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Hong Kong International Trade in Legal Services

Hong Kong International Trade in Legal Services

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HOME COUNTRY LICENSING QUESTIONS

Is there legislation governing the legal sector	Legal Practitioners Ordinance (Cap. 159, Laws of Hong Kong)
Under what title do lawyers practise?	Solicitor or barrister
How does an individual lawyer obtain a "licence" to practise law? How often must this be renewed?	Admission to both professions requires a qualifying law degree (either the LL.B., which requires four years of study, or the Juris Doctor, which lasts two years) followed by the nine month Postgraduate Certificate in Laws; followed by completion of a two year training contract for admission as a solicitor and one year pupillage for a barrister.
Does this entitle the holder to practise throughout the country? If the law license only permits one to practice on a sub-national level, please explain the jurisdictional limits	Yes
Are there certain activities that are "reserved" to those who are licensed to practise law in the jurisdiction?	Only those persons who have been admitted as barristers of solicitors in Hong Kong may practise or give advice on Hong Kong law.
Do you need to hold local nationality to be eligible to practise law?	No
What legal forms can lawyers work in? (e.g. self employment, partnership, limited liability partnership, multi-disciplinary partnership, incorporation)	Hong Kong lawyers may work as sole practitioners, or in general partnerships or in group practices which involve the sharing of premises and overheads between solicitors with separate practices. The Legal Practitioners (Amendment) Ordinance 2012 was enacted in July 2012. It has not yet come into operation, and when it does it will enable law firms in Hong Kong to operate in the form of a limited liability partnership. The Legal Services (Miscellaneous Amendment) Ordinance passed in June 1997 (as amended by the Statute Law (Miscellaneous Provisions) Ordinance 2012, provides the legal basis to enable solicitors to incorporate as companies. The Ordinance is not yet operational, and when it does, it will allow solicitors in Hong Kong to operate their practice as limited companies. Barristers practise independently or in chambers. Two or more practising barristers may share professional expenses in accordance with an agreement or in proportion to their receipts but they may not share professional receipts or agree that any one or more of them shall assume responsibility for the professional work of the others.
What other ethical or regulatory requirements must a licensed lawyer comply with?	Solicitors must comply with the principles of the Hong Kong Solicitors Guide to Professional Conduct issued by the Law Society of Hong Kong and barristers must comply with the Hong Kong Bar Association's Code of Conduct. Both solicitors and barristers must also observe the relevant provisions I the Legal Practitioners Ordinance (Cap.159) and its subsidiary legislation.
Do law firms need to receive a "license" (or permission/approval) to practice law?	Local law firms do not need a licence to practice but must complete a number of formalities before commencing trading. The Hong Kong Law Society must be informed within 14 days of a solicitor commencing practice. Further details may be found at the website of the Hong Kong Law Society (http://www.hklawsoc.org.hk/pub_e/admission/LocalLawFirm/pdf/lf-commencement-inf.pdf)
Which authority issues licences? Are there different authorities for individuals and firms?	Law Society of Hong Kong for solicitors (www.hklawsoc.org.hk) and the Bar Council of Hong Kong for barristers (www.hkbar.org.hk)

GENERAL TRADE IN LEGAL SERVICES QUESTIONS

Is the jurisdiction a member of the WTO?	Hong Kong SAR joined the WTO on 1 January 1995
Has it made any commitments under GATS in legal services?	Hong Kong has not scheduled any commitments on legal services under the GATS.
Is the jurisdiction party to bilateral agreements which offer special treatment to businesses or individuals from particular countries?	Hong Kong is party to bilateral free trade agreements with New Zealand, EFTA and Chile and has concluded the Closer Economic Partnership agreement (CEPA) with PR China.
Do these currently include legal services or are there plans to include them in future?	The CEPA agreement with China includes legal services and the commitments include allowing Hong Kong law firms that have set up representative offices in the Mainland to operate in association with Mainland law firms and share operational costs, premises, facilities and staff, although the association cannot operate in the form of a partnership or a legal person. Hong Kong lawyers participating in such associations cannot handle matters of Mainland law. Since January 2013, Hong Kong law firms have been able to form associations with up to three mainland law firms.
Are foreign lawyers from different jurisdictions treated differently as a result of any such agreements?	All Hong Kong registered law firms and practitioners are granted special privileges in China regardless of whether they are native to Hong Kong or are foreign law firms that have set up offices in Hong Kong.
Are there any 'foreign law' firms present in this jurisdiction?	There were over 70 registered foreign law firms in Hong Kong China in January 2014.

INDIVIDUAL FOREIGN LAWYERS

Are there any explicit rules or restrictions other than visas on fly in fly out practice of law? Ie. Do you need to obtain a licence for temporary practice?	A person who is qualified to practise foreign law and who is from within a foreign firm but not a foreign lawyer, or from within a Hong Kong firm but not a foreign lawyer, or from within a Hong Kong firm but not a solicitor or foreign lawyer may offer his services to the public as a practitioner of foreign law so long as he does not so offer his services in any 12 month period for more than 3 continuous months or more than 90 days. See section 50B(2) of the Legal Practitioners Ordinance(Cap 159.)
Can a foreign lawyer obtain a visa to visit clients or to market but not to practice?	Yes, lawyers can apply for a business visa.
Can a foreign lawyer obtain a licence to establish and practise as a foreign legal consultant and what is the scope of this limited licence?	If the foreign lawyer provides services to the public as a practitioner of foreign law, he must register as a foreign lawyer with the Law Society of Hong Kong (Foreign Lawyer Registration Rules (see www.hklawsoc.org.hk)) and provide such services from within a Hong Kong firm or a foreign firm. Please see section 50B of the Legal Practitioners Ordinance (Cap 159, Laws of Hong Kong) The scope of practice of a foreign legal consultant prohibits the giving of advice on Hong Kong law. An FLC may give advice on or handle any matter in which: (a) it is expected that the matter will be subject to the law of a jurisdiction other than Hong Kong; or (b) involves private or public international law or conflict of laws. In order to offer advisory services in foreign and international law, a foreign legal consultant must enter a commercial association with local lawyers.
Are there any conditions that must be fulfilled once a foreign lawyer has been granted a limited licence (e.g. residency requirement)	Foreign lawyers are required to register as foreign lawyers with the Law Society of Hong Kong in order to practise foreign law in Hong Kong: Section 39A of the Legal Practitioners Ordinance (Cap.159). In order to qualify for registration a foreign lawyer must show that he has the required indemnity insurance cover.
Are there any conditions that must be fulfilled for a foreign lawyer to qualify for a limited licence? (e.g. prior practice)	In order to qualify for a limited licence, a foreign lawyer must show that: 1. he is a person of good standing in the foreign jurisdiction in which he or she is qualified to practise law and produce a certificate of registration showing at least 2 years of post-qualification experience in the full-time practice of foreign law; and 2. he or she has satisfied the Law Society that he or she is a fit and proper person to be registered; and 3. he or she is covered by professional indemnity insurance.
Are foreign lawyers permitted to undertake arbitration and mediation?	The parties in an arbitration proceeding have the right to select advisers and legal representatives of their choice whether or not they are legally qualified and whether or not they are local or from overseas jurisdictions. Section 63 of the Arbitration Ordinance (Cap. 609) expressly provides that the restrictions to practise as a barrister, notary public or solicitor as stipulated by sections 44, 45 ad 47 of the Legal Practitioners Ordinance (Cap.159) do not apply to arbitration proceedings, the giving of advice and the preparation of documents for the purposes of arbitral proceedings, or any other thing done in relation to arbitral proceedings. However, court proceedings that may arise out of an arbitration agreement or arise in the course of, or resulting from, arbitral proceeings are not exempted from section 63 of the Arbitration Ordinance. A party who wishes to instruct a foreign lawyer who has been involved in arbitration proceedings to appear for it at any of these court proceedings will have to obtain admission from the Court of First Instance.
Are foreign lawyers allowed to appear in court under any circumstances?	Yes, under the Hong Kong ordinance, ad hoc admission is possible. Where the Court considers that an applicant is fit and proper person to be a barrister and is satisfied that he has: (a) the qualification acquired outside Hong Kong to engage in work that would, if undertaken in Hong Kong, be similar to that undertaken by a barrister in the course of ordinary practice as a barrister in the High Court or Court of Final Appeal; and (b) Substantial experience in advocacy in a court. The Court may admit such person as a barrister for the purpose of any particular case or cases and may impose such restrictions and conditions on him as it may see fit.
Can foreign lawyers requalify as local lawyers?	Foreign lawyers may be admitted as full Hong Kong lawyers either through the domestic 'trainee solicitor route' or by the 'overseas qualified lawyer route'. The overseas qualified lawyer route, by examination, is open to lawyers from both common law and non common law jurisdictions and is open to foreign qualified lawyers who fulfil certain conditions on residence, legal qualifications and practice experience, who are in good standing in their home jurisdictions and who have successfully completed or been exempted from all or part of the Overseas Lawyers Qualification Examination (OLQE). The Court shall not admit a person under this section unless it has received from the Society a certificate to the effect that the Society is satisfied that the person- (a) has resided in Hong Kong for at least 3 months immediately before his admission; (b) intends to reside in Hong Kong for at least 3 months immediately after his admission; (c) has been ordinarily resident in Hong Kong for at least 7 years; or (d) has been present in Hong Kong for at least 180 days of each of at least 7 years. The requirements for admission of barrisers with overseas qualifications are laid down in theBarristers (Qualification for Admission and Pupillage) Rules (Cap 159.AC). A person is qualified for admission to the Hong Kong Bar if he is an overseas lawyer who: Holds a certificate of admission as a legal practitioner from the appropriate authority in his jurisdiction of admission and such certificate of admission is valid and currently in force; Has practised for at least 3 years in his jurisdiction of admission Is a person of good standing is his jurisidiction of admission; and Has passed the Barristers Qualification Examination A person who applies for admission as a barrister needs to satisfy the following residency requirements: He has resided in Hong Kong for at least 3 consecutive months immediately before the date of his application for admission He has been ordinarily resident in Hong Kong for at least 7 years; He has physically present in Hong Kong for at least 180 days of each of at least 7 years within the 10 years immediately preceding the date of his application for admission. In addition a person who seeks qualification as a barrister shall enter into pupillage for a period of not less than one year in the chambers of a practising barrister of not less than 5 years’ standing in Hong Kong.

FOREIGN LAW FIRMS

Can a foreign law firm obtain a licence to open an office?	A foreign law firm is not required to obtain a licence to set up in Hong Kong.
Even if a foreign law firm does not require a legal licence must they register in some form in order to set up an office? (e.g. with a ministry of company affairs etc)	All foreign law firms must register with the Law Society before they may practise foreign law in Hong Kong. Pursuant to section 39B(1) of the Legal Practitioners Ordinance (Cap.159) a foreign law firm may apply to the Hong Kong Law Society for a registration as a foreign law firm if all partners who intend to practise in Hong Kong are foreign lawyers or the sole proprietor is a foreign lawyer and the firm intends to have, within two months after registration, a place of business in Hong Kong for the purpose of practising or advising on foreign law. A firm to which section 39B(1) of the Legal Practitioners Ordinance (Cap 159) applies may be registered as a foreign law firm if it satisfied the qualifications set out I section 7 of the Foreign Lawyers Registration Rules (Cap 159S). In the case of a firm that is a branch of an overseas firm, it is qualified to be registered as a foreign law firm if the overseas firm: Lawfully carries on the practice of law in its foreign jurisdiction; Has satisfied the Law Society that it is of good standing in every jurisdiction in which it has at any time within the previous 5 years carried on its practice, and At least one of the partners of the firm who intends to practise in Hong Kong is a partner of the overseas firm, has at the date of the application for registration been associated on a full-time basis with the overseas firm for the immediately preceeding period of twelve months and had, during the 4 years immediately preceding the commencement of that period, been so associated with the overseas firm for an additional period of not less than 12 months. In any other cases, a firm is qualified to be registered as a foreign law firm if: Each of the partners of the firm who intends to practise in Hong Kong has satisfied the Society that he is of good standing in the foreign jurisdiction in which he is qualified to practise the law and in every jurisdiction in which he has at any time within the past 5 years practised the law. One of the partners who intends to practise in Hong Kong is of substantial reputation in the foreign jurisdiction the law of which he is qualified to practise, or in a jurisdiction in which he has practised that law during the preceding 5 years; and Each of the partners who intends to practise in Hong Kong has been in practice of the law of a foreign jurisdiction in which he is qualified to practise for not less than 3 years. The Law Society may waive any of the above requiremets for registration as a foreign law firm as it considers appropriate in a particular case.
Are there different types of foreign law firm 'licence' (e.g. Joint Law Venture, stand alone foreign licence etc)	A foreign law firm and a Hong Kong law firm may be registered by the Law Society as an association: Section 39C of the Legal Practitioners Ordinance (Cap 159). The two firms may not only share profits but also premises, management and non-lawyer employees. Both the foreign law firm and the Hong Kong law firm must register such an association with the Law Society. The association must come into effect within two months of registration or may be cancelled. The effect of registration is that whilst the two firms may share profits, staff, management etc. only the Hong Kong firm may practise Hong Kong law. No foreign law firm may be in association with more than one Hong Kong solicitors’ firm without the consent of the Council of the Law Society. The number of foreign lawyers to local lawyers in the association must not exceed the ratio of 1:1 (see rule 13(1)) of the Foreign Lawyers Registration Rules (Cap. 159s).
Is there a quota on the number of licences available?	No
Are there geographical restrictions on foreign firm licences or on the number of branches a foreign firm can have?	No
Are there "scope of practice" rules that apply directly to foreign law firms (as opposed to lawyers themselves)? (e.g. home, host, international law), if so, what are they?	A registered foreign law firm may practice the law of the jurisdiction(s) in which their partners and associates are qualified, and third jurisdictions in which they are competent to practice. Registered foreign law firms are prohibited from practising Hong Kong law: Foreign Lawyers Registration Rules (Cap. 159S), section 12(1).
Are there restrictions on the corporate form a foreign law firm can take?	Hong Kong practice requirements provide that foreign lawyers can only practise as sole practitioners or in partnerships.
Are there rules about the name a foreign law firm can take?	There are provisions governing the name of foreign firms in section 4 of the Foreign Lawyers Practice Rules (Cap 159 R, Laws of Hong Kong) and section 2A of the Solicitors Practice Rules (Cap 159H, Laws of Hong Kong). The name of a foreign firm shall consist solely of the name or names of one or more foreign lawyers who are principals of the firm. This does not preclude (a) the use of the name of a predecessor or former partner in that practice; (b) the use of the name of an overseas firm of which the foreign firm is a branch; or (c) the use of a style or firm name in at the date of the coming into operation of the rules.
What entity grants a 'license' to a foreign law firm? If that entity is on the Internet, please provide the URL	Hong Kong Law Society (www.hklawsoc.org)

EMPLOYMENT AND PARTNERSHIP

Are there restrictions on the ownership share of foreign lawyers in a law firm?	Foreign lawyers are prohibited from becoming partners in a local firm. Foreign lawyers may practise as a sole proprietor or partner in a foreign law firm.
May a domestic lawyer be employed by a foreign lawyer or law firm?	Foreign law firms are precluded from taking a Hong Kong solicitor into partnership: Legal Practitoiners Ordinance (Cap.159), section 50B(4).
Can a domestic lawyer enter into partnership with a foreign lawyer?	Foreign law firms established as foreign law firms are not allowed to take Hong Kong solicitors into their partnership however, foreign firms that choose to establish as local law firms may do so, with the consent of the HK Law Society Council. A principal of a Hong Kong firm shall not permit the number of foreign lawyers associated with the firm to exceed the number of resident principals and solicitors employed in the firm or such greater number as the Council may approve in any particular case where it considers there are special circumstances.
Can a domestic lawyer or domestic law firm employ a foreign lawyer?	Section 39D of the Legal Practitioners' Ordinance allows Hong Kong solicitors to employ foreign lawyers

OTHER USEFUL LINKS/SOURCES

Other useful sources or comments or links	Hong Kong Law Society: www.hklawsoc.org.hk; Hong Kong Bar Association: www.hkba.org