Managing Absences for Sole Practitioners

As solicitors, we are trained to be trusted advisors of our clients. We analyse a client’s position, identify the legal issues, explain the practical implications and provide advice on ways to protect the client’s legal rights. This is what solicitors typically do day-in and day-out. To ensure the advice we give covers the relevant issues comprehensively, we meticulously consider every detail of the case leaving no stones unturned.

Solicitors give their best to serve clients. For some, their undivided attention to client matters has even resulted in a neglect of their own affairs. This is particularly the case with sole proprietorships.

As of the end of February 2018, there were 892 Hong Kong law firms. Out of them, 423 (47 percent) are sole proprietorships. A sole practitioner shoulders the heavy burden of running the legal practice on his own. To ensure that clients’ interests are protected at all times, there are regulatory requirements governing arrangements in the event of an absence of the sole practitioner.

Every office of a legal practice must be managed by a practising solicitor who is normally in attendance at that office during all hours when it is open to the public. Further, the office must also be attended on each day by a solicitor with an unconditional practising certificate who will spend sufficient time to ensure adequate control of the staff and afford adequate facilities for consultation with clients (Rule 4A of the Solicitors’ Practice Rules).

A sole practitioner must therefore make adequate standing arrangements for his practice to be managed during his absence in accordance with the minimum standards of supervision provided in the Solicitors’ Practice Rules. Absences for holiday breaks are often scheduled in advance and arrangements during such a period of absence can be put in place generally without much difficulty.

However, some absences, like illness, may occur unexpectedly. To enable the practice to continue with minimum interruption, standing arrangements should be in place at all times. For example,

- There must be a willing solicitor who holds an unconditional practising certificate with sufficient seniority and relevant experience ready to supervise the practice in a sudden absence of the sole practitioner;

- Proper arrangements must have been made to notify, when necessary, relevant parties to facilitate the supervision of the practice by the solicitor including, for instance, the manager of the Professional Indemnity Scheme to ensure that there is indemnity cover for the solicitor as well as bankers of the practice to ensure that the solicitor can operate the client and office accounts.

It is also important that the staff and the family of the sole practitioner are kept informed of these standing arrangements and the identity of the solicitor who has agreed to assist to supervise the practice so that they know exactly what to do and who to approach when the circumstances require them to act immediately.

Incidentally, the appointment of an attorney under the Enduring Powers of Attorney Ordinance (Cap. 501 of the Laws of Hong Kong) is worth a mention in this context. An enduring power of attorney (‘EPA’) under the Ordinance allows a donor, while he is still mentally capable, to appoint an attorney to take care of his financial matters in the event that he subsequently becomes mentally incapacitated. While a general power of attorney will cease to be effective in such situation, an EPA will “endure” the donor’s mental incapacity and give the attorney the power to continue to take care of the donor’s financial affairs.

In the Solicitors’ Practice Rules, there are also provisions dealing with the unfortunate event of the death of a sole practitioner. Under rule 5AA of the Rules, a sole practitioner is required to make a will containing provisions for the management of his practice after his death. The sole practitioner has to provide information to the Law Society regarding the location of his will, the identity and contact details of his executors and of the solicitor appointed to manage his practice upon his death. The purpose of these requirements is to direct the mind of a sole practitioner to his own affairs. He has to decide what arrangements he wishes to put in place with respect to the management of his practice in the event of his death and make the necessary preparation. This is important as the existence of proper arrangements can avoid the prospect of an intervention by the Law Society, the cost of which is high and is to be borne by the beneficiaries of the estate.

The requirement to provide the relevant information to the Law Society under rule 5AA of the Solicitors’ Practice Rules is a continuing obligation in that any changes to the information filed upon commencement of the sole proprietorship must be submitted to the Law Society within 14 days of the change. This ensures that the record kept by the Law Society in the rule 5AA form can be relied on as the current arrangement. We have had experience of solicitors named in the form refusing to act as solicitor managers on the basis that they were not aware of the appointment or they had never consented to act.

Sole practitioners are therefore urged to check from time to time the details in the rule 5AA form that they had filed with the Law Society to ensure that the information is still accurate. If there is any update, please advise the Law Society as soon as possible. The rule 5AA form can be downloaded from the Law Society website.

Jurisdictions: 

Secretary-General, Law Society of Hong Kong