The price of advice ARTICLES OF LAW By BHAG SINGH

There are many factors to consider before seeing your lawyer.

WHEN we have a problem, we don’t think twice about going to see our lawyer in the expectation and hope that everything will be attended to.

On some occasions, however, this may be an extremely simplistic way to look at the situation at hand.

In business, life has become more complex both in commercial transactions and when it comes to the commission of offences.

Therefore, the role of the lawyer is not confined to appearing to defend a person in court alone but also to advise the individual as problems arise.

This is not to suggest that before a person commits a crime, he must or should consult a lawyer to see how to best carry out the crime. Should such a situation arise, it would make the lawyer involved an accomplice or “abettor” in the crime.

Such a role is clearly appropriate in business and commercial transactions where a party should consult a lawyer on how to structure the transaction. Advice to avoid disadvantages and to put oneself into a more advantageous and stronger position is in fact recommended.

Similarly, it is advisable for the other party to resort to his own lawyers and to seek advice on how he should best protect his interest and well-being.

Sometimes parties may have the same lawyer to act for both or all of them. This is because they think it will expedite the transaction. At other times, they think that they may be able to save on fees by sharing the same lawyer.

If what is involved are mere formalities and an absolute understanding and agreement of the entire transaction, and that it merely needs to be recorded, sharing a lawyer may work out well.

However, what may appear straightforward during negotiations may not always be so. Problems can crop up at the implementation or in the latter stages of a project.

Should differences arise due to legal or quasi-legal aspects that have not been addressed, considered or highlighted, the lawyer puts himself in a difficult situation for not having foreseen the situation that is now the cause of discord. It may appear in hindsight that he was not able to give objective advice expected and even expose himself to allegations of breach or possible ethical shortcomings.

If parties were separately represented, there would be independent advice, and when any party is dissatisfied by what happens, it is not because of the wrong legal advice but a business decision.

Some lawyers are engaged based merely on friendship, while others are blamed for not attending to work in a proper manner or to the level expected or providing the desired result. But this depends on the decision of those who appointed the lawyers in the first place.

What is important is how much effort is actually put into the preparation and conduct of the matter. The outcome also depends on the merits of the case. It is not the car driven by the lawyer or how posh his office is that will always determine the outcome.

Individual should not go to court to “fight”. They should first get advice on whether the claim ought to be pursued.

I remember someone whose parents had purchased property many years earlier for RM20,000 that was eventually worth RM250,000. The individual concerned was agitated when the property was auctioned off.

The banks were not to be blamed and the developer had in the meantime become a bankrupt. In his state, he was prepared to pay a substantial amount to sue those he was agitated against.

However, the lawyer he approached did not want to take the entire fee he was prepared to pay to file a suit but advised him to pay 10% so that the matter could be studied from all angles and the client be advised of the merits and pitfalls if he was unsuccessful.

After careful study, the client was advised that it was not in his interest to pursue the matter due to the applicable facts and the law as it then stood. The aggrieved person was unlikely to succeed and he would have ended up paying his own lawyer and the costs of the other party.

Thus, the matter was not pursued which in the end was a benefit to the aggrieved person. The cost to him was a small legal fee to get advice.

Of course, the lawyer would have received a much larger fee had he encouraged his client to litigate, but at least he was fair and ethical.

The public often thinks that lawyers always advise litigation just to earn fees, but many lawyers do not do this. It is important for the individual to be rational. What they end up with also depends on how they manage their affairs.