Ly Tayseng is a lecturer in law and managing partner at HBS Law and HBS Notary Public. HBS Law and HBS Notary Public
Over the past two decades, the legal profession has been undergoing rapid evolution. Local and global challenges have shaped the practice of law and altered the lawyers’ mission from serving justice and the public interest to become more business-oriented.
According to Darwin’s theory, evolution and natural selection are nature’s way to ensure the survival of a species. Only those that can adapt to the changing environment will survive, failing which, existing species will be replaced by newer ones that can adapt and evolve.
In 1995, the Bar Association of the Kingdom of Cambodia (BAKC) was established as a self-regulating body to administer an independent and liberal profession with a mission to serve the interests of justice.
Members of the legal profession are only allowed to practice after gaining admission to the BAKC.
Lawyers are generally expected to perform public interest functions and focus less on themselves. Trained for legal defence in court, and on civil and criminal codes and codes of civil and criminal procedures, they are mandated to put public and client interests before their own.
As officers of the court, lawyers play an indispensable role in co-administering justice with judicial officials. Lawyers are expected to defend citizens’ rights and liberties, educate them about their rights and duties, and uphold the rule of law to preserve justice in a democratic society.
To achieve these objectives, the law on the bar stipulates that the legal profession was designed to be incompatible with performing public functions as civil servants, having involvement in business activities or serving as a member of the National Assembly. Broadly speaking, the incompatibility with the legal profession should also be extended to cover members of any legislative bodies or administrative, municipal and provincial authorities which are directly or indirectly elected by the citizens.
These requirements are mainly aimed at effectively ensuring professional independence, preventing conflicts of interest and protecting the professional confidentiality and the public interest.
However, I note that over the past two decades, the ideal of “serving justice” has taken second place. Legal practitioners today are focusing more on profit or political fame. The fight between professional virtues and political and commercial objectives is more visible.
A large number of lawyers, under the pretext of voluntarism or pro bono services, have affiliated themselves with political leaders and state institutions. It is unclear why would it be necessary for lawyers to sign a memorandum of understanding with a state institution to provide legal defence to the poor and vulnerable citizens. For whom are they supposed to act in the conflict between the state and the citizens?
On a positive note, such affiliations have indeed created employment opportunities for lawyers and raised their personal political profiles in the government.
But, this has also conveyed a confusing image and undermined the core values of lawyers who are supposed to enjoy the privilege of their independence, freedom of choice, professional integrity and honesty in ensuring justice for the people.
Furthermore, political affiliations will not contribute to enhancing the people’s trust for the public and judicial services provided by the government. I note that building trust in the judiciary has been recognised as a challenge in the government’s Rectangular Strategy Phase IV. Any attempt to control the legal profession by the government would be inconsistent with the objective and priority action in this Strategy. And only in unfree societies, their governments would do so.
Lawyers would better serve justice by playing their role as mediator between the State and citizens when conflicts arise – mostly when the rights and liberties of citizens are violated by state authorities.
They can also educate citizens and state authorities about their legal obligations to comply with the laws. Nevertheless, lawyers can freely choose to act for the state or citizens and provide them an independent and unbiased advice. This would be what the society expects from the lawyers.
Lawyers face numerous challenges and pressures from both within and outside their profession.
Within the profession, the rapid rise in the number of lawyers has flooded the legal market. In just four years, the number of lawyers has increased double through the annual examinations and direct admissions by the BAKC.
The rapid increase in their numbers could have negatively impacted the capacity of the BAKC to ensure the appropriate competence and qualifications of lawyers.
This also translates into a reduction in lawyers’ income due to very tense competition among their peers in the profession.
This situation has pressured lawyers to reduce their legal fees, lower the quality of service and professional standards they offer, and in some cases, compromise their integrity.
It also means that those who wish to become rich lawyers hardly fulfil their dreams since their expenditure exceeds income.
Besides social challenges in personal life, lawyers face the additional issues of being they are forced to practice law as an income-generating business rather than prioritise their independence and preserve justice.
Theoretically, newly admitted lawyers and their peers are expected to a play vital role to serve the public interest. Unfortunately, a majority of junior lawyers seem to concentrate on earning money rather than serving the public interest.
This is because they had to pay significant amounts of money for their admission, legal training, and to set up their practice.
Why would those who have paid for their admission prioritise public interest or pro bono services than earn income for themselves? Some may have borrowed from parents, relatives or friends to pay for their legal education. And such debts need to be repaid over time.
Lawyers also face challenges and pressures from the outside. Today, they compete not only with the influx of foreign lawyers but also with State institutions.
In the past few years, more public institutions have begun to charge fees for legal advice. For example, the National Bank of Cambodia charges fees when consulted on banking laws and regulations.The Ministry of Economy and Finance also charges for consultation on trust and other laws and regulations under its mandate.
The tax administration has licensed its agents, while the Ministry of Commerce has its commercial registration agents, specialised intellectual property (IP) agents, and so forth.
While the law only allows members of the BAKC to provide legal advisory services by charging fees, some State institutions have created regulations enabling them to charge fees for legal consultation or allow their agents who are not lawyers to provide legal services for a fee.
Adding to this quandary, globalisation and regionalisation have pressured Cambodia to liberalise its legal services. The Kingdom joined the Association of Southeast Asian Nations in 1999 and became a member of the World Trade Organisation in 2004.
These memberships have forced Cambodia to open its legal market to foreign lawyers.
Although not permitted by law on the bar, some foreign lawyers (and some non-lawyers) have been engaged in legal practice in Cambodia for many years through their commercial presence, commercial alliances or cross-border practices.
Foreign lawyers are known to use Cambodian legal practitioners as a front for their practice, or they enter the Kingdom on short-term stays to work for their clients.
Some accounting and auditing firms and business consulting firms have also extended their services to provide legal advice without proper licenses from the BAKC. Such an unregulated environment has put tremendous pressure on Cambodian lawyers.
Considering these challenges, I believe Cambodian lawyers need to redefine their legal practice to remain and survive in such an extremely competitive environment. The Ministry of Justice and the BAKC should also carefully look into this issue.
In addition to their professional knowledge, it is now necessary for lawyers to have a proper corporate strategy, more entrepreneurial mindset, and management skills to operate their legal practice.
Thus, they would need to transform their traditional legal practice as solo practitioner or loose partnerships, and approach it in a more commercialised and customised manner.
Cambodian lawyers would need to combine their skills and financial resources to build and modernise their legal practice and provide alternatives for business communities so they don’t only depend on their home country lawyers.
There are compelling reasons for the Cambodian government, the civil society and lawyers to help ensure the independence and empowerment of the BAKC.
The Ministry of Justice, in particular, should promptly and actively assist the BAKC to update its law and regulations to support modern legal practices for the functioning of the BAKC, and the legal education and training for lawyers.
The government should create a more conducive environment for lawyers to practice their professions independently and ethically so that they can become conduits for positive change and contribute to the sustainable development of the Kingdom. The government should refrain from interfering in the management of the BAKC.
The BAKC should also be proactive in equipping lawyers with vital knowledge and skills to improve their standard of practice and professionalism, especially in commercial sectors.
It should be more actively involved in policy formulation and public engagement to enhance the trustworthiness and credibility of lawyers in providing their services to society.
Besides these, the BAKC should have greater courage to challenge any institution, any foreign lawyers (and non-lawyers) that infringe on the legal profession and stand up for its independence and the interest of its members and society.
It should have a clear vision and planning to raise the level of professionalism among Cambodian lawyers who can eventually export their legal services to other countries in the region and build their reputation in the international arena.
Without such a strong commitment and clear vision from the BAKC’s leadership and relevant government authorities, Cambodia will remain an importer of legal services and the Cambodian legal market will gradually be shared with foreign lawyers.
This means there will be stronger market competition, which will create hardships and impact the survival of Cambodian lawyers.
Lawyers should stand up to defend the independence of the BAKC and empower it to remain a self-regulating body, financially sustain its operation and improve its capacity to support and protect the interests of its members and society.
A poorly funded BAKC cannot help its members to catch up to competitors in the market. Lawyers should leverage every opportunity to develop their knowledge and skills and strictly maintain their high ethical standards and professionalism.
Ly Tayseng is a lecturer in law and managing partner at HBS Law and HBS Notary Public
