Rethinking Legal Regulatory Regime and Its Implications on Clinical Legal Education
by George Ho, PCLL Student, CUHK; Co-founder, the Access to Justice Fellowship
Should a law student advise an underprivileged client if he can find legal assistance nowhere else? The current legal regulatory regime prohibits non-qualified lawyers from giving legal advice. In this blogpost, I question whether the rules are too stringent, especially given the wide gap in access to justice that persists in Hong Kong's communities. I propose an alternative model which allows law schools to proactively address the access to justice gap while offering clinical legal education to law students.
The Parable of the Good Samaritan
"A man was walking [in the wilderness] when he was attacked by robbers. They stripped him of his clothes, beat him and went away, leaving him half dead."
There can be no doubt that a medical student who happened to be walking past should use all his power to tend to and rescue this man. No one would bother to ask whether the medical student is in his pre-clinical or clinical year, whether he got an "A" or "D" in medical school, or whether he aspires to be a surgeon or obstetrician. Our morals dictate that he should show mercy to him.
What about a man who was attacked in court and left in the legal "wilderness"? What should a law student do? Should a law student come to his aid and apply his legal knowledge to help? Or should he pass by on the other side, like the priest and Levite in Jesus' parable, in fear that his involvement as a non-qualified lawyer would "taint" the integrity of his profession?
The Legal Wilderness
To most, the ideal answer would be to refer the unrepresented client to a qualified lawyer. However, it is not a realistic choice for many grassroots citizens, considering the access to justice gaps which continue to persist in Hong Kong's community.
Despite efforts made by the government and the legal profession to expand free or pro bono legal service, many underprivileged citizens remain in the "legal wilderness". In a report titled ‘This Way: Finding Community Legal Assistance in Hong Kong’, PILnet highlighted limitations of the current legal services provided to respond to community legal needs.
One significant gap is that all government funded legal support focuses on representation at proceedings or preliminary advice with no or very little follow-up. For the purpose of this blogpost, I would like to highlight several observations:
Legal aid does not cover proceedings in the Small Claims Tribunal or the Labour Tribunal.
Calculation of financial eligibility for Legal Aid can be skewed towards the ‘the young and the working’ making it harder for those with erratic income or living on past savings to apply.
The Free Legal Advice Scheme run by Prof. Eric Cheung at HKU is a ‘rare platform for comprehensive legal support to the community’. The Scheme invites students to contribute in selected cases under the supervision of qualified lawyers and academics.
During the research process for the Access to Justice Fellowship, a student-initiated project to address access to justice in Hong Kong, I interviewed over 15 NGOs. Nearly every one of them told me that the NGOs themselves and/or the communities they serve have inadequate legal support. By way of example:
A small labour organization with only 5 staff members handles over 300 legal enquiries and 50 cases which require follow-up each year with no support from any legal practitioners. I observed how the organization handled one of the cases which was due to go to trial at the Labour Tribunal. The case files were unorganized (compared to what would be expected even based on a law student's standard). MPF statements and tax bills should be prepared but were not. The employee was very nervous and did not know what to say in the opening statement (let alone what to ask in cross-examination). The employee also mistook the pre-trial hearing for the trial.
Another NGO running a shelter for families who are subject to domestic abuse pointed out that many of the people they serve wanted to file divorce proceedings but did not know how to do so. They also said assistance with filling legal and court forms is much needed.
The current governmental and institutional legal support offers no, or only very limited, help in these cases. Employees in Labour Tribunal cases have no access to legal advice while support provided by tribunal officers is limited.
It is also doubtful whether a 30 minute free legal advice session conducted by a lawyer who may have no experience in family law can offer the necessary support and confidence to these traumatized men and women.
That is just the tip of the iceberg. Many members of grassroots communities face legal problems each day with no realistic possibility of receiving any kind of professional support. They are left in the wilderness, by the system, and by members of the legal profession.
The ‘Mike Ross’ Dilemma: Questioning the Legal Regulatory Regime
With this context, let's go back to the original question – what should a law student (like me) do?
My morals, guided by Jesus' teaching, seem to require me, at the very least, to try to help using my legal knowledge. Even if I am not an expert in family or employment law, I may apply my legal research skills and research on my own, or consult a peer who has done the employment or family law course.
On the other hand, I am reminded that I am legally forbidden from giving legal advice. s.7 of the Legal Practitioners Ordinance made it clear that no person shall be qualified to ‘act as a solicitor’ unless he has a practicing certificate that is in force and is covered by an indemnity scheme. Section 49 further makes it a criminal offence to ‘act as a solicitor’.
I guess the only thing that doesn't trouble me is that I am somewhat in the same situation as one of my favourite TV characters, Mike Ross in Suits - a bright, young man with superior legal knowledge and a passion to help the communities, who just doesn't have a practicing certificate.
And that it is not the only instance in which I am troubled by the regulatory requirements.
Being the only person in my extended family to study law, it is not uncommon that my family members come to me for advice on their legal problems. Every time, I have to first reply with a long disclaimer: ‘I am not a qualified lawyer. What I am about to say is just my understanding of the law itself and shall not be regarded as legal advice. You should not rely on what I am going to say. If you do, you now agree to exempt me from all forms of liabilities. You should consult a qualified lawyer if you think that's necessary.’
Law is probably the only discipline in university where students are discouraged from applying their knowledge in the real world.
What's even more troubling is the fine distinction between legal information and advice. I met up this weekend with some peers who have just received funding for their social innovation project which helps SEN students learn more efficiently. Can I volunteer to review the funding agreement for them? Can I propose alternate terms in the agreement? Can I sit in the negotiation with their funders? What if I am not asked to review but to draft the agreement from scratch? What if it's just an internal confidentiality agreement to be signed by all my peers involved in the project? What if it's not a charitable project but a start-up? What if I was vaguely promised that I would be remunerated when the business is making profits?
I remember my lecturer in commercial drafting told me that the only way to perfect one's drafting skills is to draft. Now that I am trying to learn and apply these skills in real life, the fear of being investigated or even disbarred by the Law Society is constantly hanging over my head. The last thing I would want to is to have ruined my legal career before it even started because I want to help a friend or do good in society.
The purpose of this blogpost is not to deny the policy reasons behind the legal regulatory regime. There are very good reasons why we need to ensure the quality of legal service, protect the integrity of the legal profession and to protect both legal practitioners and clients when things go wrong.
However, what I would like to show is that there is a social cost to a stringent regulatory regime: members in grassroots communities may be deprived of legal support that may have been available to them, young entrepreneurs who cannot afford the legal fees may be exploited by more well-resourced corporations or individuals.
And it's not just law students: in-house counsels and retired legal practitioners may also be available to offer pro bono service to close the access to justice gap. Despite recent progress made by the Law Society, is there further room to relax the stringent regulations so that a better balance can be struck?
Implications for Clinical Legal Education
Both the Redmond-Roper Report in 2001 and the Comprehensive Review in 2018 recognize the value of clinical legal education. Despite the observation in the 2001 report that law graduates ‘lack[ed] an expanded view of the world’, the 2018 Review pointed out that ‘initiatives [in clinical legal education] remain somewhat limited in scale’.
A student survey conducted by the Access to Justice Fellowship also supports this conclusion. Only 28% of the PCLL students who took the survey believe that law schools have enough opportunities for them to explore public interest law.
One of the hurdles is that law schools must partner with qualified lawyers covered under the indemnity scheme for law students to be involved in a real pro bono case and participate in legal clinics. It has proved to be a difficulty for CUHK as most of the teaching staff are qualified overseas.
If the regulatory and indemnity scheme policies can be relaxed to allow law school professors to provide pro bono services, it would facilitate law schools in providing more clinical opportunities for students to explore public interest law.
The Access to Justice Fellowship Model
The Fellowship, co-founded by myself and four other PCLL students, may provide an alternative model for clinical legal education in law schools. It focuses not on individual cases but on capacity-building of NGOs.
NGOs are usually the first point of contact for people in marginalized communities when they encounter legal problems. However, many reflected to us that they don't have the connections, expertise and knowledge to handle these issues.
The Access to Justice Fellowship places law graduates into partnering NGOs for 10 months. Instead of focusing on giving legal advice for each individual case, the Fellow would build hardware and software to increase the NGOs' capacities in handling cases and issues with legal elements.
For example, the Fellow will provide training for NGO staff so that they have a more systematic understanding of the legal issues their service target may encounter. The Fellow can also produce case brief templates so that NGO staff can communicate more effectively with pro bono lawyers.
Other possible projects include: writing up checklists for each type of Labour Tribunal claim, templates of witness statements, points to note in a settlement agreement, building up a more systematic case management system in the NGO etc.
This shift of focus enables law graduates to be Good Samaritans and address access to justice without being trapped in the ‘Mike Ross’ dilemma. This model can be replicated in clinical education offered by law schools.
Who is My Neighbour?
‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply.’
The Parable of the Good Samaritan has inspired Lord Atkin's famous quote in Donohue v Stevenson. Whilst the lessons in the parable must be applied restrictively in determining when a duty of care arises in law, members of the legal profession must not apply the restrictive approach when it comes to offering help to our neighbours, whether as qualified lawyers or law students.
It may be a coincidence that Jesus was replying to an expert in the law when he explained this iconic parable. He knew that the expert in law knew full well what's the right thing to do. Whether or not we are thinking about ‘inheriting eternal life, let's follow Jesus' teaching and ‘go and do likewise.’