Legal Profession
| Citation | (2020) 21 SAL Ann Rev 688 |
| Date | 01 December 2020 |
| Publication year | 2020 |
| Published date | 01 December 2020 |
| Author | Khelvin XU1 LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore); Partner, Rajah & Tann Singapore LLP. |
22.1 This review covers:
(a) cases relating to ethics and professional responsibility,2 which touch on conflicts of interest, statements to the media, and respect to the courts; and
(b) other cases relating to the legal profession,3 which cover the overall disciplinary framework, how privileged/confidential material and statements obtained in investigations should be handled, and the discharge of counsel right before trial.
22.2 One of the most high-profile matters involving the legal profession in 2020 was the Court of Three Judges' decision in Law Society of Singapore v Lee Suet Fern,4 which followed the disciplinary tribunal's (“DT”) decision.5 Much media attention arose from the fact that the matter involved the last will of the late Lee Kuan Yew (“LKY”).
22.3 The respondent solicitor is the daughter-in-law of LKY, and a very senior practitioner. Between 20 August 2011 and 2 November 2012, LKY executed six wills. Between 29 November 2013 and 3 December 2013, LKY discussed changes to his latest will with another very senior practitioner (“KKL”), who had prepared each of the six wills. LKY intended to execute a codicil to his latest will. On 16 December 2013 at 7:08pm, the respondent sent an e-mail to LKY, copying her husband (“LHY”, one of LKY's sons) and KKL (“the 7:08pm E-mail”).
22.4 In the 7:08pm E-mail, the respondent attached a draft will, under which LHY was a beneficiary. The respondent stated that this was “the original agreed Will”, that is, the first will dated 20 August 2011 (“the First Will”). LKY would have believed, when signing this will (“the Last Will”), that it was the same as the First Will. However, the Last Will differed from the First Will in a number of respects.
22.5 Subsequently, at 7:31pm, LHY sent an e-mail to the respondent, copying LKY and LKY's personal secretary (“the 7:31pm E-mail”). The 7:38pm E-mail was addressed to LKY, and LHY removed KKL from the list of addressees. LHY told LKY that he was unable to contact KKL and believed that she was away, that he did not think that it was wise for LKY to wait for KKL to be back before executing the Last Will, and that the respondent could arrange for one of her partners to come around with a copy of the Last Will for execution and witnessing. The respondent made arrangements, and LKY agreed to proceed with execution without waiting for KKL.
22.6 The Last Will was executed the next day. After execution, the respondent e-mailed KKL, informing her that the signing of the Last Will had “been dealt with already”. In this e-mail, the respondent did not include any of the e-mails which KKL had been excluded from.
22.7 About two weeks after the Last Will was executed, LKY prepared and executed a codicil. He passed away around a year later.
22.8 Subsequently, a complaint was made against the respondent, and the Law Society (“the LS”) preferred two charges against the respondent, relating to: (a) the respondent's alleged failure to advance LHY's interest unaffected by her or LHY's interest; and (b) her acting in connection with the significant gift that LKY intended to give LHY by will, and failing to advise LHY to be independently advised in respect of that gift. The DT held that there was cause of sufficient gravity for disciplinary action, and the LS applied to the Court of Three Judges for a striking-off order.
22.9 The Court of Three Judges considered the following issues:
(a) whether there was an implied retainer between the respondent and LKY;
(b) if so, whether the respondent's conduct was grossly improper conduct in the discharge of her professional duty, or improper conduct or practice as an advocate and solicitor;
(c) if there was no implied retainer, whether the respondent's conduct nevertheless amounted to misconduct unbefitting an advocate and solicitor; and
(d) if the respondent was guilty of any of the charges, the appropriate sanction.
22.10 As to whether there was an implied retainer, the question was whether, on an objective analysis of the circumstances from the perspectives of both parties, they should be taken to have understood and believed that they were in a solicitor–client relationship. The factors include:
(a) who is paying the solicitor's fees;
(b) who is providing instructions;
(c) whether a contractual relationship existed between the solicitor and the client in the past;
(d) whether express advice was given by the solicitor, and if so, whether the client relied upon the advice;
(e) if express advice was given, the nature of such advice;
(f) whether the solicitor asked the client to seek independent advice; and
(g) whether the solicitor rendered advice without qualification.
22.11 The Court of Three Judges held that there was an implied retainer from the respondent's perspective:
(a) LKY had informed LHY that he wanted to change his will and revert his will to his First Will. LHY then informed the respondent and asked her to liaise with KKL.
(b) The respondent retrieved, from her records, a copy of what she thought was a final draft of the First Will, and sent it to LKY to have it re-executed. She did not establish whether the draft was the same as the executed version of the First Will, but she assumed this to be so, and represented it as such to LKY when she forwarded the First Will to LKY by way of the 7:08pm E-mail and stated that it was “the original agreed Will which ensures that all 3 children receive equal shares” (“the Representation”). The Representation amounted to legal advice, but was false. The respondent did not inform LKY that she had not and could not have checked whether the draft will was the same as the executed First Will.
(c) As of this point in time, no implied retainer had arisen as KKL was on the list of addressees. The respondent had asked KKL to see to the engrossing of the draft Last Will attached to the e-mail, which suggested that the respondent believed, at that stage, that KKL would check the will against LKY's instructions before arranging for execution.
(d) However, KKL was then excluded from the 7:31pm E-mail, in which LHY told LKY, inter alia, that all that was left to be done was for witnesses to be arranged for the execution of the Last Will. The exclusion of KKL meant that LKY was being asked to proceed with execution on the basis of the Representation.
(e) The respondent aligned herself with LHY's position that all that remained was for LKY to sign the Last Will before two witnesses. This was despite the fact that had KKL been involved as LKY had originally intended, KKL would have to do a number of things, including verifying that LKY was being presented with a document that he actually wished to sign, and which the respondent could not have been sure of. Further, since LHY (the respondent's husband) was a significant beneficiary under the Last Will, she should not have continued to assist with the Last Will without KKL's involvement. Further, as LKY did not have the First Will before him at the time of signing, he would not have known whether the Last Will reproduced the First Will.
(f) The respondent then arranged for the signing of the Last Will, which supported the conclusion that the respondent had positioned herself as LKY's solicitor for the preparation and execution of the Last Will. She then informed KKL that the Last Will had been executed without informing KKL of the circumstances of execution, and saw to the safekeeping of an original copy of the Last Will (whereas original copies of the previous six wills had been kept by KKL).
(g) Based on these events, the respondent could not have reasonably thought that there was no implied retainer between LKY and her, at least to the limited extent of locating a copy of the executed version of the First Will, checking the draft Last Will against it, and ensuring that the draft Last Will was ready for execution.
22.12 However, the Court of Three Judges was not satisfied that from LKY's perspective, he would have objectively appreciated that the respondent was acting as his solicitor for the preparation and execution of the Last Will. It held that LKY had decided to proceed without waiting for KKL because he did not imagine that the respondent, his daughter-in-law, would misrepresent the contents of the draft Last Will to him, and he never stopped regarding KKL as his solicitor. Further, LKY had proceeded due to LHY's advice, and not because he regarded the respondent as his solicitor for the Last Will.
22.13 Given that a retainer could only be implied where all parties intended to enter into such a relationship, and LKY had no such intention, no implied retainer arose. As such, the respondent was acquitted of the charges which were predicated on a solicitor–client relationship.
22.14 Turning, however, to whether there was misconduct even if there was no implied retainer, the Court of Three Judges held that there was misconduct:
(a) The respondent was told by LHY, her husband (a significant beneficiary under the First Will), that LKY intended to revert to the First Will. She was tasked to find a copy of the First Will urgently. She found a draft of the First Will without verifying with LKY that he intended to revert to that will, and did not check whether this was the final draft.
(b) The respondent forwarded the draft to LKY and made the untrue Representation. She knew, or ought to have known, that she was not in a position to make the Representation, as she did not check if the draft First Will she located was the final draft, and she did not know if it was the same as the executed version. She could not have checked without KKL's assistance, but she acquiesced in the exclusion of KKL. Given her experience and the importance of wills, she should have known that she needed to check the veracity of the Representation. She knew that LKY would have believed and...
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