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.

Good News and Bad News for Singapore Legal Market

The good news is that several international firms have clinched the Qualifying Foreign Law Firm (QFLF) licenses to set up their law firms in Singapore. 4 UK firms and 3 US firms, namely Allen & Overy, Clifford Chance, Herbert Smith, Latham & Watkins, Norton Rose and White & Case have won the licences ahead of 14 other firms. The total of 6 licenses given out were an increase from the original 5 licenses that were up for grabs.The scheme gives the foreign firms the right to practise Singapore law in permitted areas through Singapore-qualified lawyers employed by them. Previously, foreign firms could only practise through a joint law venture. As announced a short while back, Clifford Chance had broken off its joint law venture with Wong Partnership, undoubtedly because it had already submitted its proposal to get the QFLF and perhaps there were already indications that it had succeeded.The bad news for the legal market is that the wave of lay-offs in the US and UK legal market will likely hit the Asia-Pacific region. ALB is of the opinion that the question is not if the Asia-Pacific legal services market will be hit by this wave of redundancies but when.ALB reports on the talk that one of Singapore’s most prestigious capital markets and M&A practices had already kicked a number of its lawyers to the kerb in an effort to reduce costs. I have also heard some mention of Singapore law firms thinking about not paying out bonuses for this year. Would have been previously unimaginable hearing talk like that.