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.

How low can you go?

Friday last week I went to KL Court with two ends in mind, getting the cd of court recording for an upcoming criminal appeal and to see how the touts ply their trade. Well, i went to court for the CRT. The tout-watching, that was my friend’s idea. This is an ongoing topic we had been discussing on and off again. From his pupillage until he has finally opened up his own law firm. On how a legal practitioner would get their files and how low some are willing to go to get them.

He was of the opinion that there is no bottom to it, no red line if one is to survive. I get it, I understood that. That was my position previously. In law school there was no class or course entitled Getting Your Files 101 or Marketing 302. There was no explanation given why the business aspect of the Law is not discussed. If it was given I probably slept in that class or it was grossly insufficient. Most of us would leave law school full of ideas and all that cal but with not a clue on how to generate fees to pay your bills.

So our education on getting bills paid via legal practice truly began during pupillage. If you are lucky you would end up with a pupil master who are not only concerned with your development of your legal muscle but also your appreciation of what exalted oddity the legal profession is. Neither a business nor a charity but a bit of both. The lessons would be on how not to get your files and how you ought to treat you clients. But that still does not answer wholly the question on how does one get all those juicy files.

Some prefer to unshackle themselves from questions of ethics and lived up to Nelson’s (Lord Horatio Nelson, the British naval hero. Not Nelson of the corn-in-cup variety) adage of going straight at them. Them in this sense does not refer to Spanish or French warship as per the original adage but refers to the pool of potential clients there in the courts. You can find these lawyers and their kakis roaming the corridors of KL Court, mostly where the Criminal Magistrate’s courts are situated.

When my partners and I first opened up our firm, my sole aim was to rack up as many MOB (Mention On Behalf) matters as possible while we crack our heads together to find the core files for the firm. This was years before E-Review system was in place. In the course of doing MOBs all over Klang Valley I was gradually exposed to these Nelsonian adherents. I began MOB-ing for some of them, beginning from standing down their matters while they run off to other Magistrate Courts or to other court complexes for other cases to doing the actual plea of mitigation for cases they could not attend as their trust in me grew. I polished my mitigating chops by observing these fellows in action.

To be clear (this is for you DB people), I am not a corridor roamer. Never was, never will be. I am an MOB lawyer. Fellow lawyers ask me to appear at so and so court on so and so date, I would be there, i get paid. End of story.

Anyway,

So there I was on a Friday morning with my friend at KL Court. We started by roaming level 3 of the complex, left wing. Maybe our slow stroll down the corridor could be mistaken for a lost civilian looking for a particular court room because in no time we were approached by two civilian kaki (I call them kaki) Each one enquiring with expectant looks which court are we looking for.

I forgot how powerful a black and white suit can be. I’ve seen these fellas around and never once did they approach me. They know I am not a corridor kind of guy. Then again the haircut, face mask and street clothes might have confused them. Usually, it would be the other way around, in a suit, civilians would ask me where so and so courts are. Little did they know that most of the time I myself would rely on the big colourful map they have at the main lobby for the court designation would change from time to time due to renovations and such. So being taken for an easy mark by kakis was an entirely new experience for me and my friend.

Me and my friend went into each Magistrate’s court to see lawyers mitigating sentences. After a while we went to Level 4 where I met an old timer whom which we shall call Brader. Brader had been doing roaming the corridors bit for quite a while. He stopped a few years back but came back into the game after MCO. He was sitting on one of the benches outside one of the Magistrate’s Court waiting for fresh cases to be called. Naturally we got down to talk about the old days, old kakis and how some of them had gone on to greener pastures and how he is taking in YBGK files to slowly wean himself off the kakis and corridor roaming. A bench away, an Indian lawyer whom I’ve seen around was busy plying his trade to a worried looking old Malay lady. No doubt emphasizing the need for a lawyer to get a reduced sentence for whomever is inside the court lockup. After sufficiently long conversation my friend and I said our goodbyes to Brader. We then went to one of the magistrate courts there to continue our observation of criminal lawyers plying their trade. We saw one successfully pleading for a binding over order for a wife of an addict who was caught with the husbands small stash.

Nothing much was going on at Level 4. We went to Level 1, I thought we might observe the goings on at the traffic courts and other. Brader had warned us that a particularly bold group of lawyers held sway over the traffic court and urged caution on our part for they jealously guard their realm. This we could not confirm. We found our way barred by a pair of RELA guys. Judging from their extra inquisitive questions of our reason for being there, there must be a particularly juicy case going on in there. But not wanting to court trouble, we made a u-turn and went back to Level 4 to one of the magistrate’s court where the lady magistrate is particularly cute and gave sensible compounds to minor drug offences.

As we opened the wooden doors from the elevator leading to the corridor outside, there was a sharply dressed young man with his back to us, typing something on his smartphone. A lawyer from the looks of it. He turned to face us having heard the wooden doors open. As he saw us I can see the split-second calculation as his eyes took our street clothes into consideration before he greeted us with a wide smile and querying where are we heading. His eyes now shone with the predatory gleam of a shark sensing a prospective lunch. Being a smartass, i simply pointed to my right and said, going that way and left him hungry.

Me and my friend took to the cafe after it was clear that no more cases will be heard at the cute lady magistrate’s court. Over lunch my friend broached the subject again, about being approached by the kakis and the young male lawyer at Level 4. He said ‘’Takde class langsung bang diorang ni’’. I have no objections there. They reminded me of the kind people who would crowd the jetties and airport lobbies of local holiday destinations hollering that they can get you rented car or van or motorcyle and whatnot. The only difference here is that it is done outside the court rooms and some of them are in suits and in possession of practicing certificates.

‘’But good money bro’’, I said to tempt him. From our conversation with Brader the rates for Plea in Mitigation has fallen a bit but if one were to secure at least three cases a day, in a week one could make what a fresh LA makes in a month, more or less. My young friend’s face curled in distaste and he repeated the same line: ‘’Takde class Bang’’.

So I guess there is a bottom for him after all and I am reminded of mine. We all want to survive, sure. Times are always hard and that sometimes a firm is just propped up by hopes of payment and prayers alone. But money is not everything. It cannot be everything. There has to be something greater and more fulfilling than having your bills paid (Like a big bowl of Beehun Soto with generous amount of shredded chicken and begedil). We ought to have some dignity in us. We need a daily reminder to us that we are in a profession that goes beyond money and what comes with it. Maybe that is an idealistic and quaint thing to say but if we do not stand for something we stand for nothing. If we stand for nothing, we are nothing.

These corridor roamers are small fries which often lead to more morally reprehensible practice, palm greasing being one of it and it is not confined to the Criminal Law practice alone. Some half-hearted poster and banner placement in court is not going to work. An active measure is needed. I was shocked when I was told that Bar Council had no enforcement or investigative department. And yet they want to eradicate touting. As the common parlance goes: Sembang la weh.

At the same time, I get it why these people do what they do. The lure of easy money, survival. The former is up to the lawyers but something can be done for the latter. You can call it excuses sure but those are the underlying causes. The sad thing is that there is a platform for lawyers to do criminal case and get paid without having to roam the corridors. There’s Yayasan Bantuan Guaman Kebangsaaan (YBGK) where you can represent an accused for remand, bail, mitigation, trial and even up to appeals and get paid for it. But the pay rate is crap and payment is made once every 4 months. Not really helpful considering bills are due every month. Now, there are complaints from some YBGK lawyers about claims being denied or halved for flimsy reasons and more ridiculous requirements before any claims are processed, as if filling in claim forms by hand is not time-consuming enough. Sure there are some lowlifes falsifying claims and whatnot but to tar the rest of us with the same brush is just unfair. Make YBGK an attractive alternative to corridor roaming and you can reduce the number of corridor roamers. I say reduce because to totally eradicate is an unrealistic metric to be achieved. The lure of easy money is always there. All than can be done is to remind lawyers to not give in to the temptation.

Deliver us from unpaid bills and lead us not into solicitation, that kind of thing.

At the end of the day the question of how does a practitioner find them files while remaining principled and unstained by the dust of earthly existence, remains mostly a mystery to me. How low am I willing to go? I do not know. I hope to stay straight and true as we all should be. I pray that I do. One thing I do know for sure is that I'm not roaming no corridors. No sir.

Not that low.