Re A Barrister

HCMP000333/1980

In Re a Barrister

Coram: Roberts, C.J., Cons, J.A. & Yang, J.

Date of Judgment: 5th May, 1980.

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JUDGMENT

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Roberts, C.J.:

Introduction

1. The Chief Justice, on the application of the Bar Committee, appointed a Committee of Inquiry under section 35 of the Legal Practitioners Ordinance to inquire into various complaints against a barrister (the respondent).

2. The Committee of Inquiry forwarded a report to the Chief Justice, expressing the opinion that a prima facie case of misconduct had been made out against the respondent. Accordingly, the Chief Justice ordered that the matter be set down for hearing before the Court of Appeal as required by section 37 of the Legal Practitioners Ordinance (Cap.159).

3. Counsel for the Bar Committee moved the court to take disciplinary action against the respondent, on the basis of the findings contained in the report.

Proceedings before Committee of Inquiry

4. The complaints originally laid were amended, by agreement between counsel appearing for the Bar Committee and counsel representing the respondent. These amended complaints and a statement of facts, which was also agreed by counsel on both sides, were placed before the Committee of Inquiry.

5. The Committee of Inquiry, since there was no dispute as to the facts, had only to consider whether the behaviour of the respondent, on the basis of these facts, amounted to professional misconduct. The Committee decided that it did.

Facts

6. The incidents which are the subject of the complaints arose out of a case which was tried in Fanling Magistracy in 1979. In essence, the complaints alleged that the respondent negotiated his fees directly with the defendants and without the intervention of a solicitor. There were ten complaints, involving five pairs of transactions, each pair consisting of the negotiation of fees and their receipt.

7. In some instances, the fees were paid to the respondent and retained by him; in others, they were paid to him but later passed on by him to his instructing solicitors.

8. In relation to the negotiating and acceptance of one fee, however, there was an aggravating factor in that the respondent sought and received a fee in addition to that which he had already agreed with the defendants should cover his appearances throughout the trial.

Mitigating factors

9. Mr. Bernacchi put forward on behalf of the respondent a number of mitigating factors.

10. The first approach was made to the respondent by the administrator of the Law Society's Legal Advice and Assistance Scheme, who asked the respondent if he were prepared to assist in the case. At that stage, the respondent agreed to provide his services without charge.

11. The respondent next spoke to a lay representative of the defendants and informed her that he was willing to act without fee, but made it clear to her that he could not do so unless he were instructed by a solicitor.

12. When she asked him to represent the defendants, he offered to find a solicitor, who would be willing to take the necessary steps to instruct him. Unfortunately, he chose to approach H, a member of a new and inexperienced firm, which, in the event, was unable or unwilling to carry out the proper functions of an instructing solicitor. Indeed, at one stage, the respondent was encouraged by a member of that firm to arrange directly with the defendants for the payment of his fees.

13. After the respondent had undertaken to represent the defendants without fee, it was discovered that the defendants had been paid a substantial amount of compensation for the vacation of their premises. (It was in relation to the vacation of these premises that the offences with which they were charged had arisen). A proportion of this compensation had been earmarked for legal fees and costs and H suggested to the respondent that there was no longer any reason for him to continue to conduct the case on a complimentary basis, and that he should receive a proper fee.

14. As we have observed, an additional fee was sought and received by the respondent during the course of the trial. Although it constitutes professional misconduct, where counsel has agreed an overall fee, to seek to have it increased during the course of the trial, there were factors which make his conduct more understandable than might usually be the case.

15. At the conclusion of the evidence on the 23rd August at Fanling Magistracy, the magistrate announced that he would deliver his verdict on the 30th August. In accordance with his usual custom, he announced that, if any of the defendants was convicted, he would not consider sentence on that day but would adjourn for a further period of one to two weeks.

16. This put the respondent in some personal difficulty, as he had undertaken to visit Europe for a substantial fee to take part in the World Taekwondo Championships. He told the defendants that, in view of this commitment, he proposed not to appear at the adjourned hearing when sentence would be considered. Not unnaturally, this caused some anxiety to the defendants, who asked him to re-arrange his affairs so that he could appear for them when sentence was considered. He agreed to do so, if they paid him a further fee.

Personal background

17. The respondent was called to the Bar by the Middle Temple in October 1976, but did not practise before he undertook his pupillage in Hong Kong for a period of twelve months from October 1977 to October 1978.

18. After his pupillage here was finished, he returned to London. He did not come back to Hong Kong and start practice until February 1979, which was less than six months before the trial with which we are concerned. He thus had very little experience of practice.

19. Mr. Bernacchi has argued persuasively that the respondent's actions were due to foolishness and lack of experience, rather than to any conduct which involved moral dishonesty; and we are in agreement with this submission.

20. We think it proper to observe that, while his conduct cannot be wholly excused, the manner in which his instructing solicitors behaved was one which has great dangers for counsel as well as for the lay client. It is quite wrong for a solicitor to put counsel into a position where the latter is obliged to come closer to the lay client than is desirable, since the maintenance of a reasonable distance between lay clients and counsel is essential to the maintenance of a proper degree of independence and objectivity by members of the Bar.

21. We were referred to In re a Barrister⁽¹⁾, in which counsel of long-standing was suspended from practice for six months for taking instructions and receiving fees directly from the lay client over a long period.

22. We regard this as a much less serious case, and consider it is sufficient for the respondent to be censured in accordance with the provisions of section 37(6)(a) of the Legal Practitioners Ordinance (Cap. 159), as a mark of disapproval for what, in spite of the mitigating factors, was a series of acts on professional misconduct.

23. We have decided that it is unnecessary for this order to be published in the Gazette, since we attribute the respondent's conduct to inexperience and foolishness rather than to a deliberate flouting of the rules. We do not consider that the widespread publicity which would follow from the publication of such a notice is necessary or desirable in this instance. We therefore direct that publication of this matter should be limited to informing the Bar Association and the Law Society of the order of censure.

Representation:

A. Li (F. Zimmern & Co.) for Bar Committee

Bernacchi, Q.C. and Whitehead (R.J. Oliver) for respondent

(1) (1968) H.K.L.R. 585.