Legal Profession

Published date01 December 2010
Date01 December 2010
Citation(2010) 11 SAL Ann Rev 494
AuthorTAN Yock Lin BSc (London), Dip Econ Devt, BA, BCL (Oxford); Geoffrey Bartholomew Professor, Faculty of Law, National University of Singapore.

Introduction

20.1 In the year of review, the reported cases canvassed a narrow but highly significant cross-section of fundamental issues surrounding the practice of law and about the boundaries between the private and professional life of advocates and solicitors. One touched on the fraud and crime exception to legal professional privilege. The relationship between the fraud and crime exception and a more widely grounded public policy exception has been the subject of disagreement among common law courts and in a closely-reasoned judgment, the High Court weighed in on the difficult question. The second concerned the so-called catch all category of due cause for disciplinary action, namely, that the advocate and solicitor is guilty of unbefitting or unbecoming conduct. In two cases, where the unbefitting conduct was alleged to be dishonest conduct, further light was shed on the category. It became evident that the category is hardly residual when it is also an apt platform for disciplining conduct at the more serious end of the scale of misconduct which warrants the ultimate sanction of striking off the roll. The third issue importantly implicated the solicitor“s function in the administration of justice. A solicitor like anybody else commits an offence against the administration of justice if he does anything that is an offence in relation thereto such as committing perjury for purely personal gain and in his private capacity. But when will he be considered to have done so when he purports to act purely in a representative and legal capacity? In what circumstances will he have additional and particular responsibilities not to interfere or attempt to interfere with the course of justice as legal representative such that breach of these responsibilities will render him liable to be prosecuted for an offence against the administration of justice? The case in which the answer was given strove to avoid a chilling effect on the legal representative“s function. The fourth involved the inherent jurisdiction to visit wasted costs on an advocate who has behaved inappropriately in instituting or conducting a criminal appeal. The case in which the issue was agitated contains a valuable examination and exposition of the professional responsibilities of counsel in a criminal court and deserves to be highlighted. I propose to focus this review on these four issues before more briefly noting the other cases dealing with the abrogation of judicial review of the substantive disciplinary hearing, the role of the

disciplinary tribunal (‘DT’) and review after payment of a bill of costs. The fact that they are only briefly noted is not intended to imply their lesser significance.

Legal professional privilege

20.2 In Gelatissimo (S) Ventures Pte Ltd v Singapore Flyer Pte Ltd [2010] 1 SLR 833 (‘Gelatissimo’), the plaintiff tenants were locked in a dispute with the Singapore Flyer over the suspension of activities following a break-down of the Singapore Flyer observation wheel. Legal advice which their legal advisor had given to the plaintiffs pursuant to their joint retainer (and which was therefore privileged) fell inadvertently into the hands of the Singapore Flyer. (This happened when one the plaintiffs emailed their withdrawal from the suit to the Singapore Flyer). Resisting the plaintiffs“ application for pre-action discovery, the Singapore Flyer referred to the disclosed advice in their affidavits. This they would be entitled to do if the plaintiffs“ privilege was broken by the disclosure or if the pre-action discovery was an abuse of process and privilege was lifted by analogy to the fraud exception.

20.3 On the first point, the High Court held that the privilege in question was a joint privilege of all the plaintiffs which could not be broken by any single plaintiff “s unilateral waiver or consent to disclosure. That being the case, the second objection would clearly have been critical if there had been cogent proof of the plaintiffs“ collateral motive or purpose in seeking pre-action discovery, ie, of the plaintiffs“ abuse of process. In the absence of such proof, it was strictly unnecessary for the court to consider the ambit of the fraud exception, in particular, as to whether public policy justified its extension to legal advice communications made for the purposes of perpetrating an abuse of process.

20.4 Proceeding, however, to do so, the court decided after a very thorough and comprehensive examination of the authorities that the exception could not be limited to legal advice communications made for the purposes of perpetrating a fraud or crime. This review would be remiss if it did not highlight the court“s discussion. The court“s reasoning may be summed up briefly as follows:

(a) Section 131 of the Evidence Act (Cap 97, 1997 Rev Ed) embodies the litigation privilege by importation of the common law.

(b) Legal advice privilege under s 128(1) of the Evidence Act (Cap 97, 1997 Rev Ed) is qualified by the ‘fraud and crime’ exception under s 128(2). (Note that the exception as provided

for covers communications in furtherance of an illegal purpose.)

(c) It would be anomalous not to qualify litigation privilege in the same manner.

(d) As to the limits of that qualification, the rationale of the fraud and crime exception is ambiguous.

(e) It is ultimately an expression of policy.

(f) The balancing approach is best suited for resolving the question of extent to which legal privilege should give way to a higher interest.

(g) However, the Evidence Act (Cap 97, 1997 Rev Ed) and the authorities which are authoritative in Singapore indicate that there will be no re-consideration.

(h) Only interstitial re-consideration will be possible.

(i) Re-consideration of the fraud and crime exception is accordingly permissible.

(j) By way of interstitial re-consideration, the balancing approach should be incorporated in the Evidence Act (into s 128(2) and presumably also s 131) by suitably defining the word “fraud“ to encompass abuse of process.

(k) Abuse of process can thus be applied by analogy to lift the privilege.

20.5 As alluded to in the introduction, the question being grappled with involves understanding the more general role of public policy in relation to legal professional privilege. It is a root and branch question made troublesome by the re-characterisation of the privilege as a substantive and fundamental right. If the privilege is a right, it should not easily be defeated by reference to public policy. On the other hand, if the fraud and crime exception is underpinned by public policy, how does it square with the rejection of a general public policy exception to the privilege? Should it not consistently lead to a refusal to extend it? Given the codification in the Evidence Act (Cap 97, 1997 Rev Ed), and the root and branch nature of the question, the High Court“s demonstrated solution necessarily consisted of a series of steps. With respect, however, not every step in the reasoning will withstand scrutiny. The first proposition may be controverted. The Court of Appeal in Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd [2007] 2 SLR(R) 367 (‘Skandinaviska’) arguably applied the common law litigation privilege via s 2(2) and did not mean to treat s 131 as the source of litigation privilege in Singapore but as merely envisaging it. After all, s 131 covers only communication between lawyer and client (and not third-party communication) and

does not require that the communication must be made for the dominant purpose of litigation. This is in contrast to the prevalence of third party communication whenever issues of litigation privilege are raised.

20.6 The fourth to tenth propositions are also controversial. There is little doubt that the fraud and crime exception has expanded significantly in recent years, to encompass civil wrongs which are committed deliberately and as part of a deliberate plan to defy the law. See Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 500. Alternatively, as Doyle CJ put it in Southern Equities Corp Ltd v Arthur Anderson & Co (1997) 70 SASR 166 at 174: ‘fraud in this context embraces a range of legal wrongs that have deception, deliberate abuse or misuse of legal powers, or deliberate breach of a legal duty at their heart’. See also Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 500 at 515, where the High Court of Australia held that the privilege cannot be ‘used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising rights under the law’. However, it is quite another thing to generalise these developments which liberalise the exception into a balancing of countervailing policies. There remains a vital difference between cases where the claimant to privilege is a fraudster who has sought to use the privilege contrary to the ends for which it is to enure to his benefit (a withdrawal case) and cases which involve weighing different public interests against the public interest in the administration of justice such as where some urgent third party interest such as an accused“s possible innocence is pitted against the client“s legitimate interest in maintaining the privilege (an overriding case). The fraud and crime exception underscores a withdrawal case and it is submitted that its existence does and should not entail a balancing of policies; even when - as was said in Francis & Francis v Central Criminal Court [1989] AC 346 at 396 - it ‘is immaterial to that exception whether it is the client himself, or a third party who is using the client as his innocent tool, who has the criminal intention’.

20.7 One last comment should suffice. All concerned (counsel and the court) assumed that the Evidence Act (Cap 97, 1997 Rev Ed) provisions were applicable. Strictly, however, the common law...

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