This article is originally published in LoyarBurok.com
Click to see Part 1/3 and Part 2/3 of Advocating the return of honour to the legal profession.
The absence of honour in our legal profession is reflected in our own legal practise. These days a ‘letter of confirmation’ is issued for the most petty of matters such as mentioning on behalf of another (see my article ‘Of Mentions and Mentioning on Behalf‘ for a fuller explanation of this notion), the informing of the next hearing or mention date, or the amendments to a few words in a draft agreement. I used to be taken aback and disappointed that a lawyer would confirm my agreement to mention a case on his behalf for a mere mention, now I’m just disappointed. Lawyers also fail to realize the economic and ecological wastage due to the lack of honour and the negative consequential effects it breeds amongst lawyers.
Let us take as an example a situation where X calls up Y to mention case K and obtain another mention date or to fix a hearing date. If there was honour between them, Y would take down all the details (case number, date, reason for next date/free dates) and carry out the same. Once this was done he would call X up and inform him of the next date, etc. and that would be the end of the matter for that transaction.
In a situation without honour, after the phone call, X (or his clerk) would spend time drafting a letter to confirm the mention, faxing and/or posting it over, make a copy for his file and sometimes even carbon copy the letter to his client and troubling them over such unnecessary matters (must you really trouble them over such petty, unnecessary details pertaining to their case?). Once Y (or his clerk) had obtained the date, he too would spend time drafting a letter informing the next date, etc. basically doing the exact same thing that X did.
Clearly the same thing is accomplished in both examples but one more tediously and expensively so. I will not go into the loathsome practise of some lawyers that charge exorbitant allowances for attending to a mention or rant about some lawyers whose bulk of practise is made up of just such ministrations. That will be reserved for another occasion. The ecological wastage is clear – paper, postage and electricity are wasted on such a petty transaction. The economic waste is less obvious – there is the opportunity cost of the lawyer and/or clerk drafting the letter; there is the cost of the paper (letter and envelope), for the postage and fax transmission, for electricity used; there is waste of effort in filing the letter and faxed copy properly; the client is distracted by such petty matters. Later on during taxation, these letters will also form part of the party and party cost and become payable. Now imagine this repeated many, many times. The cost of all this is borne by the client. So in truth, a client?s case becomes more expensive when there is a lack of honour amongst lawyers. This cost is also widely out of proportion to the transaction i.e. getting a simple mention date.
This also has a wider economic cost to society because its’ ecological, economic and human resources are wasted on an unproductive if not inefficient transaction. In fact, the word ‘honour’ has been insidiously retired from our ordinary conversation. No one speaks of ‘honouring a cheque’ anymore. They speak of whether it ‘clears’ or not. Even when the word is used, it is more often used in the negative sense – ‘dishonour’ a cheque, imputing negativity to the concept of ‘honour’. The word ‘celebrate? has gradually replaced the word ‘honour’ even for occasions that are dedicated to remembrance or appreciation of a person (Mother and Father?s day, for example) or event (Merdeka, Labour Day, etc.), more properly carried out by way of humble and quiet reflection than in the maelstrom of glamour, splendour and pomp.
In summary, a lack of honour not only makes cases more expensive for clients, more tedious for lawyers but encourages distrust amongst lawyers and breeds fragmentation into groups at the Bar. Further, it deepens the modern impression of lawyers as scoundrels that are not to be trusted who would sell their mother in a heartbeat to win a case, clinch a deal, etc. In short the absence of honour in our profession does not just do lawyers a disservice as it desecrates our profession; it does every body else a disservice too.
This is why the advocacy for, implementation and inculcating of the return of the concept of ‘honour’ in our profession, not as mere lip service but as a way of life and practise as a lawyer, cannot be more urgent and important. It is not enough to have it printed on the page, pamphlet, plaque or firm website. It must course through the very veins, dwell in the breast and so fill the mind of each and every lawyer for honour is not seen by the naked eye, it is felt by the naked heart and sensitive mind. Honour can only be practiced personally and not vicariously because at some point, honour will demand sacrifice. And honour is found in sacrificing one?s self, not someone else. This is vividly illustrated in Dicken’s ‘A Tale of Two Cities’ when Sydney Carton, the lawyer, swapped places with his client, Charles DeMornay, and so sacrificed himself. Or when Cicero spoke out eloquently against Mark Anthony at the Senate even as armed guards stood around him ready to kill on instruction (for his magnificent Philippic see Penguin?s Great Ideas series volume 25 titled ‘An Attack on an Enemy of Freedom’).
So clearly the first step in reforming the lawyer, the Bar and the image of the lawyer to the public at large is the restoration of the idea of the honourable lawyer and honour as a way of practise and life. Though honour may be found in reasonable profit, it is completely absent in excessive profit. Honour would be found in meaningful and properly remunerative work, not regularly in the wee hours of the morning at the office. In short, a reformation will be borne in adherence to honour, not to only profit.
But how can we begin this process? I think we can start by first establishing what it means to be honourable. We can take our cue from the qualities I mentioned as comprising the proper internal dimension of a lawyer. To be honourable is to be honest, trustworthy, courageous, responsible, diligent, meticulous, just, and reasonable, and to respect each person as a human being (unless of course that person is unworthy of respect) and let us refer to them as ‘principles’ ? the Principles of Honour or of Integrity, or whatever we like.
Secondly, the important thing is to commit to it absolutely, not conditionally. Lawyers ought to make a private affirmation and oath to themselves everyday to uphold these principles and practise them whenever the occasion arises. If this is done, lawyers would be committed to serving justice instead of their vanity or just money.
The absence of honour has allowed materialism to entrench itself as a guiding conduct and way of practise. The lack of honour has resulted in the rise of hourly billing and the demand of materialistic law firms (and they usually tend to be the big and/or aggressive ones) to treat their lawyers as mere income generators or work slaves accounting for every single second of their time thereby ensuring that every moment spent in the practise of law is not for the furtherance of justice or to bask in its pleasure but the size of the bonus the management bestow upon themselves. This has led to lawyers prostituting themselves for work, whoring themselves to win cases, and doing other unspeakable deeds that decent human beings wouldn?t even consider. Without honour in law, all we are left with in practise is money. And if that is all that is left, then the practise of law is little more than common prostitution. In fact, it sits lower than the common prostitute that hawks herself on the street ? after all, she only sells her body; the lawyer with no honour sells his mind, his reputation, his very conscience and his entire family heritage for mere money.
The absence of honour has provoked the surreal if not offensive debate of whether the practise of law is a mere business. Of course it is a business, but it is not just any common business. It is not a business in the vulgar sense of the word where the bottom line is ‘everything’. The business of law is one where the ‘bottom line’ (the money) is but one line. It is but one of many factors for consideration and it must always weigh against the demands, or to use the terminology, ?bottom line’ of honour. If doing a particular transaction would result in a lawyer’s honour being ‘in the red’ then he is under a duty to reject it. If carrying out that instruction would result in a manifest injustice, he must reject it. The amount offered by way of a professional fee can or should never ever measure up to the worth of a lawyer?s honour (and it doesn’t matter whether he is famous or not, in a big or small practise). If the firm must make less or that lawyer live a little more frugally for a while to preserve its or his honour then so be it. If he feels unable to live up to that honour then I beg him if he has a modicum of respect for the profession of law to relinquish the practise of law and take up some other profession that makes no such ethical or moral demands on the practitioners of its professions ? like a banker or a politician. The thoroughly materialistic tend to forget that the lack of a price tag does not make something worthless. On the contrary, it makes it priceless. And that should be the worth of a lawyer’s honour.
If we as lawyers now start to make an honest concerted effort to live and practise in honour, then there is hope for better times. We must not and cannot wait for rules or legislation to be drafted to demand it of us. It must begin now. Not when it is convenient to do so. We must demand it for and of ourselves. It cannot be left for others to do. We cannot wait for the Attorney General or our supposed leaders of the Bar to initiate it. It must begin now with you and me. Our efforts must not end at dusk. It must continue tomorrow and for everyday thereafter. It must continue until we can so completely rely and depend upon one another as lawyers. And each of us has a duty to preserve not just our honour as lawyers but the profession. A single lawyer is enough to shame an entire profession. And we have much shame to address and many wounds to heal before we can be once again known and respected as an honourable profession. We owe this not just to our fellow citizens and country, we owe it most of all to ourselves.