7 Misconceptions About “Criminal Lawyers”
“English lawyer”. Artist unknown (1876-1899) Nordisk Familjebok (“Nordic Family Book”), source: http://runeberg.org/nfba/0113.html
CRIMINAL LAWYERS DEFEND CRIMINALS IN COURT TO HELP THEM ESCAPE PUNISHMENT
TRUE. This is the main reason criminals and their families appoint and pay a lot of money to lawyers. Don’t lose sight of the principle that a person is innocent until proven guilty — one of the most important principles under any legal system. So you cannot brand a person as a criminal outright. However, I think it is a moral luxury to be approached by a guilty client; I say those lawyers who keep getting guilty clients are the lucky ones. Defending a person who believes they are innocent is more morally onerous than defending a guilty person; that is my personal view.
The question of moral and legal guilt are two different things. Even people who think they are morally guilty may be mistaken due to their own mistaken assumptions of what the law is, the feeling of self-blame, or some other social reasons that may not align with reality. They may take the blame for someone else, to protect them from shame or to prevent something greater from coming to light. Maybe they just cannot afford the cost of defending themselves in court. Or they are seeking attention. Or they received bad advice from a lawyer or investigator or family member. The Court is only concerned whether the person who pleads guilty, is aware of the nature and consequences of pleading guilty and admits the facts as charged (that’s my abbreviated explanation).
There are people who plead guilty i.e. tell the court that they committed the crime, even though in reality they did not. A guilty person, out of obligation and shame to family members, may inform his lawyer that he is innocent because he needs to go along with his family’s wishes. Telling the court that you are guilty when you are not, is false isn’t it — that itself is an offence to tell lies to the Court.
A person may be guilty under criminal law due to some technicality, presumption in law, afterthought, incompetent counsel, inferences, or due to the preferences of Parliament or the enforcement body, public policy — not because the person actually committed the crime in question. And not because the law itself is inherently moral, just or proportionate. Rarely it is technically guilty in another sense, for example a person who pleads guilty for being sympathetic to a terrorist organisation, whereas at the time in question such terrorist organisation was not yet gazetted as such. There was such a case in 2014 reported in 2015.
Thus lawyers are disciplined to act on instructions and rules, we do not rush to judge other people.
FALSE. Almost all the persons who approached me claimed they were innocent. And yes, I have been assigned to represent “actually guilty” people in court, facing the death penalty. I have also lost Federal Court appeals, representing people who insisted they were innocent; so I have witnessed people who insisted they were innocent to the very end and sent to their deaths. Did you know that convicted persons on death row, male and female, are bound by chains and rigid arm restraints when they appear in Court? Not hand-cuffs, these are rectangular metal restraints. The Prisons Department staff at court informed me this was standard procedure.
On this moral question. To my dearest friends and family, as your friend and as a lawyer speaking for myself, I’m obliged to say that morally, dealing with guilty clients is easy peasy. I don’t lose sleep over it because I know what my role is. I know what I must do to win the case for my client, because I know what my limits are. I don’t wish specifically that I have more and more guilty clients, it’s not that. What everyone should be concerned about are the innocent people who are arrested, remanded, humiliated, charged, convicted, sentenced, jailed and hanged.
So guilty clients are a luxury for a criminal lawyer? What about prosecutors? The luxury there is, a prosecutor makes decisions based on the available evidence presented to him by the investigation. This evidence is often curated, and is often incomplete, which is why good prosecutors instruct the police to conduct further investigation to clarify any doubts. Good prosecutors are trained to consider the investigation papers critically and not merely at face value. Judges decide based on evidence presented according to the rules of court and procedure of evidence. Judges are assisted by the prosecutor and the defence counsel, both of whom are officers of the court. So which one is hardest in my view? In my view it is the lawyer who knows his client is innocent. Because he is the only one in the entire courtroom who knows it. Do not assume that if your client is truly innocent, that you will have an easy case to defend, not so. But we defence counsel are assumed to have another luxury that others do not — we have the luxury to decline a brief. This must be viewed in its proper perspective because we do have what is called the cab rank rule (please visit https://www.thomasphilip.com.my/articles/to-be-or-not-to-be-this-clientrs-lawyers/ for a good explanation of the cab rank rule by two lawyers from Thomas Philip). To me, if a lawyer is competent in the work, not conflicted and paid, then he should not decline it.
FALSE. In the context of a person being a “criminal” — Be wary of so called unpopular cases. A case is considered unpopular because some people think it is unpopular, within a certain time, place and context. It may just be like any normal case but becomes subject to public contempt and publicity. Such cases strike at public sentiment and revile. Cases where the public are quick to judge, quick to condemn and quick to convict the accused person. Even an experienced lawyer may receive whispers from his partners, even his panel clients and his relatives and neighbours, not to take up such a case. They don’t want their company or their firm or their family to be associated with a lawyer who defends criminals. But for the accused person, who alone is a small person facing the weight of the law and the might of the police and courts, you are his only hope. Maybe he has lost hope but his mother, sister, wife is begging you to take the case. Do you remember Atticus Finch, the lawyer character from To Kill a Mockingbird? I don’t remember the facts anymore but he defended an innocent Black man accused of raping a White woman during an era of much racial prejudice in the USA.
I am very much concerned about victims of crime as much, but that is where the following item below comes in…
FALSE. Criminal lawyers also advise and represent victims of crime. We are not only “criminal defence attorneys” — more accurately we are “practitioners of criminal law” which means we are neither criminals ourselves nor is our role confined to a court-going defence counsel only (though being a defence counsel is surely the hallmark of such role in this country — except for those jurisdictions where barristers may prosecute and defend in the same profession). We do this because the police and the prosecutors do not and are not mandated to advise victims of their rights. When prosecutors conduct trials, they do so on behalf of the state and the law and not on behalf of victims of crime. Not lawyers, we do advise victims directly. Sometimes we are appointed by the family and sometimes we are brought in by a concerned Non-Governmental Organisation. We advise them on their rights as victims and sometimes we are appointed to attend the criminal trial on a watching brief. In rare cases we are appointed by aggrieved persons to prosecute cases under what is called a private prosecution — they tend to be for cases like enticing a married woman. Certain high-profile politician cases have involved criminal lawyers who represented the interest of a government agency, for example in the Teoh Beng Hock Inquest where the Attorney General’s Chambers team was lead by Dato’ Tan Hock Chuan, in one of the Dato’ Seri Anwar Ibrahim appeals where Tan Sri Muhammad Shafee Md Abdullah represented the prosecution, and in recent years, where Dato’ Gopal Sri Ram and Dato’ Sithambaram represented the prosecution against Dato’ Seri Najib Tun Razak.
2. CRIMINAL LAWYERS ARE PAID A LOT OF MONEY TO BEND THE RULES, LIE AT COURT AND TWIST THE TRUTH.
FALSE. Criminal lawyers are duty bound to uphold the law because they are officers of the court. We are not allowed to mislead the court. Every year we must renew our licence to practice law, and we need “approval” from 2 bodies : The Malaysian Bar AND the Court. When we are called to the Bar, one of the parties who we must check with (so that they do not object) is the Attorney General’s Chambers.
We are bound by ethics, to defend our clients and represent their interests without fear or favour. Criminal lawyers present their client’s defence as honourably and vigorously as possible. And no we do not give free passes to opponents just because they wear a uniform or a name tag. We will put the authorities to task if they derelict their duties, and raise the matter to the higher authorities or the court. We will vigilantly guard the rights of our clients and are their trusted advisors and confidants (and occasionally, the role of sounding boards and “shoulders to cry on”).
If you are accused of something that you did not do, should you stand there and take it and hope that the truth will emerge? Pray, my dear friends. Pray and fight for the truth, honourably. There are enough Malaysians out there who really think that if a person is arrested it means they did it. Lots of Malaysians. There are also lots of Malaysians who think that if you are innocent, you need not worry. Until arrest comes to their own doorstep or the doorstep of their loved ones.
I believe that truth when cast against falsehood obliterates it wholly. But you have to fight for it. Often attributed to Malcolm X, “Nobody can give you freedom, nobody can give you equality or justice or anything. If you are a man, you take it.” So fight for your honour, do not sit on your rights, get a good lawyer who knows what he’s doing — bending the rules, lying to court and twisting the truth does not arise.
In the courtroom, the Evidence Act 1950 and the Criminal Procedure Code places restrictions on how a defence counsel conducts the defence. For example, the court may prohibit counsel from asking questions based on facts that are not yet proved. The court also has the discretion to require counsel intending to establish a fact, to require them to show why or how it is relevant and how he intends to prove it. If the court finds that there was no basis for such questions, the court may even complain against the lawyer’s conduct. When presenting submissions, a lawyer is bound by certain ethics as well. A lawyer should not rely on cases that have been overruled or to intentionally suppress relevant law that does not favour him (that is law, facts are treated a bit differently).
TRUE. Like in any profession, there are bad apples who do not conduct themselves as lawyers should. But lawyers seldom get away with it— word goes around within the legal fraternity among legal practitioners, judges. Lawyers are only as valuable as their knowledge and reputation; so if their reputation is discredited, they will not last long in the field. Though disciplinary proceedings can be instituted successfully against errant lawyers, this very seldom happens in the criminal practice compared to certain other practice areas.
Finally, not all lawyers go to court. And most lawyers do not practice criminal law. But almost all lawyers know another lawyer friend who does. These are my pals.
3. CRIMINAL LAWYERS USE THEIR CONNECTIONS WITH THE POLICE TO HELP THEIR CLIENTS GO OFF SCOT FREE
FALSE. Be careful about “lawyers” who drop names, claim they are close to a particular senior police officer, prosecutor or judge, and claim that cases can be settled with payment of millions of RM. I do not join ranks with such individuals.
TRUE. I cannot say why it can be true, but I do not, and proper lawyers do not partake in such activities. The devil already reigns where there is injustice, do not give him more room to cause more trouble.
“French lawyer”. Artist unknown (1876-1899) Nordisk Familjebok (“Nordic Family Book”), source: http://runeberg.org/nfba/0113.html
4. IT IS BETTER TO PAY A BRIBE TO THE POLICE THAN TO PAY A LAWYER.
FALSE. There is no reliable way to know whether the outcome of your case was as the result of your bribe to the police or prosecutor or judge. It could be that the police were going to release you anyway or that the prosecutor was going to withdraw the charge anyway or that the court was going to acquit you anyway.
If you are reading this far, then I trust that you already know that bribery is not only unlawful and immoral, it is also pretty stupid. I have more points but I cannot write it here, so I shall confined to 2 issues on this subject.
Paying a bribe is basically to give yourself (or whomever else you are trying to pacify) a false sense of security that your legal problem is being sorted out. Don’t come crying to your lawyer asking for a discount because you wasted money on a bribe which failed to give the result you expected. We have had enough of this. Stop playing the victim card about bribing out of fear. You didn’t report to MACC immediately, did you? You only reported after the bribe did not deliver the result you paid for. Maybe by telling yourself you are a victim, it would make you feel better. Actually bribery itself is a crime. It just so happens that lots of cases highlighted in the media are of civil servants receiving bribes. You know all this stops when the giving stops.
I don’t need to tell you that if you bribe an officer, this officer will remember you and he will, in unspoken terms, “own” you. He could tell his circle of colleagues and they may have more ideas about you. You may become progressively drawn into a ring of obligation to him where he can make more and more demands on you or your family. By then you will be so ashamed to tell your lawyer who warned you against this all along. Told you so.
5. CRIMINAL LAWYERS ARE EXPENSIVE
PARTLY TRUE AND PARTLY FALSE. Lawyers are like any other profession that provides high value services. The value at stake is the liberty and reputation of yourself and your loved ones. A lawyer is expensive because that is how much he thinks he is worth, and he would likely have a good feel of how the market values his services. From your perspective, you should value the service in the context of how important such services are to you. If you think that your liberty is not important, don’t pay for it.
When you pay for a lawyer’s services, you are not merely paying for the piece of paper that he writes letters on for you, or for the petrol that fuels his travel to court. You are paying for his years and years of experience, to benefit from his acumen, his mind, his insight and his problem-solving. Good lawyers also often go over and above what they are paid, but they won’t tell you. Because proper lawyers like to do their work well and to win cases for their clients.
If you cannot afford a lawyer, please seek help from providers of legal aid. Which brings me to the next subject …
6. BIRO BANTUAN GUAMAN IS EQUALLY GOOD AS PAID LAWYERS SO YOU MIGHT AS WELL GO FOR THE FREE GOVERNMENT SERVICE.
People still call it Biro Bantuan Guaman. A great and noble institution. It was reorganised into Jabatan Bantuan Guaman (JBG) years ago. They help with criminal, civil and shariah matters for people who cannot afford a lawyer. There is a means test that you must pass to prove you are eligible.
The reason this myth is FALSE is because our legal aid system is a bit fractured, serving through different institutions under different mandates with different scope of services. But the are some great committed volunteers and staff working under each of them. Unfortunately, there is no one-stop centre for legal aid. Here is my simplified breakdown of what you can get from them:
a. Jabatan Bantuan Guaman : Government department that you can meet for khidmat nasihat. They only represent juveniles for proper disputed criminal cases, or otherwise they only help you to plead guilty.
b. Yayasan Bantuan Guaman Kebangsaan (YBGK): It is a free criminal lawyer service, operated by the secretariat of the State Bar Committees. You need to pass a means test to prove you are eligible. They handle trials and appeals. But they do not cover certain types of cases. I’m not sure about the current policy, but it used to be that they do not cover departmental cases (e.g. traffic summons, JPJ summons, LHDN cases), cases involving non-nationals (foreigners, undocumented persons, etc), cases involving allegation of terrorism. YBGK does not handle death penalty cases.
c. Legal Aid Centre (LAC): Another free service provided by the Malaysian Bar and State Bar Committees. The LAC actually operates the YBGK programme. Any criminal matter not covered by YBGK may be covered by LAC. YBGK and LAC cases are generally handled by the same pool of panel volunteer lawyers. Unlike YBGK, LAC handles civil divorce and certain civil matters too.
d. Court Assigned Cases: For death penalty cases only in the High Court, Court of Appeal and Federal Court. The Court itself appoints counsel to represent you. This is the mainstay of my legal aid work at the moment.
e. Non-Government Organisations (NGO) : Like LAC, there are several NGO who help victims of crime, providing advice, support, “pendamping” (basically a private lawyer who accompanies you to see the police or to court). I have shared contact numbers for some of my favourite NGOs at the front page of this website.
f. Law Firms : Some law firms do pro bono work for deserving clients. Pro bono does not necessarily mean you pay nothing, sometimes it means you have to cover the lawyer’s disbursements at least. My and some colleagues have been running a Free Legal Aid Clinic for 7 years now.
On the issue of quality, do not assume that an expensive lawyer is better than a cheap lawyer. Do not assume that legal aid means poor quality novice lawyers. I have provided legal aid through all the above channels (except JBG; incidentally my wife worked there before), they are all good but they are created to fulfil a particular set of needs. At the same time, you are dealing with your liberty here. Do not think you can simply wing it by going for legal aid or a cheap lawyer and expect the lawyer will perform like a well paid lawyer whom you have taken care of. Do not expect personalised service from a legal aid lawyer. If you want good service, good updates, TLC, briefings to emotional family members, access to the lawyer (easy phonecalls etc) then better lawyer up properly and be prepared to pay for your needs.
7. CRIMINAL LAWYERS ARE FROM ELITE SOCIAL CIRCLES, LEAD GLAMOROUS LIVES AND ORIGINATE FROM WEALTHY FAMILIES
PARTIALLY TRUE AND PARTIALLY FALSE. I can’t say much more about this myth. But no thanks to local and American dramas that distort what lawyering is about.
Editorial Note : Updated with new paragraphs on 9.6.2022 following input from lawyer friends of course.