The right to confidential legal advice and choice of lawyers for timely protection of one’s lawful rights is a constitutional entitlement that every Hong Kong resident enjoys under Article 35 of the Basic Law. It provides:
“Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies. Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.”
The right to confidential legal advice is important because if a person is not guaranteed that what he has told his lawyer will be kept in strict confidence, he may hold back half the truth from his lawyer. Further, a person has the right to refuse to disclose, even to a court, confidential communication with his lawyer made for the purpose of obtaining legal advice. Legal professional privilege is thus the cardinal rule that protects the independence of a solicitor-client relationship from undue interference.
“Legal professional privilege is much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole depends.” (R v Derby Magistrates)
Going hand-in-hand with these rights is the solicitors’ ethical duty of confidentiality. Solicitors are required to hold in strict confidence information acquired about their clients in the course of the professional relationship, unless their clients have authorised disclosure or waived their relevant rights.
This duty of confidentiality extends to a solicitor’s staff and it is the responsibility of the solicitor to ensure compliance. Unauthorised disclosure of a client’s confidential information could lead to disciplinary proceedings against the solicitor and could also render the solicitor liable, in certain circumstances, to a civil action by the client arising out of the misuse of confidential information.
The obligation to maintain confidentiality of clients’ information is increasingly put to the test with the rapid technological advancements. Managing cyber risks has become an important aspect of risk management of legal practices. The Law Society and the Academy of Law regularly organise seminars on cyber risks aiming to raise awareness and share practical tips on how to enhance information security of legal practices. Further, the Law Society has issued a set of “Information Security Guidelines for Legal Practitioners” which are made available to all members in the Members’ Zone of the Law Society website.
Also protected under Article 35 of the Basic Law is the right to choice of lawyers to protect a person’s lawful rights and interests in a timely manner.
Echoing this, a solicitor is ethically prohibited to do anything that will compromise the freedom of any person to instruct a solicitor of his choice.
On the part of a solicitor, he is generally free to decide whether to accept instructions from any prospective client, but any refusal to accept instructions should not be based on the race, colour, ethnic or national origins, sex or religious or political beliefs of a prospective client.
Currently, there are around 9,800 solicitors in private practice serving the public in a wide range of practice areas. Inevitably, some members of the legal profession will be engaged in matters that arise from controversial political or social events. Matters of such nature often attract heated debates involving polarised views in the public media.
One may recall there were previous incidents where abusive and unfounded criticisms were directed personally at judges involved in hearing controversial cases. The Law Society has publicly condemned such behavior. Apart from judges, lawyers representing the parties in those controversial cases may also be victimised by similar criticisms for doing their job.
As a legal representative having accepted instructions from a client, the solicitor is under a duty to act in the best interests of the client and to provide a proper standard of service.
All parties to a case are entitled to legal representation and the solicitors representing each party are subject to the same duty towards their own clients to ensure that their respective rights and interests are properly protected. As such, solicitors are simply fulfilling their role in upholding the proper administration of justice. Any attempt to smear the reputation of law firms or lawyers because they happen to represent parties with different political views must be condemned.
These fundamental rights in a solicitor-client relationship are vulnerable to erosion motivated by a myriad of reasons. We must all be vigilant in safeguarding these rights for the protection of the independence of our profession.