Chapter 2 - Admission of A&S Flashcards
ADMISSION OF A&S
Overview
1) General admission
2) Special admission
GENERAL ADMISSION
Overview
1) The law
2) Name on the Roll
3) Valid PC
4) Procedures for admission
GENERAL ADMISSION
The law
S.36:
- A&S to have the name on the Roll and valid PC authorising him to act.
GENERAL ADMISSION
Name on the roll
S.10 + S.11
- good character - S.11(b)
- pupillage - S.11(1)(d)
- BM qualification - S.11(2) + Andrew Hilary Caldecott QC (policy to maximize BM usage)
GENERAL ADMISSION
Valid PC
S.29 + 79 + 30
1) Accountant’s report - Diljit Kaur Puran Singh v Majlis Peguam:
- It is mandatory to deliver accountant’s report when applying for PC;
- This is so unless applicant seek for exemption.
2) Practising w/o PC - Re Ramanathan Velu:
- A&S who practice w/o valid certificate can be cited for contempt.
GENERAL ADMISSION
Procedures for admission
S.15
- Mode: petition to court
- Exhibits
- Where: at the Registrar’s office
SPECIAL ADMISSION
Overview
1) By AG
2) By court ad hoc
3) Foreign law firms
SPECIAL ADMISSION
By AG
S.28A + S.28B
- name on the Roll - S.28B
- no need valid PC - S.28C
- procedures for admission - S.28B
1) Obtain SA certificate by AG;
2) Mode: ex-parte OS
3) Where: a judge of HC in Chambers
SPECIAL ADMISSION
By court ad hoc - overview
1) The law & pre-requirements
2) Burden of proof
3) test for special qualifications
4) BM requirements
5) valid PC
6) name on the Roll
7) procedures for admission
SPECIAL ADMISSION BY COURT AD HOC
The law & pre-requirements
S.18:
- (a) special qualifications not available amongst A&S in Malaysia;
- (b) instructed by A&S in Malaysia.
SPECIAL ADMISSION BY COURT AD HOC
burden of proof
Jude Philomen Benny v Majlis Peguam Malaysia:
- onus is on the applicant to show that he has fulfilled the requirements.
SPECIAL ADMISSION BY COURT AD HOC
test for special qualifications
1) Re Geoffrey Robertson QC:
Majority:
- qualification: accomplishment or quality
- special: exceptional degree, outclass the excellence of local lawyers
- not available - not obtainable.
- OTF, qualifications possessed by the appellant is not available among local lawyers.
Dissenting:
- Special qualifications must be determined by looking at with reference to the issues in the case & reference to Malaysia & Malaysian law.
- OTF, defamation cases have been filed all year round & it is wrong to say that there is no local lawyers who are qualified enough.
2) Cherie Booth QC:
- special qualification must refers to the particular field of the law as a whole.
- not available: not obtainable.
- OTF, parties were represented by senior members of the Bar at HC & CA, so it is not true that there is no availability of local A&S to handle the appeals.
SPECIAL ADMISSION BY COURT AD HOC
BM requirements
Re Andrew Hilary Caldecott QC:
- The policy under S.11(2) is to maximise the usage of Bahasa Melayu.
Re Geoffrey Robertson QC:
- Majority judgment: BM requirement under S.11 is of general application, does not apply to special admission via S.18.
- Dissenting: S.11 applies, i.e. purpose of S.11 is to maximise the BM usage.
SPECIAL ADMISSION BY COURT AD HOC
valid PC
S.18(4):
- upon payment of prescribed fee
SPECIAL ADMISSION BY COURT AD HOC
name on the Roll
S.18(5):
- separate Roll is kept.
SPECIAL ADMISSION BY COURT AD HOC
procedures for admission
S.18(2):
- Mode: Originating motion
- Service: to AG, BC & SB
- Payment: RM100
SPECIAL ADMISSION
Foreign law firms - overview
1) Ways of admission
2) Permitted practice areas
3) Non-permitted practice areas
FOREIGN LAW FIRMS
Ways of admission - overview
1) International partnership - S.40F
2) Qualified foreign law firm - S.40G
3) Employment of foreign lawyers - S.40J
FOREIGN LAW FIRMS
International partnership
S.40F:
- at least 1 foreign lawyer to be equity partner, reside in MY not less than 182 days.
- MLF: not less than 60% equity & voting rights
- FLF: not more than 40% equity & voting rights
- Foreign lawyers: not less than 40% of the total lawyers
- application: must submit 3-years business plan to BC, no change to business plan w/o approval by BC
FOREIGN LAW FIRMS
Qualified foreign law firms
S.40G:
- at least two foreign lawyers who shall be equity partners.
- must reside in MY not less than 182 days.
- no. of MY lawyers: not less than 30% of the total lawyers.
FOREIGN LAW FIRMS
Employment of foreign lawyers
S.40H:
- A MY law firm may apply to BC for license to employ a foreign lawyer to practise in the permitted practice areas;
- Number of foreign lawyers employed shall not exceed 30% of the total number of lawyers.
FOREIGN LAW FIRMS
Permitted practice areas
- transactions regulated by MY law & at least one other national law; or
- transactions regulated solely by any law other than MY law.
FOREIGN LAW FIRMS
Non-permitted practice areas
Inter alia:
- constitutional & administrative law;
- trust law;
- retail banking;
- registration of patents & trademarks.
SIJIL ANNUAL
Sijil Annual 101
1) What:
- Certificate issued by BC;
- Seek to verify matters under S.32(1)(a) - (e)
2) Why it is important:
- Declaration under S.29;
- Requirements to practice as A&S under S.36;
3) Purpose of sijil annual:
- to verify matters under S.32;
4) power to issue sijil annual:
- conditions: S.32
5) powers to refuse issuance:
- Yip Shou Shan v Majlis Peguam Malaysia
- Diljit Kaur v Puran Singh
