Dear all,

Link to v1:
http://forum.lowyat.net/topic/1602849

Lawyer's Corner is a one-stop centre on all things legal. Pose your legal questions here and I'll endeavour to reply to you soonest possible with some advice. Questions on any topics are welcomed - procedure on sale and purchase of property, loan documentation, tenancy, etc. Any other queries on other aspects and areas of the law are also welcomed.

Here are a few links for those who want to find out more about lawyers practising in West Malaysia as a member of the Malaysian Bar. It is important that you know that the lawyer who is handling your matter is fit and properly admitted as an Advocate & Solicitor of the High Court of Malaya and possesses a valid Practising Certificate for the year 2011.



Legal fees calculator - To calculate legal fees for SPA (and stamp duty on MOT/DOA):



To download a copy of the Solicitors' Remuneration Order 2005 - which details the scaled fees for SPA, loan documentation and tenancy approved by the Bar Council for lawyers to charge. This is very important so that you know how much your lawyer can bill you for such matters:
 SRO_2005.pdf ( 71.22k ) Number of downloads: 1311



If you want to know how to file an official complaint against an Advocate & Solicitor with the Disciplinary Board, go here :
http://www.asdb.org.my/procedures.html

Some simple and basic rules and regulations of this thread:
1. Please do not PM me for any legal advice, I do not give out any advice via PM. Please post your legal query at this thread so that everyone can benefit from an answer.

2. Please do not ask for any recommendations for law firms or lawyers here.

3. Please do not advertise, promote or solicit any legal services here. This is not a place for such matters.

4. Please do not ask any questions nor talk about discounts here. Discounts are illegal and prohibited by the Bar Council.

Cheers.



This post has been edited by dariofoo: Dec 6 2011, 11:32 PM

How To Prepare A POWERFUL Official Complaint Against A Lawyer

It is not easy to get a lawyer punished for negligence/misconduct. That’s the truth and to be honest, it is not that the complaint by the client has no merits. It is because the complaint was not filed properly and/or the Complainant (you) did not prepare yourself before going into battle against the lawyer in your bid for justice. That is why in this topic I will focus on guiding you to make a POWERFUL official complaint against a lawyer.

Introduction

A lot of people have the misconception that they can scare a lawyer by threatening to complain to Bar Council (BC). No lawyer will take such a threat seriously. Why? Because although the BC has an Intervention Dept, it has better things to worry about rather than seriously look into disciplinary issues. More often than not, the Intervention Dept would assist in cases where the law firm has been dissolved or lawyer struck off the rolls (disbarred). Such assistance would be to re-assign the file to another law firm to be completed.

It is the Advocate & Solicitor Disciplinary Board which has the power to hear and punish lawyers in relation to complaints by disgruntled clients. The Bar is self-regulatory, i.e. disciplinary proceedings are heard internally. This is also a stumbling block for Complainants – it’s bad enough to face a lawyer, but to face a panel made up of lawyers could be a really daunting and intimidating experience.

That is why planning and preparation is key in order for you be ready to file a POWERFUL complaint. Let’s get started.

1. IDENTIFY AND NARROW DOWN THE STRONG GROUNDS OF THE COMPLAINT AGAINST THE LAWYER.

This where you separate the wheat from the chaff, as the saying goes. Don’t waste your time lodging complaints for petty issues like “never pick up phone calls, never return calls, never send e-mail status update, staff so rude, staff don’t want to entertain my calls, never give me Photostat SPA.” Those are what the ASDB deem to be frivolous complaints which will be dismissed summarily without it even fixed for hearing. Only serious acts of negligence ought to be reported, such as the follows:
a) Sloppy, lacklustre and negligent work resulting in inordinate and delay in completion of transaction or abortion/cancellation of transaction;
b) Sloppy, lacklustre and negligent work resulting in inordinate and delay in completion of transaction, thus resulting in penalty by relevant authorities or parties (land office//LHDN);
c) Sloppy, lacklustre and negligent work resulting in inordinate and delay, thus resulting in late penalty interest (LPI) by developer or vendor;
d) Sloppy, lacklustre and negligent work resulting in inordinate and delay, thus resulting in Complainant to suffer a loss which can be quantified (eg loss of prospective subsequent sale of property);
e) Misuse or misappropriation of funds (eg stakeholder monies, balance purchase price);
f) Physical or verbal assault upon Complainant;
g) Acts or omissions (failure to act) which are totally against the best interest of the Complainant; and
h) Conflict of interest situations (eg collecting full scaled fees from both Vendor and Purchaser).

The above list is not exhaustive and are merely examples of the common cases. It would be better if the acts or omissions complained of resulted in some form of loss which can be quantified or calculated.

Losses as such mental distress, trauma, anger, frustration, lack/loss of sleep are hard to be substantiated unless supported by medical reports. As such, if the only loss you claim is for ‘mental loss’, make sure that it is/was serious enough until you had to seek psychiatric treatment. Otherwise, do not waste your time to lodge a complaint.

2. COLLECT DOCUMENTARY EVIDENCE OF THE LAWYER’S ACTS OR OMISSIONS TO SHOW THAT HE WAS NEGLIGENT

This is a very important step which many Complainants fail to do, thus leading to their complaints being dismissed. Here’s how to avoid such unfortunate situation:
a) If you had to pay LPI for a delay which you are sure is the lawyer’s fault, compile and collect whatever documents you have first;
b) If the lawyer puts the blame on the bank/other party/developer/other party’s lawyer – ask your lawyer to provide you with a COMPLETE CHRONOLOGY OF EVENTS (‘Chrono’) from the start until the end.

• VERY IMPORTANT: Make this request in writing – either by email or by letter given by hand and acknowledged with the law firm’s stamp and dated. Give the lawyer five (5) working days to hand it over to you, either by email/fax or self-collection. Don’t let them post it to you as it will take ages, or even never reach.

• VERY IMPORTANT: At this stage, do not indicate or threaten the lawyer that you will sue or file a complaint. Just act as if you are concerned with the delay, and play along. If the lawyer blames the bank, just say that you might want to raise it with the bank manager. If the vendor is blamed, say that you are considering claiming indemnity from the vendor. NEVER let the lawyer have a clue that you are going after him. Otherwise, his guard will go up and he will do whatever necessary to avoid such a pitfall, even to the extent of faking/manufacturing false evidence which you may not know is false.

c) From the Chrono, look at the source of the delay. Remember, this is just what the lawyer is telling you, and may not be the whole truth. If you have any doubts with regard to any detail, ask him to provide you with a letter from the party involved duly acknowledged with the date (in layman’s term – chop received). Better still, ask for the complete set of correspondence. If cost is an issue, tell the lawyer that you will pay photocopying charges. Use same process as in para above.

d) Once you have all the documents, photopcopy another set and arrange them in order according to the Chrono. Include correspondence from your side as well, i.e emails/letters to and from the lawyer to you. Arrange and incorporate it together. You are now set for the next stage.

3. PREPARE YOUR OFFICIAL LETTER OF COMPLAINT TO THE ASDB

It is very important to know that you have to comply with the requirements set by the ASDB when preparing and submitting your letter of complaint.

Here’s the link to their website which states the requirements:
http://www.asdb.org.my/procedures.html

Basically, the information required are:
a) Typewritten letter of complaint that contains:-
i) Name of the Complainant (as in Identity Card/Passport)
ii) Full particulars of the complaint
iii) Signature of the Complainant
iv) Full address of the Complainant
v) Full name of the Advocate & Solicitor responsible for the subject matter of the complaint at the material time and the Firm he/she was practising at
vi) Name and address of the present solicitor acting for the Complainant in the complaint (if any)
b) A statutory declaration in support of the said complaint
c) The Complainant's identity card /passport number
d) Supporting documents
e) Fee for processing - non refundable,currently in the sum of RM100.00 by way of a cheque/postal order made payable to "BAR COUNCIL-DISCIPLINE FUND". Payment by cash can only be made directly to the Secretariat for which an official receipt must be asked for and obtained.

Now, you can prepare the letter of complaint yourself or you can engage a lawyer to do it for you. Remember one important thing – not all lawyers do cases of complaints against their peers. Look for a lawyer who has experience in doing so. Ask around from family and friends for recommendations. If they cannot recommend, surely they can ask their lawyer to recommend another lawyer who does such cases.

What are the type of cases in which you SHOULD appoint a lawyer to represent you?
a) If you complaint is a serious and complicated matter involving a lot of documents;
b) If you are of the opinion that the Respondent (the lawyer whom you are complaining against) is a tough nut who might intimidate or repress you during the hearing;
c) If your personality is such that you fear that you might not manage to get your case presented properly (eg introvert, timid, poor public speaking or presentation skills).

For other types of cases, I see no reason why you can’t represent yourself.

Here’s a sample of an actual POWERFUL letter of complaint to the ASDB. You can use this as a guideline. As you can see, the chronology is given very precisely and supported by photocopies of the relevant documents.

Sample Complaint.PDF
 Sample_Complaint_ASDB.pdf ( 307.7k ) Number of downloads: 374


4. WAIT FOR NEWS ON THE STATUS OF YOUR COMPLAINT FROM THE ASDB

After you have submitted your letter, it is a waiting game.


It may take months before the complaint is looked into. If you acted in person, you can call in once a month to find out the status. If you have a lawyer, get your lawyer to follow up. If you receive a copy of a letter addressed to the Respondent asking for an explanation, give yourself a pat on the back as you have crossed the first stage. This means that the ASDB considers that there are some merits in your complaint and is now asking for the Respondent to issue a reply. After that, you will be given a chance to rebut the Respondent’s Letter of Explanation. Then, it will be determined by the ASDB whether the complaint truly has merit to the extent of setting up a Disciplinary Committee (DC) to conduct a hearing into the matter.

If a DC is set up, give yourself another pat on the back as you have crossed another very important stage. Consider 60% of the battle won already.

• NOTE: The actual sample above went up to the stage of a DC being set up. At this stage, the Complainants filed a civil suit in the civil Courts seeking monetary compensation. This was a tactical move to turn the screw on the lawyer even more. Within a month, the Respondent directly called the Complainants (bypassed the Complainants’ lawyer) and directly paid them a certain amount of compensation to withdraw the complaint and civil suit.

If a DC is set up and a hearing date fixed, you can attend in person (together with your witnesses, if any) and if you have a lawyer, he will attend as well to address the DC. A DC panel is comprised of at least 3 persons, a chairperson who is an Advocate & Solicitor, and two other members who are not lawyers but who are professionals, eg accountants, architects, school headmasters, etc. These members are appointed to provide a layman’s perspective into the matter. More often than not, however, these members do not query much and merely follow what the Chairperson says.

You can opt to give a oral evidence or stand by what you have prepared in your Letter of Complaint. The Respondent (or the Respondent’s lawyer) will then cross-examine you. After that, if you have witnesses, they will give evidence. This is followed by cross-examination as well. Then the process is repeated with the Respondent and his witnesses, if any. You can cross-examine him, or use your Letter of Reply to answer him. To use your letter may be better if you act in person, as you may not know how to cross-examine him. The DC will then adjourn the matter and fix a decision.

The decision would be communicated by way of letter. It can dismiss the complaint, or find the Respondent liable for misconduct and impose a punishment where necessary – a reprimand, caution, fine, order for restitution, suspension or in the worst case – order for the Respondent to be struck off the Rolls (disbarred). A lawyer who has been struck off the rolls can no longer practise. His career as an Advocate & Solicitor would be over.

You can then either make a claim to the BC Compensation Fund, if you had suffered some monetary loss or in cases where there was misappropriation of monies. You can alternatively file a civil suit to recover damages from the Respondent directly. For a civil suit, kindly appoint a LITIGATION lawyer to do so on your behalf as it is not prudent to act in person for such matters.

That is all I can share. If you follow the steps from the start, you can have a POWERFUL complaint against your lawyer and if you play your cards right, the lawyer will back off and make an offer to compensate you without the hassle of going through a hearing or a Court trial. Remember that preparation and patience in collecting evidence is the key to ensure the success of your complaint.

I wish you all the best.



This post has been edited by dariofoo: Jul 17 2012, 01:36 PM

What to look for when appointing a lawyer for your SPA/Loan Documentation transaction

Appointing a lawyer is a serious matter and is something which one must plan for the long term. It is not different from choosing a doctor or tailor. The point is – you will be using this lawyer for other matters in the future, just like how one would tend to go to the same clinic or tailor. That is how the service industry is. However, those who follow this forum would notice that there are many who encounter problems with lawyers and this leads to many problems, including delays (thus causing late penalty interest, loss of prospective income through rentals) and to the extreme – abortion of the SPA.

The following are a few pointers which I can share in order to guide you better:

1. Always FIRST ask for recommendations from family members and close friends

Do you notice that some lawyers act for two generations of a family? He was the father’s lawyer and now act in matters involving the son as well. However, not everyone is as lucky to encounter such a lawyer who can provide continuous good service. Having said so, the FIRST place to get information is from family and friends. Why? Because those folks have personal experience with the said lawyer AND would not have any vested interest for the recommendation. If your parents cannot recommend one, ask your uncle and aunts. Ask your elder siblings or cousins. Ask your closest friends whose advice you can trust. Surely you would hit the mark.

If you still hit a wall, ask from your property agent (if any) or mortgage consultant. They would surely have more than one recommendation for you. More often than not, these individuals MAY be given a referral fee by the lawyer. That is why unlike family and friends, they MAY have vested interests in the recommendation. Having said so, an experienced real estate agent or mortgage consultant would have collaborated with their respective law firm – as such, it would still be a viable option to be considered.


2. Do your research on the lawyer and law firm BEFORE you confirm the appointment

Do not decide merely on the recommendation. If it is through a party who has a vested interest in the referral, it would be wise to find out more about the firm. Don’t take it for granted! Many folks seem to think the following:

- “It’s just a simple SPA transaction. What’s the big deal”
- “It’s just standard. All SPA lawyers are the same”

The above simple-minded attitude is what lands clients in trouble as it always appear simple, until there is a problem. That is when the experience, capability and aptitude of the lawyer or law firm comes into the picture.

A few simple ways to do research on the lawyer or law firm:
- go to the Malaysian Bar website and search
http://www.malaysianbar.org.my/find_a_lawyer.html
http://www.malaysianbar.org.my/find_a_law_firm.html

You can gather some basic info there. Most importantly, names which are listed there are confirmed to possess a valid Practising Certificate (license) to act on your behalf.

- Go to the firm’s website. Try to gather information as to the history, track record and experience of the lawyers in the firm.

- Request for a Company/Corporate Profile to get more information if there is no website or if the website does not contain much information. A reputable and respected firm will always be more than willing to e-mail you their Company/Corporate Profile.

3. Ask for a Quotation/Invoice/Note of Charges BEFORE you confirm the appointment.

Having done your research and being satisfied with the law firm, do not put pen to paper and sign anything yet. Always ask for a DETAILED and COMPLETE Invoice/Note of Charges for services to be rendered by the firm. Do not accept basic or general quotes. Do not settle for a lawyer or clerk telling you, “roughly RMxxxx ” on the phone.

A respectable and reputable firm will always be more than willing to spend some time to prepare it for you, even though there is the risk of you taking it and ‘shopping’ around for other better offers. That is the risk they bear in the service industry. If they are good enough and if their quotation is reasonable and honest, the client will not hesitate to appoint them. So should you. If you have any queries, ASK the law firm for explanation. If they are honest, they will explain and detail it to you. They can also undertake to provide receipts to substantiate their claim.

If they are dismissive, rude or unaccommodating to your requests, just walk away and get another quote. In the Klang Valley, there are approximately 2,000 legal firms and more than half are involved in conveyance of property. As such, there is no shortage of firms for you to approach.

Please note that legal fees for conveyance of property is fixed - for SPA and loan documentation. Please refer to the Solicitors’ Remuneration Order 2005 (SRO 2005). That is the definitive guide. Even stamp duty and service tax is fixed. The only one which should differ between firms are the disbursements (expenses). Be wary of quotes where the disbursements are marked up significantly.


4. Cheap/low legal fees may not necessarily equate to good service.

When comparing quotes for fees, most people would go for the lowest price. This is not a surprise. It is a simple rule of economics. It is the reason why more people shop at Tesco and not at Cold Storage. However, just like some of the products on offer at those outlets, we can’t say that the quality is the same for both, can we? Although discounts are prohibited by the Bar Council, it is common knowledge that lawyers still give discounts. Do not be tempted by huge discounts given by certain law firms, as it MAY be due to one of the following reasons:

- the law firm is desperate for clients and are slashing prices in a bid to get more clients. Simple question – would a law firm with a reputable clientele and good service record be desperate for clients to the extent of slashing fees? You be the judge.

- the law firm is HUGE and works on the premises of economics of scale – i.e. huge workloads of files for a huge number of clerks thus collecting files and fees in bulk. Now, there is nothing wrong in appointing a big firm, as they didn’t become big overnight. They must’ve done something right. However, one complaint against big firms is that their clerks are assigned with too many files. Secondly, high turnover of staff. Although a SPA may take 3-4 months to complete, once a staff resigns, files would be reallocated to another staff and this would cause a delay.

In worst cases, the files would not be allocated fast enough and would be left idle until the clients fume in anger at the delay and lack of attention. If the firm has a good track record and is recommended, then go for it. One major advantage of big firms is that they are more organised and have machinery which can move faster than an average-sized firm, i.e. designated departments/staff for photocopying, drafting, liasing with banks/land office, despatch clerks. All these are important and ensures that files are processed and closed within time.

- the law firm is SMALL and does not require high overheads, thus allowing them to slash prices. Now, there is nothing wrong to appoint a small firm. Perhaps they are still new and yet to expand. That does not mean that the firm is unreliable. However, your background research would be handy. Does the firm have enough staff (or any staff at all)? Would the lawyer give his personal attention to the file? All these reassurances are important if it is a small firm. One major factor of having a small firm to handle your matter is the PERSONAL TOUCH. Imagine the whole firm knowing exactly who you are and what you file is about. You can’t get that with a big firm. It would (normally) be easier to obtain status updates of the file from either the clerk or the lawyer (or even the lawyer-cum-clerk, if it is truly a one-man show). Some clients are just in it for the personal touch and service.

Remember, a lawyer worth his salt would never undercharge his client just to seal the deal. If he is confident that he can perform to the level expected by the client, he would command that amount of fees to be paid. If you are confident in the lawyer’s capabilities, you would surely not hesitate to pay fees where fees are due. Of course, not everyone is like that. Some just like it cheap, irrespective of any other factors. At the end of the day, it is your personal preference as to what you want, and how much you are willing to pay for it.


5. Know the clerk AND lawyer in charge of your file.

This is very important. Don’t accept documents sent to your home/office by a despatch clerk for your signature (unless you have no other choice). Try to attend at the lawyer’s office. See the surroundings. Ask to see the lawyer in charge. If it is a big firm, perhaps only a clerk would be appointed at first. See that clerk. Get a name and get his/her direct line. If there is a lawyer who is personally handling your case, ask for a name card. If it is a partner/sole proprietor, politely ask for his/her handphone number. Of course, do not abuse the information. Incessant and calls at the wrong hours ought not be done. There must be some discretion and reasonableness on the part of the client as well.

If you follow all the above advice, I am sure that your conveyancing transaction would be a good experience, barring any unforeseen circumstances of course. Nothing beats having a good lawyer whom you can trust and have a good night’s sleep, knowing that your file is moving and that things are in the good hands of your appointed counsel. Do not be complacent and take things lightly when appointing a lawyer. A bit of research and hindsight will save you a lot of trouble in the future. After this, you can appoint this same lawyer for your other matters in the future as well. Everybody needs a lawyer whom one can trust in the long term.

I wish you all the best in finding yours.

This post has been edited by dariofoo: Jun 30 2012, 09:32 PM

Reserved

Reserved

This post has been edited by dariofoo: May 14 2012, 07:12 PM

Dario, imho there is too much focus on legal fees for SPA and not much info on legal fees for loans. Will be good if this aspect is highlighted so that newbies are aware that when they buy prop and if they take a bank loan (zero entry cost) they have to consider legal fees for the loan which is a % of the loan taken. All these adds up to those xtras they need to be aware of when buying 1st prop.

Also, more importantly, what happens when there is dispute with the lawyers. Tips on dos and donts when dealing with lawyers.

I can start off by giving one advice: if you are hiring a lawyer, be prudent and call up the bar council to check if the lawyer has been issued a warning or fine in the past before. Simple enquiries will save you loads of hassle in the future.

Cheers.

Yes, I do plan to put up draft note of charges for loan doc as well. Good point on zero entry cost cases - legal fees are factored in the loan itself. Lawyer sends quotation direct to bank and bank puts the total figure in the letter of offer. Newbie buyer has no clue whether he is overcharged or not.

Thanks for the input

Yes perhaps I can expand the link to the A&S Discip Board and share some tips on how to prepare for an official complaint. Good idea.

Dos and donts when dealing with lawyers? Lol. I wouldn't dare!


Have you tried it,bro? As in calling up BC direct to find out a lawyer's discip record?

What I know is that if you want to get some info on a particular lawyer [for example his BC number, his official address, etc], you need to pay some search fees. I doubt if a lawyer's disciplinary record can be obtained through a phone call to BC, but do feel free to prove me wrong if you have tried it.

I have included a link where one can check whether one's lawyer has been found guilty in disciplinary proceedings ("hall of shame"). But for that, one would have to read through it manually.

Thanks for the input

This post has been edited by dariofoo: Dec 7 2011, 01:10 AM

Why is there a necessary to pay for the CKHT2 (income tax) form to the lawyer when it is just simple fill up form ?

Must the seller and buyer pay different fees for this form ?

Is it easy to sue seller if seller sell to many buyers ? (assume no caveat lodged)



This post has been edited by jalsrix: Dec 7 2011, 09:32 AM

Bro, gratz on V2

yes i wish to seek answer on how complicated will it be to seller to fill-up and submit the CKHT2 for RPGT as i do understand lawyers charge between RM 200 to RM 400 excluding incidental expenses

There's no necessity for anything when it comes to SPA. You can act on your own at any time. You can always opt to submit it yourself.

Vendor pays RM300/pax. Purchaser pays RM200/pax.

Sue for return of deposit paid - of course. Sue for specific performance to enforce the SPA and compel vendor to sell to you - you need to be the first party who entered into the SPA with the vendor. The subsequent purported SPAs executed with other purchasers are void and is of no effect as the vendor cannot execute a second SPA to assign his rights when he had already done so in the first SPA.

How complicated is very subjective. What may be complicated for one person may not be complicated for another. But as I had stated in the above reply, you have the right to inform the lawyer that you want to submit it on your own. I'm sure there would be no objection from the lawyer.

Dario, you are right in that search fees are required. ANd you are also right in that their disciplinary record is not available for all to see, save for statutorily mandated notices of fines and penalities. My experience is from the PoV of a member of the bar. May be different.

However, the Bar would not have issues with complying with requests to search through public records on your behalf. For example, if you have difficulty navigating the website due to language difficulties, they would assist.

Wow, V2 already, Congrats! Thank you and others who help answer some of my question last time. : )

1. If we submit income tax form ourselves, do we still need to pay rm 300/200 to the govt ? Or is it completely free ?

2. Who is going to pay for the legal fee to sue if buyer wins the case ? The seller or buyer ?

Dear Dario, I got a question about stamp duty, because I'm first house purchaser, I suppose to have 50% discount on stamp duty right? but lawyer insist me to pay full amount before discount to her so that she only go apply for the 50% off to me, she said not everyone can successfully apply for 50% discount....so I wan ask you is that true? I need to pay her the full amount before I get the discount?

Nonsense! You only pay stamp duty when the valuation come back from govt.



This post has been edited by jalsrix: Dec 7 2011, 11:16 PM