By Roger Tan
The Bar Council will be advocating the CPD scheme at the 66th
annual general meeting of the Malaysian Bar, and we, as lawyers, must
not be averse to change.
TOMORROW at the 66th annual
general meeting of the Malaysian Bar, the Bar Council will attempt for
the fourth time, after failing in 2003, 2005 and 2006, to introduce a
mandatory
Continuing Professional Development (CPD) scheme for all
practising lawyers and pupils in
Peninsular Malaysia.
Under the proposed CPD scheme, a lawyer will have to chalk up 16 CPD hours or points in each 24-month cycle commencing July 1.
A
pupil, on the other hand, has to accumulate eight CPD hours during his
nine months of pupillage
(training). The CPD points can be earned from
participating in a variety of CPD activities - ranging from attending
courses and seminars, lecturing, writing law books and articles (such as
this I hope) to attending Bar’s general meetings and activities in
accordance with a set of CPD Guidelines.
This scheme will be
implemented on a voluntary basis for the first two years. After that,
failure to accumulate the requisite CPD points within the stipulated
period may result in the lawyer not being able to renew his practising
certificate for the following year and the pupil not being able to be
admitted to the Bar.
In addition to this, the non-CPD compliant
lawyer may also face disciplinary proceedings as this may be tantamount
to a “misconduct” within the meaning of section 94(3)(k) of the
Legal
Profession Act 1976 (LPA).
It appears that the main reason why
the Bar Council is advocating the CPD scheme is that other Malaysian
professionals like architects, engineers, company secretaries and
accountants as well as other major legal jurisdictions like Australia,
Britain, Hong Kong, Ireland, the Netherlands, the Philippines,
Singapore, South Africa and the United States all have a mandatory CPD
scheme.
However, to me, there must first be in place a proper
legal framework and infrastructure for implementing the CPD scheme
before it is made mandatory. Perhaps, the Bar Council can successfully
come to grips with these matters in a matter of two years.
In
this respect, we have much to learn from Singapore how it prepares the
legal profession there for the CPD scheme which is expected to be fully
implemented by April.
Its CPD scheme will be administered by the
Singapore Institute of Legal Education (SILE). No lawyer will be
exempted as of right from the scheme, but those who seek exclusion from
it may apply to a Waivers Committee established under the SILE.
For
this purpose, the Legal Profession Act of Singapore (
SLPA) was amended.
Section 10(2)(i) of SLPA empowers the Board of Directors of SILE, after
consulting the Singapore Minister of Law and Council of the
Law
Society, to make rules to “prescribe the requirements relating to
continuing professional development that must be satisfied by advocates
and solicitors … and the measures which may be taken to verify whether
those requirements have been complied with and to enforce compliance
with those requirements.”
Currently, our LPA does not have a
similar provision, albeit it can be argued that such rules can still be
made under section 77(1) LPA with the approval of the Attorney General.
Further, if Sections 32 and 10 of the LPA are not respectively amended,
it may be unlawful for the Bar Council to deny a lawyer his practising
certificate or prevent a pupil from being admitted to the Bar for
non-compliance with the CPD Guidelines.
Further, it is arguable
whether a resolution of the Bar of this nature can be treated as ‘law’
within the meaning of Article 5 of the Federal Constitution which
provides that no one should be deprived of his life (which our courts
have interpreted to include livelihood) save in accordance with the
‘law’.
In any event, it is hoped that before the CPD scheme is
made mandatory, the Bar Council will resolve these issues as well as
consider the idea of incorporating a special purpose vehicle wholly
owned by the Malaysian Bar to administer the CPD scheme.
Apart
from the above reservations, I would declare my support for a mandatory
CPD scheme. In coming to my decision, I find support in the words of
Singapore Chief Justice
Chan Sek Keong and the then Law Society vice
president Wong Meng Meng spoken on May 29, 2010 at a ceremony admitting
248 new lawyers to the Singapore Bar.
“The law is a profession
of life-long learning and the best lawyers are those who learn all the
time. Unless you work at it continually, it may still not be very much
at the end of your career. A lawyer can never truthfully say that he has
learnt enough, and the day he says that is the day he should retire
from practice,” Chan said.
“If a lawyer thinks that he has
absolutely not enough to learn then that is the beginning of his
downfall. And that is also part and parcel of arrogance,” added Wong.
Of course, there are various opposing views to making the CPD scheme
mandatory, for example, that there should be no interference with a
professional’s independence and neither should they be forced and
treated like children. Life-long learning is a personal choice and if
the lazy and egotistic ones do not improve themselves, they will soon be
consumed by market forces. In other words, one can lead a horse to
water but one cannot make it drink! The scheme is introduced essentially
to address the problem with poor attendance at the Bar’s annual general
meetings and law seminars and conferences.
Also, compelling
lawyers to attend courses cannot guarantee that they will be attentive
during the entire exercise. The CPD points can be easily manipulated as
there is no effective mechanism to ensure that members who sign up for
the relevant CPD activities will stay on until completion. For
practitioners from small firms and in remote areas, they are genuinely
concerned about the costs involved and the accessibility to CPD
activities in and near the areas where they practise. Most of all, it is
not fair to say that those who are against CPD are not for continuing
professional development when the whole scheme has not been thought
through carefully.
Some of the above views are not without
basis. But they are not new. The list will go on for those who are just
not interested in it. They had all been employed in the last three
mentioned annual general meetings to shoot down this proposed scheme. Of
course, in the light of the last three unsuccessful attempts, had the
Bar Council gone ahead to legislate and introduce it without first
reverting to the members, the entire Council will most likely be hauled
up to answer a motion of no confidence in an extraordinary general
meeting.
But that should not mean that this time we should
resign to fatalism as if we are flogging a dead horse simply because a
voluntary scheme would never work. We must not be averse to change and
must have the courage to show that we can self-regulate in our interest
as well as in the public interest. To my mind, acquiring knowledge is
just like drinking water. No doubt, there are bound to be teething
problems in its initial implementation, but unless we bite the bullet
and go ahead with it, we would never to able to realise its potential
benefits.
In fact, this minimal means of maintaining and
improving lawyering skills is hardly a painful process. In Singapore, in
addition to meeting the requirement of CPD, a lawyer who now intends to
practise as a sole proprietor or a partner of a law firm must also
successfully complete the Legal Practice Management Course conducted by
the Law Society. Section 75C of SLPA also states that only a lawyer or a
legal officer of more than three years of experience is allowed to set
up or join a law practice as a sole proprietor or a partner. Similarly,
in most other jurisdictions, all new law graduates are also required to
sit and pass a common Bar examination.
Favouring a mandatory
scheme will show that we lawyers are committed to maintain and remain
professionally competent in the public interest.
I am sure
experience tells us if it is to be left to the individuals to undertake
continuing professional development, little will be done. There is also
no point to bemoan the declining quality of new entrants to the legal
profession if we the current practitioners do not lead the way in
raising the bar towards excellence.
It is for this same reason
that we say lawyers practise law because we can never be perfect in it,
and we have to keep on practising with the hope that someday we will
become perfect in what we practise. Hopefully, that day will be day when
we retire from law practice.
That said, the biggest concern now
is actually how many lawyers will bother to turn up for the meeting
tomorrow. With the 2006 amendment to the LPA, the quorum is now set at
500 out of 14,000 lawyers. It is anticipated that not more than 1,000
will attend, and by the time the vote is taken on the motion, there will
probably be not more than three to four hundred lawyers left to make a
decision that will affect all these 14,000 learned lives.
In
those years before 2006 when it was mandatory to meet the high quorum
requirement without which the new Council could not be formed to issue
practising certificates, thousands of lawyers would somehow with the
fine spirit of camaraderie make an effort to meet this mandatory
requirement. But tomorrow, when attendance is almost entirely voluntary,
will tell whether this motion will be killed for the fourth time or
carried for the very first time. Let us hope that the insouciance and
‘tidak-apa’ attitude of majority of members of this honourable
profession will not once again take the blame.
Finally, may all
lawyers draw wisdom from these inspirational words of Maimonides
(1135-1204) in the Daily Prayer of a Physician before Visiting a Sick
Man: “When wiser men teach me, let me be humble to learn; for the mind
of man is so puny, and the art of healing is so vast … May there never
rise in me the notion that I know enough, but give me strength and
leisure and zeal to enlarge my knowledge. Our work is great and the mind
of men presses forward forever.”
*The writer is a former member of the Malaysian Bar Council.