My response to Richard’s post here. I wish to credit Aston Paiva for illuminating me on certain aspects of my post.
To be clear, I am in support of continuing professional development for all lawyers.
My learned friend, Richard Wee, writing as Chair of the Bar Council’s Professional Standards and Development Committee, responded to critiques of BC’s CPD motion due to be debated at the Bar’s Annual General Meeting on 19 March 2016.
He creates even more doubts as to the real purpose of the motion. These are my reasons.
Creating two classes of lawyers
Richard’s position on equality among members of the Bar is this:
The equality provision in Article 8(1) is not absolute. All it requires is that a person in one class be treated the same as another person in the same class (i.e all lawyers 0-5 years should be treated equally) …
In other words, his position is that lawyers 0-5 years may be treated differently as a separate class from the rest of the lawyers. There is no discrimination so long as they are imposed the same requirements (within the same 0-5 years class) though other lawyers not within that class are exempted.
This is a very surprising position coming from a BC member for BC has always advocated for a liberal reading of Article 8(1). It sounds as if BC is now justifying all forms of discrimination. There will never be a violation of Article 8(1) if Richard’s interpretation is adopted.
Richard misses a key element of Article 8(1) which is the “rational nexus” test. Is there a rational relation between the object of the motion (i.e. improving standards) and the classification in question (i.e. making CPD mandatory only for lawyers 0-5 years) or its basis (i.e. funding is limited)? There is none.
Richard has sought to justify the discrimination because BC expects to provide financial assistance to lawyers 0-5 years. But this justification does not explain why CPD has to be made mandatory only for these lawyers.
The purported justification itself is in question. Why 0-5 years? Why not 0-7 years? There is in any event no reliable statistical or other dependable data or material placed before the House to support the justification:
- Are lawyers 0-5 years in need of financial support?
- Aren’t lawyers outside of the Klang Valley or sole proprietors more in need of financial support?
- Are the highest number of malpractice suits caused or faced by lawyers 0-5 years?
- Are the highest number of breach of trust cases caused or faced by lawyers 0-5 years?
If budget really is the basis, pray tell how does implementing CPD on all members of the Bar prevent BC from subsidising lawyers 0-5 years?
There must be some other reason. I venture to suggest the reason is that BC (i) assumes “senior lawyers” are against a mandatory CPD scheme, and (ii) wishes that come 19 March, senior lawyers would, either by design or accident, vote in favour of the motion because it does not affect them. If this is the reason then BC should say it. It is insulting to junior and senior lawyers alike to have this motion pushed through by a divide-and-rule tactic.
This motion, if passed, would effectively divide the Malaysian Bar into two classes of members: those who have to obtain CPD points and those who do not.
Creating a barrier to practice
The motion seeks a mandate to fine errant lawyers as punishment for failing to obtain the required CPD points.
A fine is a deprivation of property and creates a stigma that a wrong has been committed. A lawyer punished for failing to obtain sufficient CPD points may be seen as incompetent. It would create a negative perception of him or her. Clients may find it difficult to trust the lawyer while competitors may use the punishment as a way to deride the lawyer.
In pith and substance, the penalty is a barrier to practice lawyers 0-5 years. The “other class” of lawyers are unaffected. No one would expect clients to capture the nuances behind the implementation of this mandatory CPD scheme for lawyers 0-5 years.
Effectively, the motion will in the long run stigmatise lawyers called from 1 July 2011.
Conclusion
The road to hell is paved with good intentions.
I agree that a mandatory CPD scheme would be beneficial to lawyers but we must not sacrifice principles at the altar of expediency – to get a mandatory CPD scheme implemented at any cost – by dividing the Bar and hoping “senior lawyers” who are unaffected would vote in favour.
I urge members of the Malaysian Bar, whether affected or not, to attend the AGM on 19 March 2016 and defeat BC’s motion, overwhelmingly.
UPDATE (21.03.2016): The Malaysian Bar at its AGM approved the CPD motion, as amended, by one vote.