How Barristers Charge Their Fees
The fees charged by a barrister would depend on the complexity of the case, the time spent, his seniority and experience. In general, the more complicated the case, the more senior and experienced the barrister, the higher is his fees. A barrister may freely negotiate with a solicitor the fees he charges.
A barrister's fees for attending court are normally expressed in terms of "brief" and "refresher". A brief fee is the fee for the first day of appearance in court and will normally include the preparation work which includes perusal of documents and research on the law. Such preparation work can take from 1 to several days excluding the first day in court. A refresher is the fee for each subsequent day of appearance in court until the hearing finishes and is usually much lower than the brief fee. For example, for a barrister who normally charges HK$5,000 per day, his brief fee will be HK$15,000 if the case calls for 2 days of preparation (i.e. HK$5,000 x 2 for preparation plus HK$5,000 for the first day of court appearance). In this example, the refresher will be HK$5,000 for each additional day in court.
Yes. The fees of a barrister to attend court must be agreed beforehand. This is required by the Code of Conduct for barristers.
There is no requirement in the Code of Conduct that a barrister must agree his fees in advance for doing other kinds of work. However, a prudent solicitor will always obtain from a barrister an indication of at least the range of his fees for doing an item of work other than court appearances. The solicitor will then be able to inform the client of this and obtain the client's consent to engage the barrister for doing a particular item of work. The fees charged for such work vary as each piece of work differs in terms of the amount of papers to be read, the complexity of the legal issues raised and the time required to resolve various questions which needed to be resolved. A barrister should not commence work unless and until there is confirmation that the estimated fee quoted is acceptable to the client.
Barristers are engaged for their advocacy, experience, seniority and expertise. As these qualities vary with different barristers, the rates commanded by individual barristers also differ. A barrister's fees are primarily dictated by supply and demand and are in any event a matter of agreement between the individual barrister and his client (through the instructing solicitors). As in other professions, there are a handful of top senior counsel who command very high fees by reason of their skills and experience. However, they are the exception rather than the norm. Over 30% of the barrister's profession comprise practitioners of under 5 years' standing and by reason of keen competition their fees are kept at a relatively modest level.
Is a barrister entitled to be paid his brief fee if a case in which he is instructed to attend court is settled or adjourned?
A brief must be delivered to a barrister before the commencement of a court hearing. Unless there is agreement between a barrister and a solicitor to the contrary, once a brief is delivered, the brief fee is normally payable in any event.
What about any entitlement to refresher fees if a case is settled or adjourned or if the hearing is shortened?
A barrister is only entitled to a refresher fee if he attends court on a subsequent day. Any entitlement of a barrister to "unused" refreshers would depend on the express agreement he has made with the solicitor. In a long case, it is not uncommon for a barrister to agree with the solicitor that a portion of the "unused" refreshers is payable if the hearing collapses within a specified time of the delivery of the brief. This is to compensate the barrister for the lost opportunity of being available to take up other cases within the period reserved for the hearing.
Is a barrister entitled to be paid any fee if he is asked to mark his diary and reserve an available date for a case?
No. The marking of a barrister's diary does not commit the barrister to attend court or the solicitor to retain him. No fees are payable on account of it.
No. There is no contractual relationship between a barrister and his instructing solicitor or between a barrister and the lay client. As a result, a barrister cannot recover his fees by way of legal proceedings. The remedy of a barrister is to lodge a complaint to the Law Society against the solicitor for failing to pay his fees. In the absence of a reasonable excuse, a solicitor is personally liable as a matter of professional conduct for the payment of a barrister's proper fees.
Yes. The Bar Council and the Council of the Law Society have set up a Joint Tribunal to adjudicate disputes between barristers and solicitors relating to the fees of barristers. The Tribunal is made up of a barrister and a solicitor appointed from the two professional bodies. If a solicitor should fail to pay the fees of a barrister as determined by the Tribunal, the Tribunal will refer the matter to the Law Society as a case of professional misconduct.
Yes. The fees charged by a barrister are always negotiable before hand but once the fees are agreed, they are payable in any event.
Normally, if a solicitor considers a barrister's fees to be excessive, he should either instruct someone else or try to negotiate down the intended barrister's fees. In exceptional cases, where the fees charged are grossly disproportionate to the work undertaken, a complaint can be made to the Bar Council. It is a disciplinary offence for a barrister to charge an unreasonably high fee.
It is the job of your solicitor to advise you as to who should be instructed, namely, how senior a barrister is suitable for the work in question, what is the experience needed, how much time the barrister will need to spend on the case, etc. If the barrister chosen by the solicitor is too expensive for you, you should ask your solicitor to instruct someone who will charge less.
The Bar Association regularly publishes a list of practising barristers where the experience and expertise of each barrister is set out. The Bar Association is also contemplating a relaxation of its rules in order to allow each individual barrister to publish his qualifications and normal rates. Your solicitor should in any event be in a position to advise you as to the qualifications and experience of the barrister intended to be instructed.