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PART IV

PRIVILEGES OF ADVOCATES AND SOLICITORS

35. Right of Advocate and Solicitor.

(1) Any advocate and solicitor shall, subject to this Act and any other written law, have the exclusive right to appear and plead in all Courts of Justice in Malaysia according to the law in force in those Courts; and as between themselves shall have the same rights and privileges without differentiation.

(2) Nothing herein contained shall affect the right which is hereby declared of-

(a) legal officers, whose duties so require them to do, and qualified persons appointed temporarily to perform the duties of legal officers to appear and plead on behalf of the Government in the Courts;

(b) the Public Trustee, Official Assignee, Assistant Public Trustees and Assistant Official Assignees to appear and plead in the Courts under any written law relating to such offices; and

(c) existing pleaders.

36. Advocate and solicitor to have name on the Roll before practice.

(1) Subject to this section, no person shall practise as an advocate and solicitor or do any act as an advocate and solicitor unless his name is on the Roll and he has a valid practising certificate authorising him to do the act; a person who is not so qualified is in this Act referred to as an "unauthorised person",

(2) A Judge may, upon application made in Chambers by a Master at the commencement of the pupillage of the Master's pupil, make an order that the pupil be permitted to appear on behalf of the Master or of the firm in which the Master is practising-

(a) during the period of three months from the date of the order-

(I) before a Judge or a Registrar of the High Court, in Chambers;

(II) before a President of the Sessions Court or a Magistrate, in Chambers;

(III) before a Registrar of the Subordinate Courts, to mention a case, including entering judgment in default, or to apply for bail or to take a consent judgment or order; and

(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,

(3) The Judge shall make the order referred to in subsection (2) if he thinks it fair and reasonable to do so provided always that both the Bar Council and the State Bar Committee have been served with the application and have had an opportunity to be heard on the application,

(4) The period of pupillage shall commence on the date of the filing of the petition referred to in Section 15(5).

(5) The Master of the pupil, the Bar Council or the State Bar Committee may apply at any time during the pupillage of any pupil to any Judge in Chambers for a variation or rescission of the order referred to in subsection (2) and the Judge shall make such order on such application as in all the circumstances seems to be in the best interest of the profession.

(6) Nothing in this section shall be construed to prevent a legal officer from performing any of his duties without holding a practising certificate or make a legal officer who has no valid practising certificate an unauthorised person.

37. No unauthorised person to act as advocate and solicitor

(1) Any unauthorised person who-

(a) acts as an advocate and solicitor or an agent for any party to proceedings or in any capacity, other than as a party to an action in which he is himself a party, sues out any writ, summons or process, or commences, carries on, solicits or defends any action, suit or other proceedings in the name of any other person in any of the Courts in Malaysia or draws or prepares any instrument relating to any proceedings in any such Courts; or

(b) willfully or falsely pretends to be, or takes or uses any name, title, addition or description implying that he is duly qualified or authorised to act as an advocate and solicitor, or that he is recognised by law as so qualified or authorised, shall be guilty of an offence and shall on conviction be liable to a fine not exceeding two thousand five hundred Ringgit or to imprisonment for a term not exceeding six months or to both,

(2) Without prejudice to the generality of subsection (1), any unauthorised person who either directly or indirectly-

(a) draws or prepares any document or instrument relating to any immovable property or to any legal proceedings or to any trust; or

(b) takes instructions for or draws or prepares any document on which to found or oppose a grant of probate or letters of administration, or

(c) draws or prepares any document or instrument relating to the incorporation or formation of a limited company; or

(d) on behalf of a claimant or person alleging himself to have a claim to a legal right writes, publishes or sends a letter or notice threatening legal proceedings other than a letter or notice that the matter will be handed to an advocate and solicitor for legal proceedings; or

(e) solicits the right to negotiate, or negotiate in any way for the settlement of, or settles, any claim arising out of personal injury or death and founded upon a legal right or otherwise, shall, unless he proves that the act was not done for or in expectation of any fee, gain or reward, be guilty of an offence under this subsection.

(3) Any unauthorised person who offers or agrees to place at the disposal of any other person the services of an advocate and solicitor shall be guilty of an offence under this subsection: Provided that this subsection shall not apply to any person who offers or agrees to place at the disposal of any other person the services of an advocate and solicitor pursuant to a lawful contract of indemnity or insurance.

(4) Every person who is convicted of an offence under subsection (2) or (3) shall, on conviction, be liable for the first to a fine not exceeding five hundred Ringgit or in default of payment to imprisonment for a term not exceeding three months and for the second or subsequent offence to a fine not exceeding two thousand Ringgit or to imprisonment for a term not exceeding six months or to both.

(5) Any act done by a body corporate which if done by a person would be an offence under subsection (1), (2) or (3) or is of the nature or in the manner as to be calculated to imply that the body corporate is qualified, or recognised by law as qualified, to act as an advocate and solicitor shall be an offence under this section and the body corporate shall, on conviction, be liable for the first offence to a fine not exceeding one thousand Ringgit and for the second or subsequent offence to a fine not exceeding three thousand Ringgit and where the act is done by a director, officer or servant thereof the director, officer or servant shall, without prejudice to the liability of the body corporate, be liable to the punishment provided in subsection (4),

(6) Where any firm does an act which if done by a person would be an offence under subsection (1), (2) or (3) every member of the firm shall be deemed to have committed the offence unless he proves that he was unaware of its commission.

(7) Any person who does any act in relating to a contemplated or instituted proceeding in the High Court which act is an offence under this section shall also be guilty of a contempt of the Court in which the proceeding is contemplated or instituted and may be punished accordingly irrespective of whether he is prosecuted for the offence or not.

38. Certain persons can act as advocate and solicitor

(1) Section 37 shall not apply to-

(a) the Attorney General or the Solicitor General or any other person acting under the authority of either of them;

(b) the Public Trustee, Official Assignee, Assistant Public Trustee and Assistant Official Assignees acting in the course of their duties under any law relating to their offices;

(c) any other public officer drawing or preparing instruments in the course of his duty;

(d) any person acting personally for himself only in any matter or proceeding to which he is a party or acting solely for a company or organisation which he serves as a full time paid employee in any matter or proceeding in which the company or organisation is a party, but such person shall have no right to represent the company or organisation in Court or in Chambers or attest documents for the company or organisation which are required to be attested by an advocate and solicitor;

(e) any bona fide and full-time employee of an insurance company negotiating for the settlement of or settling a claim made or contemplated against any person or body corporate in cases where the claim arising out of personal injury or death relates to a risk insured by that insurance company;

(f) any arbitrator or umpire lawfully acting under any written law relating to arbitration, settling or attempting to settle the dispute between the parties to the arbitration;

(g) any full-time member of the academic staff of the Faculty of Law of the University of Malaya acting solely in an advisory capacity upon instructions from a practising advocate and solicitor;

(h) any accountant drawing or preparing documents in the exercise of his profession;

(i) any proceeding before the Industrial Arbitration Court or the Syariah Court;

(j) any person merely employed to engross any instrument or proceeding;

(k) any approved company auditor drawing or empowered to do under any written law relating to companies;

(l) any agent duly authorised to the satisfaction of the Registrar of Trade Marks drawing or preparing documents in any matter relating to trade marks;

(m) any full-time employee of an advocate and solicitor drawing or preparing any document under the authority of a practising advocate and solicitor and for the purposes of his employer.

(2) The words "document" and "instrument" in section 37 do not include a will or other testamentary documents,

39. Instrument and document to be endorsed.

Every person who draws or prepares any instrument or document referred to in section 37 shall endorse or cause to be endorsed thereon his name and address or the name and address of his firm or the firm employing him and any such person omitting so to do or falsely endorsing or causing to be endorsed any of the instruments shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one thousand Ringgit.

40. No cost payable to unauthorised person.

(1) No costs in respect of anything done by an unauthorised person as an advocate and solicitor or in respect of any act which is an offence under section 37 or 39 shall be recoverable by any person in any action, suit or matter.

(2) Any payment to an unauthorised person for anything done which is an offence under section 37 or 39 may be recovered in a Court of competent jurisdiction by the person who has paid the money.