Case of bungling lawyer

THE IDEAL of justice would require that every person charged with a serious or capital offence should have, at the very least, competent legal representation, that is if the best is not available to him. But experience at the bar has shown that this ideal is not an easy one to maintain for two main reasons; the first being the fact that the profession is now overloaded with inexperienced and mediocre practitioners and, secondly, the fact that competent lawyers are costly to retain and, in most cases, beyond the reach of ordinary persons facing serious criminal charges. It is somewhat alarming now to hear from Chief Justice Sat Sharma that this situation is now verging on a kind of crisis. Too many appeals, in his view, are coming before the Appeal Court and even reaching the Privy Council based on the ground that the convicted person’s defence was bungled by an incompetent trial attorney.

So concerned is the CJ over this development that he is even threatening to have the court place in its judgments the suggestion that counsel with less than ten years experience ought not to appear in serious matters before the Appeal Court or possibly even in the High Court. We feel sure that everyone interested in the delivery of justice in our courts will share Mr Sharma’s concern over this problem. Other court administrations in the Commonwealth, in fact, have had to grapple with this question and, we understand, in England the principle, aptly designated as “Equality of Arms,” is now being actively explored in the interest of ensuring that legal counsel representing both sides in a serious issue before the courts are equal in quality or competence or, at least, apparently so. We are told that in Malaysia, this issue has been addressed to some degree by the stipulation that lawyers entering the profession can only appear in the supreme court as juniors to senior practitioners during the first five years of their career.

The problem, in our view, is serious enough to warrant  the solution-oriented consideration of both the Bar Association and the Hugh Wooding Law School. Mr Sharma’s observations were made during the Appeal Court’s consideration on Tuesday of the appeal of a convicted murderer who claimed that he did not get a fair trial because of the incompetence of his attorney. In this respect, the CJ pointed out that issues in capital cases were becoming more complex, relating for example to diminished responsibility, provocation, self-defence and good character. And because the death penalty was involved, justice required the accused person to be competently represented. However, we are somewhat sceptical of Mr Sharma’s suggestion. To prohibit attorneys with less than ten years experience from appearing in serious matters in the Appeal or High Court may well provoke constitutional objections. What then are the possible solutions? We would prefer, in the final analysis, to leave the answers to this question to the Law Association, the Law School and, of course, the Legal Aid Authority.

Frankly speaking, we are far from impressed by the quality of attorneys graduating from the Law School and, it would seem to us, a programme of continuing or advanced education should be instituted for their benefit by either the school or the Association. If there is such a programme for our judges, then why not for our attorneys? Finally, much of the criticism is levelled against the Legal Aid Authority for assigning serious briefs to relatively inexperienced lawyers. With the ability to pay fees as high as $10,000, the Authority should be able to harness more competent attorneys to handle the defence in capital cases. The Authority should not operate like a lottery. The issue raised by Mr Sharma is a critical one for the even-handedness of our court system. If the popular impression that justice favours the rich is to be eroded, then some effective answers must be found.