The 2018 Index of Economic Freedom, an annual guide published by The Heritage Foundation, Washington’s No. 1 think tank, was released on 2 February 2018. Hong Kong tops the Index again as the world’s freest economy for the 24th consecutive year. Its overall score has increased with improvements in government integrity, business freedom and monetary freedom, and is well above the regional and world averages.
Hong Kong adopts a free trade policy, which applies to both merchandise trade as well as trade in services. With respect to the legal services sector, consistent with the free trade policy, our aim is to achieve services liberalisation to enable Hong Kong’s legal practitioners to compete with their overseas counterparts on a level playing field. Locally, the open regulatory regime for foreign lawyers also aligns seamlessly with the territory’s free trade policy approach.
From time to time, I receive enquiries from our international counterparts on the extent of liberalisation with respect to the practice of foreign lawyers in Hong Kong. I would like to take this opportunity to elaborate on the subject.
An overseas lawyer is permitted to offer his services to the public in Hong Kong as a practitioner of foreign law if he registers himself as a foreign lawyer with the Law Society in accordance with the requirements set out in the Legal Practitioners Ordinance (‘LPO‘) and its subsidiary legislation. The requirements are reasonably standard. For example, the applicant must be of good standing, qualified to practise the law of his jurisdiction of admission and covered by professional indemnity insurance in a manner and extent similar to the indemnity provided to a Hong Kong solicitor under the statutory Professional Indemnity Scheme.
The practice requirements applicable to a foreign lawyer in Hong Kong under the Foreign Lawyers’ Practice Rules mirror those applicable to a Hong Kong solicitor under the Solicitors’ Practice Rules. A Hong Kong solicitor cannot practise on his own account or in partnership if he has not been employed as a solicitor of a Hong Kong law firm for at least two years after his admission. Similarly, if a foreign lawyer does not have at least two 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.
Foreign lawyers can only advise on the laws of their own jurisdictions or international law. For the protection of the public, they cannot advise on Hong Kong law as they are not qualified as Hong Kong solicitors. Similarly, Hong Kong solicitors cannot advise on the laws of other jurisdictions in which they are not qualified to practise.
There is no residency requirement for registration as a foreign lawyer in Hong Kong. Nevertheless, to ensure proper indemnity protection, 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.
Foreign legal services are also permitted on a temporary basis to facilitate a lawyer with foreign qualifications, who is not registered as a foreign lawyer, to serve the public in Hong Kong as a practitioner of foreign law provided that he does so from within a registered foreign firm or a Hong Kong firm for a limited period (not more than three continuous months or 90 days in any 12 month period).
Foreign practitioners are also welcome to establish a commercial presence in Hong Kong by applying to the Law Society for registration of a foreign law firm. Once a foreign law firm is set up and registered, it can form an Association with a Hong Kong law firm and apply to register the Association with the Law Society. The two firms in a registered Association are then permitted to share fees, profits, premises, management and employees between them. This avenue of co-operation allows foreign lawyers and Hong Kong solicitors to work closely together paving the way for a full integration of their services when they are ready to do so in accordance with the statutory requirements. Since the commencement of the statutory foreign lawyer regulatory regime in 1995, 72 foreign firms have subsequently become localized as Hong Kong law firms.
With respect to professional discipline, foreign lawyers, same as Hong Kong solicitors, are subject to the powers of the Solicitors Disciplinary Tribunal Convenor to dispose of complaints under the LPO. In the event that the Tribunal Convenor has to constitute a Solicitors Disciplinary Tribunal to hear a case and the matter relates to a foreign lawyer at the time, the Tribunal Convenor is obliged under the LPO to appoint a foreign lawyer to be a member on the Tribunal, in addition to the standard Tribunal composition of two solicitors and one lay person.
We embrace diversity and welcome talent from other jurisdictions to join and strengthen our legal services sector. The current open regulatory regime for foreign lawyers achieves the right balance between ensuring free competition for all on a level playing field, maintenance of high professional standards, and protection of clients’ interests.
If members have any views on the operation of the foreign lawyer regulatory regime in Hong Kong or have encountered difficulties in entering the legal service markets in other jurisdictions, you are most welcome to share with us at email@example.com.