This is my response to Richard Wee’s post . 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 (CPD) 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 the Bar Council’s CPD motion due to be debated at the Bar’s Annual General Meeting on March 19, 2016.

He creates even more doubts as to the real purpose of the motion. These are my reasons.

Creating two classes of lawyers

Richards’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 Bar Council member for the Bar Council has always advocated for a liberal reading of Article 8(1). It sounds as if BC is now justifying all forms of discrimination because 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 the Bar Council 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 the Bar Council from subsidising lawyers 0-5 years?

There must be some other reason. I venture to suggest the reason is that the Bar Council (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 the Bar Council should say it.

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 client to capture the nuances behind the implementation of this mandatory CPD scheme for 0-5 years.

Effectively, the motion will in the long run stigmatise lawyers called from July 1, 2011.

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 March 19, 2016 and defeat the Bar Council’s motion, overwhelmingly.

NEW SIN YEW is an advocate & solicitor.