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(e) he is absent from three consecutive meetings of the Bar
Council without reasonable cause and the Bar Council
resolves that he be removed from office.
Powers of the Council
Powers and acts of Bar Council
56.  The management of the Malaysian Bar and of its funds shall
be vested in the Bar Council; and all the powers, acts or things
which are not by this Act expressly authorized, directed or required
to be exercised or done by the Malaysian Bar in general meeting
may, subject to this Act or any rules made thereunder or any
resolution passed from time to time by the Malaysian Bar in
general meeting, be exercised or done by the Bar Council:
Provided that no such resolution of the Malaysian Bar shall
invalidate the previous exercise of any powers or the previous
doing of any act or thing by the Bar Council which would have
been valid if the resolution had not been passed.
Specific powers of the Bar Council
57.  Without prejudice to the general powers conferred by section
56 or the specific powers to make rules conferred by any other
provisions of this Act the Bar Council shall have power--
(a) to make rules to provide for all matters not expressly
reserved to the Malaysian Bar in general meeting whether
the same be expressed amongst its powers or not;
(b) to answer questions affecting the practice and etiquette
of the profession and the conduct of members;
(c) to take cognizance of anything affecting the Malaysian
Bar or the professional conduct of its members and to
bring before any general meeting of the Malaysian Bar
any matter which it considers material to the Malaysian
Bar or to the interests of the profession and to make any
recommendations and take any action as it considers fit
in relation thereto;
(d) to examine and if it considers fit to report upon current
or proposed legislation and any other legal matters;
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(e) to represent members of the Malaysian Bar or any section
thereof or any particular member in any matter which
may be necessary or expedient;
(f) with the prior approval of the Malaysian Bar in general
meeting, to award prizes and scholarships for students of
law and to lay down the conditions for their award;
(g) to appoint officers, clerks, agents and servants for
permanent, temporary or special services as it may from
time to time consider fair and reasonable and to determine
their duties and terms of service;
(h) to purchase, rent or otherwise acquire and furnish suitable
premises for the use of the Malaysian Bar;
(i) to communicate from time to time with other similar
bodies and with members of the profession in other places
for the purpose of obtaining and communicating information
on all matters likely to be beneficial or of interest to
members;
(j) to institute, conduct, defend, compound or abandon any
legal proceedings by and against the Malaysian Bar or
its officers or otherwise concerning the affairs of the
Malaysian Bar and to compound and allow time for payment
or satisfaction of any debts due or of any claims or
demands made by or against the Malaysian Bar;
(k) to invest and deal with any moneys of the Malaysian Bar
from time to time in securities authorized for the investment
of trust funds by any written law;
(l) from time to time to borrow or raise money by bank
overdraft or otherwise by the issue of debentures or any
other securities founded or based upon all or any of the
property and rights of the Malaysian Bar or without any
such security and upon such terms as to priority or otherwise
as the Bar Council shall consider fit; and
(m) to exercise all such powers, privileges and discretions as
are not by this Act expressly and exclusively required to
be exercised by the members of the Malaysian Bar in
general meeting.
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Appointment of Committees
58. (1) The Bar Council may appoint one or more committees for
any general or special purpose as in the opinion of the Bar Council
may be better regulated or managed by means of a committee and
the Bar Council may delegate to any committee so appointed, with
or without restrictions or conditions, the exercise of any functions
of the Bar Council.
(2) The number and term of office of the members of a committee
appointed under this section, and the number of these members
necessary to form a quorum, shall be fixed by the Bar Council and
unless so fixed shall not be less than three.
(3) A committee appointed under this section may include persons
who are not members of the Bar Council.
(4) The Bar Council shall not delegate to a committee appointed
under this section any of its functions unless at least two thirds
of the members of the committee (including the Chairman thereof)
are members of the Council.
Rights to inspect file and copies of proceedings in bankruptcy
59.  The Bar Council shall be entitled, without payment of any
fee, to inspect the file of proceedings in bankruptcy relating to any
advocate and solicitor against whom proceedings in bankruptcy
have been taken, and to be supplied with office or certified copies
of the proceedings on payment of the usual charge for such copies.
Power of Bar Council to accept gifts
60. (1) The Bar Council may on behalf of the Malaysian Bar
accept by way of grant, gift, testamentary disposition or otherwise
property or moneys in aid of the finances or purposes of the
Malaysian Bar on such conditions as the Bar Council may determine.
(2) Registers shall be kept of all donations to the Malaysian Bar
including the names of donors and any special conditions on which
any donation has been given.
(3) All property, moneys or funds donated to the Malaysian Bar
for any specific purposes shall, subject to the law relating to
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charities, be applied and administered in accordance with the purposes
for which they have been donated and shall be separately accounted
for.
Representation in court
61.  The Malaysian Bar may be represented or appear in any
court by any advocate and solicitor whether he is a member of the
Bar Council or not.
Proceedings of the Bar Council
Meeting of the Council
62. (1) The Bar Council may decide to call a meeting at any time
and place and as often as may be necessary, and the Chairman of
the Bar Council may on his own or at the request in writing of
not less than one half of its members call an emergency meeting
of the Bar Council to consider any urgent matter.
(2) Nine members personally present at any meeting of the Bar
Council shall constitute a quorum for the transaction of any business.
(3) A decision of the majority of the members of the Bar Council
present and voting at any meeting of the Bar Council shall be
deemed to be a decision of the Bar Council.
(4) At any meeting of the Bar Council the Chairman shall have
a casting vote.
(5) Subject to any rules of the Malaysian Bar, the Bar Council
may regulate its own proceedings and in particular the holding of
meetings, the notice to be given of any meetings, the proceedings
at the meeting, the keeping of minutes and the custody, production
and inspection of the minutes.
Expenses of members
63.  No fees shall be paid to any member of the Bar Council but
a member may be reimbursed from the funds of the Malaysian Bar
for travelling expenses incurred by him in relation to the affairs
of the Malaysian Bar.
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General Meeting of the Malaysian Bar
Annual general meetings
64. (1) The Bar Council shall each year convene an annual general
meeting of the Malaysian Bar to be held before the first day of
April.
(2) The Bar Council shall cause to be prepared and presented
to the annual general meeting--
(a) a report on the activities of the Malaysian Bar during its
term of office; and
(b) proper accounts, duly audited, of all funds, property and
a s s e t s of the Malaysian Bar for the twelve months
terminating on the 31 day of December immediately
preceding such general meeting.
General meeting
65. (1) The Bar Council may convene a general meeting of the
Malaysian Bar other than the annual general meeting at any time
the Bar Council considers it necessary or expedient.
(2) Any fifty members of the Malaysian Bar may at any time
requisition a general meeting by written notice in that behalf signed
by them and served on the President, Vice-President or the Secretary
of the Malaysian Bar; and the Bar Council shall convene a general
meeting to be held within thirty days of such service.
(3) The written notice shall specify the object or objects of the
proposed meeting.
(4) If the Bar Council fails to convene a general meeting in
accordance with the requisition within thirty days of the service
of such requisition, the requisitioning members may convene the
general meeting within sixty days of such service.
(5) If any member of the Malaysian Bar desires to propose any
motion to be considered at the annual or other general meeting to
be convened under this section, he shall not less than seven days
before the date of the meeting serve upon the Secretary of the
Malaysian Bar notice of such motion in writing.
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Voting
66.  At every general meeting other than an annual general meeting,
every member present shall have one vote and the Chairman of
that meeting shall have a casting vote.
Quorum
67. (1) The quorum for a general meeting of the Malaysian Bar
shall be one-fifth of the total number of members of the Malaysian
Bar personalIy present of any greater number as shall be provided
under any rules made pursuant to paragraph 42(2)(d); and no
business shall be transacted at any general meeting unless a quorum
is present when the meeting proceeds to business.
(2) Any general meeting, whether convened on the requisition
of members pursuant to subsection 65(2) or convened pursuant to
subsection 65(4), shall be dissolved if a quorum is not present
within half an hour from the time appointed for holding the meeting.
(3) Any question at a general meeting of the Malaysian Bar
shall be decided by the votes of not less than two-thirds of the
members present and voting.
State Bar Committee
Combined Bar - State Bar Committee
68. (1) In this Part--
"combined Bar" means a State Bar which combines all the
members in any two or more States and recognized as such under
section 69.
(2) For the purpose of this Part, a member of the State Bar is
deemed to be practising in a State if he ordinarily practises in that
State. The opinion of the State Bar Committee shall be prima facie
evidence that the member ordinarily practises in the State.
(3) A member may ordinarily practise in more than one State
and all members practising in the Federal Territory shall be deemed
to be members of the Selangor State Bar.
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(4) Members practising in the Federal Territory of Kuala Lumpur
shall be entitled to establish a separate bar for the Federal Territory
of Kuala Lumpur to be known as the Kuala Lumpur Bar. The
decision to have a separate bar shall be made by a majority vote
of the members present at a general meeting called for this purpose.
(5) At the time of establishment of the Kuala Lumpur Bar any
member who had paid the annual subscription for that calendar
year to the Selangor State Bar Committee shall not be required to
pay a second annual subscription for the same year to the Kuala
Lumpur Bar Committee.
(6) The assets of the Selangor State Bar, which is commonly
known as the Selangor and Federal Territory Bar, shall, upon
establishment of the Kuala Lumpur Bar, be apportioned between
the Selangor State Bar and the Kuala Lumpur Bar in the proportions
that their respective memberships bear to the membership of the
former combined Bar.
Combination of members as State Bar
69.  The combination of any ten or more members in a State or
of any ten or more members in two or more States for the purposes
of Part IV of the Ordinance shall be recognized as a State Bar for
the purposes of this Act provided that not less than ten of the
members representing the State Bar have been practising in the
relevant State or States for the whole of the period of the twelve
months immediately before the coming into operation of this Act.
Annual general meeting of State Bar
70. (1) The Secretary of each State Bar shall, before the first day
of March in each year, summon all members of the State Bar to
an annual general meeting to be held in that month at a time and
place to be fixed by him. Only members of the State Bar shall be
entitled to attend and vote at the meeting.
(1A) The State Bar Committee shall cause to be prepared and
presented to the annual general meeting--
(a) a report on the activities of the State Bar during its term
of office; and
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(b) proper accounts, duly audited, of all funds, property and
assets of the State Bar for the twelve months ending on
the 31 day of December immediately preceding such
general meeting.
(2) At every annual general meeting, the Chairman of the State
Bar Committee shall preside and in his absence the most senior
member present who is willing to preside shall preside, and the
quorum shall be one-third of the total number of members of the
State Bar. If a quorum is not present within half an hour from the
time appointed for holding the meeting it shall stand adjourned to
the same day in the week next following at the same time and place
unless otherwise notified to members by the State Bar Committee.
(3) Any question at that meeting shall be decided by the votes
of not less than two-thirds of the members present and voting and
the presiding member shall have a casting vote.
(4) The meeting shall elect from among the members of the
State Bar a Chairman and not less than four and not more than six
members to form the State Bar Committee.
(5) The Chairman and the members of the Committee so elected
shall hold office until the conclusion of the next annual general
meeting of the State Bar.
(6) Every State Bar Committee shall appoint a Secretary who
shall be a Member of the State Bar.
(7) After the election of the State Bar Committee the meeting
shall elect one member of the State Bar (who need not be a
member of the State Bar Committee) to represent the State Bar on
the Bar Council:
Provided that where the Chairman of the State Bar Committee
elected pursuant to subsection (4) is also the current President or
Vice-President of the Malaysian Bar, the meeting shall elect two
members instead of one under this subsection.
(7A) If for any reason a member elected under subsection (7)
vacates office, the State Bar Committee shall appoint another
member of the State Bar to take his place and the member so
appointed shall hold office for the remainder of the term of office
of the member he replaces.
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(8) The Chairman of the State Bar Committee shall inform the
Registrar and the Secretary of the Malaysian Bar the names of the
persons elected and appointed as Chairman, members and Secretary
respectively of the State Bar Committee and of the persons elected
as representatives of the State Bar on the Bar Council.
(9) The Secretary of the Malaysian Bar shall, in the month of
October in each year send to all Assistant Registrars in each State
a list of all the representatives elected to represent the State Bars
on the Bar Council; and the lists shall be made available for
inspection by all members without charge.
General meeting of State Bar
70A. (1) Every State Bar Committee may convene a general meeting
of the State Bar other than the annual general meeting at any time
the Bar Committee considers it necessary or expedient.
(2) The quorum at every such meeting shall be one-third of the
total members of the State Bar.
(3) Any ten members of the State Bar or one-third of the members
of the State Bar whichever shall be the greater may at any time
requisition a general meeting by written notice in that behalf signed
by them and served on the Chairman or the Secretary of the State
Bar Committee and the State Bar Committee shall convene a
general meeting to be held within thirty days of such service.
(4) The written notice shall specify the object or objects of the
proposed meeting.
(5) If the State Bar Committee fails to convene a general meeting
in accordance with the requisition within thirty days of the service
of such requisition, the requisitioning members may convene the
general meeting within sixty days of such service.
(6) Any general meeting convened under subsection (3) or (5)
shall be dissolved if a quorum is not present within half an hour
from the time appointed for holding the meeting.
(7) At every general meeting every member present shall have
one vote and the Chairman of that meeting shall have a casting
vote.
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(8) Any question at the meeting shall be decided by not less
than two-thirds of the members present and voting.
Severance of combined Bar
71. (1) Where the number of members in each of the States forming
a combined Bar exceeds ten, the members of the Bar of a State
may, at any general meeting called for the purpose, pass by a
majority of the members present and voting a resolution that such
combined Bar be severed.
(2) One month after the passing of such resolution, the combined
Bar shall be severed, and the members in each of the States forming
the combined Bar shall thereafter form a separate State Bar.
(3) The chairman of the meeting referred to in subsection (1)
shall report the passing of any resolution to the Registrar and to
the Bar Council.
(4) Where the number of members in one of the State forming
a combined Bar does not exceed ten, the members of the Bar of
that state may sever themselves from the members of the Bar of
the other State if--
(a) the number of members in the other State exceeds ten;
and
(b) the members of the Bar of the first-mentioned State have
found another State the members of whose Bar have
expressed their willingness by a vote of a simple majority
of their members at a general meeting to combine with
the members of the Bar of the first-mentioned State.
(c) (Deleted by Act A567).
(5) Subsections (2) and (3) shall apply mutatis mutandis to a
severance of a combined Bar effected pursuant to subsection (4).
(6) Where severance takes place pursuant to this section, the
assets of the former combined Bar shall be apportioned as provided
in subsection (6) of section 68 mutatis mutandis.
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Meeting of the State Bar Committee
72. (1) Each State Bar Committee shall meet at such time and
place as the Chairman may appoint.
(2) Each State Bar Committee shall regulate its proceedings in
any manner that it considers fit; except that the quorum shall not
be less than three members personally present:
Provided that a resolution circulated and signed by not less than
three members or all the members present in Malaysia whichever
is the greater at the date of the passing of the resolution shall be
deemed to have been passed at a properly constituted meeting of
the State Bar Committee.
Powers of the State Bar Committee
Each State Bar Committee shall have the following powers:
73.
(i) to levy subscriptions from its members of an amount not
exceeding in any one year one hundred ringgit from each
member unless it has been agreed to by the State Bar
C o m m i t t e e at its annual general meeting that the
subscription shall be in excess of one hundred ringgit;
and subscriptions shall be payable in each year to the
appropriate State Bar Committee by each advocate and
solicitor by the 30 day of June;
(ii) to promote and safeguard the interests of advocates and
solicitors who are members of the State Bar;
(iii) to make appropriate representations to the Malaysian Bar
upon matters concerning the State Bar;
(iv) to entertain and deal with such matters as may from time
to time be referred to it either generally or specifically
by the Bar Council or the State Bar in general meeting;
(v) to provide amenities for and generally to promote the
welfare of members of the State Bar;
(vi) to inquire into and proceed with any complaint of the
conduct of an advocate and solicitor in his professional
capacity or of any pupil or articled clerk under Part VII;
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(vii) to co-opt as members of the Committee not more than
two members of the State Bar who shall have no right
to vote at any meeting of the Committee.
Fees not allowed to State Bar Committee
74.  No fees shall be paid to any member of a State Bar Committee,
except for any travelling expenses incurred by any member of the
State Bar Committee. Such expenses may with the approval of the
State Bar Committee, be reimbursed to the member from the funds
of that Committee.
Casual vacancy
75. (1) Any casual vacancy in a State Bar Committee shall be
filled by the continuing members of the State Bar Committee by
the appointment of a member of the State Bar concerned and any
member so appointed shall hold office for the remainder of the
term of office of the member he replaces.
(2) Notwithstanding any vacancy in the State Bar Committee
the continuing members of the Committee may act if there is a
quorum; and no act done by or under the authority of the State Bar
Committee shall be invalid in consequence of any defect subsequently
discovered in the election or qualification of the members or any
of them.
General
Names of Council and Committee members to be published in
the Gazette
76. (1) The names of the members of the Bar Council and of the
Secretary of the Malaysian Bar and of the Chairman and members
of the State Bar Committees and of the Secretaries appointed by
them including that of any persons appointed to fill any vacancies
shall be published in the Gazette.
(2) Except and in so far as may be necessary for the purpose
of giving effect to any resolution passed or decision made, secrecy
shall be maintained in all proceedings conducted by the Bar Council,
the State Bar Committee, the *Inquiry Committee and their staff.
*Note: See note on "Disciplinary Committee" or `Inquiry Committee' in paragraph 33(1)(d).
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PART VI
PROFESSIONAL PRACTICE, ETIQUETTE, CONDUCT AND
DISCIPLINE OF ADVOCATE AND SOLICITOR AND CLERKS
Power to make rules regulating practice, etc.
77. (1) Without prejudice to any other power to make rules provided
under this Act, the Bar Council may, with the approval of the
Attorney General make rules for regulating the professional practice,
etiquette, conduct and discipline of advocates and solicitors.
(2) Any rules made pursuant to this section shall not come into
operation until they have been published in the Gazette.
(3) Any advocate and solicitor who fails to comply with any
r u l e s made under this section may be liable to disciplinary
proceedings.
(4) The Attorney General may, by order published in the Gazette,
make such modifications as he deems necessary to any rules made
and published under this section before the coming into operation
of this subsection.
Power to make particular rules
78. (1) The Bar Council shall make rules--
(a) providing for the opening and keeping by advocates and
solicitors of accounts at banks for clients' moneys;
(b) providing for the keeping by advocates and solicitors of
accounts containing particulars and information as to
moneys received, held or paid by them for or on account
of their clients; and
(c) empowering the Bar Council to take such action as may
be necessary to enable it to ascertain whether or not the
rules are being complied with.
(2) The Bar Council shall also make rules--
(a) providing for the opening and keeping by every advocate
and solicitor who is a sole trustee, or who is co-trustee
with one or more of his partners, clerks or servants, of
an account at a bank for moneys of any trust of which
he is such a sole trustee or co-trustee;
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(b) providing for the keeping by every such advocate and
solicitor of accounts containing particulars and information
as to moneys received, held or paid by him for or on
account of any such trust; and
(c) empowering the Bar Council to take such action as may
be necessary to enable it to ascertain whether or not the
rules are being complied with.
(3) (a) Rules made under this section shall make provision for
requiring an advocate and solicitor, in such cases as may be prescribed
by the rules, either--
(i) to keep on deposit in a separate account at a bank for the
benefit of the client moneys received for or on account
of a client if the client should so request; or
(ii) to make good to the client out of his own moneys a sum
equivalent to the interest which would have accrued if
the moneys so received had been so kept on deposit.
(b) Except as provided by any rules made pursuant to this section,
an advocate and solicitor shall not be liable by virtue of the relation
between advocate and solicitor and client to account to any client
for interest receive by him on moneys deposited at a bank being
moneys received or held for or on account of his clients generally.
(c) Nothing in this subsection, or in any rules made pursuant
to this section, shall--
(i) affect any arrangement in writing, whenever made, between
an advocate and solicitor and his client as to the application
of the client's moneys or interest thereon;
(ii) apply to moneys received by an advocate and solicitor
being moneys subject to a trust of which he is a trustee.
(4) Any rules made pursuant to this section shall not come into
operation until they have been published in the Gazette.
(5) Disciplinary proceedings may be taken against any advocate
and solicitor who fails to comply with any rules made under this
section.
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(6) In this section, the words "trust" and "trustee" extend to
implied and constructive trusts and to cases where the trustee has
a beneficial interest in the trust property and to the duties incident
to the office of a personal representative, and "trustee", where the
context admits, includes a personal representative.
Power to make rules on professional indemnity
78A. (1) The Bar Council may, with the approval of the Attorney
General, make rules concerning the taking out of professional
indemnity for advocates and solicitors against any class of professional
liability and the rules may for the purpose of providing such
indemnity do all or any of the following:
(a) authorize the Bar Council to take out and maintain insurance
in the name of the Malaysian Bar with any person permitted
by law to carry on professional liability insurance business
or pecuniary loss insurance business and covering every
practising advocate and solicitor;
(b) authorize the Bar Council to establish and maintain a
fund for the aforesaid purpose; or
(c) require advocates and solicitors to take out and maintain
insurance.
(2) Without prejudice to the generality of subsection (1), rules
made under this section may--
(a) specify the terms and conditions on which professional
indemnity is to be available;
(b) provide for the management, administration and protection
of any fund established under subsection (1) and require
advocates and solicitors to make payments to any such
fund;
(c) require advocates and solicitors to make payments by
way of premiums on any policy taken out under subsection
(1) and provide for proceedings by the Malaysian Bar or
its insurers against any advocate and solicitor who fails
to do so for recovery of the appropriate premiums;
(d) prescribe the conditions which an insurance policy must
satisfy for the purpose of paragraph (1)(c);
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(e) authorize the Bar Council to determine the amount of any
payment required by the rules;
(f) specify the circumstances in which where an advocate
and solicitor has failed to comply with the rules, proceedings
in respect of any sum paid by way of indemnity may be
taken against him by the Malaysian Bar or its insurers;
(g) prescribe that an advocate and solicitor shall not be entitled
to a Sijil Annual unless he is insured as required by the
rules for the period to which the Sijil Annual relates;
(h) empower the Bar Council to take such steps as it considers
necessary or expedient to ascertain and ensure that the
rules are complied with; and
(i) contain such procedural, incidental or other provisions as
may be necessary or expedient for the purposes of the
rules.
(3) Nothing in this section shall affect the right of any advocate
and solicitor, in addition to the indemnity provided in the rules
made under this section, to insure himself further against loss
arising from such claims as may be instituted against him.
(4) Any rules made under this section shall not come into operation
until they have been published in the Gazette.
Advocate and solicitor to deliver accountant's report
79. (1) Every advocate and solicitor shall, unless exempted by
the Bar Council, deliver to the Secretary of the Malaysian Bar with
every application made by him for a Sijil Annual a report signed
by an accountant, referred to as an "accountant's report" in this
section.
(2) The accountant's report shall--
(a) state that the accountant in compliance with this section
and any rules made thereunder has examined the books,
accounts and documents of the firm of the advocate and
solicitor for such accounting period as may be specified
in the report;
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(b) state whether or not the accountant is satisfied, from his
e x a m i n a t i o n of the books, accounts and documents
produced to him and from the information and explanations
given to him, that during the said accounting period of
the advocate and solicitor or his firm has complied with
any rules made under subsection 78(1);
(c) state, if the accountant is not satisfied, the matters in
respect of which he is not so satisfied;
(d) contain such information as may be prescribed by rules
made by the Bar Council under this section; and
(e) be delivered to the Secretary of the Malaysian Bar not
more than twelve months (or such other period as may
be prescribed by rules made under this section) after the
end of the accounting period specified in the report.
(3) Subject to any rules made under this section, the accounting
period for the purposes of an accountant's report shall--
(a) begin at the expiry of the last preceding accounting period
for which an accountant's report has been delivered or
from the date the advocate and solicitor commenced practice
as the case may be;
(b) cover not less than twelve months;
(c) terminate not more than twelve months before the date
on which the report is delivered to the Bar Council; and
(d) where possible, consistent with paragraphs (a), (b) and
(c), correspond to a period or consecutive periods for
which the accounts of the advocate and solicitor or his
firm are ordinarily made up.
(4) In this section "accountant" means an approved company
auditor as defined in the Companies Act, 1965 [Act 125]. If in any
particular case there shall not be an approved company auditor
practising in the State in which an advocate and solicitor ordinarily
practises and the Bar Council shall be of the view that by reason
of the difficulty or expense involved in securing the services of
an approved company auditor from outside such State it would be
unreasonable to expect the advocate and solicitor to secure his
service, the Bar Council may approve any other auditor whom it
shall consider competent for the purposes of this section.
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(5) The Bar Council shall make rules to give effect to this
section and without prejudice to the generality of the foregoing
such rules shall prescribe the nature and extent of the examination
to be made by the accountant of the books and accounts of the firm
of an advocate and solicitor and of any other relevant documents
with a view to the preparation of the report to be delivered by the
advocate and solicitor under this section.
(6) Any such rules may include provisions for--
(a) permitting in any special circumstances as may be defined
in the rules a different accounting period from that specified
in subsection (3); and
(b) regulating any matters of procedure or matters incidental,
ancillary or supplemental to this section.
(7) Any rules made by the Bar Council under this section shall
not come into operation until they have been published in the
Gazette.
(8) Any advocate and solicitor who fails to comply with this
section or any rules made thereunder may be liable to disciplinary
proceedings.
Compensation Fund
Compensation Fund
80. (1) The Malaysian Bar shall maintain and administer in
accordance with this section a fund to be known as the "Compensation
Fund".
(2) Every advocate and solicitor shall on each occasion he applies
for a Sijil Annual pay to the Malaysian Bar a contribution of such
sum as the Bar Council may from time to time determine and the
Malaysian Bar shall pay that contribution into the Fund:
Provided that an advocate and solicitor who applies for a Sijil
Annual shall be required to pay only half the contribution so
determined if the practising certificate for which he proposes to
apply is valid for less than six months.
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(3) The Malaysian Bar may invest any moneys out of the Fund
which are not immediately required for any other purposes and,
for the purposes of this section, the Malaysian Bar shall have all
the powers of trustees under any written law.
(4) The Malaysian Bar may for the purposes of the Fund borrow
from any lender and may charge any investments of the Fund by
way of security for such loan.
(4A) The Bar Council may, for such of the purposes of the
Malaysian Bar as the Bar Council deems fit, borrow moneys from
the Fund and shall, in respect of any money so borrowed, pay to
the Fund interest at the prime rate laid down by the Association
of Banks in Malaysia, prevailing from time to time.
(5) The Malaysian Bar may insure the Fund with any registered
insurance business in Malaysia for any purpose and on any terms
as the Malaysian Bar may consider expedient.
(6) These shall be carried to the credit of the Fund--
(a) all annual contributions paid to the Malaysian Bar in
pursuance of subsection (2);
(b) all interests, dividends and other income or accretions of
capital arising from the investments of the Fund;
(c) the proceeds of any realization of any investments of the
Fund;
(d) all moneys borrowed for the purposes of the Fund;
(e) all sums received by the Malaysian Bar under any insurance
effected by the Malaysian Bar under subsection (5); and
(f) any other moneys which may belong or accrue to the
Fund or be received by the Bar Council in respect of the
Fund.
(7) All moneys from time to time forming part of the Fund and
all investments of the Fund shall be applicable--
(a) for payment of any costs, charges and expenses of
establishing, maintaining and administering the Fund;
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(b) for payment of any costs, charges and expenses of the
Bar Council in ascertaining whether the rules made under
section 78 have been complied with, pursuant to the
powers given by such rules;
(c) for payment of any premiums on insurance effected by
the Malaysian Bar under subsection (5);
(d) for repayment of any moneys borrowed by the Malaysian
Bar and for payment of interest on any moneys so borrowed;
(e) for payment of any grants which the Malaysian Bar may
make under subsection (8); and
(f) for payment of any other sums payable out of the Fund
by virtue of this section.
(8) Where it is proved to the satisfaction of the Bar Council that
any person has sustained loss in consequence of dishonesty on the
part of any advocate and solicitor or any clerk or servant of an
advocate and solicitor in connection with that advocate and
solicitor's practice in Malaysia as an advocate and solicitor, or in
connection with any trust of which that advocate and solicitor is
a trustee, then subject to this section, the Malaysian Bar may, if
the Bar Council thinks fair and reasonable, makes a grant to that
person out of the Fund for the purpose of relieving or mitigating
that loss.
(8A) If in any year there has been neither an application made
for a grant from the Fund nor a grant made from the Fund, the Bar
Council may in its discretion transfer from the Fund all interests,
dividends and other accretions of capital arising from the Fund,
or any part thereof, to a Fund of the Malaysian Bar established for
the purposes of purchasing or maintaining a library for the use of
members of the Malaysian Bar.
(9) A grant may be made under this section whether or not the
advocate and solicitor had a valid practising certificate when the
act of dishonesty was committed, and notwithstanding that subsequent
to the commission of the act the advocate and solicitor has died
or had his name removed from or struck off the Roll or has ceased
to practise or been suspended from practice.
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(10) On any grant made by the Malaysian Bar under this section
to any person in respect of any loss--
(a) the Malaysian Bar shall to the extent of the amount of
the grant be subrogated to all such rights and remedies
as the person to whom the grant is made may be against
the advocate and solicitor, clerk or servant in respect of
the loss;
(b) the person to whom the grant is made shall have no right
by way of bankruptcy or other legal proceedings or
otherwise to receive any sum out of the assets of the
advocate and solicitor, clerk or servant in respect of the
loss until the Fund has been reimbursed with the full
amount of the grant.
(11) Reference in paragraphs (10)(a) and (b) to the person to
whom the grant is made or to the advocate and solicitor, clerk or
servant shall include, in the event of this death, insolvency or other
disability, reference to his personal representatives or any other
person having authority to administer his estate.
(12) The Bar Council may make rules in respect of the procedure
to be followed in giving effect to this section and in respect of any
matters incidental, ancillary or supplemental thereto or concerning
the administration or protection of the Fund.
(13) The income derived from the Compensation Fund shall be
exempted from income and all other taxes, and the Fund shall be
an institution approved for the purposes of section 45 of the Income
Tax Act 1967 [Act 53] payments to which shall be good deductions
for income tax purposes in arriving at the aggregate income of the
person making the payment for the relevant year.
Advocate and solicitor shall not act as commissioner or notary
without certificate
81.  No advocate and solicitor who is a commissioner for oaths
or a notary public shall do any act as such commissioner or notary,
as the case may be, unless he has a valid practising certificate.
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Advocate wilfully and knowingly acting as agent
82. (1) No advocate and solicitor shall wilfully and knowingly
act as agent in any legal proceedings of any kind or in any matter
which under this Act can be done only by an advocate and solicitor
who has a valid practising certificate for another advocate and
solicitor who does not have a valid practising certificate or permit
his name to be made use of in any such proceedings or matter on
the account or for the profit of such other advocate and solicitor
or send any process to such other advocate and solicitor or do any
other act enabling such advocate and solicitor to appear, do, practise
or purport to practise as an advocate and solicitor in any such
proceedings or matter.
(2) No advocate and solicitor shall authorize any unauthorized
person to operate any bank account in his name or in the name of
his firm and maintained by him or his firm in connection with his
practice as an advocate and solicitor.
(3) Any advocate and solicitor who has acted in contravention
of subsection (1) or (2) may be liable to disciplinary proceedings.
(4) Any unauthorized person who acts or practises or purports
to practise as an advocate and solicitor shall be guilty of an offence
and shall on conviction be liable to a fine not exceeding two
thousand ringgit or to imprisonment for a term not exceeding one
year or to both.
Advocate and solicitor not to employ undischarged bankrupt
83. (1) No advocate and solicitor shall, in connection with his
practice, without the consent of the court obtained on an application
by originating summons served upon the Attorney General and
upon the Malaysian Bar, employ or remunerate any person who
to his knowledge is an undischarged bankrupt or has been--
(a) struck off the Roll otherwise than at his own request in
any part of Malaysia or in Singapore or elsewhere and
remains struck off;
(b) suspended from practising as an advocate and solicitor
in any part of Malaysia or in Singapore or elsewhere and
remains suspended;
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(c) convicted of an offence involving dishonesty or fraud or
has been found guilty of an offence under the Prevention
of Corruption Act 1961 [Act 57];
(d) convicted of an offence under section 15A of the Minor
Offences Act 1955 [Act 336] or under this Act;
(e) a person in respect of whom an order under subsection
(2) has been made; or
(f) employed as a public officer:
Provided that paragraph (f) shall not apply to any public officer
who is an advocate and solicitor or a qualified person.
(2) On application made by or on behalf of the Attorney General
of the Malaysian Bar, the Court may make an order directing that,
as from a date to be specified in the order, no advocate and
solicitor shall in connection with his practice employ or remunerate
any person who--
(a) has been a party to any act or default of an advocate and
solicitor in respect of which a complaint has been or
could have been made against him under this Act; or
(b) has so conducted himself whilst employed by an advocate
and solicitor that, had he himself been an advocate and
solicitor, his conduct might have formed the subject of
a complaint against him under this Act.
(3) Every application under subsection (2) shall be served not
less than ten days before the application is to be heard upon the
person in respect of whom it is made and upon his employer or
previous employer who is an advocate and solicitor.
(4) Every order made under subsection (2) shall be filed in a
file to be kept for this purpose by the Registrar which may be
inspected by any advocate and solicitor without fee.
(5) Before an advocate and solicitor employs or remunerates
any person (other than an advocate and solicitor or a qualified
person) in connection with his practice as such, he shall require
that person to make a statutory declaration stating that he is not
an undischarged bankrupt and that he does not come within the
class of persons enumerated in paragraphs (1)(a) to (f) and that he
is not a person in respect of whom an order has been made under
subsection (2).
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(6) Any advocate and solicitor who acts in contravention of this
section may be liable to disciplinary proceedings.
Advocate and solicitor acting for developer not to act for
purchaser in housing development
84. (1) Where an advocate and solicitor acts for a housing developer
in a sale of immovable property developed under a housing
development neither he nor any member or assistant of the firm
of which he is a member either as partner or employee shall in the
same transaction act for the purchaser of that property, and a
written agreement prepared by an advocate and solicitor or any
member or assistant of the firm acting for the developer in respect
of such transaction shall be scrutinised by an advocate and solicitor
acting for the purchaser:
Provided that if any such written agreement in respect of the
transaction is not scrutinised by an advocate and solicitor acting
for the purchaser, the advocate and solicitor acting for the housing
developer shall obtain a certificate signed by the Purchaser showing
that the Purchaser does not intend to engage an advocate and
solicitor to scrutinise the agreement for him.
(2) For the purpose of this section a certificate shall not be
valid unless it is signed by the Purchaser in the presence of a
Commissioner for Oaths who is not an advocate and solicitor
practising in partnership with, or as the employee of, the advocate
and solicitor acting for the housing developer.
(3) The developer and the purchaser shall each pay for the fees
of its own advocate and solicitor.
(4) In subsection (1)--
(a) the term "housing development" has the meaning assigned
to it in the *Housing Development (Control and Licensing)
Act 1966 [Act 118]; and
(b) "sale of immovable property" includes the grant of a
lease for a term exceeding three years.
(5) Subsection (1) is without prejudice to any law affecting an
advocate and solicitor who acts for parties where there is a conflict
of interest or whenever a conflict of interest may arise.
*NOTE--Previously referred to as "Housing Developers (Control and Licensing) Act 1966"­See Act
A1142.
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(6) An advocate and solicitor who acts in contravention of
subsection (1) may be liable to disciplinary proceedings.
(7) Subsection (1) shall not apply to any transaction where the
contract for sale was entered into before the coming into operation
of this Act.
Registrar to maintain register of firm names
85. (1) The Bar Council shall maintain a register of firm names
under which advocates and solicitors practise. No firm name shall
be registered or struck off the register without a certificate from
the Bar Council. The Bar Council may refuse a certificate for
registration on the grounds that the proposed firm name is likely
to be confused with a registered firm name or is likely to mislead
the public. An advocate and solicitor who is dissatisfied with a
decision of the Bar Council may appeal to the High Court whose
decision shall be final.
(2) No person shall practise as an advocate and solicitor under
a name that is not--
(a) his own name;
(b) the names of advocates and solicitors who are or were
his partners;
(c) the names of his predecessors whose goodwill he has, or
his partners have, acquired;
(d) any one or the combination of the names specified in
paragraphs (a), (b) and (c).
( 3 ) I n any case where a name which complies with
s u b s e c t i o n (2) cannot be registered without contravening
subsection (1) then the person may practise under such name as
he wishes which is approved by the Bar Council.
(4) An advocate and solicitor who acts in contravention of
subsection (3) may be liable to disciplinary proceedings.
(5) The Bar Council shall, at the request of the partners practising
under a firm name, and may, if it is satisfied that no one is
practising under that name, remove a firm name from the register.
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Where solicitor and client relationship exists
86. (1) Where the relationship of advocate and solicitor and client
exists, or has existed, a summons may be issued by the client or
his representative for the delivery of a cash account, or the payment
of moneys, or the delivery of securities.
(2) The Court or a Judge may order an advocate and solicitor
to deliver to the applicant a list of the moneys or securities which
he has in his custody or control on behalf of the applicant, or to
bring into court the whole or any part of the same, within such
time as the Court or Judge orders.
(3) In the event of the advocate and solicitor alleging that he
has a claim for costs, the Court or Judge may make such provision
for the payment thereof or security therefor or the protection of
the advocate and solicitor's lien, if any, as the Court or Judge
thinks fair and reasonable.
Where money is due from advocate and solicitor to the client
87. (1) If, during the taxation of any bill of costs or the taking
of any account between the advocate and solicitor and client, it
appears to the Registrar that there are moneys due from an advocate
and solicitor to the client, the Registrar may make an interim
certificate as to the amount so payable by the advocate and solicitor.
(2) Upon the filing of such certificate the Court or a Judge may
order the moneys so certified to be paid forthwith to the client or
brought into court.
Control of Property
Guilty advocate and solicitor, etc.
88. (1) The Bar Council may if it has reasonable cause to believe
that an advocate and solicitor, or a clerk or servant of an advocate
and solicitor, has been guilty of dishonesty in connection with that
advocate and solicitor's practice as an advocate and solicitor or
in connection with any trust of which that advocate and solicitor
is a trustee, issue a certificate to that effect and thereupon the
Schedule, except paragraph 7 thereof, shall apply in relation to
that advocate and solicitor.
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Legal Profession
(2) Where the name of an advocate and solicitor is removed
from the Roll or an advocate and solicitor is suspended from
practice, he shall, within twenty-one days from the material date,
satisfy the Bar Council that he has made suitable arrangements for
making available to his client or to some other advocate and
solicitor or advocates and solicitors instructed by his client or by
himself--
(a) all deeds, wills, documents constituting or evidencing
title to any property, papers, books of account, records,
vouchers and other documents in his or his firm's 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 to, or held
by him or his firm on behalf of, his clients or subject to
any such trust as aforesaid.
(3) If he fails so to satisfy the Bar Council, the said Schedule
shall apply in relation to him.
(4) In subsection (2), the expression "the material date" means
the latest of whichever of the following dates--
(a) the date when the order of the *Disciplinary Committee
or of the Court by or in pursuance of which the advocate
and solicitor's name is removed from, or struck off, the
Roll, or the advocate and solicitor is suspended from
practise, is to take effect;
(b) the last date on which an appeal against the order in
paragraph (a) may be lodged;
(c) the date on which an appeal under paragraph (b) is dismissed
or abandoned.
(5) In this section and in the Schedule, the words "trust" and
"trustee" have the same meanings as in subsection 78(6).
*See Footnote on "Disciplinary Committee" or `Inquiry Committee' under paragraph 33(1)(d)
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Suspension of advocate and solicitor
88A. (1) Where an advocate and solicitor--
(a) 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;
(b) has been disbarred, struck off, suspended or censured in
his capacity as a legal practitioner in any other country;
(c) in respect of whom a complaint has been made to the Bar
Council concerning any dishonest act committed by him
in his capacity as an advocate and solicitor;
(d) has left the country or has not attended at his office in
such circumstances that the Bar Council may reasonably
presume that he has absconded; or
(e) is otherwise incapable, from infirmity of body or mind
or any other cause, of effectively performing the functions
of an advocate and solicitor,
and the Bar Council considers that it would be in the public
interest or in the 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 Judge ex parte for
an order suspending such advocate and solicitor from practice
until further order.
(2) The Chief Judge may order that the application be served
on such advocate and solicitor.
(3) The Chief Judge if satisfied that such advocate and solicitor
should be suspended from practice may make an order to that
effect until any further order of the Court.
(4) Such advocate and solicitor may within one month of the
making of the order appeal against that order to the Federal Court
whose decision shall be final.
(5) There shall be no stay of execution of the order pending
appeal.
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(6) Unless the order is reversed upon appeal, subsections 88(2)
and (3) shall apply mutatis mutandis to the advocate and solicitor
in question; and for the purpose of subsection (4) of that section
the expression "the material date" means the date of the order.
(7) The Bar Council shall as soon as possible refer to the
Disciplinary Board a complaint against the advocate and solicitor
in question.
Taking of possession of documents in the possession of advocate
and solicitor
89. (1) Where--
(a) a complaint is made to the Bar Council that there has
been undue delay on the part of an advocate and solicitor
in connection with any matter in which he or his firm has
been instructed on behalf of a client or any matter which
relates to the administration of a trust of which that
advocate and solicitor is the sole trustee or co-trustee
with one or more of this partners, clerks or servants;
(b) the Bar Council has by notice in writing invited the
advocate and solicitor to give an explanation in respect
of that matter;
(c) the advocate and solicitor has, within a period of not less
than twenty-one days specified in the said notice, failed
to give an explanation in respect of that matter which the
Bar Council regard as sufficient and satisfactory; and
(d) the advocate and solicitor has been notified in writing by
the Bar Council that he has so failed,
the Schedule to this Act, other than paragraph 7 thereof, shall
apply in relation to that advocate and solicitor, but as regards the
documents specified in paragraph 1, and the sums of money specified
in paragraph 9, of the Schedule, only in so far as they relate to
the matter complained of:
Provided that for the purposes of the proviso to paragraph 6 of
the Schedule, the Bar Council may take copies of, or extracts from,
documents which relate to the matter complained of or to that
matter and to other matters in that advocate and solicitor's practice.
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(2) In this section, the words "trust" and "trustee" have the
same meanings as in subsection 78(6).
Taking of possession of property in Counsel's possession when
he is undischarged bankrupt, etc.
90. (1) Where an advocate and solicitor practises in his own name
or as a sole advocate and solicitor under a firm name and--
(a) is an undischarged bankrupt or a receiving order in
bankruptcy is in force against him;
(b) has entered into a composition with his creditors or a
deed of arrangement for the benefit of his creditors;
(c) has had an order of committal or an order for the issue
of a writ of attachment made against him; or
(d) is a mentally disordered person or patient as defined by
the* Mental Disorder Ordinance 1952 [Ord. 31 of 1952],
and the Bar Council or State Bar Committee have reasonable cause
to believe that in consequence of the act, default or disability of
the advocate and solicitor or of any clerk or servant of his--
(i) there has been undue delay in connection with any matter
in which the advocate and solicitor or his firm has been
instructed on behalf of a client on any matter which
relates to the administration of a trust of which the advocate
and solicitor is the sole trustee or co-trustee with one or
more of his clerks or servants; or
(ii) any sum of money due from that advocate and solicitor
or his firm to, or held by him or his firm on behalf of,
his clients or subject to any trust of which he is such sole
trustee or co-trustee as aforesaid is in jeopardy while in
the control or possession of that advocate and solicitor
or his firm,
the Schedule to this Act, other than paragraph 7 thereof, shall
apply in relation to that advocate and solicitor:
Provided that for the purposes of the proviso to paragraph 6 of
the Schedule, the Bar Council may take copies of, or extracts from,
d o c u m e n t s which relate to any matter referred to in
subparagraph (i) of this section or to any sum of money referred
to in subparagraph (ii) of this section or to that matter or sum of
money, as the case may be, and to other matters in the advocate
and solicitor's practice.
*NOTE--This Ordinance would be repealed and replaced by the Metal Health Act 2001 which has
not yet come into force­See section 93 Act 615.
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(2) In this section, the words "trust" and "trustee" have the
same meanings as in subsection 78(6).
Personal representative liable for acts of advocate and solicitor
91. (1) Where--
(a) the Bar Council has reasonable cause to believe that the
personal representatives of a deceased advocate and solicitor
who immediately before his death was practising as an
advocate and solicitor in his own name, or as a sole
advocate and solicitor under a firm name, have been
guilty of dishonesty or undue delay in administering the
affairs of that advocate and solicitor's practice or in
connection with any trust of which that advocate and
solicitor was the sole trustee or co-trustee only with one
or more of his clerks or servants; or
(b) an advocate and solicitor dies and immediately before his
death the Schedule applied to him,
the Schedule, other than paragraph 7 thereof, shall apply in relation
to the personal representatives and shall continue to apply to the
personal representatives of the advocate and solicitor last mentioned
as they apply or applied, as the case may be, in relation to the
advocate and solicitor referred to in those provisions and as if the
words "the personal representatives" were, with the necessary
adaptations, substituted for the words "the advocate and solicitor"
wherever these words occur in those provisions.
(2) In this section, the words "trust" and "trustee" have the
same meanings as in subsection 78(6).
Bar Council to operate bank account of deceased solicitors'
client
92.  On the death of an advocate and solicitor who immediately
before his death was practising as an advocate and solicitor in his
own name or as a sole advocate and solicitor in a firm name the
right to operate, or otherwise deal with, any banking account in
the name of the advocate and solicitor or his firm, being an account
into which has been paid any clients' money shall, notwithstanding
anything to the contrary contained in this Act, vest in the Bar
Council to the exclusion of any personal representatives of the
advocate and solicitor and shall be exercisable as from the death
of the advocate and solicitor.
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PART VII
DISCIPLINARY PROCEEDINGS
Disciplinary Board
93. (1) For the purposes of disciplinary proceedings under this
Part, there shall be established a Disciplinary Board.
(2) The Disciplinary Board shall have the same powers as those
exercised by the Bar Council before the coming into force of this
Part.
(3) The Disciplinary Board shall consist of the following:
(a) the chairman of the Disciplinary Board appointed by the
Chief Judge and such person shall be a Judge of the High
Court or Federal Court, a retired Judge of the High Court
or Supreme Court or any other person who is qualified
to be a Judge of the High Court or Federal Court:
Provided that in a case where a Judge of the Federal
Court is to be appointed as the chairman, such appointment
shall be made by the Chief Judge in consultation with the
Chief Justice;
(b) the President of the Bar Council with the Vice-President
as his alternate; and
(c) fifteen practitioner members of not less than fifteen years'
standing appointed by the Chief Judge for a term of two
years:
Provided that the Chief Judge may extend their term
for a period not exceeding a further two years or reappoint
them.
(4) The quorum of the Disciplinary Board shall be seven members
of which one member shall be from paragraph (a), one member
from paragraph (b) and five members from paragraph (c) of
subsection (3).
(5) The secretary to the Disciplinary Board shall be a full-time
employee of the Bar Council appointed under section 98 and such
person shall be an advocate and solicitor of not less than five
years' standing.
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(6) The Disciplinary Board may make rules relating to its quorum
and to regulate its procedure.
Power of Disciplinary Board to strike off the Roll, suspend for
misconduct, etc.
94. (1) All advocates and solicitors shall be subject for the purposes
of all disciplinary actions to the control of the Disciplinary Board.
(2) Any advocate and solicitor who has been guilty of any
misconduct shall be liable to be struck off the Roll or suspended
from practice for any period not exceeding five years.
(3) For the purposes of this Part, "misconduct" means conduct
or omission to act in Malaysia or elsewhere by an advocate and
solicitor in a professional capacity or otherwise which amounts to
grave impropriety and includes--
(a) conviction of a criminal offence which makes him unfit
to be a member of his profession;
(b) breach of duty to a court including any failure by him
to comply with an undertaking given to a court;
(c) dishonest or fraudulent conduct in the discharge of his
duties;
(d) breach of any rule of practice and etiquette of the profession
made by the Bar Council under this Act or otherwise;
(e) being adjudicated a bankrupt and being found guilty of
any of the acts or omissions mentioned in paragraph
33(6)(a), (b), (c), (e), (f), (h), (k) or (l) of the Bankruptcy
Act 1967;
(f) the tendering or giving of any gratification to any person
for having procured the employment in any legal business
of himself or any other advocate and solicitor;
(g) directly or indirectly procuring or attempting to procure
the employment of himself or any other advocate and
solicitor 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;
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(h) accepting employment in any legal business through a
tout;
(i) allowing any unauthorised person to carry on legal business
in his name without his direct and immediate control as
principal or without proper supervision;
(j) the carrying on by himself, directly or indirectly, of 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;
(k) the breach of this Act or of any rules made thereunder
or any direction or ruling of the Bar Council;
(l) the disbarment, striking off, suspension or censure in his
capacity as a legal practitioner in any other country or
being guilty of conduct which would render him to be
punished in any other country;
(m) the charging, in the absence of a written agreement, in
respect of professional services rendered to a client, of
fees or costs which are grossly excessive in all the
circumstances;
(n) gross disregard of his client's interests; and
(o) being guilty of any conduct which is unbefitting of an
advocate and solicitor or which brings or is calculated to
bring the legal profession into disrepute.
(4) Where an advocate and solicitor--
(a) has been found guilty by a court of law of any offence
involving dishonesty, misuse or misappropriation of any
money or property of a client or of any other person;
(b) has been disbarred, struck off, suspended or censured in
his capacity as a legal practitioner in any other country;
(c) is the subject of a complaint concerning any dishonest
act committed by him in his capacity as an advocate and
solicitor;
(d) has left the country or has not attended at his office in
such circumstances that the Bar Council may reasonably
presume that he has absconded; or
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Legal Profession
(e) is otherwise incapable from infirmity of body or mind or
any other cause of effectively performing the functions
of an advocate and solicitor,
and the Bar Council considers that it would be in the public
interest or in the interest of his clients or of the profession that
such advocate and solicitor be suspended from practice, the Bar
Council may apply to the Disciplinary Board for an order suspending
such advocate and solicitor from practice until further notice.
(5) A pupil shall mutatis mutandis be subject to the same control
by the Disciplinary Board as is by virtue of this section exercised
over an advocate and solicitor but in lieu of an order striking him
off the Roll or suspending him, an order may be made prohibiting
the pupil from petitioning the Court for admission until after a date
to be specified in the order.
Disciplinary Committee Panel and Investigating Tribunal Panel
95.  For the purposes of disciplinary proceedings under this Part,
there shall be established a Disciplinary Committee Panel with a
Disciplinary Committee established under it and an Investigating
Tribunal Panel with an Investigating Tribunal established under it.
Appointment of Disciplinary Committee Panel
96. (1) The Disciplinary Board shall, from time to time as may
be required, appoint a Disciplinary Committee Panel, from a list
supplied by the Bar Council, comprising thirty members of whom
twenty members shall be advocates and solicitors of not less than
ten years' standing and having valid practising certificates and ten
members who are lay persons:
Provided that the Disciplinary Board may, whenever it deems
it necessary or expedient, and after consulting the Bar Council,
vary the number of members of the Disciplinary Committee Panel.
Any variation of the number of members shall be in the same
proportion of advocates and solicitors and lay persons as described
above.
(2) Every member of the Disciplinary Committee Panel shall
serve for two years:
Provided that the Disciplinary Board may extend his term for
a period not exceeding a further two years or reappoint him.
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Appointment of Investigating Tribunal Panel
97. (1) The Disciplinary Board shall, from time to time as may
be required, appoint an Investigating Tribunal Panel, from a list
supplied by the Bar Council, comprising sixty members of whom
forty members shall be advocates and solicitors of not less than
seven years' standing and having valid practising certificates and
twenty members who are lay persons:
Provided that the Disciplinary Board may, whenever it deems
it necessary or expedient, and after consulting the Bar Council,
vary the number of members of the Investigating Tribunal Panel.
Any variation of the number of members shall be in the same
proportion of advocates and solicitors and lay persons as described
above.
(2) Every member of the Investigating Tribunal Panel shall
serve for a term of two years:
Provided that the Disciplinary Board may extend his term for
a period not exceeding a further two years or reappoint him.
Director of the Complaints Secretariat
98. (1) The Bar Council shall, from time to time as may be required,
appoint an advocate and solicitor of not less than five years'
standing to the office of the Director of the Complaints Secretariat.
(2) The Director shall serve as the Secretary to the Disciplinary
Board, the Disciplinary Committee and the Investigating Tribunal.
(3) The Bar Council shall be responsible for the remuneration
of the Director and shall have the power to revoke his appointment.
(4) The Director shall be responsible for the daily administration
of complaints against advocates and solicitors under this Part.
Complaint against advocate and solicitor or pupil
99. (1) Any complaint concerning the conduct of any advocate
and solicitor or of any pupil shall be in writing and shall in the
first place be made or referred to the Disciplinary Board which
shall deal with such complaint in accordance with such rules as
may from time to time be made under this Part.
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(2) Any court, Judge, Sessions Court Judge or Magistrate or the
Attorney General may at any time refer to the Disciplinary Board
any complaint against an advocate and solicitor or a pupil.
(3) Nothing in this section shall be taken to preclude the Bar
Council or a State Bar Committee from making any complaint of
its own motion to the Disciplinary Board against an advocate and
solicitor or a pupil.
Investigating Tribunal
100. (1) Where a written application or complaint is referred to
the Disciplinary Board, the Disciplinary Board shall, if it considers
that there is merit in the application or complaint, forthwith constitute
an Investigating Tribunal.
(2) An Investigating Tribunal to be appointed by the Disciplinary
Board to inquire into the application or complaint shall consist of
three members of whom shall be--
(a) two advocates and solicitors; and
(b) one lay person,
appointed from the Investigating Tribunal Panel.
( 3 ) T h e Disciplinary Board shall appoint a member from
paragraph (2)(a) to be the chairman of the said Investigating
Tribunal.
Investigation
101. (1) An Investigating Tribunal shall, within two weeks of its
appointment, commence its investigation into the application or
complaint and report its findings to the Disciplinary Board as
expeditiously as may be reasonably expected of it but, not later
than two months after the commencement of such investigation,
or within such other period as the chairman of the Disciplinary
Board may in writing specify upon an application made by the
Investigating Tribunal for an extension of the period of two
months.
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(2) For the purposes of any investigation the Investigating Tribunal
may--
(a) call upon or employ any person to make or assist in the
making of whatever preliminary investigation it thinks
necessary;
(b) require the production for inspection by the Investigating
Tribunal or any person employed under paragraph (a) of
any book, document or paper which may relate to or be
connected with the subject matter of the investigation
and may require any person to give information in relation
to such book, document or paper; and
(c) require the person concerned to give all information in
relation to any such book, document or paper which may
be reasonably required by the Investigating Tribunal or
by the person employed under paragraph (a).
(3) Any advocate and solicitor and any other person who without
lawful excuse refuses or fails to produce to the Investigating Tribunal
or to any person whom the Tribunal may employ for the purposes
of investigation any book, document or paper or fails to give any
such information relating thereto under paragraph (2)(b) or (c)
shall be guilty of an offence and shall, on conviction, be liable to
*a fine not exceeding two thousand ringgit or to a term of
imprisonment not exceeding three months or to both.
(4) Before the Investigating Tribunal commences its hearing in
respect of any matter--
(a) the Investigating Tribunal shall post or deliver to the
advocate and solicitor concerned--
(i) a copy of any written a pplication of complaint and
of any statutory declaration or affidavit that has
been made in support of the application or complaint;
and
(ii) a notice inviting the advocate and solicitor concerned,
within such period (not being less than fourteen
days) as may be specified in the notice, to give to
the investigating Tribunal any written explanation
he may wish to offer and to advise the Investigating
Tribunal if he wishes to be heard by the Investigating
Tribunal; and
*NOTE--Provision before amendment made by Act A861 is a fine not exceeding five hundred ringgit.
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(b) the Investigating Tribunal shall allow the time specified
in the notice to elapse and give the advocate and solicitor
concerned reasonable opportunity to be heard if he so
desires and shall give due consideration to any explanation
he may make.
Disciplinary Board's consideration of report by Investigating
Tribunal
102. (1) The Investigating Tribunal shall determine and recommend
to the Disciplinary Board any one of the following recommendations:
(a) that a formal investigation is not necessary;
(b) that no cause of sufficient gravity exists for a formal
investigation but that the advocate and solicitor should
be ordered to pay a penalty; or
(c) that there should be a formal investigation by a Disciplinary
Committee.
(2) If the Investigating Tribunal in its report recommends--
(a) that there should be a formal investigation, then the
D i s c i p l i n a r y Board shall constitute a Disciplinary
Committee; or
(b) that a formal investigation by a Disciplinary Committee
is not necessary, the Disciplinary Board may, if it disagrees
w i t h the recommendation, appoint a Disciplinary
Committee.
(3) The Disciplinary Board shall inform the advocate and solicitor
and the person who made the application or complaint of the
manner in which it has determined the application or complaint
and in the event of the determination being that a formal investigation
is unnecessary the Disciplinary Board shall on the request of the
person furnish him with its reasons in writing.
Disciplinary Board's power to order penalty
103. (1) If the Disciplinary Board determines that no cause of
sufficient gravity exists for a formal investigation to be made but
that the advocate and solicitor should be ordered to pay a penalty
it may order the advocate and solicitor to pay a penalty of not more
than five thousand ringgit.
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(2) Before the Disciplinary Board makes an order for the pay-
ment of a penalty under this section it shall notify the advocate
and solicitor concerned of its intention to do so and give him a
reasonable opportunity to be heard.
(3) Where the Disciplinary Board has ordered any penalty to be
paid under this section by an advocate and solicitor, such penalty
shall be paid within one month from date of the order and in
default thereof, the Disciplinary Board may order the suspension
of the advocate and solicitor from practice until the payment of
such penalty is made.
Application to appoint a Disciplinary Committee
Where--
103A.
(a) the Disciplinary Board determines that there should be
a formal investigation; or
(b) an advocate and solicitor has been convicted of an offence
of criminal breach of trust under section 409 of the Penal
Code [Act 574] or any other offence involving fraud or
dishonesty; or
(c) the advocate and solicitor has been suspended under
subsection 94(4) of this Part,
the Disciplinary Board shall forthwith appoint a Disciplinary
Committee which shall hear and investigate the matter.
Disciplinary Committee
103B. (1) The Disciplinary Board shall appoint a Disciplinary
Committee to consider, in cases where an Investigating Tribunal
has been appointed, the report of the Investigating Tribunal, or to
investigate and make recommendations to the Disciplinary Board
in respect of cases under section 103A.
(2) A Disciplinary Committee shall consist of three members
of whom shall be--
(a) two advocates and solicitors; and
(b) one lay person,
appointed from the Disciplinary Committee Panel.
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( 3 ) T h e Disciplinary Board shall appoint a member from
paragraph 2(a) to be the chairman of the Disciplinary Committee.
Findings of Disciplinary Committee
103C. (1) After hearing and investigating any matter referred to
it, a Disciplinary Committee shall record its findings in relation
to the facts of the case and according to those facts shall determine
and make any one of the following recommendations to the
Disciplinary Board:
(a) that no cause of sufficient gravity for disciplinary action
exists;
(b) that while no cause of sufficient gravity for disciplinary
a c t i o n exists the advocate and solicitor should be
reprimanded; or
(c) that there is sufficient merit in the complaint and that the
advocate and solicitor should be subject to one of the
following disciplinary actions:
(i) imposition of a fine upon the advocate and solicitor
for such sum as the Disciplinary Committee deems
just;
(ii) suspension of the advocate and solicitor concerned
from practice for such period as the Disciplinary
Committee deems appropriate in the circumstances;
or
(iii) striking off the Roll of the advocate and solicitor
concerned.
Consideration by the Disciplinary Board of the report of the
Disciplinary Committee
103D. (1) After consideration of the report of the Disciplinary
Committee, the Disciplinary Board may make an order--
(a) affirming the recommendations of the Disciplinary
Committee; and
(b) may either accept the recommendations of the Disciplinary
Committee of the punishment to be imposed or, in
exceptional cases, impose a greater punishment.
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(2) Before the Disciplinary Board makes an order and imposes
a punishment under this section which results in a greater punishment
it shall notify the advocate and solicitor concerned of its intention
to do so and give him a reasonable opportunity to be heard.
(3) Where the Disciplinary Board does not agree with the
recommendations of the Disciplinary Committee, the Disciplinary
Board shall make such other order as it deems just.
Appeal from the decision of the Disciplinary Board
103E. (1) Any party aggrieved by any decision or order made by
a Disciplinary Board shall have the right to appeal to the High
Court within one month of notification of the decision or order
complained against.
(2) The appeal shall be fixed for hearing before three Judges
of the High Court.
(3) Any party aggrieved by the decision of the High Court shall
have the right to appeal to the Federal Court within one month of
the decision of the High Court.
(4) The Bar Council may in its discretion intervene at any stage
of any appeal under this section.
Power to make rules
103F. (1) The Disciplinary Board shall, from time to time, make
rules to regulate the procedure pertaining to disciplinary proceedings.
(2) Any rules made under this Part shall not come into operation
until they have been published in the Gazette.
Saving and transitional provision
103G. (1) The substitution of the provisions relating to disciplinary
proceedings by *this Act shall not affect any pending application,
complaint or disciplinary proceedings at the date of coming into
force of this Act.
*NOTE--The words "this Act" refer to Legal Profession (Amendment) Act 1992 [Act A812].
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(2) For the purpose of subsection (1) the principal Act relating
to disciplinary proceedings shall continue to remain in force.
Establishment of Discipline Fund
103H. (1) The Malaysian Bar shall establish, maintain and administer
a fund which shall be known as the "Discipline Fund".
(2) Every advocate and solicitor shall on each occasion he applies
for a Sijil Annual pay to the Malaysian Bar a contribution to the
Discipline Fund of such sum as the Bar Council may from time
to time determine:
Provided that where an advocate and solicitor is applying for a
practising certificate which is to be valid for a period which is less
than six months in a calendar year, he shall be required to pay a
contribution of only one half of the sum determined for that year.
(3) All costs, charges and expenses for the purposes of any
disciplinary proceeding under this Act shall be defrayed out of the
Discipline Fund.
Payment of fees, fine, costs, etc., into Discipline Fund
103I. There shall be paid into the Discipline Fund the fees prescribed
pursuant to section 140 and any fine, penalty, or any other payment
ordered by the Disciplinary Board to be paid.
Power to make rules
103J.  The Disciplinary Board may, in consultation with the Bar
Council and with approval of the Minister, make such rules as may
be expedient or necessary for the better carrying out of this Part
of this Act.
(Deleted by Act A567).
104.
Advocate and solicitor may apply to remove his name from the
Roll
105. (1) Any advocate and solicitor may, subject to this section
and to any rules made in that behalf, apply to the Court to have
his name removed from the Roll.
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(2) Every such application shall be made by way of originating
motion and shall be supported by an affidavit in the prescribed
form which shall be served on the Bar Council not less than two
months before the application is heard.
(3) The Bar Council may for good cause require the applicant
to advertise his intention to make the application in such manner
as the Bar Council shall direct.
(4) An application under this section shall be heard by a Judge
sitting in open court.
(5) No order shall be made on an application under this section
if the Judge is satisfied that--
(a) disciplinary action is pending against the applicant; or
(b) the conduct of the applicant is the subject of inquiry or
investigation under this Part.
(6) On the hearing of any such application the Judge may make
an order--
(a) directing the Registrar to strike off the applicant's name
from the Roll; or
(b) adjourning the same sine die or to such date as the Judge
seems fair and reasonable,
and such order for the payment of costs as may be just.
Bar Council to give Registrar notice of order adverse to advocate
and solicitor
106.  The Bar Council shall give the Registrar notice of every
order made under this Part that is adverse to an advocate and
solicitor, and the Registrar shall cause a notice of the effect of that
order to be entered on the Roll against the name of the advocate
and solicitor concerned:
Provided that an order as to costs only need not be so entered
on the Roll.
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High Court may restore an advocate and solicitor
107. (1) The High Court may, if it thinks fair and reasonable, at
any time order the Registrar to restore to the Roll the name of an
advocate and solicitor which has been removed from, or struck off,
the Roll.
(2) Any application that the name of an advocate and solicitor
be restored to the Roll shall be by originating motion supported
by affidavit, before the High Court.
(3) Notice of the motion shall be served on the Bar Council
which shall be represented at the hearing of the motion and shall
place before the Court a report which shall include copies of the
record of any proceedings as the result of which the name of the
advocate and solicitor was removed from, or struck off, the Roll
and a statement of any facts which have occurred since the name
of the advocate and solicitor was removed from, or struck off, the
Roll and which in the opinion of the Bar Council or any member
of it are relevant to be considered or to be investigated in connection
with the application.
(4) In the exercise of its jurisdiction under this section, the
High Court shall comprise three Judges.
(5) Any party aggrieved by the decision of the High Court shall
have a right of appeal to the Federal Court:
Provided that the Judges who made the decision appealed from
shall not sit as members of the Federal Court.
Costs for proceedings under this Part
108.  The costs of and incidental to all proceedings under this
Part shall be at the discretion of the Court hearing the proceedings
and may include the costs of the Bar Council and the costs of
proceedings before the Investigating Tribunal and the Disciplinary
Committee.
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If person inquired fails to attend
109.  If the person whose conduct is the subject of inquiry fails
to attend before the Court, the Investigating Tribunal or the
Disciplinary Committee, as the case may be, the inquiry or
proceedings may be proceeded with without further notice to such
person upon proof of service by affidavit or statutory declaration
or in such other manner as the Court may direct.
Publication and document presumed evidence of facts therein
stated
110. (1) In any proceedings under this Part any publication
purporting to be printed under the authority of the General Council
of the Bar or the Law Society in England and any document
purporting to be signed under the authority of those bodies shall,
until the contrary is proved, be evidence of the facts therein stated
or of any rule, practice or usage prevailing in England as therein
stated.
(2) When the person whose conduct is the subject of inquiry
does not appear and the Disciplinary Committee determines under
section 109 to proceed in his absence and in any other case with
the consent in writing of that person, the Investigating Tribunal
or the Disciplinary Committee may either as to the whole case or
as to any particular fact, proceed and act on evidence by affidavit
or statutory declaration.
No action against Disciplinary Committee, etc. for act done
111.  No action or proceeding shall lie against the Investigating
Tribunal, the Disciplinary Committee, the Disciplinary Board, the
Malaysian Bar or the Bar Council or any member thereof for any
act or thing done under this Act unless it is proved to the Court
that the act or thing was done in bad faith or with malice.
PART VII
REMUNERATION OF ADVOCATES AND SOLICITORS
No advocate and solicitor to purchase interest of client
112. (1) Except as expressly provided in any written law, or by
rules made under this Act, no advocate and solicitor shall--
(a) purchase or agree to purchase either directly or indirectly
an interest or any part of the interest which is the subject
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matter of his client or that of the other party in the same
suit, action or other contentious proceeding brought or to
be brought or maintained; or
(b) enter into any agreement by which he is retained or
employed to prosecute any suit or action or other contentious
proceeding which stipulates for or contemplates payment
only in the event of success in such suit, action or
proceeding.
(2) Nothing in this Act shall be construed to legalise any purchase
or agreement prohibited by subsection (1) or to any disposition,
contract, settlement, conveyance, delivery, dealing or transfer which
is void or invalid against--
(a) the Director General of Insolvency under the law relating
to bankruptcy;
(b) a liquidator or receiver under the law relating to the
winding up of companng; or
(c) a creditor in any composition.
The Solicitors Costs Comittee
113. (1) The Solicitors Costs Committee shall consist of the
following persons:
(a) the Chief Judge or a Judge of the High Court nominated
by the Chief Judge (in this section referred to as "the
Chief Judge or his nominee");
(b) the Attorney General or a member of the Attorney General's
Chambers nominated by the Attorney General;
(c) the Chief Registrar or a Senior Assistant Registrar
nominated by the Chief Registrar;
(d) four advocates and solicitors nominated by the Bar Council.
(2) The Solicitors Costs Committee shall be convened by the
Chief Judge at the request of any of its members.
(3) The Solicitors Costs Committee or any four of the members
of the Committee (the Chief Judge or his nominee being one) may
make general orders prescribing and regulating in any manner as
they think fair and reasonable the remuneration of advocates and
solicitors in respect of non-contentious business and any order
made this section may revoke or alter any previous order so made.
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(4) An order made under this section may, as regards the mode
of remuneration, prescribe that it shall be according to a scale of
rates or commission or percentage, varying or not in different
classes of business, or by a gross sum, or by a fixed sum for each
document prepared or perused, without regard to length, or in any
other mode, or partly in one mode and partly in another, and may
regulate the amount or remuneration with reference to all or any
of the following, among other, considerations:
(a) the position of the party for whom the advocate and
solicitor is concerned in the business, whether as vendor
or purchaser, lessor or lessee, mortgagor or mortgagee,
and the like;
(b) the place where, and the circumstances in which, the
business or any part it is transacted;
(c) the amount of the capital money or rent to which the
business relates;
(d) the skill, labour and responsibility involved on the part
of the advocate and solicitor;
(e) the number and importance of the documents prepared or
perused, without regard to length.
(5) An order under this section may authorize and regulate--
(a) the taking by an advocate and solicitor from his client of
security for payment of any remuneration, to be ascertained
by taxation or otherwise, which may become due to him
under any such order; and
(b) the allowance of interest.
(6) So long as an order made under this section is in operation,
taxation of bills of costs of advocates and solicitors in respect of
non-contentious business shall, subject to section 121, be regulated
by that order.
(7) Section 136 shall apply to any order made under this section.
Advocate and solicitor may make agreement for remuneration
from client
114. (1) Whether or not any order is in force under section 113,
an advocate and solicitor and his client may, either before or after
or in the course of the transaction of any non-contentious business,
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make an agreement as to the remuneration of the advocate and
solicitor in respect thereof:
Provided that such agreement shall not provide for costs at a
s c a l e lower than that provided by any order made under
section 113.
(2) The agreement may provide for the remuneration of the
advocate and solicitor by a gross sum, or by commission or percentage,
or by salary, or otherwise, and it may be made on the terms that
the amount of the remuneration stipulated in the agreement shall
or shall not include all or any disbursements made by the advocate
and solicitor in respect of searches, plans, travelling, stamps, fees
or other matters.
(3) The agreement shall be in writing and signed by the person
bound by it or as his agent on his behalf.
(4) The agreement may be sued and recovered on or set aside
in the like manner and on the like grounds as an agreement not
relating to the remuneration of an advocate and solicitor:
Provided that if on any taxation of costs the agreement is relied
on by the advocate and solicitor and objected to by the client as
unfair or unreasonable, the taxing officer may inquire into the
facts and certify them to the Court, and if on that certificate it
appears just to the Court that the agreement should be cancelled,
or the amount payable thereunder reduced, the Court may order
the agreement to be cancelled, or the amount payable to be reduced,
and may give such consequential directions as the Court thinks fair
and reasonable.
Advocate and solicitor entitled to costs of negotiation of mortgagor
115. (1) If a mortgage is made to an advocate and solicitor, either
alone or jointly with any other person, he, or the firm of which
he is a member, shall be entitled to recover from the mortgagor
in respect of all business transacted and acts done by him or them
in negotiating the loan, deducing and investigating the title to the
property, and preparing and completing the mortgage, such usual
costs as he or they would have been entitled to receive if the
mortgage had been made to a person who was not an advocate and
solicitor and the mortgagor had retained and employed him or
them to transact that business and do these acts.
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(2) If a mortgage has been made to, or has become vested by
transfer or transmission in, an advocate and solicitor either alone
or jointly with any other person, and any business is transacted or
acts are done by that advocate and solicitor, or by the firm of
which he is a member, in relation to that mortgage or the security
thereby created or the property comprised thereunder, then he or
they shall be entitled to recover from the mortgagor on whose
behalf the business was transacted or the acts were done, and to
charge against the security, such usual costs as he or they would
have been entitled to receive if the mortgage had been made to,
and had remained vested by transfer or transmission in, a person
who was not an advocate and solicitor and that mortgagor has
retained and employed him to transact that business and do these
acts.
(3) In this section the word "mortgage" includes any charge on
any property for securing money or money's worth.
Contentious Business
Advocate and solicitor may enter agreement for costing
contentious business
116. (1) Subject to any written law, an advocate and solicitor
may make an agreement in writing with his client respecting the
amount and manner of payment for the whole or any part of his
costs in respect of contentious business done or to be done by such
advocate and solicitor, either by a gross sum, or otherwise, and
either that the same rate or at a greater or lesser rate than the rate
at which he would otherwise be entitled to be remunerated.
(2) Every such agreement shall be signed by the client and shall
be subject to this Part.
Costs recoverable from client by other person not attested
117. (1) Any agreement entered into pursuant to section 116 shall
not affect the amount of, or any rights or remedies for the recovery
of, any costs recoverable from the client by any other person or
payable to the client by any other person, and any other person
may require any costs payable by him to or recoverable by him
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from the client to be taxed according to the rules for the time being
in force for the taxation of such costs, unless such other person
had otherwise agreed:
Provided that the client who has entered into any agreement
shall not be entitled to recover from any other person, under any
order for the payment of any costs which are the subject of the
agreement, more than the amount payable by the client to his own
advocate and solicitor.
(2) Such an agreement shall be deemed to exclude any further
claim of the advocate and solicitor beyond the terms of agreement
in respect of any services, fees, charges or disbursements in relation
to the conduct and completion of the business in reference to
which the agreement is made, except such services, fees, charges
or disbursements, if any, as are expressly excepted by the agreement.
(3) Subject to this Part, the costs of an advocate and solicitor
in any case where there is any agreement as is referred to in
section 116, shall not be subject to taxation, nor to section 124.
(4) A provision in any such agreement which states that the
advocate and solicitor shall not be liable for negligence, or that
he shall be relieved from any responsibility to which he would
otherwise be subject as an advocate and solicitor, shall be wholly
void.
Enforcement of agreements
118. (1) No action or suit shall be brought or instituted upon any
agreement as is referred to in section 116, but every question
respecting the validity or effect of any such agreement may be
examined and determined, and the agreement may be enforced,
varied or set aside by suit or action by summons, motion or petition
by any person or the representatives of any person being a party
to such agreement, or being alleged to be liable to pay, or being
or claiming to be entitled to be paid the costs, fees, charges or
disbursements in respect of which the agreement is made, by the
Court in which the business or any part thereof was done, or a
Judge of the Court, or, if the business was not done in any Court,
then by the High Court or a Judge of the High Court.
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(2) Upon any such summons, motion or petition, if it appears
to the Court or a Judge that such agreement is in all respects fair
and reasonable between the parties, the agreement may be enforced
by the Court or a Judge by rule or order, in the manner and subject
to the conditions, if any, as to the costs of the summons, motion
or petition as the Court or the Judge thinks fair and reasonable.
(3) If the substantive terms of any agreement are deemed by the
Court or the Judge to be unfair or unreasonable, the agreement
may be declared void, and the Court or Judge may thereupon order
the agreement to be given up for cancellation, and may direct the
cost, fees, charges and disbursements incurred or chargeable in
respect of the matters included therein to be taxed, in the same
manner and according to the same rules as if the agreement has
not been made:
Provided that the Court or Judge may amend or ratify the agreement
where not all the substance of the agreement is unfair or unreasonable.
(4) The Court or the Judge may also make such order as to the
costs relating to the summons, motion or petition and the proceedings,
thereon as to the Court on the Judge seems fair and reasonable.
(5) When the amount agreed under such agreement has been
paid by or on behalf of the client or by any person chargeable with
or entitled to pay the same, any Court or a Judge having jurisdiction
to examine and enforce the agreement may, on application by the
person who has paid the amount within twelve months after payment
and, if it appears to the Court or Judge that the special circumstances
of the case require the agreement to be reopened, reopen the
agreement and order the costs, fees, charges and disbursements to
be taxed, and the whole or any portion of the amount received by
the advocate and solicitor to be repaid by him, on such terms and
conditions as to the Court or Judge seems fair and reasonable.
(6) Where any agreement is made by the client in the capacity
of guardian or of trustee under a deed or will, or of committee of
any person whose estate or property will be chargeable with the
amount payable under the agreement or with any part of the amount,
the agreement shall before such payment be laid before the Registrar
for his examination and the Registrar may disallow any part thereof,
or may require the direction of the Court or a Judge to be taken
thereon by summons, motion or petition.
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(7) If in any such case--
(a) the client pays the whole or any part of the amount
payable under the agreement without the previous approval
of the Registrar or the Court or the Judge, he shall be
liable at any time to account to the person whose estate
or property is charged with the amount paid, or with any
part thereof for the amount so charged; and
(b) the advocate and solicitor accepts payment without such
approval, any court which would have had jurisdiction
to enforce the agreement may, if it thinks fair and
reasonable, order him to refund the amount so received
by him under the agreement or any part thereof.
Any party may set aside agreement of deceased advocate and
solicitor not performed
119. (1) Where an advocate and solicitor has made an agreement
with his client in pursuance of section 116 and anything has been
done by the advocate and solicitor under the agreement, and,
before the agreement has been completely performed by him, the
advocate and solicitor dies or becomes incapable of acting an
application may be made to the court by any party to the agreement
or by the representatives of the party, and the Court shall thereupon
have the same power to enforce or set aside the agreement, if it
had not be acted upon. have the same power to enforce or set aside
the agreement, if it had not be acted upon.
(2) The Court, even if it considers the agreement to be in all
respects fair and reasonable, may order the amount due in respect
of the business done thereunder to be ascertained by taxation.
(3) The Registrar in ascertaining any such amount shall have
regard, so far as may be, to the terms of the agreement.
(4) Payment of the amount found to be due may be enforced
in the same manner as if the agreement had been completely
performed by the advocate and solicitor.
Where client changes counsel before agreement performed
120. (1) Notwithstanding the existence of any agreement under
section 116, a client may change his advocate and solicitor before
the conclusion of the business to which the agreement relates and
in that case the advocate and solicitor who is a party to the agreement
shall be deemed to have become incapable of acting under the
same within the meaning of this section.
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(2) Upon any order being made for taxation of the amount due
to an advocate and solicitor in respect of business done under the
agreement, the Court shall direct the Registrar to have regard to
the circumstances under which the change of advocate and solicitor
has taken place.
(3) Upon taxation the advocate and solicitor shall not be considered
to be entitled to the full amount of the remuneration agreed to be
paid to him unless it appears that there has been no default, negligence,
improper delay or other conduct on his part affording reasonable
ground to the client for changing his advocate and solicitor.
Where remuneration of advocate and solicitor not subject of
agreement
121. (1) Where the remuneration of an advocate and solicitor in
respect of contentious business done by him is not the subject of
an agreement made pursuant to section 116, the solicitor's bill of
costs may at the option of the advocate and solicitor either contain
detailed items or be for a gross sum:
Provided that--
(a) at any time before service upon him of a writ or other
originating process for the recovery of costs included in
a gross sum bill and before the expiration of three months
from the date of the delivery to him of the bill, the party
chargeable therewith may require the advocate and solicitor
to deliver to him in lieu of the cost a bill containing
detailed items, and the gross sum bill shall thereupon be
of no effect;
(b) where an action is commenced on a gross sum bill, the
Court shall, if so requested by the party chargeable therewith
before the expiration of one month from the service on
that party of the writ or other originating process, order
that the bill shall be taxed;
(c) if a gross sum bill is referred to taxation, whether under
this section or otherwise, nothing in this section shall
prejudice and rules of court with respect to taxation and
the advocate and solicitor shall furnish the taxing officer
with such details of any of the costs covered by the bill
as the taxing officer may require.
(2) Subsection (1) shall not apply to fees paid to an advocate
and solicitor who is briefed as a senior counsel.
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PART IX
RECOVERY AND TAXATION OF COSTS
Advocate and solicitor defined
122.  In this Part the expression "advocate and solicitor" includes
the executors, administrators and assignees of the advocate and
solicitor in question.
Advocate and solicitor entitled to charge on property for costs
123.  Any court in which an advocate and solicitor has been
employed to prosecute or defend any suit, matter or proceeding
may at any time declare the advocate and solicitors entitled to a
charge on the property recovered or preserved in such suit, matter
or proceeding for such advocate and solicitor's taxed costs in
reference to that suit, matter or proceeding, and may make such
orders for the taxation of the costs and for raising money to pay,
or for paying, the costs out of the property as it thinks fair and
reasonable, and all conveyance and acts done to defeat, or operating
to defeat, that charge shall, except in the case of a conveyance to
a bona fide purchaser for value without notice, be void as against
the advocate and solicitor:
Provided that no order shall be made if the right to recover the
costs is barred by the Limitation Act, 1953 [Act 254].
No advocate and solicitor to sue for costs until delivery of bill
of cost
124. (1) Except as authorized by this Act, no advocate and solicitor
shall without the leave of the court commence or maintain any
action for the recovery of any costs due for any business done by
him until the expiration of one month after he has delivered to the
party to be charged therewith, or sent by post to, or left with him
at, his office or place of business, dwelling house or last known
place of abode, a bill of costs, which bill shall be signed either
by the advocate and solicitor, or in the case of a partnership, by
any of the partners, either with his own name or with the name
or style of the partnership, or by another advocate and solicitor
employed by the first-named advocate and solicitor or the partnership,
or be enclosed in or accompanied by a letter, signed in the like
manner, referring to the bill.
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(2) Where a bill is proved to have been delivered in compliance
with subsection (1) it shall not be necessary in the first instance
for the advocate and solicitor to prove the contents of the bill and
it shall be presumed until the contrary is shown to be a bill bona
fide complying with this Act.
Power of court to authorize solicitor to commence action
125.  The Court may authorize an advocate and solicitor to
commence an action for recovery of his costs and also refer his
bill of costs for taxation by the Registrar, although one month has
not expired from the delivery of the bill, upon proof to its satisfaction
that any party chargeable therewith is about to quit Malaysia, or
to have a receiving order made against him, or to compound with
his creditors or to take any other steps or do any other act which
in its opinion would tend to defeat or delay the advocate and
solicitor in obtaining payment.
An order for taxation of costs to be made within 6 months of
delivery of bill of costs
126. (1) An order for the taxation of a bill of costs delivered by
any advocate and solicitor may be obtained by a petition as a
matter of course by the party chargeable therewith, or by any
person liable to pay the cost either to the party chargeable or to
the advocate and solicitor, at any time within six months from the
delivery of the bill, or, by the advocate and solicitor after the
expiration of one calendar month, and within a year from, the
delivery.
(2) The order shall contain such directions and conditions as
the court thinks proper, and any party aggrieved by any order of
Court may apply by summons in chambers that the same may be
amended or varied or set aside.
(3) In any case where an advocate and solicitor and his client
consent to taxation of a solicitor's bill the Registrar may proceed
to tax the bill notwithstanding that there is no order therefore.
The cost of obtaining an order for taxation
127.  The costs of obtaining an order for taxation of costs, including
the petition order and service of order, other than any court fees
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payable thereon or disbursements, if the order is obtained by consent
by the advocate and solicitor of either party shall be the sum of
twenty five ringgit:
Provided that if one of the parties does not consent to taxation
the cost of obtaining an order of court shall be the sum of one
hundred and fifty ringgit.
Order for taxation of advocate and solicitor's bill on notice
given
128. (1) After the expiration of six months from the delivery of
a bill of costs, or after payment of the bill of costs, no order shall
be made for taxation of a solicitor's bill of costs, except upon
notice to the advocates and solicitors and under special circumstances
to be proved to the satisfaction of the Court.
(2) No such order for taxation shall in any event be made after
the expiry of one year from the delivery of the bill of costs.
Petition by party liable for a bill of costs
129.  All petitions by a party chargeable with or liable for a bill
of costs shall, unless the same has been already paid, contain a
submission by the party to pay the amount of the bill of costs to
the advocate and solicitor when taxed.
Order for delivery of solicitor's bill of costs by way of petition
130. (1) An order for the delivery of a solicitor's bill of costs, and
for delivery up of any deeds, documents or other papers in the
possession of the advocate and solicitor may, subject to any lien
which such advocate and solicitor may have, and for the taxation
of the bill when delivered, be obtained on a petition of course.
(2) Upon the petition being filed, the Registrar shall mark the
order thereon forthwith, and draw up the order if necessary.
(3) Subject to this section, the Court shall have the like jurisdiction
a s the High Court in England to make an order, under
subsection (1).
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Court may order advocate and solicitor to deliver copy of bill
to applicant
131.  When application is made by a party other than the party
chargeable, the Court may order the advocate and solicitor to
deliver to the party making the application a copy of the bill, upon
payment of the costs of making the copy.
Bill of costs to follow Rules of court
132.  Bills of costs for taxation as between advocate and solicitor
and client shall be drawn in the manner provided by the Rules of
the High Court, and the taxation shall be governed by the Rules.
Registrar may allow interest on money disbursed by counsel
133.  The Registrar may allow interest at any rate and from any
time as he thinks fair and reasonable on moneys disbursed by an
advocate and solicitor for his client, and on moneys of the client
in the hands of the advocate and solicitor and improperly retained
by him.
Costs of order of taxation payable by solicitors
134. (1) In case any order for taxation is made upon the application
of the party chargeable or liable, or of advocate and solicitor, the
costs of the order and taxation, except when the order has been
made after the expiration of one year, shall be paid according to
the event of such taxation--
(a) if the bill when taxed is less by a sixth part than the bill
delivered, then the advocate and solicitor shall pay the
costs;
(b) if the bill when taxed is not less by a sixth part, then the
party chargeable or liable, if the application is made by
him, or if he attends the taxation, shall pay the costs.
(2) Every order for any reference under section 125 shall direct
the Registrar to tax the costs of the reference, and to certify what,
upon the reference, is found to be due to or from the advocate and
solicitor in respect of the bill, and of the costs of the reference if
payable.
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(3) The Registrar shall certify any special circumstances relat-
ing to the bill or taxation.
(4) The court may thereupon make any order as it considers fair
and reasonable respecting the payment of the costs of such taxation.
(5) Where any such reference is made, but it is otherwise not
authorized except under special circumstances, the Court may give
any special directions relative to the costs of the reference.
Certificate of taxing officer final
135.  The certificate of the Registrar by whom any bill has been
taxed shall, unless it is set aside or altered by the Court, be final
as to the amount of the costs covered by such certificate, and the
Court may make any order in relation to the certificate it considers
fair and reasonable, including, in a case where the retainer is not
disputed, an order that judgment be entered for the sum certified
to be due with costs.
Right of Government to costs unaffected
136.  Nothing in this Act shall affect the right, which is hereby
declared, of the Government when represented by any of the persons
mentioned in paragraph 35(2)(a) to recover costs awarded to it in
or respecting any cause or matter, and in any such cause or matter
the costs of the Government shall be taxed in accordance with any
rules in force for the time being for the taxation of the fees and
costs of advocates and solicitors as if an advocate and solicitor of
the High Court who is not in the service of the Government had
appeared on behalf of the Government.
PART X
MISCELLANEOUS
Board and Bar to maintain an office
137. (1) The Board and the Malaysian Bar shall each keep and
maintain at all times an office and shall respectively publish in the
Gazette the address of that office and any change of such address.
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(2) All writs, plaints, notices, pleadings, orders, summonses,
warrants or other written communications required or authorized
or ordered to be served on or delivered or sent to the Board or the
Malaysian Bar shall be deemed to be duly served, delivered or sent
if left at the Board or the Malaysian Bar, as the case may be.
Document to be served may be sent by post
138. (1) Any document other than the process of court that is
required to be served or delivered under this Act may be sent by
post.
(2) A certificate in writing signed by an officer of the Malaysian
Bar or the Board, or a member of the Bar Council that any document
was properly addressed and posted and setting out the date of
posting shall be prima facie evidence of service of the document.
(3) Any document addressed to an advocate and solicitor at his
only or principal address last appearing in the Register of Practitioners
shall be deemed to be properly addressed.
Bar Council or Malaysian Bar to recover sum of money
139.  In addition to any other method of recovery and to any other
right, remedy or power vested in the Malaysian Bar or in the Bar
Council any sum of money payable under this Act or any rules or
by-laws made thereunder may be recoverable by the Bar Council
or the Malaysian Bar as a debt in any court of competent jurisdiction.
Fees to be prescribed by Rules Committee
140.  The fees payable under sections 18, 28 and 29 shall be
prescribed from time to time by the Rules Committee and the
payment of such fee shall be noted by an impressed stamp on the
relevant document.
Bank not bound to take notice of right against the account of
advocate and solicitor
141. (1) Subject to this section, no bank shall in connection with
any transaction relating to the account of any advocate and solicitor
kept with it or with any other bank (other than an account kept
by an advocate and solicitor as trustee for a specified beneficiary),
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incur any liability or be under any obligation to make any inquiry,
or be deemed to have any knowledge of any right of any person
to any money paid or credited to any such account, which it would
not incur or be under or be deemed to have in the case of an
account kept by a person entitled absolutely to all the moneys paid
or credited to it:
Provided that nothing in this subsection shall relieve a bank
from any liability or obligation under which it would be liable
under section 93 or this section.
(2) Notwithstanding subsection (1), a bank at which an advocate
and solicitor keeps an account of his client moneys shall not, in
respect of any liability of the advocate and solicitor to the bank,
not being a liability in connection with that account, have or obtain
any recourse or right, whether by way of set-off, counterclaim,
charge or otherwise, against money standing to the credit of that
account.
No estate duty payable for bequest to the Bar
142. (1) No estate duty shall be payable in respect of any amount
of any bequest to the Malaysian Bar, and the value of the property
passing on the death of a deceased donor shall not be deemed to
include the amount of the bequest for the purpose of assessing the
rate of estate duty.
(2) The Board and the Malaysian Bar shall each be deemed
to be--
(a) an institution specified in the First Schedule to, and under
paragraph 13(1)(e) of the Income Tax 1967; and
(b) an institution of a public character approved by the Minister
for the purposes of paragraph 37(2)(c) of the Income Tax
Act 1967.
PART XI
TRANSITIONAL PROVISIONS
Definition
143. (1) In this Part unless the context otherwise requires--
"former roll" means the roll of advocates and solicitors kept
under section 3 of the Ordinance.
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"Local Bar Committee" and "Bar Council" shall have the mean-
ings assigned to these expression in the Ordinance.
(2) This Part shall have effect notwithstanding anything to the
contrary in any other provisions of this Act.
Nomination of members of Board
144. (1) The respective authorities mentioned in section 7 shall
nominate persons to be members of the Board in accordance with
that section within one month of the coming into operation of
Part II.
(2) The terms of office of members of the Board other than the
Attorney General shall commence on the day when the Board first
meets for the dispatch of business.
Registrar to transfer to the Roll the names of advocates and
solicitors
145. (1) The Registrar shall transfer to the Roll the names of all
advocates and solicitors on the former roll with the dates in the
order of their respective admissions.
(2) The Registrar in making such transfer may omit the names
of any person known to the Registrar to be deceased or not ordinarily
resident in Malaysia.
(3) Any person whose name has been wrongly or inadvertently
omitted may apply to the Registrar to have his name entered and
the Registrar shall forthwith enter the applicant's name, upon the
Roll.
(4) Every person whose name has been entered on the Roll
under this section shall, until the contrary is proved, be deemed
to have been duly admitted under this Act.
(5) Section 107 shall apply to any person whose name was
removed from, or struck off, the former roll.
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Definition
146. (1) In this section the expression "pending petition" shall
mean--
(a) a petition filed pursuant to subsection (2); or
(b) a petition filed before the coming into operation of Part
II in which no order for the admission of the petitioner
has been made when Part II comes into operation.
(2) Notwithstanding the repeal of the Ordinance, any qualified
person who is desirous of filing a petition for admission before the
Board is constituted may do so under the Ordinance.
(3) Subject to this section, sections 5 to 9 of the Ordinance shall
apply to every pending petition.
(4) Sections 27 and 28 shall apply to every pending petition.
(5) If no order for the admission of a petitioner in a pending
petition is made before the expiry of twelve months of the coming
into operation of this Act or such extended period as the Court may
allow that pending petition shall be deemed to have lapsed.
Certificate issued under section 26 deemed practising certificate
147.  A certificate issued under section 26 of the Ordinance shall,
subject to the provision relating to the suspension of practising
certificates in this Act and notwithstanding any date endorsed
thereon, be deemed to be a practising certificate issued under
section 29.
Bar Council and Committee holding office at the date of coming
into force of this Act
148.  The Bar Council and the State Bar Committee holding office
at the date of the coming into operation of Part V shall remain in