Law Society of Singapore v Rasif David

• Jurisdiction: Singapore
• Judgment Date: 30 January 2008
• Date: 30 January 2008
• Docket Number: Originating Summons No 1204 of 2007 (Summons No 4059 of 2007)
• Court: High Court (Singapore)

Law Society of Singapore

Plaintiff

and

Rasif David

Defendant

[2008] SGHC 14

Andrew Phang Boon Leong JA

,

V K Rajah JA

and

Tan Lee Meng J

Originating Summons No 1204 of 2007 (Summons No 4059 of 2007)

High Court

Legal Profession–Show cause action–Professional conduct–Grossly improper conduct–Breach–Importance of values in legal profession–Principles governing sanction of striking off–Unauthorised and improper withdrawals of moneys from client account by lawyer–Failure to maintain proper records of transactions of client account –Lawyer absconding after misappropriating client's moneys–Whether show cause proceedings could proceed in lawyer's absence–Whether lawyer's conduct constituting grossly improper conduct–Whether lawyer should be struck off roll–Sections 83 (2) (b) and 85 (2) Legal Profession Act (Cap 161, 2001 Rev Ed)–Rules 11 (1) and 11 (2) Legal Profession (Solicitors' Accounts) Rules (Cap 161, R 8, 1999 Rev Ed)

The respondent was an advocate and solicitor of the Supreme Court of Singapore of some 17 years' standing, and was, at the material time, the sole proprietor of M/s David Rasif & Partners (“DRP”). In March 2006, DRP was retained by a married couple (“the Clients”) to act for them in their purchase of a property (“the Property”). For purposes of the purchase of the Property, the Clients issued a cheque dated 23 May 2006 for the sum of $10,658,240.00 in favour of DRP.

On or about 26 May 2006, pursuant the respondent's instructions, the sum of $10,653,240.00 was withdrawn from the client account of DRP (“the Client Account”) and transferred to another of DRP's client accounts, which was a fixed deposit account (“the Fixed Deposit Account”), leaving a balance of $1,065,537.14 in the former account. A few days later, the sum of $10,653,240.00 was deposited back into the Client Account, again on the respondent's instructions. Thereafter, there were numerous unauthorised withdrawals of large sums of money from the Client Account between 31 May 2006 and 2 June 2006. These withdrawals, which totalled $11,327,408.00, were all signed off by the respondent, who subsequently absconded.

In January 2007, a disciplinary committee appointed by the Law Society (“the Disciplinary Committee”), chaired by Mr Roderick Edward Martin, was appointed by the Honourable the Chief Justice pursuant to s 90 of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“the Act”) to hear and investigate the respondent's misconduct. A total of 58 charges pursuant to rr 3, 7 (1) (a), 7 (2), 11 (1) and 11 (2) of the Legal Profession (Solicitors' Accounts) Rules (Cap 161, R 8, 1999 Rev Ed) (“SAR”) and s 83 (2) (b) of the Act were preferred against the respondent. However, at the commencement of the hearing before the Disciplinary Committee, the Law Society proceeded with only 30 of the 58 charges, which were committed during the period between 24 May 2006 and 2 June 2006. At the end of the hearing, the Disciplinary Committee found that all the charges were made out on the evidence and, accordingly, determined that there was cause of sufficient gravity for disciplinary action to be taken against the respondent under s 83 of the Act. This, in turn, led to the show cause proceedings against the respondent and the present application for a final order to be made under s 83 (1) of the Act.

At the hearing before the court, the Law Society proceeded with only 17 out of the 30 charges dealt with by the Disciplinary Committee. Of these 17 charges, one concerned the unauthorised withdrawal of moneys from the Client Account (“the misappropriation charge”) and the remaining 16 charges (“the SAR charges”) concerned instances where the respondent had failed to record transactions involving clients' moneys in the required books and accounts in contravention of rr 11 (1) and 11 (2) of the SAR. The respondent was not present at the hearing nor was he represented by counsel.

Held, granting the application and striking the respondent off the roll:

(1) Notice of the present application by the Law Society had been served on the respondent by way of advertisement inThe Straits Times and e Jus News, the electronic version of the Law Society's newsletter. The absence of the respondent from the present proceedings was deliberate given his conduct in absconding with the misappropriated funds coupled with the repeated unsuccessful attempts to contact him. Accordingly, the hearing could proceed in the respondent's absence pursuant to s 104 of the Act: at [21].

(2) Grossly improper conduct in the context of s 83 (2) (b) of the Act had been described as conduct which was dishonourable to the solicitor concerned as a man and dishonourable in his profession. In so far as the misappropriation charge was concerned, there was more than sufficient evidence, proved beyond a reasonable doubt, that the respondent's actions fell directly within the ambit of the “grossly improper conduct” contemplated by s 83 (2) (b) of the Act. As the sole signatory of the Client Account, the respondent had withdrawn large sums of moneys from that account, without authorisation or instructions from any client of DRP, for his own purposes and benefit: at [23]and [24].

(3) In respect of the SAR charges, substantial sums of moneys had been received into or withdrawn from the Client Account, but none of those transactions had been recorded in any of DRP's client account ledgers. As at the latest date on which the ledger documents were updated, the Client Account was in debit to the sum of $5,000.00. This was clear and compelling documentary evidence that the respondent had failed to maintain proper accounting records as required by rr 11 (1) and 11 (2) of the SAR. Although the respondent's omissions to comply with rr 11 (1) and 11 (2) of the SAR took place over just a few days, the omissions related to substantial sums of money that were the subject of deliberate and systematic misappropriation by the respondent. Such blatant contravention of the SAR amounted to grossly improper conduct by the respondent in the discharge of his professional duty within the meaning of s 83 (2) (b) of the Act: at [25]and [26].

(4) In approaching the issue of the penalty which ought to be imposed on the respondent, it would be useful to note r 2 (2) of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed). One should also bear in mind the philosophy underlying the disciplinary process set out in s 83 of the Act. As aptly summarised in Law Society of Singapore v Tham Yu Xian Rick [1999] 3 SLR (R) 68 at [18], disciplinary action under s 83 of the Act served three functions, namely: (a) punishment of the errant solicitor for his misconduct; (b) deterrence against similar defaults by other like-minded solicitors in the future; and (c) protection of public confidence in the administration of justice. The public interest in deterring both the individual solicitor and other like-minded solicitors from similar conduct was paramount. Public interest, in fact, coveredall aspects of the disciplinary process (including that of reinstatement to the roll of advocates and solicitors): at [27] to [30].

(5) The sanction of striking off was generally intended to prevent a repeat of the disciplinary offence in question as well as to protect the public at large from errant solicitors. The respondent's misappropriation of clients' moneys clearly involved proven dishonesty. The fact that neither criminal proceedings nor penalties had been effected against the respondent was immaterial, especially given the fact that he had absconded. In instances where solicitors had dishonestly misappropriated their clients' moneys, they had inevitably been struck off the roll. A solicitor of the respondent's seniority and standing should have known better. The gravity of the offences was compounded by the fact that the respondent had committed them in his professional capacity, thereby abusing the trust which his clients had placed in him. His conduct fell abysmally below the required standards of integrity, probity and trustworthiness demanded of the legal profession. For these reasons, the respondent should be punished for his misconduct by being struck off the roll of advocates and solicitors of the Supreme Court of Singapore: at [31], [32], [35] and [38].

(6) The proper management of client accounts was critical to every law practice because of the trust placed by the client in the law practice that was representing him to safeguard and properly apply his money. It was settled law that the failure to maintain the requisite accounting records would inevitably result in a finding of professional misconduct. Although the respondent's misappropriation of his clients' moneys was itself sufficient reason to strike him off the roll of advocates and solicitors, the (additional) contravention of the SAR by the respondent would also merit a striking-off order. In the first place, the respondent's contravention of the SAR was inextricably connected to his misappropriation of his clients' moneys. Further, this particular contravention was, in and of itself, both systemic and flagrant: at [40] to [42].

(7) Section 85 of the Act envisaged three ways in which disciplinary proceedings against an advocate and solicitor could be commenced. It was significant that the phrase “in his professional capacity” was no longer found in s 85 (2) and, for that matter, s 85 (1) of the Act. (This phrase had also been removed from what were now ss 85 (3), 85 (5) and 85 (6) as well as ss 86 (1) and 92 of the Act.) The rationale for this was because the provision also envisaged complaints about other serious misconduct on the part of the advocate and solicitor which brought into disrepute the profession. In the final analysis, a lawyer's professional conduct should flow not from fear of punishment under statutory enactments such as s 85 (2) of the Act, but, instead, from the innate desire to uphold the moral...