Barristers to study legality of advert ban
Bar Council acts after appeal court ruling in favour of doctors
Barristers are looking into whether the ban on them advertising is against the law and should be relaxed after appeal judges ruled that a similar ban on doctors' advertising infringed their freedom of expression.
Bar Association chairman Rimsky Yuen Kwok-keung said the Bar Council was setting up a special committee to study the legal implications of the judgment and the extent to which barristers in other jurisdictions were allowed to advertise their practices. The council is the association's governing body.
'Our objective is to make sure that the code of conduct of the Bar is not against the law,' he said. 'The Court of Appeal ruling has brought in the constitutional and human rights dimension to the issue of practice promotion. It is no longer only a pure policy issue for us.'
The Court of Appeal last month upheld a lower court ruling that the Medical Council's professional code on advertising had breached the freedom of expression enshrined in the Basic Law and Bill of Rights. It also said the public had a right to access information about individual doctors.
Mr Yuen, who is embroiled in a row with some Bar members over his acceptance of a post on the Guangdong government's top advisory body, said members had twice voted against the idea of removing the advertising ban, at two annual general meetings between 1999 and 2002. He raised the issue at a council meeting this month after discussions with some members.
The doctors' case was launched by the Hong Kong Sanatorium and Hospital deputy medical superintendent, Kwong Kwok-hay.
He challenged the constitutionality of the Medical Council's blanket ban on doctors advertising in newspapers and magazines, and on speaking publicly about their experience 'in a manner which can be construed as promotional'.
Under the Bar's code of conduct, barristers cannot do anything with 'the primary motive of personal advertisement' and need Bar Council permission before appearing in robes in a film or television programme.
In assessing whether the doctors' judgment could be directly applied to the Bar, Mr Yuen said the committee would consider rulings of the European Court of Human Rights, some of which were inconsistent with the findings in the Medical Council case.
'Some of these cases distinguished the legal from the medical profession, in terms of the need to protect the Bar's image and tradition, and different standards applied to the public's right to information,' he said. A patient could approach a doctor directly by visiting his clinic but anyone needing a barrister had to be referred by a solicitor. 'Do lay clients really need the information of barristers to be put in the public arena?' he asked.
In England and Wales, where advertising rules for barristers had been relaxed, they could have their own websites and print brochures. 'We cannot do the same in Hong Kong.'
In contrast, a solicitor in Hong Kong can advertise a practice 'in any way he thinks fit', as long as the information is not misleading or deceitful.
University of Hong Kong law professor Michael Wilkinson said there was every reason to think the Bar would change its rule voluntarily.
Mr Yuen said he did not want to comment on the controversy over his appointment to the Guangdong Chinese People's Political Consultative Conference.
