Jake's View

This city's legal system courts disaster for the poor

By criminalising lawyers who work on a no-win, no-fee basis, Hong Kong maintains justice as the exclusive preserve of those who can afford it

PUBLISHED : Thursday, 04 April, 2013, 12:00am
UPDATED : Thursday, 04 April, 2013, 3:35am

A barrister was sentenced to 3½ years' jail yesterday for what a judge said were "obnoxious" deals to buy into his clients' lawsuits and gain more than HK$1.6 million from their damages payments.

SCMP, March 27


Oh, how disgusting. And what made it particularly obnoxious, said the judge, is that this barrister had dealt directly with the five clients involved instead of telling them to approach him through a solicitor.

How unspeakably repugnant. He dared to eliminate a needless step in litigation and thus deprived a professional colleague of fee income that could have been extracted from these clients for no real service to them. And he was only sentenced to jail for it? Bring back the noose.

This, remember, was piled on the even more heinous offence of champerty - representing litigants for a share of the proceeds of the action rather than for a fee.

Yes, indeed, we can but shake our heads in dismay. The prosecution could find only one other case in the whole world of proceedings against champerty: a local solicitor whose conviction was quashed by the Court of Final Appeal last year, but we know the truth of the matter.

It is, as District Court Judge Amanda Woodcock pronounced last week, that this criminal barrister's conduct "posed a genuine risk to the court process". There you have it, a genuine risk to the court process, no less.

My goodness. If this corrosion of court process continues, pretty soon barristers will no longer wear those funny hats of bleached horsehair or black gowns of the sort once favoured by teachers to protect their clothes from chalk marks in the days that blackboards and chalk were still found in classrooms.

Yoo-hoo, down there. Knock-knock, anyone awake? Smell the coffee. We're in the 21st century, here. It's safe for you lawyers to come up out of the 17th now.

I shall stake out my position. In my book champerty is not an offence but a reform opportunity to extend the benefits of civil justice to millions of people who cannot at present afford it and must suffer injustice without redress.

We shall thus give champerty its proper name - contingency fee. Let lawyers take on the risk of a lawsuit if they think it has a good chance of success. If they win, they take a share of the winnings. If they lose, the litigant pays nothing.

We should adopt one other reform at the same time - class action lawsuits. Let anyone join his or her lawsuit to that of someone else who has exactly the same grievance. With these two reforms, we will have justice for all at last.

But look at those heads shaking in the legal community. No, no, no, can't have that. It will never work. You don't understand. You're an outsider.

Have you ever noticed that the best way of getting a unanimous opinion out of any group of people is to threaten their income? You will see an immediate case of it whenever you mention contingency fees to lawyers. Let's take just two of their putative objections. I don't have space here for more.

The first is that we already extend the benefits of justice to the poor through making legal aid available to them.

Yes, that's one way of looking at it. The other way is that legal aid is a means by which the criminal justice system speeds up the convictions process. It's not possible to make a decent living from vigorously defending people on legal aid fees. Far easier just to fit into the process and shovel them quickly along although you don't want to tell them so. 'Nuff said.

The second is that people will have time for nothing but suing each other if we adopt American-style ambulance chasing with contingency fees and class action lawsuits.

This assumes that the ambulance chasing is entirely vexatious. I'm not so sure. It may be initiated by lawyers in many cases but it also indicates a good deal of legitimate grievance that merits a hearing in court.

Let the experts decide the question, however. If the lawyer thinks there is a good chance of success, let him take that chance. If he's wrong, he pays the costs. If he's right, the poor get justice.

Hurrah for champerty!