Law Society of Singapore v Lun Yaodong Clarence

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Tay Yong Kwang JCA,Woo Bih Li JAD
• Judgment Date: 28 October 2022
• Docket Number: Originating Application No 3 of 2022
• Court: High Court (Singapore)

Law Society of Singapore

and

Lun Yaodong Clarence

[2022] SGHC 269

Sundaresh Menon CJ, Tay Yong Kwang JCA and Woo Bih Li JAD

Originating Application No 3 of 2022

Court of Three Judges

Legal Profession — Disciplinary proceedings — Sentencing — Lawyer purporting to act as supervising solicitor for two practice trainees although he was not qualified to act as one under Legal Profession (Admission) Rules 2011 — Lawyer utterly failing to check regulatory requirements governing his ability to act as supervising solicitor before practice trainees commenced their training — Lawyer insisting that trainee continue performing work for clients even after discovering that neither he nor anyone else in law practice was eligible supervising solicitor — Which sanction was appropriate — Section 83(1) Legal Profession Act 1966 (2020 Rev Ed) — Legal Profession (Admission) Rules 2011

Legal Profession — Professional conduct — Breach — Law practice management notifying Law Society of Singapore of members of its management under r 35(2) Legal Profession (Professional Conduct) Rules 2015 — De facto director forming part of law practice's “management” under r 36(2) Legal Profession (Professional Conduct) Rules 2015 — Whether de facto director formed part of law practice's management — Rules 35(2) and 36(2) Legal Profession (Professional Conduct) Rules 2015

Legal Profession — Show cause action — Lawyer purporting to act as supervising solicitor for two practice trainees although he was not qualified to act as one under Legal Profession (Admission) Rules 2011 — Lawyer utterly failing to check regulatory requirements governing his ability to act as supervising solicitor before practice trainees commenced their training — Lawyer insisting that trainee continue performing work for clients even after discovering that neither he nor anyone else in law practice was eligible supervising solicitor — Whether lawyer's breach of Legal Profession (Admission) Rules 2011 warranted disciplinary action — Legal Profession (Admission) Rules 2011

Held, suspending the respondent for a term of 18 months:

Whether due cause was shown in respect of the 2nd Charge

(1) Due cause was shown in respect of the 2nd Charge: at [75].

(2) The breach of r 18(1)(b) of the Admission Rules constituted, for the purposes of s 83(2)(j) of the LPA, a contravention of the LPA: at [43].

(3) The respondent's conduct plainly warranted disciplinary action. It affected, on two levels, the public for whose protection the rules on training and qualification of lawyers existed: at [44].

(4) At one level, a trainee had performed work for the respondent's clients for more than six weeks without due supervision. This state of affairs was plainly unfair and prejudicial to the respondent's clients. They were entitled to legal advice and representation from qualified lawyers who, if at all, were assisted by trainees who were properly supervised by an eligible supervising solicitor. As a matter of law, client work should not have been done by trainees at all as practice trainees and could not be legally done by them in that capacity. This would not change even if the respondent had reviewed that work and such review could not transform such work into work that met the interests of the clients in question: at [45], [46] and [50].

(5) The respondent's breach also affected the public by compromising the training of lawyers. A practice trainee could be an employee of a law practice, but he or she was a particular type of employee. The main purpose of that employment was to provide the training necessary to imbue aspiring lawyers with the character and competencies expected of an advocate and solicitor. Once the respondent knew that neither he nor anyone else in the law practice was able to provide such supervision, it was improper and mischievous of him to insist that the trainee continue working: at [46], [47] and [56].

(6) The respondent's misconduct also warranted disciplinary action because it threatened confidence in the legal profession's integrity, competence and diligence. His misconduct suggested that rules which served critical purposes were not in fact viewed and applied with adequate rigour and commitment: at [52] and [54].

(7) The respondent demonstrated a gross degree of negligence in failing to conduct any checks on the regulatory requirements for becoming a supervising solicitor prior to 6 January 2020. His conduct was even more reprehensible given his awareness that there were rules affecting his ability to become a director of a law corporation. Yet, he did not bother to check if there were similar rules governing his ability to take on trainees: at [55] and [57].

(8) That there might have been other stakeholders who played a part in detecting breaches of the Admission Rules did not absolve the respondent of his own failures. Each advocate and solicitor bore personal responsibility to ensure that the applicable rules of practice were strictly adhered to in all areas of his practice. In addition, the fact that there were other stakeholders to ascertain the completion of satisfactory training did not in any way address the harm to trainees who underwent training without knowing that the solicitor supervising them was not qualified; or the harm to clients who were at the receiving end of their work: at [70].

(9) Further, the respondent's attempts to shift the blame to Mr Goh signalled a lack of remorse: at [71].

(10) It was not clear what the first charge (“1st Charge”) and third charge (“3rd Charge”) added to the 2nd Charge. The 1st Charge seemed to be a form of secondary or vicarious liability which was unnecessary to invoke in a case like the present where the primary liability was not contested. And the 3rd Charge was based on the same misconduct as the 2nd Charge. Neither of these charges was factored into the decision on the appropriate sentence: at [86] to [88].

What was the appropriate sanction for the offence in the 2nd Charge

(11) This was not a case in which striking off the roll was warranted. The respondent's misconduct did not attest to a character defect or a fundamental lack of respect for the law. Further, the dishonour caused to the legal profession was not to a degree warranting striking off the roll: at [91] and [92].

(12) However, a suspension was more appropriate than a monetary penalty because of several aggravating factors. First, the respondent's culpability was moderately high due to his abject failure to check the regulatory requirements for acting as a supervising solicitor. Second, his insistence that Mr Lim continue working even after discovering that there was no eligible supervising solicitor in Foxwood indicated a blatant disregard for the interests of his clients and also of Mr Lim. Third, the respondent caused real harm to his clients and to Mr Lim. Fourth, the respondent had not shown remorse for his actions: at [90] and [93] to [95].

(13) An 18-month suspension adequately reflected the gravity of the aforesaid aggravating factors. It also accounted for relevant mitigating factors: namely, that this was the respondent's first disciplinary proceeding and he was unlikely to re-offend: at [97] to [101].

(14) That said, the respondent should appreciate that the suspension was lenient because the DT had erred in two respects, and this had not been appealed by the applicant: at [102].

[Observation: Although the applicant did not proceed with the fourth charge, once the respondent had been aware by 7 January 2020 that no one else in Foxwood was qualified to be a supervising solicitor, he should have informed Ms Sunil that he would have had to terminate her contract in any event. Instead, he reminded her on 9 January 2020 to make payment of her salary in lieu of notice: at [51].

If the DT had accepted the accounts of two advocates and solicitors, who testified that they had confronted the respondent about his eligibility to act as a supervising solicitor before Mr Lim and Ms Sunil commenced their TCs, its decision to disregard their evidence was puzzling. Their evidence had a very material impact on assessing the respondent's culpability: at [58] to [67].

The meaning of “management” in r 36(2) of the Legal Profession (Professional Conduct) Rules 2015 (“PCR”) had to be the same as defined in r 35(8) of the PCR: at [77].

If Foxwood had fulfilled its obligation to notify the Law Society of the members of its management under r 35(2) of the PCR (“r 35(2) notification”), pursuant to r 35(8)(b), the management could only comprise lawyers named in the r 35(2) notification. On the other hand, if no notification under r 35(2) had been made, then “all the partners or directors of the law practice” would be deemed to form part of management (r 35(8)(c) of the PCR). Thus, it was only under r 35(8)(c), if at all, that de facto directors or partners could form part of the law practice's management: at [79].

However, there was no evidence as to whether either r 35(8)(b) or r 35(8)(c) of the PCR applied in this case. Rule 35(8)(c) could not be engaged to deem the respondent to be treated as a member of Foxwood's management: at [82], [84] and [85].]

Case(s) referred to

Law Society of Singapore v Chiong Chin May Selena[2005] 4 SLR(R) 320; [2005] 4 SLR 320, HC (folld)

Law Society of Singapore v Chiong Chin May Selena[2013] SGHC 5 (folld)

Law Society of Singapore v Ismail bin Atan[2017] 5 SLR 746 (folld)

Law Society of Singapore v Ong Ying Ping[2005] 3 SLR(R) 583; [2005] 3 SLR 583 (refd)

Law Society of Singapore v Ooi Oon Tat[2022] SGHC 185 (folld)

Law Society of Singapore v Ravi s/o Madasamy[2016] 5 SLR 1141 (folld)

Law Society of Singapore v Ravindra Samuel[1999] 1 SLR(R) 266; [1999] 1 SLR 696 (folld)

Law Society of Singapore v Seow Theng Beng Samuel[2020] SGDT 2 (refd)

Law Society of Singapore v Seow Theng Beng Samuel[2022] SGHC 112 (folld)

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