LAW FIRM DISCIPLINE IN SINGAPORE

Citation(2017) 29 SAcLJ 471
Publication Date01 December 2017
AuthorDaryl XU LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore).
Date01 December 2017

Corporate liability for an employee or officer's wrongdoing is not a controversial concept in Singapore. However, it has largely yet to find clear application to the realm of legal professional ethics and ethical breaches by lawyers. By and large, where there are ethical breaches, it is the individual lawyer who is disciplined, and not the firm in which he practices. This article seeks to introduce the Singapore reader to “law firm discipline”, the concept of disciplining law firms as entities to ensure compliance with legal ethics rules, and explores, by reference to the existing regime, the extent to which they have or have not, knowingly or unknowingly, been embraced and adopted in Singapore. In this regard, it is suggested that simple reforms to the existing regime can be adopted to create a coherent and functional application of law firm discipline in Singapore.

I. Introduction

1 The doctrine of respondeat superior or the notion of corporate liability for the wrongdoings of an entity's constituent members, officers and employees is not unfamiliar to Singapore lawyers as a modern legal concept. In the Singapore regulatory framework, some examples that spring to mind may include the following: the Securities Industry Council may sanction entities for breaches of the Singapore Code on Take-overs and Mergers;1 the Monetary Authority of Singapore may sanction banks and financial institutions for their officers' non-compliance with notices;2 and the Accountants Act allows for disciplinary proceedings to be brought against accounting firms.3 In contrast, the disciplining of legal service providers in Singapore continues largely to eschew the disciplining of entities – disciplinary proceedings under the Legal Profession Act traditionally applied and continues to apply only to individual practitioners.

2 On 13 January 2014, the Committee to Review the Regulatory Framework of the Singapore Legal Services Sector (“Committee”), comprising senior members of the Singapore Judiciary and leaders of several large law firms in Singapore, issued its final report on its recommendations on the reform of the regulatory framework of the legal services industry in Singapore.4 Later that year in November, many of the recommendations of the Committee were passed into law by Parliament by way of amendments to the Legal Profession Act.5 Broadly speaking, the amendments sought to reform the registration, licensing, regulation and disciplinary regimes for legal services providers in Singapore, creating a uniform framework for Singapore lawyers, foreign lawyers, Singapore law practices and foreign law practices, where they had hitherto been governed by a patchwork of different institutions and regulators.6 One issue raised by the Committee in the course of its January 2014 report which had not attracted any significant attention was a concept known as “entity regulation”.7 One might have thought that this presented the opportunity for careful consideration of what this entailed and whether and to what extent it ought to be adopted in the disciplinary landscape for legal services providers in Singapore. The Committee did not appear to do so. It concluded, in no more than two short paragraphs, that “entity regulation” ought not to extend to issues of “professional standards and ethics” but ought to be confined only to “compliance with business criteria”.8

3 “Entity regulation”, which is sometimes also known as “law firm regulation” or “law firm discipline” (this article will use the phrase “law firm discipline”), is in fact not a novel concept, albeit that it has not been thoroughly considered in the Singapore context (if at all). Indeed, there is a mature body of American literature on the subject spanning at least the past two decades. There is no doubt that, as will be shown, there are arguments both for and against law firm discipline. To this end, it is

ultimately a policy decision for the regulators of the Singapore legal industry whether and to what extent law firm discipline ought to be implemented. However, this article seeks, by articulating some of the arguments for law firm discipline, and by reviewing the existing ethical and disciplinary framework existing in Singapore in this light and from this perspective, to raise a more thorough and serious consideration as to whether, as a maturing if not mature industry and profession, law firm discipline is something that ought to be implemented in a wider and more principled basis in Singapore.

4 Parts IIA and IIB of this article9 will provide to readers who may not be familiar with the concept a simple introduction10 of law firm discipline, including what it means and the arguments for it, and of its possible operation by making reference to the facts of Singapore cases of potential ethical breaches by lawyers in Singapore. In part IIC,11 some of the arguments against law firm discipline will be explored, and it is suggested that they may be overstated and should not completely discourage proper consideration into whether it can or ought to be implemented in at least some way or form given the nature and reality of legal practice today. Part IID12 will introduce to readers a “thinner” (and perhaps more palatable) conception of law firm discipline, namely, the implementation of ethical infrastructures in law practices. Finally, with the context set, in part III,13 the following will be examined: the existing professional conduct rules and disciplinary regime (including the new and recent 2014/2015 enactments) as they apply in Singapore; the extent to which they have (knowingly or unknowingly) embraced law firm discipline (or not); and, what they suggest about the acceptance of law firm discipline as a feasible and applicable concept in Singapore. Further, with reference to the conclusions on the existing regime in Singapore, some areas suitable for immediate reform to create a coherent and functional system of law firm discipline in Singapore will also be proposed.

II. What is law firm discipline?

5 Traditionally and historically, the disciplinary jurisdiction over lawyers in common law countries is exercised only on individuals and not entities or law firms. This was and continues (largely) to be so in Singapore.14 For this reason, where there is professional or ethical misconduct, any disciplinary liability is personal to that lawyer only, and the firm in which he practices, as a whole, will not be made liable.15 It is important, for reasons which will be expanded on below, however, to note also that, traditionally and historically, common law jurisdictions had largely shown a dislike for and banned the incorporation of legal practices. Legal practices were, by and large, carried on in the form of sole proprietorships or partnerships of individual lawyers. This was true also in Singapore where, before 2000, a lawyer could only practice only either on his own account, in a partnership, or as an employee.16 However, in 2000, following a global trend of allowing the corporatisation of law firms, and following the recommendations of the Law Reform Committee's Sub-Committee on Corporatisation of Law Partnership in 1999,17 Parliament amended the Legal Profession Act to allow for the provision of legal services through law corporations.18 The Legal Profession Act was then again amended in 2005 to allow for the provision of legal services through limited liability partnerships.19 This development in 2000 and 2005 is noteworthy in so far as it also marked the start of the growth of the modern large law firm in Singapore20 as had already started as a global trend elsewhere in the world but especially in the US. It is in this context of the corporatisation and

growth in size of the modern law firm that the concept of law firm discipline took root.
A. Law firm discipline as opposed to individual discipline

6 In an article in the Cornell Law Review published in 1991, Prof Ted Schneyer was amongst the first to make the case for a disciplinary regime that targets not only individual lawyers, but against law firms as well.21 Prof Schneyer argues, in the context of ethical breaches by lawyers in large law firm in the US, that:22

Given the evidentiary problems of pinning professional misconduct on one or more members of a lawyering team, the reluctance to scapegoat some lawyers for sins potentially shared by others in their firm, and especially the importance of a law firm's ethical infrastructure and the diffuse responsibility for creating and maintaining that infrastructure, a disciplinary regime that targets only individual lawyers in an era of large law firms is no longer sufficient. Sanctions against firms are needed as well.

7 Prof Schneyer posits, by analogy to theories of corporate criminal liability and society's growing reliance on criminal sanctions on business corporations to shape corporate activity, that similar application of that theory can be employed to promote ethical practice in law firms.23 Prof Schneyer puts it very plainly, thus: the “chief reason to allow disciplinary authorities to proceed directly against law firms is prophylaxis – the promotion of firm practices that prevent wrongdoing by individual lawyers”.24

8 The arguments for law firm discipline are complex, but they may perhaps be understood best and most simply through considering, as a simple demonstration, Prof Andrew Perlman's paradigmatic example as follows:25

A partner asks [a] young lawyer to review a client's documents to determine what needs to be produced in discovery. In the stack, the associate finds a ‘smoking gun’ that is clearly within the scope of discovery and spells disaster for the client's case. The associate reports

the document to the partner, who without explanation tells the associate not to produce it. The associate asks the partner a few questions and quickly drops the subject when the partner tells the associate to get back to work.

9 In this situation, it...

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