bried info on ethics

1. 1
BAR COUNCIL
The Bar Council was established for the proper management of
the affairs of the Malaysian Bar and the proper performance of
its functions under this Act shall be a Council to be known as a
Bar Council. (S. 47(1) LPA 1976)
The Bar Council consists of the following (S.47(2) LPA;
A. The immediate past president and Vice-president of
Malaysian Bar.
B. Chairman of each state bar committee and the members
elected to represent each State Bar Committee pursuant to
Section 70(7)
C. Members elected according to S.50 LPA

2. The management of the Malaysian Bar and of its funds shall
be vested in the Bar Council and all the powers, acts, or
things which aren’t by this Act expressly authorized, directed,
or required to be exercised or done by the Malaysian Bar in
general meeting may, subject to this Act or any rules made
thereunder or any resolution passed from time to time by the
Malaysian Bar in general meeting be exercised or done by
the Bar Council.
Provided no such resolution of the Malaysian Bar shall
invalidate the previous exercise of any powers of the
previous doing of any act or thing by the Bar Council which
would have been valid if the resolution had not been passed.
Powers and acts of the Bar Council
S.56 LPA 1976
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3. Specific Powers of the Bar Council (S.57 LPA 1976)
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➤ To make rules to provide for all matters not expressly reserved to
the Malaysian Bar in general meetings whether the same be
expressed amongst its powers or not,
➤ To answer questions affecting the practice and etiquette of his
profession and the conduct of members,
➤ Cognisize of anything affecting the MB or the professional conduct
of its members and bring before any general meeting of the
Malaysian Bar any matter which it considers material to the MB or
the interests of the profession and to make any recommendations
and take any action as it considers fit in relation thereto.
➤ Examine and if it is considered fit to report on current or proposed
legislation and any other legal matters.
➤ Represent members of the Malaysian Bar or any section thereof or
any particular member in any matter which may be necessary or
expedient.
➤ With prior approval of the MB in general meeting, to award prizes
and scholarships for students of law and to lay down the conditions
of their award.
➤ Appoint officers, clerks, agents, and servants for permanent,
temporary, or social services as it may from time to time consider
fair and reasonable and to determine their duties and terms of
services.
➤ Purchase, rent or otherwise acquire and furnish suitable premises
for the use of the Malaysian Bar.
➤ To communicate from time to time with other similar bodies and
with members of the profession in other places to obtain and
communicate information on all matters likely to be beneficial or of
interest to members.
➤ Institute, conduct, defend, compound, or abandon any legal
proceedings by and against the MB or its officers or otherwise
concerning the affairs of the MB and to compound and allow time
for payment or satisfaction of any debts due or of any claims or
demands made by or against the MB.
➤ To invest and deal with any money of the MB from time to time in
securities authorized for the investment of trust funds by any written
law.
➤ From time to time to borrow or raise money by bank overdraft or
otherwise by the issue of debentures or any other securities
founded or based upon all or any of the property and rights of the
MB or without any such security and upon such terms as to priority
or otherwise as the Bar Council shall consider fit
➤ To exercise all such powers, privileges, and discretions as are not
by this Act expressly and exclusively required to be exercised by
the members of the Malaysian Bar in general meetings.

4. 19 Complaints against the lawyers;
A. Giving wrong advice,
B. Failing to advise as to the progress of a case,
C. Acting contrary to a client’s instructions
D. Neglect and excessive delay,
E. Coercion in or committing without consultation of a client, into a settlement,
F. Compromising in conflict of interests situations
G. Accepting too many cases results in:
Inadequate preparation
Too many cases on the same day
Not appearing in court in time,
Too busy to see Client.
H. Refusing to take on cases that are not lucrative,
I. Charging excessive/contingency fees,
J. Insist on full payment before cases,
K. Touting and ambulance-chasing,
L. Withholding/losing documents belonging to a client,
M. Delay in refinding monies,
N. Failure to refund cost awarded by the court.
Common Complaints Against Lawyers - NST 17.2.86
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5. Royal Aquarium and Summer and Winter Garden
Society v Parkinson (1892)
A member of the bar enjoys great privileges both “de jure” and
“de facto”. In particular, his privilege to defamatory statements
made by him in court is not qualified but absolute.
This absolute privilege has been conceded on the grounds of
public policy to ensure freedom of speech where freedom of
speech must exist, and with the knowledge that courts of justice
are presided over by those who from their high character are
not likely to abuse the privilege and who have the power and
sought to have the will to check any abuse of it by those who
appear before them.
Munster v Lamb (1883)
Facts:
A solicitor was sued for defamatory words which he had spoken
while defending an accused person.
Held: Rationale/Object
➤ It must always be born in mind that it is not intended to
protect malicious and untruthful persons, but that it is
intended to protect persons acting bona fide, who under
different rules would be liable, not perhaps verdicts and
judgments against them, but to the vexation of defending
actions.
PRIVILEGES OF ADVOCATES AND SOLICITORS
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6. Need for Ethics
Every profession has practices that it bars. Among the
commonest of these are advertising, poaching, and
undercutting. These activities are considered in the business
world to be laudable examples of enterprise - have always
been considered offensive professionally. If a man joins a
profession in which the use of trade of weapons is barred
and then proceeds to employ them, he is taking an unfair
advantage over his fellows. He is defaulting on the
obligation, by which explicitly or impliedly he undertook to be
bound when they made him of their company. Such conduct
could be thought disgraceful not merely by those of the
profession but by outsiders who were not themselves bound
by the same standards.
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7. In the legal profession, practitioners are expected to observe a
minimum standard of conduct. This is the inevitable outcome
of the grant of a monopoly to the profession in respect of
specific kinds of work.
Any monopoly can be open to abuse and this is not in the best
interest of the public as this would not serve public interest.
This would make the public to question this monopoly.
This can only be overcome by a standard work of ethics,
1. It is through a system of ethical standards, that the
profession’s commitment is a matter of public record.
2. It is an important means of ensuring the continued
confidence of the public in the profession and is a
justification for the monopoly.
3. A system of ethics also assists in ensuring that the legal
profession is committed to the principles upon which the
law and legal system are based.
4. These standards also regulate the competition among
members of the profession by providing for certain
minimum standards, of honorable conduct on the part of
the members.
It is difficult to teach professional responsibility as a subject,
as other law subjects in law school. The teaching is not
exhaustive because;
1. There is a lack of interest in this subject at law
schools on the part of the students and failure to
take it seriously.
2. The reality of economic, peer pressure may run
counter to ethics, particularly in the early years of
establishing a legal practice.
3. The lack of interest, competence, and experience on
the subject by law teachers at law schools,
4. The appropriateness of law teachers in teaching
professional responsibility.
5. The inadequacy of available literature on the
subject;
6. The appropriateness of traditional law teaching
methods or techniques for teaching ethics and
professional responsibility.
WHY IS THERE A NEED FOR ETHICS?
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8. RULES OF
PRACTICE AND
ETIQUETTE RULES
Clyne v The New South Wales Bar Associate 1960
“The rules which govern the conduct of members of a body of professional men, such as
the Bar of New South Wales, may be roughly divided into two classes. One of which is
mainly conventional in character and the other being fundamental in nature.
These conventional rules are mostly reduced to writing and they are from time to time
interpreted, and perhaps, modified to fit specific cases, by resolutions of the governing body
of the profession.
An example of the conventional rules would be:
Rules forbidding advertising
The fundamental rules, on the other hand, are not found in writing. It doesn't need to be
reduced in writing, because they rest essentially on nothing more or nothing less than a
generally accepted standard of common decency and common fairness. an example of
these rules are
A barrister need not lie to a judge who relies on him for information.
He does not deliberately misrepresent the law to an inferior court or to lay a tribunal.
There are two sources:
1. Written rules:
LLPER
Bar Council Rulings
Publicity Rules
2. Unwritten rules - the basic (morality and decency)
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