Strong case for solicitors' advocacy in higher courts

PUBLISHED : Saturday, 01 December, 2007, 12:00am
UPDATED : Saturday, 01 December, 2007, 12:00am

Whether solicitors should have the right to argue their clients' cases in higher courts instead of briefing barristers is a question that has been debated with some heat in Hong Kong, but long since settled in some places with comparable legal traditions. England and Wales, from where our system originates, opened up their higher courts to solicitors more than a decade ago and have had little reason to look back.

Subject to safeguards for the public interest and the quality of advocacy, Hong Kong should follow suit. The report of a judiciary working party on solicitors' right of audience agrees. The chief justice has asked the government to turn its recommendations into legislation.

For the public, the reform would mean access to a larger pool of courtroom advocates, and that a client whose case went to a higher court would need only one lawyer instead of two, unless he desired or was advised that a barrister should be briefed to argue the case - and he could afford it.

People unfamiliar with English common-law traditions find it difficult to understand the distinction between the two branches of the profession in Hong Kong. If a member of the public wants to engage the services of a lawyer he approaches a solicitor who will prepare a case. If it goes to a higher court the client also needs to be represented by a barrister to argue the case before a judge, although barristers are often hired for cases in the lower courts too.

When England and Wales opened up its higher courts to solicitors, barristers there issued dire warnings about consequences that have not come to pass. People still want to be represented by barristers. Bright law graduates still want to go to the bar.

In Hong Kong, solicitors already act for their clients in the magistrates and district courts, and in-chambers hearings in the Court of First Instance and the Court of Appeal. It makes no sense to prevent them addressing judges in higher courts.

That said, an independent bar remains of paramount importance. Barristers and solicitors have different working arrangements and traditions. Because they work for themselves, barristers often tend to be more independent-minded and outspoken on legal issues, especially in defence of the rule of law. We still need that vibrancy. But there is no evidence that higher rights of advocacy for solicitors will undermine that.

However, care must be taken to see that the quality of legal representation is not sacrificed. We want to maintain high standards. Only solicitors who measure up to them should be allowed to address the higher courts. It is good therefore that the judiciary working party has recommended that solicitors applying for higher-audience rights should be experienced, particularly in recent courtroom advocacy work, and accredited by an independent body on which judges, lawyers and the community would be represented.

From the profession's point of view, there is a tendency for judges, particularly in the higher courts, to be drawn from the ranks of the bar. Hopefully higher rights of audience for solicitors will produce a wider pool from which judges in top courts can be drawn.

After years of debate the bar has apparently softened its position on the change. That is sensible, given the arguments for it and that dire predictions have not been borne out elsewhere. The profession tends to be conservative and it is good to see it embracing change instead of arguing for the status quo.