Re Solicitor

CACV 2/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 2 OF 2001

(ON APPEAL FROM THE SOLICITORS' DISCIPLINARY TRIBUNAL)

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J U D G M E N T

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Hon Cheung JA:

The appeal

1. The appellant is the principal of a firm of solicitors. He advertised the service of his firm in relation to the scheme of public housing tenants purchasing their properties in a local newspaper in February 1998 and also in household circulars published and distributed in March and June 1998.

2. The Law Society found that certain aspects of the promotional materials to be objectionable and brought two complaints against him. Each of the two complaints encompassed different breaches of the Solicitors' Practice Promotion Code ("the Promotion Code") and the Solicitors' Practice Rules ("the Practice Rules"). The first complaint was in respect of the use of the Housing Authority's Tenant Purchase Scheme Logo ("TPS Logo") in the newspaper advertisement and householder circulars. The second complaint, which was referred to as the "4th Complaint" in the Amended Complaint Sheet, was in respect of the use of the "ISO 9001 mark with the TPS Logo".

3. The Solicitors' Disciplinary Tribunal ("the Tribunal") only found one allegation contained in the 4th Complaint to be proved. The appellant was censured, fined $10,000 and ordered to pay costs to the Law Society. The appellant now appeals against the decision.

The 4th Complaint

4. The 4th Complaint is as follows :

" 4th Complaint

Use of the ISO 9001 mark with the TPS logo, by the respondent, contrary to:

(A) Paragraph 6(a), 6(b) 6(c) and 6(l) of the Solicitors' Practice Promotion Code which provides that practice promotion shall be decent, legal, honest and truthful and shall not-

(a) be likely to mislead or deceive, whether by inclusion or omission;

(b) contain any adverse remark or implication concerning any other solicitor or solicitors in particular in any comparison of services, practice or fees;

(c) make any claim or imply that the solicitor is or that his practice is or includes an expert in any held of practice or generally. It is permissible, however, to refer to his knowledge, qualification, experience or area(s) of practice provided such a claim can be justified;

(l) be in a manner which may reasonably be regarded as having the effect of bringing the solicitors' profession into disrepute.

(B) Rule 2(d) of the Solicitors' Practice Rules which provides that a solicitor shall not, in the course of practising as a solicitor, do or permit to be done on his behalf anything which compromises or impairs or is likely to compromise or impair his own reputation or the reputation of the profession:

Particulars

1. The use of the statement 'Our solicitors firm is the first solicitors firm which was awarded with an ISO 9001 Certificate by the HKQAA in Hong Kong.' On the first page of HC1 circular just under the name of the Firm and the TPS logo, the certified ISO accreditation of the Firm.

2. The use of the statement 'The legal services for conveyancing of our solicitors firm was assessed by the HKQAA to be up to the standard of the ISO 9001.' On the first page of both circulars HC2 and HC3."

The Household Circulars

5. The HC1, HC2 and HC3 circulars referred to in the 4th Complaint were the household circulars issued by the appellant. HCI was published and distributed in March 1998 while HC2 and HC3 were published and distributed in June 1998. The content of the HC1 circular was in Chinese.

“ 租者置其屋計劃

本律師誠意為租者置其屋計劃住戶提供自置居所的法律服務，收費為二千港元。歡迎致電查詢。

註 ：除上述費用外，本律師行不會再收取其他費用。唯此收費並不包括釐印費，註冊費和香港房屋委員會已去信通知住戶就購買 其現往物業要繳付的其他費用和代支付費用。

 

A diagram is put in here

 

律師行是香港首間獲香港品質保證局頒發國際標準化組識

九零零一（ISO 9001）証書的律師行 "

6. The translation is as follows:

"	Tenants Purchase Scheme

Our solicitors firm is pleased to assist in providing legal services to tenants in the Tenants Purchase Scheme. Charge is HK$2,000. Telephone enquiries are welcome.

Note: Apart from the above fees, no other fees will be charged by this solicitors firm. However, these fees do not include stamp duty, registration fee and other fees and fees to reimburse fees paid by the Hong Kong Housing Authority in advance which has notified by mail the tenants, purchasing their existing property.

 

A diagram is put in here

 

Our solicitors firm is the first solicitors firm accredited with the international ISO 9001 Certificate by the Hong Kong Quality Assurance Agency in Hong Kong. " (emphasis added)

7. The HC2 and HC3 circulars also advertised the appellant's legal service for the purchase of public housing. The offending part appeared on the first page:

「本律師行的樓宇買賣法律服務被香港品質保證局評訂為符合國際標準化組織九零零一（ISO 9001）服務水平」

8. The translation is:

"The legal services for conveyancing of our solicitors firm was assessed by the Hong Kong Quality Assurance Agency to be up to the service standard of the ISO 9001"

The Hong Kong Quality Assurance Agency

9. According to the documents produced to the Tribunal, the Hong Kong Quality Assurance Agency ("the Agency") was established in 1989 by the Government to meet the growing international requirement for third-party certification. It operates the Hong Kong Quality Assurance Certification Scheme that provides independent third-party ISO 9000 certification of the quality management systems of companies using the same certification technique as British Standards Institution ("BSI"). Its scope of operation covers companies carrying on business in the manufacturing, construction and service sectors in Hong Kong, and their associated operations elsewhere.

10. The mark used on the three household circulars was the Agency mark. It was a triangular shape logo. The triangle was divided into three parts. The alphabet "Q" appeared in the top level, "CERTIFIED COMPANY" appeared in the middle level and "HKQAA" appeared in the bottom level.

The finding

11. The Tribunal found that as the appellant was the first solicitors firm that received the ISO 9001 Certification from the Agency and as such the commentary in the HC1 circular that the appellant's firm was the first solicitors firm in Hong Kong to receive ISO 9001 Certification was not in breach of the Promotional Code or of the Practice Rules.

12. The Tribunal, however, held that the appellant by using the statement in the HC2 and HC3 circulars, "failed to make clear to readers of the household circulars that ISO certification can only ever relate to quality management systems and is not any form of endorsement or statement about the quality of legal services provided by any practitioner." The Tribunal was of the view that the statement "gave a misleading impression to members of the public that the quality of the [appellant's] firm's legal work had been assessed and approved by the [Agency], rather than the quality of the [appellant's] firm's management system." It found that that there was a breach of paragraph 6(a) of the Promotion Code and rule 2(d) of the Practice Rules. It, however, did not find any breach of other paragraphs of the Promotion Code alleged in the 4th Complaint.

The grounds of appeal

13. The grounds of appeal can be grouped into three parts: First on the content of the 4th Complaint, second on procedural impropriety and third on the merits of the decision.

Arguments on the content of the 4th Complaint

14. Mr Martin Lee SC, counsel for the appellant, submitted that the 4th Complaint was bad for duplicity. It rolled five distinct charges into one. There were four alleged breaches of the Promotion Code and one breach of the Practice Rules. None of the alleged breaches were individually particularised. Two paragraphs of particulars were rendered under the complaint, however, there was no indication how each, or both of the particulars related to the alleged breaches. In so doing the complaint had given no particulars to support any of the alleged breaches.

15. Further the substance of the complaint was the "use of the ISO 9001 mark with the TPS logo ... contrary to" the various provisions. However the two particulars alleged the use of the appellant's statements in the HC2 and HC3 circulars. As such the particulars contradicted the charge and the Tribunal's conviction on the basis of such particulars was unsustainable and should be quashed.

The authorities

16. The Hong Kong Court of Appeal in Re a Solicitor [1988] 2 HKC 137 had stated that the Law Society should as a rule give such particulars of the charges they bring as they are able to do. Mr Kerr, Counsel for the Law Society argued that a solicitor disciplinary complaint is not in the nature of a criminal charge with the attendant consequence that the rules relating to criminal charges such as duplicity should apply to such complaints. He referred to the judgment of McKay J of the British Columbia Supreme Court in Re Novak and Law Society of British Columbia (1972) 31 DLR (3rd) 89 which held that:

" ... administrative tribunals performing judicial functions are not bound by the technical rules involved in the drafting of indictments and informations, provided always that the provisions of the statute involved are carried out and the proceedings are conducted within the bounds of 'natural justice'."

17. The court referred to the earlier decision of Re Legal Professions Act and Benchers of the Law Society of British Columbia [1945] 4 DLR 702, where a special tribunal of five judges of the Supreme Court of British Columbia, sitting in appeal from a decision of the Law Society suspending a solicitor from practice, held that:

" Administrative tribunals performing judicial functions are required to act judicially but are not required to follow Court procedure."

18. In my view guidance on this topic is found in the more recent case of Gee v General Medical Council [1987] 1 WLR 564. The Privy Council in considering a matter arising out of the decision of the Professional Conduct Committee of the General Medical Council ("the Committee") against a medical doctor, held that the rule against duplicity is a rule of pleading which is not confined to criminal proceedings, see e.g. Stephen, Principles of Pleading in Civil Actions, (1824) page 264 et seq. In order to apply the rule to test whether a count is bad for duplicity one must examine it to see whether it is a statement and contains particulars of more than one offence. In order to do this one must begin with an analysis of the essential ingredients of the offence. The Privy Council approved of the original decision of Mann J [1986] 1 WLR 226 where he held that:

" A person should know of what it is that he has been found guilty (if guilty he should be found). He cannot know if he has been found guilty on a duplicitous charge whether he has been found guilty of one offence or of many. He should have the opportunity of submitting that there is no case to answer in relation to a particular occasion. That he cannot do if he is confronted with a duplicitous charge. A person cannot make a sensible plea in mitigation unless he knows of the number of his offences. The rule concerning duplicity seems to me to be a rule of elementary fairness which should apply to a charge before the Professional Conduct Committee."

In that case the Privy Council held that the rule against duplicity would be impossible to apply universally to cases relating to conduct before the Committee. The procedure of the Committee consisted of two stages. First, the determination of the facts. Second, the Committee would then invite the doctor who is being complained against to make submissions and adduce evidence before a determination of guilt is made. The Privy Council held that:

" The rule is necessary in the interests of fairness where the only answer that can be returned in respect of a particular charge is guilty or not guilty to the whole charge. It is not necessary in order to obtain fairness in a procedure where the [Committee] is required to make a determination which distinguishes between the facts alleged which are found proved and those which are not found proved, before moving forward to considering a determination as to guilt of serious professional misconduct based on their determination of facts found proved."

4th Complaint badly drafted

19. I have to say from the outset that the 4th Complaint was badly drafted. The complaint was the use of ISO 9001 mark with the TPS logo. While the ISO 9001 mark appeared in the circulars, the TPS logo only appeared in the two newspaper advertisement of the appellant and not in the circulars. The TPS logo was a "building in shadow" device of the Housing Authority Tenants Purchase Scheme. The Tribunal had earlier held that the use of the Chinese characters for the words "Tenants Purchaser Scheme" were descriptive words in ordinary use and dismissed the complaint on the use of such words. Likewise it also dismissed the complaint against the appellant on the use of the TPS logo. The written statements of the appellant referred to in the particulars of the complaint were clearly not particulars to the alleged use of the ISO 9001 mark with the TPS Logo.

20. Although the 4th Complaint obviously encompassed a number of different charges and the procedure before the Tribunal was unlike that of Gee which consisted of a two-stage approach, ultimately the rule on duplicity is a rule of fairness and in my view this rule had not been offended in the present case. For a start, the appellant who was represented by leading counsel (not Mr Lee who appeared only at the appeal) never objected to the 4th Complaint as being bad for duplicity. Although the substance of the complaint was only found in the particulars and not in the main part of the complaint, this would not render the 4th Complaint bad. What is essential is that the complaint must convey the nature of the alleged misconduct to the solicitor. In this case, although the allegation on the appellant's statement did not appear in the body of the complaint, it clearly was identified in the document itself. The appellant was clearly under no misapprehension that one of the complaints against him was in respect of the statements contained in the circulars.

21. While different offences were combined in the 4th Complaint, the Tribunal, in returning a verdict as it had done in the present case, obviously had to find specifically which of the offences had been proved. It means that the allegation that the appellant might not know which specific offence to plead guilty to or how he would conduct the mitigation is in my view not a matter of substance.

22. In my view, even assuming that the rule against duplicity is not confined to criminal charges and is available in disciplinary proceedings, I am of the view that the appellant was not unfairly prejudiced by the way in which the 4th Complaint was drafted.

Procedural impropriety

23. The appellant complained that there was a breach of natural justice by the Tribunal because it had adopted a case which had not been pleaded or advanced by the Law Society. Under s.3 of the Solicitors' Disciplinary Tribunal Proceeding Rules, Cap. 159, a complaint regarding the conduct of a solicitor must be supported by an affidavit stating the matters of fact relied in support of the complaint against the appellant. In this case the Law Society had filed two affidavits by Robert Anthony Harrod, its Director of Compliance. It is said that no complaint was made in his affidavits that the statements in the HC2 and HC3 circulars were false and misleading; the Law Society's objection was not about the ISO 9001 accreditation and what it stands for and it had also adduced no evidence about ISO 9001, all such evidence came from the appellant.

24. Mr Lee referred to Kanda v. Government of Malaya [1962] AC 322 in which it was held that one fundamental rule of natural justice is the right to be heard. This means the right of the accused person to know the case which is made against him. In R v Falconer - Atlee (1973) 58 Cr App R 348 a conviction was quashed because the trial judge had left open to the jury to convict the appellant on a basis which was different from that originally put forward by the prosecution.

25. The Law Society accepts that natural justice applies to the procedure of the disciplinary hearing: see also The Professional Conduct of Lawyers in Hong Kong, Chapter XV Para 303.

26. While it is true that Mr Harrod had said that what the Law Society found misleading and confusing was the manner in which the ISO mark was used in the newspaper advertisement and the three circulars, he had also clearly identified the complaint against the appellant. In paragraph 25 of his second affidavit he said this:

"25. The respondent (i.e. the appellant in this appeal) is at pains to point out that the ISO accreditation is not about specialty but rather about the commitment to quality only, yet the words used by the respondent in the HC1 and HC2 circulars refer to the legal services for Conveyancing, this statement appears next to a very large TPS Logo [in HC1]. When looking at HC1 what is striking is the three largest features which are (1) the TPS Logo, (2) the name of the respondent's firm in English and Chinese with Solicitors and the ISO 9001 Mark, it is the overall effect of the arrangement of these three features, the words or Chinese characters used in the HC1 circular and staggered promotional campaign as a whole which is misleading and confusing such as to bring the Solicitor's profession into disrepute."

The staggered promotional complaint as a whole must necessarily include the statements in the HC2 and HC3 circulars.

27. What is more important is that the appellant was obviously aware of the nature of the complaint against him. The 4th Complaint in its present form was first formulated on 13 June 2000. The appellant had filed six affirmations, all of which were filed after the date of the Amended Complaint Sheet. In these affirmations the appellant set out his case in detail and responded to the allegations, in particular those arising out of the statements in the circulars. The case that the appellant had to face was also clearly focused at the hearing. At page 28 of the transcript, on the second day of the hearing before the Tribunal, there was this exchange between the chairman of the Tribunal and the legal advisers of the respective parties:

" CHAIRMAN : Is the issue here not whether this is a standard of a management system or a standard of legal work done by the firm? As I understand the complaint of the applicant, it is that the advertising was misleading in giving the public an impression that the legal work done by the firm was certified to be up to this standard. Am I correct, Mr Nasir?

MR NASIR [for the Law Society] : Yes.

MR FUNG [for the appellant] : We say, with respect, that that supposed dichotomy between legal work and managerial work is in fact fallacious. Because at the end of the day the question of monitoring work by either individual solicitors or individual clerks in processing conveyancing is part and parcel of the service provided by a law firm. To artificially divide, as it were, a practice as between your 'managerial' aspect and the 'legal' aspect is not an accurate one."

28. In my view the objection on procedural impropriety has no merits. In the light of the exchange between counsel, it is unrealistic to say that the Tribunal had changed the case of the appellant and should afford the appellant an opportunity to respond to the new case: R v Cross and Channon 55 Cr App R 540.

Merits of the appeal

The accreditation

29. The accreditation certificate issued to the appellant by the Agency stated that:

" At the certification audit carried out on this enterprise by HKQAA, it was established that the quality management system of this enterprise conformed fully to the requirements of the international standard for quality management and quality assurance (ISO 9000). Services shall be offered at or from only the address(es) particularly described in the Appendix hereto, such Appendix bearing the same number as this Certificate dated 16 May 1996."

30. The appendix to the certificate contained the following:

"Quality Management System of which the Company is Registered Certification Site (Address of the Appellant)

Scope

The provision of legal services in respect of conveyancing, tenancy company secretarial, commercial, employment, wills and probate, matrimonial and immigration matters." (emphasis added)

31. In order to be assessed by the Agency, the appellant provided a quality manual which dealt with the quality management system of his practice. The manual specifically provided that:

"59.1 'The quality policy is to (1) UNITE and be PERSISTENT to meet the quality standards of the International Organisation for Standardisation (ISO) and those prescribed by The Law Society of Hong Kong; (ii) EARN and LEARN and KEEP EARNING and LEARNING; and (iii) ACHIEVE a 0% rate of negligence claims and a BELOW 5% rate of complaints (including complaints for delay) by the clients.' (Exhibit page 58 - Paragraph 1(b) of the Quality Manual refers).

59.2 'The quality system is comprised of two sets of tools: Quality Tools and Practice Tools ... Quality Tools include: ... a quality policy ... a files management system ... a documents management system ... Practice Tools include ... Instruction Sheets ... Procedural Guides and Checklists ...Precedents ...' (Exhibit page 59 - Paragraph 2 on page 3 of the Quality Manual refers)."

32. The Agency appointed an expert to assess the appellant's system. She used to be a solicitor with a major local law firm and at the time of the assessment was an assistant law professor with a local university. She also carried out surveillance and monitoring of the appellant's system.

33. The appellant obviously had put in great efforts in ensuring a quality management system in his practice. The procedural guides and instruction sheet prepared by him revealed that effort had been put in their preparation.

The Promotion Code

34. The real issue in this case is whether the statement "the legal services for conveyancing of our solicitors firm was assessed by the HKQAA to be up to the ISO 9001 quality standards" infringes paragraph 6(a) of the Promotion Code which provides:

"6. Practice promotion shall be decent, legal, honest and truthful and shall not:

(a) be likely to mislead or deceive, whether by inclusion or omission;

..."

This code was first promulgated by the Council of the Law Society on 20 March 1992 in accordance with rule 2AA of the Solicitors Practice Rules. Section 2AA provides that:

Prohibition against publicity etc.

(1) Subject to subrule (2), a solicitor shall not publicise or otherwise promote his practice or permit his practice to be publicised or otherwise promoted.

(2) Subrule (1) does not apply to anything done in accordance with the Solicitors' Practice Promotion Code as made from time to time by the Council with the prior approval of the Chief Justice.

35. Initially, advertisement of the solicitors' practice was prohibited. This was allowed in November 1996. A circular was issued by the Law Society to its members on 25 November 1996 informing them of the change.

The Appellant's case

36. The fundamental case advanced by the Appellant was that the endorsement by the Agency was an endorsement of the legal service provided by him. It is fair to say that there were indeed many passages in the Appellant's first two affirmations which seemed to say that the assessment had nothing to do with the quality of the legal services. These passages were made in response to the rolled up complaints which alleged four separate types of misconduct : likelihood of misleading and deceiving others; adverse remarks about the practice of other solicitors, claim of expertise in his field of practice and bringing the solicitors' profession into disrepute.

37. However, it is equally clear from these passages that the Appellant was saying that the ISO standard was a commitment to provide a quality product or service. He relied specifically on a circular of the English Law Society which stated that compliance with the standards "assured good legal advice". In other words, a certification by the Agency was in fact an endorsement of the quality of his legal service.

38. This underlining theme was expressly brought out at the hearing of the Tribunal when Mr Fung, S.C., counsel for the Appellant, expressly stated that the dichotomy between legal work and managerial work was fallacious.

The error of the Tribunal

39. It is not necessary for me to go into the argument whether the Tribunal had misunderstood the meaning of quality management. In my view where the Tribunal had fallen in error is that it had supposed the ISO certification was not a form of endorsement or statement about the quality of legal service provided by the appellant. The statement made by the appellant would mislead the public if the Agency had not made any assessment on the quality of his legal service. In my view the certification by the Agency on the quality management system of the appellant's firm would necessarily involve an assessment on his legal service because the quality management system was an integral part of the legal service. This being the case there was no misleading of the public.

Modern legal practice

40. The provision of legal services is a complicated matter. It is certainly not something that can be done mechanically. The lawyer must have the requisite knowledge of the law and expertise. He must also ensure that there is a proper system being implemented in his office so as to meet the requirements of his practice.

41. Inevitably, in every organisation there is a system of management dealing with the hierarchy and function of the staff and how routine matters are to be dealt with. This is the traditional system of management.

42. However, apart from this basic requirements, in recent years great emphasis has been placed on the concept of risk prevention or risk management in solicitors practice to ensure that the service is being rendered professionably and unnecessary mistakes will not be made. The use of checklists, regular office meetings to assess the progress of cases, updating of the knowledge of the law are some of the methods to achieve these objectives.

43. The appellant on the resumed hearing of the appeal, sought to adduce new evidence which includes, among others, checklists prepared by him for the conveyancing. The contents revealed that they were not confined to merits to clerical requirements but also those that have a direct relevance to the level of expertise required such as the ambit of title requirement in the sale of land. The assessment also dealt with the service of the appellant when the assessor actually examined the files of some transaction carried out by him. There was subsequent monitoring after the initial accreditation as well. But even without these new documents which were only admitted provisionally, it is clear that the appellant had in place a system of quality management which would enhance the quality of his service. The fact that he was the sole proprietor of his firm only emphasises the importance of having such a system in place.

44. The assessment by the Agency was obviously geared towards this system of modern quality management. When one talks about the quality management system in a law office, one is essentially saying whether the law office has a system of good case management with these built-in requirements which will ensure cases being dealt with properly and efficiently. And in the context of the accreditation by the Agency whether such a system meets the standards of ISO 9000. If there is such a system in place it will obviously affect the quality of the legal service provided by the lawyer.

The English position

45. In 1998 when the appellant issued the circulars, there was no guideline by the Hong Kong Law Society on the use of the ISO Standards. The position in England was that the English law firms were entitled to apply for accreditation of the BSL Standards. Once a law firm was entitled to receive accreditation from quality assurance agencies then inevitably such accreditation provides a form of endorsement or statement about the quality of services provided by that firm.

46. The Law Society of England had in 1991 produced a paper entitled "Quality: a briefing for solicitors". The paper referred to the British Standard 5750. There is no dispute that the Hong Kong Quality Assurance Certification Scheme uses the same certification technique as the British Standards Institution. The paper stated that:

"2.22 Standard for quality of legal advice depend on the requirements of the customer. It is therefore not practical to set standards for the quality of legal advice/action that will apply universally. BS 5750 and TQM do not attempt to prescribe standards for legal advice. Instead they offer systems which can be used to assure quality of legal advice as explained in later sections. (emphasis added)

4.1 The BS 5750 series ... tell suppliers and manufacturers what is required of a quality-orientated system. They do not set out extra special requirements which only a very few firms can - or need comply with, but are practical standards for quality systems which can be used by all UK industry."

The principles of BS 5750 are applicable whether you employ 10 people or 10,000. They identify the basic disciplines and specify the procedures and criteria to ensure that products or services meet the customers' requirements.

The benefits of applying BS 5750 are real; it will save you money - because your procedures will be more soundly based and more efficient; it will ensure satisfied customers - because you will have built in quality at every stage; it will reduce waste and time-consuming e-working of design and procedures. ("BS 5750: A Positive contribution to better business").

Under the heading "BS 5750 AND QUALITY OF LEGAL ADVICE", the paper stated that:

"4.4 The philosophy underlying BS 5750 is that "you cannot test the quality of every item produced; so instead you test the system that produces the items; and that way, you can assure the quality of the items the system produces." BS 5750 sets out how a company can establish, document and maintain a system that will assure quality.

4.5 BS 5750 does not set standards for the quality of any product - legal advice, washing machines, construction work or anything else. It sets standards for the process which produces the product. This follows from the philosophy mentioned above. Following all the procedures listed in the Code (Appendix A) - and in particular the requirement about training and keeping up to date with the law (para. 11 of the Code) - should however assure good legal advice." (emphasis added)"

This paper clearly recognized that a system of quality management would assure the quality of the legal service including legal advice.

The Hong Kong position

47. The Hong Kong Law Society does not prohibit its members from applying for accreditation of the ISO Standards or advertised such accreditation. If, as a result of the use of the ISO mark and a reference to the accreditation an impression is given to members of the public that the quality of the appellant's legal work had been assessed and approved by the agency, this will be an inevitable result of the accreditation that was given to the appellant because the ISO Standards offer systems which can be used to "assure the quality of the legal advice". I have serious doubts on whether the inclusion of the words "quality management system" in the circular statements would have made the slightest difference to the perception. If a member of the public does not know what the words mean, their inclusion would make no difference to him. If, on the other hand, he knows the meaning, then by the reason I have stated, the perception would be that the accreditation goes to the quality of the legal service as well.

48. Likewise, the appellants' statement in the circular that "the legal services for conveyancing of our solicitors firm was assessed by the HKQAA to be up to the service standard of the ISO 9001" was indeed a true statement. Legal service is not confined to the giving of legal advice to clients. As Mr Lee had submitted, legal services are multifaceted, apart from the rendering of legal opinion there are other indispensable facets like responding to a client's instructions speedily, designing and making use of systems to minimise errors and negligence, training and other logistics involved in the provision of legal services. To construe legal services as meaning purely legal expertise is placing too much a restriction on this term. Hence, the Tribunal's conclusion that paragraph 6(a) of the Promotion Code had been breached was in error.

The current circular

49. The Hong Kong Law Society had issued a circular on 25 April 2000 on the use of the ISO 9000 or 9002 Certification Logos. Paragraph 2 of the circular stated that:

" The Standing Committee on Standards and Development has resolved that where a firm has been awarded ISO 9000 or 9002 Certification by the Hong Kong Quality Assurance Agency in relation to an area of its practice, the ISO 9000 or 90002 Certification Logo may be used on promotional material provided that the area of the firm's practice to which the certification relates is clearly stated, ..."

50. The relevance of this circular is that it highlighted the inevitable association that one may make on the accreditation with the quality of the legal service. If the reference to the accreditation will give the impression contended for by the Law Society, then the "Q" mark or logo placed on top of the firm's area of practice, such as "conveyance" without more will necessarily give the impression on the quality of the "conveyancing" service. In fact this approach was directly contrary to the stand taken by Law Society at the Tribunal hearing. Its position then was that the appellant would not be guilty of any misconduct if in the promotional materials he had simply used the words "legal services" without specifying "conveyancing". Again, the same impression would have been created.

51. In my view, the real issue is not whether the Law Society was mistaken in its submission before the Tribunal or in the current circular, but rather the perception of quality legal service is inevitable once the Law Society allows its members to be accredited with the ISO standards and advertised it.

Trade Description Ordinance

52. The appellant had relied on the Trade Descriptions Ordinance, Cap 362 in which a trade description is defined in section 2 as misleading if it is "likely to be taken for such an indication of any of the matters ― as would be false to a material degree". It was argued that even if the statements in the two circulars were misleading, this could not been said to be false to a material degree. In view of my decisions it is not necessary to deal with this matter.

Guidelines for the Promotion Code

53. It is clear from under Paragraph 10 of the Promotion Code that the Council of the Law Society may from time to time by resolution published to the profession drawing attention to examples of practice promotion which in the opinion of the Council constitute breaches of the general principles and intent of the Promotion Code. Any practice promotion effected or continued after the promulgation of such advice would be regarded by the Council as a breach of the Code. Paragraph 11 of the Promotion Code also empowers the Council to waive a breach, or to condone a prospective breach, of any of the provisions of the code in any particular case.

54. It had not been argued that a complaint under the Promotion Code can only be made after the Law Society had passed a resolution on the use of the accreditation by the Agency. However, in view of the novel situation and the problem associated with the accreditation, one would have thought that the Law Society should have made a decision on this matter first so that its members would know where they stand in terms of advertising the ISO accreditation, before lodging the various complaints against the appellant when eventually, all but one of them were dismissed.

Interference with the Tribunal

55. Mr Kerr referred to a number of cases such as Re a Solicitor [1994] 3 All ER 853, Re a Solicitor, Ex Parte The Law Society [1913] 29 TLR 354, Re a Solicitor [1988] 2 HKLR 137, Re a Solicitor [1924] 93 LJKB 761 and The Law Society of Hong Kong v a Solicitor Civil Appeal No. 130 of 1995. These cases showed that an appellate court should be reluctant to interfere with the decision of a disciplinary body, particularly in relation to professional misconduct. He submitted that a tribunal consisting of the appellant's peers is best placed to decide upon professional matters including what is or is not misleading to potential clients and what standard the appellant is required to reach. The court should only interfere if the disciplinary tribunal decision has been plainly wrong.

56. I recognise the force of these cases. However, this is the first case to be considered by the Tribunal on the advertisement of the ISO standards and how the public would react to the promotional material. This is not a case concerned with other types of professional misconduct in which the professionals themselves are clearly the experts. In my view the court is in as good a position as the Tribunal in deciding whether a disciplinary offence had been committed.

Practice Rules

57. The Tribunal also found that rule 2 of the Solicitors' Practice Rules had been breached. Rule 2(d) is as follows:

" A solicitor shall not, in the course of practising as a solicitor, do or permit to be done on his behalf anything which compromises or impairs or is likely to compromise or impair -

(d) his own reputation or the reputation of the profession."

58. Among the other complaints dismissed by the Tribunal was one dealing with paragraph 6(l) of the Promotion Code which provides that the practice promotion shall not be in any manner which may reasonably be regarded as having the effect of bringing the solicitors' profession into disrepute. The Tribunal did not indicate in its finding which aspect of rule 2(d), i.e. whether it was the appellant's own reputation or the reputation of the profession, had been compromised. But this is not important because the appellant's reputation also affects that of his profession. If the Tribunal had dismissed the charge on reputation then it can not find the appellant guilty of a similar charge. In any event, in the light of my decision on paragraph 6(a) of the Promotion Code, the decision on rule 2(d) cannot now stand.

Conclusion

59. Accordingly I would allow the appeal and set aside the orders and penalty.

Hon Stock JA:

The Setting

60. We are concerned in this appeal with a decision of a Solicitors' Disciplinary Tribunal in respect of one of several complaints which the appellant was called upon to answer. The Complaint with which we are concerned was that he had breached certain provisions of the Solicitors' Practice Promotion Code. Under the heading 'General Principles', the Code, in so far as is relevant to this appeal, states as follows:

"6. Practice promotion shall be decent, legal, honest and truthful and shall not:

(a) be likely to mislead or deceive, whether by inclusion or omission;

(b) contain any adverse remark or implication concerning any other solicitor or solicitors, in particular in any comparison of services, practice or fees;

(c) make any claim or imply that the solicitor is, or that his practice is or includes an expert in any field of practice or generally. It is permissible, however, to refer to his knowledge, qualifications, experience or area(s) of practice provided that such a claim can be justified;

(d) ...;

....

(l) be in any manner which may reasonably be regarded as having the effect of bringing the solicitors' profession into dispute;

...." (Emphasis added).

I have supplied emphasis to part of paragraph 6 of the Code because it seems to have been suggested that the promotion in this case was, as it stood, truthful. Putting aside for the moment whether it was or was not truthful, the Code goes wider than mere technical truth, but requires that even a statement which might, on some literal construction, be said strictly speaking to be true, should nonetheless not carry a likelihood of misleading.

61. The Solicitors' Practice Rules, promulgated pursuant to powers conferred by the Legal Practitioners' Ordinance on the Council of the Law Society, provide in rule 2 as follows:

"A solicitor shall not, in the course of practicing as a solicitor, do or permit to be done on this behalf anything which compromises or implies or is likely to compromise or impair -

....

(d) his own reputation or the reputation of the profession;

...."

62. The Complaint in respect of which the Tribunal, after a two-day hearing, made a finding, adverse to the appellant ran thus:

"4th Complaint

Use of the ISO 9001 mark with the TPS logo, by the respondent, contrary to:

(A) Paragraph 6(a), 6(b), 6(c) and 6(l) of the Solicitors' Practice Promotion Code which provides that practice promotion shall be decent, legal, honest and truthful and shall not -

(a) be likely to mislead or deceive, whether by inclusion or omission;

(b) contain any adverse remark or implication concerning any other solicitor or solicitors in particular in any comparison of services, practice or fees;

(c) make any claim or imply that the solicitor is or that his practice is or includes an expert in any field of practice or generally. It is permissible, however, to refer to his knowledge, qualifications, experience or area(s) of practice provided that such a claim can be justified;

(l) be in any manner which may reasonably be regarded as having the effect of bringing the solicitors' profession into dispute.

(B) Rule 2(d) of the Solicitors' Practice Rules which provides that a solicitor shall not, in the course of practicing as a solicitor, do or permit to be done on his behalf anything which compromises or impairs or is likely to compromise or impair his own reputation or the reputation of the profession:

Particulars

1. The use of the statement 'Our solicitors firm is the first solicitors firm which was awarded with an ISO 9001 Certificate by the HKQAA in Hong Kong.' On the first page of HC1 circular just under the name of the Firm and the TPS logo, the certified ISO accreditation of the Firm.

2. The use of the statement 'The legal services for conveyancing of our solicitors firm was assessed by the HKQAA to be up to the standard of the ISO 9001.' On the first page of both circulars HC2 and HC3." (Emphasis added).

Those passages to which emphasis has been added are those aspects of the complaint which were upheld against the solicitor by the Tribunal.

63. "ISO 9001" is a reference to one in a series of quality management standards set by the International Organization for Standardization, and the HKQAA is the Hong Kong Quality Assurance Association, an agency established in Hong Kong for the issue, where merited, of ISO 9000 Certificates.

64. The Tribunal found the Complaint justified in one particular aspect. In early 1998, the appellant solicitor had mounted a marketing campaign by which he sought to promote his conveyancing services to residents of six housing estates, for whose benefit the Housing Authority had launched a scheme known as the Tenants Purchase Scheme. Between early February 1998 and mid-June 1998 the solicitor, who is a sole practitioner, running an office with a support staff of three persons, inserted two newspaper advertisements, and distributed to the estates many copies of three household circulars. In the advertisements the appellant said that: "Our solicitors firm is pleased to assist in providing legal services for purchasing property in the [estates]." He inserted a logo, which belongs to the Hong Kong Quality Assurance Association and, below it, the letters and numbers "ISO 9000", and added: "Our solicitors firm is the first solicitors firm accredited with the international ISO 9001 Certificate in Hong Kong." The first circular was to the same effect.

65. The second and third circulars, however, were different. Each started with the boxed heading "Legal Services for the Purchases of Public Estate", went on with a reference to pleasure at providing legal services for the purchase and mortgage and then, at the foot of the circular - next to the HKQAA triangular logo which carries a large "Q", the words "Certified Company" within the triangle, and the description "ISO 9001" below the triangle - were the words:

"The legal services for conveyancing of our solicitors was assessed by the Hong Kong Quality Assurance Association to be up to the [services] standard of the ISO 9001."

These are the words which were found by the Tribunal to be words likely to mislead members of the public into believing that the Hong Kong Quality Assurance Association had assessed and approved the quality of the firm's legal work, whereas it had not. The Tribunal held that the Complaint was made out to the extent that there had been established a breach of paragraph 6(a) of the Code, and of Rule 2(d) of the Rules. The word "services" which I have placed in parenthesis came in, as it were, in the course of the disciplinary hearing for it was suggested, and accepted, that its inclusion accurately reflected a proper translation of the circular. It was not suggested at that hearing, or before us, that its addition, or its presence, materially alters the sense of the impression likely to be conveyed to the lay reader.

66. The Complaint which I have recited was dated 13 June 2000, and followed extensive correspondence between the Law Society and the Appellant. A hearing took place on 18th and 19th September 2000, and the Tribunal issued its decision on 14 December 2000. As a result of the Tribunal's adverse finding, the appellant was fined the sum of $10,000, and an order made that he be censured. This appeal is restricted to the finding that he had breached the Code and the Rules. No complaint is made about the penalty.

67. The decision of the Tribunal is attacked on two bases, the first procedural; the second substantive.

Procedure

(1) The argument

68. The proceedings of the Tribunal are attacked on the footing that the 4th complaint (referred to in the findings as the second complaint, because it was the second remaining complaint which the Tribunal was, at the end, left to consider) was bad for duplicity; that the particulars did not support the subject of the charge; and that the appellant was convicted upon a case which was not pleaded or advanced by the respondent.

69. One might indeed have hoped for a charge drawn with greater clarity. So, for example it might, with force, be said that, on its face, the particular which runs "The use of the statement 'The legal services for conveyancing of our solicitors firm was assessed by the HKQAA to be up to the standard of the ISO 9001'" is not a particular of a charge stated merely to be "Use of the ISO 9001 mark with the [Tenants Purchase Scheme] logo". It follows also that it may be said that the complaint directed at the circulars' description of services is different from a complaint restricted to the use of the logo, and should have formed the subject of a separate charge.

(2) The law

70. There is no warrant for the suggestion, which has been deployed on the appellant's behalf, that the Law Society is bound in a strict sense by the rules which apply to the drafting of indictments in criminal cases. In so far as the rules against duplicity in criminal proceedings have been prayed in aid in support of this appeal it is, in my judgment, enough for present purposes to say that the rules are not applied to their full extent, or as rigidly, in disciplinary proceedings; which is not to say that the principles underlying them are to be ignored, for '... the principles that have been developed in criminal law are useful guides in determining the nature of the prejudice that may flow from duplicitous charges in such proceedings and the consequences that may ensue' (Mitchell v Royal New South Wales Canine Council Ltd [2001] NSWCA 162, 27 August 2001). See also Gee v General Medical Council [1987] 1 WLR 564; Duncan v Medical Disciplinary Committee [1986] 1 NZLR 513, 535; Jacobsen v Nurses Tribunal and Another, Supreme Court of New South Wales, Administrative Law Division, 3 October 1997. It is unnecessary in this case further to analyze the effect of these authorities. In this case, the question, at the end of the day, is whether, by the time the proceedings began, and whilst they were in progress, the case against the appellant was defined with sufficient precision to enable him to know what allegations he faced; to make clear that he faced the specific allegation which, ultimately was found proved; and to enable him to defend that allegation. The answer to such a question will vary from case to case, and will depend upon all the circumstances.

(3) The reality

71. In this case, by the time the proceedings commenced, affidavits had been filed clarifying the complaint, and the appellant, who is not a layman but a qualified solicitor, was represented by eminent leading counsel who, one can confidently say, would have been the first to complain and to seek particulars had there been the least problem with ascertaining precisely what was alleged. We have, too, the advantage of a transcript of the proceedings before the Tribunal which enables us to ascertain whether there is any substance to the suggested grievance, a grievance raised for the first time upon this appeal. In the event, we can see that suggestions that the appellant did not know precisely what the allegations were, and that the appellant was convicted upon a case that was not pleaded or advanced by the respondent, are suggestions which are wholly contradicted by the facts. The appellant at all material times knew full well the fact, content and gravamen of the complaint of which he was found guilty by the Tribunal.

72. The essence of the Tribunal's finding against the appellant is as follows:

"In our view, the Respondent failed to make clear to readers of the household circulars that ISO certification can only ever relate to quality of management systems and is not any form of endorsement or statement about the quality of legal services provided by any practitioner. In our view, this commentary gave a misleading impression to members of the public that the quality of the Respondent's firm's legal work had been assessed and approved by the Hong Kong Quality Assurance Association, rather than the quality of the Respondent's firm's management system." (Emphasis added)

73. The complaint sheet itself, amended in mid-June 2000, that is, three months before the hearing, complained in its particulars, of "the use of the statement 'the legal services for conveyancing of our solicitors firm was assessed by the HKQAA to be up to the standard of the ISO 9001' on the first page of both circulars HC2 and HC3." In his affidavit, dated 8 March 2000, the Director of Compliance of the Law Society, Mr Harrod, gave particulars of this complaint, explaining precisely what it was that was said to mislead. This is what he said:

"The use of the ISO 9001 mark is also misleading or confusing or is likely to be misleading or confusing because it may have led the target recipients into believing that the HKQAA is able to certify the quality of the legal work in Conveyancing of the public housing estates, either generally or in relation to the other firms appointed by the Authority."

74. That the appellant fully understood this complaint and its true effect, and that it was one which he was called upon to defend, is evident too from the answer he gave in an affirmation dated 24 July 2000. He there dealt in full with the 4th Complaint, saying that:

"the statement 'The legal services for conveyancing of our solicitors firm was assessed by the HKQAA to be up to ISO 9001 quality standards' is a statement of true fact that with regard to the firm's conveyancing services the commitment to provide a quality service in this practice area was (and is) assessed and certified by the HKQAA to meet with ISO 9001 quality standards".

And there is then set out argument as to what the ISO 9001 mark means, namely, so it is suggested, a commitment to quality service. Again, at para 53 of the same affirmation, the appellant asserted that

"ISO 9000 quality standards are not about, and have no relevance to, the ability of ISO 9000 accreditation bodies, including HKQAA, to certify the work or quality of work of a particular trade or industry or business entity. As can be seen in the Surveillance Visit Report dated 15 May 1999 prepared by the HKQAA in respect of surveillance visits by the Agency to my firm covering the three-year period from the date of the ISO 9001 accreditation awarded by the HKQAA to the firm on 16 May 1996 to the date of the report, 14 May 1999 ... the accreditation bodies' only function is to certify whether the commitment to the quality management system of the business entity being established against ISO 9000 quality standards, can be demonstrated, and whether the results thereof are satisfactory."

One notes here the difference between, on the one hand, a commitment to quality service and, on the other, the service itself. Then, at para 56, it is argued that:

"... the Applicant [the Law Society] ought to have known the true nature and substance of ISO 9000 quality standards and functions of ISO 9000 accreditation bodies."

I pause here to make a comment, more germane perhaps to the substantive issue, that the appellant appears in this affirmation to have missed the point, which was not whether the Law Society knew what the function and capabilities of the accreditation bodies were, but whether the lay public, the potential housing estate clients to whom the circulars were distributed, knew.

75. Then, again, at para 68 of the same affirmation, the appellant recited the very complaint in Mr Harrod's affidavit that the circulars were likely to mislead target recipients into believing that the HKQAA was able to certify the quality of legal work, and he seeks to answer that very allegation. There is not a hint in this affirmation, or anywhere else until this appeal was launched, that the appellant was, by the time the Tribunal proceedings commenced, anything other than fully aware of precisely what was alleged.

76. That the appellant knew full well what the complaint was, and that he sought to meet it, is also clear from the transcript of the Tribunal's proceedings. At an early stage of those proceedings, Mr Nasir, presenting the case on behalf of the Society said this:

"I have one more point in relation to HC1 which is in relation to breach of Code 6(a), that is that by incorporating these three features the respondent was likely to mislead or deceive the recipients, and this is only in relation to recipients because he had actually circulated these to the tenants of the six housing estates, into believing that the HKQAA were able to certify the quality of the legal work in relation to conveyancing. Again, I ask the Tribunal to look at the promotional material as a whole.

I now ask the Tribunal to look at HC2 and HC3. HC2 appears at page 144 and I ask the Tribunal to look at page 144(2). The relevant statement in HC2 is to be found at page 144(2), the translation reads:

'The legal services for conveyancing of our solicitors firm was assessed by the Hong Kong Quality Assurance Association to be up to the standard of the ISO 9001.'

That also appears at HC3 at page 148(2)." (Emphasis added).

77. The Chairman of the Tribunal crystallized the issue in an exchange with Mr Fung SC, then acting on behalf of the solicitor:

"Chairman: Is the issue here not whether this is a standard of a management system or a standard of legal work done by the firm? As I understand the complaint of the applicant, it is that the advertising was misleading in giving the public an impression that the legal work done by the firm was certified to be up to this standard. Am I correct, Mr Nasir?

MR NASIR: Yes." (Emphasis added).

And Mr Fung SC, fully understanding the point, replied on behalf of the appellant that:

"We say, with respect, that that supposed dichotomy between legal work and managerial work is in fact fallacious." (Tr. Date 2 pp 28-29)

And a little later, Mr Fung SC added:

"There is no pretence that the ISO accreditation is the same as an LLB exam or a refresher course. No-one pretends to the contrary. Nevertheless, to tell the consumer that your firm, be it an engineering firm, a law firm or indeed a manufacturer, has ISO accreditation, if it is true, we say cannot be misleading or deceptive.

It does not say, for example, 'We are assessed to be the most competent conveyancing firm in Hong Kong.' It does not say that. Neither does it say that, as somehow suggested by my learned friend, we are better at conveyancing than any other firm. It does not say that. It says that we have been assessed with ISO 9001 accreditation in relation to conveyancing, which is true. Because the areas of competence assessed cover conveyancing, and my learned friend concedes that." (Tr. Day 2 p 30)

78. I note that there was no suggestion by Mr Fung, when he opened his case, that the appellant was unaware of the complaint, or that the charges in any way embarrassed his client by being insufficiently particular or clear.

(4) Procedure: Conclusion

79. The suggestions which are made by the appellant that the case was changed mid-stream, that the appellant was taken by surprise, or somehow prejudiced, do not sit well with the history which I have recited. The long and the short of the matter is that the appellant knew very well indeed precisely what the complaint was, had every possible opportunity to answer it, and availed himself of that opportunity. I am satisfied that the grounds of appeal which complain of procedural injustice are not made out.

Substance

80. So one turns to the complaint as to substance, the appeal against the finding itself.

(1) Identifying the representees

81. Representations are not made in a vacuum. If I may paraphrase the definition of the word 'representation' in the New Shorter Oxford English Dictionary, a representation is the act of presenting a fact or an assertion to another and often, as in the present case, with the aim of influencing the other's opinion or action. One does not accurately ascertain whether a representation had a propensity, or was likely, to mislead unless one knows to whom and in what circumstances the representation was made. The Tribunal's decision was that the appellant's promotional circulars contained a representation which was likely to mislead or deceive the intended and actual recipients of those circulars.

82. Those representees were tenants of a number of housing estates, described by Mr Harrod as persons "with little experience or education"; a suggestion, not intended pejoratively, which was not disputed in the proceedings. In March 1998, the appellant distributed no fewer than 28,049 circulars; in early June 10,800 circulars; and later in June a further 17,400 circulars, all to tenants of housing estates. On the last two occasions the wording of the circulars was materially changed. Whereas on the first circular the appellant stated merely that "Our solicitors firm is the first solicitors firm accredited with the International ISO 9001 Certificate in Hong Kong", the second and third circulars represented that the firm's legal services for conveyancing had been assessed as up to an international standard; a representation which, I note, the appellant had not cleared in advance with the Law Society. The circulars were distributed to large numbers of housing estate tenants, few of whom, if any, could be expected to know anything at all about conveyancing, or about the skills or reputation of different firms - and there were no doubt any number of firms wishing to provide conveyancing services for the purchase scheme - or who had ever heard of the ISO accreditation scheme, let alone how the scheme operated it; who operated it; what was assessed; or whether it was a body approved by the Law Society.

(2) The likely impact

83. The question therefore is: What impact were those two circulars, but in particular that representation about accreditation of legal services, likely to have on that group of people? The question is not what impact that representation was likely to have on the Tribunal or on this Court after it had been asked to, and did, examine, in fine detail, the background, workings, and intentions of the ISO and its scheme; nor what impact that representation was likely to have on other firms of solicitors, or on businessmen familiar with ISO accreditation. And it is not a question that requires acute analysis and dissection. It is a common sense issue of impact. That issue of fact was one which the Tribunal was well placed to make, and is not an assessment which we should lightly second-guess.

84. The Tribunal's conclusion was that the impression that the circulars would have conveyed was that the HKQAA had assessed "the quality of the firm's legal work and had approved it." I agree that that was likely to have been the impression created. In my opinion, the lay reader to whom the circulars were sent would have thought that the lawyers of that firm must be good and knowledgeable conveyancing solicitors, because otherwise such a certificate would not have been issued.

(3) What the Association assesses

85. It is said by Mr Lee that the statement in the circular was in itself true. By that he meant that the HKQAA indeed assesses such systems in place which go towards assuring that the service provided by a firm is of good quality, so that it is not inaccurate to say that the HKQAA has assessed the legal services. To this end, we were invited to look at new evidence, which we did de bene esse. We were taken to the audits of the firm which had been carried out by the Association, and we were taken to conveyancing check lists compiled by the appellant. The audits show the type of exercise carried out: examination of time sheet records, the clerical resources of the firm, the presence or absence of client complaints, the organization structure of this firm, duty routine, the keeping of client instruction sheets, and a note about language skills. Other features were noted: for example, reminders for completion dates, the presence of instruction sheets, and the check lists.

(4) What the Association does not assess

86. What the Association assessed were aids to the provision of a good legal service. But that is only part of the story. There is nothing in these checks about the solicitor's own experience in conveyancing (or, for that matter, in the several other areas of practice to which the certificate relates), his training in the subject, his aptitude in the subject, how much time he has to devote to the subject, how much time he has to devote to other areas of practice, what his other activities may be and how they impinge upon his work, whether he is competent or not to deal with unusual or unexpected legal problems, his level of knowledge, or whether legal advice given in any single case was or was not accurate. It is, in the circumstances, no answer to say that the Association assesses features of the running of the office which, if followed, go towards a good service; for the representation made and its effect - and this, to my mind, is the essence of the matter - goes further than that; and the keeping of an efficient office, or of a good check list, is not a guarantee of an astute, alert, or knowledgeable lawyer, either generally or in any given field.

87. It is significant to note the terms of the certificate issued by the Association to the appellant:

"At the certification audit carried out on this enterprise by HKQAA, it was established that the quality management system of this enterprise conformed fully to the requirements of the international standard for quality management and quality assurance (ISO 9000). Services shall be offered at or from only the address(es) particularly described in the Appendix hereto, such Appendix bearing the same number as this Certificate dated 16 May 1996." (Emphasis added).

The Appendix to the certificate included the following:

"Scope

The provision of legal services in respect of conveyancing, tenancy, company secretarial, commercial, employment, wills and probate, matrimonial and immigration matters."

The phrase "the provision of legal services" in that purely appendicular context means that what was assessed was the quality management system within the realm of legal services. It does not mean, as the appellant obviously knows, and as the Association itself has taken pains to emphasise, that the services themselves, the know-how, the expertise, were assessed.

88. It is particularly relevant to note that the representation in the circulars did not follow the terms of the certificate itself, that the quality management system of the firm had been assessed, an easy enough statement for the appellant to have made, had he so chosen.

89. It is also highly significant that the Association itself has been careful to insist that it makes no assessment as to the excellence or quality of the work provided by the organization which it has inspected, and that the appellant in his lengthy affirmations before the Tribunal not only conceded that much, but was anxious to impress that fact upon the Tribunal. In its Regulations promulgated in 1996, the Association defined a quality system as meaning "the organizational structure, responsibilities, procedures, processes and resources for implanting quality management"; and insisted that its logo "may not under any circumstances be used directly on or closely associated with products or by reference to the services provided by a business in such a way as to imply that the products or services themselves are certified by the HKQAA". (Emphasis added). It is difficult to see what the appellant has done in the circulars other than imply that the services have been so certified.

90. In his first affirmation, dated 24 July 2000, the appellant said that:

"the statement 'The legal services for conveyancing of our solicitors firm was accessed [assessed] by the HKQAA to be up to ISO 9001 quality standards' is a statement of true fact that with regard to the firm's conveyancing services, the commitment to provide a quality service in this practice area was (and is) assessed and certified by the HKQAA to meet with ISO 9001 quality standards;"

He emphasized also that the quality standards of the ISO 9001 are not trade specific:

"ISO 9001 quality standards are not trade specific, and are not about, and have no relevance to, the ability or otherwise of accreditation bodies, including HKQAA, to certify the work or quality of work of a particular trade or industry or business entity, as distinguished from the accreditation body's function and ability to assess and certify whether the commitment to a quality management system of the business entity established in line with ISO 9000 quality standards can be demonstrated, and whether the results thereof are satisfactory;" (Emphasis added).

The point is repeated later:

"ISO 9000 quality standards are not about, and have no relevance to, the ability of ISO 9000 accreditation bodies, including HKQAA, to certify the work or quality of work of a particular trade or industry or business entity."

He also said, quoting from a Hong Kong SAR Government pamphlet that the ISO 9000 "... is applicable to any company regardless of size, product or service", and he emphasized that the mark is not about any particular specialty or expertise. He added that the ISO standards

"... have no relevance to the ability of ISO 9000 accreditation bodies, including HKQAA, to certify the ... quality of work of a particular trade or industry or business entity,"

and that

"At no point and in no way would and could the HKQAA certify and assess the quality of a trade, and in this case, conveyancing services, a view wholly misconceived by the Applicant."

In support of this assertion, he adopted the view of the Law Society of England and Wales which, he said:

"... quite rightly pointed out as early as 1991 ... that 'BS 5750 (the predecessors of ISO 9000 quality standards) ... do not attempt to prescribe standards for legal advice.'"

91. In a supporting affirmation, a Professor Leung, Head of the Chinese School of Medicine at the Hong Kong Baptist University, and a former member of the Consumer Council, and a former member of the Council of the HKQAA, affirmed, on the applicant's behalf, that:

"It is well known that the ISO marks are not awarded on the basis of the excellence of any particular services. Rather, they relate to standards of management within a company or firm."

92. All these are important concessions as to the role of the HKQAA in issuing ISO 9000 series certificates. So, in defending the charge that the circulars were likely to mislead their recipients, the appellant deployed evidence which, in the event, undermined his case. He deployed the evidence to show that the Law Society should have appreciated what the HKQAA could not and did not purport to do but, in seeking to show that, he demonstrated why the circulars were likely to mislead the estates' tenants.

(5) Substance: Conclusion

93. In the light of all this evidence, the Tribunal's conclusion was in my opinion, a correct conclusion.

94. If a solicitor represents to a layman that he provides services in conveyancing, what is it that is important to the client? What is it that the potential client will, amongst his key questions, ask of himself, or of the solicitor, or of others, in deciding whether to use that firm? Unless cost is the only factor that concerns him, he will ask: What is the solicitor's experience in the provision of that service? What is his level of knowledge? What time does he have available to devote to me, as opposed to other clients? What is the size of the firm? Has it an established reputation in the field? Has it as much experience, the same level of knowledge, in the field as other firms? All of this is embraced by the phrase "legal services in conveyancing", and if none of this is embraced by the ISO accreditation, then the representation was misleading, and materially so.

95. In so far as Mr Lee argued that the representation in the circulars that legal services were assessed was a true representation in that any quality management measure is part and parcel of the service, the answer is that this would be scant comfort to a layman who, in reliance upon such a circular, engaged a solicitor only to find that the quality management was good but that the skills were not; in the same way, for example, that a patient would understandably be aggrieved if a general medical practitioner, to whose practice an ISO 9001 certificate had been issued, then placed a poster in the surgery window saying that "The medical services of this practice in the field of renal medicine have been assessed by the HKQAA to be up to the services standard of the ISO 9001", only to find that the Association was in no position whatsoever to assess the practitioner's knowledge and skills in the field, and would not dream of doing so.

96. Nor does Mr Lee's point answer the issue, which is whether the statement or representation, unexplained, unqualified, in its full impact, was likely to mislead. A statement which is only part of the picture can readily mislead precisely because it is only part of the picture. There is, in my judgment, a difference between a commitment to quality service and the fabric of the service itself, and there is a difference between an aid to the provision of a good service, on the one hand and, on the other, the service itself, carrying the central attributes of expertise and skill for which the client looks. But even if one were to accept that a quality management system was part of the service itself, it still remains but part of the service; and a representation which implies, or is likely to be read as saying, that there has been an assessment of the whole, whereas there has in fact been an assessment of a part, which assessment did not include a very important part, is a representation that is likely to mislead.

97. There has been introduced into the appeal a suggestion, an implication, that the Tribunal's finding was harsh, and that the assessment whether the circular was misleading or not was made upon a fine balance and upon an artificial footing. I do not agree. Solicitors belong to a profession in which the highest standards are, rightly, expected, and in which they are required to have well in mind the likely impact of what they say on clients, or on potential clients, and the impact of their conduct on the profession as a whole. The relaxation of professional conduct rules so that practice promotion is permitted does not turn the solicitors profession into a mere trade, or into a business in which looser standards prevail. It is incumbent upon a solicitor to be open in a proactive way, which is to say that it is not, in my judgment, sufficient (or, indeed, attractive) to suggest that a representation made by a solicitor to potential clients is very strictly speaking accurate if looked at from a particular angle, and therefore must be taken to suffice. In the conduct of his affairs, the solicitor must ever be conscious of the fact that the interests of his clients, and this includes those whom he would attract to be his clients by the dissemination of promotional material, are paramount, and that those interests carry a priority higher than the promotion of his practice. To this end, there should be no difficulty in the pursuit of a particularly careful approach in the drafting of promotional material which bears well in mind the identity, character, and level of sophistication of the intended recipient of the information. "Before making claims to expertise or specialization, solicitors should carefully consider whether they would feel able to justify such claims" (see Cordery on Solicitors 14th ed. Division H para 18). The same approach applies in a case where representations of any kind, whether it be as to specialization, or as to certification by other agencies, are made in promotional material.

98. There is no suggestion in this case that the solicitor is other than an honest solicitor, but it would seem that on the occasion of these circulars he did not take the care which ought to have been taken in what he said to the recipients of thousands of his circulars. It would have been simple enough for him to say that: 'The quality management system we have in place has been assessed by the HKQAA to be up to the standard of the ISO 9001'. One might ask why there was a need, with the second and third circulars, to depart from the narrower but strictly accurate formula of the first although, even then, openness might have dictated a footnote of some kind explaining what such a certificate meant. If, as was said by the appellant in his affirmation of July 2000, the ISO 9001 standard evidences a commitment to quality service, why could that not be said?

(6) Papers and leaflets

99. Reliance was placed in argument on comments by the English Law Society, and by an Industry Department leaflet, to the effect that a quality management system will assure the provision of quality services. But the nature of those statements is to be looked at realistically. They are documents in the nature of exhortations to recipients to institute systems as aids to provisions of good services. To suggest that the systems will, somehow, assure the provision of sound legal services or the quality of legal advice which is the core element of the service, is a suggestion with which I must respectfully disagree. If the paper by the English Law Society does make such a suggestion, then I would say that the suggestion is inaccurate and flies in the face of the nature of the scheme and its limitations as described by the very people who administer the scheme.

100. Much has also been made of a circular, or guidance, issued by the Law Society in Hong Kong in 2000, well after the events with which we are concerned. The circular seems to suggest that it is permissible to place on a letterhead the ISO logo and then, underneath the logo, the area of practice to which the certification relates. I see considerable danger in the use of the "Q" logo and the ISO reference, without more, when representations are made by lawyers to the ordinary layman. It is a danger that he will be misled, and in my judgment it behoves the profession to ensure that he is not. That said, criticism of the guidance is not to the point in this appeal, for the issue in this appeal is whether the circulars distributed by the appellant were likely to mislead.

101. Then it was argued that the Tribunal misunderstood the effect of the ISO certificate as going to a mere management system whereas, in truth, it went to a system of quality control. The phrase of which complaint was made is "quality of management systems", a phrase repeated within the Tribunal's reasons, rather than "quality management system". In fact the latter phrase is also used in the course of the Tribunal's reasoning, but, even so, I am satisfied, for the reasons which I have provided, that the point does not avail the appellant, for the provision of quality control is but part of the picture, and the Association has made clear enough, as is the fact, that it does not assess the service itself. That was the essential fact which lead the Tribunal to its conclusion.

Conclusion

102. I would dismiss the appeal, with a costs order nisi to the respondent.

Hon Mayo VP:

103. The scope of this appeal is narrowly circumscribed. The appellant was found by the Solicitors' Disciplinary Tribunal (the Tribunal) to have contravened the provisions contained in para. 6(a) of the Solicitors' Practice Promotion Code.

104. A flyer or pamphlet issued by his firm was found to be likely to mislead members of the public.

105. In the pamphlet the appellant was offering his professional services to prospective purchasers of flats in a public housing estate.

106. So far as this appeal is concerned the statement which is complained of appeared on the first page of the pamphlet.

107. It said "The legal services for conveyancing of our solicitors firm was assessed by the Hong Kong Quality Assurance Agency (HKQAA )to be up to the standard of the ISO 9001".

108. The pamphlet went on to describe the nature of the services which were being offered to the prospective purchasers.

109. It needs to be added that many of the recipients of these pamphlets would not have had much experience of dealing with solicitors and it was unlikely that they would have much knowledge concerning the functions which are exercised by the HKQAA.

110. The main issue which was considered by the Tribunal was whether these members of the public were likely to have been misled by the statement referred to in the pamphlet.

111. It was the Law Society's contention that an impression might be gained by members of the public that the HKQAA were certifying that the quality system which was the subject of the certification extended to the legal expertise of the solicitors.

112. They went on to argue that this was not the case and that accordingly a false impression was being given.

113. Before us Mr Martin Lee SC for the appellant argued that the quality management system which was the subject of the accreditation did indeed extend to the conveyancing skills of the solicitors.

114. In considering whether the Tribunal were plainly wrong in coming to the conclusion they had that the statement was misleading it is important to bear in mind the evidence which was before them.

115. There was ample evidence before the Tribunal that the system did not extend to the legal expertise of the solicitors.

116. For example in his first affirmation dated 24 July 2000 the appellant states at p. 95 of appeal bundle A:

" 53 ISO 9000 quality standards are not about, and have no relevance to, the ability of ISO 9000 accreditation bodies, including HKQAA, to certify the work or quality of work of a particular trade or industry or business entity. As can be seen in the Surveillance Visit Report dated 15 May 1999 prepared by the HKQAA in respect of surveillance visits by the Agency to my firm covering the three-year period from the date of the ISO 9001 accreditation awarded by the HKQAA to the firm on 16 May 1996 to the date of the report, 14 May 1999 ('the Surveillance Visit Report') (Exhibit pages 50-56), the accreditation bodies' only function is to certify whether the commitment to the quality management system of the business entity, being established against ISO 9000 quality standards, can be demonstrated, and whether the results thereof are satisfactory."

117. There are a number of other statements of a similar nature. Also the HKQAA itself agrees that it has no competence to assess the quality of the legal skills of a legal practitioner.

118. It needs to be added that it is hardly surprising that this should be the case. This is a matter which very much more comes within the province of the functions which are exercised by the Law Society.

119. Mr Lee however submitted that if the whole situation is considered in its proper context the statement made by the appellant was not misleading.

120. In support of this Mr Lee referred us to relevant documentation which indicated that what was being assessed by the HKQAA was more than simply a management system.

121. In particular he referred us to two checklists which had been prepared by the solicitors.

122. According to him it was evident on perusing these that what was being contemplated went far beyond what was described as being a management system.

123. In fact if the checklists were utilised they enhanced the quality of the legal services being offered. This being the case it was accurate to state that the accreditation was relevant to legal services.

124. Mr Lee also considered in some detail the nature of the site audits which had been undertaken by representatives of the HKQAA and of the Quality Manual which had been prepared.

125. I have no doubt that Mr Kerr, who represented the Law Society, was correct in his analysis of the position when he argued that it was clear that none of the exercises which had been undertaken could assess the legal expertise of the solicitors firm. One of the examples he gave was that even if the checklist referred to requisitions on title there could be no assurance whatever that the solicitor had intelligently applied himself to asking relevant and necessary questions concerning the title to the property.

126. This clearly must be the case.

127. I have no doubt that this accreditation related to management systems and did not extend to legal expertise. This being the case the Tribunal had not erred when they found that the statement in question was misleading.

128. There is a further matter which has to be considered. Mr Lee referred to Law Society Circular 00-118(SD) which was issued on 25 April 2000 which of course was subsequent to the issuance of these pamphlets.

129. This circular reads:

"SOLICITORS' PRACTICE PROMOTION CODE

Use of ISO 9000 or 9002 Certification Logos

1. The Solicitors' Practice Promotion Code provides, inter alia, that practice promotion must be honest and truthful, and not be likely to mislead or deceive, whether by inclusion of omission.

2. The Standing Committee on Standards and Development has resolved that where a firm has been awarded ISO 9000 or 9002 Certification by the Hong Kong Quality Assurance Agency in relation to an area of its practice, the ISO 9000 or 9002 Certification Logo may be used on promotional material provided that the area of the firm's practice to which the certificate relates is clearly stated, as follows:

(a) on the letterhead and leaflets introducing the firm, provided that if the certification only relates to a particular area of the firm's practice, this is stated immediately beneath the logo in font no smaller than the words "Certified Company" which appear within the logo;

(b) on the namecards of staff employed in the area of the firm's practice to which the certification relates, and not on the namecards of staff employed in any other sections of the firm;

(c) on the firm's promotional material and advertisements subject to the qualifications set out in paragraph (a) above, and provided that it otherwise complies in all respects with the Solicitors' Practice Promotion Code.

3. Breach of these guidelines may incur disciplinary sanctions.

Any enquiries can be directed to the Assistant Director, Regulation and Guidance on 2846 0503."

130. It is not easy to reconcile the guidance given by this circular with the approach which is adopted by the Law Society in relation to these proceedings.

131. If no objection is taken to the use of the logo in question if it is referring to, for example, conveyancing it is difficult to see how objection can validly be taken to the statements made by the appellant in the present case.

132. The Tribunal referred to this circular in their findings and Mr Kerr accepted that he had been troubled by this.

133. The way in which he attempted to overcome this problem was to submit that it may well be the case that the circular was unsatisfactory and if adhered to could be misleading to the public.

134. The Law Society of England and Wales had also considered this topic.

135. When giving guidance to their members they reached the following conclusion:

" Conclusion

Professional competence, 'client care' and business skill factors form the basis for quality in legal services.

Standards for quality of legal advice depend on the requirements of the customer. It is therefore not practical to set standards for the quality of legal advice/action that will apply universally. BS 5750 and TQM do not attempt to prescribe standards for legal advice. Instead they offer systems which can be used to assure quality of legal advice.

as explained in later sections."

136. What is meant by "assure" is not entirely clear.

137. However all of this was not directly relevant to the issue which had to be determined by the court.

138. The court had to determine whether the Tribunal had plainly been in error in the determination they had made. If this was found to be the case Mr Kerr informed us that it was likely that the Law Society would reconsider the guidance which would be given to practitioners on this subject.

139. Be that as it may the principal reason for referring to this aspect of the matter is to demonstrate the difficulty in satisfactorily establishing what may or may not be misleading.

140. In this connection I am of the view that at worst the appellant was only guilty of an error of judgment. He was not guilty of dishonesty or serious misconduct.

141. So far as the complaints relating to procedure are concerned I am satisfied that they are without foundation.

142. For the reasons I have given, in my view this appeal should be dismissed.

143. The result of this is that by a majority this appeal is dismissed. An order nisi is made that the Law Society will have the costs of the appeal.

Remarks: