Every once in a while I get these fetish-type requests.
“We want someone strong and aggressive.” “We want a fighter-cock kind of lawyer.” “We want you to attack them.” “We want you to be aggressive with them.” “We want to teach them a lesson.”
Those that make such requests are not shy to ask for it at the outset. Sometimes they tell me the need for such a lawyer before they explain what the case is about.
For them, a good lawyer is an aggressive one. By aggressive, they mean offensive, difficult and unreasonable. Of course, they have their reasons. Ordinarily, they won’t want such a lawyer. But the thing is, the other side is very bad. They are evil. They will use all kinds of dirty tactics. They will lie, cheat and are very good at manipulating people and situations. So that’s why we need an aggressive lawyer, Encik Fahri.
What these prospective clients often want and expect is for their appointed lawyer to be as pure a conduit as possible to convey their hatred or disgust for the other side.
Truth is, they don’t want a lawyer. They want a legal avatar, an alter ego with legal ability, a legal hitman, who marshalls and brings to bear the entire might of their experience, education and enlightenment to visit vengeance upon their adversaries (their lawyers too, of course; they should be punished for acting for such immoral people).
Having held consultations with the likes of such potential clients, I noticed two phrases that often accompany those fixated on aggression.
The first is ‘All we want is justice.’ The second is ‘Money is no object.’
Where the first phrase is concerned, I learned from them it is easy to conflate vengeance with justice. Especially after being hurt, humiliated or deprived of something personally important. It is hard to be reasonable in a state of anger or misery or both.
But justice and vengeance are not the same things. Justice is about righting the scale back to balance. Vengeance is about twisting the scale to tilt it decisively in our favour.
People who need justice do not ask for justice. They do not use the word justice. They plead for their lives or those of others. They beg for their property not to be taken away. They implore for the return of their child. That is what those in need of justice ask for. They ask for tangible things, they seek restoration. They don’t use fancy words like justice.
Where the second phrase is concerned, I learned that people who really are like that are not the sort to say such things. They are more likely to say, please don’t forget to send your bill and send it to so and so. Bill is sent in. Bill is promptly paid without question, without negotiation, without please-lahs, without the wait, without the excuses.
For those that declare that at the outset, their true colours sometimes show, soon after, if not immediately after their volunteered declaration. These sorts will ask for particulars of the miscellaneous charge of a hundred ringgit in our bill and verify each page of the photocopying charge. They must try to wring one last round of discount long after the bill was rendered.
So we have to be discerning with those before us especially when we come across these three phrases. For me, these are three bright red flags. If all three phrases are said within the same conversation, that would amount to one big blood-red flag.
I ignore these flags at my peril.
At some point in the consultation, they will ask me the dreaded question, “Are you an aggressive lawyer, Encik Fahri?”
At that point, I often wondered what else they would ask if I said yes. Would they ask me, well, how are you an aggressive lawyer? Why do you say you are one? Can you prove that to us? On a scale of aggression of one to ten, where would you rate yourself? Have you done anything aggressive today? Who are your role models for aggression?
I wonder because I have never said yes. I have lost out on such prospective clients because I candidly admit I wasn’t what they are looking for.
I wasn’t going to immediately take a hostile and unreasonable approach to the opposing counsel simply because my client demanded it. I wasn’t going to file a claim or an application if I didn’t think there was an arguable case for it. I wasn’t going to make allegations I couldn’t prove.
Everything we do must have a purpose. Aggression is a poor one.
I wasn’t going to persuade these fetishists otherwise. I wasn’t going to convince them an aggressive lawyer is an unethical lawyer. That an aggressive lawyer is an expensive beast. That he is not likelier to accomplish their goals other than making life difficult for everybody including himself.
It’s not just because I feel that way and think it is a waste of time, effort, emotion and money. More importantly, the aggression and the maneuvers that flow from that are at odds with what is demanded of us by our ethical code in the Legal Profession (Practice and Etiquette) Rules 1978 (LPR78).
The conduct of an advocate and solicitor before the Court and in relation to other advocates and solicitors shall be characterised by candour, courtesy and fairness.
Rule 18 LPR78
This rule provides that we have to be civilized and respectful in our dealings with opposing lawyers, not just the courts. The quality of the candour, courtesy and fairness that lawyers are expected to give to and receive from each other is the same as the type a lawyer gives to the court – very high quality.
These qualities enable disputes to be resolved reasonably, fairly, sensibly and economically. This is difficult to do when parties are caught up with aggression and are busy trying to beat each other over the head about petty matters.
So we as lawyers for one party cannot be aggressive against the other side’s lawyers. Doing so is a breach of Rule 18 LPR78.
An advocate and solicitor shall not conduct a civil case or make a defence which is intended merely to delay proceedings or to harass or injure the opposite party or to work oppression or wrong.
Rule 12 LPR78
This rule prohibits aggression in the conduct of the case whether a lawyer acts for the suing or the defending party. The words harass, injure, oppression and wrong refer to the related actions and consequences that flow from their aggressive attitude.
An advocate and solicitor shall guard against being made the channel for questions which are only intended to insult or annoy, and to exercise his own judgment as to the substance and form of the question put.
Rule 13 LPR78
This rule prohibits a lawyer from being a channel for his client to ask annoying and insulting questions to the other side and their witnesses. Annoying and insulting questions are acts of aggression. They are unnecessary. They seek to provoke instead of going about the work of undermining the witness on their evidence.
A lawyer is not expected to be a mere mouthpiece of his client’s fury or disappointment.
Whatever question a lawyer asks – both substance and form – must be his own. A lawyer cannot let his client draft the questions he is to ask. Any lawyer who allows for that is not worth his salt or fee or whatever he is paid. He should also be barred from court work. If you don’t want to do the advocate work, do something else, corporate work, in-house, etc. Just don’t do advocacy work in court.
The feeling existing between clients shall not be allowed to influence counsel in their conduct and demeanour towards each other or towards parties and their witnesses in the case.
Rule 32 LPR78
An advocate and solicitor shall treat adverse witnesses and parties with fairness and due consideration and he shall not minister to the malevolence or prejudices of a client in the conduct of a case.
Rule 33 LPR78
Both these rules drive home that how our client feels about the other side must not influence how we deal with a case. We are expected to treat everyone fairly and respectfully in spite of how our clients feel and how we truly feel. Both rules make it patently clear there is no room for aggression against the other side and their witnesses or anyone for that matter.
Litigation is a highly civilized fight. We are fencing in fancy costumes, not stabbing each other with stone-tipped spears in loin skin cloths. If both of those rules are not clear enough, the next one makes it clear what a lawyer must do if a client insists on aggression or behaves unreasonably.
An advocate and solicitor shall use his best efforts to prevent his client from doing things which the advocate and solicitor himself ought not to do, particularly with reference to his conduct towards Court and judicial officers, jurors, witnesses and parties. Where a client persists in such wrong doing the advocate and solicitor shall terminate the relationship.
Rule 36 LPR78
This rule shows that an advocate and solicitor is under a duty and obligation to ensure his client does not behave badly or unreasonably to any of those involved in the litigation process – including the other side. If a lawyer is unable to get their client to comply and they persist, the lawyer must discharge himself.
As lawyers, howsoever we feel about the other side, we have to remain professional with each other, the other side and their witnesses.
Every advocate and solicitor shall at all times uphold the dignity and high standing of his profession.
Rule 31 LPR78
This rule declares the standard of professionalism required of a lawyer. The provision uses the words at all times without qualification. It suggests we have to ensure we carry ourselves and conduct our dealings in a way that is consistent with the dignity and high standing of our profession in our professional and social lives.
No advocate and solicitor shall volunteer advice to bring an action or to stir up strife and litigation.
Rule 43 LPR78
This rule places a duty on lawyers not to promote aggression or aggressive litigation against the other side. If a client requests advice that we as lawyers can appreciate would lead to ‘stir up strife and litigation’, we are not supposed to ‘volunteer advice’ for such an enterprise. The word shall is imperative and mandatory in nature.
So if these rules are read and considered as a whole together with the rest of the LPR78, it is clear the Rules were crafted specifically to address the issue of client aggression against the other side and their witnesses, client aggression undertaken by its lawyers, and just the presence of aggression to the proceedings altogether. Under the LPR78, there is no place for it. Aggression is unethical and a breach of the LPR78.
Lawyers are meant to deal with each other as if they were colleagues having a disagreement about an issue. They are supposed to conduct themselves respectfully, and professionally and treat each other in a civilized manner. Of course, we represent our respective client’s interests but that does not mean we have to be unreasonable about it.
I pity those clients that have an aggression-fetish or any of its other varieties. They have not identified the crucial element that makes a suitable lawyer.
What clients should be looking for is an effective and trustworthy lawyer. Not an aggressive one.
Aggression is counterproductive and backfires. It rubs people the wrong way. It creates greater resistance moving forward. A resistance that could be avoided. Litigation is expensive. The greater the resistance, the greater the effort to be put in over a longer period of time. The longer lawyers have to be working, the costlier it gets.
Aggression begets aggression.
If a lawyer’s selling point is their aggression, they are a one-trick pony. The litigation process is tedious because they fight everything for the sake of it. They become predictable. They are easier to work out how to deal with. An aggressive lawyer is not necessarily an effective one.
In the long run, few people like aggressive lawyers. They get fewer breaks when they falter. Schadenfreude prevails if they fall. When they do, nobody will help them up. What for?
Effectiveness is goal-oriented. It leaves the means and ways to the lawyers in being effective. If they have to be strict, lenient, or insistent to be effective that is for them to decide and act on. The point is, that there is flexibility whilst demand for aggression leaves no room for it. Of course, effectiveness implies no act of corruption or use of unethical means.
An effective lawyer is a far better and more meaningful person to look for with your legal matter as compared to an aggressive lawyer. And if you are encountering or have encountered an aggressive lawyer, pull out the LPR78; it is likely that that lawyer is behaving unethically and a disciplinary complaint is ripe for the filing.
