I will start off with a brief description of pupilage, I will then move on to what I feel are some of the strengths of the system in training pupils, Finally, I will delve into the 3 main criticisms that leads me to conclude that pupils aren’t being trained adequately under the present pupilage system.
Part A. Brief description
Malaysia’s pupilage system is slightly unique compared to other jurisdictions as the law students entering pupilage do not undergo some form of common graduate course. New pupils can be divided into 3 main groups: those that graduated with a local 4-year law degree, students who went through the CLP and finally students who have been called to the English Bar.
Therefore, the pupilage period is the only common period where you can ensure that a law graduate is sufficiently trained with a core set of skills necessary for them to be an advocate and solicitor. Pupilage is the last link in the chain prior to admission and hence it takes a particularly important role in ensuring that pupils are equipped with core set of skills to prepare them for legal practice.
Therefore, the pupilage period is the only common period where you can ensure that a law graduate is sufficiently trained with a core set of skills necessary for them to be an advocate and solicitor.
Part B. Strengths of the Present System
There are 2 aspects of pupilage that does ensure pupils are being trained: firstly, the ethics programme and secondly, I would argue, the fact that every pupil has to complete legal aid.
The ethics lecture programme not only makes attendance compulsory but every pupil has to pass the exam. The lecture programme enables all pupils to have a better understanding and awareness of ethical issues and professional conduct. Pupils learn from experienced practitioners and answer questions based on practical scenarios. The examination is not a regurgitation of relevant sections of the Legal Profession Act, but pupils have to justify their answers based on ethical concepts and principles.
The second aspect of pupillage, that of legal aid, is also very beneficial. I believe that Malaysia is one of the few jurisdictions that make legal aid a compulsory component in the training of its lawyers. At the very basic level, it trains pupils to acquire interviewing and advocacy skills, as well as how to interact with members of the public. More importantly, it instills a sense of awareness in the pupil that it is the responsibility of the profession to insure access to justice for everyone regardless of their ability to pay.
The common characteristics of both the ethics lecture and legal aid, are that they are compulsory and the fact that there is some monitoring of these programmes. In ethics, pupils must achieve a minimum awareness of ethical principles while guided by experienced practitioners. For legal aid, pupils have training workshops to prepare them for a legal aid programme suited to their interests.
Part C. Criticisms of the System
However, moving on to my criticisms of pupilage, aside from the above two aspects of the ethics program and legal aid, the present pupilage system has no external monitoring of skills acquired nor any way of ascertaining the competence of a pupil. The system merely makes an assumption that after a 9-month period, a pupil has gained all the necessary skills to be admitted as an advocate and solicitor of Malaysia.
In a review of the legal education system in Hong Kong carried out in the year 2000, in its Steering Committee report, the Steering Committee undertook a comprehensive review and comparison of pupilage or its equivalent, in other jurisdictions including England, Quebec, Canada and Australia. The 3 elements present in pupilage systems in all of these jurisdictions are:
The system merely makes an assumption that after a 9-month period, a pupil has gained all the necessary skills to be admitted as an advocate and solicitor of Malaysia.
First, a system which encourages training. This involves the concept of a training code which details the obligations placed on the pupil-master or law firm.
Second, certain requirements in regard to training. The requires the provision of a framework upon which training is to be organized, setting out what is essential for the provision of adequate training
Finally, a system of monitoring. The Steering Committee found fairly significant monitoring by the respective Law Societies into the relationship between the pupil and the firm, and fairly demanding requirements for reporting and accountability to the respective Law Societies.
Sadly, all 3 elements are absent in the present pupilage system here in Malaysia.
Firstly, we lack a system which encourages training as there is no form of Code of Conduct for pupil-masters or law firms to adhere to. In Canada for example, a firm taking on a pupil is required to submit an education plan that describes the anticipated pupilage experience to be provided by that student. A mid term evaluation is held, of both the pupil-master and the pupil, to assess how closely the experience to date matches with what was in the education plan.
In Malaysia, the only requirement on a pupil-master is that he or she has at least 7 years of experience at the Bar, and at the end of pupilage, the pupil-master signs Form 8 which includes the standard phrase: “The Petitioner has received training and experience in law”.
This requirement of “having received training and experience in law” brings me to my second criticism of the pupilage system: that is, the system lacks clear guidelines to the sort of skills, training and experience that a pupil ought to acquire. There is no explicit statement or requirement as to what takes place in pupilage.
Proper training during pupilage would mean that pupils ought to acquire a strong foundation of knowledge and skills on which they can draw upon throughout their career.
Proper training during pupilage would mean that pupils ought to acquire a strong foundation of knowledge and skills on which they can draw upon throughout their career. While not denying the realities of specialization, there still has to be a core definition of skills that a pupil should be trained in including drafting of pleadings or corporate documents, conference skills and advocacy.
Finally, we lack a system of monitoring and ensuring that adequate training is provided. A monitoring system would be two-fold, first to monitor law firms and pupil-masters, making sure that they are providing the necessary training, and second, there has to be a system that ensures that the pupils themselves have acquired the skills necessary for admission to the Bar.
The present system of monitoring law firms is merely a reactive one, where complaints by pupils can be made to the Bar Council, and then the Bar Council investigates and tries to mediate the situation.
In relation to the skills acquired by pupils, it might be necessary to implement a form of assessment. A pupil’s knowledge and understanding, their ability to apply knowledge and understanding in practice, and their professional skills must be shown to have reached the required standard.
Instead of the conventional closed-book examination style which might not be suitable to assess practical skills, an assessment can be carried out by way of handing in a portfolio demonstrating the skills and experience acquired during pupilage. This is one of the possible forms of assessment the Law Society of England and Wales is considering. The English Law Society is currently undertaking a major review of the training procedure for qualifying as a solicitor and the overwhelming response in the consultation stage was that a form of assessment is necessary to ensure a trainee solicitor has the necessary skills prior to qualifying as a solicitor.
Part D. Conclusion
In conclusion, while I have highlighted certain strengths in the pupilage system that helps train pupils, the fact remains that the system lacks a detailed framework in providing training guidelines for pupil-masters and firms, it lacks a definition of core knowledge and skills that pupils ought to acquire, and there is no system in place to monitor the provision of training to pupils.
I admit that there is difficulty in achieving a balance between adequate quality control and potential over-regulation. But that does not mean that the present system should be maintained and that no improvements can be made. There is no doubt that there are some pupils who receive excellent guidance during pupilage, but the present haphazard way pupilage is structured leads me to state that the pupilage system does not provide adequate training for all pupils.