By RASHVINJEET S.BEDI firstname.lastname@example.org
There was public outcry at the Bar Council’s announcement of a 300% to 400% increase in legal fees. Are the lawyers’ demands for the increase justified?
LAWYERS are not exactly the most popular people around and they are often the butt of jokes. In many cases, it has to do with the fees they charge.
Most of us would have heard this universal joke comparing a lawyer to a leech.
Q: What is the difference between a lawyer and a leech?
A: A leech stops sucking your blood after you die.
Jokes aside, consumers often complain about having to pay steep legal fees if they have to go to court, more so if the cases take a long time to settle. Thus, when Bar Council President Ragunath Kesavan announced last week that legal fees might go up by 300% to 400%, there was, not surprisingly, a public outcry.
Saying there is a price to pay for everything, Ragunath justified the rising costs to the better efficiency of the court system in disposing of cases. He also claimed that lawyers would have more responsibilities, spending more hours on cases and taking up fewer cases.
For consumers, this is certainly no laughing matter. Other than matters based on the Solicitors Remuneration Order (SRO) such as conveyancing, all other legal matters are based on market forces.
Engineer P. Sivarajah is still bitter over his experience with his lawyer several years ago, complaining that he had to spend RM200,000 to get custody of one of his two children.
“They strike you in dire times,” he recounts, adding that his lawyer would demand payment just before a court hearing.
The lawyer, he adds, showed little concern for his children’s welfare and he believes the case had dragged longer than necessary.
*Siew Boon Hiew, who is undergoing a messy divorce, can relate to Sivarajah’s predicament. His case has dragged on for five years and he has forked out almost RM90,000 in legal fees. He has been to court five times and seen his lawyers about 30 times.
“I don’t understand why the legal fees are so high. They are in court for 15 minutes, sometimes for a submission and charge so much,” he laments.
Lawyer *Yaw Koo Lin, however, believes that Ragunath was only expressing his frustration with the Key Performance Index (KPI) system introduced by Chief Justice Tun Zaki Tun Azmi more than a year ago.
Because of the KPI, many lawyers claim judges are harder to work with.
As N. Surendran claims, lawyers are not able to take on as many cases and the ability to make ends meet is reduced.
“So, naturally, they will charge more,” he says, adding that he cannot take up as many pro-bono cases now as a result.
However, Zaki has reportedly said that while the courts struggle to settle cases, individual lawyers are to blame for taking on too many cases and then seeking postponements. To illustrate his point, he mentioned a lawyer who had 93 cases in one day.
He also said it was unfair to accuse the judiciary of being obsessed with disposing cases and judges of fulfilling their KPIs rather than serving justice by refusing to adjourn cases.
The Federation of Malaysian Consumers Association (Fomca) is all for speedier cases as this will benefit consumers.
Its president Datuk Marimuthu Nadeson notes that in the past, some cases would drag on for years and the consumer had to bear the increased cost of litigation.
“If there are fewer postponements, then it is only logical that legal fees will also reduce accordingly, as the lawyer’s appearance in courts will be less,” he adds.
He believes it is a win-win situation as the lawyer gets to complete his case faster and collect his fees while the consumer gets the case settled promptly without incurring any extra cost.
“The lawyer might even be able to serve even more clients, thus boosting his income,” says Marimuthu.
Consumers Association of Penang (CAP) president S.M. Mohd Idris says those worried about skyrocketing fees can go to another lawyer and if there is excessive overcharging, they can complain to the Advocates and Solicitors Disciplinary Board.
Idris notes that a common complaint among lawyers now is that court cases are hurried along and dates are fixed without consultation.
“As a result, lawyers are saying they are under tremendous pressure,” he says.
But Yaw, who does both litigation and contract law work, believes lawyers would hesitate to take on new cases when their “plate” is full, although he believes the quantum of increase mentioned by Ragunath is absurd.
“I have assured my clients that my fees won’t shoot up. There is some unhappiness and we have had to clarify the situation,” says Yaw.
Fees other than SRO are agreed upon by the lawyer and client by way of an agreement, whether oral or written, and depend on various factors. These include the amount of the claim, the complexity of the matter and the seniority of the lawyer who handles the case.
“If there is a lot of hand-holding and lots of time spent, they will charge more. There is no clear rule or basis on how lawyers charge their fees,” explains Yaw, adding that a lawyer could do a case pro-bono for instance.
Another lawyer, Edmund Bon, believes fees would not increase due to competition as there are many lawyers who will charge cheaper fees.
“It will only go up if there is not enough supply of lawyers,” he adds.
Bon acknowledges the stress faced by litigation lawyers. Nowadays when he submits a case on Monday, the court would get back to him within a week for hearing. Previously, if he filed a case, he would have to wait a month before the the court got back to him and the date of hearing could take another two months. “It’s good but at the same time, it is moving too fast that it compromises justice and our preparations,” says Bon.
He explains that if cases move too quickly, the judges do not have time to read the submissions and consider the cases properly.
“Judges have said this off-the-record,” he claims, adding that there are cases where lawyers come ill-prepared because they do not have time to do full research.
Another common complaint is that adjournments are always refused, even on seemingly reasonable grounds.
A few weeks ago, it was reported that lawyer Datuk Jagjit Singh collapsed in court after the magistrate decided to go on with the case even after he produced a medical certificate.
A former Court of Appeal judge, Datuk Shaikh Daud Shaikh Mohd Ismail supports the court’s decision to implement the KPI but feel they must exercise discretion on hearing dates, citing Jagjit’s case as an example. Blogger Azhar Harun, better known as ArtHarun (artharun.blogspot.com) says some lawyers have made their name and have a good track record. But not all can charge what they want.
Azhar, who specialises in corporate law, is annoyed that some courts would fix hearing dates even when the lawyers have other pending hearings or are not free.
Azhar cites the case of a lawyer who was having labour pains while arguing her appeal because the court registrar had turned down her request to fix another date.
Azhar also claims there are judges who insist that cross-examinations are limited to within a certain scope in order to “save time” while some insist that cross-examinations must be done in writing.
Idris claims that courts have also started to require lawyers to perform tasks outside of their duties, such as transcribing.
Previously, judges would note down the evidence or submissions in a case, and this would be typed out and given to the various parties involved in the case.
“Now, courts are equipped with recording devices and lawyers are expected to collect the recordings and transcribe the notes themselves,” says Idris.
Senior lawyer *S. Balram notes that previously, everything used to move slowly but now everyone – from lawyers and judges to the prosecutors – no longer have an easy time.
He also believes that previously, lawyers were taking on more files instead of working on them.
“They took it easy before, so now they are not used to the fast pace. It is their fault for not being prepared,” he says.
Yaw admits that cases are being cleared much quicker and this is good for the clients. He believes that everyone is still adjusting to the changes.
“People are now working outside of their comfort zones. If cases are disposed off quicker, clients are happier,” he says.
In an interview last year, Zaki said that strategies taken by the judiciary to expedite the disposal of civil and commercial cases have resulted in a drastic drop in backlog cases.
In Dec 2008, there were 93,523 pending civil cases at all High courts in the country, but the number was reduced to 36,526 by the end of October last year. The number of pending civil cases at Sessions courts dropped from 94,554 to 49,528 cases over the same period, while those in magistrate courts dropped from 156,053 to 82,835 cases.
Lawyer Mak Lin Kum is glad that cases are settled faster these days, as he can bill and collect payment from his clients much earlier.
“We always hear of cases languishing in courts for 15 to 20 years,” says Mak who deals with corporate law and restructuring of companies.
He adds that speedier cases are good for big companies as it helps them in their planning.
“The new system forces discpline as lawyers have to prepare their case adequately before filing in court. We see things moving forward. I don’t see how speeding things up can be disastrous although the workload for some lawyers will increase,” says Mak.
He believes that there were abuses in the past and adjournments were sometimes given easily. But he agrees that some judges could use more discretion when fixing hearing dates.
While the KPI system seems to have pros and cons, many are saying a balance needs to be struck between speed and quality, as the ultimate aim of courts is for justice to be served.
Yaw understands the objective of the KPI, but feels there should be more flexibility.
“I know judges are going through a lot of stress but we need one another,” he says.
He also hopes that people would be more appreciative of laywers.
“People have to understand that behind the five-minute appearance in court is five months of work.”
*Names have been changed.
Thursday February 17, 2011
Sky-high lawyer fees! Bar Council: Legal services set to cost 400% more
KUALA LUMPUR: The Bar Council expects lawyer fees for court cases to increase between 300% and 400% this year.
This means that cases which previously cost around RM2,000 would now cost RM8,000 to RM10,000.
Bar Council president Ragunath Kesavan said this was due to lawyers having more responsibilities since cases could not be postponed easily.
“Furthermore, cases need to be settled in three months,” he said after launching the distribution of a comprehensive guide on how a lawyer’s office should be managed.
Know the law: Ragunath meeting with participants who attended the launch of the MyConstitution campaign at Help University College in Petaling Jaya, Selangor yesterday.
“Previously, filing civil cases at the magistrate’s court costs only RM2,000 but it may rise to RM8,000 or RM10,000.
“This does not include cases filed in the High Court, which has a bigger responsibility,” he told Bernama.
On the manual, he said the Bar Council was duty-bound to assist new lawyers because the number of lawyers who faced disciplinary action has increased.
“Statistics show that the Bar Council’s disciplinary board penalises or takes disciplinary action against 30 to 40 lawyers a year for cheating clients, partners and other offences,” Ragunath said.
In another development, the Kuala Lumpur Bar Committee has written to the Education Ministry to include the teaching of the Federal Constitution in the school syllabus.
Chairman Anand Ponnudurai said it highlighted the need to educate students on the existence and basics of the Constitution.
“The officials seemed positive and the Education Ministry is currently restructuring the teaching content and syllabus of several subjects,” he said after the launch of the MyConstitution campaign at Help University College in Petaling Jaya.
He added that the Constitution might not be a standalone subject but introduced as a topic in other subjects.
“It is sufficient as long as students are educated on the content, structure and true nature of the Constitution,” Anand said, adding that the committee is currently waiting for the ministry to respond to the proposal.