The Law of the touts
IT is 2am when Jim gets the call. The voice down the phone rapidly reports that a man has been arrested and charged with the possession of dangerous drugs. He will arrive at a police station near Jim's house in a few minutes, the voice says. The accused has yet to find a legal representative, the voice continues, and Jim might be able to do some business.
Jim , the 30-year-old see yeh, or solicitors' clerk, agrees. He puts down the phone and quickly dons his Armani suit and designer shirt. As he makes for the door, he pockets his mobile phone and heads for his BMW.
Within minutes he is parked outside the police station, waiting for his prey - the accused. He duly arrives and Jim pounces. Jim presents his business card, introducing himself with a reassuring line of legal patter as he begins negotiating with a relieved and all too-willing customer already terrified by his arrest.
Jim is pleased. He understands the desperation of his new client. He also knows, but quietly dismisses, the moral dilemma it poses; that the financial fortunes of his latest client will be forever changed by this pre-dawn encounter.
Inside the police station, Jim remains at the side of his customer as the process of arrest and recording of charges is completed. Jim then explains to the defendant that he has a good chance of acquittal but only if Jim remains as the representative of his interests.
There is, however, a small matter to be discussed; the fee. It will be $5,000 for Jim and the solicitor's appearance in the magistrate's court, required in any criminal proceeding; and $10,000 or more if a barrister is required for the case.
Desperate, the defendant nods in agreement, and in doing so becomes trapped in a financial web which has cost many a past recipient of Jim's patter dearly.
The clerk might promise reassuringly that this referral service will cost $15,000 but in reality he knows the final bill that he makes out for his client could come to a lot more - and be much higher than the one he presents to the solicitor for the case.
Indeed, a clerk's charges often exceed the scale of fees for legal representation that the Law Society and Bar Association considers acceptable and fair.
Legal Aid is not forthcoming in such cases. If a defendant can afford a tout's services, he is unlikely to qualify.
Solicitors' clerks act as go-betweens for solicitors and barristers. They are essential because barristers cannot advertise and clerks can help bring them business, via solicitors. The solicitors themselves also welcome the business they bring.
Only a few clerks are touts and most act strictly within the moral code of the legal profession, but it is now estimated that a solicitors' clerk can earn 10 times his recorded salary of $3,000 to $4,000 a month, or more, if he engages in such sales tactics.
Other duties include accompanying solicitors to court to assist with interpretation and translation work. They also carry out general clerical tasks.
Most touts have no professional qualifications or instruction in legal ethics. What they do possess is a good network of contacts who can put business their way, and the ability to sell their services to people who have been arrested and are intimidated by the process required to keep them out of jail.
One solicitor, who refused to be named, said this week that although he believed that the number of clerks touting for business outside courts and police stations had fallen off - probably because of increased public awareness of their illegal practices - this tight-knit army of operators had gone indoors rather than gone under.
''The method of touting has become so sophisticated that established networks now exist to bring together clerks and their business contacts. In fact, I would not be at all surprised if they are triad controlled,'' he said.
''Touting does not only exist among clerks dealing with litigation, it is also an extremely lucrative business for those dealing with property conveyance,'' he continued.
''But the most worrying fact is that these clerks are not professionals and therefore cannot be controlled by solicitors,'' he said. They operate outside the law, and it is extremely difficult to prove that they are touts, he said. ''Does having a lunch together with a client constitute being a tout?'' he asked.
No, is the official answer, but according to legal experts the history of touting is so entrenched in the system that it would be very difficult to control it, let alone abolish the practice.
It goes back to the days when solicitors' clerks were known as interpreters and were employed by a handful of expatriate solicitors.
They were paid a salary and received a commission from the solicitor if they brought in business. Later they evolved into an entrepreneurial group condemned by the legal profession as a body, yet clandestinely tolerated by many of its practitioners.
Publicly they say the practice of touting must be eliminated but privately it saves solicitors and barristers from doing their own ''ambulance chasing'', that is, prowling the courts and police stations seeking clients.
In the 1960s, in reaction to the developing system of touting, lawyers decided that a ceiling should be placed on the number of ''interpreters'' in the profession while allowing the existing ones to remain in business until they retired.
Solicitors were required to register their interpreters with the Law Society and to try to ensure that those who did retire were not replaced in the courts. But instead of the practice dying out, ''interpreters'' have proliferated in the past 10 to 20 years along with the number of solicitors.
By the mid-1980s, the Law Society decided they wanted to do away with touts completely and proposed to make their use a criminal offence. The ICAC was called in and began its study into corruption within the legal profession.
But the implications of the proposal were far-reaching and might have affected the tradition among solicitors of paying commissions to estate agents, brokers or bankers who bring in business for them. So the proposal was dropped.
Last month it was reported that a nine-year ICAC study had found at least 25 solicitors' clerks accepting bribes in the past two years. At least a dozen barristers' chambers had paid commissions to solicitors' clerks, which by their professional code of conduct could equate to a bribe, it claimed.
But the Law Society stresses that touts constitute a small number of all legal clerks and investigates all cases referred to it by the ICAC..
One litigation see yeh working in a local law firm, agrees that the number of touts is low although he has come across those who have fiddled their accounts.
''I actually know some of the clerks who have been arrested and charged by the ICAC. They charged their clients, say $50,000, then put $30,000 in the books. Then they pocketed the rest,'' he said.
''I certainly do not decide how much I charge my clients. The legal fees are determined and agreed between my firm and the barrister concerned. We are also very careful over our accounts now. All the bills are itemised.
''My commission is 40 per cent of what is left after the solicitor and barrister have taken their share. The amount can vary from case to case.'' He said that he gets his business from passing his cards to friends who, in turn, pass them on to other people.
He admits that he does act on his clients' behalf and gives instructions to barristers even though he is legally unqualified. It is a common practice among see yehs, he said.
Bar Association chairman, Ms Jacqueline Leong, QC, has reservations about a solicitors' clerk giving instructions to barristers. ''The quality of instructions from clerks is inferior,'' she said.
She pointed out that solicitors' clerks often know nothing about the case they handle but because they have so much control over litigation cases, it is difficult for barristers to refuse their instructions.
''We have no control over [the Law Society's] affairs. But it is a great concern. We have unqualified clerks doing solicitors' work,'' she said.
Ms Leong added that one reason this is happening is that there simply aren't enough qualified solicitors in the territory to deal with each individual case.
The Law Society is now introducing internal disciplinary measures, known as the ''audit trail'', to stamp out illegal practices.
A Bill will be introduced in the Legislative Council in May to amend the Legal Practitioners Ordinance to give the Law Society the power to check whether solicitors have followed the audit trail.
The audit trail requires a set of rules and procedures to be followed by solicitors or their firms who act for clients involving criminal charges.
These rules will force solicitors to itemise their bills.
The Law Society also urges the public to come forward if they think they have evidence of malpractice involving a solicitor.
''One of the difficulties we have in Hongkong is that few people talk to us,'' the Director of Compliance of the Law Society Tony Harrod said this week.
''If we become aware of that matter [of malpractices], we would take it very seriously indeed and investigate. We need to talk facts rather than anecdotes.''