Plugging the Legal Brain Drain

(from The Star, 26 September 2008)Thirteen thousand. That is roughly the number of lawyers currently practising in Malaysia. It gives the impression that there are more than enough lawyers here. So why should we worry if a few hundred, or even a thousand, lawyers leave the profession to work in other jurisdictions?

Around 1,000 new lawyers join the profession annually so shouldn’t there be plenty of legal talent here in this country?

There is, however, cause for worry. Increasingly, law firms are complaining of a general decline in the quality of lawyers entering the profession. Our brightest and best law graduates are choosing instead to practise in other countries.

Further, the pace of lawyers leaving Malaysia for other jurisdictions like Singapore, Hong Kong and the Middle East appears to have also accelerated, and this exacerbates the legal brain drain that we are facing.

In her Putik Lada article ‘Not as Glamorous as Boston Legal’ (The Star, Aug 15), Melissa Tai touched on some of the problems the profession faces in attracting and retaining legal talent. What I will be setting out is a wish list of sorts and some solutions to this problem.

Wish List

At the top of any lawyer’s wish list would be the obvious factor of higher pay. Undoubtedly, other jurisdictions offer a significantly more attractive remuneration package, even after factoring in the higher cost of living.

It is accepted that present market forces result in relatively low legal fees being charged, which in turn contributes to a relatively low amount of pay compared with other jurisdictions.

The difficulty in attracting lawyers to stay in Malaysia goes beyond the issue of pay. One of the strong appeals of working overseas is the opportunity to be exposed to more international and high-calibre work. There is no easy answer to this, as other countries like Singapore, for example, also grapple with the same issue of lawyers leaving for this reason.

One possible solution could be a controlled liberalisation of the Malaysian legal market to allow foreign law firms to practise in Malaysia. This may help to provide international exposure within a local setting. This idea has been in the pipeline for many years and it remains to be seen when it will be implemented.

Steps which law firms themselves can take would include a change in the work culture and the general improvement of the work-life balance of their lawyers. Firms may need to restructure the work and careers of their lawyers to meet both the firm’s needs and the lawyers’ personal priorities.

Law firms must also recognise that up to 70% of the younger lawyers are women and that part-time and flexible work arrangements have to be offered. The existence of family-friendly parental leave schemes would be more beneficial than having such talent leave practice altogether.

Bringing back respect to the profession

Taking a step back from what law firms can do, there is the more over-arching issue that must be addressed. Respect must be brought back into the profession in order to continue to attract and retain our brightest talent.

Firstly, the starting point has to be the improvement of the quality of law graduates entering the profession. Hence, the announcement of a Common Bar Examination is welcomed and it must be compulsory for all graduates, whether from local or foreign universities, to pass the Common Bar Course before they are admitted to the Bar. Everyone has to go through the same gatekeeper, and higher standards can be more easily maintained.

The implementation of the Common Bar Course would have to go hand-in-hand with an improvement to the present pupillage system. Pupillage is the compulsory nine-month period in which a law graduate undergoes training with a senior lawyer to gain practical experience before being admitted to the Bar.

A proper pupillage structure for the determination of certain core skills, the teaching of such core skills by the senior lawyer or the law firm, and an assessment of such skills must be put in place.

Secondly, an essential aspect of bringing back respect into the profession is the need for an efficient and strong judicial system. The frustration of having cases unduly postponed or court hearing dates being fixed more than five years down the road will drive lawyers away from practice in Malaysia.

The surfacing of images of a lawyer apparently brokering the appointment of judges leads us to question the integrity of the judicial system. The sluggish investigation into the findings resulting from this apparent brokering of judges and the stalling of the implementation of the Judicial Appointments Commission also raises doubts on the sincerity for judicial reform.

Conclusion

The fall-out from the subprime crisis has resulted in large lay-offs from major law firms in America and in England. China, post-Beijing Olympics, may well also experience some slowdown. The effect of these events is that it may result in a brief respite from the exodus of legal talent from Malaysia as job opportunities in other jurisdictions may become harder to come by.

But immediate steps must be taken to allow us to continue to attract and retain our legal talent. The solutions I have touched on are not exhaustive but may well go a long way to plugging the legal brain drain we are experiencing.

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