Legal Profession

• Date: 01 December 2001
• Author: TAN YOCK LIN B Sc (Lond), Dip Econ Devt, BA, BCL (Oxon), Professor, Faculty of Law, National University of Singapore
• Citation: (2001) 2 SAL Ann Rev 338
• Published date: 01 December 2001

Introduction

18.1 Cases on the legal profession reported in 2001 fell within a fairly narrow compass. Of the non-disciplinary cases, two were decided on the so-called ad hoc admission of a Queen”s Counsel; one on investment of the solicitors” compensation fund; and the issue of personal liability for wasted costs was fought in the fourth. Of the ten cases on professional discipline; three raised important issues of procedure and natural justice; one was on restoration to the roll; while the rest decided useful matters of the nature of professional misconduct and of principles of disciplinary sentencing. The relatively greater number of professional discipline cases is only to be expected given the vast range of ethical issues the legal professional relationship throws up and the fact that these ethical issues generally resist resolution by firm lines of demarcation.

Ad hoc admission

18.2 It seems most convenient to begin with the cases on ad hoc admission. The admission of a Queen”s Counsel (“QC”) for the purposes of conducting a case goes back to 1962 in a section of the Legal Profession Act the percursor of s 21 of the present Legal Profession Act (Cap 161, 2001 Ed), that provided that a QC not ordinarily resident in Singapore and possessing special qualification or experience might, for one or more special reason in the public interest and for the purpose of any one case, be admitted to practise as an advocate and solicitor. After the tightening of s 21 of the Legal Profession Act in 1991, the decision in Price Arthur Leolin v Attorney General[1992] 2 SLR 972 has supplied the definitive interpretation, making it clear that an applicant for admission as a QC must satisfy three objective criteria; two relating to the nature of the issues and the nature of the applicant”s qualification and the third relating to the circumstances of the case (see Re Caplan Jonathan Michael QC (No 2)[1998] 1 SLR 440 at 444):

“At the first stage, the applicant must demonstrate that the case in which he seeks to appear contains issues of law and/or fact of sufficient difficulty and complexity to require elucidation and/or argument by a Queen”s Counsel. Such difficulty or complexity is not of itself a guarantee of admission, for the decision to admit is still a matter for the court”s decision. At the second stage, therefore, the applicant must persuade the court that the circumstances of the particular case warrant the court in exercising its

discretion in favour of admission. [At the final stage, the applicant] has to satisfy the court of his suitability for admission.”

18.3 Of the two cases decided in 2001 on s 21 of the Legal Profession Act (Cap 161, 2000 Ed), Re Flint Charles John Raffles QC[2001] 2 SLR 276, a decision of Lai Kew Chai J, was the earlier. It focused on the criterion of difficulty and complexity of the case in which ad hoc admission is sought (to be discussed shortly) and on exercise of the discretion to admit. Valuable observations were made on the manner in which the discretion should be exercised, beginning with a helpful reminder that the considerations relevant to exercising the discretion to admit a QC do not form a closed list; followed by affirmation of the principal basis for the judicial discretion to admit a QC. Lai J did not doubt that the court should balance the need to foster a strong local bar against a litigant”s freedom to be represented by counsel of his choice. The need to foster a strong local bar was of course the reason for the amendments in 1991:

“The object of the [1991 amendments] was to lay the foundation for the development of a strong local Bar by the imposition of more stringent conditions for the admission of Queen”s Counsel to appear in our courts” (Re Oliver David Keightley Rideal QC[1992] 2 SLR 400 at 402).

Adherence to that objective in this case did not waver nor are there any signs that it will waver in the days ahead. The observations of Lai J on the development of the local bar were also interesting; and they were endorsed in the case next disccused. Lai J remarked favourably on the maturity of the local bar in the two decades since the passing of the 1991 amendments. However, although he stopped short of saying that this must make it more difficult nowadays for the admission of a QC to succeed, the broad hint is inescapable. In any case, even if the maturity of the local bar does not presently affect the ease with which a QC may be admitted to practice, there must come a time when it will, and adversely. There is another, perhaps more interesting, query suggested by the observations of Lai J. Although the exercise of discretion was seen as requiring a balancing between opposing interests, one wonders whether it was ever truly necessary to strike a balance. No matter what the opposing interests are, the law can never countenance failure of justice by reason of failure in procedure, much less by reason of failure in legal representation. The exercise of discretion might for that reason have been regarded not so much as requiring a balancing but as signifying a preference for local legal representation save in those cases in which there would be a real risk of failure of justice unless a QC was admitted for the purposes of the case.

18.4 The principal significance of Lai J”s decision does not, however, lie in his observations about the local bar but in the application of the requirement of difficulty and complexity in an action which was part of an international dispute. The decision paid particular attention to geographical factors, to learning curves that might be or might have been acquired, and

to possibilities of co-operation and assistance short of management and conduct of the suit. The applicant for admission had sought admission under s 21 in order to prosecute an action as leading counsel for Mitco, a Malaysian incorporated company. In the action which had been filed, Mitco claimed damages for conspiracy to defraud, equitable compensation and/or damages for dishonest assistance of breach of trust and/or inducement to breach of contract. Mitco alleged that it had been the victim of a massive fraud perpetrated by its senior employees and directors and employees of IAG and associated companies. These persons had caused or contrived to cause Mitco to sell palm olein amounting to nearly 20% of the Malaysian production to IAG, in full knowledge that Mitco would not be fully paid and would suffer a considerable loss in consequence. The palm olein which Mitco had delivered had been on-sold and the proceeds paid out to all the persons implicated. As these persons were resident in several countries, the laws of several jurisdictions were potentially applicable. A vast amount of time and effort had been spent in tracing and locating the proceeds of sale of Mitco”s palm olein. To co-ordinate the investigative work in several jurisdictions, a firm of solicitors in London had been retained and the applicant had in turn been engaged as consultant and as advising counsel. There was no doubt that actions would have to be brought in several jurisdictions and that they were in contemplation. The Singapore action was only one of the many that would be brought. Each action would allege the same or similar causes. Each action would draw on the cumulative investigations and findings of the London team of solicitors and commercial accountants.

18.5 Two other things were of material importance. First, the evidence pointing to fraud was strong and fairly objective in nature. On the one hand, the sales which were substantial in value had not gone to the Board of Mitco for approval; that Board had been kept in the dark about the sales. On the other hand, IAG”s letters of credit had proved to be worthless in some cases and fraudulent in others and it might be added that although the judgment said little about the detailed involvement of each of the 23 actual or potential defendants, the impression seems to have been that the preparatory work had generated sufficient hard evidence implicating all of them; in any case it was not suggested that the position was otherwise. Second, the High Court in Singapore had already granted interlocutory injunctions against the two defendants resident in Singapore. They had been ordered to repatriate certain US dollar holdings to Singapore to abide the outcome of the suit Mitco had brought against IAG and the other defendants.

18.6 It was clear that the decision to reject the admission of the applicant had to be made in the light of all the foregoing facts and with the nature of the legal services required for the prosecution of Mitco”s suit in Singapore kept firmly in view. Viewed in that light, this was a case in which preparatory work was more important than case management and in which

extensive cross-examination of an ad hoc nature demanding forensic skills of great reach would not be necessary. Moreover, this was a case in which co-operation and assistance from the London team would continue, whether or not the applicant was admitted for the purposes of the suit in Singapore, and as the Singapore suit would only be concerned with tracing and asset identification in Singapore, such co-operation and assistance would be sufficient to ensure that justice could be done. Under those circumstances, it could not be said that the suit in Singapore was difficult and complex and that the case for ad hoc admission was made out.

18.7 The second case on s 21, Re Howe Martin Russell Thomas QC[2001] 3 SLR 575 was a simpler case mainly because much of the requisite proof of the difficulty and complexity of the case was taken for granted, a fatal omission in such cases. The case for which application for ad hoc admission had been made was about patent infringement. The plaintiffs alleged that the defendants had infringed three of their patents relating to different parts of a moulding machine used to mould semiconductor lead frames. The...