Report on the Probable Impact of an Accreditation

ANNEX IX

Report on the Probable Impact of an Accreditation

System Giving Suitability Qualified Solicitors

Rights of Audience in Higher Courts

on the Future Development of the Bar

Background

The Courts and Legal Services Act 1990

In U.K., solicitors’ opportunity to gain extended rights of audience in higher courts first appeared in the Courts and Legal Services Act 1990 (‘the 1990 Act”). One of the main objectives of the 1990 Act was to make provision for new or better ways of providing legal services and a wider choice of persons providing the same particularly in the areas of advocacy, litigation, conveyancing and probate services (see s.17(1) of the 1990 Act.).

As a general principle under the 1990 Act, the question whether a person should be granted a right of audience or a right to conduct litigation in relation to any court or proceedings should be determined by reference to whether he was qualified in accordance with the educational and training requirements appropriate to the court or proceedings (see s. 17(3) of the 1990 Act). Further, a person shall have a right to conduct litigation in relation to any proceedings only where he has a right to conduct litigation in relation to those proceedings granted by the appropriate authorised body (see s.28(5) of the 1990 Act). Section 28(5) defines “authorised body” as including the Law Society.

The Higher Court Qualification Regulations 1992

The Higher Court Qualification Regulations 1992 introduced after the 1990 Act set out three qualifications, namely, Higher Court (Civil Proceedings), Higher Court (Criminal Proceedings), and Higher Court (All proceedings). There were two routes to each qualification:-

(1)achieving qualifying hours of advocacy, test and qualifying course; and

(2)acquiring exemption on the basis of appropriate experience.

The Consultation Paper “The Way Ahead”

Nevertheless, the test and the qualifying course were regarded as a barrier to qualification as they were too intensive and expensive. The Law Society put forward proposals to change the regulations. In the meantime, in the consultation paper “The Way Ahead”, which preceded the Access of Justice Act 1999 (“the 1999 Act”), the Lord Chancellor stated:-

“In the Government’s view, being a qualified barrister or solicitor should prima facie qualify someone to appear as an advocate in any court subject to meeting any reasonable additional training requirement which the relevant professional body may impose and to them obeying the relevant code of conduct.”

The Access to Justice Act 1999

According to s. 36 of the Access to Justice Act 1999, which is obviously consistent with “The Way Ahead”, every solicitor shall be deemed to have been granted by the Law Society:-

(1)a right of audience before every court in relation to all proceedings; and

(2)a right to conduct litigation in relation to every court and all proceedings,

exercisable in accordance with the applicable qualification regulations and rules of conduct.

The Higher Court Qualification Regulations 1998

The Higher Court Qualification Regulations 1998 (“The 1998 Regulations”) came into effect on 1st April 1999 and established three routes to civil and criminal qualification:-

(1)The training route: It did not specify the number of hours spent on advocacy for the applicants to obtain certificates of eligibility to take the test(s) and course(s) which continue to be necessary.

(2)The experience route: It provided for those who had appropriate experience of litigation in the higher courts, which had given them the requisite knowledge, to be exempt from the test(s). A solicitor taking this route still had to take and pass the advocacy course.

(3)The exemption route: It provided the route for those with advocacy or judicial experience in higher courts who were suitably experienced and qualified to exercise rights of audience in the higher courts without taking the test(s) and course(s).

The Higher Court Qualification Regulations 2000

Since the introduction of the 1998 regulations, there had been no noticeable increase in the number of those seeking certificates of eligibility. Further, there were a significant number of solicitors with certificates of eligibility who decided not to proceed to the test and course. In the circumstances, the Law Society made further proposals to the regulations and recently passed the Higher Court Qualification Regulations 2000 (“the 2000 Regulations”). According to the 2000 Regulations, there are three routes to obtaining higher rights of audience, namely, the development route, the accreditation route and the exemption route.

The Development Route

This is the route essentially for:-

(1)trainee solicitors and newly admitted solicitors who have not been practising as solicitors or barristers for three years;

(2)solicitors who have been admitted for longer than three years but do not have sufficient advocacy experience which would otherwise enable them to satisfy the experience requirements of the other routes.

Applicants under the development route must undergo the following:-

(1)They must undertake training and assessment in procedure, evidence and ethics.

(2)They must attend training and assessment in advocacy.

(3)They must prepare portfolio of cases undertaken over a twelve month period whilst working with a nominated mentor.

Solicitors who successfully complete the requirements under this route should be granted rights of audience in respect of all proceedings.

The Accreditation Route

The accreditation route is for solicitors who have significant experience of higher civil and/or criminal courts. Under this route, solicitors who have practised as barrister or solicitor for at least three years and can demonstrate their experience and knowledge in a questionnaire should apply for certificates of eligibility which will exempt them from the training and assessment in procedure, evidence and ethics. However, they are still required to undertake the advocacy assessment. On the basis of their past experience, the applicants can apply for a higher court qualification in either civil or criminal proceedings. Applicants with experience in one set of proceedings are not required to undertake additional training or assessment in another set. If applicants under this route wish to gain qualification for all proceedings, they may apply to the Law Society which decides whether further steps are necessary.

Whilst this route is similar to the experience route under the 1998 Regulations, there are two principal differences between the two:-

(1)Under the experience route, all applicants had to undergo an interview which was effectively an oral examination. However, under the new accreditation route, only borderline applicants who have caused particular concern will need to attend an interview.

(2)Under the experience route, the applicants had to take both weekends of an advocacy course whereas the applicants under the existing regulations only have to take an advocacy assessment which lasts less than a day.

The Exemption Route

The exemption route under the new regulations is similar to that under the 1998 Regulations. It is primarily for solicitors who have practised as barrister or solicitor for at least three years. They are required to demonstrate experience of advocacy in the higher courts, which is relevant to the exemption for which they apply.

There are approximately 1,300 solicitors who have qualified as solicitors advocates in the higher courts in England. However, the statistics regarding how many of them have actually exercised their rights of audience is not available.

Probable Effect of the UK System on the Future of the Hong Kong Bar:

Current Position of Solicitors in Hong Kong

In the recent issues of Hong Kong Lawyer, the Law Society’s Working Party on Solicitors’ Higher Rights of Audience (“the Law Society’s Working Party”), in a series of articles entitled “Solicitors’ Higher Rights of Audience”, which consisted of 7 parts (written by various solicitors including Mr Denis Brock, Chairman of the Law Society’s Working Party and accountants), tried to justify why solicitors have been seeking rights of audience. The views expressed by the Law Society’s Working Party in the articles can be summarised as follows:-

(1)The Law Society does not seek fusion of the profession. Rather, it seeks an extension of rights of audience for solicitors into the higher courts.

(2)The Law Society supports the existence of an independent private Bar and maintains the view that the existence of both an independent private Bar and solicitors with higher rights of audience would allow each branch to develop into two strong but complementary branches.

(3)Solicitors already enjoy rights of audience in matters including arbitration, hearings in statutory tribunals, magistracies and the District Court including matrimonial courts, a certain range of hearings in the High Court including bankruptcy proceedings (see Re Lai Yin Shan [2001] 3 HKC 232).

(4)Any fear that solicitors’ rights of audience will open the floodgates cannot be justified because:-

(a)The vast majority of solicitors will still find it “more economical” for themselves and their clients to continue to instruct barristers to attend court. Further, rules need to be introduced so that solicitor-advocates are required to advise the client whether the best interests of the client would be served by retaining a barrister.

(b)The standard of accreditation should be sufficiently high so that only appropriately qualified solicitors would be accredited.

Key Issues:

Despite the position of the Law Society’s Working Party, it is believed that if the U.K. accreditation system applies to Hong Kong, there will be substantial impact on the future of the Hong Kong Bar in respect of the following key issues:-

(1)Law graduates’ perception of the two branches of the profession.

(2)Effect on junior Bar’s work.

(3)Bar’s direct access to clients.

(4)How can the Bar maintain the public’s confidence in their continued use of the services provided by its members?

(5)Possible involvement of the Bar in the accreditation system.

Law Graduates’ Perception

In Hong Kong, it is a common phenomenon that law graduates are more inclined to join law firms as trainee solicitors. It is always difficult to convince the academically strong graduates to join the Bar as it is equally hard for them to disregard the obvious difference between a lucrative offer that most big law firms can make to their trainee solicitors and a pupilage of six months which is unpaid.

Apart from those who feel compelled to join the Bar after their unsuccessful attempts made to law firms, law students usually join the Bar because of the following reasons:-

(a)their interest in research and advocacy work;

(b)their belief that they are able to meet the high quality of work and ethics required;

(c)role of the Bar in maintaining the rule of law; and

(d)the freedom of running self-employed business.

However, if solicitors are allowed to have rights of audience in higher courts, students will be inclined to regard career at the Bar as being less attractive as the work which used to be peculiar and exclusive to the Bar can be done by solicitors. Of course, those who are determined to join the Bar are unlikely to change their decisions solely because of this factor. It is nevertheless believed that such factor will have some material bearing on borderline cases.

In 1998, the Bar Association introduced the Bar Scholarship. The Bar Scholarship is merits based, aiming at the very best of the new entrants. Whilst the Bar Scholarship invariably provides the new graduates with some incentive to join the Bar, only a very few of the new entrants benefit from it every year. In U.K., most established sets of chambers have a system whereby eligible pupils are offered a scholarship for their pupillage and their income for the first year of practice is guaranteed by way of devilling or overflow of work from other members of chambers.

The fundamental difference between the situation in Hong Kong and that in U.K. is that in U.K., when most established sets of chambers take on pupils, they so so with a view to accepting them as their tenants at the end of the day. Hence, they normally have a more stringent and systematic process in selecting pupils. However, in Hong Kong, the decision as to whether pupillage is offered to an applicant usually rests on the individual pupil master who may or may not have such a long term vision in mind during the decision making process. Further, not many sets of chambers in Hong Kong have a well-developed system which enables them to offer what their English counterparts have been offering. In any event, though the Bar Association can encourage its members to consider providing more assistance to the new entrants, it is hard to impose any requirements on chambers which should have freedom and discretion to make decisions on chambers’ administration.

It is therefore important for the Bar to consider whether anything can be done to attract more people to join the Bar, in view of the likely impact of solicitors’ rights of audience in higher courts on the perception of the new entrants. It is suggested that apart from the Bar scholarships, the following options be considered:-

(1)The Fund for New Barristers and the Archie Zimmern Memorial Fund currently available operate as loans to the new entrants. The financial aid provided by such funds is limited. As a matter of fact, only a few applications are made for such funds every year. It is necessary for the Bar to consider providing more financial assistance so as to let the prospective new entrants have more incentive to join the Bar.

(2)In U.K., the General Council of the Bar has already resolved that a policy for the compulsory funding of pupillage should formally be implemented from 31st December 2002. The Education and Training Committee of the General Council of the English Bar has recommended, amongst others, the following:-

(a)All chambers should make an award, in the form of a financial payment, to pupils for the “non-practising” period of pupilage.

(b)The award should not be less than £5,000.

(c)In the case of the second of practising period of pupilage, chambers may either make an award of £5,000 or guarantee receipts of not less than £5,000.

(3)In Hong Kong, the feasibility of funded pupillage is under consideration and the Bar has been collecting views from heads of chambers regarding this issue. One of the possible downsides of paid pupillage, as one can reasonably contemplate, is that it may reduce the number of people who are willing to act as pupil masters. As stated in the Funding of Pupillage Consultation Paper on Waivers issued by the Education and Training Committee in UK in March 2001, “ the Bar Council is anxious to ensure that the introduction of compulsory funding pupilage does not result in a significant reduction in the number of pupilages available as this may have an adverse effect on the long term future of the Bar.” It is, however, submitted that if the system of funded pupillage can at least enable the law graduates to cover their basic expenses during their first six months of their pupillage, it will create one positive factor which may motivate more people to join the Bar.

Effect on Young Barristers

One of the predominant problems faced by young barristers has always been the lack of work. Further, most young barristers find it difficult to have exposure to cases of larger scale and such lack of exposure will invariably hinder the development of their practice. In reality, it cannot be denied that young barristers’ volume of work, to a certain extent, depends on their Chambers. Young barristers in big sets usually end up having more opportunities as members in chambers will invariably pass cases around when they are fully occupied. Further, they will have more exposure to cases of larger scale as they should have more chances of being led by the senior members in chambers. In the normal course of events, young barristers who happen to be tenants in smaller sets are in a less advantageous position.

It is believed that if more solicitors gain rights of audience in higher courts through the accreditation system, it will only exacerbate the problems faced by young barristers. In the article entitled “All bar none – with the Access to Justice Bill sweeping away the last obstacles, the stage is set for solicitors advocates to shine” in Law Society Gazette Vol. 96 No. 26 at p.20, the author cited some examples whereby big London firms such as Linklaters & Paines and Clifford Chance have confirmed that their use of the junior Bar has decreased substantially. Worse still, their firms’ advocates have continued to appear either on their own or be led by senior members of the Bar. As stated in Part 4 of the articles written by the Law Society’s Working Party:-

“One of the greatest benefits of using solicitor advocates in large cases which require the services of counsel is that the solicitor who is so familiar with our business and our case may act as junior counsel and so have this knowledge more readily at senior counsel’s disposal, assisting the senior counsel in the presentation of the case in court.”

The above clearly demonstrates that when solicitors gain higher rights of audience, it will further curtail the already limited amount and exposure of the work of young barristers.