Law Society of Singapore v Andre Ravindran Saravanapavan Arul

• Jurisdiction: Singapore
• Judgment Date: 07 October 2011
• Date: 07 October 2011
• Docket Number: Originating Summons No 170 of 2011
• Court: High Court (Singapore)

Law Society of Singapore

Plaintiff

and

Andre Ravindran Saravanapavan Arul

Defendant

[2011] SGHC 224

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

VK Rajah JA

Originating Summons No 170 of 2011

High Court

Legal Profession—Professional conduct—Grossly improper conduct—Gross overcharging—Amendment to s 83 (1) Legal Profession Act (Cap 161, 2001 Rev Ed) providing for additional sanction of monetary penalty—Appropriate sanction—Section 83 (1) Legal Profession Act (Cap 161, 2001 Rev Ed)

Words and Phrases—‘To charge fairly for work done’—Rule 2 (2) (c) Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed)

The respondent (‘the Respondent’) was retained by Management Corporation Strata Title Plan No 1886 (‘MCST 1886’) to recover about $2 m which had been misappropriated from it. After 13 months, the Respondent had not sent out any letter of demand to any potential defendants and his retainer was terminated. He billed MCST 1886 $226,308.12 for his work. The Law Society of Singapore's (‘the Law Society's’) expert witness assessed the reasonable fee for the same to be around $75,000 instead. The disciplinary tribunal (‘the DT’) found the Respondent guilty of overcharging in a manner which amounted to grossly improper conduct within the meaning of s 83 (2) (b) of the Legal Profession Act (‘the LPA’) and determined that cause of sufficient gravity for disciplinary action existed. It also found the Respondent's timesheets to be unsatisfactory. The Law Society accordingly instituted these show cause proceedings.

Before the court, the Respondent accepted that he had overcharged MCST 1886 in a manner within the meaning of s 83 (2) (b) of the LPA; and that he should have proposed the taxation of his bills. He undertook to refund $33,725 to MCST 1886 (keeping for himself $75,000 in fees and $572.35 in disbursements) and asked to be fined (and not suspended) . Although the Law Society accepted that the Respondent was not dishonest, it argued that he should be suspended for nine months on the basis of precedent cases. However, these precedents were decided before s 83 (1) of the LPA was amended in 2008 to allow the court of three judges to impose a monetary penalty of up to $100,000 (in addition to the penalties of censure, suspension and disbarment) . This was the first case of this nature since the amendment.

Held, granting the application - imposing a penalty of $50,000 on the respondent and censuring him:

(1) Even where a client had agreed to a tariff of charges on a time basis, overcharging could occur if the number of hours billed for had been inflated or if unnecessary work had been billed for: at [30].

(2) What was a ‘fair’ charge (as provided in Rule 2 (2) (c) of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed) ) (‘the LP (PC) R’) depended on all the circumstances of the case, including the standing of the lawyer concerned, the nature of the legal work, the time spent on the work, etc. A fair charge was merely a general guide to a lawyer not to grossly overcharge his client to the extent that it would ‘affect the integrity of the profession’ (see r 38 of the LP (PC) R) : at [31].

(3) Not all cases of overcharging amounted to grossly improper conduct. Where overcharging did amount to grossly improper conduct, not all such instances were deserving of suspension from practice, much less of disbarment: at [34].

(4) Prior to 1 December 2008 (when the maximum fine of $100,000 was introduced) , most solicitors guilty under the then version of s 83 of grossly improper conduct arising from overcharging clients were punished by suspensions for periods ranging usually from three to six months as their offences were too serious for mere censures. The new maximum fine of $100,000 was introduced to enable the court of three judges to impose fines for disciplinary offences that were too serious for mere censures, but insufficiently serious to deserve suspension from practice. Overcharging amounting to grossly improper conduct was this type of disciplinary offence and thus the starting point for a proportionate penalty for it was a fine and not suspension from practice. A fine, especially a heavy fine, together with payment of the costs of the proceedings, was generally an adequate punishment. However, repeat offenders would be penalised more severely: at [35] and [36].

(5) If the gross overcharging was redolent of cheating or deceiving the client, the penalty might be enhanced to suspension from practice. In the most egregious cases where cheating was involved (such as where there were fabricated bills or invoices for work which had not in fact been done) , the penalty might even be enhanced to disbarment. However, the nature of overcharging would not normally call for such a drastic punishment when the penalty of suspension was available: at [38] and [39].

(6) In the present case, there was no allegation of cheating. Further, the Law Society accepted that the Respondent's conduct leaned more towards being unethical rather than dishonest. There was no reason to disagree with the Law Society's expert witness' objective evaluation that a sum of around $75,000 would have been a reasonable fee for the Respondent's work. Hence, in determining the appropriate sanction, the court evaluated the extent of the Respondent's overcharge by reference to that sum: at [40].

(7) Taking into account all the circumstances of the case, including the Respondent's undertaking to refund $33,725 to MCST 1886, the court ordered that the Respondent be fined $50,000; be censured (for failing to keep proper timesheets, failing to offer taxation and taking an indefensible stance below on the charges against him) ; and pay the costs of the Law Society for the proceedings before itself. The court also affirmed the DT's order that the Respondent pay the Law Society's costs for the proceedings before the DT: at [43].

[Observation: Even if, pursuant to s 109 of the LPA (for non-contentious business) and s 111 read with s 113 (for contentious business) , the court were to cancel an agreement on costs on the ground that it was unfair or unreasonable, it did not follow that the overcharging constituted grossly improper conduct: at [29].

Taxation under the Rules of Court (Cap 322, R 5, 2006 Rev Ed) was the most objective and conclusive way of determining the amount of fees a solicitor was entitled to. It provided the best means for a lawyer to avoid having to face a disciplinary charge for overcharging. A solicitor who offered to have his bill of costs taxed was unlikely to have the intention to overcharge. If the bill was not taxable, the prudent course was for the solicitor to negotiate a mutually acceptable amount or even offer mediation. All solicitors had an obligation to inform their clients that their bills of costs could be taxed under the law. In this case, if the Respondent had offered MCST 1886 taxation, the DT might well have concluded that his overcharging did not constitute grossly improper conduct: at [32], [33] and [41].

Vis-à-vis future complaints of overcharging, the Law Society should not pursue such complaints without more (not even with the aid of expert evidence) if the bill in question was taxable. Instead, it should advise or require the aggrieved party to have the bill taxed first. The results of the taxation would then enable the Law Society to assess whether the complaint of overcharging merited investigation: at [41].]

D'Alessandro v Legal Practitioners Complaints Committee P 9/1996 (9 August 1996) [1996] HCA Trans 300 (refd)

Han Ngiap Juan, Re [1993] 1 SLR (R) 135; [1993] 2 SLR 81 (distd)

Lau Liat Meng, Re [1992] 2 SLR (R) 186; [1992] 2 SLR 203 (distd)

Law Society of Singapore v Low Yong Sen [2009] 1 SLR (R) 802; [2009] 1 SLR 802 (distd)

Law Society of Singapore, The v Andre Ravindran Saravanapavan Arul [2011] SGDT 2 (refd)

Law Society of Singapore, The v Tan Thian Chua [1994] SGDSC 11 (refd)

Lin Jian Wei v Lim Eng Hock Peter [2011] 3 SLR 1052 (refd)

Wee Soon Kim Anthony v Law Society of Singapore [2007] 1 SLR (R) 482; [2007] 1 SLR 482 (refd)

Legal Profession Act (Cap 161, 2001 Rev Ed) s 83 (1) (consd) ;ss 83, 83 (2) (b) , 83 (2) (h) , 98 (1) , 109, 111, 113

Legal Profession (Amendment) Act 2008 (Act 19 of 2008)

Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed) rr 2 (2) (c) , 38 (consd)

Rules of Court (Cap 322, R 5, 2006 Rev Ed)

Philip Fong and Vikneswari d/o Muthiah (Harry Elias Partnership LLP) for the applicant

Francis Xavier SC, Mohammed Reza and Avinash Pradhan (Rajah & Tann LLP)

,

Shashi Nathan and Tania Chin (Inca Law LLC) for the respondent.

Judgment reserved.

Chan Sek Keong CJ

(delivering the judgment of the court) :

Introduction

1 This is an application by the Law Society of Singapore (‘the Law Society’) made under s 98 (1) of the Legal Profession Act (Cap 161, 2001 Rev Ed) (‘LPA’) for Mr Andre Ravindran Saravanapavan Arul (‘the Respondent’) to show cause as to why he should not be dealt with pursuant to s 83 (1) of the LPA. The Law Society's application arises from the findings of the disciplinary tribunal (‘the DT’) that the Respondent was guilty of the disciplinary offence of overcharging his client in a manner which amounted to grossly improper conduct within the meaning of s 83 (2) (b) of the LPA, and that cause of sufficient gravity for disciplinary action existed under s 83 of the LPA: see The Law Society of Singapore v Andre Ravindran Saravanapavan Arul [2011] SGDT 2 (‘the Report’) .

Background

2 The Respondent is an advocate and solicitor of the Supreme Court of 22 years' standing. He is the sole proprietor of the law firm known as ‘M/s Arul Chew & Partners’ (‘ACP’) . He has had in his employment for the last ten years or so one Adrian Kho Ngiat Sun (‘Kho’) . Kho graduated with a law degree from the National University of Singapore and subsequently...