Hong Kong Bar Association

Circular No. 040/04

To : Members of the Bar Association

From : Andrew Mak - Hon. Secretary

Date : 3 May 2004

AMENDMENT TO THE CODE OF CONDUCT - PARAGRAPH 124

At the meeting held on 8 April 2004, the Bar Council resolved that the Paragraph 124 of the Code of Conduct be amended with immediate effect. The amended version is set out below:

"124. A barrister may not accept a brief or instructions on terms that payment of fees shall be postponed or shall depend upon or be related to a contingency. For the avoidance of doubt nothing in this rule shall prevent a member from accepting payment of his fees by installments and payment of interest on his fees either as agreed or allowed on taxation."

The purpose of amending this article is to make it clear that barristers may agree to give solicitors time to pay his fees. This may be done either before the work is done or subsequently after the issue of the fee note. Members will also note that this amended rule expressly recognizes that barristers may agree to accept payment of his fees by installments and also may agree with solicitors that interest is payable on his outstanding fees. Regarding the agreement for the payment of interest, members should note that unless interest is specifically agreed members would not be entitled to payment of interest on is outstanding fees. Furthermore if members were to agree with the solicitors allowing time for payment of his fees with interest, then there is a possibility that the Law Society may take the view that since counsel has decided to give credit to the solicitors it is for counsel to look out to make sure that the solicitor to whom he has agreed to give credit is credit worthy.

The question of payment of interest on barrister's fees on taxation would arise if the taxing master is taxing cost has made an order against the party liable for cost to pay interest also on the barrister's fee. If interest is payable under such taxation order in respect of a period where the barrister has not yet received his fees, then it would be up to the barrister to agree with the solicitors that such interest should be accountable to the barrister. In legal aid cases, the Bar council would seek to agree with the legal aid that such interest allowed on taxation should automatically be accounted to the barrister.

Nothing in this amendment is intended to encourage members to give credit to solicitors or to seek to extract interest payment agreement from unwilling clients or solicitors.