Tutorial 1 - Ethics

4 August 2014 (Monday)

Question 1

• “The development of the legal profession in Malaysia was spared many of the historical accidents of the English heritage.” Discuss.

Question 1 answer

• Prior to the independence in 1957, most of the laws of United Kingdom were imported into Malaya and either made into local legislation or simply applied as case laws. Thus, the law of Malaysia is mainly based on the common law legal system.

Question 1 answer

• Much of Malaysia’s legal history is a legacy from Great Britain which ruled Malaya for more than 150 years. The reception of English law slowly evolved and developed during the period of British colonization and became statutory after the promulgation of the Civil Law Enactment of 1937.

Question 1 answer

• The laws of Malaysia can be classified into two, written law and unwritten law. Written laws are laws which have been enacted in the constitution or in legislations. Unwritten laws are laws which are not contained in any statutes and can be found in case decisions.

Question 1 answer

• The application of common law is specified in ss 3, 5, and 6 of the Civil Law Act 1956 which allows for limited application of English common law, rules of equity, and statutes in Malaysian civil cases where no local laws on the area exist.

• In the context of criminal law, s 5 of the Criminal Procedure Code permits the application of English cases where no specific local legislation has been enacted.

Question 2

• Q – Discuss your understanding on the term ‘ethics’ and why it is important?

• A – Ethics essentially means integrity, an ethical lawyer is the one which can be trusted to conduct various kind of tasks with honesty and due diligence.

Question 2• Q – Based on observation, discuss on how

lawyers react to ethics and how to maintain or improve lawyers’ ethics?

• A – Ethics must be practically practiced in daily lives, it can simply be understood by viewing from the client’s point of view, which is to avoid anything which is detrimental to or not in the client’s interest. To improve lawyers’ ethics, we may refer to examples given by the Malaysian Bar.

Examples

• http://www.malaysianbar.org.my/disciplinary_orders/disciplinary_orders_for_the_year_2013_2014_december_2013_february_2014.html(Disciplinary orders published by the Malaysian Bar on 6 May 2014, Tuesday.)

Findings

1. Unethical lawyers tend to eat up client’s money, small amount resulted in being fined or reprimanded, big amount resulted in being struck off the Bar.

2. It is forever the rights of the client to file complaint to the Bar Council if the lawyer did anything detrimental to the client’s interest.

Question 2

• Q – Who are responsible to enforce the ethical standards of lawyers? Support your discussion by referring to the relevant section and case law.

Case 1• In Datuk M Kayveas & Anor v Bar Council

[2013] 5 MLJ 640:

• Facts: The appellant solicitors were found guilty by the Disciplinary Committee under the Legal Profession Act 1976 of misconduct under s 94 (3)(o) for breaching their duties as stakeholders of monies in a conveyancing transaction. The appellants appealed to the Federal Court.

Case 1

• S 94 (3)(o) of the Legal Profession Act 1976 provides that “misconduct” means conduct or omission to act in Malaysia by an advocate and solicitor in a professional capacity which amounts to grave impropriety, it includes being found 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.

Case 1

• The Federal Court dismissed the appeal, the breach of the undertaking and stakeholding by the appellants was conducted in a professional capacity that amounted to grave impropriety. When solicitors held funds as stakeholders, they held those funds as trustees, the breach of undertaking is also a breach of trust.

Case 2• In Ding Siew Ching v Ling Peek Hoe

[2014] 2 MLJ 715:

• Facts: The appellant lawyer acted for the respondent in several sale and purchase transactions. The respondent made a complaint on fraud against the appellant to the Disciplinary Board of the Bar Council. It was found that there was a serious degree of dishonesty and lack of professional transparency on the appellant’s part.

Case 2

• The Disciplinary Board found the appellant to be in breach of s 94 (3)(d), (k), (n), and (o) of the Legal Profession Act 1976, thus ordered the suspension of the appellant from practice for 18 months. The appellant’s appeal to the High Court was dismissed. The appellants further appealed to the Court of Appeal that the punishment was excessive.

Case 2

• The Court of Appeal dismissed the appeal, the findings of the Disciplinary Board clearly established that the appellant’s conduct had amounted to professional misconduct. It was serious and it would undermine the dignity of the legal profession and erode the essense of the solicitor-client relationship.

Findings

• From the decided cases, lawyers themselves are responsible to enforce the ethical standards of lawyers.

Question 3

• Q – Discuss your understanding on the importance of ‘time management’ in the law office and relate your discussion with at least two ‘time theft’ factors.

Examples of time theft

• Intentionally sleeping on the job• Punching in late• Taking extra long breaks and lunch hour• Access ‘facebook’ or other non-work related

websites.

• Many organizations monitor their employees in order to deter them from using their computers provided by the organization for personal use. Today, the leading cause of wasting time at work has become the Internet.

• As an organization it is prudent to have policies and procedures in place governing personal computer usage.

• Some organizations will often give their employees the freedom to set their own work schedules as long as they can complete their work assignments on time.

• Time management is very important as we have only 24 hours in a day, no matter how hard we work and we try to work we still cannot increase the time. Thus, setting priorities is a must.