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FACULTY OF LAW

PROFESSIONAL ETHICS UUUK4243


QUESTION FOUR PAST YEAR QUESTION - NOVEMBER 2009

NAME: MATRICS NO.:

NADHIRAH NAIEMAH BINTI SADULLAH A121909 20th OCTOBER 2011 MR. G.K. GANESAN

DATE OF SUBMISSION: LECTURER:

QUESTION 4 What kind of conduct amounts to a misconduct by an advocate and solicitor?

1.

S 94(3) of the Legal Profession Act 1976 stated that the kind of conduct that amounts tomisconduct by an advocate and solicitor is a conduct or omission by an advocate and solicitor in his professional capacity. For example, he betrays his clients confidence and has committed grave impropriety to his client. It includes an act that involves dishonesty such as cheating and misappropriation of funds. Is the conduct of Loppong sufficient to amount to misconduct?

2.

Yes. This is because he has acted dishonestly and fraudulently in discharging his duties as an advocate and solicitor (s 94(3)(c) of LPA 1976) by lying to Klayen about giving Juwals lawyer the house deposit of RM20,000.00 and also when he had wanted to borrow RM25,000.00 from Klayen. By lying to Klayen and misappropriating Klayens money for his own personal interest, He has also grossly disregarded Klayens interest (s 94(3)(n) LPA 1976).

3.

A general explanation on how the complaint will be treated by the Disciplinary

Board, and how the machinery and mechanism of disciplinary proceedings under the Legal Profession Act 1976 will work and will be carried out, particularly after the 2007 amendments. The Disciplinary Board will determine whether theres a merit to the complaint (s 100(1) LPA 1976). If theres no merit, the complaint will be dismissed. If theres merit, the Disciplinary Board will ask the advocate and solicitor to give explanation and defend himself (s 100(2) LPA 1976). The Disciplinary Board may give the complainant a chance to respond or clarify to the explanation by the advocate and solicitor (s 100(4) LPA 1976).

If the Disciplinary Board finds that a formal investigation regarding the complaint is necessary, whether the advocate and solicitor gives an explanation or not; a Disciplinary Committee will be set up (ss 100(2) & 100(3) LPA 1976). The Disciplinary Board must be satisfied that the complaint has merit. If theres no merit, the complaint will be dismissed (s 100(5) LPA 1976). If theres a merit, the Disciplinary Board may either forthwith the complaint because the Disciplinary Board is satisfied that there is no need to conduct a formal investigation there is admittance of misconduct by the the advocate and solicitor; or, no cause of sufficient gravity for a formal investigation but the the advocate and solicitor still subject to punishment; or, if its a straight forward case (s 100(6) LPA 1976). Consequently, the Disciplinary Board may impose appropriate punishment towards the advocate and solicitor under s 100(8) LPA 1976.

Other than that, a Disciplinary Committee may be set up to investigate the complaint (s 103A LPA 1976). The Disciplinary Committee can give recommendations to the Disciplinary Board whether the advocate and solicitor is liable or not and also regarding the punishment for the advocate and solicitor or dismissal of the complaint.

In the end, the complaint will go back to the Disciplinary Board and the Board may follow the Disciplinary Committees recommendations, reject it or impose greater punishment (s 103D LPA 1976).

However, the aggrieved party to the decisions made by the Disciplinary Board in virtue of ss 100(5), 100(8), 100(9) and 103D LPA 1976 may appeal to the High Court (s 103E LPA 1976).

4.

Explain what kind of punishment that Loppong is likely to suffer.

The Disciplinary Board may impose punishment under s 100(8) LPA 1976 which is either to reprimand, censure, suspend, impose a fine or strike Loppong of the Roll. Under s 94(4) LPA 1976, the Bar Council may suspend the advocate and solicitor considering the public interest, clients interest and also the interest of the profession.

The punishment of strike off is only for serious misconduct. In this case, my opinion is that what Loppong did was a serious misconduct because it was repeated and therefore he should be strike off the Roll. However, he can still apply to restore himself as an advocate and solicitor under s 107 LPA 1976.

5.

In a view of the 2007 amendments, can the Disciplinary Board ask Loppong to pay

to Klayen:-

a.

The RM45,000.00 that Loppong has taken for himself?

Yes. The Disciplinary Board may do so as in accordance with the restitution order under s 100(9) LPA 1976 whereby, the order may be included with the punishment under s 100(8) LPA 1976. Therefore, although the Disciplinary Board may punish Loppong by striking him off the Roll, he may still be ordered to restitute Klayen in which the amount is RM45,000.00.

b.

The loss profit of about RM250,000.00 that Klayen has lost because he is unable to buy

the Bangsar House and re-sell at a profit?

No, because the Legal Profession Act 1976 only provide for restitution of the complainant which means the act of compensating for loss by reverting to the position before such injury occurred. Therefore, Klayens future profit loss can be disregarded.