To Be or Not To Be (this Client’s Lawyers)

It is not unusual for lawyers to take on unpopular cases or represent unpopular clients – then suffer repercussions because of it. Notwithstanding this, such should not be the case, for two reasons. Firstly, everyone should have a right to be represented by the lawyer of their choice. Secondly, in order for a lawyer to do their job properly, society at large must be able to separate a lawyer from the client for whom she is acting.

Right to Representation and the ‘Cab-Rank’ Rule

The Federal Constitution enshrines a person’s right to be represented by a lawyer in criminal matters.^[1] Across the board, this right is also afforded to parties in civil cases. In practice, the Court does, within limit, indulge parties’ right to appoint and to change lawyers as they wish (although this should not be used as a delay tactic!).

In tandem with this general principle, the Malaysian Legal Profession (Practice and Etiquette) Rules 1978 mandates lawyers to give advice on or accept any brief in the Courts in which she professes to practice, at the proper professional fee dependent on the length and difficulty of the case,^[2] though special circumstances may justify her refusal, at her discretion to accept a particular brief.

The origin of this rule can be traced back to the ‘cab-rank’ rule in the United Kingdom, which obligates barristers that are appropriately experienced to accept instructions from a professional client regardless of, among others, their belief and opinion of the client^[3] (subject to exceptions^[4]). The ‘cab-rank’ rule derives its name from the concept that a taxi driver, waiting in a cab rank, must take the next passenger she gets, regardless of who the person is and where they want to go.

In the legal context, lawyers have a professional obligation to accept instructions from every client regardless of their view of the case or their personal views of the client (subject to limited exceptions).

The rationale backing this is fairly simple. Insofar as possible, we as a society want to avoid circumstances where people are left unrepresented – especially in unpopular cases. Lord Pearce encapsulates this perfectly in Rondel Appellant and Worsley Respondent [1969] 1 A.C. 191:

“It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable, and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter. And that would be the inevitable result of allowing barristers to pick and choose their clients. It not infrequently happens that the unpleasant, the unreasonable, the disreputable and those who have apparently hopeless cases turn out after a full and fair hearing to be in the right.”

The English Court of Appeal in Skjevesland v Geveran Trading Co Ltd [2002] EWCA Civ 1567 took that principle further:

“If an advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of Judge; nay, he assumes before the hour of judgment, and in proportion to his rank or reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principle of English law makes all presumptions . . .”

Solicitors =/= Their Client’s Causes

A lawyer’s job in Court is to represent their client to the best of their professional ability. In Malaysia, our Legal Profession Act 1976 mandates the Malaysian Bar to ‘uphold the cause of justice… without fear or favour’.^[5] In order to do this effectively, it would be in the best interest of society at large that lawyers do not suffer repercussions because of their representation of an unpopular person.

Principle 18 of the United Nations Basic Principles on the Role of Lawyers^[6] echoes this, providing that lawyers should not be identified with their clients’ causes as a result of discharging their functions. The 1998 Report of the Special Rapporteur^[7] on the independence of judges and lawyers provided that to identify a lawyer with their client’s cause, unless there is evidence to that effect, could be construed as intimidating and harassing the lawyers concerned.

Mischievous Litigation Excluded

Nevertheless, lawyers should not seek to hide mischievous litigation behind the guise of a purported inability to deny representation. Not all grievances carry a sustainable cause of action. A lawyer ought never advise a vexatious litigant from pursuing unmeritorious claims or claims brought for improper reasons that merely serve to clog the Courts’ already very crowded dockets.

In Malaysia, the hallmark of a vexatious litigant (‘vexatious’ comes from the word ‘vex’, which means to annoy, frustrate, or worry) is someone who sues the same party ‘repeatedly in reliance on essentially the same cause of action, perhaps with minor variations’, or which has ‘little or no basis in law and its effect was to subject the opposing party to inconvenience.’^[8]  

A proceeding is vexatious when the party bringing the action is not acting bona fide, and merely wishes to annoy or embarrass his opponent, or when the proceeding is not calculated to lead to any practical result.^[9] Lawyers should not, for instance, encourage clients to create fictitious disputes just to make claims in Court in hopes of eliciting a payday.

When vexatious litigation surface in Court, the consequences can range from:-

• an order declaring that a litigant is a vexatious litigant (which means that the litigant needs to apply for the Court’s permission to commence any litigation proceeding thereon);^[10]
• an application to strike out the claim being filed^[11] (which, if successful, is usually accompanied by an order that the vexatious litigant must pay costs); or
• an order that the lawyer of the vexatious litigant is personally liable to pay costs of the litigation (although the authors are not aware of such orders being made frequently in Malaysia).

Conclusion

At the end of the day, and although this may sound incredibly cliché, a balance needs to be struck between (i) an individual’s right to appoint a lawyer (which necessitates, as a matter of expediency, that the lawyer not be penalized for representing such individual); and (ii) the general moral idea that lawyers are entitled to, and should, reject briefs from clients whom are generally seen to be morally despicable. If a lawyer is entitled to reject a brief, why not a case in which she does not agree with?

The authors hope that this article is able to generate further discourse, and potentially some semblance of an answer to the above conundrum.