The circulation of Hong Kong Lawyer covers not only legal practitioners in Hong Kong, but also those around the world. The journal’s bilingual content attracts readers from both the English and the Chinese speaking communities, including our counterparts in Mainland China, Taiwan and Macau (the “Region”).
With the opening up of the legal service market in the Region, there are many opportunities for our legal profession to interact with Chinese-speaking lawyers. Most practitioners have excellent Chinese language skills and language proficiency is not an issue. Rather, the major issue arising from such interaction is the confusion and resulting misconception caused by the statutory Chinese translation of “barrister” as “大律師” (big lawyer) in the Legal Practitioners Ordinance.
Unlike the other jurisdictions in the Region, Hong Kong maintains a split legal profession. Lawyers are divided into two distinct branches - solicitors and barristers. A closer look at the qualification route and the nature and scope of work of each branch will explain how much has been lost in the translation.
First, the academic requirements for intending solicitors and barristers in Hong Kong are the same. Both are required to complete a qualifying law degree and the postgraduate certificate in laws course before entering into the vocational training stage. Second, the vocational training period for intending barristers is shorter than that required of a trainee solicitor. To be admitted as a solicitor, one must complete two years of training in a law firm, whereas for admission as a barrister, one must complete six months of pupilage in a barrister’s chambers.
Solicitors engage in a wide range of legal services relating to capital markets, banking and finance, mergers and acquisitions, real estate and construction, family and probate, dispute resolution and many other areas.
One important distinction in the past was that barristers had higher rights of audience, i.e. the Court of First Instance and above, while solicitors did not have such rights. However, since 2012, with the amendments to the law and the introduction of an assessment regime, eligible solicitors are able to gain rights of audience through either the exemption or the assessment route and appear as Solicitor Advocates before the High Court and the Court of Final Appeal. With solicitors gaining higher rights of audience, solicitors are able to take up the advocacy work that was previously reserved for barristers.
Apart from advocacy in court, solicitors have also been actively involved in arbitration-related advocacy work for years. Many solicitors specialise in various fields of law, and some are as specialised as any barrister in the same field.
Since 1996, England and Wales has started to accept applications from solicitors for appointments as Queen’s Counsel and solicitors were awarded the honour as early as in 1997. For 2017/18, five solicitor advocates were recently appointed Queen’s Counsel in England and Wales.
Section 31A of Hong Kong’s Legal Practitioners Ordinance currently provides for the eligibility requirements for the appointment as a Senior Counsel, and only barristers are eligible to be so appointed. The Law Society addresses this anomaly by proposing amendments to section 31A to allow solicitor advocates who have the requisite experience and standing in advocacy work to enjoy the same opportunity to be accorded the status of “Senior Counsel”.
Not only is there no distinction in seniority between the two branches of the profession, the academic qualifications and the nature and scope of work of both branches are similar and to some extent overlap with one another.
Yet, the misconceived seniority of one branch over the other comes when a solicitor and a barrister are introduced together in Chinese. The solicitor is introduced as ‘lawyer’, while the barrister is introduced as ‘big lawyer’. As a result, the solicitor will immediately and automatically be perceived as of a junior grade to the barrister. This is solely caused by the Chinese translation and wholly unfair to the solicitor especially in professional networking occasions when he simply has no chance to correct any misunderstanding.
Unfortunately, the Chinese translation is an official term provided for in the Ordinance and to change it requires consensus from all relevant stakeholders, which can be a challenge. It therefore falls on those who see the unfairness to actively educate others who are unfamiliar with the structure of a split legal profession about the true position of the two branches, and make up for what has been lost in translation.