Click here for Special Report I, here for Special Report II, here for Report III, here for Report IV, here for Report V and here for Report VI.
The last day of the conference (30 September) saw the attendance of delegates dwindling. Perhaps it was the myriad of overlapping sessions discussing difficult and serious issues of the profession for the past 4 days which have sapped them.
Increase the value of current clients: the R-A-I-N-B-O-W approach
This session led by Pippa Blakemore saw us broken into groups of about 4–5 delegates on each table working through a handout. Essentially, the R-A-I-N-B-O-W strategy aims at increasing the quality and quantity of work from clients in addition to handling clients and managing their expectations.
The said strategy is divided into the following core areas:
- R = Research
- A = Anticipate
- I = Instructions
- N = Normality
- B = But (French for “goal”)
- O = Ongoing
- W = Win
It was a productive session, and it would be useful for anyone interested to work through the said handout to internalise the issues and questions which lawyers should ask themselves when handling clients.
The lawyer’s role in society: perception of core values
This highly interactive session was the last session of the conference and saw a large participation. There were 17 panellists, which included 2 journalists, in-house counsel for major companies and clients who work with lawyers. The 2 journalists would be asked to pose questions which challenged core values of the profession, and in turn spark responses from the other panellists and delegates from the floor. The discussion was at times heated, and gave an interesting insight into how the media and clients perceived the profession.
The discussion had, as a starting point, the following apparent core values:
- Law is important.
- Lawyers have an obligation to: clients, courts, law, and society.
- Independence.
- Attorney-client privilege/secrecy.
- Loyalty/non-conflict.
A comment was made that as lawyers we sound “elitist” with use of words such as “rule of law” and “privilege”. To commend ourselves to the society, we should change our language and use simpler terms.
There was then a discussion whether acting in accordance with the “rule of law” necessarily meant that we would be acting in the “interests of justice”. For example, if an accused informed his lawyer that he has murdered someone, and after a trial, the accused is acquitted, the rule of law may have been preserved but is such a decision in the interests of justice and the society? Does the rule of law uphold justice or is it merely a “tool” in the administration of justice which acts as an objectively justifiable gauge of what is in the public interest?
Flowing from this, the fundamental rights of an accused were also challenged as part of the basic tenets of the rule of law. These include the right to a fair hearing and trial, the presumption of innocence until proven guilty, and the burden on the State to prove the crime beyond a reasonable doubt. If the judicial system is “unable” or “unwilling” to lift the presumption of innocence after a trial, then “so be it”. The lawyer’s duty is solely to perform a service and his role in the administration of justice; albeit a murderer who goes scot-free does not amount to justice being served.
There was an issue whether the nature of core values differs for a “litigation lawyer” as for a “transaction lawyer”. A delegate questioned whether there was such thing as a “fair legal advice” for transaction lawyers. He said that there must be “fair criminal trials and fair civil trials”, and these concepts are easy to understand for the layperson. But in respect of contracts and transactional matters where advice is sought, are there “fair values” of advice or “justice in legal advice”?
An Argentinian lawyer who specialises in public interest litigation held the view that as lawyers, we “advocate best arguments to support our ideas and our decisions in society”. We are in effect “rhetoric equalisers” where we put our arguments for our clients in the public interest sphere. These “best arguments are the arguments of justice which are disinterested from the interests of our clients”. Clients, courts, the law, society are therefore one and the same thing.
Francis Neate said that there is “no absolute principle in this world” and there are always exceptions to rules. We argue based on principles but there are always exceptions. Principles are formulated for the public interest and what public interest requires.
The discussion then moved on whether the core values of the profession in one country differs from another. What happens when cross-border work is executed and there appears to be a conflict of values between the jurisdictions which affect the work? Is there a need for a uniform code of values of ethics for all jurisdiction? Is there a need for the harmonisation of conflict rules — for example, one jurisdiction may allow advertising but another does not. IBA itself has produced its own minimum standards.
After some discussion where different experiences were related, there was a quiet acknowledgement that the duties and ethics of a lawyer are common in all jurisdictions. The difference may be in the technical applications of the same within different bars but when one speaks of core values, they are the same. To this end, the profession stands united.
The discussion continued with the complaint that lawyers do not openly acknowledge the “good” of the profession. There are many jokes about lawyers, and lawyers tend to exacerbate it by denying statements that lawyers “earn too much” or are only after the money. Lawyers should openly be proud of the profession and highlight the good work that we do such as pro bono work and community law projects. These are matters which, for example, the accounting profession does not do. We should “put that out and should not be ashamed”.
Hans Corell related his vast working experience with the UN and his government. He said that the “rule of law is not easy for people to understand”. The legal order is “not always just but we must have democracy and human rights combined to sustain the rule of law”. We are “servants of the society” and after working with many people from various jurisdictions, he found that they “never disagree on values but merely on substance of the matter at hand”. Corell ended by saying that “the only thing you have is to ensure that you have done your duty at the end of the day to society after looking at ourselves in the mirror”. A prime example is in helping build the rule of law in countries not as fortunate as from where we come from.
Lord Daniel Brennan QC asked why are lawyers reluctant to admit how much money we earn in the profession. We should not “downplay our earnings because it causes a lot of problems”. We should “accept that we earn a lot then ask the outside world what do they want from a lawyer?”. The public trusts lawyers because we are ethical and competent; the problem arises due to a “mixture of superficiality and economic drive”. We “need to explain that we help citizens live within the rule of law, human rights and democracy” and we must declare this. Otherwise, “creeping threats” rather than “overnight disasters” will affect us. We must also “stop talking among ourselves as to core values but look to what the public sees as our core values”. But we cannot communicate this if we do not understand ourselves. We “pretend about our earnings but we should not try to hide this because we are going good things”.
There was then an issue of the relation between the rule of law and economic, geographical, cultural and religious factors. How does one promote the rule of law to society at large where economy is a main factor? The discussion elucidated several different points of view and held that “in general, rich countries are better known to have a strong rule of law”. Hence, the way we could bring it out to society is to encourage support for the rule of law as it will financially benefit them at large.
The Prague Jews
Josefov is the Prague Jewish town which bears testimony of the history of the Prague Jews who were confined within a walled ghetto until 1848. There are many synagogues and a cemetery which are now sites reminding us of their troubled past.
I visited the 6 sites — the Maisel Synagogue, the Spanish Synagogue, the Pinkas Synagogue, the Old Jewish Cemetery, the Klaus Synagogue and the Ceremonial Hall. Unfortunately, at most of the sites, they did not allow photographs to be taken. The poignant Old Jewish Cemetery, as the photographs show, served as a burial site for more than 12,000 Jews where, due to the lack of space, they had to be buried on top of each other. The Pinkas Synagogue had collections of drawings by children from the Terezin concentration camp, many who died there.
As a whole, it was an exhilarating conference where many lessons where learnt and I would strongly encourage members to consider attending similar conferences in the future. It gives you an insight to the profession from a global perspective, something which is not often encountered in our daily lives working as lawyers in Malaysia. Further, the quality of the speakers and presentations are of a high standard and unparalleled if compared to those during the previous Malaysian Law Conferences or the Commonwealth Law Conference at Melbourne.
Source: https://www.malaysianbar.org.my/article/news/bar-news/news/final-report-on-iba-conference. Archived at https://perma.cc/X4PF-UZ8X
