Competence of legal officers should be recognised by judicial and legal sectors

The Department of Justice (DoJ) is exploring a proposal to enable all legal officers serving in the Government (DoJ and some other Government departments) to be appointed as Senior Counsel. I wish to clarify all the unwarranted misunderstanding through the blog article today.

Aligns with existing regime and merit-based selection principles

In accordance with the existing arrangement, an eligible barrister may apply for appointment as Senior Counsel. The Chief Justice, may, after consultation with the Chairman of the Bar and the President of the Law Society, make the appointment. According to section 31(A) of the Legal Practitioners Ordinance, the eligibility requirements for the appointment include: (1) sufficient ability and standing, sufficient knowledge of law; (2) requisite experience; and (3) practising as an advocate. The proposal does not change the current regime and the criteria for appointment. I trust that the Chairman of the Bar and the President of the Law Society would duly consider the eligibility of each applicant before tendering their fair and honest advice to the Chief Justice for his consideration.

Therefore, the proposal does not change the necessary ability and experience required by Senior Counsel and aligns with the merit-based selection principle.

Legal officers perform both advocacy and non-advocacy duties

The functions of legal officers and private legal practitioners are different. The proposal reflects the fact that there is no practical distinction between the duties of legal officers who are solicitors or barristers.

Legal professionals in private practice are broadly categorised into two main streams: solicitors and barristers. However, legal officers in the Government, regardless of whether they are solicitors or barristers, have the rights of audience at all levels of courts. In fact, legal officers perform both solicitorial and advocacy duties. In other words, legal officers who are not admitted as a barrister in Hong Kong can also be assigned with advocacy duties. Legal officers who have satisfied the eligibility requirements under section 31(A) of the Legal Practitioners Ordinance deserve the same opportunity for consideration to be appointed Senior Counsel as a recognition of their competence. The different role of solicitors and barristers in private practice would not be confused if one apprehends a good understanding of the work of legal officers.

The proposal is in the public interest

In addressing the Ceremony for the Admission of the New Senior Counsel, the Chief Justice expressed that “[t]he power of appointment, like all public law powers, must be exercised for the furthering of the public interest. Indeed it is this public interest that underscores the unique status and responsibilities of the rank of Senior Counsel… As a badge of responsibility, it denotes our community’s trust and expectation that an appointee will put his or her excellence and experience to good use by faithfully discharging the responsibilities placed on them, thereby serving the public interest.”

The proposal encourages legal officers who shoulder important public functions and enables them to be recognised by judicial and legal sectors for their excellence, which is in line with the public interest.

Arrangement for outgoing legal officers

The proposal suggests that legal officers, who are appointed as a Senior Counsel in the new regime and left the Government service, shall no longer carry the title of Senior Counsel.

Matters relating to private practice should be dealt with by the self-regulatory regime, which is duly respected, in accordance with the established procedures and rules of the legal professional bodies.

All legal officers, regardless of solicitors or barristers, deserve fair treatment and rights. In recognition of their competence and achievements, legal officers should be equally eligible for appointment as Senior Counsel upon satisfying the requirements under section 31(A) of the Legal Practitioners Ordinance.

June 12, 2021