Law Society of Singapore v Lun Yaodong Clarence

CourtCourt of Appeal (Singapore)
JudgeSundaresh Menon CJ
Judgment Date28 October 2022
Neutral Citation[2022] SGHC 269
Citation[2022] SGHC 269
Published date02 November 2022
Hearing Date10 October 2022
Docket NumberOriginating Application No 3 of 2022
Plaintiff CounselSarbjit Singh Chopra and Roshan Singh Chopra (Selvam LLC)
Defendant CounselMark Jerome Seah Wei Hsien and Lau Wen Jin (Dentons Rodyk & Davidson LLP)
Subject MatterLegal Profession,Show cause action,Professional conduct,Breach,Pupillage
Sundaresh Menon CJ (delivering the grounds of decision of the court):

C3J/OA 3/2022 (“OA 3”) was an application by the Law Society of Singapore (“the applicant” or “Law Society”) for Mr Lun Yaodong Clarence (“the respondent”) to be sanctioned under s 83(1) of the Legal Profession Act 1966 (2020 Rev Ed) (“LPA”). From December 2019 to January 2020, the respondent purported to act as a supervising solicitor for two practice trainees (“trainees”). It was uncontroversial that at the material time, the respondent did not hold a practising certificate for five or more years in the seven years before he commenced the trainees’ supervision, which was a breach of r 18(1)(b) of the Legal Profession (Admission) Rules 2011 (“the Admission Rules”). In light of these events, the applicant brought five charges against the respondent. The Disciplinary Tribunal (“DT”) found cause of sufficient gravity in relation to the 1st, 2nd and 3rd charges (hereinafter the 1st to 3rd Charges individually). In OA 3, the applicant argued that due cause was shown in respect of these three charges. It did not challenge the DT’s dismissal of the 4th and 5th Charges in these proceedings.

Facts

The respondent was admitted as an advocate and solicitor on 10 April 2013. He was a lawyer of eight years’ standing at the time of the commencement of disciplinary proceedings in 2021.

The respondent joined Foxwood LLC in July 2019

The conduct forming the basis of the charges took place while the respondent was practising with Foxwood LLC (“Foxwood”). Before the respondent joined Foxwood on 8 July 2019, it only had a corporate practice. In early 2019, Mr Goh Kheng Haw (“Mr Goh”) was looking for a lawyer to start a dispute resolution practice in the firm. At all material times, Mr Goh was the sole director identified in Foxwood’s records with the Accounting and Corporate Regulatory Authority.

The respondent was introduced to Mr Goh and Mr Joshua Tan Yi Shen (“Mr Tan”), another lawyer in Foxwood, in early 2019 by a mutual contact. The respondent eventually signed a Partnership Agreement (“the PA”) with Foxwood. The PA charged the respondent with “starting, heading and maintaining the Dispute Resolution Division” in Foxwood. Clause 2 of the PA states as follows: DISPUTE RESOLUTION DIVISION CL [ie, the respondent] shall be responsible for starting, heading and maintaining the Dispute Resolution Division. CL shall have authority to, and be responsible for: accepting and opening files from new clients and commencing work on behalf of such clients, subject always to satisfactory client due diligence and conflicts check; signing off on all correspondences (only with respect to Dispute Resolution Division) for and on behalf of Foxwood; and hiring, employing and terminating DR Employees. In consideration of the above, Foxwood shall pay to CL a partnership fee, to be paid out from the office account (account number: [•]) only, as and when instructed by CL. The amount of partnership fee shall be determined solely by CL.

Clause 3.1 obliged the respondent to pay Foxwood a monthly “Administrative Fee” of $1,500 for each fee-earner in the Dispute Resolution Division. Clause 3.2 of the PA obliged the respondent to pay Foxwood a refundable “Deposit” for each employee in the Dispute Resolution Division. In consideration for the payment of the Administrative Fee and Deposit, Clause 3.4 required Foxwood to provide the respondent and the Dispute Resolution Division with services defined in Schedule 2 of the PA: Costs and use of the following software: Microsoft 365: Lawnet (two users); E-litigation; Waveapp; Clio; and Nuance Power PDF; Pay-roll and Human Resource services; Stationeries, such as name cards, pens and papers; Client onboarding and invoicing; Marketing efforts through digital and traditional means; General administrative work in relation to application for practicing certification, professional indemnity insurance, employee benefit

The respondent joined Foxwood as counsel. While the respondent was to establish and run the Dispute Resolution Division, he was not named as a director. It appears that this was because as at January 2019, the respondent did not fulfil the requirement in s 75C(1)(b) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA (2009 Rev Ed)”) (which is in pari materia with s 75C(1)(b) of the LPA) to be able to hold the position of a director of a law corporation: specifically, as Mr Goh noted in his affidavit of evidence-in-chief, since being admitted as an advocate and solicitor, the respondent had not been employed in a Singapore law practice for three continuous years, or for three out of a continuous period of five years. According to the respondent, it was intended that he would become an equity director after he “fulfilled [his] 3 years” or when he obtained an “exemption” from the Law Society.

The respondent recruited two trainees to Foxwood’s Dispute Resolution Division

On 7 and 11 October 2019, the respondent offered training contracts (“TCs”) to Mr Lim Teng Jie (“Mr Lim”) and Ms Trinisha Ann Sunil (“Ms Sunil”) respectively. Both Mr Lim and Ms Sunil were interviewed by the respondent. Their TCs were also signed by the respondent as “Head of Dispute Resolution” on behalf of Foxwood.

The respondent admits that when he began supervising Mr Lim and Ms Sunil, he was not qualified to act as their supervising solicitor because he did not hold a valid practising certificate for at least five years in the preceding period of seven years. He also accepts that he therefore breached r 18(1)(b) of the Admission Rules, which reads as follows:

Supervising solicitor

A solicitor shall not be the supervising solicitor of a practice trainee unless the solicitor — is in active practice in a Singapore law practice; and for a total of not less than 5 out of the 7 years immediately preceding the date of commencement of his supervision of the practice trainee, has in force a practising certificate.

Mr Lim commenced his TC with Foxwood on 16 December 2019. On that date, the respondent had only held a practising certificate for 2 years, 10 months and 16 days in the preceding seven years.

Ms Sunil commenced her TC on 2 January 2020. On that date, the respondent had only held a practising certificate for 2 years, 11 months and 3 days in the preceding seven years. On 5 January 2020, Ms Sunil told the respondent that she intended to leave immediately for personal reasons unconnected to the respondent’s inability to act as her supervising solicitor. During that conversation, the respondent informed her that she would have to pay a month’s salary in lieu of notice if she wanted to terminate her employment immediately. Ms Sunil’s last day of work at Foxwood was on 6 January 2020 and she made the payment on or around 11 January 2020.

The respondent had reminded Ms Sunil on 9 January 2020 to make payment of her salary in lieu of notice. In the 4thCharge, it is alleged that the respondent took unfair advantage of Ms Sunil by pressing her to pay this sum to Foxwood when it was “not recoverable by due process of law”. The DT dismissed this charge as it was unclear whether the respondent actually knew, on or around 5 and 9 January 2020, that Ms Sunil’s TC was a nullity because no lawyer in Foxwood was fit to be her supervising solicitor. As we shall shortly explain, the DT erred in this regard.

The respondent discovered that he was unable to act as a supervising solicitor

The respondent claimed that he learnt for the first time on 6 January 2020, that he was not qualified to act as a supervising solicitor for trainees. As we elaborate subsequently, what struck us was the respondent’s abject failure even to check whether he satisfied the regulatory requirements to act as a supervising solicitor before he engaged the two trainees.

According to the respondent, while waiting to board a flight from Perth to Singapore on 6 January 2020, the respondent decided to review the relevant legislation concerning trainees. He claimed that he had wanted to know how Foxwood was going to “take care” of trainees in the firm and what “procedures and compliance issues had to be followed.” He then discovered that he “did not appear to qualify to be a supervising solicitor.”

The respondent checked if Mr Goh or Mr Tan were qualified to act as Mr Lim’s supervising solicitor, but they too were not so qualified. The respondent then reached out to Mr Rayney Wong (“Mr Wong”) of Vision Law LLC to enquire if his firm was able to take in Mr Lim as a trainee. Mr Wong agreed to assist the respondent. On 14 January 2020, just over a week after discovering his breach of the Admission Rules, the respondent claimed that he presented several options to Mr Lim: Join Vision Law LLC as a practice trainee, with the freedom to join another law firm of his choice to continue his traineeship. Wait for the respondent to find placements in other law firms for Mr Lim. Mr Lim’s notice period in his TC with Foxwood would be waived. Join Vision Law LLC as a trainee, but spend four to six weeks with Foxwood to further his experience in commercial litigation. Join Foxwood as a paralegal, and if the respondent was able to qualify as a supervising solicitor in May 2020, commence the TC then. The 5th Charge alleged that the respondent misrepresented to Mr Lim that he would be able to act as a supervising solicitor by May 2020. The DT dismissed this charge as it was unclear whether the respondent had qualified this representation by saying that he needed to confirm the position with the Singapore Institute of Legal Education (“SILE”) and Law Society.

Mr Lim eventually secured a new TC with Wee Swee Teow LLP and resigned from Foxwood on 30 January 2020. As discussed with the respondent, Mr...

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