When costs become a sword: where is the Malaysian Bar?

 The Bar should speak, not to protect lawyers from accountability, but to protect the fundamental distinction between improper conduct and fearless, responsible advocacy.

From Pallavan

A lawyer losing an application does not automatically mean professional misconduct.

The recent Kuala Lumpur High Court decision imposing RM1.3 million in personal costs on solicitors following rejected recusal applications raises a question that goes far beyond the lawyers or the case involved.

When does vigorous advocacy become misconduct — and who decides where that line lies?

Personal costs orders under Order 59 Rule 6 of the Rules of Court 2012 are exceptional. They expose lawyers personally to potentially devastating financial consequences and can affect their livelihood, reputation and professional standing.

They must therefore be exercised with restraint, proper safeguards and only where the solicitor’s conduct genuinely warrants it.

The danger is the chilling effect.

If lawyers become afraid to raise bona fide concerns about judicial impartiality because an unsuccessful application could result in enormous personal liability, they may begin choosing financial safety over fearless representation.

That is dangerous for the rule of law.

The Malaysian Bar has a statutory duty to uphold the cause of justice “without regard to its own interests or that of its members, uninfluenced by fear or favour”.

This does not require the Bar to prejudge the appeal or criticise the judge.

It requires the Bar to speak about the principle.

The questions deserve public discussion:

• What is the proper threshold for personal costs orders?
• What safeguards must be followed?
• How should proportionality be assessed?

How do we protect lawyers who raise bona fide arguments from financial intimidation?

Of course, lawyers must absolutely be accountable for genuine, egregious misconduct.

But an argument does not become misconduct merely because it fails.

An independent judiciary is essential.

So is an independent legal profession.

The appeal should take its course. But the Bar should not wait until then to engage with the wider issue.

The Bar should speak.

Not to protect lawyers from accountability, but to protect the fundamental distinction between improper conduct and fearless, responsible advocacy.

Because when the independence of the legal profession is at stake, silence is not neutrality.

Here, the silence is deafening. - FMT

The writer is a senior legal practitioner who writes under the pseudonym Pallavan.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.