SDs and the Siddhu Factor (Updated)
Blog Takes
PRIVILEGE -AMRICK SINGH SIDDHU & THE TRUTH
While there is an element of truth in what Eric Paulsen (Lawyers for Liberty) suggests about protecting lawyer-client privilege his definition of privilege is misinformed, fanciful and incomplete. His definition is probably dictated by convenience and political expediency . Blogger G P Kumar has updated his piece which now reads:
Privilege, whether it is lawyer client privilege (which can only be waived by the client), “without-prejudice” privilege or public-interest privilege may be waived once it is no longer confidential.
The vast majority of Malaysian lawyers, especially those who mix their professional obligations with their political pursuits as quasi politicians, breach their legal obligations to their clients on a daily basis by waiving privilege- their client’s privilege.
They destroy, weaken, the lawyer-client privilege with gay abandon on the steps of the courts before the Press and the cameras. They make statements about matters that are otherwise confidential and for the courts to consider without their client’s consents. In the process potentially jeopardizing their clients’ causes and breach confidentiality.
For many Malaysian lawyers, the lure of instant fame, the pursuit of personal glory over the interests of their clients and that of the law before fawning reporters takes precedence over everything else.
The majority of clients are themselves blissfully unaware of the breach by their lawyers of that privilege which is theirs. When that happens, it undermines their position as litigants and weakens their position.
The Malaysian Bar, a majority of whose members are culpable in this regard, has thus far stayed silent on this point arguably because they are themselves ignorant of how privilege can be lost.
The most recent example of such a misdemeanor, nay aberration, is the Morais Statutory Declaration (SD).
The Charles Morais SD is now well and truly in the public domain. It contains serious, highly selective and damaging material against individuals without any reference to evidence capable of supporting the statements contained within it.
AMRICK SINGH SIDDHU- HOW AND WHEN NOT TO DRAFT AN SD OR BE INVOLVED IN IT
Amrick Singh has become a lightning rod for many unfounded allegations. This is largely because of Amrick’s history of being rather cavalier in his approach to matters legal (and political). He has in the past made several public statements or supported statements by others alluding to what he asserts is the culpability of the Prime Minister and his wife in the offence of murder.
Amrick has further implicated himself, not once, when he advanced the proposition– via the popular media, social and political platforms– that the Prime Minister and his wife are culpable in murder, without the minimum legal standard of proof to support his assertions.
The most egregious example of Amrick’s conduct in this regard was the abuse of his client, the late Balasubramaniam Perumal whose “SD” he admits to having drafted in no uncertain terms with scant regard ‘for the truth or otherwise to what was contained in it’.
Lawyers who engage in politics whilst in practice will have to account for their failures like everyone else. It is a risk they assume for reward.
PRIVILEGE -PROFESSIONAL RESPONSIBILITY AND EVIDENCE
There can be no privilege as claimed by Amrick or Charles Morais over the Morais SD. If Amrick on behalf of his client is claiming legal professional privilege, then he prima facie must have created that SD for a dominant purposes such as litigation (or some other dominant purpose which would necessarily attract the claim of privilege – or for providing legal advise): And in whose cause would that dominant purpose of litigation or advise have been given for?
Once a client does what Morais has done (publish the document) that privilege is necessarily waived or lost. Amrick having admitted to assisting in preparation of that document has much to answer for—both in its creation and for its content.
Lawyers are by their training required to take certain precautions when accepting instructions and interacting with their clients. In the course of that interaction they must determine how much risk they are prepared to assume especially when drafting unsubstantiated instructions (statements) of their client as Amrick appears to have done in the Morais SD.
Every document brought into existence between lawyer to lawyer or lawyer to client in any proceeding or negotiation is necessarily evidence. It is merely a question of whether or not and when the document will be called and whether it will be admitted into evidence at a hearing or trial.
A DUTY OF CARE
There is a primary “duty of care” principle that underlies this proposition where lawyers and their conduct are concerned. It is an integral part of what is called professional conduct.
A lawyers acting prudently will always be mindful of documents they bring into existence, with or without the client, are likely to be called for at any stage of proceedings or investigations through disclosure. And to claim privilege especially in situations such as this requires a very strong argument capable of persuading any competent court that a claim of privilege should apply.
The problem for Amrick is this: what class of privilege is Amrick claiming? Whose privilege is he fighting to protect?
Amrick cannot once more (as he did with the late Balasubramaniam’s matter) claim he “was not concerned for the truth or otherwise” of what was contained in the Balasubramaniam SD. There are rules, legal, ethical, professional and moral rules that bind a lawyer in the execution of his professional obligations as much as it does the client where it concerns the truth, whether in the form of affidavits or SD’s.
It is simply not correct to assume as many lawyers do, that an SD is an instrument for their protection when accepting instructions from a client and ‘to hell with what the client says in his SD’.
THIRD PARTY PRIVILEGE AND INTERESTS TO PROTECT
Paulsen and other lawyers may scream till they are blue in the face about breaches of legal professional privilege by the Police as they allege. But Paulsen must also know who to direct his screams at in this case.
Amrick’s conduct does not attract legal-professional privilege, lawyer-client privilege or any other form of privilege including common-interest privilege in his favour. The primary maker of the statements in the Morais SD has waived any privilege by placing the SD in the public domain.
Relevantly, as the SD does affect the interests and reputations of third parties such as those who are adversely mentioned in the SD, they too may now claim privilege over the document in its entirety, or at least to the extent it affects their interests. Privilege may also extend to them.
If they do not protest against the IGP’s requests to question Amrick Singh Siddhu about the contents of the Morais SD, Amrick has nothing to hide behind and has a duty to co-operate in any investigation by the Police or other agency into allegations made either by him through Morais or by Morais through him.
IMPLICATING THE LATE KEVIN MORAIS IN CRIMINAL CONDUCT
The Charles Morais SD contains allegations of serious criminal misconduct by not only the alleged murderers of his late brother Kevin Morais. They also (by implication of statements by Morais), impute serious criminal misconduct and breaches of professional conduct on his late brother Kevin Morais.
Did Amrick Singh Siddhu caution Charles Morais or offer him advice (as he ought to have) as to the consequences of making such statements in the nature of what he advanced in his SD without the evidence to support or a reasonable belief in the truth of those statements?
Was Amrick negligent or reckless in the execution of his professional obligations to Charles Morais by failing to advise Charles or to point out to Charles the possible implications of what he was alluding to about his brother the late Kevin Morais in his SD? :
or is this another case as Manjit Dhillon, Amrick’s lawyer claimed at the July 2008 press conference (Malaysia Kini on your tube) of Amrick Singh Siddhu not caring about the truth or otherwise in the SD as he did with Balasubramaniam?
