Bar Council can’t act against bogus lawyers, says ex-chairman

 It can only take action against members representing clients without valid annual practising certificates.

Under existing law, the Bar Council can only act against members who continue to represent clients without renewing their annual practising certificates.

PETALING JAYA:

 The Bar Council is not empowered under the Legal Profession Act 1976 (LPA) to take enforcement action against bogus lawyers or firms for criminal offences, but may lodge police reports upon receiving complaints, its former chairman said.

Salim Bashir explained that the council, which regulates the Malaysian Bar comprising approximately 24,000 lawyers practising in Peninsular Malaysia, can only act against members who continue to represent clients without renewing their annual practising certificates.

Such cases may be referred to the advocates and solicitors’ disciplinary board or dealt with through administrative measures.

Salim said the police may investigate suspected offences involving unauthorised persons acting as lawyers under Section 37 of the LPA, or cases of impersonation under Section 416 of the Penal Code.

He noted a growing trend of unauthorised persons — including bogus lawyers and those who have been suspended or struck off the rolls — representing clients in court.

He was commenting following the Court of Appeal’s recent decision to nullify a drug trafficking conviction and jail term imposed on an accused after it was discovered that he was represented by a bogus lawyer at trial.

A three-member bench led by Justice Azmi Ariffin granted the accused, Zarif Noor Ajala, a retrial as he was not properly represented by counsel.

The bench was told that the individual who appeared as Zarif’s lawyer was charged, convicted and fined last year for three offences, including an offence under the LPA.

Zarif was charged with trafficking 768.9gm of methamphetamine, at a fast-food outlet in Nilai, Negeri Sembilan on Sept 18, 2018.

He was found guilty by the High Court in Seremban three years ago, and sentenced to 30 years in prison and 12 strokes of the rotan.

Lawyer Kitson Foong said every accused has the right to be represented by counsel of his choice, but sadly, the accused in the case had fallen prey to a trickster.

He said the attorney-general, under Article 145(3) and Section 254 of the Criminal Procedure Code has absolute discretion in the conduct of the proceedings and may drop the charge against Zarif if a retrial no longer serves the public interest.

“Alternatively, Zarif could submit representations to reduce the trafficking charge to simple possession,” he said, noting that the accused has been held under remand for eight years since persons accused of such offences are not entitled to bail.

Foong said Zarif could walk out a free man after factoring in a backdated sentence and the standard one-third remission for good behaviour.

The senior lawyer said all the exhibits would need to be reproduced and witnesses must be recalled to give the same evidence if a retrial is ordered.

“Witnesses must repeat the evidence given earlier, failing which they could be exposed to perjury,” he said.

Lawyer Razlan Hadri Zulkifli said Zarif could file a suit against the bogus individual for representing him in the criminal trial.

“There may be a cause of action for misrepresentation and fraud,” the lawyer said, adding that compensation could be in the form of general and special damages.

Razlan said the suit for fraud must be filed within the limitation period of six years calculated from the date the tort was discovered. - FMT