Contributed by Gayathiri a/p Panneerselvam, Officer, Bar Council
(1) What is the motion for a mandatory continuing professional development (“CPD”) programme about?
At the upcoming 66th Annual General Meeting of the Malaysian Bar on 10 Mar 2012, Lim Chee Wee (President of the Malaysian Bar), in his capacity as Chairman of Bar Council, will propose a motion on behalf of Bar Council, that mandates Bar Council to come up with specific rules pertaining to a mandatory CPD programme. The motion will authorise Bar Council to take reasonable steps for the implementation of this programme, and come up with rules and guidelines that will be updated from time to time.
Internationally, a large number of major legal jurisdictions, such as Australia, Hong Kong, Ireland, Netherlands, Philippines, Singapore, South Africa, United Kingdom and United States, have mandatory CPD programmes for their lawyers. In Malaysia, members of various professions such as architects, engineers, estate agents, financial planners, public accountants, surveyors and even company secretaries, have mandatory schemes. Surprisingly, the legal profession does not have a mandatory CPD programme and the Malaysian Bar is genuinely concerned that its Members will be left behind globally.
We cannot say that we are a strong legal jurisdiction or that our standards are very good, considering the fact that we lack some elementary things such as a compulsory CPD programme for Members. Personally, I am of the opinion that the legal profession in Malaysia is an outstanding profession, even in comparison to our peers around the world. Malaysian lawyers are equal to or amongst the best, but what we lack is a system where people can evaluate us. We cannot grow the profession – we cannot sell our profession or “brand” the Malaysian legal profession – if we do not have all the required structures.
We want to place the motion before the Members to read, understand and discuss. For the first two years, the CPD programme will be in a transitional period; though there will be rules in place, participation will be on a voluntary basis to ease Members into the scheme.
(2) Why is Bar Council moving the motion?
No one can argue against improving one’s self, even at the expense implementing a mandatory CPD programme. In today’s era of globalisation, lawyers are compelled to participate in an increasingly competitive workforce. Here, I would like to highlight that learning is a life–long process – you do not stop learning when you qualify as a lawyer or when you are called to the Bar. In fact, that is where most of the learning takes place!
During the academic stage, you are taught theories and principles, but you will never know how to approach a particular problem until you encounter it in practice or real life. You are then forced to utilise your reserves, analytical skills and ability to frame the right questions so that you can come up with an answer.
It is also important to bear in mind that due to globalisation and technical enhancements, laws change dramatically. Thus, we need to keep abreast with self–development to embrace these changes. If you are serious about your profession, you know that you will need to update your skills continuously. Every lawyer worth his or her salt – every good lawyer – in this competitive environment needs to continually develop himself or herself professionally.
(3) Shouldn’t CPD, as a personal responsibility, be on a voluntary basis?
During the first two years, CPD is voluntary, in which Members are given time to understand and embrace the scheme. After that period, it will be made mandatory for an effective structure would require rules. The mandatory nature merely provides Members with a framework to work within to discipline themselves to it. If you agree with the basis of self–improvement, then resistance towards the mandatory nature of the proposed CPD motion is purely a psychological barrier.
A lawyer who claims to have enough experience and therefore does not have to learn anymore misses the point of the CPD programme entirely: it is not just about having knowledge of the law, but also being more conscious of the delivery of the service related to it.
For example, disputes that arise between partners or shareholders in commercial matters can be very emotionally draining and potentially tear apart the company or organisation. Therefore, as lawyers, we need to be able to advise our clients and empathise with them – that’s why we are called counsel! It is not only about winning legally, but also winning emotionally (ie satisfying emotional needs). Hence, if we agree that there are other skills in addition to purely legal ones (eg analytical skills, practical skills or having knowledge of the law), then we must keep abreast with other skills, like soft skills. The proposed CPD motion is a good first step towards implementing that.
(4) What is the structure of the proposed CPD scheme and what will it achieve? Are programmes organised by third parties recognised for the purposes of CPD points?
As lawyers, we will come across many obstacles in our careers. These can crop up in the form of technological challenges and unexpected hurdles 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.
For example, a South Australian lawyer, in compliance with his CPD obligation, wrote to his law society stating that he was planning on attending a winery course and enquiring 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. His rationale was accepted by his law society as attending the winery course would add to his skills and knowledge of the industry.
The structure of our proposed CPD programme will be similar. The criteria for accreditation of CPD activities will be in line with the broad and flexible individual needs–based approach. Bar Council will not provide a curriculum as Members should customise their education and have a more active role in deciding what to learn. Members can attend any seminar or talk, as long as they are able to justify to Bar Council that the programme is for their immediate and long–term educational development.
(5) If the proposed CPD motion is passed, how will Members earn CPD points?
Under the proposed CPD programme, each Member must collect 16 CPD points over a 24–month cycle. Currently, one CPD point is equivalent to one hour, and all Members need to clock up 16 hours in two years. The 24–month window is provided as Members may not find enough courses or seminars that they would be interested in attending in a 12–month period.
If you break down 16 hours to eight hours per day, it is the equivalent of attending a two–day conference or seminar in two years! For example, Members may acquire all the necessary 16 CPD points by attending the upcoming International Malaysia Law Conference 2012 alone.
In the guidelines developed for the proposed CPD motion, the various activities and maximum number of CPD points that can be gathered from each category have been outlined. For example, lawyers can earn a maximum of 10 CPD points by going to overseas seminars or conferences, while some points can also be gained through attendance at AGMs or Extraordinary General Meetings of the Malaysian Bar, or State Bar(s) of which the lawyer is a member.
We are making it very easy for Members to comply with the proposed CPD requirement. In fact, most Members already comply without realising it, as attending six three–hour talks in two years would be sufficient to accumulate the required 16 points. CPD points will also be awarded for activities such as teaching, marking exam papers, being an examiner, writing articles and books, and even conducting legal research that would subsequently be published in law journals. Members who belong to large firms may also gather up to 10 CPD points from in–house courses. In the event that Members collect a surplus of CPD points, they will be allowed to carry forward a maximum of seven CPD points.
Taking into consideration that Members in small towns might not have easy access to seminars and talks, we are currently looking into ways to deliver these educational programmes to them over the Internet, hence enabling them to earn the required CPD points. 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 Bar Council, but with himself or herself and the world, as he or she has to meet clients’ expectations.
Another thing I think worth nothing is that Members who are above 75 years of age, and/or have had continuous practice exceeding 30 years, may be exempted from the CPD requirement.
(6) By policing the implementation or the mandatory aspect, aren’t you creating a bureaucratic nightmare?
This question pre–supposes that the Members cannot be trusted. The concept of policing, even in the corporate and commercial world, is no longer there. The current trend is that of self–regulation.
Bar Council will not adopt a policing mentality, and will adopt the global trend of self–regulation instead. Members will be required to produce a declaration that they have complied with the 16 hours required; however, if caught lying or cheating, the offending Member will be disciplined.
The motion has been given plenty of consideration, and we realise that time is running out. If we do not take action, we will be left behind where other jurisdictions are concerned. In addition to that, if we cannot manage our own affairs, who is to say that the Attorney General’s Chambers (“AGC”) will not intervene and impose their version of a CPD programme? What if the AGC makes it compulsory to gather a mandatory 100 hours per annum?
(7) What are the criteria used for accreditation, for CPD purposes? Are programmes on non–law subjects accepted?
During the transitional period of the first two years, Members can attend any programme. These programmes do not have to be seminars and courses accredited or approved by Bar Council.
After the first two years, however, Bar Council will provide a list of accredited seminars or talks, to guide Members. However, Members should not be discouraged from attending non–accredited seminars or talks; instead, they can write in to inform Bar Council about programmes they wish to attend and receive CPD points for. I do not foresee this as a problem: if a lawyer believes in the value of the course, then he or she should have no problem convincing Bar Council why attending the course is necessary for his or her professional development.
In conclusion, I would like to highlight that Members have to embrace, and believe in, the philosophy of continuous professional development. The structure we seek to provide through the proposed CPD programme is only intended to guide Members – via professional development – on their path of becoming better lawyers.
The interview with Raphael Tay, Deputy Chairperson of the Professional Standards and Development Committee, was conducted on 29 Dec 2011.