Legal Profession

• Citation: (2004) 5 SAL Ann Rev 409
• Published date: 01 December 2004
• Author: TAN Yock Lin BSc (London), Dip Econ Devt, BA, BCL (Oxford); Professor, Faculty of Law, National University of Singapore.
• Date: 01 December 2004

Introduction

18.1 Professional misconduct occupied the foreground in the year under review, with three reported cases. Two of them were underscored by a similar concern: how to sentence an advocate and solicitor who is guilty of dishonest conduct. The third raised a more difficult and intricate point: how to sentence an advocate and solicitor whose conduct is not dishonest but who, by allowing his duties to conflict, falls short of the required standards of integrity and probity demanded of an advocate and solicitor. This case, like another related and probably the most interesting of the cases reviewed here, has highlighted the problems of common or multiple representation. These are not new; time and again judges have warned advocates and solicitors of the dangers of common or multiple representation and the profession has also not been slow to promulgate ethical rules dealing in some detail with them. Evidently, there is nevertheless no room for complacency. Another group of cases drew attention to the way the business of legal practice is organised and advanced. Readers will recall the reforms in 2000 which introduced the law corporation as an alternative to the sole proprietorship and the partnership: see Legal Profession Act (Cap 161, 2001 Rev Ed) Part VIA. This liberalising move would appear to have been fairly smooth and the conversion from an existing partnership to a law corporation fairly straightforward. One case, however, is an illustration of an unfortunate oversight in a conversion from partnership to law corporation. The liability of a partner for the default of another was clarified in a second case and the judgment may be seen as providing further incentive for converting to a law corporation with limited liability or a limited liability partnership under the Limited Liability Partnerships Act 2005 (No 5 of 2005). The decision here is bound to be of wider interest since the reliance on the latest House of Lords pronouncement on the vicarious liability of partners alters significantly the way we had hitherto thought about these matters. Last but not least, only one case on ad hoc admission was reported; it controversially pronounces a wider scope for the doctrine of res judicata.

Ad hoc admission

18.2 To begin with, there has not been any doubt since Chan Sek Keong J (as he then was) said so in Re Oliver David Keightley Rideal QC[1992] 2 SLR 400 at 402 that the tension between the nurture and development of the local Bar on the one hand and a litigant”s freedom to choose his legal representative on the other is what underlies the provisions on ad hoc admissions (see also Re Flint Charles John Raffles QC[2001] 2 SLR 276). The right to legal representation is a true right only in relation to local representation; the litigant who wishes to be represented by foreign counsel depends on a privilege accorded in the court”s discretion. The exercise of this discretion is sometimes delicate as some cases reviewed in earlier years have shown. But though not explicitly brought out in the cases hitherto, one would have thought that for three reasons a decision made in the exercise of the discretion under s 21 of the Legal Profession Act should be incapable of producing res judicata. First, it is critically dependent on an examination of the entire circumstances of the case and as the very exercise of the discretion predicates that circumstances may change, the courts should be free to appraise each case as it arises. This reason admittedly is not conclusive since there may be an equal need for finality of judgment even where the determination is discretionary in nature and not a determination of right. However, and this is the second reason, the need for finality of judgment in the case of applications for ad hoc admission is not compelling and may be inappropriate. The applicant for ad hoc admission is not pitted against the opposite party but against neutral parties such as the Law Society and the Attorney-General. If the applicant succeeds in his application, res judicata is irrelevant because the neutral parties have only standing to oppose an application. There cannot and will not be a new application to void the order of ad hoc admission. The question of res judicata is only potentially relevant if the applicant fails in his application and seeks to repeat his application. However, in that event, the application of the doctrine of res judicata is not compelling because the applicant has only a limited period of time before the trial begins in which to repeat his application. This constraint, apart from abuse of process, acts as a curb on inordinate repeated applications on more or less the same grounds. Third, the conditions of ad hoc admission prescribed by s 21 are not framed and erected as a bar to be surmounted before ad hoc admission is possible: see Re Lee Chu Ming Martin[2002] 4 SLR 929. Rather, repeated applications are apparently inherent in the system of ad hoc admission which s 21 establishes because the provisions recognise that although the first applicant has failed on the merits to be admitted, another applicant may be meritorious where the first was not.

18.3 In Re Lasry Lex QC[2004] 1 SLR 68, the only reported ad hoc admission case last year, Choo Han Teck J, however, found an occasion to apply the doctrine of res judicata. Nguyen was an Australian who had been charged with drug trafficking which was and is punishable by a mandatory death penalty upon conviction. An application had been made and rejected by Tay Yong Kwong J for ad hoc admission in Originating Motion No 7 of 2003. Ad hoc admission for the purposes of representation in criminal proceedings is specially circumscribed by s 21 which prescribes an additional requirement that there must be special reason for the representation, without any exception in the case of capital offences. But Tay J was apparently not persuaded that the common requirements were met, let alone that there was any special reason for granting the application: see Re Lasry Lex QC where Choo J said at [1]:

There were no written grounds in respect of that decision, but Mr Lasry QC deposed in his affidavit supporting this present application that the court (Tay J) was of the view that what was to be done by him (Mr Lasry QC) ‘as a member of the Australian team could be done in Australia and relayed to [his Singapore counsel] to conduct the trial’.

To this may be added the comment that, in any case, the mere fact that the client seeking foreign representation is a foreigner can hardly count as a special reason for ad hoc representation. Perhaps conscious that the earlier failed application could impede a second attempt at securing ad hoc representation, the second application was cast in distinctly different terms. It sought representation for a pre-trial argument that the mandatory death penalty for drug trafficking in excess of prescribed quantities was void as being a violation of international law. It was argued that the internationalist nature of the arguments to be relied on was a special reason for ad hoc admission. Choo J was quick to remark on the legitimacy and bona fides of all concerned as he commended Lasry QC on his willingness to take up the defence of Nguyen gratis. The learned judge also appreciated that Lasry QC possessed the qualifications and experience for this task, but, applying the doctrine of res judicata, denied or refused the application.

18.4 As authority for the proposition that the doctrine of res judicata applies to an exercise of judicial discretion under s 21, Choo J”s judgment is with respect not fully convincing (see the reasons mentioned in para 18.2 above). A closer reading, however, reveals that Choo J was primarily addressing a point, known as the Henderson v Henderson estoppel (see (1843) 3 Hare 100; 67 ER 313), which had loosely and somewhat inaccurately in the past been referred to as part of the doctrine of res judicata: see at [3] where he said:

[R]es judicata, based on the principle of abuse of the court”s process, is a doctrine of broader scope and application. It applies to matters that properly belong to the earlier proceedings and could reasonably have been raised there but were not.

Subsequent cases have convincingly demonstrated that the eponymous estoppel, as Lord Millett explained in Johnson v Gore Wood & Co[2002] 2 AC 1 at 59, is ‘primarily an ancillary and salutary principle necessary to protect the integrity’ of the defences of res judicata and prevents them from ‘being deliberately or inadvertently circumvented’. It is separate and distinct from cause of action estoppel and issue estoppel, though seeking to protect the same underlying public interest. It defies exact definition but ‘it can be seen in conduct which involves unjust harassment of another party and manifest unfairness to him or in conduct which, if allowed would bring the process of the administration of justice into disrepute in the eyes of right thinking members of society’: per Cooke J in Bim Kemi AB v Blackburn Chemcials Ltd[2004] EWHC 166 (Comm) at [29]. Consistently with the law”s refusal to make it rigid and doctrinal, a determination of abuse of process is seen by Lord Bingham of Cornhill in Johnson v Gore Wood & Co (at 31) as ‘a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case’.

18.5 Re Lasry Lex QC, properly understood, was a case of abuse of process because Choo J was essentially deciding that the justification for ad hoc admission in the second application could and should have been raised at the first application. According to the broad, merits-based approach, one should not suppose that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. See also Good Challenger Navegante SA v Metalexportimport SA...