Legal Profession

• Citation: (2006) 7 SAL Ann Rev 377
• Author: TAN Yock Lin BSc (London), Dip Econ Devt, BA, BCL (Oxford); Professor, Faculty of Law, National University of Singapore.
• Published date: 01 December 2006
• Date: 01 December 2006

Introduction

19.1 The legal profession is organised for the public interest, and regulated for its sake, but like any other learned profession offers its members a livelihood and by virtue of its prominence opens them to unwarranted attacks. Recognising this, the Legal Profession Act (Cap 161, 2001 Rev Ed) (‘LPA’) attempts to balance the public interest in the condemnation of serious professional misconduct (including the complainant”s interest in a full investigation) and the private interest of the advocate and solicitor in the exercise of his profession (including his interest in freedom from unwarranted accusations of malpractice). The former public interest easily translates into an interest in the maintenance of professional standards, the public and impartial investigation of complaints of professional misconduct, the rational and cogent demonstration of guilt, and the imposition of an appropriate and condign sanction against the guilty advocate and solicitor. As we have commonly understood it, the private interest leads to a compromise, evidenced for instance in the fact that the preliminary stages of investigation need not be publicised, that these investigations are conducted by the profession of which the advocate and solicitor is a member, that the rational and cogent demonstration of guilt must conform to the strict rules of evidence, and that the condemnation of professional misconduct is exacted according to the criminal standard of proof and not balance of probabilities.

19.2 Against this backdrop, if the cases under review allude to anything, it is that we should banish complacency about the balance that is struck in general between the above public and private interests as well as the supposition that that balance is immutable in particular. Should we continue to adhere to a scheme in which the profession prosecutes its errant members, in which so as to ensure a degree of non-partisanship, we inject a measure of lay representation? Should members of the profession undertake policing functions and procure evidence against their errant fellows? Should the judgment of misconduct be based on such evidence as satisfies the strict rules of the Evidence Act (Cap 97, 1997 Rev Ed) and satisfaction according to the criminal standard of proof?

19.3 The cases under review shed light on or at least provoke reconsideration of some of these underlying issues. Moreover, in two of the cases reviewed, we are struck by the highlights on legal ethics. They are cases of cardinal significance, if not commanding interest. They importantly indicate that the courts are now prepared to accord to the notion of legal ethics a greater, more pervasive reach; notwithstanding this may be difficult to explain within the present logic of our law.

Judicial review

19.4 In the introduction, mention was made of the public interest in a full investigation of professional misconduct, which responds to the expectation of the complainant, especially when he is the victim of professional misconduct, that there will be a full investigation. This expectation is well-protected at the two separate levels of investigation undertaken by the inquiry committee (‘IC’) and the disciplinary committee (‘DC’) respectively; and in both instances the complainant can intervene and take over as “prosecutor”, if he is dissatisfied with the Council of the Law Society”s (‘Council’) determination. Where the Council dismisses the complaint at the first stage, the complainant, but not the advocate and solicitor, has a right of appeal from this determination in respect of complaints actually investigated. The court can if the Council”s determination is wrong, order the complainant to apply for the DC to be appointed and to take over as prosecutor. As to complaints that were not investigated by the IC, over which the court acting under s 96 of the LPA has no original jurisdiction, the complainant can compel the Council to do its duty by appointing an IC to investigate them, unless criminal proceedings are pending, (see Wee Soon Kim Anthony v Law Society of Singapore[1988] 1 SLR 510 (‘Wee Soon Kim Anthony’). See also Whitehouse Holdings Pte Ltd v Law Society of Singapore[1994] 2 SLR 476). This idea that the complainant, though not a formal party to the disciplinary proceedings, has an interest in them that must be protected, is not less impressive at the ensuing DC stage. For his own sake, he is added to the list of persons with a right to appeal the determination of the DC when it is adverse to him. As before, he can take over the prosecution if the court agrees that the Council”s determination to dismiss the proceedings in the light of the DC”s report is wrong.

19.5 In sharp contrast, the advocate and solicitor to whom the complaint relates has little appellate recourse where he is dissatisfied with the Council”s determination at either stage. If the Council determines the case should go to the DC, it must direct the Law Society to apply for the appointment of the DC; no right of appeal is given to the advocate and solicitor in question. The

advocate and solicitor is plainly less well-favoured than the complainant. At the next stage, if the DC determines that there is cause of sufficient gravity, the Law Society must obtain a show cause order; from this the advocate and solicitor has no right of appeal except that the advocate and solicitor has a limited right to appeal against the penalty determined by the DC.

19.6 The observations just made have a significant bearing on the role of judicial review in the disciplinary scheme. As was pointed out by V K Rajah J (as he then was) in Wong Keng Leong Rayney v Law Society of Singapore[2006] 4 SLR 934 (‘Wong Keng Leong Rayney’), judicial review differs from appeal in a fundamental characteristic. Concentrating on the legality, rationality and propriety of decision-making (ie, whether the tribunal exceeded its jurisdiction (by acting without jurisdiction [in the narrow sense] or by making a Wednesbury (Associated Provincial Picture Houses v Wednesbury Corp[1948] 1 KB 223) unreasonable determination or committing an error of law [in the wide sense], failed to exercise it, abused its powers or acted in breach of the rules of natural justice), judicial reviewer leaves and ought to leave the merits untouched. The fact therefore that judicial review succeeds and leads to the quashing of a determination cannot preclude the tribunal from making a second and similar determination which must be upheld if the tribunal has otherwise acted legally, rationally and with propriety.

19.7 At first blush, the complainant with his right to appeal from both adverse determinations is not especially interested in a judicial review with such limited outcomes (except possibly when the Law Society has agreed to proceed on agreed facts and the complainant seeks to question this exercise of discretion by the Law Society or in those rare cases where the DC unwarrantably declines to exercise its jurisdiction). The advocate and solicitor, however, lacking in rights of appeal, may regard judicial review at least as offering him a means, even if it is less complete, to get rid of an adverse determination (apart from those cases where the DC is to be restrained from hearing a complaint which does not fall within its jurisdiction). Nevertheless, assuming the full range of judicial review is available for the moment and for the sake of discussion, the advantage judicial review seems to hold out for the advocate and solicitor is not an impressive advantage. Even if he succeeds in quashing an adverse determination, he may just be buying time for himself before another similar determination is made, this time legally, rationally and with propriety. It is not a great advantage to have the sword hanging over the head for another protracted period of time. The advantage does not greatly improve where the violation of the requirements of legality, rationality or propriety produces

reliance on over-inflated or under-weighted evidence and hence findings which cannot withstand the scrutiny of the court of three judges. If the true nature of show cause proceedings is correctly understood, it will not be doubted that the advocate and solicitor is entitled to challenge the soundness of such findings of fact before the Court of Three Judges.

19.8 Since the proceedings to show cause are original proceedings (they are not a re-hearing), though they are based on the written record of another tribunal, namely the DC, it would be open to the advocate and solicitor in challenging the substance of the charges to bring before the court allegations of illegality, irrationality and impropriety which have affected the determination of existence of cause with a view to persuading the court that there is no cause for discipline. Where the failure of due process leaves the court without any evidence, the fact that it is not stated that the court may exercise its discretion to order a re-trial before the DC or convert the matter into a sua sponte action or dismiss the charges altogether is immaterial. The Court of Three Judges is clearly a superior court of record, with an inherent jurisdiction over its own officers (see Myers v Elman[1940] AC 282 at 318; R & T Thew Ltd v Reeves (No 2)[1982] QB 1283 at 1286). Not only that, it is the ultimate court for the proceedings. Its decision is final and cannot be the subject of further appeal. It must, therefore, have power to order or direct a re-trial if necessary. Even if the court cannot order a re-trial, it can conduct a trial in which there will be a full, careful and independent review giving the evidence its proper and correct appreciation or it can dismiss the charges where the prosecution would be an abuse of process in the light of the failure of due process. If, for instance, the DC was affected by bias, actual, apparent or imputed, it is open to the court to cure the procedural error by a full, careful...