THE paper issued to members of the Bar Association by the Bar Council which was the subject of your news report and editorial (South China Morning Post, August 9) is purely a Discussion Paper for members' consideration internally and not a position paper. The membership will decide the Bar's final position at an Extraordinary General Meeting to be held later in the year. We regret that there are a number of misleading or inaccurate statements of fact in your editorial, which could probably have been avoided had there been a more careful reading of the Discussion Paper. You state that anyone involved in a court action must deal with, and pay, at least two lawyers. This is simply untrue and is made clear in the Discussion Paper. Under the current system, solicitors have full rights of audience in all courts and tribunals save for hearings in open court in the High Court and the Court of Appeal. They can thus conduct more than 95 per cent of the litigation in Hong Kong themselves without the need to instruct barristers. They choose however not to do so, and the vast majority of solicitors refuse to conduct litigation themselves. At least one of the reasons is that it is simply not cost-effective for them to do so. Besides, the cost for work which requires two lawyers would not be reduced merely because it is done by one lawyer. You appear to assume that, but for the current divided profession, all cases, no matter how complex, could be handled throughout by a single lawyer. That is just not so, a fact which the Law Society also recognises. I quote from the Law Society's booklet, The Future of the Legal Profession in Hong Kong: ''Time-consuming, complex cases likely cost about the same with a single legal profession as with a divided one. Such cases require teams of practitioners in any event . . . It is the average case which is likely most cost-effective when practitioners have unlimited rights of appearance and can work in fully-integrated, well-rehearsed teams . . . .'' No mention is made by the Law Society of who would pay for these ''fully-integrated, well-rehearsed teams''. The answer is obvious: the client. You cavalierly dismiss as ''nonsense'' the argument that fusion may increase costs because solicitors' overheads are higher than those of barristers. This statement ignores abundant evidence from the Attorney-General's Chambers, the Legal Aid Department and the Duty Lawyers Scheme about their difficulties in finding solicitors in private practice who are willing to appear as advocates for the fees offered. You assert that giving solicitors access to extra fees for court work would reduce costs as a proportion of income and, if anything, reduce fees. That is illogical. Apart from probate and conveyancing work, there are no fixed fees, and the Law Society has never committed itself to introducing fixed fees or to limiting the level of profits which can be made on litigation. There is no basis for your sweeping assumption. Your assertion also overlooks the solicitors' existing wide access that they choose not to utilise. You superficially conclude that if all that mattered were efficiency and expense, the solicitors would win the argument. You do not begin to address the question of how solicitors currently charge their clients including the substantial hidden costs often included under ''disbursements'' in a solicitor's bill, for example, charging about $5 per page for photocopying. The ''argument'' as you put it is not just about fusion. We agree. It is about the quality of legal services and legal standards of which fusion is but a very minor part. There are complex issues involved in the question of cost and efficiency, not just in the context of litigation, but in the provision of all legal services. Many of them have not even been touched upon in the Law Society's booklet. Your editorial has not addressed those issues, and has thus fallen prey to the narrow approach adopted by the Law Society. JACQUELINE P. LEONG, QC Chairman The Hong Kong Bar Association
