MAJLIS PEGUAM MALAYSIA v. MICHAEL JOSEPH CARVALHO & ANOR
FEDERAL COURT, PUTRAJAYA
MOHAMAD ZABIDIN MOHD DIAH CJ (MALAYA)
ABDUL RAHMAN SEBLI CJ (SABAH & SARAWAK)
RHODZARIAH BUJANG FCJ
[CIVIL APPEAL NO: 02(f)-5-02-2023]
28 AUGUST 2023
[2023] CLJ JT (20)

Abstract – (i) In cases involving dishonesty by advocates and solicitors, s. 80(8) and (9) of the Legal Profession Act 1976 ('LPA') make no distinction between an advocate and solicitor who practices as a sole proprietor and an advocate and solicitor who practices in a partnership; (ii) Paragraph 2(b) of the Guidelines on Making a Claim for Compensation is inconsistent with s. 80(8) and (9) of the LPA and is unlawful and liable to be struck down. The power of the Bar Council to make rules or Guidelines in respect of the procedure to be followed in protecting the Bar Council's compensation fund from depletion does not extend to extinguishing the statutory right given to a person by s. 80(8) of the LPA to apply for a grant out of the compensation fund for losses due to the dishonest acts of advocates and solicitors practising in partnerships.

LEGAL PROFESSION: Advocates and solicitors – Compensation – Bar Council's compensation fund – Restitution – Clients suffered losses arising from dishonest acts of advocate and solicitor – Advocate and solicitor found guilty of misconduct and ordered to make restitution to clients – Discretion and power of Bar Council to compensate members of public using money from compensation fund for losses arising from acts of dishonesty by advocates and solicitors practising in partnerships, as opposed to sole proprietorships – Whether clients entitled to claim restitution sum from compensation fund – Whether fact that advocate and solicitor practising as partner in firm restricted clients from claiming for restitution sum from compensation fund – Whether para. 2(b) of Guidelines on Making a Claim for Compensation contrary to s. 80(2), (8) and (9) of Legal Profession Act 1976

STATUTORY INTERPRETATION: Legal Profession Act 1976 – Section 80(8) and (9) – Losses in consequence of dishonesty by advocate and solicitor – Whether s. 80(8) and (9) make distinction between advocate and solicitor who practises as sole proprietor and advocate and solicitor who practises in partnership