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  • Writer's pictureYini Wu

Can the dual HK legal professions - Barristers vs. Solicitors - be unified?

Law practice in Hong Kong is split into two branches: barristers and solicitors. This division dates back to the early days of British rule. They each bear different responsibilities, each have their own expertise and each are governed by separate rules. Recently, calls to unify the professions have gotten louder. In this article we explore the reasons behind it and whether unification is at all possible.



Author: Yini Wu



According to the latest figures from the Law Society of Hong Kong and the Hong Kong Bar Association, there are 11,470 solicitors (with practicing certificates)[1] and 1,644 barristers[2] practicing in Hong Kong. Clients seeking legal services must first approach a solicitor, who will instruct a barrister, if so required, on the client's instructions.

 

Barristers: specialised to present a case to court on instructions of a solicitor - Solicitor: client facing, offering specialist legal advice without necessarily involving courts

A barrister is a qualified legal professional specialising in specific areas of law. They offer expert advice on the law and are generally instructed to represent clients in court or tribunals by a solicitor. Some barristers maintain a general practice, covering multiple areas of law, while others specialise in one particular legal domain. A solicitor is a qualified legal practitioner responsible for preparing legal documents for clients during court cases. They offer specialist legal advice in various legal areas and are nearly always the first point of contact for individuals seeking legal counsel.

 

Barristers are self-employed independent legal practitioners who are dedicated advocates and legal advisors. Subject to exceptions authorised by customs or the Bar Council, barristers cannot directly take instructions from lay clients and can only provide legal advice on instructions by solicitors, the Director of Legal Aid, or the government[3]. The barrister will examine and analyse the details of cases provided by the solicitor before presenting their argument in court. This task encompasses a multitude of responsibilities, from interviewing witnesses and preparing cases to making compelling submissions to judges or juries.

 

With the flexibility to work for various organisations, including commercial or non-commercial law firms, as well as government bodies, solicitors exhibit wide-ranging expertise. Their competence spans various legal areas, including commercial and corporate, litigation, property, and private individual work involving family, wills, and probate. They engage directly with clients, offering professional legal counsel and preparing pertinent legal documentation. Litigation solicitors may represent their clients in court themselves, which is called advocacy. However, more commonly, they will instruct a specialised barrister to represent their clients on their behalf. Apart from advocacy in court, solicitors have also been actively involved in arbitration-related advocacy work for years.

 

The duality evolving: solicitors can obtain right of audience at the court since 2012

In the past, barristers had a right of audience in all courts, whereas solicitors’ right of audience was generally limited to the lower courts[4]. However, since 2012, with the amendments to the law[5] and the introduction of an assessment regime, eligible solicitors have been able to obtain the rights of audience and to appear as solicitor advocates in the High Court and the Court of Final Appeal[6]. Accordingly, the gap is expected to narrow as more and more solicitors qualify as advocates[7]. This fuels an ongoing debate on the unification of the legal duality.

 

Duality nearly 200 years old - debate is heated regarding possible unification

The formation of the dual system is based partly on historical reasons. In 1844, Hong Kong enacted the first Supreme Court Ordinance[8], which invested the Supreme Court with the power to appoint barristers and solicitors. The legal profession began evolving into the two branches thereafter. Since Mainland China resumed the exercise of sovereignty over Hong Kong on 1 July 1997, the Basic Law of the Hong Kong Special Administrative Region[9] has recognised the “One Country, Two Systems” policy, thus allowing Hong Kong to maintain its original legal system.

 

In practice, there are arguments both for and against a split system. On the one hand, some argue that the benefit of a split system lies in a clear division of labour, the independence of legal advice, and cost-effectiveness. On the other hand, members of the public have questioned the current arrangement to access barristers. Some believe that the route of approaching barristers via solicitors should not be kept due to the possible duplication of work, higher costs, and inefficiency[10]. Apart from extra expense and longer proceedings, the actual distinction between the two professions in practice is considered subtle[11]. Academic requirements for barristers and solicitors are similar and with more solicitors acquiring rights of audience and participation in arbitration-related advocacy, the logic behind the 2 systems is shrinking, with the criticism from professionals and the public growing.

 
The Government's attempts scuttled - no change till 2010 when right of audience for solicitors ordinance was passed

In response, the Government has adopted a conservative and prudent attitude in adjusting the split arrangement. In March 1995, the Government proposed extending the rights of audience in higher courts to solicitors[12]. However, attempts to do so through amendments to an existing bill were ruled out of scope by the President of the Legislative Council[13]. Consequently, the proposal did not progress until the handover in 1997. It was not until 13 years later that the Legal Practitioners (Amendment) Ordinance 2010 was enacted to implement a scheme for this right to solicitors. Eligible solicitors can apply to the Higher Rights Assessment Board for rights of audience in the High Court and the Court of Final Appeal in both civil and criminal proceedings as of 2012[14]. Today, the discussion about the ‘fused’ legal profession remains controversial, difficult, and disruptive.

 

The debate will continue - added complication is Hong Kong's position in the "One Country, Two Systems" framework

The entrenched division between barristers and solicitors in Hong Kong's legal system reflects a historical evolution rooted in British influence. While barristers specialise in advocacy and possess legal proceedings expertise, solicitors play a pivotal role in client interaction and document preparation. The ongoing debate surrounding the unification of these two branches underscores the need for a delicate balance between specialisation and accessibility. Despite calls for a “fused” legal profession to enhance efficiency and reduce duplication, the government's cautious approach and the complexities of Hong Kong's legal framework under the "One Country, Two Systems" policy, make for a situation wherein so far we remain in a discussion phase. Striking the right balance between specialisation and accessibility will be crucial in shaping the future of legal practice in Hong Kong.


[1] See the Law Society of Hong Kong Annual Report 2023 [https://www.hklawsoc.org.hk/en/About-the-Society/Annual-Report/Annual-Report] 4

[2] As of November 2023, 1,664 barristers were working in Hong Kong in total, including 107 senior counsels.

[3] Para 5.16 (a) to 5.18 and Annex 3 (para 5.17(a) of the Code of Conduct for The Bar of Hong Kong [Hong Kong Bar Association]

[4] Hong Kong Starting Business (Incorporating) in Hong Kong Guide (International Business Publications, 2013) 137. As a general rule, solicitors do not have rights of audience in the High Court (except for chamber hearings), or the Court of Final Appeal.

[5] Amendments to the Legal Practitioner Ordinance (Cap. 159) in 2010.

[6] Section 39I of the Legal Practitioners Ordinance (Cap. 159) provides that a solicitor who satisfies the eligibility requirements under section 39i may apply to the Higher Rights Assessment Board for higher rights of audience.

[7] With an increase in number of advocates, total advocate fees would become more competitive and affordable to the public. See The Law Society of Hong Kong, A proposal for Extension of Higher Rights of Audience (“HRA”) to Solicitors Qualified in Hong Kong (Law Society Submissions, 29 May 2000)

[8] Supreme Court Ordinance (Cap.4) is a past version in which the title of this Ordinance was amended from “Supreme Court Ordinance” to “High Court Ordinance” in 1998.

[9] The Basic Law 1997

[10] Research Office of Legislative Council Secretariat, Practice of the Legal Profession in Selected Places (Fact Sheet FS06/17-18 ,2018) para 1.2

[11]C.M. Chan, ‘What does the Future Hold for the Legal Profession? (2024) 4 HKL 4

[12] The public consultation aimed to address crucial issues of accessibility, cost-effectiveness, efficiency, quality, independence, and the attainment of justice. See Attorney General’s Chamber (1995).

[13] The Legal Services Legislation (Miscellaneous Amendments) Bill 1996 aims at the abolition of the scale fees for conveyancing.

[14] For details on the application and eligibility requirements, please see Sections 39H and 39I of the Legal Practitioners Ordinance (Cap. 159).


 

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.


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