The no-discount rule is a form of protectionism which is anachronistic and an affront to individual liberties. One point that is worth reiterating is that what the Solicitors' Remuneration (Enforcement) Rules, 2004 (SRER) purports to enforce goes to the very root of fundamental liberties and administration of justice.

The manner in which the rule is being enforced can be likened to a situation whereby the alleged is presumed guilty unless proven innocent. On the contrary, one of the basic tenets of criminal law is that one is presumed innocent unless proven guilty. Sir William Blackstone rightly stated that "better that 10 guilty persons escape than one innocent suffer". It is simply uncalled for that lawyers should be asked to prove their innocence by statutory declarations and filing of returns.

What the Bar Council is currently doing in flexing its bureaucratic muscles under the SRER is tantamount to declaring it does not accept the said axiom and that every advocate and solicitor is deemed to be guilty until proven innocent i.e. the Bar Council is satisfied with the information and documents contained in the said return form. It would therefore appear that a criminal is better protected under the law than an advocate and solicitor despite the constitutional safeguards under Article 8(1) of the Federal Constitution that "all persons are equal before the law and entitled to equal protection of the law".

The Bar Council should only act upon complaints being lodged. Furthermore, it is most ironic for us to advise our clients of such rights like individual liberties and presumption of innocence when we do not accord such rights to our fellow practitioners. It is also very degrading to be subjected to scrutiny by your fellow practitioners (peers, juniors or seniors).

The bottom line is fellow practitioners who are active practising conveyancers, doing the same type of work i.e conveyancing; in the same panels of banks, developers, corporations etc. should not be sitting in the enforcement committee. There's always the possibility of them handling the same projects or doing the same kind of work or business competitors with the lawyers complained against (the opposite party). They should not be the ones holding the Damocles sword over our heads.

The enforcement committee members can argue that the accounts and documents shall be scrutinised by independent auditors and not them and that they are not free to do the checking. The point is that regardless of the integrity of the committee members or whether they have the time to check or not or whether they are doing the checking or not, the fact that such conflict of interest exist is again an affront to justice as justice must be seen to be done.

It was argued that information like name, identity card number, address, property particulars, price etc are within the public domain and can be obtained through land searches and thus the information are not confidential or privilege only to solicitor and client. I beg to differ as there is much public outcry over the availability of such information within the public domain and the government is taking steps to bill the data protection laws in order to circumvent this problem.

Further, 'documents' like invoices; letters of offer from banks and receipts divulged our clients' names, identity cards numbers, address, properties' particulars, prices sold etc. If that is not in breach of client-solicitor privilege, I don't know what is. One senior lawyer in Seremban commented that his client's private and confidential deal may be compromised in the event that he was required to file his returns during the corporate manoeuvres.

"Legal professional privilege is a fundamental condition on which the administration of justice as a whole rested" (as per Privy Council in B and others v. Auckland District Law Society and Anor [2004] 4 All ER 269) wherein their Lordships expressed dismay that "a professional body representing solicitors who have the most solemn professional obligation to honour their undertakings, should have been seen fit to argue that it was free to disregard the obligations undertaken on its behalf" and has acted dishonourably in challenging the claim of professional privilege by the appellant.

Flawed enforcement rules

Let me clarify my position at the outset. My disdain for the no-discount stems from the SRER. The manner in which the SRO (Solicitors Remuneration Order) is being enforced. Actually, enforcement of the SRO is already provided for under rulings 20 & 21 of the Conveyancing Practice Rulings 1997. From the three resolutions on the no-discount rule which were defeated at the Bar annual meet last month and the feedback of some senior members, the SRER is obviously flawed as it impracticable, questionable and illegal. It is impracticable because members have to do extra work to file the returns, disrupting the flow of work in their respective firms and incurring unnecessary costs.

It is questionable and illegal because members would be in breach of their client-solicitor's privilege by providing copies of the invoices and documents to a third party, i.e Bar Council. I am reminded of Frederick Hayek's The Fatal Conceits: Errors of Socialism where Hayek dismissed as 'fatal conceit' the idea held by some modern day intellectuals that human ingenuity could fashion a societal system which was more humane and fair than the invisible hand of the free market. We can draw an analogy between socialism (in Hayek's example) and the SRER, here. No superhuman or committee could possibly possess all the knowledge to work out a system that could do better.

A good system is one which had been selected through a competitive process : practices which were successful perpetuated; those that were not dropped.

Social norms and practices did not stem from some great mind, committee or underlying principle which sanctioned some actions or men. Therefore, it is my opinion that the Bar Council should not endeavour to create an all-encompassing set of enforcement rules (which is impossible) and let the 'invisible hand' of free market to achieve order out of the perceived disorder.

It is hereby humbly submitted that threatening an advocate and solicitor who declines to submit the said return form of disciplinary action may amount to conduct unbecoming of the Bar Council which has surprisingly forgotten that an advocate and solicitor who has completed and submitted the said return form would have in fact committed an unethical act by breaching Rule 35 of the Legal Profession (Practice and Etiquette) Rules 1978 i.e. disclosing confidential information without the consent of his client.

The Bar Council should only act pursuant to Rule 4(1) of the SRER if it has reasonable cause to believe that an advocate and solicitor has committed a breach of the provisions of the SRO or any rules and rulings of the Bar Council. The enforcement of the SRO has already been provided for under Rule 20 and Rule 21 of the Conveyancing Practice Rulings published by the Bar Council in the blue booklet in 1997 comprising inter alia the Rulings of the Bar Council.

The Bar Council's decision to serve the said return form on all legal firms, irrespective of whether or not any information or complaint has been received against any firm or any advocate and solicitor thereof. With due respect, I am of the humble view that in purporting to act on its own motion pursuant to Rule 4(1) aforesaid, the Bar Council has either completely forgotten or has chosen to ignore the above principles of law. Further, I beseech the Bar Council to look into other modes of enforcement which does not infringe into data protection laws, individual liberties and anti-trust laws.

Charity and goodwill

The oft-repeated adage, "it is better to give than to receive" (especially coming from a lawyer) may be gobbledygook to the cynics but there are some lawyers out there who are genuinely charitable. I know of one altruistic albeit loaded lawyer in Seremban who goes all out to help the beggars and drug addicts loitering in town. He cleans their wounds, helps them cross the roads, provide them with food etc. He even maintained his practising certificate in order to provide pro bono legal services to the poor and helpless. What about those of us who are not filthy rich and cannot afford to give pro bono services all the time ? Is the Bar saying that we need to seek their permission to give discounts to those not so well off clients or even our own relatives?

There are some lawyers who provide legal services for a nominal sum out of goodwill or charity. How can altruism be punishable? There's a very fine line between undercutting and goodwill. The former is morally wrong. I am of the opinion that one would be foolish to undercut beyond one's means. The free market can ensure that an equilibrium be attained. Goodwill, on the other hand, is extremely good for business. Clients love it if they can obtain some discounts, no matter how little. On the same note, we (lawyers) love it if we can obtain discounts. A senior lady lawyer once told me that she was so elated to receive a RM1.00 discount for her broom! Goodwill, which is at the discretion of the conveyancers, can ensure a long lasting relationship with clients.

The Bar Council should be discerning enough to realise that the dignity and integrity of the legal profession is not compromised merely by the practice of giving discounts. There are many factors and one of the most pertinent is the lack of control on the quality of the legal profession. There should be transparency. The public must be informed with statistics of the number of legal firms that are being established, number of lawyers being called to Bar, number of firms which ceased operation and the reasons for the ceasing of operations, etc.

Conclusion and proposal

My proposal is for the scale fees to be maintained so that there's a ceiling for the solicitors to charge. It was mentioned that a senior conveyancing lawyer (now litigation) from Singapore stated that the Singapore experience with a free market has been very bad for lawyers. I agree.

Hence, the scale fees should be maintained but allow ourselves the liberty and discretion to give discounts up to a certain level. The no-discount rule nurtures and breeds an environment of one lawyer spying or snitching on another, which is not conducive to the spirit of camaraderie which must surely subsist in a professional body such as ours.

The Bar Council should investigate only when there's a complaint and not embark on a witch-hunting. This type of protectionism is not only bad, it is fascist. Martin Luther King Jr, so astutely observed that "justice denied anywhere diminishes justice everywhere".

How can we deny justice to ourselves and then purport to achieve justice for others? How can we hide behind the cloak of protectionism, when we want freedom from discrimination in all forms?

How can we continue with the charade of no-discount manipulations and expect our clients to be honest with us?

Let us go to the next annual meet in March and make things right. Resolve this: Maintain the scale fees, abolish the no-discount rule by allowing a maximum discount of 35 percent Trust me, it is good for your conscience and good for the betterment of the legal fraternity.

Time to discard the 'crutch' Part 1