Increasing Access to Justice
Pro bono publico legal work, or simply ‘pro bono’ refers to lawyers assisting, without fee, those in our community who cannot otherwise access justice. However in Hong Kong there are systemic barriers which prevent some lawyers doing pro bono. This article will address two of these barriers and consider possible reform.
The first barrier is the inability of NGOs to employ lawyers to advise and represent clients. The second issue is the lack of access to insurance for in-house counsel wanting to do pro bono legal work. These problems are not insoluble and other jurisdictions have removed these barriers. It is not a question of can these changes be made here in Hong Kong, but rather, when?
Despite the fact that there are many legal services provided in Hong Kong by the Government, legal professional associations, NGOs and others, there is simply not enough of them. For example, of 18,405 legal aid applications made in 2018, only 8,252 legal aid certificates were granted (https://www.lad.gov.hk/eng/statistics/cer.html). This means that approximately 10,000 people needed to go elsewhere for legal help, plus those needing assistance who did not make an application for legal aid.
Four years ago, PILnet, a pro bono clearing house, noted that NGOs were reporting increasing numbers of their clients asking for help with legal advice and representation. Under the current regulatory framework in Hong Kong, staff of NGOs, even those who are Hong Kong qualified, can only offer referrals and basic information. To obtain a Practising Certificate from the Law Society of Hong Kong, an applicant must be engaged in private practice or employed in commerce or industry, as a law teacher, or by Government. There is no category for NGOs. By adding a legal centre/NGO category, NGOs could hire lawyers to assist their clients directly. These NGOs would be subject to the same duties to the client and professional obligations as any law firm.
To identify unmet legal need in Hong Kong, PILnet collaborated with international law firm DLA Piper to research legal need, the assistance available and barriers to accessing justice, in their 2017 report: This Way: Finding Community Legal Assistance in Hong Kong. (“This Way”)
This Way: Finding Community Legal Assistance in Hong Kong
During the research for This Way, it was estimated that ten of the NGOs which had approached PILnet had received approximately 8,000 law related queries in the previous year. The main legal issues involved crime, discrimination, housing, labour/employment, immigration, social welfare, consumer, family and domestic violence. (This Way, p. 13) Common themes emerged: most of the people who reached out to NGOs were unaware of the law, could not access basic legal information or afford legal representation.
For marginalised members of the community, even minor legal problems can have a devastating impact. Davyd Wong, is Co Founder and Director of the Hong Kong Centre for Pro Bono Services Limited, which operates a legal clinic in Sham Shui Po. Clients include elderly people experiencing economic abuse, the working poor, recent immigrants, and former prisoners. Davyd says: ‘While some of the legal issues we see may seem mundane to experienced practitioners, to those who are vulnerable, often already marginalised by poverty, unemployment, disability, ethnicity, illiteracy, the significance of these issues to their daily lives is disproportionate - it is yet another layer of unmitigated hardship and a barrier to social mobility.’
This Way delivered 24 recommendations, (This Way, p. 69), including those under discussion here:
First, This Way recommended that the Law Society of Hong Kong review practising certificate rules and regulations, to enable Hong Kong qualified lawyers working at an NGO to obtain a practising certificate. Clients would be assisted in the same way as clients at any law firm. The NGO would abide by professional regulations and rules and be subject to the same Law Society scrutiny as any other law firm. There are diverse successful examples of NGOs employing practising lawyers, for example in Singapore, Australia, Canada and the United Kingdom. Most legal NGOs are funded by a mix of Government and philanthropic contributions. (This Way, p. 57)
Critics of community legal service models sometimes express concern that delivering free legal services might undermine small law firms. Davyd Wong comments: ‘New entrants in the legal market are not necessarily a problem especially when there continues to be a segment of the community which is not being served. In fact there may be actual benefits to existing local firms in that our Centre will refer out to other law firms those clients who are able to pay but who were simply unaware and inexperienced in dealing with lawyers.’
The second recommendation was the request to professional bodies to review those policies and rules which prevented in house counsel providing pro bono. In other jurisdictions, such as Australia and Singapore, changes have been made which allow in-house counsel to offer pro bono legal services.
Emerging In-House Counsel Pro Bono
Interest in corporate counsel pro bono is growing rapidly. Former private practice lawyer and now co-managing director of Star Anise Legal, Annie Tang, recalls moderating a Law Week Conference session in 2016 on pro bono and community service for in-house counsel. To her surprise, 170 people attended. She recalls that ‘they were keen to do pro bono work but were also either frustrated by or unaware of the regulatory and insurance barriers which prevented them from doing so.’
Sharyn Ch’ang, PwC, Global Counsel and Vice President of ACC HK recalls: ‘we knew a systematic approach to understanding HK’s pro bono sector was needed given the existing regulatory regime. This resulted in the ACC HK developing a number of initiatives in 2018 - establishing a dedicated Pro Bono Committee, facilitating discussions between ACC, law firms, Law Society, Bar Association and not for profits and charities on their positions and needs, and producing the pro bono guide for in-house counsel, the first of its kind for Hong Kong. In 2019 we’re building on work which underpins this Guide and pursuing other projects to raise awareness of legal and skills based delivery models, and will explore potential professional insurance options for in-house counsel with insurers and the Law Society.’
The biggest barrier to in house counsel doing more pro bono is the lack of professional indemnity insurance. Annette Beashel, DLA Piper’s Regional Risk Manager and Legal Counsel Asia, is one of the authors of Pro Bono Legal Work in Hong Kong - A Guide for In-House Counsel, produced jointly with Association of Corporate Counsel - Hong Kong [ACC HK].
Annette Beashel believes that there is a lot that corporate counsel can do even within the current restrictions, but warns that they have to ensure they properly consider the professional indemnity requirements of the project, their own expertise and whether it’s a project they can do on their own or need to partner with a law firm to do. ‘One of the critical barriers to in house counsel getting involved in pro bono is lack of professional indemnity insurance, even if they want to purchase it themselves this is difficult to do. Other jurisdictions like Australia and Singapore have found solutions to this issue, hopefully Hong Kong will soon too.’
In-House Counsel Pro Bono in Australia and Singapore
In Australia, community legal centres are able to employ lawyers who can supervise legal volunteers, including in house counsel. In 2009, as a result of collaborative action by the Australian Pro Bono Centre [APB Centre], the Law Society of New South Wales, LawCover and DLA Piper, the APB Centre set up the National Pro Bono Professional Indemnity Insurance Scheme. The Scheme provides professional indemnity insurance to lawyers and paralegals working on a pro bono project that has been approved by the APB Centre. In house counsel can apply for insurance for a pro bono matter that they are working on, or seek an opportunity on the Centre’s register of approved pro bono matters – https:/www.probonocentre.org.au/provide pro bono/pi insurance scheme/register/.
The Hong Kong Centre for Pro Bono Service Limited is currently investigating the viability of establishing a similar scheme in Hong Kong.
In Singapore, regulatory changes were introduced in 2013 which enabled Singapore qualified lawyers who do not hold a Singapore practising certificate to provide pro bono advice and representation in certain circumstances. Where they are delivering legal services through a pro bono scheme administered by the Law Society of Singapore, in house counsel can be covered by the Law Society’s insurance.
Pro Bono Publico – for the Good of the Community
Hong Kong has a vibrant pro bono sector, keen to do more. By removing barriers to pro bono work, such as those for lawyers in NGOs and in-house counsel, access to justice will be extended to vulnerable and marginalised people who are currently unable to find legal assistance.
Access to justice benefits the whole community.