NOR AKMAR BT YAKUB

(2012425876)
NUR DIANA BT RAMLAN
(2012852036)
NUR ELISSA BAHARUDIN
(2012890172)
UMAR FAIZ B. ABDUL KOHAR(2012409916)
MUHAMAD RAHIMI B. RADUAN (2012456414)
MUHAMMAD SYAFIQ B. AHMAD (2012427396)

 DISCUSS ON FEES FOR

LITIGIOUS OR CONTENTIOUS
MATTERS.

QUESTION

introduction
What is ethics?
The word ethicsis derived from the Greek
word ethos, which means "character," and
from the Latin word mores, which means
"customs.
Legal ethics is the minimum standards of
appropriate conduct within the legal
profession. It is the behavioural norms and
morals which govern judges and lawyers.
It involves duties that the members owe
one another, their clients, and the courts.

Fees for Litigious or Contentious Matters

One of the debated ethical issue is on the
point of legal fees for litigious matters.
legal fees for non-litigious matters are fixed
as per the Legal Profession Act 1976. The
Solicitors Remuneration Order 2005.
no similar provision which stipulates the
scale of fees in contentious matters. (no
fixed guideline)
However, it is not absolute discretion as
there are some guidelines stated so to shed
some light on what are the headings to be
taken into consideration

the Legal Profession (Practice and Etiquette)

Rules 1978
Rule 11
In determining the amount of fee for litigious or contentious
matters involving representation of a client in Court, it is proper
to take into consideration:(a) the time, labour and skill required
(b) the novelty and difficulty of the question involved
(c) whether acceptance of the particular employment will
preclude his appearance for others of which he has a
reasonable expectation
(d) the customary charges of the profession for similar services;
(e) the amount in controversy
(f) the benefit resulting to the client for the services;
(g) the character of the employment- whether casual or for an
established client; and
(h) the special position or seniority of the particular advocate and
solicitor.
()as guidelines for lawyers to come up with a proper amount of
legal fees to impose on their clients.`

(a) THE TIME, LABOUR AND SKILL

REQUIRED
Time
Previously, cases have to be completed within two years
Due to several implementations by the court to speed up
trials, lawyers were required to be more efficient so as to
ensure that the disposal of cases could be done within the
time prescribed.
Labour
When a client hires a law office staff to work on his behalf, it
means hiring a team of law office staffs to work on the
client's behalf
the court has also introduced the recording and transcription
(CRT) system in conjunction with the implementation of the
e-court system.
In 2012, the court fees were revised and incorporated under
the Rules of Court 2012. Prior to this, the last fee increase
was in 1980. Surprisingly, the new fees are between 100%
and 300% higher than the old fees

continue
Skills

it is normal for a lawyer who has a reputation of being

an expert or devotes most of his time to a particular
field of law to charge more than someone less skilled.
However, circumstances sometimes require a more
skilled practitioner be employed for a difficult case.
A client should expect to pay a higher rate to expert
lawyers, especially where such expertise in a specific
area of the law is much in demand
It is a fact that lawyer's fees are determined by
market forces, especially in contentious matters which
involve going to the courts.
the lawyer should also receive fair remuneration for
the services rendered by the client. It must be noted
that a lawyer runs a commercial business.

(b) THE NOVELTY AND DIFFICULTY OF THE

QUESTION INVOLVED
John F. Knight, Jr. v The state of Alabama

the plaintiffs brought an action against the

defendant, the State of Alabama, alleging that
vestiges of discrimination remained in the public
higher education system
The plaintiffs were successful at trial and brought
a motion for attorneys' fee.
The court in this case awarded the plaintiffs'
attorneys interim fees and plaintiffs requested
additional attorneys' fees and expenses.
Plaintiff also requested enhanced fees based on
the novelty and complexity of the issues in the
case and the results obtained

(c)WHETHER ACCEPTANCE OF THE PARTICULAR

EMPLOYMENT WILL PRECLUDE HIS APPEARANCE
FOR OTHERS OF WHICH HE HAS A REASONABLE
EXPECTATION
the question is whether a lawyer can impose a certain sum of
fees if a particular employment he accepts preclude him to
appear for others of which he has a reasonable expectation
Where a lawyer is attached to a particular brief and is unable to
accept future briefs which falls under the category of reasonable
expectation, then it may well be justified for him to charge a
certain fee for that particular brief he is attached too.
As a lawyer, if he is attached to a very important case for
instance, he obviously cannot take on another case
simultaneously
However, he can also not be expected to have only that particular
brief until it is disposed before he could take on another brief.
where a lawyer faces a conflict of choosing between two cases,
and he chooses one of the two which causes him to lose a
reasonable profit from the other, he is entitled to impose a higher
fee.

(d) THE CUSTOMARY CHARGES OF THE PROFESSION

FOR SIMILAR SERVICES
In determining the customary charges of the profession
for similar services, it is proper for a lawyer to consider
what the customary charges for a similar case are
no lawyer should permit himself to be controlled
thereby or to follow it as his sole guide in determining
the amount of his fee.
. Hulse v The Honorable Van Wifvat
referred to the case of Parrish v Denato
stating that the court adapted to criminal cases most
of the criteria which are listed in the Iowa Code of
Professional Responsibility as general guides for setting
reasonable attorney fees, and that includes taking into
consideration the customary charges for similar
services.

(e) THE AMOUNT IN CONTROVERSY

Amount in controversy which is sometimes called

jurisdictional amount is a term used to indicate
the amount at stake in a lawsuit.
The amount in controversy determines the courts
authority to hear a particular case. It is also called
the jurisdictional amount
The claim he charges should be of a reasonable
amount that is proportionate to that of the amount
in controversy

(f) THE BENEFIT RESULTING TO THE CLIENT

FOR THE SERVICES
Having a lawyer brings a lot of benefit to the client,
especially to the lay person who does not have any
knowledge about the law itself
In criminal matters, the legal fees usually depend on
the seriousness of the charge that the client facing.
the higher the fees that the lawyer will be imposes
on the client. In a case of a serious charge, it is
natural for the client to not mind about the fees
since they will do everything in order to save
themselves from the punishment.
In civil matters, legal practitioner is likely to help
the client in reducing the amount of losses or
damage.

 In some civil situations also, arrangements are made which

could result in benefit to the client
The fee would then be decided according to the result.
Contingent fee arrangement is an example of a situation
where the result itself may decide the fee.
This type of fee arrangement is usually seen in personal
injury cases. It is where the lawyer receives no fee if less
money is recovered for the client.
In Malaysia, a pure contingency fee arrangement is
prohibited under Section 112 of the Legal Profession Act
1976
Yee Kang And Sons & Anor v Chim Yiam, Lee, Tan &
Associates
the court held that the contingency fee claim by the
defendant was illegal and therefore, in the interest of
justice, a declaration was ordered that the plaintiffs owed
no such sum to the defendants.

(g)THE CHARACTER OF THE EMPLOYMENT

WHETHER CASUAL OR FOR AN ESTABLISHED CLIENT
established clients mean clients which have a
higher degree of reputation and status, clients which
carry a known name in public.
the more you are known in the eyes of the public,
the greater stake and risk it is for you in a litigious
matter.
Example: Apple against Samnsung
the amount of legal fees both parties invested upon
respective counsels representing them is of a
staggering massive sum
Morrison Foerster partners (Apple) and of counsel
billed a median rate of $582 an hour for work on
portions of the case, while some Quinn Emanuel
partners (Samsung) billed on average $821 per hour.

(h)THE SPECIAL POSITION OR SENIORITY OF THE

PARTICULAR ADVOCATE AND SOLICITOR
Seniority is the length of time that an individual
has served in a job or worked for an organization.
in legal profession, someone who has practiced for
a period of time is assumed to have more
experience compared to others who have lesser
experience
Kaufman v Kaufman
-the court was held that in order to calculate the
fees, the seniority and history matters should be
taking into consideration. In this case, since the
lawyer was a senior lawyer who had more
experience in the legal profession, the court
instructed for the fees to fixed at a higher amount.

Discrepancy of Legal Fees in Malaysia

Factors
Size of the firm
-it

is common that, the bigger and more reputable a

firm is, the higher the legal fees are imposed. The
explanation and rational behind this theory is that the
bigger and more reputable a firm is,
the higher in
demand they are amongst potential clients as they carry a
known name in the field
Geographical
-This

theory works as such: where it is more of a citylike

place, for example in the Klang Valley, where it is
denser in
population, the more packed the place is with
development in the sense of sprouting of major headquarters offices, the higher the legal fees would be. This
is due to the next factor which relates to both stated
factors.

Market Forces

-It is a simple cycle whereby it acts together. All

of these factors co-relate with each other. The
market forces are
obviously more active in the
city as compared to the
villages or rural areas.
The market is driven by demand. The higher
demand, the higher market force there is.
Hence
why geographical factor affects the market
demand and thus, leading to increase in the legal
fees.

Legal Aid: An Exception

The common knowledge is that lawyers are always entitled
to legal fees if the service has been carried out for the
client either in contentious or non-contentious matters.
There are circumstances where the lawyers are not entitled
to legal fees. (legal aid program)

Bar Council Legal Aid Centre (BCLAC)

was founded by the Malaysian Bar Council.
It is one of the two organisations in Malaysia which provide
free legal advice & representation, and it has branches to
represent each state in Malaysia.
Centre provides a representative in contentious legal
matters such as criminal and civil suits. It was funded by
the sole contribution of members of the Bar and cases are
taken on a voluntary basis by dedicated lawyers.

there are certain qualifications to be met before a

person can engage a lawyer under this scheme : a person must fall within the category provided under the
Means Test
the applicants monthly income after deduction of monthly
expenses should be RM 650 for a single person and RM 900
for a married couple.
a person shall not have; firstly, a house more than a value
of RM 25,000
or a car more than a value of RM 7,000 and thirdly, a
motorcycle more than a value of RM 4,500 respectively
A person who possesses cash or securities such as savings
account with a value more than RM 5,000 shall not qualify
for the legal aid program.
Thus, in these circumstances, a person who is qualified for
legal aid program would not have to pay legal fees for the
advice and legal representative

As a consequence, a lawyer who

represents a person under legal aid
program would not be entitled to fees.
Therefore, it can be deduced that legal
fees are not an absolute privilege to
lawyers. There are always situations where
fees are not payable even though a service
has been given to the particular person.

Position in Singapore
Order 59 of the Rules of Court 1996
the complexity and novelty of the matter, the skill,
the knowledge and responsibility required, the time
and labour expended, the number of and importance
of the documents, and the circumstances under
which the work was done for instance, at night, or in
primitive surroundings.
A Singapore legal fee is based on hourly and fixed
rate. In addition, in Singapore legal fees, taxation
imposed on it and this was decided by way of
applying it to the court (LPA)
This apply for both contentious and non-contentious
matters
>This gives less risk on part of the client in paying to
their lawyer if the cases have no chance to win

Hearing Fees
Singapore introduces hearing fees which was
introduced by Singapore Supreme Court
It is introduced in for the justice for less fortunate
people.
A litigants legal costs include solicitor-client costs;
the litigants own costs as well as the litigants
own disbursements
The Singapore courts also have power to supervise
the legal cost of the litigants so that the fees are
not exceeded. The purpose is to uphold justice for
the client who would not able to pay the excessive
fees

POSITION IN AUSTRALIA
the term legal costs refers to both attorneys fees
and out-of-pocket expenses which is also called
disbursement.
The Australian Civil Liability Act 2002 had set out to
achieve in making more changes in respect of civil
action for damages.
States Legal Profession Act 1987
> imposed limitations on the legal cost recoverable
in
cases of small claims
For example, where personal injury claims do not
exceed $100,000, the maximum amount of costs
recoverable for legal services provided for either
plaintiff or defendant is 20 percent of the amount
recovered or $10000, whichever is greater

 There is so much difference compared to the situation in

Malaysia in terms of personal injury claims, whereby
there is no limitation whatsoever that is imposed in
terms of legal fees.
This shows that the situation in Malaysia is not very
much fair to the client because there is no limitation to
the lawyers in imposing scale fees for personal injury
claims
Australia limits the scale of legal fees via the Civil
Liability Act 2002, whereas Malaysia does not have any
provision in any statute that limits the amount of legal
fees which a lawyer can impose on the client in
contentious matters.
Australia limits the scale of legal fees via the Civil
Liability Act 2002, whereas Malaysia does not have any
provision in any statute that limits the amount of legal
fees which a lawyer can impose on the client in
contentious matters

Position in United Kingdom

in United Kingdom, the contentious costs are defined as
monies payable for legal services in connection with
contentious business
there are various options in charging the client in the
contentious matters : hourly rate, fixed costs, contingency fee
agreements, conditional fee agreements, contentious
business agreements and public funding.
The usual method of charging is to charge an hourly rate for
time spent
There are two ways of charging under hourly rate method:
First, the clients have to pay the cost per hour spent by a
solicitor on a matter with regard to the overhead expenses of
the solictors firm
Second, the client also has to pay for the conduct and care of
the solicitor on the matter. Usually, the charges are 50 per
cent of the rate of the overhead expenses

 Usually, the charges are 50 per cent of the rate of the

overhead expenses. The Senior Court Costs Office
(SCCO) has set Guideline Hourly Rates (GHR) for
different levels of fee for the guidelines of the solicitor
to assess the fees.
the fees are calculated based on the overhead
expenses, the conduct and care and hour taken to
settle the matter
there are various methods charging to client but not
common among legal practitioner in United Kingdom
a) Contigency Fee Agreement
- agreements where the fee is calculated as a
percentage
of damages recovered
- the contingency fees were expressly prohibited for
use
in contentious matters in the 2007 Code of
Conduct
- Tel-ka Takl Ltd v HMRC

b) conditional fee agreement

Must meet the requirement contained in section 58 of
the Courts and Legal Services Act 1990 (CLSA 1990)
These requirements give some leeway for a solicitor
to fix a certain amount of fees in the contract for the
contentious matter
c) contentious business agreements
governed by Section 59-63 Solicitors Act 1974
The effect this section makes a client loses the right
to a detailed assessment of his costs
The common practice was the legal fees were
charged based on the hourly rate. However, solicitors
may also opt other methods such as conditional fee
agreements, contentious business agreements and
public funding.

 The scale of legal fees relating to

contentious matter was not provided by the
statue unlike non-contentious matter
However ,the guideline is
provided under
conclusion
Rule 11 of the Malaysian Legal Profession
(Practice & Etiquette) Rules 1978
there are merely guidelines, lawyers still
have to bear in mind that they owe a duty
to the client with regards to the charging of
professional fees.

THANK YOU FOR YOUR ATTENTION !!!