Life at the Bar

Speech by K. S. Dass at the Bar Ethics Lecture Luncheon at Hotel Hyatt, Johor Bahru on Wednesday 16.7.2008.


Speaking about one’s experiences at the Bar is not easy because it may sound like an autobiography.

One lawyer’s experience years ago or a generation ago or generations ago may be good material for reading but hardly good for emulating. Things have drastically changed over the last fifty years with the advent of modern science and technology and with the ever changing attitude of the people generally. For example thirty years ago it would have been unheard of it there is no free flow of sherry when there is a call to the Bar, the same flow was seen when there was an elevation to the Bench, but that has become a thing of the past. Today, we are served with syrup with lot of sugar in it. That is the social side of the legal profession. Whether a lawyer’s life will be as sweet as syrup is another matter. The legal profession could be very attractive but very exacting and punishing. It is unlike the jackfruit which is thorney and unsightly to look at but has sweet pulpy segment inside. Legal profession, from the outside, is glamourous but inside it is exacting, punishing and at times very ugly.

When someone speaks of his experience, he would only reveal the brighter side of his career omitting the mistakes, blunders and errors he has done. Seldom would one admit that he had been wrong – more so lawyers who will never admit that their clients were wrong, a blind faith in their client I suppose. Perhaps that is the modern trend.

Lawyers are not universally admired. William Shakespeare said : “Let’s hang the lawyers.” Jeremy Bentham wrote : “What the non-advocate is hanged for, the advocate is paid for, and admired.” The lawyer hires himself out to do injustice or frustrate justice with his tongue, wrote John Stuart Mill. In the United States they are described as the hired guns. Whether a lawyer wants to be a hired gun or an anchor of morality is upto him or her.

Lord Denning confessed that when he was young he wasn’t concerned so much with the rightness of the cause, “I was concerned only, as a member of the Bar, to win if I could.” he said.

There is nothing wrong in attempting to win the case but it should be done according to the rules, and without misleading any one. Never believe and behave as if your client is an angel and his opponent a replica of the devil.

The debate whether the lawyer must have his client’s interest or the ends of justice as paramount has been going on for a long time. It is now described as the role morality – reflecting client’s interest and common morality reflecting the interest of society. A lawyer has to look into both and come to a rational choice. His contribution to the development of law cannot be lightly forsaken.

Every judgment of the court although affects the parties in a particular case, in fact, is a declaration to the society how the courts will act in a given situation, and as a lawyer involved the role he or she has to perform is of utmost importance- thus, it is not only the client’s interest which is paramount but the interest of the society.

Those who are at the threshold of the legal career should always remember that the legal profession is one which, if you are willing, will never stop teaching you. It is one profession which pays you to learn. A client comes to you with a problem and you are supposed to solve it. In trying to solve the client’s problem, we are learning and there is no end to learning in the legal profession. Lord Denning once remarked: ‘the more I read the little I know.’ Erasmus who saw himself as a citizen of the world and a monk of the fifteenth century, is attributed to have “freed European scholarship from its intellectual servitude to the past and prepared the way for the reformation………”1

Erasmus studied and during his travels had come across a precept from an unknown philosopher which influenced him profoundly: “ Live as if you are to die tomorrow, study as if you are to live forever.”2

Those who kept on studying are still living although they are dead and gone. Their works have been immortalized in journals and in books. Every religion encourages learning and lawyers who deal with people’s problems have to be alert and this they can succeed in doing so if they do not abandon learning. Learning alone will not suffice. Lawyers must be prepared to analyse what they have read and understand the substance. A cow which eats the pages from the holy book does not become holy. A donkey which carries books of knowledge does not become an intellectual. Lawyers must understand this.

Coming back to the experiences that I have gone through, I can say that each lawyer has his or her own way of handling cases. It is difficult to emulate another because an individual may have different ways of dealing with his clients, with the judges and with his peers.

So each will have to develop his or her own method in dealing with the clients, with the court and with the peers; but, make sure they are 1. The First Freedom, a History of Free Speech. Robert Hargreaves, at 41 (Sutton Publishing 2002)
2. Hargreaves, at p. 42

within the bounds of normal courtesy and ettiquette. In dealing with
your peers there are certain guidelines in the rules of etiquette which you should familiarize.

Dealing with the clients is the most vulnerable aspect of the profession. No client will be satisfied even if you had obtained the best bargain for him or done the best for him. Your own client is your worst enemy, more so in the modern world of materialism. The attack on lawyers is very serious and they should be very careful when dealing with their clients.

Complaints to the Disciplinary Board had become rampant which does not vet the complaints but calls the lawyer to explain with a warning that if no explanation is given it will be referred to the Disciplinary Committee, no matter how trivial or vexatious the complaint may be.

Physical assault has also been employed by disgruntled clients. One senior lawyer was chased with an umbrella around the court house by a woman client after she had lost a case. This happened in Johor Bahru High Court. Lord Hailsham a former Chancellor recalled that when he was a young barrister, a witness he had cross-examined appeared suddenly from behind a pillar as he left the court and said, ‘Young man, you made me out to be a liar. Take that and that and that.’ And hit him three times with her umbrella.3

Clients suffer from selective amnesia. They will tell you something and forget it quickly and a busy practitioner will take it for granted and
3. Advocates by David Pannick at p. 31 Oxford University Press [1992]

prepare the case by giving some advice which would put the client at ease. When things go wrong the client becomes very hostile and blames the lawyer. There are many ways of avoiding this. One way is when you are taking the client’s instructions treat him as if you are cross – examining him, especially when fraud is alleged. Then tell him the strengths and weaknesses of his case. Don’t ever tell him that his case can be won with hands down. You will never know what your opponent has up his sleeves or what the judge will have in his mind looking at the evidence.

I recall a case when the judge had given judgment in favour of my client and the court had adjourned, my client was agitated. He said, ‘I want the lawyer to cut off his hand!’ I scolded him. ‘What nonsense is this?’ He replied, ‘My opponent’s lawyer said to me if I can win this case he will cut off his hand!’ The moral of the incident is don’t ever risk your physical organs or your honour. Winning or losing a case is common. If a lawyer is dissatisfied with the court’s decision there is always a remedy – appeal.

An advocate who loses a case should be strong enough to accept the defeat. As a gentleman of the Bar take it on the chin. If a lawyer is dissatisfied with the decision of the court he should advise the client to appeal. The decision to appeal must come from his client. The advocate should not balm his injured feelings or ego by forcing an appeal on his client.

Judges are also human beings and they can be very sensitive to criticisms which go beyond fair comment. Some lawyers become too emotional, as a result refuse to accept a decision that had gone against him or her. You ought to be careful when dealing with the judges and avoid being cited for contempt of court.

In the case of Lord Advocate v Jameson, the lawyer wrote a letter to the judge reflecting his judicial conduct, containing matter disrespectful and insulting to the court and injurious to the administration of justice. The Scottish Court of Session found that this was a “high offence against the dignity of the court and reprimanded the
lawyer for his contempt.” 4

In Nova Scotia a lawyer wrote to the Chief of Justice complaining that, ‘ I can’t help thinking that I am not fairly dealt with by the court or judges, and that the well beaten track is often departed from some bye-way to defeact me.’ The Judicial Committee of the Privy Council’s found the lawyer guilty of contempt, ‘of the most reprehensible kind.’5

In our jurisdiction we had a similar case. The Plaintiff who succeeded in the High Court lost on appeal. The advocate wrote a letter to the judges criticizing the judgment. Delivering the judgment of the Supreme Court, Azmi SCJ explained, the advocate was needless to say……………extremely unhappy and disappointed with the outcome. He embarked on the extraordinary mission of writing various letters to the court and to the solicitors of the appellants and copied to others, criticizing the court’s judgment in allowing the appeal.” Those letters were “highly derisive” of the court alleging that the decision was “unjust and biased” and threatening that unless the judgment were to be reviewed, there is no justice in the court. The advocate was fined RM5,000.00 6. In a Singapore case, an eminent lawyer remarked that the judges by refusing to re-open the appeal they were setting the seal 4.[1822] 1 Shaw 285 referred to in the Advocate by David Pannick
5.In the matter of Thomas James Wallace [1861] CR 1 PC 283, referred to in the Advocate by David Pannick.
6. The Attorney – General v Arthur Lee Meng Kuang [1987] 1 MLJ 206
open dishonestly. Although the judges took no notice of this the advocate in response to a challenge by the opposing advocate wrote the same remarks in a letter. The matter was referred to the Inquiry Committee of the Law Society which found that the advocates conduct was improper and fined him $250-00. His appeal to the Privy Council was dismissed.7

Will it be any different for an advocate who was unsuccessful in court to publish an article insulting the judge? In such a case, it was held contempt of court had been committed. This was held in the case of Re Sarbadhicary8 in 1906 by the High Court in Allahabad, India. The barrister was suspended from practise for four years.

It is true freedom of expression and speech are guaranteed to the advocates but they cannot ignore the limits. If a judge seeing such a scurrilous and abusive letter may consign it to the waste paper basket or on reading an article by an unsuccessful advocate containing insulting remarks ignore the insult remembering the fable of the fox which having failed to reach the grapes concluded that they are sour grapes. Silence is golden- it may be an option but lawyers themselves will have to decide. Last but not least, in the legal profession there is not substitute to hard work. Time will always be running against you. How you manage the time depends on you, and you alone, without sacrificing your client’s interest and the interest of justice.

A lawyer’s life can be stressful if he or she let personal emotion to take control. Be sincere in your work for there is no pride when you have won by misleading or hitting below the belt. If you have discharged
7. Hilbourne v Law Society of Singapore [1978] 1 WLR 841
8. Re Sarbadhicary 23 TLR 180 [1906] referred to by David Pannick in Advocates


your duty honestly the result should not bother you. You are not the decision-maker and let that be with the judges. Do good and be good to yourself.