FIFO

Globalisation facilitates mobility of people, capital, goods and services across national borders. As international commercial transactions grow, lawyers find themselves increasingly involved in cross-border work.

Being an international financial centre and a “super connector” in the Belt and Road Initiative, Hong Kong prides itself in being equipped with world-class professional service support for complex multi-jurisdictional business transactions. Our open and inclusive approach to providing legal services enables the interests of international clients to be served fully and effectively with easy access to competent legal advice on local as well as foreign laws.

Our regulatory regime for foreign lawyers and foreign firms was first introduced in 1994. As of the end of 1995, there were 371 foreign lawyers and 56 foreign firms. After 21 years, as of the end of August 2016, there were 1,329 foreign lawyers from 32 jurisdictions with the largest proportion (36 percent) from the US. There were 76 foreign law firms from 20 jurisdictions with Mainland China as the top jurisdiction (21 percent).

On average, the annual growth rate of foreign lawyers and foreign firms over the period since 1994 is 7 percent and 2 percent, respectively. By way of comparison, the average annual growth rate of Hong Kong practising solicitors and Hong Kong law firms for the same period is 4.5 percent and 2.8 percent, respectively.

In recent years, to cope with the demands of an increasingly economically integrated and competitive global market, some Asian jurisdictions, like Korea, Singapore and India, have gradually opened up to foreign lawyers. Our foreign lawyer regulatory regime has been in place for over two decades. From time to time, we are asked (and are always pleased) to share our experience with others, in particular, on FIFO (fly-in-fly-out situations).

We govern the individual eligibility to practise foreign law, as well as the way the foreign legal services are delivered. Anyone who wishes to offer his services to the public as a practitioner of foreign law must first register as a foreign lawyer with the Law Society, unless he is a Hong Kong practising solicitor or barrister (s. 50B(1) of the Legal Practitioners Ordinance (“LPO”)). In order to be registered, a foreign lawyer must have professional indemnity insurance (r. 4 of the Foreign Lawyers Registration Rules) in a manner and extent similar to the indemnity provided to a solicitor under the fund established under r. 3 of the Solicitors (Professional Indemnity) Rules. This must be maintained at all times or else registration will be suspended until adequate insurance is in place. Further, if a foreign lawyer does not have at least 2 years of post-qualification experience in the full-time practice of foreign law, he may only practise foreign law as an employee of a law firm subject to conditions as to supervision (r. 5 of the Foreign Lawyers Registration Rules).

Foreign lawyers can only advise on the laws of their own jurisdictions or international law (r. 12 of the Foreign Lawyers Registration Rules). For the protection of the public, they cannot advise on Hong Kong law as they are not qualified as Hong Kong solicitors.

The services provided to the public by a registered foreign lawyer as a practitioner of foreign law must be from within a Hong Kong firm or a registered foreign firm in Hong Kong (s. 50B(3) of the LPO). The foreign lawyer legislation is not intended to apply to in-house lawyers, who do not offer their services to the public as practitioners of foreign law.

For “FIFO” (fly-in-fly-out), s. 50B(2) of the LPO allows a lawyer with foreign qualifications, who is not registered as a foreign lawyer, to offer his services as a practitioner of foreign law to the public for a limited period (not more than three continuous months or 90 days in any 12 month period), provided he does so from within a registered foreign firm or a Hong Kong firm.

Whether the act of an overseas lawyer constitutes provision of legal services as a practitioner of foreign law to the public in Hong Kong depends on the particular circumstances of the case. Presenting a legal topic at an academic conference may not necessarily be “offering services to the public as a practitioner of foreign law”, but advising in a public seminar on a real case (eg, pursuit of a class action), may be questionable.

Information on the provisions relating to the practice of foreign lawyers is posted on the Law Society website. Should you require further information, you are welcome to contact our Regulation and Guidance Section for assistance.

Secretary-General, Law Society of Hong Kong