Margaret Ng


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LegCo Online Up-date - (1) Criminal Legal Aid fees (2) Higher Rights of Audience for Solicitors
LEGCO 2008-12-18


1. CRIMINAL LEGAL AID FEES

Negotiation on criminal legal aid fees between the Law Society and Home Affairs Bureau (HAB) seems to be stuck, it transpired at the meeting of LegCo’s AJLS Panel on 16 December. Lengthy discussion took place to unrevel the problems.

While there is a big gap between the increase proposed by HAB and the expectation of the Law Society, the fundamental difference is the approach towards the fee increase. The Law Society considers criminal legal fees should be on a par with the civil fee scale, but with a discount to reflect the public service element. HAB, on the other hand, considers the scope of increase from the existing level which can be justified in the context of budgetary considerations. On that approach, the HAB believes that its proposed increase, amounting to 70%, is already sizeable.

HAB urged Law Society to accept the proposal so that legislative amendments can be introduced and the new fee structure and increased rate of payment implemented within 2009, on the understanding that discussion will continue on further increase in a future exercise. The Law Society did not find the proposal attractive because HAB made no attempt to address the question of principle.

LegCo members at the meeting were generally sympathetic to the Law Society. They would like to see criminal legal aid fees placed on a professional basis so as to attract more solicitors of high standards and experience to take on criminal legal aid work. DLA disclosed that currently 800 solicitors and 294 barristers have expressed interest in criminal legal aid work, and 2008 cases have been assigned to solicitors, with 1,721 cases instructing counsel. But numbers alone do not give the full picture.

If the negotiations were to break down at this stage, a great deal of time and efforts on all sides would have been wasted. Moreover, if no solution is in sight for the foreseeable future, then the demand of the Bar for their side of the reform to proceed will have to be addressed. The legislation and consequential implementation will be less than ideal. Summing up the discussion, the Chairman urged HAB to consider the appropriate basis for setting up the level of fees in consultation with the Law Society, as further negotiation on future increase is unlikely to be meaningful otherwise.
The Way Forward: HAB and the Law Society were requested to inform the Panel of further progress in due course. Meanwhile, HAB is to clarify its position on proceeding with the reform on fee restructure relevant to the Bar should agreement with the Law Society is not forthcoming.

Link to papers:

(a) Administration’s paper on “Review of criminal legal aid fees system”
http://www.legco.gov.hk/yr08-09/english/panels/ajls/papers/ajl216cb2-438-5-e.pdf

(b) Background Brief on “Criminal legal aid fee system” prepared by the Legislative Council Secretariat
http://www.legco.gov.hk/yr08-09/english/panels/ajls/papers/ajl216cb2-438-6-e.pdf



2. HIGHER RIGHTS OF AUDIENCE FOR SOLICITORS

Legislation to implement a system for solicitors to acquire higher rights of audience will be introduced by June 2009 as reported by the Department of Justice to the AJLS Panel. Under the provisions of the bill, regulations will be made by the Law Society subject to the approval of the Chief Justice. The Draft Code of Conduct for Solicitor-Advocates was tabled at the meeting of the Panel. Consultation on the draft bill continues with the Bar and the Law Society, as explained by DoJ, mainly on the question of whether certain provisions should be best included in the primary legislation or left to the regulations.

The Way Forward: The bill is expected to be introduced by June 2009, at which time a bills committee will be formed to scrutinize the bill.

Link to papers:

(a) Administration’s paper on “Solicitors’ rights of audience”
http://www.legco.gov.hk/yr08-09/english/panels/ajls/papers/ajl216cb2-438-9-e.pdf

(b) The Law Society of Hong Kong’s letter dated 2 December 2008 enclosing a copy of its draft Code of Conduct for Solicitor-Advocates
http://www.legco.gov.hk/yr08-09/english/panels/ajls/papers/ajl216cb2-393-1-e.pdf

(c) Background Brief on “Solicitors’ rights of audience” prepared by the Legislative Council Secretariat
http://www/legco.gov.hk/yr08-09/english/panels/ajls/papers/ajl216cb2-438-10-e.pdf
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