Transmenu powered by JoomlArt.com - Mambo Joomla Professional Templates Club

Lawyering is a dedicated service packaged with responsibility to control quality, not a product which can be boxed up and mechanically mass manufactured.

THERE is no mandatory provision in law to dictate how a lawyer must charge his clients the legal fees to conduct litigation in court.

Guided by the Legal Profession (Practice and Etiquette) Rules 1978, a lawyer may make an agreement with his client as to the fees payable.

“Getting up” which entails conducting research, preparing the case and conducting submission before the judge in open court or in chambers, is where the quality of work lies.

This is dependent on, among other important factors, the time expanded, the complexity of the case, the skill and the specialised knowledge of the counsel.

Since the implementation of the Key Performance Indicators (KPI), cases in court must be disposed of within a much shorter time frame and in relation to matters which proceed to a trial, they are expected to be disposed of within nine months.

To the lawyer, therefore, time becomes the most crucial factor in handling a case.

Lawyers are not welfare providers. We spend our time for remuneration.

Strictly speaking, we do not profit for there is no cost price of the service we provide.

We get paid for the more often “intangible” getting-up work which we now have to complete within a shorter time.

Lawyering is one area of the service trade where the cost to hire that service is not dependent on how fast a lawyer can dispose of cases but on how well he delivers his work, i.e. how he applies his knowledge of the law to the facts of a case and “fights” for the interest of his client.

Given clients who are genuine, co-operative and good paymasters, lawyers normally will give their best and with that, their time, and consequently, their charges in the form of “higher” legal fees whenever more of their time is required.

Sensibly speaking, spending more time translates into lesser mistakes and naturally, better quality of work.

Conversely, less time means less attention which may result in mistakes detrimental to the client’s case.

Nevertheless, in both scenarios, the responsibility of the lawyer remains.

All lawyers have to take up professional indemnity coverage because lawyers can be sued by their clients for professional negligence.

And unlike other products or services, there is no such thing as exclusion of liability of the lawyer, even by agreement with the client.

Furthermore, lawyers are subject to disciplinary proceedings. These provisions reflect a strong commitment to the service we provide.

From this angle, when we speak of efficiency of the courts as an avenue to produce justice by just assigning numbers within a certain time, the judges can simply bulldoze through with disposal because the judges cannot be held responsible for wrongful judgments.

The lawyers, however, need to account for any negligence arising from conduct of the case and be responsible for any disciplinary action.

On the surface, a speedy disposal of cases in courts sounds very ideal as one commentator opined: “The irrefutable lesson in arithmetic is … the faster cases are disposed of, the faster everyone gets their money, pays their dues and gets their justice, provided it is not so fast that justice is sacrificed.”

This “lesson” is very unreflective of the reality. Even when cases are disposed of, it does not mean litigants always get the remedies they want in law because there is always the problem of enforcement of the judgment.

What the victor sometimes gets at the end of a court battle is a paper judgment. And when the clients don’t get what they thought they would get, they would in most situations be reluctant to pay the legal fees.

Even when they do get what they had anticipated, the clients do not always and they sometimes, or rather more often, pay slowly.

This reality means lawyers do not always get their legal fees at the snap of their fingers after investing much time and effort.

To be fair here, there is no such thing as “mathematically efficient” where given a fixed time, the more cases disposed of, the more the lawyers “earn”.

If the so-called arithmetic of fast disposal is embraced by the lawyers to form the basis to decide legal fees, then a simple logic dictates that lawyers should put in less effort, charge less and get more cases disposed of.

Fortunately, lawyers can afford to be logical but not to be in breach of ethics.

News of the “superlawyer” with 93 matters to handle on one single day clearly sends the wrong perception to the public that lawyers voraciously take up too many cases “to enter the Guinness Book of Records”.

The Chief Justice should have instead exposed this “superhero” to allow the legal fraternity to penalise him for misconduct for accepting cases but being unable to appear and represent all these clients!

Lawyering is a dedicated service packaged with responsibility to control quality, not a product which can be boxed up and mechanically mass manufactured. It defeats the purpose of hiring lawyers if we equate their fees with speed in terms of numbers when lawyers are supposed to fight for the best justice in law for their clients.

If we need to package quality within a constrained period of time, it is unfair to view increase in fees as an increase of 300% to 400% from what was the normal practice, but the higher charges reflective of the increased time and responsibility that comes with handling a certain case.

If a lawyer wants to charge RM8,000 for a magistrate’s court claim and the client is willing to pay, that must be the price for quality time.

There’s always a lower price if the case requires less time and responsibility.

There is also a choice of specialist counsels. Litigation lawyers form more of a niche market so there is no commercial suicide even with “high” legal fees.

On a more noble front, there is a time when lawyers do champion justice for free for the welfare of the oppressed. That is when legal service is rendered pro bono for ‘legal aid’, not legal fees.

The writer is a young lawyer. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society.

For more information about the young lawyers, please visit www.malaysianbar.org.my.