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Percy Lo-Kit Chan
17 May, 2010  
HK bar strives to protect its turf

Later aristo sons went to the bar … Now Hong Kong authorities crack down on poorer grade graduates wanting to be barristers … Right of audience for solicitors expanded … English structure on its last legs … Percy summons ghosts of halcyon days

imageThe immediate connection between primogeniture, the British Empire, and the Hong Kong bar, may not be readily apparent, but it is there nonetheless.

How so?

Primogeniture ensured that the upper-crust first born son scooped the pool, while every younger brother had to find something else to do.

It is part of this problem that drives the plot in Pride and Prejudice since Mr Bennett only has daughters.

Que faire?

Well, respectable occupations for upper-class disaffected second, third and fourth sons, were respectively the Coldstream Guards, the church where a “living” might be in a relative’s gift, and the bar!

Does not Orwell make the acute observation that the officers of the British Army are drawn universally from the upper middle class, and the yeomanry, while the troops come exclusively from the slums of Liverpool and Glasgow?

That is exemplified by the Royal Family today where the future King is training to be King while his brother is in the Lifeguards.

imageSo it was that the Empire could expand by sending forth the unmarried younger sons to battle against the Dervishes, and the Fuzzy Wuzzies, in the distant parts of the Empire.

Put a second son in charge of 50 sepoys, let him speak fluent Hindi and Ghurkali, be confident that he was “brave to the point of madness” (as Field Marshal Sir Redvers Buller VC, pic, was once described) and the quest for dominion over palm and pine was almost guaranteed.

What has this to do with the bar?

Well, the bar was a gentlemanly occupation – you could not “eat your dinners” and survive without briefs for several years without private means – that is still the position more or less in England today where an aspiring barrister goes down from the ‘varsity and subsists on an overdraft in an unheated flat in London until something turns-up.

No upper-class scion in his right mind would ever think of being a common solicitor in England. The very name says it all – soliciting for work, having paid a premium to some other middle-class fellow to be articled to him.

Too, too killing for words.

imageViscount Haldane (pic) in his autobiography simply describes his funding when he commenced into practice in late Victorian England:

“I raised funds upon sign of my own hand on the security of what was to come to me in my time!”

How pleasant.

Australia has never succumbed to such a class-bound system.

To begin, the “ticket-of-leave” men may have contained a few aristos, but all necessarily had a fall from grace.

Moreover, in Sydney, unlike London, no-one is prepared to pay you at their expense while you learn your trade.

Almost universally, those attending the bar practice course (men and women) have served an apprenticeship of several years as a litigation or finance solicitor, learning the ropes in a large or small firm.

Hong Kong loves a Lord. We still maintain the English model, but it has failed.

The Hong Kong bar has until very recently enjoyed a monopoly on appearances in the higher courts.

This is another large contrast with Australia because of your fused profession, solicitors have enjoyed a right of audience in every tribunal from the beginning.

A newly admitted solicitor could, were she so ill-advised, appear on the hearing of a full appeal in the High Court and no-one would gainsay her right to do so.

Of course, as a matter of commonsense, the more difficult the case, and the more “bloody” the tribunal, the more experienced the advocate – invariably a barrister in the larger States – who will appear.

imageI understand things have taken a sad slide for the worse for the bar in Sydney over recent years.

In the halcyon days, a judicial character like Rogers CJ Comm Div (seen here) or Giles CJ Comm Div, or offsiders “Morty” and “Terry”, would strike terror into most solicitors (and it must be confessed, most junior counsel) on a Friday List by having “defences” taken down ore tenus, and entering judgment summarily if they were not up to scratch.

This had the very helpful effect of ensuring that solicitors were terrified of appearing themselves for a judicial mauling and inevitably briefed counsel for such hearings.

My Sydney sources tell me that “the Hammer” is starting to inject a little more of the old vigour into the list.

In Hong Kong, the term for “barrister” in Cantonese is dai lo si – literally, a big lawyer, as opposed to the much more humble solicitors.

Ironically, in Hong Kong until earlier this year, a barrister admitted for just a couple of weeks could appear in the higher courts while a solicitor (perhaps the managing partner of an international firm) could not do so.

The Hong Kong bar has about 1,000 barristers. In order to become qualified as a solicitor, a graduate must obtain a “training contract” to do articles for two years.

A barrister needs simply to attend the bar course and set up chambers.

The inevitable has happened. The weakest law students who unfortunately have not been able to obtain articles have simply commenced practice as barristers.

This is now causing consternation since there is no real guarantee of their quality at all.

The court has now increased the range of matters in which solicitors may exercise a right of audience so the old monopoly has gone.

Solicitors can obtain extra accreditation and then appear.

So, too, just announced, the bar is introducing a much tougher assessment regime for intending counsel. The HK Bar Association has set up a “special committee for pupillage reform”.

At present the newly admitted barrister must do a pupillage of at least three months. This may be contrasted with the exemplary system which operates in Victoria where a new barrister must attend his master’s chambers for six months at least, and where the bar council assists new arrivals by subsidizing the cost of accommodation.

The Sydney system, based on buying and selling chambers which attract a large amount of goodwill, with hopeful applicants “fattened-up” in an “Annexe” (sic) while awaiting an invitation to join a “famous floor” does not bear comparison.

It is rightly perceived that the new HK protocols are likely to mean screening out a large number of weaker applicants who may find that they can practice neither as solicitors (no training contract) nor as barristers (insufficient experience and basic competence).

If it were generally possible to fly in experienced Sydney silk as a matter of course (à la J Sumption in the C7 litigation) under some general agreement on services, then the cost of litigating in HK would decline markedly.

At present, the quaint English custom obtains where counsel collects a brief fee on delivery of the brief, and “refreshers” for every day in court.

For whatever reason, such things never caught on in Australia.

Some claim that Australia is as class bound as any other country but from where I sit the absence of any distinction between barristers and solicitors suggests this is not entirely true.

Lo-kit Chan, Percy