A CONSIDERATION FOR FOREIGN PRACTITIONERS ENTERING THE LEGAL PROFESSION IN MALAYSIA


Written by RODNEY KHOR

The legal profession has always been a highly regulated profession with rules, regulations and codes of conduct binding on members of the profession1. This comes as no surprise due to the nature of the legal profession being very interconnected with the mechanisms of the working of law itself. The general duties among other things include a duty to assist the courts in the administration of justice and this duty overrides the duty towards lay clients.

Despite the profession being highly regulated, there are circumstances that would warrant or attract a foreign practitioner2 to practise law in countries such as Malaysia3. Therefore, this article is narrowed down to concentrate on identifying the possibility for a foreign practitioner to practise law or to provide in-house legal advice in Malaysia.

The admission of legal practitioners in Malaysia is governed by section 114 of the Legal Profession Act 1976 (hereinafter referred to as the Act). The requirements under this section amongst other things require a qualified person5 not to have been convicted in Malaysia or elsewhere of a criminal offence that would render him unfit to be a member of his profession or done any other act which, if being a barrister or solicitor in England, would render him liable to be disbarred, disqualified or suspended from practice. These requirements, one way or another, are common due to
the standard expected of potential legal practitioners.

In addition, he must either be a citizen of Malaysia or a resident of Malaysia and has satisfactorily completed the prescribed period of pupillage6. If a qualified person were to petition to the High Court to be admitted as an advocate and solicitor, there is a requirement that he has passed or is exempted7 from the Bahasa Malaysia8 Qualifying Examination9. This is the main route for admission amongst private legal practitioners in Malaysia10.

The difficulty that most foreign practitioners would face is the requirement under section 11(c), requiring them to be either a citizen or a resident of Malaysia and the Bahasa Malaysia Qualifying Examination requirement under section 11(2). In addition, a foreign practitioner would have to undergo a minimum prescribed period of pupillage of 3 months11. There are limited exceptions12 to this and if the requirements are not satisfied, a foreign practitioner will not be able to gain right of audience in the Malaysian courts13. An established foreign practitioner with many years of experience may find the requirements for pupillage discouraging. However, despite their experience, this requirement is meant to expose them to the Malaysian legal procedures14.

However, the exception that is normally applicable to a foreign practitioner being instructed to appear for a particular case is the admission in special cases under section 18 of the Act. This section enables a foreign practitioner to practise as an advocate and solicitor in Malaysia for a particular case15. However, the court must be of the opinion that for the purpose of the particular case, the foreign practitioner has special qualifications or experience of a nature not available amongst advocates and solicitors in Malaysia and has been instructed by an advocate and solicitor in Malaysia16.

Cherie Booth QC, attempted to rely on section 18(1) applied for an ad hoc admission into the Malaysian Bar after being instructed to appear for a particular case. However, the application was refused by the High Court Kuala Lumpur and it was subsequently appealed to the Federal Court17. The judgment of the court considered the requirement of ‘special qualifications or experience’ by referring to established judicial precedents in Malaysia18. The court subsequently concluded, “special qualifications and experience under section 18(1)(a) of the LPA refers to the particular field of the law which that particular case is related and not in respect of each and every issue that arises in that case19”.

Therefore, if a foreign practitioner is in possession of the requisite qualifications or experience in a particular field of law that is relevant to the particular case that he intends to appear, then he would have satisfied the first requirement under section 18(1)(a) of the Act. However, the second requirement under same section must be satisfied in addition to the first. The special qualifications and experience must not be available amongst advocates and solicitors in Malaysia.

The Federal Court20 subscribed to the observation on the words ‘not available’ by Sharma J in Re S.K. Lee21. The special qualifications or experience that is required under section 18(1)(a) must be of a high degree of quality and type which cannot be found in local lawyers. Therefore, a foreign practitioner will have to persuade the Court22 that his special qualifications and experience satisfies both requirements.

An alternative to practising as an advocate and solicitor in Malaysia is to provide in-house legal advice23. This is a viable alternative for foreign practitioners because the procedures24 are not as stringent comparatively with the former if an arrangement for employment has been secured25. The limitation that most foreign practitioners would have is the knowledge and experience with regard to relevant local laws. However, foreign practitioners with multi-national legal experience may find their legal knowledge and experience useful in assisting companies in their international transactions or investments.

In summary, there are 3 main methods for a foreign practitioner to enter the legal profession in Malaysia. The first method is to gain admission as an advocate and solicitor in Malaysia via the normal route that local practitioners use. However, the difficulty faced under this method may either be due to the language requirement or the residency requirement. The second method is to obtain special admission in particular cases. However, the difficulty that a foreign practitioner will face is to satisfy the requirements under s.18(1) of the Act. Additionally, admission under this route will only be permitted for that particular case. It is therefore not a viable long-term consideration. The third method would be to gain employment to provide inhouse legal advice. Although a foreign practitioner may not practise law locally under this route, he may nonetheless enter the legal profession in Malaysia without the difficulties faced by the previous methods.

Despite the difficulties faced by foreign practitioners to gain admission into the Malaysian Bar, the legal profession in general whether as a practitioner or an inhouse legal advisor has always been a challenging career. This is due to the continuing need to be updated with regard to changes in the law. The law is not stagnant and is ever changing with times, circumstances and society. Therefore, if a foreign practitioner truly does have the passion to practise law in Malaysia, then the methods considered above are worth a consideration.

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Footnote:
1 Barristers-at-law are being regulated by the Bar Council (Today, a separate and independent
regulatory body known as the Bar Standards Board regulates barristers-at-law in England and Wales)
and solicitors being regulated by the Law Society. In a country with a fused profession, the regulatory
body may either be the Bar Council such as Malaysia or the Law Society such as Singapore.

2 A foreign practitioner for purposes of this article is defined as a practitioner in possession of legal
qualifications and right of audience outside Malaysia.

3 The legal profession in Malaysia is a fused profession and is governed by the Bar Council. A legal
practitioner in Malaysia is known as an Advocate and Solicitor.

4 s.1(1) Legal Profession Act 1976 is subject to s.14.

5 s.3 of the Act states that “a ‘qualified person’ means any person who (a) has passed the final
examination leading to the degree of Bachelor of Laws of the University of Malaya, the University of
Malaya in Singapore, the University of Singapore or the National University of Singapore; (b) is a
barrister-at-law of England; or (c) is in possession of such other qualification as may by notification in
the Gazette be declared by the Board to be sufficient to make a person a qualified person for the
purposes of this Act.” The Legal Profession Qualifying Board may require foreign practitioners with
certain qualifications to sit for the Certificate in Legal Practice before satisfying paragraph c above.
There are requirements that must be satisfied to sit for the Certificate in Legal Practice. Visit
www.malaysianbar.org.my/admission_requirements.html to determine the entry requirements.

6 See s.12 of the Act on the period of pupilage. However, s.13(3) provides exemption for a qualified
person from any period up to six months subject to the Bar Council’s sole discretion upon satisfactory
evidence that the applicant has amongst other things, engaged in active practice as a legal practitioner by whatever name called in any part of the Commonwealth for a period of not less than six months.

7 A qualified person may be exempted by the Legal Profession Qualifying Board by virtue of s.5(f) and
11(2) of the Act if he has obtained at least a credit in Bahasa Malaysia for his Sijil Pelajaran Malaysia

8 Translated in English to mean Malaysian language

9 s.11(2) of the Act.

10 Whether being admitted by virtue of being a qualified person due to a recognised degree in law from
a local public institute of higher learning, a barrister-at-law in England, or being in possession of any
other qualifications that is recognised by the Qualifying Board such as a Certificate in Legal Practice or
a Solicitor of the Supreme Court of Judicature, England.

11 The period of 3 months is based on the maximum exemption possible under section 13 of the Act.

12 The only exceptions are the admission in special cases under s.18 of the Act and special admission
certificates issued by the Attorney General under s.28B of the Act.

13 This includes the High Courts and Subordinate Courts.

14 There is also a similar requirement on pupillage amongst other things to admit qualified foreign
practitioners into the Bar of England and Wales under Regulation 36 of the Consolidated Regulations
of The Inns of Court and The General Council of The Bar (November 2008). However, the Transferring Qualified Lawyers Panel of the Qualifications Committee may exempt the applicant from
all or part of the requirements for pupillage.

15 s.18(1), Notwithstanding anything contained in this Act, the Court may, for the purpose of any one
case and subject to the following subsections, admit to practise as an advocate and solicitor any 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.

16 s.18(1)(a) and (b) of the Act.

17 Cherie Booth QC v. Attorney General, Malaysia & 5 others, 2006 [FC]

18 Para. 13 – 15, Ibid.

19 Para. 17, Ibid.

20 Para. 19, Ibid.

21 (1971) 2 MLJ 40

22 The court will consider the relevant issue in the particular case in light of the applicant’s special
qualifications and experience.

23 However, a foreign practitioner providing in-house legal advice who has not been admitted as an
advocate and solicitor in Malaysia will not be able to represent himself as being a qualified practitioner
to practise law locally. The limitations on foreign practitioners are limited to providing in-house legal
advice and not perform any act that would contravene s.37 of the Act.

24 For the procedures, visit http://www.imi.gov.my/eng/perkhidmatan/im_PegawaiDagang.asp

25 An arrangement for employment with a Malaysian law firm may be applicable if the requirements by
the Immigration Department of Malaysia are satisfied. However, the limitations under s.37 of the Act
will still apply because an employment with a Malaysian law firm does not necessarily enable a foreign
practitioner to represent himself as being a qualified practitioner to practise law locally.

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5 Responses to “A CONSIDERATION FOR FOREIGN PRACTITIONERS ENTERING THE LEGAL PROFESSION IN MALAYSIA”

  1. Gopal Raj Kumar says:

    It is not the question of the profession being regulated (which it ought to be) that matters when considering entry into the Malaysian legal profession.

    Regulated professions and closed shop guilds are the result of an insecurity or outright incompetence. It provides rich pickings to members of the guild and excludes competition. Malaysian lawyers fall into all of the above categories mentioned in the pejorative.

    We have a very busy practive in our real names in Australia. We are lawyers from Malaysia, India and Australia of course and enjoy the vast benefits of a market of legal services which is Malaysia. This is because of the uncompetitive behaviour and general lower standards of Malaysian lawyers in Malaysia. It becomes more apparent when they settle abroad and find adjustment to more competitive environments their services difficult if not altogether impossible.

    Much of the work we get is from mid sized firms, aggressive enough to want to compete with the “best” of their colleagues in the profession in Malaysia. They are smart and honest enough to recognise the need for efficiencies by engaging us (and others) to review their matters, draft documents, pleadings and to provide research on issues which many Malaysian law firms cannot or simply will not provide their clients yet not seek the help they need to attain these outcomes.

    Since 2007 (November 2007) we have chalked up 22 law firms in Malaysia who provide us with regular work that requires results for their clients. We serve them well. They and their clients benefit from our work.

    None of the work we have done to date requires any form of disclosure from us or our solicitors to any of the peak professional bodies in Malaysia . it is done solely at the request of the Malaysian lawyer who then vets the work we provide on their instructions and pays our fees.

    Guilds and closed shops never work especially where merti is not the criterion.

    Gopal Raj Kumar

    Counsel888@gmail.com

  2. Australian/HK lawyer says:

    I looked into the requirements for admission some years ago as my wife is a Malaysian citizen. However I was informed I needed to be a permanent resident before I could even contemplate admission. However as a male I can not gain residency status…. it would be different if I had been born a woman however for some bizarre reason. So right there you have a barrier that is impossible to breach which puts paid to any ‘regulatory’ argument. It is simply protectionism at its worst. On top of top of this is the language requirement – which it may eventually be possible to get over, however this barrier does not exist in other common law jurisdictions where languages other than English are more widely spoken – such as Hong Kong for example (where I now practice as Malaysia is out of the question).

    Lastly I would say this. The Malaysian bar is in my view suffering from a lack of competition. I have been working in Hong Kong now for 3 years and I have met many Malaysian lawyers. While many are competent they definitely struggle to get up to speed with the pace, amount of and complexity of the work. In part this is due to the insular nature of the legal profession in Malaysia. Many of my Malaysian lawyer friends here have not made it but it is not their fault. Their training was poor due to the dire nature of the local profession.

    In Australia and Hong Kong we welcome Malaysian and other foreign lawyer with open arms and it has done us the world of good in terms of building a strong and competitive profession. It’s a shame in Malaysia comfortable greed takes precedence over a healthy profession.

  3. Gopal Raj Kumar says:

    It is only a matter of time when the inevitable will dawn on the Malaysian legal profession. It will be a rude awakening to the coeterie that rule the Bar when change comes and the gates are opened to foreign competition. The Malaysian government is doing its best to allow the Bar to be independent whilst at the same time working to ensure that Malaysia’s commitment to removing barriers to trade (and that includes the service sector like the legal profession) is not merely cosmetic.

    We have had great difficulty training (or retraining) experienced Malaysian lawyers who have mgrated to Australia to reach a level of competence that is consistent with intermediates and juniors here. They do have a free ride out here and do not reciprocate.

    Becomming a permanent resident (a pre requisite for outsiders wanting to practice in Malaysia) of Malaysia is not difficult. One merely has to fulfill the requirements of the “Malaysia My Second Home” plan, then apply to be admitted to the Br after satisfying the requirements of the local peak professional body. I think it is called the CLP. There is a period of articleship (or chambering. an archaic borrowed English term) which may be reduced at the discretion of the Malaysian Bar.

    The closed shop though offers other opportunities which many foreign firms are taking now up. These include progressive Malaysian lawyers engaging foreign “consultants” and billing their client’s for the privilege.

    GRK

  4. careena says:

    Opening the legal profession to foreign lawyers is a good move as it promotes healthy competition, gives the Malaysian consumers (clients) a broader choice as well as encourages transfer and sharing of knowledge. Additionally, this will also indirectly compel “some” lawyers to improve their command of the English Language.

    It is just too bad that some “people” prefer to rest on their laurels instead of embracing changes for the betterment of the legal profession.

  5. Raymond Chu says:

    The Qualifying Board in Malaysia must have a peek into this website.

    The CLP actually, in full means Certificate in Legal Profession.
    This Certificate is the gateway qualification recognised by the Qualifying Board for admission of recognised foreign universities qualification under the Legal Profession Act 1976 to enable the graduates (with degrees aready) to learn as much as they can about local law so as to be accustomed to the local practice here. As much as a post-graduate recognition, the CLP also enables one to gain admission into Malaysian Bar to undergo pupilage under the chambering system (which has its roots in English chambers) to learn and ask what ought to be learnt about the workings of the law and how justice is served for the interests of the people. No CLP graduate will tell you that law studies is spoonfed.

    Just like any other Commonwealth countries, there is an admission criteria and those who qualify can be admitted into practice by the local competent authority.

    Mastering the language which law is taught and used in daily usage of the local practice demands a greater appreciation of custom, culture and literally, the ‘legal climate’ of various degrees and structures of the system that is put in place.

    That means, some effort on learning about the history of the law in a particular country is required. although this may not be a qualifying criteria.

    The local culture provides sufficient opportunity for equal level of developing a healthy culture that sets Malaysia as an advance developing country ahead of its time as the economy flourishes and blooms with the incoming tides of good fortune and investments abroad.

    Therefore, in my opinion, foreign qualification is a vital key factor that can contribute to a well-balance educational background that is always welcome in our country.

    For example, if a foreigner ever gets lost, just ask the local taxi man for direction. I don’t think any additional fare will be charged for direction, not in our local culture. May be that is what makes Malaysian Malaysia so unique.

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