1

Malayan Law Journal Articles/1995/Volume 2/THE ROLE OF LAWYERS AND THE BAR COUNCIL IN
SOCIETY

[1995] 2 MLJ xxix

Malayan Law Journal Articles

1995

THE ROLE OF LAWYERS AND THE BAR COUNCIL IN SOCIETY

S Sothi Rachagan
BA (Mal); Dip in Arts, MA (Otago); LLM (Bristol); PhD (Lon) of Lincoln's Inn, Barrister-at-Law; Professor and
Dean, Faculty of Law, University of Malaya

Introduction

'What do you call a thousand dead lawyers at the bottom of the sea? A start!'
'The only good lawyer is a dead lawyer.'

Lawyers have always been the butt of many a tasteless joke, often suggesting the use of force or violence of
some sort against them. Such jokes and statements are not only heard at social gatherings; they are very
much a part of even the written tradition. Sir Thomas More conceived Utopia as a place where there specifi-
cally were no lawyers, and Shakespeare wrote in Henry VI, Pt 2: 'The first thing we do, let's kill all the law-
yers'. Benjamin Franklin is recorded as having once announced with surprise, 'God works wonders now and
then; Behold! a lawyer, an honest man'. This 'rich' tradition of giving lawyers a hard time has continued to the
present.1 Among the many professions, it is the legal profession that seems to be the most despised and
criticized by the rest of society ... or is it? It has even been suggested that public discontent with the legal
profession has increased over the years, a suggestion that appears to have been accepted and is echoed by
even members of the Bar. The statistics compiled by the Bar Council itself are held to be reflective of this
public concern and as evidence that lawyers and the Bar Council have failed society.
This paper first deals with some of the reasons why there has been an increasing number of complaints
against lawyers. It then argues that the role of lawyers and the Bar Council in society is to contribute to the
welfare of society by:

(1) ensuring honesty and competence in professional practice; and

(2) improving the quality and availability of justice to all Malaysians.
2 MLJ xxix at xxx
With this as the backdrop, the paper suggests some ways in which lawyers and the Bar Council can play this
role effectively.

Increased complaints against lawyers

The number of complaints against lawyers each year has increased from 104 in 1981 to 797 in 1994 -- an
alarming increase by any measure. The increase has taken place at a time when there has also been a large
number of new admissions to the Bar.
Even a single complaint is one complaint too many. It is cause for concern and must be investigated thor-
oughly. However, these statistics in themselves do not establish that standards have declined significantly in
the legal profession. They are not evidence that law schools are producing less competent law graduates;
that there is an increase in the number of lawyers involved in dishonest conduct; that the legal profession is
 2

the most despised profession and against which there is the largest number of complaints; and, that there
should be a bar on third class degree holders from UK universities. These statistics2in themselves indicate
little else other than the fact that each year a larger number of persons have lodged complaints against law-
yers.
It is indeed strange that a profession which in its practice requires very stringent standards of evidence does
not subject the data presented against it to greater scrutiny. It could well be that standards are falling. How-
ever, it is necessary to record some important factors that contribute to there being a large number of com-
plaints against individual lawyers and criticism of the legal profession.
First, complaints against lawyers are due in part to the very nature of the work that the legal profession is
involved in. Defendants in civil litigation often do not understand why they should have to pay someone to
defend them in a lawsuit they did not choose to become involved in, and that should never have been filed in
the first place. The reality that someone usually has to lose in a lawsuit creates an increasing population of
persons with less than positive exposure to the system and, often, to those who work within it. 3Someone has
to take the responsibility for the loss. So, if it isn't the 'unfair justice system', then it's the 'greedy and incom-
petent lawyer'.
Yet, when a doctor makes a mistake by prescribing the wrong treatment, or a developer is negligent resulting
in the collapse of a building, or a pedestrian is injured through a road accident, or a contract is breached, or a
crime is committed, it is to this very same 'dishonest and greedy profession'
2 MLJ xxix at xxxi
that society turns for help. Even those quick to criticize lawyers ultimately rely on them. Is this because they
have no other alternative? Not really.
An American Bar Association Journal Gallup poll4 showed a broad willingness on the part of those surveyed
to have certain kinds of cases go to mediation or arbitration to save money, but not without a caveat. Nearly
two-thirds of the respondents said that if one of the parties did not like the result, a case should be allowed to
be reheard in a court of law.
Although this could be looked upon as a simple result of the all-too-human aversion to losing, it could also be
attributed to the fact that many people feel if they don't get justice in their informal approach to solving dis-
putes, then they ought to be able to go to the courts, because that's really where you get justice. They come
to the legal profession seeking justice, and though some may argue that this is the very reason for the exist-
ence of the judicial system, when we take into account the attitude and stance taken by today's society to-
wards the courts and the lawyers, this is an incredible compliment. 5Second, the increase in the number of
complaints against lawyers is due to the improved levels of education among the public. We now deal with a
bolder people, more aware of their rights as consumers, and more ready to question our judgments and de-
cisions and to hold us accountable for them. This is to be welcomed. It keeps us conscious of our standards,
but it must be emphasized that the increase in complaints is not confined to the legal profession alone. All
professions have come under increasing scrutiny and criticism. Unfortunately, there is insufficient data for
any meaningful comparisons.
Third, the unfavourable mass media coverage and lawyer-bashing especially since the Bar Council's stand
on the Tun Salleh Abas affair, has created public antipathy to lawyers and an atmosphere conducive to lodge
complaints.
Fourth, and perhaps an important reason for the sudden surge of complaints in the last two years is the will-
ingness of the profession to permit the participation of lay persons in its Investigating and Disciplinary Tribu-
nals. The public undoubtedly has greater confidence that their complaints will be more sympathetically han-
dled and not glossed over and rejected by fellow professionals unwilling to expose their colleagues. Again, it
must be emphasized that it is also only in the legal profession that an open and centralized register is main-
tained of all complaints received.
2 MLJ xxix at xxxii
The disciplinary procedure and record keeping currently in use will permit a more systematic and thorough
analysis as to who, and, in particular, which category of lawyers are causing the most problems in the legal
profession, in terms of training and years of practice, and the kind of problems that are commonly com-
plained about.
 3

This will be greatly assisted if the Rules6 are amended so as to require the Director of the Complaints Secre-
tariat to also record in the Complaints Register all findings of the Investigating Tribunal, and the reasons for
their findings inclusive of any dissenting opinions. This information will enable the Bar to take appropriate
measures to address in a systematic manner the underlying causes for the complaints.
To return to the basic point being made, the statistics of the kind presented in Table 1 do not permit any
meaningful conclusions. They are a poor basis for condemning the legal profession, much less a basis for
apportioning blame and arriving at solutions.

On being a professional
Up to the latter part of the 18th century, the word 'profession', used without qualification, was usually under-
stood as extending only to three great groups -- the clergy, doctors and lawyers. The Industrial Revolution
and the progress of science during the 19th century brought about an enormous increase in the numbers
and types of professions.7 Indeed, the development of a wide range of recognized professions and of profes-
sional associations among their members is a marked characteristic of modern society.
Much has been written about what differentiates a profession from other vocations. A useful commentary is
that of the Australian Royal Commission on Legal Services which 14 years ago stated that:

When a profession is fully developed it may be described as a body of men and women:
identifiable by reference with some register or record;
recognized as having a special skill and learning in some field of activity in which the public needs protection against
incompetence, the standards of skill and learning being prescribed by the profession itself;
holding themselves out as being willing to serve the public;
voluntarily submitting themselves to the standards of ethical conduct beyond those required of the ordinary citizen by
law; and
undertaking to accept personal responsibility to those whom they serve for their actions and to their profession for
maintaining public competence.8

2 MLJ xxix at xxxiii

William Reece Smith Jr, the then president of the International Bar Association, addressing the 9th Com-
monwealth Law Conference said:

... [F]irst ... since lawyers are highly educated in a complex discipline, they are allowed the privilege of self regulation:
those who are uninitiated in the learning of the law are considered unsuited to regulate the profession. Second, in
recognition to the 'common calling' facet of the definition, members of the legal profession nurture a high degree of col-
legiality, civility, and mutual trust. And most important of all because lawyers play a public role as officers of the court
and because the practice of law affords a comfortable and relatively affluent lifestyle, a lawyer is obliged to give some-
thing back to the community either through civic service or pro bono work or a combination of the two. 9

What this means is that there exists a social contract between the professions and society -- a social contract
by which society confers social status upon professionals and permits them the liberty to regulate entry into
the profession. In return, society expects members of that profession to ensure competence and discipline of
its own members and contribute to society by serving the public interest. The role that professionals and
professional bodies have to play is merely to remain true to this bargain.

Ensuring competence and discipline

The increasing number of complaints against individual lawyers may be conveniently classified under two
heads: dishonesty, and incompetence on the part of the lawyer. The public has a tendency to fuse aspects of
these into a general complaint. Often, of course, one is mistaken, even passed off, for the other. This paper
will now address some measures that the Bar Council can adopt to ensure discipline and improve compe-
tence amongst lawyers.
 4

(a) Client's money

The Solicitors' Account Rules 1990 defines what constitutes client's money and requires that this be main-
tained in the client's account and be audited annually. 10 This is a condition for the grant of the annual prac-
tising certificate.
2 MLJ xxix at xxxiv
Despite what appears to be a clear definition, discussions with lawyers will indicate an alarming variety of
opinion as to what constitutes client's money, and what should and should not be entered into the client's
account. Many are just unclear on what the rules have stipulated on the matter.
Perhaps, more detailed guidelines are necessary to ensure that incompetence is not mistaken for dishonesty.
It is also necessary to revamp the current system of auditing the client's account. It has been suggested that
merely auditing the client's account without a simultaneous audit of the firm's other accounts is meaningless
since amounts that should have been paid into the client's account are often not entered into the account but
instead diverted into the firm's account.
If this is the basis for suspicion and criticism, it would perhaps be preferable to have all the accounts of a firm
audited together. It is also crucial that the audit that is conducted be thorough. A system of independent au-
ditors appointed by the Bar Council to carry out random checks of both the client's and the firms' accounts
would lead to a more efficient and thorough auditing system. So long as the choice of auditors is that of the
lawyer, the auditing will be conducted with a view to retaining the account.

(b) Education and training

An essential requisite for ensuring competence is the maintenance of high standards in the education and
training provided to would-be lawyers and continuing legal education for members of the profession. Permit
me to focus merely on the former.
Is the training that the law graduates of recent years receive sufficient? The Bar Council itself seems to have
concluded that it is insufficient and has proposed to resolve the issue by barring those with a third class de-
gree from UK universities from the CLP, again emulating the entry requirements to the English Bar. I have
serious reservations as regards this proposal.
First, there is no reason why we should seek to exclude third class degree holders from UK universities
whilst admitting those with a third class from other jurisdictions, and from our own local universities. Indeed,
many who do an external degree programme are mature candidates who undertake part-time study whilst
working full-time in other jobs. For these students to be able to obtain a third class degree is certainly com-
mendable in itself. The proposed rules will serve to discriminate against such persons.
Second, it is common knowledge that the entry requirements and standards of UK universities vary substan-
tially. It is necessary to scrutinize universities individually as to the content of their courses and the manner in
which the courses are conducted, and recognize only those which are of an acceptable standard.
Third, we have seen in recent years the willingness of academic institutions to compromise their standards
so as to draw ever-increasing numbers of students. My fear is that excluding third class degree holders will
lead the unscrupulous institutions to further lower their standards to ensure that all their students obtain at
least a second lower degree. This
2 MLJ xxix at xxxv
would inevitably lead to an even lower standard of law graduates whilst unfairly discriminating against third
class degree holders from better institutions with higher standards.
Important changes in the recognition of law degrees awarded by United Kingdom universities as a prerequi-
site to sit for the Certificate in Legal Practice examinations were announced on 18 March 1995 11and it is to
the credit of the Legal Profession Qualifying Board of Malaysia that it has rejected the Bar Council's pro-
posals. It is now appropriate for the Qualifying Board to undertake the long overdue review of the CLP cur-
riculum, upgrade the CLP course and make the CLP examination requirements more stringent.
There are at least three important aspects of education and training for practice as a lawyer. The first is
training in the legal method and analysis. All law graduates are presumably trained in this. The two other es-
 5

sential elements are an adequate knowledge of Malaysian law, and, sufficient training in 'professional prac-
tice'.
The law in Malaysia has developed into a very distinct and unique corpus of its own. Law graduates need to
be proficient in it. Although a law graduate trained in Australia, New Zealand or the United Kingdom may
share that great corpus of law that is the common law, they would still need to familiarize themselves with
Malaysian law before they can ever hope to give professional legal advice in our country.
The Malaysian element of the law needs to be integrated and emphasized in the training of law graduates
who have obtained their qualifications in a different jurisprudence. This could perhaps be done by conducting
a common 'qualifying exam' in a graduate school of law for all law graduates from other jurisdictions. The
CLP exam could be considered as a step in that direction.
When the CLP was introduced, the Qualifying Board adopted, with minor variations, the English 'Bar' curric-
ulum then operative in England. The English Bar course is oriented towards training the law graduate to per-
form the duties of a barrister. This is appropriate for a jurisdiction with a split profession where there are oth-
ers who are trained to be solicitors under quite a different syllabus.
But, Malaysia has a fused profession and law graduates are not getting the kind of training that is required to
perform the task of solicitors. Negotiating skills, client communication and taxation, emphasis on settlement
as opposed to litigation, exposure to computers, office automation and management are some of the aspects
that will have to be considered and integrated into the CLP course. These need not all be separate examina-
ble courses. Training for many of these skills can be integrated into substantive law subjects and reflected in
the curriculum, teaching and examination.
2 MLJ xxix at xxxvi
Public complaints against the legal profession appear to be more with regard to the solicitor role of the Ma-
laysian lawyer rather than his role as an advocate. There clearly is a need for our law graduates to be trained
as solicitors. We can no longer leave it to chance that these skills will be picked up whilst on the job, either
during reading in Chambers or after having been admitted to the Bar. Improved training will enable our
graduates to more competently serve their clients.
The Qualifying Board now needs to look into the adequacy of the CLP curriculum, course and examination.
The ideal would be to require all law graduates to sit for a common Malaysian qualifying examination so that
the professional ability of all law graduates in the Malaysian context may be assessed before their admission
to the Malaysian Bar. The curriculum of the law programme in the various Malaysian universities will then
have to be reviewed and adjusted so as to accommodate this.
More and more newly qualified lawyers are establishing firms of their own soon after being called to the Bar.
It has been suggested that newly admitted lawyers spend a period of time (about three years at least) with
established law firms (of seven years standing perhaps, as per the requirement in the Legal Profession Act
1976 ('the LPA') for someone eligible to be a chambering master) before being permitted to establish a firm
of their own. The advantage of this proposal is that the training period would be lengthened by the 'young'
lawyer's interaction with senior members of the firm.
There are, however, a few potential problems with this suggestion. Can we be assured that these young
lawyers will all receive good training with established firms? One only needs to refer to the many complaints
and shortfalls of the current chambering system to anticipate the possible problems. As in the chambering
system, there will be some very dedicated 'Masters' who will impart practical knowledge. Unfortunately
though, there are not enough of such persons. Chambering pupils are frequently taken in as cheap labour,
and even many legal assistants are paid much less than what they deserve.
It is also doubtful whether established firms can accommodate the ever-growing number of law graduates.
Will law graduates be guaranteed jobs over the three-year waiting period? One option is to adopt the Car-
ribean model and abolish the period spent reading in chambers, and replace it with a post-graduate course
at a Professional Law School before entry to the Bar. 12These and many such matters on aspects of legal ed-
ucation need to be addressed so as to better enable future law graduates to competently serve their respec-
tive clients, and society as a whole.
2 MLJ xxix at xxxvii
 6

I have one very important caveat. One of the more commendable features of Malaysian society, especially
since Independence, is the democratization of education and the tremendous social mobility that this has
accorded. Many a current lawyer comes from a humble beginning; he may lack the social graces of the up-
per class but he is a symbol of hope for many who have still to arrive. lt is crucial that the measures we in-
troduce for ensuring competence do not become veiled barriers to social mobility.

Public service
The second important limb of the definition of a profession as mentioned earlier is that of public service. As
Roscoe Pound, American legal philosopher and former Dean of the Harvard Law School so eloquently put it:
to be a professional is to 'pursue a learned art as a common calling in the spirit of public service -- no less a
public service because it may incidentally be a means of livelihood'. 13However, it appears that it is the public
service aspect that has become of late ... 'incidental'! Have our values and principles as a profession evolved
since the days of Roscoe Pound? Are the standards created and placed upon us and expected of us, out-
dated and unrealistic in the context of the values and priorities of society today?
Ours is an economy that has averaged an 8% growth for a sustained period. And, 8% growth has its own
values and dictates, its own laws. Even our assessment of success and our 'heroes' change. The majority of
the heroes of today's society as recognized by the State and society, and even as reflected by court deci-
sions, are apparently either captains of industry or politicians, or to the more cynical, preferably both.
There was a time when judges, professionals, academics, and persons who gave time and energy to social
work were placed on a pedestal by a society that was eager to spread and instil their values amongst the
masses. Today, material wealth is the main indicator of success and the shrine of materialism seduces all,
including those in the professions with a tradition for public service. Even the values that led many to public
service are regarded as inappropriate -- a poignant matter for concern even as we witness our society bask
in this fortune of economic success.
It is not the values of society today that are on trial here. The point being made is that it would be unrealistic
and even unfair for a society with such values to demand that professionals adhere to a set of values that it,
beyond lip-service, no longer regards as crucial.
2 MLJ xxix at xxxviii
Why shouldn't the professionals of today surf this economic wave and reap its rewards the way the rest of
society is doing? Why the higher standards ... why the double standards? When we take into account the
state of society today and couple it with the princely sum that it costs to be a professional, we can justifiably
question the reasonableness of Roscoe Pound's definition of a professional.
It is perhaps no longer reasonable to contend that one's livelihood should be incidental to public service.
However, all professions continue to owe society a debt for the bargain they made and the privileges they
enjoy. Moreover, I believe that the vast majority of lawyers still regard public service as not only their duty but
an honour to be associated with -- and the Bar Council must provide appropriate avenues for this.
The primary responsibility of the legal profession and the special contribution that it can make to society is
ensuring justice -- improving its quality and availability for all our citizens. This is not only a moral duty based
upon the special training and skills of the lawyer and the social contract entered into with society, but also a
statutory obligation imposed by the Legal Profession Act 1976.
The first of the purposes of the Malaysian Bar is 'to uphold the cause of justice without regard to its own in-
terest or that of its members, uninfluenced by fear or favour'.14Three areas on which the Bar Council can
usefully focus to meet this moral and statutory obligation are:

(a) providing legal aid;

(b) improving the legal system; and
(c) supporting alternative dispute resolution mechanisms.

(a) Providing legal aid

 7

Legal aid is a dynamic not a static concept. It may have been thought adequate in the past to merely provide
legal advice and representation to people who could not afford these services from the private profession.
However, it is clear that such an approach is merely a palliative that fails to address the core of the problem.
To address the problem of access to justice, providers of legal aid must focus on the vast unmet need for
legal services that the underprivileged have. Legal aid in the Malaysian context, I believe, must involve a
comprehensive programme of legal literacy and education, legal advice, legal representation, legal research
and campaign for reforms.
It calls for a comprehensive national plan for legal aid and substantial injection of resources to make it a real-
ity. Obviously, this cannot be the sole responsibility of the Bar Council. But the Bar Council must provide the
leadership and bear a substantial portion of the burden to make the plan a reality.
2 MLJ xxix at xxxix
The first need is to chart out a national blue print for legal aid. Legal aid is already offered by the Government,
the Bar Council and a number of other non-governmental organizations (NGOs), including the consumer as-
sociations, women's associations and trade unions. A blueprint for legal aid must therefore be charted not
only by the Bar Council but by all the current providers and other interested parties
Unless a national blueprint is available there will continue to be inadequate and uneven provision of services
and the organizations (including the Bar Council) which commit their scarce resources to this worthy cause
wil be unable to rationalize their efforts. Such a blueprint will have to demarcate the role that the Government
will play and that which is to be undertaken by the other organizations.
The Bar Council must also review its own scheme. Let me at this juncture also record that members of the
Bar, unlike those of any other profession, are the only ones who contribute a fixed sum annually for public
service by way of legal aid. This year alone, the total contribution is in excess of half a million ringgit. The
number of lawyers actually volunteering to do legal aid work, however, needs to be increased. There also is
a lack of commitment from the larger legal firms.
A scheme will have to be devised that will generate more funds and obtain a greater degree of participation
from the legal fraternity. It is necessary to consider whether voluntary legal aid is adequate or whether there
is a need for some form of compulsory service. Compulsory service by the professions is not an untried
concept in Malaysia -- members of the medical profession are required to do a three-year period of service
with the government. One possible approach will be to require all legal firms to contribute a fixed percentage
of their revenue to the legal aid scheme. The amount of work contributed to the legal aid scheme by mem-
bers of the firm can then be offset against the amount payable. Such a scheme would not only bring about a
more equitable contribution by legal firms to the fund but also to the work undertaken by the Legal Aid
Scheme.

(b) Improving the legal system

Richard Quinney in his oft-quoted work 'The Ideology of Law: Notes for a Radical Alternative to Legal Op-
pression'15 argues:

Law is made by men, particularly by men representing special interests, who have power to translate their interests into
public policy. In opposition to pluralists conception of polictics, law does not represent the compromise of the diverse
interests in society, but supports some interests at the expense of others.
2 MLJ xxix at xl

Even the conservative editors of Lloyds' Introduction to Jurisprudence remind us that it 'must always be
borne in mind that beneath even the most apparently technical of rules there may work deeply held social
and political philosophies' that perform latent functions other than those made explicit. 16 But even laws made
with the best of intentions can become outmoded and ineffective and contribute to unjust results.
The legal profession is not unfamiliar with the inadequacies of the law. The legal profession and the courts
daily give effect to these inadequacies and serve to marshall the coercive authority of the state against the
weak and the disadvantaged.
 8

It is cogent at this juncture to examine some of the inadequacies in our law-making process. The majority of
our legislators do not maintain staffers who can research into problem areas and prepare questions and
talking points for discussion in Parliament. It is not a frequent practice for Parliament to appoint select com-
mittees for law reform which can make comprehensive reports on the state of the law in particular areas.
Legislation emanates largely due to the initiative of the Ministries responsible for the enforcement of particu-
lar legislation. In the current system there is little room for a comprehensive review of the law -- what often
eventuates are tinkering and palliative measures.
Another important area to focus on is the courts and their operation. Is our court system efficient? What is
the public's perception of our legal system? The public is aware that their time is squandered. Potential liti-
gants are frightened away by the delays and high costs in resolving disputes. Those who persist and ulti-
mately gain a verdict often see up to half of the recovery absorbed by fees and expenses.
There is an inordinate delay in criminal trials, far too long a remand period and when the judgment is deliv-
ered, apparently inequitable sentencing. The legal system functions on the basis that the inequities will all be
resolved on appeal, but the fact is that a significant number of accused go unrepresented by lawyers and the
overwhelming bulk of our cases do not result in appeals. Our courts have to be made more efficient. There is
nothing incompatible between efficiency and justice. Inefficient courts cause delay and unnecessary expense
and diminish the value of judgment and the court system.
By focussing on reform, lawyers and the Bar Council will not be usurping the functions of the legislature or
the Rules Committee; it is an essential complementary effort and will go a long way towards making the law
and the courts serve those most in need of their protection.

(c) Alternative dispute resolution mechanisms

Lawyers by their training and practice are locked into the court system; it is the system in which they are
most comfortable. The courts are, however,
2 MLJ xxix at xli
under immense pressure. It is not my contention that the courts and lawyers have failed. Maybe there has
been such a great degree of success -- our lawmakers at each session of the legislature pile on more work
for the courts. What is clear is that the queues and the delays are both getting longer and unacceptably so.
There is sufficient ground for apprehension that:

the courts are carrying too heavy a burden, beyond the capability of being mitigated by filling the many vacancies that
exist or even by increasing substantially the appointments approved; and
the courts are being asked to resolve conflicts for which they are not institutionally equipped as other mechanisms can
be.17

It is important to appreciate that the courts have never been the sole mechanism for dispute resolution. The
family, village elders, religious leaders and other traditional mechanisms served a major role. However, de-
mographic, socio-cultural, economic and political changes have served to undermine these institutions. The
shift from a rural-agricultural society to an urban-industrial society has further aggravated these changes.
What has eventuated is that the courts have been expected to and have tried to fill the void created by the
decline of these mechanisms. The increase in work-load occasioned by the waning of traditonal dispute res-
olution mechanisms has been compounded by other developments.
The complex and impersonal life patterns of urban societies and the immense growth of government and
governmental institutions at each level exert greater and greater demands on the courts. Clearly, the courts
cannot continue to fulfil all these obligations. Even if the current situation is tolerable, it is patently obvious
that the courts will be unable to cope with what will come in the next decade.
The inability of the courts to meet the increased demands on it has been particularly oppressive to the dis-
advantaged sections of the population.
If the courts cannot offer relief, alternative mechanisms have to be developed. What we in Malaysia have not
faced up to is whether there are other mechanisms and procedures which can better meet the needs of indi-
 9

viduals and society. Conciliation and mediation bureaus, ombudsman and arbitration tribunals can play a
useful role.18
2 MLJ xxix at xlii
The development of such alternatives will not detract from the significance of our court system. These al-
ternatives will serve as the initial forum and as a filter that will reduce the work-load on the courts.
In the new order the courts will continue to be retained as the ultimate agency for dispute resolution and for
pronouncement on undetermined principles. Cases asserting novel claims will continue to be handled by the
courts. The development of alternative mechanisms will reserve the courts for those activities for which they
are best suited and avoid swamping and paralysing them with cases that do not require their unique capabili-
ties.
What is proposed is that the courts be relieved of the highly repetitive and routine tasks involving application
of established principles to a large number of individual cases. Once the courts have established the basic
principles, quicker, cheaper and emotionally less exhausting and cumbersome procedures can be utilized to
process routine matters.
The support for and creation of alternative dispute resolution mechanisms will put to test the Bar Council's
capacity to support innovative experimentation and its obligation 'to uphold the cause of justice without re-
gard to its own interest or that of its own members'.
Alternative dispute resolution mechanisms will, to an extent, displace work previously done by lawyers, but
the bulk of the cases handled by these mechanisms will be simply matters for which there is currently no re-
dress available. Individual lawyers, however, will be apprehensive that there will be a lesser role for them in
the new order, and there will be pressure on the Bar Council to withhold support.

Conclusion
The role of lawyers and the Bar Council in society is to ensure competence and discipline in the lawyering
process and to contribute to society by serving the public interest. The foregoing parts of this paper sug-
gested some ways in which this role can be enhanced.
Unfortunately, both lawyers and the Bar Council have of late been the subject of much criticism. The number
of complaints against individual lawyers has increased over the years. Each must be investigated thoroughly
and errant lawyers disciplined. The new and very expensive disciplinary procedure that the Bar has estab-
lished, which permits lay representation, will no doubt achieve this.
Let us take the lead role in studying and overhauling our legal system to ensure efficient and better access to
justice, and let us raise public awareness and respect for our system of justice and the essential role played
by our profession in society. For, no matter how strong the foundation, no matter how sturdy the framing, our
system of justice cannot long endure the continued loss of public confidence. Shakespeare's Henry VI, Pt 2
is often quoted: 'The first thing we do, let's kill all the lawyers.'
How many actually realize that Shakespeare actually meant to pay a compliment to lawyers, and not to dis-
parage them? The character who made that statement in Henry VI, Pt 2, Dick the Butcher, was a scoundrel
2 MLJ xxix at xliii
with revolutionary intent. He knew very well that the government could not be overthrown without eliminat-
ing all the lawyers, for, it was the lawyers who were the bastion of law and order, the preservers of personal
rights. 19I believe that the self-flagellation that many lawyers and the Bar Council appear to be engaged in
should cease. Let us with vigour and urgency address our shortcomings, but we will be doing ourselves, fu-
ture lawyers and, indeed the whole system of justice foul, if we permit ourselves be cowed.
2 MLJ xxix at xliv
Table 1
Year New Lawyers No of No of complaints
admissions practising complaints dismissed
1981 100 1304 104 102
1982 134 1417 211 199
1983 191 1592 153 149
 10

1984 200 1681 324 309

1985 310 1987 344 318
1986 301 2235 526 493
1987 257 2428 565 522
1988 282 2608 459 409
1989 397 2774 406 346
1990 509 3160 319 268
1991 660 3488 225 177
1992 598 4043 89* 38*
1993 368 4315 503** ***
1994 896 5189 797** ***
*Up to 31 March 1992.**From 1 April 1992, pending proceedings under new procedure.***31 cases were dis-
missed as having no merit and the rest subjectto investigation.

1 Lawrence Savell, 'Why Are They Picking on Us?' [1992] Am BAJ 72.

2 See Table 1 at p cxxiv.

3 Lawrence Savell, supra n 1 at p 75.

4 Cited in Steven Keeva, 'Demanding More', [1994] Am BAJ 46.

5 Professor Lawrence M Friedman cited in Steven Keeva, 'Demanding More', ibid at p 49.

6 Legal Profession (Disciplinary Proceedings) (Investigating Tribunal and Disciplinary Committee) Rules 1994.

7 The American Peoples Encyclopedia (1962, Grolier Inc) (New York) Vol 15 at p 995.

8 Cited by the Rt Hon Lord Alexander of Weedon QC in 'The Role of the Advocate in Our Society' [1992] 1 MLJ xxxvii at p xliv.

9 Cited by Prof Godfrey Smith in his paper entitled Professionalism in the Legal Profession: An Overview presented at the In-
ternational Seminar on 'Professionalism and Specialisation in Law Practice in Malaysia: Challenges and Prospects in the Com-
ing Decade', organized by the Malaysian Muslim Lawyers Association on 10 June 1993 at Kuala Lumpur.

10 Rule 2 of the Solicitors' Account Rules 1990 defines 'Client's money' as 'money held or received by a solicitor on account of
a person for whom he is acting in relation to the holding or receipt of such money either as a solicitor or in connection with his
practice as a solicitor, agent, bailee, stakeholder, or in any other capacity and includes solicitor trust money but does not include
money to which the only person entitled is the solicitor himself or, in the case of a firm of solicitors, one or more of the partners
of the firm'.

11 See Vincent Powell-Smith, 'A Short Note on Malaysian Legal Education and the Recognition of United Kingdom Law De-
grees' [1995] 1 MLJ lxxxix.

12 Harun Hashim SCJ, in his paper, Ethics in the Legal Profession: Now and in the Future presented at the international semi-
nar on 'Professionalism and Specialisation in Law Practice in Malaysia: Challenges and Prospects in the Coming Decade' orga-
nized by the Malaysian Muslim Lawyers Association on 10 June 1993 at Kuala Lumpur.

13 Cited in 'The Legal Profession, The Rule of Lawyers' in The Economist, 18 July 1992 at p 3.

14 Section 42(1)(a) Legal Profession Act 1976.

15 In The Sociology of Law: A Conflict Perpective (1978, Butterworths) Toronto, Charles E Reasons and Roberts M Rich (Edi-
tors) at p 41.

16 Lord Lloyd of Hampstead and Freeman MDA, Lloyd's Introduction to Jurisprudence (1985) Stevens & Sons Ltd, London at p
57.
 11

17 For a discussion of alternative dispute resolution and the courts, see Simon H Rifkind, 'Are We Asking Too Much of Our
Courts?' (at pp 51-64) and Frank EA Sander, 'Varieties of Dispute Processing' (at pp 65-86) in Levin A Leo and Russel R
Wheeler, The Pound Conference: Perspectives on Justice in the Future (1979) West Publishing Co, St Paul, Minnesota.

18 See Linda R Singer, Settling Disputes, Conflict Resolution in Business, Families and the Legal System (1990) Westview
Press, Bounder, Colorado.

19 Lawrence Savell, supra n 1 at p 75.