Re Cashin Howard

JurisdictionSingapore
Judgment Date06 July 1989
Date06 July 1989
Docket NumberOriginating Summons No 992 of 1987
CourtHigh Court (Singapore)
Re Cashin Howard

[1989] SGHC 63

Wee Chong Jin CJ

,

L P Thean J

and

F A Chua J

Originating Summons No 992 of 1987

High Court

Legal Profession–Professional conduct–Disciplinary proceedings–Client alleged solicitor demanded fees in excess of agreement and withheld party and party costs–Solicitor disputed fees in excess and entitlement of client to party and party costs–Complaint by client to Law Society drafted by advocate and solicitor–No misconduct disclosed in complaint–Whether “complaint of the conduct” under s 82 (1) Legal Profession Act (Cap 161, 1985 Rev Ed)–Section 82 (1) Legal Profession Act (Cap 161, 1985 Rev Ed)–Words and Phrases–“Complaint of the conduct”–Section 82 (1) Legal Profession Act (Cap 161, 1985 Rev Ed)

The respondent was a lawyer and senior partner of a local law firm. The complainant lodged a complaint to the Law Society of Singapore against the respondent alleging that the respondent had purported to demand for payment in excess of what was agreed, and wrongful appropriation of taxed party and party costs (“the taxed costs”) which lawfully belonged to the complainant. The taxed costs had been paid to the respondent by the solicitors of the party whose winding-up petition the complainant had sought the respondent's help in resisting, and the complainant made the first demand for the taxed costs only two years after knowing about the payment. The complaint was drafted by the complainant's friend, an advocate and solicitor. The correspondence between the respondent and the complainant showed that there was a dispute as to the precise terms of the agreement which they had entered into, and the respondent was of the view that there was no obligation to pay the taxed costs to the complainant, and indeed, to do so would be to share costs with a client in a way that was prohibited by the Legal Profession Act (Cap 161, 1985 Rev Ed) (“the Act”). The Law Society believed the complainant, found that the complaint disclosed a matter for inquiry, charged the respondent firstly with paying the taxed costs into his firm's office account in contravention of r 3 of the Solicitors' Accounts Rules 1967 (GN No S 119/1967), and secondly, the taxed costs were contrary to an oral agreement purporting to limit solicitor and client costs and thus in contravention of ss 108 and 109 (1) of the Act. The respondent was ordered to show cause.

Held, discharging the order nisito show cause:

(1) A complaint concerning a civil dispute simpliciter between solicitor and client, unaccompanied by any allegation of misconduct, did not constitute a “complaint of the conduct” within s 82 (1) of the Act. Generally, allowance ought to be given for the possibility that language used by a lay complainant, who could not be expected to make a specific charge in legal language or to refer to the provisions of the Act, might not disclose a “complaint of the conduct” yet was a matter for inquiry. However, if the language was drafted by an advocate and solicitor who had explained the language to the lay complainant, such allowance would not be made: at [14], [27] and [28].

(2) The conclusion of the Committee as to whether there was a “complaint” was against the weight of the evidence and without foundation. There was, in the present case, no valid “complaint” against the respondent within the meaning of s 82 (1): at [29].

(3) Whilst those findings dealt with the case, the court considered the three charges. The first charge was that in breach of r 3 of the Solicitors' Accounts Rules 1967 the respondent paid taxed costs into the office account of Murphy & Dunbart. Whilst it was true that in certain appropriate circumstances, the negligence of the solicitor in relation to a client account (eg failure to exercise adequate supervision) may amount to professional misconduct, if it was inexcusable and was such as to be regarded as deplorable by his fellows in the profession, such cases involved an element of personal neglect or misdoing on the part of the solicitor charged. In the present case, it was common ground that the respondent had nothing to do with the payment into the office account instead of the client account of Murphy & Dunbar: at [30], [34] and [35].

(4) The evidence did not support the second charge that the respondent contravened an oral agreement limiting costs to $25,000: at [68].

(5) The third charge, that the respondent had wrongfully appropriated the taxed costs which lawfully belonged to the complainant, was contingent upon the first charge, that is, the wrongful payment of taxed costs into the office account, and were one and the same. It followed from the finding on the first charge that the appropriation, if any, was by the person who made the payment into the office account, and not the respondent: at [69].

Advocate and Solicitor, In re An [1950] MLJ 113 (folld)

Harmon v Park (1880) 6 QBD 323 (folld)

Myers v Elman [1940] AC 282 (folld)

Solicitor, Re A [1972] 1 WLR 869; [1972] 2 All ER 811 (refd)

Legal Profession Act (Cap 161, 1985Rev Ed)s 82 (1) (consd);ss 80,86 (1), 108,109 (1)

Solicitors' Accounts Rules1967 (GN No S 119/1967)r 3

Kevin Lightman QC (Murphy & Dunbar) for the respondent

Cheong Yuen Hee (Y H Cheong) for the Law Society of Singapore.

Judgment reserved.

Wee Chong Jin CJ

(delivering the judgment of the court):

1 The respondent is an advocate and solicitor of the Supreme Court and a senior partner of the firm of M/s Murphy & Dunbar. In these proceedings, the respondent is ordered to show cause why he should not be dealt with under s 80 of the Legal Profession Act (Cap 161) (“the Act”).

2 The facts, as far as they are undisputed, are these. Sometime in early December 1981, the complainant, one Mdm Chua Mui Ying (“the complainant”) instructed the respondent to act for a company known as M Y Holdings (Pte) Ltd (“the company”) of which the complainant, at all material times, was a director and principal shareholder. The respondent was instructed to resist a winding-up petition (“the petition”) presented against the company by the administrators of the estate of Albert P C Wong (“Wong's estate”), the holder of one subscriber share in the company.

3 The respondent accepted the instructions and assigned one Mr Clive Heng (“Heng”), a legal assistant in Murphy & Dunbar, to assist him in the matter. Thereafter, the complainant attended Heng at his office on several occasions in January, February and March 1982 to give instructions and to receive legal advice. On 4 March 1982, the complainant received a letter dated 3 March 1982 from Heng. The letter is as follows:

You will appreciate that we have done a certain amount of work for you in connection with the above matter and it is a practice of our firm to request payment of fees as the matter progresses. We would request that you remit to us a sum of $2,000 to account to our costs and disbursements incurred to date.

4 The complainant made payment on 5 March 1982. On 15 April 1982, Heng wrote another letter to the complainant, requesting payment of the further sum of $8,000 “to account of our costs”. The material paragraph of the letter is as follows:

… Our Mr Heng has on your last visit to our office spoken to you on the question of our costs. You will be aware that it is our practice to ask for payment to account of our costs as the matter progresses. We will therefore ask that you pay us a further sum of $8,000 to account of our costs.

5 The complainant paid the sum on or about 22 April 1982. The petition was heard on 26, 27 and 28 April 1982, when it was adjourned part-heard to 21 and 22 October 1982, when it was dismissed with costs.

6 The events following the dismissal of the petition were acutely in dispute, and they form the basis of the present disciplinary proceedings against the respondent. In the statement of case by the Law Society, it was alleged as follows:

  1. 12 After the said petition was dismissed with costs as aforesaid, Heng orally advised the complainant that the petitioners might appeal to the Court of Appeal. In early November 1982 Heng advised the complainant that the petitioners had filed their notice of appeal on 1 November 1982. The complainant again wanted to know what the solicitor and client costs would be up to and including the disposal of the appeal. Heng then orally agreed on behalf of the respondent/Murphy & Dunbar with the complainant that the solicitor and client costs would be $25,000. As the complainant had already paid $10,000 to account, there would be a balance of $15,000 payable.

  2. 13 Following the said oral agreement, the respondent and/or Heng wrote a letter which reduced it to writing dated 26 November 1982 to the complainant requesting payment of the said balance of $15,000. The complainant paid the said sum of $15,000 on or about 27 December 1982 and received Murphy & Dunbar's receipt therefor together with their covering letter, both dated the same day.

  3. 14 Section 112 (1) (now s 109 (1)) of the Legal Profession Act (Cap 161) provides that in contentious business where there is an agreement in writing between a solicitor and his client respecting the amount of his costs, either by gross sum or otherwise, the costs recoverable by the client from any other person in respect of the same matter shall not exceed the amount payable by the client to his own solicitor under the agreement.

  4. 15 Contrary to the terms of the said agreement between the respondent and the complainant, and the provisions of s 112 (1) (now s 109 (1)) of the Legal Profession Act the respondent taxed or caused to be taxed the party and party costs in respect of the said petition at $35,121.75 on 7 December 1982.

  5. 16 The petitioners paid the taxed costs on or about 13 January 1982 to the respondent.

  6. 17 Rule 3 of the Solicitors' Accounts Rules 1967 provides that every solicitor who holds or receives client's money shall without delay pay such money into a...

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3 cases
  • Deepak Sharma v Law Society of Singapore
    • Singapore
    • High Court (Singapore)
    • 26 May 2016
    ...responsibility in so far as your complaint was concerned. The RC notes the observation of the Court of Three Judges in Re Cashin Howard [1989] 3 MLJ 129 is apposite: “The Committee, however, concluded that, because there was ‘a personal duty’ on every solicitor or ‘joint responsibility’ in ......
  • Iskandar bin Rahmat v Law Society of Singapore
    • Singapore
    • Court of Appeal (Singapore)
    • 23 November 2021
    ...as to be regarded as deplorable by the fellows in the profession” was also relied upon in Lim Kiap Khee at [20] and in Re Cashin Howard [1989] 2 SLR(R) 82 at [34]. Secondly, such negligence or want of skill can be founded on a cumulative account of matters, taking into account the entire fa......
  • TAN SRI DR. MUHAMMAD SHAFEE ABDULLAH vs TOMMY THOMAS
    • Malaysia
    • Federal Court (Malaysia)
    • Invalid date
    ...11 [22] In the context of section 99(1), a more accurate definition would be an allegation of misconduct: see also Re Howard E Cashin (1989) 3 MLJ 129, where a complaint is defined as an accusation of misconduct. In Majlis Peguam v Cecil Wilbert Mohanaraj Abraham [2019] 5 CLJ 139 (“Cecil Ab......
1 books & journal articles
  • Biomedical Law and Ethics
    • Singapore
    • Singapore Academy of Law Annual Review No. 2008, December 2008
    • 1 December 2008
    ...in the legal profession should be studied: see, for example, In re an Advocate and Solicitor[1950] 16 MLJ 113; and Re Howard E Cashin[1989] 3 MLJ 129 (both cases holding that the disciplinary process should not be used as a platform to resolve civil disputes). The High Court”s decision on t......

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