Powers of the Disciplinary Board

Background

the Disciplinary Board is responsible for discplinary proceedings under part V of the Advocates Ordinance.

 

The Disciplinary Board consists of the following members:

  1. Chairman of the Disciplinary Board, appointed for a term of two (2) years by the Chief Judge of Sabah and Sarawak after consultation with the Law Society. Such person shall be a retired Judge of the High Court, Court of Appeal or Federal Court or any other person who is qualified to be a Judge of the High Court, Court of Appeal or the Federal Court
  2. President of the Law Society with the Vice President as his alternate
  3. Eight (8) advocates of not less than seven (7) years standing appointed by the Chief Judge of Sabah & Sarawak for a term of two (2) years after consultation with the Law Society.

 

Proceedings of the Disciplinary Board

The quorum of the Disciplinary Board shall be three (3) with a member from (a), (b), and (c) above.

 

The Chairman of the Discplinary Board shall preside over the meetings of the Discplinary Board. If the Chairman disqualifies himself (where it is necessary in the interest of justice) or is unable to preside the meeting, the President of the Law Society shall preside the meeting.

 

If the President of the Law Society disqualifies himself (where it is necessary in the interest of justice) or is unable to preside the meeting, the appointed members of the Disciplinary Board shall elect a member to preside the meeting for the purposes of the complaint.

 

The Chairman of the Discplinary Board, the President of the Law Society and any other member of the Disciplinary Board shall, where it is necessary in the interest of justice, disqualify himself from deliberating on any complaint.

 

The Secretary of the Discplinary Board shall be a full time employee of the Law Society appointed by the Law Society and such person shall  be an advocate of not less than five (5) years standing.

 

The Discplinary Board may make rules to regulate its own procedure.

 

Powers of the Discplinary Board

For the purposes of disciplinary actions, all advocates shall be subject to the control of the Disciplinary Board.

Any advocate who has been found guilty of any misconduct shall be liable to one or more of the following penalties or punishment:

  1. to be struck off the roll;
  2. to be suspended from practice for a period not exceeding five (5) years;
  3. to be ordered to pay a fine not exceeding fifty thousand ringgit (RM 50,000);
  4. to be reprimanded or censured; or
  5. to have costs awarded against him

Misconduct” means conduct or omission to act in Sabah or elsewhere by an advocate in a professional capacity or otherwise which amounts to grave impropriety in respect of the following causes:

  1. if he takes instructions  in any case except from the party on whose behalf he is retained, or some person who is the recognised agent of such party, or from
    some servant, relation, or friend authorized by the party to give such
    instruction;
  2. if he is guilty of knowingly misleading or allows the Court to be misled;
  3. if he tenders, gives, or, out of any fee paid or payable to him for his services,
    consents to the retention of, any gratification for procuring or having
    procured the employment in any legal business of himself or any other
    advocate;
  4. if he directly or indirectly procures or attempts to procure the employment of
    himself or any other advocate through or by the instruction of any person to
    whom any remuneration for obtaining such employment has been given by
    him or agreed or promised to be so given;
  5. if he is convicted of a criminal offence implying a defect of character which
    renders him unfit for his profession;
  6. if he ceases to be a person entitled to be admitted as an advocate as a result of
    disciplinary proceedings taken against him in the country in which he
    qualified, or in any country in which he has practised as a legal practitioner
    by whatever name called;
  7. if he does any act which if done in England would render him liable to be
    disbarred or struck off the roll of the Court or suspended from practice as a
    barrister or solicitor in England;
  8. if he procures his admission as an advocate by any misstatement, fraud or
    misrepresentation;
  9. if he practises in Sabah without being in possession of a valid certificate to
    practise;
  10. if he practises in Sabah without being in possession of an Annual Certificate;
  11. if he is guilty of a breach of any rules made under this Ordinance;
  12. if he commits a breach of a duty to a Court including any failure by him to
    comply with an undertaking given to a Court;
  13. if he accepts employment in any legal business through a tout;
  14. if he allows any unauthorized person to carry on legal business in his name
    without his direct and immediate control as principal or without proper
    supervision;
  15. if he carries on, full time by himself directly or indirectly, any profession,
    trade, business or calling which is incompatible with the legal profession or
    being employed for reward or otherwise in any such profession, trade,
    business or calling;
  16. if he charges, in the absence of a written agreement in respect of professional
    services rendered to a client, fees or costs which are grossly excessive in all
    the circumstances;
  17. if he knowingly acts in a manner that is prejudicial to or in gross disregard of
    his client’s interests;
  18. if he is guilty of any conduct which is unbefitting of an advocate or which
    brings or is calculated to bring the legal profession into disrepute;
  19. if he has been dishonest or is guilty of fraudulent conduct in the discharge of
    his professional duties as advocate.

If an advocate:

  1. has made a false statement in or in relation to an application made under
    section 7C;
  2. is guilty of any offence involving dishonesty, misuse or misappropriation of
    any money or property of a client or of any other person;
  3. is adjudged a bankrupt or a receiving order is made against him within or
    outside Malaysia;
  4. is disbarred, struck off, suspended or censured in his capacity as a legal
    practitioner in any other country;
  5. is the subject of a complaint concerning any dishonest act committed by him
    in his capacity as an advocate;
  6. absconds or has not attended at his office in such circumstances that the Law
    Society may reasonably presumes that he has absconded; or
  7. is otherwise incapable from infirmity of body or mind or any other cause of
    effectively performing the functions of an advocate,

and the Law Society considers that it would be in the public interest or in interest of his clients or of the profession that such advocate be suspended from practice, the Law Society may apply to the Disciplinary Board for an order suspending such
advocate from practice until further notice.