Golf Lessons for Lawyers
So how is this relevant to lawyers?
First, there is the spirit of how we practise. Do we stick to the rules (about discovery, conduct of cross-examination, honesty) or do we seek an advantage if our opponent’s guard is down or the judge is napping? Doing the right thing can be especially hard when clients feel the other side is not playing by the rules and believe that your doing so is somehow hurting their case. Of course, to such clients the best answer is simply to tell them that such tactics rarely pay — judges will see through badgering of witnesses, and discount constant refrains of ‘You’re lying’ when there is little or no basis for such assertions, and it’s done just to rattle the witness or for dramatic effect. But there is another more important reason for us as lawyers. We too must be our own referees and if we fail in this then our profession of law becomes meaningless.
Secondly, there is the question of how much we should rely on detailed rules in order to maintain ethical conduct in our profession. Council has been brainstorming the possible liberalisation of rules. One suggestion was that all rules should be abolished and we should live by a simple creed or touchstone of honour. I do not quite agree with this, because while it may be ideal that lawyers police themselves they still need to know what the rules are. Not all the rules that govern professional conduct are immediately obvious. Sometimes they are even counter-intuitive. This is because professional conduct rules arise out of our role as lawyers: one role in a larger system. Young lawyers particularly need guidance in order to understand that a man who has told his lawyer that he is guilty is still entitled to a defence, albeit one that would not involve the lawyer putting forward a positive case of innocence.
Nonetheless, it is easy for rules to become fossilised and irrelevant, over time. So regular review and pruning, is necessary.
One of the rules that we are currently reviewing is the prohibition on sharing fees with non-lawyers. There are two rationales for the rule — one is the concern with touting (which will certainly involve payment of commissions) and the other is the perceived threat to independence, if lawyers become part of broader economic units, even if only for particular transactions. If it is only the first concern — the need to prohibit touting — a prohibition which remains relevant, then the rule as it stands is too broad and should be qualified, or narrowed. Touting remains anathema, but it may no longer be right to stop lawyers from working together with foreign lawyers, accountants or even investment bankers, on a profit-sharing basis.
Here we may draw another lesson from golf. Golf employs the system of handicapping in order to level the field — players compete to see who does better on the day given their ability (as measured by their handicap). But making lawyers subject to rules that have outlived their utility may be handicapping our lawyers (against foreign lawyers, accountants and others) for no good reason at all.
The morning’s golf ended with beer, lunch, a lucky draw and a speech by the new DPM and long-time supporter of CLAS, Prof Jayakumar. There was a good crowd and the CLAS Committee has done a great job under Sant’s leadership. Next year is the 20th Anniversary of CLAS and I look forward to the Scheme passing this important milestone in good shape, confident about the future.
Philip Jeyaretnam, SC
President
The Law Society of Singapore