A hearty welcome to you, my new compatriot at the Bar.
I have been asked to write a few words about ethical issues and how a young lawyer can deal with them.
When I was called, I remember thinking, not long after the champagne had metabolised and the confetti swept away, that whilst the Republic of Singapore had deemed it fit to call me a lawyer, I really had very little idea on how to stay that way.
In short, how do I keep myself from getting disbarred?
For better or for worse, we have chosen a profession constrained by a myriad of regulations and principles. Not for us the unregulated life of the independent yoga instructor. We are held to a code of ethics the state seems keen on enforcing.
The bad news is, in this job, encountering an ethical conundrum is more a question of when, rather than whether.
The media loves stories of lawyers misbehaving, of lawyers in trouble. We have recurring bouts of a much publicised series of stories of this nature, followed by much hand wringing over how the public’s perception of lawyers had been prejudicially affected.
There have been, and there will be, times where as a practitioner, you feel like this town is out to get you.
For a newly called lawyer, navigating through the minefield of all those rules and guidelines might understandably be a worry. It certainly was for me. I could barely find the practice direction for court dress, let alone remember the maximum disbursement charge for one page of black and white photocopy. I did, however, know I was not supposed to sell ladies’ undergarments in Sarawak. (Re An Advocate [1964] MLJ 1.)
So I tell you now what I wish someone had told me when I got called.
Ethical Conundrums and Where to Find Them
In the course of a career, you are almost certainly going to meet a few ethical conundrums. If you are one of those who do not, you are either singularly fortunate, or so dense you won’t recognise an obvious ethical problem when it is staring you in the face.
The bad news is, in this job, encountering an ethical conundrum is more a question of when, rather than whether.
There is some good news.
First, serious ethical conundrums do not happen every day. You will be quite unlucky to encounter more than half a dozen in the course of your career.
Second, serious ethical conundrums almost never come in disguise. You can usually tell right off the bat when something might be ethically problematic. A good clue is when you realise you are really hoping that this is something the authorities don’t find out about. If it is something you are keen to hide, there is a good chance there is an ethical issue.
In practical terms, the problem is not how to recognise when there might be an ethical issue. The problem is what to do once you have realised there is this issue.
There are two steps once you have realised there is an ethical issue.
First – figure out what the applicable ethical rule is.
Second – decide how you are going to proceed.
Figuring Out What the Applicable Ethical Rule is
Frame the issue, find the rule. This is something which should be in your sweet spot, it’s the core thing lawyers are taught to do. Is the issue one of a potential conflict of interest between you and your client? Is it the possibility of exploitation by you of your client? Once you have identified the issue, the rule should be easy enough to find. There are well known text book resources, both local and English. We have Ethics and Professional Responsibility, A Code for the Advocate and Solicitor by Jeffrey Pinsler SC, and resort can be had to the venerable Cordery on Solicitors and its successor publications.
The Law Society of Singapore website (Members’ Library) has a convenient collection of Practice Directions and Guidance Notes on ethical issues.
Ask around, two heads are better than one. There is no point in bearing the weight of the world on your shoulders. Whatever ethical issue is on your mind, it seems highly unlikely you are the first lawyer ever to have encountered that situation. Ask your peers for their views. Ask your seniors. Even if they don’t have an exact answer, their perspectives will help you find a better answer than if you just ruminated by yourself.
Ask the Law Society, that’s what it is for. The Law Society has an Advisory Committee, which is a committee of the Professional Conduct Council, that proevides guidance to legal practitioners on their ethical obligations. Lawyers can submit a written enquiry to the Committee through the Represent Department (the Secretariat to the Committee) at represent@lawsoc.org.sg . I can report that seeking a view from the Advisory Committee is something commonly done, and many lawyers have availed themselves of this service.
Deciding How You Are Going to Proceed
No one client is worth your career – clients come and go.
In practice, this is the difficult bit.
Knowing right from wrong is easy. Doing the right thing, that’s hard.
When lawyers get into trouble it is not usually because they didn’t know the rule. It is because they decided in that instance, it was worthwhile to take a risk on an ethical rule they knew existed.
In what situations do lawyers decide to take such a risk? Sometimes, it is when the lawyer thinks the risk is worth taking for the chance of a great reward. Cases of misusing clients’ monies or taking a client’s business opportunity often fall into this category.
If you are the sort of fellow who is going to take off with your client’s money, I am afraid I don’t have anything to say that might dissuade you. I wish you bon voyage to your place of exile, please check for extradition treaties before you buy that timeshare. I hope you miss the chicken rice.
More commonly however, it is when the lawyer thinks the risk is worth taking in order to avoid a great deal of trouble. Saying no to an important client for example, or running the risk of incurring the displeasure of a boss.
If you find yourself in that situation, I have one word of advice.
Perspective.
The same problem looks quite different depending on your age.
When you are 16, having a pimple break out the day before the big dance is the end of the world. Not so much 10 years later, when you are all sensible well-adjusted young lawyers.
It is no different in practice. The first time you lose a really big case, the pain is, as the poets say, more than the spoken word can tell. After 20 years at the Bar, one is more philosophical.
No one client is worth your career – clients come and go. Your biggest client today might be someone you won’t remember 10 years from now. Your career might last 30 or 40 years. The remainder of that career is what you are risking. Weigh that in balance when you are considering if this client is worth taking that risk.
No one boss is worth your career – it’s the same with bosses. In these current times, you do not need me to tell you that the days where the normal career path of staying in the same law firm for 30 years are over. If your present boss issues an instruction which gives you an ethical concern, voice your concern. It does not have to be confrontational. You could voice your concern as a question. Rather than making this a contest between your reading of the ethical situation versus your boss’, you could volunteer to draft an inquiry to the Law Society for guidance on this point. But do not stay silent.
Don’t Panic
I end by recalling a quote from Mark Twain that sums it up: “I’ve had a lot of worries in my life, most of which never happened.”
At this stage, you may not have at your fingertips all of the many rules and principles of ethics and professional conduct, nor can you anticipate the various ways which you might be put to the test in the future. It matters not.
Let us instead have a sense of perspective.
The fact is that large numbers of people in this country have been called to the Bar before you, and most of them managed to complete their careers without a disciplinary hearing. It seems unlikely that, as a batch, you lot are materially different from those who have gone before you.
So chances are, you will end up being fine.
The journey might be interesting though.
Welcome to the suck. May you all live long and prosper.
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