Legal Profession

• Citation: (2017) 18 SAL Ann Rev 619
• Author: LAI Yew Fei* LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore); Partner, Rajah & Tann Singapore LLP.
• Publication year: 2017
• Date: 01 December 2017
• Published date: 01 December 2017

Introduction

21.1 This review covers 21 cases, comprising one case on ad hoc admission of foreign counsel, one decision by the Court of Appeal, two decisions by the High Court, five decisions by the Court of Three Judges and 12 decisions by the Disciplinary Tribunal (“tribunal”). Of the disciplinary cases, three resulted in advocates and solicitors being struck off the roles and three were suspended from practice. The disciplinary cases reviewed touched on a range of conduct, spanning from failure to conduct proper know-your-client checks, false declaration of income tax, to failure to protect clients' confidential information.

21.2 Notably, 2017 saw three cases involving allegations that advocates and solicitors had wrongfully certified and/or procured certification that the authorised person had personally witnessed signatures to documents such as affidavits, powers of attorney and lasting powers of attorney. The allegations were found to be unfounded in one case and made out in two others.

Ad hoc admission

21.3 Re Harish Salve1 involved the first application by a senior advocate from the Indian Bar for ad hoc admission. Mr Harish Salve, a senior advocate of India, sought to be admitted to represent 20 plaintiffs in two sets of proceedings for the setting aside of a final arbitral award. Mr Salve sought admission to address the Singapore court only on foreign law issues, specifically the disputed issues on Indian law. The issues relating to Singapore would be addressed by Singapore counsel.

21.4 The High Court found that the case was not an appropriate one for the admission of the applicant. In so far as there were issues of Indian law, Indian law had to be proved as a fact and that court has always handled this evidential inquiry by way of foreign law experts

rather than submissions by foreign counsel. The court observed that while it was not saying that foreign counsel should never be admitted to argue disputed questions of foreign law, it would set an undesirable precedent to allow foreign counsel to be admitted to argue cases when foreign law is to be proved.2

21.5 On appeal, the Court of Appeal, on 28 January 2018, allowed the appeal and admitted Mr Salve.3

Disciplinary proceedings

Cases involving striking off the rolls

Deceiving or misleading the court, failure to avoid unnecessary adjournments, subversion of course of justice, etc

21.6 In Law Society of Singapore v Udeh Kumar s/o Sethuraju,4 the Court of Three Judges struck off a senior solicitor of about 29 years standing for various breaches of his professional obligations.

21.7 The court considered a total of 11 charges against the respondent, which the court divided into three broad categories:5

(a) [Group 1 Charges. This set of charges] concerned the alleged breach of r 55(b) of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) (“PCR”) for failing to use his best endeavours to avoid unnecessary adjournments, expense and waste of the court's time …

(b) [Group 2 Charges. This set of charges concerned] the alleged breach of r 56 of the PCR in deceiving or misleading the court by making false and inaccurate statements …

(c) [Group 3 Charges. This set of charges related] to events that culminated in the Respondent advising his client to obtain a medical certificate under false pretences in a seeming attempt to excuse the client's absence from court in circumstances that would amount to a subversion of the course of justice …

21.8 With regard to the Group 1 Charges, the respondent claimed inter alia that the reason for his conduct generally lay in his commitment to matters involving his other clients.6 The court held that

this could not be relied on by the respondent to justify or excuse his being late for or absent from court hearings. The respondent should “either have declined to accept multiple court engagements on the same day or requested adjournments long before the hearings”, and had either of these not been possible, “he should have arranged for other counsel to deal substantively with the matters in question”.7 It was even less acceptable for the respondent to justify his requests for adjournments on the basis of his lack of preparedness.8 The respondent's pattern of behaviour revealed “an utter disregard for the legitimate expectations and interests of all the other stakeholders in the justice system over a sustained period of time”, and this amounted to improper conduct under s 83(2)(b) of the Legal Profession Act9 (“LPA”), and was sufficiently serious to warrant the imposition of sanctions under s 83(1) of the LPA.10

21.9 With regard to the Group 2 Charges, the court first clarified that deceiving or misleading the court includes the “passive concealment of material facts, the presentation of half-truths, and the active articulation of untruths and/or misrepresentation of facts”,11 and the mens rea required is whether the false representation was made (a) knowingly, (b) without belief in its truth, or (c) recklessly, without caring whether it is true or false.12 After examining the relevant facts, the court was satisfied that the respondent, in making each of the statements complained of, had been “fraudulent in his dealings with the court”.13 The misconduct outlined in the Group 2 Charges constituted improper conduct under s 83(2)(b) of the LPA and due cause was made out for this set of charges.14

21.10 With regard to the Group 3 Charges, the events were essentially as follows: the respondent had failed to inform a client of a court mention in which the client was due to plead guilty, and the client's absence from court led to a warrant of arrest being issued against the client. The respondent then failed to advise the client to surrender himself once the warrant of arrest had been issued against the client. The respondent subsequently advised the client to obtain a medical certificate under false pretences to excuse the client from the hearing

which the client missed.15 The court found that the respondent's conduct was grossly improper under s 83(2)(b) of the LPA and was also satisfied that due cause was found in relation to the Group 3 Charges.16

21.11 On the issue of sentencing, the court found no material mitigating factors,17 and noted the following aggravating factors highlighted by The Law Society of Singapore (“Law Society”):

(a) the respondent's seniority;18 and

(b) the respondent's past conduct, that is, a string of previous disciplinary offences which the respondent had previously been convicted of, including several similar disciplinary offences of being late for or absent from court hearings and causing unnecessary adjournments.19

21.12 The court held that any form of dishonesty would “almost invariably lead to an order for striking off”.20 From the court's review of the case law, there are at least three categories of cases in which dishonest conduct has resulted in the striking off of an advocate and solicitor:

(a) The first is when the advocate and solicitor has been convicted of a criminal offence which implies a “defect of character” rendering him unfit for the profession.21

(b) The second is where the advocate and solicitor fails to deal appropriately with his client's money or the firm's accounts.22

(c) The third (and most pertinently for the present case) category in which a striking off order will be made is where the advocate and solicitor is fraudulent in his dealings with the court.23

21.13 The court held that the charges in this case revealed “a gross failure by the Respondent to apprehend even the most fundamental

duties of an advocate and solicitor to the court” and ordered that the respondent be struck off the roll of advocates and solicitors.24

21.14 As a result of the order for the striking off of the respondent in this case, the Law Society did not proceed with the other pending disciplinary proceedings against the same respondent before the tribunal.25

False declarations of income tax

21.15 The Law Society of Singapore v Ong Cheong Wei26 and Law Society of Singapore v Ong Cheong Wei27 are respectively the tribunal and Court of Three Judges decisions in respect of the same complaint. The respondent in this case, a solicitor of about 22 years' standing,28 made false declarations of his income for the years of assessment 2006, 2007, 2008 and 2009 with intent to evade tax, and pleaded guilty to and was convicted of two offences under s 96(1)(b) of the Income Tax Act29 (“ITA”).30

21.16 Before the tribunal, the respondent admitted to the amended charge against him, namely that the two criminal convictions against the respondent for his offences under the ITA implied a defect of character making the respondent unfit for his profession within the meaning of s 83(2)(a) of the LPA. The tribunal endorsed the position in the past cases that not every violation of criminal law implied a defect of character thereby making the solicitor an unfit person for the profession, and it is the nature of the offence and the circumstances under which it was committed, and in turn the punishment imposed, which are likely to be determinative.31 The tribunal found that the offence for which the respondent was convicted deals with a situation where a person wilfully with intent to evade tax makes a false statement or entry in an income tax return, which is an act of dishonesty, and the conviction of the respondent for the offence implied a defect of character which made him unfit for his profession.32

21.17 The following are findings of the tribunal in respect of the points put forward by the respondent in mitigation:

(a) As regards the respondent's claim that he filed the false returns in his personal capacity and not in his professional capacity, the tribunal found that the capacity in which the offence was committed was irrelevant.33

(b) As regards the respondent's claim that the complainant was his ex-wife who took revenge on him...