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President's Message |
Apathy and Independence – Part II
This month I am reproducing an exchange of correspondence between myself and an unnamed law student which I hope is self explanatory. It is heartening to hear from the new generation of lawyers that they still have a passion for doing positive good rather than merely avoiding evil.
Dear Mr Hwang I wanted to thank you for the inspiring speech you gave at the Edu Dine dinner in August, the contents of which were also reproduced in the September issue of the Law Gazette. Your speech has been circulating around law school, and a number of friends of mine have been inspired to think deeper about lawyering and justice. I wonder though, how much of what you have exhorted us to do can be practised by junior associates such as my classmates and myself, who will graduate in less than half a year. I will be doing my training contract at a major law firm, and I wonder how I will be able to exercise such courage if that might entail going against the opinion of lawyers of far greater competence and seniority than myself, and perhaps at the risk of my career at the firm and at the bar. Mr Gregory Vijayendran also spoke at the law school a couple of weeks ago to the Jurisprudence class, and exhorted us to not be afraid to speak up against unethical behaviour, or if necessary, to leave the firm. I find his suggestion to be more practicable as a junior associate, since it is more morally clear that we should not tolerate unethical behaviour. What you exhort us to do though, is not merely to avoid that which is bad, but to pursue that which is good. Is the pursuit of such good possible as a junior associate? Or are we resigned to work until we gain sufficient seniority to pursue what we independently think is good? If so, I fear that my conscience might be seared by that time. I would be deeply indulged by any thoughts you may be inclined to share. Best regards |
Dear C Thank you for your thoughtful letter. You correctly point out that most of our current professional ethics rules are proscriptive rather than prescriptive, and ask how we lawyers can actively do good rather than simply avoid doing evil. First of all, if you look closely our Professional Conduct Rules, several of them do impose positive duties on lawyers, consistent with our claim to being an honourable profession. To take only a few examples: a) Rule 14 (completion of work within time), Rule 19 (keeping clients informed of the progress of their case), Rule 20 (responding to clients’ phone calls) and Rule 26 (disclosure of personal interest) require us to maintain high standards of professionalism in serving our clients. b) Rule 54 exhorts us to act in the best interests of our clients in handling a case but in such a way as not to conflict with the interests of justice, the public interest and professional ethics. c) Rule 72 tells us that we have a duty to defend criminal defendants regardless of our personal opinion of their guilt or innocence. d) Rule 60 imposes on us a positive duty to assist the court in citing all relevant decisions and legislative provisions. If we comply with these rules, we are well on the way to being lawyers who are setting standards for ourselves that may exceed those our clients are accustomed to, and that should give us pride in ourselves as human beings and where we stand in society, as principled professionals and not merely technically skilled persons who would do anything to advance our clients’ interests. Next, having set your own standards as a principled professional, you could consider how you might be a force for good in society apart from undertaking your assigned legal tasks to the best of your ability. Lawyers are meant to be advisers to their clients, and, while we must be careful not to advise outside our area of competence (e.g. on the commercial aspects of a problem) it is sometimes possible to inject a moral bias into our advice. Let me give you a practical example. Many years ago, I used to act regularly for a motor insurance client, advising it on motor claims and insurance issues. This client would insist that I point out every available defence that it could use to resist a claim by its insured driver, which I dutifully did. Then I started to act for a second insurer, and, true to my practice, proceeded to advise the second insurer as to how it could repudiate liability against one of its insured. To my surprise, the second insurer told me: “We don’t rely on technicalities to deny liability - these are our customers who have paid good premiums over the years and deserve our support unless they have done something which has prejudiced us in some way”. That attitude impressed me so much that I told all my friends that they should change their insurance company to the second insurer. And that got me thinking that I could have gently advised my first insurance client that it might be good business for it to be more generous to its insured clients who might have innocently violated the terms of their insurance policies (e.g. late reporting of an accident) because in the long run it would become known as a caring insurance company, which must have been a good marketing angle. Alas, I was too young and inexperienced to know how to handle a client other than to do what they wanted me to do, and continue to advise them how to repudiate policies. Had I been a little more courageous and street smart, I might have done something to improve the lot of many car owners who might not have realised that their insurance company was happy to take their premiums but not to pay out on their claims. So the moral of the story is that, when you start practice, you will inevitably have to practise your pure technical skills for a while and earn the respect of your clients for those skills. When you have built up a relationship with a client, you will have earned sufficient goodwill that the client will take your advice seriously, and you could then make gentle suggestions about what might be in their best ultimate interests which might not be the “take every legal point approach”. For example, Corporate Social Responsibility (“CSR”) is no longer a dirty term, and it is something legitimately within the province of lawyers to encourage their clients to follow as part of good governance which ultimately must be in the clients’ own interests, even if they might not immediately see the point of CSR. Lawyers who advise listed companies do in fact constantly remind clients not only of the letter but the underlying spirit of the law in the various legislative and quasi-legislative rules that govern their corporate behaviour. If clients understand the moral imperatives that underpin the bare legal rules, they are likely to develop good legal antennae to sense when they might be sailing close to the wind even if there is no black and white rule to cover the particular situation. And if you have contributed to those legal antennae, you will have made our society a better place with better and more responsible corporate chieftains in charge. And in the field of litigation, we can also (and often do) advise clients on how to behave with a fair sense of moral responsibility in an ongoing litigation situation because we can (and should) advise them that their behaviour will ultimately be the subject of comment in court (particularly in family law cases), and judges will be influenced in their attitude to persons that do not behave in accordance with accepted social norms even if they have acted within the letter of the law. So our advice to our clients can be tinged with a moral perspective because this is often in the client’s best interests in his legal battle. I can in this letter only begin to suggest how you might approach your legal career with the aim of not only being a good lawyer, but a responsible one as well, who will eventually be recognised, not only for your contributions to the law, but to the improvement of society as a whole. I wish you well on your voyage of discovery. Warmest regards and best wishes |
President
The Law Society of Singapore