Visitor No since 22-10-98
Being Frank: No conscience lawyers Print E-mail
Monday, 21 February 2011
The Malay Mail
Frankie D'Cruz

The unconscionable proposal by the Bar Council to hike civil and criminal litigation fees by up to an astonishing 400 per cent is maniacal in a profession stung by insipid legal education and declining lawyering quality and competency.

The impending hike — the single highest increase ever in any professional service category in the country — that was prompted by heavier workload is expected to set off a legal fees feeding frenzy.

Naked frustration to the judiciary’s stand that cases would not be adjourned or postponed, unless the court was given concrete reasons, appears to be the council’s move to increase fees.

The Bar Council, it seems, wants compensation for the heavier workload, especially for court cases that had to be settled within three months.

It is undeserving of such windfall. It creates an unaffordable legal system. It makes mockery of an efficient court structure.

It is profiteering and a wicked interference with market forces as litigants would not be able to shop for lawyers and negotiate fees according to their affordability.

The voice of the public, the paymasters, was never sought.

Curiously, the Bar Council felt it right to push for an increase in fees rather than seek ways to reform our characterless legal education and address the dismal absence of elementary legal skills among new lawyers, some of whom spend lavishly to set up their practice.

Some 1,000 law graduates enter the legal profession every year. There were 13,346 practising lawyers (6,992 men and 6,354 women) in Peninsular Malaysia as of Jan 28 this year. Fifty-five per cent out of the 4,500 law firms in the country are one-man shows.

Head of the Bar Council’s graduates evaluation team, Roger Tan, has noted that since Malaysian lawyers were coming from so many diverse educational streams, there was an urgent need for uniformity by undertaking a critical review of the entire legal education “especially when we are producing a surfeit of lawyers annually”.

In a comment piece in a daily and reproduced at www.rtkm.com, Tan said: “So much has already been said and written in the last 20 years about the urgent need of reforming our decrepit legal education, and we are already sorely lagging behind many Commonwealth countries in this respect.

“But regrettably, there appears to be a total lack of a sense of urgency on the part of the various stakeholders to come to grips with this unsatisfactory state of affairs which is certainly not in the public interest.”

So, why isn’t the Bar Council bent on educating young and old lawyers to make them conversant with changes in the administrative measures of courts such as the court recording and transcription (CRT) system?

As of Jan 28, 2011 (source: www.rtkm.com):

• In terms of number of years of practice, there were 1,972 lawyers with one to three years of practice; 2,037 (three to seven years); 2,983 (seven to 12 years); 4,244 (12 to 20 years) and 2,110 lawyers have 20 years of practice or more.

• In terms of age, 2,384 lawyers were under 30; 4847 (31-40); 3,537 (41-50); 1,648 (51-60) and 930 lawyers were aged 60 and above.

The ball lies firmly in the government’s court to prevent overcharging of massive proportions simply on the premise of increased responsibilities brought about by improvements to the judicial system.

How Bar Council president Ragunath Kesavan came up with his envisaged hike of between 300 and 400 per cent is bewildering, considering that no studies had been undertaken by the body to back its proposal.

The Bar Council should specify and justify what it meant by workload and responsibilities. Clearly, public perception was ignored unless of course their response would have been seen as a waste of time since I can’t see anyone wanting to make legal services a financial obstacle.

Further, it comes as a surprise that the proposed hike did not consider less affluent places where lower legal fees could be implemented because the standard of living and earning capacity is not as high as in the city.

I suspect Ragunath was delaying making a decision or stating his opinion in order to get an advantage.

To be sure, fees for litigation matters would depend on the intricacy of the various types of civil and criminal cases and the experience of counsel. Currently, there is no legal fees schedule for litigation.

Ragunath merely said hearing civil cases in the lower courts outside the Klang Valley might cost up to RM10,000 — up from RM2,000-RM3,000. An assumption.

For civil trials in the High Court, depending on the complexity of the cases, he has asked clients to be prepared to pay at least RM70,000 to RM80,000. Again, postulation.

He said criminal trials, with the pre-trial conferences, were also going to be costlier. He did not provide the costs.

Still, it remains that a client who is unhappy with the cost can always dispute it in court and have it taxed. But that’s not the point, is it?

Many senior lawyers were taken aback when Ragunath announced the proposed increase last week and several council members I spoke to are divided in their views on ways to mitigate rising legal costs.

I asked the council members if somebody would stand up to oppose this intention. They want to think about it. Like Ragunath, they said there is a price for everything and that legal fees had begun rising last year.

If that was the case, why wasn’t the public alerted to the increase then?

They argued that efficiency equals an increase in fees. Meaning, as lawyers take up fewer cases, they will be spending many hours on the cases and this would translate to higher cost to the client.

That is inevitable, they say. I say it’s dodgy because common sense dictates that under an efficient system more cases would be disposed of quicker and the financial returns are faster. Hence, counsel is able to open more files and, really, it’s all about being enterprising — credible and efficient.

Having fewer clients, and more work, doesn’t entitle one to charge more fees. That's not how the market works. The public has every right to charge the Bar Council with being heartless and filled with greed. The standard rule concerning the reasonability of a lawyer’s fees is unconscionability — what shocks a lawyer’s conscience.

The real rule is whether the fee is so exorbitant and wholly disproportionate to the services performed as to shock the conscience.

FRANKIE D'CRUZ is editor-at-large of The Malay Mail. The multiple award-winning journalist can be contacted at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

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