Dignity

Once while waiting for my case management at Industrial Court (this was before E-Mention came in), I struck up a conversation with my opponent. He was a veteran in the Industrial Court circuit. He told me of a story about his former client who was dismissed from his senior managerial position for some reason. He engaged the veteran lawyer to fight on his behalf in the Industrial Court. All the while he kept the appearances of still being gainfully employed. Not a word he said to his wife on the matter. He would wake up every morning, put on his work attire, ate his breakfast, kissed his wife goodbye and drove off to work like he always did. Only now he drove to the nearest coffee shop or to the veteran’s law office to wait for latest update on his case.

Then when office hours are over, he would go back home, seemingly tired from the labours of the day. He managed to keep this up until his savings ran out upon which he asked the Veteran if the court matter is going take any longer. The veteran told the client; most likely (Industrial Matter like most contested matters, tend to take time unless parties reach settlement).

Later, the client’s wife informed the Veteran that the client had died. It was not known whether he ended his life or he died of broken heart. He could not bring himself to tell his wife that he had been unemployed the past few months. The Veteran ended the story with an emphasis on the dignity of employment and how the lack of it can break a Man. Well, most men anyway.

For a Man, his dignity is tied to three things. Can he start a family? Can he provide for the family and lastly can he protect the family. While the three are interrelated to one another, the first and the third is not the subject of this writing. The second one is.

We are long past the caveman period where the patriarch would be one who brought home the mammoth (or whatever the bush meat was then) but the idea remains the same, more or less throughout the ages. It is the Man’s job to be the provider for the family. Now, we live in a vulgar age. The age of naked greed and never-ending rush. The modern age. No longer it is viable for only the Man of the house to be the sole provider. The financial needs nowadays require for both Man and Woman to be employed, to make ends meet. To pay the bills. If your spouse is not working, then you are lucky. Precarious but lucky that the children would have the undivided love and attention from at least one of the parent. Precarious because, assuming the non-working parent is the wife, should anything happen to the father, then the wife, mother and children would be left without a breadwinner. The prudent thing is to have the wife/mother to be both at home and engaged in some sort of employment, in case if anything happens to the husband.

Being the provider is both a responsibility and source of pride. How a Man does that varies. So long as bellies are full, the lights are on and it came not the proceeds from a syubhah or outright haram sources, and the work was done diligently, I do not see why it matters the kind of work the Man does.

I cannot remember how the Latin went or who said it but was it not said that:

Whatever is rightly done, however humble, is noble.

I heard something similar in a Friday sermon some years ago in Ara Damansara. Usually Friday sermons are just variations of the same old things either preaching rewards and punishments of the Hereafter. But not that Friday. I remembered that nobody snoozed (as was the usual case) or the ones who were in the process of doing so sat up (myself included) because what we heard that day what not the ordinary JAIS approved standard text. I know this because no standard text would have references to Stephen Covey’s 7 Habits of Effective People.

The Khatib spoke not about articles of faith or the afterlife. Nor did he preach Hellfire and damnation to sinners and transgressors. He spoke of the earthly struggles of Men. About doing our best in whatever that is we do. He spoke about the dignity of labour. I think that made it relatable to the Men in attendance that Friday.

‘’Tak kira apa kerja Tuan-tuan, Kalau pemandu teksi, jadi pemandu teksi yang terbaik. Kalau pegawai bank, jadilah pegawai bank yang paling cemerlang. Kerana berbuat yang paling terbaik dalam pekerjaan itu adalah ibadah’’, I remembered that was how the Khatib ended his sermon. It was one of the best Friday sermon I have heard so far.

These days a Man’s dignity is tied to more than one job. Maybe one is a calling, the other a thing to keep the lights on and that is acceptable. But not for our profession. The Legal Profession. Ours is a noble profession. Noble, but out of touch I think.

In the parent act, Legal Profession Act 1976, the word dignity was not mentioned at all. In Legal Profession Act (Practice and Etiquette Rules) 1978, the word dignity only appeared twice, in Rule 16 and Rule 31. Whereas in the latest version of in the Rules and Rulings of the Bar Council, the word dignity was mentioned at least 16 times, even in mundane matters such as the colour one would use in the letterhead. It seems that when left to our own devices, we went to town but when it matters the most, we missed the mark entirely.

 

Gainfully Employed

Law school taught us all the ideals of legal practice.We take it as a given that once called to the Bar, the way to the top, whatever that is, stability, fame, riches and whatnot is within easy grasp. That would one of the first myths that would be busted within few weeks or not years of practicing. Even the Legal Profession Act assumes that all would be fine and dandy once you are worthy of having a practicing certificate.

Section 30 (1)(c) Legal Profession Act 1976 sets out simply that a lawyer ought not to be doing anything other than actual lawyering, or in its own wording:

 

‘’30 Disqualification for practising certificate

(1) No advocate and solicitor shall apply for a practising certificate -

…..

 

(c) if he is gainfully employed by any other person, firm or body in a capacity other than as an advocate and solicitor.’’

 

There are few reported cases on Section 30 Legal Profession Act 1976. Only two that is relevant to lawyers who wanted to do something else on the side. One in particular- a Court of Appeal decision which involves an accountant wanting to both practice as an accountant and lawyer (See: Syed Mubarak Syed Ahmad v. Majlis Peguam Malaysia [2000] 3 CLJ 659).

In coming to its decision, the Court of Appeal affirmed the High Court’s adoption of a very loose definition of the term gainfully employed albeit derived from the Oxford Concise Dictionary that is to say; so long as you provide a service and you receive payment for it, you are gainfully employed. The Court of Appeal declined to apply literal construction of Section 30, instead it opted for purposive construction of the said section as was adopted by High Court (See: Page 661 to 665 of the case)

The other case was a High Court decision over the issuance of practicing certificate to a suspended Policeman practicing as an advocate and solicitor (See: Chee Kuat Lin v. Majlis Peguam [2013] 1 CLJ 359). This case followed the Court of Appeal decision in Syed Mubarak. The point of similarity between Syed Mubarak and Chee Kuat Lin would be that in both cases the appellants already had a steady employment. One was an accountant, and the other was a suspended policeman on half-pay. Both wanted the best of both worlds, both for obvious reasons, failed in their attempt.

Going back to Syed Mubarak Syed Ahmad, I respectfully disagree with how the term gainfully employed is defined. Too simplistic it was in its approach. If one were to refer to a dictionary, then which dictionary would prevail over the rest? Case in point, here is a definition of gainfully employed according to Merriam Webster Online Dictionary:

 

‘’gainfully employed idiom

: provided with a job that pays wages or salary

Example: She hasn't been gainfully employed for a few years.’’

 

Perhaps one would take issue with my reference to an American dictionary, but the fact remains, the Americans seems to take gainful employment to mean a steady job as I do. Steady job = steady pay. That would only be logical.

Now, if one were to have a steady job with unsteady pay would not he or she then fall out of the gainfully employed category? What about if a practitioner is to engage in a spot of casual labour? No sir, my beef is not with the court. It is with the term gainfully employed. It was not clearly defined anywhere.

I looked for statutory definition of the term gainfully employed but found none. The best I can find was at Section 2 of the Employment Act 1955 for the definition of employer and employee. There was no definition of employment.

"employer" means any person who has entered into a contract of service to employ any other person as an employee and includes the agent, manager or factor of such first mentioned person, and the word "employ", with its grammatical variations and cognate expressions, shall be construed accordingly;

and

"employee" means any person or class of persons-

(a) included in any category in the First Schedule to the extent specified therein; or

(b) in respect of whom the Minister makes an order under subsection (3) or section 2A;’’

 

The First Schedule of the Employment Act 1955, like the above definition of employers and employees revolves around the existence of contract of services and wages. These two taken together would mean that the idea of employment would suggest a substantial degree of formality; it would have a contract of service and there would be wages. In short, there is regularity of payment and formality of contract. As such, it would be clear by now that the definition of gainful employment preferred by the Court of Appeal in Syed Mubarak Syed Ahmad was a not a precise definition.

However, to be fair to the Court of Appeal, the decision in Syed Mubarak Syed Ahmad dates back when gig economy was but a daydream, laptops were thick enough to stop bullets (Work from home? What manner of heresy is that?) and broadband internet was unheard of. Amazing developments have taken place since then. Considering all that, the time has come for the definition of gainfully employed in Section 30 LPA to be revisited to clarify its position with the current realities. These are not the days when single income from a single earner can build and sustain a family. This is a vulgar age. These are time where too many rats are racing towards the same, much diminished, mouldy cheese.

 

Dignity and Unsuitability

Section 30 of LPA 1976 is not the only legal provision that concerns lawyers doing things on the side. Rule 44 of the LPA (Practice & Etiquette Rules) 1978 provides that:

 

‘’Rule 44. Advocate and solicitor not to actively carry on any trade.

(a) An advocate and solicitor shall not actively carry on any trade which is declared by the Bar Council from time to time as unsuitable for an advocate and solicitor to engage in or be an active partner or a salaried officer in connection therewith.

(b) An advocate and solicitor shall not be a full-time salaried employee of any person, firm (other than advocate and solicitor or firm of advocates and solicitors) or corporation so long as he continues to practise and shall on taking up any such employment, intimate the fact to the Bar Council and take steps to cease to practise as an advocate and solicitor so long as he continues in such employment.’’

 

Further, the Bar Council in its capacity under Section 77 of the LPA came out with Rule 12 under the Rules and Rulings of Bar Council which states as follows:

 

12.01   Engagement in other business or trade

             (1) An Advocate and Solicitor who is a sole proprietor or a partner of a law firm may engage on a part-time basis in a business or trade that is in the opinion of the Bar Council not incompatible with the dignity of the legal profession.

(2) An Advocate and Solicitor who is a legal assistant may engage on a part- time basis in a business or trade that is in the opinion of the Bar Council not incompatible with the dignity of the legal profession, provided that it does not infringe his/her full-time employment by an Advocate and Solicitor or a firm of Advocates and Solicitors in accordance with section 30(1)(b) of the Act

From the two above provisions, it is clear that Sec 30 (1)(c) LPA is somewhat diluted in its application. What is clear from the two above is that legal practitioners can have a part time business or trade. The only yardstick is whether the said business or trade is an affront to the dignity of the profession and whether it is suitable for a lawyer.

Problem now is that I have yet to find any opinion or declaration by the Bar Council saying so and so trade or business is not suitable or incompatible with the dignity of the legal profession. Please point them out to me. I’d love to see that opinion or declaration. If there is none, then what does it take for an opinion or a declaration to be made by the Bar Council? For now it is safe to say that there is no clarity on the matter when the Bar Council is in the position to make things clear. Whether that lack of clarity is intended or not, it is not known.

Who decides what is and what is not an affront to the dignity of the profession? Even a brief poorly litigated or a commercial agreement shoddily drafted can be an insult to the dignity of the profession. Who can rightly decide what is suitable for a practitioner? The provisions that I have referred to above suggests that Bar Council has that power.  But, if it refuses or are unable to do so for whatever reason then I say let that power be delegated to the Members in the style and name of a committee.

Last time I checked there is no limit to the size of a committee under the LPA 1976 save that the total members of the said committee must at least comprise of 2/3 of Council Members. That should not be a problem since there is no set limit for elected members of the Council (See: Section 50 to 58 of LPA 1976). Let the committee then put the matter to the members at large for their consideration. But the important characteristic of the committee is that it must as realistically possible be comprised from Members that came from small to sole proprietorship firms; the ones first to feel the pangs of hunger and ones first to know the misery of unpaid bills.  

For all the trappings of equality of the Bar, not all lawyers are created equal. Sure, we all struggle as practitioners, but the magnitude of the struggle differs from one lawyer to another. A dry month for one practitioner can be a drought for another. If asked every lawyer wants to land that Whale of a case, every lawyer dreams of stability. Nobody wants to be doing something else other than lawyering (unless lawyering is your part time gig). Not every practitioner came from a big sized firm. Not every lawyer starts their practice with a car. But for some that is their reality. Life is hard. They can bitch and moan on how difficult to secure a brief, or they can do the sensible thing, having something else on the side while still hunting for the brief. Moonlighting. That is what some are doing. Some as lecturers, some sell insurances, some sell frozen food products, or acted as process server. Who is to say that all these are incompatible with the dignity of the profession when one of the most dignified thing a Man (or a woman) can do for his/her family is to provide for them.

It is because of this I say the best person or persons to decide what is dignified or suitable trade or business would be the members of the Bar themselves as a collective. The ideals of the Bar cannot exist in vacuum, nor can it be imposed without taking note with the facts on the ground, without taking into consideration what the Members went through because underneath that suit or bands or robe of its members there is a Man (or Woman) quietly wrestling with what Fate has dealt them.

Once I toyed with the idea of Universal Basic Income for lawyers but come to think of it, it smacks of charity or pity. Neither of which is palatable nor compatible with the dignity of the profession. Now, I say it is more dignified to allow the members of the Bar to earn other than practicing the Law, not all the time perhaps but part of the time. To keep the lights on or their families fed. It goes against the deeply ingrained idea that lawyers ought to earn by way of legal practice, but the reality (for some) seems to suggest otherwise. Just because we don’t live such reality does not give us the right to say it does not exist. Who are we to deny that reality?

Of course, a balance must be struck. A clear list must be drawn as what is prohibited and what is allowed and to be constantly updated but for God’s sake make the list easily available-lah for the members. The Bar is not a secret society, nor should it operate like one. It is not dignified of us to spout platitudes on fairness, equality and all that only let our members do things on the side in a hush-hush for want of clarity on part of the Bar.

If the Bar Council cannot or will not help the members of the Bar then at least make it clear how the Members can help themselves.