The Conduct & Misconduct of Advocates & Solicitors

In a rapidly evolving legal landscape, the role of a lawyer has never been more crucial. As the Malaysian Bar surpasses 20,000 members in 2023, the breadth of legal practice has expanded, yet the core responsibility remains the same: providing clients with competent, ethical representation. Trust is the bedrock of the lawyer-client relationship, and when that trust is betrayed, it is imperative that the legal profession is held accountable.

This comprehensive guide examines the crucial intersection of legal practice and professional ethics, offering a deep dive into the Legal Profession Act 1976 and its disciplinary mechanisms. Through careful analysis, Cheryl Nicholson provides invaluable insight into the legislative framework that ensures lawyers adhere to the highest standards of conduct, while also addressing the growing concerns over misconduct within the profession.

With chapters dedicated to the workings of the Disciplinary Committee, the powers of the Disciplinary Board, and the judicial oversight involved in maintaining professional integrity, this book is a critical resource for any legal practitioner. It sheds light on the procedures for addressing grievances, administering penalties, and restoring public confidence in a profession that remains, at its core, dedicated to justice.

Whether you’re a seasoned lawyer, a new entrant to the field, or simply someone seeking a better understanding of how the legal profession maintains its honor, The Conduct & Misconduct Advocates & Solicitors offers the essential knowledge and practical guidance needed to navigate the complexities of legal ethics and discipline.

A must-read for all those committed to preserving the integrity and esteem of the legal profession.

FOREWORD:

Discipline, particularly self-discipline instils confidence and engenders greater trust in all who are involved in that somewhat cathartic process. The ability and willingness to bare oneself and one’s own to censure oneself hallmarks, in my view, a profession befitting respect and recognition by decent society.

The existence of a strong and clear disciplinary regime in any profession which is religiously practised and followed reflects the advent of maturity of the profession. In fact, such a regime is intrinsic to the continued existence of the profession itself. This is, perhaps, more evident in the case of the legal profession as it is to the advocates and solicitors, lawyers, legal counsel or legal adviser of any description, that those affected by or seek the aid of the civil and criminal justice would turn to for aid, assistance, advice.

Quite logically, the purveyors of this aid, assistance or advice must stand accountable for their actions, decisions and omissions. Accountability is integral to the survival of the calling to the practice in the law.

But accountability is mere platitude and an antithesis to the rule of law if the parameters of proper and acceptable conduct are not clearly defined and accepted, be it explicitly or by necessary inference. How is one to know what or when conduct becomes misconduct or worse, that it amounts to “flagrant incompetence” seriously prejudicing the rights of a client? Clear guidance on proper conduct is especially important in our jurisdiction where the practice in the law as solicitors or advocates is fused.

Civil society is all too familiar with arbitrariness as it breeds dissent and erodes confidence. The misdeeds of a few within the legal fraternity can so easily tarnished the hard-earned repute of what is still, a noble profession; and every effort must be taken to ensure that that will not come to pass in our lifetime.

Credit must therefore go to Cheryl Nicholson, who has diligently and painstakingly packed her years of first-hand experience helming the Advocates & Solicitors Disciplinary Board in writing this massive guide to better practice of the law. Cheryl’s careful elucidation of the formative years of the Legal Profession Act 1976 to the detailed mechanics of complaint to the process and procedure of discipline are extremely useful to guide any practitioner who may have the misfortune of having to go through such process of discipline.

Full chapters have been dedicated to explaining the role and function of the Disciplinary Committee, Disciplinary Board, and the Courts aside from explaining what penalties or punishment may be meted out in the event misconduct is established. Not forgotten is the process of appeal, and reinstatement where an advocate and solicitor is struck off and barred from practice. Every chapter without exception is absolutely vital as both the reputation and livelihood of the practitioner is on the balance. Non-adherence to the due process of discipline may render any disciplinary proceeding and outcome liable to be set aside, or the confidence of the public and society undermined.

Cheryl’s commitment and generosity of knowledge is thus, truly commendable. Every legal practitioner in our jurisdiction owes much to Cheryl for her dedication in collating all necessary material before threading through common values and principles to keep legal practitioners on this correct side of the law. This book must serve as the faithful companion of every legal practitioner; and I congratulate Cheryl for her contribution to the legal community and to the practice of the law. I am deeply privileged to be part of her illustrious contribution to the betterment of the legal
profession, albeit only in writing this foreword.
– From the Foreword By
Dato Mary Lim Thiam Suan
(Retired Federal Court Judge)
November 2024

TABLE OF CONTENTS:

CHAPTER 1: THE EMERGENCE OF THE LEGAL PROFESSION IN MALAYSIA
CHAPTER 2: THE DISCIPLINE OF AN ADVOCATE AND SOLICITOR
CHAPTER 3: THE COMPLAINT
CHAPTER 4: THE MISCONDUCT
CHAPTER 5: PROCEEDINGS BEFORE THE DISCIPLINARY COMMITTEE
CHAPTER 6 : ETIQUETTE AND ETHICS
CHAPTER 7: PUNISHMENT AND PENALTIES
CHAPTER 8: APPEALS, OBJECTIONS AND REINSTATEMENT
APPENDIX A: ADVOCATES AND SOLICITORS ORDINANCE 1914
APPENDIX B: ADVOCATES AND SOLICITORS ORDINANCE 1947
INDEX

ABOUT THE AUTHOR:
Cheryl Nicholson
Graduating from the United Kingdom with an LLB (Hons) (Second Upper) degree in 1987. Cheryl went on to complete her Certificate in Legal Practice. She was admitted as an Advocate and Solicitor of the High Court of Malaya in 1989 and actively practiced as a litigation lawyer. During this time, she completed her Masters in Comparative Laws at the International Islamic University in 2006.

After a career in legal practice spanning 18 years, she left the profession and embarked into the academia arena joining Taylor’s University as a full-time lecturer with the School of Business and Law. In 2017, Cheryl retired from full-time teaching. She went on to become the Director/ Secretary of the Advocates & Solicitors Disciplinary Board, a position she held for a year before returning to teaching at Taylor’s University.