Bread and Butter Issues, particularly for Young Bar
Philip has all along been vocal about the livelihood of the Bar. In the Chairman’s Speech at the Opening of the Legal Year 2005, Philip said:
“……If the law governing the provision of legal aid in criminal cases in the District Court and High Court is not reviewed soon then there will be a scandal.
The plain fact is that the scheme, designed over 35 years ago and incorporated in the rules made under the Criminal Procedure Ordinance is simply not now up to the job of ensuring that lawyers, both barristers and solicitors, are fairly remunerated for the essential public service that they provide in defending persons accused of a crime to the best of their ability.
Things are not much better on the civil side. The means test which must be cleared before getting legal aid is savage. The result is that legal aid for civil cases is generally limited to the poorest members of our community. That does not sound so bad unless you happen to be on a middling income and you discover that you need to sue someone or, worse still, someone sues you. Then getting access to the court, as I have said, fundamental right guaranteed by the Basic Law, can be very, very expensive.
This problem is ameliorated to a limited extent by the Supplementary Legal Aid Scheme catering to the slightly better off but this scheme will only a fund a limited range of cases where the nature of the cases (personal injuries, death and negligence cases) means that it thinks that scheme will usually make money or at least not lose money. More difficult types of case are not covered.”
Most of us, including Philip who has been in silk for 20 years, take on pupils to keep alive the Bar by nurturing the future generations who will, eventually, join in elections themselves to give direction to the profession. We are well aware of the challenges young barristers are facing.
Most young barristers survive the early years of their career by doing publicly funded work. We believe more can be done by the Bar Council in this area which will at the same time make legal representation available to more people who cannot afford a lawyer.
We will therefore explore various new ideas in the Bar Council if we are elected with the aim of nurturing the young Bar because only by barristers being able to have viable careers in the early days will a strong Bar be sustainable in the next generation. We have in mind these ideas for change:-
Review systems of remuneration in publicly funded work:-
1. Request the respective government departments to set up annual review systems with representations from the Bar on the rates of remuneration for counsel instructed by the Legal Aid Department (“LAD”), Department of Justice (“DOJ”) and Duty Lawyer Service (“DLS”).
2. Propose to the government the idea of expanding legal aid coverage to certain types of cases in the Lands Tribunal, e.g. land resumption, compulsory sale, Building Management and Landlord and Tenant cases.
3. Press the LAD for a review of entry requirements for young barristers to be included in the Legal Aid panels. The criteria for entry appear too rigid. For example, instead of requiring a young barrister to have conducted 15 trials in the preceding 3 years at the District Court level before inclusion in Legal Aid panel, a young barrister may become eligible if he/she has conducted 15 trials in the preceding 3 years regardless of court level.
4. Press the LAD for review so that entry requirements might be relaxed for cases involving less complicated offences or offences that are regularly tried in the District Court.
5. Explore the idea of a voluntary scheme with Members and the LAD under which silks and senior juniors are willing to be briefed on concessionary rates with adequately remunerated briefs being offered to junior young barristers.
6. Discuss with the LAD on an agreed system of payment of brief fees and/or some unused refreshers in cases where counsel are replaced due to requests by lay client or the case is settled at very late stage.
7. Discuss with the LAD speeding up decisions on legal aid eligibility. This is a particular problem in judicial review cases where applicants must act with promptitude or else be held to have been guilty of undue delay.
8. Press the LAD for prompt payment of interim and final fees at a reasonable rate. It is scandalous that counsel who undertake legally aided work must wait several years before final payment of fees when the government and other public bodies in the same case using the same public funds settle counsel’s fees promptly.
9. Press the DOJ for transparent and objective appointment and promotion systems of counsel to respective fiat lists.
10. Discuss with the DOJ to ensure a fair system of briefing out fiat cases.
Duty Lawyer Services:-
11. Promote to the Government an expansion of services provided by DLS to cover legal visits and not just in cases where police bail has been refused.
Security Bureau’s Pilot Scheme on cases of non-refoulement claims:-
12. Press the Security Bureau to refine the Pilot Scheme so that barristers may participate without risking possible contravention of the Bar Code.
Secondment or understudy opportunities:-
13. Explore secondment/understudy opportunities with different government departments and regulatory authorities, e.g. the LAD, Official Receiver, Official Solicitor, Competition Commission, Equal Opportunities Commission and the Personal Data (Privacy) Commission.
14. Press the DOJ for reasonable and realistic remuneration for understudy work.
Training delivery opportunities:-
15. Liaise with other professional bodies to co-organize CPD courses to be delivered by young barristers with remuneration.
Relaxation of restrictions on practice:-
16. Explore the suggestions of relaxing the restrictions on supplementary occupation in light of the modern trend of multi-discipline expertise and the fact that the Bar Code already provides for regulation of conduct away from chambers and legal professional matters.
17. Explore the possibilities of further expanding the types of cases in which direct access may be allowed, e.g. in some road traffic offence cases.
Law reform for class actions:-
18. Press the Government to implement the numerous outstanding proposals of the Law Reform Commission on the topic made in 2012.
Financial Status of the Bar
We have been informed that the financial resources of the Bar have been much depleted in the last couple of years. Although we should provide quality training and coures for Members, particularly those who are starting out on a career at the Bar, we must also safeguard the interests of all members. We will review the financial situation of the Bar, particularly the need for substantial expenses that have been incurred.