BAR COUNCIL 2009 CONSULTATIVE DOCUMENT ON NON-PRACTITIONER MEMBER (“NPM”) OF THE MALAYSIAN BAR.

This consultative document serves to present the Bar Council’s proposal to invite non-practitising members to join the Malaysian Bar. The findings, issues and recommendations contained herein are subject to further discussion by the Bar Council (“BC”). We welcome comments (together with any supporting evidence where necessary) and replies to the questions posed to enable the BC to give due consideration to the subject matter at hand. We would be grateful if you could make reference to the relevant paragraphs when reverting with feedback or providing answers to the given questions. Kindly forward your feedback to: Ms Gayathri a/p Chidambara/ Ms Kirushnaveni a/p Subramaniam Membership Department Bar Council Malaysia No 13, 15 & 17, Leboh Pasar Besar 50050 Kuala Lumpur email: gayathri@malaysianbar.org.my/ veni@malaysianbar.org.my Fax: 03-20321697 This consultative document may be downloaded from the Malaysian Bar website at www.malaysianbar.org.my. Confidentiality: Your responses may be made known to all members of the Malaysian Bar. If you do not want all or part of your response or name to be made known, please state this clearly in the response. Any confidentiality disclaimer that may be generated by your IT system or included as a general statement in your fax cover sheet will be taken to apply only if you request that the information remain confidential.

INTRODUCTION

1. Each year, many practising members of the Bar cease practice for various reasons. There are also many qualified law graduates who are not admitted to the Bar. The Bar Council’s records show that there are about 1,016 advocates and solicitors presently on the Roll who are not holding practising certificates and enquiries with the Malaysian Corporate Counsel indicate that there are an estimated 500 in-house counsel registered with them working in the corporate sector. These two groups represent an interesting mix of personalities with diverse experience and interests. In order to create a more vibrant Bar, the BC wishes to explore the idea of inviting such individuals to apply for membership to the Malaysian Bar.

2. It is believed that the additional category of membership comprising non-practising members will be advantageous. Their entry will create a rich network of persons with broad contact bases across various professions. Their entry will also raise additional subscription fees and provide additional revenue for the Main Fund to enable the Bar Council to upgrade the infrastructure in the Secretariat, improve services to its members and fund its many projects.

3. Allowing non-practising members to join a bar association/society is not unprecedented. It is established practice in countries such as Singapore, Australia, Ireland, Canada and New Zealand. In these countries, such members are known as “associates members” or “non-practitioner members” and they are granted limited privileges compared to practising members. It is proposed that we adopt the term “Non-Practitioner Member”(“NPM”) for this new category of members.

BENEFITS OF NPM JOINING THE MALAYSIAN BAR

4. The introduction of NPM will strengthen the Malaysian Bar by infusing the Bar with members who have diverse experiences and connections to other professions, businesses and corporations. This will create unlimited potential for exchange of knowledge and collaboration. The NPM concept has been widely accepted in professional bodies like the Malaysian Institute of Accountants (“MIA”) which have gained by inviting non-practitioner members as associate members.

5. The inclusion of NPM into the Malaysian Bar will enable the Bar Council to extend the Malaysian Bar’s activities such as its seminars, events, promotions, workshops and conferences as well as its saleable products to a wider target group. This will result in additional non-subscription revenue to fund more projects and initiatives for the benefit of the Malaysian Bar.

6. The NPM could provide invaluable input as members of the Bar Council’s various working committees like the Human Rights Committee, Commercial and Corporate Law Committee, Islamic Financing Committee. They would bring a different perspective to issues discussed.

7. The inclusion of NPM into the Malaysian Bar will also make for more diverse commentary on the Malaysian Bar website with input from both practitioner and non-practitioner members.

Question 1

Would the inclusion of NPM be considered a progressive step for the Malaysian Bar?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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Question 2

What in your view would be other benefits to be gained for the Malaysian Bar by the introduction of NPM apart from what has already been stated above?

Comments: __________________________________________________________________

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WHO CAN BE A NPM ?

8. Membership as a NPM should be for individuals who already have close links to the legal profession. We propose the following persons be considered for membership:

a. any person admitted as an advocate and solicitor of the High Court of Malaya who does not have in force a practising certificate;

b. any person admitted as an advocate and solicitor of the High Court of Sabah & Sarawak who has in force a practising certificate in Sabah & Sarawak;

c. any qualified person under Section 3 of the Legal Profession Act 1976 but who has not been admitted as an advocate and solicitor of the High Court of Malaya;

d. any person admitted to the Bar of any other jurisdiction who has in force a practising certificate; and/or

e. retired judges who have served as judges in Malaysia.

9. A comparative study of other jurisdictions which have introduced the concept of non-practising members shows that they have welcomed various persons with links to the legal profession to be their Associates Members. Some details from this comparative study are as follows:

A. The Law Society of New South Wales (Associate Membership)

i) Persons admitted to practice law in a State or Territory of Australia but do not hold a current practising certificate;

ii) Students studying law or have successfully completed a course in law at any university; college or institution in NSW recognised by the Legal Profession Admissions Board and intends to practice as a Solicitor;

iii) Foreign lawyer admitted in a foreign jurisdiction;

iv) Persons employed in a management role in a Law Office and the principal holds a NSW Practising Certificate;

v) Persons assisting the Law Society in the performance of its function under the Legal Profession Act and not being solicitors; and

vi) Persons having a legal qualification but do not fit into any of the other

categories.

B. The Law Society of Singapore (Non-Practitioner Member)

i) An advocate and solicitor who does not have in force a practising certificate;

ii) A qualified person ordinarily resident in Singapore;

iii) Any foreign lawyer who is practising in or employed by a foreign law firm, a Singapore law firm or a Joint Law Venture, and is registered with the Attorney-General’s Chambers;

iv) A foreign lawyer resident in Singapore who is not registered with the Attorney-General’s Chambers; and

v) Law students and academic staff teaching law at an institution of higher learning in Singapore.

C. New Zealand Law Society (Associate Membership)

i) A retired lawyer;

ii) An experienced legal executive, legal office manager or the like, employed in any field of law;

iii) A lawyer without the need for a practising certificate;

vi) A New Zealand lawyer practising overseas;

vii) An overseas lawyer;

viii) A present or former member of the judiciary in New Zealand or elsewhere;

ix) A lecturer in law; and

vii) Anybody else claiming a significant association with the legal profession.

D. Canadian Bar Association

In Canada various categories of Membership are open as follows:

i) Regular – a lawyer, notary, judge or law teacher/professor who is called to the Canadian Bar;

ii) Associate – a member in good standing of a Bar or Law Society outside Canada who holds no recognised Canadian Law degree and is not a member of any Canadian Law Society;

iii) Retired – A lawyer, notary or judge who retires from active practice of law or the Bench by resigning from the Law Society or the Bench;

iv) Scholar – A lawyer who is undertaking full time postgraduate legal studies or Bar Admission studies in order to be admitted to another Canadian Bar or Law Society;

v) Law Student – a student who is enrolled in full time undergraduate studies in law at a recognised law school in Canada; and

vi) Articling/Bar Ad Student – a student who is in the process of articling with a Canadian law firm or enrolled in a Bar Admission Course;

E. Dublin Solicitors Bar Association (Associate Members & Honorary Associate Members)

For Associate Members:

i) Trainee solicitors whose Training Solicitors are Members of the Association;

ii) Solicitor on the Roll of Solicitors with the Law Society of Ireland and practising outside the County or City of Dublin; and

iii) Other persons who, in the unanimous opinion of the Council, give or have given, service to the Solicitors Profession and/or the Association.

For Honorary Associate Members:

i) Newly qualified solicitors in their first year;

ii) Solicitors who are 50 years in practice as a solicitor and who no longer wish to be Ordinary Members; and

iii) Retired solicitors who have been qualified for 40 years and who no longer wish to be

Ordinary Members.

Question 3

Should membership of the Malaysian Bar as a NPM be limited to only persons who have been admitted as advocates and solicitors of the High Court of Malaya?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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Question 4

(a) Should membership of the Malaysian Bar as a NPM include persons who have been admitted as advocates and solicitors of the High Court of Sabah & Sarawak?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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(b) If yes, should such persons be confined to those who have in force a practicing certificate?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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Question 5

Should Malaysians who are not admitted as advocates and solicitors to the High Court of Malaya but who possess a law degree be included in the category of NPM?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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Question 6

Should persons admitted to the Bar in jurisdictions outside Malaysia who have in force a practising certificate in that jurisdiction be included in the category of NPM?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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Question 7

Should academic staff teaching law in the law faculties of local universities/colleges be included in the category of NPM?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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Question 8

Should Malaysian law students be included in the category of NPM?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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Question 9

Should retired Malaysian judges be included in the category of NPM?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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Question 10

Aside from those mentioned in Questions 3 – 9 above, which additional category of persons would you find acceptable to be included as NPM?

Comments: __________________________________________________________________

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Subscription and Participation of NPM

10. We are proposing that NPMs pay an annual subscription of RM600-00. It is proposed that the validity period of the membership certificate issued to NPMs be from 1^st June to 31^st May of the subsequent year for practical reasons. This is to avoid any clash with the peak time for renewal of Sijil Annual and Practising Certificates for practitioner members towards the last quarter of the year.

11. The NPM will be encouraged to actively participate in the Bar Council’s various working committees in order for them to contribute to the issues discussed in the relevant committees.

Question 11

Is the proposed annual subscription of RM600-00 to be levied on NPMs reasonable?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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Question 12

(a) Should NPMs be liable to contribute to other existing funds such as the legal aid fund, compensation fund, discipline fund, lawcare fund, building fund or the sports fund?

Yes No

(b) If your answer is “yes”, kindly specify which fund(s) you think the NPM should contribute. If “no”, kindly elaborate.

Comments: __________________________________________________________________

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Question 13

Should NPMs be allowed to participate as members of the Bar Council’s working committees?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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Rights and Privileges for the NPM as Members of the Malaysian Bar

12. We are proposing the following benefits, rights and privileges for NPMs:

a. Regular updates to keep NPMs abreast of directions, rulings and policies of the Malaysian Courts, government departments and the Bar Council;

b. Access to the Malaysian Bar’s publications including PRAXIS and INSAF;

c. Preferential members’ rates when registering for the Malaysian Bar’s events including workshops, seminars, conferences and social events;

d. Access to the “Members Only” section in the Malaysian Bar website, which contains copies of Practice Directions, circulars, notices and right to participate in comments on certain issues;

e. Access to the Malaysian Bar Library facilities;

f. Entitled to apply for the Malaysian Bar CIMB (Direct Access) Platinum Visa Card and any other promotional packages, which are exclusive to members of the Malaysian Bar; and

g. Entitled to act as in-house Company Secretaries subject to the approval of the relevant authorities.

13. For purposes of comparison, the benefits accorded to non-practitioner members in other jurisdictions are as follows:

New Zealand Law Society

i) Participation – eligibility for appointment to a special committee;

ii) Communication and information – to receive NZLS’s publications;

iii) Continuing education – be kept directly informed of programs of seminars and

seminars with specialist workshops;

iv) Status, privileges and services – associate members may include their membership

affiliation after their names; and

v) Associate members will also be entitled to such privileges and services from the NZLS as are developed from time to time.

Singapore Law Society

i) Regular updates of directions, rulings and policies of the Singapore Courts, government departments and the Council of the Law Society;

ii) All Law Society publications;

iii) Discounted members’ rates when registering for Law Society events like seminars, workshops, conferences, sports events and social events;

iv) Access to the “Members Only” section in the Law Society of Singapore website, which contains copies of Practice Directions, Jus News Bulletin, circulars and mailers; and

v) Entitled to apply for the Law Society of Singapore United Overseas Bank Platinum Visa Card, which is exclusive to members of the Law Society of Singapore.

The Law Society of New South Wales

i) Entitled to a range of support and representative services; and

ii) Access to information on the most important issues facing the legal profession and

current developments in the law.

Dublin Solicitors Bar Association.

i) Access to website which publishes useful information for members concerning, amongst other things, professional and social information;

ii) Seminars;

iii) Precedent Documentation from numerous sources;

iv) The publication of the Association;

v) The solicitors’ confidential helpline – important assistance to members in all aspects of practice; and

vi) Social functions.

Canadian Bar Association

i) Continuing Legal Education programmes;

ii) Seminars and conferences;

iii) Trends forecasting that help prepare for the future of the practice of law; and

iv) Publications and websites.

Question 14

Should we limit the proposed benefits, rights and privileges of the NPMs as outlined in paragraph 12 above? If so, in what manner?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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Question 15

Would allowing the NPM access to the “Members Only” section in the Malaysian Bar website, including rights to participate in the commentary create any complications?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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Question 16

Should NPMs be given the right to apply for the Malaysian Bar CIMB (Direct Access) Platinum Visa Card?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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Restrictions on NPMs

14. We propose that the following restrictions be placed upon NPMs:

a. NPMs shall have no right to attend and vote at any general meeting;

b. NPMs shall have no right to be elected to the Bar Council;

c. NPMs will not be members of any State Bar Committee as the requirement to register with any State Bar Committee under Section 68 of the Legal Profession Act 1976, is only applicable to practising members;

d. NPMs shall not have the right to practice as an advocate and solicitor;

e. No person convicted of a criminal offence, struck off or suspended from the Roll of Advocates and Solicitors in Malaysia or elsewhere shall be qualified to be a NPM.

f. A qualified person who has been prohibited from applying to court for admission shall be not be qualified to be a NPM so long as the prohibition remains in force.

15. There are several existing provisions of the Legal Profession Act 1976 (“the Act”) which are applicable to govern NPMs:

a. Part VII of the Act which covers disciplinary proceedings against members is applicable to practising and non-practising advocates and solicitors alike (see Section 94(1) of the Act). The provision regarding misconduct which would be most applicable to NPMs who are also advocates and solicitors would be s. 94(3)(a) – being convicted of a criminal offence which makes him unfit to be a member of his profession, s. 94(3)(e) – being adjudicated a bankrupt and being found guilty of any acts or omissions mentioned in paragraph (a), (b), (c), (d), (e), (f), (h), (k) or (l) of Section 33 (6) of the Bankruptcy Act 1967, and s. 94(3)(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.

b. Section 36 of the Act restricts a person from practising as an advocate and

solicitor or to do any act as an advocate and solicitor unless his name is on the Roll and he has a valid practising certificate authorising him to do the act.

c. Section 37 of the Act states that it is illegal for a person not practising to act as or

assume the role of an advocate and solicitor if they are not in possession of a valid Practising Certificate.

NPMs who are not advocates and solicitors would not be subject to disciplinary proceedings under s. 94(3)(a), (e) or (o) of the Act as mentioned above. Therefore, it is proposed that the Act be amended so that these category of persons are subject to the same three subsections of s. 94(3) of the Act and come under the jurisdiction of the Advocates and Solicitors’ Disciplinary Board with the necessary modifications to s. 103C (penalty section).

Question 17

Should there be further express restrictions against NPMs over and above the proposed restrictions?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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Question 18

If NPMs include foreign lawyers and other person(s) who are not admitted as advocates and solicitors of the High Court of Malaya, are the proposed restrictions and aforementioned provisions of the Legal Profession Act 1976 sufficient to govern the NPMs?

Yes No

Please elaborate.

Comments: __________________________________________________________________

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Consequences for the Bar Council Secretariat with the Introduction of NPM

16. The inclusion of NPMs would result in significant growth in the membership as a whole and consequently impact the entire Secretariat as the same number of staff would now have to serve more members. The Membership Department in particular will have to process more applications and keep track of both NPM and practitioners on a daily basis. Unfortunately, the current capacity of the Members Tracking System (MANTA) may be limited. The Bar Council is planning to upgrade the membership system to address the growing needs of the Bar and improve efficiency at the Secretariat. The total costs involved will be in the region of RM300,000.00 and we hope that the new system will be operational by 2010.

17. To address the effect on manpower needs, the Bar Council may have to recruit additional staff but this would be off-set by the additional subscriptions NPMs would bring in. In respect of membership applications received from NPMs, it is proposed to stagger the dates for the renewal of applications for NPMs and practitioner members to 2 distinct phases which will address the possible problem of a backlog of applications and prevent a clash with the normal peak period for practitioners, which begins from October and tapers off after February of the following year. With this proposal, there may be no need to increase manpower in the Membership Department after the introduction of NPMs.

Question 19

How should the revenue received from NPMs be utilised?

Comments: __________________________________________________________________

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Dated this 9^th day of February 2009.

Lim Chee Wee

Secretary