Barristers face battle for centre stage

PUBLISHED : Saturday, 27 February, 2010, 12:00am
UPDATED : Saturday, 27 February, 2010, 12:00am

The sight of a barrister in his robed, androgynous attire has often been likened to that of an actor on the Elizabethan stage - a Renaissance man playing out the dilemmas of justice before a public audience.

Despite being more than 9,000 kilometres from the royal courts of England, and having gone through a change of sovereignty, the courts of Hong Kong retain much of the ceremony, regalia and professional codes of that legal system.

But Hong Kong's barristers face significant changes in the legal landscape - changes that could undermine the platform on which they are used to performing and take away the privileges they have enjoyed as the leading character in the courtroom.

The civil justice reforms that took effect in April have put new emphasis on mediation as an alternative means to resolving disputes rather than the lengthy and expensive litigation process.

A report by a working group chaired by the secretary for justice has just been completed. It makes 48 recommendations to change the legal landscape, with the express objective of installing a 'new culture' of harmony and mediation rather than litigation in an adversarial culture.

Late last year the Legislative Council also completed amendments to laws regulating legal practitioners to allow experienced solicitors to acquire the right to advocate in higher-level courts, where barristers previously held a monopoly on speaking rights. Applications for such higher rights are expected to be assessed by the end of the year.

Taken together, the changes would seem to reduce the opportunities for a barrister to do what he or she does best - advocate opposing arguments - while at the same time allowing solicitors the right to practise the same trade. Is the nature of the profession about to change?

Barristers are widely perceived as being aloof and antiquated, working in offices festooned with leather-bound books and with thick carpets and heavy leather and wooden furniture, even though they are in modern skyscrapers. Indeed, barristers often take pride in the formal etiquette that is required of them.

Bar Association chairman Russell Coleman remembers the day he realised he would be wearing his 'junior's robe' for the last time in court, since his elevation to senior counsel meant the wearing of a 'silk' to signify a higher order of precedence.

'I remember saying to the judge, 'I hope you just indulge me if I thank my robe',' he said.

'Maybe I'm an overemotional chap, but I think you become very attached to the things around you. It's quite an odd feeling to have to lose that, even if it brings about the perceived benefit of a new outfit in silk.'

There are more than 4,500 practising solicitors in Hong Kong in about 660 firms, the largest of which have around 160 solicitors. By comparison, there are only about 800 barristers, who operate individually but share common office facilities.

While both are legal professionals, barristers specialise in advocacy and can only be instructed to represent clients in a case through a solicitor.

And since solicitors work in a more conventional office environment and receive a monthly salary, whereas barristers mostly work independently and receive income sporadically, fewer than 10 per cent of law students want to be barristers.

Last year the Bar Association relaxed its rules regarding practice promotion, effectively allowing barristers to display simple information about themselves through media such as the internet. However, one year on, very few chambers have set up their own websites.

Coleman said the profession had not been particularly keen to take up this opportunity in the first place, and there had been a significant number of abstentions when the decision was put to the vote.

'In the end, it changed because the law moved on,' he said, referring to a court decision ordering a relaxing of the rules for medical practitioners.

Alexander King, a senior counsel who has a website in both English and Chinese for his Liberty Chambers, said it offered him and other barristers a new channel to interact with clients and students interested in the law.

'All the pupils who come to us say they have been to our website,' he said.

He believes many other students he has accepted felt more attracted to becoming barristers rather than solicitors when they saw the profession could be more modern than they first thought. King's chambers were designed by Philip Liao Yi-kang, an award-winning architect, to make the workspace feel modern, friendly and functional.

Despite these changes, King stresses that a balance has to be struck between modernising the profession and upholding the dignity and integrity of their work. Photographs of the office are forbidden and he said he limited the website to simple information, free from self-congratulatory notices.

'At the end of the day, this is still a profession of ethics,' he said.

Barristers involved in criminal work, such as King, are unlikely to be affected by the changes, especially as mediation and the civil justice reform are not going to affect criminal work. Criminal trials will continue as before, with barristers defending clients, cross-examining witnesses and making speeches to judge and jury.

And although solicitors can now gain rights to represent clients in higher courts, even in criminal cases, the president of the Law Society, Wong Kwai-huen, said it was unlikely that solicitors would want to take on such work themselves.

'I expect there will be a surge of applications [for higher rights] in the first year, but only because it is there,' he said. 'I expect solicitors will still want to instruct specialists in advocacy to conduct the main court work. At the same time, it would not be cost-effective to keep a specialist advocate in employment with the firm, since most big firms concentrate on financial deals rather than litigation.

'At the end of the day, the advocacy work will still go back to the barrister,' Wong said.

Mediation has emerged recently as an alternative method of resolving disputes, and mediation training courses are oversubscribed, while the first Hong Kong Mediation Handbook is now in its second print run. In theory, if more potential cases reach a mediated settlement before going to litigation, barristers' work opportunities should be reduced.

But Coleman believes there will still be plenty of work for barristers, because at the end of the day there will still be plenty of cases that need an authoritative ruling. Revealingly, though the probate battle between Nina Wang Kung Yu-sum's charitable foundation and her fung shui master, Tony Chan Chun-chuen was decided by a judge who was a member of the working group on mediation, there was no mention in his judgment of mediation being an alternative.

The night before he handed down that judgment, Mr Justice Johnson Lam Man-hon said at a mediation conference: 'Of course there are cases where parties are fighting about some fundamental principle. For example, there are judicial review cases about fundamental principles of law; like the one I am dealing with ... we would obviously not ask the parties to consider mediation. And for those cases, the parties want the court to make decisions binding for the future. That may be the sort of case where the court would understand why parties would not want to go to mediation.'

Coleman said: 'The Bar is a profession which has constantly changed, but I think in an evolutionary rather than revolutionary way. Whether you are talking about change brought about by practical things such as use of new technology, or by changes in rules, or changes in underlying law - there's generally a gradual change.

'What individual barristers do when they enter their chambers now, compared to 50 years ago, I'm sure would look radically different. But a lot of that would be the trappings of it, or the means of practice. Ultimately, the aim of trying to get at the relevant evidence to make good the points you wish [within the confines of the law] is essentially the same job.'

And what about the formal dress to which barristers are so attached? In 2008 regulations on formal court dress were relaxed in the courts of England and Wales, albeit with much opposition from judges and barristers. Ironically, in Hong Kong, because of the unique concept of 'one country, two systems', and the sensitivity over anything that might seem like an erosion of this, reform of court dress is unlikely to happen soon.

'In Hong Kong there is a strong argument that it provides a visible sign of the continuity of the pre-existing system - you can see that that's continued,' Coleman said.

Holding court

There are around 4,500 practising solicitors in Hong Kong

Barristers are a much rarer breed and number about: 800