Majlis Peguam v Dato Sri Dr. Muhammad Shafee Abdullah [2016] 5 MLJ 572

MAJLIS PEGUAM v DATO SRI DR. MUHAMMAD SHAFEE ABDULLAH [2016] 5 MLJ 572

Federal Court (Putrajaya)

Infringement of Legal Profession Act 1976 and Legal Profession (Publicity) Rules 2001

1.     The Appellant (‘the Plaintiff’) initially lodged a complaint to the Disciplinary Board (‘DB’) against the Respondent (‘the Defendant’) for breaching the Legal Profession Act 1976 (the LPA 1976) and Legal Profession (Publicity) Rules 2001 (the 2001 Rules).

2.     The complaint was made based on two articles of interview published by The Star newspaper.

3.     In the first article, the impugned remarks stated the Respondent as “a high-profile lawyer” and “a top lawyer”.  The Respondent argued that these statements amounted to breach of Rule 5(1)(b)(vi) of the Rules 2001, which prohibited a solicitor from providing information that would construe as inducement for professional means.

4.     In the second article, the Appellant contended that the Respondent’s statements such as “I can tell you that whenever I am a defence counsel…” amounted to laudatory remarks and it did not fall within the ambit of approved information provided under Rule 2 of the Rules 2001.

5.     Pertaining to the complaint, the Disciplinary Committee (‘DC’) conducted an inquiry and concluded that the Defendant had publicised himself and his firm in breach of the LPA 1976 and the Rules 2001.  The Respondent was fined for an amount of RM5,000.00.

6.     The Respondent made an appeal to the High Court which subsequently dismissed as the learned High Court judge held that the two articles contained laudatory remarks which infringed the LPA 1976 and the Rules 2001.

7.     Dissatisfied with the decision of the High Court, the Respondent appealed to the Court of Appeal.

8.     The Court of Appeal reversed the decision of the High Court, allowing the appeal made by the Respondent.

9.     It was held that the statement published in the two articles could not be described as laudatory remarks as the words were the journalist’s own remarks which reflected the journalist’s personal opinion towards the Defendant.  Hence, the Respondent did not breach Rule 5 of the 2001 Rules.

10.  The Appellant then made the current appeal to Federal Court.

1.     Whether the Respondent had publicised himself and his firm which amounts to infringement under the LPA 1976 and the 2001 Rules.

1.     Rule 5(1)(b) of the 2001 Rules provides the limitation of publicity for an advocate and solicitor.  It provides that an advocate and solicitor shall not state anything that would be construed as inducement.

2.     The Federal Court agreed with the finding made by the Court of Appeal regarding the articles which described the Respondent as ‘a high profile’ and ‘a top lawyer’.  Such statements in the article were the journalist’s personal view and remarks.

3.     The rationale behind the findings are that there was no evidence to show that the Respondent wanted to publicise his practice or firm as the remarks were published from the journalist’s own view.

4.     The Respondent had no control over the journalist’s personal view.

5.     As for the second article, it was held that the statement “I can tell you that whenever I am a defence counsel” made by the Respondent was not laudatory as it was a respond made pertinent to questions from the journalist.

6.     The Court also added that the statement must be read as a whole and not be taken out of context.

7.     It is trite law that an advocate and solicitor is not allowed to publicise himself or his firm of solicitors.  However, Rule 2 of the 2001 Rules allows publicity but with conditions that such form of publicity shall only contained approved information as listed under the rule.

8.     Therefore, the references made in the said articles included as approved information provided under Rule 2(m) and 2(g) of the 2001 Rules namely-

(a) 2(m) the area of practice engaged in by the firm or by the Advocate and Solicitor or Advocates and Solicitors practising in the firm

(b) 2(g) historical data of the firm or its predecessor in title;

9.     In short, the Federal Court found that the Respondent had not breach any of the LPA 1976 and the Rules 2001 as the impugned statement in the two articles were made in respect to the journalist’s personal remarks and the journalist’s questions.

10.  It is also held that the statements were not laudatory within the ambit of Rule 5 of the 2001 Rules.  Thus, the Respondent did not publicise himself or his firm of solicitors.

11.  In addition, the Federal Court emphasised that the statements were taken in an interview which was not solicited by the Respondent himself.  The articles were published by another party.  Therefore, looking at the entire context of the articles, the statement made by the Respondent did not fall within the provision of approved information as per the 2001 Rules.

1.      An advocate and solicitor is bound to the legal ethics governed under the Legal Profession Act 1976 and the Legal Profession (Publicity) Rules 2001.

2.      A solicitor is not allowed to publicize or make known to the public through any form of advertisement subject to exceptions under the list of approved information provided under Rule 2 of the 2001 Rules.

3.      Among the approved information are as follows; name of the firm, firm’s address, the firm’s area of practice and more as listed under Rule 2 of the 2001 Rules.

4.     Rule 5 of the 2001 Rules also prohibits an advocate and solicitor from publicising or stating anything that would construe inducement.

5.      In this instance case, the statements or remarks which have been argued as infringing the LPA 1976 and the Rules 2001 were an excerpt from an interview with the Respondent.

6.      The statement in issue must be read as a whole and not in partial to determine whether such statement amount to a breach of LPA 1976 and the Rules 2001.

7.      It is clear that as the statements published in the first article was the journalist’s personal view towards the Respondent, therefore, those were not amount to inducement which infringe Rule 5 of the 2001 Rules.

8.        As for the second article, both the Court of Appeal and Federal Court agreed that the statements made by the Respondent was a reply to the journalist’s questions.  Thus, such statements should not be taken partially as it is important to be read as a whole.  The statements made were not in breach of the Rules 2001.

9.    In summary, the Respondent did not publicize or made laudatory remarks as the statements in the two articles were of the journalist’s personal views and response to the journalist’s questions.  Therefore, there was no breach or infringement of the LPA 1976 and the Rules 2001 made by the Respondent.