Consultation Fees and the Embarrassed Lawyer

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Consultation Fees and the Embarrassed Lawyer

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My good friend Shan and I were once at a post-hearing meal in the company of a very senior and well known lawyer. Shop talk was inevitable since we were lawyers; inevitably, I suppose, we got around to the topic of legal consultation fees.

“If they cannot pay my consultation fee, I will not advise them. I will not even see them. That is a rule won from hard experience,” the senior lawyer said before he sipped his coffee.

“That sounds harsh,” I remarked.

“I know. It is. But it is to protect myself.”

I was intrigued. “How does it protect you?”

“In my area of practice, there are only a few of us at my level and the stakes are high. The lengths some people would go to win is disgusting. Back then I too did not charge for a legal consultation. I freely met and gave advice to those that came to my office. What I came to discover belatedly is that some of those that came to see me were not genuinely there for my advice or representation. Even though they saw me, disclosed private and sensitive information to me during the consultation, they did not appoint me after that. I realised that their goal was simply to ensure I was in a position of conflict and could not represent the other side.”

“You see, the moment you give legal advice to someone you become their lawyer. We are then bound by our professional ethics and fiduciary duties. We cannot act against a client’s interest even if they are acting against ours. That is why, since then I insist on a consultation fee, and a hefty one too, which has to be settled before they see me. That way, even if I am eventually conflicted from representing any party, at least, I have been suitably remunerated. Not all clients are genuine.”

“What if they cannot afford the fee?”

“Everyone has their own problems. How they pay me is their problem, not mine. My problem is how well I advise or represent my client.”

Harsh as it sounds, the senior lawyer’s rationale is sensible and reasonable.

Rule 3(a) of the Legal Profession (Practice and Etiquette) Rules 1978 (“the Rules”) states that a lawyer cannot accept a brief if he is or would be embarrassed by it. Embarrassed has a specific legal meaning; it does not mean to feel awkward or self-conscious. Embarrassed is defined in Rule 3(b) of the Rules; it refers to two situations a lawyer may find himself in.

The first is a situation when a lawyer received confidential information because he advised a client previously, let’s call him Client X. If Client X later has a dispute with Client Y, which involves the confidential information disclosed, that lawyer cannot advise or represent Client Y. A lawyer that does would be embarrassed because he is in a conflict of interest situation. That would be an ethical breach. This is the situation the senior lawyer was alluding to.

So we should be mindful that there is an opportunity cost for every client we take on. Sometimes taking Client A conflicts us from taking on not just potential Client B but Client C, Client D, Client E and Client F and the future potential of that; a conflict position may or may not last for a long time.

For completeness sake, the second situation a lawyer is embarrassed is when there is a personal relationship between him and a party or a witness in a case. Personal relationship was interpreted to mean blood relations or next of kin of any degree in the Federal Court decision of Vijayalakshmi Devi Nadchatiram v Saraswathy Devi Nadchatiram [2000] 4 CLJ 870 where the lawyer who acted for her brother and sister was recused.

Why can’t a lawyer act for their family in a legal dispute? Justice Abu Mansor Ali FCJ explained this in the Federal Court case mentioned earlier as follows:

The objective of the provision lies in the fact that the Bar had set a high standard of practice. The Bar requires that an advocate and solicitor must be able to give an objective and independent judgment before he embarks on the task of advising a client. Thus the advocate and solicitor would not be in a position to do so if he is bound by ties of personal relationship to his client and tied by pecuniary interest. The mischief to be cured and the intention of the Rules are too clear to be ignored. The provision are too clear to admit of any doubt or dispute. They had been so framed to preserve the integrity of an advocate and solicitor so that he may not be in conflict of interest and by the same token ensures that when he acts for a client he is independent and free vis-a-vis both when representing the client and performing his duty as an officer of the court in which he appeared.

Vijayalakshmi Devi Nadchatiram v Saraswathy Devi Nadchatiram [2000] 4 CLJ 870 @ 880, paragraph e – g

That is how high a lawyer’s ethical standard is.

A reason why the legal profession is a ‘business’ unlike any other business is because lawyers are held to a higher ethical and legal standard compared to other professions. Proof of this is manifested in section 126 of the Evidence Act 1950. This provision prohibits a lawyer from disclosing any communication, advice, or information given to or received from his client. All of that is privileged, which means confidential. The lawyer requires his client’s consent to disclose anything. Lawyers and law firms cannot behave like tech companies that harvest user information to sell them on.

There are only two exceptions to that rule; firstly, if the information or communication the lawyer received was to further an illegal purpose. That is not protected by privilege. For example, Din, please bring me this hammer to my house tonight. I intend to use it to kill my wife. That is not protected. Secondly, if the lawyer discovers a fact showing that any crime or fraud happened after he was retained. For example, if the lawyer discovers his client forged documents for an upcoming trial. That fact is not protected by privilege. In either case a lawyer cannot be faulted for reporting the offence or intended offence to the police. Section 13 of the Criminal Procedure Code legally obliges everyone to report any crime, that has happened, is happening, or is about to happen.

No other profession bears the duty of privilege; not even doctors. In law, your doctors can tell on you but your lawyers cannot.

Doctors treat our physical ailments. They keep us alive.

Lawyers treat our legal personality’s ailments. They protect and enforce our rights to be alive.

Malaysian lawyers need to cultivate the practice and etiquette of charging a consultancy fee for consultancy work – even those short 20 – 30 minute meetings because it involves legal work i.e. consideration of the complaint, formulating the issue and potential solution on the spot. Just like doctors. Our work is different in some ways and similar in other ways.

Lawyers need to value their work by charging appropriately for it. Economists are fond of saying, there is no such thing as a free lunch. It is a wise observation lawyers should adhere to and breach to their detriment. Because if they do not value their own work, no one else will.

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