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Following is the speech by the Secretary for Justice, Ms Elsie Leung in moving the Second Reading of the Legal Practitioners (Amendment) Bill 1999 in the Legislative Council today (Wednesday):

Madam President,

I move that the Legal Practitioners (Amendment) Bill 1999 be read the second time.

The Legal Practitioners Ordinance governs the practice of solicitors and barristers in Hong Kong. The purpose of the Bill is to make improvements to the law, both in respect of solicitors and barristers.

Solicitors

Let me first turn to the provisions relating to solicitors and law firms. All of these amendments are based on proposals by the Law Society.

The Ordinance distinguishes between "Hong Kong firms" and "foreign firms". Clause 2 of the Bill clarifies the definition of "Hong Kong firm". At the moment, that expression could be understood to include law firms which have non-resident partners who are not solicitors. This clarification will improve the protection of the legal profession and the public, by excluding such a possibility.

Clauses 3 to 6 relate to disciplinary matters. It is in the public interest that adequate powers of investigation of the conduct of legal practitioners be provided to the Law Society. To that end, clause 3 empowers the Law Society Council to appoint a prosecutor to assist it in gathering evidence. The prosecutor will have the right to summon persons who may be able to assist regarding a suspected disciplinary offence before disciplinary proceedings are commenced.

Clause 4 of the Bill provides for the number of practising solicitors and lay persons available to sit on the Solicitors Disciplinary Tribunal Panel to be doubled, namely from 60 to 120 and 30 to 60 respectively. This will enable the Panel to draw from a larger pool of talent to help ensure that the maintenance of the discipline of legal practitioners is as efficient as possible.

Currently, the Law Society has no right to appeal against a finding of the Solicitors Disciplinary Tribunal as to guilt and sentence, although the other party to Solicitors Disciplinary Tribunal proceedings is entitled to appeal to the Court of Appeal under the Ordinance. Clause 5 of the Bill gives the Law Society a right of appeal against a finding of the Solicitors Disciplinary Tribunal. The Law Society would then be in a better position to protect the public and maintain public confidence in disciplinary proceedings.

Clause 6 of the Bill expressly provides for the Law Society to publish a summary of the findings and orders of the Solicitors Disciplinary Tribunal and the name of the solicitor convicted of an offence, unless the Solicitors Disciplinary Tribunal orders otherwise.

The final provision relating to solicitors deals with insurance. At present, a solicitor holding a conditional practising certificate is allowed to practise foreign law without taking out professional indemnity insurance. This is against a policy underlying the Ordinance that all those who act as solicitors or foreign lawyers should take out professional indemnity insurance to ensure that aggrieved clients will be adequately compensated. Clause 13 of the Bill imposes an obligation on a person who offers services to the public as a practitioner of foreign law to satisfy the requirements set forth in section 7 of the Ordinance, which requires the taking out of professional indemnity insurance.

Barristers

I now turn to the provisions relating to barristers. These proposals are broadly based on the Bar Association's proposals. A major amendment concerns the admission criteria of barristers.

Under current legislation, there is no means for foreign lawyers from non-Commonwealth jurisdictions to gain admission as barristers in Hong Kong. This is inconsistent with Hong Kong's obligations under the General Agreement on Trade in Services, or "GATS", which require such criteria to be objective, reasonable, non-discriminatory and standards-based. In 1996, following a consultation exercise seeking the views of the legal profession and the public, the then Attorney General's Chambers proposed that legislation be introduced to implement the GATS criteria.

Clause 7 of the Bill removes the present privileges conferred on barristers or advocates from England, Scotland, Northern Ireland and other Commonwealth countries. It provides instead that the Court may admit any person to be a barrister if he or she is considered to be a fit and proper person and has complied with the general admission requirements, including passing any required examinations and paying any required fee. Further, a residency requirement of three months before the date of application for admission is imposed to match the same requirement which applies in respect of solicitors.

Clause 9 of the Bill provides a mechanism for the removal and restoration of the names of barristers in the roll of barristers.

The Ordinance does not presently require barristers to pay for indemnity insurance premium before being issued with a practising certificate. Clause 10 of the Bill now provides that the payment of indemnity insurance premium is a prerequisite for the issue of a barrister's practising certificate. It also removes the present requirement in the Ordinance to apply for a barrister's practising certificate in November each year.

In 1996, the then Attorney General's Chambers, noting the support at that time of the Bar Association and the Law Society, recommended that barristers who provide legal services exclusively to an employer under a contract of employment should be entitled to instruct practising barristers directly. In the course of consultation on the draft Bill subsequently, the Law Society nevertheless expressed the view that barristers who have never served as trainee solicitors should not be allowed to act in a role identical to solicitors without formal training and supervision. The Law Society's view has been taken into account and reflected in clause 12 of the Bill which provides that an employed barrister is allowed to instruct a practising barrister on behalf of his or her employer without retaining a solicitor for the purpose of obtaining a legal opinion only. Clause 12 of the Bill also provides that an "employed barrister", subject to certain conditions, may be issued with an "employed barrister's certificate".

Unlike the Law Society's power regarding solicitors, the Bar Council does not have the power to make subsidiary legislation governing the admission or conduct of barristers and other general matters relating to barristers. Clause 15 of the Bill empowers the Bar Council to make rules governing the admission of barristers and other areas concerning barristers, subject to the Chief Justice's prior approval.

Madam President, the amendments contained in the Bill seek to improve the existing law governing solicitors and barristers and will enable Hong Kong to comply with the general obligations of the GATS. I commend this Bill to members for early passage into law.

End/Wednesday, 30 June 1999

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