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The Star
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.”
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