Ariel: The Farce Continues...

Wake me up when this trial is done and dusted, please.

I have been away for a little bit more than a week. It has been nice to not read a whole lot of news. It has also been nice to be away from an internet connection, and the temptation to see what frivolity came about in the latest trial hearing in the Peterporn saga. Yet, to be honest, I feel that seeing I started this "follow it through to the end" deal, I should in fact follow through. So, holiday or no holiday, I am back posting a running commentary on why this case should never have gone to trial.

The most recent reports have covered the testimony of Hadi Supeno, the former Head of the Indonesian Child Protection Commission (KPAI). Supeno cannot be faulted for his commitment to protecting Indonesian children. He is most definitely, at least at face value, committed to seeing that Indonesian children are protected from all manner of harm. However, he is not much of a public relations whiz. He is not good at selling the message.

The primary problem for Supeno is that he talks in generalities and the grand schemes of things. He tends to downplay the "facts" or the "science" in preference for sweeping statements about how "he knows" what will harm Indonesian children and whatever he states must be accepted as is. Unfortunately, and perhaps beneficially for Ariel, no everyone does.

According to Supeno, there are four major impacts that children will encounter as a result of the release of the Ariel / Luna Maya and Ariel / Cut Tari sex tapes, namely: the videos will increase the sexual desires of children, the videos will effect the social and mental development of children, the videos will encourage children to replicate the behaviours they have watched, and the icing on the cake, the videos will lead to an escalation in the criminal activities of children.

Ah, evidence? Boy Afrian Bondjol, Ariel's lead lawyer in the case, questioned Supeno on the four assertions he made in court, and rightly so. Supeno could only offer up that "this" is what he knows. But, Pak Hadi, you really need to stump up some research. Surely, there must be some research that supports the proposition that children who watch pornography are more likely to commit crimes. Or that children who watch porn are more likely to become sexually active at a young age. Or that these increasing numbers of sexually active children are becoming rapists and sexual predators. Any research would do.

Seriously, if this is the best that the prosecution has to offer up as supporting evidence for their desire to see Ariel jailed for up to 12 years and fined a couple of billion rupiah, then one really does need to question the wisdom of bringing this case to court. There is no justice being served here. There is only a desire to deflect public attention from more serious criminal cases and matters that continue to flounder in the deep dark abyss that is the Office of the Attorney General.

Once again, the man made a sex tape...so what? If this "case" was dropped like it should of been then people would no longer be talking about it. So, for that reason alone, perhaps there are arguments here that the Office of the Attorney General and the courts are complicit in keeping this "morally questionable conduct" by Ariel in the public eye. Why would they want to be doing that?

Have Three Prime Ministers Really Failed Schapelle Corby?

It really is hard not to have a chuckle when stories like this wend their way into the media. Admittedly, Lawyers Weekly is not the most mainstream of media, but it is a publication that shares the concerns and voices of lawyers. So, in that sense, Kerry Smith-Douglas is a lawyer, she does represent the Corby Family in Australia (as far as I can tell), and there are interesting legal issues to be discussed and debated in this case.

Unfortunately, the significant issues that need to be debated here are not whether John Howard, Kevin Rudd, and now Julia Gillard have failed Schapelle Corby. The reality that the talking head that is Kerry Smith-Douglas fails to comprehend is that there are protocols and methods to the madness that constitute international relations that do not include successive Australian Prime Ministers jumping up and down on the spot and shaking their fingers at the democratically elected president of the Republic of Indonesia saying "give us back our girl or else!"

There is nothing funny about Schapelle Corby's case nor the predicament that she finds herself in. Kerobokan Prison is not a great prison to be doing a 20-year stretch in for smuggling drugs into the sovereign state of Indonesia. However, Kerobokan is not the worst prison in Indonesia nor is it the worst prison in Asia. Nevertheless, there are many people who think she has done enough time and it is time that she came home to Australia. Yet, it would be irresponsible to suggest that all Australians are in support of Schapelle Corby's repatriation to Australia, because they are not. There are still significant numbers of people, at least anecdotally, who argue "if you do the crime, you do the time".

This post is not about the technicalities of her conviction. If you want to read those posts then search this blog using the term "Schapelle Corby". Justice in this case was served in Indonesia. The cold hard reality that some refuse to accept is that the alleged crime occurred in Indonesia, Corby was arrested in Indonesia, she was prosecuted in Indonesia and she has been jailed in Indonesia since her conviction. The case was appealed pursuant to Indonesian law and these appeals ultimately failed. The case has be subject to judicial review and this failed to alter the result. The final step in this process is an appeal for clemency, this is pending a decision by the president, Susilo Bambang Yudhoyono (SBY).

It is a little bit weird to now start blaming this outcome on successive Australian Prime Ministers, isn't it? This case went belly-up, it was cactus, it was poisoned way before any of the past three Australian Prime Ministers could have conceivably launched a successful intervention. What remains now is some pretty solid bilateral lobbying and diplomacy. I am sure there will be those out there who want to jump in and argue that being silent has not served their cause well. Maybe this is so, but to be honest, I have not heard silence in this case since the outset. This has been a media circus from day one.

Final point, I am not going to argue that the best solution for Corby is to wait for a prisoner transfer agreement. However, that remains an option. The best bet is some form of humanitarian clemency from the Indonesian president that sees Corby's sentence slashed to time served. The most likely outcome is that she will be released having done at least 10 years of her sentence. Therefore, the clemency appeal will be successful in gaining a reduction in her sentence to about 15 years. Then with continued remissions for good behaviour, Corby will see freedom as early as 2014.

The problem here is not three successive Australian Prime Ministers failing Schapelle Corby, the problem has always been one of bad advice in the critical first few days after arrest.

I hope she is released immediately and returns to Australia as a free woman.

Ho hum...

"Ill Disciplined" Lawyers?: Australian Examples...

Can lawyers "inadvertently" overcharge their clients? Lawyers in Australia have very explicit obligations when dealing with client money. There are also supposedly very explicit "rules" regarding how much clients can be reasonably billed and charged for legal work performed in the pursuit of justice or a claim. The biggest of these cases of recent infamy has been related to the work of Keddies Lawyers in Sydney. However, the issue is one that extends way beyond a solitary law firm.

Richard Ackland has written an excellent piece on this phenomenon, and I use the same examples here (with my own spin attached).

For example, a case involving the survivors of the Voyager disaster saw one victim receive a payout of just AUD 72,000. This seems fair enough until one learns that the government actually forked over an amount of AUD 412,000 to settle the claim. Yes, AUD 340,000 was eaten up in lawyers fees and disbursements. My math is not all that good, but by my reckoning the victim received just 17.5% of the compensation paid after fees and expenses.

An investigation of the fees billed and charged to the victim / client in this case found that the victim had been charged twice for the same work, that discounts provided from barristers for work on the case were not passed on, that this client was billed for work that was also billed to other clients, and that "work" on the case saw more than 24 hours billed in one day!

According to the Victorian Supreme Court this was not deliberate, but rather the consequence of a lack of attention to detail by the lawyer involved. Therefore, the inadvertent lack of attention to detail is just one of those things that happens? Doesn't the community expect that lawyers must be held to a higher duty of care when dealing with trust monies in their client accounts? And, isn't this expectation a reasonable one? The excuse that there was an inadvertent lack of attention to detail is akin to "But, Your Honour, I was drunk so I though her 'no' was really a 'yes'!" Perhaps an even more pressing question is "Your Honour, if the inadvertence is continual, then is this not a pattern that suggests there is an underlying intent to steal from client trust monies?"

Yet, the cases to date on lawyers over-charging their clients and mishandling client trust monies reads like a script of "how to protect your own". The NSW Court of Appeal found in a case against Leon Nikolaidis that the overcharging could not have been deliberate because his secretary sent out the letter of account. How convenient is that excuse? Seriously, if the lawyer signed off on that letter of account then the presumption must be that the lawyer read the letter and is therefore responsible and accountable for the content of the letter, right? Anyone else that signs a letter voluntarily yet fails to read its content would be held responsible for what that letter contains.

Why should it be different for lawyers?

Has Indonesia Turned the Economy Corner?

I really should get back to writing more dry analysis of business and economics news and the legal frameworks that impact those two areas in Indonesia. Sometimes, I miss writing for a captive audience. My previous life at hukumonline.com afforded me that opportunity.

The amount of money coming into Indonesia through 2010 is the most to be placed since 1998. The amount is a rather impressive USD 23.3 billion. This has been driven by consumers and resources. However, it is interesting that some are suggesting that the biggest factor in this surge of investment is thanks to President Susilo Bambang Yudhoyono (aka SBY). According to those in the know, foreign lawyers, the resurgent confidence is directly related to SBY's ability to fight corruption and terrorism combined with his drive to raise the levels of spending on critical infrastructure.

To be honest, I am not sure that a lot of others, who would also consider themselves to be in the know would agree with this assessment. There is no doubting that the Indonesian economy is going great guns in terms of investment. This might just as easily be attributed to the idea that some investors have reached a point where any risk is justified by the potential returns. It may be that it is simply no longer an option to wait and see and get left behind.

The idea that corruption is under control and that the Indonesian judiciary is sufficiently reformed to make business transactions certain is tantamount to burying one's head in the sand. A recent speech by the former Finance Minister of Indonesia, Sri Mulyani Indrawati, highlighted just how prevalent corruption is and how much of a threat it still is. I would argue she might know about these things, particularly when one considers most people believe that she moved to her current position at the World Bank after getting worked over by Aburizal Bakrie and a compliant SBY when she sort to clean house at the tax office.

The judiciary is still a long way from being an organisation that provides legal certainty to business players. Judges are still on the take. Police officers and prosecutors are also on the take. The recent case of Gayus Tambunan and his ability to get out of jail highlights.

Nevertheless, the surging business environment is providing plenty of legal work, and the numbers of accredited foreign lawyers working in Indonesia has risen from 20 to 50. I will need to make some calls and get the relevant data to substantiate this because as I recall there were like 40-odd accredited lawyers in the beginning of 2009. All foreign lawyers must be accredited through the Indonesian Bar Association (PERADI) if they are to work in Indonesia. It is worth noting that there are a significant number of foreign lawyers in Indonesia who are not accredited by PERADI. This is achieved through technicalities as the foreign lawyer is not employed as a lawyer, but rather in some other capacity.

With all these things to be considered, the question is "has Indonesia turned the economy corner?"

Jennifer Dunn and that Baby Gossip...

So, the latest gossip is that Jennifer Dunn, drug star, has given birth in jail. The alleged father of this youngster is the married father-of-two and gangster wannabe, Sunan Kalijaga.

Now, my happy-go-lucky readers, this rumour is just that rumour. It is gossip that Ms Dunn's mother has been doing everything in her power to deny.

Unfortunately, Mr. Kalijaga seems to be doing everything that he can to stoke the flames. The man has a bad case of needing to be in the news to justify his existence.

Anyways, Ms. Dunn is still in jail for drug-related offenses. So, I am not sure that there are any new sexy photos of her to post. The following will have to do. But, if you long for the good old days, then follow this link.

Honest Lawyers...

If in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.


-- Abraham Lincoln (1809-1865) - 16th US President.

Statutory Rape or Monumental Mistake?

This is a series of photos doing the rounds of the internet at the moment. Perhaps they will appeal to lawyers more than anyone else (I am not sure that is a good thing, though).

So, the simple question is: "Is this statutory rape or a monumental mistake?"

The Age of Magistrates -- Does It Matter?

How young is too young? Or perhaps the question should really be how much experience is enough in order to be appointed a magistrate in NSW. This is a question that seems to have struck a chord in NSW with the recent appointment of Ellen Skinner as a magistrate at the age of 33.

Personal opinion, age is but a number. If the committee that selected her and recommended her for appointment believe that she has the skills and qualifications necessary to do the task, then so be it. It does not matter that she is 33 as it would not matter if she was 43, 53, or 63.

The appointment has drawn the ire of the NSW opposition who claim that the process is not transparent and the criteria for appointment are unclear. So, this appointment seemingly represents a case of providing someone the inside running to a career on the bench. This is nothing short of a little bit of grandstanding. By all accounts, Skinner is an accomplished lawyer and a worthy appointment.

The appointment makes Skinner the youngest ever person appointed to the bench as a magistrate in NSW.

Good luck to her and may she have a long and successful career on the bench.

Something For the Lawyers...

Really? Are all lawyers going to hell?

One For the Lawyers...

A lawyer, instead of saying that two plus two make four, would say:

"If by that particular arithmetical rule known as addition, we desired to arrive at the sum of two integers added to two integers, we should find - and I assert this boldly, ans without fear of successful contradiction - we, I repeat, should find by the particular arithmetical formula before mentioned - and I hold myself perfectly responsible for the assertion that I am about to make - we should find that the sum of the two integers added to the two other integers would be four."

from Jokes, Quotes, and One Liners - Volume 2 by Herbert V Prochnow and Herbert V Prochnow Jr.

More Australian Humour...

Q: If a magician's wand is used for cunning stunts, then what is a police officer's baton used for?
A: [use your powers of deduction on this one]

Q: What happens to a lawyer who jumps out of an airplane at 35,000ft without a parachute?
A: Who cares!

Q: How many racists does it take to change a light bulb?
A: None - because racists hate being enlightened.

The Night Before Christmas – Legally Speaking

To keep you all amused.

Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter "the House") a general lack of stirring by all creatures therein, including, but not limited to a mouse.

A variety of foot apparel, e.g., stocking, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick AKA/St. Nicholas AKA/Santa Claus (hereinafter "Claus") would arrive at sometime thereafter.

The minor residents, i.e., the children, of the aforementioned House were located in their individual beds and were engaged in nocturnal hallucinations, i.e., dreams, wherein visions of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams.

Whereupon the party of the first part (sometimes hereinafter referred to as "I"), being the joint-owner in fee simple of the House with the parts of the second part (hereinafter "Mamma"), and said Mamma had retired for a sustained period of sleep. (At such time, the parties were clad in various forms of headgear, e.g., kerchief and cap.)

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e., the lawn, a certain disruption of unknown nature, cause and/or circumstance. The party of the first part did immediately rush to a window in the House to investigate the cause of such disturbance.

At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter "the Vehicle") being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer. The driver of the Vehicle appeared to be and in fact was, the previously referenced Claus.

Said Claus was providing specific direction, instruction and guidance to the approximately eight (8) reindeer and specifically identified the animal co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner and Blitzen (hereinafter "the Deer"). (Upon information and belief, it is further asserted that an additional coconspirator named "Rudolph" may have been involved.)

The party of the first part witnessed Claus, the Vehicle and the Deer intentionally and willfully trespass upon the roofs of several residences located adjacent to and in the vicinity of the House, and noted that the Vehicle was heavily laden with packages, toys and other items of unknown origin or nature. Suddenly, without prior invitation or permission, either express or implied, the Vehicle arrived at the House, and Claus entered said House via the chimney.

Said Claus was clad in a red fur suit, which was partially covered with residue from the chimney, and he carried a large sack containing a portion of the aforementioned packages, toys, and other unknown items. He was smoking what appeared to be tobacco in a small pipe in blatant violation of local ordinances and health regulations.

Claus did not speak, but immediately began to fill the stocking of the minor children, which hung adjacent to the chimney, with toys and other small gifts. (Said items did not, however, constitute "gifts" to said minors pursuant to the applicable provisions of the US Tax Code.)

Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as "lookouts." Claus immediately departed for an unknown destination.

However, prior to the departure of the Vehicle, Deer and Claus from said House, the party of the first part did hear Claus state and/or exclaim: "Merry Christmas to all and to all a good night!" Or words to that effect.

Fining Lawyers

Now here is a thought!

If any bill, answers, replication, or rejoinder, shall be found of an immoderate length, both the party and the counsel under whose hand it passeth shall be fined.

Sir Francis Bacon (17th Century)

Parody -- Lawyers

Although a parody, this is a good reason why lawyers need to consider seriously adopting a plainer drafting and writing style.

The part of the first part hereinafter known as Jack, and the part of the second part hereinafter known as Jill, ascended or caused to be ascended an elevation of undetermined height and degree of slope, hereinafter referred to as "hill."

Parody from 20th Century

Plain Language

Plain language and the lawyer, a question of compatibility.

Diversionary tactics on the part of lawyers come from their fear that their expertise won't seem very special if they write it down in plain English.

Andy Rooney (1987)

Legal Writing

Are lawyers good writers?

I should apologize, perhaps, for the style of this bill. I dislike the verbose and intricate style of modern English statutes ... You however can easily correct this bill to the taste of my brother lawyers, by making every other word a "said" or "aforesaid" and saying everything over two or three times so as that nobody but we of the craft can untwist the diction, and find out what it means.

Thomas Jefferson (1817)

Lawyers

Something to ponder for all the lawyers out there!

They have no lawyers among them, for they consider them as a sort of people whose profession it is to disguise matters.

Sir Thomas More -- Utopia (1516)

Law Firms and Overcharging

If you ever wondered why lawyers and law firms have a bad reputation then it is cases like this one that provide the bad rap! NSW's largest specialized personal injury law firm is fighting allegations that it has overcharged clients and falsified documents to claim larger portions of any compensation payments awarded to their clients.

The firm is Keddies Lawyers. I used to have to walk passed them to get to my office at the Sydney Regional Aboriginal Corporate Legal Service. Maybe they have moved to bigger premises or something. It seems that they could afford it.

I am not against lawyers making money but they need to do it fair and square like everyone else. However, it must be noted that so far that Keddies has not been found guilty of any breaches to date but within the last 18 months there have been some 25 claims placed with the legal regulator by unhappy Keddies clients and some of these are still pending.

Allegations and claims are flying thick and fast from all sides. A respected NSW Barrister, Geoffrey Watson SC, says it is one of "the worst allegations of overcharging I have ever heard." It is his view that legal fees should not regularly exceed compensation by a factor of two or more. If legal fees do exceed compensation in this way on a regular basis then there is something inherently wrong in the way fees are levied.

Some of the allegations include Keddies charging some AUD 800,000 in fees on an AUD 3.5 million payout. Other allegations include fees of AUD 215,000 on a payout of just AUD 300,000, meaning that Keddies charged almost 72% of the payout in fees. However, the case that resulted in the raft of allegations was the case involving Gu Xi Liang. He claims to have been talked into agreeing to settle his case for AUD 50,000 in 2006. However, he was later to find out that Keddies had settled on hos behalf for AUD 300,000 and then claimed AUD 250,000 in fees and expenses. This means that the victim here received just 20% of the payout.

Strangely, Keddies has started repaying former clients who have lodged complaints with the Office of the Legal Services Commissioner. To date some AUD 500,000 has been paid including payments of AUD 40,000 and AUD 60,000 to the daughter of Gu. Russel Keddie, the Managing Partner, does not accept that these payments are in any way an admission of wrong doing but rather they are simply a good will gesture to a particularly unhappy number of clients. The above photo is of Russell Keddie and Mr. Gu.

Keddies are maintaining that they have acted ethically at all times and I guess the investigation process will determine the validity of that claim. However, one of the allegations includes a time sheet where the relevant lawyer, David Marocchi, has billed 22 hours of his time on one day and billed fees of some AUD 9,500 for those hours. Marocchi has denied that he has falsified documents and palmed of the allegations as typing errors and duplicate entries. Sounds like a deer caught in the headlights to me. The classic example of the kid caught with his hand in the cookie jar.

Whether Keddies is guilty or not of any breach of the law is in someways secondary to the investigation process. The investigation must be above board and let the cards fall where they may. The reality is that the only way to restore confidence in the profession is to see that the rules are applied and wrong-doing is punished.

PERADI vs. KAI

This should be a real hammer and tong battle to the death! The recent establishment of the Congress of Indonesian Advocates (Kongres Advokat Indonesia / KAI) to rival the previous leader of the pack, PERADI (Perhimpunan Advokat Indonesia / Indonesian Advocate Association), is sure to be spectator sport of the highest order! The President was scheduled to open the Congress but PERADI complained in writing and then the President mysteriously fell ill (probably some bad sate).

The battle should see a few families pitted against each other in the heat of battle. However, although possibily amusing, it is not the family angle that is interesting but the legal ones. The Advocates Law (No. 18 of 2003) explicitly requires the establishment of a single peak bar association to represent Indonesian advocates. This had been thought to be PERADI.

Interestingly though, the eight bar associations that existed prior to the establishment of PERADI have remained in existence. The question in my mind has always been why were they not dissolved either by default with the establishment of PERADI or by decree or law by the government? PERADI from the outset needed to be above the day-to-day fray in terms of not pandering to any particular interest and remaining politics free. Any failure to do so was always destined to lead to the development of a rival organization.

It is being reported that the KAI claims that 10,000 of the 15,000 registered and licensed lawyers are ready to bail on PERADI and join up with the KAI. If this were true then the ding dong battle I was hoping to see might not eventuate as the KAI seems to have the numbers for a spill! A no confidence motion in the current PERADI leadership and then replacing them would also work. However, the KAI have adopted a position that PERADI is illegitimate and that the KAI is now the legitimate single bar assosciation as envisaged in the Advocates Law.

As I said the legal issues are certainly to be interesting as this is likely to see the Constitutional Court become involved.

I wonder if Todung Mulya Lubis joins KAI does he get his practice certificate (license) back or what?

I will be watching and reporting if any fun stuff happens.

Todung Mulya Lubis - Part II

I have been reading around as I do when there is a story that interests me! The TML story is one that interests me for a number of reasons. But prominent among these is that the decision to disbar the man seems excessive and it seems political and it sets a bad precedent. The decision has the hallmarks of a hatchet job...at least TML seems to agree with an assessment such as this one!

This is what TML is quoted as saying to the Asia Sentinel:

In a telephone interview with Asia Sentinel, Mulya Lubis called the decision “totally baseless and unlawful” and said he has little hope of winning an appeal.

“For me this is a conspiracy of corrupt lawyers who feel troubled and disturbed by my stand to play by the rules and consistently fight against corruption,” he said. “The judgment is outrageous and has killed my life, violated my right to practice law, and defied common sense and justice. I will appeal, but I am losing hope in the integrity of the Bar Association. The legal profession is rotten.”

The decision although a ban for life and in spite of the fact that TML himself feels like there is little hope on appeal, I have a sneaky suspicion that he will not be lost forever to the legal profession either here or Indonesia. If PERADI is seen to be too political and too concerned with vested interests, then it is going to come under pressure to either reform or be pushed aside.

There is a new advocates association in the making with a preliminary congress style meeting to be held in the very near future. So, perhaps this might not be the end after all for TML.

Anyone interested in this topic of ethics and ethical violations by Indonesian lawyers only need do a Google search to find that there are lawyers still practicing in Indonesia who have been alleged to have committed as serious, if not more serious, violations of the code of ethics...If you cannot find it on Google then drop me a note and I will drop some names for you to search for!