Why all this secrecy in the legal profession?
Legal professionals around the world form a key component of a healthy civil society: they help with the administration of justice and act as the guardians of our rights. Lawyers in Hong Kong take on additional significance in their role of maintaining the rule of law under the one country, two systems concept. Over the years, the two legal professional bodies have made vital contributions through their authoritative expressions of concern on weighty issues ranging from the proposed national security legislation to drug-testing in schools. Such input from legal professionals has always been welcomed.
All this confidence placed in it means the profession must maintain high standards of conduct. But the disciplinary system for lawyers lacks transparency and gives the public little information about how or why lawyers are found guilty of professional misconduct. The law requires disciplinary proceedings for lawyers to be heard behind closed doors unless the person facing the allegations requests otherwise. Judgments in these cases are also generally kept confidential. This is not satisfactory.
Currently, there is no general practice to make public judgments of the Barristers Disciplinary Tribunal, and all the hearings are conducted behind closed doors. The only evidence that a barrister has been found guilty of misconduct is a note made against his name on the Roll of Barristers at the High Court. This contradicts the principles of open debate and transparency, usually preached and promoted by the legal community. Both sides of a case are debated in the open and court judgments are made publicly available. But not so in a disciplinary hearing. As a result, the public does not know why a lawyer has been found guilty of misconduct.
The revelation last week that the next chief justice, Mr Justice Geoffrey Ma Tao-li, personally lodged a complaint against former solicitor general Daniel Fung Wah-kin SC perfectly illustrates the unsatisfactory nature of the system. Fung was ordered to pay a penalty of HK$300,000 last month after being found guilty of professional misconduct by a Barristers Disciplinary Tribunal.
Yet the public can only speculate as to the circumstances that led to that finding. Rather than preventing judgment by the court of public opinion, the system has promoted it by raising questions about the facts of the case, without providing the answers. We do not, for example, know what Fung said in his defence.
The opportunity to use the case to clarify issues in the Bar's Code of Conduct has also been missed, and it is the barristers who are worse off as a result. Fung was found to have failed to draw the attention of the Court of Appeal to legal authorities unfavourable to his client in a case in 2005. The judgment, if made public, might help define the fine line between acting in the interests of the client, and a lawyer's duty to the court. For a profession which has built up its wisdom through the review of cases and the adherence to precedent, the failure to promulgate such judgments for further debate is doubly baffling.
Recently, the Bar has made admirable efforts to be seen as modern and approachable and has set up new committees to review some of its practices. A special one on its code of conduct is in place and should not hesitate to include a review of the disciplinary proceedings process and the law governing it so that, at the very least, the judgments are promulgated for public inspection. In this way, the Bar can be seen to be at the forefront of a modern society, and not behind it.