香港特別行政區(qū)品行規(guī)范

1、CODE OF CONDUCTOF THE BAR OFTHE HONG KONG SPECIALADMINISTRATIVE REGIONAdopted by the Bar Council on 20th November, 1997Effective from May, 1998Bar CouncilHong Kong Bar AssociationLG2, High Court38 QueenswayHong Kong© The Bar Association of the Hong Kong Special Administrative Region 1998All Rig

2、hts of the Bar Association, the x owner, are hereby reserved. This publication and/or part or parts thereof may not be reproduced, stored in any retrieval system, or transmitted in any form or by any means whether by and through electronic or mechanical means, photocopying, recording or otherwise wi

3、thout the prior written consent of the x owner.Neither the Bar Association nor the Publisher is responsible for any loss occasioned to any person whether acting or refusing to take or refraining from taking any action as a result of the material in this publication.Published in May 1998 Printed by T

4、he Green Pagoda Press Ltd.9/F., Block A&B,Tung Chong Factory Building,653-655 King Road,Hong KongThe Material in this publication has been adapted from and is whenever appropriate reproduced from “The Code of Conduct for the Bar of England and Wales” (1981 Edition) with the kind permission of th

5、e Bar Council of England and Wales.The Legal Practitioners Ordinance, its subsidiary legislation and other legislation are reproduced with the permission of the Government of the Hong Kong Special Administrative Region.The Law Society Circulars are reproduced with the kind permission of the Law Soci

6、ety of Hong Kong.The Code of Conduct of the Bar for theHong Kong Special Administrative Regionis primarily based on theCode of Conduct for the Bar of England and Wales (1981 Edition)with variations warranted by local conditions and practice.Paragraphs 9, 31, 33-49, 67-69, 74-79, 95-99, 109,117-119,

7、128-129, 164-169, 173, 175-179and Annexes 1-3, 一五 and 17 have not been adopted.Since the publication of this Code of Conducton 20 January 1983 amendments have beenand will be made from time to time.TABLE OF CONTENTSSUBJECT MATTERPARAGRAPH(S)PRELIMINARY 1-3APPLICATION OF THE CODE: FUNDAMENTAL PRINCIP

8、LES4-6DISCIPLINARY PROCEEDINGS7-11DEFINITION12-一三PRACTISING BARRISTERS: GENERAL PRINCIPLES20-32THE ACCEPTANCE OF INSTRUCTIONS50-66Embarrassment and Conflict of Interest57-62The Return of Briefs63-66ADMINISTRATION70-73IDELEGATION OF WORK80-84RELATION BETWEEN BARRISTERS AND PERSONS OR BODIES INSTRUCTI

9、NG THEM90-94ADVERTISING, TOUTING AND PUBLICITY100-108DUTY OF COUNSEL TO THE LAY CLIENT110-116FEES120-127CONDUCT AT COURT一三0-163Dress in Court140Conferences and Consultations141Attendance of Solicitors or their Representatives in Court142-145Duties When Defending a Person Accused of a Crime146-一五8Dut

10、ies When Prosecuting a Person Accused of a Crime一五9-163AOVERSEAS WORK AND FOREIGN LAWYERS170-174EMPLOYED AND NON-PRACTISING BARRISTERS: GENERAL PRINCIPLES一八0-一八3COMPULSORY PROFESSIONAL INDEMNITY INSURANCE一八4-一八7ANNEXESTHE RULES, REGULATIONS AND BY-LAWSANNEXESRELEVANTNO.SUBJECT MATTERPARAGRAPH(S)1.(N

11、ot Adopted)2.(Not Adopted)3.(Not Adopted)4.List of Approved Supplementary Occupations23-245.Duties of and Guidelines for Pupil Masters and Pupils306.Rules for the Acceptance of Instructions by Senior Counsel517.Conflict of Interest * Connection with Client58, 608.Conflict of Interest * Connection wi

12、th Court or Tribunal599.Chambers * Notices of Change of Address, etc.10110.Extract from the Legal Aid Regulations, Cap.91 Regulation 12(7) & (8)1一五11.Notes for Guidance on Dress in Court14012.Guidance for Prosecution Counsel on the Attendance ofWitnesses at Conferences142一三.Confessions of Guilt1

13、4914.Overseas Practice Rules of the Bar172一五.(Not Adopted)16.Dual Qualification Rules17417.(Not Adopted)一八(i)Reproduction of Circular No. 6/81 issued by the Law Society of Hong Kong re “Payment of Counsels Fees” and “Marking of Counsels Diary” (ii)Reproduction of Circular No. 27/97 issued by the Law

14、 Society of Hong Kong re “Solicitors personally responsible for Barristers fees” (Revision of Principle)127 (iii)Terms of Reference and Procedure of the Joint Tribunal12719.Direct Professional Access Rules and Recommended Standard Terms of Engagement50(b)19A.Direct Professional Access Rules and Reco

15、mmended Standard Terms of Engagement for Direct Access by Arbitrators50(b)20.Acceptance of Brief or Instructions Directly from Persons Authorised by Custom or the Bar Council50(a) & (b)PRELIMINARY1.Respect for the law and for the freedom of the individual citizen depend to a large extent on the

16、maintenance of high standards by all who practise in the Courts. 2.Amendments and additions to this Code may be made by the Bar in General Meeting or alternatively by resolution of the Bar Council, which shall be operative upon such date as the resolution shall appoint, but may be revoked or amended

17、 by the Bar in General Meeting. Amendments and additions will be published from time to time in such manner as the Bar Council may determine.3.Existing rulings of the Bar Council which have not been embodied in this Code or its Annexes remain available for guidance. The “Conduct and Etiquette at the

18、 Bar” by W.W. Boulton also remains available for guidance but only in respect of matters not embodied in this Code.APPLICATION OF THE CODE: FUNDAMENTAL PRINCIPLES4.Every barrister whenever called to the Bar, whether in practice or not, should uphold at all times the standards set out in this Code, t

19、he dignity and high standing of the profession of barrister and his own standing as a member of it.5.The Bar Council has no jurisdiction over the conduct of students from the Faculties of Law of the University of Hong Kong or the City University of Hong Kong or elsewhere employed during the summer v

20、acation or of barristers clerks or any employees; but(a)a barrister is responsible for acts and omissions by his clerk or any employee, when acting on his behalf; and(b)a barrister who takes a pupil (whether called to the Bar or not) should supervise his professional conduct during pupillage.6.It is

21、 the duty of every barrister(a)to comply with the provisions of this Code and with the undertakings (if any) which he made on his call to the Bar;(b)not to engage in conduct (whether in pursuit of his profession or otherwise) which is dishonest or which may otherwise bring the profession of barriste

22、r into disrepute, or which is prejudicial to the administration of justice;(c)to observe the ethics and etiquette of his profession;(d)if a practising barrister, or an employed barrister acting under paragraph 183 of this Code, to be competent in all his professional activities.DISCIPLINARY PROCEEDI

23、NGS7.Serious failure to comply with the duties set out in paragraph 6 shall be professional misconduct and, if so found by a Barristers Disciplinary Tribunal, shall render the barrister liable to be punished in accordance with the provisions of the Legal Practitioners Ordinance, Cap. 一五9. (Circular

24、No. 57/93)8.Any failure to comply with the duties set out in Paragraph 6 which does not, in the opinion of the Bar Council, amount to professional misconduct shall be a breach of proper professional standards and, if established to the satisfaction of the Bar Council, shall render the barrister liab

25、le either (a) to be ordered to attend upon the Chairman or some other person nominated by the Bar Council in order that he should be (1) admonished or (2) given appropriate advice as to his future conduct or (b) to be admonished by letter from the Chairman.The next paragraph number is 10.10.It is th

26、e duty of a barrister:(a)to respond to any requirement from the Bar Council for comments or information or to attend the Special Committee on Discipline or any other nominated or appointed person when required to do so by the Bar Council, (Circular No. 06/94) (b)to attend proceedings before a Barris

27、ters Disciplinary Tribunal when so required,(c)to attend upon the Chairman or other nominated or appointed person when required to do so by the Bar Council under paragraph 8 above.11.A barrister must report to the Bar Council if he is convicted of a criminal offence which involves dishonesty or whic

28、h may bring the profession into disrepute. In case of doubt the offence should be reported.DEFINITION12.In this Code (except for paragraph 140), the expression “Court” includes any court or tribunal or any other person or body whether sitting in public or private before whom a barrister appears as a

29、n advocate and save and unless otherwise provided words in the masculine gender include the feminine gender and where necessary words in the singular include the plural.一三.In this Code the expressions “professional chambers” and “chambers” mean premises used by one or more barristers to carry on the

30、ir practices and not shared with persons who are not barristers. For example, business centres or other premises shared with persons who are not barristers are not professional chambers as defined in this Code. (Circular No. 019/04)The next paragraph number is 20.PRACTISING BARRISTERS - GENERAL PRIN

31、CIPLES20.Subject to paragraph 32, a practising barrister is a barrister who has been admitted to practise in Hong Kong and who is entitled and holds himself out as willing to appear in a court on behalf of a client or to give legal advice or services to a client; but is not an employed barrister.21.

32、A practising barrister is bound to accept any brief to appear before a Court in the field in which he professes to practise at his usual fee having regard to the type, nature, length and difficulty of the case. Special circumstances such as a conflict of interest or the possession of relevant and co

33、nfidential information may justify his refusal to accept a particular brief.22.A practising barrister may not, whether or not he is acting for a fee, supply legal advice or service to the public or to a section of the public otherwise than in the course of his practice save in the following circumst

34、ances: (1) supplying legal advice or service in any country outside Hong Kong if the rules in force in that country permit barristers to do so;(2) lecturing, teaching, writing or editing of legal text books or of articles in newspapers or journals;(3) giving advice on legal matters free to a friend

35、or relative;(4) participating in the Duty Lawyer Service Free Legal Advice Scheme;(5) acting as unpaid or honorary legal adviser to any charitable, benevolent or philanthropic institution;(6) the giving by a barrister who is a non-executive director of a company or a trustee or governor of a charita

36、ble, benevolent or philanthropic institution or a trustee of any private trust to the other directors, trustees or governors (as the case may be) of the benefit of his learning and experience on matters of general policy and of general legal principle applicable to the affairs of the company, instit

37、ution or trust. (Circular 一五/99)(7) subject to the prior approval of the Bar Council, giving advice on legal matters free in a scheme or programme established to the satisfaction of the Bar Council to further the purpose of promoting amongst the public greater awareness of their legal rights, or res

38、pect for the rule of law or otherwise promoting the objects of the Bar Association. (Circular 17/03)23. (1) A barrister may not, without the permission of the Bar Council, become or remain a practising barrister unless he is willing for his practice to be his primary occupation; and he may not engag

39、e directly or indirectly in any other occupation if his association with that occupation may adversely affect the reputation of the Bar. (2) A practising barrister must not engage directly or indirectly in any other occupation if his association with that occupation may prejudice his ability to atte

40、nd properly to the interests of his clients. (3) (a) A practising barrister who wishes to engage in a supplementary occupation should do so only in accordance with the general or special permission of the Bar Council.(b) Supplementary occupations for which the Bar Council has granted general permiss

41、ion are set out in a List of Approved Supplementary Occupations in Annex 4 to this Code. A practising barrister who wishes to engage in an occupation not listed in Annex 4 or is in doubt whether a proposed occupation is within the approved list should seek the special permission of the Bar Council b

42、efore taking up the occupation. (4) (a) Save in the instance where general permission is given in Annex 4, a practising barrister may not be an executive director of a company without seeking special permission from the Bar Council; and he may not, as a non-executive director, do work for the compan

43、y which would ordinarily be done by an executive director. (b) A practising barrister may not, as a director, undertake legal work for the company which, as a barrister, he could only undertake if instructed by a person authorised to instruct him in the matter. For example, he may not draft document

44、s or appear for the company in proceedings, enquiries or arbitration.(c) A practising barrister may, as a director, give to the board the benefit of his learning and experience on matters of general policy and of general legal principles which are applicable to the companys affairs.(d) He should ens

45、ure that his advice is compatible with his position as a director and is not of the kind which he would give as a barrister advising a client. For example, it would be proper for him to draw the attention of the board to the general effect of an Ordinance on the companys affairs or to advise that th

46、e companys terms of business needed revision; but it would be wrong for him to undertake to revise the terms of business himself.(e) He should, therefore, avoid becoming concerned in specific legal matters affecting the company. There may, however, be circumstances in which it would be proper for hi

47、m to give his advice in relation to a specific problem, either in a general way or as a matter of urgency. In these circumstances, he should ensure that the company consults its solicitors as soon as the matter reaches the point at which such consultation would normally take place. (5) A barrister w

48、ho is a pupil must apply himself full time to his pupillage save that a pupil may, with the approval of the Bar Council, engage in part time occupation which does not materially interfere with his pupillage. The general permission to engage in supplementary occupations in Annex 4 does not apply to b

49、arristers serving pupillage. (Circular No. 一五/99)24.A practising barrister may not use or permit the use of his professional qualification for the advancement of any other occupation in which he is directly or indirectly engaged or for private advantage, save in relation to the legal occupations lis

50、ted in Annex 4.25.A barrister may not practise unless:(a)he has or is a member of or is temporarily permitted the use of professional chambers; or(b)he is a pupil of a practising barrister and is otherwise qualified to practise.Provided that a barrister may use such temporary chambers as may be prov

51、ided or approved by the Bar Council.26.A barrister who is a member of professional chambers must:(a)have his name exhibited at the chambers; (b)have the right to make such use of the chambers, and of its administration and facilities, as his practice requires;Subject to such exceptions as may be app

52、roved by the Bar Council a barristers private residence or any part thereof may not be regarded as professional chambers.27.A barrister may be a member of two sets of professional chambers provided that both sets are not in Hong Kong.28.A partnership is not permissible between practising barristers.

53、 Two or more practising barristers may agree to share professional expenses, either in proportion to their receipts or in any other way; but they may not (save as provided in paragraphs 81 to 83) agree to share professional receipts or agree that any one or more of them shall assume responsibility f

54、or the professional work of the other or others.29. (1)A person who intends to practise as a barrister must serve the period of approved pupillage which shall, subject to reduction by the Chief Judge, be:(a) a period of not less than 12 months in the chambers of a junior barrister who, save in excep

55、tional circumstances established to the satisfaction of the Bar Council, has continuously practised for not less than 5 years after commencement of full practice at the Bar in Hong Kong; or(b) a period of not less than 9 months in the Department of Justice, which may include a period not exceeding 3

56、 months on secondment to the Legal Aid Department, so long as he has also spent a period of not less than 3 months in such service as is described in sub-paragraph (a) above.(2)Subject to the Bar Councils approval, the period of approved pupillage mentioned in (1) above may include:(a) any period no

57、t exceeding 1 month spent as a judges marshall in Hong Kong; and(b) any period not exceeding 3 months as a pupil with a Senior Counsel.(3)Save in exceptional circumstances, the Bar Council is unlikely to approve pupillage of less than 3 months with any one barrister.(4)A person who is a pupil may not accept an instruction to act a