The absence of honour in our legal profession is reflected in our own legal practise. These days a ‘letter of confirmation’ is issued for the most petty of matters such as mentioning on behalf of another (see my article ‘Of Mentions and Mentioning on Behalf‘ for a fuller explanation of this notion), the informing of the next hearing or mention date, or the amendments to a few words in a draft agreement. I used to be taken aback and disappointed that a lawyer would confirm my agreement to mention a case on his behalf for a mere mention, now I’m just disappointed. Lawyers also fail to realize the economic and ecological wastage due to the lack of honour and the negative consequential effects it breeds amongst lawyers.
Let us take as an example a situation where X calls up Y to mention case K and obtain another mention date or to fix a hearing date. If there was honour between them, Y would take down all the details (case number, date, reason for next date/free dates) and carry out the same. Once this was done he would call X up and inform him of the next date, etc. and that would be the end of the matter for that transaction.
In a situation without honour, after the phone call, X (or his clerk) would spend time drafting a letter to confirm the mention, faxing and/or posting it over, make a copy for his file and sometimes even carbon copy the letter to his client and troubling them over such unnecessary matters (must you really trouble them over such petty, unnecessary details pertaining to their case?). Once Y (or his clerk) had obtained the date, he too would spend time drafting a letter informing the next date, etc. basically doing the exact same thing that X did.
Clearly the same thing is accomplished in both examples but one more tediously and expensively so. I will not go into the loathsome practise of some lawyers that charge exorbitant allowances for attending to a mention or rant about some lawyers whose bulk of practise is made up of just such ministrations. That will be reserved for another occasion. The ecological wastage is clear – paper, postage and electricity are wasted on such a petty transaction. The economic waste is less obvious – there is the opportunity cost of the lawyer and/or clerk drafting the letter; there is the cost of the paper (letter and envelope), for the postage and fax transmission, for electricity used; there is waste of effort in filing the letter and faxed copy properly; the client is distracted by such petty matters. Later on during taxation, these letters will also form part of the party and party cost and become payable. Now imagine this repeated many, many times. The cost of all this is borne by the client. So in truth, a client’s case becomes more expensive when there is a lack of honour amongst lawyers. This cost is also widely out of proportion to the transaction i.e. getting a simple mention date.
This also has a wider economic cost to society because its’ ecological, economic and human resources are wasted on an unproductive if not inefficient transaction. In fact, the word ‘honour’ has been insidiously retired from our ordinary conversation. No one speaks of ‘honouring a cheque’ anymore. They speak of whether it ‘clears’ or not. Even when the word is used, it is more often used in the negative sense – ‘dishonour’ a cheque, imputing negativity to the concept of ‘honour’. The word ‘celebrate’ has gradually replaced the word ‘honour’ even for occasions that are dedicated to remembrance or appreciation of a person (Mother and Father’s day, for example) or event (Merdeka, Labour Day, etc.), more properly carried out by way of humble and quiet reflection than in the maelstrom of glamour, splendour and pomp.
In summary, a lack of honour not only makes cases more expensive for clients, more tedious for lawyers but encourages distrust amongst lawyers and breeds fragmentation into groups at the Bar. Further, it deepens the modern impression of lawyers as scoundrels that are not to be trusted who would sell their mother in a heartbeat to win a case, clinch a deal, etc. In short the absence of honour in our profession does not just do lawyers a disservice as it desecrates our profession; it does every body else a disservice too.
This is why the advocacy for, implementation and inculcating of the return of the concept of ‘honour’ in our profession, not as mere lip service but as a way of life and practise as a lawyer, cannot be more urgent and important. It is not enough to have it printed on the page, pamphlet, plaque or firm website. It must course through the very veins, dwell in the breast and so fill the mind of each and every lawyer for honour is not seen by the naked eye, it is felt by the naked heart and sensitive mind. Honour can only be practiced personally and not vicariously because at some point, honour will demand sacrifice. And honour is found in sacrificing one’s self, not someone else. This is vividly illustrated in Dicken’s ‘A Tale of Two Cities’ when Sydney Carton, the lawyer, swapped places with his client, Charles DeMornay, and so sacrificed himself. Or when Cicero spoke out eloquently against Mark Anthony at the Senate even as armed guards stood around him ready to kill on instruction (for his magnificent Philippic see Penguin’s Great Ideas series volume 25 titled ‘An Attack on an Enemy of Freedom’).
So clearly the first step in reforming the lawyer, the Bar and the image of the lawyer to the public at large is the restoration of the idea of the honourable lawyer and honour as a way of practise and life. Though honour may be found in reasonable profit, it is completely absent in excessive profit. Honour would be found in meaningful and properly remunerative work, not regularly in the wee hours of the morning at the office. In short, a reformation will be borne in adherence to honour, not to only profit.
But how can we begin this process? I think we can start by first establishing what it means to be honourable. We can take our cue from the qualities I mentioned as comprising the proper internal dimension of a lawyer. To be honourable is to be honest, trustworthy, courageous, responsible, diligent, meticulous, just, and reasonable, and to respect each person as a human being (unless of course that person is unworthy of respect) and let us refer to them as ‘principles’ – the Principles of Honour or of Integrity, or whatever we like.
Secondly, the important thing is to commit to it absolutely, not conditionally. Lawyers ought to make a private affirmation and oath to themselves everyday to uphold these principles and practise them whenever the occasion arises. If this is done, lawyers would be committed to serving justice instead of their vanity or just money.
The absence of honour has allowed materialism to entrench itself as a guiding conduct and way of practise. The lack of honour has resulted in the rise of hourly billing and the demand of materialistic law firms (and they usually tend to be the big and/or aggressive ones) to treat their lawyers as mere income generators or work slaves accounting for every single second of their time thereby ensuring that every moment spent in the practise of law is not for the furtherance of justice or to bask in its pleasure but the size of the bonus the management bestow upon themselves. This has led to lawyers prostituting themselves for work, whoring themselves to win cases, and doing other unspeakable deeds that decent human beings wouldn’t even consider. Without honour in law, all we are left with in practise is money. And if that is all that is left, then the practise of law is little more than common prostitution. In fact, it sits lower than the common prostitute that hawks herself on the street – after all, she only sells her body; the lawyer with no honour sells his mind, his reputation, his very conscience and his entire family heritage for mere money.
The absence of honour has provoked the surreal if not offensive debate of whether the practise of law is a mere business. Of course it is a business, but it is not just any common business. It is not a business in the vulgar sense of the word where the bottom line is ‘everything’. The business of law is one where the ‘bottom line’ (the money) is but one line. It is but one of many factors for consideration and it must always weigh against the demands, or to use the terminology, ‘bottom line’ of honour. If doing a particular transaction would result in a lawyer’s honour being ‘in the red’ then he is under a duty to reject it. If carrying out that instruction would result in a manifest injustice, he must reject it. The amount offered by way of a professional fee can or should never ever measure up to the worth of a lawyer’s honour (and it doesn’t matter whether he is famous or not, in a big or small practise). If the firm must make less or that lawyer live a little more frugally for a while to preserve its or his honour then so be it. If he feels unable to live up to that honour then I beg him if he has a modicum of respect for the profession of law to relinquish the practise of law and take up some other profession that makes no such ethical or moral demands on the practitioners of its professions – like a banker or a politician. The thoroughly materialistic tend to forget that the lack of a price tag does not make something worthless. On the contrary, it makes it priceless. And that should be the worth of a lawyer’s honour.
If we as lawyers now start to make an honest concerted effort to live and practise in honour, then there is hope for better times. We must not and cannot wait for rules or legislation to be drafted to demand it of us. It must begin now. Not when it is convenient to do so. We must demand it for and of ourselves. It cannot be left for others to do. We cannot wait for the Attorney General or our supposed leaders of the Bar to initiate it. It must begin now with you and me. Our efforts must not end at dusk. It must continue tomorrow and for everyday thereafter. It must continue until we can so completely rely and depend upon one another as lawyers. And each of us has a duty to preserve not just our honour as lawyers but the profession. A single lawyer is enough to shame an entire profession. And we have much shame to address and many wounds to heal before we can be once again known and respected as an honourable profession. We owe this not just to our fellow citizens and country, we owe it most of all to ourselves.
Dear Fahri,
Thank you for sharing your thoughts, and the interesting points you have raised.
Perhaps I need to elaborate and expand a little on two points which I did not properly clarify at the beginning, that characterise my easy-going approach.
First is the difficulty of defining the concept. I am not abandoning that difficulty and removing the potential dynamism for growth and development of a concept. In fact conceptual analysis has always been a big challenge, and must necessarily tie up with human experiences, one of which is the practice of law.
I was positing a view that to understand an abstraction like honour, we somehow have the opportunity to see these things happening before our eyes while being engaged in legal practice, yet we may find difficulty in defining it. Take love for instance, it defies a complete definition, yet when it happens we can point confidently and say that is love. Conversely we can also point a finger confidently to say something is not love, eventhough it apparently gives a very strong impression that it is. The same justification I was trying to argue for honour. People act from a variety of motives, and intuitive language has a part, and what seems real may not be real.
The second point I would like to clarify and expand a little is "lawyers are supposed to lead opinion." It is not intended to follow the line that I lead the opinion of others when it comes to people and society and I surrender my own opinion that I hold myself. You would know that there are those who are underprivileged, down-trodden, deprieved and unable for want of proper training and education to articulate issues properly that affect their lot. In modern society, failure to do that could prove costly. You would know that there are also those who are rich, affluent and powerful and hence possess the ability to better skills and articulation, an overriding edge so to speak.
What I am saying is in such a context the lawyer has a place of honour here. In the likes of Cicero, he is the master communicator for the attainment of justice and fairplay against all forms of tyranny and oppression. The lawyer has the ability to communicate to a pauper right up to the emperor in defence of what is right or wrong, in defence of honour. The opinion or belief of the lawyer may differ from that held by others yet he lead their opinion if it is in defence of fundamental rights or when others are stripped of their dignity.
Freedom of religion can illustrate this a little. Just because I do not believe in a certain religion or even if a certain religion is considered heterodox in the opinion of others does not prevent me as a matter of honour to lead opinion of a group who is of the opinion that their fundamental rights to religious freedom are threathened.
There is therefore, in such a case no subordinating or surrendering the lawyer's opinion to that of another.
Hope this explanation clears the clouds a bit.
Have a pleasant day ahead.
Warm regards
Roger
Dear Janet,
Thank you for your comments, which I am grateful. I was just presenting an alternative view to see if the question of friendship at the Bar those days was environmentally induced, though I do not question the sincerity of those brothers and sisters lawyers who place a high premium on honour. I was just exploring the other possible reasons for the predicaments of the legal profesion now, and the huge gap between idealism and actual realities I am talking about.
I agree with you that we should stop the rot and have a paradigm shift. Which necessarily means meaningful actions from the lawyers themselves. In fact the Bar these days,and mainly through the Committees, is becoming more proactive in this and other respects that you have mentioned.
I have observed changes and openness in the last few years in terms of greater empowerment and new realisation in the form of many initiatives undertaken by lawyers that instil a sense of honour in the work they are doing. For example, human rights endeavours have turned multifold and and along with it public service and awareness.
But personally I still feel this sort of empowerment is still not enough. We should have more lawyers on board.
Have a good day.
Warm regards
Roger Chan
Dear Roger,
Thank you for your generous feedback and permit me to address some of the issues that you raised implicitly.
With respect to the first paragraph, I feel you have raised the issue of the difficulty in defining and so applying the concept of honour. Difficulty, for me, is but one facet of challenge. Though the former can do without the latter, it does not work vice versa. And the idea of difficulty, also tends to suggest its opposite – ease, or insidiously – convenience, or in economic terms – efficient. These words however are not synonymous though closely related. And does honour have any value if it is easy, or convenient, or worse, efficient?
Though I have tried to define it in some measure, I would be flattering myself to think I can define it. In fact, I wonder whether any of us can spell it or define it so entirely or completely. And even if we could, do we really want that? I would not. To define it so thoroughly and completely would be to kill the ambiguity of dynamism and development in the concept. The concept of honour is one that all of us have a part in defining first for ourselves and then for society through our actions and words. The actual definition of honour is carried out by deed, not words though they are a helpful guide. And honour, in being authentic, must necessarily be difficult. When there is difficulty, there is effort, and where there is effort, there is value. If honour were so easy, we could buy it off the shelf, only to throw it away later.
Your third and fourth paragraph, is the view I often hear by more senior members of the Bar – things were better then because there were less of us. To a certain extent, I agree. Quality will always be the first sacrificed in the path of quantity. But we cannot go back to what it was unless we start being more strict and restricting the amount of lawyers entering the profession every year and making sure those that stay in the profession are punished swiftly for any misdeeds. The paradigm we have to live and thrive under is that of the many.
And do you realize that the end of all those fine relationships with people ended with the efficiency of legal research and legal sources wrought by technology? Technology connects but makes for insufficient meaningful engagement. And technology does things quicker, faster, more efficiently, but it is also mighty cold. The plastic keyboard will never replace the touch and feel of human skin. The webcam will not let you feel the other's presence. Your laptop cannot hug you. You can kiss the screen but it won't kiss you back although it can probably simulate it visually. Sometimes I ask myself, just how much technology do we want in our practise, or even our life (notwithstanding that I am an IPhone wielding gadget and technology geek)?
And inevitably, the money question. It's a judgment call at the end of the day. I cannot disagree that the wage level for legal assistants has been dismal over the years and certainly needs to be revised upwards, but that cannot be the defining element for the practise of law. That is the trouble I find with some of the newer lawyer these days – their goal is to boast about having the biggest pay check or a senior position or senior lawyers whom they hang out with – not about developing their abilities. Or those that act like they know everything after barely a handful of years in practise. But ultimately, I feel that if someone cannot feel the joys of the profession (or cannot enjoy suffering its miseries, like I have come to) then move on. Don't stay, be poor and bitter and then disgrace the rest of us.
Finally, as for those 'lawyers they are supposed to lead opinion', I find that it does not pay to count on others to speak your mind, and as the saying goes, if you want something done right, you have to do it yourself. So forget about them Roger, and instead focus on shaping and developing that opinion you hold. I think that opinions are to be formed after reasonable and meaningful consideration for the consideration, criticism and/or agreement of others. I loathe the idea of 'opinion leaders' as if they have some monopoly over thought or opinions. And I have little respect for those who accept an opinion without first considering and understanding why they agree/disagree with an opinion.
Dear Roger Chan,
I am indeed pleased to note your comments therein. It is speaking of the truth that we will begin to make the amends…
…….and nothing wrong with that… like I've said many time, we throw out things that doesn't work and keep/modify what works… in this context.
It is indeed a shame that the "ROT" has already set in, and very much regretted. Nonetheless, let that not be the trend for next set of Lawyers, which are now in the making, and by that I mean, law students in colleges/universities right now.
There must be a shift in paradigm now…. for only there would be hope for the next set of generation of new kind of lawyers with better 'breeding' and eventually the right candidates for the Judiciary and if the country is working in tandem to upholding the rule of SEPARATION OF POWERS… there is hope for Malaysia… its a long shot, but for the sake of the nation, whom are now 'lost lambs', we all must persevere, for your children's future.
It is vital for holding true the virtue of "SEPARATION OF POWERS" … for it is then the rule of "IMPARTIALITY" would give the nation a different perspective as to HONOR, INTEGRITY AND RESPECT for oneself, the Judicial process, legal system and Government.
God Willing…
Regards,
Janetlee
Dear Fahri,
Honour is just another abstract device for members of a group to think about how they should conduct themselves. Its a concept that is ill-defined, and need to be precise and clear especially in a professional fraternity. While it is very difficult to situationalise a list for us to fall back on, the constant practice of law invariably brings out those moments when we are confronted with questions of honour and there and then have to deal with it. It is in this context of realism, that we can point our finger to say what is honour and what is not. Walk for Justice and the Royal Commission on those infamous tapes are specific instances that jolt our memories..it's about honour, though words are insufficient to describe their full significance.
If we look at the profession today, there is also a huge gap between the idealism of honour and the actual realities we see on the ground. We need to understand why this is so and I will analyse from a different angle, to add on what you have said.
I would like to offer a number of causes that bring about this sad state of affairs and their repercussions. One such cause is it is environmentally-induced, rather than something internalised, much as we would like to believe though I do not deny the fact that some good-soul lawyers do have the internal component. You see, in the days before the photocopier, you needed to physically bring the volumes of MLJs into the courtroom to show the Bench the authorities. If you have a plaintiff, defendant, and judge in a simple case scenario, you need to make a least 3 lawyer-friends, assuming you do not own any MLJs. You can ill-afford to mistrust others and vice-versa because you need each others help. Of course if you have more plaintiffs or defendants or judges for a case you naturally need to make more than 3 friends. In part, and by way of necessity, it explains the relative cordiality at the Bar then.
But come the copier, printers, lap-tops and advances of technology, relationship at the Bar has steadily become less and less personal, because we don't really need to make that many friends. So you have more lawyers keeping to themselves, and long-held traditions like honour become something very individual despite the ethics classes and exams.
Then you have the question of numbers that contribute to honour thinning away as a virtue. Last time the Bar was relatively small and manageable, and practically everyone knows everyone. So an indiscretion by one practitioner who has wronged another could be informally dealt with in an informal atmosphere, when just about many mutual friends usually then attend a bar or private function, and the spirit of give and take, of forgive and forget normally erase whatever hard feelings there may be. Sometimes problems of honour are settled over a round of beer between two contending lawyers who had differences and there happened to be mutual lawyer-friends in the group. Some chiding and subtle but friendly intervention from other members of the Bar will normally end with clinking of glasses and the matter settled. That's just how close the brotherhood was then. Now we have more than 8,000 lawyers in the Klang valley alone, and hardly anyone knows who are their brothers and sisters of the law, and it makes that concept of honour a little difficult to nurture.
I accept the fact that our profession is not a 'common business' but the bread and butter issue has a hand in this honour question. When I was a legal assistant in 1991, a partner of a firm who took a breather from his busy schedule in the comfort of a library where I was brushing up on some research, asked me my remuneration I was then drawing. I told him, RM1800 per month gross. His eye-balls bulged, and he told me back in 1985 he was drawing RM2500 a month as an LA.
Now its about 25 years later, and I still hear rumblings about 1st year LAs getting about RM2000 per month when cost of living have multiplied many folds. There is no honour, assuming if what I heard has a ring of truth, in this kind of pay of a new entrant to the profession. It is not surprising that I hear at eateries and canteens from new members of the Bar discussing and comparing payouts of the different law firms leaving them with hardly time to address larger crucial issues affecting people and society in general, for which as lawyers they are supposed to lead opinion.
This explains, I think the general shift from questions of honour to areas more socio-economic, as can be seen in a vast majority of lawyers who do not attend Bar functions, EGM, AGM and the like.
Honour in the profession is also about speaking out on issues that affects us and society badly, so that falsehood, oppression, and repression are not left to fester, so that a healthy, independent and viable Bar will be the order of the day. Yet I hear occasionally pupils and LAs have to get permission from their employers which may not necessarily be granted. Doesn't look good…
Thanks!
Fahri,
Your article, in three (3) parts, I sincerely hope would strike a shiver in the spine of all partaking the study of the law….. from colleges/universities in Malaysia, Pupils undergoing pupillage, younger generation of lawyers and senior lawyers and lastly, Judges.
We have a situation where "THE BLIND IS LEADING THE BLIND".. that has also encompassed the realm of the Federal Constitution. That's the 1st thing a lawyer must know because the Judiciary is one of the arm of the SEPARATION OF POWERS.
We need to have a shift of paradigm here and throw out things that doesn't work anymore and keep/modify those programs that work for bringing back HONOR, INTEGRITY & RESPECT to the LEGAL FRATENITY, JUDICIARY, COURT ADMINISTRATION.
Its time to start it RIGHT from the moment your children starts to read… yes, that's how far back we all need to change another generation of great leaders with heart of gold, honor, sincerity and respect for oneself and the country.
Import a subject like "Civic" classes into school curriculum, inject legal ethics subject into law colleges, universities, give Masters express powers to reject a pupil from called to Bar if he/she is of the view that his/her pupil is incompetent subject to giving the pupil a right to heard for a legal review on why he cannot be called to Bar under the purview of the Bar Council, and so on…. we need a "THINK TANK" structure to iron out and strategize these issues staring at our faces which we all know that if we don't something it now, we would be the laughing stock of our clients, the general public and the government.
We have a very serious problem… if nothing drastic is done now…
Regards,
Janetlee
p/s now I know why the other professions garner more respectability than the legal profession.
Mahathir during his tenure as P.M.had made it so easy for Malay to become quarter cooked lawyers and many other non important degrees.
How about doctors and medical specialists ? Mahathir could only arrange to pass quarter cooked doctors in Malaysian Universities, he was unable to pass these Specialists and had to send delegations to beg the Specialists to come back to Malaysia, with lots of lots of incentives,to serve in Malaysia. These were students who were not even given places in local medical schools in the first place but are now Specialists that Malaysia is so badly in need of.
Who are the real losers ?
To day there are 30 over thousands lawyers and most of them as a result of their poor training, as law students, are unable to either find a job or so incompetent that they do not know even how to prepare a simple piece of legal document. Some of these are known to have committed robbery or have become thieves.
Who is responsible for all these, Mahathir, in his quick fix did this ! He just wanted to show the Malays during his tenure he has managed to have Malays , regardless of its quality, as many as possible passed as lawyers and non important professions.
Who are the real losers ? Ask Mahathir !
I want to say "Let's do it!" then skepticism but then there may still be hope. Like you said, it starts with you and me.