“A man who is his own lawyer has a fool for a client” [1] – Does this apply when a lawyer is representing himself?

Undeniably, majority of lawyers would assert that self-representation in their personal capacity is justified as they are well capable of defending others, unquestionably then for themselves as they know best on the claim against them or their legal firm.

However, the opinion on self-representing lawyers is not constantly shared in the courts.  In the case of Kay v Ehrler [2], the US Supreme Court raised the disincentive of a lawyer who self-represented in its judgment where the Court stated, “…Even a skilled lawyer who represents himself is at a disadvantage in contested litigation because ethical considerations may make it inappropriate for him to appear as a witness, and because he is deprived of the judgment of an independent third party during the litigation.” [3]

This opinion on the other hand, is a common view showed especially by persons of dignitary ranks in legal organisations.  Gerard P. Martin, chairman of the Maryland State Bar Ethics Committee, reiterated the stance of the Supreme Court when he said, “…If there's even a hint that there's something to [the charge], talk to somebody.  What you may find is you'll get yourself in more trouble if you try to deal with it yourself…” [4]

That said, this view is no different than those from our homeland Courts as seen from judgments in the Malaysian High Court and Court of Appeal, judges have reminded that a self-represented litigant has a fool for a client.[5]  In comparison, a lawyer representing a relative or a close friend would convey why it is argued that a self-represented lawyer is likely to have muddled judgment.  The High Court has, many times in fact, commented that a lawyer who represents a relative may have his vision so clouded that he could not see the wood for the trees. [6]  When the case of Saraswathy [7] was heard in the Court of Appeal, the Court held that there was no prohibition on a lawyer from acting for his client merely because he is related by blood to his client.  What the Court of Appeal clarified was that the prohibition only applies when the relationship is of a personal one meaning that an individual is beyond that of a solicitor and client relationship.[8]  It would be extremely far-fetched for a lawyer who wishes to self-represent to argue that he does not have a personal relationship with himself.

Why then would lawyers insist that they are the best candidate to represent themselves when faced with a claim?

As it is commonly cited by a significant number of lawyers from Insured Practices [“IP”] under Bar Council Malaysia’s Professional Indemnity Insurance [“PII”] Scheme, the main motivation would be a financial one where the lawyer has the perception that he can save legal fees by representing himself.  The IP has a policy obligation whereby Insurers’ remain the right to take over conduct and appoint a lawyer from a panel to represent the IP in a claim.[9]  This means that upon IP’s notification of a claim, Insurers shall appoint a panel lawyer to take conduct of the claim so as to prevent prejudice to both the Insurers and the IP.   The main reason being that the Insurers are liable for any sums above the Base Excess amount up to the IP’s Mandatory Limit. [10]

There is also the reason of confidence in self-efficacy where lawyers in distress are convinced that dealing with an appointed panel lawyer would result in communication and common ground troubles as they, the troubled lawyers, may want to use a strategy that deviates from their appointed panel lawyer.

Of the multiple reasons why a lawyer should not self-represent, the key justifications not to self-represent are such as:-

• Conflict of interest;
• The lack of independent legal advice; and
• The ethical responsibility that a lawyer should possess and the contractual obligation to adhere to the Mandatory PII Policy provided by the Insurers of the Malaysian Bar PII Scheme.

These reasons are explored further below.

A lawyer would not act in conflict of interest when dealing with his client but would put himself in a position of absolute conflict where his personal interests are at stake.  Repercussions faced by a lawyer, if unable to properly defend himself, would range from monetary damages, ruined reputation to disbarment.  Lawyers are urged to contemplate the high stakes before deciding to defend themselves.

Further, in a profession that strives to build public confidence and to uphold that confidence in line with the judicial system, must at all times possess and comprehend the ethical responsibility when undertaking representation of clients.[11]  Applying that to a self-represented lawyer, there is a view that the lawyer may argue his case on a basis which may be deemed unethical as a professional.

A lawyer as a litigant in person [12] is regarded as bad representation due to the lack of independent legal advice.  If a lawyer were to advise his client on a non-independent basis, this could amount to negligence on the part of the lawyer as he owes a standard of care to the client.  Having said that, independent legal advice is required even to a fellow lawyer because a lawyer, regardless of being a professional, when faced with a legal suit against himself will be affected by his emotions no matter how minimal and this may cause the lawyer to lose objectivity and make out-of-the-norm decisions.

Apart from Bar Council Malaysia’s PII Scheme discouraging self-representation, this stance is also taken by other international PII schemes for, arguably, the same reasons. [13]  The panel lawyers who are assigned to handle claims against IPs have dealt with similar matter and the background in comparison to a lawyer who is flustered with the stress of defending himself.  The reality of the financial side is lawyers are so often caught up with defending themselves thus sacrificing valuable billable hours which can amount to much more than the Base Excess they have to bear.

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