A recent judgment handed down by the Hong Kong Court of Appeal[1] has raised an interesting question about the obligations of non-qualified staff providing legal services whilst employed by firms of solicitors.
Background
Ms Chan was a clerk employed by a firm in Hong Kong and acted for a client on a residential property conveyance in June 2017. She left the firm in May 2018. The Law Society subsequently received a complaint about her in relation to the conveyance and wrote to Ms Chan requesting a response to the complaint. Extensions of time for Ms Chan to respond were agreed but no response to the complaint was provided. This may be understandable given Ms Chan was not a solicitor, she may simply have considered her obligations to have ceased once she left the firm.
The Law Society was clearly unhappy with Ms Chan's silence and sent a letter of disapproval to Ms Chan demanding a reply to the complaint. In the absence of any further response from Ms Chan, Disciplinary proceedings were commenced against her in March 2023. The Law Society complained that she had committed disgraceful, dishonourable, or discreditable conduct under section 2(2) of the Legal Practitioners Ordinance by effectively ignoring the Law Society's requests for a response to the complaint.
The Solicitors Disciplinary Tribunal considered the obligations of employees of solicitors.
Commentary 4 to Principle 1.06 of the Hong Kong Solicitors’ Guide to Professional Conduct provides:
Non-practising solicitors who are not members of the Law Society, trainee solicitors, registered foreign lawyers and employees of solicitors shall have regard to the Principles set out in the Guide as they are also subject to the jurisdiction of the Solicitors’ Disciplinary Tribunal (see section 9A(1) of the Legal Practitioners Ordinance (Cap 159)).
Principle 6.04 of the Solicitors' Guide provides:
A solicitor is obliged to reply fully and promptly to correspondence from a client or former client or on their behalf, and to inquiries from the Law Society or other competent authority.
The Solicitors Disciplinary Tribunal
The Law Society claimed that Ms Chan was required, under commentary 4 to Principle 1.06, to have regard to the principles in the Solicitors' Guide. By failing to comply with Principle 6.04, it was argued, she had breached her responsibility to have regard to it and therefore was in breach of the principle itself. The Tribunal, however, disagreed. In distinguishing the requirements imposed on solicitors and those in their employ, the Tribunal was of the view that to have regard to an obligation was less onerous than complying with the obligation itself. Although the Tribunal considered that Ms Chan had failed to have regard to Principle 6.04 without good reason, they nonetheless found that Ms Chan had not committed disgraceful, dishonourable, or discreditable conduct. The Tribunal agreed with Ms Chan's description of her conduct as rude but not disgraceful, dishonourable, or discreditable.
Leave to appeal
The Law Society then brought an application seeking leave to appeal against the Tribunal's decision. The bases of the appeal are that:
- there is no difference between having regard to Principle 6.04 and breaching Principle 6.04;
- the Tribunal had failed to consider Ms Chan's motives for the conduct;
- the appropriate standard was that of a solicitor of good repute and the fact that she was not a solicitor should not have been taken into account; and
- the Tribunal failed to explain why her conduct was not disgraceful, dishonourable, or discreditable.
Given the Court of Appeal was only required to consider leave to appeal, it was only concerned with whether the appeal had a reasonable or realistic prospect of success. Leave to appeal was granted on the basis that the grounds of appeal are reasonably arguable.
Comment
It might not be thought unreasonable to suggest that a solicitor should bear ultimate responsibility for the work of their staff. This is particularly because a solicitor is legally qualified and generally expected to oversee and correct the work of their staff. However, where, for example, a clerk is in a position perceived by the public as akin to a solicitor, they should, arguably, be held to a standard commensurate with that position. While other jurisdictions have introduced formal licensing for non-solicitors providing legal advice or service such as conveyancers and patent attorneys and imposed appropriate professional standards as a result, Hong Kong has not. Regulation to maintain public trust in the professions is a cornerstone of our society and this should arguably be the case for quasi-professionals such as legal clerks.
The Court of Appeal's judgment on this once available will be fascinating and may have implications on the insurance needs of such quasi-professionals – watch this space.
[1] The Law Society Of Hong Kong v Chan Doris Ka Yee, formerly a clerk of Messrs Chan, Wong & Yip, Solicitors [2025] HKCA 313
