LETTER | Time for privilege check in legal profession

LETTER | I refer to the letter “Chambering pupils and salaries”. With due respect, I disagree with the author and find that his views are misconceived and honestly speaking, quite disappointing.

I find it helpful to first clarify that when lawyers refer to pupils-in-chambers, they are referring to a group of adults that largely consist of people within the age bracket of 23 to 30. There are also pupils who are above the age of 30 or even 40.

These people are grown adults with commitments who have chosen to pursue a career in the legal profession. Their parents may be retired or they may have left a previous occupation. They might also come from a less-privileged background where educational costs for a period of four years would have dampened their finances.

The author chooses to highlight the phrase “learning process” in his letter as if to suggest that an employee-employer relationship cannot exist if there is an element of learning and teaching between a pupil and pupil master.

This is a very shallow and limited way of looking at the issue because it is premised on an incorrect assumption that learning and working must be mutually exclusive.

If that was the case, then I’m afraid to inform the author that by virtue of his argument, even senior lawyers themselves shouldn’t be entitled to any form of pay. This is because learning doesn’t truly end. It does not end in nine months, nor will it end in 20 years. The learning process is constant throughout one’s legal career.

“Learning” is not valuable consideration for the work done, time spent and living costs incurred by a pupil during the period of nine months.

While we may debate on whether money needs to be a priority or not, it is undeniable that money is a necessity. It is only those who are blind to their own privilege that would suggest otherwise.

We don’t give discounts to clients for providing the opportunity for us to perform more insightful research into various areas of the law which contributes to our growth as an advocate or solicitor, so why must such an argument be applied to pupils who despite their learning, provides undeniable value and contribution to the firm.

Some may argue that the difference lies in the nature of the relationship where unlike a client, a pupil master is actively imparting lessons to the pupil. I, however, disagree. 

Regardless of the nature of the relationship, it is basic sense that a pupil should be adequately remunerated so that economic worry does not need to come into the way of a pupil's learning. 

The whole idea of a pupil master being some form of Jedi master is an idealistic and romantic notion of what pupillage is that is far from pragmatic. Even a Jedi apprentice's cost of living is sponsored.

The reality in 2020 is that there are plenty of medium to large-sized firms that park pupils under different senior lawyers who merely "outsource" their pupil to assist other partners in other departments that need help, showing up only at the end to sign the necessary long call papers.

Yes, this problem needs to be addressed. But the failure of this idealistic and frankly outdated concept of pupillage to translate well into practical reality, should not be blamed on pupils and its failures should not burden them.

In any event, this a separate issue that does not take away from the pressing need for a pupil to be adequately remunerated in light of ever-increasing living expenses and work done at the cost of a pupil’s time and well-being.

Lawyers perform work and provide value to their clients, putting in hours of their lives in exchange for adequate payment. The same goes for pupils who work overtime to provide work and value to their pupil master and their firms. 

Their remuneration does not need to be as high as what a lawyer may demand from a client but it needs to be enough to sustain the pupil’s living during the period of nine months.

Some may argue instead that a lawyer is subject to liability whereas a pupil isn’t. This is true but that does not exclude the pupil from being entitled to a minimum form of remuneration. 

Secretaries and legal clerks assist lawyers with the drafting and filing of papers but they are still entitled to basic employment rights and higher pay despite arguably working fewer hours and having a narrower scope of duties and responsibilities.

Before anyone seeks to deny the value of a pupil, I must raise the fact that pupils save costs for a firm. Their work cuts costs that would have otherwise been incurred if it were outsourced to a third party. 

They also bear the brunt of the grind enabling the firm’s partners to focus on drawing clients and positioning the firm. The fact that pupils receive no employer contribution for Employees Provident Fund and are not paid overtime also benefits the firm greatly in light of the versatile amount of work they are able to do.

Despite all this, a pupil is not protected by any contract and can be dismissed with no legitimate reason or notice period.

The author himself also admitted that pupils ought to be given allowances for travelling or subsistence. What he has failed to elaborate upon, however, is the amount of subsistence that is required. 

If we were to spend RM15 daily for food, this would mean that a pupil would require RM450 per month for food alone and this is without factoring in travel expenses as well as monthly rental and other commitments. This could easily rack up to a monthly expense way beyond RM500 that some firms are still paying.

There is a pressing need to address this. Learning from a senior lawyer is a privilege but it must not be a privilege that only the rich can afford. 

The Bar will benefit from the empowerment of lawyers from different socioeconomic circles and a refusal to ensure adequate remuneration that lowers the financial barriers to entry into the legal profession is akin to turning a blind eye to socioeconomic injustice.

It must also be clarified that there are pupils-in-chambers who do not wish to appear before the court and would rather perform the duties of a solicitor. In scenarios such as this, there is no reason why these pupils should not be treated as being under an apprenticeship contract with the firm itself.

This is what the UK is doing with trainee solicitors who are being paid without question and are entitled to the protection of the United Kingdom’s Employment Act.

I also find it suspect that several senior practitioners would be quick to cling onto the vague notion of tradition when the whole pupilage system in Malaysia is vastly different from that in the UK. 

Pupil barristers there play a very different and arguably more minor role and are still being paid a minimum pay. Pupil barristers in the UK also get to enjoy a share of the profits from the files they bring in during the latter half of their pupillage, a tradition that has conveniently been forgotten by some senior practitioners.

It must also be said that it is well within the right of a pupil to enquire about pay. It is hypocritical to suggest on one hand that the burden lies with pupils to engage in conversations and negotiate with their pupil masters about pay but at the same time shame them or give a "tongue-lashing" for attempting to bring up the topic.

To me, pupil masters who refuse to pay adequately have an important lesson to learn themselves before condescendingly seeking to impart knowledge to others. It is a lesson of privilege and the need to keep it in check.