TOPIC 4

PRIVILEGES OF ADVOCATES AND

SOLICITORS
 INTRODUCTION
Some common types of work of an A&S are as follows:
Represent clients in proceedings and conduct litigation
preparing affidavits for interlocutory proceedings
defending any action in criminal trials
Drafting loan, business, corporate documentation etc.
ADR
The practice of and A&S is governed by the Legal
Profession Act 1976 (LPA)
See in brief pre-trial and trial processes at
http://www.conventuslaw.com/report/malaysia-dispute-
resolution-guide-2016/
Slide 2
 Legal Profession Act 1976
PART IV - PRIVILEGES OF ADVOCATES
AND SOLICITORS:
Section 35. Right of advocate and solicitor

(1) Any advocate and solicitor shall, subject to this

Act and any other written law, have the exclusive
right to appear and plead in all Courts of Justice
in Malaysia according to the law in force in those
Courts; and as between themselves shall have the
same rights and privileges without
differentiation. 
Slide 3
Legal Profession Act 1976
PRIVILEGES OF ADVOCATES AND SOLICITORS
s. 35. Right of advocate and solicitor
s. 36. Advocate and solicitor to have name on the Roll
before practice –See S 28 (Rolls of advocates and
solicitors kept by Registrar of the High Court)
s. 37. No unauthorized person to act as advocate and
solicitor
s.38. Certain persons can act as advocate and solicitor
s.39. Instrument and document to be endorsed
s.40. No cost payable to unauthorized person

Slide 4
Some relevant provisions
 Section 35 (1) LPA confers on the A&S exclusive rights to
appear and plead in all courts of justice

 Section 36 LPA states no authorised person shall practice as

A&S or do any act as an A&S unless his or her name is on the
roll and he has in force a valid practising certificate

 S37(1)(a) LPA provides criminal penalties for unauthorised

person when he;
 acts as A&S or agent for any party to proceedings or in any
capacity (other than as a party to an action in which he is himself a
party)
sues out any writ, summons, or process, or commences, carries on,
solicits or defends any action, suit or other proceedings in the name
of any other person in any of the Courts in Malaysia
or draws or prepares any instrument relating to any proceedings in
any such Courts.

Slide 5
Restraint in legal practice
Section 36 LPA is the vehicle used by Malaysian Bar
to restrain any unauthorised person from practising as
an A&S whether or not in connection with legal
proceeding by way of an injunction

In Bar Committee of Pahang v. Joseph Au Kong Weng

[1979] 2 MLJ 297, Abdul Razak J was asked by the
Pahang Bar Committee to restrain an unauthorised
person to practice law. However, the application failed
because the locus standi to commence such action was
possessed by the Malaysian Bar and not the Pahang
Bar Committee

Slide 6
 cont
Section 36 (1) LPA : unauthorised person is one who
must have both a valid practising certificate and
his or her name on the roll of A&S
S 28 LPA: The registrar shall keep a Roll of A & S
with the dates of their respective admission
S 29 LPA: A&S to make declaration yearly of the
prescribed matters to be issued a practicing
certificate
See S. 30 – Disqualification for practicing cert
See Subramaniam Lakshamanasamy v Datuk Samy
Vellu [1988] 1 MLJ 42- a solicitor who has a valid
practising certificate has exclusive right……..

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The exclusive right of audience
The right of a lawyer to appear and conduct
proceedings in court on behalf of their client
Only solicitor on the record has right of audience
on behalf of his client (One that is retained by his
client)

Slide 8
Foreign Lawyers
 Foreign lawyers are generally not granted rights of audience.
 Exceptions provided in Section 28A of the LPA whereby the attorney
general may issue a special certificate for admission of any qualified foreign
lawyer as an advocate and solicitor of the High Court of Malaya
 Section 18 of the LPA - the court may admit a foreign lawyer to serve as co-
counsel if that foreign lawyer is a person who, if he was a citizen of or a
permanent resident in Malaysia, would be eligible to be admitted as an
advocate and solicitor of the High Court. Further conditions are that:
(a)  for the purpose of that particular case the lawyer must have, in the
opinion of the court, special qualifications or experience of a
nature not otherwise available amongst advocates and solicitors in
Malaysia; and
(b)  he has been instructed by an advocate and solicitor in Malaysia.
 See Legal Profession (Licensing of International Partnerships
and Qualified Foreign Law Firms and Registration of Foreign
lawyers) Rules 2014
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Right of audience of government legal
officers
need not hold practising certificate – s36(6) LPA
Need not even have valid practising certificate
Need not be a “qualified person”
May even be appointed temporarily to perform the duties
of legal officers to appear and plead on behalf of the
Government in the courts
E.g. police inspectors or environmental officers who
appear as prosecutors and may not be a qualified person
S. 36 LPA does not exclude the rights of audience
conferred by other statutes – See S 38 LPA (Certain
persons can act as A&S)
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1. The Legal Profession (Amendment) Act 2012
(“the Act”) which was gazetted on 20 September
2012 created a new Part IVA which recognises
international partnerships, qualified foreign law
firms and the registration of foreign lawyers.
2. In addition, the Legal Profession (Licensing of
International Partnerships and Qualified Foreign
Law Firms and Registration of Foreign Lawyers)
Rules 2014 was created to specify the criteria for
consideration of international partnerships,
qualified foreign law firms and the registration of
foreign lawyers.
Slide 11
 Pupils in Chambers
S36(2) (a) LPA confers pupils limited right of audience
A pupil may upon application by his master, which may
be made at the inception of his pupillage be permitted for
three months from the date of order to appear to mention
a case including entering judgment in default or to apply
for bail or to take a consent judgment or order before :
(a) a judge or the Registrar in chambers; or
(b) A sessions court president or a magistrate in
chambers; or
(c) A Registrar of the subordinate courts

Slide 12
 cont
At the expiration of three months from the initial
period of 3 months, such pupil may proceed to conduct
any cause or mater in chambers in the High Court and
in the subordinate courts and before any magistrate
( s.36(2)(b))
In Re Bar Council of Malaysia [1989] 3 MLJ 379, the
court held that at the expiration of the said period of
three months, a pupil may appear to conduct any cause
or matter (i) in chambers in the High Court; (ii) in
chambers in the sessions courts and in the magistrates’
courts; and (iii) in open court before any magistrate

Slide 13
 PRIVILEGE
Privilege from arrest

 A&S is privileged from civil arrest if he is attending a court

matter
 This privilege extends to witnesses on trials, parties to
arbitrations and creditors of bankrupts: Walker v Webb 3 Anst
941; Randall v Gurney (1819) 3 B & Al 252; Ricketts v Gurney
(1819) 7 Pri 699
 Thus a solicitor conducting litigation if arrested for not paying
costs may apply to the court at which he is attending for an
order of discharge on the ground of privilege.
 See A-G v The Skinners’ Co (1837) 3 Sim 377

Slide 14
 PRIVILEGE
Privilege from defamation
Common law jurisdiction: A&S conducting litigation
is privileged from defamation
Barrister (Brook v Mantague (1624) Cro Jac 90 or
solicitor having the conduct of a cause (Mackay v Ford
(1860) 5 H&N 792
An A&S is free to speak out of malice the most
irrelevant words provided it is made in the course of a
judicial inquiry i.e. before any court of justice

Slide 15
“Accepting then that the lawyer's function is to state his
client's case as strongly as he can, the law grants him full
freedom to exercise this function without fear. He is
given the cloak of an absolute privilege. He may use the
most abusive language about others, he may be actuated
by malice and ill-will, and yet he cannot be made subject
to a libel action. This absolute privilege carries with it a
special responsibility to see that it is not abused. ”
The Right Hon'ble Lord Denning, The Honest Lawyer, [1983] 2 CLJ 174

Slide 16
 Professional Communications
 It is trite law that communications between solicitors and
their clients are privileged and, therefore, are inadmissible
in evidence in any proceeding. Such privilege is known as
legal professional privilege (or legal advice privilege).
 The privilege extends to communications between a
solicitor and his client which have the purpose of seeking
or giving legal advice and communications between a
solicitor and third parties or between the client and
third parties which are made for the purposes of
contemplated legal proceedings.
 The justification for the privilege has always been that it
ensures a fair trial (see Zuckerman A, ‘Privilege and public
interest’ in Tapper C, ‘Crime, Proof and Punishment’
(Butterworths, 1981)
Slide 17 17
 Professional Communications
 A&S shall have a duty to preserve confidential information
received from client
 Generally, no advocate shall without his clients consent
disclose:
(a) Any communication made to him in the course and for the
purposes of his employment
(b) The contents and conditions of any document with which
he came to be acquainted in the course and for the purposes
of his employment
(c) Any advice to his client

Slide 18 18
Professional Communications – Client’s Privileged
 It is equally well-established that the privilege is that of the
client (and in some cases third parties) and not the legal
adviser
 Lord Buckmasters said in Minter (Pauper) v Priest [1930]
AC 558, 579 & 580:
‘… the right to have such communications so protected is
the right of the client only. In this sense it is a “privilege”,
the privilege of the client. If the client chooses to withdraw
the veil, the law interposes no further difficulty. The
communications are then available as evidence.’
 The lawyer, in contrast, is strictly prohibited from disclosing
communications, which are privileged, regardless of his or her
personal feelings in the matter.

Slide 19 19
The strictness of this rule can sometimes put lawyers
in a difficult position.
For example, in Gideon Tan v Tey Por Yee [2017] 1
CLJ 543, a Malaysian solicitor was not even allowed
to adduce privileged communications in his own
defence against committal !

Slide 20
 Professional Communications
 Section 126 Evidence Act 1950 states:

(1) that no advocate shall at any time be permitted,

unless with his client’s express consent, to disclose
any communication made to him in the course and
for the purpose of his employment as such advocate by
or on behalf of his client, or to state the contents or
conditions of any document with which he has
become acquainted in the course and for the
purposes of his professional employment, or to
disclose any advice given by him to his client in the
course and for the purpose of such employment

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Does the privilege under Section 126 EA solely apply
to a qualified A & S? Or does it extend as well to an
in-house legal adviser? (e.g. Communications between
bank officers and in-house counsel?)
Is the privilege absolute? Can there be exceptions?
Can there be

Slide 22
 Exceptions from Legal Professional
Privilege
 The exceptions to Section 126 Evidence Act 1950 are
laid down under provisos (a) and (b) :

(a) any such communication made in furtherance of any

illegal purpose;
(b) any fact observed by any advocate in the course of
his employment as such showing that any crime or fraud
has been committed since the commencement of his
employment.
(c) It is immaterial whether the attention of the advocate
was or was not directed to the fact by or on behalf of his
client
Thus, communication by client to his lawyer intended
for criminal/fraud purpose after the latter is being
employed is not privilege

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 However, section 129 of the same Act states as
follows: ‘Confidential communication with Legal
Advisers -
No one shall be compelled to disclose to the Court
any confidential communication which has taken
place between him and his legal professional
adviser, unless he offers himself as a witness in
which case he may be compelled to disclose any such
communication as may appear to the Court necessary
to be known in order to explain any evidence which
he has given, but not others.’
 It is well-established the section 126 should be read
together with sections 128 & 129 EA
Slide 24
 Privilege may be waived by a client. A waiver may be express or implied
(that is, by conduct).
 In this respect, clients have to be careful that they do not inadvertently
waive privilege, for example, by voluntarily delivering a privileged
document to a third party (such as an auditor) without imposing any
obligations of confidentiality.
 Privilege may be abrogated by a clearly worded statute.
 Section 47 of the ponderously named Anti-Money Laundering, Anti-
Terrorism Financing and Proceeds of Unlawful Activities Act 2001. A
High Court judge may, in an investigation into certain offences under
the Act, override advice privilege (but not litigation privilege) and order
an advocate to disclose information in respect of a transaction relating
to property that is liable to seizure under the Act.

Slide 25
Due to the importance of the doctrine of privilege in the
administration of justice, however, the intent to abrogate it
must be very clear.
In the recent landmark case of Bar Council v Ketua
Pengarah Lembaga Hasil Dalam Negeri [2018] 4 CLJ 635,
the High Court held that the general provisions of Section
142(5) of the Income Tax Act 1967 did not supersede the
specific provisions of Section 126 of the Evidence Act 1950.
The court held that the Inland Revenue Board could,
therefore, not use the Income Tax Act as an instrument to raid
law firms, purportedly to “fish for information” on the clients
of the law firms.

Slide 26
 Case
Dato’ Anthony See Teow Guan v Dato’ Anthony See
Teow Chuan [2006] 2 CLJ 292 (Abdul Kadir Bin
Sulaiman, Tengku Baharuddin Shah Bin Tengku Mahmud
JJCA & Azmel Bin Haji Maamor J)
The Court of Appeal in the recent case of See Teow Chuan
was faced with three questions:
1. Does Malaysian evidence law, pursuant to the Evidence
Act 1950, extend protection under legal advice privilege
to all communications between solicitors and clients or
only (as with the common law)
to confidential communications?

Slide 27 27
 cont

2. Can a client implicitly by conduct waive legal advice

privilege?

3. Assuming a communication between a solicitor and

his client is prima facie privileged, would the
exhibiting of that communication in court documents
in the process of litigation, thereby necessarily coming
into possession of the opposite party and being filed
on record, tantamount to a waiver?

Slide 28 28
 Facts of See Teow Chuan’s case
Defendant, the executive director of a company was
asked to provide a legal opinion by the non-
executive chairman of the Company relating to
certain allegations made against the plaintiffs
involving the operation of the Company.
The defendant had instructed the solicitor, without
the benefit of any resolution of the Company
 The defendant testified that it was clear that the
legal opinion would be circulated to a number of
directors of the Company

Slide 29 29
 cont.
As far as the solicitor was concerned - she was
instructed by the defendant in his capacity as the
director of the Company - her client

The written legal opinion was not marked private

and confidential and was faxed to the defendant

Eventually, the legal opinion was circulated to a

number of people, some directors of the company
and others members of the Company’s audit
committee and also to the plaintiffs
Slide 30 30
 THE LAW IN SEE’S CASE
Only Confidential Communications

The Court of Appeal in the See Teow Chuan Case, in

respect of the first question, cited with approval the
judgment in Emperor v Mariane G Rodrigues, [1903]
5 Bombay Law Reporter 122 where the court held that
section 126 had no application where the statement
made by a client to his solicitor is not made as
confidential

Slide 31 31
 Cont.
The court in Emperor v Mariane G Rodrigues held:
‘The ground upon which the conviction of the appellant is complained of as
illegal is that the statements having been made to the solicitor by the appellant
as the solicitor’s client were privileged under section 126 of the Evidence Act
and that they could not be made the subject of a criminal charge.  
Section 126 of the Evidence Act, however, can have no application where
the statement made by a client to his solicitor was made not as
confidential but for the purposes of communication.  
Here the statements complained of as defamatory were obviously
made not under the condition of secrecy and as a matter of fact they
were communicated to the complainant by the solicitor because the
solicitor had instructions to make them to the complainant.  There was,
therefore, nothing of the character of confidential communications in
them to bring them within the rule in section 126 of the Evidence Act.’
(emphasis the Court of Appeal’s)

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 Cont.
‘In our judgment it is settled law that where the
communications with [a] solicitor is not intended to be
confidential, the privilege under section 126 of the Act
will not apply. This is clearly established in Emperor v
Mariane G Rodrigues… which deals with section 126…
We therefore hold that it is settled law that the element of
confidentiality is an essential requirement in section 126.’

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 DISCLOSURE OF MATERIAL

Does the Disclosure of Privileged Material in

Interlocutory Proceedings amount to a waiver?
In See Teow Chuan Case,  the legal opinion was
exhibited as an exhibit to the plaintiffs’ affidavit in reply
to the defendant’s interlocutory application for striking
out and was read by all parties at the striking out
proceedings in the registrar’s chambers and in open
court at the trial.

Slide 34 34
 cont.
Relying on the judgment of the Supreme Court
in Jaafar bin Shaari v Tan Lip Eng [1997] 3 MLJ
693, 706 (SC) (Peh Swee Chin SCJ) and the Court
of Appeal (Eng) in Derby & Co Ltd v Weldon,
 [1991] 2 All ER 908, 909 (CA) (Neill LJ), the Court
of Appeal held that as ‘the legal opinion was exhibited
in the affidavit and deployed in court in the striking
out [interlocutory] application by the defendant and
was also read out in open court by counsel for both
parties the privilege was clearly waived altogether.’

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EXERCISE

Slide 36 36
Slide 37