Destruction of Intervened Law Firm Files

“Without prejudice to the provisions of Part IIA of this Ordinance and this Schedule, the Council may apply to the Court of First Instance for an order as to the disposal or destruction of any documents in its possession by virtue of this section or section 8.” [Legal Practitioners Ordinance (Cap. 159), Schedule 2 (“Powers”), s. 7(11)]

Development

In the recent case of Council of the Law Society of Hong Kong v Tang [2020] HKCFI 2992, the High Court confirmed that, pursuant to s. 7(11) of Schedule 2 of the Legal Practitioners Ordinance, it could approve an order for the “rolling destruction” of the files of an intervened firm – namely, an order that provides for the destruction of files that are ready for destruction at the date of the order, and also as and when files subsequently become ready for destruction, pursuant to (for example) applicable limitation periods and any document retention protocol(s).

Council of the Law Society of Hong Kong v Tang applies The Law Society (Solicitors Regulation Authority) [2015] EWHC 166 (Ch), which allowed for a “rolling destruction order”, pursuant to an identical provision in s. 9(10) of Part II of Schedule 1 of the Solicitors Act 1974 (England & Wales). Both cases help illustrate some of the logistical challenges.

Some Background

Interventions with respect to law firms or the practice of a sole proprietor are serious matters. A cursory perusal of the Law Society circulars and of various case reports in the last five or so years confirms that there tend to be a few interventions each year. What underpins the Law Society’s powers is the public interest – namely, the protection of the public, clients and the reputation of the profession.

The principal grounds for intervention are set out in s. 26A of the Ordinance and the power of intervention is exercisable without the permission of the courts. Such an intervention does not involve running the practice of the law firm or sole proprietor – rather, in effect, the practice ceases to exist.

Interventions can be expensive and appear to take several years to resolve (for example, see “reserve for regulatory costs” in the Law Society’s annual financial statement). Unless the court orders otherwise, the costs of intervention are payable by the law firm or sole proprietor as a debt to the Council of the Law Society (section 10 of Schedule 2 of the Ordinance).

Monies Vest in The Council of The Law Society

The Law Society’s powers on intervention are set out in Schedule 2 of the Ordinance. “Client” and “trust” money and money in “office accounts” of the law firm, solicitor or foreign lawyer are held on trust by the Council of the Law Society for the persons beneficially entitled to them.

Documents

All the documents in the possession of the law firm or sole proprietor as part of the practice will (in effect) be taken over by the intervention agent appointed by the Law Society. Possession of the files by the intervention agent, pursuant to s. 7 of Schedule 2 of the Ordinance, assists the Law Society and its intervention agent to identify (among other things):

  • the persons beneficially entitled to the money that is held on trust by the Council of the Law Society;
  • any original documents of title or other important documents;
  • money flows; and
  • any further disciplinary matters or other matters that require investigation.

A significant factor contributing to the costs of intervention is probably the number of files and the need to index them and identify original documents. There may also be significant storage costs while the intervention lasts. Eventually, a time will come when certain files (excluding original documents of title and the like) can be destroyed – for example, often seven years since a file was closed, representing the general limitation period, plus one year (being the normal “shelf-life” of a writ of summons).

Partner, RPC

Senior Consultant and Accredited Mediator, RPC

A commercial disputes lawyer with over 35 years' experience, David has extensive experience in handling the defence of professional indemnity, financial lines and other special risks claims as well as advising insurers in relation to such claims.

David has worked on the defence of claims in various jurisdictions including England, Hong Kong, Singapore, Malaysia, the PRC, Taiwan, Bermuda and the BVI.  He also has significant experience in handling regulatory and disciplinary matters.

He has considerable experience providing general risk management advice to professionals such as accountants, solicitors, insurance brokers, surveyors and stock-brokers. 

Most recently, he has been developing a practice as a commercial mediator. David is accredited as a mediator by both the Centre for Effective Dispute Resolution (CEDR) and the Hong Kong Mediation Accreditation Association Limited (HKMAAL).