What has the country's economic performance to do with dishonesty in the legal profession? The Bar Council's statistics that there are presently pending RM44 million in claims against dishonest lawyers show a correlation between a down-slide in the economy and an increase in lawyer dishonesty.
The statistics, as published in the News Straits Times lately, do not reveal more, e.g., whether the lawyers acted dishonestly because they were living a high society life which they were unable to sustain when the economy slowed down and cut their earnings. In any case, lawyers must not compromise the high standards of integrity that are required of them by the public at large.
Is the decline in lawyers' integrity connected with the general decline in the moral values of today's society, especially among the younger generation of Malaysians? The age and socio-economic background of dishonest lawyers could reveal more about their disregard of professional ethics for the sake of making some quick money.
To the Bar Council, the number of lawyers absconding or being dishonest with clients' money may be 'just a handful' every year. But to those 'handful' of affected clients, it could be devastation.
The Bar Council should therefore look at the issue from the viewpoint of the victims of the dishonest lawyers - not from an unaffected party's viewpoint. The two views can be worlds apart; the Bar Council needs to put itself in the shoes of the victims.
Why are these lawyers daring enough to disregard their professional ethics? This is the question that begs an answer. Their act is an act of criminal breach of trust for which Section 406 of the Penal Code provides mandatory whipping and imprisonment. Has even one dishonest lawyer been meted out this punishment so far?
Sad to say the disciplinary process for lawyers in force now is not a deterrent at all and as such, it has the opposite effect, i.e. it encourages the unethical to commit breaches of trust, safe in the knowledge that, firstly, it will be years before their case comes up before the Advocates and Solicitors Disciplinary Board, and, secondly, that the board does not give reasons for its decisions, which are always favourable to lawyers.
For example, take the case of a Penang-based legal firm which acted in a conveyancing matter in 1998. The firm withheld RM3,500 of the vendor's money for payment of assessment arrears and real property gains tax.
Assessment payment was only RM55.67 and on June 17, 2000 gains tax was assessed at RM740. In September 2001, the vendor complained to the Consumers Association of Penang that the legal firm refused to refund the balance to him.
CAP wrote to the firm by registered post on Nov 11, 2001. A few days later the vendor brought to us a letter dated Nov 2 from the Inland Revenue Board to him stating that the gains tax had not been paid yet and had been increased to RM814.44 (i.e. late penalty imposed).
Despite two reminders, CAP received no reply from the legal firm. The firm even ignored the Bar Council's letters dated May 8 and June 3, 2002. It only responded to the council's letter of Aug 18 because the council had threatened to refer the matter to the Disciplinary Board.
Only on Sept 10 did the firm pay the gains tax and penalty and refunded a sum of RM1, 730.19 to the vendor. At the same time, the firm made the vendor sign a letter addressed to the Bar Council purportedly withdrawing the complaint.
Within a week, the Bar Council wrote to CAP stating that it was closing its file as the matter had been settled. We wrote to the president of the Bar Council stating our disappointment at the Council's handling of the complaint as this was a case whereby the council itself could have proceeded under Rule 8(1) of the Legal Profession (Disciplinary Proceeding) (Investigating Tribunal and Disciplinary Committee) Rules 1994 to lodge a formal complaint with the Disciplinary Board even if the complainant had withdrawn his complaint.
On Nov 25, 2002, the council on its own behalf lodged a formal complaint against the partners of the firm with the Advocates and Solicitor's Disciplinary Board. As of January this year, the board has not made any decision and the Council has not informed us of any further progress.
This is a case fit for summary action, yet the board has not made a decision. The evidence is all on paper and these facts cannot be changed by any oral evidence of any party. So what message is the board conveying to dishonest lawyers?
Actions speak louder than words, and the board's inaction (unreasonable delay in taking summary action) is nothing short of an open encouragement to dishonest lawyers to boldly, and brazenly, carry on their criminal breach of trust activities as it will take a long, long time for any action to be taken, by which time they could have absconded.
This is a most regrettable state of affairs in a country that professes to wipe out corruption and similar unlawful, unethical practices. It is therefore no consolation at all for the Bar Council to be apologetic about the black sheep lawyers. These lawyers deserve to have the full force of the law brought upon them.
The writer is the president of the Consumers Association of Penang.