Earlier this year, I had a matter with a long-time client that provided me with an example to use to explain the quality of integrity I expect from the people I work with and want to work with.
Several years back a client of ours had a short-lived affair with a non-Muslim woman frustrated with her marriage. She got back at her non-Muslim husband for his neglect and disrespect by taking on a series of lovers, some Muslim, of which our client was one, and some non. Her husband eventually discovered her extra-marital adventures. Outraged, he filed for a divorce and cited as many of her lovers as he could in his divorce petition as co-defendants.
Her husband could do this in a claim for a divorce because of section 58 of the Law Reform (Marriage and Divorce) Act 1976 (LRA76). This provision requires a spouse filing for a divorce on grounds of adultery to sue the adulterer’s lover. The spouse may claim damages.
A question that arises in this context is: Can a non-Muslim spouse sue the spouse’s lover in a divorce petition if he or she is of the Muslim faith? This was answered in the negative by the majority of the Federal Court in the decision of AJS v JMH & Another Appeal  1 CLJ 331 decided on 1 December 2021. The majority (comprising of Tengku Maimun Tuan Mat CJ and Mohd Zawawi Salleh FCJ; Nallini Pathmanathan FCJ dissenting) decided that since the LRA76 does not apply to a Muslim by virtue of section 3(3) LRA76, a Muslim cannot be subject to a claim made pursuant to section 58 LRA76.
This currently is and was the state of the law when our client came to see us with a set of divorce cause papers with his name, along with others, on it. The case was filed in 2022. He sought advice about what to do about it. I briefed a junior colleague I brought on to the file with me about the facts and the law and asked him how he would advise the client.
He said since the Federal Court decision was clear about this issue, we could apply to strike out the husband’s claim against him. That was correct but, for me, insufficient. I asked him whether there was anything else we could do about it. He thought for a moment and suggested writing to the Plaintiff’s lawyers to have them withdraw the case against our client. I agreed with that suggestion. After confirming our client’s instructions, he wrote accordingly to the Plaintiff’s lawyers.
A few weeks later, just before the case came up for case management, we received a terse acknowledgement from the Plaintiff’s lawyers of our letter along with a Notice of Discontinuance of the claim against our client. We informed our client of the good news and he promptly settled our bill. (For me, that’s the best part of this anecdote.)
At one of our tea breaks, I revisited the matter with my colleague.
‘You know how you first suggested filing a striking out application against the Plaintiff but we ended up just issuing a letter?’
‘This case is an example to illustrate the kind of integrity I think lawyers should possess. It’s what I expect from you and everyone at the firm. You know, we could have easily persuaded the client to file a striking-out application instead of writing a letter. We could have gotten more fees than what we billed him for the letter we sent. After all, he doesn’t know any better. He doesn’t know the law. He is a long-term client of ours. He trusts us implicitly. He will do as we advise him. So you must appreciate and understand that we hold great influence and power over our clients in respect of their legal matters. That is why we are under a strict duty to advise him in his best interest, not ours.’
‘If we advised him to file the striking out without first attempting to resolve the situation amicably, we would be remiss in our duties. We would be advising our client from the standpoint of advancing our own self-interests. That is wrong. We were retained to safeguard their interests. To abuse that position of trust by advising them in a way that advances our own personal or private interests is to commit a breach of trust against our client. On top of that, it smears every other lawyer in our legal profession. Each lawyer when they perform their service, whether they like it or not, represents all lawyers. A smear on one is a smear on all. That is why each and every one of us has to conduct ourselves professionally to the highest degree of integrity. We do it not just for ourselves but for our fellow lawyers too. One bad lawyer makes us all look bad. We have no choice in the matter.’
‘So coming back to the case. Whenever you think of a solution for the client, I want you to look for an array of solutions, not just one. Some solutions are more costly than others. Of course, some are unavoidably costly. What to do? Not all legal problems are reducibly cheap. But if we have a variety of ways to approach the problem with different legal price points, we are obliged to tell them about it. We can tell them about the more expensive, elaborate solution, of course. But we must tell them about the simpler, affordable solution too. Ultimately, it is for them to decide. If we do not, then by my books, we are not lawyers, we are merely legally qualified fraudsters.’