By: Ahmad Nazir Warraich I- INTRODUCTION II- CURRENT LEGAL - - PowerPoint PPT Presentation

By: Ahmad Nazir Warraich

The Legal Framework To Inculcate CPD In Pakistan

 I- INTRODUCTION  II- CURRENT LEGAL FRAMEWORK  III- INTERNATIONAL BEST PRACTICES  IV- SUGGESTED CHANGES IN THE LAW AND RULES IN

PAKISTAN.

 V- CONCLUSION.

INTRODUCTION

 Continuous professional development (CPD), is the

• ngoing 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

• ften mandated at the start of the career. The purpose of

CPD is “.. the maintenance and enhancement of a lawyer's 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”. The professionals are required to maintain and improve their skill and competence through such periodic systematized

• trainings. This is a well established practice in various

professions all over the world.

 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

• f 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 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 knowhow to provide competent and good service to their clients, that is the litigants

 In England, USA and Canada for example, there is a

requirement for ongoing professional development/ education courses. In England for example in addition to the requirement of ongoing professional training throughout the legal career, there is also the requirement

• f 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

• ngoing professional development courses is ever

greater.

CURRENT LEGAL FRAMEWORK

The Legal Practitioners’ and Bar Councils Act 1973

 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 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 also is 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”;

 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, 1973.

 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

• wn 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 said institutions. 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.

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.

England

 In Pakistan we follow the Common Law System, which

• riginated 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 is 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 the 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 practicing members of the Bar are subject to the

continuing professional development requirement, as the Bar considers that ongoing professional development is essential for the barristers. The Bar Standards Board supervises and monitors the provisions of these courses. 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

• f practice, barristers are required to undertake 12

hours of CPD each year under the Established Practitioners' Programme

 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

• f CPD during each year

USA

 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 American 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 legal education’, as well as, ‘promote competence, ethical conduct and professionalism’. 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.

 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. ABA is a private entity and can only make suggestions, it is upto the states to adopt them, although generally the states have tended to do that.

Canada

 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. Sub sections 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

• f the Society to ensure that (a) all persons who practice

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 ….”] Law Society of Upper Canada, Role Statement (1994)

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. Additionally a set

• f new rules may be notified, known as The Pakistan Bar

Council Contiuned Legal Education Rules,2014.

 In this regard, any new rules would have to cover a range

• f 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, as to who would be 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

• f non compliance and finally, with regard to the

reporting requirements about fulfilling them, some regimes require annual reporting, some bi annual, some every three years etc.

Legal Practitioners’ and Bar Councils Act, 1973

 In section 13, under Functions of the Pakistan Bar

Council, a new sub section may be added after sub section (j) to promote legal education and prescribe standards

• f such education in consultation with the universities in

Pakistan and the Provincial Bar Councils;

 Suggested addition  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 sub section, 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 sub-section deals with the standards

• f 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 sub section 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 installments, 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 amending to accommodate certification of attending continued legal education.

 With regard to the provincial bar councils, section10 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 former judge.

 Under section 9, dealing with the Functions of a

Provincial Bar Council, the following sub section 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 though Gazette notification, about the constitution and functions of any committee of the Bar Council (sub section b). Under this a Continuous professional development committee may be set up for continuous legal education. In addition, under sub section (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 becomomg 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.

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.

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.

New Rules on CPD

 Using the powers of delegated legislation, the Pakistan

Bar Council may draft and notify rules for CPD in keeping with the rules on Legal Education.

 These proposed rules may be termed, Pakistan Bar Council

Continued Legal Education Rules, 2014. They should deal with the provision and maintaining of standards by the institutes, colleges and universities providing continued legal education.

 The Rules may 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, any pass percentage and examinations.

 In addition, it should also deal with the aspect of inspection

• f the institutes.

CONCLUSION

 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, alongwith 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 , 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.

 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.

 There are multiple formats available in the world, some

with regard to the number of compulsory hours, the

• ther 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