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Jane Moir

THE NOON DAY gun, tea at the Peninsula, Government House, the Jackson Room at the Hong Kong Club: they are still there, vestiges of a colonial past.

Likewise our barristers continue to don horsehair wigs and dark robes, immune to passing centuries and changing sovereignty. Judges are still addressed as M'Lord and fellow advocates 'my learned friend'.

The barristers have also kept a firm grip on exclusive powers to conduct a High Court trial.

Hong Kong is the last significant jurisdiction to arm barristers with these rights. It is all undoubtedly steeped in rich and colourful history, but has this become a colonial anachronism?

The remaining 85 per cent of the legal profession who are barred from conducting a High Court trial have responded with an emphatic yes.

Last week the Law Society released its latest salvo - a report outlining support of the vast majority of solicitors in Hong Kong.

Why, it asks, do modern barristers still have a stranglehold on rights of audience, referred to as an 'artificial and arbitrary monopoly' by the Law Society?

Independence of the Bar, the Hong Kong Bar Association responds. Extending advocacy rights would lead to an undesirable 'fusion' of the profession and erode its independent spirit.

Lawyers in turn utter the magic words: 'Legal fees will be lower.' Once you eliminate the duplicated costs of briefing, updating and reviewing with counsel - who often comes in just before a trial begins - prices should come down. Competition could also give cost-conscious litigants an edge.

The price factor has become acute as Hong Kong's litigation system continues to be the exclusive domain of the few who can afford it. There is also the concern that the high number of people representing themselves in court is putting an increasing strain on the system.

Yet solicitors at the high end of the market do not come cheap, either. There is no dead-set guarantee that trial fees would be slashed across the board.

It would however at least give consumers more choice and bargaining power. Of the 787 barristers in Hong Kong, even the Bar admits there is a certain amount of dead wood. And at the top end of the market, the prices are breath-taking.

At first, it is unlikely there would be a sudden glut of solicitor-advocates entering the market. This has not been the experience in Britain, where rights were extended to solicitors in 1990.

This also leaves the Bar Association's fusion argument wanting. Fusion has not emerged in Britain. Solicitors in Hong Kong claim not to desire an infiltration of the Bar, just a slice of the action to complement their existing roles.

This sums up years of bickering between the two arms of the profession. But what of the judicial powers who could actually make it happen?

In 1996, the solicitors were given their answer. Let's break up the monopoly, the Government said. This would 'increase competition between solicitors and barristers, improve access to barristers and lead to improved cost-efficiency'.

In a consultation paper drafted by the then-Attorney General, it was stated: 'The administration thinks that rights of audience should be based on competence, not on whether a lawyer is a barrister or solicitor.'

A bill was drafted, and then disappeared some time around 1997. The Law Society has thus found itself back at square one. It has re-drafted its proposals and is awaiting dialogue with judicial chiefs.

The irony is that they have to convince these officials of something they already agreed to six years ago.

Jake van der Kamp is on leave.

moir@scmp.com



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