The Legal Framework to Inculcate CPD in Pakistan
THE LEGAL FRAMEWORK TO INCULCATE CPD IN PAKISTAN
By Ahmad Nazir Warraich ^1^
This paper begins by looking at the importance of continued professional education to the legal profession, with a view to improving the skill and knowledge of the legal professionals, for provision of improved services to the clients. The paper will study the existing legal requirements regarding education, training and continuous professional development in Pakistan. While looking at the current legal framework in Pakistan, it will highlight the gaps in the existing regulatory framework and consequent need to bring necessary changes, which includes amending or adding to laws and rules. Before making such recommendations the paper will look at the international best practices in the field in continuous professional development in various common law countries of the world focusing on England, USA and Canada. It will then suggest the precise changes that need to be brought about in the Legal Practitioners' and Bar Councils Act, as well as the relevant bar council rules.
Continuous professional development (CPD) is the ongoing training of a professional throughout his or her career. It is separate and distinct from the original degree course and professional or vocational training which is often mandated at the start of the career. The purpose of CPD is "...the maintenance and enhancement of lawyers or paralegal's professional knowledge, skills, attitudes and professionalism throughout the individual's career. It is a positive tool that benefits lawyers and paralegals and is an essential component of the commitment they make to the public to practice law or provide legal services competently and ethically".^i^ The professionals are required to maintain and improve their skill and competence through such periodic systematised trainings. This is a well established practice in various professions all over the world. This is the case, for example, with doctors, teachers, civil bureaucracies, military officers, and lawyers, etc. However, in Pakistan, in spite of this being required for professional advancement in many fields, it is not mandatory or even voluntary requirement in the legal profession.
In Pakistan, to become a lawyer, a person has to do bachelors and get a law degree. The LL.B course is designed to impart the minimum necessary knowledge of the law of the land to would be lawyers so as to help them practice the profession. In addition the six months training course is meant to provide some bare minimum skills necessary for practicing the vocation. However, this education and training alone, is considered inadequate to provide all the skills and necessary knowledge required by lawyers to practice this noble profession. It is because of this that in many countries of the world, professional development is an ongoing process. And the regulatory bodies of the profession, that is the Law societies or bar councils make provision for the continuous legal education and development of their members. This is meant to ensure that advocates are able to have all the requisite know how to provide competent and good service to their clients, that is the litigants.^ii^ This helps keep the professionals updated with latest skills and fill in any gaps left in the formal training. The overall goal is of improved work efficiency and better service delivery to the client, which may be a litigant, a patient, a student, or the government.
The lawyers' job is to represent his client in an adversarial system, as best as he can. A lawyer's duties are two fold; to his client and to the court. His job entails representing his client in a manner that can, in accordance with the law of the land, find the best outcome for the client. The client therefore requires the best trained, competent and professionally and ethically sound lawyers. With regard to the court, his duty is to be honest in his arguments and assist the court.
There are currently two stages with regard to becoming an advocate in Pakistan; the first is the college or university degree. The second stage is professional on job training. This is fulfilled by mandatory six month training with an experienced lawyer. In this regard the requirement is that the training has to be with a lawyer of at least ten years standing, and the young lawyer must have assisted his senior in cases, in various stages, proof of which has to be provided in the form of a form filled by the senior at the time of application of enrolment by the young lawyer. In Pakistan there is no third stage, after this the lawyer goes out in the field and learns through experience, there is no vocational course and neither any programme for ongoing professional development. However, in most developed countries, which pride themselves on providing high class legal services to the litigant, such practice is well established. In England for example in addition to the requirement of ongoing professional training throughout the legal career, there is also the requirement of a one year vocational course, at the start. In our country there is no equivalent vocational course requirement, in this background therefore the need for ongoing professional development courses is ever greater. As a result there is a growing feeling in some quarters that perhaps the three years degree course and six months internship cannot provide all the necessary skills and knowledge, this is why there is a felt need for continuous professional development in our own country. In addition the rapid technological developments have further raised the need for the lawyers to be able to equip themselves with the ever changing needs of the clients.
In this background it is proposed that the Bar Council may look into the setting up of a task force to look into the need for establishment of compulsory professional development (CPD) in Pakistan. It may look into the rationale for establishing CPD programmes. A start can be made by studying CPD programme in other jurisdictions in the world, and carrying out an in house survey of its members on this issue. In case the survey comes out with a positive vote than the law and relevant rules and regulations would need to be changed. This paper is an attempt at defining what those changes would need to be in the terms of the regulatory framework. It is hoped that such a research would help the decision makers in making up their mind on the issue, with a precise and clear picture. And if and when needed they would have a readymade template to work on.^iii^
The requirement can be either compulsory or voluntary. Although, even where it is mandatory, the administrative action or disciplinary actions for non-compliance, are usually mild and 'sufficient latitude is inbuilt to provide cushion against any penalty being imposed, with various ways of extension and grace periods etc. A mandatory programme also requires compliance which in turns requires a monitoring mechanism. This can tend to be resource intensive. Some other issues, are the modules which would be offered, including some being optional and others mandatory, additionally there is the matter of the number of hours that need to be completed and the rules and regulations regarding which bodies will provide such a training, and how would the training be monitored, etc. Then there would be the issue of institutions providing such training, as well as the methods of that training and the accreditation of such institutes. The Bar Councils in Pakistan at the moment may not be able to handle mandatory requirement immediately, and would require an initial period, in which the system can start working and the lawyers and the Bar can adjust to it, only then can the Bar Councils effectively monitor a mandatory scheme.^iv^
This paper will first look at the current legal framework in the country with regard to continuous professional development of lawyers. It will then go on to look at the international best practices in the field, and finally give proposals regarding the changes in the law and rules of Pakistan that would be required, to operationalise such a professional development programme in Pakistan.
II-Current Legal Framework
The current law regulating the legal practitioners in Pakistan, is the Legal Practitioners' and Bar Councils Act, 1973. Under this Act, there has to be a bar council for the whole of Pakistan, known as the Pakistan Bar Council, and each province shall have its separate bar, called separately as the Punjab Bar Council, Sindh Bar Council, KPK Bar Council and the Balochistan Bar Council, respectively.
The Legal Practitioners' and Bar Councils Act, 1973, inter alia, mentions the functions of the Pakistan Bar Council. In addition to admitting and maintaining the roll of advocates to the Bar Council, and acting as a norm setting and disciplinary body, it is also given the authority "to promote legal education and prescribe standards of such education in consultation with the universities in Pakistan and the Provincial Bar Councils";
(k) to recognize universities whose degree in law shall be a qualification for enrolment as an advocate;
and related to this it also has the function of
"(g) to promote and suggest law reform; ". , and
"(lb) to hold conferences, seminars, moots, lectures, jurist conferences and other meetings for promoting legal knowledge and learning in the legal profession; ". And
"(i) to exercise general control and supervision over the Provincial Bar Councils and to issue directions to them from time to timer.
Section 15(1) of the Act mandates creation of various committees, such as, a) disciplinary committee, b) executive committee, and c) an enrolment committee, in addition, the "Pakistan Bar Council may constitute from amongst its members such other Committees, including a legal education Committee, as it may deem necessary for the performance of its functions under this Act,".
The Act also mentions the functions of the Provincial Bar Council. Subject to the provisions of this Act the main function of the bar councils is to regulate the profession. In this regard it has been tasked with admitting law graduates as advocates, and maintain such a roll wherein the names of the persons given license to practice are maintained. To carry out disciplinary activities against its members, and at the same time, to put forth and safeguard the 'rights, privileges and interests' of its members. And to generally carry out any and all functions entrusted to the said bar through this Act and comply with the periodic directions of the Pakistan Bar Council. The provincial bar council may make rules and regulations for carrying out its functions as mandated under the Legal Practitioners' and Bar Councils Act,
The provincial bar councils may form committees to carry out their functions. Some of the Committees to be so established are mentioned in the Act, that is the Executive Committee, a Disciplinary Committee, an Enrolment Committee. In addition, the Council may form as many other committees, as it considers necessary to perform its tasks, under the provisions of this Act. The Committees may be given powers and functions by the Council through making of rules. There is no mention of a separate Education Committee at this level.
The Pakistan Legal Practitioners and Bar Councils Act, 1973, is an enabling Act, which authorises the Pakistan Bar Council and the provincial bar councils to make their own rules, through the process of Delegated Legislation. Some of the rules thus made are contained in the Pakistan Legal Bar Council Rules, 1976.
Pakistan Legal Bar Council Rules 1976
Under the powers granted by section 55 of the Pakistan Legal Practitioners' and Bar Councils Act, 1973, the Pakistan Legal Bar Council Rules, 1976 were notified. The Rules deal with a range of issues, such as; elections to the Bar Councils and ancillary matters, duties of the Chairman and Vice Chairman of Bar Councils, Committees of the Pakistan Bar Council, enrolment of Advocates of the Supreme Court, disciplinary proceedings, cannons of professional conduct, etc. Under these rules there has to be a Legal Education Committee, however, there is no mention of continuous professional development or any committee in this regard. To do so the Rules would have to be amended.
In addition, the Pakistan Bar Council Legal Education Rules, 1978 have also been notified under the powers granted by the 1973 Act.
The Pakistan Bar Council Legal Education Rules, 1978.
These rules deal with the requirements and overseeing of the law degree programme in various universities. It mentions the various conditions that have to be met by institutions accredited with the relevant universities and discusses the relationship between the Bar Council and the institution. The main objective is to control and standardize the legal education, with a view to better provision of the same. However, again, there is no mention of continuous professional development, and changes would have to be made to accommodate continuous professional development.
III-International Best Practices
Continuous professional development is a well established practice in most developed countries in the world. Before making suggestions for changes to the relevant law and rules in Pakistan, it is important to have an overview of the rules in place in some leading common law countries.
In Pakistan we follow the Common Law System, which originated in England and Wales. It is therefore considered appropriate to look at the rules on continuous professional development for solicitors and barristers in England and Wales. England of course has a dual legal profession. Consequently the legal professions are also regulated by separate bodies that are the General Council of the Bar for the barristers and the Law Society, for the solicitors. Both professions are required to take mandatory courses for continuous professional development. The Law Society controls and monitors the courses for the solicitors and the Bar Council does it for the Barristers. Various Acts have been regulating the professions over time, however, the latest act of parliament regulating the two legal professions in England and Wales is the Legal Services Act, 2007. This Act has set up a Legal Services Board, which is, amongst other matters, meant to oversee the regulation of the professional development of its members.
All practising members of the Bar are subject to the continuing professional development requirement, as the Bar considers ongoing professional development essential for the barristers. The Bar Standards Board supervises and monitors the provisions of these courses^V^. The Rules of the Bar Council in the Code of Conduct (para. 202(b)), declare it compulsory. Initially the barristers are required to complete 45 hours, of continuing professional development in the first three years. In this time period, known as New Practitioners' Programme, they have to complete at least 9 hours of 'advocacy training' and three hours on ethics. These are both considered important, as they are essential to any professional lawyer. Advocacy training is important, as the art of appearing in the court and putting arguments in front of the judge is a necessary component of a barristers job, in addition, considering the nature of a lawyers' job, which necessarily involves looking after the interest of the client and may involve privileged information, it is indispensable for barristers to have sound understanding and strong adherence to ethics. After the first three years of practice, barristers are required to undertake 12 hours of CPD each year under the Established Practitioners' Programme.^VI^
With regard to the solicitors, the Law Society has since 1985, been operating a compulsory continuing professional development scheme. All solicitors who are in legal practice or employment in England and Wales, are required to complete a minimum of 16 hours of CPD per year. The current rules in force are the Solicitors Regulatory Authority, Training Regulations, 2011, part 3 of CPD Regulations.
Under these rules, solicitors are required to undertake 16 hours of CPD during each year.^vii^
In the United States of America, each State has its own bar council, and the profession is mostly regulated by the State Supreme Court and/ or bar council of each State. At the national level there is body called, the American Bar Association. This is a voluntary national body, it is not a regulatory body, as the profession is not controlled by the Federation. Although American Bar Association, may make recommendations and propose models etc, for the various bar councils to adopt, if they desire, but they are not binding. The Ameriacn Bar Association (ABA) was set up in 1878. The Association aims to promote the members' professional growth, amongst other things, and in this regard, it works to 'promote the highest quality of legal education', as well as, 'promote competence, ethical conduct and professionalism"^viii^. The Operations and Communication Committee of the American Bar Association, inter alia, looks at the Continuing Legal Education (CLE). This is the term used in the United States, instead of the more common global term of Continuous Professional Development (CPD). Its job includes overseeing the continuing legal education programmes, and deal with other aspects of developing the programme. In this regard the committee functions include organizing, coordinating, conducting and implementing continuing legal education activities sponsored or cosponsored by the Association or any of its entities. It cooperates with State or local bar associations, law schools and other organizations concerned with continuing legal education. However, as in the United States the bar councils are a State subject, therefore ABA regulations are not binding, just norm setting.^ix.^ ABA is a private entity and can only make suggestions, it is up to the States to adopt them, although generally the States have tended to do that.^x^
In Canada each region or province has its own law society. Therefore the requirement may vary from one province to another. This paper will look at the .CPD requirements for the province of Ontario (Upper Canada Law Society) and the report of the task force for establishing CPD, in Yukon province. The Law Society of Upper Canada (Ontario) exists to govern the legal profession in the public interest by ensuring that the people of Ontario are served by lawyers who meet high standards of learning, competence and professional conduct, and upholding the independence, integrity and honour of the legal profession, for the purpose of advancing the cause of justice and the rule of law^xi^. Subsections 4.1 and 4.2 of the Ontario Law Society Act, RSO 1990, c L-8. Section 4.1 states that, amongst other things, that "It is the function of the Society to ensure that (a) all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide "]^xii.^
IV-Suggested Changes in the Law and Rules in Pakistan.
In order to bring the existing law and rules, in accordance with the rules and regulations required for setting up a continuous professional development regime in place, changes would have to be brought in the Pakistan Legal Practitioners' and Bar Councils Act, 1973, the Bar Council Rules, 1976 and the Pakistan Bar Council Legal Education Rules, 1978. In this regard, any new rules would have to cover a range of issues; firstly, whether to make it mandatory or voluntary, then the number of compulsory hours of training required, then the issue of which subjects to be taught, then which methods and types of activities should be utilized for the said training, and fifthly, the service providers, sixthly, in case of non-compliance what disciplinary actions should be taken; every jurisdiction, has developed different ways to deal with the consequences of non-compliance and finally, with regard to the reporting requirements; some regimes require annual reporting, some bi annual, some every three years etc. The rules to be made would have to deal with all these aspects. This paper only highlights these issues which would require rule making/ amending and suggests that the bar council may deal with it through its internal deliberations, or canvassing the Parliament where required.
(i) Legal Practitioners' and Bar Councils Act, 1973
The Act would have to be amended to provide for continued professional development, and detailed rules will be required to be made by provincial bar councils. The definitions clause will have to be amended to add the definition of 'continuous professional development'. In section 13, under Functions of the Pakistan Bar Council, a new subsection may be added after subsection (j) to promote legal education and prescribe standards of such education in consultation with the universities in Pakistan and the Provincial Bar Councils;
to promote continuous legal education and prescribe standards, requirements, monitoring mechanisms and modules for such education.
And after subsection (k) which deals with the recognition of universities whose degree in law shall be a qualification for enrolment as ^-^an advocate, the following section may be added;
to recognise institutions who shall be authorised to provide continued professional development.
(f) the constitution and functions of any Committee of the Pakistan Bar Council and the term of office of the members of any such Committee;
Under this subsection, a committee may be set up on Continuous Legal Professional Education, both by the Pakistan Bar Council as well as the Provincial Bar Councils to look after continued professional development. Additionally another subsection deals with the standards of legal education;
(q) the standards of legal education to be observed by universities in Pakistan and the inspection of universities for that purpose;
It is proposed that a subsection may be added here regarding maintaining of standards and conducting inspections of institutions providing continued legal education.
Then another important matter would be of the fee that would be required for such training, in this regard the existing Act states;
(n) the fee payable for .enrolment or in respect of any other matter under this Act, and the instalments, if any, in which such fee may be paid;
(o) the forms in which a certificate of enrolment shall be given to a person enrolled as an advocate or an advocate of the High Court [or an advocate of the Supreme Court];
It is proposed that changes may be made with a view to accommodating fees covering provision of continued legal education and certification procedure may be amended to accommodate certification of attending continued legal education.
With regard to the provincial bar councils, section 10 of the Act allows the provincial bar councils to constitute standing Committees, the following may be added here:-
An education and continuous professional development committee be set up. The committee shall not consist of more than five members, out of which at least one should be from the field of legal academia, and one a former judge.
Under section 9, dealing with the Functions of a Provincial Bar Council, the following subsection shall be added;
to provide measures and facility for continued legal development of its members.
Section 56 of the Act provides for a provincial bar council to make rules through Gazette notification, about the constitution and functions of any committee of the Bar Council (subsection b). Under this a Continuous professional development committee may be set up for continuous legal education. In addition, under subsection (K) of this section, the provincial bar council may set up conditions upon which a person 'may be admitted as an advocate or an advocate of the High Court." Under this authority the provincial bar councils may propose changes to the conditions precedent to become an advocate of the High Court, of attending certain mandated hours of training. This can be 12 hours per year for two years that are required before an advocate can apply for enrolment to the High Court Bar.
The rules would also need to be amended to accommodate for monitoring of such training and accreditation procedure of the institutions, which shall impart such training.
(ii) The Bar Council Rules, 1976
As mentioned above in this paper the Pakistan Bar Council notified the Bar Council Rules, in 1976. These Rules would need to be amended for accommodation of continued legal education programme. Under Chapter IV, dealing with Committees of the Bar Council, Rule 86, an addition may be made of Continuing Professional Development Committee. Changes can be made to the Chapter VII, titled, 'Enrolment of Advocates of the Supreme Court'. The requirement of a certificate from the Bar Council that the advocate has completed a minimum number of approved continuous professional development training from an accredited training institute, may be required before enrolment. Section 108 (C) states;
Every apprentice (except a person mentioned in Rule 108-I infra) shall, before being admitted as an Advocate, have to undergo a comprehensive training regularly for a continuous period of six months as a pupil in the chamber of an advocate, who has been entitled to practice as an Advocate for a period of not less than ten years:
It is suggested that an alike provision may be made for being enrolled as an Advocate of the High Court and then of the Supreme Court, requiring attendance of continuous professional development courses.
An addition may be made to the Chapter VIII, titled, 'Forms and Fees etc, for Enrolment of Advocates', To the section on fees, a clause may be added that the fee, shall include necessary fee for compulsory training with regard to the professional development to be conducted by the Bar Council.
(iii) The Pakistan Bar Council Legal Education Rules, 1978
The Pakistan Bar Council Legal Education Rules, 1978 deals almost exclusively with the provision and maintaining of standards by the colleges and universities providing LL.B degrees. The Rules cover the number of students in a class, the duration of the course, the syllabus, the staff, the library, the medium of instruction, duration of classes, attendance, pass percentage and examinations. In addition, it also deals with the aspect of Inspection of the institutes, and finally the last Chapter IV, authorises the Pakistan Bar Council to change the rules in consultation with the Provincial Bar Councils.
It is proposed that using the powers of delegated legislation allowed by section 55 of the 1973 Act, a separate set of rules be notified by the Pakistan Bar Council, titled, "the Pakistan Bar Council Rules on Continued Legal Education, 2014". In these rules, identical sections be placed as in the Legal Education Rules, 1978, with the difference that here legal education be replaced by continued legal education, and college/university, etc by institutions accredated to provide continued legal education. Otherwise the rules should contain clauses on courses, methods of teaching, number of necessary hours, standard of institute and its faculty, etc. In addition a schedule may be added with possible subject or module options, with provision that the Pakistan Bar Council, in consultation with the relevant bar council may add or delete from the list, and notify the same in the Gazette and on its website.
In view of the above mentioned submissions, it is recommended that a task force be set up by the Pakistan Bar 'Council to look into the matter and conduct an in depth study. It is suggested that the task force may preferably consist of a senior practitioner, a retired judge, a former member of a tribunal, and a law teacher, all members of the bar council.
This would bring the necessary diversity to the team. They should conduct an in-depth study of the method of going about it, and come up with concrete proposals and a workable model, along with rules and regulations that need to be added or modified, to deal with all related issues. It shall devise the rules on all matters related to curriculum, inspection, accreditation, compliance, disciplinary action, compulsion etc. Given the fact that there is no such programme in our country and it is likely to face some opposition and require some time for adjustment, it is suggested that the CPD requirements be introduced in phases. In the first phase the requirement should be voluntary, and in the second stage it may be made mandatory. In this regard the other important issue is of service providers, in the first stage the training can be arranged by the Pakistan and provincial bar councils, and in the second stage it can be outsourced to government training institutes, and/ or private educational and training institutes, such as universities and colleges, etc. The start can be made with the introduction of some basic courses, and later more courses can be added, with the lawyers being presented a vast platter of relevant courses to choose from. It is hoped that this would lead to better service provision. A complicated issue would be of some form of sanctions, in case of non-compliance. Those in vogue in various countries include fine, or suspension or other disciplinary actions.^xiii.^
There are multiple CPD formats available in the world, some with regard to the number of compulsory hours, the other with regard to the compulsory subjects, the third with regard to the methods and types of activities, and fourthly, with regard to the providers. Finally, with regard to the reporting requirements; some regimes require annual reporting, some bi annual, some every three years etc. The Bar Council needs to decide how to deal with all these issues. This paper however, has made an attempt to highlight the laws that need changing, the Bar Council may like to work on this template and use it as a starting point for bringing about the necessary changes in the regulatory framework, through Parliament and the Bar Councils, as required.
Imperial Chemical Industries Ltd. v. Shatwell (1965) AC 656 = (1964) 3 WLR 329 (HL).
Mr. Ahmad Nazir Warraich has been recipient of two prestigious scholarships; Britannia Chevening Award for doing his LL.M. in International Law, from the University of Nottingham, UK, and the Hubert Humphrey Fellowship Award for doing a One Year Non Degree Fellowship from the Washington College of Law, American University, USA. He is currently Adjunct Faculty at various leading academic and training institutes.
i.www.isuc.on.ce/o^2^Frules%2F8ch=0AQFC60it++<http://www.lsue.on.ca/For-Lawyers/ImproveYour->++ Practice/ Education/ Continuing- Professional- Development- Overview/ What is the purpose of the CPD Requirement?
iii.www.lawsocietyyukon.com%2Fpdf%2FCPD%2520Task%2520Force%2520Report.pdah^-^---OAQFC60itCPD Task Force, Yukon, p-2, 2011.CPD Task Force, Yukon, p-1, 2011.
v. www.barstandardsboard. Org.u1/
vi. http : //www barstandardsboard org. uk/regulatory-requrements/
viii. The American Bar association: Policy and procedures Handbook
ix. American Law and the American Legal System, Lyod Bonfield, Thomson,
West USA, kp.319
xi. Law Society of Upper Canada. Role Statement (1994)
xii. ++<http://www.e-laws.gov:on.ca/html/statutes/english/>++ elaws. statutes. 90108. e.htm
Xiii. www.lawsocietvyukon.com%2Fpdf%2FC0D%2520Task%2520 Force%25220Report.pdf&h=0ACIFC6OitCPD task Force, Yukon, 0.2, 2011.