Getting Called to the Singapore Bar (Part 2): Sitting for the Bar Exams

My article originally posted up on LoyarBurok.

Part 1 of this article set out the process in which a Malaysian lawyer can get admitted to the Singapore Bar. Part 2 recounts the personal experience of a LoyarBurokker who recently sat for the Singapore Bar examinations.


Having applied in April of this year to do the Singapore Part A Bar exam, I was informed at the end of June that I had successfully secured a place. Like many other Malaysians, I had opted to only sit for the exam rather than enrol in the 3-month preparatory course in order to minimise time off work.

In August, we were given a reading list of recommended textbooks and cases to study. At that time, I did not realise the stressful study route ahead of me. The exams starting in November still seemed very far away and any thoughts of studying were placed on the back burner.

THE (ATTEMPT AT) STUDYING BEGINS

With 5 subjects to cover, being Criminal, Evidence, Singapore Legal System & Constitutional, Land and Company, it was quite surprising how little knowledge I had retained on some of these subjects from my university days in the UK. On top of that, these subjects, naturally, featured almost solely Singapore law cases. It seemed like I be pretty much starting from scratch for most of my subjects.

At the start of October (with the exams now just a month away), it was time to knuckle down and I attempted to start with my studying. This however had to still be balanced with normal working hours. So this meant that I had to work until about 6-7pm after which, I had to put aside work aside for the day, in order to bring out my Part A Bar books to study for the rest of the night. Quite stressful and really not the most productive way to study. I could barely sneak in any free time to study and before I knew it, it was already past mid-October.

With stress levels now having jumped up quite a few notches and with a growing sense of panic that this was the most under-prepared I have ever been for any exam, I headed off for study leave and took a break from work. This was just about 1 1/2 weeks before my first paper.

THE (REAL) STUDYING BEGINS

So I headed down to Singapore sometime close to the last week of October. When I first looked at the sheer amount of reading material I had to cover, there was this initial sense of dread about having to study academic law subjects all over again. I thought it would be something so far removed from practice and something I had already left behind. But as I buried myself deeper into my books, it became more and more enjoyable to study the law again. More so, when the Singapore legal system shared so many common features with Malaysia’s and I saw the law from a fresh perspective, having seen the practical application of the law already and now applying those examples when picking my books.

Both Singapore and Malaysia share the same English common law origins, especially with a joint heritage through the legal system set up in the Straits Settlement of Penang, Malacca and Singapore. We both adopted the Indian codification of the Evidence Act and the Penal Code. Many of the key provisions of the Constitution of Malaysia and Singapore, especially relating to fundamental liberties, were also very similar or even identical in wording. Both countries adopted the Australian Torrens system for land and the Companies Act were similarly influenced from English and Australian provisions.

Having never studied the history or theoretical framework of Malaysian law subjects (having picked up Malaysian law only through chambering and practice), it was very interesting to learn about the similar Singapore principles of law, since I could instantly relate the subjects back to Malaysian law.

By way of examples, the Singapore criminal case law we studied would be drawn heavily from both Singapore and Malaysian authorities, applying almost identical provisions in the Penal Code. For constitutional law, and with me having had only a rudimentary knowledge of Malaysian constitutional law prior to this, it was fascinating to see how both Malaysia and Singapore grappled with similar constitutional issues and questions, for instance, those relating to preventive detention laws. Another example would be in the sphere of company law, with Singapore applying very similar laws for shareholder remedies which originated from the same English authorities applied in Malaysia.

THE END OF DAYLIGHT

Every single day, whether a weekday or a weekend, was spent studying from the hours of about 10am until 9pm. I was lucky to have a small study group and we would just camp out in the library, taking a break for lunch nearby, and then immediately heading back to continue our studying. Dinner may be some bread we bought for ourselves and I’d gobble it down with a drink from the drink dispenser machine. It would then be back into the library to continue with the studying.

Books and notes would be heavily tabbed with different coloured Post-Its. Past year exam questions would be leafed through for us to try to get a feel of what the exam questions might be like. Brief discussions would be made in whispered voices as we tried to figure out some of the harder issues raised in those past year questions.

One unintended side effect of hitting the books and taking down all the notes was a dramatic improvement in my handwriting. Having not written lengthy notes for years now, my hand regained its mobility from all the atrophy of keyboard typing. I was going to need my strengthened hand for the exam papers ahead of me.

THE START OF THE EXAMS

With me still scrambling to finish covering the syllabus, the exams were upon us. 5 exam papers, each lasting for 2 hours with an average of 2 questions to answer, and an exam period which was spread out over the course of 2 weeks. It would be an open-book exam so we would be allowed to bring in any material we wanted, save that it could not violate any copyright laws (i.e. no photocopying whole textbooks and bringing them into the exam hall). Almost all the exam questions had a heavy emphasis on hypothetical problem questions. These questions would involve a detailed fact scenario and you then had to write out an opinion of sorts for your hypothetical client to advise on the issues arising and the reliefs available. While the open-book format definitely made things easier since you did not have to commit large chunks of statutory provisions to memory, you still had to know where all your material was and you had to be able to identify the issues raised in the questions.

With all the exam papers starting at 6pm, this meant a lot of cramming could still be done during the day of the exam itself which would also leave me exhausted at the end of each paper. There would be a one-day gap in between papers, which made for some welcome breathing space and allowed us to cram in even more material for the next paper. I was quite nervous before my first paper (being Land law) but once that was out of the way, it was a lot less nerve-wracking.

There was a relatively large contingent of around 20 former and present Malaysian lawyers all sitting for the Singapore Bar exam this year. Before each paper, there would be a group of us having a brief chat before heading into the exam hall so it was like a mini-reunion of sorts. After each paper, we would also share a quick complaint or lament, depending on how difficult each paper, was before we scurried home to rest or study further that evening. There was such relief once all of us finished our final paper. Results would be out around 2 weeks later but we were just so glad to have finished with the exams.

CONCLUSION

The end of the exams left me with mixed feelings. It was stressful studying in the short period of time, and having to face exams again. On the other hand, it was enjoyable leading a student life again, even if it was for only 3 or so weeks. Best of luck to anyone in future who wishes to take the Singapore Bar exams.

Getting Called to the Singapore Bar (Part 1): The Requirements

This was my article originally posted up on LoyarBurok
 
Recent changes to the Singapore Bar admission requirements have made it easier for foreign lawyers to get admitted to practice law in Singapore. Here are the requirements Malaysian lawyers need to meet.

This first-part will set out in some detail the process in which a Malaysian lawyer can get admitted to the Singapore Bar. Due to the various rule changes over the years, with different admission standards applying for different years, it will focus mainly on younger lawyers who obtained their law degrees after 1997.

Part 2 will then shift to a different perspective where we get to learn about the personal experience of a LoyarBurokker who recently sat for the Singapore Bar examinations.

INTRODUCTION

Increasingly, Singapore seems to be the port of choice for many Malaysian lawyers to practice in. There are many factors attracting Malaysians over, including higher pay and the opportunity to gain better exposure to higher level work.

In the past, the most common route to work in Singapore was to find a position as a foreign lawyer. This allowed a lawyer to work at Singapore law firms but without the need to be admitted to the Singapore Bar. Strictly speaking, as a foreign lawyer, you could advise only on foreign law but in practice, you largely carried out the same duties as a Singapore qualified lawyer but without the ability to attend Court or to sign off on documents or opinions. Some of the drawbacks of being a foreign lawyer were that in most cases, you would draw a lower pay than a Singapore qualified lawyer and your promotion prospects may also be affected.

While many Malaysians do still go over to Singapore to work as foreign lawyers, there have now been some recent changes to the admission requirements which make it easier to get admitted to the Singapore Bar.

PREREQUISITES

Even before you consider taking the Singapore Bar examinations, you will need to see if you satisfy certain prerequisites, and if you don’t meet these requirements, then you need to plan and see if you can apply for exemptions.

Broadly, to get called to the Singapore Bar, you need to satisfy 3 requirements:

  1. Satisfy the requirements of being a “qualified person” – more on this below.
  2. Complete the Part B Singapore Bar exams. The Part B is similar in some respects to the Bar Vocational Course or Certificate of Legal Practice, in that it focuses on more procedural law.
  3. Complete a 6-month training contract at a Singapore law firm. This is similar to pupillage.

I will explain more on these 3 requirements below and how the most important threshold to cross is that of being a “qualified person.”


QUALIFIED PERSON
(i) Scheduled UniversitiesYou need to have graduated from a certain list of scheduled universities, as a full-time internal candidate with a certain degree class. You can go through this useful checklist to see if you are a “qualified person” by first checking which university you graduated from.

So for instance, for a UK graduate, you would need to have been a full-time internal candidate with at least a Second Lower degree from a list of only 19 recognised universities. For an Australian graduate, you would need to be in the top 70% of your graduating batch from a list of only 10 recognised universities.

Some examples where you would not satisfy the requirements for being a “qualified person”:

1. You graduated from a twinning programme or a London external law degree; or
2. You had graduated from any of the local Malaysian universities.

However, you would be able to apply for exemptions from any of the requirements which I will elaborate on further below.

(ii) Permanent Resident

Another requirement is that you will need to be a Permanent Resident or a citizen of Singapore. So a factor you must take into account for being admitted to the Singapore Bar would be whether you are planning on moving down to Singapore to then apply for Permanent Resident status.

(iii) 6 Months of Legal Practice

You need 6 months of either “relevant legal training” or “relevant legal practice” to satisfy this final requirement to be a “qualified person.” So, if you were in active practice in any jurisdiction other than Singapore, this would fall under the definition of “relevant legal practice”. Chambering/pupillage may also qualify under the definition of “relevant legal training.”

(iv) Part A Bar Examinations

The final requirement to be met is that you would need to pass the Part A Bar examinations. The examinations cover 5 academic Singapore law subjects: Criminal, Evidence, Land, Singapore Legal System & Constitutional, and Company. You can either opt to sit for only the examinations, held once a year in November, or to attend a 3-month course (starting in August) and then sit for the examinations. This year the exam format was open book (i.e. you could bring in all your study material with you into the examination hall) while last year, it was closed book.

The deadline for applying for the Part A Bar Examinations (both for the course + exam or just the exam) is by the end of April of every year.

More information on the Part A Bar Examinations and its syllabus/fees are on the National University of Singapore website.

QUALIFIED PERSON – EXEMPTIONS

If you do not satisfy any of the above requirements, you can apply for exemptions. A common exemption is from the requirement of being a full-time internal candidate from a scheduled university. So for instance, an exemption to allow for a twinning programme to be recognised, or an exemption as your university does not fall under one of the scheduled universities.

The present exemption process, from what I have heard from friends, seems to be more flexible in allowing twinning programme candidates as well as non-recognised foreign universities graduates. I know that graduates from local Malaysian universities have a very hard time in getting an exemption and I have not heard of any London external degree law graduates having obtained an exemption as well. All these policies are of course subject to change and are discretionary.

In terms of applying for an exemption from the Permanent Resident requirement, it appears that this exemption is not granted any more or is at least very difficult to obtain. You therefore will likely need to obtain Permanent Resident status in Singapore if you are considering getting admitted to the Singapore Bar. I know of senior practitioners having successfully applied for exemption from the Part A requirement as well. For instance, I had a Malaysian lawyer friend with around 10 years of experience and she was exempted from Part A. But they still needed to become a Permanent Resident of Singapore.

Applicants who are intending to sit for the Part A Bar examinations will put in their exemption applications around the same time in April when applying for the Part A. More information on exemptions can be found on the Singapore Ministry of Law website.

PART B BAR EXAMINATIONS & TRAINING CONTRACT

Having now satisfied the prerequisites of being a “qualified person”, you will need to complete the Part B Bar examinations as well as the 6-month training contract.

The Part B Bar examinations are made up of a compulsory 5-month practical law course and exam, which in some respects, is very similar to the English Bar Vocational Course (now renamed to the Bar Professional Training Course) in that it teaches you practical aspects of Singapore law. The subjects covered include subjects such as Civil and Criminal Procedure, Conveyancing Practice, Professional Responsibility, and Family Law. More information on the Part B can be found at the Singapore Board of Legal Education website.

After successfully completing these examinations, you will then need to serve a 6-month training contract, which is akin to pupillage.

EXEMPTION FROM PART B AND TRAINING CONTRACT

You are allowed to apply for complete exemption from the Part B Bar examination as well as the 6-month training contract. To obtain such an exemption, you will need to already be a “qualified person”, and also been practicing in a common law jurisdiction for at least 2 years (and this period could possibly include your 9 months of chambering as well). If you do not fulfil any of the requirements of being a “qualified person”, or you have not achieved the necessary length of practice, you can also try to apply for exemption from such a requirement.

CONCLUSION

In conclusion, if you are a practitioner in Malaysia, of 2 years experience or more, you can likely be exempted from having to take the Part B Bar examinations as well as be exempted from the 6-month training contract. You will however need to still pass the Part A Bar examinations and in order to qualify to sit for the Part A, you will need to fulfil the other requirements of being a “qualified person.”

Of Sunscreen, BlackBerries and Successful Lawyers

I highly recommend all lawyers, whether young or old, to read this very insightful speech by Brendan Navin Siva. This is taken from the LoyarBurok site.

Ladies & gentlemen,

15 minutes is hardly enough time to speak on any topic let alone to give a talk to pupils on how to be an excellent, ethical and successful lawyer and the challenges ahead in the profession.

By giving this talk, I am by no means proclaiming myself to be an excellent or successful lawyer. And by no means are you to blindly accept everything I say to you today as being correct or similarly applicable to you. “Be careful whose advice you buy, but be patient with those who supply it.” These are words from The Sunscreen Song.

Who does not know The Sunscreen Song? It is a song made up of someone’s rambling advice about random things in life.

Wear sunscreen.

If I could offer you only one tip for the future, sunscreen would be it. The long-term benefits of sunscreen have been proved by scientists, whereas the rest of my advice has no basis more reliable than my own meandering experience. I will dispense this advice now.

I will dispense this advice now.

Look at yourself and work out what YOU want to do in life. Have a plan. Do not meander through life not knowing what you want. Wanting to be rich or wanting to make money is not a plan. It is the end result of a good plan but it is not itself a plan.

Work hard. Many people would have told you the same thing the last 9 months but it is true. There is just so much that you need to learn in the next 3 years – how to draft, how to speak, how to handle clients, how to handle judges, how to think, how to solve problems and, over and above all this, to acquire the knowledge of law in many areas of law. Put your head down for the first 3 years and set yourself a good foundation for your future whether or not you continue to be a lawyer thereafter.

Present yourself well. Dress sharp. Invest in good clothes. Always be well groomed. What you think looks cool or suave to your friends may not be the right image that the real world expects of a lawyer.

Deal with stress. Do not try to run away from it. Stress is a part of the life of any successful professional – whether you are a lawyer, doctor, engineer or accountant. Understand that stress is relative – whatever you find stressful today, I can assure you will not be stressful for you in 3 years time. And what is stressful for you in 3 years time will not cause you much stress when you are a senior lawyer of 10 years or more. But there will always be stress at all levels. It is part of the job. Find your own way to deal with stress. But never use stress as an excuse to give up pursuing something. Never use stress as an excuse for failing to do something. And never blame stress for producing sub-standard work.

Learn how to deal with people. You will be dealing with people a lot in your career. There are many different types of people. Some are nice. Some are not so nice. More often than not, you will not deal with nice people. The people you deal with will be demanding, irritating, annoying, deceitful and demanding in many different ways and forms. The key to success is learning how to deal with them all.

Never ever be beholden to any client. Never put yourself in a situation to be totally dependent on any client financially. Always be in a position where, if your client asks you to do something that you know is not lawful or ethical, you can stand up and politely excuse yourself and walk out of the room without compromising your integrity and morality.

Speak and write English well. There is no way out of this one. English is the language of commerce and it is the language of the common law. Our courts will not abandon English any time soon. Our clients – local and international – will judge you as a lawyer on how well you speak and how well you draft – in English.

Take steps to improve your English, regardless of whether you think your English is good or bad. In particular, you must acquire the ability to say or write something in a concise and comprehensive manner. To do this, read English newspapers online (most of them are still free), read magazines (Newsweek, Economist, The Far Eastern Economic Review), watch CNN or BBC at least an hour a day. See and learn how they package and present large amounts of content into a concise and compelling 5 minute newsreel or one page article.

Embrace technology. Blackberries are not evil. They are not your enemy. They save time. They save a lot of time. When you are waiting in court, when you are waiting for a meeting to start, when you are stuck in a traffic jam, when you are waiting for friends for dinner, when you are watching TV and the advertisements come on – emails can be checked and responded to – this is time that you do not otherwise have to spend in the office answering emails. Embrace Change. A lawyer is nowadays only one part of a transaction. If the clients are all on blackberries, you do not have the luxury of saying “It is 6pm. I am out of the office and I cannot answer your queries.”

Set aside 1 week in the first half of the year and one week in the second half of the year for a holiday. Book these dates well in advance so your boss cannot say he did not know about it. Better yet, book tickets to fly somewhere so your boss cannot expect you to reschedule your plans (without feeling guilty). Downtime is very important. The more senior you get, the more difficult it will be to take scheduled time off.

Travel. See the world. See what is out there. It gives you perspective and it opens your eyes to things you never would normally think about. It matures you.

Find a network of friends who are similar as you in thinking, in ambition and in character. There is nothing unhealthy about a group of lawyers socialising together on the weekend or after work. There is nothing wrong with a group of lawyers talking about law all the time. You will grow together and you will become better lawyers together.

Lastly, do not blindly accept everything you are told by someone more senior and supposedly better than you. We are not better than you. We have just been here a little bit longer than you. Challenge the logic of what we say. If it does not make sense to you, don’t accept it.

Young Legal Eagles’ Great Expectations

I was forwarded an article from the Singapore Business Times with the above title and it really struck a chord with me. I think the first part of the article really rang true. The writer is a partner at the Singapore law firm ATMD Bird & Bird LLP. Rather than having a younger lawyer write the article, which may then be dismissed by more senior lawyers as another whine and gripe from a Gen Y lawyer, at least the article was written from the perspective of a managing partner.

I’ve set out the first part of the article below:

When I started working as a lawyer in Singapore in the 1980s, there was a lovely senior English gentleman lawyer whose office was in the building next to ours in Fullerton Place. I would quite often see him strolling to his office, newspaper under his arm, well after 9 am.

I knew other senior lawyers who strolled out of their offices into their chauffeured cars at about 4.30 pm to get in 9 holes of golf at the club before it got too dark.

I thought with approval that these relaxed hours were the prerogatives that senior lawyers had earned and deserved, and they were career role models who made becoming a partner something to strive for. I had the impression that good lawyers who remained with one firm throughout their professional lives were fortunate, and that too was something to aspire to.

But times changed, and by the 1990s, it was evident that partners in law firms could not rely only on their seniority to retain their position in their firms. Partners must continually demonstrate their value to the firm – seniority and longevity alone were not enough.

Very long work hours became a matter of course. Partners stayed in the office as late as, if not later, than their lawyers. In addition to being technically good at the law, stamina and toughness were valued.

By the early 2000s, when I was managing partner of our firm, we began to notice that quite a number of our younger lawyers were leaving legal practice.

It was not that they were working inordinately long hours – we had a reputation, and still do, for being a ‘family-friendly’ law firm that values work-life balance.

At first we thought that perhaps the younger generation of lawyers were ‘soft’.

It eventually dawned on us that the younger generation of lawyers were making lifestyle choices that had nothing to do with being soft.

They simply had options – they had financial resources (usually from their parents), that meant that they did not have to earn a living as professional lawyers if they did not want to.

We became aware that partners were not necessarily good career role models any longer – partners continued to work too hard, and did not enjoy the lifestyle choices of the younger generation.

Outstanding younger lawyers who were on track for partnership baulked at the prospect of becoming partners, a status that was previously so sought after.

We eventually realised we were not looking at individual quirks, but at a trend. The younger generation was a different breed, and the old assumptions as to what attracts, motivates and retains lawyers did not necessarily apply to them.

You can read the rest of the article here.

Part A Singapore Bar Exam

Today, I’ve submitted my application forms to the National University of Singapore to sit for the Part A Bar exam. Well, more like I posted the forms to my parents in Singapore and they helped me submit it to the university.

The Part A Bar exam is the first step for foreign law graduates to gain admission to the Bar in Singapore. You can sit for a 3-month course at NUS and then sit for the exam after that, or just sign up for the exam itself. I’ve done the latter since I won’t be able to take that much time off work to sit for the course.

To qualify to sit for the Part A exam, you need to satisfy certain requirements, primarily the fact that you need to have graduated from one of the scheduled universities (whether from the UK, Australia or the US) and with a minimum grade on your degree. The other requirement is that you need to be a Singapore citizen or Permanent Resident.

If you don’t satisfy these requirements, you’ll need to apply for an exemption from the Ministry of Law and that is what I’ll next be doing, as I am not a Singapore citizen or PR, but thankfully I satisfy the other requirements. I am not sure how successful I will be in getting the exemption but I am taking this one step at the time, and putting in one application after the other.

The Part A exam will be in November and if I pass, there is normally a Part B component. This involves a practical law course as well as a compulsory pupillage (now called training contract) period. However, since I’ve been in practice in another jurisdiction for more than 2 years, I can also apply to be exempted from the Part B component. So that is going to involve another exemption application to be put in to the Ministry of Law.

Only if I get that exemption, will I then qualify to be called to the Singapore Bar, which is what I finally hope to achieve. I’m not thinking so far ahead as to whether I want to seek employment in Singapore. I am taking things one step at a time first, as at any moment, I am expecting to hit a stumbling block some where.

Singapore Law Firms Hike Salaries

Came across this Singapore Business Times article on the salary increase across the board for the larger law firms in Singapore. The article reads:

Singapore’s largest law firms have upped the monthly salaries of their lawyers significantly, as they brace themselves for the onslaught of competition from the foreign law firms, amid the liberalisation of the legal industry here.

BT understands that Allen & Gledhill (A&G), Drew & Napier and WongPartnership have all raised monthly pay by 20-25 per cent, within the last week or so – such that their starting salaries are now in the region of $5,200.

This takes them closer to the pay scale of the foreign firms, which BT understands typically pay between $8,000 and $10,000 for first-year associates.

What this also means is that the fight for talent has just become that much tougher for the medium and smaller-sized firms.

‘The liberalisation of the market means our local talent pool is now available to all – firms from all over the world,’ WongPartnership managing partner Dilhan Pillay explained to BT. ‘So, our firm has had to respond to such market changes.

‘What we’ve done is reorientate our pay structure. Traditionally, a significant portion of our annual pay was in the form of a year-end bonus. What we’ve done now is to spread a large part of that bonus over the 12 months of the year and pay a smaller bonus at the end of the year.’

‘This is similar to what the foreign firms do – which is to frontload and then pay out a smaller bonus at the end of the year,’ Mr Pillay said. ‘The market has come to expect that level of pay – along with the good training and work exposure that the top firms offer.’

While some say this is not a pay hike per se, it definitely has the effect of boosting monthly salaries significantly – 25 per cent, in WongPartnership’s case – making the legal sector, already one of the best pay masters here, an even tougher act to follow.

BT understands that the larger local law firms in Singapore typically pay top performers between six and nine months’ bonuses. Foreign firms tend to either not pay year-end bonuses or pay a small bonus.

A&G and Drew explained similar changes at their firms.

A&G managing partner Lucien Wong said: ‘We are revising the decades-old practice of large law firms paying to their associates bonuses at year-end which are pegged to a number of months of their monthly base salaries.

‘This revision will take the form of an addition of a monthly variable component to the base monthly salaries of our associates. With the introduction of a monthly variable component, it is expected that the year-end bonuses of our associates will be moderated.’

Drew & Napier CEO Davinder Singh told BT: ‘We have revised our remuneration structure for lawyers. Under the revised scheme, part of the bonus for the year will be frontloaded as a variable component into the monthly salary, which will result in higher monthly pay for lawyers. So while the base will remain the same, there will be an additional monthly variable component.’

Such a change in pay structure at the larger firms has increased the pressure on the smaller and medium-sized firms – whose monthly pay packages now lag the leaders by possibly between $1,000 and $2,000.

A prominent lawyer here told BT of his concern about the impact of the recent pay changes on the industry. ‘It would have been ideal if the opening of the legal market (to foreign firms) could take place after supply had increased. Where demand exceeds supply, this will increase wage costs and lead to a spiralling of legal costs and, if fee inelasticity exists, the costs will be passed on to clients.

‘If not passed on to clients, some law firms may be priced out of the market.’ He added: ‘The impact for firms which aim to compete by paying much more is that they will have to remain lean, be less generous in hiring and quicker to axe, and staff will be made to work harder. Employers will be more demanding of these higher-paid lawyers.’

BT understands that some of the medium-sized firms are already thinking of increasing salaries to stay competitive.

Some, like TSMP Law Corporation, increased monthly salaries several years ago – while still keeping the sizeable year-end bonuses.

‘We increased our starting pay for newly called lawyers to $5,000 about two to three years ago, when the big firms were paying $4,600. We wanted to send a message that we would pay for top quality talent, and that we wanted the best,’ TSMP joint managing director Stefanie Yuen Thio told BT.

‘Whether we will be changing our pay is something we will have to continue to monitor. While we don’t want our associates’ monthly pay to be too different from what other firms are paying, philosophically, we have a different mentality on bonuses.

‘One of our fundamental management principles is that we must be able to pay outperformers very well, without worrying that it will rock the boat as far as the other lawyers in that batch are concerned. We will therefore want to retain the ability to reward our top performers with an exceptional pay package, and hopefully incentivise others to up their game.’

Some points jump out right away. A starting pay of S$5,200 at the Big 4 law firms in Singapore is great, and even higher is the starting pay of S$8,000-10,000 at the foreign firms in Singapore.

The ending quote about rewarding the outperformers struck a chord. I don’t think this is really practiced much in Malaysia, with possibly a few firms adopting such a style.

McDonalds vs McCurry: Leave to Appeal to the Federal Court

On 8 September 2009, the Federal Court ruled in favourof McCurry in dismissing McDonald’s leave to appeal to the Federal Court. This upheld McCurry’s right to continue using the “Mc” prefix in operating its own fastfood restaurant which served Indian food.

In the High Court, McDonald’s had initially won in establishing a case for passing-off at the High Court against McCurry. An action for passing-off essentially involves establishing the reputation of a claimant and a misrepresentation by the defendant which has caused damage to the claimant.

On appeal to the Court of Appeal, McCurry struck back where the Court of Appeal then overturned the High Court decision. The interesting decision of Gopal Sri Ram JCA (as he then was) can be read here.

Under Malaysian law, the last avenue of appeal was then to the Federal Court. However, under the law, there is no automatic right of appeal to the Federal Court and there is a need to obtain leave (or permission) from the Federal Court by satisfying certain requirements. This has been set out conclusively by the Federal Court itself in the decision of Joceline Tan.

To obtain leave to appeal to the Federal Court, one must frame certain questions or issues of law to be determined by the Federal Court in order for the Federal Court to decide on these questions. Leave will only be granted if a question of law is one to be decided for the first time in Malaysia or there are presently conflicting decisions by the Court of Appeal on this question of law, so it will be to the public advantage for the Federal Court to decide on this conflict (as generally explained in the decision of Joceline Tan).

So, amidst the fanfare of McCurry staging an epic David vs Goliath victory over McDonald’s and how the Federal Court had upheld McCurry’s rights, I also wanted to set the Federal Court decision in its proper context and how the Federal Court could not hear McDonald’s case on its merits since the leave requirement was not satisfied.

At the Federal Court, McDonald’s was only at the leave stage in trying to obtain permission to appeal to the Federal Court. The Federal Court was not deciding the case on its merits, but had to first decide on the technical questions framed before it. As was heavily reported, the Federal Court appeared to dismiss McDonald’s claim almost on a technicality.

The Federal Court did not even decide on whether the questions posed by McDonald’s counsel were principles to be decided for the first time, or whether there were conflicting decision on these points. The Federal Court dismissed the leave application when it held that McDonald’s had not properly framed the questions for them to make any determination on them.

I have not read the grounds of judgment so I cannot determine what sort of questions were put forward. But as reported, even on the first day of hearing of the leave application, the Federal Court had already expressed some concern on the manner of drafting of the questions and McDonald’s counsel was given an opportunity to rephrase some of the questions. After the one-day adjournment, the Federal Court upheld its view that the questions were not properly framed by McDonald’s.

So it’s a shame, that not only was McDonald’s not entitled to appeal to the Federal Court yet, since McDonald’s was only at the leave stage, the Federal Court could not decide on the merits of the questions for leave itself, since the questions were not properly framed for determination.

Demand for Insolvency Lawyers

Saw this on Law Alliancewebsite about the possible rise in demand for insolvency/restructuring lawyers in the Asian legal market.Unlike in Hong Kong and even in Singapore, there are no truly recognised specialists in insolvency and restructuring in Malaysia. Unlike firms in those jurisdictions, I am not aware of any firms having specialised units for such insolvency work. Such work would have to have a blend of corporate lawyers as well as litigators to go to court. I guess there is not enough of such work over here to necessitate such specialisation.

Even with the present economic downturn, we have not seen any major meltdowns that have headed into insolvency or that requires restructuring. Less work for the lawyers then.

Putik Lada: A Step Forward but Not Quite There Yet

My article for the Putik Lada column published in The Star on 19 December 2008:“THE Prime Minister must uphold the continued independence of the judiciary and must have regard to the need to defend that independence …”

These initial words from the Judicial Appointments Commission Bill 2008 serve as a guarantee of the continued independence of the judiciary and imposes a duty on the Prime Minister to defend that independence. The tabling of this Bill in Parliament is an acknowledgment that for too long, the present system of appointing and promoting judges is inadequate and open to abuse.

However, the question then arises whether the Bill goes far enough in ensuring the protection of the independence of the Judiciary.

The Good

The Bill proposes to establish a nine-person Judicial Appointments Commission (JAC) to select and then recommend to the Prime Minister individuals to be appointed as judges to the High Court in Malaya and in Sabah and Sarawak, the Court of Appeal and the Federal Court.

This will also include the appointment to the four highest judicial offices – Chief Justice of the Federal Court, President of the Court of Appeal, Chief Judge of the High Court in Malaya and Chief Judge of the High Court in Sabah and Sarawak.

While not explicitly stated, it also appears that the JAC will similarly select and make recommendations to the Prime Minister on the promotion of judges.

The Bill further sets out the selection criteria that must be taken into account by the JAC in selecting the candidates, for example, integrity, competency and experience, decisiveness, ability to make timely judgments and good legal writing skills.

In another move to be lauded, the Bill also disqualifies a serving judge or Judicial Commissioner from being appointed if he or she has three or more pending judgments.

Some degree of transparency is ensured through provisions dealing with the disclosure of interest by the members of the JAC and disqualification from participating in the discussion or deliberation of the JAC.

The JAC must prepare an annual report of all its activities to be submitted to Parliament, although there is no clear definition as to the exact detail of the activities to be reported to Parliament.

The Bad

The Bill, however, is silent on the obligation of the Prime Minister to consider the recommendations made by the JAC. It provides that where the Prime Minister has accepted any of the persons recommended by the JAC, he may proceed to tender his advice in accordance with the constitutional procedure for the appointment of judges set out in Article 122B of the Federal Constitution.

There is no provision dealing with a situation where the Prime Minister rejects the JAC’s recommendation.

As the Bill currently stands, there is no need for the Prime Minister to provide any explanation if he rejects the recommendations of the JAC.

Another criticism of the Bill is that it gives the Prime Minister a great deal of influence over the JAC. The Prime Minister appoints five of its nine members, namely, a Federal Court judge and four eminent persons.

While these four eminent persons cannot be members of the Executive or other public service, and there is consultation with the various stakeholders, it is the Prime Minister who ultimately appoints them; and he may also revoke their appointment at any time without furnishing any reason.

A further degree of influence is that the Prime Minister determines the allowances to be paid to the members of the JAC.

The Prime Minister is also given the power to make modifications to the Act in the first two years of its coming into force. There is little restriction on the exercise of such a power except that it is meant to be for the removal of difficulties and prevention of anomalies in the implementation of the Act.

Finally, questions remain on whether the proposed JAC framework would be constitutional. Article 122B of the Federal Constitution requires the Prime Minister to consult various parties, including consulting with the Conference of Rulers, before his advice is tendered to the King. It clearly does not provide for the JAC to provide any input in that process.

At best, the JAC may sit uncomfortably with Article 122B since it may be argued that the Prime Minister is not confined to only consulting with these parties. A constitutional amendment may be required to further codify the JAC process of the appointment and promotion of judges.

The Ugly

The Bill is a move in the right direction in safeguarding the independence of the Judiciary. However, this does not detract from the fact that further discussion is required and that certain changes have to be implemented before it is passed.

The present system vests the Prime Minister with the absolute discretion to appoint and promote judges.

The Bill, in its present form, creates a veneer of independence in this appointment and promotion process but in the end, the ultimate decision still rests with the Prime Minister.

There is a risk that the entire JAC framework, with its selection process and selection criteria, will be rendered redundant since there is no obligation for the Prime Minister to accept any of the JAC’s recommendations.

Also, question marks remain in relation to the constitutionality of the Bill. In upholding the independence of the Judiciary, the Bill explicitly imposes a duty on the Prime Minister to have regard to the need for public interest to be properly represented.

The public interest is not served through the entrenchment and codification of the power which is currently wielded by the Executive arm of the Government over the judicial appointments process.

Now that the Bill has been passed despite the misgivings and issues highlighted above, the legal fraternity can only hope for the best, and will no doubt follow its implementation closely.

The writer is a member of the Bar Council’s National Young Lawyers Committee (NYLC). Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, please visit www.malaysianbar.org.my/nylc

Legal Technology Conference: Online Marketing for Lawyers

I was fortunate to have been invited by Asia Business Forum to speak at the Legal Technology Conference held on 16 – 17 December 2008. A friend of mine, Eddie Law, was the one who put forward my name to the organisors.It was a great experience overall and this was the first time I had given an external talk outside of the Bar and outside of the office. I had a 45-minute slot and I was worried that I wouldn’t be able to fill up that entire slot.

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My presentation was on Online Marketing for Lawyers: How Lawyers Can Increase Their Online Presence. Having firstly defined what is marketing especially in the context of the provision of legal services, I quickly touched on the more traditional forms of marketing. I was going to touch on three forms of online marketing, being websites, blogs and social networking platforms. However, before I launched into the three areas, I set out the legal framework governing the level of publicity or marketing allowed in the legal profession.

In Malaysia, the ‘code of conduct’ of lawyers is set out under the Legal Profession Act as well as its various rules. Under the publicity rules and certain Bar Council rulings, there are restrictions on the level of publicity that can be made in the electronic media.

Having set out some of these restrictions, I weighed in with my criticism of the heavy restriction of publicity. On the one hand, I recognised to need to protect the dignity of the profession and to prevent soliciting and touting for work, and on the other hand, there is a need for law firms to not only market for clients in a local environment, but to also market themselves globally against other law firms.

I moved on to the first method of online marketing that of websites. I shared some practical tips on ideas for presentation as well as ideas for content. I took screenshots of some law firm websites to give ideas while also highlighting some of the recent trends in content on some of the websites.

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In relation to blogs, I used some of the content from an earlier article on bLAWgs and how the growth of law blogs is also seen on the Wall Street Journal’s law page. It features breaking law stories from around the web with the majority of the stories coming from blogs.

The lure of blogs as a marketing tool is simple. If people are reading what you are writing on a daily basis, and you are writing interesting things that are helping them understand how their business works, it is natural that they will want to contact you and harness more of your expertise.

Finally, I then elaborated on the rise of social networking platforms such as Facebook and LinkedIn. The use of LinkedIn especially could be of benefit as a marketing tool. It focuses on professional connections as opposed to Facebook’s focus on personal connections. The appeal of social networking can also be seen in Legal OnRamp. A social networking website, only by invitation only, for in-house counsel along with certain law firms.

Attendance at the conference was low, which was really a shame. There was some very interesting talks, especially on the use of technology as an aid to litigation, or the roll-out of the e-court system here in Malaysia. I met a number of interesting individuals and I look forward to keeping in touch with them.