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Alert | Do Not Give Guarantees

A complaint was lodged by the family member of an accused where a Member had given a guarantee that the accused would be released from prison and acquitted of the criminal charge.
It was discovered that the Member has been conducting his dealings with the family, including explaining his scope of work via WhatsApp — this has been his practice with other clients too.  In addition to that, the Member solicited a guarantee in exchange for a sum of money.
The Advocates and Solicitors Disciplinary Board (“ASDB”) adopted the Disciplinary Committee’s (“DC”) recommendation for an adverse order pursuant to the DC’s unanimous finding that the “guarantee” was to release the accused from prison and that there was a promise to return the money in the event the accused is not released.
Although there was no written agreement, the WhatsApp messages were proof that a “guarantee” was given by the Member in consideration for a sum of money.
Compliance with the Legal Profession Act 1976 and the Rules and Rulings of the Bar Council
Claims for any related civil suits made against Members who have done similar misconduct will not be covered by the Malaysian Bar Professional Indemnity Insurance Scheme[1].  Engaging in similar activities will tarnish one’s reputation, and lead to disciplinary proceedings, resulting in being issued adverse orders by ASDB.
Members are hereby reminded of sections 94(3)(m) and 116 of the Legal Profession Act 1976 (“LPA”), as stated below.
Section 94(3)Power of Disciplinary Board to strike off the Roll, suspend for misconduct, etc.
(3) For the purposes of this Part, “misconduct” means conduct or omission to act in Malaysia or elsewhere by an advocate and solicitor in a professional capacity or otherwise which amounts to grave impropriety and includes—
(m) the charging, in the absence of a written agreement, in respect of professional services rendered to a client, of fees of costs which are grossly excessive in all the circumstances;

Section 116 — Advocate and solicitor may enter agreement for costing contentious business
116. (1) Subject to any written law, an advocate and solicitor may make an agreement in writing with his client respecting the amount and manner of payment for the whole or any part of his costs in respect of contentious business done or to be done by such advocate and solicitor, either by a gross sum, or otherwise, and either at the same rate or at a greater or lesser rate than the rate at which he would otherwise be entitled to be remunerated.
(2) Every such agreement shall be signed by the client and shall be subject to this Part. 

Exercise caution when dealing with clients to avoid engaging in any activity that could be perceived as dishonest or unethical.  Members should uphold the dignity of the legal profession and maintain the trust and confidence of their clients in accordance with Rule 31 of the Legal Profession (Practice and Etiquette) Rules 1978 which provides that “every advocate and solicitor shall at all times uphold the dignity and high standing of his profession.”
Here are some best practices that Members could adopt in their legal practices:
  1. Do not give guarantees to clients or third parties.
  2. Manage your client's expectations on the outcome of their matter.
  3. Ensure that the fee, scope of work, and objectives of representation are confirmed in writing.
  4. Prepare a letter of engagement or retainer that must be signed by the client.
  5. Do not use WhatsApp or other messaging applications as the main medium for communication with clients, especially when giving professional advice, explaining your scope of work or informing of legal fees.