As a potential client, with approximately 19,000 lawyers in Peninsular Malaysia,[1] you are spoilt for choice when it comes to selecting a lawyer (or firm) to conduct your case.
However, you must always bear in mind that lawyers are not equal in terms of knowledge, experience, competency, etc.
For example, civil litigators may not be familiar with criminal procedure and/or substantive criminal law. Conveyancers may not be familiar with civil procedure and/or the different branches of civil law.
Selecting the right lawyer is crucial and failing to do so can have significant consequences.
In Mulpha International Bhd v Messrs Abdullah Ooi & Chan [2018] MLJU 2098 (“Mulpha International”) the Defendant (i.e. the Plaintiff’s former lawyers) had:[2]
a. served the Notice of Appeal out of time;
b. an incorrect intitulement on the Notice of Appeal;
c. not forward the draft index of the Record of Appeal to the Respondents’ for their approval;
d. omitted to include certain documents used in the trial, in the Record of Appeal;
e. not included the chronology of events in the Record of Appeal; and
f. not arranged the documents according to the Court of Appeal Practice Direction No.1 of 2017.
This resulted in the striking off of the Plaintiff’s appeal, and “deprived the plaintiff of its opportunity for its appeal to be heard by the Court of Appeal …”[3]
In Puganeswaren A/L Ganesan & 2 Ors v Public Prosecutor [Federal Court Criminal Appeals No. 05(M)-241-10/2018(B), 05(M)-242-10/2018(B), 05(L)-243-10/2018(B)] (“Puganeswaren”), the second appellant’s lawyer had failed to challenge the crucial part of the prosecution’s case in cross-examination[4] and the Federal Court remarked that as a result of this, the evidence which “directly and gravely implicated the second appellant in the murder of her husband … [was] therefore deemed to be admitted.”[5]
The following are some relevant tips to assist you in the important decision of selecting a lawyer for your case.
1. Verify whether an individual ‘lawyer’ is actually a practicing lawyer
In the past, there have been cases of legally qualified individuals without valid practicing certificates acting as lawyers[6] and non-legally qualified individuals pretending to be practicing lawyers.[7]
It is therefore important, first and foremost, to verify whether or not an individual holding himself/herself out as a lawyer is actually a lawyer with a valid practicing certificate.
For Peninsular Malaysia, you can go to https://legaldirectory.malaysianbar.org.my/ and type in the individual/firm’s name.
If you search for an individual’s name and it appears in the search results together with a firm (e.g. Screenshot A below), the individual is a practicing lawyer.
Screenshot A
If the individual’s name appears in the search results but without a firm (e.g. Screenshot B below), the individual has a valid practicing certificate but is not attached to any particular firm.
Screenshot B
If there are no results, and the individual’s name is spelled correctly, the individual may be legally qualified but does not have a valid practicing certificate and is therefore not a practicing lawyer.
With regard to Sabah, the relevant links for verification checks are https://www.sabahlawsociety.org/find-a-lawyer/ and https://www.sabahlawsociety.org/find-a-law-firm/. As for Sarawak, the relevant link is http://sarawak-advocates.org.my/legal-firms/.
2. Find out whether the individual lawyer/firm has relevant past experience
If the individual lawyer/firm has past experience relevant to your case, this reduces the risk of procedural non-compliance and/or mistakes on the part of the former. As we have seen in Mulpha International and Puganeswaren above, some procedural non-compliance and/or mistakes can be fatal to a case.
If your case involves a highly niche area of law (e.g. admiralty law, sports law, tax law), it is even more important to find out whether the individual lawyer/firm has relevant past experience.
It is paramount to note, however, that relevant past experience does not cause the risk of negligence on the part of the individual lawyer/firm to disappear. Relevant past experience merely reduces the risk of negligence.
You can find out whether the individual lawyer/firm has relevant past experience by directly asking the individual lawyer/firm prior to formally appointing him/her/them as your lawyer.
If the individual lawyer/firm represents to you that he/she/it has relevant past experience and you subsequently discover that that is not true, you have a contractual and tortious cause of action against the individual lawyer/law firm in the event there are issues with your case.
In addition to directly asking, you could check the individual lawyer/firm’s website (if any) and/or legal ranking (if any) by research, ranking and publishing firms.[8]
3. Price should be a relevant, though not the primary, consideration
Understandably, you would want to pay as little legal fees as possible. However, this should not be at the expense of quality.
Do not be a shopping client, namely a client “whose primary concern is with low cost, not quality, and who therefore seeks out the lowest fee available.”[9]
If you are a shopping client, you risk losing your case despite the strength of your case and/or incurring more cost at a later stage (e.g. due to penalties, additional filing fees, the cost of appealing).
Ideally, you should seek the services of a reputable individual lawyer/firm with relevant past experience in your case who/which charges reasonable legal fees.[10]
4. Get a second, third legal opinion
This will likely result in cost being incurred[11] but it reduces the risk of you relying on bad/incorrect legal advice.
The subsequent legal opinions act as a check/confirmation on the accuracy of the initial legal advice given by an individual lawyer/firm.
The subsequent legal opinions also allow you to assess which individual lawyer/firm, if any, you are comfortable working with.
5. Check the individual lawyer’s disciplinary record
For lawyers in Peninsular Malaysia, this can be done by contacting the Malaysian Bar’s Complaints and Intervention Department by telephone at 03-2050 2160, or by email at compliance@malaysianbar.org.my, and paying the prescribed fee.[12]
As a general rule, individual lawyers with past disciplinary records should be avoided.
[1] As at March 2019 [see “Appeal to President of Singapore | Clemency for Michael Anak Garing.” MalaysianBar.org.my. Malaysian Bar. Accessed November 15, 2020. https://www.malaysianbar.org.my/article/news/bar-news/news/appeal-to-president-of-singapore-clemency-for-michael-anak-garing]
[2] Mulpha International Bhd v Messrs Abdullah Ooi & Chan [2018] MLJU 2098, at paragraph 16
[3] Mulpha International Bhd v Messrs Abdullah Ooi & Chan [2018] MLJU 2098, at paragraph 1
[4] Puganeswaren A/L Ganesan & 2 Ors v Public Prosecutor [Federal Court Criminal Appeals No. 05(M)-241-10/2018(B), 05(M)-242-10/2018(B), 05(L)-243-10/2018(B)], at paragraph 15
[5] Ibid.
[6] For example, see Cynthia D Baga, “KK judge asks lawyers: Are your Practising Certs valid?” DailyExpress.com.my. Daily Express. Accessed November 15, 2020. http://www.dailyexpress.com.my/news/156985/legal-practising-cert-a-must/; see also Selina Lum, “Lawyer suspended for 3 months for allowing paralegal to act as lawyer.” StraitsTimes.com. Straits Times. Accessed November 15, 2020. https://www.straitstimes.com/singapore/courts-crime/lawyer-suspended-for-3-months-for-allowing-paralegal-to-act-as-lawyer
[7] For example, see “Tout(s) and broker(s)- a crucial snap in our legal fraternity.” LawyersClubBangladesh.com. Lawyers Club Bangladesh. Accessed November 15, 2020. http://lawyersclubbangladesh.com/en/2020/01/18/touts-and-brokers-a-crucial-snap-in-our-legal-fraternity/
[8] E.g. Legal500 (https://www.legal500.com/c/malaysia/), Chambers and Partners (https://chambers.com/guide/asia-pacific?publicationTypeId=8), Asia Law (https://www.asialaw.com/countries/malaysia/my)
[9] Legal Fees: Hearings before the Subcommittee on Representation of Citizens Interests of the Committee on the Judiciary (1974), p. 210
[10] For conveyancing matters, the legal fees chargeable are subject to the Solicitors’ Remuneration Order 2005
[11] Unless the individual lawyer/firm from which you are seeking the second and/or third legal opinion offers free consultation (e.g. https://mahwengkwai.com/#REQUEST-CONSULTATION, https://gltlaw.my/contact-us/)
[12] “Publication of Disciplinary Orders by the Advocates and Solicitors Disciplinary Board.” MalaysianBar.org.my. Malaysian Bar. Accessed November 15, 2020. https://www.malaysianbar.org.my/list/public/complaints/disciplinary-orders
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