The Malaysian Bar
A Practical Guide to Pupillage and Admission as an Advocate & Solicitor
in Malaysia
OBJECT :
The object of pupillage is to give an opportunity to the pupil
to gain some acquaintance with the work of an advocate and solicitor before
commencing practice.
The graduate from law school has at least a basic knowledge
of substantive and adjectival law but the advocate and solicitor is concerned
with the practice of law which is very different from the academic study of
law.
The work of an advocate and solicitor covers a very large field. He has to
know the law or where to find it. The law is a vast subject and no one can
hope to know all of it. A competent advocate and solicitor has a practical
working knowledge of those parts of the law with which his practice is commonly
concerned but he has to know where to look to be able to find the answers to
the questions which his client's problem pose. A substantial part of his work
consists of diagnosing accurately what questions arise out of the situation
presented to him by his client and the research to find the answers.
In addition to this, the two other major parts of his work
involve drafting and advocacy, two quite separate skills but both of which
require a full and exact knowledge of the law pertaining to the particular
transaction with which the drafting or advocacy is concerned.
Pupillage cannot hope to cover all of this. Knowledge of the
law and these special skills develop throughout the professional life of the
advocate and solicitor. But at least the pupil can acquire some experience
of the law in action, of the relationship between the advocate and solicitor
and his client and the relationship with other advocates and solicitors.
The purpose of this guide is to draw the pupil's attention
to matters which he should devote himself during the pupillage so as to take
full advantage of it and get as much as possible out of it.
THE LAW RELATING TO THE PROFESSION
The pupil must familiarize himself with the law relating to
the profession, this includes :-
The Legal Profession Act 1976
The Advocates & Solicitors (Issue of Sijil Annual) Rules
1978
The Legal Profession (Practice & Etiquette) Rules 1978
The Advocate and Solicitor's Compensation Fund Rules 1978
The Solicitors' Remuneration Order 1991
The Solicitors' Account Rules 1990
The Accountant's Report Rules 1990
The Legal Profession (Professional Liability) Rules 1991
and Disciplinary Rules.
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Rulings are issued by the Bar Council from time to
time. When you are admitted you will receive a copy of the booklet containing
the consolidated rulings and you should keep it up-to-date with the rulings
which the Council makes from time to time and which are published to all advocates
and solicitors.
The rules relating to professional conduct and to practice and etiquette are
very important. The profession is an ancient and honourable one. As a member,
an advocate and solicitor has obligation to the court, to the public, to the
client and to fellow members. Some of these are set out in the Practice
and Etiquette Rules and the rulings of the Bar Council from time to time
but these cannot cover every situation which may arise. The golden rule is
to behave in a strictly honourable fashion at all times. If you are in doubt
as to what this entails in any given situation, you may write to the Bar Council
for a ruling. Professional misconduct including breaches of etiquette can give
rise to disciplinary proceedings against the advocate and solicitor concerned.
A pupil may also be liable to disciplinary proceedings. Part VII of
the Act should be studied with care.
THE DUAL FUNCTION OF AN ADVOCATE AND SOLICITOR
Two basic skills have to be mastered: drafting and advocacy.
Drafting forms the bulk of a solicitor's work and covers the drafting of documents
of every kind. In Malaysia, by reason of the profession being fused, drafting
skills extend to the settling of pleadings and other court documents as well.
Drafting is an art which can only be developed by practice. It requires a thorough
knowledge of the law, careful thinking out of the subject matter and meticulous
and precise use of words in order to avoid obscurity and ambiguity. Proper
drafting cannot be done rapidly. Hasty and sloppy drafting is inevitably ill-considered
and can lead to litigation because of ambiguity, looseness in expression, vagueness
and failure to cover the matter adequately. The ideal is to draft a complete
comprehensive, watertight document expressed with clarity and precision. It
is not possible for the human mind to envisage every possibility which may
occur but careful thought will bring to light those possibilities which are
likely to occur and these can be dealt with in the drafting.
Advocacy is primarily concerned with the pleading of cases
in Court, but it also includes the mediation and negotiation of settlements
between parties, advising clients, and persuading the other side to a particular
point of view. Politeness and courtesy are an essential part of good advocacy.
Advocacy is concerned with persuasion and Courts and other people are best
persuaded by the advocate who has thoroughly mastered the facts, presents them
clearly and puts forward reasonable arguments and is tactful in presentation.
The Advocate must, of course, have the relevant law at his fingertips so as
to he prepared to deal with any points which may be brought up by the Court
or by Counsel on the other side. "le experience in advocacy can only be gained
from observing good advocates pleading their clients' cases in Court as well
as practising it yourself in as many of your own applications as possible,
you can also profit by reading some of the many books on the subject.
THE ADVOCATE’S PRACTICE
The practice of an Advocate may be broadly divided into criminal
litigation and civil litigation.
Criminal Litigation
The practice of criminal litigation, requires familiarity
with the provisions of the Criminal Procedure Code. The pupil interested in
criminal litigation should also endeavor to gain some experience in the following:-Interviewing clients (in the office, the police station, prison or other place of remand)Applications for bailAttending at hearings where accused person pleads guilty to the charge, and the consequent submission of a plea in mitigation on his behalfAttending a trial-within-a-trial
(“'voir dire") for the admission of a statement made by an accused personAttending a case where a submission of "no case to answer" is made (at the close of the case of the prosecution)Drafting appeal papers (Notice of Appeal and
Petition of Appeal), and attending the hearing of the appealAttending a criminal hearing whenever possibleCivil Litigation http://www.malaysianbar.org.my
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The practice of civil litigation requires familiarity with
the Rules of High Court 1980 and the Rules of the Subordinate Court
1980. There are other rules also which should be known of such as the rules
relating to appeals to the Supreme Court, Bankruptcy Rules and the rules made
under the Companies Act 1965. Experience as follows is desirable:-Accompanying the firm's court clerk or filing clerk to the Court Registries to observe the filing and issuing of court documents, and inspection of documents and the various
Court registersThe drafting of pleadings and other court documents (including Statements of Claim, Defences, Reply to defence, Summonses for Direction, Summonses in Chambers, Affidavits in support of applications, Order 14 applications, draft orders and Judgments, and Judgments in Default of Appearance or Defence)Attending Order 14 proceedingsAttending to applications for injunctions and interlocutory relief (interim injunctions, Mareva injunctions, Anton
Piller orders), and drafting the court papers for themAttending general Motion hearings in the High CourtAttending and observing civil trials in their various stages from the taking of instructions from clients, the taking of statements from witnesses, getting up for trial, preparing the bundle of authorities, agreed bundle of documents, subpoenas and other documents, trial hearing appeal (if any), drafting bill of costs, and taxation hearingsDrafting opinions, and briefs to
CounselDrafting the documents for and attending on execution proceedings, writs of seizure, garnishee orders, charging orders, bankruptcy petitions, companies winding-up petitions, and writs of possessionDrafting the documents for and attending on matrimonial proceedings such as divorce, annulments, maintenance, custody and adoptionDrafting the documents for and attending on proceedings arising out of road traffic accident claimsTHE SOLICITOR'S PRACTICE
The scope of a solicitor's practice is not easy to define,
and there is much scope for specialization. It covers every sort of work apart
from contentious work. Solicitors should have some experience in conveyancing,
basic commercial work, and probate and administration.
The client will come to the solicitor for advice on all kinds
of transaction some of which may be beyond the scope or experience of the solicitor,
it is essential for a solicitor to be aware and to know when to seek advice
either from senior members of the Bar with special experience, or professionals
in other fields. For example, if a matter requires the examination of lengthy
or complicated financial records of a company, it may be desirable to seek
the client's permission to engage an accountant to do this.
In the field of conveyancing the pupil should attempt to follow
from the beginning to the end as many types of transactions as possible. For
example, conveyances, charges (legal and equitable, including by way of deed
of assignment in case of properties for which title is yet to be issued), leases
and assignments. Familiarity with the National Land Code is essential and experience
in the use of the various documents prescribed by it should be sought. The
pupil should also:
- accompany the search clerk on his rounds to the Registry of Titles and learn how to conduct a title search
- attend interviews with clients on financing arrangements
- attend with the clerk or master at the completion of a sale and purchase
For probate and administration, the pupil should learn to:
- prepare Petitions for Letters of Administration and Grants of Probate
- take instructions on and draft wills
Basic commercial law would include experience in the following:-the stamping of documents (this necessitates familiarity with the provisions of the Stamp Act)the registration of documents (pursuant to the Companies Act, the Hire Purchase
Act, the Bills of Sale Act)the incorporation of a company and the registration of a businessthe drafting and vetting of security documents, such as debentures, charges, deeds of covenants and loan agreements
AREAS OF SPECIALIZATION
The list set out above is by no means exhaustive. Fields of
specialization include:-
- Income tax matters
- Admiralty actions
- Ship mortgages and financing
- Trade marks, patents and copyright matters
- Land acquisitions
- Banking
- Building and developers' contracts
- Arbitration proceedings
- Muslim law
- Corporate financing http://www.malaysianbar.org.my
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It is not possible for a pupil to cover all the aspects of
a solicitor's practice mentioned above but as much should be done as possible.
BUSINESS MANAGEMENT
It may not be possible to see much of this during the pupillage
but it is useful if the pupil can see something of office administration. The
handling of clients' monies is a very serious responsibility and the rules
relating 'o this and the system of handling them must be thoroughly known and
strictly observed.
SOME PRACTICAL ADVICE
The master will be a senior practitioner. In consequence, he or she is likely
to be a very busy person, with the exigencies of practice making large demands
on his or her time. In terms of opportunity costs, the master is doing the
pupil a favour by assuming the responsibilities of being a master. The master
will set aside time willingly enough for the pupil, but the pupil must not
expect to be spoon-fed. The emphasis is not on academic tutorials or discussions,
but on following your master in his or her work, and watching and learning.
If at any stage the pupil does not understand why things are done in a certain
way, he should ask. The pupil should not be reluctant to ask questions frequently.
That is how one learns. But the pupil should ask himself the question first
and try to find the answer. Only then should the master be approached. Time
should be set aside regularly by the master to discuss the progress of the
pupillage. No master will begrudge time spent on a pupil genuinely interested
in his or her craft.
During the pupillage, the pupil should take the trouble to
get to know as many members of the profession as possible, not merely other
pupils. An advocate and solicitor deals with fellow advocates and solicitors
every day in all sorts of matters, and a pupil should make an effort taken
at the beginning of his career to introduce himself to other members of the
profession. This will make working relationships for the future so much easier,
satisfying and personally rewarding. The more friends and acquaintances you
make at the Bar, the richer is your professional life.
A pupil may decide that he will confine himself substantially
to practising as an advocate or as a solicitor. Even if he does so decide,
he should during his pupillage try and obtain as wide experience of both sides
of the profession as possible. These sides are closely related and overlap
and the solicitor must have some familiarity with the laws and procedures relating
to the practice of the advocate and vice versa, Attendance at trials is very
desirable. To hear an experienced advocate conducting a trial or appeal is
a valuable experience. If while attending this, there is a point of presentation
or procedure which the pupil does not understand, he should not hesitate, when
the matter is over, to ask the Counsel concerned. Counsel will always be glad
to explain these matters to a pupil or junior member of the profession.
The provisions for admission as an advocate and solicitor
are set out in Part 11 of the Legal Profession Act 1976. Section
12 requires a "qualified person" (defined in Section 3) to serve a period
of pupillage. The prescribed period is nine months but the Bar Council may
exempt qualified person from any period up to six months pupillage in various
circumstances set out in Section 13. The pupillage is served with a
master who must be an advocate and solicitor for at least seven years immediately
preceding the date of commencement of the pupillage. With the consent of the
Council a pupil may serve different parts of the period of pupillage with different
masters. It is intended that the pupillage will be full-time and a pupil may
not, without the special leave in writing of the Council hold any office or
engage in any employment of any kind whether full-time or otherwise during
pupillage. He may however be remunerated by his master and this is the normal http://www.malaysianbar.org.my
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The Malaysian Bar
practice.
A pupil works under the personal direction and supervision
of his master. The master's responsibility is to see to it that the pupil receives
instruction or gains experience i n the usual type of work normally undertaken
by an advocate and solicitor, and that the pupil has the opportunity of becoming
acquainted with the laws and general rules of practice and procedure applicable
to the legal profession in Malaysia.
THE APPLICATION TO COURT FOR ADMISSION
Pupils are advised to study carefully for themselves the court
application for admission set out in the Act (particularly SS. 10- 19) and
consult their masters if they are in any doubt. (A pupil should obtain a copy
of the Act for himself). As an aspiring advocate and solicitor, a pupil is
personally responsible for ensuring that all the documents for his admission
are in proper order and are filed in good time.
APPLICATION FOR PRIVILEGE OF RESTRICTED AUDIENCE
By law, only an advocate and solicitor holding a current practising certificate
has the right of audience in the Court to represent a client. However, the
Act provides for a form of restricted audience for pupils.
A judge may order that a pupil be permitted to appear on behalf
of the master or the master's firm in which the master is practising:- a) during the period of three months from the date of the order-
- before a Judge or a Registrar of the High Court, in Chambers
- before a President of the Sessions Court or a Magistrate, in Chambers
- before a Registrar of the Subordinate Courts to mention a case, including entering judgment in default, or to apply for bail or to take a consent judgment or order; and b) at the expiration of the said period of three months in chambers in the High Court and in the Subordinate Courts and before any Magistrate, to conduct any cause or matter.
The application is made not by the pupil but by the master to a Judge and may be made at the commencement of the pupillage.
A pupil appearing in Court should introduce himself to the Court by giving his name, stating that he is a pupil and stating the name of his master.
THE CALL
A pupil is represented on the hearing of his petition by Counsel
who moves his call. The master will approach Counsel to do this on behalf of
the pupil if the pupil has no Counsel of his own choice. It is not etiquette
for the pupil to be represented by his master or any member of his master's
firm. The pupil should call upon his Counsel, bringing copies of all the papers
and draw his attention to any possible difficulty that might arise on the hearing.
THE CALL DAY
The dress code at the call is that applicable to all practitioners
when they attend in open court. For men, this means a gown, a white long-sleeved
shirt with a stiff wing collar, a very dark suit (preferably black) and black
shoes. For women, this means a white blouse, bands, a very dark (preferably
black) jacket, a conservative or traditional dress and black shoes.
The procedure in court on call day is generally as follows:
The proceedings are held in open court. First, the pupil's counsel will rise
to address the Court to request that the petition be granted. This is referred
to as "moving the call". The pupil should rise and bow to the Court when Counsel
first mentions the Petition, remain standing throughout the mention of the
petition. Counsel for the Attorney General, the Bar Council and the State Bar
Committee will state whether the petition is objected to.
PRACTISING CERTIFICATE
When the Order of Admission is made on the Petition the next
step is to obtain a Practising Certificate from the Registrar. Section 29 sets
out the procedure. A necessary preliminary to obtaining the Practising Certificate http://www.malaysianbar.org.my
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is the issue of a Sijil Annual from the Bar Council. The procedure for
this is set out at Section 32-34 of the Act.
INSURANCE
Every practising member of the Bar must be covered by professional
indemnity against professional liability: Section 78A of the Act and the Rules
made under it. The Sijil Annual will not be issued unless this cover is in
place.
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RESPONSIBILITIES
The primary duty of a pupil master is to help, guide and advise
his pupil in the traditions of the legal profession and to supervise the training
of the pupil in the practice of an advocate and solicitor so that the pupil
may obtain the maximum benefit from his period of pupillage.
A master should not accept more pupils than he is able to
effectively guide and train. As a general rule, a master should not accept
more than two pupils at any one time. Before accepting a pupil, a master should
be satisfied that he is qualified to accept a pupil in the first place. Likewise
the master should satisfy himself that the pupil is a qualified person.
The master should ensure that the pupil completes the prescribed
period of pupillage. The date of commencement of pupillage should be noted,
and thereafter, a record of any leave of absence should be kept, as any period
of absence will not count towards satisfying the prescribed period of pupillage.
The master has to sign a Certificate of Diligence in
support of the pupil's petition for admission to the Bar. This is not a mere
formality. It is a representation to the Court that the pupil has devoted his
full time and attention throughout the period of the pupillage to the acquisition
of experience in professional practice.
In the distribution of work, the master should ensure that
his pupil receives exposure to as wide a variety of work as possible.
The master should ensure that the pupil is well-grounded in
professional ethics and, in particular in the practice and etiquette of the
Bar.
The master should also require the pupil to read in advance
his papers and draft pleadings or other documents relevant to the master's
practice including opinions, agreements, conveyances, leases and all other
documents which an advocate and solicitor would be expected to consider, draft
or settle in his practice. The master should ensure that his pupil has the
opportunity of attending Court with him. If the master attends Court infrequently,
or if the master has no trials fixed for the period of the pupil's pupillage,
the master should make arrangements for the pupil to attend at trials and appeals
to be conducted or argued by senior members of the master's firm, or senior
advocates of other firms.
Masters should also require their pupils to attend conferences
(both with clients, and with the other p" or parties in the presence of their
solicitors) and negotiations to enable the pupil to obtain sufficient experience
in these matters.
A master should also take a direct interest in and monitor
all work done by his pupil. When the master has obtained leave for restricted
audience for his pupil under S.36 of the Act, the master should ensure that
the pupil is well briefed before the pupil attends Court. After the pupil has
attended Court on behalf of this master, the master should take the opportunity
of discussing with his pupil the appearance in Court.
The master should strive to establish a relationship of mutual
trust and confidence between himself and the pupil. If mistakes are made by
the pupil, these should be drawn to the attention of the pupil as soon as possible,
and the pupil should be shown how the matter should be correctly done. The
master should make it clear to the pupil and his colleagues in his firm that
the pupil is responsible to him alone. As a matter of courtesy to the master
and to the pupil, no work or assignment should be given to a pupil without
the consent of the master. Masters should advise their colleagues accordingly:
a pupil may find it difficult to refuse week or assignment from another member
of the firm. If the master's area of practice is a specialized one, the master http://www.malaysianbar.org.my
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may wish to consider the desirability of arranging for the pupil to spend time
working with some other member of the master's firm in order to give the pupil
broader exposure.
A master should ensure that his pupil does not take instructions
from clients or give advice, or sign letters of documents on behalf of the
master or his firm. He should also impress on his pupil the necessity for the
strictest observance of confidentiality in relation to all matters relating
to his clients.
The Bar Council welcomes every newly admitted advocate
and solicitor and wishes them well. The Bar is an ancient and noble profession
and the Council wishes to impress on all new members the obligation of maintaining
the strictest ethical standard in accordance with the best traditions of
the profession and a high standard of courtesy to the Bench, fellow-members
and the public at all times. http://www.malaysianbar.org.my
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