In my previous essay The Bar Council Maligned, I wrote that section 42(1) of the Legal Profession Act 1976 (LPA), which sets out its purposes, should be the Bar Council’s (BC) Northstar. It is the what, why, and how its resources and efforts are spent. How those competing and contradictory purposes are met is a matter of negotiation within and to some extent without the BC.
A unifying narrative about what those provisions in the LPA add up to or mean for the Bar Council would give guidance to that negotiation. What role should the Bar Council play in relation to its members, the public, the judiciary, the government, or the other professional organizations, given those provisions? I contend they have different roles but a resonance unifies those roles.
The Bar Council should be a guardian of its members, a friend to the public, an important partner of the judiciary in the administration of justice, an independent legal auditor in respect of the government’s legal action, an important facilitator with other professional organizations, and an organization committed to the Rule of Law.
The resonance that runs through all those roles is that of an enlightened, responsible, and obliging organization committed to being a positive and beneficial force to its stakeholders within its resources. An organization reflects the people that lead and administer it; so its people should as much as possible possess those qualities. Fire does not sprout from water.
I intend to delve into those roles in the coming weeks and will start with the first.
The Bar Council as Guardian
The Bar Council is a guardian of its members because sections 42(1)(b), (c), (e), (f), and (k) LPA clearly relate to the welfare of the bar as a whole. Much has been done and yet still more is left to be done. The Bar Council has limited funds, limited reach, and disinterested members. It cannot do everything. It can do even less all at once. So it has to be selective and prioritize certain issues over others. Not everything is important or urgent. Just because it’s not getting done now, it will not get done at all. Things take time. But people are impatient.
Our starting point to address this should be a consideration of those concerns and ideas. What concerns and ideas touch the heart, temper, and practice of each practitioner or firm the most of us? Once we understand that, we can then move on to considering which amongst those concerns should attention be given first, second, etc.? So what are those matters?
Truth is, I don’t know. I am pretty sure, you don’t either. As lawyers, we are prone to overconfidence bias, more so because as lawyers, we have a compulsive need to be right. It is easy to flatter ourselves into thinking we know something when we actually don’t. We know our own complaints intimately. And our personal complaints, of course, are the most urgent to us.
But ultimately all our individual complaints are merely a part of a larger whole. Right now we have a lot of individual or group-level complaints, but we are missing what that large whole is, we are missing the bigger picture of what all those complaints add up to. We cannot work out the deeper themes and forces that affect our profession from a small and unique sample size.
The Great Bar Council Survey
The pressing question is, what do the most urgent complaints sound like when it is recorded on a grand scale? I think the first step to finding out that answer is a thorough and professional survey of the Bar. The survey should reflect the pockmarks on our faces, not the facial contortions of political or personal agendas and the wild, thoughtless gestures of political correctness.
By thorough I mean, the survey should be nationwide and not be Klang-Valley-centric. It should use several methods, not just the most convenient one i.e. email, mail-out forms, etc. The necessary ones to be surveyed are those who don’t have the time or don’t know about the survey; the ones that do not have enough time and space to care. The pollsters have to be persistent. They are necessary because we need to hear from them to get the fuller picture and they are not engaging.
I guess the number of necessary ones to be surveyed at 18,000+ lawyers. I base that on the number of votes cast at Bar Council elections, which dips and bobs around the 3,000 mark. I work on the assumption those 3,000 +/- are similarly likelier to respond to and engage with the Bar Council or about Bar Council matters. We have about 21,000+ lawyers with an active practice certificate. Those 3,000+/- are a small minority.
Roughly, for every 1 lawyer that votes, there are 6 that do not. For every 1 lawyer that engages with the Bar Council, there are 6 that do not. If we draw primarily upon this 1 out of 6, the risk is the Bar Council is likelier to miss the mark than getting closer to it in understanding what those concerns are for the Bar as a whole. It is holding a candle that barely lights its face in a huge cave.
Candle in a cave means only the ones that make noise are heard. And that leads to the ones that scream the loudest often getting their way. The thoughtful, discerning, and polite tend to prefer conversation. The scenario brings to mind the following lines from a favourite poem of mine:
The best lack all conviction, while the worst“The Second Coming” by William Butler Yeats
Are full of passionate intensity.
In short, facts first. We should get that right before we get our arguments up. I know we are lawyers, but as lawyers have a tendency to suffer from overconfidence bias from time to time; although, I have come across a few chronic cases. And I will prove just that with myself by slipping into that bias if not now then in some later part of this series of essays. I apologize in advance.
Once we categorize, we can consider it along with the feedback and suggestions from the more responsive and engaged section of the Bar. The latter is likelier to reflect short-term concerns; the former is likelier to reflect the medium to long-term. All three concerns are important and necessary. Because they go towards the difficult work of prioritizing those concerns.
My personal concerns and interest are biased towards the medium and long-term concerns of the Bar and the Bar Council. It is not that I have no interest in short-term concerns but it is an intensely well-represented area. The Bar needs both, anyway, and I am content to contribute in the former fashion.
I prefer to work on seemingly less urgent but what I think is important for the Bar in the longer term. I am interested in working out what we didn’t know we need. What we know we need tends to be obvious and so of less interest to me. I’d like to think my short-lived experiment with creating a mobile application called Locum Legalis exclusively for Malaysian lawyers was an attempt at that. I am interested in exploring where others are not looking, finding out new things instead of rehashing the old.
Coming back to the main, it is very important to appreciate the facts or the data from a survey are there to inform the decision-making, not to substitute it. We should be mindful that the facts or the data are not the whole picture. There is only so much we can harvest from the past. Ideas that resist binary record and dreams complete the whole picture. These are the flights of fancy not bound by the gravity of logic. Eventually, gravity brings the flight of fancy to a workable level, or the fancy escapes gravity and disappears into oblivion or politics.
By professional, I mean to outsource it to a professional to get it done. We shouldn’t leave it to the Bar Council secretariat or a bunch of lawyers to ‘figure it out’ because we should accept we are not competent at it. After all, we lawyers are fond of advising others to get a professional and leave it to them; we tell other lawyers not to handle their own personal matters if they are sued or charged for an offence because they are unlikely to be able to exercise independent judgment.
We should follow our own excellent advice and hire a reputable firm or company for a reasonable fee for creating and executing the surveys. We should follow the walk of our words.
In short, we should consider a, for want of a better working title, a Bar Council Survey of Lawyer’s Welfare, Practice and Prescriptions or the Great Survey to better understand the concerns of the unengaged majority because the engaged and often vocal minority are not representative. Once that is captured, aggregated, categorized, analyzed, and manifested in a form that can allow for dessimination and hopefully the start of a meaningful discussion.
[Note: These ideas that I share here are those I think earnestly in the best interest of the Bar and Bar Council. They are not perfect or completely thought out. They are starting points. They all probably need much more correction, refinement or perhaps even rejection. I present them simply to get a discussion going in the hope that it leads to something better or more useful. I hold all these ideas lightly.]