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PRESIDENT'S MESSAGE |
Starting the first day of the Practice Law Course is like entering the stadium at the end of the marathon. There’s just 100m or so to go before the finish line. But you’re so tired. Four years of studying have worn you out. Not to mention queuing for the lifts to reach the 9th floor. You just want to sit down and take a rest. Well of course, you mustn’t. It’s just 100m to go. Now in fact is the time for you to lengthen your stride and move decisively to your objective. After this, the wide, open spaces of practice beckon, when you get to spend the days drinking Starbucks cappuccino in comfy armchairs and the nights whizzing about in your Ferrari. I’m sure you appreciated finding, tucked among your PLC practice manuals, the driver’s manual for the Ferrari. I think it’s volume 81 — the red one, with the prancing horse. Read it from cover to cover. Memorise it even, because, I’m sorry to say, that’s as close as you’re likely to get to driving a Ferrari for the next thirty years.
It is indeed wonderful to see before me the future of our legal profession. It is a great opportunity for me to pass on to you some of the hopes and expectations that we older lawyers place in you. I want to talk to you about two things — the mission of the profession, and the principal value of the profession that sustains that mission.
The mission of the profession is twofold: to uphold the rule of law and to ensure access to justice. The essence of the rule of law is that government authority must only be exercised in accordance with written laws, adopted through an established procedure. The principle prevents arbitrary rulings in individual cases. It also enables citizens to go about their lives and their business in security. Imagine if laws could be made retrospective, or to discriminate against particular groups of people. Life would quickly become dangerous and intolerable. It is the constitution and the courts that defend against such a possibility, but lawyers are needed to bring such cases to the attention of the courts in the first place.
Without lawyers, there can be no access to justice. Lawyers are the experts and intermediaries who provide representation to individuals and groups in the community. At the individual level, access to justice makes the rule of law real, by giving every individual the ability to turn to the courts for protection. Like the rule of law, access to justice is part of the shift from agrarian, status-based society, to urban contract-based society. At a social level, access to justice strengthens social cohesion, because it assures citizens that grievances and disputes will be resolved fairly and efficiently through a common and impartial system of justice.
Law is not just a business. In 1953, Roscoe Pound described the practice of law as ‘the pursuit of a learned art … a common calling in the spirit of public service no less a public service because it may incidentally be a means of livelihood’.2 In other words, just because lawyers are paid for what they do does not negate their duties to justice and the law. Nor does it diminish their key role in a democratic society operating under the rule of law. Unfortunately, clients increasingly view lawyers as purveyors of legal services or as procurers of favourable results, and law firms increasingly define themselves as commercial businesses operating in a highly competitive marketplace. Later in this speech I will turn to the importance of resisting the lure of business, the temptation to reduce our common calling to dollars and cents.
For lawyers to uphold the rule of law and ensure access to justice, the independence and competence of the Bar are essential. Competence requires dedication and interest in learning — not just the acquisition of knowledge but also the development of skills. Much of the course on which you are embarking concerns skills, rather than knowledge. All of you will go through the advocacy programme run by the Law Society on behalf of the Board. This is a programme focused entirely on practising and developing skills. It will involve sacrificing one and a half Saturdays. Those of you intent on a glamorous Raffles Place career in financial services may wonder why you have to be put through such a tough and demanding experience, an experience which on the face of it has no relevance to your chosen career as a hotshot in an Armani suit. The answer is simple. Lawyering starts with representation — standing in the shoes of your client and giving him a voice. Even if you never later step into a courtroom, you will always be a lawyer, and so it is our responsibility to ensure that you have advocacy skills. There is another reason — who knows where a forty or fifty year career will take you? Times change, sources of work dry up. You must approach practice with the flexibility to adapt, to ferret out new opportunities and still thrive. It is also hoped that you will find the programme enjoyable, and a good learning experience.
But achieving competence will not end with the PLC, nor even with your call to the Bar after pupillage. Continuing professional development is essential. Professional development takes many forms — first, there is learning from experience. This is especially important for practical skills. It is faster and happier when it occurs incrementally, and under the guidance of seniors. Sometimes, however, you will be thrown in at the deep end, and if you swim, or at least come up for air after initially sinking, you will certainly be better and stronger for it. Second, there is learning from reading and research — including keeping up with changes in the law. This applies principally to the acquisition of knowledge. Third, there is attendance at formal training sessions, whether organised in-house by your firm, or externally, for example by the Law Society.
Professional development is also fostered by a general spirit of learning. Not just learning about the law but about other things as well. It is important to understand the industries and businesses that you advise. Some of you may want to develop particular specialisations. To do so, you will need to understand something of the practices and the technology of the business which that specialty concerns. Lawyers wishing to specialise in construction law must learn about construction technology, and understand some modicum of engineering. Shipping lawyers must understand the rules of the sea, and the practices and usages of the mercantile community. Financial lawyers must understand how different financial instruments work. All of this takes time and study.
Indeed, lawyers benefit from a broader range of experience, and if direct experience is hard to arrange, then the next best thing is reading. Read literature, or history or biography. Understanding what motivates people, and how memory works, as well as the roles of rationalisation, suppression and points of view, is of great assistance to the advocate, first in trying to reconstruct what really happened from the fragmentary narratives of different witnesses, and second in trying to unpick the highly varnished version of the witness you are cross-examining.
Independence is an attitude of mind, and it is important for young lawyers to develop it as a habit. You must be in a position to advance your client’s cause fearlessly. You must put yourself in his shoes and speak for him, no matter how unpopular his cause. It is to ensure independence that rules regulating conflicts of interest have evolved. Neither you nor your firm must put yourself in a position where your duty to one client conflicts with a personal interest or with a duty to another client. Moreover, the Bar as a whole must defend its independence, and not be subject to direction by government or business.
One of the great challenges of work as a lawyer is that one is always dealing with disputes, or at least opposed interests. We have to represent one side against another, sometimes under the gaze of a judge, sometimes, as in transactional work, without. Tempers fray, exchanges get heated, clients want to win at all costs. How can the legal profession operate in this environment without being dragged down into the mire of grubby commercial and personal rancour that often characterises litigants and litigation?
I have spoken of our mission. Now I turn to values. There is one value that is key to how the profession has been able to achieve its mission. Unfortunately, it is in something of a decline. I will name it in a moment, but let me start with what it is not, or at least what it is not limited to. It is not respect for seniors and elders. You will hear the lack of respect of youngsters for their seniors bemoaned by many. Of course, respect for seniors must be shown, but a young lawyer needs to stand up for his client, and not be intimidated by seniority. Sometimes, seniors try to pull a fast one on juniors, and when the junior catches on and fights back it is hardly fair to allege lack of respect.
What is in decline is something much more general, and it requires reinforcement and restoration at all levels of the profession, and by all its constituent parts. I am speaking of the value of civility. What is civility? It is behaving properly to those around us — to the court, to our opponents, to witnesses, to members of our legal team, to clients. Of these, it is of course behaviour to opponents and witnesses that has worsened most over the past two decades. Almost every lawyer knows better than to be rude to a client, and by the time a lawyer crosses the line with the court he is likely to have crossed it long before with his opponent. Restoring civility must start with relations between counsel, and treatment of witnesses, and not just focus on relations with the court, essential though it is that proper respect be shown to the court at all times.
Why bother with civility? Why bother to behave properly? It doesn’t win cases does it? I hear you saying — didn’t you just tell us how a lawyer must act fearlessly in his client’s interests? Yes, indeed but that is not the lawyer’s only duty. A lawyer owes a duty to the court and to the law that he must uphold at all times. And civility is the key to a legal culture in which lawyers comply with their different duties, and reconcile them when they conflict.
Civility is not the same thing as just following and observing professional rules of conduct. Typically, professional conduct rules establish minimum standards of behaviour. If professional conduct rules are broken, then a professional sanction will follow. Civility is better described as a moral code, indicating the good behaviour that is expected of lawyers, over and above the minimum standards.
Civility tempers the clash of interests that takes place in courtrooms every day, or across the bargaining table in major transactions. Civility is the lubricant which gives justice a chance to be done. How can there be rational analysis and reasoned debate in the midst of a shouting match? The simple answer is that there can’t.
Let me mention three examples of this code of civility. This will make my meaning clearer. First, you will know that we should always refer to our opponent as ‘my learned friend’. This traditional courtesy helps to cool the sharpest exchanges. But the courtesy is nullified if said with a sneer, or followed immediately by a charge of ignorance or folly. Second, counsel should not address each other directly but instead should do so through the medium of the court. Again, this helps to keep the temperature from rising, and ensures a civil atmosphere in the courtroom. It is increasingly ignored, with counsel sometimes challenging each other directly. Third, counsel must wait his turn, and not interrupt the other counsel, nor spend his time making off-putting sounds; laughter, shaking one’s head and loud intakes of breath to indicate incredulity should all be avoided.
What does it mean when civility fades? What happens is aggressive conduct, insults and disrespect for others. And when one advocate is permitted to get away with such conduct by the court, the other advocate finds it necessary to follow suit, for fear of being thought weak by his client. As one observer of current trends in legal practice has noted, ‘Prospective clients expect fierce, dramatic, aggressive advocates, and lawyers fear that not living up to these expectations will alienate present or future clients.’3 Instead of simply rebutting an opposing lawyer’s submission, pointing out errors or weaknesses, the uncivil advocate will describe his opponent as ignorant, or attribute bad faith to him. Unfortunately, such hyperbole may seem to make a greater impression on the court than sober, restrained presentations, and with such apparent reward, incivility is encouraged. Advocates may take to bullying witnesses, accusing them of lies, when there is little or no basis for this, seeking to unsettle the witness, and make some impression on the court. Again, courts may be tempted to stand by, thinking that counsel is entitled to aggression in cross-examination so as to help uncover the truth, but forgetting that the traditional rules against badgering serve a real and genuine purpose, of protecting witnesses from being bullied into compliance — which may or may not represent the truth — by counsel who far more often than not is much cleverer than the witness, and certainly much more comfortable in the courtroom.
If you enter practice, give and expect civility. We are still a small profession. Overstatement may work once, but will soon become stale. If bullying is your style, you will eventually find you lose the court’s sympathy. A reputation for civil and honest dealing is a tremendous advantage. If you choose to be quarrelsome and vexatious, that is how others will come to treat you in return. If you habitually overstate your case, what you say will be automatically discounted. A civil lawyer can get things done for his client that an uncivil one cannot, as over time he earns the trust and respect of other lawyers and of the court.
If you go into judicial service, expect civility from advocates, not just to you, but to each other, and of course reciprocate with courtesy, for we are all working in a common cause. Lawyers often face time and other pressures to which the court should at least be sensitive. But if an advocate is discourteous to his fellow advocate, no matter how senior he is, tell him calmly and courteously that he does not need to use such language to make his point.
The Law Society has focused on the importance of civility through its advocacy programmes, the fostering of collegiality through professional development courses and social functions, and in its mentoring and counselling schemes. A commitment to civility must start from the commencement of practice as a young lawyer, but it is very much the responsibility of seniors to ensure that it is a two-way street.
Former US Supreme Court Chief Justice Warren Burger once cautioned that ‘lawyers who know how to think but have not learned how to behave are a menace and a liability, not an asset, to the administration of justice.’4 I am sure, however, that every single one of you has full intention of becoming an asset, perhaps a great asset, to the administration of justice. Among you for sure are future senior counsel, and future judges — future leaders of the profession and custodians of our legal heritage. That is why when I began this address I noted what a great opportunity it was to speak to you all directly. It is in your interests too that civility be restored and preserved.
As recently retired US Supreme Court Justice, Sandra Day O’Connor once wrote, extra-judicially, ‘More civility and greater professionalism can only enhance the pleasure lawyers find in practice, increase effectiveness of our system of justice, and improve the public’s perception of lawyers.’5
So with that I bid you a happy and fruitful time at the PLC. Use it to learn more about how the profession and our legal system work, use it to build contacts and networks through the profession, use it to practise and develop your skills in the safe and comfortable environment of the simulated court case or negotiation. Good luck and good day.
Philip Jeyaretnam, SC
President
The Law Society of Singapore
1 The PLC manual comprises seven volumes.
2 Roscoe Pound, The Lawyer from Antiquity to Modern Times (St. Paul, Minn.: West Publishing Co., 1953), p 5.
3 Nagorney, A Noble Profession? A Discussion of Civility Among Lawyers 12 Geo J Legal Ethics 815 (1999).
4 Warren E Burger, The Necessity For Civility, 52 FRD 211 (1971).
5 Sandra Day O’Connor, Professionalism, 76 WASH ULQ 5, at 8 (1998).