Legal Profession
| Citation | (2015) 16 SAL Ann Rev 558 |
| Published date | 01 December 2015 |
| Author | LAI Yew Fei LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore); Partner, Rajah & Tann Singapore LLP. |
| Date | 01 December 2015 |
21.1 2015 saw a wave of change in the regulatory landscape for the legal profession. On 18 November 2015, the amendments under the Legal Profession (Amendment) Act 2014 (Act 40 of 2014) and the Legal Profession (Professional Conduct) Rules 2015 (S 706/2015) (‘PCR 2015’) came into operation.
21.2 The PCR 2015 superseded the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) (‘PCR 2010’). It should be noted that all of the disciplinary cases reviewed dealt with charges involving the PCR 2010.
21.3 This review covers 12 cases, comprising one case on ad hoc admission of foreign counsel, one case on a part-call application, one case on taxation of solicitor and client costs and the remainder concerning disciplinary matters and professional conduct rules. The rules on how solicitors should conduct themselves in situations of conflict took the spotlight with the Court of Appeal weighing in on the matter in two decisions.
21.4 In Re Rogers, Heather QC[2015] 4 SLR 1064 (‘Re Rogers’), the applicant was a Queen's Counsel who sought ad hoc admission to practise as an advocate and solicitor of the Supreme Court of Singapore in order that she could represent a defendant in a defamation suit which had been brought by the Prime Minister of Singapore, Lee Hsien Loong. The plaintiff had obtained summary judgment and the action was scheduled for an assessment of damages. The defendant had resisted the summary judgment application and was represented by two local counsel (neither of whom had held the title of senior counsel).
21.5 Every application for ad hoc admission proceeded sequentially in two stages: the court first had to ensure that the mandatory statutory conditions for admission found in ss 15(1) and 15(2) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (‘LPA’) were satisfied before it proceeded to consider whether it should exercise its discretion in favour of admission with reference to the framework of considerations listed at para 3 of the Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012). If the mandatory requirements were not met, the application must fail and the question of discretion would not arise: Re Rogers at [8].
21.6 It was not disputed that ss 15(1)(a) and 15(1)(b) of the LPA had been satisfied. It was also clear that a ‘special reason’ for admission under s 15(2) of the LPA need not be shown since the matter did not involve (a) constitutional and administrative law; (b) criminal law; or (c) family law, which are the areas prescribed under r 32(1) of the Legal Profession (Admission) Rules 2011 (S 244/2011). Thus, the court only had to consider the requirement in s 15(1)(c) of the LPA: Re Rogers at [14].
21.7 In order to satisfy s 15(1)(c) of the LPA, an applicant had to have a ‘notable and particular expertise that was relevant to the issues in the case at hand’: Re Rogers at [16]. It was insufficient to refer to an applicant's expertise in a generic practice area. The applicant bore the burden of demonstrating that there was a clear nexus between (a) the specific issues which were presented in the case; and (b) her qualifications and experience: Re Rogers at [21].
21.8 Here, the primary issue was the quantification of general damages to be awarded for libel against a public leader while the subsidiary issue was whether aggravated damages for malicious publication should be awarded: Re Rogers at [24].
21.9 The court noted that there was insufficient material in the applicant's supporting affidavit for it to discern whether she possessed the requisite expertise in the area of assessment of damages for libel against public figures in Singapore: Re Rogers at [34]–[36].
21.10 The court opined that an affidavit in support of an admission application should contain at minimum:
(a) the date that the applicant was appointed a Queen's Counsel (or attained any appointment of equivalent distinction in any jurisdiction);
(b) the applicant's present residence and an affirmation that he/she intends to travel to Singapore for the purpose of appearing in the case;
(c) the applicant's personal understanding of the legal issues in the underlying case; and
(d) a brief description of the applicant's legal expertise and how it may be brought to bear on the explication of the issues in the underlying case.
The court also encouraged (at [44]) the practice of including a separate addendum covering the matters listed in (c) and (d).
21.11 The court held that other factors also militated against admission in the present case: the law of defamation in Singapore (including the assessment of damages) involved uniquely local issues, for example, the particular protection given to the reputational interest of political figures: Re Rogers at [31]; Singapore courts having long ceased to rely on English awards as a benchmark for local awards: Re Rogers at [32]; the fact that the issues involved were not particularly complex; and that there was a large body of local practitioners who could have handled the matter competently and no reasonably conscientious search for local counsel had been undertaken: Re Rogers at [57]. With regard to the argument on inequality of arms due to the plaintiff in the main action being represented by senior counsel, the court held that the touchstone for admission was ‘need’ as opposed to ‘inequality’. Unless the disparity in the quality of representation would lead to inadequate or under-representation, the quality of the legal representation on the opposing side was not, by itself, a reason for the court to admit foreign senior counsel: Re Rogers at [61].
21.12 The decision makes sense in that the matter for which Queen's Counsel admission was sought was not overly complex. The one significant case in which a Queen's Counsel was admitted in recent history was Re Andrews Geraldine Mary QC[2013] 1 SLR 872, where a Queen's Counsel was admitted to conduct a civil trial involving issues of an alleged settlement agreement, trust and company law. Perhaps admission of Queen's Counsel in that case was justified in its unique set of facts which included the litigant having been turned down by at least two local senior counsels and three local large law firms.
21.13 In Re Teo Jun Kiat, Evan[2015] SGHC 274 (‘Teo Jun Kiat’), the applicant applied for an order under s 32(3) of the LPA that his practice trainee be granted a limited audience before the courts on behalf of his firm, ie, before a judge of the High Court sitting in chambers, the Registrar of the Supreme Court, a District Judge, a Magistrate or the Registrar or deputy registrar of the State Courts (‘part-call application’). At the time of the application, the practice trainee was serving his practice training contract but had not completed the Part B course or passed the Part B examinations: Teo Jun Kiat at [3]–[4].
21.14 The Law Society and the Attorney-General objected to the part-call application on the basis that it was not appropriate to allow a candidate who had not completed the Part B course or passed the Part B examinations to be part-called. The Singapore Institute of Legal Education (‘SILE’) did not object to the part-call application: Teo Jun Kiat at [2].
21.15 The court held that while the completion of the Part B course and Part B examinations is not an express requirement under s 32(3) of the LPA, the section was drafted on the assumption that practice trainees applying to be part-called would have satisfactorily completed courses of instruction and passed such examinations as the SILE may prescribe as necessary for an advocate and solicitor of the Supreme Court: Teo Jun Kiat at [11]. The courts should thus be slow to exercise their discretion to allow part-call applications when a practice trainee has yet to complete the Part B course and examinations: Teo Jun Kiat at [13].
21.16 The court held that the case before it was not an appropriate case for the exercise of its discretion to allow a part-call application as the applicant could not demonstrate that the practice trainee's knowledge from his juris doctor degree, relevant legal training, Part A course and few months of practice training, equipped him with sufficient knowledge and experience in the areas of Singapore civil procedure, criminal procedure, the law of evidence, ethics and responsibility: Teo Jun Kiat at [17].
21.17 The court's power to tax solicitor-client bills arises under s 120 of the LPA. Section 120 of the LPA reads as follows:
Order for taxation of delivered bill of costs
120.—(1) An order for the taxation of a bill of costs delivered by any solicitor may be obtained on an application made by originating summons … by the party chargeable therewith … at any time within 12 months from the delivery of the bill[.]
21.18 Section 120 of the LPA is subject to s 122 of the LPA which reads:
Time limit for taxation of bills of costs
122. After the expiration of 12 months from the delivery of a bill of costs, or after payment of the bill, no order shall be made for taxation of a solicitor's bill of costs, except upon notice to the solicitor and under special circumstances to be proved to the satisfaction of the court.
21.19 In Kosui Singapore Pte Ltd v Thangavelu[2015] 5 SLR 722 (‘Kosui Singapore’), the applicant commenced taxation proceedings in respect of eight bills of its solicitor, ALC, under s 120 of the LPA after 12 months had expired from the delivery of the bills and after it had paid the bills. The court found that the applicant failed to prove the existence of special circumstances which justified referring the eight bills to taxation and dismissed the application: Kosui Singapore at [3], [68] and [111]. The applicant appealed against the decision of the High Court.
21.20 The court observed that there was no rigid rule as to what kind of circumstances were sufficiently...
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