Substantial experience in the law

By Tianna Ma

Protection or Predicament

To the common person without any of the requisite legal knowledge, it would appear to be completely logical, if not obvious that a solicitor in Hong Kong should have substantial experience in the law before they can practice as a sole proprietor or partner.

The relevant law is set out in s.6(6) of the Legal Practitioners Ordinance (Cap. 159), which states that a solicitor shall not practice on their own account or in partnership unless they have been employed in the practice of a solicitor in Hong Kong for at least two years. Under s.6(6A) of the said Ordinance, if the Council deems that an applicant has acquired “substantial experience in the law”, it may waive the “two year requirement” or reduce the requirement period of two years.

An applicant whose waiver application has been rejected can invoke their power to appeal to the Chief Judge against the Council’s decision under s.6(10). The rationale behind is clear: the Council seeks to uphold the high standards of practicing solicitors, ensuring newly admitted solicitors are under appropriate supervision until they are deemed competent to start their own businesses.

The Council seeks to uphold the high standards of practicing solicitors, ensuring newly admitted solicitors are under appropriate supervision until they are deemed competent to start their own businesses.

Meaning

At first glance, the requirement of “substantial experience in the law”, albeit somewhat stringent, does not seem insurmountable. Focusing on the literal meaning of the phrase, it would seem reasonable that a solicitor having long prior experience in other jurisdictions or having worked previously as a barrister, enabling them to have a comprehensive understanding of law, would suffice for this waiver. However, the requirement of “substantial experience in law” has a high threshold and poses some difficulties for applicants.

In the recent case of Kim Min Ju v Law Society of Hong Kong [2020] HKCFI 2367, it is noteworthy that the applicant has a solid legal background. The applicant had formerly been a barrister who has practiced mainly in commercial and criminal litigation for about seven years. In 2018, the applicant applied to be removed from the roll of barristers in order to be qualified as a solicitor. Nine months after commencing practice as a solicitor, the applicant applied to the Law Society for a waiver of the two-year requirement under s.6(6A). After the application for a waiver was rejected, the applicant appealed to the Chief Judge of the High Court, where the Council’s decision was affirmed. In the appeal, the Chief Judge had to consider two main issues. First, it was a matter of statutory construction as to the meaning of “substantial experience in the law” for the purpose of s.6(6A). Second, the Chief Judge had to review the Council’s decision and to see if it had erred in its assessment that the applicant did not have “substantial experience in the law” within the meaning of s.6(6A) so that the two-year requirement cannot be waived.

In relation to the first issue, the court opined that the purpose was to determine whether an applicant had “substantial experience in the law” so that they could practice as a solicitor without supervision. Construed with this purpose in mind, “substantial experience in law” could mean substantial experience in the law as a solicitor. The court said that given the nature of the practice of a solicitor, substantial experience in the law as a solicitor encompasses both the substantial law and the legal practice as a solicitor.

The intention of the legislature was to ensure that before a practitioner was allowed to practice without supervision and to have control of, and responsibility for, client funds, they should not only have a knowledge of the substantial law but also have gained a knowledge of legal practice as might otherwise be likely to be acquired during two years’ limited practice.

Regarding the second issue, the court had to determine whether the Council’s decision was one that could not reasonably be arrived at. The court decided that the Council was well justified in concluding that while the applicant had a wide range of practice and experience, as a solicitor they did not meet the threshold to come within s.6(6A) of the Ordinance.

Neither the applicant’s past experience as a barrister nor that as a legal manager of the firm has much, if any, weight in assessing their experience in terms of the legal practice as a solicitor for the purpose of s.6(6A). The court gave deference to the decision, concluding that the Council, as the regulatory body of the profession armed with the collective experience and expertise of the Council and its committee, was plainly in the best position to assess and determine if an applicant had acquired substantial experience in the law to qualify for a waiver of the two-year requirement.

Difficulty for applicants?

The precedent set by this judgment has significant impacts for potential applicants. In order for the grant of a waiver, one should bear in mind the narrow construction of the courts in Kim Min Ju as to the meaning of “substantial experience in the law”- an applicant must have acquired knowledge of both (i) the substantial law and (ii) the legal practice of a solicitor as they might likely to have acquired during two years of practice as a solicitor.

This is a high threshold — applicants with previous experience as a barrister or experience in other jurisdictions as a solicitor arguably would have “substantial experience in the law”, but they would be bound by the court’s narrow interpretation of the phrase “substantial experience in the law” as a solicitor in Hong Kong.

The application of the waiver in s.6(6A) falls completely under the discretion of the Council and each statutory appeal would turn on its own facts.

The application of the waiver in s.6(6A) falls completely under the discretion of the Council and each statutory appeal would turn on its own facts. After this judgment, it remains hard to predict or see how one can fall within the proviso in s.6(6A) and, given the judicial deference to the Council, courts will be reluctant to quash the Council’s decision unless it is one that could not reasonably be arrived at.

However, it is important to note that The Law Society is obliged to carefully uphold the two-year requirement to protect the public from being put at risk of solicitors who still require supervision in their practice. Solicitors, as fiduciaries, are placed in the position of trust with regard to their clients and with control of and responsibility for their client’s funds, such breach of fiduciary duties caused by lack of experience, would entail grave consequences. Therefore, The Law Society has been entrusted by the legislature as the gatekeeper of the profession, with the requisite tools to determine who is qualified for the waiver of the two-year requirement.