Should lawyers support the Bar Council’s #BCCPD resolution this Saturday?
The Malaysian Bar’s Annual General Meeting will be held this Saturday, 10 March 2012 at the Sunway Putra Hotel (formerly Legend Hotel), KL. The Bar Council, the Bar’s governing body, is proposing a resolution at the AGM calling for a mandatory Continuing Professional Development programme for lawyers. The rationale for doing this can be found in articles by the Star’s Shaila Koshy here and here, and in this Q & A with the CPD Committee’s Deputy Chair.
There has been a lot of emails on the Lawyers’ Talk Google group about it, most of which have slammed the proposal. I have been reading the emails on the CPD motion and thinking about it, and sent an email to the Lawyer’s Talk e-group with my views, for what they are worth. I am now reproducing that email with minor modifications.
1. I don’t like anything that is mandatory. Be that as it may, I know that I have an obligation to improve myself, and will do so whether or not the Bar AGM approves the CPD motion. So, this resolution will not really have any impact on me. I think I will easily make up the points anyway.
2. If other lawyers do not improve, what will be the consequences be to me? The public may suffer from these lawyers, and they may sue for negligence. My professional indemnity insurance premiums may therefore increase. Also, if other lawyers are better trained, they may not be making so many idiotic objections and wasting so much of my time. So, it’s also to my benefit for all lawyers to be better trained. I also recognize that lawyers who are messing up may be messing up precisely because they are not the kind who attend talks and seminars. So, to be effective, the CPD requirement must be mandatory.
3. So, I would support the idea of imposing minimum standards for continuing professional development, and to make it mandatory. In the long run, it’s probably in my best interests for all other lawyers to be better trained.
4. Thus, I support the CPD motion in principle. BUT, I am troubled by the Bar Council’s proposal for several reasons:
4.1 In my view, the proposal to withhold a lawyer’s Practicing Certificate if he/she does not meet CPD points cannot be enforced under our current system – see DP Vijandran v Malaysian Bar, which, if I am not mistaken, decided that the Bar Council has no discretion in issuing a Sijil Annual – the prerequisite for a Practicing Certificate to be issued by the Court – for a person who complies with the requirements of the Legal Profession Act (LPA). Thus, the LPA must be amended or a regulation of some sort must be enacted. So until a mechanism which is legally enforceable is worked out to make CPD mandatory, I have trouble in endorsing the resolution fully.
4.2 The ability to evade actual CPD by helping in Bar committees, doing injunction work for the Bar and attending AGMs should be removed totally. If a memorandum is actually drafted by a person within a Bar committee, then perhaps that person can get CPD points for that memorandum. But just being a member of a Committee and getting CPD points for that is, with respect, ridiculous. Service to the Bar is not CPD, it’s service to the Bar.
4.3 I also think giving CPD points for doing legal aid files is wrong. A legal aid file or a file where the Bar Council is client is the same as any other file for a client.
a) I take the point that some people do legal aid work to gain experience in a different area of law. But by that same logic, lawyers who volunteer for Yayasan Bantuan Guaman Kebangsaan (YBGK) files should also get points even though they are paid an allowance? What about young lawyers doing a new file in their firm which they have not done before? What about senior lawyers trying out a new area of practice?
b) Lawyers may well treat legal aid files as a means of getting experience. The Bar Council should discourage that, and encourage practitioners with competence in a particular area to take on legal aid matters so that indigent litigants get the same level of experience as rich ones (which in my view must be done by abolishing our current legal aid system, and replacing it totally with the YBGK system).
4.4 There is a concern that there will not be enough programmes to cater for the Bar as a whole. This is a valid concern – the programmes thus far have not been overwhelming. Until we have seen the programme, and experienced its benefits and the ability of the Bar Council to cater for all, it would be inappropriate to commit to a mandatory timeline.
5. My Suggestion: In my view, therefore, I would suggest that the motion be amended so that the Bar Council be empowered to embark on a 2 year pilot scheme with the intention of making the CPD scheme mandatory in due course, that the BC will report back to the members on the pilot scheme and the members will then decide on when to make the CPD scheme mandatory.
I trust the above comments are helpful. In any event, it promises to be an exciting AGM. I hope to meet all of you (practicing lawyers, that is) there in person: Drop by the LoyarBurok booth – I should be there, and you can get some very cool merchandize and LB’s excellent book on the Perak Constitutional Crisis!