Recently, quite a number of enquiries on the regulation of the offer of pro bono legal services to the public have been raised.
Let us start with the basic requirement. Where a person is held out to the public as providing legal services in the capacity of a solicitor, be it paid services or not, he or she must first be qualified to act as a solicitor. Section 7 of the Legal Practitioners Ordinance (“LPO”) provides the conditions to be fulfilled for a person to be qualified to act as a solicitor. The person’s name must be on the roll of solicitors; he or she must not be suspended from practice, has in force a current practising certificate and is complying with the relevant indemnity rules or is exempt from them.
With respect to the last condition in s. 7(d) of the LPO on indemnity, reference is made to rules 6 and 7 of the Solicitors (Professional Indemnity) Rules (“PIS Rules”).
Rule 6(1) of the PIS provides “[s]ubject to Rule 7, every solicitor who is, or is held out to the public as, a solicitor in Practice in Hong Kong shall be required to have and maintain Indemnity.” Both “Practice” and “Indemnity” are defined in the PIS Rules. We often receive queries on how these provisions apply where a solicitor provides pro bono legal services in his or her personal capacity.
The Law Society adopts the view that what constitutes the carrying on of a Practice as defined in the PIS Rules is not whether a fee for the work is charged or not, but whether the work is carried out pursuant to some holding out to the public and has some degree of formality and regularity. A solicitor who is a partner in or an employee of a Hong Kong law firm and provides pro bono legal services to the public in that capacity will be in compliance with rule 6 of the PIS Rules provided that a receipt had been issued to that firm in accordance with rule 9 of the PIS Rules.
On the other hand, if the solicitor provides the pro bono legal services independent of the law firm, or if a solicitor who is not working in a law firm provides pro bono legal services to the public in his or her personal capacity, and the solicitor does so in a formal and regular basis, eg through formal participation in a public legal advisory scheme, he or she will be regarded as being a solicitor in Practice. According to rule 6(1) of the PIS Rules, he or she will be required to “have and maintain Indemnity”. Yet, the solicitor in these circumstances is not entitled to Indemnity as defined in the PIS Rules.
Rule 7 of the PIS Rules provides for an avenue to apply to the Council for exemption from compliance with rule 6.
The Law Society Circular 16-609 sets out the guidelines (“Guidelines”) in relation to this kind of exemption application. The type of situations envisaged under the Guidelines when they were formulated relate to the free legal advisory schemes organised by charities and NGOs where individual solicitors are empanelled to provide legal advice to the public on a pro bono basis. All relevant circumstances will be taken into account when considering an application for exemption and factors include, for example, whether the level of professional indemnity protection is in a manner and to an extent similar to that provided in the PIS Rules. The Law Society takes the view that public protection for pro bono legal services should not be inferior to paid legal services.
The exemption is not intended to cover situations where a corporation or an NGO specifically employs a solicitor and arranges this in-house solicitor employee to provide legal services to the public as part of the work for the corporation or NGO. Where a solicitor is employed by the corporation or NGO, he or she is treated as an in-house solicitor and has to comply with the Law Society’s Practice Direction N that defines the parameters within which an in-house solicitor can offer legal services to the employer only and not to the public.
In such kind of arrangement, the concern is not whether the solicitor will be issued a practising certificate whilst employed by the corporation or NGO, but rather, the fact that the corporation or NGO will act like a law firm but will not be governed as such under the current rules. Section 51 of the LPO prohibits a body corporate, or any of its director, officer or servant, to perform any act of such a nature or in such a manner as to be calculated to imply that the body corporate is qualified or recognised by law as qualified to act as a solicitor.
The Law Society supports members of the profession contributing to community by offering pro bono legal services to the public. However, it is important that the public receiving free legal services must be protected at the same level as those receiving paid legal services. There should not be any distinction in the standard or regulatory compliance required of solicitors providing pro bono or paid legal services.