Suspended lawyer cannot give legal advice to clients, says apex court

 

Federal Court dismisses an appeal by lawyer Darshan Singh Khaira, who was struck off the roll in April 2016.

PUTRAJAYA: A lawyer, who is barred or suspended from practice, cannot give legal advice even if he does not collect fees, the Federal Court has ruled.

Judge Harmindar Singh Dhaliwal said that a person then may be deemed to have been practising law for any payment or for receiving a reward.

“It would turn out to be quite a remarkable circumstance for a lawyer following his suspension to continue to advise clients and even appear in court on their behalf with the excuse that he cannot be said to be practising law because he is acting pro bono,” he said.

Harmindar was in a three-member bench that dismissed an appeal by lawyer Darshan Singh Khaira, who was struck off the roll in April 2016.

He had not obtained the consent of the Bar Council to continue practising law after he was declared bankrupt in August 2007.

The other judges who heard the matter were Court of Appeal president Rohana Yusuf and Chief Judge of Malaya Azahar Mohamed

The lawyer claimed he did not collect legal fees for himself as they were paid to the legal firm of M/s Darshan Singh & Co for work done but Harmindar said the argument was without merit.

In this case, Darshan had assisted the complainant, Zulkefli Hashim, in a traffic case in the Georgetown magistrates’ court up to the Court of Appeal.

Although Zulkefli represented himself in these proceedings, he had engaged Darshan to prepare the legal documentation and had sought legal advice from him.

However, Zulkefli lodged a complaint to the Bar Council when the Court of Appeal struck out his appeal on a procedural ground.

The disciplinary board found Darshan had committed a serious misconduct by providing legal advice to Zulkefli when he was a bankrupt and did not hold a valid practising certificate.

Darshan took the position that any layman can give advice and assist a litigant and that did not amount to practising law.

“By actively advising Zulkefli on his appeal and preparing the necessary documents, Darshan was plainly doing something which is usually done by a solicitor,” Harmindar said in his 23-page judgment.

The judge added that although legal clerks also prepare documents, they do so with the supervision and approval of a lawyer.

“In our view, there existed quite plainly a relationship of confidence and trust between Darshan and Zulkelfi which is an essential part of legal practice,” he said. - FMT