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Cliff Buddle

WHEN THE BAR Association chief attempted to persuade talented law students to become barristers earlier this month, he did so by making an alternative career as a solicitor sound as unattractive as possible.

'Do you loathe being bossed around? Do you want to avoid wining and dining with clients in order to keep them entertained?' Alan Leong Kah-kit, SC, wrote in an article for Asian students at Cambridge University.

Students who choose to become solicitors might find their careers stalled because of office politics and were unlikely to be free to speak out on issues concerning the rule of law, he claimed.

Barristers, by contrast, 'do not have to look over our shoulders to see that our partners are not offended or their business interests adversely affected by what we say or do', Mr Leong wrote.

The appeal demonstrates the vulnerability felt by some barristers at a time when many areas of the legal system are undergoing reforms aimed at giving the public a better deal.

Mr Leong believes the Bar is facing a fight for survival.

'If the Bar wants to remain strong and independent we must have a continuous supply of high-quality, high-calibre young men and women. If they all choose the solicitors' profession, the Bar will die a natural death,' Mr Leong told the South China Morning Post.

He is particularly concerned about a campaign by solicitors to win extended 'rights of audience' in the higher courts. If such rights are granted, solicitors will be able to conduct cases in the High Court, Court of Appeal and Court of Final Appeal without the need for a barrister.

The campaign is gathering pace. Finishing touches are being put to Law Society proposals, which are expected to be released within weeks.

Fears have been expressed by some barristers that they will be denied work as thousands of solicitors flood to the courts to exercise their newly won rights. Concerns have also been raised that talented law students will no longer be interested in becoming barristers.

Mr Leong argues that an extension of solicitors' rights would lead to a 'fusion' of the two branches of the profession and sound the death knell for barristers. 'Fusion must mean the end of an independent Bar. It will be law firms and that's it,' he said.

Such claims have been dismissed by the Law Society, which says the changes will give clients more choice and help lower legal costs. It will no longer be necessary for litigants to have to hire a solicitor and a barrister in the higher courts.

Denis Brock, a partner with law firm Clifford Chance, is chairman of the Law Society's Working Party on Higher Rights of Audience. He is also qualified to appear in the higher courts in England and has even done so in the House of Lords. He branded talk of the move killing off the barristers' profession as 'alarmist'.

'There is no question of there being an end of the Bar,' he said, arguing that only a small proportion of Hong Kong's solicitors would opt to exercise the right. There would still be an important place for barristers.

'There will not be an opening of the floodgates. I would be surprised if more than 60 out of 5,200 solicitors take it up and use it,' said Mr Brock.

The Law Society has planned its campaign carefully. A series of articles on the issue have appeared in its monthly publication, Hong Kong Lawyer,  seeking to clear up perceived misunderstandings. Informal discussions have taken place with judges, and a poll of all solicitors revealed about three-quarters were in favour of the proposals.

Steps will be taken to ensure that only solicitors who can meet high standards will be allowed to exercise the extended rights. The Law Society is likely to adopt measures similar to those introduced in England, requiring that only those with several years' experience be allowed to do so. Special training would be provided and criteria established for deciding whether a particular solicitor qualifies for permission to use the extended rights.

While seeking to explain why the current restrictions, which came into force more than 100 years ago, are illogical and outdated, the solicitors have repeatedly stressed that the move will not threaten the Bar.

Law Society President Herbert Tsoi Hak-kong was at pains to stress this in his speech last month to mark the opening of the new legal year. 'I would like to emphasise that our proposals will not sound the death knell of an independent Bar. Nor will they necessarily mean redundancy for [less experienced] members of the Bar.

'There will . . . always be a place for an independent Bar.'

The Law Society's arguments appear to be supported by the experience in England and Wales. Barristers there fought a grim battle against similar proposals, but eventually lost. Solicitors have enjoyed rights of audience in the higher courts since 1990.

However, barristers in England have not become extinct. Instead, they have changed the way in which they operate in order to compete effectively. Traditional restrictions on advertising have been relaxed and it was announced this month that the rule against barristers dealing directly with the public, instead of through solicitors, is to be scrapped.

While the distinctions between barristers and solicitors in England seem to be disappearing, and there have been claims this effectively means fusion between the two professions, others argue that the Bar has become stronger as a result.

Margaret Ng Ngoi-yee, a barrister and legislator for the legal profession, said her discussions with senior members of the English Bar had revealed satisfaction with the reforms.

'The English Bar opposed it very strongly indeed. But the Bar chairmen I have spoken to said they wished they had not taken that stance and they do no think it has damaged the strength of the Bar.'

Ms Ng said English barristers had showed imagination in the way they had reacted to the reform.

'It is not a matter of whether the Bar will be wiped out or not, but what the response of the Bar should be to this challenge.'

Mr Leong denies the Bar has softened its stance on the Law Society's plans. But it is clearly preparing for the possibility this particular battle will be lost. Two Bar Association committees are considering the options, including seeking direct access to the public. Proposals for consideration are expected within a few months.

Results of a judiciary study into the way in which solicitors exercise their rights of audience at the District Court are pending.

But while the Bar continues to discuss the issues, the Law Society is pushing ahead. 'We will make our proposals known within a few weeks and then we will push for legislation,' said Mr Brock.

Former Bar Association chairman Ronny Tong Ka-wah, SC, warned two years ago when the Law Society relaunched its bid for extended rights that the Bar was under threat. He fears people will not want to become barristers if they can have the security offered by a law firm as well as the right to present cases in the higher courts. 'It [membership of the Bar] would probably drop down to 50 or 100 particularly specialised die-hards. But they would no longer be the driving force of the profession. They certainly would not be as vocal [in standing up for the rule of law] as they are now.'

Mr Tong believes solicitors are likely to win the battle. 'Maybe it will be a question of us having to accept the inevitable,' he says.

Cliff Buddle edits the Post's opinion pages



Bar fears a fight for survival