"Must a practising barrister accept any brief to appear before a court or instruction to provide any other legal services?" The answer is "Yes" if the brief or instruction is in a field in which the barrister practises or professes to practise. Hong Kong adheres to the honourable "cab-rank rule", with many underlying assumptions.
The practical or financial assumptions are: (1) the brief or instruction is within the barrister's capacity, skill and experience, (2) the barrister would be available to prepare and appear or otherwise deliver value and is not already committed to other engagements which may, as a real possibility, prevent the barrister from being able to advance a client's interests to be best of the barrister's skill and diligence, (3) the fee offered on the brief is proper, having regard to the complexity, length and difficulty of the case and the barrister's ability, experience and seniority, and (4) the barrister is not required to refuse the brief or instruction. Other factors ie the nature of the case, the party on whose behalf the barrister is instructed and any belief or opinion which the barrister may have formed as to the character, reputation, cause, conduct, guilt or innocence of that person are all professionally or morally irrelevant. A barrister must accept the brief or instruction in the interests of justice and its administration.
To every rule, there are exceptions to cater for equity in the special circumstances. A barrister must not accept instructions if they would cause (1) professional embarrassment, or (2) conflict of interest due to the barrister's connection with client, or (3) in any other matter with which the barrister has previously been concerned in the course of another profession or occupation, or (4) on an appeal or in a further stage in such proceeding for any other party without giving the original client whom the barrister has acted the first option to brief the barrister, or (5) the instruction does not require the barrister to work outside the barrister's ordinary working year, or (6) until the barrister fees are agreed; or (7) if having required the fees to be paid before the barrister accepts the instructions and those fees are not paid, or (8) from anyone other than a professional client who accepts liability for the barrister's fees, or (9) in a matter where the lay client is also the professional client, or (10) where the potential liability for professional negligence in respect of the case could exceed the level of professional indemnity insurance which is reasonably available or likely to be available in the market for the practitioner to accept, or (11) if the barrister has previously advised or drawn pleadings or appeared for another person on or in connection with the same matter. The maintenance of high standards by a barrister demonstrates the respect for and upholding the rule of law.
Regarding limited instructions, a barrister may accept instructions to apply for an adjournment of the proceedings or a part thereof. In relation to criminal proceedings, a barrister may only accept limited instructions if satisfied that the accused person will continue to be represented after the barrister's withdrawal from further participation in the proceeding after carrying out those instructions. There are two procedural requirements: (1) a barrister may not appear before any Court on limited instructions without a brief or backsheet marked with the words "Limited Instructions", and (2) where a barrister accepts instructions limited to applying for an adjournment of the proceedings or a part thereof, the barrister, when appearing, must inform the Court of the limited nature of the barrister's instructions at the first available opportunity after the barrister's acceptance of such instructions.
Furthermore, a barrister may accept a brief to take notes for a party to an action or for some person interested therein, but, if so instructed, the barrister may not take any part in the trial or hearing or do anything other than in compliance with the barrister's instructions and in compliance with the relevant rules and procedures of the Court or Tribunal. A barrister is not considered to have accepted a brief or instructions unless the barrister has had an opportunity to consider it and has expressly accepted it. The barrister should, as soon as reasonably practicable after receipt of any brief or instructions, adequately consider whether there is any reason for declining or accepting the brief or instructions and accept or decline the brief or instructions as the case may be without delay!