Legal Profession
| Citation | (2007) 8 SAL Ann Rev 344 |
| Date | 01 December 2007 |
| Author | TAN Yock Lin BSc (London), Dip Econ Devt, BA, BCL (Oxford); Professor, Faculty of Law, National University of Singapore. |
| Published date | 01 December 2007 |
19.1 Twelve reported cases touching on the legal profession are reviewed in this chapter. In a vast number of them, the presiding judges included one or more judges of appeal. The significance of this should not be lost to sight. Reading them, we obtain the considered views of the most senior members of the judiciary on matters of legal professional and ethical duty crucial to the state of the legal profession. If we also take brief notice of the launch of a book on legal ethics by Professor Pinsler, the prominent coverage in the press of breach of trust by advocates and solicitors, and the serious moves to reform the profession — these easily come to mind as the extra-curial highlights of last year — we see clear signals that the profession must continue to re-define its many challenging responsibilities, defined with varying degrees of clear-sightedness. What do the cases reviewed add to this ‘mission’?
19.2 In Re Millar Gavin James QC[2007] 3 SLR 349, an application for ad hoc admission failed under the well-established three-stage scrutiny. The application was for the applicant to represent the nonresident defendants at a pending trial for libel as well as to prosecute their appeal against a refusal to set aside the service of a writ on them out of the jurisdiction. This appeal raised an issue of whether the service of the writ was an abuse of process. It was held that this was not an issue of complexity and difficulty. With respect, one can agree. The lower court judge, Sundaresh Menon JC, had rejected the abuse of process contention since there was in substance no claim for damages outside Singapore if the statement of claim was read with the accompanying affidavits: see Lee Hsien Loong v Review Publishing Co Ltd[2007] 2 SLR 453. His determination that the statement of claim should be so read clearly presented no real issue of complexity. The second main issue on appeal was whether the manner of service of the writ in Hong Kong (‘HKSAR’) ought to have conformed to certain treaty provisions binding on the states of Singapore and the PRC. Menon JC held first that he was not precluded by any doctrine of Act of State (giving effect to a policy of judicial restraint and abstention) to determine whether
those provisions would govern the service of a writ in the HKSAR before deciding that the HKSAR was not intended to be bound by those provisions. Again, this determination rejecting the contentions on non-justiciability (as to the scope of the doctrine of Act of State) did not appear to be a difficult and complex matter.
19.3 In any case, both issues were matters of private international law and it was held that the applicant had not been shown to have specialised knowledge and expertise in these matters. This again was unexceptional. In relation to the libel defence, which the learned QC was eminently qualified to argue, no defence had been filed and the court was left to surmise from the affidavit filed in support of the application that Millar QC intended to make arguments on the public interest defence of responsible journalism. The real question, however, did not relate to the nature and substantive scope of the defence. It was one of geographical scope, ie, whether such a defence was suitable or adaptable for Singapore, assuming it was a common law development, and it was held that that question was more appropriately answered by lawyers practising Singapore law. It would be wrong to deduce from this that all questions of the adoption of a common law development should exclusively be addressed by local lawyers. If the nature of the development, its intricacies, influences and impact have to be appreciated, a skilled QC should be admitted (to work with local lawyers) to elucidate these matters; for he would have valuable contributions to make, which local lawyers would be incapable of making. Incidentally, the court also affirmed that there was, of course, no principle of ‘equality of arms’ to smoothen the passage of admission of a QC whenever the opposite side is represented by senior counsel. The process of ad hoc admission was never designed to equalise litigational opportunities. This means that assuming there are issues of complexity and difficulty, and the intended QC is suitably qualified to argue them, the proof of unavailability of a local lawyer must always be forthcoming. Proof of this can no more be dispensed with by showing that the opposite side is represented by a senior counsel than proof of difficulty and complexity of issues can be made out by it.
19.4 In 2007, quite by coincidence no doubt, the reported case law on conflict of interests revolved around that aspect described and known as the undivided loyalty duty. The solicitor, of course, owes an undivided loyalty to his client not to place himself in a position where his duty towards one client conflicts with a duty that he owes to another. See Hilton v Barker Booth and Eastwood[2005] 1 All ER 651. In such circumstances, the duty of good faith will also be attracted. Where the solicitor is not in breach of his undivided loyalty in acting for two
principals with potentially conflicting interests because his principals have made an informed choice that he should be their common solicitor, he must still ‘act in good faith in the interests of each and must not act with the intention of furthering the interests of one principal to the prejudice of those of the other’ (see Bristol & West Building Society v Mothew [1998] Ch 1).
19.5 Law Society v Tan Phuay Khiang [2007] 3 SLR 477 (‘Tan Phuay Khiang’)apparently dealt with both duties in the context of professional discipline, although in the present view, the duty of undivided loyalty was of primary concern. In that case, the complainants did not have enough money to purchase a new flat and through their housing agent took a loan from a moneylender. The respondent acted for the moneylender (indeed, had acted for him on previous occasions) and the complainants attending at the respondent”s office pursuant to the loan contract were also asked to sign a power of attorney prepared by the respondent and which appointed an attorney unknown to the complainants to sell their existing flat. Subsequently, a warrant to act appointing the respondent”s firm to act for them in the sale of that flat was given. On the completion of the sale of that flat, the respondent requested the complainants to sign a statutory declaration that they had received (from the respondent) the balance of the sale proceeds and the purchase of their new flat. The complainants complied and signed a statutory declaration that omitted to account for a much larger amount which was due to the complainants arising from the sale. He left it, however, to the complainants to obtain a cheque from their housing agent for that omitted amount. The cheque was dishonoured, though eventually the complainants recovered about a third of the sum from their housing agent.
19.6 This note need not traverse the ground covered by two of the three charges which the court of three judges dismissed. Those charges were plainly without merit. The remaining charge, however, was entirely meritorious. It was that the respondent had acted in a manner unbefitting a solicitor in the discharge of his professional duties in failing to advance his client”s interests unaffected by the interest of any other person. This reviewer has before observed that the circumstances in which breach of the obligation of loyalty (generally conceived) may occur are infinitely various; ranging from honest to dishonest, innocent to culpable, technical to substantive. The obligation, moreover, comes in various guises and has many facets, notably those identified by Millett LJ as he then was in Bristol & West Building Society v Mothew [1998] Ch 1; but as there shown, the fiduciary duty is only broken by intentional (not accidental) disloyalty or infidelity.
19.7 It is essential not to overlook the now banal truth that loyalty is that single thread which is woven into slightly different patterns as it
runs its fiduciary course and to be reminded that the civil law of fiduciary duties serves different purposes from the disciplinary law. For the purposes of discipline, the breach of the duty of loyalty ought to be evaluated or appraised more subjectively. We need not to look only for such a breach as excites in us a feeling of revulsion, moral reprehensibility or betrayal which is an extreme case of impropriety. But surely, what we need to justify disciplinary action cannot be less than a consciousness of transgression of known standards or a consciousness of transgression where the affront to the conscience of a reasonable man would not be appeased except by an imposition of an appropriate sanction. Closely analysed, the decision in Tan Phuay Khiang bears out this critical nuance between the ‘civil law’ and disciplinary law. The case surfaced some technical failings which needed to be exposed and corrected. The disciplinary committee (‘DC’) had concluded that the respondent was in breach of duty by concentrating on drawing inferences from the wrongful release of the power of attorney and the consequential breach of confidential information, and an unpardonable and lengthy ten-month delay in procuring the documents after the representation was over. With respect, the court of three judges correctly held that the DC was unfortunately focussing on the wrong end of the stick in citing and relying on these as instances of breach of the undivided loyalty duty. These were independent breaches, neither derivative nor consequential on breach of the undivided duty of loyalty; and any proof they might, therefore, offer of breach of the undivided loyalty duty was only slight.
19.8 The ‘failure of proper diligence in safeguarding the complainants” interests’ on which the DC had further relied as an instance of breach of...
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