When I was asked to write this article on ethics and professional practice for young lawyers, I started reminiscing about how it was for me as a young lawyer newly called to the bar. I like to believe that it was not too long ago. I still remember how stressful it was being a young lawyer and having to grapple with a myriad of new challenges that you have not been taught how to deal with in law school. How do we manage difficult clients? How do we deal with demanding supervisors? How do we manage our time to meet the tight timelines given to us by the Courts? These are all issues that trouble a young lawyer and it is very easy in the process to lose sight of your professional ethical obligations.
Young lawyers would do well to remember that they should be the “knights of the law” and the “champions of justice”. Ethics lies at the very core of good lawyering. It cannot be incidental to other concerns such as one’s desire to placate the client and churn more revenue for the firm. Therefore, even as a young lawyer, you need to take responsibility for how you conduct yourself in relation to your client, your peers and the Court. Ultimately, did we not all, in our interview for a place in law school, say that we wanted to study law because we believe in upholding justice? You are a fiduciary of your client and with that comes a great responsibility to always put your client’s interest at the forefront.
What then happens if you are faced with an ethical issue that you are not able to resolve on your own? The first thing to do would always be to ask for some time to reflect on the matter, be it from your client or from the Court. Do not attempt to guess your way through it. Speaking to a senior lawyer in the firm always helps. Alternatively, the Law Society’s Advisory Committee was formed to provide guidance to members on matters relating to ethics. You can also approach the Law Society’s Advisory Committee with your queries.
I will now spend some time discussing your three most important relationships in practice. Your relationship with your clients, your relationship with other lawyers and your relationship with the Court.
Relationship with Your Clients
Clients. You cannot live with them. You cannot live without them.
Clients can sometimes be very difficult to manage. Very often, if you are assisting a more senior lawyer, clients tend to think that you are not senior enough to handle their cases and they do not want to communicate with you. It is therefore not unusual to receive unjustified and/or rude e-mails from clients that can be demoralizing. In such a case, you have to put forward your position firmly and forthrightly without descending into a bitter spat. Personally, when I receive an unwarranted and rude message from a client, I find that it helps to take a deep breath, distract yourself by doing another piece of work before returning to the table to craft your response to the client. Do not fight with your clients.
Relationship Among Lawyers
There may be occasions when you face immense pressure from clients to be more “aggressive” when there really is no reason to be. You will have clients asking you, “Why are we not putting on record all my grievances about the opposing party’s conduct of this case?”, “Why are we not insisting that this matter be heard tomorrow?”, or “Why are we so agreeable to everything they ask for? Isn’t this seen as a sign of weakness?”
When you try to explain to the client that litigation is not just about aggression and unnecessary aggression would sometimes serve to obscure the real issues or prolong the case, you may receive replies from your clients saying, “You really don’t get it”, or even “What then are we paying you for?”
Usual situations of unnecessary aggressiveness which you might be pressured into engaging in may include the following:
1. Not coming to an agreement with the opposing counsel on case management matters, such as timelines for filing documents or re-fixing a pre-trial conference or hearing date;
2. Making unwarranted and unsubstantiated allegations by way of correspondence about the opposing party’s conduct in the case or, more seriously, the opposing counsel’s conduct of the case; and
3. Communicating to the Court or setting down in writing matters which should not be communicated or put in writing.
Now, it is of course true that being firm or even “aggressive” to the opposing party is necessary in litigation. Sometimes (and especially before litigation starts), aggressive correspondence may potentially be useful in convincing the other party of the merits of your client’s case. This potentially encourages the other party to accede to your client’s claim.
One must, however, not lose sight of the woods for the trees. Excessive and unnecessary aggressiveness can: (a) be practically counter-productive; (b) prejudice your client’s rights; or (c) even land you in disciplinary action.
In relation to the practical impact of being unnecessarily adversarial, you should always remember that you may well be acting for a particular client only once, but you may come across the opposing counsel in many other occasions in the future.
Practical problems arising from excessive aggressiveness may include the following:
1. When it is your turn to require an extension of time or re-fixing of a hearing date, the opposing counsel may be less willing to advise the client to accede to your request.
2. You may become mired in litigation by correspondence. Such continuous acrimonious letter writing often adds very little to the strength of your case and wastes valuable time and resources.
3. Your opposing counsel may be less willing to share things with you in confidence. This would be unfortunate. Many times, candid sharing of information between lawyers can be useful for the purposes of exploring an amicable out-of-Court resolution.
The ways in which excessive aggressiveness may prejudice your client’s rights include the following:
1. If you engage in extensive correspondence setting out your client’s account of the facts in the particular dispute, your client may become unnecessarily constrained in terms of the evidence that he can subsequently give on affidavit or on the stand. Stating too much over a series of written documents may also increase the risk of your client being inconsistent with his or her account of the facts.
2. Judges are not usually impressed by acrimonious litigation. If your client’s account of the events is presented too zealously, the trial Judge might form the impression that your client is too clouded by acrimony to give a credible account of the facts. Often, a trial Judge would likely be more persuaded by matter-of-fact presentation of facts and dispassionate legal analysis. More often than not, an aggressive series of correspondence confuses rather than clarifies matters, making it difficult for the Judge to understand what the crux of your client’s case is.
3. Excessive aggressiveness may result in your client having to pay costs that are vastly disproportionate to the actual sums at stake. Further, excessive aggressiveness may detract from the main point of litigation, which is for the dispute to be resolved rather than exacerbated.
You must also realise that you owe the Court a duty to ensure that litigation is conducted in an economical fashion. Judicial costs and resources should not be spent ventilating matters that cast more heat than light. If you engage in unnecessarily aggressive litigation, the following consequences may ensue:
1. Being ordered to personally bear costs ordered against your client;
2. Being made the subject of disapprobation in a written judgment; or
3. Being referred to the Law Society for disciplinary action.
At the end of the day, you should not treat your opposing counsel as your enemy. Before a Court hearing, it is always polite to greet the opposing counsel. If your opposing counsel won a contested hearing, congratulate him and shake his hand. Be courteous always.
There is also no need for lawyers to ratchet up the acrimony among their respective clients. To the extent possible (and of course without prejudicing your client’s rights), try to put yourself in the shoes of the opposing counsel. Urge your client to grant minor indulgences here and there where it will not affect the merits of the claim. You never know when your client (or you) would need the reciprocation.
From the viewpoint of a junior lawyer, this is much more easily said than done. How do you deal with a client who pressurises you into being unnecessarily “aggressive”? Unfortunately, there really is no hard and fast solution. These are some things that, depending on the circumstances of each case, you can consider doing:
1. Having your partner explain to the client that excessive aggressiveness would not advance his or her case and may even result in the Judge having a poor impression of his or her credibility;
2. Explaining to the client that time and resources can be better spent on other matters which would actually advance the client’s case, such as legal research or reviewing the documents;
3. If you have to send a particularly harsh or even offensive letter to the opposing counsel, it is always polite to give the opposing counsel a courtesy call to let him or her know that an aggressive letter is coming.
Indeed, it can be frustrating if you are doing all you can to advance your client’s case, yet your client still thinks that you are not aggressive enough in protecting his or her interest. However, in my view, it is more important to gain the respect of your professional peers than to temporarily appease a client. It is also useful to think about the big picture: Ultimately, it can only be in your client's best interest if you conduct the case in a respectable and ethical manner.
Relationship with the Court
It would have been repeated throughout the Ethics and Professional Responsibility course during Part B that your foremost duty as a solicitor would be to the Court. Your duty to the Court should surpass your duty to your client.
As a young litigation lawyer, you need to understand that how you behave in Court will affect your practice in the long run. One of the biggest mistakes you can commit in Court, not just from an ethical standpoint but also from an advocacy standpoint, is to dishonestly overstate your case or misrepresent the opposing party’s case to Court. Such conduct is unethical because it is intended to mislead the Court. In fact, you may have noticed that with certain senior lawyers, Judges would tend to take their word for what they submit is the legal position on a particular issue or what they submit on the evidence without needing to be brought to the relevant authorities or documents. Having dealt frequently with these senior lawyers, Judges are able to trust that they would be able to present the evidence and law fairly and accurately. To gain the trust and respect of the Courts is what I believe all litigation lawyers should aspire towards.
Recently, there has been a lot of talk about the need for punctuality in Court. The duty of a solicitor to always be punctual for Court hearings stems from the larger principle of being respectful of the Court. In relation to being respectful of the Court, even if a Judge is not looking at you directly, the Judge would still notice or hear what you do or say in Court. After spending days or weeks preparing for a Court hearing, it is not surprising if you become increasingly convinced by your arguments and the merits of your client’s case. When the Judge then rules against you in a case, it is very easy to let loose your indignation or frustration outwardly in Court. However, you should know that by doing so, you would not only be discourteous to the Court, you would also seem petty before your opposing counsel. Like the models that lost a beauty pageant or the actors who lost the Academy Awards, you should put on a polite face, congratulate your opponent and move on.
What I wish to leave you with is this: Legal practice is a marathon. If you are ethical in your practice, other practitioners will know that you are capable of good lawyering and are more likely to refer clients to you. If you are honest in your dealings in Court, the Judges will also recognise you for being a righteous lawyer who can be trusted to be fair, thorough and accurate in your submissions to Court. Ethics should therefore exist as the foundation of your practice for without ethics, true professionalism and lawyering will escape us.