Independence of the Legal Profession

Arising from the recent withdrawal of a UK Queen’s Counsel from acting in the prosecutorial role in a trial in Hong Kong are some fundamental principles that are worth reiterating (although one may have thought that such reiteration should not have been necessary as those principles are so entrenched in the core values of the legal profession). On 27 January 2021, the Law Society issued a statement to reiterate those principles and to uphold the independence of the legal profession and the criminal justice system.

As referred to in the statement, the United Nations Basic Principles on the Role of Lawyers provide that governments shall ensure that lawyers:

(a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference;

(b) are able to travel and to consult with their clients freely both within their own country and abroad; and

(c) shall not suffer, or be threatened with, prosecution or administrative economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

Hong Kong’s regulatory regime and conduct rules of the legal profession work in such a way as to ensure that lawyers maintain independence in fulfilling their professional responsibilities, and provide (and be perceived to provide) unbiased advice and representation.

At the solicitor-client level, legal professional privilege is the cardinal rule that protects the independence of a solicitor-client relationship from undue interference.

The right to confidential legal advice and choice of lawyers for timely protection of one’s lawful rights is a constitutional entitlement that every Hong Kong resident enjoys under Article 35 of the Basic Law. It provides:

“Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies. Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.”

Further, a person has the right to refuse to disclose, even to a court, confidential communication with his lawyer made for the purpose of obtaining legal advice.

At the individual level, the core value of independence is reinforced in various professional conduct standards including, for example, avoidance of conflict of interest, as in Principle 7.02 of the Hong Kong Solicitors’ Guide to Professional Conduct Volume 1 (“Conduct Guide”) provides that

“A solicitor must act in the best interest of his client and he must not put himself in a position where his own interests conflict or are likely to conflict with his duty to his client, quasi-client or potential client.”

At the general level, there are strict requirements governing independence from third parties who may cause lawyers to compromise their professional duties to their clients. For example, rule 4 of the Solicitors’ Practice Rules prohibits solicitors from sharing their profit costs with people who are not practising solicitors. Principle 5.06 of the Conduct Guide ensures that where instructions are received not from a client but from a third party purporting to represent that client, a solicitor should obtain written instructions from the client that he wishes him to act. All these requirements aim at safeguarding against any possibility of interference from third parties with solicitors’ exercise of their professional duties.

Independence of a lawyer requires also that the process for the lawyer’s admission to the profession and discipline are carried out in a manner that guarantees that administration of the legal profession is free from undue or improper influence.

The solicitors’ profession in Hong Kong is self-regulatory. Our regulatory powers are derived from the Legal Practitioners Ordinance and the subsidiary legislation (Cap 159, Laws of Hong Kong). Under the Ordinance, the Law Society has a certificating role in the admission procedure. It is empowered:

(a) to issue annual practising certificates and certificates of registration to Hong Kong solicitors, foreign lawyers and foreign law firms;

(b) establish rules for the conduct and education of solicitors and trainee solicitors;

(c) arrange and maintain a compulsory Professional Indemnity Scheme; and

(d) investigate and refer allegations of professional misconduct to the Solicitors Disciplinary Tribunal.

There were previous incidents where abusive and unfounded criticisms were directed personally at judges involved in hearing controversial cases. Apart from judges, lawyers representing the parties in controversial cases are also exposed to the risk of being victimised by similar criticisms for doing their job. It is important to note that the role of lawyers is to facilitate effective and prompt access to legal services and to act in the best interests of their clients as independent advisers to protect and establish their legal rights.

Lawyers should not be identified by the public with their clients or their clients’ cause.

No lawyer should suffer or be threatened with sanctions or harassment by reason of his or her having legitimately advised or represented any client or client’s cause.

The independence of lawyers in the discharge of their professional duties without any improper restrictions, pressures or interference is fundamental to the maintenance of the rule of law. Hong Kong has a robust legal system that protects the independence of the legal profession and any attempt to inhibit the proper functioning of lawyers is to be deplored as an affront to the rule of law.

President

The Law Society of Hong Kong