Professional Documents
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These rules and regulations of Legal Profession (Publicity) Rules 2001 and Legal Profession Act 19761 were formulated to keep up with a growing demand for a review of the traditional rule that lawyers should not be permitted to advertise their services. The world has been come much more of an impersonal place than before. It has become harder to judge the expertise and capability of professional people based purely on their perceived standing. Reputation and perception are yardsticks that tend to favour the more senior and established professionals and this is disadvantageous to the young. The Bar therefore relaxed to the rules against advertising and now permits some limited information to be given to potential clients describing the kind of practice he has, the type of work and areas of practice that he does, his association with other law firms in and outside Malaysia et ce tera. The Bar however had to be careful to ensure that lawyers do not promote their practices in such a way so as to diminish public confidence in the profession or to mislead the public. In the end a balance has to be struck between allowing lawyers an opportunity to compete and make their services known to the world and maintaining the dignity of the profession. This is not an easy thing to do so the publicity rules also contain limitations on what kind of advertising and promotions is not permitted.
Act 166
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John S. Bradway. Publicity for Lawyers. 1946. Rule 2 of Legal Profession (Publicity) Rules 2001
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Rule 7 relates with the Letterheads and Stationery of an Advocate & Solicitors. Detailed explanation of the said Rule is as the following; i. Names (a) Sole proprietor or Partners The name(s) of the sole proprietor or partners in a firm of advocates and solicitors must be stated on letterhead. (b) Legal assistants The names of the legal assistants, if stated, must be distinguished from those of the sole proprietor or partners in the firm. The names of legal assistants may be listed in categories. (c) Firm name in vernacular print Any firm which proposes to use a firm name in vernacular print should seek the prior consent of the Bar Council in order to ensure that such name corresponds with the romanised name of the firm. ii. Descriptions Advocate & Solicitor Barrister-at-Law Chambers of Commissioner for Oaths Consultant Law Offices of Registered Patent Agent 'Syariah Practitioner', 'Pengamal Syariah', 'Peguam Syariah' or 'Peguam Syarie' and Any relevant academic and professional qualifications. the firm's
iii. Disclaimers
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Any statement disclaiming liability for the act(s) or omission(s) of any advocate and solicitor practicing in any firm whether as a partner or legal assistant is prohibited. Rule 8 is regarding on advertisements in legal and non-legal directory of which an Advocates & Solicitors may operate. Advocates & Solicitors may publicize his practice by inserting an advertisement as stated in Rule 8 in a legal or non-legal publication approved by Bar Council and in such other media as permitted by these Rules. In regards with the name plate of the firm, Rule 9 basically set out how Advocates & Solicitors shall display a nameplate outside the premise of his firm. It must contain only approved information, such as; Display a nameplate on the outside of the premises at which his firm is located. Maximum Size ; Rule 9(2) - shall not be larger than 92cm by 61cm. Location - May be placed at the main entrance of an advocate and solicitor's residence only if practice carried out at such residence. No signboard on roads leading to or in the vicinity of an advocate and solicitor's office is permitted. Arrows or other signs indicating direction to an advocate and solicitor's office for example in a multi-storey complex are not permitted, except where there may be difficulty in locating the office of an advocate and solicitor. Provided however that the arrows / pointers or other signs are discreet, unobtrusive and compatible with the dignity of the profession. Colour - Illuminated signboards are not permitted. Quantity - Only one signboard is allowed for each office. Content shall contain only approved information. Rule 11 states that Advocates & Solicitors may distribute his business cards discreetly and only on occasions which are proper and it must contain only approved information and he cannot permit his employee to distribute his business cards on his behalf.
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Rule 12 states that Advocates & Solicitors can distribute brochures, leaflets or pamphlets, but it can only contain approved information and distributed only to his employees or Advocates & Solicitors practicing in his firm, any person who is his or his firms client,or any person who has professional dealings with him provided that the distribution be done discreetly. An Advocate & Solicitor must know that no brochure, leaflet, pamphlet relating to the practice of an Advocate & Solicitor shall be put on display except within the premises of the firm. The case of R V Legal Aid Board, Ex Parte Kaim Todner (A Firm) 4 is regarding the termination of franchise of the appellant firm of solicitors. The firm applied to be allowed to keep its identity secret and that the court should make an order under s 11 of the Contempt of Court Act 1981 forbidding disclosure of its identity, on the ground that it would be likely to cause the firm incalculable damage and would seriously prejudice its reputation. However, the judge refused this application holding that there was no justification for treating solicitors or barristers differently from other professionals and therefore the proceedings should take place in public. Rule 13 laid down that Advocates & Solicitors may produce the distribution of journal, magazine and newsletter but must contain only approved information, law notes, and legal articles. Advocates & Solicitors may put notice, such as inserting in newspaper, newsletter or law journal regarding commencement or dissolution of his practice, merger or association of his practice with other firm,opening of new branch,admission, withdrawal, retirement, termination, resignation or death of any Advocates & Solicitors in his firm, or change in the name, address, telecommunication number of the firm as stated in Rule 14. In addition, Advocates & Solicitors may consent to be interviewed by the press, media, radio or television as stated in Rule 15. During interview, Advocate and solictor cannot allow any information pertaining to himself or his firm to be publicized, except approved information
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The case of A Solicitor v The Law Society of Hong Kong5 illustrates an example where a solicitor is allowed to publicize his practice. In this case, following the opening of the Solicitor's practice, he engaged in a massive publicity seeking and advertising campaign involving interviews with the press which was widely and extensively covered, together with posed photographs of him, his girlfriend and photographs of his office. Those advertisements, interviews and etc were published in the local newspapers and magazines. The solicitor appealed the case as it was the freedom of expression. The court allowed his appeal. Regarding the publicity through electronic media, any publicity through electronic media must be done in such manner approved by the Bar Council as set out under Rule 21. The publicity in electronic media must not contain information of his practice or his firm except approved information. Advocates & Solicitors also can give free legal advice at a legal aid clinic to provide legal assistance to the public but advocate and solicitor cannot disclose the name of his firm, distribute any business cards, brochures, etc relating to his practice, or act for a person whom he has given the free legal advice. 6 There is a responsibility on behalf of A&S relating to publicity. Advocates & Solicitors must be responsible that any publicity relating to his practice or his firm complies with these Rules.7 Advocates & Solicitors must be aware of any impropriety of publicity relating to his practice and he must use his best attempt to rectify or withdraw the publicity. If any publicity relating to the practice of Advocates & Solicitors is contrary to these Rules, the Bar Council can make order to the Advocates & Solicitors or his firm to alter, modifies, withdraw, remove, or discontinue the publicity.
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[2006] HKCU 1109 Rule 22 of Legal Profession (Publicity) Rules 2001 7 Rule 24 of Legal Profession (Publicity) Rules 2001
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documents in his or his firms possession or control, or relating to any trust of which he is the sole trustee or co-trustee with one or more of his partners, clerks or servants; and b) All sums of money due from him or his firm or held by him or his firm on behalf of, his clients or subject to any such trust as aforesaid. Section 88 of Legal Profession Act 1976 has been discussed in the case of Majlis Peguam v Jeyapalan Mahesan 8 . In this case, the Chief Judge suspended the defendant from practice under Section 88A(3) of the LPA 1976. About a year after that, the Bar Council certified pursuant to Section 88(1) of the Legal Profession Act 1976 that there was a reasonable cause to believe that the defendant, Mr Jeyapalan Mahesan of Messrs Clough Thuraisingam & Jeya Mahesan had been found guilty of dishonesty in connection with his practice and resolved that the powers under Section 88 of the LPA 1976 to be exercised in relation to his firm by the appointment of one Mr Puravalen as its representative. Mr Puravalen issued a notice pursuant to para 1 of the Schedule to the defendant requiring that certain document to be handed over to him. The name of the firm referred to in the notice was Messrs Jeya Mahesan & Co. However, the defendant refused to deliver the documents requested for. The grounds of the refusal are: a) There is delay in deciding to move against him, b) The notice sent by Mr Puravalen was wrongly referred to. The court in this case dismissed the application on the ground that Mr Puravalen went outside the scope of the duty entrusted in him. He should send the notice to the defendant and the firm of Clough Thuraisingam & Jeya Mahesan instead of Messrs Mahesan & Co. In the circumstances, the court could not make the order requested for. Where an advocate and solicitor has been found guilty by a court of law of any offence involving dishonesty, misuse of his client's moneys or dishonesty towards a client or in respect of any property belonging to a client and, the Bar Council considers that it would be in the public interest or in the
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interest of his clients or of the profession that such advocate and solicitor be suspended from practice, the Bar Council may apply by summons to the Chief Justice ex parte for an order suspending such advocate and solicitor from practice until further order. This is in accordance with Section 88A of the Legal Profession Act 1976. A relevant authority is in the case of Selvaratnam a/l Vellupillai v Dr Jayabalan Karrupiah9. In this case, the appellant who had been practicing in the name of Messrs V Selva & Associates was the solicitor acting for both the purchaser and the vendors in the sale and purchase of a single storey terrace house. The respondent in this case is the purchaser. The sale price of the property was RM 80,000, of which the respondent had paid RM 40,000 upon execution of the sale and purchase agreement. The balance of RM 40,000 to be paid by the respondent was to be utilized by the vendors towards the redemption of the housing loan. However, the redemption money was not paid to the government but was paid into and kept in a client account in respect of the respondent. The appellant then sought to utilize the amount of RM 21,223.83 of the redemption money towards the settlement of the outstanding fees and disbursements due to him from the respondent. On 20 June 2000, the respondent wrote a complaint to the complaints secretariat that the appellant had wrongly misappropriated the amount. The Disciplinary Committee found the appellant guilty of misconduct and recommended that he be suspended from practice for six months. The appellant appealed to the High Court against the decision of the board and submitted that since he was discharged as a solicitor by both the respondent and the vendors, the Sale and Purchase Agreement was terminated and that he had a lien over the money for settling his bills. The court held that the appellant in this case was a stakeholder and as such, he was under a duty to hold the monies paid for the purpose of redemption or for the benefit of both parties of the agreement and not to utilize it for the payment of his bills. As the appellant was acting for both the
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vendors and the purchaser he owed a duty to both parties to ensure that the monies held by him were used for the very purpose for which he was holding it which is to redeem the property from the government. Section 88A of the Legal Profession Act 1976 also was discussed in the case of Dato' Mahindar Singh s/o Harcharan Singh V Majlis Peguam10. In this case, the plaintiff was a senior lawyer who had been convicted for a criminal offence. In October 1994, he made an application to the Bar Council for a sijil annual ('SA') for 1995, but his application was refused under Section 88A of the Legal Profession Act 1976. In order to protect public interest and the interests of the legal profession, the Bar Council had decided not to issue the SA to the plaintiff. It was not disputed that the plaintiff had not disclosed his conviction in the application form for the SA ('the form') which was prescribed by the Advocates and Solicitors (Issue of Sijil Annual) Rules 1978 ('the Rules'). The plaintiff applied to the High Court for an order to direct the Bar Council to issue him with the SA on the grounds, inter alia, that: (i) it was mandatory for the Bar Council to issue him the SA, as he had already complied with all the requirements under Section 32 of the Act; and (ii) there was no rule to say that upon a conviction which is pending appeal, the Bar Council could refuse to issue the SA under Section 88A of the Act. The application was allowed on the ground that under Section 88A, the power to suspend an advocate and solicitor lies with the Chief Judge on the application of the Bar Council. However, thus far, the Bar Council had not taken any step in making such an application. Therefore, it could not rely on Section 88A to support its case. According to para 13.10 of the Rules and Rulings of the Bar Council Malaysia, the effect of suspension of Advocate and Solicitor are as follows; (1) During the period of suspension of an Advocate and Solicitor who is a sole proprietor, another Advocate and Solicitor cannot practice under the firm name of such suspended Advocate and Solicitor.
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(2) An Advocate and Solicitor suspended either under Section 88A or Part VII of the Act shall not: a. act or be employed with or without remuneration as an Advocate and Solicitor by any law firm; b. be employed in any position/capacity whatsoever in a law firm; c. attend at the office of his former law firm or any law firm without the permission in writing of the Bar Council; or d. be entitled to share profits or fees earned or accrued by any law firm during the period of suspension. In conclusion, Section 88 of the Legal Profession Act 1976 impliedly provides that all the dishonesty on the part of the solicitor, clerk, or the servant may affect the reputation of the firm. Same goes with the suspension of the lawyers. The suspension could impose bad perception on the public towards the name of the firm. During the suspension, the suspended lawyer cannot carry out the firms name nor publicised anything related to his firm.
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technicality for the Advocate and Solicitor publicize their professionalism to members of the public. Subject to Rule 6, an Advocate and Solicitor is responsible to any claim to expertise or specialization unless justified under this Rule. Thus, the paragraph upheld certain criteria that the justification will be considered due to their academic qualifications, experience, level of success achieved and such other matter as the Council may determine to be relevant. 12 On the other hand, the Rule allows any Advocates and Solicitors to publicize in or in conjunction with the publicity of any third party, whether or not the party is a client. It can be referred under Rule 9.13 United Kingdom The United Kingdom is divided into the three separate jurisdictions of England and Wales, Scotland, and Northern Ireland. Each jurisdiction has its own legal system and legal profession, with England and Wales and Northern Ireland recognizing the two separate categories of barrister and solicitor whereby Scotland recognizing the branches of advocate and solicitor. Each category of the legal professions within these jurisdictions has its own code of conduct, which addresses how its members may publicize the availability of their professional services. Generally, the individual codes that govern the conduct of barristers, solicitors and advocates within the UK legal professions are quite contrasting. This should be a matter of concern for its practitioner to practice outside their respective jurisdiction, since they are subjected to different rules. The finding will be focusing to England and Wales jurisdiction. In 1980s, the legal professionalism had gone through reformation which results the legislative passed the Courts and Legal Services Act in 1990.14 The movement toward reform began with a report issued by the Royal Commission on legal services and professional division between barristers and solicitors, retaining the barristers monopoly of right of audience before the courts and retainin g
Rule 6 (2) of Legal Profession (Publicity) Rules 2010 Rule 9 of Legal Profession (Publicity) Rules 2010 14 Hill, L. (2003). Publicity rules of the legal professions within the United Kingdom. Arizona Journal of th International and Comparative Law Vol 20, No. 2. Retrived on 16 October 2013. <http://www.ajicl.org/AJICL2003/vol202/Hill.pdf.>
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the solicitors monopoly over conveyancing work. The conclusion of the Royal Commission was that the status quo should be maintained. However, the following year a bill was advanced which took the formation of the Administration of Justice Act of 1985. This Act removed the monopoly enjoyed by solicitors and permitted competition between solicitors and licensed conveyancers. After 1987, solicitors would be permitted to advertise in almost all media except to be publicizing in television. At the time of the promulgation of the Court and Legal Services Act of 1990, the Solicitors Publicity Code was enacted. The Code precluded any publicity that may reasonably be regarded as being in bad taste, or that was inaccurate or misleading in any way. detailed rules concerning the manner in which solicitors could advertise their services, such as prohibiting references to a solicitors success rate and direct comparisons or criticisms of the charges or quality of services of another solicitor. In 2001, a new Solicitor Publicity Code was enacted. The new Code prohibits unsolicited visits or telephone calls to members of the public. However, member of the public is narrowly construed by targeting layman in its prohibition rather than professional or business entities. Publicity relating to charges must be clearly stated and publicity in electronic form is specifically recognized as falling within the Code. Focusing on the international aspects of publicity, the new Code 2001 has widened the scope not only to the English practitioner but also solicitors registered as European lawyers. This new Code provides that such publicity must not be misleading or inaccurate. In addition, a private practice must not use a name or description which is misleading. It would be misleading for a name or principals or directors (or members in the case of a limited liability partnership) are a solicitor. It is important that practitioners must not publicize their practices by making unsolicited visits or telephone calls to a member of the public. Regarding the publicity where the barrister intended for a jurisdiction outside
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England and Wales must comply with the new code. A practitioner must not authorize any other person to conduct publicity for the practitioners practice unless stated in the Code. This section of the code applies to all forms of publicity including stationary, advertisements, brochures, directory entries, media appearances, press releases promoting a practice, and direct approaches to potential clients and other persons, and whether conducted in person, in writing, or in electronic form. Advertising by barristers in England and Wales is addressed in the Code of Conduct of the Bar of England and Wales, which contains regulatory provisions relating to the legal profession. This finding shows that there are no differences between Malaysia and United Kingdom in which the Bar Council Rulings and the Legal Profession (Publicity) Rules 2001 governs the power to publicize any solicitors services. In 2002, a barrister may engage in any advertising or promotion in connection with his practice in photographs or other illustrations of the barrister or information about any case in which the barrister has appeared (including the name of any client for whom the barrister acted) where such information has already become publicly available or, where it has not already become publicly available, with the express prior written consent of the lay client. In Malaysia context, Chapter 5 of Bar Council Rulings stated that a photograph of solicitor is permitted to be published unless it may affect the dignity of legal profession.
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CONCLUSION
For any inspiring and would-be lawyers, it is very basic and important for him or her to uphold the very ideology of the legal world, which is professional ethics and how they conduct themselves. This is the reason why the Legal Professional Act 1976 has been published for future and current lawyers alike to abide by. The way lawyers behave and conduct themselves are written and codified under the stated Act. A supporting provision to this is the Legal Profession (Publicity) Rules 2001 where the conduct of the lawyers to which they wish to publicize their legal profession is governed. From the way they should publicize themselves towards on how their legal firms should look alike, all in the basis of professionalism. Based on the stated legal provisions, it is imperical for lawyers and would-be lawyers to comply with the overall legal profession and not to take it lightly as it would directly affect, not only to the firm who broke such vow to uphold the legal profession, but also towards the general livelihood of the legal profession. This is such because the legal profession is said to be the very basis of a legal practitioner and without ethics and the rulings, the legal profession would be taken lightly. Therefore, the ethics of a legal practitioner must start from himself and his very livelihood for the legal profession to be taken seriously. Professionalism and law, therefore, can be said to become one entity.
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BIBLIOGRAPHY
1. John S. Bradway. Publicity for Lawyers. 1946. 2. Legal Profession (Publicity) Rules 2001 3. Legal Profession Act 1976 (Act 166 4. Legal Profession (Publicity) Rules 2010 5. Hill, L. (2003). Publicity rules of the legal professions within the United Kingdom. Arizona Journal of International and Comparative Law Vol 20, No. 2. Retrived on 16th October 2013. <http://www.ajicl.org/AJICL2003/vol202/Hill.pdf.>
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