Bar Council president Lim Chee Wee says the former
solicitor-general II followed the 'cab rank rule' with regard to his
decision to represent Anwar Ibrahim.
KUALA LUMPUR: Retired solicitor-general II Mohd Yusof Zainal Abiden has received the approval of the Malaysian Bar on his joining Anwar Ibrahim’s defence team in the latest Bersih 3.0 trial, despite him being the former lead prosecutor in the opposition leader’s Sodomy II trial.
Bar Council president Lim Chee Wee said Yusof followed the “cab rank rule”, a basic principle in legal practice, and praised the latter for doing so in the “fine tradition of the Bar”.
The “cab rank rule” refers to the obligation of a lawyer to represent any client who seeks his or her services, provided that it is in the lawyer’s area of practice and the client is willing to pay the lawyer’s usual rates. The concept is derived from the idea of a queue of taxis, each taking the first customer who comes along.
“The cab rank rule in essence obliges an advocate to accept a brief which he has the skill or experience for regardless of personal feelings or views, or even the harm to his person or reputation,” said Lim.
The rationale for this rule, he explained, is to ensure that everyone and anyone has access to a counsel of choice.
“In the present case, where the former prosecutor in the Sodomy II trial is now acting on behalf of the leader of the opposition in a separate criminal proceeding, he is doing so in the fine tradition of the Bar of following the cab rank rule,” Lim told FMT when contacted.
He said that what Yusof has done is in line with Rule 2 of the Legal Profession (Practice and Etiquette) Rules 1978.
It provides that: “An advocate and solicitor shall give advice on or accept any brief in the Courts in which he professes to practice at the proper professional fee dependent on the length and difficulty of the case, but special circumstances may justify his refusal, at his discretion, to accept a particular brief.”
Possibility of conflict
However, Lim said there is an exception to this rule and it arises when there was a possibility of conflict. However, he noted that such a conflict does not appear to be apparent in the current case.
“There is possible exception to the rule is if there was confidential information the lawyer gained from the previous brief which may be useful for the defence in the new brief, thus giving rise to a situation of conflict.
“However, on the face of the two charges, this possibility does not appear to be real, unless the Attorney-General’s Chambers is aware of such circumstances. If so, then there is a cause of complaint for misconduct,” he added.
Lim said that the “most memorable yet tragic example of the cab rank rule” was the first Solicitor General of the English Commonwealth, John Cooke, who in 1649 led for the prosecution in the trial of King of Charles I.
“[Cooke] prosecuted King Charles, on behalf of the State, whilst his fellow barristers fled London to avoid being called upon to do so.
“When the royalists regained power, Cooke himself was tried and he valiantly argued that a barrister has to take up a brief for the appropriate fee regardless of danger to himself or reputation, and that a lawyer must never be identified with those who instructed him,” he said.
[Cooke was found guilty of high treason and was hanged, drawn and quartered in 1660]
Not something strange
Meanwhile, vocal Pakatan Rakyat critic and lawyer Tan Keng Liang said that Yusof’s decision to join Anwar was not something uncommon or strange.
“It is common to leave the AG’s department for private practice and defend anyone of their choice in any case, including Anwar’s case.
“A high profile case like this would obviously boost his private practice. There is no rule in the Legal Profession Act to say he cannot defend Anwar (when he previously acted as prosecutor in his case). It’s his discretion,” said Tan, who is also Kedah Gerakan Youth chief.
Attempts to contact Attorney-General Abdul Gani Patail and Minister in the Prime Minister’s Department Nazri Abdul Aziz on the same matter were unsuccessful.
Yesterday, a packed courtroom was filled with excited murmurs and laughter when it was revealed that Yusof had joined Anwar’s team in the Bersih 3.0 case.
This was believed to the first case for Yusof in private practice after the former magistrate and Sessions Court judge opted for early retirement on Feb 1.
Yusof commented on his appointment yesterday, saying: “I’m just a counsel, everyone is entitled to one. I have no political affiliations. I’m a working professional… a free agent.”
Anwar, PKR deputy president Azmin Ali and supreme council member Badrul Hisham Saharin were charged with breaching the Peaceful Assembly Act 2012 by taking part in a “street protest”.
They also face a second charge for going against an order by a public servant by when they allegedly instigated people to charge into Dataran Merdeka. All three claimed trial to the charges.
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