Laws for Lawyers: Making and Breaking Rules in the Legal Profession

This was a speech delivered by the Law Society President, Mr Philip Jeyaretnam, SC, at Edu-Dine in August 2004.

Let me begin with a puzzle. Being a lawyer involves bringing together two very different mindsets: (1) looking for the answer to what should be done now from what was done before (ie relying on precedent); and (2) trying to construct creative and novel arguments. Part of the process of imbibing this peculiar world-view is pupillage. In the old days, pupils had to pay their master for the privilege of following him around (in those days they were always men). Now for the puzzle. One indigent pupil asked his prospective master to allow him to pay him only when he won his first case. The master saw that he was a bright young fellow and would surely win many cases, so he agreed. However, after his call, the pupil became a corporate lawyer, and steered clear of the Courts. Every time his former master asked him for the money, the former pupil replied that he had yet to win his first case. The master eventually lost patience and issued a writ. He felt he could not lose. If he won the case, then he would have judgment for his fee. If he lost the case, then the pupil would have won his first case and would have to pay up anyway.

The pupil, however, had a better idea. Instead of fighting the case at trial he applied for a non-suit, akin to a striking out — on the ground that he could not lose the case — because if the master won then the pupil should not have to pay because he had not won a case yet, but if the master lost then that 
was that.

So who should win? I’ll leave you to puzzle that out.

The point I am making is that there are dangers in simply following precedent, but there is also danger in thinking that there is a ‘creative’ solution to every difficulty. Ultimately, we have to look to principles and not just rules, understand what their purpose is and so model our behaviour in accordance with those principles and purpose rather than look for creative ways to get out of the rule.

I will come back to this theme in a short while, when I will talk to you about how you can go about ensuring you act ethically in the practice of law, but before that, I will address you about the role of the Law Society in the regulation of the profession.

Some people may tell you that self-regulation is an oxymoron. That it involves a conflict of interest. Why should a profession agree to rules that are in the public interest if these rules go against the wishes of members of the profession, who, after all, are likely to be most concerned with ‘what’s in it for us’?

I do not agree. Of course, it is important to distinguish those regulations which regulate businesses in general and those that relate to the role of the legal profession in particular. There is no reason for lawyers or law firms to be immune from general regulations — whether these are of business structures, competition, taxation or accounting rules. There may be nothing about these that really bears on the proper role of lawyers. For example, as recently as fifteen years ago, there were major restrictions on publicity — what lawyers could do to inform the public about their services. When the Internet arrived, some people asked how law firms could be allowed to have websites — wasn’t this an unfair way of attracting business? These restrictions really had nothing to do with the professional role of lawyers. Rather, they concerned how lawyers might go about the business of law. To some extent, those old restrictions on publicity simply favoured already established names, and certainly hindered how ordinary people might get to know about lawyers, and whom they should instruct.

For this kind of regulation, a profession can lose sight of the public interest. Here, the content of the regulation is not protective of the profession’s role in society, merely protective of the interests of one part of the profession. It is critical for the leadership of the profession to do its part to ensure that the public interest is kept in view, and that we always remember that we exist, ultimately, to serve the public.

However, much of the regulation of the legal profession concerns how lawyers carry out their role — how we represent clients, how we deal with conflicts of interest, how we maintain our independence and effectiveness in individual cases. This area of regulation should be managed by the profession. Otherwise, the Bar loses its independence. And the independence of the Bar is truly an important institution. In relation to this kind of regulation, the danger is more that a separate regulatory authority might fail to understand lawyers’ role in society, or give insufficient weight to that role. To give an example of effective self-regulation, we drafted some years back, and have since made amendments to, professional conduct regulations, which govern how lawyers are to behave in relation to the conduct of cases. Our self-regulating (ie us being the ones who determine collectively rights and duties of lawyers in their role as advocates and solicitors) is itself in the public interest.

If we are to maintain self-regulation, then we must naturally ensure that we do act in the public interest. We must ensure that all reasonable measures are taken to protect clients’ monies, and ensure that clients are charged for work on a fair and equitable basis. We must not condone over-charging or sharp practice. We must promote transparency and fair-dealing.

Another aspect of self-regulation is our role in administration of the disciplinary process. Our inquiry committees do have lay involvement, to help assure the public that we do not protect our own. If a complaint requires formal investigation, it is referred to a disciplinary committee, to see if the respondent solicitor should show cause before the Court of Three Judges. The ultimate disciplinary authority over advocates and solicitors vests in the Court. Nonetheless, the Society has a critical function in ensuring that there is ‘judgment by peers’, especially in determining whether there is a ‘case to answer’ and in determining the penalty for less serious disciplinary matters.

Rules must remain current. Every few years we must look at them again. Sometimes a sign that rules are out-dated is the simple fact that everyone is breaking them, or wanting to break them. This was certainly true of the prohibitions on publicity. At the moment we are re-assessing many rules to see what mischief they were intended to deal with and whether they are still relevant. Three examples:

•    The prohibition against contingency and even conditional fees. Do these improperly stir up litigation and strife as Lord Denning once put it, or instead will they facilitate access to justice?

•    The prohibition against sharing of fees. Is there an alternative, to allow such sharing so long as the lawyer’s independence is not compromised and he informs his client?

•    The prohibition against acting for a person to whom free legal advice has been given at a clinic. Does this operate to prevent unfair attraction of business or is it an unnecessary restriction on people who are giving of their time for a good cause?

Now I will turn to the individual lawyer and his or her practice of law. It is sometimes said to young lawyers — just be honest and honourable. But this is not very helpful unless the path of honour is plain. It is not necessarily plain because the morality of lawyering arises from the lived role of being a lawyer. Lawyers are subject to duties to different persons that pull us in different directions. A lawyer must represent his client fearlessly. Yet he also owes a duty to the Court, which obliges him for example never to mislead the Court. Yet the duty to the Court does not extend to telling the Court your opinion about your client, nor does it stop you from putting the other side to proof. This resolution of the conflict of duties between client and court is not simply a matter of common sense. It is a matter of understanding roles, having experience and following rules. For example, is it honourable to represent a guilty man and by putting the prosecution to proof, get him off? The answer is not so clear, until we understand the role lawyers play in the system of justice. So in the early years when we have not by experience developed all the instincts of lawyering, it is very important to get a good understanding of ethical rules and to follow them to the letter. As time goes by, what was a matter of rules becomes a matter of instinct. But it is an 
acquired instinct.

So before you come into practice, do take up a copy of the professional conduct rules, which are plainly and simply written. Read them from beginning to end. When you face any difficulty in practice, consult a senior. If you can consult one within your firm, that’s fine. If not, speak to a lawyer from another firm. Sometimes we need to discuss a particular problem in order to arrive at the right ethical decision. You will be surprised at how ready and willing lawyers are to share their experience and give guidance. That, in the end, is what makes the profession of law such a satisfying one.