QuestionSep 5, 2022 - 1:38
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Enquiry Disability Discrimination against my solicitor
I am a disabled person with mental illness in light of the formation of the tumour inside my brain and I have been taken medicine since 2003, but my doctor states that I am mentally fit for work. Thus, I have not given up on myself; rather, I have obtained two Master’s, majoring in Education and English, in 2011 and 2016, respectively. I had employed a solicitor, who was responsible for writing a demand letter to the School and negotiating with the School for settlement of my issue relating to the unlawful dismissal and disability of discrimination against the School, before I asked her to refer my case, to a barrister who I wanted in October 2019. The solicitor actively offered to obtain the estimated cost from the barrister in advance. On the condition that I was not able to contact the barrister directly, the solicitor contacted the barrister on my behalf by email. At the beginning, the barrister replied that she was happy to deal with my case and asked the solicitor to send her some relevant documents in order to make the estimated cost to me. In the meantime, the solicitor sent me an email to let me know that I should have paid her $100000HKD as a preliminary cost for giving the instruction to the barrister; and the solicitor answered my question via email on what the $100000HKD were used for in detail that the estimated cost given by the barrister would have disclosed the answer of my question. As a customer, I am entitled to be aware of the details of the preliminary cost, so I did not transfer that amount of money to the solicitor except the estimated cost given by the barrister was available. The solicitor sent the barrister some relevant documents in relation to my case twice by email. However, after three weeks, I received a forwarded email, which was sent by the barrister to my solicitor, and I was suddenly informed that the barrister had ceased to be involved in my case. Next, my solicitor explained to me that this was the barrister’s preference for not dealing with my case, and she also blamed me that giving calls to the barrister was a primary reason for causing the barrister to cease to be involved in my case. In the end, the solicitor ended up my case and she messaged me via WhatsApp that there was nothing she could have done for me. In November 2021, I made a complaint against the solicitor to the Law Society of Hong Kong (LSHK). One month later, I received the solicitor’s first response to my complaint and a large number of documents, including all emails between the solicitor and the barrister, from LSHK. Out of the blue, by reviewing those emails, I finally found out the truth of why the barrister terminated to deal with my case. Sadly, I had been misunderstood by the solicitor for almost two years. The truth is described as follows: Two weeks before making the decision on terminating to deal with my case, the barrister privately sent an email to my solicitor that she would have liked my solicitor to answer eight questions, which were related to my issue, because the documents which were sent in the past did not make any sense to her, and she also strongly emphasised that without the answers of those questions, she was not able to give the estimated cost. Moreover, she stated that she was not able to reach my solicitor for two weeks, even by phone, and also asked the solicitor to explain clearly to me that I was not able to make calls to her chamber. Nevertheless, the next day, the solicitor replied to the barrister via email that thanks to my mental disability, I did not grasp the idea of the relationship between a solicitor and a counsel, not with a client although she already explained to me once about that, and because of not affording both the barrister and her legal fees, she suggested the barrister to give a rough estimated cost, instead of answering the eight questions. That’s why in the barrister’s replied email to the solicitor, she said that she could only accept the instructions of the solicitor when she knew the relevant case totally; without the answers of the eight questions, she was not able to be aware of my issue thoroughly; then she decided to cease to deal with my case. Indeed, I only stated that I did not apply for the legal aid as my aunt would have supported my legal payment and I had never mentioned to my solicitor that I was not a person with a lot of means. Rather, I did successfully pay her $12000 HKD and $30000 HKD for writing a demand letter and negotiation of the settlement, respectively, in the past. In fact, while dealing with clients who are mentally disabled, the solicitors should consider their clients’ situation individually and not apply stereotyped ideas. The guiding principle for solicitors should be that they must act according to the instructions of their client unless the client lacks capacity to give instructions or those instructions breach obligations owed by the solicitors to the administration of justice. Therefore, the solicitors as a matter of legal principle and ethics are as much obliged to follow instructions from clients with mental disabilities as they are those of a client with no mental disability subject to the requirements of their duties to the administration of justice. Although I am entitled to be aware of the fees charged by the barrister and to have access to the relevant documents, I have experienced disadvantage of obtaining the estimated cost because I do not have a lot of means that my solicitor believes, and this is linked to having my mental health issue on account of misunderstanding the concept about the relationship between a counsel and a solicitor, and not with a lay client. In this situation, I find myself “marked” as having low financial ability and a mental disability. In giving an instruction to my solicitor of obtaining the estimated cost before giving confirmation to engage the barrister dealing with my civil case, I have faced intrusive questions about my financial situation and my mental disability, or stereotyping about being an unreliable client in affording the ultimate cost of both the barrister and the solicitor. According to Cap. 487 Disability Discrimination Ordinance 33(3) -“Discrimination by, or in relation to, barristers : It is unlawful for any person, in relation to, the giving, withholding or acceptance of instructions to a barrister, to discriminate against a person with a disability”, I would like to ask whether I could use this ordinance to state that it is unlawful for my solicitor, in relation to give instructions to the barrister in order to obtain the estimated cost, to discriminate against me. In other words, my solicitor failed to follow the instructions of not only obtaining the estimated fees from the barrister, but also engaging the barrister to become my counsel, on account for my mental disability and my bad financial ability. Could you also suggest previous civil cases which are similar to my issue? Thanks for your patience and concern.
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