Legal Profession

• Author: TAN Yock Lin BSc (London), Dip Econ Devt, BA, BCL (Oxford); Geoffrey Bartholomew Professor, Faculty of Law, National University of Singapore.
• Published date: 01 December 2012
• Citation: (2012) 13 SAL Ann Rev 394
• Date: 01 December 2012

Introduction

21.1 In this review, readers will find some discussion of the appropriate sentences for lying to the Law Society when it is carrying out its statutory duty of inspection of a lawyer's accounts, for repeated acceptance of referrals of business, for Legal Profession (solicitors' Accounts) Rules (cap 161, R 8, 1999 Rev Ed) breaches, and for negligent legal representation of a vulnerable client. There is also some consideration of the circumstances in which a trial court may grant a barring injunction to restrain a representation by a conflicted advocate and solicitor and highlights of an important point relating to the power of the Chief Justice to order the investigation of disciplinary offences committed by a legal service officer.

21.2 Although there are no reported cases on ad hoc admissions, readers will likely know that s 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed) has been amended with effect from 1 April 2012 with the objective of relaxing the hitherto strict requirements for ad hoc admissions. This relaxation is discernible from the Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012) which sets out the relevant considerations for the grant of an ad hoc admission application under s 15, namely: (a) the nature of the factual and legal issues involved in the case; (b) the necessity for the services of a foreign senior counsel; (c) the availability of any senior counsel or other advocate and solicitor with appropriate experience; and (d) whether, having regard to the circumstances of the case, it is reasonable to admit a foreign senior counsel for the purpose of the case. Evidently, the former requirement of existence of a complex and difficult issue of law or fact is missing from the Legal Profession (Ad Hoc Admissions) Notification 2012 and no doubt cases will be exploring the new limits of ad hoc admission in time. None were reported in 2012.

Dishonesty or falling short of integrity and probity

21.3 Whether or not the duty to act honestly is the core duty of an advocate and solicitor, there can be no doubt that a dishonest lawyer strikes at the core of public confidence in the profession. Nothing more seriously damages public confidence in the profession than dishonest conduct on the part of a lawyer. Where unfortunately it happens, nothing less than the ultimate sanction will be appropriate since anything less will not restore public confidence. So it has been said in many cases which have meted out the ultimate sanction. In the same breath, the courts have added that striking off may also be appropriate when there is a falling short of the standards of integrity, probity and trustworthiness expected of a lawyer and accepted that there is a small residual category in which a dishonest lawyer may escape disbarment.

21.4 Law Society of Singapore v Ng Bock Hoh Dixon[2012] 1 SLR 348 (‘Ng Bock Hoh Dixon’) was an application to show cause for the respondent's misconduct in connection with a dubious transaction. At stake as between solicitor and client was a sum of US$100,000 which the client complained was not returned to him. It was stakeholding money which should have been returned to him when he terminated the stakeholding agreement. The respondent, however, claimed that he had paid the sum over on behalf of the client as a political party donation. The money evidently was the subject of controversy which could not be or was not resolved in the proceedings before the disciplinary tribunal as the claim that the money was held as a stake was not proved beyond reasonable doubt. It followed that it could not be shown that he had breached the core rules requiring him to pay his client's money into the client account, maintain proper accounts of the money, and permit only authorised withdrawals. There was, however, no reasonable doubt that the respondent had lied about the true nature of his bill of costs for the sum of money which he represented was for professional charges. In addition, there was no reasonable doubt that he had lied about the true nature of the bill of costs when he submitted it to his accountant and the Law Society. The crux of the case can be found in the reported judgment (at [33]) as follows:

On his own evidence, the Respondent had deliberately created a false document in the course of discharging his professional duties. Although … the Bill … was not a court document …, it was nevertheless an important accounting record relating to his law firm's client's account. … It [was] beyond dispute that bills produced by advocates and solicitors [were] important documents and it [was] vital to the proper maintenance of accounting records that they [meant] what they [said].

21.5 Moreover, there was aggravation of the respondent's misconduct. Law Society of Singapore v Ng Bock Hoh Dixon[2010] 2 SLR 1000 was an earlier application to discipline the respondent for unbefitting conduct in that he prepared false court documents (which purported to be draft judgments) to be used to placate a friend's wife. The respondent was awarded a suspension of two months for falsifying a judgment (‘False Judgment Disciplinary Proceedings’). In the (2010) 11 SAL Ann Rev 494 at 501, paras 20.14–20.15, it was pointed out that was exceptionally because of the transient duration of the misconduct, the absence of a personal benefit to the solicitor, and of adverse effects on others beyond the immediate parties. To the Court of Three Judges, the misconduct which was dealt with in 2010 (in the False Judgment Disciplinary Proceedings) relevantly ‘demonstrated a disturbing propensity on the part of the Respondent to falsify documents. The Respondent's conduct did not also appear to be the product of a discrete and momentary lapse of judgment because the Bill was rendered not long after he had prepared the false court judgments that were the subject of the False Judgment Disciplinary Proceedings’ [emphasis in original omitted] (see also [35]). In the circumstances, a sanction of striking off was imposed on the respondent.

21.6 Readers may discern several features, some inconclusive, about the disposition. First, in striking off cases, the disciplinary record and judgment will play a very important role in any future application for reinstatement. Such a judgment should be comprehensive and thorough so that another court will be positioned fairly to decide the future case for reinstatement. It should contain a careful and calibrated consideration of all relevant materials bearing on the protection of public confidence and maintenance of the reputation of the profession. It follows that for the sake of a ‘speaking’ judgment, there should be no room for applying any rule of charging that if a lawyer is to be struck off, the charges laid against him should focus only on the most serious offences. In this case, the Law Society's formulation of the charges very properly left nothing of significance out, even if it was suggested that the lying charges were somewhat overlapping. Where, however, the ultimate sanction is not anticipated, one wonders whether a rule that the charges should as far as possible focus on the most serious offences, avoiding overlapping or alternative allegations, would be more appropriate. Incidentally, in another case reviewed below, the Court of Three Judges advised that the Law Society should avoid formulating overlapping charges in respect of the same misconduct.

21.7 The second feature to be noticed is that if public interest is the foremost consideration in disciplinary proceedings, it must be doubtful that the Law Society should in effect have the final say on whether the respondent was or was not guilty of dishonesty by dropping or avoiding charges of dishonesty where it forms the view that they are unsustainable. In this case, the court obviously thought that...