Is opposing Counsel authorised to act?

With the year just starting, I thought I would write about an issue that isn’t canvassed often: a practitioner’s SA/PC.

The Sijil Annual/Practising Certificate (SA/PC) are documents issued under the Legal Profession Act 1976 (LPA 1976). The SA is issued by the Malaysian Bar pursuant to S. 32 LPA 1976, whereas the Practising Certificate is issued by the High Court.

It is the duty of an Advocate and Solicitor to obtain his/her SA/PC before the year is out (e.g., the SA/PC for 2025 must be obtained in 2024).

Failure to obtain one's SA/PC

Failing to obtain one’s SA/PC may happen. This may sometimes be due to a solicitor’s inability to get an Accountant’s Audited Report prepared and lodged in-time. ?????

If one does not have the prerequisite SA/PC, one cannot attend to Court or address the Judge, nor can one undertake any work or hold oneself out as an Advocate and Solicitor.

Continuing with practice whilst one is not in possession of a valid SA/PC is a criminal offence under S. 37 LPA 1976.

Real-world consequences

Litigation rarely concludes quickly. Matters often drag across several years. In some scenarios, a case may have begun in 2023 but only begins to see trial in 2025. There would have been 2 renewals of SA/PC necessary for the Advocate and Solicitor in charge of the matter (2024 and 2025).

In Badrul Hisham v PP [2018] MLJU 1725, the real-world consequences with regard to the importance of the SA/PC were front and centre.

The Accused (BH) was represented by a solicitor named Abdul Roni (AR). AR acted for BH in the Sessions Court. As is par for the course, BH was found guilty.

On appeal, BH engaged new Counsel. They pointed out the AR did not have a valid SA/PC when the matter was ongoing in the Sessions Court.

To utilise a company law analogy, it is akin to Turquand’s Rule (where one is not permitted to take advantage of the breaches that one is aware-of). The difference here would be that BH was not aware that AR did not have a valid SA/PC.

On appeal, Sharir JC (presiding J) held that AR’s lack of an SA/PC made him an unauthorised person. For the Court to disregard the same and to allow the conviction to stand would be an affront to justice:

[5] At the onset, the learned counsel intimated that he would only raise one issue in the appeal pertaining to the counsel who represented the accused during trial, namely that Mr. Abdul Roni bin Abd Rahman was without a valid practising certificate since 01.01.2015. It is contended by the learned counsel that in the circumstances, Mr. Abdul Roni was not an authorized person within the meaning of the Legal Profession Act 1976 (LPA 1976) and did not have the necessary locus standi to appear before the court or to represent the accused. Consequently, the trial should be set aside and a new trial be ordered. Premised on this basis, the learned DPP agreed to focus the appeal solely on the preliminary issue.

[37] In the present appeal, I hold the considered view that notwithstanding the competency or otherwise of Mr. Abdul Roni bin Abd. Rahman, the accused was denied of his right to be defended by an advocate during the trial at the Sessions Court because at the material time, Mr. Abdul Roni bin Abd. Rahman was not an advocate. Without a valid practising certificate as regulated under the LPA 1976, Mr. Abdul Roni bin Abd. Rahman was not entitled to practise in any part of Malaysia notwithstanding the existence of his name in the roll. Under section 28 of the LPA 1976, the roll serves as a register to keep records of persons who have been admitted as advocates and solicitors but these persons may not necessarily be lawyers with valid practising certificates.

[39] I hold the considered view that this Court should not and definitely will not allow itself to be used as an instrument to tacitly allow an illegal act to be perpetuated before it. The act of Mr. Abdul Roni bin Abd. Rahman in representing the accused in his defence at the trial court is definite any act in contravention of section 37 of the LPA 1976. It is not a mere contravention of a statutory provision without any penal consequences but one which is prescribed as an offence punishable with imprisonment and fine. I do not think such an act could, in the circumstances, be lightly brushed off with a slap on the wrist. Continuing to represent a client with the knowledge that one is without a valid practising certificate is an affront to the administration of justice and a mockery to the system for which lawyers too, being officers of the court, are part of.

[40] I also hold the considered view that this Court would be failing in its duty if on one hand it is tasked, through the Registrar, with the duty to issue practising certificates under section 29 of the LPA 1976 but on the other hand turn a blind eye on occasions of “unauthorized persons” purporting to act as an advocate before itself. The courts are the last bastion of justice and certainly are not the forum where invalid or illegal acts may be condoned.

[42] I hasten to add that although this incidence may not be a prevalent occurrence within the legal profession, it is nevertheless imperative for the Bar Council of Malaysia to inquire into this matter to ensure that the integrity of this noble profession remains protected and to safeguard litigants from the recurrence of such irresponsible acts by “unauthorised persons”.

The Court proceeded to quash the conviction and to order a re-trial of the matter.

In Kasturi Kesveren v Majlis Peguam Malaysia [2022] MLJU 1252, a solicitor had been struck-off the Rolls in 2010. He applied to have himself reinstated onto the rolls in 2012.

In support of his application, he obtained affidavits to serve as “testimonials” of his abilities.

Bhupindar JC (presiding J) saw through this ruse. Far from relying upon these “glowing testimonials”, His Lordship stated that the Applicant’s conduct clearly showed a disregard for the laws of the country. He (Kasturi) was still undertaking legal work whilst an unauthorised person:

[19]?The plaintiff is an unqualified person as he has been struck off the Roll. He openly admitted that he has been assisting his friends who are in practice to prepare pleadings. He ought to know that an?unauthorised?person?who acts as an advocate and?solicitor?contravenes?section 37?of the?LPA. The testimonial from Dr. Tan Sing Kuong further adds salt to the injury where he states:

?“He is helping me in my civil case in Ipoh High Court. He has been of such a great help for the past few months when he offered his advice to me…..I believe he will be able to present my case clearly to the judge in this second round of my civil suit…..so far he has been handling my case with utmost honesty and integrity”.

?[20]?Dr Tan Sing Wong in another testimonial in favour of the plaintiff writes:

?“Mr Kasturi….. helped me on a land matter involving a few million ringgit in the Ipoh High Court.

?….. his work that helped me but where other lawyers did not want to take my case any further…..”

Mr. Khirun Anwar bin Mali, who I believe is an advocate and solicitor in his reference vouching for the plaintiff admitted in writing?“Kini beliau ada membantu saya membuat kajian kes dan kerja-kerja getting up untuk saya serta memberikan saya hasil kerja yang berkualiti”. Even though I am tempted to write much more pertaining to the above, I will refrain from making any further comments and leave the matter in the hands of the Bar Council as the Bar Council is fully aware of this case. Suffice to say that advising parties to litigation in respect of matters of law and procedure and assisting parties to litigation in the preparation of cases for litigation are matters which lie at the heart of the practice of law (see:?Darshan Singh Khaira?(supra)).

[21]?It is abundantly clear from the plaintiff’s affidavit and the content of the three testimonials referred above that the plaintiff has not only provided legal advice but had actively involved himself in the conduct of pending civil cases. However, this court is not concerned whether there is a good case made under?section 37?of the?LPA?or not. Instead, the prime issue for consideration is whether the conduct and actions of the plaintiff reflect that he has been fully rehabilitated.

[22]?The above facts demonstrate that the plaintiff has little regard for the laws of the country and does not recognise that it is a privilege to practice as an advocate and solicitor and that it is not a right bestowed upon him. It is apparent that the plaintiff’s actions do not indicate that he has rehabilitated himself or that he is truly penitent.

?

See also the FC’s remarks in Darshan Singh Khaira v Majlis Peguam Malaysia [2021] 5 MLJ 921.

Real world possibilities and potential pitfalls

In such a scenario, one would be advised to be vigilant. It is an absolute necessity for solicitors to ensure that the opposing solicitor is truly possessed of a valid SA/PC. A quick search on the Malaysian Bar’s website (https://legaldirectory.malaysianbar.org.my/) will demonstrate whether a person has a valid SA/PC or not (if their name does not appear or if it appears with “N/A”, then you have reason to be concerned). BC also publishes a list (usually around Feb/March) containing the names of individuals who had a valid SA/PC for the preceding year but not for the current year (https://www.malaysianbar.org.my/list/public/notices/advocates-and-solicitors-without-pc).

Whilst the lack of an SA/PC does not automatically render all that a solicitor has done to be invalid (see the findings of Abdul Malik J in Bank Bumiputra v Mohd Ibrahim Salleh [200] 5 MLJ 778, one ought not even run the risk (if you play silly games, you win silly prizes).

Should one discover that the opposing solicitor does not have a valid SA/PC, it would be necessary to first check this with them. If they refuse to reply or give you and feedback, do an independent check with the Bar Council’s Membership Department.

Upon receipt of verification from BC, it behoves one to inform the Court. The errant (former) solicitor will then have to sort himself out as he may be found in contempt.

GAVIN JAYAPAL

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