Legal Profession

Citation(2011) 12 SAL Ann Rev 394
Published date01 December 2011
Date01 December 2011

20.1 In the cases reported last year and reviewed in this chapter, will be found a significant elucidation of the law on ad hoc admissions, summing up as it were, the efforts to achieve a degree of the best of both worlds; namely, fostering a strong local bar without excluding suitable and appropriate recourse to outside QCs. This was not the only significant clarification. Other notable examples will be seen in the cases on overcharging, breach of the solicitors' accounts rules and reinstatement on the roll, respectively. In the present view, two cases, however, are less convincing in handling the problems of conflicts in a former client case on the one hand and on the other, unbefitting conduct by manifesting a persistently contemptuous attitude towards the administration of justice. Last to be discussed in this review is an important decision of the Court of Appeal on the classification of disciplinary proceedings. This discussion has been reserved for the end, in order to show the Court of Appeal confronting the problems of self-regulation of the legal profession by carving out a distinct disciplinary jurisdiction, avoiding alignment to either the civil or criminal jurisdiction.

Ad hoc admission

20.2 Re Joseph David QC[2012] 1 SLR 791 (Re Joseph David QC), to begin with, marks the first case of successful ad hoc admission after a gap of some years. It is more than that of course. The decision also re-constitutes the law of ad hoc admission while re-iterating its adherence to it. First, there was valuable recognition and clarification of its multileveled structure. Hitherto, that process had been understood as involving three inquiries: (a) whether the issues to be decided are of sufficient complexity and difficulty; (b) whether the circumstances warrant an exercise of discretion in favour of the applicant; and (c) whether, if so, the applicant is suitably qualified to be admitted. This formulation had seemed to present all stages as threshold requirements and, in particular, the third stage as a threshold requirement and a stand-alone inquiry. In the view of V K Rajah JA giving the judgment of the court in Re Joseph David QC, when the three stage process is properly analysed, however, there is only one threshold sufficient complexity and difficulty of issues. The third inquiry as to suitability of the applicant is clearly not a threshold requirement. It is intertwined with the second inquiry. That second inquiry similarly does not really establish a threshold, but requires attention to considerations relevant to the exercise of the discretion to admit. Among these considerations, apart from suitability of the applicant, is unavailability of local representation of comparable quality which it follows is also not a threshold, but also merely a consideration in the exercise of discretion. It is clearly an important consideration because the exercise of discretion is given for the purposes of resolving the tension between forging or fostering a strong local bar and justice to the litigant. However, it is a malleable one and [w]here there is a dearth of local expertise in any area, even a moderately difficult or complex case may warrant the admission of a Queen's Counsel [emphasis added]: Re Joseph David QC at [19], citing Re Platts-Mills Mark Fortescue QC[2006] 1 SLR(R) 510 at [15] (Re Fortescue QC).

20.3 This puts unavailability of local representation in its place, but importantly in another respect, local unavailability, it was held, does not mean absolute unavailability. The court explained away the contrary estimation which was suggested in Re Fortescue QC. In that case, the Court of Appeal had said obiter that a Queen's Counsel ought not to be admitted no matter how difficult and complex a case is unless no local counsel is able and willing to take the case. According to V K Rajah JA, this obiter, however, over-estimated the consideration of local unavailability. That this was so was demonstrated by reference among other things to the Parliamentary proceedings in which the Minister, when moving the amendments, explained that [t]he proposed amendment will allow the Courts to continue to liberally admit QCs for the important and complex commercial and banking cases: Singapore Parliamentary Debates Official Report (14 January 1991) vol 56 at col 805. The Minister, thus, envisaged that at least in commercial and banking cases there would not be any requirement of absolute unavailability of local representation.

20.4 The court's determination of whether there was sufficient complexity and difficulty of issues in Re Joseph David QC is particularly instructive. The applicant had been counsel in arbitration proceedings held in Singapore which had concluded in a successful award for his clients. The respondent had omitted to take steps to set aside the award. However, was the respondent, nevertheless, entitled to resist enforcement of the award on the same basis that they purported to have for setting aside the award? If so, would it make any difference that the place of award coincided with the place of enforcement? Another issue on which the assistance of the applicant was sought related to the possibility of joinder of related persons not a party to the arbitration agreement in the first place. There was a third issue; whether the enforcement of the award in Singapore would be affected by refusal of enforcement in Indonesia, which was also a signatory to the New York Convention on International Arbitration. All three were developmental issues; their significance went beyond the immediate justice to the applicant's client in two respects. First, [t]he issues relating to arbitration law in the present application are undeniably of no small significance to the development of the international arbitration law jurisprudence in Singapore: Re Joseph David QC at [43]. Second, although this was more implicit than express, the resolution of these issues was important, if not crucial, to the further development of arbitration as an alternative to adjudication by the courts. Third, the determination of these issues would involve the consideration of difficult aspects of arbitration law, and would undoubtedly require careful and detailed argument and, thereafter, considered judicial determination: Re Joseph David QC at [43]. These factors persuaded the court that the requirement of sufficient difficulty and complexity was met and what is interesting for the review here is that the search for complexity thus revealed a concern with developmental interests. Since the ad hoc admission must serve not only the individual justice but the cause of institutional legal development, it is entirely consonant with those purposes that the court should take notice of the importance of the issues as between the parties to the legal and systemic development of international commercial arbitration.

Conflicts of duty

20.5 Our second case, Volobiev Nikolay v Lush John Frederick Peters[2011] 1 SLR 663 (Volobiev Nikolay), offers a useful discussion of the common law rule where the court's intervention is founded on the protection of confidential information of a former client, but a less comprehensive review is more convenient. For that reason, this review will only endeavour to take stock of some of the arguments; dwelling especially on the conflation of law and ethics which was assumed rather than proved. The conflict in the case arose because the solicitors who were to be restrained by a barring injunction had acted for former client in matters relating to a certain stake in a company, but were now acting for the opposite side in an action brought by their present client alleging that the former client had made fraudulent representations to him about that stake. If the common law barring injunction is sought in circumstances such as these, one would expect reference to be made to the observations of Lord Millett in Bolkiah v KPMGELR[1999] 2 AC 222 at 235 and 237238 (Bolkiah). In that seminal House of Lords decision, it was held that a person seeking to restrain his former solicitor from acting in a matter for another client must establish: (a) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented; and (b) that the information is or may be relevant to the new matter in which the interests of the other client is or may be adverse to his own: Bolkiah at 235C-D. It has since been observed that Lord Millett may have been too inflexible in deciding that the solicitor's fiduciary relationship terminates with his retainer so that after the retainer is ended, it is only the continuing duty to preserve the confidentiality of information imparted during the fiduciary relationship that remains: see Ratiu v ConwayUNK[2005] EWCA Civ 1302 at [72]. However that may be, the proposition that in the context of litigation the court will grant a barring injunction to protect confidential information even after the termination of the client's retainer has not once been doubted since then.

20.6 The result of Volobiev Nikolay's omission of the House of Lords case was that the common law rule was incompletely stated. The court relied on Re A Firm of SolicitorsELR[1997] Ch 1, getting to the point where breach of confidence had been pinned down as the key to the obtaining of the injunction. However, the omission of the House of Lords case meant that the court was deprived of the benefit of seeing the injunction as one directed not so much at an individual solicitor...

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