by Wan Zafran Pawancheek
Published July 16, 2019
In Malaysia, lawyers who have been ‘called to the Bar’ are qualified to practice in any area of law.
This does not mean that they are automatically competent to practice all of them.
This distinction - of qualification versus competency - is extremely important, yet often lost on people who have never before dealt with lawyers. It does not help either that lawyers - unlike doctors - have no formal ‘specialties’ or ‘subspecialties’ that clients can identify or classify them by; some lawyers do not even advertise their inclinations clearly sometimes.
This brief article is thus meant to assist those who wish to understand the general differences between lawyers.
See this chart, which concerns the Malaysian context:
Lawyers are first classified by whether they go to court or don’t. This is the traditional principal criteria of ‘specialty’.
The lawyers who do appear in court are known as ‘advocates’, litigators’ or ‘counsel’. These are the professionals who act for you in contentious legal disputes.
The lawyers who do not appear in court are called ‘solicitors’. These are the professionals you want for:
‘transactional’ legal work - e.g. contracts/agreements, stakeholding arrangements, probate and letters of administration, corporate advisory work, the setting up of trusts, companies, the sale and purchase of immovable properties, etc;
general/specific legal advice not related to disputes/courts, and all ‘non-contentious’ legal work.
Not all lawyers partake in (or enjoy) contentious work. In fact, only a subset of lawyers feature as active litigators. It often surprises people when they find out that the majority of lawyers don’t go to court.
Some lawyers do only court work; some lawyers do only non-court work. Few lawyers do both (or have the time to do both productively), so most lawyers specialize in one area and team up with other lawyers in ‘legal firms’ to offer services comprising both specialties.
In court matters, lawyers typically ‘subspecialize’ by their focus on civil litigation, criminal defence litigation, Syarie work, or the like.
For instance, consider the civil and criminal domains/jurisdictions. These are separate ‘subspecialties’ of sorts, as they involve many differences: strategic approach, applicable substantive laws, points of procedure (e.g. the Rules of Court vis-à-vis the Criminal Procedure Code), rules of evidence, binding legal authorities, and necessary cause papers. The differences between both areas (beyond the fundamentals) can be very marked, especially in complex cases or when difficult subject matters are involved.
In their respective subspecialties, lawyers will then have their ‘areas of practice’:
Some lawyers focus on specific areas of interest – e.g. ‘family lawyers’, who take on personal disputes related to marriages, divorce and custody, or ‘corporate litigators’, who do contentious work related to corporations and companies such as shareholder disputes, directors’ deadlock scenarios, oppression/derivative actions, etc.
Some lawyers are ‘general practitioners’ - i.e. they practise in various areas of law. They may work with or bring in outside counsel as ‘specialists’ when it comes to areas of law that they do not practice or are not familiar with. This is not unlike the relationship between general practitioner doctors and specialists.
A few lawyers have niche practices - in areas such as admiralty (ships/shipping), insurance litigation, environmental law, and so on.
Most court-faring lawyers do not dabble among the ‘subspecialties’; they specialize in one or the other.
As a point specific to Malaysia, some lawyers are also qualified to practise Syariah law. They are styled and known as ‘Syarie lawyers’. These lawyers are Muslims, have exclusive rights of audience in the Syariah courts, and are involved when dealing with Muslims or Muslim-related matters (e.g. faraid - inheritance, hadanah - custody, harta sepencarian - matrimonial property). They are sometimes advocates and solicitors of the civil courts too, but need not be so. The Syarie qualification is a separate one.
When appearing in court, a lawyer is formally known as an ‘advocate’.
Despite the title of ‘advocate’, advocates address each other and are addressed by the courts as ‘counsel’. (This difference may be confusing, but is not surprising. People call physicians ‘doctors’, but doctors among themselves use other descriptive titles, such as ‘medical officer’, ‘consultant’, ‘houseman’, and the like.)
In Malaysia, the word ‘lawyer’ mainly refers to the full title of ‘advocate and solicitor’. We do not have distinguishing concepts such as ‘solicitor-advocate’ or ‘barrister’. (Yes, a select and colourful few advocates market themselves as ‘barristers’, taking purchase after the English term and reasoning themselves so by their exclusive focus on pure court work. But it is generally deemed pretentious to style oneself as a ‘barrister’, as we historically have had no distinct class of ‘barristers’ in Malaysia, and as Malaysian lawyers generally go beyond what barristers in England do in our fused capacity, such as advising/conducting litigation for clients directly.)
Lawyers who don’t go to court are always ‘solicitors’, while lawyers who go to court can be both ‘advocates’ and ‘solicitors’. The latter use of the term ‘solicitor’ is in specific reference to one’s capacity/roles when not in court, such as when writing letters, meeting clients, accepting documents, etc.
This point may not be known to a layperson, or an end client, but in Malaysia, a qualified lawyer - no matter how inexperienced - can appear in court at any time as an advocate.
This is because all practising and qualified lawyers in Malaysia have a ‘right of audience’ - i.e the right to appear on behalf of their clients before the courts of justice.
Appearance without the requisite competency or experience may lead to negligence or malpractice.
As a matter of prudence, always ask for your lawyer’s specialty/subspecialty before retaining him, and seek another lawyer if he is unable to take conduct of your matter.