The Law Society's Memorandum and Articles of Association are important constitutional documents. They set out the objects of the Law Society, its membership composition, members' rights and liabilities, and contain detailed provisions governing the management of the affairs of the Law Society by the Council. The Law Society’s Articles of Association were last replaced with a new set in 1980, following an overall review. Since then, we have kept our constitution under review and amended various provisions to meet our needs at different times.
In March 2014, the new Companies Ordinance (Cap. 622) (the “new CO"), comprising 921 sections and 11 schedules together with 12 pieces of subsidiary legislations, came into full operation, following the completion of a substantial Company Law Review and Rewrite exercise by the Companies Registry. The new CO contains deeming provisions. Strictly speaking, the Law Society as an existing company formed and incorporated under the old Companies Ordinance is not obliged to update its constitution. However, the Council considered it a timely opportunity to conduct an overall review. A Working Party was then convened and tasked to modernise, update and align the Law Society’s constitution with the changes brought about by the new CO, to remove identified anomalies and to streamline procedures wherever appropriate to enhance administrative efficiency.
The Working Party has completed the review and made a number of recommendations to the Council.
It is proposed that the existing Memorandum and Articles of Association be abolished and replaced by a new set of Articles of Association (the “new AA”) as the sole constitutional document of the Law Society. A number of corporate governance changes have been proposed. For example, it is recommended that the number of Council members be increased from 20 to up to 28. The number of Council members has remained at 20 since 1992 and during such period, the membership has increased by more than four times. The increasing demands on the work of the Law Society arising from the growing membership and the rapidly changing legal landscape necessitates putting in place a plan for the spread of work among a bigger group of Council members in the long term. It is therefore proposed to amend the existing Article 15(a) (ie the re-numbered Article 25(1) of the new AA) to allow the Council the flexibility to increase its membership to a maximum of 28 members.
In terms of tenure, currently, the five members who have been longest in office since election or re-election are required to retire at each Annual General Meeting, but shall be eligible for re-election. With an increase in the number of Council members to above 20, the number of Council members who have to retire each year may have to be adjusted if a similar rate of turnover of Council members each year is to be maintained. It is therefore proposed that the relevant Article be amended to require one-fourth of the members (rounded up to the nearest number) or five of them, whichever is the greater number, to retire.
Some provisions have also been introduced in the new AA to take advantage of the initiatives provided in the new CO. For example, it is proposed that Articles 29, 35 and 37 (ie the re-numbered Articles 44, 58 and 60 of the new AA respectively) be amended to enable the Law Society to hold Council meetings and general meetings at two or more places. To facilitate the Law Society's communication with its members through electronic means, a new definition of "electronic communication" is included in the new Article 3(1). Further, a new Article 3(3) is proposed to be added to make explicit reference to Part 18 of the new CO. With the agreement of members, notices and other communications including documents sent or supplied to a member may be delivered by electronic means in compliance with Part 18. The relevant notice periods are also incorporated accordingly.
A 90-day consultation on the proposed changes is being conducted. All members, registered foreign lawyers and trainee solicitors have been issued a draft set of the new AA with explanatory notes by email. All comments received during the consultation will be carefully considered before proceeding with the other formalities to effect the changes.
• The 2018/19 CPD/RME practice year will expire on Thursday, 31 October 2019. Compliance with CPD and RME obligations is a condition precedent for solicitors to renew their 2020 practising certificates and a condition precedent for trainee solicitors to apply for admission as solicitors. The upcoming CPD and RME courses are posted on the website of Hong Kong Academy of Law at www.hklawacademy.org.