Shanmuga K says rather than making Continuing Professional Development (CPD) mandatory only for junior lawyers, the Bar Council should get authority to subsidize junior lawyers and impose suggested minimum standards.
Does Mandatory CPD work?
In 2012, when the Bar Council first mooted the idea of mandatory CPD, I was persuaded to support the idea with some reservations. I penned my thoughts on LoyarBurok. I had several reservations at that time, but on the question of whether it should be mandatory, I said:
“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.”
But a lawyer friend in New York commented as follows:
“CPD/ CLE is nothing but a money churning venture. If a lawyer is serious about his profession, he/she does not need CPD/CLE and institutionalized cage to keep him/her abreast with the latest development in his/her field of expertise. In the US, it is done online. Pay the money, get someone to sign in and there you are with your CPD/CLE credits. It is a joke. Probably Ivan Illich was right. …”
Ivan Illich, as we all know (since we searched Wikipedia after reading his name above) was a philosopher who believed in abolishing traditional schools, with people learning from each other. My friend was maybe possibly a tad bit too radical in this suggestion (but is he?).
In the 4 years that have passed, I notice that those who do not want to improve themselves gain nothing from attending CPD. Those who benefit are those who choose to attend. So I am less and less persuaded that CPD should be made mandatory. I fear that making it mandatory in the long run will only cause more bureaucracy, with the filling of forms and keeping of certificates, and not actually more learning. Of course, the Bar Council may have studies from psychologists and so on to refute this, but I haven’t seen it yet.
Of course, LBTraining and other training providers will be laughing all the way to the bank if this proposal goes through, but that’s neither here nor there. (Anyway, LBTraining doesn’t believe people can be trained unless they want to learn.)
But it is noteworthy that even the HRDF scheme implemented by the government forces companies to allow their employees to go for CPD, rather than forcing all employees of all companies to attend CPD courses. Companies are forced to pay the levy, but they are reimbursed for the course fees they send employees on.
The Current CPD Proposal
The Bar Council has now come up with another proposal for CPD. That proposal has come under a lot of fire, especially by junior lawyers since the scheme is mandatory only for them and fines will be imposed if they do not comply (though, admittedly, it is hard to see how anyone could not comply with the relatively easy CPD requirements). Respectfully, the Bar Council’s rationale for this does not make sense: apparently, they only have funds to subsidize the junior lawyers in the category they have fixed. This is what the Bar Council has said:
The CPD scheme commences with a specific group because the Bar Council expects to provide financial assistance to these Members and pupils, who may face financial challenges and who may have difficulty allocating time for training. This assistance will aid these individuals to gain access to training conducted by Members of the Bar for Members of the Bar in selected training areas.
The Malaysian Bar will still continue conducting CPD programmes for the entire membership, and the scheme will eventually extend to the entire Bar.
With respect, I do not understand this argument. If you only have the funds to subsidize young lawyers, then get approval from the AGM to differentiate among lawyers in order to subsidize them. There is a clear rational nexus between allowing cheaper pricing for young lawyers as a basis for differentiation. Article 8 concerns will be put to rest. But you don’t need to make it mandatory for them just because you can only afford to subsidize them!
(And I remain of the view that getting points for attending AGMs, as is currently the case for the existing voluntary CPD scheme, is also a joke lah.)
I feel, therefore, that the Bar Council should amend its proposed resolution. They should instead ask the AGM of the Malaysian Bar to
a) authorize the Bar Council to spend our funds on the CPD programme (which I am not sure is necessary but would at the very least get acknowledgment by the general body of the need for CPD), and
b) get approval to subsidize young lawyers.
If the Bar Council really feels that a stick is also warranted together with this carrot, they should announce minimum standards of CPD that should be undertaken by lawyers. They can remind lawyers that a failure to adhere to these minimum standards may be used against them in negligence suits and in disciplinary proceedings, if they make a mistake.
Then, the Bar Council should make every effort to ensure their very good CPD programme is made even better, so that people want to attend, rather than forcing them to attend.
But don’t make it mandatory only for some people lah, and certainly don’t impose fines on your own members!!