LEGAL PRACTITIONERS ORDINANCE, 1871
Title
LEGAL PRACTITIONERS ORDINANCE, 1871
Description
ORDIANCE No. 1 OF 1870.
Legal Practitioners Ordinance, 1871.
AN ORDINANCE to consolidate and amend the Laws relating to
the Service and Examination of Articled Clerks to Solicitors,
the Admission and Enrolment by the Supreme Court of Bar
rister, Solicitors, and Proctors, the Registration of Public
Notaries, the Practice of Barristers and Solicitors, the taxa-
tion and Recovery of Solicitors' Costs, the Remuneration of
Solictors, and other matter connected with the Members of
the Legal Profession. [29th May, 1871]
BE it enacted by the Governor of Hongkong, with the advice and
consent of the Legislative Council thereof, as follows:-
1. This Ordinance may be cited as the Legal Practitioners Ordinance,
1871.
2. In this Ordinance, unless the context otherwise requires,-
'The Court' means the Supreme Court and includes the Chief
Justice and the Puisne Judge of the Supreme court, sitting together
or separately in Court or in Chambers;
'The Registrar' means the Registrar of the Court;
'Articles' include any contract in writing whereby any person is
bound to serve as a clerk to a solicitor;
'Solicitor' means a solictor or proctor qualified according to the
privisons of the laws fro the time being in force in this Colony
relating to the admission and qualification of solicitors and proctors;
'Client' includes any person who, as a principal, or on behalf of
another person, or as trustee or executor, or in any other capactiy,
has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ, a solicitor, and nay person
for the time being liable to pay to a solicitor for his services any
costs, remuneration, charges, expenses, or disbursements;
'Party' includes a body of persons corporate or unincorporate;
'Costs' include all moneys, by whatever name called, which a
client pays or is liable to pay to a a solicitor fro , or in respect of , or in
anticipation of services rendered or to be redered to hime by such
solicitor, or for or in respect of any fees, charges, or disbursements
paid or made, or to be paid or made, by such solicitor for him or on
his behalf;
'Mortgage' includes any charge on any property for securing
money or money's worth.
Service and Examination of Articled Clerks.
3.-(1) the Chief Justice may from time to time, if he thinks fit,
make regulations, to be approved by the Legislative Council, for the
preliminary examination of persons hereafter intending to becom bound
under articles of clership to solicitors practising in this colony, in order
to ascertain the fitness of such persons to become so bound, having re-
gard to their general learning and eduaction and to their character and conduct.
(2) The articles whereby any person may be bound to serve any soli-
citor practising in this Colony without having passed such preliminary
examination to the satisfaction of the examiners or without having obtained
an order from the Chief Justice dispensing with such preliminary examination
shall be null and void.
4.Any person being a Brsitsh subject who either before or after
the commencement of this Ordinance has for the term of five years been
a bona fide clerk to a solicitor practising in this Colony and during that
under the direction and superintendece of such solictor,of such matters
of businerss as are usually transacted and performed by solicitors and
proctors and who produces to the Chief Justice satisfactory evidence
that he has faithfully, honestly, and diligently served as such clerk, shall
be exempted from any preliminary examination.
5.-(1.) The articles whereby any person becomes bound to serve as
a clerk to any solicitor practising in this Colony, and every assignment
thereof, shall be produced to the Registrar within one month after the
same ahve been executed, and the person so bound as aforesaid shall,
within the said period, make and duly swear, or cause to be made and
duly sworn, an affidavit of such solicitor having been duly admitted,
and also of the actual execution of the ariticles or assignment by the
parties thereto.
(2.) In every such affidavit there shall be specified the names of such
solicitor and of the person so bound and the day on which such articles
or assignment were or was actually executed, and such person shall also,
within the said period, file the said affidavit in the Court.
6.-(1) Within the said period of one month and on the filing of the
affidvait required by the last preceding section and the payment of the
prescribed fees, the Registrar shall enrol and register the articles or
assignment, and shall make and sign a memorandum theron and on the
affidavit of the day on which the same was filed.
(2) The Registrar shall likewise enter the names of the parties to and
the date of such articles or assignment and the term of service in a
book to be kept for that purpose, and shall mark such articles or assign-
ment as having been so entered, with the date thereof, and the said book
shall be open to public inspection during office hours without fee or
reward.
7. The formalities prescribed by the last two preceding sections may
be observed and performed after the expiration of the period of one
month therein specified, by leave of the Chief Justice, but the service of
the clerk so bound as aforesaid shall be reckoned to commence and be
computed from the date when such leave is grandted or, in the case of
an assignment, his service shall be suspended from the expiration of the
said period of one month until the date when such leave is granted,
unless the Chief Justice otherwise orders.
8. No person bound by articles of clerkship to any solicitor as afore-
said shall, during the term of service mentioned in such articles, hold
any office or engage in any employment whatsoever other than the em-
ployment of clerk to such solicitor and his partner or partners, if any,
in the business, practice, or employment of a solicitor and proctor.
9. In case any solicitor to whom any clerk is articled becomes bank-
rupt before the expiration of the term, or executues a trust deed for
the benefit of his creditors under any Ordinance for the time being in
force relating to bankruptcy, or is imprisoned for debt and remains in pri-
son for the space of twenty-one days, it shall be lawful for the Court, on
the application of such clerk, to order and direct the articles to be dis-
charged or assigned to such person, on such terms, and in such manner
as the Court thinks fit.
10. The Chief Justice may from time to time, if he thinks fit, make
regulations, to be approved by the Legislative Council, for the final ex-
amination of persons who have been bound by articles of clerkship for a
period of five years as aforesaid, in order to ascertain the fitness of such
persons for admission to practise as solicitors and proctors in the court, having due regard to their general learning and education, their charac-
ter and conduct, their professional knowledge, the length and assiduity
of their service, and their other credentials.
11. The Attorney General and any two or more fit persons, to be ap-
pointed from time to time as occasion may require by the Chief Justice
in writing and under the Seal of the court, shall be examiner for the
purpose of this Ordinance, and they shall be entitled to received by way
of remuneration for their services such sum or sums out of the public
revenue of the Colony as the Governor-in-Council may from time to
time direct.
12. Until regulations for such preliminary and final examinations are
made as aforesaid and so far as the same may be imcomplete and may
omit to provide for any particular matters or things, the examiners may
conform theselves, so far as may be practicable, to the regulations
by which the examinations of persons intending to become bound under
articles of clerkship, and of candidates for admission to practise as soli-
citors, in England, are respectively for the time being governed and
directed.
13.-(1) The examiners shall certify the result of every such prelim-
inary or final examination to the Court within one week from the
completion of the same or within such further time as the Court may
allow.
(2) Every such certificate shall be in writing signed by the examin-
ers or any two or more of them, of whom the Attorney General shall
be one, and shall state to the effect that the examiners or the majority of
them find that the candidate is or is not fit to become bound under
articles as aforesaid or to act as a solicitor and proctor of the Court, as
the case may be, or that the examiners have not been able to come to any
finding as to his fitness in that behalf.
14. If the examines or the majority of them present at any such
final examination find that the candidate is fit, he shall be admitted to
practise accordingly; but if they or the said majority find that he is not
fit or come to no finding, the candidate may, on his petition to the Court,
be heard in support of his qualification and claim to such admission; and
if the Court grants the prayer of his petition, he shall be admitted ac-
cordingly, notwithstanding any such finding or wnat of finding as afore-
said.
15. Except in any case where the Court, on special application, gives
leave to the contrary, no admission shall be granted, whether on such
certificate or on such petition as aforesaid, after the expiration of one
moth from the date of the return of the certificate or the date of the order made on the petition, as the case may be.
16. Every candidate for admission as a solicitor and proctor under
section 23 shall five one month's notice in writing to the Registrar of
his intention to apply for examinatio and admission, and shall likewise
cause a like notice to be inserted three times in The Gazette and in a
public newspaper of the Colony: Provided always that the Chief Justice
may, if he thinks fit, on any special grounds, make an order dispensing
with all or any of the formalities prescribed by this section.
17. Every candidate for admission as a solicitor and proctor under
section 23 who has given such notice of his intention to apply for ex-
amination and admission as aforesaid, and who has not been admitted,
may, within six months after such notice given, renew the notice for
examination and admission, and so from time to time as often as he may
think proper: Provided always that if any such person has been pre-
vented from attending to be examined as aforesaid by reason of sickness
or other unavoidable cause, it shall be lawful for the Chief Justice to
permit such notice to be renewed within the said period of six months.
18. Every candidate for admission as a solicitor and proctor under
section 23 who has served part of the period of five years therein mentioned
as an articled clerk to a solicitor practising in Great Britain or Ireland,
and the other part to a solicitor practising in this Colony, shall, in addi-
tion to the formalities prescribed by sections 5 and 6 in respect of the
articles therein mentioned, and before he can be admitted and enrolled,
produce to the Registrar the articles under which he has become bound
to such solicitor practising in Great Britain or Ireland and every assign-
ment thereof, and shall make and swear, or duly cause to be made and
swoorn, such affidavits in relation thereto as are prescribed by section 5 in
respect of the articles therein mentioned; and the provisions of section
6 as to enrolment., registration, and other matters in relation to the articles
therein mentioned shall likewise apply to articles whereby such candi-
date has been bound to serve any solicitor practising in Great Britain or
Ireland and to any assignment thereof: Provided always that the Chief
Justice may, on special grounds and on such conditions as he may think
proper, excmpt any such person from complying with the formalities
prescribed by this section, either absolutely or for any specified period.
19.-(1) Every candidate for admission as a solicitor and proctor
under section 23 shall, before he can be admitted and enrolled, prove by
an affidavit of himself or of the solicitor or solicitors practising in Great
Britain or Ireland or in this Colony to whom he has bound, to be duly
made and filed in the Court, that he has actually and really served and
been employed by such practising solicitor or solicitors during the period
of five years required by this Ordinance, and that he has not during such
period held any office or been engaged in any employment whatsoever
other than the employment of clerk to such solicitor or solicitors and his
or their partner or partners, if any, in the business, practice, or employ-
ment of a solicitor and proctor.
(2) The affidavit shall be in such form as may be approved of by the
Chief Justice.
Admission of Barristers, Solicitors, Proctors, and Public Notaries.
20. From and after the commencement of this Ordinance, no person
shall practise in this Colony as a barrrister, solicitor, or proctor unless he
has been approved, admitted and enrolled by the Court, or as a public
notary unless he has been registered, under the provisions of this
Ordinance: Provided always that it shall not be necessary for any
person already admitted and enrolled by the Court the practise as a bar-
rister, solicitor, or proctor to be re-admitted or re-enrolled under this
Ordinance, and every person now practising as a public notary in the
Colony shall be allowed one month from the commencement of this Ordi-
nance, o, if absent, from the date of his return to the colony, within
which to become registered, and shall during such period be exempt from
the operation of this section and of section 27.
21. The Court shall have power to approve, admit, and enrol such
persons as have been admitted barristers or advocates in Great Britian or
Ireland to practise as barristers, and such persons as have been admitted
as attorneys, solicitors, or writers in one of the Courts at London, Dublin,
or Edinburgh, or as proctors in any Ecclesiastical Court in England, to
practise as solicitors and proctor, in the Court.
22. Every person who desires to be admitted under that last preceding
section to practise in the Court in any of the capacities therein men-
tioned shall deposit with the Registrar his certificate of call to the bar or
of his admission as an attorney, solicitor, writer, or proctor, and shall file
in the Court an affidavit of identity in such form as my be approved by
the Chief Justice: Provided always that the Chief Justice may, on special
grounds and on such conditions as he may think proper, exempt any
such person from complying with th formalities prescibed y this sec-
tion, either absolutely or for any specified period.
23. The Court shall have power to admit and enrol as a solicitor and
proctor of th Court any person, being a British subject, who ahs actually
exclusively and bonu fide served for the period of five years as a clerk
under articles to any solicitor actually practising in the colony or part
of such period of five years under articles to such solicitor and the other part under articles to any solicitor acturlly practising in Great Britian or
Ireland, and who has been examined in the manner hereinbefore directed
as sworn in the manner hereinafter directed, and otherwise has ful-
filled all the conditions of this Ordinance in relation to such admission.
24. Every person who applies to be admitted and enrolled under sec-
tion 21 or under the last preceding section as a solicitor and proctor of
the court shall, before admission of allegiance in the forme prescribed by the
Promissory Oaths Ordinance, 1869, and also the oath or declaration and
affirmation following:-
I, A.B., do swear[or solemnly, sincerely, and truly declare and
affirm] tht I will truly and honestly demean myself in the practice
of a solicitor and proctor, according to the best of my knowledge and
ability[and, in the case of an oath, So help me God.]
Registration of Public Notaries.
25. The Registrar shall keep a special book for the registration of
public notaries, and every public notary who produces his notarial
faculty, and files in the Court an affidavit of identity in such form as
may be approved by the Chief Justice, shall, on payment of the pre-
scribed fee, be entitled to be registered therein.
Practice of Barrristers, Solicitors, Proctors, and Public Noaries.
26. It shall be lawful for any person admitted and enrolled by the
Court to practise as a barrister or as a solicitor to practise as such re-
spectively in all the Courts of the Colony.
27. Every person who,-
(1) eithere directly or indirectly, practises or acts in this Colony as a
barrister, solicitor, or proctor without having been admitted and
enrolled by the Court, either before or after the commencement of
this Ordinance, or as a public notary without having been duly
registered as hereinbefore provided; or,
(2) without possessing any qualification as a barrister, solicitor, proc-
tor, or public notary, acts as such or prepares any document what-
ever for fee or reward,
shall be liable for every such offence to forfeit to the Crown a penalty
not exceeding two hundred dollars.
28. The rules of the legal profession and the laws now in force in
relation to the practice of barristers and soliitors admitted and enrolled
by the Court shall be modified to the extent mentioned in the next two
succeeding sections.
29.-(1) A barrister may, without the intervention of a solicitor, hold consultaions with clients and give opinions in all matters whateever.
(20 A barrister may, without the intervention of a solicitor, appear
for a client in all criminal proceedings before the Court, and in all civil
proceedings in the court in its Summary Jurisdiction, and in all pro-
ceedings whatever before any court of inferior jurisdiction.
(3) A barrister may receive any fees directly from a client for any
professional business which he may transact without the intervention of
a solicitor.
(4) No barrister shall practise as a public notary.
30.-(1) A solicitor may practise as an advocate in the Court in its
Summary Jurisdiction.
(2) No solicitor who is admitted and enrolled by the Court after the
commencement of this Ordinance shall, while in the employment of an-
other solicitor, practise on his own account or in his own name or trans-
act any legal business otherwise than as clerk to such other solicitor.
Taxation and Recovery of Solicitors' Costs.
31. On any taxation of costs, the taxing officer may, in determining
the remuneration, if any, to be allowed to a solicitor for his services,
have regard, subject to any general rules or orders already made or
hereafter to be made on that subject, to the skill, labout and responsi-
bility involved.
32. If any person is desirous of obtaining, under section 51, the taxa-
tion of a bill of fees, charges, or disbursement, for any business whatso-
ever done by a solicitor or proctor, whether in an action or not in an
action or relating thereto, it shall not be necessary for such person to
apply to the Court fpor any order in that behalf; but he shall be at liberty,
if he thinks fit, to refer such bill of his own authority to the Registrar or
other taxing officer of the Court, who shall thereupon proceed to tax the
same in like manners as he would have done under an order of reference
for that purpose in conformity with the enactments which by section 51
are extended to this Colony in the manner therein mentioned.
33.-(1) In every case in which a solicitor is employed to prosecute
or defend any action, matter, or proceeding in the Court, it shall be lawful
for the Court to declare such solicitor entitled to a charge upon the pro-
perty recovered or preserved, and, on such declaration being made, such
out of, the property, of whatsoever nature, tenure, or kind the same may
be, which may have been recovered or preserved through the instru-
mentality of such solicitor, for the taxed costs of or in reference to such
action, matter, or proceeding.
(2) It shall be lawful for the Court to make such order for taxation of and for raising and payment of such costs out of the said property as
to the Court may appear just and proper.
(3) All conveyances and acts done to defeat, or which may operate to
defeat, such charge or right shall, unless made to a bonu fide purchaser
for value without notice, be absolutely void and of no effect as against
such charge or right:
Provided always that no such order shall be made by the Court in any
case in which the right to recover payment of such cost is barred by any
stature of limitations.
Remuneration of Solicitors.
34. A solicitor may make an agreement in writing with his client
respecting the amount and manner of payment for the whole or any part
of any past or future costs in respect of business done or to be done by
such solicitor, whether as a asolicitor or as an advocate or conveyancer,
either by a gross sum, or by commisssion or percentage, or by salary or
otherwise, and either at the same or at a greater or at a less rate as or
than the rate at which he would otherwise be entitled to be remunerated,
subject to the provisions and conditions contained in this Ordinance:
Provided always that when any such agreement is made in respect of
business done or to be done in any action, the amount payable under the
agreement shall not be recoverable by the solicitor until th agreement
has been examined and allowed by a taxing officer of the Court; and if
it appears to such taxing officer that the agreement is not fair and reason-
able, he may require the opinion of the Court to be taken thereon by
motion or petition; and the Court shall hav power either to reduce the
amount payable under the agreement or to order the agreement to be
cancelled and the costs in respect of the business done to be taxed in the
same manner and according to the same rules as if such agreement had not been made.
35. Such an agreement shall not affect the amount of, or any rights
or remedies for the recovery of, any costs recoverable from the client by
any other person or payable to the client by any other person, and any
such other person may require any cost payable or recoverable by him
to or from the client to be taxed according to the rules for the time being
in force for the taxation of such costs, unless such person has otherwise
agreed: Provided always that the client who has entered into such
agreement shall not be entitled to recover from any other person, under
any order for the payment of any costs which are the subject of such
agreement, more than the amount payable by the client to his own solicitor
under the same.
36. Such an agreement shall be deemed to exclude any further claim
of the solicitor beyond the terms of agreement in respect of any costs
in relation to the conduct and completion of the business in reference to
which the agreement is made, except such cost, if any, as are expressly
excepted by the agreement.
37. A provision in any such aggreement that the solicitor shall not be
liable for negligence, or that he shall be relieved from any responsibility
to which he would otherwise be subject as such solicitor, shall be wholly
void.
38.-(1) No action shall be brought upon any such agreement;
but evry quention respecting the validity or effect of any such agree-
ment may be examined and determined, and the agreement may be
enforced or set aside, by the Court, without action, on motion or petition
of any person or the representative of any person, being a party to such
agreement, or being or alleged to be liable to pay, or being or claiming
to be entitled to be paid the costs in respect of which the agreement is
made.
(2) Such motion or petition shall be made or presented to the Court
in its Original Jurisdiction in cases where the amount payable under
the agreement exceds one thousand dollars and in its Summary Juris-
diction in cases where the amount payable under the agreement does not
exceed one thousand dollars.
39.-(1) On any such motion or petition as aforesaid, if it appears
to the Court that the agreement is in all respects fair and reasonable
between the parties, the same may be enforced by the Court, by rule or
order, in such manner and subject to such conditions, if any, as to the
costs of such motion or petition, as the Court may think fit; but if the
reasonable, the same may be declared void, and the Court shall there-
upon have power to order such agreement to be given up to be cancelled,
and may direct the costs incurred or chargeable in respect of the matters
included therein to be taxed in the same manner and according to the
same rules as if the agreement had not been made.
(2) The Court may also make such order as the the cost fo and re-
lating to such motion or petition and the proceedings thereon as to the
Court may seem fit.
40.-(1) When the amount agreed for under any such agreement
has been paid by or on behalf of the client or by any person chargeable
with or entitled to pay the same, the Court may, on application by the
person who has paid such amount, within twelve months after the pay-
ment therof, if it appears to the Court that the special circumstantces of
the case require the agreement to be re-opened, re-open the same, and
order the cost to be taxed and the whole or any portion of the amount received by the solicitor to be repaid by him, on such terms and condi-
tions as to the Court may seem just.
(2) Where any such agreement is made by the client in the capacity
of guardian, or of trustee under a deed or will, or of committee of
any persoin whose estate or property will be chargeable with the
amount payable under the agreement or with nay part of such amount,
the agreement shall before payment be laid before a taxing officer of the
Court, and such officer shall examine the same, and may disallow any
part thereof or may require the direction of the Court to be taken
thereon by motion or petition; and if, in any such case, the clietn pays
the whole or any part of the amount payable under the agreement,
without the previous allowance of such officer or the Court as a foresaid,
he shall be liable at any time to account to the person whose estate or
propety is charged with the amount paid, or with any part thereof, for
the amount so charged; and if, in any such case, the solicitor accepts
payment without such allowance, the court may, if it thinks fit, order
him to refund the amount so received by him under the agreement.
41. Nothing in this Ordinance shall be construed to give validity to
any purchases by a solicitor or by his clerk of the interest, or any part
of the interest, of his client in any action or other contentious proceeding
to be brought or maintained, or to give validity to any agreement by
which a solicitor retained or emplyed to prosecute any action or pro-
ceeding stipulates for payment only in hte event of success in such ac-
tion or proceeding.
42. Nothing in htis Ordinance shall give validity to any disposition,
contract, settlement, conveyance, delivery, dealing, or transfer which
may be void or invalid against a trustee or creditor in bankruptcy,
arrangement, or composition, under provisions of the laws for the
time being in force relating to bankruptcy.
43.-(1) Where a solicitor has made an agreement with his client
in pursuance of the provisions of this Ordinance, and anything has been
done by such solicitor under the agreement, and before the agreement
has been completely performed by him such solicitor dies or becomes
incapable to act, an application may be made to the Court by any
party to the agreement or by the representative of any such party,
and the Court shall thereupon have the same power to enforce or set
aside the agreement, so ar as the same may have been acted upon, as
if such death or incapacity had not happened.
(2) The Cour, if it deems the agreement to be in all respects fair
and reasonable, may order the amount due in respect of the past per-
formance of the agreement to be ascertained by taxation; and the taxing
officer, in ascertaining such amount, shall have regard, so far as may be, to the terms of the agreement; and payment of the amount found to be
due may be enforced in the same manner as if the agreement had been
completely performed by the solicitor.
44.-(1) If, after any such agreement as aforesaid has been made,
the client changes his solicitor before the conclusion of the business to
which the agreement relates (which he shall be at liberty to do, not-
withstanding the agreement), the solicitor with whom the agreement
was made shall be deemed to have become incapable to act under the
same within the meaning of the last preceding section.
(2) One any order being made for taxation of the amount to such
solicitor in respect of the past performance of the agreement, hte Court
shall direct the taxing officer to have regard to the circumstances under
which such change of solicitors has taken place; and, on such taxation,
the solicitor shall not be deemed entitled to the full amount of the re-
muneration agreed to be paid to him, unless it appears that there has
been no defult, negligence, improper delay, or other conduct on his part
affording reasonable gournd to the cleient for such change of solicitors.
45. Except as in this Ordinance provided, the bill of a solicitor for
the amount due under an agreement made in pursunance of the provisions
of this Ordianance shall not be subject to any taxation or to the provi-
sions of the Solicitors Act, 1843, of the Imperial Parliament (so far as such
provisions ar hereby extended to this colony) or of section 48 of this
Ordinance respecting the signing and delivery of the bill of a solicitor.
Miscellaneous Provisions.
46. A solicitor may take security from his client for hsi future costs,
to be ascertained by taxation or otherwise.
47. Whenever any judgement or order has been made for payment of
costs in any action and such action afterwards becomes abated, it shall be
lawfull for any person interested under such judgment or order to revive
such action, and thereupon to prosecute and enforce such judgment or
order, and so on from time to time as often as any such abtement may
happen.
48. It shall be lawful for the Court the authorize a solicitor to com-
mence an action for the recovery of his costs against the party charge-
able therewith and also to refer his bill of costs and the deamdnd of
such solicitor thereupon to be taxed, although one month may not have
expired from the delivery of the bill of cost, on proof, to the satifaction
of the Court, that there is probable cause for believing that the party
chargeable therewith is about to quit the Colony or to become a bankrupt
or a liquidating or compounding debtor, or to take any other steps or do
any other act which, in the opinion of the Court, would tend to defeat
or delay such solicitor in obtaining payment.
49.-(1) Any solicitor to whom, either alone or jointly with any
other person, a mortgage is made, or the firm of which such solicitor is
acts done by such solicitor or firm in ngeotiating the lean, deducing and
investigating the title to the property, and preparing and completing
the mortgage, all such usual professional charges and remuneratin as
he or they would have been entitled to receive if such mortgage had
been made to a person not a solicitor, and such person had retained and
employed such solicitor or firm to transact such business, and do such
acts; and such charges and remuneration shall accordingly be recover-
able from the mortgagor.
(2) This section applies only to mortgages made after the commence-
ment of this Ordinance.
50.-(1) Any solicitor to or in whom, either alone or jointly with
any other person, any mortgage is made or is versted by transfer or
transmission, or th firm of which such solicitor is a member, shall be
entitled to receive and recover from the person on whose behalf the same
is done or to charge against the securtiy, for all business tranacted and
acts done by such solicitor or firm subsequent and in relation to such
mortage or to the securtiy thereby created or the property therein com-
prised, all such usual professional charges and remmuneration as he or
they would have been entitled to receive if such mortgage had been
made to, and had remained vested in, a person not a solicitor, and such
person had retained and employed such solicitor or firm to transact such
business and do such acts; and accordingly no such mortgage shall be
redeemed except on payment of such charges and remuneration.
(2) This section applies to mortages made and business transacted
and acts done either before or after the commencement of thies Ordi-
nance.
51. So much of the said Solicitors Act, 1843, of the Imperial Parlia-
ment, sections 4,5, 28, 29, 32, 37, except from the words 'Provided
also that it shall be lawful for any judge' to the end of the section, 38,
to 41, and 13, as relates to th competence of attorneys or solicitors to have
clerks bund by vcontracts under articles, th edischarge of such con-
tracts, service under such contracts when made with disabled or dis-
qualified persons, the time for making applications for striking off the
rolls persons admitted and enrolled erroneously but without fraud, the
agency of attorneys or solictors for disqualified persons, the delivery,
reference, and taxation (whether before payment or after) of bills of
fees, charges, and disbusements for any business done by attorneys or
solicitors, applications of parties and orders of Court for delivery and reference in such cases nd for delivery up of deeds, documents, or
papers, certificates of taxation and entering up of judgments, and the
conditions on which actions or suits may be commenced or maintained
by attorneys or solicitors for the recovery of any fees, charges, or dis-
bursements shall from the commencement of this Ordiance, (but sub-
ject to the provisions herein contained) extend to this Colony, and to all
business now being done or to be hereafter done within the same.
52. The Court shall have power, for reasonable cause, to remove and
strike off from the rolls of the Court the name of any barrister, solicitor,
or proctor.
53. The provisions of this Ordinance shall not apply to the Attorney
General or to the Crown Solicitor.
54. The fees mentioned in the Schedule to this Ordinace shall be
payable in respect of the matters therein mentioned.
55. Nothing in this Ordinance shall be deemedd to affect the rules of
the legal profession and the existing laws relaing to barristers and
solicitors further or otherwise than is herein expressly enacted or to
prejudice the right of any person existing at the commencement of this
Ordinance.
SCHEDULE.
TABLE OF FEES.
A.D. 1871. Ordinance No. 3 of 1871, with Ordinances No. 13 of 1856 ss. 11, 12, No. 12 of 1873 ss. 20, 25, No. 15 of 1873, No. 13 of 1884, No. 9 of 1899, and No. 32 of 1899 incorporated. Short title. Interpretation of terms. 44 & 45 Vict.c. 44 s. 1. 58 & 59 Vict.c. 25 s. 4. Making of regulations for preliminary examination. 23 & 24 Vict.c. 127 s. 8. Exemption from preliminary examination in certain case. Formalities to be observed on execution of articles or of any assignment thereof. 6 & 7 Vict.c. 73 s. 8. Duties of Registrar as to enrolment of articles. 23 & 24 Vict. 127 s. 7. Performance, by leave, of prescribed formalities after expiration of specified period. 6 & 7 Vict.c. 73 s. 9. Prohibition of articled clerk being engaged in other employment. 23 & 24 Vict.c. 127 s. 10. Discharge or assignment of articles in case of bankruptcy, etc. 6 & 7 Vict.c. 73 s. 5. See Ordinance No. 7 of 1891. Making of regulations for final examination. Examiners of articled clerks. Conduct of exmainations in default of regulations. Certificate of result of examination. Admission of successful candidate, and right of appeal of unsuccessful candidate, at final examination. Time of admission after certificate, etc. Notice of intention to apply for examination and admission. Renewal of notice. Registration of articles of service to solicitor practising in Great Britain or Ireland. Affidavit of due service under articles. 6 & 7 Vict.c. 73 s. 14; 23 & 24 Vict.c. 127 s. 10. Prohibition of practice as barrister. Solicitor, or proctor, or as public notary, unless enrolled or registered. Enrolment of English or Irish barrister or solicitor, of Scotch advocate or writer, and of English proctor. Certificate of call or admission to be deposited with Registrar and affidavit of indentity to be filed. Enrolment of person who has served under articles in the Colony or in the Colony and in Great Britain or Ireland. Oaths to be taken on admission and enrolment of solicitor and proctor. No. 1 of 1869. Registration of public notaries. General right to practise of barrister and solicitor. 6 & 7 Vict.c. 37 s. 27. Penalty for unlawfully practising as barrister, solicitor, proctor, or public notary. Modification of rules of legal profession. Modification of rules relating to barristers. Modification of rules relating to solicitors. Effect of character of service in taxation of costs. Right of client to obtain taxation of costs without order of reference. Charging of property recovered or preserved with payment of costs. 23 & 24 Vict.c. 127 s. 28. Fixing of remuneration of solicitor by agreement. 33 & 34 Vict.c. 28 s. 4. Saving of interests of third parties. Ib.s.5. Agreement to exclude further claims. 33 & 34 Vict.c. 28 s. 6. Reservation of responsibility for negligence. Ib.s.7. Examination and enforcement of agreement. Ib.s.8. Setting aside of improper agreement. Ib.s.9. Re-opening of agreement after payment in special cases. Ib.s.10. Prohibition of champertous stipulation. 33 & 34 Vict.c. 28 s. 11. Exclusion of agreement void in bankruptcy. Ib.s.12. See Ordinance No. 7 of 1891. Provision in case of death or incapacity of solicitor making agreement. Ib.s.13. Change of solicitor after agreement. 33 & 34 Vict.c. 28 s. 14. Exemption of agreement from taxation. Ib.s.15. 6 & 7 Vict.c. 73. Taking of security for future costs. Ib.s.16. Revival of order for payment of costs. Ib.s.19. Suing for costs within one month when client about to leave the Colony, etc. 38 & 39 Vict.c. 79 s. 2. Charges, etc., where mortgage is made with solicitor. 58 & 59 Vict.c. 25 s. 2. Right of solicitor with whom mortgage is made to recover costs. Ib.s.3. Extension of certain enactments of 6 & 7 Vict.c. 73 to the Colony. Striking off rolls. Exception of Law Officers. Fees. Schedule. Saving as to rules of legal profession, etc. Section 54.
Legal Practitioners Ordinance, 1871.
AN ORDINANCE to consolidate and amend the Laws relating to
the Service and Examination of Articled Clerks to Solicitors,
the Admission and Enrolment by the Supreme Court of Bar
rister, Solicitors, and Proctors, the Registration of Public
Notaries, the Practice of Barristers and Solicitors, the taxa-
tion and Recovery of Solicitors' Costs, the Remuneration of
Solictors, and other matter connected with the Members of
the Legal Profession. [29th May, 1871]
BE it enacted by the Governor of Hongkong, with the advice and
consent of the Legislative Council thereof, as follows:-
1. This Ordinance may be cited as the Legal Practitioners Ordinance,
1871.
2. In this Ordinance, unless the context otherwise requires,-
'The Court' means the Supreme Court and includes the Chief
Justice and the Puisne Judge of the Supreme court, sitting together
or separately in Court or in Chambers;
'The Registrar' means the Registrar of the Court;
'Articles' include any contract in writing whereby any person is
bound to serve as a clerk to a solicitor;
'Solicitor' means a solictor or proctor qualified according to the
privisons of the laws fro the time being in force in this Colony
relating to the admission and qualification of solicitors and proctors;
'Client' includes any person who, as a principal, or on behalf of
another person, or as trustee or executor, or in any other capactiy,
has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ, a solicitor, and nay person
for the time being liable to pay to a solicitor for his services any
costs, remuneration, charges, expenses, or disbursements;
'Party' includes a body of persons corporate or unincorporate;
'Costs' include all moneys, by whatever name called, which a
client pays or is liable to pay to a a solicitor fro , or in respect of , or in
anticipation of services rendered or to be redered to hime by such
solicitor, or for or in respect of any fees, charges, or disbursements
paid or made, or to be paid or made, by such solicitor for him or on
his behalf;
'Mortgage' includes any charge on any property for securing
money or money's worth.
Service and Examination of Articled Clerks.
3.-(1) the Chief Justice may from time to time, if he thinks fit,
make regulations, to be approved by the Legislative Council, for the
preliminary examination of persons hereafter intending to becom bound
under articles of clership to solicitors practising in this colony, in order
to ascertain the fitness of such persons to become so bound, having re-
gard to their general learning and eduaction and to their character and conduct.
(2) The articles whereby any person may be bound to serve any soli-
citor practising in this Colony without having passed such preliminary
examination to the satisfaction of the examiners or without having obtained
an order from the Chief Justice dispensing with such preliminary examination
shall be null and void.
4.Any person being a Brsitsh subject who either before or after
the commencement of this Ordinance has for the term of five years been
a bona fide clerk to a solicitor practising in this Colony and during that
under the direction and superintendece of such solictor,of such matters
of businerss as are usually transacted and performed by solicitors and
proctors and who produces to the Chief Justice satisfactory evidence
that he has faithfully, honestly, and diligently served as such clerk, shall
be exempted from any preliminary examination.
5.-(1.) The articles whereby any person becomes bound to serve as
a clerk to any solicitor practising in this Colony, and every assignment
thereof, shall be produced to the Registrar within one month after the
same ahve been executed, and the person so bound as aforesaid shall,
within the said period, make and duly swear, or cause to be made and
duly sworn, an affidavit of such solicitor having been duly admitted,
and also of the actual execution of the ariticles or assignment by the
parties thereto.
(2.) In every such affidavit there shall be specified the names of such
solicitor and of the person so bound and the day on which such articles
or assignment were or was actually executed, and such person shall also,
within the said period, file the said affidavit in the Court.
6.-(1) Within the said period of one month and on the filing of the
affidvait required by the last preceding section and the payment of the
prescribed fees, the Registrar shall enrol and register the articles or
assignment, and shall make and sign a memorandum theron and on the
affidavit of the day on which the same was filed.
(2) The Registrar shall likewise enter the names of the parties to and
the date of such articles or assignment and the term of service in a
book to be kept for that purpose, and shall mark such articles or assign-
ment as having been so entered, with the date thereof, and the said book
shall be open to public inspection during office hours without fee or
reward.
7. The formalities prescribed by the last two preceding sections may
be observed and performed after the expiration of the period of one
month therein specified, by leave of the Chief Justice, but the service of
the clerk so bound as aforesaid shall be reckoned to commence and be
computed from the date when such leave is grandted or, in the case of
an assignment, his service shall be suspended from the expiration of the
said period of one month until the date when such leave is granted,
unless the Chief Justice otherwise orders.
8. No person bound by articles of clerkship to any solicitor as afore-
said shall, during the term of service mentioned in such articles, hold
any office or engage in any employment whatsoever other than the em-
ployment of clerk to such solicitor and his partner or partners, if any,
in the business, practice, or employment of a solicitor and proctor.
9. In case any solicitor to whom any clerk is articled becomes bank-
rupt before the expiration of the term, or executues a trust deed for
the benefit of his creditors under any Ordinance for the time being in
force relating to bankruptcy, or is imprisoned for debt and remains in pri-
son for the space of twenty-one days, it shall be lawful for the Court, on
the application of such clerk, to order and direct the articles to be dis-
charged or assigned to such person, on such terms, and in such manner
as the Court thinks fit.
10. The Chief Justice may from time to time, if he thinks fit, make
regulations, to be approved by the Legislative Council, for the final ex-
amination of persons who have been bound by articles of clerkship for a
period of five years as aforesaid, in order to ascertain the fitness of such
persons for admission to practise as solicitors and proctors in the court, having due regard to their general learning and education, their charac-
ter and conduct, their professional knowledge, the length and assiduity
of their service, and their other credentials.
11. The Attorney General and any two or more fit persons, to be ap-
pointed from time to time as occasion may require by the Chief Justice
in writing and under the Seal of the court, shall be examiner for the
purpose of this Ordinance, and they shall be entitled to received by way
of remuneration for their services such sum or sums out of the public
revenue of the Colony as the Governor-in-Council may from time to
time direct.
12. Until regulations for such preliminary and final examinations are
made as aforesaid and so far as the same may be imcomplete and may
omit to provide for any particular matters or things, the examiners may
conform theselves, so far as may be practicable, to the regulations
by which the examinations of persons intending to become bound under
articles of clerkship, and of candidates for admission to practise as soli-
citors, in England, are respectively for the time being governed and
directed.
13.-(1) The examiners shall certify the result of every such prelim-
inary or final examination to the Court within one week from the
completion of the same or within such further time as the Court may
allow.
(2) Every such certificate shall be in writing signed by the examin-
ers or any two or more of them, of whom the Attorney General shall
be one, and shall state to the effect that the examiners or the majority of
them find that the candidate is or is not fit to become bound under
articles as aforesaid or to act as a solicitor and proctor of the Court, as
the case may be, or that the examiners have not been able to come to any
finding as to his fitness in that behalf.
14. If the examines or the majority of them present at any such
final examination find that the candidate is fit, he shall be admitted to
practise accordingly; but if they or the said majority find that he is not
fit or come to no finding, the candidate may, on his petition to the Court,
be heard in support of his qualification and claim to such admission; and
if the Court grants the prayer of his petition, he shall be admitted ac-
cordingly, notwithstanding any such finding or wnat of finding as afore-
said.
15. Except in any case where the Court, on special application, gives
leave to the contrary, no admission shall be granted, whether on such
certificate or on such petition as aforesaid, after the expiration of one
moth from the date of the return of the certificate or the date of the order made on the petition, as the case may be.
16. Every candidate for admission as a solicitor and proctor under
section 23 shall five one month's notice in writing to the Registrar of
his intention to apply for examinatio and admission, and shall likewise
cause a like notice to be inserted three times in The Gazette and in a
public newspaper of the Colony: Provided always that the Chief Justice
may, if he thinks fit, on any special grounds, make an order dispensing
with all or any of the formalities prescribed by this section.
17. Every candidate for admission as a solicitor and proctor under
section 23 who has given such notice of his intention to apply for ex-
amination and admission as aforesaid, and who has not been admitted,
may, within six months after such notice given, renew the notice for
examination and admission, and so from time to time as often as he may
think proper: Provided always that if any such person has been pre-
vented from attending to be examined as aforesaid by reason of sickness
or other unavoidable cause, it shall be lawful for the Chief Justice to
permit such notice to be renewed within the said period of six months.
18. Every candidate for admission as a solicitor and proctor under
section 23 who has served part of the period of five years therein mentioned
as an articled clerk to a solicitor practising in Great Britain or Ireland,
and the other part to a solicitor practising in this Colony, shall, in addi-
tion to the formalities prescribed by sections 5 and 6 in respect of the
articles therein mentioned, and before he can be admitted and enrolled,
produce to the Registrar the articles under which he has become bound
to such solicitor practising in Great Britain or Ireland and every assign-
ment thereof, and shall make and swear, or duly cause to be made and
swoorn, such affidavits in relation thereto as are prescribed by section 5 in
respect of the articles therein mentioned; and the provisions of section
6 as to enrolment., registration, and other matters in relation to the articles
therein mentioned shall likewise apply to articles whereby such candi-
date has been bound to serve any solicitor practising in Great Britain or
Ireland and to any assignment thereof: Provided always that the Chief
Justice may, on special grounds and on such conditions as he may think
proper, excmpt any such person from complying with the formalities
prescribed by this section, either absolutely or for any specified period.
19.-(1) Every candidate for admission as a solicitor and proctor
under section 23 shall, before he can be admitted and enrolled, prove by
an affidavit of himself or of the solicitor or solicitors practising in Great
Britain or Ireland or in this Colony to whom he has bound, to be duly
made and filed in the Court, that he has actually and really served and
been employed by such practising solicitor or solicitors during the period
of five years required by this Ordinance, and that he has not during such
period held any office or been engaged in any employment whatsoever
other than the employment of clerk to such solicitor or solicitors and his
or their partner or partners, if any, in the business, practice, or employ-
ment of a solicitor and proctor.
(2) The affidavit shall be in such form as may be approved of by the
Chief Justice.
Admission of Barristers, Solicitors, Proctors, and Public Notaries.
20. From and after the commencement of this Ordinance, no person
shall practise in this Colony as a barrrister, solicitor, or proctor unless he
has been approved, admitted and enrolled by the Court, or as a public
notary unless he has been registered, under the provisions of this
Ordinance: Provided always that it shall not be necessary for any
person already admitted and enrolled by the Court the practise as a bar-
rister, solicitor, or proctor to be re-admitted or re-enrolled under this
Ordinance, and every person now practising as a public notary in the
Colony shall be allowed one month from the commencement of this Ordi-
nance, o, if absent, from the date of his return to the colony, within
which to become registered, and shall during such period be exempt from
the operation of this section and of section 27.
21. The Court shall have power to approve, admit, and enrol such
persons as have been admitted barristers or advocates in Great Britian or
Ireland to practise as barristers, and such persons as have been admitted
as attorneys, solicitors, or writers in one of the Courts at London, Dublin,
or Edinburgh, or as proctors in any Ecclesiastical Court in England, to
practise as solicitors and proctor, in the Court.
22. Every person who desires to be admitted under that last preceding
section to practise in the Court in any of the capacities therein men-
tioned shall deposit with the Registrar his certificate of call to the bar or
of his admission as an attorney, solicitor, writer, or proctor, and shall file
in the Court an affidavit of identity in such form as my be approved by
the Chief Justice: Provided always that the Chief Justice may, on special
grounds and on such conditions as he may think proper, exempt any
such person from complying with th formalities prescibed y this sec-
tion, either absolutely or for any specified period.
23. The Court shall have power to admit and enrol as a solicitor and
proctor of th Court any person, being a British subject, who ahs actually
exclusively and bonu fide served for the period of five years as a clerk
under articles to any solicitor actually practising in the colony or part
of such period of five years under articles to such solicitor and the other part under articles to any solicitor acturlly practising in Great Britian or
Ireland, and who has been examined in the manner hereinbefore directed
as sworn in the manner hereinafter directed, and otherwise has ful-
filled all the conditions of this Ordinance in relation to such admission.
24. Every person who applies to be admitted and enrolled under sec-
tion 21 or under the last preceding section as a solicitor and proctor of
the court shall, before admission of allegiance in the forme prescribed by the
Promissory Oaths Ordinance, 1869, and also the oath or declaration and
affirmation following:-
I, A.B., do swear[or solemnly, sincerely, and truly declare and
affirm] tht I will truly and honestly demean myself in the practice
of a solicitor and proctor, according to the best of my knowledge and
ability[and, in the case of an oath, So help me God.]
Registration of Public Notaries.
25. The Registrar shall keep a special book for the registration of
public notaries, and every public notary who produces his notarial
faculty, and files in the Court an affidavit of identity in such form as
may be approved by the Chief Justice, shall, on payment of the pre-
scribed fee, be entitled to be registered therein.
Practice of Barrristers, Solicitors, Proctors, and Public Noaries.
26. It shall be lawful for any person admitted and enrolled by the
Court to practise as a barrister or as a solicitor to practise as such re-
spectively in all the Courts of the Colony.
27. Every person who,-
(1) eithere directly or indirectly, practises or acts in this Colony as a
barrister, solicitor, or proctor without having been admitted and
enrolled by the Court, either before or after the commencement of
this Ordinance, or as a public notary without having been duly
registered as hereinbefore provided; or,
(2) without possessing any qualification as a barrister, solicitor, proc-
tor, or public notary, acts as such or prepares any document what-
ever for fee or reward,
shall be liable for every such offence to forfeit to the Crown a penalty
not exceeding two hundred dollars.
28. The rules of the legal profession and the laws now in force in
relation to the practice of barristers and soliitors admitted and enrolled
by the Court shall be modified to the extent mentioned in the next two
succeeding sections.
29.-(1) A barrister may, without the intervention of a solicitor, hold consultaions with clients and give opinions in all matters whateever.
(20 A barrister may, without the intervention of a solicitor, appear
for a client in all criminal proceedings before the Court, and in all civil
proceedings in the court in its Summary Jurisdiction, and in all pro-
ceedings whatever before any court of inferior jurisdiction.
(3) A barrister may receive any fees directly from a client for any
professional business which he may transact without the intervention of
a solicitor.
(4) No barrister shall practise as a public notary.
30.-(1) A solicitor may practise as an advocate in the Court in its
Summary Jurisdiction.
(2) No solicitor who is admitted and enrolled by the Court after the
commencement of this Ordinance shall, while in the employment of an-
other solicitor, practise on his own account or in his own name or trans-
act any legal business otherwise than as clerk to such other solicitor.
Taxation and Recovery of Solicitors' Costs.
31. On any taxation of costs, the taxing officer may, in determining
the remuneration, if any, to be allowed to a solicitor for his services,
have regard, subject to any general rules or orders already made or
hereafter to be made on that subject, to the skill, labout and responsi-
bility involved.
32. If any person is desirous of obtaining, under section 51, the taxa-
tion of a bill of fees, charges, or disbursement, for any business whatso-
ever done by a solicitor or proctor, whether in an action or not in an
action or relating thereto, it shall not be necessary for such person to
apply to the Court fpor any order in that behalf; but he shall be at liberty,
if he thinks fit, to refer such bill of his own authority to the Registrar or
other taxing officer of the Court, who shall thereupon proceed to tax the
same in like manners as he would have done under an order of reference
for that purpose in conformity with the enactments which by section 51
are extended to this Colony in the manner therein mentioned.
33.-(1) In every case in which a solicitor is employed to prosecute
or defend any action, matter, or proceeding in the Court, it shall be lawful
for the Court to declare such solicitor entitled to a charge upon the pro-
perty recovered or preserved, and, on such declaration being made, such
out of, the property, of whatsoever nature, tenure, or kind the same may
be, which may have been recovered or preserved through the instru-
mentality of such solicitor, for the taxed costs of or in reference to such
action, matter, or proceeding.
(2) It shall be lawful for the Court to make such order for taxation of and for raising and payment of such costs out of the said property as
to the Court may appear just and proper.
(3) All conveyances and acts done to defeat, or which may operate to
defeat, such charge or right shall, unless made to a bonu fide purchaser
for value without notice, be absolutely void and of no effect as against
such charge or right:
Provided always that no such order shall be made by the Court in any
case in which the right to recover payment of such cost is barred by any
stature of limitations.
Remuneration of Solicitors.
34. A solicitor may make an agreement in writing with his client
respecting the amount and manner of payment for the whole or any part
of any past or future costs in respect of business done or to be done by
such solicitor, whether as a asolicitor or as an advocate or conveyancer,
either by a gross sum, or by commisssion or percentage, or by salary or
otherwise, and either at the same or at a greater or at a less rate as or
than the rate at which he would otherwise be entitled to be remunerated,
subject to the provisions and conditions contained in this Ordinance:
Provided always that when any such agreement is made in respect of
business done or to be done in any action, the amount payable under the
agreement shall not be recoverable by the solicitor until th agreement
has been examined and allowed by a taxing officer of the Court; and if
it appears to such taxing officer that the agreement is not fair and reason-
able, he may require the opinion of the Court to be taken thereon by
motion or petition; and the Court shall hav power either to reduce the
amount payable under the agreement or to order the agreement to be
cancelled and the costs in respect of the business done to be taxed in the
same manner and according to the same rules as if such agreement had not been made.
35. Such an agreement shall not affect the amount of, or any rights
or remedies for the recovery of, any costs recoverable from the client by
any other person or payable to the client by any other person, and any
such other person may require any cost payable or recoverable by him
to or from the client to be taxed according to the rules for the time being
in force for the taxation of such costs, unless such person has otherwise
agreed: Provided always that the client who has entered into such
agreement shall not be entitled to recover from any other person, under
any order for the payment of any costs which are the subject of such
agreement, more than the amount payable by the client to his own solicitor
under the same.
36. Such an agreement shall be deemed to exclude any further claim
of the solicitor beyond the terms of agreement in respect of any costs
in relation to the conduct and completion of the business in reference to
which the agreement is made, except such cost, if any, as are expressly
excepted by the agreement.
37. A provision in any such aggreement that the solicitor shall not be
liable for negligence, or that he shall be relieved from any responsibility
to which he would otherwise be subject as such solicitor, shall be wholly
void.
38.-(1) No action shall be brought upon any such agreement;
but evry quention respecting the validity or effect of any such agree-
ment may be examined and determined, and the agreement may be
enforced or set aside, by the Court, without action, on motion or petition
of any person or the representative of any person, being a party to such
agreement, or being or alleged to be liable to pay, or being or claiming
to be entitled to be paid the costs in respect of which the agreement is
made.
(2) Such motion or petition shall be made or presented to the Court
in its Original Jurisdiction in cases where the amount payable under
the agreement exceds one thousand dollars and in its Summary Juris-
diction in cases where the amount payable under the agreement does not
exceed one thousand dollars.
39.-(1) On any such motion or petition as aforesaid, if it appears
to the Court that the agreement is in all respects fair and reasonable
between the parties, the same may be enforced by the Court, by rule or
order, in such manner and subject to such conditions, if any, as to the
costs of such motion or petition, as the Court may think fit; but if the
reasonable, the same may be declared void, and the Court shall there-
upon have power to order such agreement to be given up to be cancelled,
and may direct the costs incurred or chargeable in respect of the matters
included therein to be taxed in the same manner and according to the
same rules as if the agreement had not been made.
(2) The Court may also make such order as the the cost fo and re-
lating to such motion or petition and the proceedings thereon as to the
Court may seem fit.
40.-(1) When the amount agreed for under any such agreement
has been paid by or on behalf of the client or by any person chargeable
with or entitled to pay the same, the Court may, on application by the
person who has paid such amount, within twelve months after the pay-
ment therof, if it appears to the Court that the special circumstantces of
the case require the agreement to be re-opened, re-open the same, and
order the cost to be taxed and the whole or any portion of the amount received by the solicitor to be repaid by him, on such terms and condi-
tions as to the Court may seem just.
(2) Where any such agreement is made by the client in the capacity
of guardian, or of trustee under a deed or will, or of committee of
any persoin whose estate or property will be chargeable with the
amount payable under the agreement or with nay part of such amount,
the agreement shall before payment be laid before a taxing officer of the
Court, and such officer shall examine the same, and may disallow any
part thereof or may require the direction of the Court to be taken
thereon by motion or petition; and if, in any such case, the clietn pays
the whole or any part of the amount payable under the agreement,
without the previous allowance of such officer or the Court as a foresaid,
he shall be liable at any time to account to the person whose estate or
propety is charged with the amount paid, or with any part thereof, for
the amount so charged; and if, in any such case, the solicitor accepts
payment without such allowance, the court may, if it thinks fit, order
him to refund the amount so received by him under the agreement.
41. Nothing in this Ordinance shall be construed to give validity to
any purchases by a solicitor or by his clerk of the interest, or any part
of the interest, of his client in any action or other contentious proceeding
to be brought or maintained, or to give validity to any agreement by
which a solicitor retained or emplyed to prosecute any action or pro-
ceeding stipulates for payment only in hte event of success in such ac-
tion or proceeding.
42. Nothing in htis Ordinance shall give validity to any disposition,
contract, settlement, conveyance, delivery, dealing, or transfer which
may be void or invalid against a trustee or creditor in bankruptcy,
arrangement, or composition, under provisions of the laws for the
time being in force relating to bankruptcy.
43.-(1) Where a solicitor has made an agreement with his client
in pursuance of the provisions of this Ordinance, and anything has been
done by such solicitor under the agreement, and before the agreement
has been completely performed by him such solicitor dies or becomes
incapable to act, an application may be made to the Court by any
party to the agreement or by the representative of any such party,
and the Court shall thereupon have the same power to enforce or set
aside the agreement, so ar as the same may have been acted upon, as
if such death or incapacity had not happened.
(2) The Cour, if it deems the agreement to be in all respects fair
and reasonable, may order the amount due in respect of the past per-
formance of the agreement to be ascertained by taxation; and the taxing
officer, in ascertaining such amount, shall have regard, so far as may be, to the terms of the agreement; and payment of the amount found to be
due may be enforced in the same manner as if the agreement had been
completely performed by the solicitor.
44.-(1) If, after any such agreement as aforesaid has been made,
the client changes his solicitor before the conclusion of the business to
which the agreement relates (which he shall be at liberty to do, not-
withstanding the agreement), the solicitor with whom the agreement
was made shall be deemed to have become incapable to act under the
same within the meaning of the last preceding section.
(2) One any order being made for taxation of the amount to such
solicitor in respect of the past performance of the agreement, hte Court
shall direct the taxing officer to have regard to the circumstances under
which such change of solicitors has taken place; and, on such taxation,
the solicitor shall not be deemed entitled to the full amount of the re-
muneration agreed to be paid to him, unless it appears that there has
been no defult, negligence, improper delay, or other conduct on his part
affording reasonable gournd to the cleient for such change of solicitors.
45. Except as in this Ordinance provided, the bill of a solicitor for
the amount due under an agreement made in pursunance of the provisions
of this Ordianance shall not be subject to any taxation or to the provi-
sions of the Solicitors Act, 1843, of the Imperial Parliament (so far as such
provisions ar hereby extended to this colony) or of section 48 of this
Ordinance respecting the signing and delivery of the bill of a solicitor.
Miscellaneous Provisions.
46. A solicitor may take security from his client for hsi future costs,
to be ascertained by taxation or otherwise.
47. Whenever any judgement or order has been made for payment of
costs in any action and such action afterwards becomes abated, it shall be
lawfull for any person interested under such judgment or order to revive
such action, and thereupon to prosecute and enforce such judgment or
order, and so on from time to time as often as any such abtement may
happen.
48. It shall be lawful for the Court the authorize a solicitor to com-
mence an action for the recovery of his costs against the party charge-
able therewith and also to refer his bill of costs and the deamdnd of
such solicitor thereupon to be taxed, although one month may not have
expired from the delivery of the bill of cost, on proof, to the satifaction
of the Court, that there is probable cause for believing that the party
chargeable therewith is about to quit the Colony or to become a bankrupt
or a liquidating or compounding debtor, or to take any other steps or do
any other act which, in the opinion of the Court, would tend to defeat
or delay such solicitor in obtaining payment.
49.-(1) Any solicitor to whom, either alone or jointly with any
other person, a mortgage is made, or the firm of which such solicitor is
acts done by such solicitor or firm in ngeotiating the lean, deducing and
investigating the title to the property, and preparing and completing
the mortgage, all such usual professional charges and remuneratin as
he or they would have been entitled to receive if such mortgage had
been made to a person not a solicitor, and such person had retained and
employed such solicitor or firm to transact such business, and do such
acts; and such charges and remuneration shall accordingly be recover-
able from the mortgagor.
(2) This section applies only to mortgages made after the commence-
ment of this Ordinance.
50.-(1) Any solicitor to or in whom, either alone or jointly with
any other person, any mortgage is made or is versted by transfer or
transmission, or th firm of which such solicitor is a member, shall be
entitled to receive and recover from the person on whose behalf the same
is done or to charge against the securtiy, for all business tranacted and
acts done by such solicitor or firm subsequent and in relation to such
mortage or to the securtiy thereby created or the property therein com-
prised, all such usual professional charges and remmuneration as he or
they would have been entitled to receive if such mortgage had been
made to, and had remained vested in, a person not a solicitor, and such
person had retained and employed such solicitor or firm to transact such
business and do such acts; and accordingly no such mortgage shall be
redeemed except on payment of such charges and remuneration.
(2) This section applies to mortages made and business transacted
and acts done either before or after the commencement of thies Ordi-
nance.
51. So much of the said Solicitors Act, 1843, of the Imperial Parlia-
ment, sections 4,5, 28, 29, 32, 37, except from the words 'Provided
also that it shall be lawful for any judge' to the end of the section, 38,
to 41, and 13, as relates to th competence of attorneys or solicitors to have
clerks bund by vcontracts under articles, th edischarge of such con-
tracts, service under such contracts when made with disabled or dis-
qualified persons, the time for making applications for striking off the
rolls persons admitted and enrolled erroneously but without fraud, the
agency of attorneys or solictors for disqualified persons, the delivery,
reference, and taxation (whether before payment or after) of bills of
fees, charges, and disbusements for any business done by attorneys or
solicitors, applications of parties and orders of Court for delivery and reference in such cases nd for delivery up of deeds, documents, or
papers, certificates of taxation and entering up of judgments, and the
conditions on which actions or suits may be commenced or maintained
by attorneys or solicitors for the recovery of any fees, charges, or dis-
bursements shall from the commencement of this Ordiance, (but sub-
ject to the provisions herein contained) extend to this Colony, and to all
business now being done or to be hereafter done within the same.
52. The Court shall have power, for reasonable cause, to remove and
strike off from the rolls of the Court the name of any barrister, solicitor,
or proctor.
53. The provisions of this Ordinance shall not apply to the Attorney
General or to the Crown Solicitor.
54. The fees mentioned in the Schedule to this Ordinace shall be
payable in respect of the matters therein mentioned.
55. Nothing in this Ordinance shall be deemedd to affect the rules of
the legal profession and the existing laws relaing to barristers and
solicitors further or otherwise than is herein expressly enacted or to
prejudice the right of any person existing at the commencement of this
Ordinance.
SCHEDULE.
TABLE OF FEES.
A.D. 1871. Ordinance No. 3 of 1871, with Ordinances No. 13 of 1856 ss. 11, 12, No. 12 of 1873 ss. 20, 25, No. 15 of 1873, No. 13 of 1884, No. 9 of 1899, and No. 32 of 1899 incorporated. Short title. Interpretation of terms. 44 & 45 Vict.c. 44 s. 1. 58 & 59 Vict.c. 25 s. 4. Making of regulations for preliminary examination. 23 & 24 Vict.c. 127 s. 8. Exemption from preliminary examination in certain case. Formalities to be observed on execution of articles or of any assignment thereof. 6 & 7 Vict.c. 73 s. 8. Duties of Registrar as to enrolment of articles. 23 & 24 Vict. 127 s. 7. Performance, by leave, of prescribed formalities after expiration of specified period. 6 & 7 Vict.c. 73 s. 9. Prohibition of articled clerk being engaged in other employment. 23 & 24 Vict.c. 127 s. 10. Discharge or assignment of articles in case of bankruptcy, etc. 6 & 7 Vict.c. 73 s. 5. See Ordinance No. 7 of 1891. Making of regulations for final examination. Examiners of articled clerks. Conduct of exmainations in default of regulations. Certificate of result of examination. Admission of successful candidate, and right of appeal of unsuccessful candidate, at final examination. Time of admission after certificate, etc. Notice of intention to apply for examination and admission. Renewal of notice. Registration of articles of service to solicitor practising in Great Britain or Ireland. Affidavit of due service under articles. 6 & 7 Vict.c. 73 s. 14; 23 & 24 Vict.c. 127 s. 10. Prohibition of practice as barrister. Solicitor, or proctor, or as public notary, unless enrolled or registered. Enrolment of English or Irish barrister or solicitor, of Scotch advocate or writer, and of English proctor. Certificate of call or admission to be deposited with Registrar and affidavit of indentity to be filed. Enrolment of person who has served under articles in the Colony or in the Colony and in Great Britain or Ireland. Oaths to be taken on admission and enrolment of solicitor and proctor. No. 1 of 1869. Registration of public notaries. General right to practise of barrister and solicitor. 6 & 7 Vict.c. 37 s. 27. Penalty for unlawfully practising as barrister, solicitor, proctor, or public notary. Modification of rules of legal profession. Modification of rules relating to barristers. Modification of rules relating to solicitors. Effect of character of service in taxation of costs. Right of client to obtain taxation of costs without order of reference. Charging of property recovered or preserved with payment of costs. 23 & 24 Vict.c. 127 s. 28. Fixing of remuneration of solicitor by agreement. 33 & 34 Vict.c. 28 s. 4. Saving of interests of third parties. Ib.s.5. Agreement to exclude further claims. 33 & 34 Vict.c. 28 s. 6. Reservation of responsibility for negligence. Ib.s.7. Examination and enforcement of agreement. Ib.s.8. Setting aside of improper agreement. Ib.s.9. Re-opening of agreement after payment in special cases. Ib.s.10. Prohibition of champertous stipulation. 33 & 34 Vict.c. 28 s. 11. Exclusion of agreement void in bankruptcy. Ib.s.12. See Ordinance No. 7 of 1891. Provision in case of death or incapacity of solicitor making agreement. Ib.s.13. Change of solicitor after agreement. 33 & 34 Vict.c. 28 s. 14. Exemption of agreement from taxation. Ib.s.15. 6 & 7 Vict.c. 73. Taking of security for future costs. Ib.s.16. Revival of order for payment of costs. Ib.s.19. Suing for costs within one month when client about to leave the Colony, etc. 38 & 39 Vict.c. 79 s. 2. Charges, etc., where mortgage is made with solicitor. 58 & 59 Vict.c. 25 s. 2. Right of solicitor with whom mortgage is made to recover costs. Ib.s.3. Extension of certain enactments of 6 & 7 Vict.c. 73 to the Colony. Striking off rolls. Exception of Law Officers. Fees. Schedule. Saving as to rules of legal profession, etc. Section 54.
Abstract
A.D. 1871. Ordinance No. 3 of 1871, with Ordinances No. 13 of 1856 ss. 11, 12, No. 12 of 1873 ss. 20, 25, No. 15 of 1873, No. 13 of 1884, No. 9 of 1899, and No. 32 of 1899 incorporated. Short title. Interpretation of terms. 44 & 45 Vict.c. 44 s. 1. 58 & 59 Vict.c. 25 s. 4. Making of regulations for preliminary examination. 23 & 24 Vict.c. 127 s. 8. Exemption from preliminary examination in certain case. Formalities to be observed on execution of articles or of any assignment thereof. 6 & 7 Vict.c. 73 s. 8. Duties of Registrar as to enrolment of articles. 23 & 24 Vict. 127 s. 7. Performance, by leave, of prescribed formalities after expiration of specified period. 6 & 7 Vict.c. 73 s. 9. Prohibition of articled clerk being engaged in other employment. 23 & 24 Vict.c. 127 s. 10. Discharge or assignment of articles in case of bankruptcy, etc. 6 & 7 Vict.c. 73 s. 5. See Ordinance No. 7 of 1891. Making of regulations for final examination. Examiners of articled clerks. Conduct of exmainations in default of regulations. Certificate of result of examination. Admission of successful candidate, and right of appeal of unsuccessful candidate, at final examination. Time of admission after certificate, etc. Notice of intention to apply for examination and admission. Renewal of notice. Registration of articles of service to solicitor practising in Great Britain or Ireland. Affidavit of due service under articles. 6 & 7 Vict.c. 73 s. 14; 23 & 24 Vict.c. 127 s. 10. Prohibition of practice as barrister. Solicitor, or proctor, or as public notary, unless enrolled or registered. Enrolment of English or Irish barrister or solicitor, of Scotch advocate or writer, and of English proctor. Certificate of call or admission to be deposited with Registrar and affidavit of indentity to be filed. Enrolment of person who has served under articles in the Colony or in the Colony and in Great Britain or Ireland. Oaths to be taken on admission and enrolment of solicitor and proctor. No. 1 of 1869. Registration of public notaries. General right to practise of barrister and solicitor. 6 & 7 Vict.c. 37 s. 27. Penalty for unlawfully practising as barrister, solicitor, proctor, or public notary. Modification of rules of legal profession. Modification of rules relating to barristers. Modification of rules relating to solicitors. Effect of character of service in taxation of costs. Right of client to obtain taxation of costs without order of reference. Charging of property recovered or preserved with payment of costs. 23 & 24 Vict.c. 127 s. 28. Fixing of remuneration of solicitor by agreement. 33 & 34 Vict.c. 28 s. 4. Saving of interests of third parties. Ib.s.5. Agreement to exclude further claims. 33 & 34 Vict.c. 28 s. 6. Reservation of responsibility for negligence. Ib.s.7. Examination and enforcement of agreement. Ib.s.8. Setting aside of improper agreement. Ib.s.9. Re-opening of agreement after payment in special cases. Ib.s.10. Prohibition of champertous stipulation. 33 & 34 Vict.c. 28 s. 11. Exclusion of agreement void in bankruptcy. Ib.s.12. See Ordinance No. 7 of 1891. Provision in case of death or incapacity of solicitor making agreement. Ib.s.13. Change of solicitor after agreement. 33 & 34 Vict.c. 28 s. 14. Exemption of agreement from taxation. Ib.s.15. 6 & 7 Vict.c. 73. Taking of security for future costs. Ib.s.16. Revival of order for payment of costs. Ib.s.19. Suing for costs within one month when client about to leave the Colony, etc. 38 & 39 Vict.c. 79 s. 2. Charges, etc., where mortgage is made with solicitor. 58 & 59 Vict.c. 25 s. 2. Right of solicitor with whom mortgage is made to recover costs. Ib.s.3. Extension of certain enactments of 6 & 7 Vict.c. 73 to the Colony. Striking off rolls. Exception of Law Officers. Fees. Schedule. Saving as to rules of legal profession, etc. Section 54.
Identifier
https://oelawhk.lib.hku.hk/items/show/583
Edition
1901
Volume
v1
Subsequent Cap No.
159
Cap / Ordinance No.
No. 1 of 1871
Number of Pages
14
Files
Collection
Historical Laws of Hong Kong Online
Citation
“LEGAL PRACTITIONERS ORDINANCE, 1871,” Historical Laws of Hong Kong Online, accessed January 25, 2025, https://oelawhk.lib.hku.hk/items/show/583.
