3 Reasons Why Pupils Should Be Given Pupillage Contracts

“Pupils, like eggs, are a category of their own. They’re neither employees, interns nor apprentices.“

During this Covid-19 pandemic, we see a marked increase of employment issues such as whether pay cuts are lawful and whether employees can be forced to take unpaid leaves. In all these cases, contracts play a central role in determining one’s rights and obligations.

It is therefore a harsh reality that pupils (or trainee lawyers) are prohibited from having employment contracts during their pupillage period. Further, while larger firms tend to give their pupils “pupillage contracts” (a contract where a pupil has no employee status), many smaller firms do not.

Given the importance of contracts, it is my view that pupillage contracts should be made mandatory across law firms. Here are 3 reasons why:

1.To safeguard pupils from unnecessary “cost-cutting measures”

Pupils are at the bottom of the pecking order when it comes to cost-cutting measures. During the MCO for example, businesses are required to exercise cost-cutting measures in order of priority such as freezing new recruitment and limiting overtime work, before implementing more drastic measures such as pay cuts across the board, temporary lay-offs and retrenchment.

Employees who received pay cuts or were laid off prematurely may argue that their employers have not exhausted more lenient cost-cutting measures. They are also entitled to termination and lay-off benefits in the event.

Pupils, however, are paid allowances rather than salaries. This means that the cost-cutting protocol does not apply to them. Thus, when the Ministry of Human Resources issued its FAQs making employee pay cuts unlawful, this (even if it has legal force) would not apply to protect pupils.

Further, whilst associates and clerks (who are employees) are statutorily protected from unlawful deductions, the same is not true for pupils. Without any contractual relationship, pupils are left at the mercy of the Bar Council who, fortunately, decided that pupils are entitled to continued allowance during the MCO.

I am not suggesting that pupils should be given employee status under the Employment Act 1955 or receive salaries as opposed to allowances, but that some form of contractual obligation is necessary to prevent law firms/masters from exercising crude cost-cutting measures at the expense of pupils.

2. To provide legal certainty & legal redress

Without the force of a contract, masters are in theory free to go back on their promises or even change the terms of a pupil’s “employment” as and when they wish. Whilst an unenforced promise seems harmless on its own, this could escalate into more serious consequences.

As an example, many pupils who are chambering in Kuala Lumpur are actually from out of town. Some have to fork out monthly rentals in order to undertake pupillage in the city. Without a written contract, it is easy for a master to default on i.e. payment obligations, especially in times of economic uncertainty. As a result, a pupil may be left to struggle with their monthly commitments i.e. tenancy agreement by acting in reliance on a master’s promise.

Without any contract, a pupil’s only avenue really is to complain to the Advocates & Solicitors Disciplinary Board (“ASDB”). Under Section 99 of the Legal Profession Act 1976 (“LPA“), a complaint can be lodged to the ASDB against any law firm, lawyer or pupil.

Yet, this method of redress is idealistic in a number of ways:

• One, complaints can only be made against an advocate & solicitor if the misconduct alleged is a “professional misconduct” that falls under s.94 of the LPA.
• Two, according to s.101 of the LPA, the Investigating Tribunal will only investigate into a complaint which it considers meritorious. This means that not every complaint lodged will be addressed. Without a written contract, there may not even be proof for bringing a claim/complaint in the first place.
• Three, pupils generally have no incentive to pursue such complaints because i.e. the pupillage period is only 9 months or they just don’t want to risk having a bad reputation before they take off as a lawyer. Some might disagree but the higher objective is to complete the pupillage and get called to the Bar.

3. To prevent pupil exploitation

On 18 February 2019, the Bar Council issued Ruling 10.09 which states: “A master shall not, under any circumstance, enter into any contract of or for service, with his/her pupil”. In the same Circular No 027/2019, this is said to “prevent exploitation of pupils by their masters”.

It is unclear why giving pupils employment contracts will open them up to exploitation by their masters. Presumably, this is referring to the inequality of bargaining power typical in an employer-employee relationship. Yet as it stands, not having any contracts at all is also exposing pupils to exploitation.

To give an example, there are many law firms who take in pupils by the mass but then fail to retain them as associates because there are “no vacancies”. The pupil is then dismissed into the open waters and a new batch of pupils are ushered in. Sometimes, this phenomenon could be explained in that there is more supply of pupils than there is demand, and sometimes this could simply be a business model.

The business model:- Having the locus to undertake billable (and legal) work without being subject to minimum wage requirements, pupils are inevitably open to abuse as cheap labour. Coupled with the fact that masters have complete discretion as to the task a pupil undertakes in his/her firm, a law firm is legally permitted to make pupils do clerical tasks for half the cost or even none at all. Under the LPA, there is no statutory obligation for a master to remunerate a pupil at all.

Therefore, whilst pupils shouldn’t be given any employment contracts, it is important to ensure that they are given pupillage contracts. I am not suggesting that pupils cannot be asked to undertake some printing or highlighting jobs, but that they should be done in a way that does not defeat the purpose of pupillage. After all, pupils are future lawyers.

For many senior lawyers, this might not be your pupillage reality. However, the legal job market in Malaysia is currently saturated as a result of, amongst others, high graduate turnovers and low retirement rates. Applications into law firms are everyday whereas spaces are limited. The need for contracts that at least puts on paper what type of work a pupil is expected to do, ensures that pupils are able to fulfil their pupillage objectives and at the same time keep masters in check.

Conclusion

Whilst it is a privilege for pupils to acquire practical experience and still earn allowances doing so, it is important to ensure that pupils are not open to exploitation by the legal industry. Since the LPA makes pupillage a mandatory requirement for one to qualify as a lawyer, it should also safeguard pupils from possible abuses during that period of mandatory pupillage. As lawyers who constantly advise clients that having contracts is better than not, I think it is paramount that we lead by example.