Hong Kong’s justice minister is pushing ahead with a controversial plan to allow government solicitors to qualify for promotion to senior counsel, despite stiff opposition from barristers who argue the change is a threat to their profession’s independence.
The Department of Justice revealed on Wednesday it would bring forward legislation in a week on reforming the system of legal representation, opening up for the first time the awarding of senior counsel status to lawyers other than barristers.
The announcement came within hours of the Bar Association, which represents the city’s barristers, voicing its strong objections to a plan floated last month by Secretary for Justice Teresa Cheng Yeuk-wah to extend eligibility for the prestigious title to her own workforce.
Her department said the Legal Practitioners (Amendment) Bill 2021 would be tabled in the Legislative Council next Wednesday.
The Bar Association earlier made clear it could not accept the proposal given its membership’s “overwhelming opposition” to the reforms.
“The proposal would involve creating a category of senior counsel for legal officers who are neither barristers, nor members of the Hong Kong Bar and are not subject to the Bar’s code of conduct, and which is conditional on remaining in government service,” a statement from the association read. “The Hong Kong Bar Association does not consider that this is in the public interest.”
The professional body said there was a fundamental difference between government legal officers and barristers holding the rank of senior counsel, with the former only serving the Department of Justice and the latter answering to both clients and the court, the association said.
That duty might require a barrister to decline taking up a prosecution case or pursuing a civil claim, if a professional judgment was made that it would be wrong to do so.
That was a striking illustration of the critical importance of the independent Bar to the public interest, the association affirmed.
“The public’s image of the impartiality and independence of senior counsels, combined with their acknowledged legal expertise and judgment, is vital to the public’s perception of good governance,” it said.
“It is their independence that gives meaning and significance to the role of barrister, demanding that they carry out their professional duties without fear or favour.”
“The public’s perception of senior counsels is not of a senior government official. Creating a rank which is only valid so long as the holder remains in government service would never confer the same distinction as appointment to silk in the traditional manner.”
The association also refuted claims the current practice posed an obstacle to legal officers whose performance was deserving of an opportunity to take silk.
It said the officers were given special dispensation to be transferred to the Bar after undergoing just three months of pupillage – the final stage of barrister training – when the term is a year for others.
Under the current system, Hong Kong’s chief justice can appoint barristers to take silk in recognition of their ability and standing in the profession, as well as their knowledge of law. They must have practised in Hong Kong for no fewer than 10 years in total. Solicitors are not eligible.
Barristers specialise in defending clients in the courtroom and have access to all levels of the courts, while most of a solicitor’s work is performed behind the scenes.
Solicitors are not allowed to speak on clients’ behalf before a judge above District Court level, unless they have acquired a special qualification, known as higher rights of audience.
However, such restrictions do not apply to Department of Justice lawyers, who are allowed to present arguments at all levels of court without any distinction between barrister and solicitor roles.
In a paper submitted to the legislature, the department said there was no practical distinction between the roles and duties of legal officers who were barristers and solicitors in the government, in contrast to private legal practitioners.
The department argued that those who satisfied the substantive eligibility requirements, but were not admitted as barristers, should receive fair recognition.
It also insisted the proposal would neither alter the selection mechanism and appointment criteria for senior counsel, nor affect any rights of legal practitioners in the private sector.