The number of law graduates and qualified lawyers have shot up over the years, in Hong Kong as in elsewhere.

When Patrick Yu joined the Hong Kong Bar in the 1953, there were only around 15 barristers. Now there are usually around 100 pupil barristers each year.

It is a common complaint that there are now “too many” lawyers. The basic argument (in so far as there is one) is that society’s resources should not be expanded on training lawyers who then do not practice (or practice and then drop out after a few years).

Are there any good counter-arguments? I suggest the answer is “yes”, but not because of the following:

  • higher quality of judgments;
  • better development of the law; or
  • better legal representation for people who cannot otherwise afford it

More lawyers can be good, I argue, because it leads to a more fragmented legal profession, and each group has the need and the resources to dig deeper into the principles and produce higher quality legal texts.

This may be a good thing for a community that relies heavily for the export of legal services for its economy.

Quality of judgments

There is no obvious scientific way of measuring the quality of judgments.

At one extreme, a judgment that is full of typos and factual errors is obviously undesirable.

But once the basic requirements are met, what does it mean to say that one judgment being “better” than another?

Each judge assesses the facts according to their common sense, and applies the law with reference to her understanding of the law and sense of fairness.

It is implausible to say that just because there are more lawyers and more competition, judges then automatically have better common sense or understand the law better.

So more lawyers cannot increase the quality of judgments per se.

Development of the law

A potential counter-argument is that, with more lawyers, there is more manpower to prepare more detailed written submissions that lead to a better development of the law.

There is some degree of plausibility to this view.

Around 20-30 years ago, it was the practice in Hong Kong civil courts for oral closing submissions to be made immediately after evidence was heard.

Now, the norm is for the case to be adjourned and written submissions be filed, giving parties the opportunity to make much more detailed arguments with greater citation of authorities than before.

With the aid of this, judgments can become longer and involved more detailed analysis of authorities.

But does a focus of finer details per se lead to better development of the law?

I suggest the answer is still “no”.

Surely judgments are not better simply because they are longer in length. Whether a judgment correctly develops the law is often a matter of heated debate, a mainstay of university law faculties.

Just throwing more man-power into submissions does not obviously improve quality, at least not by any uncontroversial scientific measure.

It may sound plausible that with more lawyers, access to justice has become better.

But this assumes legal costs go down with more lawyers. This is not true.

As Lord Hoffmann wrote in a lecture as a non-permanent Judge of the Hong Kong Court of Final Appeal, fundamentally, measures such as the CJR/CPR will not reduce legal costs unless they significantly take away how parties wish to frame and run the case, which is done in many continental legal systems.

This is likely unacceptable to almost all common lawyers, so a system will remain where parties’ lawyers will play a big role in how the case is framed and fought. Their abilities (or at least perceived abilities) can still lend an edge to their clients, for which reason clients are willing to pay a premium for their services.

It follows that, given market incentives, what happens when there are more lawyers is simply that the manpower flows to lucrative areas (e.g. big money litigation), which becomes ever more complicated.

Save for other policy interventions such as class actions, small value litigation is still unwieldy (and non-lucrative), and access of justice is not improved just because there are more lawyers around.

Is there anything good then with ever more lawyers and ever greater competition?

One effect of this is, in order to get market sectors, specialisms develop to attract and cater fo specific market sectors. This changes the atmosphere of the whole jurisdiction.

Suppose one jurisdiction has a relatively small number of lawyers, and the civil practitioners do everything from corporate work to bankruptcy to personal injuries.

Because everyone does everything, no one is at an especial disadvantage in price or skill to the other. And the solicitors will generally be more “rounded” people, seeing lots of different walks of life.

(This is a very unrealistic and idealised vision of the situation in Hong Kong in times past.)

In another jurisdiction, every area of practice is divided into small niches. You can go to personal injuries specialists who does nothing except (a certain kind of) personal injuries. It would not be dreamed of (as in the smaller jurisdiction) that one young barrister would do bail one day, offshore arbitration the other, and a judicial review on the third.

In one sense, every lawyer in the more specialised jurisdiction is more impoverished. The range of clients they see are narrower. They can only see a small part of the big picture.

But on the other hand, they are likely to be quicker to discern differences that would be overlooked in a more generalist system.

To a generalist judge who only sees serious injury cases 10-30 times a year, smaller differences between them probably do not stand out. But for a judge who does this hundreds of times a year, these differences gradually stand out and (arguably) a more fine-tuned assessment of compensation be made. When one’s field of vision narrows, details become more apparent.

This, in itself, may or may not be a good thing. Perhaps sometimes distinctions can be too fine; deciding between them costs more to litigate than any improvement in justice in the sense of proportionality of award/remedy.

But given the basic market economy of legal services, lawyers in a more crowded, specialist and competitive jurisdiction need to articulate their unique value more than they used to.

Whereas lawyers in a generalist jurisdiction can just rely on a broad common understanding on how situations are to be handled as they arise, no such common understanding is readily available with more judges and lawyers.

Resources become available to dig into the deeper principles into different areas of law, in judgments, legal submissions, societies and publications, and in wider materials for a general readership.

While (arguably) indifferent to the interests/fair treatment of any individual client (see above), it is certainly a boon for people who are interested in the system of legal principles in itself, such as academics, journalists and crucially interested wealthy foreigners (see below).

Is this a good or bad thing?

From a certain angle, as a society, devoting too much resources on law cannot be good.

Law, at least in the paradigmatic form of litigation, is a zero-sum game and a cost centre in society. Lord Sumption must be right in describing it as a necessary evil. In a speech, Lord Walker mentioned how a senior foreign judge he met described deciding appellate cases as “watching two armies fighting in the field, and then coming down and shooting the wounded”. See further Frederick Wilmot-Smith, Equal Justice (2019).

But the legal industry, in the UK as in Hong Kong, is an export industry. Many of the highest value cases concern subject matters that have nothing to do with the UK or Hong Kong at all.

People come to UK or Hong Kong to litigate ultimately because of an intangible, but real, feeling that somehow this is fair (or fairer) than anything available in their home countries.

To sustain this perception, maintaining a vibrant and enterprising legal culture with a is helpful and even essential. In the long run, merely having the historical pedigree is not enough: legal business will go elsewhere if other jurisdictions cultivate an even more vibrant and attractive legal culture.

Here more manpower does help: a constant stream of high quality of legal texts, whether in the fom of judgments, case notes, articles, or practice promotion material is one clear outward sign of the vibrancy in legal culture.

To this one may retort that the root problem is with the domestic politics/legal systems of whoever it is who wants to litigate in Hong Kong or the UK, despite not having any connection with the jurisdiction. It is anomalous that wealthy foreigners should prefer UK or Hong Kong: they shouldn’t.

That may well be right as far as it goes. But this is not something anyone in the UK or Hong Kong, however powerful, can control.

In some sense, it is cruel that more lawyers are trained than is necessary in the UK and Hong Kong for no reason other than to sustain the glamour of their jurisdictions and to prop up the economy. The price falls on the dreams that are dashed for young aspiring lawyers, and the rewards are reaped by the senior barristers and solicitors with deep client bases.

But given Hong Kong/UK is only a small part of the overall puzzle, there may be no viable alternatives to this.