Legal Profession
| Citation | (2016) 17 SAL Ann Rev 584 |
| Date | 01 December 2016 |
| Published date | 01 December 2016 |
| Author | LAI Yew Fei LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore); Partner, Rajah & Tann Singapore LLP. |
| Publication year | 2016 |
[The author acknowledges the assistance of Lee Hui Yi in the preparation of this article.]
21.1 This review covers 17 cases, comprising two cases on ad hoc admission of foreign counsel, three decisions by the Court of Three Judges and 12 decisions by the Disciplinary Tribunal (“DT”). The disciplinary cases touched on a range of conduct, spanning from prohibited borrowing transactions and sexual indiscretions to chronically poor case management.
21.2 The year 2016 saw two applications for admission of Queen's Counsel under s 15 of the Legal Profession Act1 (“LPA”):
(a) In Re Wordsworth, Samuel Sherratt QC,2 the High Court admitted Mr Wordsworth QC to argue an application to set aside an investor-state arbitration award where the issues were observed to be “predominantly governed by principles of public international law”.3 The court added that if the only issue in that application involved a “fairly straightforward” due process challenge, “Mr Wordsworth's application would not pass muster”.4
(b) In Re Landau, Toby Thomas QC,5 the High Court declined to admit Mr Toby Landau QC to represent a company in its application to set aside an arbitral award.
21.3 The court in Re Landau, Toby Thomas QC helpfully summarised the analytical framework for ad hoc admission applications as follows:6
[The mandatory statutory conditions are: i]n any application for ad hoc admission, the court must first be satisfied that the applicant: (a) is a Queen's Counsel or holds an appointment of equivalent distinction in any jurisdiction; (b) does not ordinarily reside in Singapore or Malaysia but has come or intends to come to Singapore for the purpose of appearing in the case; and (c) has special qualifications or experience for the purpose of the case …
[As to the exercise of discretion based on notification matters: i]f the mandatory requirements are satisfied, the court will then decide whether to exercise its discretion to admit the applicant, having regard to the four matters set out in para 3 of the Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012). These are: (a) the nature of the factual and legal issues involved in the case; (b) the necessity for the services of a foreign senior counsel; (c) the availability of any local Senior Counsel or other advocate and solicitor with appropriate experience; and (d) whether, having regard to the circumstances of the case, it is reasonable to admit a foreign senior counsel for the purpose of the case …
21.4 The court in Re Landau, Toby Thomas QC also held that applications for ad hoc admission should contain “some detail … of … efforts to ascertain the availability of local counsel”.7
21.5 It is interesting to note that the court appeared to approach the issue of “necessity” for services of a foreign senior counsel from the perspective of its own ability to deal with the issue or its own familiarity with those areas of law:
(a) The court observed that “[i]t is increasingly the case [parties attempt] to expand the boundaries of natural justice as a ground for setting aside an award … However, our courts have resolved such novel challenges by applying the settled legal principles … There is no suggestion that the court hearing OS 185 cannot do likewise.”8
(b) The court opined that “[f]rom the court's perspective, there is no significant need for foreign counsel … there is ample local jurisprudence on applications to set aside arbitral awards
[and] it can be reasonably assumed that the court would be au fait with this area of law.”9
21.6 Since it is a given that the court will be the forum hearing the issue in question, and the application concerns whether there is a need to admit foreign senior counsel, the focus ought to be on the ability of local counsel to assist the court in determining the issue. The court's observations of its own familiarity with the issue are perhaps a reflection of the type of cases that come before the Singapore courts where Singapore counsel appear regularly and, hence, the ability of Singapore counsel to assist the court on the issue.
21.7 In many of the cases reported in 2016, there was a fair bit of focus on whether charges were framed under the correct subsection or limb of s 83(2) of the LPA, and the effect that it had on whether there was cause of sufficient gravity for disciplinary action under s 93(1)(c) of the LPA.
21.8 Sections 83(2)(b) and 83(2)(h) of the LPA provide that “due cause may be shown by proof that an advocate and solicitor”:
…
(b) has been guilty of fraudulent or grossly improper conduct in the discharge of his professional duty or guilty of such a breach of any usage or rule of conduct made by the Council under the provisions of this Act as amounts to improper conduct or practice as an advocate and solicitor; [and]
…
(h) has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession …
21.9 Section 93(1) of the LPA provides as follows:
Findings of Disciplinary Tribunal
93.—(1) After hearing and investigating any matter referred to it, a Disciplinary Tribunal shall record its findings in relation to the facts of the case and according to those facts shall determine that —
(a) no cause of sufficient gravity for disciplinary action exists under section 83;
(b) while no cause of sufficient gravity for disciplinary action exists under [that section, the advocate and solicitor] should be reprimanded or ordered to pay a penalty sufficient and appropriate to the misconduct committed; or
(c) cause of sufficient gravity for disciplinary action exists under [that section].
21.10 It is, thus, helpful to summarise the position restated and/or further clarified in the 2016 cases:
(a) Section 83(2)(b) of the LPA focuses on whether the respondent's conduct is “dishonourable to him as a man and dishonourable in his profession”. It has two limbs:
(i) The first limb relates to “fraudulent or grossly improper conduct in the discharge of his professional duty” and refers to more serious conduct than the second limb.
(ii) The second limb relates to “breach of any usage or rule of conduct made by the Council under the provisions of this Act as amounts to improper conduct or practice as an advocate and solicitor”.10
(b) Section 83(2)(h) of the LPA is a catch-all provision which can be invoked when the conduct does not fall within any of the other enumerated grounds but is, nevertheless, considered unacceptable.11
(c) Unlike “grossly improper conduct” in s 83(2)(b), “conduct unbefitting an advocate and solicitor” is not confined to misconduct in the solicitor's professional capacity but also extends to misconduct in the solicitor's personal capacity.12
(d) The fact that conduct may be “grossly improper”, cannot of itself automatically give rise to the determination that a “cause of sufficient gravity” exists under s 93(1)(c) of the LPA.13
(e) Breaches of s 83(2)(h) of the LPA are usually (though not invariably) suitable for a lesser sanction of a monetary penalty under s 93(1)(b) of the LPA.
21.11 Law Society of Singapore v Thirumurthy Ayernaar Pambayan14 follows from the DT's decision in The Law Society of Singapore v Thirumurthy Ayernaar Pambayan15 that there was cause of sufficient gravity for disciplinary action in respect of the respondent's breach of r 33(a) of the Legal Profession (Professional Conduct) Rules16 (“PCR”) which prohibits entering into borrowing transactions with clients. Despite the absence of aggravating factors, The Court of Three Judges held that a term of suspension was warranted in order to send a consistent and strong message to the profession that a breach of the rule against prohibited borrowing transactions was viewed seriously by the court and that a solicitor should under no circumstances borrow from his client unless any of the prescribed exceptions applied.17
21.12 The year 2016 saw three reported decisions touching on conflicts of interest, one decision by the Court of Three Judges regarding the conduct of a solicitor who acted for both parties to a transaction, and two DT determinations following from two Court of Appeal cases where the court expressed concern about the conduct of the solicitors who acted for multiple beneficiaries to an estate.
21.13 Law Society of Singapore v Leong Pek Gan18 is the decision of the Court of Three Judges following from the DT's determination in The Law Society of Singapore v Leong Pek Gan19 that the respondent's conduct of acting for parties on both sides of an unlicensed moneylending transaction and preferring the interests of the moneylender in the process gave rise to cause of sufficient gravity for disciplinary action.
21.14 The Court of Three Judges held that all of the following charges preferred against the respondent were proven beyond reasonable doubt:
(a) the r 28 charge: failing to advise the vendors of the potential conflict of interests arising from her acting for them as well as the buyer/buyer's principal in respect of the transaction;
(b) the r 25(b) charge: failing to advance her client's interest unaffected by the interest of any other person;
(c) the r 22 charge: duty of advocate and solicitor not to connive with or assist client in misconduct; and
(d) the r 11G charge: failing to disclose any matter which an advocate and solicitor knows or has reasonable grounds to suspect is referred to in s 39(1) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act20 (“CDSA”) to the Suspicious Transaction Reporting Office of the Commercial Affairs Department or an authorised officer under the CDSA.
21.15 The Court of Three Judges held that the respondent's conduct satisfied the test of “fraudulent or grossly...
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