As lawyers, we have a duty to ensure on behalf of our clients that the language used is appropriate so that it serves to convey the correct meaning and reflect the true intention. Who is a lawyer definition.
However, being selfless lawyers, we are good at taking care of our clients but not ourselves. Some of the traditional terms currently in use by the legal profession do not reflect the true meaning.
"What’s in a name? That which we call a rose, By any other name would smell as sweet”
(Shakespeare’s Romeo and Juliet)
I agree that what matters is what something is, not what it is called.
However, it always puzzles me why a qualified solicitor is commonly called an ‘assistant solicitor’ as if he or she is not yet qualified to act as a solicitor and hence just an 'assistant’. The term ‘assistant solicitor’, which is referred to in the Solicitors’ Practice Rules, has been traditionally used to describe qualified staff who are not partners within the hierarchy of a law firm. However, this term unnecessarily and indeed wrongly conveys a deflated connotation.
'Associate’ has become an increasingly popular term in place of ‘assistant solicitor’. However, it does not convey the profession of the title holder. Personally, I favour the simple description of ‘solicitor’ or ‘senior solicitor’ depending on seniority.
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Another term that has been the subject of much discussion is ‘consultant’, which generally has a connotation of seniority. In Hong Kong, the term ‘consultant’ takes on a different meaning. It denotes a form of special engaged arrangement between the consultant and his or her firm rather than the level of seniority. There is no restriction on the minimum period of practical experience that a solicitor must have had before he or she can adopt such a title in Hong Kong. It is thus open to use by any practising solicitor.
As such, the title of ‘consultant’ is adopted to serve different purposes in different firms. Some firms use it only for senior solicitors while most firms use it for those solicitors who are not necessarily very experienced but who provide services from within their firms on a more independent basis.
Some decades ago, the title ‘consultant’ had a cheeky Cantonese version which read gon sul ngan, which means in Chinese ‘just to receive payments’. Apparently, in those days, some retired partners needed to stay with their firm to ensure that their capital contributions would be fully refunded and until that occurred they would be given the title 'consultant’. Not a bad job to be in, I would have thought.
There are at present over 800 solicitors practising as consultants in Hong Kong law firms. About 5% were admitted between 2005 and 2009. Nevertheless, the largest group(about 45%) were admitted between 1990 and 1999 with 11 to 20 years of practical experience.
This title is commonly given to US attorneys working in US firms but rather unfamiliar to the local legal community. The Registration Section of the Law Society often has to advise these foreign registered attorneys to adopt a different title for registration purposes in Hong Kong. According to the American Bar Association, ‘of counsel’ is the title of an attorney who is employed by a law firm but is not an associate or a partner. This title describes ‘a close, regular and personal relationship’. Some firms also use the term to refer to temporary lawyers who are engaged to review documents for a specific project for a limited period of time. So far, I have not been able to find out the the reason behind the choice of the term ‘of’ in ‘of counsel’.
Frequently, the Law Society receives enquiries from members on how to set up an association with another law firm.
However, the term ‘association’, for the purposes of the practice rules, in fact refers to a situation where two or more Hong Kong law firms have at least one common solicitor. If a solicitor works part-time in two firms, then the two firms are automatically in association with each other and must comply with the disclosure requirements, that is, to state in each firm’s letterhead that it is in association with the other firm. This applies irrespective of whether the firms wish to be in association with each other.
The association rules and disclosure requirements are aimed at alerting the public to the existence of common solicitors in those firms to minimise the risk of any possible conflicts of interest.
In the run up to the reunification with China, what worried the legal profession was the language of the law and, in particular, its bilingual nature. Most of the ordinances had to be translated into Chinese before 1997. I have been told that the single issue of the Chinese translation of the terms ‘barrister’ and ‘solicitor’ took over a year to resolve.
With no disrespect to the great effort and the precious time spent by everyone involved in the translation, I remain of the view that it is the biggest misnomer ever.
I cannot recall how many times I have had to answer queries and clarify the misunderstanding caused by the Chinese translation of the two terms. There is indeed no satisfactory explanation that I can find to justify the adoption of the adjective dai (which means ‘big’) as a prefix to lut si (which means ‘lawyer’) in the Chinese translation of ‘barrister’. “No, mother, I have not been promoted to be a dai lut si!”
Another good example of a misnomer, which fortunately was corrected in February 1992, was ‘articled clerk’.
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The archaic name of ‘articled clerk’ has overtones of a feudal age and fails to reflect in plain language the modernised nature of the job during the two-year training period. The change to ‘trainee solicitor’ has certainly been a welcomed and an uplifting one for those seeking entry to the profession.
While hoping that the misnomers will be rectified in due course, I will miss them when they have done their time because they do add fun to and awaken fond memories of the profession’s heritage.
To all lawyers, big or small, I wish you a very successful and happy New Year!