate and solicitor;

(d) has left the country or has not attended at his office in such circumstances that the Bar Council may reasonably presume that he has absconded; or

(e) is otherwise incapable from infirmity of body or mind or any other cause of effectively performing the functions of an advocate and solicitor, and the Bar Council considers that it would be in the public interest or in the interest of his clients or of the profession that such advocate and solicitor be suspended from practice. The Bar Council may apply to the Disciplinary Board for an order suspending such advocate and solicitor from practice until further notice.

(5) A pupil shall mutatis mutandis be subject to the same control by the Disciplinary Board as is by virtue of this section exercised over an advocate and solicitor but in lieu of an order striking him off the Roll or suspending him. An order may be made prohibiting the pupil from petitioning the Count for admission until after a date to be specified in the order and Tribunal Panel.

95. Disciplinary Committee Panel and Investigating Tribunal Panel.

For the purpose of disciplinary proceedings under this Panel, there shall be established a Disciplinary Committee Panel with a Disciplinary Committee established under it and an Investigating Tribunal Panel with an Investigating Tribunal established under it.

[Am. Act A812]

96. Appointment of Disciplinary Committee Panel.

(1) The Disciplinary Board shall, from time to time as may be required, appoint a Disciplinary Committee Panel, from a list supplied by the Bar Council, comprising thirty members of whom twenty members shall be advocates and solicitors of not less than ten years standing and having valid practising certificates and ten members who are lay persons:

[Am. Act A812, A861] Provided that the Disciplinary. Board may, whenever it deems it necessary or expedient, and after consulting the Bar Council, vary the number of members of the Disciplinary Committee Panel. Any variation of the number of members shall be in the same proportion of advocates and solicitors and lay persons as described above.

(2) Every member of the Disciplinary Committee Panel shall serve for two years: Provided that the Disciplinary Board may extend his term for a period not exceeding a further two years or re-appoint him.

97. Appointment of Investigating Tribunal Panel.

(1) The Disciplinary Board shall, from time to time as may be required, appoint an Investigating Tribunal Panel, from a list supplied by the Bar Council, comprising sixty members of whom forty members shall be advocates and solicitors of not less than seven years' standing and having valid practising certificates and twenty members who are lay persons:

[Am. Act A812] Provided that the Disciplinary Board may, whenever it deems it necessary or expedient, and after consulting the Bar Council, vary the number of members of the Investigating Tribunal Panel. Any variation of the number of members shall be in the same proportion of advocates and solicitors and lay persons as described above. [Ins. Act A861]

(2) Every member of the Investigating Tribunal Panel shall serve for a term of two years: Provided that the Disciplinary Board may extend his term for a period not exceeding a further two years or re-appoint him.

98. Director of the Complaints Secretariat.

(1) The Bar Council shall, from time to time as may be required, appoint an advocate and solicitor of not less than five years' standing to the office of the Director of the Complaints Secretariat.[Am. Act A812]

(2) The Director shall serve as the Secretary to the Disciplinary Board, the Disciplinary Committee and the Investigating Tribunal.

(3) The Bar Council shall be responsible for the remuneration of the Director and shall have the power to revoke his appointment.

(4) The Director shall be responsible for the daily administration of complaints against advocates and solicitors under this Part.

99. Complaint against advocate and solicitor or pupil.

(1) Any complaint concerning the conduct of any advocate and solicitor or of any pupil shall be in writing and shall in the first place be made or referred to the Disciplinary Board which shall deal with such complaint in accordance with such rules as may from time to time be made under the provisions of this Part.[Am. Act A812]

(2) Any court, Judge. Sessions Court Judge or Magistrate or the Attorney-General may at any time refer to the Disciplinary Board any complaint against an advocate and solicitor or a pupil.

(3) Nothing in this section shall be taken to preclude the Bar Council or State Bar Committee from making any complaint of its own motion to the Disciplinary Board against an advocate and solicitor or a pupil.

100. Investigating Tribunal.

(1) Where a written application or complaint is referred to the Disciplinary Board, the Disciplinary Board shall, if it considers' that there is merit in the application or complaint, forthwith constitute an Investigating Tribunal.[Am. Act A812, A861]

(2) An Investigating Tribunal to be appointed by the Disciplinary Board to inquire into the application or complaint shall consist of three members of whom shall be-

(a) two advocates and solicitors; and

(b) one lay person, appointed from the Investigating Tribunal Panel.

(3) The Disciplinary Board shall appoint a member from paragraph (a) of subsection (2) to be the chairman of the said Investigating Tribunal.

101. Investigation.

(1) An Investigating Tribunal shall, within two weeks of its appointment, commence its investigation into the application or complaint and report its findings to the Disciplinary Board as expeditiously as may be reasonably expected of it but not later than two months after the commencement of such investigation, or within such other period as the chairman of the Disciplinary Board may in writing specify upon an application made by the Investigating Tribunal for an extension of the period of two months.[Am. Act A812, A861]

(2) For the purposes of any investigation the Investigating Tribunal may-

(a) call upon or employ any person to make or assist the making of whatever preliminary investigation it thinks necessary;

(b) require the production for inspection by the Investigating Tribunal or any person employed under paragraph (a) of any book, document or paper which may relate to or be connected with the subject-matter of the investigation and may require any person to give information in relation to such book, document or paper; and

(c) require the person concerned to give all information in relating to any such book, document or paper which may be reasonably required by the Investigating Tribunal or by the person employed under paragraph (a).

(3) Any advocate and solicitor and any other person who without lawful excuse refuses or fails to produce to the Investigating Tribunal or to any person whom the Tribunal may employ for the purposes of investigation any book, document or paper or fails to give any such information relating thereto under paragraph (b) or (c) of subsection (2) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding two thousand Ringgit or to a term of imprisonment not exceeding three months or to both.

(4) Before the Investigating Tribunal commences its hearing in respect of any matter-

(a) the Investigating Tribunal shall post or deliver to the advocate and solicitor concerned-

I. a copy of any written application of complaint and of any statutory declaration or affidavit that has been made in support of the application or complaint; and

II. a notice inviting the advocate and solicitor concerned, within such period not being less than fourteen days) as may be specified in the notice, to give to the Investigating Tribunal any written explanation he may wish to offer and to advise the Investigating Tribunal if he wishes to be heard by the Investigating Tribunal; and

III. the Investigating Tribunal shall allow the time specified in the notice to elapse and give the advocate and solicitor concerned reasonable opportunity to be heard if he so desires and shall give due consideration to any explanation he may make.

102. Disciplinary Board's consideration of report by Investigating Tribunal.

(1) The Investigating Tribunal shall determine and recommend to the Disciplinary Board any one of the following recommendations: [Am. Act A812]

(a) that a formal investigation is not necessary;

(b) that no cause of sufficient gravity exists for a formal investigation but that the advocate and solicitor should be ordered to pay a penalty; or

(c) that there should be a formal investigation by a Disciplinary Committee.

(2) If the Investigating Tribunal in its report recommends-

(a) that there should be a formal investigation, then the Disciplinary Board shall constitute a Disciplinary Committee;

(b) or that a formal investigation by a Disciplinary Committee is not necessary, the Disciplinary Board may, if it disagrees with the recommendation, appoint a Disciplinary Committee.

(3) The Disciplinary Board shall inform the advocate and solicitor and the person who made the application or complaint of the manner in which it has determined the application or complaint and in the event of the determination being that a formal investigation is unnecessary the Disciplinary Board shall on the request of the person furnish him with its reasons in writing.

103. Disciplinary Board's power to order penalty.

(1) If the Disciplinary Board determines that no cause of sufficient gravity exists for a formal investigation to be made but that the advocate and solicitor should be ordered to pay a penalty it may order the advocate and solicitor to pay a penalty of not more than five thousand. [Am. Act A812]

(2) Before the Disciplinary Board makes an order for the payment of a penalty under this section it shall notify the advocate and solicitor concerned of its intention to do so and give him a reasonable opportunity to be heard.

(3) Where the Disciplinary Board has ordered a penalty to be paid under this section by an advocate and solicitor, such penalty shall be paid within one month from date of the order and in default thereof, the Disciplinary Board may order the suspension of the advocate and solicitor from practice until the payment of such penalty is made.

103A. Application to appoint a Disciplinary Committee.

Where-

(a) the Disciplinary Board determines that there should be a formal investigation; or [Am. Act A812]

(b) an advocate and solicitor has been convicted of an offence of criminal breach of trust under section 409 of the Penal Code or any other offence involving fraud or dishonesty; or

(c) the advocate and solicitor has been suspended under section 94 (4) of this Part.

The Disciplinary Board shall forthwith appoint a Disciplinary Committee which shall hear and investigate the matter.

103B. Disciplinary Committee.

(1) The Disciplinary Board shall appoint a Disciplinary Committee to consider, in cases where an Investigating Tribunal has been appointed, the report of the Investigating Tribunal, or to investigate and make recommendations to the Disciplinary Board in respect of cases under section 103A. [Ins. Act A812]

(2) A Disciplinary Committee shall consist of three members of whom shall be-

[Am. Act A861]

(a) two advocates and solicitors; and

(b) one lay person, appointed from the Disciplinary Committee Panel.

(3) The Disciplinary Board shall appoint a member from paragraph (a) of subsection (2) to be the chairman of the Disciplinary Committee.

103C. Findings of Disciplinary Committee.

(1) After hearing and investigating any matter referred to it a Disciplinary Committee shall record its findings in relation to the facts of the case and according to those facts shall determine and make any one of the following recommendations to the Disciplinary Board. [Ins. Act A812]

(a) that no cause of sufficient gravity for disciplinary action exists;

(b) that while no cause of sufficient gravity for disciplinary action exists the advocate and solicitor should be reprimanded; or

(c) that there is sufficient merit in the complaint and that the advocate and solicitor should be subject to one of the following disciplinary actions:

I. imposition of a fine upon the advocate and solicitor for such sum as the Disciplinary Committee deems just;

II. suspension of the advocate and solicitor concerned from practice for such period as the Disciplinary Committee deems appropriate in the circumstances; or

III. striking off the Roll of the advocate and solicitor concerned.

103D. Consideration by the Disciplinary Board of the report of the Disciplinary Committee.

(1) After consideration of the report of the Disciplinary Committee, the Disciplinary Board may make an order- [Am. Act A812, 861]

(a) affirming the recommendations of the Disciplinary Committee; and

(b) may either accept the recommendations of the Disciplinary Committee of the punishment to be imposed or, in exceptional cases, impose a greater punishment.

(2) Before the Disciplinary Board makes an order and imposes a punishment under this section which results in a greater punishment it shall notify the advocate and solicitor concerned of its intention to do so and give him a reasonable opportunity to be heard. (3)Where the Disciplinary Board does not agree with the recommendations of the Disciplinary Committee, the Disciplinary Board shall make such other order as it deems just. [Ins. Act A861]

103E. Appeal from the decision of the Disciplinary Board.

(1) Any party aggrieved by any decision or order made by a Disciplinary Board shall have the right to appeal to the High Court within one month of notification of the decision or order complained against. [Am. Act A812]

(2) The appeal shall be fixed for hearing before three Judges of the High Court.

(3) Any party aggrieved by the decision of the High Court shall have the right to appeal to the Supreme Court within one month of the decision of the High Court.

(4) The Bar Council may in its discretion intervene at any stage of any appeal under this section.

103F. Power to make rules.

(1) The Disciplinary Board shall, from time to time, make rules to regulate the procedure pertaining to disciplinary proceedings.

(2)Any rules made under this Part shall not come into operation until they have been published in the Gazette.

103G. Saving and transitional provision.

(1) The substitution of the provisions relating to disciplinary proceedings by this Act shall not affect any pending application, complaint or disciplinary proceedings at the date of coming into force of this Act.

(2) For the purpose of subsection (1) the provisions of the principal Act relating to disciplinary proceedings shall continue to remain in force.

103H. Establishment of Discipline Fund.

(1) The Malaysian Bar shall establish, maintain and administer a fund which shall be known as the Discipline Fund". [Ins. Act A861]

(2) Every advocate and solicitor shall on each occasion he applies for a Sijil Annual pay to the Malaysian Bar a contribution to the Discipline Fund of such sum as the Bar Council may from time to time determine: Provided that where an advocate and solicitor is applying for a practising certificate which is to be valid for a period which is less than six months in a calendar year, he shall be required to pay a contribution of only one half of the sum determined for that year.

(3) All costs, charges and expenses for the purposes of any disciplinary proceeding under this Act shall be defrayed out of the Discipline Fund.

103I. Payment of fees, fine, costs, etc., into Discipline Fund.

[Ins. Act A861] There shall be paid into the Discipline Fund the fees prescribed pursuant to section 140 and any fine, penalty, or any other payment ordered by the Disciplinary Board to be paid.

103J. Power to make rules.

[Ins. Act A861] The Disciplinary Board may, in consultation with the Bar Council and with approval of the Minister, make such rules as may be expedient or necessary for the better carrying out of the provisions of this Part of this Act.

104. (Repealed by Act A567).

105. Advocate and solicitor may apply to remove his name from the Roll.

(1) Any advocate and solicitor may, subject to this section and to any rule made in that behalf, apply to the Court to have his name removed from the Roll.

(2) Every such application shall be made by way of originating motion and shall be supported by an affidavit in the prescribed form which shall be served on the Bar Council not less than two months before the application is heard.

(3) The Bar Council may for good cause require the applicant to advertise his intention to make the application in such manner as the Bar Council shall direct.

(4) An application under this section shall be heard by a Judge sitting in open court.

(5) No order shall be made on an application under this section if the Judge is satisfied that-

(a) disciplinary action is pending against the applicant; or

(b) the conduct of the applicant is the subject of inquiry or investigation under this Part.

(6) On the hearing of any such application the Judge may make an order-

(a) directing the Registrar to strike off the applicant's name from the Roll; or

(b) adjourning the same sine die or to such date as the Judge seems fair and reasonable, and such order for the payment of costs as may be just.

106. Bar Council to give Registrar notice of order adverse to advocate and solicitor.

The Bar Council shall give the Registrar notice of every order made under this Part that is adverse to an advocate and solicitor, and the Registrar shall cause a notice of the effect of that order to be entered on the Roll against the name of the advocate and solicitor concerned: Provided that an order as to costs only need not be so entered on the Roll.

107. High Court may restore an advocate and solicitor.

(1) The High Court may, if it thinks fair and reasonable, at any time order the Registrar to restore to the Roll the name of an advocate and solicitor which has been removed from, or struck off, the Roll.

(2) Any application that the name of an advocate and solicitor be restored to the Roll shall be by originating motion supported by affidavit, before the High Court.

(3) Notice of the motion shall be served on the Bar Council which shall be represented at the hearing of the motion and shall place before the Court a report which shall include copies of the record of any proceedings as the result of which the name of the advocate and solicitor was removed from, or struck- off, the Roll and a statement of any facts which have occurred since the name of the advocate and solicitor was removed from, or struck off, the Roll and which in the opinion of the Bar Council or any member of it are relevant to be considered or to be investigated in connection with the application.

(4) In the exercise of its jurisdiction under this section, the High Court shall comprise three Judges.

(5) Any party aggrieved by the decision of the High Court shall have a right of appeal to the Supreme Court: Provided that the Judges who made the decision appealed from shall not sit as members of the Supreme Court.

108. Costs for proceedings under this [Ins. Act A861]

The costs of and incidental to all proceedings under this Part shall be at the discretion of the Court hearing the proceedings and may include the costs of the Bar Council and the costs of proceedings before the Investigating Tribunal and the Disciplinary Committee.

109. If person inquired fails to attend.

If the person whose conduct is the subject of inquiry fails to attend before the Court the Investigating Tribunal or the Disciplinary Committee, as the case may be, the inquiry or proceedings may be proceeded with without further notice to such person upon proof of service by affidavit or statutory declaration or in such other manner as the Count may direct.

110. Publication and document presumed evidence of facts therein stated.

(1) In any proceedings under this Part any publication purporting to be printed under the authority of the General Council of the Bar or the Law Society in England and any document purporting to be signed under the authority of those bodies shall, until the contrary is proved, be evidence of the facts therein stated or of any rule, practice or usage prevailing in England as therein stated. [Ins. Act A12]

(2) When the person whose conduct is the subject of inquiry does not appear and the Disciplinary Committee determines under section 109 to proceed in his absence and in any other case with the consent in writing of that person, the Investigating Tribunal or the Disciplinary Committee may either as to the whole case or as to any particular fact or facts, proceed and act on evidence by affidavit or statutory declaration.

111. No action against Disciplinary Committee, etc., for act done.

No action or proceeding shall lie against the Investigating Tribunal, the Disciplinary Committee. The Disciplinary Board, the Malaysian Bar or the Bar Council or any member thereof for any act or thing done under this Act unless it is proved to the Court that the act or thing was done in bad faith or with malice. [Ins. Act A812]