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©The Sun (Used by permission)

By Nicole Tan

THE "No Discount" rule for lawyers is a form of protectionism which is anachronistic and an affront to individual liberties. Here are my views:

I am sure most lawyers agree with me that the practice of law is a business. In the business world there's competitiveness. Success is based on quality products or services for the best price. In the legal world, it should be quality services for the best fees.

It is entirely up to us how much to charge in order that our firm's overheads are covered.

I feel that this is a free world and a free market. If the "No Discount" rule is maintained, I will lose not only clients but also friends and relatives. Why should we stop ourselves from giving discounts to family and friends? We can't be giving free services to all of them.

(Circular No. 62/2004 of the Bar Council Guidelines on Waiver of Fees in Conveyancing Matters, covers "personal relationship", which includes immediate family members, etc.) It is simply an affront to my civil liberties and common sense that I should be made accountable to the Bar Council for any waivers given by me.

Here some reasons for the abolition of the archaic "No Discount" rule.

Firstly, the reality has been that discounts are rampant.

Shakespeare wrote "The whole world is a stage and the men and women merely players", but we ought not kid ourselves and pretend that we adhere to the "No Discount" rule when we resort to practices like off-the-record deductions, e.g. delete an item or two from the disbursements, requesting the clients to pay the fees in full first and then reimburse them later, etc.

How can we go on with this charade and still maintain a straight face and say "No, I don't give discounts" or even swear in a statutory declaration that we don't give discounts or proclaim in public in the most self-righteous manner that we don't give discounts but yet give discounts in private?

Secondly, conveyancers should be free to negotiate fees like litigators.

The problem with a fused profession like ours is that the former are governed by scale fees, and the latter are not.

Litigators have been happily charging clients problem-free and scale-free all this while and nobody ever brought this issue up. Why is there no need for such a monopoly for the litigators?

Thirdly, conveyancers simply cannot charge fees too low due to the cost factor.

Some of you will say that this is the reason lawyers abscond with clients' money. Most of the time, lawyers abscond due to their own bad habits like gambling, overindulgence in material things or failed business ventures, etc.

I propose that the Bar Council hold a referendum on the "No Discount" rule (but) restricted to conveyancers only.

Some conveyancers have this "look and see" attitude, hoping that in the long run things may improve and we can do less work for the same fees.

This lofty ideal is fantastic if everyone adheres to the rule, but not when such practices are still being used to circumvent the rule.

It is very difficult to get evidence of such practices, especially when the clients are the only witnesses.

Fourthly, some conveyancers provide free legal services or at nominal fees out of goodwill or charity.

How can altruism be punishable? There's also a very fine line between undercutting and goodwill. The former is morally wrong, whereas the latter is good for business. Clients love it if they can obtain some discounts, even a little.

Goodwill is at the discretion of the conveyancer in order to ensure a long lasting relationship with clients.

The Bar Council should be discerning enough to realise that the dignity and integrity of the legal profession is not lowered merely by the practice of giving discounts.

Fifthly, the manner in which the "No Discount" rule is being enforced can be likened to a situation whereby the alleged is guilty unless proven innocent.

My proposal is for the scale fees to be maintained and that the Bar Council investigate only when there's a complaint and not go on a witch hunt.

One of the basic tenets of criminal law is that one is innocent unless proven guilty.

Sir William Blackstone stated that "Better that ten guilty persons escape than that one innocent suffer".

It is simply uncalled for that the lawyers should be asked to prove their innocence by statutory declarations and what not. The Bar Council should only act upon complaints being lodged.

Sixthly, what is the point of not giving discounts when the service that we provide is not up to par?

Most of the time, delays are caused by bureaucratic red tape no matter how many times the press highlight it from the point of view of ministers and the like.

I am sure before this, there was a plethora of statements to the effect. My question is, has anything been done or have things improved after the numerous calls?

No matter how noble we perceive ourselves, if we can't deliver, our clients may even shout profanities at us.

Can we still insist that ours is a noble profession if we can't deliver, albeit not our fault?

Is it worth all the stress especially if the delays were caused by bureaucratic red tape?

Why are we wasting time and resources in policing ourselves in matters like charging fees, which should be left entirely at our discretion?

Time and effort should be channelled to other pressing issues like tackling the delays caused by bureaucratic red tape.

The Bar Council should take the necessary and positive steps as soon as possible to solve the backlog of cases in the courts and the relevant local authorities.

Merely holding dialogues, without getting any results, is next to achieving nothing.

For example, to extract Letters of Administration or probate takes months; to obtain consent to transfer takes months; there are Land Offices that refuse to follow the National Land Code (NLC) or have their own interpretation of the NLC; extracting certified true copies of documents, which could be done in a day but in reality takes months; missing documents and files at Land Offices and courts.

All these contribute to the delay of the transactions which in turn affects our economy.

Protectionism is bad. Allow me to quote Carl Schurz: "If you want to be free, there is but one way; it is to guarantee an equally full measure of liberty to all your neighbours. There is no other".

• The writer is a practising lawyer.

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