Individual variations aside, the legal professions in the world can basically be grouped under two models: the unified profession model and the split profession model. Countries adopting the first model include China and the United States, where the lawyers are known and practise as attorneys. On the other hand, in jurisdictions adopting the split profession model, their legal profession comprises two branches: solicitors and barristers.
The profession of barristers is an English product. The emergence of barristers as a profession first took place in England in the early thirteenth century. Since then, the legal profession in England developed into the two branches of solicitors and barristers. At present, apart from England and Wales, other jurisdictions with a similar split legal profession include the Republic of Ireland, Northern Ireland, Scotland, Australia, New Zealand and South Africa.
(Photo provided by the Judiciary of Hong Kong SAR)
Due to its colonial past, the legal profession in Hong Kong adopted the English model at a very early stage. In 1844, our very first Supreme Court Ordinance was enacted. This Ordinance established the Supreme Court of Hong Kong and conferred upon it the jurisdiction to admit persons as solicitors and barristers. Since then, the legal profession in Hong Kong comprises the two branches of solicitors and barristers. After reunification on 1 July 1997, the Basic Law of Hong Kong implements the concept of “One Country Two System”. As a result, the legal system in Hong Kong remains largely unchanged and our legal profession continues to operate on the same basis as before.
There are about 1,300 barristers practising in Hong Kong. Out of these 1300 barristers, there are 100 Senior Counsel (i.e. Queen's Counsel as they were called before 1 July 1997). Senior Counsel are appointed by the Chief Justice as a recognition of the relevant barristers", ability and standing in the profession. There are also a small number of employed barristers who work as in-house lawyers and do not offer their services to the general public. In addition, Queen’s Counsel are admitted from time to time on an ad hoc basis for the purpose of conducting specific cases in Hong Kong.
It is difficult to define the profession of barristers in Hong Kong (sometimes referred to as “the Hong Kong Bar”). However, the following are the key characteristics:
(1) it is a profession of specialized advocates and legal advisors;
(2) it is a referral profession;
(3) it is an independent profession; and
(4) it is a profession that adheres to the “cab-rank rule”.
Let’s deal with each of these characteristics and compare the differences between solicitors and barristers. We are going to explain the division of labour between solicitors and barristers so as to illustrate the different roles played by the two branches of the profession.
Specialized Advocates & Legal Advisors
Legal practice consists of many different areas. Key examples that would naturally spring into one’s mind include litigation, conveyancing, probate, and commercial transactions. In countries with a unified legal profession, lawyers can handle all areas of legal practice in accordance with the laws of their own country although individual lawyers may choose to specialize in certain areas. In countries with a split legal profession, there is a division of labour between solicitors and barristers.
Barristers are specialized advocates. One of their expertise is effective presentation of their clients’ case before a court or tribunal. Thus, disputes resolution including litigation and arbitration is one of the key areas of barristers’ practice. In Hong Kong, barristers have the right of audience and can represent their clients in all forms of legal proceedings in all the courts and tribunals save those where legal representation is excluded by statute.
Barristers have unlimited right of audience in all level of courts of Hong Kong. Only solicitors who passed the assessment by the Higher Rights of Audience Assessment Board can represent their clients in the higher courts (the Court First Instance, the Court of Appeal and the Court of Final Appeal).
Apart from representing clients in court hearings, barristers play a pivotal role in litigation or arbitration. Before proceedings are commenced, barristers are very often instructed to advice on the merits of the intended claim. This enables the clients to know their chance of success so that they can decide whether or not to commence legal proceedings. When or after proceedings are commenced, barristers are often instructed to draft pleadings or other court documents on behalf of their clients. As and when the proceedings reach a certain stage, barristers will be instructed to advise on evidence and to review the merits of the parties' cases.
Advisory work is another key area of barristers’ practice. Clients from time to time may need specialized legal advice even though there is no pending litigation. For instance, when a complex commercial contract is being drafted, the clients and solicitors may consult a barrister on the legal ramification of an intended contractual clause. Other examples include advising clients on the tax implications of an intended company restructuring scheme or whether an intended transaction may be held to be in contravention of specific legislative provisions.
Specialization in advocacy and advisory works is not just a characteristic of the Hong Kong Bar, it is also a reason why the Hong Kong Bar has an important role to play in our legal system.
In Hong Kong, the litigation system is an adversarial one. Unlike judges under the inquisitorial system, Hong Kong judges do not and are not expected to conduct any investigation or collect evidence on their own. Judges in Hong Kong, like judges in similar adversarial system, essentially act like an umpire in a sports match. Each side to the litigation presents his evidence and arguments to the judge. The judge listens to both sides’ case and decides the dispute. Under the adversarial system, the quality of advocates is crucial to the proper administration of justice. Unless the advocates can present his client's case in an effective and adequate manner, the judge may not have the benefit of competing arguments and may not be put in the best position to decide the disputes.
By reason of their specialization, barristers in Hong Kong develop the requisite skills in ensuring that their clients' case is presented in the best light to the judge. Further, all practising barristers in Hong Kong are bound to take their practice of law as their primary occupation. It cannot be gainsaid that advocacy is a skill that needs constant practice. By focusing on litigation work and by attending court hearings on a frequent basis, barristers continuously sharpen their advocacy skills.
A Referral Profession
The profession of barristers in Hong Kong is a referral one. Save in a few recognized situations, end-users of legal services in Hong Kong cannot instruct barristers directly. Instead, clients have to retain solicitors who will then instruct a barrister for the clients. By reason of this referral arrangement, barristers can focus their time and energy on legal research and case preparation. It also serves the purpose of ensuring objectivity. If a lawyer gets too close to a client, it is not unlikely that he may subconsciously side with the client and thereby lose objectivity. As barristers are retained through solicitors, the possibility of barristers losing objectivity is substantially reduced.
One often asked question is whether a client will end up having to pay more since he has to retain both a solicitor and a barrister and not just one lawyer. The answer is no. A properly conducted litigation will have a proper division of labour between the solicitor and the barrister involved. The work done by the solicitors will not be repeated by the barristers and vice versa. The costs thus remain the same, but clients enjoy the advantage of receiving specialist services.
Every barrister in Hong Kong can only practise law as a sole-proprietor. Unlike solicitors or other professionals, barristers are not allowed to enter into partnership. Nor are barristers allowed to incorporate themselves as a corporation or company. All these restrictions are aimed at ensuring that every barrister can act independently in the course of their practice.
If a barrister is allowed to enter into partnership, he would have to take into account or are even bound by the interests and views of his partners. In such circumstances, a partner may have to yield to the wishes of the other partners. Imagine the following scenario. Due to the negligence of a bank’s staff, a customer suffered loss and wants to sue the bank. This customer approaches a firm of lawyers, who are in partnership. One of the lawyers wants to take on the case because he thinks the bank is responsible for the loss and the customer deserves assistance. His other partners however object because they are planning to expand the firm’s banking practice and do not want to antagonise that particular bank so as not to affect potential business. In such circumstances, it is most likely that the lawyer who wants to take on the case will be out-voted by his partners. Such a situation does not simply affect the lawyer involved. More importantly, it restricts the customer’s right of access to justice and deprives him of his opportunity of retaining the service of the lawyer who wants to take on the case and who may happen to be an ideal person for pursuing his claim.
Although each barrister is a sole-proprietor, it should be pointed out that it is quite common for barristers to group themselves together and form a set of“chambers”. A set of chambers is an office where barristers practise law. One of the key reasons for forming chambers is to reduce expenses. Another reason is to facilitate interflow. Despite the tradition of forming chambers, barristers remain independent. This is because barristers are only allowed to share expenses but not allowed to share profit. Even if they are in the same set of chambers, each barrister remains responsible for his own professional practice.
The Cab-Rank Rule
Another aspect of equal importance is the “cab-rank rule”. Under this rule, a barrister is bound to accept any brief to appear before a court in the field in which he professes to practise at his usual fee having regard to the type, nature, length and difficulty of the case. The position is similar to taxi drivers who are obliged to offer his services to any client who asks for them and thus the rule is known as the “cab-rank rule”. Special circumstances such as a conflict of interest or the possession of relevant and confidential information may justify his or her refusal to accept a particular brief. In Hong Kong, only barristers are subject to this “cab-rank rule” and solicitors are not.
The rationale of this rule is to prevent barristers from vetting clients on political, moral or other grounds. For instance, a barrister cannot refuse to act for an accused charged of rape on the ground that he dislikes sexual offenders. The reasons for adopting this rule are these. First, before the dispute is resolved by the court, no one is in a position to judge who is right and who is wrong. Second, under our adversarial system, it is the task of the judge, and not the barristers, to decide who is right and who is wrong. Third, the judge can only perform his or her function properly if he or she has the assistance of counsel to present the competing arguments for each side.
The Hong Kong Bar Association (HKBA) is responsible for issuing annual practising certificate to barristers. Unless a barrister has subscribed for the compulsory insurance and holds a valid practising certificate, he cannot practise in Hong Kong as a barrister.
All barristers in Hong Kong are subject to the Code of Conduct issued by the HKBA (“Bar Code”). The Bar Code sets out the main principles governing the duties and conduct of barristers. If a barrister acts in breach of the Bar Code, the Bar Council may refer the matter to the Barristers Disciplinary Tribunal, which is an independent body comprising members appointed by the Chief Justice. If the Barristers Disciplinary Tribunal finds that a barrister is guilty of a disciplinary offence, it has power to impose different forms of punishment which include fine, suspension and striking off.
As we all known, the rule of law is one of the key factors that contribute to Hong Kong’s success. Apart from providing quality services to clients, Hong Kong barristers owe a duty to the society and should contribute their expertise for upholding the rule of law.