Who really benefits from boilerplate legal documents?

In principle, I agree that lower legal fees would mean better accessibility by ordinary Malaysians. It was argued that documents such as sales & purchase agreements, uncontested wills and probate, accident claims, divorce petitions, mitigation and bail in criminal cases are not as complicated as imagined, and therefore the public can cut down on legal fees through readily made templates and apps.

But before agreeing that templates and apps are a feasible move, it is important for the public to be aware and cautious of the possible pitfalls that might result in a layperson going through cumbersome disputes in future.

Firstly, it is important to note that not all sales and purchase (S&P) agreements are straightforward. Even lawyers at times, get confused with terms or phrases used. On top of that, ownership of a property is not the only thing stated in an agreement. There are rights and obligations of parties at stake which has to be consistent with the existing legal framework and legislations. Is the public aware of this?

To sink deeper into the mire, the laws governing the validity of these agreements differ according to states and places. Now, would a layperson be fully aware of these? The pitfalls are there. If overlooked, one might not even be aware of a breach.

To put these into perspective: A buyer of a newly built landed house might be able to draft a self-written S&P agreement, but what about a faulty land title which the layperson is not aware of? Or perhaps an apartment without a strata title which has changed hands a few times? Does a layperson know he risks being at the mercy of the developer’s prudence? Will he know the risks should he decide to resell the property in future?

Unlike applications or forms, a person drafting legal documents cannot safely complete an agreement simply by filling up the blanks. Lawyers are trained to deal with banks, proprietors, land offices, developers and most importantly, they are trained to foresee the risks and implications involved.

Have you not heard that even lawyers do run into trouble sometimes? When a layperson runs into trouble, where will he go? Back to a lawyer of course. At the end of the day, would it be cheaper or costlier? It very much depends, really. It is irresponsible for lawyers to lead the public into a minefield which might eventually expose them to more risks resulting in even costlier legal fees. What about criminal cases involving the liberty of the accused? Would a layperson be able to fathom the factors and considerations taken into account by the judge during the mitigation process? It takes skills to persuade a judge, and these advocacy skills are not things easily grasped, even by lawyers themselves.

What about bails? Would the public be able to distinguish the difference between a bond and a bail? Or perhaps the difference between a bailable offence, non-bailable offence and unbailable offence? These are essentially important aspects of the law a layperson has to understand.

Secondly, it is certainly true that a liberalised legal profession would mean end users benefit the most. Generally, price will go down and quality will be improved when there is stiffer competition. However, it is very misleading to cite the Alternative Business Structure (ABS) in UK as a perfect example for the public to do their own S&P agreements. The ABS which was formed in 2011 through the Legal Services Act 2007 allows non-law firms to own legal practices. It is a game changer not for laypersons, but for firms or multi-national companies to provide competition in the market.

As of January 2014, a report by LexisNexis has shown that 136 law firms (mainly small firms) have closed down. And in the UK’s case, it is because the big firms running ABS has gobbled up a big share of the legal services market.

These ABS ‘outlets’ are run by laypersons. There are strict rules and conditions attached to be fulfilled before a license is obtained, for example the strict requirement for a certain percentage of lawyers to be on board. They sit through courses and tests in order to obtain the license. Hence, are they really laypeople after all? Not really.

It is very easy for proponents to turn this into a rice bowl argument, but are all lawyers rich as perceived? Certainly not, because we are seeing small law firms closing down because they cannot eke a living. In the present system, the legal profession is an open market and you are free to choose your lawyers. If indeed lawyers are bound by the law to charge a certain percentage, then the problem does not lie with the lawyers but the legislation.