With reference to the report Not all claims against lawyers for dishonesty: Bar Council, lawyers are supposedly professionals of high integrity and that is why they are sanctioned to attest our signatures in documents and keep our moneys as stakeholders in clients' account.
It is therefore of paramount importance that the Bar Council takes swift action to investigate and hold accountable errant members that overcharge and misappropriate clients' moneys.
But instead of doing this with alacrity, the council now intends to squander its time and resources in bringing to book members who give discounts to clients and charge clients less than that which is prescribed in the increased scale under the Solicitors Remuneration Order (SRO).
I understand that with effect from today, the enforcement of the 'no-discount' rule will be put into strict effect. Lawyers practicing non-contentious matters (e.g. land corporate and banking transactions not involving litigation in courts) are required to put a signage in their offices to state that no discount are allowed under SRO.
Any complaint to the council by (more likely) a lawyer of another lawyer charging less than the prescribed fee will see an immediate investigation of an audit nature. If the lawyer were found to have given discounts, disciplinary proceedings and action will be initiated and taken against him.
These stringent enforcement actions are purportedly to put into effect the resolution of the Malaysian Bar at its last annual general meeting which had called for an increase in the scale of fees prescribed and reaffirmed that the 'no-discount' rule be maintained and strictly enforced.
The following thoughts occur at once to me regarding why such a vigorous and over-zealous enforcement is a retrogressive and unwise move.
First of all, the public's concern is that lawyers do not overcharge and that lawyers do not abscond with their money. The public would more than welcome if efficient lawyers with greater economies of scale or a healthy dose of market realism were willing to charge less and give bigger discounts.
The move to punish lawyers giving unauthorised discounts is, as I would argue, contrary to public interest as it seeks to enforce and maintain rigidly a high fee structure dictated by the professional group's self interests, and takes no cognisance of the truism that charging less by no means connotes lack of professionalism in work or financial probity.
Secondly, the rules in the SRO are inherently illogical. The rules permit legal service to be rendered free but if a charge and fee were to levied, then it must be levied based on the increased scale and a 'willing lawyer and his client' are not permitted to agree to a (say) 50 percent discount.
This is very stupid premise because if a lawyer is permitted not to charge, why should he be restrained to accept some measure of fees from a willing and grateful client proffering to pay him half of what he would have been entitled had he decided to charge a fee?
Ahh ... I know how the Bar Council is going to respond. It will say that lawyers, as members of a honourable profession, should not descend to the commercial arena of the market place to haggle and negotiate fees.
This is a sheer anachronism of the yesteryears where there were but a few lawyers ensconced in their ivory tower making rules to their self-interests only - not when they are 10,000 in number with 1,000 recruited every year.
Legal service, like other services, cannot transcend above the economic law of supply and demand, and it is the height of unrealism and fiction for the Bar Council to dare pretend otherwise.
It will only lead to the unhappy result of subterfuge, rules' circumvention and selective enforcement against those caught due to complaints from the envious that will, in turn, activate a cycle of reprisals and complaints by those investigated against those not yet.
This will destroy the unity, trust and camaraderie that ought to subsist amongst all members of the Bar for legal transactions to be transacted. The whole exercise will only breed a culture of whistleblowing and counter reprisals amid widespread hypocrisy hardly conducive to the image of the Bar.
Barring rampant circumvention, the next logical and probable result of such a strict enforcement of the 'no-discount' rule is that the bigger firms will benefit at the expense of the smaller because to consumers, price and service being equal, why not go for the bigger firms?
In fact, the rule may exacerbate the problem of lawyer dishonesty by forcing those in the smaller firm - which but for discounts could not otherwise secure business - to turn to dishonesty and misappropriation of clients money.
A lawyer giving a discount does not necessarily imply that his standard of service is poor or unprofessional or that he is not honest. No more is it valid to assume the opposite that big firms not giving discounts necessarily provide good and expeditious service or are necessarily honest.
What is true is that in taking away the rice bowl of the smaller legal firms is certain to exacerbate rather than ameliorate the current problem of lawyer dishonesty and the inefficacy with which the Bar Council has so far responded to the growing problem.
How is the Bar Council to effectively investigate complaints of lawyers stealing clients' money if it chooses to squander instead its limited resources investigating lawyers charging clients cheaper than the prescribed rules?
The Bar Council is entirely confused about what matters to lawyers' image in thinking that giving discounts compromises the profession's image when the truth is, it is dishonesty that is the critical issue.
The reason for this is plain to see - giving discounts is taking less of the consumers' money and is to their benefit while dishonesty, which implicates taking away their money, is against, and to their detriment.
It will be recalled that the 'no-discount rule' to bolster the profession's image relates only to non-contentious and non-litigation lawyers. This is not balanced because there are just as many lawyers engaging in litigation and contentious matters, against whom financial impropriety has been alleged.
The case in point being the Orang Asli community in Lembah Linggiu living in deplorable conditions who, despite being awarded RM38 million by the Johor Baru High Court in June 2000, had RM22 million taken away.
And when a lawyer investigated for flouting the 'no-discount rule' may now be compelled by the Bar Council to disclose, for audit, the agreements and details of all legal transactions for the period in question, this simply implies that the privilege of professional confidentiality between client and lawyer will be dealt a fatal blow.
How can I trust my lawyer, and by extension the profession as a whole, when he is governed by a body that prohibits him from charging me less, and in the face of a complaint and investigation, he, as my legal confidante, will be compelled by the rules of his governing body to hand over and disclose in that process all agreements and documents in disclosure of my confidential financial transactions?
How can the Bar Council redeem, much less bolster public confidence in the legal profession, when it itself sets up enforces a 'no-discount' rule in flagrant breach of the traditional time honoured principle of solicitor and client confidentiality and privilege whilst invading financial privacy of its fellow members in the process, by calling on their accounts and billings for scrutiny and investigations?
This has become no more an issue concerning only lawyers but also the wider public and consumers, which I hope the Consumers Association of Penang will, if it considers fit, take up.
As a member of the public and a consumer of legal services, I am entitled to ask the Bar Council why does it prioritise the allocation of its limited resources to implement the 'no-discount' rule when discounts based on market forces are friendly to public and consumer interests?
Should it not focus on investigating speedily all allegations of fraud and financial improprieties of its errant members, affairs which are contrary to public interest?