It is inevitable that the Malaysian legal market will be liberalised and that foreign law firms will be allowed to practice, in some form or another, here in Malaysia.

It was in the news recently about how foreign law firms would be allowed into our legal market, although confined to practicing in the high-end ‘Tier-1’ corporate work. Due to Malaysia’s obligations under GAT and other free-trade agreements, our legal market will have to open up, and it is just a matter of when.

The legislation allowing the entry of foreign law firms is still a bit hazy, with no Bill having been tabled. But from the little information that we have, it appears that foreign law firms will be allowed into Malaysia through the Joint Law Venture (JLV) vehicle. This is similar to the JLVs and the foreign law alliances allowed in Singapore (more info on the Singapore framework here). If identical to the Singapore legislation, the JLV would involve a separate partnership being formed, consisting of local and foreign partners.

This JLV vehicle could then assist in the transfer of expertise and knowledge from the foreign firms over to its local partners. For instance, a local boutique firm in Malaysia already enjoys a strong association with a global law firm (albeit not in a formal JLV form), and it is able to harness the use of the foreign firm’s knowledge management system and training opportunities. Through the opening up of the legal market, local lawyers may then be able to enjoy secondments or even employment in foreign firms, not to mention gaining valuable experience in working on international transactions. The advantage offered to foreign firms is that they would then be able to truly offer a “one-stop” service on cross-border and international transactions, as well as enjoy cost-savings through the outsourcing of work.

Foreign firms would be limited to practicing in the ‘Tier-1’ corporate advisory work. Areas such as conveyancing and litigation would remain the exclusive right of Malaysian lawyers. Since such areas are so procedurally and locally confined within a jurisdiction, it may not be worthwhile for foreign firms to branch into these areas in any event.

I personally welcome the liberalisation of the legal market, although there have to be restrictions put in place. The areas of law such JLVs or foreign firms would be allowed to practice in would have to be set out clearly. Aside from corporate work, there may be strong arguments to allow areas such as arbitration or intellectual property to be gradually opened up as well. Presumably, foreign lawyers would also have to adhere to ethical rules governing the profession on a whole. Disciplinary proceedings would still have to apply to foreign lawyers.

I don’t foresee a flood of foreign law firms rushing in to form JLVs in Malaysia. It may be more of a case where the foreign firms gingerly assess whether to tread in. With the downturn in the economy over the past few years, many foreign firms had already cut down on its offshore presence in Singapore and in South-east Asia. There are also only 6 JLVs in Singapore, down from the original 8. Even with the improving economic climate, would these same Magic Circle firms want to set up shop here in Malaysia?

It will be interesting to see the developments that occur with the eventual liberalisation. There has been much talk but still no concrete steps forward yet.

I’ve been asked to write an article on law blogs (dubbed ‘blawgs’) and whether it is merely a fad or will it be the future?

Will law firms increasingly use blogs as a form of marketing and publicity, as opposed to the standard website or client newsletter? Will individual lawyers themselves be able to harness blogs as a tool to put forward their own views or to discuss and highlight developments in the law?

Or will ‘blawgs’ merely be personal journals of lawyers who rant and rave at their working hours or the legal system in general?

An interesting blog I’ve come across before is the Anonymous Lawyer, a fictional account of a partner at a large American law firm. The real-life author behind the blog had secured a book deal to publish his blog entries.

Let us trace back the scandal that has rocked the Malaysian Bar with the discovery of forged ballots back in 1 December 2006. The three scrutineers appointed under the Legal Profession Act to count and verify the ballots had discovered 50 forged ballots. Despite having no explicit statutory power to do so, the scrutineers further went on to declare the Bar elections null and void as the scrutineers claimed they had no way to identify whether there were more forged ballots.However, the forged ballots were very plainly forged and were meant to be detected. This is because the serial numbers on each forged ballot was made to be way in excess of the total number of ballots. Each ballot could also be verified by matching it with a counterfoil which had a corresponding stamp of the Bar Council. This was not a case where the forged ballots were meant to tilt the votes. Rather, this was a case of intentionally embarrassing the Malaysian Bar. Therefore, the Bar Council urged the scrutineers to continue the verificationby matching the counterfoils.The scrutineers however refused to do so, stating that the forged ballots were now presently under police investigation and two of the scrutineers stated that they would require a Court Order. As stated by Dr Yaacob, one of the scrutineers, “…but our position is clear — let the court decide. If the court decides after hearing arguments from both sides that the scrutineers must proceed with our task, both of us will work overnight until the counting is done.”

This is a very bold move by the Bar Council and one which should be applauded. I hope that it finally brings some finality to this deplorable state of affairs.

An action was then filed on 6 December 2006 by Foo Ton Hin seeking essentially that the scrutineers verify the authenticity of the ballots.

After a flurry of applications filed by various election candidates to intervene in this action, solicitors for Dr Yaacob now filed an action to strike out the entire action. This appears to be in direct conflict with Dr Yaacob’s previous statement of allowing the court to decide. The merits of the case wouldn’t even be decided upon if Dr Yaacob’s striking out application were to be allowed at this early stage.

The hearing of the striking out application then started proper with Counsel for Dr Yaacob arguing that Foo Ton Hin had no locus standi to bring such an action, relying on the primary ground that Foo Ton Hin was merely an ordinary member of the Bar. He was not one of the election candidates and he had failed to show any special damage over and above the other members of the Bar. I was in the public gallery that day, and I admit that the arguments advanced were compelling. I was looking forward to see how the other respondents would answer to these submissions.

Counsel for both the Malaysian Bar and Foo Ton Hin then made their arguments in reply to the striking out application. The line of argument pursued by Counsel was that if only the 34 people who stood for elections have locus standi, then that means the entire electorate particularly the 3,370 who actually cast their votes have no say at all. Such an argument cannot be right.

A final reply was then made in support of the striking out.

On 15 February 2007, the Court made the decision to strike out Foo Ton Hin’s action, holding that he lacked the locus standi to intiate such an action.

The Bar Council planned to hold an emergency meeting to decide on the next course of action to resolve this issue of the elections which were still in stalemate. Would the Council decide to call for fresh voting? Rumours were rife that the Council would appoint a new set of 3 scrutineers to carry out the verification exercise.

A press statement was then released on 23 February 2007, and the Bar Council stated that its priority was in the completion of the unfinished tasks of the election to ascertain the whole truth of the matter. No details were made regarding a the appointment of a new set of scrutineers however.

On 26 February 2007, we discover that three new scrutineers were appointed and they had carried out the verification of the ballots and had declared the results for the Council elections. This verification was carried out in the presence and with the support of the police.

This is a very bold move by the Bar Council and one which should be applauded. I hope that it finally brings some finality to this deplorable state of affairs. I believe that members of the Bar and the public have grown weary of this long-drawn affair. However, the Legal Profession Act has no provisions to allow for the appointment of a fresh set of scrutineers, so we are now treading on new ground. I cannot help but remain pessimistic that this decision will be challenged.

Here is the speech I drafted for the KL Bar’s Dato’ Peter Mooney Oratory Competition.The question posed to me was “The Present Pupillage System – Are Pupils Being Trained Adequately?”

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.

An advocate knows that he should never allow the witness to repeat his story when the advocate is cross examining the witness. The witness would have already had a chance to go into great detail his version of events. One of the purposes of cross examination is point out weaknesses or demolish certain parts of the witness’s version of events. If the advocate allows the witness to tell his story again under cross-examination, it will help reinforce that version in the minds of the jury.In the 1910s, the Triangle Shirtwaist Factory employed mainly young female immigrant workers to work in cramped conditions and for meagre pay. The young ladies worked long hours, churning out clothing, and in 1911, a fire broke out in the factory, claiming more than a hundred lives. Someone had to be held accountable, and the 2 owners of the factory faced criminal charges. They retained Max Steuer, a very well-known New York lawyer, to defend them.

At the trial, one of the main prosecution witnesses, a survivor of the fire, Kate Alterman, a young Jewish girl gives her account of that fateful day when the fire broke out.

The girls working at the factory used to take frequent cigarette breaks and would walk out through the fire door. In order to stop all these frequent breaks, the owners had sealed the fire door shut.

One of Kate’s friends has just finished smoking a cigarette with her head outside the window, when Kate smells some smoke. She thinks that it is the residue smoke from the cigarette. But soon, she can see thick smoke seeping into the room and the women start screaming when they realise the factory is on fire.

The women start to run to the fire door, but the door is sealed shut. Kate can see the women trying to claw at the door, but the door refuses to open. The women are becoming hysterical, and several of them are crushed as all of them attempt to push towards the door. Kate can barely see now, as the smoke gets thicker and thicker, and she can feel the heat of the flames as they climb up the floors. She hides in a broom closet and closes the door, but it still does not cut out the screams she can hear in the air. She passes out and when she comes to, a fireman is pulling her out from the charred ruins of the factory.

After Kate’s evidence, the courtroom is silent, and everyone turns to look at Steuer as he stands to begin his cross-examination. He says very quietly to Kate ,”Say it again Kate….” Kate is slightly surprised but she again tells her story. At the end of it, Steuer again asks her to tell it again. Kate again tells her story, there are no changes, and she tells the exact same story.

What made Steuer a great lawyer is that not only was he gifted with a photographic memory, he also had a phonographic memory. He could remember everything he heard. When Kate told her story for a third time, she had told her story exactly the same way, word-for-word, except that Steuer now picked out that she had changed one word. She had used “might have” instead of “may have”. He points this out to her, that she had now used a different word, and she agrees. Steuer then sits down and ends his cross examination.

Steuer had realised, after hearing the testimony of Kate for the first time, that her story sounded too polished and perfect and that is why he adopted the unusual approach of asking Kate to repeat her story over and over again. She used the exact same words again and again, and Steur demonstrated to the jury that Kate, and probably other witnesses, had memorised their statements and may have even been told what to say by the prosecution. Steuer had managed to destroy Kate’s credibility without ever directly attacking it.

The jury acquitted the owners. However, the owners subsequently lost a civil suit in 1913.

[This is based on the Triangle Shirtwaist Factory Fire and I first heard the story in a video on the ‘Ten Commandments of Cross Examination’. ]