Lawyer goes missing

.... (probably) with 6 million (probably), according to the Straits Times.

Another case where there is a breach of trust over the proceeds of a property transaction.

Last time these cases were hardly heard of.

Lawyers were only allowed to charge a certain rate for property matters.

In 2003, these scale fees were cut.

There was "liberalisation" of the legal sector.

Then the fixed scale fee became a recommended scale.

Then the competition started. What was recommended was what it was said to be - just a recommendation.

Then in a dog eat dog world, costs were slashed.

Consumers celebrate.

Banks. Insurance Companies. Had boards of law firms where you can go to for 'cheaper' real estate solutions.

Consumers, estate agents, banks, insurance agents, celebrated.

Then the cases started.

4 million. 10 million. 6 million

Then there were more rules.

To ensure internal compliance vis-a-vis partners and book-keepers.

Each time they were proven wrong.

I think they were too liberal with the liberalisation.

Maybe there should be a minimum charge per property transaction.


And if you read the ST report you might see there are two schools of thought.

Asked if the new rules needed more teeth in light of the latest incident, lawyer Montague Choy said: 'You may change the rules... but then someone might show up to work around whatever's new in place to the point where there are so many rules that it becomes not commercially viable to operate.

'I do not think the problem is with the rules.'

Lawyer Amolat Singh said the case could trigger a move for clients' deposits to be held by a separate stakeholder, rather than by lawyers.

Taxi Touting : Greed and Naivety

Enforcement but is the underlying problem resolved?

I have read various lamentations by online folks "whacking" taxi drivers for touting. The result - mainstream media picked it up and it is now a serious issue. Frankly, I don't know what these people are angry about. The penalties are already very harsh - with loss of income and livelihood for very long periods. But yet taxi drivers are still taking the risk. The most immediate solution on the head of these people? Tighter Enforcement. Ridiculous if you ask me. I am not saying touting is right - or that law breaking ought to be encouraged. I think the situation is one of a combination of greed and naivety - rather than anything immoral or wicked.

Lets start with what I consider a reasonable assumption. I assume that the average driver works reasonably hard and attempt to earn as much as reasonably possible within the human spirit. With the recent rise in diesel prices, the average driver will have to work much harder. We also know a few things. Mercedes Cab drivers pay from $120-$150 a day for their rental. Compared to one of the cheaper options available ($90 SMART Volkswagen Touran), we are looking at a $900 monthly difference.

This $900 monthly should reflect a premium which Mercs cab driver can obtain somewhere. There are naturally some "advantages" which one can easily envisage from driving a Mercs. There are a class of taxi drivers which this will appeal to. For exmaple, many of these Mers Cab drivers are also part time insurance agent or property agents or have other businesses - where a Mercs will "help" their image.

Yet not all have a sideline. Most will have to rely on other sources of income. Some rich Corporates will hire them to drive special corporate folks around. They were also the choice of top notch hotels (5, 6 stars variety) when the hotel staff call a Mers cab for their choice customers (negotiated rate). Yet, the corporate/s in the new wave of cost cutting philosophy eschew from such "ostentatious" display and hotels realize soon enough their choice guests are not willing to pay so much even if they are choice customers, when the alternative is far cheaper and widely available. Then there is the boycott due to the bad reputation. Some Singaporeans now snide Mercedes Cabs and refuse to board it. I heard this is also the case for certain hotels. Touting = criminal = bad rep = image drop = less business.

Why then is anyone surprised/shock/disgusted that Mers Cab Drivers are the ones that are touting?

The situation is a result of naivety on the part of the Mercs Drivers because many of the Mercs Drivers who signed the contract with the Taxi Companies still believe that there is a "premium" on the "image". I think there still is, but it has definitely deflated to far less than $30 a day. In order to reflect that premium today ($30 a day), the Mercs Cab driver must do 4 to 5 trips per day more than the average cab driver. To ask the average Mercs Cab driver to work so much harder than the average driver which we assume already works reasonably hard today will be very difficult. Sure, they will have no choice when the enforcement kicks in or take greater risks (which means asking for more during touting).

We could also price how much "risk" costs for them to make it worth it. It is very important for the touts to avoid getting caught for a suitably long period for this to be profitable. That is probably the key reason why they don't take locals - because of that naive belief that locals are more prone to complain.

But as we have read, many indeed choose to do not tout rather than tout. So there is also the greed element to it. Compare that strenuous effort additional 4-5 trips a day to touting. Little wonder the quoted rate is 30-50 dollars. As long as the Mercs Cab driver gets one short trip on that rate a day, it will suitably reflect the premium he had paid for the cab. But this is not greed as we normally condemned it to be, this is not an attempt to become rich, but more akin to a hungry man stealing bread. Any more will be greed.

So enforcement has begun. This is very easy really.

"SINGAPORE: The Land Transport Authority (LTA) has intensified its crackdowns on taxi drivers who commit offences. It caught 41 taxi drivers committing offences during a four-day operation conducted at popular nightlife areas such as Clarke Quay, Boat Quay and Orchard Towers from October 24 to 27. Twenty-two of them were found touting; eight had overcharged; the rest had refused to pick up passengers."

So it is indeed, as I suggested already, a very common practice. And despite enforcement, is the underlying problem resolved? So I think we must give them some advantages. I suggest that perhaps some authority like the Airport give them some privileges (like special queues for Mercs Cab) which will indeed reflect their premium, etc. Then it will help reduce the incentives to tout. Or else in the long run, it will just mean there will be less Mercs Cabs, and hence less cabs on the streets.

First World : A good article

and some thoughts on social control

Bernard wrote in an excellent article entitled: Further than Closer to a First World Nation

The immediate solution that any law-abiding Singaporean would do is to call the police and find out who did it, and possibly charge the person who did it with a sedition law. Yes, the law is able to handle this efficiently, but it does not solve the underlying problem that we cannot correct the attitudes of a few closed-minded individuals other than by fear. The solution should be a combined effort of the law and community pressure.

The community pressure is the missing part of the solution that we cannot identify individuals who are close minded. The lack of faith in community to resolve problems is reminiscent of the current "light touch" approach to the internet and new media. A lot of times, the establishment came in to resolve the problem with the heavy legal hand instead of letting the community put social pressure on people (who are clearly making offensive remarks) to back off or take them down. "

Such an analysis appeal to the liberal for it speaks little of the role of punishment and celebrates man's ability to change for the better; appeal to the community because it places great faith in the ability of communal groups and social institutions to affect change without the use of the law. It also suggest that given the right conditions, we can come to a conclusion of what is right and what is wrong. The heavy legal hand, all pervasive in Singapore, it seems, should have a rightful slap on its wrist.

Yet, and here is where I depart from Bernard, I think the 'lack of faith' in the community comes not from the state, but from the community itself. After all, the legal hand, as much as one of political power, is also one which social groups and individuals exercise their powers on other social groups and other individuals. Take Bernard's standard case:

"Let me put forward a standard situation, suppose you see a graffiti on public property that totally represents racial hatred, what's your first reaction? The immediate solution that any law-abiding Singaporean would do is to call the police and find out who did it, and possibly charge the person who did it with a sedition law."

Let us say Mr. Tan sees the graffiti and gets very angry. What happens next? The police gets his call, sends someone down. They interview Mr Tan. In the usual case there is little evidence *unless CCTV* there is little chance of apprehending the vandal , there is nothing much to be done. Perhaps HDB or the management council will be notified and a process taken to remove the graffiti is set in motion.

But let us say the Vandal got caught. Lets say he was sorry and said that it was done out of sheer angst of a moment. Vandalism is already a very serious crime and considering racial hatred, the investigation officer might decide to press serious charges to give this vandal a real lesson. The charges reaches the Attorney General chambers and say a young recently graduated legal officer looks at the charges. He personally thinks that this incident is minor. Also he does not wish to attract public attention as a sedition charge might. His superior might concur. So the vandal is charged with vandalism instead of sedition.

I described the above hypothetical process in massive detail but one must realize that in relation to crimes and anti-social behavior in general - shop theft, molest, voluntarily causing hurt - the process takes place over and over again for each incident. We have all heard reports about how this power is exercised by daughter against mother, mother against son, son against father, father against son, husband against wife, brother against brother. Our most intimate relations appear governed precariously and implicitly by the call to the police. The police are at best an instrument of control in this regard. Besides, individuals working this system are usually less intent on social control than those who made the call in the first place.

In other words, this strong legal handedness represents people intent on the control of others more than the state heavy handedness per se. This is very much the norm in our country - this picking up of the phone. And because we use it so often, it is no wonder the police and the laws are in a position of great power. When the police send 4 anti-riot vans to the Odex protest, and filmed everyone during the signing of the petition against the evil military junta at St. Martin Drive; it merely represents I believe the same thing - a desire for some people to control other people. Even before the 4 anti-riot vans and the filming of everyone, there were already those in the respective communities urging others NOT to join the protest or the petition. Social control on one level had already begun before social control on an another.

Why do we want to control others so much? That we sanction the use of legal powers over others? What if that vandal was not willing to stop being a "racist" but willing to stop vandalising? What's wrong with that? Why do anti-gay people want sex between males to be a crime? Look at Stomp and the constant display of that vulgar desire to control others through public "expose" and shaming. If there were anti-social or moralistic legislation, our crime rate will skyrocket and I imagine people calling the police for every other act. We live in a country where social control is believed possible (and good)- and regularly effected. In schools, workplace, families, online and even on stomp. The state is one big social control giant. And the people - they are giants in their own way in that regard with their desired effect magnified by the efficiency of state appartus. We are not a first world country. How is that even possible? There are people among us who appeal to authority so quickly that one questions whether they appreciate the possibility of a civilizing discourse. Bernard is right. But not only do we have to have an avenue to think for ourselves what is right and what is wrong, we should also think that when faced with what we think is wrong, what should the appropriate response be. But there will always be those whose first reaction is to call the police.

The Disapproving 70 percent

and how decriminalizing sex between males will change attitudes and win votes

For those not already in the know, apparently 7/10 Singaporeans "frown on Homosexuality." Mr Wang dissected this latest statistic and compared it to other acts many disapprove of, arguing, and he puts the case very high, that therefore homosexuality should be decriminalized. I think its very logical and sound.

Some have suggested Mr Wang has employed false analogies.

I believe that from their perspective, "homosexuality" is unnatural and morally depraved. In their brain, "homosexuality" falls under an entire different class altogether. It is unlike unlike premarital sex which is merely sinful in the "lust" aspect, or like theft, which is merely sinful in the "greed" aspect. I feel that their aversion to "homosexuality" is much greater, and from their perspective, to compare it with other "acts" which they also disapprove of, is somewhat misleading. They might have no answer to why, apart from their subjective feelings, the analogy is not acceptable but whether one should have sympathy with their worldview depends largely on how much you are willing to tolerate intolerance.

Public opinion polls in the US also suggest that a person's disapproval of premarital sex/adultery have no necessary correlation with their disapproval of same sex relations. (See below).

But one way to convince some of that 70 percent, is to ironically, change the law.

Learning from US History
Today, one might think that desegregation of schools and racial communities in the US is a given. Most White Americans today support desegregation. This was not the case in the past. What happened? The Civil Rights movement has a lot to do with it, but one should not forget the role of the law. The decision in Brown v. Board of Education had a huge impact. The Supreme Court found that desegregation was inherently unequal. Early reaction to that decision was very bad.

"Gov. George Wallace personally blocked the door to Foster Auditorium at the University of Alabama to prevent the enrollment of two black students. This became the infamous "Stand at the Schoolhouse Door," during which Wallace declared "segregation now, segregation tomorrow, segregation forever."[15] He moved aside only when confronted by federal marshals and Deputy Attorney General Nicholas Katzenbach." [Link]

Yes. Racists do become politicians and Governors. So might homophobes. But when this law came down, attitudes change pretty quickly. Then the Civil Rights Act was passed. This was way back in 1964. "I have a dream."? Remember?

10 years after 1964, 'the percentage of White Americans who said that Blacks should be allowed to live in any neighborhood increased from 65 percent to 87 percent (ISR Newsletter, 1975) (Myers, Social Pyschology). As time went by, the KKK fell from grace, and their racist ideas seen as wicked. One should never forget that in the 1920, " the organization included about 15% of the nation's eligible population, approximately 4–5 million men." Things can change very fast.

Today most Americans are arguing whether affirmative action should be a right. How far they have progressed! One can legislate against prejudice, and that will shape attitudes. That is why our Ministers should not be afraid of that so called "moral majority." When the law is passed, the moral majority might be one which is against "prejudice" based on sexuality. The law should do the right thing. And the powers that are might actually win support because of it.


____


FN1 [The US public disapproval ratings and other ways to change public opinion]
Even today, a large percentage of Americans disapproved of same sex relations. In fact between 1973 to 1991, those disapproving of same sex sexual relation in Americans stand at 71 percent and it was only until 2002, that it was about 55 percent. (Public Opinion Pros) . If you read that link carefully, you might find some interesting nuggets.

"Remarkably, this shift cannot be due to a widespread change in traditional sexual mores. In the same period, the share of Americans saying premarital sex is always wrong stayed just about constant (ranging between 26-28 percent), and the proportion of Americans saying adultery is always wrong has, if anything, risen (from 76 to 80 percent)....In sum, Americans have not become more accepting of nontraditional sexuality in general; rather, they have become more tolerant of gay sexuality in particular."

"Two concurrent phenomena may well account for much of this change—as they may also account for the changing levels of affect measured by the feeling thermometers. First, the proportion of Americans who said they had a close friend or acquaintance who is gay or lesbian more than doubled in a decade, from one in five in 1985 to a majority in 1996. Much of this, no doubt, is a function of the willingness of gay people to come out to friends and family and to put a human face onto something that had been an abstract taboo. Second, Americans increasingly believe that homosexuals are born, not made: In 1983, only 16 percent agreed that homosexuality was something people were born with, while in 2004, 32 percent held that belief. Those attributing homosexuality to upbringing dropped from 25 percent to 14 percent, while the share of Americans saying that gayness was a choice remained steady."

Unrepresented Litigants in a Complex system

Are Lawyers' Fees to Blame?

I have little use for legal services (thankfully). My mother has a bad impression of lawyers though. One of her girlfriends had a lawyer who was dealing with her divorce. That lawyer then ran to Australia with millions. I think he was later caught. We learn later it was because that lawyer lost heavily in casinos.

Since then, my mother decided that when dealing with a lawyer, one has to be extra careful. This is terrible, since a lawyer, if anything, should have the trust of a client. And the trust of the public

Then of course that was before David Rasif. That man took the hefty sum of $12 million dollars. And more recently, a David Khong was alleged to have skipped town with about $68,000. The picture painted was that David Khong had some debts to pay. Thanks to these two folks, my mother now thinks that lawyers are generally criminals. The list continues as it seems that lawyers are caught in crime after crime.

Thankfully, there are now new rules that have come into place to ensure that lawyers will not be able to handle too much of a client's money. But I think everyone recognizes, that the end of the day, no matter how you fix the rules, as long as a lawyer acts in a position of an agent, the lawyer will come into a position where beyond the ambit of restrictions, trust is required.

And the truth is this - in order to ensure that your agent does his job well and not be tempted to steal your money - more than rules and professional responsibility (and basic human decency) is required. Lawyers acting as your agents must also be well remunerated.

Lawyers get it bad too
In the conveyancing field, what I understand is that clients have recently become stingy, demanding and greedy. Conveyancing is what many in the legal sector consider one "that is long on boredom and short on glamour and cash." (Business Times, August 4th 2007, Lawyers swamped as home sales soar).

This I understand was a result of liberalizing in the conveyancing sector. When guidelines fees replaced fixed fees for property transactions, small firms quickly enter the market to undercut, and promise clients the sky and the moon for very lower and lower fees. That was in 2003. Today, many believe that standards have fallen, as firms are compelled to cut costs and take on more work per lawyer. Some admirably do it very well and flourish. Some cannot. That is the nature of the market.

And this is in a bustling property market. One can expect pressures on costs to increase in a downturn.

So there is at least one sector in the legal service that is not perceived to be hunky dory.

Many lawyers are leaving practice too. Long hours, stress and no sense of accomplishment. Standards come at a price. It is going to hurt standards or the person doing the work. It is silly for lawyers to cut costs to the point that standards are compromised. That option to breach the trust becomes more and more alluring as good hard work is not remunerated. Many members in the public are also very unwise in this regard. Saving 2000 dollars on your 1.8 million sale of your house is somewhat penny pinching. One should pay well and expect high standards. Not pay little, expect high standards, and bitch about it anyway.

That is why financial institutions are very willing to pay a premium for legal services.

But what about poor litigants who have no access to justice

"The CJ himself "noted that more convicted offenders are appearing in High Court appeals without lawyers." (Business Times, August 09, 2007). The same articles states that "figures from the Supreme Court show that for this year, about 24.8 per cent of magistrates’ appeals by the accused for the first five months of the year on average were unrepresented."

It is because I believe that lawyers have an important role to play in the justice system that I believe that we must try to correct this trend. This important role I think is very much to do with our ideas of what justice is - but also because unrepresented litigants, to my mind, will strain and test the ideas which underlies our legal system.

The rules, procedure, evidence confuses most of us. We do not know the intricacies of this and that. The layperson might blunder and does not do things that he realise only later that are consequential to his own case. Then it only becomes a drag on the system. He feels what he is saying when dismissed as irrelevant is a slight on him. He feels his efforts against the machinery hopeless.

In a criminal matter, his freedom might be at stake. The police thinks that he has committed so many serious offences. He disagrees but he is not sure what to do. He is lost, sick, afraid and tired. He is an individual against a complicated and efficient system. A lawyer will do him a lot of good. A lawyer will do the system a lot of good.

The adversarial system was designed as a contest where in the battle, truth emerges. If the other party is still figuring out the rules of the games, this contest might be seen as a farce. And that is something that is really bad. And there is only so much a judge can do about it, no matter how sympathetic. That we know. We know that no matter how talented a person is in sports, a new game will have its challenges.

The trouble in this system is not expensive lawyers. The trouble with this system is that the kind of trial a person experiences varies on whether he can afford a lawyer. There is nothing radical about that, although it is not exactly the ideal. At the end of the day, we all believe that a better lawyer can help us, and that is why we pay that lawyer more. We fundamentally accept that assumption in the system. But that means that many simply cannot afford this "privilege" of an "equal" trial. Besides, a day in court (in a civl matter) is not cheap. Pursing a civil matter is not cheap. For the poorest - and some argue, more vulnerable members - the law is often unavailable.

Who then to blame and suggestions
Hence, lawyers are not to blame. If blame is the game, then it is simply how the common law system is structured. This has nothing to do with having a heart or not. Not much to do with the state even. There are unrepresented litigants in every common law country. The complexity of the legal system for the layman means that agents charge a lot for grappling with that system. What the state can do keeping within their framework of justice is to provide incentives for pro-bono work, to increase access to rules and procedure of courts, train court officials better to deal with unrepresented litigants. Blaming lawyers is simply a knee-jerk reaction that fails to appreciate the trouble laypeople encounter in an adversarial system.

To think out of the box, perhaps this model of justice is no longer appropriate. Perhaps a new kind of "occupation" that merely defends accused persons can be created. It will focus on criminal matters and rules and procedure of the court. But his duties should be different. His education can be a much shorter one, and he too can represent accused persons in court. He need not be the best. He can even be a court official.

In civil matters, many laypersons unable to afford a lawyer will choose not to proceed with a claim, no matter how good his case is. The day in court, the legal fees, and the time required, are factors that stop him. To persuade lawyers to take up such cases, a contingent fee should be allowed. When the claimant finally succeeds, the court will give him (the winner) the settlement fee, and out of this, the lawyer will get a percentage. If the lawyer loses, there is no fee payable or a very low fee. This will allow claimants who have a strong legal right access to the the system.