End the lawyers’ monopoly on conveyancing in Malaysia


End the conveyancing monopoly

Lawyers set outrageous fees despite the fact that the work done does not involve additional skill.

WHEN I started my legal practice many years ago, it was quite common for lawyers to give discounts on fees chargeable for conveyancing and loan transactions. In fact, some of us charged time costs to clients because the work was quite straightforward (even if the sums involved were large).

In those days, there was already a no-discount rule. The legal fraternity then was more realistic and the Bar Council was lenient when it came to the amount of fees we could charge: no one would be liable for disciplinary action for not following scaled fees, and breaches were more frequent than observance. Those were happy days.

By and large, conveyancing and loan documentation for financial institutions are straightforward matters. They usually involve standard terms that lawyers use on a daily basis without much effort (though some lawyers might dispute this).

Conveyancing fees are what we call “easy money” – clerks do all the work and lawyers collect their fees for signing on the right pages. The higher the value of the property, or the value of the bank loan, the higher the fee.

I have never thought it right to charge high fees on this basis; after all, high-value residential property transacted in Ampang, for example, requires the same work and skill as that of lower-valued property in Klang, so why should there be a difference in fees?

The fact is that the scaled fees mandated by the Bar Council favour the lawyer who undertakes larger property transactions – but why this is so can be difficult to understand, and I suggest you read Michael Joseph’s Conveyancing Fraud, which was first published in 1989.

Joseph was an English solicitor who did his part to expose the arbitrary and unfair system by which the Law Society of England and Wales (the governing body for solicitors) set outrageous fees despite the fact that the work done had no relation to any additional skill.

Ultimately, good sense prevailed and solicitors lost their monopoly over conveyancing in England and Wales. A new breed of professionals called “conveyancers” was given the right to do this work as well and, as a result, fees were much reduced and services improved. That’s what competition does to any industry.

But not in Malaysia. Here, the Bar Council still insists that only lawyers can undertake conveyancing work and scaled fees must be strictly followed – a practice abandoned long ago in other Commonwealth countries.

When it comes to this issue, the Bar Council somehow always overlooks the question of public interest. It seems that, to the Council, it’s their members’ interests that are more important.

The economist Adam Smith warned us 250 years ago that when people of the same trade met, the conversation usually ended up in a conspiracy against the public through the raising of prices.

We now have the Competition Act 2010, which in essence seeks to promote the competitive process, and the rule of the game is to discourage anti-competitive behaviour. The stance taken by the Bar has been definitely against the Competition Act, although no one dares to challenge the lawyers’ monopoly.

The question remains: why must lawyers be the only type of professionals allowed to do conveyancing work?

A solicitor friend countered this view by saying that the Competition Act itself allows for exclusion. For example, Section 13 of the Act exempts any agreement or conduct that complies with a legislative requirement. My friend argued that the Solicitors’ Remuneration Order 2005 (which allows for scaled fees to be charged) is such a legislative requirement.

But wait a minute. I’m not saying that the Bar is in violation of the Competition Act. I’m saying merely that the Bar’s monopoly on conveyancing is not in compliance with the spirit of the Act. The Bar is once again out of touch!

The Malaysian Competition Commission, under the able leadership of former Chief Judge of Malaya Tan Sri Siti Norma Yaakob, should exercise its power under Sections 11 and 12 of the Competition Act to perform a “market review” of the situation and publish the results.

I am sure such a study will show the need for the establishment of a new breed of professional conveyancers so as to give lawyers some fair competition, and I’m sure the market review will benefit the public immensely.

Arguments that conveyancing work is complicated and must be done by lawyers have already been used in Australia and England, and have been found to be baseless – in fact, the quality of conveyancing services in Australia and New Zealand actually improved after the lawyers’ monopoly was broken.

In Malaysia, there are many former legal clerks and Land Office employees who can qualify and be registered as conveyancers. Of course, local conveyancers will have to be properly regulated under their own professional standards organisation to ensure that a high quality of work will be maintained.

The lawyers’ monopoly has no purpose whatsoever in this day and age. Moreover, given that the Bar Council has always fought for the political and human rights of the people, I believe it should extend this public spirit to conveyancing and other spheres, even if it means less “easy money” for lawyers.

In fact, the real test of our commitment to a particular cause is our willingness to persist even if it hits our pockets, so I say again: the public will surely benefit from an end to the conveyancing monopoly, services will improve and prices will fall. So why can’t we do it?

Contributed by by datuk zaid ibrahim The Star/Asia News Network

> Datuk Zaid Ibrahim, true to his Kelantan roots, is highly passionate about practically everything, hence the name of this column. Having established himself in the legal fraternity, Zaid ventured into politics and has been on both sides of the political divide. The former de facto Law Minister at one time is now a legal consultant but will not hesitate to say his piece on any current issue. He can be reached at zaid.ibrahim@partners-corp.com. The views expressed here are entirely his own.

‘Violent lawyer’ may face action


PETALING JAYA: The Bar Council is looking at issuing a show-cause letter to the lawyer who was caught on video pushing and kicking a client.

Bar Council president Lim Chee Wee said that if there was a cause for further action, the lawyer would be referred to the Disciplinary Board.

“The Board (which is independent of the Bar Council) will decide whether to convene a disciplinary committee to investigate further or deal with the matter summarily.

“If convicted, the lawyer can face reprimand, fine, suspension, or be struck off the roll,” he said.

He said this in response to a 9.03-minute video clip on a “hooligan lawyer” that has gone viral.

The video showed two men, believed to be a lawyer and a house buyer, arguing in the presence of three others in an empty house on June 19.

The argument started when the house buyer refused to acknowledge receipt of several documents handed to him by the lawyer.

The lawyer, Tan Hui Chuan, who is a former Selayang municipal councillor, said it was not fair to pre-judge him.

“I am only human. The client bombarded me with hurtful and disrespectful words over and over again.

“I am 58 years old and about to retire. I never had any disciplinary issues before. As all can see, I only pushed him away from me, to make him stop.

“But he went on and on. I raised my hands several times as a sign of surrender but he kept pestering me.

“And yes, I kicked him once. But it was a soft kick,” he said.- The Star

Sources

http://www.malaysianbar.org.my/

 

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Ethics vital for lawyers! Force to sign documents & hit client?

Ethics vital for lawyers! Force to sign documents & hit client?


I REFER to the YouTube clip (http://www.youtube.com/watch?v=pXGuSf_YARM&sns=fb) showing a lawyer forcing a client to sign documents without reading the contents, shouting at the client, shoving him and kicking him. (See below: Lawyer who hit client claims self-defence)

Any person who encounters poor legal services or suffers detriment has the right to seek remedy.

In Malaysia, action against lawyers lies in the hands of the Disciplinary Board set up under the Legal Profession Act 1976. The Disciplinary Board is independent of the Bar Council, consists of senior lawyers, and is chaired by a judge of the Court of Appeal. It deals with all complaints against lawyers.

The Bar Council is only empowered to deal with cases of misconduct involving dishonesty, which includes cases of cheating and the misappropriation of funds. If the Bar Council receives a complaint involving dishonesty, it can apply for a court injunction to stop the lawyer concerned from practising pending investigations into his case, or apply to the Disciplinary Board for an order of suspension pending such investigations. The Bar Council will also lodge a police report in respect of the complaint if the complainant has not already done so.

The Bar Council regulates the legal profession in this country and it can deny any application to join the profession – based on the “good character” requirement. The meaning of “good character” can be a little bit hazy, but it’s been described as having a strong moral fibre, a belief the law must be upheld, and an appreciation of the difference between right and wrong.

As a regulating body, the Bar Council polices the conduct of lawyers, and disciplines members not only for unethical actions, but also rude or overly aggressive behaviour. Anyone found guilty of professional misconduct shall face suspension.

At university, legal ethics should be viewed as a major subject, to provide students with a thorough grounding of the proper spirit in which lawyers should practise. Honesty should be a crucial part of a lawyer’s education. By the time students begin pupillage, they should already have a good grasp of what makes a good lawyer. This should include knowledge on how to handle clients’ money ethically and the manner in which they are to deal with other lawyers and the courts. Such education should imbue a correct and broad mindset in students and guide them during their pupillage, as they begin to apply the legal knowledge they have acquired in theory to real-life cases.

A word to all legal professionals in Malaysia: respect your clients, the profession, the country and the public interest. Law is an imperfect profession in which success can rarely be achieved without some sacrifice of principle. But we can strive to make it a notable profession that people can respect in this country.

JACK WONG KIN TUNG

Law lecturer, Ipoh

Lawyer who hit client claims self-defence

By SIRA HABIBU  sira@thestar.com.my

http://www.malaysianbar.org.my/

PETALING JAYA: A video clip of a house buyer being pushed and kicked by a lawyer has gone viral but the purported attacker says he did it in self-defence after being provoked.

Lawyer Tan Hui Chuan, who was a Selayang municipal councillor until recently, said the house buyer had uttered “hurtful and disrespectful words”.

“I just wanted him to get away from me because he was provoking me, so I pushed him. But I did not punch, scratch or slap him. Yes, I kicked him. But I did not kick to injure him. It was a soft kick,” he said when contacted yesterday.

The nine-minute video clip shows two men arguing in the presence of three others in an empty house. At one point, one of the men, who is apparently infuriated, pushes the other man and kicks him once. He shoves him several times later.

Gone viral: A still from the video grab purportedly showing the attack.

The footage, recorded by a woman who came with the house buyer, was posted on YouTube on June 21, two days after the alleged incident.

The house buyer claimed he was upset that the lawyer “forced” him to sign some documents without giving him time to verify them first.

However, the lawyer said he merely asked his client to sign the acknowledgment of receipt of several documents that had been tendered to the bank.

“It was neither an agreement nor a contract as all transactions had been completed a week earlier. The client has already taken possession of the property,” he said.

Tan said his client went to his firm several days later and signed the acknowledgement of receipt.

“And the video was released after that,” he said.

The lawyer felt that the house buyer had tarnished his reputation by releasing the video.

Bar Council president Lim Chee Wee said victims of physical assault could sue for damages, adding that the house buyer could lodge a police report as well.

“No amount of provocation should attract (any form of) physical assault,” he said.

He also said that in cases of misconduct involving lawyers, the people could lodge a complaint with the council’s disciplinary board.

Theng Book offers to mediate

The Star June 10 2012

PETALING JAYA: Selangor MCA Public Services and Complaints Department chief Datuk Theng Book has offered to mediate in the controversy involving a lawyer who is alleged to have assaulted a housebuyer.

He, however, urged lawyer Tan Hui Chuan to apologise to Neo Kian Hua within a week.

“Failing which, Neo can take the necessary action if he wants to,’’ Theng Book told a press conference at the Selangor MCA office here yesterday in the presence of Neo.

The alleged assault happened on June 19 after Tan summoned Neo to the house he had purchased to sign some documents.

A video clip showing an enraged Tan pushing and kicking Neo posted on YouTube went viral.

Tan, who was a Selayang municipal councillor until recently, had clarified that Neo had uttered “hurtful and disrespectful words” and that he had acted after being provoked.

The lawyer also claimed that he had merely asked Neo to sign to acknowledge the receipt of several documents that had been tendered to the bank.

Neo, a 32-year-old IT consultant, said yesterday that he had never met Tan prior to the incident as he had only dealt with his assistant.

“I also felt strange as to why he was calling for a meeting at the house and not his office,’’ said Neo, who added that he decided to get his girlfriend who accompanied him to the meeting to record it.

Neo claimed that Tan lost his cool after he (Neo) began reading through the documents before signing them.

“As I continued to read the documents, Tan grabbed them from me and told me to go to his office to do the signing,’’ he further claimed.

Theng Book advised all housebuyers and vendors to appoint their own lawyers to protect their interests.

“Banks should not recommend lawyers to vendors and buyers,’’ he said.

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‘Violent lawyer’ may face action  

Are Malaysians really racists?


PUTIK LADA By RICHARD WEE

Institute of Race Relations

Race relations laws will assist the authorities to manage race relations, to clarify any uncertainty, but may to a certain extent suggest that Malaysians are, perhaps, racists.

IT is of crucial importance for the citizens of any growing nation to also grow intellectually. A mature nation is not just a nation of financial wealth, but a nation filled with people who can articulate their points intellectually and critically, and do so calmly and with poise.

In 2007 and 2008, the National Young Lawyers Committee of the Bar Council (NYLC) held a series of forums – known as “Siri Pemikiran Kritis” (SPK) – which encouraged open debates and discussions of issues which affected the people and the nation.

These debates and discussions included issues relating to the economy, civil liberties, and human rights. It was hoped that these forums would activate quality dialogues, over rhetoric and emotional outbursts.

The series was very well received. The panel of invited speakers ranged from national leaders to NGO members.

The attendees were mostly normal Malaysians who cared for the country and who were keen to hear the views of the panel speakers.

As the name of the series suggests, its purpose was to encourage critical thinking. The forums took a standard format.

The NYLC would invite a few speakers who were well versed with the topic, and have a moderator to host.

After each speaker presented his thoughts on the topic at hand, the floor would be open for the attendees to pose queries and sometimes debate with the panel speakers.

The very first SPK was held on Jan 11, 2007, and the topic was the New Economic Policy. It was a good start, and eventually, eight further forums were held.

This year, the NYLC is reviving the SPK series. This is part of the NYLC’s on-going community programme, which includes not only offering people legal and non-legal assistance, but also to educate and engage via public forums such as the SPK.

The idea of public forums where Malaysians can gather and listen to the ideas and views of others, and partake in open dialogues, drove the current NYLC team to re-visit the successful SPK.

To kick start the 2012 version of the SPK, the NYLC will host a forum on the issue of the proposed race relations law in Malaysia – “Race Relations Laws: Backwards or Forwards?”

Law Minister Datuk Seri Mohamad Nazri Aziz, announced that a Bill would be presented in Parliament, which would be in similar vein with the race relations laws of other countries.

What are race relations laws? In its simplest sense, race relations laws govern the relations of different races in a country. In the United Kingdom and the United States, laws governing race relations were passed and are used to manage the different races.

Do we need such laws in Malaysia? Does Malaysia not already have a sufficient legislative framework to govern race relations? How have we been governing race relations since 1957? Is our Federal Constitution a sufficient guide on race relations? Is it not enough for race relations be governed by honest and benevolent government policies?

Perhaps the new laws would assist the authorities to manage race relations. Arguably, there is an opportunity to clarify any uncertainty.

To a certain extent, the proposed race relations law suggests that Malaysians are, perhaps, racists. Only in countries where racism is rampant, or where it is damaging the roots of the society, would such a law be necessary.

Are Malaysians really racists?

That would be a question which only the Malaysian people can answer.

It is possible that this country is not, by majority, filled with racists, but instead that Malaysia has been subjected to unfortunate and sometimes insidiously enforced policies, which gives the impression that we are racists.

Taking a general view of Malaysian society, there is hardly any open, blatant racism.

For example, in the US, at the peak of racism, African Americans were not allowed to share seats in buses with White Americans in some states.

That was a dark moment in American history and their Senate had to intervene with laws to legislate that.

Policies in America also changed to discourage segregation.

Unlike in the US, any Malaysian can hitch a ride on a bus and share seats with people of different races. This is, of course, a simplistic example. Perhaps Malaysians may feel otherwise.

People may feel that we need such laws. Malaysians may also feel that we should discuss and perhaps debate on this proposed law.

So, do we need race relations laws in Malaysia? Or do we actually need race relations policies instead? And if we do introduce race relations laws, what would they contain?

So many questions. So many issues.

That being the case, we invite you make your way to the upcoming SPK Forum, which will be held on Saturday, March 31, at the Bar Council Auditorium in Kuala Lumpur from 10am to 2pm.

The forum will be initiated by Senator Gan Ping Sieu who is also Youth and Sports Deputy Minister. The speakers will be Datuk Ambiga Sreenevasan, Farish Noor, and Faisal Moideen. It will be moderated by Syahredzan Johan.

Please register with the Bar Council by contacting Janet Nathan, the Executive Officer in charge at janet@malaysianbar.org.my, as seats are limited.

> The writer is the chairperson of the National Young Lawyers Committee. PutikLada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, visit http://www.malaysianbar.org.my.

High time for a new Bar!


COMMENT BY ROGER TAN


A common evaluation system is needed urgently to check the declining quality and standard of new lawyers in the country.

IT is a matter of grave concern that with about 1000 law graduates entering the legal profession every year, there is no common evaluation system to ascertain and ensure their levels of competence.

The Bar Council has been advocating a Common Bar Course and Examination (CBE) since the 1980s as a single entry point to the legal profession for both local and foreign law graduates.

It is understood that the delay in implementing the CBE is partly due to objections from local universities.

But it cannot be gainsaid that the quality and standard of lawyers have also declined significantly since the 1980s. There is a common feeling among senior legal practitioners that there is an “abject absence of rudimentary legal skills” among the new entrants.

In 2008, a senior judge lamented on the poor quality of locally trained lawyers, describing their standard as ranging from the “good to the grotesque”. (However, some senior lawyers had also opined that the learned judge’s assessment applied equally to the quality of judges since the 1980s.)

For example, one senior lawyer related this incident to me involving a senior assistant registrar (SAR) and lawyers for both the plaintiff and defendant. The SAR was tasked to read the judge’s order relating to costs. Both lawyers recorded the amount of costs with interest at the rate of 80%!

When the senior lawyer asked his assistant, who was the counsel for the plaintiff, about it, the latter said he did not understand why the SAR had mentioned the interest at 80%. He added that when he checked with the counsel for the defendant; the latter said it was common for the court to grant interest at 80%, which is, of course, erroneous!

Hence, the point is, how could one have walked out of the court without even understanding the court’s order? If the parties were not able to understand the order, then they would also not be able to draft the order later. If what the plaintiff’s counsel had said about the SAR and the other counsel was true, then indeed all the three legally trained officers – SAR and the two lawyers – were indeed half-past-six professionals!

Besides the decline in lawyering quality, there is an abysmal language skill especially the command of the English language among the new entrants for practice at the Bar. I have personally received a letter from a young lawyer asking me to “ensure that (our) clients would be executed the documents!”

It follows that it is not unjustified to require the new entrants to also pass an English Language Qualifying Examination. Whilst we can blame this decline on our education system, we cannot ignore the fact that we are living in an increasingly competitive global environment where international business is transacted primarily in English.

It is also in the national interest for us to build up a pool of competent practitioners in international law so that we can put across our nation’s case in international forums and courts, which is made all the more necessary after the Pulau Batu Puteh case before the International Court of Justice.

In fact, there were 13,350 practising lawyers in Peninsular Malaysia as of Dec 31 last year, with more than half having obtained their basic law degree overseas.

The Legal Profession Act, 1976 (LPA) governs the admission of new entrants from various streams to the legal profession as an advocate and solicitor.

To be admitted to the Malaysian Bar, one has to be a “qualified person” as defined in the LPA; attain the age of 18; be of good character and not been adjudicated bankrupt or convicted of any offence; be a citizen or permanent resident of Malaysia; have served nine months of pupillage under a lawyer of at least seven years’ experience; and have passed, or be exempted from, the Bahasa Malaysia Qualifying Examination.

Three tables containing the relevant information of the legal practitioners and their qualifications have been provided, and let me expound on it a little.

Table 1 deals with the academic qualifications of a ‘qualified person’, and the following should be noted:

> The qualifications, except for graduates of Universiti Malaya, National University of Singapore and barristers of England, are determined from time to time by the Legal Profession Qualifying Board (Qualifying Board) which is chaired by the Attorney-General. Any change to the status of the three aforesaid qualifications can only be made by way of a statutory amendment to the LPA.

> The law degree of the new Singapore Management University has still not been recognised by the Qualifying Board. (Singapore only recognises the law degree of University of Malaya for admission to the Singapore Bar.)

> The two-year exemption from Certificate in Legal Practice (CLP) examination given to law graduates of Universiti Utara Malaysia (UUM) and Multimedia University (MMU) in 2009 will expire on April 15, unless extended indefinitely or for a further period by the Qualifying Board.

Table 2 particularises the qualifications of the 13,350 lawyers as at Dec 31 last year. It is interesting to note that the International Islamic University is the single university which has produced the largest number of lawyers in Malaysia.

Also, as of Jan 28, 2011:

> There were 13,346 lawyers; of whom 6,992 and 6,354 are respectively men and women.

> In terms of ethnicity, there were 5,190 Malays; 5,025 Chinese; 2,517 Indians; 485 Punjabis and 129 Eurasians and others.

> In terms of number of years of practice, there were 1972 lawyers with one to three years of practice; 2,037 (three to seven years); 2,983 (seven to 12 years); 4,244 (12 to 20 years) and 2,110 lawyers have 20 years of practice or more.

> In terms of age, 2,384 lawyers were under 30; 4847 (31-40); 3,537 (41-50); 1,648 (51-60) and 930 lawyers were aged 60 and above.

As regards Table 3 which shows the number of lawyers admitted in 2009 and 2010, it is obvious that women have been busy becoming lawyers in the last two years!

It follows that as Malaysian lawyers are coming from so many diverse educational streams, there is an urgent need for uniformity by undertaking a critical review of the entire legal education especially when we are producing a surfeit of lawyers annually.

Need to be professional

It is for this reason that there have been constant calls for many decades now for the CBE to be implemented as the ultimate sieve in the admission of new practitioners in order to ensure lawyering quality and competency.

Further, the CLP course has to be replaced by the CBE because it is too examination oriented, and not practical skills oriented. This is understandable as the CLP was originally designed in 1984 only as a temporary stop-gap measure to assist those Malaysians who were not able to sit for the English Bar Finals Examinations because they failed to obtain at least a Second Class (Lower Division) Honours in their British university law degree.

To my mind, law schools should just concentrate on the academic aspect of legal education, and leave the professional training in the form of CBE to the Qualifying Board, Bar Council and the Judicial and Legal Services. Passing the CBE should not just be the pre-requisite for new entrants to the legal profession, but also for new recruits for the Judicial and Legal Services.

Pending the implementation of the CBE, the Qualifying Board should also periodically review the teaching and training of law graduates from our local universities. If the standard is not maintained, then the exemption from the CLP examination currently granted to their law graduates should be removed.

As regards foreign law graduates, the Qualifying Board has already reduced the number of approved British universities from 66 to just 30, and Australian and New Zealand law graduates are now required to sit and pass the CLP examination even if they have been admitted as barristers or solicitors in New Zealand or any state of Australia.

In this regard, the Qualifying Board should be commended for setting up in 2008 an evaluation team headed by the Chief Registrar of the Federal Court which comprised judges, officers from the Attorney General’s Chambers and senior members of the Malaysian Bar to determine if UUM and MMU law graduates should be exempted from the CLP examination. As a result, law graduates from the two universities are now required to undergo a training course on practical skills before they can become “qualified persons” under the LPA even though they are exempted from the CLP exam. This exemption will expire on April 15, and the team would return soon to the universities to undertake a review.

In fact, so much has already been said and written in the last 20 years about the urgent need of reforming our decrepit legal education, and we are already sorely lagging behind many Commonwealth countries in this respect. But regrettably, there appears to be a total lack of a sense of urgency on the part of the various stakeholders to come to grips with this unsatisfactory state of affairs which is certainly not in the public interest.

The writer is the head of the Bar Council’s evaluation team appointed by the Qualifying Board to assess the Bachelor of Law degree of UUM and MMU to determine if their graduates should be exempted from the CLP examination. You can follow him on Twitter at www.twitter.com/rogertankm.

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