“Staying married may have long-term benefits. You can elicit much more sympathy from friends over a bad marriage than you ever can from a good divorce.”
As with any form of litigation in Hong Kong there is no rule which says that a party, whether Plaintiff or Defendant, has to be represented by a lawyer. Even criminal Defendants’ charged with the most serious crimes cannot be forced to be represented by a lawyer and there is certainly nothing to prohibit a husband or wife issuing divorce proceedings through the District Court Registry – see here – and thereafter representing themselves at the various court hearings that follow. For some assistance follow the Judiciary guide ‘About Resource Centre’ here and download the various explanatory pamphlets or try the very helpful Community Legal Information website.
The Home Affairs Bureau has launched a pilot scheme to provide free legal advice for those who have been refused Legal Aid, on civil procedure for litigants in person who are involved in legal proceedings in the District Court (including the Family Court) and High Court. See here.
However, in all but the most straightforward divorce (and even then), where both parties are agreed on the division of property and the arrangements for any children of the marriage, it is advisable to consult a specialist family law solicitor in the first instance. Contrary to popular belief, an initial consultation with a solicitor in Hong Kong may be obtained completely free of charge. The Law Society of Hong Kong provides list of solicitors’ law firms which offer free legal consultation, by appointment, in 24 areas of practice including family law – see here. Not all family law solicitors in Hong Kong are on this list but if in doubt a simple phone call will provide the necessary information. For a full list of solicitors offering legal services in family law – see here. As with any area of the law, most law firms will not charge for an initial consultation and where charges do apply for any work undertaken after this first appointment, there are very strict rules on the transparency of any legal fees that follow upon signing a retainer.
There is some anecdotal evidence ‘on the street’ here in Hong Kong that some (usually wealthy) clients are deliberately passing on the ‘sad news’ and just enough details of their impending divorce on the cocktail circuit in order to ‘conflict-out’ high profile divorce lawyers (solicitors and barristers) from being instructed by their spouse. Whilst there is nothing unlawful in this, albeit extraordinarily calculating, behaviour the potential pitfalls for any lawyer who may have been a party to such a conversation are very serious indeed. One might add that is such a small jurisdiction it is also very easily done. Risk Management Education (RME) courses are mandatory for solicitors who, along with barristers, should always be alert to possible conflicts of interest before accepting any instructions – matrimonial or otherwise. For an example of how such ‘conflicts’ can have catastrophic professional and financial consequences for lawyers see William Alan v Messer Ng & Co (a Firm) & Christopher Erving HCA 10844/1994 and the appeal in William Alan v Messers Ng & Co (a Firm) & Christopher Erving CACV 13/2011 – which argument lasted almost 17 years – from a ‘phone call’ in May 1994 by the sister of the husband (and at that stage only a potential client) to the solicitors who eventually (unwisely) chose to act for the wife, to the Court of Appeal judgment in March 2012. In this case no ‘retainer’ was ever even on the table much less signed by the husband. As ‘you couldn’t make it up’ stories go – this must be on the list of the ‘Top 10’ poor decisions taken by a legal professional anywhere. But is also fair warning to any new recruit entering the legal profession.
All lawyers fees will vary and they are usually negotiable on a case by case basis. Plainly the most experienced lawyers will command the highest fees. That is not to say that more junior lawyers are not perfectly capable of handling a straightforward case. Currently in Hong Kong parties can expect to pay HK$ 2,000 to HK$4,000-plus per hour for family law specialists in small to medium-sized solicitor’s firms. Similar rates will apply to junior barristers depending on seniority and experience. For Partners at leading firms and Senior Counsel hourly rates of HK$5,000 to HK$8,000-plus are not uncommon. However, litigants should be reminded that these rates are not currently reflected in the ‘Scale Rates’ used in the taxation and recovery of costs for the successful party. In short even those who win their cases ‘hand down’ may not necessarily be able to fully recover their costs from the other party. See here.
That said, clients should always demand absolute clarity and transparency on legal fees together with reasonable estimates of the work that needs to be done, the time it is likely to take and who will be working on your file. Where a solicitor advises that counsel (a barrister) should be instructed there is never any harm in asking for a fixed fee for the ‘Brief’. For straightforward divorce applications where matters are likely to be dealt with by Consent Orders, there is also nothing wrong with asking for a solicitor to undertake the work for a all-inclusive fee plus disbursments. In short members of the public should not be afraid to negotiate the cost of litigation and – as with medical or dental services or indeed when looking for a good plumber – to shop around.
A recent newspaper article quoted a French wine grower as saying that an increasing number of Chinese are ruffling feathers in Burgundy when they arrive via minibus or in small groups: “They never say hello or goodbye. All that matters is the price. If it’s €60, they’re not interested. If it’s €250, they take six. They don’t give a stuff about the wine itself.” Some clients clearly think similarly when it comes to choosing a lawyer – with cash comes chachet. But just as wine buyers should understand that a high price on a bottle is no guarantee of its contents – so too they should understand that this is also true of lawyers. Self-evidently many years of experience and a high profile in the profession must count for something. Likewise to be a ‘Silk’ (SC) at the Bar is an assurance to solicitors and the public alike of a barrister at the very top of his or her profession and likely to be an outstanding practitioner in their field. That said, the professional bodies of both the Bar Association and the Law Society go out of their way to ensure minimum standards of education and training as well as professional conduct. And there are (and rightly so) draconian sanctions for any lawyer who fails to maintain these very high standards. Nevertheless the myth prevails in Hong Kong that if a lawyer is sporting a Timex as opposed to a Rolex he or she must be second-rate. This is highly unlikely to be a good indicator of ability or – often as important – that he or she is the right person to conduct a particular case.
Not all family law solicitors undertake publicly funded work, although unlike solicitors, barristers are subject to wider obligations under the so-called ‘cab-rank’ rule – see Para 21 of the Bar Code of conduct. Once describe by Lord David Pannick QC as a gross libel on the morals of taxi drivers it is nevertheless a fundamental and proud boast of the Bar that, save in exceptional circumstances, ‘a practising barrister is bound to accept any instruction to appear before a Court in the field in which he professes to practise at his or her usual fee having regard to the type, nature, length and difficulty of the case.’ (HKBA) In short, those who do undertake work for the Legal Aid Board and Duty Lawyer Service must, if so instructed, must give the same very high standard of service to both the professional and lay client whether publicly funded or paying privately.
Legal aid is available in both civil and criminal proceedings in Hong Kong. All matrimonial proceedings are civil proceedings and parties who qualify for financial support may apply, inter alia, for cases in the Family Court (District Court), the Court of First Instance, the Court of Appeal and the Court of Final Appeal. Any person, whether or not resident in Hong Kong, who is involved in such court proceedings may make an application. To successfully apply for legal aid, a party must pass the merits test and the means test. This means that legal aid will be granted if the applicant is able to satisfy the statutory criteria as to their financial eligibility – see here – and the merits of the case for taking or defending the legal proceedings – see here.
An Independent Legal Aid Authority?
The Law Society have long been campaigning for reform of the current Legal Aid scheme. Most recently the Law Society issued a public statement – see link below – on reform which was introduced to members by the President, Mr Dieter Yih, saying:
The Law Society has been advocating for the establishment of an independent statutory legal aid authority (ILAA) for decades. The existing system is failing the public. Citizens are being denied access to justice as evidenced by the increasing number of litigants in person before the courts. Various problems had surfaced. For example, the application process for legal aid is becoming more and more bureaucratic and drawn-out, the financial eligibility limits remain low and fail to keep pace with inflation, as a result of which a significant portion of the “sandwich class” is excluded. Further, the unattractiveness of the legal aid application process encourages the soliciting of vulnerable applicants such as personal injury victims by recovery agents.
Every one has the right to gain access to the justice system, and legal aid is the means by which the right, for many, can be made a reality. We believe that only a truly independent ILAA, funded by, but entirely free from any hints of influence from, the Government, can exercise an independent view on and determine its own policy, carry out timely reform to expand the scope of service and increase the financial eligibility limits so as to meet the public needs, lobby for the expansion of the legal aid budget, and make impartial and independent decision in assessing any application involving claims against the Government.
The establishment of an ILAA has been delayed for 25 years without any credible justification. The Law Society issued a public statement on 26 September urging the current Administration to give immediate priority to this issue and to put legal aid back on the right track.