Hong Kong has been ranked the world’s freest economy for the 22nd consecutive year in 2016 by the Heritage Foundation. As pointed out by the Foundation, the implementation of prudent economic policy within a stable and transparent legal environment has been the cornerstone of Hong Kong’s continuing achievement in maintaining the world’s freest economy.
The sustainability of a free and open market in an orderly manner is, to a large extent, attributable to a disciplined legal environment. The practice of law in Hong Kong is a highly regulated profession because lawyers play an important role in society. We promote the fair administration of justice for all, help others realise and protect their rights and facilitate true access to justice. In short, we form the backbone of the legal system which affects almost every aspect of our society.
In addition to the fulfilment of the requisite academic qualifications and training, solicitors are subject to stringent ethical standards and professional indemnity insurance requirements. To qualify and practise as a solicitor in Hong Kong, a person must have a qualifying law degree, undergone the required postgraduate practical training and traineeship, been admitted on the Roll of Solicitors in Hong Kong and have complied with the statutory indemnity rules. The current statutory level of indemnity for each claim is HK$10 million. Many law firms take additional insurance to cover any liability in excess of HK$10 million. All of these requirements serve to protect the interests of the public. They ensure that qualified solicitors are trained and regulated to offer legal services to the public competently and ethically and that in case of defaults in practice, the public will be protected with indemnity insurance cover.
Running a legal practice is no easy task. In addition to knowledge in the black letter law, solicitors must familiarise themselves and ensure compliance with the professional ethical rules and operational requirements on their legal practice.
Every office of a law firm must be supervised and managed in accordance with the statutory requirements. Under the Solicitors’ Practice Rules (Cap. 159, Sub. Leg. H), every office of a law firm open to the public must be attended by a solicitor who holds an unconditional practising certificate and who spends sufficient time in the office to ensure adequate control of the staff and consultation with clients. The number of unqualified staff employed by a law firm is also strictly regulated to a ratio that ensures the exercise of proper supervision by solicitors over unqualified staff. A law firm shall not employ unqualified persons in a number more than six plus eight times the number of full time solicitors in the firm. Unqualified staff also includes registered foreign lawyers. A principal is personally responsible for complying with the Solicitors’ Accounts Rules and the Accountant’s Report Rules. It is common to engage unqualified staff to assist in the clerical and administrative work incidental to the legal practice. However, it is important to ensure that all work is properly supervised by solicitors to ensure compliance with the applicable rules and regulations.
A principal of a law firm is prima facie responsible for all acts and omissions of his firm and this extends to the acts or omissions of his partners and staff. He therefore cannot escape responsibility for work carried out in the course of his practice by leaving it to his staff. (Commentary 1, Principal 2.03, Hong Kong Solicitors’ Guide to Professional Conduct, Vol. 1).
Other safeguards to protect the independence of solicitors against unqualified people exerting improper influence in legal practices include the prohibition, subject to some exceptions set out in r. 4 of the Solicitors’ Practice Rules (Cap. 159, Sub. Leg. H) on sharing of profit costs by a solicitor with anyone who is not a solicitor practising in Hong Kong.
The Law Society takes a serious view of any breach of the standards of practice supervision and management. These standards underpin the independence of our profession and must be strictly adhered to.
In 2015, the Law Society received a number of complaints on professional misconduct against practitioners and employees of law firms. The misconduct alleged in these complaints mainly involves breaches of the principles in the Hong Kong Solicitors’ Guide to Professional Conduct Vol. 1 (“Conduct Guide”) (42 percent) and the Solicitors’ Practice Rules (27 percent).
The Law Society provides guidance to members on matters relating to the Legal Practitioners Ordinance (Cap. 159) and its subsidiary legislation, the Law Society’s Practice Directions and the Conduct Guide. We handle many enquiries on ethical issues and practice requirements by telephone or email on a daily basis. Further, we have also compiled a set of frequently asked questions which are posted on our website so that members can access them in their own time.
The rules are not rocket science and very often, practitioners just need a simple reminder. The Law Society is always ready to provide support to our members. Practitioners are welcome to direct enquiries on practice and ethical issues to our Regulation and Guidance Section.