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Lawyer’s ethics in the real world

Contributors

One writer describes as ‘moderns’ as,

 

Pagans in the ancient world could at best exhibit splendid vices, given that they did not worship the true God, but at least they were trying to live virtuously in terms of shared narrative framework. Their modern successors, having lost their grip on the concept of virtue and being content to live in a society that treats commitments to large-scale narratives as a private affair, are simply vicious.??? (Jeffrey Stout, ‘Democracy and Tradition’)

 

We are pagans endeavouring to love virtuous lives but we succumb to vices and our narratives collapses under pressure.

Legal ethics are easy to give lectures on. Turn to our ethics Code, line up the propositions and tick the boxes for correct answers.

Unfortunately for us, the real world does not function in such a manner. Client’s problems and factual – legal issues do not come in easy packages.

We are confronted with decision making in a world fraught with deep contestations and conflicts.

Our moral and ethical formation is quite often not equal to the task and challenges. We find ourselves drawn into vices, which if we reflected deeply upon, we would have been shocked that we participated in the transaction.

We can cheat, we can mislead (the Court or a regulator) and we slide, all too easily into accommodating with the ethos of the day.

I watched the film ‘The Taking of Pelham 123’ recently. Walter Garber (played by Denzel Washington) was unwittingly drawn into a hostage negotiation. Camonetti, NYPD hostage expert advised Garber to resist being drawn into the terrorists’ world. Camonetti’s warning: “Do not be sucked in as it is difficult to exit.??? Yes, we can be sucked in and loose our neutrality.

We too (though less dramatically) are drawn into our client’s world. His or her moral universe intersects with ours.

The ex-judge Datuk Mahadev Shanker, who was of course a very senior and successful counsel, left me with a wise maxim: “A client starts off as a friend and he becomes your enemy.???

In the real world of practice, decisions are made which takes advantage of gaps in the system.

The interpretation of rules and regulations is a severely contested enterprise. Each have their viewpoints entrenched from the interpreter’s own horizon of meaning and interests. Very often, the myth of objectivity is paraded out that the construction taken is the valid and legitimate position.

The world of business

The business client wants a solution to a regulation. He wants to circumvent the proscriptions. It affects and impacts his sphere of liberty and property rights. He chaffs at the restrictions. So we devise for the client the solution and the arguments.

That is a valid and justifiable work. That is what we are paid for and we revel in. The technique of evaluation and counsel. The opinion and submission writing that advocates on behalf of client’s position and interests.

So we proffer our skills. We research our subject and draw from it our proposition of law and analysis.

What cannot do is to be intellectually dishonest. We should draw a line on that.

There will be pressures to compromise and accommodate but to live with integrity we must ask, “Is that truly a supportable analysis? Have we done our homework with vigour and scholarly objectivity????

Early in my career I learnt from the late John Skrine that what clients’ want to know is the law as we see it, not as what a bureaucrat wants it to be. So often we take too short a cut. We make a call and ascertain from some civil servant the view and we take that as the law. This is unacceptable. By all means ascertain the position taken by the regulator as to what makes for the regulator’s practice but this does NOT mean we abdicate our research and stance.

An Italian jurist once observed that if we all behave like sheep we beget a nation of wolves over us.

However we have also to be frank and truthful. We cannot be in complicity in misleading disclosures nor aid and abet an offence. We are insiders and must be scrupulous in not abusing such a position where we are privy to confidential and often price sensitive information.

Clients are entitled to our dispassionate and objective advice based on “affective neutrality,??? over the issues.

This does not mean that we cannot be passionate in our advocacy but that passion is bridled by discipline thought and analysis.

We deploy our principles with passion but shaped by pragmatism. We should be careful that ours is not an easy accommodation but an engagement in constructing a world that is habitable and which ethos forwards moral integrity.

Whilst advancing the merits of market society we are watchful that good governance and fiduciary duties abound and intertwined in a complex bundle.

The arena of legal contestations

Lord Brougham remarked (one of the more famous in legal ethics literature) that a lawyer “by sacred duty which he owes his client, knows, in the discharge of that office but one person in the world – that client and none other,??? so that a lawyer must continue to press his client’s interests “by all expedient means??? and “reckless of the consequences???, and even though (as in case of Lord Brougham’s own defence of Queen Caroline’s divorce case), he should involve his country in confusion for his client’s protection 1.

Though extravagant in its rhetoric, this dictum underscores that a robust view of advocacy is that an advocate is strongly partisan on behalf of his client and this even if it entails costs to society’s interests.

There will be difficult choices to make. We are approached to represent a client not favoured by powers that be. It may hit our pockets and our fee billings. It may be pro bono. And furthermore, there will be mumblings that you, as beneficiary of the system, ought not to take a stance [for] our client which is inimical to the power elite’s interests.

Recollecting the impeachment of Supreme Court Judges in 1988, I would like to cite the sterling example of many firms (including some elite firms) that undertook the arduous task of representing the judges.

Public law causes are varied and challenging. The Bar is often accused of political partisanship. Unfairly in the main.

Edmund Burke’s adage is that evil will flourish if good men (and women) do nothing. The Bar does do something and it irks the powers that be.

Yet we must be careful not to allow self-righteousness and pride to give rise to forms of professional hubris. We dwell in ambiguous and ambivalent times and we need to be vigilant so has not to fall into self-deceit and anger that clouds our judgement. If we represent strongly partisan clients, we need to maintain that our loyalty to client’s goals does not mean we owe no fidelity to law’s integrity and to truth.

Sabah CM court case

I recollect at the height of battle of the Chief Ministers of Sabah (the Tun Mustapha vs. Dato Pairin saga) that there were occasions which the ethicists classify as situation ethics. Boundary situations which call for alertness and decision making.

We were led by Lester QC where after one cross examination of State Attorney Nicholas Fung, we asked Nicholas about the veracity of his recollection. He said he had a diary of some sort. But he cautioned us about requesting for it as it may not be all that helpful. What ought we to do? Should we have produced the diary or memo? We left the evidence as was recollected without the diary. In an adversarial system, it can be urged oft times that the burden falls onto the opposing party to prove the contrary.

In a follow-up case when the TYT (Sabah Yang diPertua) was made a subject to an injunction to prevent the TYT from dissolving the state assembly, we had to draw sup an affidavit. Do we disclose the whole circumstance of the execution of the dissolution or omit some aspects of it?

We asserted that it was done in good faith. For the TYT left Sabah to attend Rulers Conference and the CM Pairin had the prescience that there will be an attempt to undermine the State government by procuring the crossing of party alliances without subjecting themselves to fresh electoral mandates.

So TYT willingly executed the dissolution of assembly form for CM Pairin to use, if CM so desires. There is congruence in the decision and the dissolution was consistent in that it was not procured or pressured from the TYT. So in our affidavit, we asserted that circumstances were all valid leading to dissolution. Was that right?

In retrospect, I believe so even though there may been ambiguity in doing so.

At the chambers hearing, we experienced the contestations that elided into omission of reading parts of a case authority. High Court Australia decision of Gough Whitlam’s dismissal of PM of Australia was cited as authority. Barwick CJ’s decision (which was minority) was relied upon by Tun Mustapha counsels but this was not expressly pointed out to presiding judge, Abu Mansor J. Fortunately, we pressed forward to the judge’s attention that it was a minority decision and secured the High Court’s holding that. Though counsel for Mustapha ably cited the Whitlam’s case, it was unfortunate that Barwick’s decision was the minority.

At the second impeachment tribunal of five Supreme Court judges, I was privileged to be one of the lawyers appointed to defend the Supreme Court judges. It was startling to me when the then Attorney-General in one of his side remarks quoted (or misquoted) the Shakespearean adjuration, “kill all lawyers???. I remember vividly the reaction of one of the tribunal members Justice P. Coomaraswamy recoiling bodily from that snide remark.

What prompted the then AG who holds the office of the first legal officer having “the right of audience in, and shall take precedence over any other person appearing before, any court or tribunal in the Federation??? (Article 145 of Federal constitution) to make such a remark and misappropriating Shakespeare in the process? As a young lawyer in practice, the thought came across me that the AG office is a lawyer’s office, so presumably he was not having a self-referential remark but directing the same to us lawyers1 .

If the primary legal officer of land has such a dim view of lawyers, then we are caught at cross purposes in our wider duties to safeguard our democratic institutions.

More recently the actions of the state legal adviser of Perak earned the ruling of the Court of Appeal’s decision that his actions in not acting for the then Speaker of Perak and resisting the application for Speaker Sivakumar getting his own legal representation was wrong.

This example underscores some of these tensions [on] lawyers in public service and those on the private Bar. It also dramatizes the problems faced when there has been a constitutional change of government but the former bureaucracy still adheres to loyalty for the former government and chooses to misapprehend or construe the law in a manner inconsistent with that taken during the earlier government.2

French philosopher Simone Weil in a poignant note,

 

“As soon as, behind the country, there stands the Old State, justice is far away. In the modern form of patriotism, justice hasn’t much of a part to play, and above all nothing is said which might encourage any relationship between justice and patriotism to be drawn.??? (‘The Need for Roots’)

 

Conclusion

And so we have to leave many other things unspoken. There are many predicaments and choices which all of you have to make as you unfold the narrative of your lives. What chapter will be written? When you come to the epilogue, will you be grateful and humbled that you have had a chance to serve and to take part in the contestations of a still honourable profession.

(Lecture given on Dec 10, 2009 for the Malaysian Bar to pupils.)

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