Law Society of Singapore v Hanam, Andrew John
Jurisdiction | Singapore |
Judge | Tay Yong Kwang JCA,Belinda Ang Saw Ean JCA,Andrew Phang Boon Leong SJ |
Judgment Date | 10 May 2023 |
Docket Number | Originating Application No 5 of 2022 |
Court | High Court (Singapore) |
[2023] SGHC 132
Tay Yong Kwang JCA, Belinda Ang Saw Ean JCA and Andrew Phang Boon Leong SJ
Originating Application No 5 of 2022
Court of Three Judges
Legal Profession — Professional conduct — Breach — Solicitor acting on behalf of client in respect of dispute involving unpaid invoices arising from two subcontracts in construction project — Dispute over unpaid invoices resulting in three sets of legal proceedings — Whether solicitor's handling of litigation resulted in breaches of rr 17(2)(e) and 17(2)(f) Legal Profession (Professional Conduct) Rules 2015 — Rules 17(2)(e) and 17(2)(f) Legal Profession (Professional Conduct) Rules 2015
Legal Profession — Professional conduct — Improper conduct or practice — Solicitor acting without instructions or consent of client, failing to render legal advice and failing to render proper legal advice — Whether due cause was made out — Section 83(2)(b) Legal Profession Act 1966 (2020 Rev Ed)
Legal Profession — Professional conduct — Show cause action — Sanction — Whether sanction of fine or term of suspension was to be imposed — Section 83(1)(b) Legal Profession Act 1966 (2020 Rev Ed)
Held, allowing the application and suspending the respondent for a term of nine months:
Whether the Second and Third Charges were made out
(1) The Second and Third Charges were not irregular. The inclusion of the phrase “properly and periodically” in the Second and Third Charges did not detract from the nub of the allegations or render the charges incompetent or incomprehensible. They merely amplified the relevant rules. Whilst Mr Hanam complained that the charges were vague, the charges were sufficiently detailed for the purposes of enabling him to prepare his defence: at [47] to [50].
(2) The DT's decision to place less weight on Mr Hanam's evidence was justified as Mr Hanam had not countermanded the evidence of Mr Pugazendhi. Mr Hanam had not kept any proper attendance notes or records to corroborate his claim that he rendered legal advice orally to P&P and to support the reasonableness of any legal advice rendered. His explanations for the absence of attendance notes were also lame and did not squarely address the omission. The significance of keeping proper attendance notes could not have been lost on him. In the circumstances, the DT was justified in disbelieving Mr Hanam's evidence: at [52] to [57].
(3) Six of the 14 counts where the Law Society's case was not established beyond a reasonable doubt were set aside. The six findings were as follows. Firstly, there was a reasonable doubt that Mr Hanam acted without the instructions or consent of Mr Pugazendhi in filing HC/SUM 1394/2018, which was P&P's application for judgment on the Suit 1255 Settlement sum. This arose from Mr Pugazendhi's response after he was informed that HC/SUM 1394/2018 (“SUM 1394”) had been dismissed with costs ordered against P&P. Secondly, there was a reasonable doubt as to whether Mr Hanam failed to obtain the instructions or consent of Mr Pugazendhi in issuing an offer to settle (“OTS”) on P&P's behalf in Suit 1167. This was due to Mr Pugazendhi's equivocal evidence of whether the OTS was made without his instructions. Thirdly, the DT determined that Mr Hanam did not advise on Kori's OTS dated 29 January 2019 in DC 1043, specifically that he failed to balance the benefits of accepting the OTS against the potential detriments of proceeding with trial. The Court of Three Judges (the “C3J”) found that it was never Mr Hanam's recommendation that Mr Pugazendhi should commence trial. This was a reasonable and plausible explanation for his omission. Fourthly, the DT faulted Mr Hanam on the two counts in relation to the “December 2016 Invoices”. These findings were set aside as no discernible harm materialised to warrant faulting Mr Hanam for the omissions. As transpired, the December 2016 Invoices could not have been sued on in December 2016, and Suit 1167 could have only been commenced after P&P accepted Kori's offer to pay a compromised sum of $342,821.05 in October 2017. Finally, it was determined that Mr Hanam should not be faulted for not having advised on the option of waiting for the issue of judgment in Suit 1255 instead of initiating Suit 1167. There was no reason for Mr Hanam to have advised Mr Pugazendhi on such an option given that Kori had not imposed any conditions on the offer to pay the sum of $342,821.05 and further, there was no set-off agreement: at [62] to [86].
(4) Eight of the 14 counts made by the DT were not to be disturbed. Two of the eight counts pertained to instances where Mr Hanam acted without the authority of Mr Pugazendhi. Mr Hanam accepted that he acted without the instructions or consent of Mr Pugazendhi. The two instances pertained to costs paid by P&P. Mr Hanam's arguments that his conduct should be excused because Mr Pugazendhi was not in a position to give instructions on the costs and that issues of costs were not of a legal nature were without merit. Moreover, it was not Mr Hanam's case that Mr Pugazendhi was uninterested or disengaged from the three suits that P&P was embroiled in. If Mr Pugazendhi had been so, Mr Hanam's actions could have been explicable: at [90] to [92].
(5) Mr Hanam was also faulted on two counts for failing to discuss the use of alternative dispute resolution (“ADR”) options. Mr Hanam failed to discuss the use of the adjudication regime under the Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) (“SOPA Adjudication”) in Suit 1255. Mr Hanam's account that he advised Mr Pugazendhi on SOPA Adjudication was not believable. Mr Hanam's breach was committed despite notification in the Supreme Court Practice Directions 2013 (1 January 2013 release) that it was part of the duty of an advocate and solicitor to advise on ADR options. Considering the financial predicament of P&P and the features of SOPA Adjudication (being an affordable and speedy resolution process for construction disputes), it was incumbent on Mr Hanam to have discussed the use of SOPA Adjudication. Mr Hanam also failed to discuss ADR options in Suit 1167. Mr Hanam could not rely on his previous advice to Mr Pugazendhi on ADR options in Suit 1255 as an excuse for his omission. Suit 1167 was for payment of a compromised sum which was substantially different from the circumstances in Suit 1255 and it required a fresh evaluation of the ADR options. Another opportunity to evaluate ADR options with Mr Pugazendhi was when Mr Hanam received a letter from the Singapore Mediation Centre dated 18 April 2018 on the availability of mediation to resolve Suit 1167. There was no evidence that he advised Mr Pugazendhi on ADR options or SOPA Adjudication in Suit 1167: at [94] to [103].
(6) The DT also found that Mr Hanam failed to advise Mr Pugazendhi on two counts. There was no evidence to support his claim that he did otherwise. As regards the final two counts concerning Mr Hanam's failure to properly advise, the first count pertained to his conduct in resisting HC/SUM 431/2017 (“SUM 431”) on the basis of irrelevance and in filing an appeal against the decision. Mr Hanam's advice was not proper. He merely asserted that the documents were irrelevant. It was also erroneous given that the documents sought were referred to in P&P's own pleadings. The second count pertained to his advice on the commencement of DC 1043 whereupon he failed to provide proper advice. In the main, this was due to his lack of understanding of the legal character of the Suit 1255 Settlement: at [104] to [118].
(7) Due cause was established for the Second and Third Charges. The question was whether Mr Hanam's conduct amounted to improper conduct or practice as an advocate and solicitor. This was clearly the case in respect of the instances where he acted without authority. On these counts, his behaviour was based on an ill-conceived and troubling interpretation of the rules that there was no need for him to have obtained Mr Pugazendhi's consent or instructions because the latter would not have been in the position to do so. As regards the remaining grounds (ie, failure to discuss ADR options, failure to advise, and failure to properly advise), the substance of the events that developed in the course of Mr Hanam's handling of P&P's dispute with Kori stemmed from his failure to advise and, in instances where advice was provided, providing ill-informed advice due to a lack of evaluation, inadequate preparation and even a lack of understanding of the law including failing to advise on alterative courses of action or the potential consequence of an action or application. Mr Hanam's failures were sustained and prolonged over a period of close to three years. They were symptomatic of his cavalier disregard for the rules of professional conduct. The gravamen of his misconduct was the clearest when considered in its full factual context, with his missteps resulting in more litigation and costs incurred than required: at [123] to [130].
What was the appropriate sanction to be imposed
(8) A fine of $15,000, as sought by Mr Hanam, was not appropriate. While cases involving grossly improper conduct without dishonesty or deceit would attract a monetary penalty, the outcome was ultimately dependent on the overall circumstances of the case and the gravity of the misconduct. Mr Hanam's argument for a fine relied on a selective summary of his misconduct to downplay the severity of his breaches. His position was also not supported by the case authority he relied on: at [134] to [138].
(9) A sanction of suspension was clearly appropriate considering Mr Hanam's misconduct and the overall gravity of the situation. However, the C3J disagreed with the length of suspension sought by the Law Society, that being between three and a half years and four and a half years. The Law Society's position was premised on Mr Hanam's breach of...
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