(i) These standard terms have been agreed and approved by the Hong Kong Institute of Surveyors and the Bar Council.
(ii) They are intended to apply in any case where a barrister is instructed by a member of the H.K.I.S. in accordance with the Direct Professional Access Rules in Annex 19 of the Bar Code of Conduct.
(iii) Members of the H.K.I.S. are recommended to use these Standard Terms, varied where appropriate, when agreeing terms on which the member is instructing a barrister.
Definitions
In these Standard Terms:
"H.K.I.S." means the Hong Kong Institute of Surveyors
"Bar Code of Conduct" means the code of Conduct of the Bar of Hong Kong Special Administrative Region for the time being in force;
"Direct Professional Access Rules" means the Rules in Annex 19 of the Bar Code of Conduct;
"Instructing member" means an associate or fellow member of the H.K.I.S. from whom a barrister has accepted instructions in accordance with the Direct Professional Access Rules;
"Instruction" include a brief save where the context
otherwise requires.
Instructions
1. A barrister has the right in circumstances set out in the Direct Professional Access Rules to refuse to accept instructions and these Standard Terms will apply only where a barrister has accepted instructions.
2. (i) A barrister may only accept instructions from a member of the H.K.I.S. who is identified at the time of giving instructions and confirms that he or the company, firm or other body of which he is a director, partner, member or employee is insured against claims for professional negligence in respect of the matter giving rise to such instructions;
(ii) It shall accordingly be the duty of a member of the H.K.I.S. wishing to instruct a barrister to identify himeself as the instructing member at the time of giving instructions and confirm that he or the company, firm or other body of which he is a director, partner, member or employee is insured against claims for professional negligence in respect of the matter giving rise to such instructions;
3. (i) A barrister may only accept instructions from a member of the H.K.I.S. in a matter of a kind which falls generally within the professional expertise of members of the H.K.I.S.
4. (i) An instructing member may instruct a barrister in his
capacity as a director, partner, member or employee of a company,
firm or other body.
(ii) In any case where a barrister accepts instructions from an instructing
member in his capacity as a director, partner, member or employee of a company,
firm or other body, the obligations of the instructing member under these Standard
Terms shall be joint and several obligations of him and that company firm or
other body, unless otherwise agreed between the barrister and his instructing
member.
5. (i) Unless the instructing member otherwise stipulates and the barrister agrees the barrister will deal with instructions other than a brief as soon as he reasonably can in the ordinary course of his work.
(ii) Where for any reason there is any urgency the instructing member must, when he delivers his instructions, inform the barrister or his clerk or secretary of the precise deadline(s) involved in order that the barrister or his clerk or secretary may decide whether in those circumstances he can accept the instructions. The information must be communicated to the barrister or his clerk or secretary separately from the instructions themselves. The barrister or his clerk or secretary must inform the instructing member without delay whether he can or cannot accept instructions.
6. Notwithstanding that instructions have been delivered to a barrister, the barrister shall not be deemed to have accepted those instructions until he has had a reasonable opportunity to peruse them and decide whether they are appropriate for Direct Professional Access.
7. Without prejudice to any other right which a barrister may have in accordance with the Bar Code of Conduct to return his instructions, a barrister shall be entitled at his complete discretion, which he shall exercise in the interests of the lay client, at any time to require, as a condition of his continuing to act in the matter on which he is instructed, that a solicitor shall take over the instructions, or that the services of a solicitor shall otherwise be retained to assist in the future conduct of that matter. In such an event the instructing member shall have the option of withdrawing his instructions to the barrister or of complying with his request.
8. (i) Unless otherwise agreed a barrister accepts a brief upon the understanding that he may unavoidably be prevented by a conflicting professional engagement from attending the case.
(ii) A barrister shall inform the instructing member immediately there is an appreciable risk that he may not be able to undertake a brief which he was accepted.
(iii) In the event that a barrister has to return a brief, he shall so far as practicable, do so in sufficient time to enable another barrister to be engaged and to master the brief.
The Barrister's Fees
9. It is the obligation of the instructing member, jointly with the company, firm or other body of which he is a director, partner, employee or member to be responsible for the payment of the barrister's fees.
10. (i) A barrister shall be entitled to require payment of his fee at the time of accepting instructions.
(ii) Otherwise the barrister's fee shall be paid promptly upon submission of a fee note.
11. (i) Unless otherwise agreed, a fee note will be submitted at the conclusion of the matter on which a barrister is instructed.
(ii) If, however, that matter is protracted, an interim fee note or notes may be submitted at intervals of not less than two months.
12. A brief will only be accepted by a barrister after a fee has been agreed with the instructing member.
13. In the case of instructions other than a brief it is matter for agreement between the instructing member and the barrister or his clerk or secretary whether the fee shall be agreed before the instructions are accepted or at any later date.
Copies of Instructions and Records of Advice
14. A barrister shall be entitled for the purposes of his records to retain his instructions or any papers delivered therewith or, if the instructing member should require the return of such instructions and papers, to take and retain a copy of such instructions and papers and of any written advice, and if so requested by the barrister it shall be the duty of the instructing member to supply him with and to permit him to retain for those purposes a copy of such instructions, papers or advice.
15. In any case where a barrister gives advice orally it shall be the duty of the instructing member to make a written record of that advice and submit it to the barrister for his approval as soon as is practicable and in any event by such date as the barrister may reasonably require.
