Professional Indemnity Ought to Cover Pro Bono Legal Services

It is gratifying to observe that more and more lawyers are willing to provide pro bono legal services to the needy public. At present, there are over 1,000 volunteer lawyers participating in the Government funded Free Legal Advice Scheme under the Duty Lawyer Service to provide free preliminary legal advice to members of the public without means testing at nine District Offices, handling over 6,000 cases per year. In 2013, the Law Society launched a Free Legal Helpline (Tel: 8200 8002) where solicitors would offer free legal advice to the public on matters relating to personal injuries, matrimonial law, criminal law and mediation, and so far more than 8,000 calls have been handled. In addition, various non-governmental organisations and offices of the Legislative and District Councillors have also been engaging solicitors in providing different forms of free legal advice and consultation services to the public. However, our existing regulatory framework relating to professional indemnity coverage was not designed with pro bono services in mind to ensure that solicitors are sufficiently covered when they perform such services.

The compulsory Professional Indemnity under the Solicitors (Professional Indemnity) Rules (Cap. 159M) (“the Indemnity Rules”) covers only legal services provided by a solicitor as part of the practice of a law firm. On 1 August 2016, the Law Society drew its members’ attention that if the pro bono legal services are offered in the solicitor’s personal capacity and not as part of the practice of a law firm, the pro bono services will not be covered by the Indemnity, and in such circumstances, in order not to breach r. 6(1) of the Indemnity Rules, an exemption must be obtained pursuant to r. 7 of those Rules (see Circular 16-609). Guidelines for application for such an exemption have been promulgated, but it seems that it does not work well in practice, as so far few applications have been made and no exemption has been granted. One major obstacle is the requirement that the organisation which engages the volunteer solicitors to provide the pro bono legal services must have professional indemnity insurance in a manner and to an extent similar to that provided in the Indemnity Rules. But it seems unrealistic in practice for individual NGOs and offices of the Legislative and District Councillors to negotiate separately with insurance companies and purchase the requisite professional indemnity insurance.

One easy solution is for the Government to purchase a Master Professional Indemnity Insurance Policy to cover all solicitors (including in-house solicitors) who provide pro bono legal services to the public under any legitimate scheme run by NGOs and offices of the Legislative and District Councillors and endorsed by the Law Society. The endorsement requirement can help to make sure that the pro bono services provided are legitimate and comply with all applicable professional ethical standards and requirements, including but not limited to polices on confidentiality, record keeping and conflict of interests so that an exemption from the Indemnity Rules can be granted by the Law Society Council under r. 7.

It is hoped that Government can do more to encourage more members of the legal profession to volunteer to provide pro bono legal services to the needy public to improve the access to justice and contribute towards upholding the value of everyone being equal before the law.

Jurisdictions: 

The University of Hong Kong