Restriction on HK barristers taking second job set to be eased under proposed changes to Bar Association Code of Conduct

13-Sep-2018 Intellasia | South China Morning Post | 6:00 AM Print This Post

Barristers will no longer need permission to have a second job under proposed changes by the Hong Kong Bar Association, after a challenge to the long-standing restriction almost went to the city’s top court.

The association, the city’s top legal professional body, is considering relaxing its rule so that barristers would only be required to tell the Bar Council, its executive committee, that they intend to start a second or part-time job.

However, if there are any concerns about the appropriateness of their non-legal work, they will have to comply with any advice given.

“The rule we have has been abolished in most other places,” Bar Association chair Philip Dykes said.

“The English Bar, for instance, abolished that 20 years ago and they are seeing no problems there.”

The association is looking at changing its Code of Conduct after a lawyer challenged its decision to not allow him to also work as a “neuro-beautologist”, treating those with misaligned spines and limbs, because it was considered incompatible with practising law.

While the association is prepared to do away with the rule, it still wants to keep an eye on the types of jobs barristers take up on the side.

“The bottom line is whatever you do, that must be compatible with the profession of barrister,” Dykes said. “We’ll tell you what our concern is, and if that proves to be right and brings the Bar into disrepute, we’ll take disciplinary action.”

The association will decide on the proposal as early as January’s annual general meeting. Other proposals include introducing a monthly HK$6,000 (US$770) salary to all pupil barristers who are unpaid.

There are about 1,500 practising barristers in Hong Kong, including 150 freshly admitted in the past two years in a very competitive legal market. Young barristers often struggle financially as they do not have a base salary but must pay rent for their chambers.

Barristers, considered to be self-employed, do not need prior approval for some jobs, such as elected lawmakers, columnists, law school teachers, or non-executive directors of companies.

Some take second jobs to pursue a personal interest, including as private pilots or in the wine business, but for most, especially junior barristers, it is a means to earn more.

Veteran actor Melvin Wong Kam-sang, 72, is prominent among barristers who had two careers.

From the 1980s, Wong starred in television dramas and films and was particularly well known for being in the popular soap A Kindred Spirit. He was in his 50s when he studied for a law degree and was admitted to the Bar in 1997. But he still acted occasionally, including in a TV crime drama made by the Independent Commission Against Corruption (ICAC).

“I was still a junior barrister at the time, so perhaps that’s why the Bar Council granted me permission. And as the ICAC is a government body, playing a part in the drama may have been seen as doing public service,” said Wong, freshly retired from the legal profession but producing films.

“I played the role of a senior investigator so I just showed up in several episodes without taking up too much time.”

Alexander Wong Shing-tak, 38, has degrees in medicine and law and was a doctor for six years before becoming a barrister in 2012. He said during his first two years as a barrister, he still saw patients at his clinic, but promised the Bar Council he would spend only two sessions per week as a doctor.

Wong said money was one reason he continued as a doctor, because he was not yet earning a regular income as a barrister. “I also didn’t want to waste what I learned in medical school,” he said.

The rule on second careers made the news in 2015 when barrister Albert Leung Sze-ho challenged the Bar Council’s refusal to allow him to practise neuro-beautology, a form of natural therapy.

Leung, then 45 and a barrister for more than 10 years, won his judicial review in the High Court. The judge ruled the association’s Code of Conduct was “unconstitutional” for restricting Leung’s freedom of choice of occupation.

But the Court of Appeal overturned the decision one year later, ruling that the freedom under Article 33 of the Basic Law, Hong Kong’s mini-constitution, only meant a resident should not be forced to work against his or her wish, but did not mean he or she had the freedom to work in any occupation.

Leung was granted permission to take his case to the Court of Final Appeal and a hearing date was initially set for January this year. However, he did not pursue the case as he said he could not raise the HK$200,000 needed and his personal financial problems had “snowballed” over the years.

“Maybe if I could have worked concurrently as a neuro-beautologist, I could have survived,” Leung, who is taking a break from practising, said.

Having faced a legal bill of at least HK$100,000, Leung believed his sacrifice paid off for a greater good.

“I think the proposal is good enough and a great improvement,” he said.

Dykes would not say if Leung would be free to take up his second career if the Bar Association changed its rule, or if he would still be advised that “neuro-beautology” was inappropriate for a lawyer. Each case has to be decided on its own, Dykes said.

Five barristers the Post spoke to felt it was time the association dropped the rule on a second job.

“The profession is highly competitive, and junior barristers do not have a lot of business at the beginning of their career,” Wong said.

He said his medical background had helped his legal career and he got some cases through it. “At least you know how to read the medical report,” he said.


Category: Hong Kong

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