Join us in this insightful discussion with Barrister-At-Law, Madeleine Booth of Bernacchi Chambers in Hong Kong.
Can you tell us a little bit about your background and how you came to be a barrister in Hong Kong?:
I was born and raised in Hong Kong. I travelled to the UK for my university studies, and then to Beijing for work afterwards for two years. Hong Kong has always been my home, and wherever I went I always intended to bring myself back here with my work, with a hope to contribute through meaningful employment. After Beijing I decided to pursue a career in law. I completed both the Juris Doctor programme and the PCLL at the Chinese University of Hong Kong, after which I was offered a training contract with a law firm.
I had always been on the fence about whether I should become a solicitor or barrister. I explored both options while I was studying, doing both internships with various firms and mini-pupillages at different sets of chambers, every summer and winter holiday. My time and experience at the firm solidified that I was more suited to the role and work of a barrister than a solicitor. So I decided to join the Bar.
Having two parents who are both lawyers, and having spent some time at a firm, I understand the practical realities of how solicitors operate, and how to be of practical benefit in working together with my instructing solicitors to handle cases in the best possible way, doing the best possible work for our clients.
What is the difference between a solicitor and a barrister in Hong Kong?
Solicitors and barristers are both professional lawyers, but the nature of their work differs. A legal practitioner in Hong Kong cannot be both a solicitor and a barrister at the same time.
Solicitors take on both contentious (i.e. cases that go to court) and non-contentious work (i.e. transactional work such as advising sales and purchases, preparing wills, preparing contracts, forming trusts, etc.). Solicitors have direct contact with clients and play the major role of client care, including providing legal opinions, taking instructions from clients, communicating with the opposing parties and/or their solicitors, case preparation leading up to trial etc.
Barristers previously tended to specialise in contentious litigation work and courtroom advocacy, making submissions in courts on behalf of the client, although their role in modern times has expanded. While advocacy and court-based work remains a fundamental tenet of a barristers’ workload, counsel may also often provide written advice if requested by solicitors, which give an evaluation of a case’s merit or the issues involved. They may also be asked to provide advice on non-contentious questions of law where that particular barrister may have specialist knowledge and understanding.
Barristers are instructed by solicitors to undertake work, whether it’s appearing in court, or providing advice, as may be required. Barristers may not accept instructions from a client directly without having the solicitor as their first point of contact. The system operates not too dissimilarly to how a general doctor may recommend a client to see a specialist doctor for their particular needs.
Barristers receive payment for their work from the solicitors; they cannot be paid directly by the client. Barristers’ fees are treated as disbursements in the solicitors’ fees, which are charged to the client.
In Hong Kong, barristers have unlimited rights of audience to appear before every court. Although solicitors have rights of audience in (amongst others) the Magistrate Courts and the District Courts, they have no right of audience in the Court of Final Appeal, and only limited rights in the High Court. This is unless a solicitor is granted Higher Rights of Audience by the Higher Rights Assessment Board. This is rare, and indicative of a solicitor’s expertise in his or her field, and calibre as an advocate.
Solicitors are regulated by the Law Society of Hong Kong whereas barristers are regulated by the Hong Kong Bar Association.
What role do you play in a matrimonial suit? What do you, as a barrister, bring to the table?
Barristers are often instructed for important hearings in the course of a matrimonial suit, such as Child Dispute Resolution Hearings, Financial Dispute Resolution Hearings, or trials. This is often because the direction a case takes, and therefore its ultimate outcome, can be significantly impacted by the oral submissions made to the court in such hearings. This is where a barrister’s expertise, knowledge and ability to make submissions to the judge in a compelling and persuasive manner have the capacity to turn the tide of a case.
As a barrister, my role generally is to supplement and contribute to the handling of a case in any way possible to achieve the best possible outcome for the client. This includes not only courtroom work and preparation, settling pleadings and written submissions, but also conferences together with the client and instructing solicitor to make decisions on how the case should properly be carried forward. A case, and the client, can often greatly benefit from the input and advice contributed by counsel, even from its initial stages.
Generally speaking, solicitors will handle multiple facets of multiple ongoing cases at a time. As a barrister, my sole focus is to give my undivided attention to the preparation and presentation of a case for court, crafting legal arguments and oral submissions to present the case as strongly as possible. Barristers and solicitors work in partnership to handle the case efficiently and effectively to secure the best possible outcome for their client.
Do you think it is important for individuals to employ barristers to assist in their divorce?
Each case will be different and require handling in a different manner, but generally speaking, it certainly never hurts to have another experienced professional assisting a client, who can significantly supplement and add to the support and advice being provided by a client’s solicitors.
As mentioned above, a solicitor’s role is invaluable, but a barrister’s specialisation in courtroom advocacy can be crucial for a case, and has the capacity to hugely affect its outcome in a pivotal manner. A barrister’s experience and knowledge may provide invaluable input as to how the case may best be managed, particularly if it requires specialist knowledge or expertise in a particular field in matrimonial law.
What is the best advice you can give to those individuals who are struggling through a divorce and how to get through it?
Divorces are highly emotional and deeply personal. They are difficult and not at all easy to navigate. No two situations are alike, as no two people are alike, and there is an uncapped spectrum of familial and financial elements that will affect the people involved.
My principle advice is for the parties to attempt to settle if possible. If everything cannot be agreed or settled entirely, then attempt to find a partial agreement with regard to some matters, for instance children, if this is possible. This has the positive benefit of resolving important matters between the parties from the outset rather than having to go through the court process, which can be extremely lengthy and time consuming. If the issues resolved through the courts are reduced, expenses will also be kept lower for the parties.
It is unfortunate that parties may be forced to enter into litigation against one another if things cannot be resolved amicably, compounding the difficulty of the situation. Parties should strive to remember the bigger picture, and try to not get bogged down in aggressive litigation that is of no benefit to anyone involved. Remember that agreements and settlements can be made at any time in the process, and ideally the parties and their solicitors should be striving to achieve this, if possible, at all times.
My last recommendation is for parties to consider counselling or therapy, for both themselves and any children of the family, as may be appropriate. It is hugely beneficial to have regular conversations and discussions with a qualified professional who may be able to alleviate emotional distress, and provide a healthy outlet for any frustration caused by the divorce process. Therapy can also greatly assist people in taking the steps to rebuild their lives and transition to life after divorce. Studies have also shown that children positively benefit from being able to fully and honestly express their emotions to a person who is not a parent or family member. Allowing a child of the family to meet with a qualified professional could also help family dynamics in the long run, and help protect the child from any negative impact that a divorce may have upon them and their relationships in the future.
About Madeleine:
Madeleine’s practice encompasses both civil and criminal law, with a particular specialisation in matrimonial work.
In the Family Court, Madeleine has experience in contested financial and child related matters, and family related company and trust cases.
Having represented clients at Financial Dispute Resolution hearings, Children’s Dispute Resolution hearings, as well as at trial for preliminary issues (third party interests/property/companies), financial issues (MPS applications, ancillary relief trials) and child related matters (such as custody disputes, and applications under the Guardianship of Minors Ordinance), Madeleine’s experience is broad.
Madeleine is often called upon to make applications under s.17 of the MPPO, setting aside dispositions or applying for injunctions, on an urgent basis.
Madeleine also has experience in a number of other areas of legal practice, including civil litigation and criminal law. She has assisted senior counsel, and acted as sole legal counsel, in multiple hearings and trials at each level of court in Hong Kong, from its magistracies to the Court of Final Appeal. Madeleine appears in the High Court of Hong Kong regularly with respect to civil litigation matters, including trust related cases, injunctions, summary judgment applications, garnishee orders, as well as bankruptcy proceedings.
Madeleine’s experience extends beyond advocacy to include providing written opinions and legal advice, as well as participating in mediation and arbitration.
