Whatever Lola wants…

July 15, 2021 06:00
Photo: Reuters

What is the significance of the title Senior Counsel in Hong Kong? Whatever it is, the Secretary for Justice wants to change it.

Focus, if you will, on the word counsel which is a synonym for barrister, of which there are two ranks, Senior and Junior.

All barristers who are not Senior Counsel (SC), regardless of their age, are designated Junior counsel.

The word barrister is derived from the physical barrier in a courtroom between counsel and the judge or judges who sit on the bench.

Traditionally, the procedure by which someone becomes a barrister in England and Wales is termed ‘Called to the Bar’ and historically, only the Inns of Court, Gray’s Inn, Lincoln’s Inn, the Middle and Inner Temples are permitted to call someone to the Bar.

Though their origins are somewhat obscure, the Inns of Court emerged from about the 14th century as Honourable Societies of barristers devoted to the study of the Common Law.

The Inns confer the degree of Utter Barrister on those of its members who are called to the Bar of the individual Inn.

The word utter is mediaeval English for outer and distinguishes the holder from membership of the Inner Bar, which is reserved for the leaders of the profession who, in common law jurisdictions are called Queen’s Counsel (QC) or Senior Counsel.

The nomenclature and the route to becoming a barrister are deeply ingrained in the history and traditions of England and Wales, Scotland and Northern Ireland. Prior to the independence of Eire, the same applied to Ireland.

Prior to the handover in 1997, as a British colony, Hong Kong observed the same terminology, the major distinction being that barristers are called to the bar of the High Court.
Understandably, once Hong Kong was no longer a colony but a Special Administrative Region of China, the title became Senior Counsel (SC), though the role and rank remained intact.

Under the Basic Law, the concept of one country two systems incorporated the common law as the governing legal system for Hong Kong.

The full title of a QC is ‘One of Her Majesty’s Counsel learned in the law’, the title gives them precedence over other barristers in any court in which they appear.

Barristers, like doctors and clergymen are members of the learned professions.

Junior barristers wear a gown made of cotton or ‘stuff’, whereas SCs wear a silk gown, which is why they are called ‘silks’.

The division of the legal profession into barristers and solicitors, is a practical division of labour.

Lawyers decide whether they want to be barristers or solicitors and select their career path accordingly from the outset.

One critical difference is that solicitors are officers of the court whereas barristers are not. This distinction has significance because it emphasises that barristers are totally independent.

Prohibited from forming partnerships or limited liability companies, barristers must be self-employed. Their allegiance is to their client, the court and to their professional ethos.

The client instructing a barrister knows that he or she has no ties to anyone other than that client.

The barrister in private practice is a different animal from the lawyer employed by government. The legal officer owes loyalty to the government and looks to it for promotion and preferment.

The private Bar’s Code of Conduct is partly written but also derived in large part from a body of unwritten ethics and conventions which are largely absorbed during the 12 month pupillage served with an experienced barrister.

The professional rules are set very high and the Bar polices this Code jealously.

Barristers are, first and foremost, specialist advocates. Their skills lie in the ability to present a case in court.

Solicitors, by way of contrast, are far more commercially oriented. They deal directly with the members of the public for whom they are the first point of contact and have the primary responsibility for gathering the evidence, advisory work, interviewing the witnesses and processing the legal documentation.

Solicitors may form partnerships and legal liability companies and the majority of them do so. Solicitors are full time salaried employees and/or equity partners.

Hong Kong’s Department of Justice was so renamed after the handover. Prior to July 1997 its role was performed by the Attorney-General’s Chambers.

The Attorney-General – now called Secretary for Justice – is the government’s senior legal advisor and heads the body of government employed lawyers.

Historically, pre-1997 the overwhelming majority of government lawyers were barristers, mainly recruited from other common law countries, they were entitled Crown Counsel.

Within the A-G’s Chambers, work was allocated on a functional basis, advocacy done primarily by barristers and the remaining workload divided up amongst all the lawyers.

Because Crown Counsel were already barristers, if they applied to take silk whilst still in government employ, they relied on their background training as well as the advocacy that they undertook on behalf of government.

Under the Legal Practitioner’s Ordinance, a government legal officer can be either barrister or solicitor qualified in Hong Kong or in a recognised jurisdiction. The same Ordinance grants all these legal officers rights of audience in the courts.

Those legal officers who are barristers and have sufficient advocacy experience can apply to be appointed Senior Counsel. Legal officers who are solicitors must first change from being a solicitor to a barrister, a relatively simple transfer process. They must also serve pupillage for 3 months.

As previously stated, pupillage is the 12 month crucible through which the aspirant barrister must pass to acquire a sound foundation of the ethics and unwritten conventions that inform and guide them in practice.

As a goodwill gesture to legal officers, they are only required to do 3 months of pupillage but the Secretary for Justice wants to abolish even this minimal introduction to the ethos of the practising barrister and abolish the necessity of being a barrister.

But the title will only last whilst they are in government employment. This demonstrates that the SJ’s ploy is just to provide short term gratification to such legal officers during the currency of their office.

One may stick a label on a duck and call it a swan but it remains a duck.

Within the DoJ there are legal officers who are entitled Senior Government Counsel, why would any patriotic legal officer want to dissociate himself from government? Surely, they cannot be ashamed or embarrassed of being so described?

A compliant Legislative Council will be eager to accommodate the SJ’s desire, ably
assisted by little green-eyed monsters gazing covetously at a title to which they cannot aspire.

But the outcome of the SJ’s endeavours to improve morale in her Department will only confer a title that lacks the substance of what is required to become a leading member of the Bar.

Dispensing with the necessity to be a barrister, the most fundamental criterion for elevation to the rank of Senior Counsel, will result in a hollow title. No matter what the Ordinance may be converted to say, the profession will know the difference.

But there is no room for opposition to whatever the SJ desires.

As the words to the hit song of the 1955 musical ‘Damn Yankees’ put it:

Whatever Lola wants, Lola gets
Recline yourself, resign yourself
You're through

-- Contact us at [email protected]

Queen's Counsel