Law Society of Singapore v Lau See Jin Jeffrey

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 06 February 2017
• Neutral Citation: [2017] SGHC 30
• Plaintiff Counsel: Ramesh Selvaraj and Lim Jun Rui, Ivan (Allen & Gledhill LLP)
• Docket Number: Originating Summons No 7 of 2016
• Date: 06 February 2017
• Hearing Date: 06 February 2017
• Subject Matter: Legal Profession,Disciplinary Proceedings
• Published date: 23 February 2017
• Defendant Counsel: and Chandra Mohan K Nair (Tan Rajah & Cheah) and Wee Pan Lee (Wee, Tay & Lim LLP)
• Citation: [2017] SGHC 30
• Court: Court of Appeal (Singapore)
• Year: 2017

Sundaresh Menon CJ (delivering the judgment of the court ex tempore):

Originating Summons No 7 of 2016 (“C3J/OS 7/2016”) is an application made by the Law Society of Singapore (“the Law Society”) for an order pursuant to s 94(1) read with s 98(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”) that Lau See Jin Jeffrey (“the Respondent”), an advocate and solicitor, be sanctioned under s 83(1) of the LPA.

C3J/OS 7/2016 arises out of a complaint dated 6 March 2015 (“the Complaint”) that was made by Ms Serene Ng Phei Li (“the Complainant”) to the Law Society against the Respondent. The Complaint states that in early April 2014, the Respondent entered into an oral contingency fee agreement with the Complainant to pursue a claim in medical negligence against the Complainant’s doctors. Under the alleged contingency fee agreement, the Respondent was to be paid 20% of the damages awarded to the Complainant, which could further increase to 25% in the event the Complainant obtained more than $5m in damages.

Background

It is undisputed that the Complainant approached the Respondent for legal advice and representation in connection with an intended medical negligence claim after being introduced to him by a mutual friend, Mr Lee Tong Guan (“Mr Lee” and also known as “Steven Lee”). The Complainant and Respondent met a number of times thereafter to further discuss the case. Some of these discussions were held in the presence of Mr Lee.

The crucial meeting, where the alleged contingency fee agreement was entered into, took place at the Respondent’s office on 4 April 2014 (“the 4 April 2014 Meeting”). It is undisputed that the issue of legal fees was discussed during the meeting and that only the Complainant and Respondent were involved in that discussion.

The Complainant’s evidence is that shortly before the 4 April 2014 Meeting, she had conveyed to Mr Lee her concerns about having to incur substantial legal fees to pursue the claim. In response, Mr Lee suggested that the Complainant offer a share of the damages to the Respondent in lieu of paying regular legal fees. On this basis, she would only have to pay legal fees if she was successful in her claim. The Complainant claims that in accordance with this, she duly proposed at the 4 April 2014 Meeting that the Respondent take a 15% share of the damages but the Respondent negotiated for a 20% share instead. The Respondent then said that if he managed to obtain more compensation for the Complainant, that is a sum greater than $5m, the Respondent would expect to get a greater share of the damages awarded. The Complainant also claims that the Respondent informed her that he would start work on her case immediately after she provided him with a $5,000 deposit which was to cover disbursements. The Complainant agreed to pay the $5,000 deposit.

As against this, the Respondent denies the existence of the contingency fee agreement and claims that the percentages, which he accepts he mentioned to the Complainant during the 4 April 2014 Meeting, namely 20% to 25% of the claim, were just “parameters” for calculating his fees. The Respondent also claims that he told the Complainant that he would “try to cap the fees” (emphasis added) at 20% of the claim amount (or 25% if the claim amount was higher). The Respondent further relies on the Complainant’s payment of the $5,000 deposit as evidence to contradict the existence of the contingency fee agreement.

It is undisputed that the Complainant went to the Respondent’s office with Mr Lee to hand the Respondent a cheque of $5,000 being the deposit that had been sought as well as documents relating to her claim on 11 April 2014. The Respondent suffered a stroke in late April 2014 and was on medical leave until 15 May 2014. But even after this, the Complainant claims that she had difficulty contacting the Respondent for updates on her case.

On 22 July 2014, frustrated with the abject lack of progress, the Complainant decided to terminate her engagement with the Respondent. She sent an email to the Respondent to terminate his engagement and seek a refund of the $5,000 deposit. The last paragraph of the email alludes to the contingency fee agreement between the parties:

As per our verbal agreement in Mar 2014, we have both agreed upon that you will not charge me any legal fees except for disbursement fees and only upon winning the case then a 20% of the sum awarded will go to you. This verbal agreement will be void with the closure of this case. [emphasis added]

The Respondent denied the agreement in his response. Between August 2014 and March 2015, the Complainant made a police report and sent several complaint letters to the Law Society seeking the return of the $5,000 deposit. These documents also make mention of the contingency fee agreement. On 6 March 2015, the Complaint was made to the Law Society.

The Disciplinary Tribunal (“the DT”) comprising Mr Jimmy Yim SC and Ms Carrie Seow heard the matter on 9 and 10 March 2016. By its written decision dated 8 July 2016, the DT found that the Respondent had entered into a contingency fee agreement with the Complainant in breach of s 107(1)(b) and s 107(3) of the LPA. The DT further determined that there was cause of sufficient gravity for disciplinary action pursuant to s 83(2)(b) of the LPA.

Our decision

The issues before us are: whether due cause for disciplinary action has been shown; and if so, what the appropriate sanction should be.

Whether due cause for disciplinary action has been shown

We begin by reiterating that contingency fee agreements remain expressly prohibited under s 107(1)(b) and s 107(3) of the LPA (see Law Society of Singapore v Kurubalan s/o Manickam [2013] 4 SLR 91 (“Kurubalan”) at [33] to [35]). We are also mindful of the standard for appellate intervention as we stated in Law Society of Singapore v Manjit Singh s/o Kirpal Singh and another [2015] 3 SLR 829 (“Manjit Singh”) citing Law Society of Singapore v Lim Cheong Peng [2006] 4 SLR(R) 360 at [13]. In Manjit Singh, we held at [41] that “an appellate court does not lightly interfere with findings of fact by a lower court or disciplinary committee unless their conclusions are clearly against the weight of evidence”.

The DT considered the evidence and found that the Law Society had proved the charge against the Respondent beyond a reasonable doubt. In our judgment, the DT was correct in its finding.

The evidence of the Complainant was consistent and clear as to the following: First, she was concerned about fees and the cost of the intended litigation. Second, she had discussed these concerns with Mr Lee who was known to both the Complainant and the Respondent. Mr Lee had suggested that the Complainant offer the Respondent a share of the damages instead of paying regular legal fees. This part of the Complainant’s evidence is undisputed by the Respondent. Third, in the light of these concerns and Mr Lee’s suggestion, when the Complainant met the Respondent on 4 April 2014, she suggested a 15% contingency fee to which he counter-proposed a 20% arrangement. Her evidence is that the Respondent also suggested that if he managed to obtain damages of more than $5m, he wanted a greater share of the damages.

The Complainant’s evidence is corroborated by her subsequent actions. In our judgment, the Complainant’s email to the Respondent on 22 July 2014 offers strong corroboration of the contingency fee agreement given its contemporaneous nature and underlying purpose, which was to terminate the engagement of the Respondent and seek a refund of the $5,000 deposit. There was no reason, in this context, for the Complainant to fabricate a story to the effect that they had agreed on a contingency arrangement. In the circumstances, we find it improbable that the Complainant would have made up the contingency fee arrangement described in her email on 22 July 2014 (see [8] above).

Mr Chandra Mohan Nair (“Mr Nair”), counsel for the Respondent, submits that the Respondent denies the arrangement and therefore that we should give him the benefit of the doubt. We point out that the fact that the...