by Wan Zafran Pawancheek
Published June 1, 2017
My learned friend had written about the legal restrictions that Malaysian lawyers face when attempting to market/publicise themselves.
He takes the position that many of the restrictions should be lifted. And I quite understand where he’s coming from. There are some 16,000 lawyers in Malaysia now. Competition is difficult enough without the law further weighing down on us.
But I do not find issue with the Legal Profession (Publicity) Rules 2001.
I would afford you my opposing view.
What we lawyers sell to clients are principally three: our time, our advice, and trust.
All else we bargain are merely their variations.
There is little that is special about the legal profession, save for the trust that we offer as our consideration; it is that which truly distinguishes our profession as one of honour.
For instance, no other profession allows you, by habit and regular trade, to take the mantle of another person and to champion his cause as if you were him; no other profession allows you to subsume another person’s right of audience in court so entirely that your acts and statements are deemed his own at his very best; no other profession allows you to take over another person’s state of affairs so recognisably that your hand becomes his; and no other profession veils you with immediate privilege as you give counsel to all the above.
Trust of this kind should not be promised or sold with abandon.
The safeguards in the Legal Profession (Publicity) Rules 2001 are therefore there to help maintain not just the ethical standards among lawyers, but also the value of that trust which we bear and sell on the public’s behalf. Without that law, and given the realities of legal practice (which often stray from the ideals of justice, much to the surprise of doe-eyed pupils fresh from law school), I fear that we lawyers may descend into hard sales and unjustifiable promises.
That cannot be good, more so for a profession which is at its core about trust.
I am therefore inclined to disagree with any lifting of the restrictions on how we lawyers may publicise. My brief reasons:
The lifting may lead to hard selling of legal services, which causes distrust. (If you disagree, then think about the last salesman who approached you with a hard, pushy opening, and how you felt as he did so.) Distrust of this kind may pervade not just against that particular lawyer, but against the stock of lawyers as a whole. A profession so connected to trust can ill-afford this.
The restrictions in the Publicity Rules prior to P.U.(A) 176/2009 are in line with both ethics and common sense. See for instance, these:
(1) An Advocate and Solicitor who publicizes his practice or the practice of his firm within Malaysia - …
(b) shall not in the publicity-
(i) make any claim that he or any other Advocate and Solicitor practising in his firm is a specialist or expert in any area of practice;
(ii) make any direct or indirect reference to any case in which he or any other Advocate and Solicitor practising in his firm had acted for any party to the case, including the number or proportion of cases that have been successfully undertaken by him or them, or to his earnings or the earnings of any other Advocate and Solicitor practising in his firm;
(iii) state that any particular person is or has been his or his firm’s client;
(iv) state anything that would be construed as offering any inducement to, or imposing any duress, upon any person as a means of obtaining professional business for himself or his firm;
(v) make any statement relating to the rates charged by him or his firm, or to his or his firm’s methods of charging;
(vi) make any laudatory references to himself or his firm, or directly or indirectly extol the quality of the professional services provided by him or his firm;
(vii) make any comparison with, or criticism in relation to, the charges for, or the quality of, services provided by any other Advocate and Solicitor or firm. …
To keep to brevity, I will address only points (i), (ii) (iii), (vi) and (vii), as I think they deserve more reasoned treatment than the others:
Be always wary of he who professes himself to be a ‘specialist’ or ‘expert’, more so in a field such as the law, which is rife with uncertainties, gray areas and defeasibility. So-called ‘specialists/experts’ aren’t always better. And a lawyer, who cannot even adequately guarantee outcomes, has no basis to assert his competence in such superlative terms.
Past performance does not always indicate future results. Citing one’s past experience is fine, but there is no value for a lawyer to cite the cases he has won to portray his supposed abilities. Survivorship bias aside, court outcomes are subject to many variables beyond the control of lawyers themselves (e.g. the judge(s) presiding over the case, the litigants, the documents available and their authenticity and admissibility, the temperaments and prejudices and experiences and memories and moods of all involved, etc); meanwhile, transactions, deals and affairs can always fall apart or end in litigation, no matter how careful or meticulous the lawyers who prepared the contracts or instruments were.
Beware the name-droppers. If a lawyer hopes to impress you by naming who his current or past clients are, that lawyer will equally misuse your name if it may bring him gain in doing so as he markets himself to others. As with medical issues, clients generally prefer lawyers who treat their names with discretion. A blanket restriction on this is wise to maintain.
Confidence in one’s abilities is good. Wanton self-praise is not. Hubris should be avoided among lawyers, if not for humility’s sake, then at least for the fact that recognition by your peers counts for much more than the self-interested appraisal of your own abilities.
Litigators can be predisposed towards criticizing other litigators (which is somewhat understandable, given the heated adversarial setting they find themselves in). But there is absolutely no basis for a lawyer to put down his brother or sister at law just so that he may appear better before a client. Blowing out someone else’s candle will not make yours burn any brighter. Some clients may also see this cutthroat style of marketing as antagonistic desperation - not a good image for a profession based on trust.
Lawyering has suffered much from the presence of bad apples. I quote Abraham Lincoln’s observations (and reservations) on this even as far back as 1850:
“…There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal.”
Pure commerce also drives mercenarial tendencies. I quote Lincoln again:
“…Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.”
At least in Malaysia, I fear that these bad apples may have the opportunity to flourish should the restrictions on how lawyers publicise be lifted.
Therefore, and notwithstanding that our livelihood would purportedly be at stake, I urge for the strict law on how lawyers may publicize to remain as is.
Postscript - Amendment
Note: I thank my learned friends who pointed out that Rule 5 was partly amended/repealed by P.U.(A) 176/2009 as follows:
“…(ii) make any direct or indirect reference to
any case in which he or any other Advocate and Solicitor practising in his firm had acted for any party to the case, includingthe number or proportion of cases that have been successfully undertaken by him or themor his firm, or to his earnings or the earnings of any other Advocate and Solicitor practising in his firm; (iii) state that any particular person is or has been his or his firm's client;
Despite this deletion, the spirit of the original is still adhered to: the legislation also amended Rule 2, and added the following to the definition of “approved information” - and note further the qualifications and extent of the leniency:
“…by inserting after paragraph (q) the following paragraphs:
“(aa) information on completed cases handled by the Advocate and Solicitor or by Advocates and Solicitors practising in the firm or by the firm subject to the prior written consent of the clients and the duty of confidentiality owed to such clients;
(ab) names of persons who are or have been the Advocate and Solicitor’s or the Advocates and Solicitors’ clients or the firm’s clients subject to the prior written consent of such persons; and…”
I have amended the article accordingly, and include the text copy of P.U.(A) 176/2009.