A recent Court of Appeal judgment on a case (2021 HKCA 1188, “Case”) raised some critical questions, among others, about staff recruitment in a law firm and legal visits by law firm staff to clients in custody.
Staff Recruitment in a Law Firm
As trusted advisers, solicitors play a key role in the administration of justice as Officers of the Court. Solicitors’ work covers a wide range and unqualified staff (i.e. staff who are not qualified as solicitors) are commonly engaged to support the work of a legal practice. There are currently around 16,000 unqualified staff employed in Hong Kong law firms and registered foreign law firms.
To ensure that law firms properly review the suitability of their potential employees, the Legal Practitioners Ordinance (Cap 159) (“Ordinance”) has dedicated the entire s. 53 to provisions that identify the categories of people that law firms are prohibited from knowingly employing them, unless with the Law Society’s prior written permission.
The prohibited categories include any person who (1) is disqualified from pracitsing as a solicitor or a foreign lawyer by reason of having been struck off the roll of solicitors, deregistered, suspended from practice or declared an undischarged bankrupt; (2) is the subject of an order made by a Solicitors Disciplinary Tribunal whereby the employment of such person by any solicitor or foreign lawyer is prohibited; or (3) has been convicted of a criminal offence involving dishonesty.
As part of risk management, a law firm must exercise due care in the recruitment of its staff, taking into account s. 53 of the Ordinance. For instance, with respect to s. 53(3), a law firm should specifically ask its job applicants to disclose whether they have been previously convicted of any offence involving dishonesty and then seek the Law Society’s permission prior to employing any applicant who has such a previous conviction. The firm should also check the Law Society Circulars on lists of names of persons, within the Law Society knowledge, who are prohibited from being employed in law firms under s. 53 of the Ordinance. The Law Society has also given guidance in relation to convictions that are “spent”. A job applicant may argue that his conviction has been spent and he is not obliged to disclose it even when asked upon. Section 2(1) of the Rehabilitation of Offenders Ordinance (Cap. 297) (“ROO”) provides that criminal convictions are treated as “spent” under specified circumstances.
Section 3(1)(c) of ROO provides that “nothing in [s.] 2 shall affect” the operation of any law under which the individual is “subject to any disqualification, disability, prohibition or other penalty”. Section 53(3) of the Ordinance has been held to constitute a “disqualification or prohibition” for the purpose of s. 3(1)(c) of ROO as regards that individual. Hence, the ROO does not give a job applicant the right to refuse to disclose his previous conviction on the ground that it has been spent.
All in all, the legislative intent of s.53 is clear. The section serves to ensure that law firms properly review the suitability of their potential employees and give a role to the Law Society as the professional regulatory body in deciding whether a person who has a particular background is fit to be employed in a legal practice entrusted with handling clients’ money and properties.
However, as the Case has shown, the mechanism is subject to abuse if a job candidate deliberately hides his criminal convictions from the employer law firm, or where the law firm omits to ask for such information from the candidate, using the lack of knowledge as a defence to s. 53(3). The Law Society is actively reviewing the section to examine how it can be improved and will also liaise with the Police on the procedure of criminal record check to see if a more effective channel can be created to enable law firms to verify information provided by job applicants under section 53(3).
Just a word of caution, slipshod hiring practices may lead to irreparable harm to the reputation of a law firm. In addition, the non-compliant solicitor or foreign lawyer will suffer heavy penalty. If any solicitor or foreign lawyer acts in contravention of the provisions of s.53 or of the conditions subject to which any permission has been given thereunder, his name shall be struck off the roll or his registration will be cancelled, as the case may be, or he shall be suspended from practice for such period as a Solicitors Disciplinary Tribunal may think fit.
Another issue that has been raised in the Judgment relates to legal visits.
Each of the law enforcement agencies including the Correctional Services Department, the Customs and Excise Department, the Immigration Department, the Police and the ICAC (collectively “LEA”), has its own special arrangements on visits to clients by their legal representatives. The Law Society is not in any position to grant any special permission for any person to visit clients in places of detention. The authority to permit entry of any person into places of detention is vested in the LEA. Under the LEA arrangements, apart from solicitors, barristers, trainee solicitors and registered foreign lawyers, authorised clerks (listed on the authorised clerks’ list maintained by the Law Society) are also permitted to conduct legal visits to take instructions from clients in specified circumstances. Ordinary clerks not on the Law Society’s authorised clerks’ list are not among the categories of personnel entitled to conduct legal visits under the LEA arrangements.
Applications for inclusion in the authorised clerks’ list are considered and approved by the Law Society. An application must be accompanied by a signed authorisation to the Commissioner of Police to release full particulars of criminal convictions recorded against the applicant to the Law Society and the employer of the applicant. The applications to be authorised clerks are closely scrutinised taking into consideration all relevant facts about the applicant and the employer law firm. For Law Society members, the detailed LEA arrangements on legal visits are set out in Circular 17-839.
- Solicitors to whom s. 5 of the Practising Certificates (Special Conditions) Rules (Cap. 159 Sub. Leg.) (“Special Conditions Rules”) apply must give at least six weeks’ notice to the Law Society before applying for their practising certificates. To ensure that the 2022 practising certificates will be issued in time, the Notice of Intention to apply for a Practising Certificate required under the Special Conditions Rules should be declared and returned to the Law Society by 30 September 2021.
- The professional indemnity cover for Hong Kong law firms for the 2020/2021 indemnity year will expire on 30 September 2021. The contribution for the 2021/2022 indemnity year which commences on 1 October 2021 must be paid on or before 30 September 2021.
Monthly Statistics on the Profession
(updated as of 31 July 2021):
|Members (with or without Practising Certificate)||12,535|
|Members with Practising Certificate||
10,980(out of whom 7,946 (72%) are in private practice)
|Registered Foreign Lawyers||
|Hong Kong Law Firms||
946 (47% are sole proprietorships and 41% are firms with 2 to 5 partners, 52 are limited liability partnerships formed pursuant to the Legal Practitioners Ordinance)
|Registered Foreign Law Firms||
85 (from 22 jurisdictions, 15 are limited liability partnerships formed pursuant to the Legal Practitioners Ordinance)
|Civil Celebrants of Marriages||2,165|
|Reverse Mortgage Counsellors||404|
78 (72 in civil proceedings, 6 in criminal proceedings)
|Registered Associations between Hong Kong law firms and registered foreign law firms (including Mainland law firms)||37|