In this article, Fahri Azzat meditates on the practise of law and the role of honour in the practise of law, its economics, and ethical and moral repercussions. As the article is long, we have broken it up into three parts. The comments for the first two parts will be switched off though comments will be allowed on the third and final instalment so that interested readers can respond after having read the piece in its entirety. The full uninterrupted text will be re-published on the weekend. The subtitle of the article is, “Contemplating the Moral and Ethical Dimensions of a Lawyer”.
The practice of law used to be thought of as a noble profession. Lawyers were known and respected for their honesty, trust, courage, responsibility, diligence, respectfulness, meticulousness, a reasonable degree of intelligence, sense of justice, reasonableness and possessed an understanding of the human (and their failings). These qualities are not unreasonable to demand of a lawyer and all add up to that noble quality of integrity. In fact, I think them to be the absolute minimum one can and should expect from one’s lawyer. The reason for this is self-evident – a high degree of trust is reposed in lawyers. We hold money and important documents for clients; we receive and act on highly confidential information and instructions; we advise clients about their lives, liberties and properties; we prosecute or defend cases in a manner to ensure that justice can be done; we argue important issues of law before judges who may make vastly important and influential decisions that could change both the legal, social, financial and cultural landscape of a nation. The work of lawyers is therefore important and necessary not simply vis-a-vis the client but society at large.
When considered thus, it becomes clear that there are two dimensions to a lawyer; the internal, which comprise of those qualities mentioned earlier; and the external, which is the legal requirement to become one i.e. at least the age of 18, qualifications from a recognized university, passing one’s professional exams, completing their pupilage, etc.
Regretfully, excessive emphasis has been placed on fulfilling the external dimension to the detriment of the internal dimension and thus the legal profession, the general public and the image and general reputation of lawyers. The lack of attention, nurture and development of a proper internal dimension to lawyers has with good reason led to the widespread belief and expectation that the profession of law is suited only for the dishonest if not outright fraudulent, the shrewd, the cunning, the business minded or the corrupt, if not all the above. This is simply because a profession of disrepute would more likely attract like minded or similarly oriented people.
Both dimensions must be satisfied before that person can be truly called and referred to as a lawyer, though the external dimension is clearly the lesser of the two dimensions and is rapidly becoming a purely formal one for the following reasons. Firstly, the abilities demanded of a person in obtaining a Bachelor of Laws (LLB) these days is so low that just about any Ali, Bala or Chong without even a rudimentary form of common sense or diligence can qualify for it. My short experience and observations at the largest email-based forum in Malaysia known as “Lawyers Talk”, which comprises of about 8000+ lawyers, confirms this.
Secondly, an LLB merely indicates that we are sufficiently skilled in answering questions in an examination paper to a sufficient or satisfactory degree as evaluated by academics that, at best, have merely a passing interest in the undergraduates’ ethical and moral orientation. When I consider undergraduate modules in both local and foreign universities, what stands out is a glaring lack of attempt to apprise, if not educate an undergraduate on the ethical and moral considerations of a lawyer. In philosophy, there is an entire module devoted to the consideration of ethics. I should have thought the same equally applicable to the study of law. But all an LLB does is assess our retention and assessment of legal knowledge and practices. And after all, one can cheat or plagiarize in obtaining the degree. So an LLB degree is no indication of whether that person has a suitable internal dimension to become a lawyer.
Thirdly, qualifying or even excelling at an LLB is no guarantee or even a reasonable indication that that person would excel in real life, or in legal practise. Our own legal profession is replete with examples of those who did poorly in university but then have excelled at practice and vice versa.
The intellectual and ethical standards demanded of an undergraduate of an LLB degree is so low that it has become a purely formal qualification with no reasonable indication of any quality whatsoever on the graduates’ intellectual, ethical or moral character. This I believe is what happens when we and the university share the expectation of higher education for qualification instead of education. Though more can be said on this, to elaborate further would distract from the theme of this article, and so it shall be left for another time.
There may be some attempt to argue that the pupilage is a time within which that internal dimension can be developed if not salvaged. This is why there is a two day ethics course during one’s pupilage which ends with a written exam that one can actually fail. However, most people who commence their pupilage would be in their 20’s, long after their internal dimension has been structured, if not set (though hopefully not permanently). I think this to be a waste of time and demonstrative of a complete misunderstanding and an outright mockery of ethics itself. It is the former because the course and exam cannot and does not shape their ethical and moral orientation any more. It is the latter because if one fails the ethical test, one can repeat it and eventually pass. Ethics has been reduced to a meaningless shallow test instead of a quality of character (because the questions merely revolve around one’s knowledge of the Legal Profession (Practice and Etiquette) Rules 1972 instead of testing a pupil’s response when confronted with a moral dilemma). We say X is an ethical person because of his conduct not because he has taken a test. We say X is ethical because he possesses the proper internal dimension, not because he has completed his pupilage.