CORRUPTION AND THE LAWYER

Oleh : Fahri Azzat

MARCH 24 — A consideration of the devastating consequences a corrupt lawyer can bring upon his client by betraying them and the importance of trust.

When we talk about corruption in our legal system the focus is usually on the judges.

This is natural because a corrupt judge is not simply the most prominent actor in the corrupt act but also the most obvious.

Injustice almost always ensures the appearance of stupidity, intellectual dishonesty, aside from the killing of one’s conscience on the judge’s part. Corruption is a certainty when those elements are present and paired with a judge known to possess some semblance of sense if not intelligence.

On balance, there is a strong likelihood of corruption when after reading the judgment or hearing of the decision, you remark to yourself something like, “So stupid ah that judge?! So obvious the wording/circumstances also can get wrong ah?”

Corrupt judges usually possess enough intelligence to allow cunning to operate. Often that is their limit, but let’s get one thing straight — they may be intellectually dishonest but they are not stupid. Their corruption makes them appear stupid and inconsistent.

That’s the general rule. There are of course exceptions with the occasional outright stupidity and utter incompetence.

But judges are not the sole actors of corruption. They usually have companions to facilitate corruption. They are the court clerks. Family members. Drivers. Secretaries. Friends. Nominee lackeys. Last but not least – lawyers.

Lawyers equal if not exceed the scope and damage (emotional, psychological, financial, trust) that can be caused by their acts of corruption as compared to a judge. They are closer to the client, receive and manage highly sensitive and confidential information and finances for their client, and interact with them more closely and intimately. For these reasons, their corrupt acts are potentially greater in scope and in terms of damage because it is inconspicuous and discovered only when the damage becomes irreversible. The betrayal of trust will be more acute and severely felt by the client because they are legally entitled to trust their lawyers. There are numerous laws and rules that are in force to create, maintain and preserve that relationship of trust.

A frequent and common complaint I hear and experience these days are of lawyers stealing clients’ money. It has gotten so bad that some land offices no longer accept legal firm cheques despite being drawn on the client’s account.

What is the significance of this? Quite simply, a cheque drawn from the client’s account should never bounce because that money was given to the law firm for a specific purpose. So when the time comes for that money to be paid, there should be no trouble at all for the legal firm to do so. That it does, strongly suggests that the lawyers in that firm used the part of those client monies.

One of my distant relatives had his life put in a tailspin when his own lawyer (who was a cousin to his wife and so they thought they were safe) ran off with the balance of the purchase price that was supposed to be paid over to the purchaser’s solicitors. That balance was obtained from a government loan. As a result of that the vendor wanted to terminate the agreement because they did not receive the balance but at the same time my relative had to start paying the loan because the money was disbursed already. This is the immense amount of inconvenience and hardship a corrupt and unethical lawyer can cause.

I want to share one of my own small experience of such an opportunity. It was early in my practise when I argued a client’s appeal in the High Court after their claim was dismissed in the Magistrate’s Court. After the hearing, my client’s appeal was dismissed with costs. After the usual after-hearing drinks with the Respondent’s counsel, we walked back together the car park at the Dataran Merdeka (near where the courts were located in early 2000-ish).

Once we reached the car park, I shook his hand and prepared take my leave. He held my hand firmly indicating he wanted to discuss something. He asked me whether we could settle the costs awarded to his client in lieu of taxation. I had a figure of about RM 3,000.00 at most in mind since it wasn’t a very complicated appeal, I was shut up within 8 minutes of beginning my submissions and the sum involved was barely RM 15,000.00. I offered him about RM 2,000.00.

He replied that the figure was too low. Then, despite us being alone, he lowered his voice and said he had a proposal for me. I, in earnest, listened. As I did, I felt there was something terribly wrong with his proposal, which went along the lines of: Why don’t I advise my client to settle the costs of the appeal at RM 15,000.00 and he would reserve for me RM 5,000.00 of that for my trouble? “Win-win!” He was very nice and polite about it.

That is probably one reason why I hate hearing that word – “win-win” - these days (the other being that too many of our local politicians love to use this word). He obviously left my client out of that phrase. I thanked him for his generous offer and told him that it was very unlikely and told him to serve us with his bill of costs. He never did.

These are some of the things from that encounter I wish to emphasize on where corruption is concerned for the lawyer, especially to those starting out:

(i) Corruption can potentially happen any time, anywhere and when you least expect it, and there will be no ominous soundtrack to warn you of it happening.

(ii) It could come from your own legal brethren. There are lawyers and then there are “lawyers”. I conducted the case for about three years before he sprang that on me.

(iii) It need not be some million dollar or even hundreds of thousands of ringgit. It is corruption even if you take RM 10.00 to betray your client?s interest or instructions.

(iv) Corruption need not even be in the shape of money. It could be gifts, sex, etc.

(v) You may when confronted with it be uncertain whether it actually is. If you feel any strangeness or are uncomfortable with the request or offer, decline it or postpone it. Do not respond or react to it immediately. If gentle pressure is put to you to accept it immediately, decline it.

The ethical standard for lawyers must remain high if not developed higher for the simple reason that our clients trust us, rely on us and are entitled to do so implicitly. That is why they trust us with highly confidential information (that if used maliciously could destroy them) and trust us with important documents or large sums of money. The effect of a lawyer’s betrayal is therefore potentially widespread and devastating. But not simply for the betraying legal firm or lawyer, but for the Bar as a whole.

Each lawyer not only represents his legal firm or the client but every other lawyer in the conduct of his duties. So when a lawyer betrays his client it raises the specter of that possibility occurring amongst the other clients. A client who has been betrayed by his lawyer will less likely trust other lawyers in the future. They will tell their children lawyers are scum and the law is a sham. They will discourage their children from the profession of law.

In the end, the legal profession as a whole loses.

It is for this reason I am tempted to think that the strength and integrity of our Bar is only as strong as our worse lawyers. It is not enough that we are honest, trustworthy and honourable. As lawyers we have a duty to ensure that our fellow legal brethren uphold to those standards as well, especially the worse.

After all, the worse apples tend to be the most prominent and so ruin it for the rest of the barrel despite them being at the bottom. So as lawyers we either take steps to remove or rehabilitate those bad apples, or have little choice but to bask in ignominy and put up with the stink of being in the barrel with them.

(Petikan dari loyarburok.com)

* This is the personal opinion of the writer. Juham Pusat does not endorse the view unless specified.