Working Party on Solicitors

Working Party on Solicitors

Introduction

Hong Kong's dynamic political, economic and social development has greatly increased the amount of regulation, law - making, and need for legal services in the territory. As the demands placed on the legal profession in Hong Kong increase, more flexible, efficient, equitable and cost-effective approaches to legal service delivery are required to accommodate the rapid change. An extension of HRA to solicitors in Hong Kong would be a major step toward liberalisation and establishment of a modern, fair system which promotes quality, choice, and value for money for the public who need the help of an advocate. It is not the purpose of this proposal to advance a case for fusion of the two branches of the legal profession.

Extension of HRA to solicitors before all courts

All eligible and accredited barristers and solicitors (““Legal Practitioners””) should have the right to present cases in the higher courts, not just barristers in private practice. To ensure maintenance of high standards which protect the public interest, Legal Practitioners should be able to obtain full HRA only if they meet training and knowledge requirements (including rules of professional conduct). There should be common rules of conduct regulating all Legal Practitioners. Although HRA must be reserved for only qualified Legal Practitioners, standards should not be misused to impose undue restrictions on qualified lawyers.

Current restriction upon Solicitors' HRA:

There are at present approximately 5,500 members of the legal profession in Hong Kong. However, only 700 (i.e.< 15%) have the right of audience before the higher courts (when not in chambers), i.e. the CFI, CA & CFA. Why is there this elite? The creation of the distinctions in the legal profession in Hong Kong was largely, if not wholly, influenced by the pre-1990 English system. However, in England and in most other Commonwealth jurisdictions the restrictions upon one branch of the legal profession to exercise full HRA either no longer exist or are in the process of being dismantled. Notwithstanding that in Hong Kong all those studying to enter the legal profession must undergo the same legal education, Hong Kong is one of the last jurisdictions in the world which still maintains a formal and practical distinction between the branches of its legal profession: barristers and solicitors. Indeed it is difficult to identify any other significant common law jurisdiction which maintains and defends the distinction. The restrictions upon solicitors to exercise HRA in Hong Kong are a matter of practice and custom, rather than restriction imposed by law. In 1995, the Government published a Green Paper on Legal Services. It stated: The Administration believes that rights of audience should be based on competence, rather that on whether the person involved happens to be qualified as a solicitor or barrister. This being so, the Administration considers that rights of audience in the higher courts should be extended to some or all solicitors.

Improvement and modernisation of legal services through HRA

The extension of HRA would increase competition between advocates, create more accessible ...