Preamble

(i) These Standard Terms of Engagement have been agreed and approved by the Office of the Ombudsman and the Bar Council. The Bar Council has recognised the Office of the Ombudsman, as a recognised professional body under and for the purposes of the Direct Professional Access Rules.

(ii) They are intended to apply in any case where a barrister is instructed by an Officer of the Office of the Ombudsman in accordance with the Direct Professional Access Rules in Annex 19 of the Bar Code of Conduct.

(iii) Any Officer of the Office of the Ombudsman (as defined hereunder) will be deemed to instruct a barrister on these Standard Terms unless and to the extent that they are excluded or varied by agreement between that Officer and the barrister whom he instructs in any particular matter.

Definitions

In these Standard Terms:-
"O.T.O." means the Office of the Ombudsman, Hong Kong.

“Bar Code of Conduct” means the Code of Conduct for the Bar of Hong Kong 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 Officer of O.T.O from whom a barrister has accepted instructions in accordance with the Direct Professional Access Rules;

“Instructions” include a brief save where the context otherwise requires.

"Officer of O.T.O" means any of the following staff of O.T.O.,

(a) all Directorate Officers, i.e. Deputy Ombudsman and Assistant Ombudsman;
(b) all Complaint Officers comprising Chief Complaints Officers, Senior Complaints Officers and Complaints Officers;
(c) Chief Executive Officer, Senior External Relations Officer, Senior Office Administrator and Accountant of O.T.O.

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 an Officer of O.T.O. who is identified at the time of giving instructions and (subject to sub-paragraph (iii) below) confirms that he or the company, firm or other body of which he is a director, partner, member or employee and/or the O.T.O. 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 an Officer of O.T.O. wishing to instruct a barrister to identify himself as the instructing member at the time of giving instructions and (subject to sub-paragraph (iii) below) confirms that he or the company, firm or other body of which he is a director, partner, member or employee and/or the O.T.O. is insured against claims for professional negligence in respect of the matter giving rise to such instructions.

(iii) A barrister may accept instructions from an Officer of O.T.O. without the confirmation referred to in sub-paragraph (i) above and an Officer of O.T.O. is not under the duty to give the confirmation referred to in sub-paragraph (ii) above so long as section 18A of the Ombudsman Ordinance (Cap. 397) remains in force in the following form – “No person acting in good faith shall be personally liable for any civil liability or claim whatever in respect of any act done or omitted to be done in the performance or purported performance of any function, or the exercise or purported exercise of any power under this Ordinance.”

3. (i) A barrister may only accept instructions from an Officer of O.T.O. in a matter of a kind which falls generally within the duties, responsibilities, or professional expertise or practice of that Officer of O.T.O.

(ii) An instructing member warrants that the matter in which he is instructing the barrister is of a kind which falls substantially within the field in which he normally practises.

4. (i) An instructing member should, in addition to instructing a barrister in his personal capacity, instruct the barrister in his capacity as a director, partner, member or employee of a company, firm or other body and/or the O.T.O., as the case may be.

(ii) The instructing member warrants that he is authorised by the relevant company, firm or other body and/or the O.T.O., as the case may be, to instruct the barrister. In the case where the barrister accepts instructions from an instructing member in his capacity as a director, partner, member or employee of a company, firm or other body, then 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 time is of the essence the instructing member must, when he delivers his instructions, so inform the barrister or his clerk or secretary and of the particular reason for urgency in order that the barrister or his clerk or secretary may decide whether in those circumstances he can accept the instructions. That information must be communicated to the barrister or his clerk or secretary separately from the instructions themselves.

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 Professional Direct 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 the barrister’s request.

8. (i) Unless otherwise agreed a barrister accepts a brief upon the understanding that he may be unavoidably 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 has 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 and/or with the O.T.O., 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 fees 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 the 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 a 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 or 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 advices.

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.

16. The invalidity or unenforceability of any provision or part(s) of any provision will not affect the validity or enforceability of any other provisions herein and any invalid or unenforceable provision or part(s) thereof will be severable.