律師條例中律師一般收費法例《法例第 159 (74)》，一個獲首席法官批准、由官員及律
九九五年底，前英國律師會轉讓服務特別工作小組主席 Paul Marsh 表示，一九八七至
(Reprinted from HKCER Letters, Vol. 43, March, 1997)
Rendering Unnecessary the Legal "Contrivance to Raise Prices"
of the same trade seldom meet together . . . but the conversation ends
in a conspiracy against
the public, or in some contrivance to raise prices. It is impossible to prevent such meetings by any law
consistent with liberty and justice. But [the law] ought to do nothing to facilitate such meetings; much
less render them necessary."
Adam Smith, An
Inquiry into the Nature and Causes of The Wealth of Nations, 1776.
law in Hong Kong requires solicitors and officials to meet and set the
fees solicitors charge
for the conveyancing of property. Under the Legal Practitioners Ordinance, Solicitor's (General) Cost
Rules (Cap 159, section 74), a "Costs Committee," comprised of officials and solicitors and approved
by the Chief Justice, meets and sets "scale fees" for the conveyancing of property. Solicitors who
provide conveyancing services at fees below the stipulated scale fees are subject to disciplinary action
by the Law Society.
The Hong Kong
government has proposed a change in legislation under the Legal Services
(Miscellaneous Amendments) Bill, 1996. This bill would render unnecessary the way solicitors in Hong
Kong now necessarily meet in what Adam Smith described as seldom anything but a "contrivance to
raise prices." Under the government's proposal, solicitors would not be required to charge the current
or any other "scale fees." The Law Society has objected strenuously to the proposal. In this paper, I
discuss the society's objections and argue that the government proposal is consistent with the interests
of the Hong Kong public. I do not address the general question of whether a set of scale fees can
make economic sense. My focus is on the objections raised by the Law Society.
The Law Society's Response
Law Society has considered the Hong Kong government's proposal. In its
response to the
proposal, the society starts by stating that, "the cardinal principle for either proponents or opponents of
scale fees must be to protect the interests of the public" (Annex to Law Society Response to the
Green Paper, 34). At the end of its response, the society first rejects the government's proposal and
then rejects its own "cardinal principle." It argues that consumers of solicitors' services do not know
enough to distinguish good from bad service: "letting loose market forces of competition among
solicitors would result in "irreparable damage . . . upon both the public and the [solicitors' profession"
(Annex to Law Society Response, 34). The society states that "the Costs Committee . . . should act as
the arbitrator in balancing the interests of the public and the profession." The cardinal principle has thus
been altered from "protecting the interests of the public" to "balancing the interests of the public and
The Law Society's Arguments
Law Society's arguments follow a common theme: in a world in which consumers
conveyancing services have less information than do solicitors, consumers may be subject to various
sorts of predation, ranging from simple high-cost/low-quality service, to serious negligence, to outright
fraud. (In the particular case of the government's proposal to eliminate the regulation provided by the
Costs Committee, and as part of the Law Society's uninformed consumer argument, the Society states
that there may be additional undesirable outcomes that include a reduction in respect for the rule of
law, inconvenience for the local universities, and reduced incomes for solicitors and university
lecturers. I leave a discussion of these additional undesirable outcomes for later.)
in which consumers are disadvantaged by having less information than providers
do, it is
possible that they would be served better in the presence of some "countervailing power." Such
countervailing power could come in the form of some restriction to reduce solicitors' ability to prey on
consumers, or it could come in the form of some mechanism to reduce or render less harmful
consumers' ignorance. Legally enforced information dissemination might achieve these ends.
Elimination of the rules that currently prevent advertising by solicitors might achieve them, too.
is well known, and the Law Society uses a variant of it to make the point
current mechanism of fixed fees set by the Costs Committee is the preferred countervailing power
against solicitors' ability to prey on consumers. The society's variant of the argument is based on stark
alternatives: either we can inhabit a world of anarchy in which unscrupulous solicitors prey on their
clients, or we can inhabit a world in which scrupulous solicitors, and other members approved by the
Chief Justice, set fair and reasonable prices. These are not the only alternatives. We have experienced
is deregulation of the sort proposed by the government and which has been
used in the
market for conveyancing services in other jurisdictions. We also have some experience with
deregulation in other markets. A notable example of such a market is the airline market, which was
also thought to be susceptible to negligence. It was widely alleged that negligence in the airline industry
would increase unchecked because of differential information.
Deregulation of Conveyancing Services in the Market
following comments rely on the Law Society Response to the Green Paper,
and the figures
contained therein. Scale fees were abolished in England in the early 1970s. The Law Society seeks to
support its argument against abolishing these fees in Hong Kong today by claiming that "The housing
market in the U.K. collapsed in 1988 and . . . as a result, the Solicitors Indemnity Fund has been
paying out . . . £50 million" per year in claims linked to residential conveyancing (Law Society
Response to The Green Paper, 4).
everyone agrees with this claim. In December 1995, Mr. Paul Marsh, former
of the English Law Society's special working party on conveyancing, wrote:
and 1994 the profession conducted over 23 million conveyancing transactions
million per year], yet the Solicitors Indemnity Fund (SIF) had only 17,125 claims. In other words, seven
claims for every 10,000 transactions. (£17.39 per transaction). Despite extensive research, no
conclusive connection has been found between low cost conveyancing and negligence."
Suppose the Hong
Kong Law Society is correct, (and Mr. Marsh is wrong) in stating that the
of scale fees in England in the early 1970s resulted in the negligence that occurred after the 1993
collapse of the housing market. (Note that this means that in the absence of scale fee abolition, there
would have been not less negligence, but absolutely no negligence.) Even that, in itself, is not a
sufficient reason to prefer a return to scale fees. The Law Society asserts that negligence will follow
and the costs of (additional) negligence would outweigh fee savings, but it does not dispute the claim
that the abolition of scale fees would cause fees to fall. The real question, therefore, is: would costs
resulting from increased negligence outweigh the savings resulting from lower fees, or would savings
resulting from lower fees outweigh the costs resulting from increased negligence?
Assume that the
average value of transactions in England between 1987 and 1994 was £50,000
($640,000). The negligence costs cited by the Hong Kong Law Society would then amount to 3.5/100
of 1 percent of the value of the English transactions. (If the average English transaction value was
higher than £50,000, the alleged negligence costs would of course fall as a percentage of the value.)
Current Hong Kong buyer and seller scale legal fees for a $3 million piece of property (the lowest
price transaction cited in the Legal Society's response) amount to $33,000, or 1.1 percent of the value
of that transaction. Following the Law Society's arguments, we might assume that abolition of scale
fees in Hong Kong will result in extra costs of negligence similar to the total English costs of
negligence per dollar transaction. In that case, a reduction of buyer and seller legal costs (the
occurrence of which the Law Society does not dispute) of any more than 3.16% to the current fees of
$33,000 on a $3 million transaction ($1,043) would constitute a saving in legal fees plus negligence
costs for the Hong Kong public.
Hong Kong Law Society's cardinal principle of protecting the interests
of the public, the
proposal to abolish of scale fees cannot be dismissed on the basis of the English experience. There
may be arguments against abolition of scale fees, but they have not been made in the Law Society
Response to the Green Paper.
Deregulation of the Airline Market
U.S. airline market was deregulated in important ways starting in 1978.
Significant opposition to
deregulation arose, much of it from the era's major airline service providers. The specter of negligence
and falling safety standards was introduced in ways analogous to the Law Society's recent predictions
of rampant negligence in the event of deregulation of the conveyancing business.
As data became
available, safety records were more and more closely scrutinized in order
any change in safety standards that might be attributable to the deregulation of 1978. The consensus
reached in the late 1980s is that the 1978 deregulation caused no deterioration of safety standards.
Indeed, available evidence suggests that airline safety improved, while at the same time deregulation
was accompanied by considerable savings on airfare for consumers. Steven Forman, in "An
Application of Box-Jenkins ARIMA Techniques to Airline Safety Data" (Logistics and Transportation
Review, 29 (3) September, 1993), states that: "Overall, air traffic was safer after deregulation than it
would have been had the previous regulatory environment continued." (For similar findings see also
Steven Morrison and Clifford Winston, The Evolution of the Airline Industry, Brookings Institution,
1995; Cinton Oster and John Strong, "The Worldwide Airline Safety Record," Logistics and
Transportation Review, 28(l) 1992; Leon Moses and Ian Savage, "Airline Deregulation and Safety:
Theory and Evidence," Logistics and Transportation Review, 24(2) 1990; Adib Anafani and Theodore
Keefer, "Airline Safety and Deregulation: some Econometric Evidence," Logistics and Transportation
Review, 26(3) 1990.)
Additional Undesirable Outcomes of Scale Fee Abolition
Law Society warns that there may be outcomes of scale fee abolition that
go beyond increased
negligence of solicitors: reduced respect for the rule of law, inconvenience for the local universities,
and reduced incomes for solicitors.
It cannot be
assumed that these outcomes would in fact materialize. It seems unlikely
that the rule of
law would be under threat, and, even in those instances in which the Society's predictions may come
true, the outcomes would be consistent with the Law Society's cardinal principle of protecting the
interests of the public. The principle of protecting the interests of the public cannot require
convenience for university administrators or protection of the incomes of solicitors.
proposal to abolish scale fees for Hong Kong solicitors is a sensible one.
It is consistent with the
Law Society's stated cardinal principle of protecting the interests of the public. The public's
conveyancing costs can be expected to fall, and respect for the rule of law will not be eliminated by
abolition of competition-reducing scale fees. And, if the abolition of such fees results in the reduction
of solicitors' incomes, what does that have to do with the principle of protecting the interests of the
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