Fed Court rules that lawyers must be heard before disciplinary board punishes them


Timothy Achariam, TheEdge Malaysia
April 10, 2023

Hakem Arabi & Associates

KUALA LUMPUR (April 10): The Federal Court had upheld the decision of the Court of Appeal that the advocates and solicitors disciplinary board must give lawyers notice and the opportunity to be heard before it metes out punishment on them.

In a unanimous landmark decision on Monday (April 10), the three-judge bench led by Chief Judge of Sabah and Sarawak Justice Datuk Abdul Rahman Sebli had dismissed the appeal brought by the Malaysian Bar Council.

This decision stemmed from a case where a complaint was lodged to the board against an advocate or solicitor who had allegedly acted in conflict of interest.

Upon hearing the complaint, the disciplinary committee of the Bar Council had suspended the lawyer for two years.

When the complaint reached the board, it affirmed the committee’s decision on liability but it set aside the suspension, while ordering that the lawyer pay the RM30,000 fine.

However, the lawyer did not get a chance to be heard by the board before the punishment was given.

The bench also comprised Datuk Seri Hasnah Mohammed Hashim and Justice Datuk Zabariah Mohd Yusof.

In arriving at its decision, the Federal Court considered Section 103D Legal Profession Act 1976 and in particular subsection 4 which states that an advocate and solicitor must be notified before the disciplinary board makes an order that is likely to be adverse against him/her and it must give them a reasonable opportunity to be heard before the board.

The preceding subsection 2 which was amended in 2012 states that: 'the disciplinary board may, in appropriate cases, impose a greater or lesser penalty or punishment than that recommended by the disciplinary committee'.

Subsection 3 states that the disciplinary board may make such orders as it deems fit if it does not agree with the punishment or findings of the disciplinary committee.

In proceedings on Monday, the Bar Council was represented by Robin Lim Fang Say, while the lawyer was represented by Mior Muhammad Fadhli. The complainant was represented by Ranjan N Chandran and Vinita Laksmy.

No order was made as to costs in Monday’s decision.

In its 2019 decision, the High Court ruled that the case be remitted back to the disciplinary board on the punishment imposed.

The Federal Court notified parties at the hearing that it would be writing its grounds of judgment in due course.