LITIGATION AND THE CLIENT’S RIGHT TO MAKE AN INFORMED CHOICE

• Author: Jeffrey PINSLER SC LLB (Liverpool); LLM (Cambridge); LLD (Liverpool); Barrister (Middle Temple); Advocate & Solicitor (Singapore); Professor, Faculty of Law, National University of Singapore.
• Published date: 01 December 2008
• Date: 01 December 2008

Clients cannot be expected to make decisions regarding the initiation of legal proceedings, or to choose the appropriate steps to take in the course of such proceedings, unless they have been provided with the necessary information and advised of the viability of the courses open to them. This article examines the advocate and solicitor’s responsibilities in this respect in the light of recent judicial observations and the Legal Profession (Professional Conduct) Rules.

I. Introduction

1 This article was prompted by the judgment of the Court of Appeal in Lock Han Chng Jonathan (Jonathan Luo Hancheng) v Goh Jessiline (“Jonathan Lock”),1 a case which involved extensive litigation in the Subordinate Courts, High Court and Court of Appeal resulting in cost liabilities out of all proportion to the sums in dispute. The author’s purpose is not to comment or make any judgment on the manner of legal representation in this case,2 but to use it as a platform for a general examination of the advocate and solicitor’s responsibilities to his client regarding the latter’s ability to make an informed decision as to the appropriate course of action. This concern goes to the heart of justice because ultimately it is the client’s needs and goals which bring him to the law in the first place and cause him to engage an advocate and solicitor. Put another way, it is the client’s interest in access to justice which is the raison d’être of the civil process.

II. Summary of facts and findings in Jonathan Lock

2 The action resulted from a road traffic accident involving a collision between the respondent’s motor car and the appellant’s

motorcycle. The appellant claimed compensation in the amount of $375 from the respondent. This was disputed and the matter went to mediation at the Primary Dispute Resolution Centre (“PDRC”). Eventually, the respondent agreed to pay $187.50 to the appellant. Costs were fixed at $1,000 and reasonable disbursements were to be taxed or agreed. Issues then arose as to whether the proper sum for disbursements should be $290.35 or $230 (a difference of $60.35) and the content of a draft order of court which had been made by the judge conducting the mediation (“the settlement judge”). The appellant’s lawyer issued a writ of seizure and sale in respect of the amount which had been awarded by the court and there was further controversy concerning the costs of execution. Subsequently, an application was made to set aside the writ of seizure and sale on the basis that the judge had not made a court order but had merely recorded a settlement. This contention was rejected by the Deputy Registrar and by the District Judge on appeal. The respondent was successful in his appeal to the High Court, which concluded that the settlement judge had no power to direct the entry of a consent order or judgment, or to make other consequential orders in this capacity under the Subordinate Courts Act.3 Applications concerning the costs incurred in the litigation continued to be made. On further appeal (by which time the appellant had replaced his lawyer), the Court of Appeal reversed the decision of the High Court and ruled that the court dispute resolution process contemplates that the terms of a court-mediated settlement would be embodied in an order of court and that the settlement judge has the power to make orders of court in connection with, and following the successful resolution of, the dispute.4

3 In its brief grounds of decision, which were issued prior to its formal judgment,5 the Court of Appeal made the following observations on the escalation of costs in the course of the litigation:6

This case should never have come this far. It would not, if the solicitors in this case had acted reasonably in the interests of their clients. A dispute involving a puny sum of about $60 escalated into contests of wills between two solicitors, resulting in wastage of judicial time and unnecessary expenditure in terms of court fees and disbursements which exceeded $100,000 even before the date of this hearing. We have, in fact, been shown a letter dated 13 July 2007 from the appellant’s former solicitor stating that his fees up to the stage of his discharge from these proceedings are in the region of $150,000. We are troubled by this.

This is an incredible case. We have not seen one like it in all our years in the law. It has brought no credit to counsel involved and the legal system as a whole. All that the appellant wanted from the defendant was $375 being $285 for the cost of repairs to his motorcycle and $90 for loss of use, for which he eventually agreed to settle at $187.50. For this, he was put at risk of having to pay a sum in excess of $100,000 in legal fees.

4 After receiving information from the appellant in the course of the proceedings, the Court of Appeal stated that it would direct the Registrar of the Supreme Court to refer this matter to the Council of the Law Society for the purpose of enquiring into whether the appellant’s former lawyer had: (a) acted with the appellant’s knowledge or consent in commencing enforcement proceedings in relation to the settlement; (b) acted in the best interests of the appellant in seeking to enforce the settlement agreement by way of a writ of seizure and sale; (c) kept the appellant informed or had explained to him the risks involved in taking all the steps he did in these proceedings; and (d) acted inappropriately in indicating in a letter that he would be sending a bill of costs for $150,000 to the appellant upon his discharge as counsel in the appeal.7

III. Advocate and solicitor’s responsibility to enable his client to make an informed decision

5 An advocate and solicitor is obliged to take into account various considerations before he advises his client to initiate or defend a legal suit or (if the action has been commenced), whether to take particular steps in the course of the proceedings. Does the advice specifically meet the client’s goals or needs? Are there other options which would be in the interest of the client? Take, eg, the situation of an employer whose highly skilled employee has decided to unilaterally cease employment in breach of contract. The employer informs his lawyer that his only concern is that the employee should return to work because the latter has a fundamental role in the business. The lawyer’s priority should be to bring the parties together through negotiation or mediation rather than polarise their positions through contentiousness and litigation. Furthermore, as the employer has no interest in damages and would not generally be entitled to the remedy of specific performance (which, in any event, being an order of compulsion, may not be conducive to a comfortable future relationship), litigation would not be a viable option.

6 The advocate and solicitor must also explain the system of costs in litigation, the risk of losing a case in court, the possibility that he may not be able to enforce a potential judgment against the defendant

(depending on his circumstances), and the fees and disbursements which must be paid in the course of proceedings. He would have to point out that certain obligations are imposed on the client as a party to the proceedings including, eg, the disclosure of adverse documents and the process of cross-examination which he would have to face if he testifies. A client may not be prepared to accept the risk of publicity which may be generated by the case. He might be concerned that his action may lead to counterclaims which he would not be prepared to litigate. Where a client has good case for damages but the amount of his claim is relatively small compared to the costs which are likely to be incurred, the advocate and solicitor should explain that “litigation may not pay”. And where proceedings have been commenced, the advocate and solicitor has a continuing duty to minimise the client’s expenditure to all necessary steps consistent with the client’s purposes. Clients may have to be informed about the emotional stress which is normally incidental to the adversarial process. These are just some examples of the circumstances the advocate and solicitor must ponder if he is to “act in the best interests of his client” pursuant to r 2(2)(c) of the Legal Profession (Professional Conduct) Rules (“LP(PC)R”).

7 Accordingly, the advocate and solicitor has the professional responsibility to ensure that the client is able to make an informed choice in respect of how he wishes to proceed.8 The most specific rule concerning this principle is r 40 of the LP(PC)R, which states:

An advocate and solicitor shall in appropriate cases evaluate with a client whether the consequence of a matter justifies the expense or the risk involved.

One of the key phrases in this rule is “evaluate with a client”. It connotes a process of reasoning which entails a full and frank discussion with the client for the purpose of determining what course(s) of action should be taken. The rule implies that other options must be compared so that the client may make an informed choice. It is not for advocate and solicitor to conduct the evaluation independently and then to simply convey his thoughts to the client. Both he and the client must be involved in the decision-making process. Evaluation also involves explanation when necessary to ensure that the client is fully cognisant of the advantages and disadvantages of each approach. The word “risk” is not elaborated upon in the rule but should be interpreted beyond the possibility of an adverse judgment to include any possible disadvantage or adversity which the client might have to experience. Examples of risks which may be involved have been addressed in the preceding paragraphs.

8 The phrase “the consequence of a matter” in r 40 is not elaborated upon. The rule literally applies to the case as a whole (“the matter”) rather than specific courses of action which might be open to the...