Universities Don’t Understand How International Students Learn

I think there is more to international students being disgruntled in the UK, than the author suggests. It is good that this discussion is being had in prominent UK newspapers though: http://www.theguardian.com/higher-education-network/2015/jul/03/universities-dont-understand-how-international-students-learn

Can In-House Counsel Keep Secrets? – Lessons from Europe (DRAFT)

In Bangladesh, when a dispute arises between two parties under civil law, the court by its own motion, or either party through an application, may compel the discovery of documents necessary for the subject matter of the proceedings (section 30, Code of Civil Procedure 1908). The documents a corporate party may be required to disclose could be everything from publicly available Annual Reports to sensitive financial documents, granted that they are not subject to confidentiality agreements or statutory protections. While the US is known for having the broadest scope of ‘discovery’, courts all across the globe have been known to order  the disclosure of a broad range of documents for the purpose of resolving a dispute. Traditionally, communication between lawyers and their clients have been a part of the subset of documents that have fallen outside of the scope of this discovery provision because of legal professional privilege.

Legal Professional Privilege protects a client’s communication with their lawyers from disclosure to third parties, thereby averting the possibility of self-incrimination. The cloak of confidentiality allows clients to speak to counsel candidly and counsel to provide unfettered legal advice. Such protection has existed for centuries in the common law (e.g. Berd v Lovelace [1577] Cary 62) and is uniquely tied to the status of law as an independent profession. Lawyers have enjoyed the privilege of confidentiality because, despite owing a duty to their client, they have been required to give frank, independent advice and to facilitate the administration of justice. (Bangladesh Bar Council Canons of Professional Conduct and Etiquette, Canons 10 and 12 of Chapter 2 read together) At arm’s length, a lawyer can render advice by considering both the interests of the client and of justice. In recent years, however, the exponential increase in lawyers becoming salaried employees of major companies has stirred debate regarding their ability to render independent professional judgment. This is because such lawyers not only become part of a corporate hierarchy but have sometimes become involved in commercial decision-making and dispensing non-legal advice. Courts have thus been confronted with the question of whether the privilege of confidentiality should extend to such non-legal communication and have generally held that it shouldn’t do so. (e.g. in Australia, Seven Network Ltd v News Ltd (2005) 225 ALR 672)

This should be of growing concern in Bangladesh as multinationals now have sizable legal departments and they may be required to disclose certain communications with management in open court in the event of a civil proceeding. The question of legal professional privilege viz. in-house counsel has not been explicitly considered by the Supreme Court of Bangladesh but the example of European Union (EU) jurisprudence may be informative. This is especially as many of the multinationals operating in Bangladesh are subsidiaries of European parent companies (e.g. Unilever, British American Tobacco). Therefore, I will first outline the current position regarding legal professional privilege in Bangladesh and the EU respectively before making recommendations on how communication between in-house counsel and the officers, directors and employees of a company can be kept confidential.

Bangladesh

In Bangladesh, communication between Advocates and their clients may enjoy the privilege of confidentiality under section 126 of the Evidence Act. However, such communication must have been made to him confidentially, in his capacity as an Advocate for the client, for privilege to attach to it. While the vast majority of in-house lawyers in Bangladesh have been enrolled as Advocates during their professional careers, the question arises as to whether their employment is in their capacity as an ‘Advocate’ or otherwise. The simple answer is that they are not. Pursuant to Canon 8 of Chapter 4, an Advocate should not, as a general rule, “…be a salaried official…in connection with any such profession or business.” Thus, while practicing as an Advocate, they cannot become a salaried employee of a company. Instead, a lawyer wishing to go in-house may suspend his practicing certificate under Rule 70, The Bangladesh Legal Practitioners and Bar Council Rules, 1972. A corporate lawyer is subject to codes of conduct/ethics that are set by companies for all of their employees, as well as the terms of their individual contracts which will generally include confidentiality clauses. (See British American Tobacco’s “Standards of Business Conduct” and S.S. Shroff, “In-house Counsel and the Attorney-Client Privilege” Lex Mundi (2007)) However, whether this contractual proviso means that client-counsel communication will be shielded from court-ordered disclosure is debatable, as the European example demonstrates.

The EU

The EU does not have a harmonized regime regarding confidentiality but in the AM & S v. European Commission case, the European Court of Justice (ECJ) held that confidentiality attaches to written communication between a lawyer and client, if the communication was made “for the purposes and in the interests of the client rights of defence” and they emanate from ‘independent lawyers’ (paragraph 21, p. 1611). This was re-affirmed more recently in the Akzo Nobel v. European Commission case. Thus, in-house lawyers’ communication is not protected by confidentiality because of their economic dependence on their client and their inability to avoid conflict between their own professional obligations and the commercial aims of their employers. Moreover, they may have duties that not strictly legal in nature. However, this restrictive approach to confidentiality only applies in cross-border, European Commission competition investigations. (DLA Piper, “European Union”, Legal Professional Privilege: Global Guide, 2015) Other disputes, including national competition proceedings, provide in-house counsel greater protection. In the UK, for example, both independent and in-house counsel communication attracts confidentiality, so long as the communication relates to the performance by the lawyer of his professional duty as legal adviser to his client (see Three Rivers District Council & Ors. v. Bank of England [2004] UKHL 48). Recent decisions in Belgium and the Netherlands indicate a similar trend. (Dirk Van Gerven and Freerk Vermeulen, “Legal advice of in-house counsel protected by duty of confidentiality” Lexology, 18 June 2013)

Ensuring Privilege

The lesson from this is that when courts consider the issue of privilege, they give greatest weight to the nature of the communication between in-house counsel and client rather than the lawyer’s formal, professional status. If the dominant purpose of the communication is to furnish legal advice, it will be protected, otherwise it will not. Thus, companies that seek to have their communication with their legal department protected should endeavor to strictly distinguish the department’s legal work from their involvement in other corporate activities. A range of measures may be taken to this effect, from annotating documents with ‘this communication is privileged based on attorney-client relationship’ to restricting the dissemination of such documents to granting the department greater autonomy within the company structure, so as to enable them to exercise independent professional judgment. It also goes without saying that the confidentiality of such communication should be preserved.

On the same note, it would be appreciated if the Bangladesh Bar Council issued a guidance note, clarifying whether, and to what extent, the Canons of Professional Conduct should extend to in-house lawyers.

Leiden
Morshed

New ‘Health Surcharge’ for Foreign Students in the UK

This article in the Times of India provides details of the new surcharge of 150 GBP imposed on foreign students for health services under the NHS.

An interesting statistic highlighted by the Foreign & Commonwealth Office: “International students cost the NHS around £430 million per year and over £700 per head”. I only visited the NHS once, for a routine examination, in my four years there and I can’t imagine many healthy-bodied 18-30 year olds darkening their door step. Where did the 700 GBP figure come from? Moreover, why they would impose a ‘nominal’, symbolic surcharge of 150 GBP if it doesn’t cover the purported cost of providing healthcare?

Leiden

Kaplan Law School shuts down BPTC, refers students to University of Law

Kaplan Law School has decided to close down its Bar Professional Training Course (BPTC), effective from September, 2014. This decision will be especially hard to swallow for those prospective students who have already received offers to study (/read, if you’re posh) at Kaplan and have passed the BCAT.

It also comes as quite a surprise, since Kaplan is reputed to be the most rigorous of the BPTC providers. It was the first to pilot an admission test for the BPTC and in 2012, 55% of its graduates secured pupillage, substantially higher than the 25% national average. (Obviously, part of the reason why they have such a high success rate is because they only accept students who already have pupillage or are most likely to secure pupillage.)

Kaplan cites “that the economics of the course have forced this decision.” It’s hard to discern the inner workings of an institution from such a cryptic phrase but I would hazard a guess that they’ve been struggling to keep up with the other providers, which have continued to adapt year on year and ‘internationalize’. College of Law (now University of Law), City Law School, BPP,Newcastle Cardiff, Bristol and others have been able to tap into the lucrative international market, by drawing students not only to their BPTC but also to their LLB, LLM and GDL programs. For instance, just last month, BPP has begun offering an online LLB, similar to that offered by the University of London External System, in collaboration with the London College of Legal Studies (South) in Dhaka. Kaplan has not done so, with the ostensible objective of maintaining ‘high standards’ and producing graduates for the English legal profession. The financial losses may also be attributable to the fact that Kaplan froze its BPTC fees this year, while the London bases of BPP and ULaw hiked fees by 6 per cent and 5 per cent respectively.

Personally, I find it to be a sad state of affairs, symptomatic of the generally dreary outlook of England’s legal industry.

Morshed
Tashkent

A Hasty Departure

A Hasty Departure

This cartoon, by ‘Las May’, was in the Jamaica Gleaner on 9 September, 2013. (All rights to the photo belong to the cartoonist and the newspaper) While this cartoon particularly refers to the dire employment scenario in Jamaica, it could just as easily refer to the UK, the US…or pretty much any other country nowadays.

How to write 1000 words a day (and not go bat shit crazy)

Originally posted on The Thesis Whisperer:

Recently I Tweeted a link to an article called “How to write 1000 words a day for your blog” which I thought had some good productivity tips for thesis writers. @webnemesis wrote back: ” would like to see someone write a blog post on how to write 1000 words of substance for yr dissertation every day”. Of course I answered: “Challenge? Accepted!”

When I was nearing the end of my PhD, I added up the number of words I had to write and divided them by the number of days of study leave I had left. Then I freaked out and had to have a little lie down. According to my calculations I had to write 60,000 words in 3 months.

After a  cup of tea (with maybe just a whiff of scotch in it) I contemplated this problem and made a PLAN, which was cobbled together from all the advice books on writing I…

View original 929 more words

Careful Pronunciation

As this video of a cross-examination from the satirical “Not The Nine O’Clock News” very ably demonstrates, a lawyer’s submissions and gravitas are quickly diminished if he/she does not learn to correctly pronounce words. The same can be said to apply in BPTC assessments, where tutors can get easily distracted and annoyed by oft-mispronounced words. It is therefore important that a BPTC student carefully practice his/her advocacy before friends and family and iron out any “phonetic discrepancies” before appearing in an assessment.

Enjoy!

Tashkent

Follow

Get every new post delivered to your Inbox.

Join 26 other followers