©The Star (Used by permission)
by SHAILA KOSHY
The Bar Council has tried before to get lawyers to pass a resolution for the implementation of a Continuing Professional Development (CPD) scheme and failed. Is it going to fare better at the Malaysian Bar annual general meeting on March 10?
LIKE any other profession today, the legal profession is under pressure to evolve to meet the needs of a globalised world.
As highlighted by Dipendra Harshad Rai, chair of the Bar Council's Professional Standards and Development Committee (PSDC), the demands of globalisation means acquiring new knowledge and skills, something that a mandatory Continuing Professional Development (CPD) scheme can fulfil.
And this is why, although previous attempts to get the Malaysian Bar to pass a resolution for the implementation of such a scheme had failed, Dipendra is pushing for the motion at its 66th Annual General Meeting on Saturday.
He argues, the proposed scheme enables Bar members to learn skills and knowledge that were not taught at law schools then or even now, exposes them to new areas and gives them the opportunity to expand their areas of practice.
In fact, he adds, the reasons to implement such a scheme are three–fold:
Dipendra notes that major legal jurisdictions like Australia, Britain, Hong Kong, Ireland, the Netherlands, the Philippines, Singapore, South Africa and the United States all have mandatory CPD.
His deputy Raphael Tay agrees that a compulsory CPD programme is vital.
“We cannot say we are a strong legal jurisdiction or that our standards are very good when we lack elementary things such as a compulsory CPD programme for members,” he says.
Tay concedes that while he thinks the legal profession here is an “outstanding one,” it lacks “a system where people can evaluate us.”
According to the proposed guidelines, CPD will apply to all advocates and solicitors with practising certificates and pupils in chambers.
A CPD cycle covers 24 months, with the first beginning on July 1 and running until June 30, 2014.
“Those in practice on July 1 are expected to accumulate 16 CPD points by June 30, 2014,” says Dipendra.
He draws a distinction between CPD and Continuing Legal Education saying the latter is confined to legal education.
The mandatory CPD scheme seeks to implement a programme “enabling advocates and solicitors to systematically maintain, improve and broaden the relevant knowledge and skills in order to successfully carry out his or her professional duties and responsibilities,” he explains.
“For example, if a corporate lawyer or litigator takes up a course of forensic accounting or how to better understand accounts, CPD points will be given.
“If a lawyer who practises construction and arbitration work, participates in a seminar on engineering processes, CPD Points can be given for such an endeavour.”
Tay stresses the criteria for accreditation of CPD activities will be in line with the broad and flexible individual needs–based approach.
“As lawyers, we will come across many obstacles which can crop up in the form of technological challenges in the industry.
“Unless you have an understanding of the industry and technology, apart from law, you will never be able to advise your client adequately,” he says.
“For example, a South Australian lawyer, in compliance with his CPD obligation, wrote to his law society stating he was planning on attending a winery course and enquired if he could earn CPD points from it.
“He explained that he had a few clients who owned wineries and he wished to learn more about the industry and understand how the business was conducted.
“The law society accepted his rationale as attending the winery course would add to his skills and knowledge of the industry,” says Tay, who adds that the council will not be providing a CPD curriculum so members can customise their education and have a more active role in deciding what to learn.
The council's proposed CPD guidelines gives a list of CPD activities which include attending or presenting at seminars and training workshops organised by the council, state Bar committees and/or accredited third party providers like the Malaysian Institute of Accountants (MIA), Institute of Engineers Malaysia or Malaysian Institute of Chartered Secretaries and Administrators.
They can also write articles, journals, books, take computer–based courses like Webinars, in–house law firm courses or local and overseas conferences, inquiries, hold watching brief for the council or state Bar committees and even pursue Masters courses.
Is including “taking up legal aid files” a means to beef up the Bar's pool of legal aid volunteers?
“We included legal aid files because a lot of younger lawyers can benefit from this (by improving their courtroom skills) and it encourages lawyers to act for the poor and downtrodden,” says Dipendra.
“When a corporate lawyer or civil litigator takes up a legal aid file, which is not in their usual scope of work, they learn from the experience and develop professionally.
“Having said that, legal aid files are subject to a maximum of seven CPD points in a cycle.”
What happens if lawyers have not accumulated enough points at the end of the first cycle or lie about it?
Nothing, in the first instance.
Dipendra cautions, however, failure to accumulate CPD points after the transitional period could mean not being able to “renew your practising certificate unless prior exemption is granted by the council.”
Tay says the council will not police how many points a member has earned but anyone later found to have lied in his CPD compliance declaration “will be disciplined.”
However, such actions can proceed only if the Legal Profession Act is amended to state so.
Among the objections that members are already raising in their online forum relates to senior members, cost and distance.
Well, the council is proposing to exempt those whose health is affected, aged 75 years, been in continuous practice for over 30 years and are overseas for an extended period.
Dipendra denies a forum posting speculating that lawyers could end up forking out between RM1,600–RM3,200.
“Some of the ways in which it is free is by taking up legal aid files (up to seven CPD points per cycle), attending state or Bar AGMs/EGMs (three points), writing articles (10 points), participation in Bar committees (five points) all of which can potentially give you up to anywhere between 12–16 points per cycle.
“If one manages this well, there is no need to even attend any state Bar or council seminars to be CPD compliant.
“In an extreme situation, getting 16 CPD points only through council seminars will set you back RM800 over two years or RM400 per year.”
Dipendra adds that CPD points could also be earned by writing for Insaf the Bar's journal, Praxis the Bar's chronicle and the Putik Lada column in The Star.
On members in small towns who might not have easy access to seminars and talks, Tay says, the council is looking into ways to deliver educational programmes over the Internet, like Webinars.
A lawyer, who complies with the CPD requirements of the New South Wales Bar in Australia from here, says she does it all online.
Ultimately, says Tay, members “should not use cost as an issue to prevent them from being good lawyers; at the end of the day, the lawyers' fight is not with the council, but with himself or herself and the world, as he or she has to meet clients' expectations.”
He cautions that time could be running out for the Bar and they will be left behind where other jurisdictions are concerned.
“Also, if we cannot manage our own affairs, who is to say the Attorney–General's Chambers will not intervene and impose their version of a CPD programme? What if they make it compulsory to gather a mandatory 100 hours per annum?”
Bar president Lim Chee Wee, however, dismisses that possibility, saying the A–G has “at no time indicated such an intention.”
Some lawyers are saying that CPD is not a true measure of their worth as a member could earn the requisite points and still have no lawyering skills to speak off!
True, but why is the Bar so averse to being monitored on the continuing development of their professional skills and knowledge?
Architects, engineers and accountants have had a mandatory CPD for years, also beginning with a two–year transition period:
As lawyers rub shoulders with these professional groups, what makes them think that they are different and does the council think they'll go for it this time?
“I'm hoping and praying very hard they will,” says Lim.
Asked whether the motion was do–or–die as is or whether the council was prepared to water it down at the AGM just to get some sort of CPD scheme in place, he replies: “The council will certainly be deliberating the various scenarios and amendments that could arise.”
“The council didn't present this motion the past few years because members were kept busy clearing the backlog of cases in the courts.
“It's sort of reached a plateau now and members have the time to attend seminars and courses.”
When pointed out that the MIA's CPE scheme notes the importance of public trust and accountability but the Bar's proposed CPD only talks of it being beneficial to members, Lim responds that the council is doing its best to persuade members that such a scheme is in the interest of the Bar and the public.
“Members will be updated with developments in the law, acquire new practice areas, and for the experienced lawyers, they share their wealth of knowledge and experience with others, whilst the public is assured of a minimum good quality of legal advice and representation.
“Admittedly, our members have in the past rejected such a motion for a variety of reasons, but the council is confident that members' desire to continuously improve and strive for excellence will prevail over any reservations they have.
“The Bar successfully introduced a mandatory professional indemnity insurance almost 20 years ago, a scheme requiring members to pay for insurance coverage for professional negligence, which was in the interest of the Bar and the public,” he reminds.
While the council will find out on Saturday whether it is four times unlucky in CPD, the public will also find out whether members of the Bar think they are a cut above other professionals.