Recalibrating the Bar Council | Where to Start
In my previous essay The Bar Council Maligned, I wrote that section 42(1) of the Legal Profession Act 1976 (LPA), which sets out its purposes, should be the Bar Council’s (BC) Northstar. It is the what, why, and how its resources and efforts are spent. How those competing and contradictory purposes are met is a matter of negotiation within and to some extent without the BC. A unifying narrative about what those provisions in the LPA add up to or mean for the Bar Council would give guidance to that negotiation. What role should the Bar Council play in relation to its members, the public, the judiciary, the government, or the other professional organizations, given those provisions? I contend they have different roles but a resonance unifies those roles. The Bar Council should be a guardian of its members, a friend to the public, an important partner of the judiciary in the administration of justice, an independent legal auditor in respect of the government’s legal action, an important facilitator with other professional organizations, and an organization committed to the Rule of Law. The resonance that runs through all those roles is that of an enlightened, responsible, and obliging organization committed to being a positive and beneficial force to its stakeholders within its resources. An organization reflects the people that lead and administer it; so its people should as much as possible possess those qualities. Fire does not sprout from water. I intend to delve into those roles in the coming weeks and will start with the first. The Bar Council as Guardian The Bar Council is a guardian of its members because sections 42(1)(b), (c), (e), (f), and (k) LPA clearly relate to the welfare of the bar as a whole. Much has been done and yet still more is left to be done. The Bar Council has limited funds, limited reach, and disinterested members. It cannot do everything. It can do even less all at once. So it has to be selective and prioritize certain issues over others. Not everything is important or urgent. Just because it’s not getting done now, it will not get done at all. Things take time. But people are impatient. Our starting point to address this should be a consideration of those concerns and ideas. What concerns and ideas touch the heart, temper, and practice of each practitioner or firm the most of us? Once we understand that, we can then move on to considering which amongst those concerns should attention be given first, second, etc.? So what are those matters? Truth is, I don’t know. I am pretty sure, you don’t either. As lawyers, we are prone to overconfidence bias, more so because as lawyers, we have a compulsive need to be right. It is easy to flatter ourselves into thinking we know something when we actually don’t. We know our own complaints intimately. And our personal complaints, of course, are the most urgent to us. But ultimately all our individual complaints are merely a part of a larger whole. Right now we have a lot of individual or group-level complaints, but we are missing what that large whole is, we are missing the bigger picture of what all those complaints add up to. We cannot work out the deeper themes and forces that affect our profession from a small and unique sample size. The Great Bar Council Survey The pressing question is, what do the most urgent complaints sound like when it is recorded on a grand scale? I think the first step to finding out that answer is a thorough and professional survey of the Bar. The survey should reflect the pockmarks on our faces, not the facial contortions of political or personal agendas and the wild, thoughtless gestures of political correctness. By thorough I mean, the survey should be nationwide and not be Klang-Valley-centric. It should use several methods, not just the most convenient one i.e. email, mail-out forms, etc. The necessary ones to be surveyed are those who don’t have the time or don’t know about the survey; the ones that do not have enough time and space to care. The pollsters have to be persistent. They are necessary because we need to hear from them to get the fuller picture and they are not engaging. I guess the number of necessary ones to be surveyed at 18,000+ lawyers. I base that on the number of votes cast at Bar Council elections, which dips and bobs around the 3,000 mark. I work on the assumption those 3,000 +/- are similarly likelier to respond to and engage with the Bar Council or about Bar Council matters. We have about 21,000+ lawyers with an active practice certificate. Those 3,000+/- are a small minority. Roughly, for every 1 lawyer that votes, there are 6 that do not. For every 1 lawyer that engages with the Bar Council, there are 6 that do not. If we draw primarily upon this 1 out of 6, the risk is the Bar Council is likelier to miss the mark than getting closer to it in understanding what those concerns are for the Bar as a whole. It is holding a candle that barely lights its face in a huge cave. Candle in a cave means only the ones that make noise are heard. And that leads to the ones that scream the loudest often getting their way. The thoughtful, discerning, and polite tend to prefer conversation. The scenario brings to mind the following lines from a favourite poem of mine: The best lack all conviction, while the worstAre full of passionate intensity. “The Second Coming” by William Butler Yeats In short, facts first. We should get that right before we get our arguments up. I know we are lawyers, but as lawyers have a tendency to suffer from overconfidence bias from time to time; although, I have come across a few chronic cases. And I will prove just that with myself by slipping into that
