The Wide Open Field

Not too long ago, a friend called me up. He asked me the kind of question I once asked my Mentor about practicing. Like me, that friend of mine was of the same vintage in terms of years in practice. In brief he had joined a friend's firm as a Legal Assistant after being partner in another firm. 

Like me, he craved the stability of income which is of course something that is paramount once you have a family. Also like me, his chosen field is litigation. He had been out there doing his thing, having fun doing all sorts of cases and also like me he has problem coming back to a structured office existence. Exactly like me, he finds people passing by his room distracting as hell and finds it exasperating for a friend who is also the managing partner in his new firm to give instruction in a roundabout way as if wanting you to do something and yet not wanting to sound as to be bossing you around.  But the long and short of it, he wants to know if giving up his independent existence is a mistake. 

My first thought which of course I did not say out loud is: this sounds familiar. My follow up thought was: Darn it dude, I am not the Oracle of Delphi. But since he asked, I had to give it a go.

From what I know so far, a father and a husband has three chains that binds him, one being love, the second being responsibility and the last and final one being reality. All but reality are the ones a Man willingly binds himself upon. To discard love and responsibility in favour of a whim is to be in my eyes, a less of a Man.

At the same time, one cannot be living a lie by being someone who he is not, and this is where my Mentor's words rang true and I quote this from memory: Us litigators have been too long in the wild to be tamed. We have to do it our way or no way. To that I added: But if being tamed is what you have to do for the sake of your family then that is what you do.

Enkidu, the wild man of the Epic of Gilgamesh found his animal friends shying away from him for he stank of domestication and civilization but he did it nonetheless out of his love for Shamhat the temple priestess (we leave the argument whether a Woman is a civilizing aspect of a Man aside for the moment: Consider the Trojan War and Helen of Troy).

Is the proverbial domestication the logical conclusion after years of living free? I do not know. Maybe there is a middle way but I have not found it yet. To live free and yet not to worry about supporting one's family.  I can only tell myself that, that wide open field is always there, if not in this world, in the next and no, I did not mean that line and that wide open fields from The Gladiator. 

The ScoreBoard

 

Back when I was a pupil my master had the newspaper cuttings of his winning verdicts on one side of the wall of his office. At first I thought; Wow, so poyo! But then as I grew older, I realized there are two ways to look at it. One, it was a reminder of how much further he had to go. Two, balm to aching heart because winning a case or every case is not a guarantee.

That being said, I had the privilege of fighting losing battles, the nigh on impossible cases which the only soothing balm was that most of the time my fees was paid in full. Privilege, not because I have heroic delusions of myself but because I see myself firmly in the shoes (or rather soles of) Diogenes begging from a statue- wanting to get used to rejection or in my case, losing so that when I win, it is all sweeter and I won two weeks ago.

It was a legal aid file so the fees were not that substantial. In short, it was a drug possession case, and the investigation was shoddy and I did my level best to attack the investigation from every available angle (missing dashcam footage, missing bodycam footage, important witnesses not investigated and more). Thanks to the brave and very fair Magistrate, my client was acquitted at the end of the prosecution’s case. I can feel my stomach unclenching when she pronounced the verdict. I was on my way out of the court room to use the men’s room to deliver a cargo when the court came into session. So I sat back down.

The final blow I delivered was something the Investigating Officer himself shouted out to me outside the court during recess, twice: the drug belonged to someone else and he as the IO knew it from the beginning. Was it out of repressed guilt, was it misplaced ego believing that I would not dare to cross exam him on that point, I do not know. All I know is that he volunteered the crucial information that led to the acquittal of my client.

His shouted confession caught me by surprise so much so that I had to call my boss and my mentor for their guidance. When recess was over and the court was back in session I tried to gently persuade him to tell the court what he shouted out to me- he clammed up. That, was the cue for me to turn the screws on him and turn I did. In the end he relented. Admitted that another person had made a confession that the drug was his and despite this the IO kept the spotlight of investigation on my client and came up with a lame one liner that the arresting officer’s version of events are more convincing than the confession.

I was not accustomed to winning due to the aforementioned nature of mine being the magnet of lost causes, so when the time came to leave the court with my client already sobbing in relief, I felt lost. Lost despite the win because I do not know how to console a grown man crying. Crying tears of relief no less. Do I hand him my kerchief? Do I tell him to stop because its unmanly while his wife is looking or do I join him in tears of solidarity? I was also lost because I do not know how to process the win. My very first criminal trial win, ever.

In the end, I pat his back a bit, shook his hand, the hands of his family members and made an excuse to leave. I remembered walking back to my car feeling elated that my client is now free and able to move on with his life. The relief came much later when I took a massive dump at home.

If the case is ever reported in the law journals, I’d have to save it or print it out and keep it somewhere within reach but not as trophy to be displayed but as my personal scoreboard.

 

Band-ing the Law

A good friend of mine who was a KL court regular once told me a story of a friend of his who was also a legal practitioner whose name I had forgotten. Let us just call him John.

Now, John had a full trial on one particular morning at one of the high courts in KL Court Complex, and he was already in court and had everything ready. His cross exam questions, the bundles, the file itself and his stationeries and stacks of A4 printing papers which he used for writing on. No pads or laptops for him for old school was his school.

He was ready to rumble that morning except for the fact that he could not find his bands. That polyester thing you have wrapped around your neck when you have a matter in High Court. He had somehow lost the thing despite having turned his car upside down looking for it. Robed up but still not completely dressed for open court according to the dress code, all for want of a pair of bands.

The clock showed that it is 5 minutes to 9 am. No time for him to beg for, borrow or rent a pair of bands from anyone or anywhere before the Court is in session. The old adage that necessity is the mother of all inventions hold true that morning. He had the ingenuity and quickness of mind in the 5 minutes to remember that he had a stack of A4 papers with him and that the dress code only requires robe and bands (or bib) for open court matter in High Court. It was never specified what kind of band it should be. After a quick snip snap there with a pair of scissors and a bit of sellotape , Lo and Behold! A PAIR OF DISPOSABLE BANDS!

He had the peculiar pair of bands on throughout the trial that day, it was not known whether he carried the day. If the Yang Arif noticed that John’s bands looked out of the ordinary he was too well bred to say anything about it, after all suspicion is not proof. Same goes with John’s fellow practitioners in the courtroom and his opponent who saw the creation of the pair of bands. At all times one must keep in mind the legal maxim that what the law does not prohibit, it allows. Who is to challenge the authenticity of John’s pair of bands even if it is abnormally papery (arguably of natural fiber origin instead of the usual polyester) when the maker is present in court? It looks like a pair of bands ergo it is a pair of bands.

Upon the telling of the tale, we who sat around the table hooted and sniggered and chuckled and sipped on our Teh Tarik for we were at the court cafeteria, and it was the time between the old (criminal) cases are called at 9 am and new ones are called at around 10 or 11.30 am. Enough time for tea and a smoke. The table moved on to another juicy lawyerly gossip and I treated the story as one of those you hear but no one can confirm it really happen: fiction so to speak. However in time, it was for me to turn fiction into fact.

Years and years later I had a simple withdrawal of representation hearing at one of KL’s High Court by way of Zoom and I elected to attend it at my room in the office as I had cause papers to draft and legal opinions to issue afterwards. I had the hearing cause paper and my robes ready but for the life of me I cannot locate the darned bands. Just so happens that no one else in the office had their bands with them on that particular day. It wouldn’t be so bad if it happened at KL Court as you can rent a pair of bands from the Bar Room or buy a new one at the bookshop at B1. Sometimes I do feel like it is my lot in life for all these incidences to happen to me but bemoaning my Fate will not change anything. While I was cracking my brains, turning my car upside down in search of the missing bands, thinking where in the world can I find a spare pair of bands within 10 minutes, the story came back to me and I thought to myself:

Why not?  It is worth a try. I have at least 10 minutes before the hearing and we do have boxes of A4 paper for the printer/photocopier and I do have a pair of scissors, somewhere.

So there I was, attending a hearing with a pair of paper bands of my own fashioning, all the while trying to remain stock still to make sure that the damned thing won’t look too suspiciously handmade on video. I even switched off the AC to avoid any unwanted fluttering. If the judge noticed it, he said nothing about it. The hearing concluded and I taped the paper bands to my wall as a reminder that sometimes things can go wrong and we must make do with what we have and that sometimes, a pair of paper bands are better than no bands at all.

Ever since then I have always made sure my bands are where I knew they would be within reach and I keep a spare ream of A4 paper handy. Just in case.

 

Note:

Bar Council Circular No 004/2012 states that the Male Attire among others should consist of:

Kemeja Lengan panjang warna putih dengan wing collar warna putih dan bib.

(Shirt) White long sleeves with white wing collar and bib.

 

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.

On Specialization

‘’A human being should be able to change a diaper, plan an invasion, butcher a hog, conn a ship, design a building, write a sonnet, balance accounts, build a wall, set a bone, comfort the dying, take orders, give orders, cooperate, act alone, solve equations, analyze a new problem, pitch manure, program a computer, cook a tasty meal, fight efficiently, die gallantly. Specialization is for insects.”

-A Time Enough for Love, Robert A. Heinlein-

Not too long ago I had a two weeks leave to think on things and the above quote had been one of the things that I have been ruminating on, especially the last part. Setting aside the tantalizing yet entirely theoretical question of immortality (who wants to live forever anyway?) the above quote has always been my favourite because it idealizes what a competent Man is which is what an ideal lawyer should be; an all-around competent Man. Maybe not as dramatic as the above quote, a competent lawyer is not expected to pitch actual manure. The manure in the legal profession thankfully, is metaphorical in nature.

The question of specialization in my legal practice has always been something that came up once every while for me. These days, I am seriously considering its pros and cons.

I came from a banking law background. I did my pupillage at a law firm where bulk of its files are debt recovery work for banks and the first role I had post-Call was as a debt recovery lawyer. Since I was the new guy, it was only natural that most of the shit files would funnel down to me. The almost time barred, the ones with two judgments entered for the same debt, the half-forgotten cruddy mess that had been gathering dust in a corner that nobody wants to touch. Such was my fortune back then and Good Fortune it was. It could be the reason why when a refreshing General file came my way I grabbed it with both hands and legs.

When started my own practice, the Auditor whom I was recommended to for audit purposes in between browsing through my firm’s books attempted to engage me in small talk. He said something along the lines of the need to specialize after 5 years. 'Setiap tahun ada firm baru bukak, semua buat benda sama. Apa beza firm kau dengan firm lain? Sebab tu kau kena specialize'' he said leaning back in his seat looking very wise. He was a seasoned auditor, doing audits for legal practitioners far older than me so he knows what he was on about. I gave it serious consideration about it at that time. For about 5 full minutes at least, before dismissing it as another worry for the far-off future. At that point of time I just wanted to get my accounts straight for my practicing certificate so that I can continue having fun doing what ever comes my way. To hell with specialization.

Then came the future. I was back doing debt recovery and its related non-legal work such as client entertainment and what have you. Time helped me in developing the confidence and thick skin to power through the messiest of files. Then 4 years in, I began to realize or rather, remember the reason why I did not pursue bulk debt recovery files even when my then small practice then had most of the boxes ticked. Sure it is the economic choice of most if not all firms since it pays the bills. Steady stream of income and all that but I could not help but feel there is something missing from it all.

I need the rush. I need the thrill of a fight that only a general file can give me. Making a living and making you feel alive are two different things. But an interesting and well-paying general file does not come my way often. It is not everyday that a spectacular mess comes into being and awaiting its day in court. To be dependent on general files alone is a big risk and not commercially viable, unless it’s the kind of file that can keep the lights on and your family fed for months on end. So, I ventured out into areas like Industrial Court matters, construction and such. Just to look for that new kind of kick and the moolahs. I get it from time to time but I still have no niche area of my own. I am for now, a generalist. I am Jack.

The way I see it, general practice, is akin to having the competency in the use of one’s fist in a fight. A pugilist. Maybe the moves varies but all you must rely on are your fists. All you have to do is clench them. Gloves are optional.  

What I know is that general practice is about being thoroughly competent that so long as its about fighting in courts and tribunals, you know what to do for you have the rules and tactics already in your head no matter how outlandish the subject matter of the dispute is. It is all muscle memory to you. You know what to do when a nasty left hook comes your way.

Specialized practitioners on the other hand are your cold and hot weapon experts, your Arquebusiers and Zweihanders. Within their area of competence they are deadly. They are the subject matter expert, masters of their art and they command the big bucks (or so I was told). By virtue of their specialization they are well sought after whereas pugilists are a dime a dozen. But their specialization is both their greatest strength and also their greatest limitation. Asking a master bowman to participate in a bare knuckle bout is like asking a veteran lawyer had done nothing but conveyancing matters to handle a full trial (why is it called full trial any way? Is there such a thing like half trial? Quarter trial?)  

Is there a way to have it both ways? Dual wield so to speak? Or to hit the sweet spot between competency and expertise? The area where general practice and specialized practice overlaps and some measure of financial stability is possible. Can it be done?

Maybe. Perhaps.

I don’t know. That is why I am writing this. I have not found the answer. Maybe I am too greedy in wanting to do everything that dispute related. Perhaps I need to talk to more old timers in the legal profession. See how they do it back in the day. The thing about people in general is that we don’t really change. Times and trends changes but we don’t. There will always be complaints over goods sold and delivered, families will always be have arguments sometimes, to the detriment of all (Re: First World War). There will always be disputes. There will always be legal problems. Some of them will go to court, some don’t. Either way, there will always be lawyers to be the peacemaker or as sower of discord. Because whether we like it or not, legal practice is a business. Has always been. With some strict ethical standards that some might choose to ignore but a business nonetheless. To sustain a business some measure of marketing is needed. Many ways to market a legal firm but the best way to do it is to do damn good job. Doing a good job speaks for itself. Never underestimate the power of word of mouth. Do a good job, people will talk. Do a half baked job, people will talk.

Specialization is another way to go about marketing your legal firm. Name an area of law and chances are there will be a household name in that area of practice. Easier to recall so and so firm that only specializes in beating off lawsuits from Tenaga Nasional Berhad or a so and so legal firm specializing in construction disputes than an all-rounder firm doing all sorts of things. In fact, a legal firm can list their specialization at the Malaysian Bar website to capitalize on their specialization. That would come in handy if your target market consists of laymen with legal problems. You would want to corner a market but in doing so, you are boxing yourself in. I speak of course of small to sole-proprietorship firms. This does not apply to Big Firms. Big Firms are like the Tesco of the legal practice. They cover most if not all practice areas with their teams of experts and they are everywhere. They have the resources to back them up and churn out paperwork like factories. They are as impersonal as the corporate clients they serve. They are not relevant to the discussion.  

I am talking about flesh and blood clients, real people, subjected to all the range of human emotions and fallacies including the tendency to have their preferences swayed by what was reported in the media and prevailing trends.

If your target market are fellow lawyers, then the approach ought to be different. A lawyer is expected to find files, work the files and ensure that you are paid on time for the work done. The finding of files part is strictly regulated by the Rules and are still largely a mystery to me. The remaining two are the two areas that a lawyer can find a gap to fill in. Working on a file, a litigation file requires someone to research the matter and draft the cause papers, someone to attend court hearings and/or trial, some one to attend to the client’s queries and generally handhold them through the whole process.

In small to sole-proprietorship firms, all these are attended by one lawyer. Most of a lawyer’s work are done in the background, away from the eyes of the client. This is where the support staffs come in for mid-sized to big law firms, the role might be invisible though important. For small to sole practitioner especially one just starting out, it’s a luxury. But, that is not to say that you cannot outsource the work piecemeal. Runners for document deliveries, MOB lawyers for court attendances, counsel work or just plain second chairing and so on. I have even come across a firm in the US doing nothing but churn out cause papers and doing legal research for fellow lawyers, which I think is useful. These are the kind of gaps that fellow lawyers can fill in or specialize in for small to sole-proprietorships practices.  

As to ensuring that lawyers are paid on time for the work done, that is a common problem and I have yet to hear of a common solution nor have I come up with a solution without having a law suit initiated to recover what was owed. Straight forward enough if it is individual client, impossible with a panel client. Perhaps a mechanism can be drafted where a lawyer's legal fees are guaranteed by a 3rd Party the way housing loans and business loans are guaranteed by SJPP and SJKP but what kind of a role a lawyer can play in this arrangement, none came to mind as of now.

Let us say that I am to specialize, in which area do I jump into? Industrial Court matters? Construction Law? Tortious matters? Commercial litigation? I am having too much fun doing all of it and with every case in these areas that I do the more I learn and the more I realized I needed to know. The more I realized this the more excited I become despite the fact that my practicing time is finite and knowing that I might end up as a Jack of all trades at the end of it.

But what is wrong with jacking it off anyway? I resent being boxed in. Being classified into a specific group. I have a growing number of (legal) fetishes, and my joy for them knows no bounds (ok, very wide boundaries).

Except it is not commercially viable they say. Just as cure-alls are derided as hoaxes, extremely wide practice areas inspire no confidence (they say). Impossible to cure it all just as it impossible to practice in a lot of areas without sacrificing your mastery over them. Is it now? Is that a statement of fact or a self-limiting belief passed down from one generation to another? If there can be polymaths a plenty in the age of quills and expensive papers then surely in this paperless, AI-driven, ZOOM-equipped age more than that is possible. It has to be.

It was said that civilization began when specialization or rather, division of labour became widespread. I say be damned to civilization! I don’t want to be a grass-combing peasant beholden to a Lord or Lady. I want to be that bon sauvage sucking on the fatty marrow of Life. I want to be that barbarian joyously battering down the gates of Knowledge and new areas of legal practice. If I can carry off both wisdom and plunder into the sunset then all the better for me.

I think that is enough rumination over specialization.

For now.