Law shake-up yet to lower fees, three years on

Allowing solicitors to address higher courts was meant to widen the market, but so far only 40 have qualified, with 82pc failing the assessment

PUBLISHED : Monday, 05 September, 2016, 7:32am
UPDATED : Monday, 05 September, 2016, 1:09pm

The legal sector shake-up that ­allowed solicitors to address the higher courts as barristers do has not brought down legal fees, but has widened the market for representation in the years since ­coming into effect, experts and ­industry insiders have said.

In Hong Kong barristers, who specialise in arguing their case ­before judge and jury, can speak on behalf of clients at all levels of court. But solicitors, doing mostly documentation work, are not ­allowed to advocate anywhere above the District Court.

The Legal Practitioners (Amendment) Ordinance, passed in 2010 and meant to tap into eloquent solicitors with adequate advocacy skills by giving them higher rights of audience, allows them full access to all courts if they qualify as solicitor advocates.

It was a bid to diversify the pool of advocates at all courts, and bring down legal costs by providing the public with more choice.

But the Post has found that since the Higher Rights Assessment Board granted the honour to the first batch of solicitor advocates in 2013, there have only been 40 of them in Hong Kong, calling into doubt whether the scheme would have the desired effects in the long run.

Law Society president Thomas So Shiu-tsung stressed that the qualified 40 had to be viewed in the context of not all solicitors, but of the about 1,000 solicitors involved in litigation and with more than five years’ experience.

“It has only been three years,” So added.

The head of the city’s 10,000-strong solicitors’ body said it might be too early to judge whether the scheme would have an effect on legal fees. “When you have say 100 or 200 solicitor advocates, the wheel will turn,” he said.

But So said the increase in choice had been obvious, which sometimes meant saved time and money.

For example, he said some solicitor advocates specialised in niche areas such as insurance or medical defence. Instead of taking the time and paying to instruct a barrister, “they can take it to the court and deal with it themselves,” he said.

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University of Hong Kong legal scholar Eric Cheung Tat-ming said fees had not adjusted because most solicitor advocates had so far been senior solicitors, who were not cheap to begin with.

Hiring them for a one-stop service might end up more expensive than hiring a solicitor and the barrister in a more conventional manner, said Cheung, who qualified as a solicitor advocate in 2013.

But O’Melveny & Myers solicitor advocate Denis Brock disagreed. He said: “Generally, advocates’ hourly rates are less than barristers of comparable experience.”

“Forty is a good start,” he said of the number enrolled so far. “Clients have a choice.”

While So said the scheme could certainly do with more solicitor advocates, the admission rate, and what some of the lawyers said was a lack of response from their fellow solicitors, might suggest otherwise.

Solicitors with more than five years’ experience can apply for the higher rights in either civil or criminal law. They will be judged by a panel of former judges, other lawyers, a Department of Justice officer and lay members.

Figures obtained by the Post showed that between 2012 and 2015, only 15 of 92 who applied via the assessment route were successful. Among the 127 who applied by way of exemption – skipping the assessment by providing proof of their achievements – just 25 qualified. The overall pass rate was 18 per cent.

One of the difficulties aspiring solicitors face and the Law Society is trying to change, So said, was that the annual assessment does not come on a fixed day every year, but in an ad hoc fashion.

He said many solicitors were deterred by the uncertain scheduling. Solicitors are usually busy and need advance notice to make room in their diaries, So said.

Hong Kong also lacks providers on solicitor advocacy courses, he said, so the Law Society had been turning to Singapore and Malaysia, where the idea is more developed, to bring courses to the local common law jurisdiction.

For the scheme to eventually run on full gear, some solicitor advocates said, a better public understanding would be paramount. For instance, “solicitor” is translated into “lawyer” in Cantonese, while “barrister” is “big lawyer”, creating a false sense that barristers are superior.

Criminal defence lawyer Jonathan Midgley, of Haldanes Solicitors, said the public needed to understand what was going on. He suggested the change could come from the Legal Aid Department, which could allocate not just mitigation work but full-length trials to solicitor advocates.

The pool of solicitor advocates was expected to expand again soon, with the board taking new applications all through September.