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STEVEN GALLAGHER

One of the questions that often crops up regarding the habits of the legal profession is why barristers wear wigs in court?
Chief Justice Geoffrey Ma Tao-li recently refused the Law Society's request that solicitors might wear horsehair wigs in court in the manner of barristers.
What may be considered an unimportant decision regarding anachronistic fancy dress is important in maintaining the independence of the legal professions in Hong Kong.
Separate legal professions are a legacy of British rule. Traditionally, solicitors work for firms and barristers are self-employed; grouping together only for administrative benefits in chambers.
Those with legal problems first contact solicitors. The solicitor may then consult a barrister as a specialist, commissioning an opinion on the law and merits of the case.
At court, the barrister will seek to persuade the judge or jury of the merits of their case. Barristers are therefore seen as experts in their field and advocates who persuasively present their client's case.
However, there have been calls for the fusion of the professions as it is now quite common, especially in bigger law firms, for solicitors to be specialists. They may also apply for rights of audience to present the case they have prepared to the highest courts.
Barristers may now sometimes take instructions directly from professionals other than solicitors, or work as in-house counsel. As other former British colonies, such as the United States, have fused their legal professions, why should Hong Kong not follow?
Keeping two professions maintains the perception of independence for the legal sector as a whole.
The bar, the collective term for barristers, has always been seen as independent and publicises its independence by various customs, including wearing a horsehair wig in court.
Barristers do not shake hands with other barristers, to reassure clients of their independence. However, barristers also maintain their independence from their clients and their obligations to justice and the court. Thus the cab-rank rule obliges barristers to accept cases on a first-come-first-served basis, as long as the case is within their professed area of expertise, irrespective of the client's identity or the fee.
Furthermore, as solicitors instruct barristers, barristers should not accept their fee directly from their client.
Perhaps the most important custom of barristers and most perplexing to their clients is their obligation to reveal any authority they discover against their case to their opponent.
This custom stems from the duty not to mislead the court, which also ensures that a barrister will not present a criminal case supporting a not-guilty plea if a client has admitted his guilt to the barrister.
It may be felt that these archaic customs could be swept away, as a single profession would provide a more economical service for the needs of modern Hong Kong. However, a two-profession system ensures that the public has balanced access to advice and protection, from a solicitor they have come to know and trust and a barrister perceived as an independent expert committed to serving client and the court.
The independence of the bar protects the independence of the legal profession as a whole.
An effective and independent judiciary and an effective and independent legal profession further the rule of law in Hong Kong. Any decision to discard a custom or division that protects and publicises independence of the professions should be approached cautiously.
Steven Gallagher is Assistant Dean (Undergraduate Affairs) of the Chinese University's law faculty
 


Court dress protocol more than just a matter of fashion

Steven Gallagher 

Hong Kong Bar Association Chairman Ronny Tong

News

Hong Kong

Wearing of wigs is one way the city's barristers protect and publicise their independence


Court dress protocol more than just a matter of fashion

.css-1c6uqr6{color:inherit;font-weight:inherit;font-size:inherit;font-family:inherit;line-height:inherit;overflow-wrap:break-word;}Wearing of wigs is one way the city's barristers protect and publicise their independence

Wearing of wigs is one way the city's barristers protect and publicise their independence