Preamble
(i) These Standard Terms of Engagement have been agreed and approved by the Estate Agents Authority (“the Authority”) and the Bar Council. The Bar Council has recognized the Authority as a recognized 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 Authority in accordance with the Direct Professional Access Rules in Annex 19 of the Bar Code of Conduct. For the purpose of the application of the Rules in Annex 19, unless the context otherwise requires, an Officer of the Authority shall be deemed to be a “member of a recognized professional body”, with the relevant and corresponding “recognized professional body” being the Authority
(iii) Any Officer of the Authority (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:-
“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 officer” means an Officer of the Authority 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.
“the Authority” shall mean the Estate Agents Authority established under section 4 of the Estate Agents Ordinance (Cap. 511);
"Officer” means any of the following staff of the Authority:
(i) The Chief Executive Officer;
(ii) Director of Services;
(iii) Director of Operations;
(iv) Director of Regulatory Affairs and General Counsel;
(v) Legal Counsel;
(vi) Senior Manager (Operations);
(vii) Manager (Complaints);
(viii) Manager (Enforcement);
(ix) Manager (Legal Services & Examination);
(x) Manager (Disciplinary Proceedings);
(xi) Manager (Licensing);
(xii) Manager (Corporate Communications);
(xiii) Manager (Human Resources & Administration);
(xiv) Manager (Professional Development);
(xv) Manager (Finance & Information Technology)
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 the Authority who is identified at the time of giving instructions and confirms that he and/or the Authority 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 the Authority wishing to instruct a barrister to identify himself as the instructing officer at the time of giving instructions and confirms that he and/or the Authority 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 the Authority without the confirmation referred to in sub-paragraph (i) above and an Officer of the Authority is not under the duty to give the confirmation referred to in sub-paragraph (ii) above so long as section 54(1) of the Estate Agents Ordinance (Cap. 511) remains in force in the following form – “No personal liability shall be incurred by any person in respect of anything done, or omitted to be done, by him in good faith in relation to the performance or purported performance of any function under this Ordinance (including a function duly delegated under this Ordinance)”.
3. (i) A barrister may only accept instructions from an Officer of the Authority in a matter of a kind which falls generally within the functions of the Authority.
(ii) When giving instructions, the Officer of the Authority (on his own behalf and on behalf of the Authority) warrants that the matter in which he is instructing the barrister is of a kind which falls substantially within the functions of the Authority.
4. (i) An instructing officer should, in addition to instructing a barrister in his personal capacity, instruct the barrister in his capacity as an officer of the Authority.
(ii) The instructing officer warrants that he is authorized by the Authority to give the warranty referred to in paragraph 3(ii) above and to instruct the barrister under these Standard Terms (subject to any exclusion and/or variation as agreed between the instructing officer (who also warrants that he is authorized by the Authority to agree to any such exclusion and/or variation)), and the obligations of the instructing officer under these Standard Terms (subject to any exclusion and/or variation, as the case may be) shall be joint and several obligations of him and the Authority.
5.(i) Unless the instructing officer 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 officer 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, 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 officer 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 officer 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 officer, jointly with the Authority, 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 officer.
13. In the case of instructions other than a brief it is a matter for agreement between the instructing officer 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 officer 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 officer 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 officer 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.
