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Enforcing legal conduct to protect quality of legal services

Enforcement of professional codes and laws of conduct is a critical facet of legal regulation. Lawyer misconduct can have severe ramifications for consumers and the wider legal services market, eroding the reputation of the industry and jurisdiction. However, the processes and protocols for reporting misconduct by a legal service provider is often difficult or lengthy leading many to abandon the process.

The various reasons for inconsistency in reporting lawyers’ misconduct during litigation proceedings—and the extent to which it should be considered an actual inadequacy and a problem calling for a rule-based solution—have been the subject of active scholarly discussion and debate. One contributing factor may be the inherent inefficiencies involved with the current reporting system, which can be substantially mitigated through the effective use of electronic database technology. The successful experience with electronic filing and records in some United States court systems creates an opportunity for courts to extend these technological breakthroughs to provide logistical support to a much improved system for judicial reporting of lawyer misconduct. The creation of state and federal electronic databases accessible to and searchable by state disciplinary agencies would undoubtedly enrich the quality of enforcement in contributing jurisdictions, but expanding such a system to become accessible and searchable for the public would contribute to broader transparency and accountability. We have seen broader integration of technologies in other areas of legal services provision and regulation worldwide, so integrating such technologies into how consumers or other legal professions report misconduct seems a logical next step.

There is another component to enforcement of standards: the people who come forward and report misconduct. The Solicitors Regulation Authority (SRA) has updated its Enforcement Strategy, which explains when and how it would take action against a law firm or solicitor. Within this strategy, the regulator has published proposed changes to the wording of its rules regarding when firms should report cases of potential misconduct to the regulator, as it became apparent that law firms were interpreting the existing rules in different ways. The updated rules emphasise that nobody should face detrimental treatment for making, or proposing to make, a report, following from feedback around concerns that individuals reporting potential misconduct may be victimised. Similar steps have been taken in the Australian system, which has recently taken a tougher stand in relation to reporting misconduct and the #MeToo movement. Such a proactive approach to regulating attorneys in Australia is used as a springboard to discussing the role of proactive regulation of lawyers in advancing public protection.

Of equal importance is that regulators and enforcement bodies remain open to circumstance. In Hong Kong, the Bar recently completed a ruling on aspects of the meaning of “fit and proper”. The case of Re A is a rare example of a barrister’s contested application for admission to the Bar pursuant to s. 27(1) of the Legal Practitioners Ordinance (Cap. 159). The application was dismissed at first instance due to a ruling that the applicant did not meet with standards of “fit and proper” due to a conviction of a criminal offence resulting in a custodial sentence. However, following an appeal, the Court of Appeal taking a more holistic “multi-faceted” approach, allowed the application for admission. In the process, the Court gave general guidance for determining whether (among other things) an applicant with a criminal conviction can demonstrate on the facts that he or she is fit and proper to be admitted to the Bar.

 

Reform in Legal Education and Training in Hong Kong

In the article which follows, Heidi Chu, Secretary General of The Law Society of Hong Kong kindly provides us with an overview of the ‘state of play’ of legal education and training reform in Hong Kong.

The present system of legal education and training in Hong Kong involves three stages, namely:

  • an academic stage (a qualifying law degree e.g. Bachelor of Laws “LLB” or Juris Doctor “JD”);
  • a vocational course (i.e. the Postgraduate Course of Laws (“PCLL”));
  • a workplace apprenticeship (i.e. a two year training contract with a law firm for intending solicitors or a one year pupilage at a barrister’s chambers for intending barristers).

The completion of the PCLL is a pre-requisite to entering into a trainee solicitor contract for intending solicitors. The PCLL is defined under the statute as the course provided by three specified universities (“PCLL providers”). The PCLL providers currently enjoy self accreditation status and are empowered to set their own admission criteria and conduct and mark their own examinations, subject to the PCLL benchmarks issued by the Law Society. The PCLL providers have thus become the gatekeepers to the legal profession upon both entry and exit of the PCLL, which is the entry point to the traineeship leading to admission as a solicitor.

In view of the changes that had taken place over the years including the increase in the number of PCLL providers, the varying qualifications of PCLL applicants, the widening of the scope of services provided by solicitors and the growing number of foreign lawyers in Hong Kong, the Law Society considered it important to ensure consistency in the assessments and standards of entrants to the solicitors’ profession. The Law Society has therefore proposed to introduce in 2021 a common entrance examination (“CEE”) in the format of centralised assessments for law graduates to qualify as solicitors in Hong Kong. This proposal will not affect those intending to become barristers in Hong Kong as the proposal is not to abolish the PCLL. The Law Society is finalising the details of the proposed CEE.

On the other hand, the Standing Committee on Legal Education and Training, which is a statutory committee set up to oversee legal education and training in Hong Kong, has commissioned a comprehensive review on the legal education and training area with a view to enhancing professional standards in the legal sector as a whole. The review is still on-going and a report is expected by the end of 2017.

Contributed by: Heidi Chu, Secretary General, Law Society of Hong Kong

80% of major jurisdictions use central qualifying assessment

In an international benchmarking exercise, the Solicitors Regulation Authority (SRA) in England and Wales finds that almost 80% of the jurisdictions surveyed have a common assessment as part of lawyer qualification.

Press release on SRA website

Report on SRA website

Hong Kong Law Society to introduce common entrance exam

Hong Kong Law Society has proposed that from 2021 onwards, lawyers in Hong Kong will be required to sit and pass a ‘Common Entrance Examination’ in order to enter a trainee solicitor contract.  The exam will be set and marked by the society itself, and is designed to standardise testing across Hong Kong’s three law schools.

Currently, prospective solicitors must graduate from an LLB or JD programme in Hong Kong or another common law jurisdictions, then complete the Postgraduate Certificate in Laws (at one of three universities) and pass the internal examination set by schools before becoming a trainee solicitor.

According to the future scheme, “a person may only enter into a trainee solicitor contract if that person has passed a Common Entrance Examination.”  Under this system, students will have to complete the PCLL course but will not be required to take the examination set by PCLL providers, which will be replaced by the single unified test.

Read in full the Hong Kong Law Society’s press release and response to Hong Kong University and HK Bar Association.