Legal Services in Hong Kong:
-- A Report on the Consultation Exercise and Proposals for the Way
Forward
Comments by the HKCSI
April 1996
- In the HKCSI's response to the "Consultation Paper on Legal Services"
published by the Attorney General's Chambers in 1995, the Coalition expressed support to
35 of the 40 proposals, 12 of which the Coalition noted were similar to the CSI's earlier
proposals to the Attorney General in the report of the HKCSI Working Group on Legal
Services published in November 1994. The CSI disagreed with two of the Attorney General's
proposals, namely Recommendation 12 (on conditional fees) and 33 (on interest on client's
accounts), and took no position on three of them.
- The Attorney General has now published its report on the consultation exercise and for
each recommendation made in the consultation paper, the government has made further
proposals for the way forward. The HKCSI welcomes this Report as most of the latest
proposals are in line with the thinking of the original consultative paper. Specifically,
we are in agreement with the proposals on 25 of the original recommendations
(Recommendations 3-8, 12, 13, 18-25, 28, 29, 32, 34-37, 39, 40), and we have no comment on
two of them (Recommendations 2 and 11). Our comments on the other proposals are set out as
follows.
General comments
- The Attorney General is to be commended for reflecting as wide a cross section
of views as possible, as evident in the Report. At the same time, the Attorney General has
taken great care, rightly, to consider the views of the Law Society and the Bar
Association.
- The legal profession is an important pillar to the legal system. We therefore understand
and endorse the need to attach considerable weight to the views of the legal bodies on a
matter that concerns directly their professional integrity. However, having examined the
Report, we have a feeling that it seems to convey an underlying tone of sympathy to the
profession to the extent that the Administration seems too ready to acquiesce to the
demands of the legal bodies. Taking the perspective of the user and consumer, we have
reason to question if the right balance has been struck in giving prominence to the views
of users and consumers. These reasons are given in the specific comments below.
Specific comments
- Recommendation 1. "The Administration's view is that it should be
possible for solicitors to acquire rights of audience in all courts under statutory
provisions similar to those in England and Scotland." In spite of a clear and
overwhelming support for this recommendation, the Administration's proposal is, curiously,
"to conduct a further study" and "to find the level of public support for
this change by conducting a Public Opinion Survey". The justification that
"Although there are strong arguments in favour of permitting solicitors to acquire
extended rights of audience, there are substantial arguments the other way", is not
convincing in view of the considerable weight behind those in favour of the
recommendation. There does not appear to be enough basis for a further study other than
that the Bar is objecting to the recommendation. It seems odd to have to "find the
level of public support" of a recommendation which already has a high level of public
support.
- Recommendation 9. "Scale fees should be abolished immediately, irrespective of
whether Land Titles Bill is enacted." Again, with the exception of solicitors who
have a vested interest, the majority of responses, including the public opinion survey,
have been conclusively in favour of abolishing scale fees. The logical conclusion would be
abolition of scale fees right away. This is indeed what the Administration is proposing,
except that the Law Society is given an opportunity to "make alternative
proposals". This seems quite unnecessary other than as a concession to solicitors;
nor is it justified by any credible alternative which has so far been put forward.
- Recommendation 10. "Solicitors should adopt rules within their code of conduct,
similar to those in England, in respect of the information on costs to be given to
clients." Whilst we agree with the Administration's proposal to "pass to the
Law Society" the results of the public opinion survey and "monitor the extent to
which solicitors do, in practice, provide information on costs to their clients", we
feel that providing cost information to clients is such an important element in increasing
transparency of the legal service that the proposed course of action should have been
stronger. Instead of monitoring by the government alone, users and consumer bodies should
also have a role in ensuring transparency of the legal service.
- Recommendations 14-17, dealing with joint representation in property transactions.
We would have thought that the recommendations should be implemented right away, on the
basis of the clear public support in their favour. We are disappointed therefore that the
Administration has not been able to arrive at a firm decision but has to keep the issues
"under review" or "continue to examine" them.
- Recommendation 26. "The Bar Association should actively encourage the
dissemination of information about the services offered and fees charged by
barristers." Our reaction to the government's proposal to "encourage the Bar
to respond positively" is similar to that of Recommendation 10. The issue of
transparency is so important that mere encouragement by the Administration does not
suffice. Instead, the public should have a role in contributing to client education and in
monitoring transparency of the legal process.
- Recommendation 27. "The Administration believes that two branches of the
profession should be alive to the need to improve the standard of client care, and
welcomes views from the community on those areas or services in which they would wish to
see improvements." Obviously we agree with the Administration's proposal to
"forward to the Bar and Law Society a summary of views expressed" and to
"enter into discussions with them to see how the standard of client care can be
improved", but this is not enough. The improvement of standard of client care should
be a matter that involves the public more directly, with more specific targets. One
example is a suggestion in our earlier submission that a simple consumer's guide be
prepared. This and other similar projects should be the result of a tripartite effort
involving government, the legal profession and the users (represented by the Consumer
Council or bodies such as the HKCSI).
- Recommendations 30 and 31. "Solicitors' firms should be required to have a
complaints-handling procedure," and "The Law Society and Bar Association should
be able to investigate allegations of shoddy work and to require a legal practitioner to
take specified remedial action." Again, whilst we agree that the Administration
should "press the two professional bodies" to implement the recommendations, our
feeling is that this should not be regarded as purely a matter between the professional
bodies and government. Instead, there should be a mechanism for some public involvement in
the disciplinary procedures of the respective legal bodies.
- Recommendation 33. "There is a case for requiring interest which is not payable
to clients to be used to fund a Law Foundation." Our view as expressed in our
previous submission is that interest on client's account should always remain the
client's. There seems to be considerable justification for this view, as evidenced by the
result of the public opinion survey quoted in the Report, although we recognise there is
apparently stronger support for the Attorney General's recommendation to create a Law
Foundation. We do not feel there is strong enough ground for us to change our position
although we would be prepared to reconsider this issue when more details of the proposed
Foundation is available.
- Recommendation 38, on partnership between local and foreign lawyers. To maintain
Hong Kong as an international service centre, it is important for our service sectors to
operate in the most internationally liberal environment possible. Even the Law Society
seems to have acknowledged that the question is when, not if, local/foreign partnership
should be allowed. While we remain open-minded on the timing as to when this should be
permitted, we would prefer a stronger commitment from the Administration to seek the views
of users and consumers rather than the non-committal proposal to "continue to
monitor" the issue.
(ends)
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