Re Yap Peter

• Jurisdiction: Singapore
• Judgment Date: 25 September 1990
• Date: 25 September 1990
• Docket Number: Originating Summons No 830 of 1988
• Court: High Court (Singapore)

Re Yap Peter

[1990] SGHC 66

Wee Chong Jin CJ

,

Lai Kew Chai J

and

Yong Pung How J

Originating Summons No 830 of 1988

High Court

Legal Profession–Professional conduct–Breach–Solicitor retaining Queen's Counsel for criminal case–Queen's Counsel filing complaint to Law Society against solicitor for failure to pay fee–Law Society Disciplinary Committee finding solicitor guilty of grossly improper conduct in discharge of professional duty–Whether solicitor had shown cause why he should not be dealt with under Legal Profession Act (Cap 161, 1985 Rev Ed)–Sections 80 (2) (b), 80 (2) (h)and 95 (1) Legal Profession Act (Cap 161, 1985 Rev Ed)

The respondent advocate and solicitor Peter Yap (“Yap”) was found guilty by the Law Society's Disciplinary Committee (“DC”) of grossly improper conduct in the discharge of his professional duty by failing to pay to the complainant, Gilbert Gray QC (“Gray”), an agreed fee of 50,000 as raised in Gray's fee note. It was agreed that Gray be retained in respect of a criminal case involving one Tan Koon Swan (“TKS”).

Gray had filed a complaint to the Law Society against Yap who was faced with four charges: (a) that Yap failed to pay Gray his agreed fee of 50,000; (b) Yap retained Clive Nicholls (“CN”), another counsel, for TKS's case and did not inform Gray when he was subsequently retained; (c) Yap retained the complainant to defend TKS without first discharging CN; and (d) Yap lied to and misled the complainant into believing that CN was in fact not retained. The DC found Yap guilty on the first charge but not guilty on the last three as no evidence was led on them. The DC found that there was a binding agreement between Yap and Roy Kemp, as clerk, on behalf of Gray. It was also found that there was an understanding that if TKS's trial was not proceeded with, the brief fee would be renegotiated and Yap could ask for a reduction; Yap failed to inform Gray that his services would not be required; and Yap was obliged but failed to pay the agreed fee or even a reduced fee which the complainant was prepared to accept. The DC thereupon found that Yap's failure to pay the complainant's fee was sufficiently grave to warrant disciplinary action. An order nisi was made to discipline Yap under s 80 of the Legal Profession Act (Cap 161, 1985 Rev Ed) (“the Act”) and he was ordered to show cause why he should not be dealt with accordingly.

Held, discharging the order nisi to show cause:

(1) Solicitors should in their own interest and as a matter of prudence ensure that their lay clients had placed them in sufficient funds to meet their professional commitment unless they had good and sound reasons to believe that their lay clients were good for their money. It was a matter of judgment for them. Yap should also have informed Gray as soon as it became reasonably clear that his services were no longer necessary. However, his delay in doing so was inconsequential and this would only have increased the amount of the reasonable fee to be negotiated: at [31].

(2) In a contract of honour, it was as much a matter of honour to pay as it was no less a matter of honour to negotiate in the event of a condition subsequent coming to pass. Gray was therefore under a duty of honour to negotiate in view of the fact that the criminal case against TKS did not proceed to trial but he refused to accept that the criminal case was not proceeding to trial and he persisted, without any justification, in his allegation that another counsel had been retained to appear at the trial. However, the DC did not take into consideration Gray's failure and refusal to negotiate with Yap, despite finding it as a fact that there was such a term in the retainer, and misdirected itself by finding that Yap failed to pay the agreed fee of 50,000. In reality, however, the fact was that Gray did not keep his side of the contract of honour as he failed to negotiate in any meaningful way and that stood in the way of a settlement of a reasonable amount of fee. Therefore, Yap did not fail to pay the fee because it was never payable. Accordingly, Yap had conclusively shown why he should not be dealt with under the Act: at [31] and [33].

[Observation: There was a rule of law of long antiquity that there was no contractual relationship between a barrister and either the instructing solicitor or the client upon which he could sue. It was a contract of honour. It was surprising that Gray had instituted legal proceedings to recover his fees: at [11].]

Kennedy v Broun (1863) 13 CB NS 677; 143 ER 268 (folld)

Le Brasseur and Oakley, In re [1896] 2 Ch 487 (folld)

Morris v Hunt (1819) 1 Chit 544 (folld)

Rondel v Worsley [1969] 1 AC 191 (folld)

Legal Profession Act (Cap 161, 1985 Rev Ed) ss 80 (2) (b), 80 (2) (h), 95 (1) (consd)

Lee Han Yang (Lee & Partners) for the respondent

K S Rajah (B Rao & K S Rajah) for the Law Society of Singapore.

Lai Kew Chai J

(delivering the grounds of judgment of the court):

1 The respondent, an advocate and solicitor, was charged before and found guilty by the Disciplinary Committee of the Law Society of grossly improper conduct in the discharge of his professional duty within the meaning of s 80 (2) (b) or, alternatively, s 80 (2) (h) of the Legal Profession Act (Cap 161, 1985 Rev Ed) (“the Act”). The Disciplinary Committee found him guilty of having failed to pay the agreed fee of 50,000 to a Queen's Counsel as raised by the QC's fee note of 4 April 1986. In the course of these proceedings before us, it was incontrovertibly clear that the Disciplinary Committee had found that a condition of the retainer, as agreed between the respondent and the clerk of the QC, was that if the criminal case for which the QC was retained did not proceed to trial, the parties would then negotiate the amount of fees payable. In the event, the criminal case did not proceed to trial as the lay client, one Tan Koon Swan, eventually pleaded guilty to the offence of criminal breach of trust. As it transpired, and it was beyond dispute, neither the QC nor his clerk had attempted to negotiate with the respondent in any meaningful way. We came to the conclusion that the QC did not keep his side of the agreement of honour. We accordingly declared that the respondent had conclusively shown why he should not be dealt with under the Act and ordered, however, that there be no order as to costs in the High Court or before the Disciplinary Committee.

2 The respondent is an advocate and solicitor of 18 years' standing and the sole proprietor of his firm. He was retained by Tan Koon Swan who had been charged with several serious offences arising out of the collapse of the Pan-Electric group of companies. On 12 February 1986 the respondent telephoned Mr Roy Kemp, the managing clerk to Mr Gilbert Gray QC to retain Mr Gray to lead the defence of Tan Koon Swan. The trial was scheduled to commence on 5 May 1986 and was expected to continue for five weeks. Mr Kemp informed the respondent that Mr Gray could be made available provided the respondent could confirm the retainer as Mr Gray had another cause celebre, the “Brighton Hotel Bombing” case in London, which would clash with the dates on which he was required in Singapore. Mr Kemp was prepared to return that brief if the respondent would confirm the retainer. By a telex sent on 3 March 1986 the respondent confirmed the retainer. Upon receipt of the confirmation Mr Kemp returned the briefs covering the relevant period, including the brief for the “Brighton Hotel Bombing” case.

3 We turn to the terms of the retainer. Mr Gray's brief fee was 50,000 with a refresher of 1,500 per day, plus the usual expenses which included a return air ticket, hotel expenses, meals and incidental expenses. It was also agreed that Mr Gray would be available for three weeks before the trial for pre-trial consultations but only those consultations held during the week before the trial would be covered by the agreed brief fee.

4 It was only at the hearing before the Disciplinary Committee in April 1988 that an important term of the retainer emerged. Mr Kemp, the only witness called by the Law Society, in his evidence disclosed for the first time that after his receipt of the respondent's telex of 3 March 1986 he had agreed with the respondent that the agreed brief fee would be negotiated if the criminal trial of Tan Koon Swan did not proceed. We set out his evidence as follows:

When I received Mr Yap's telex of 3 March 1986 I had a telephone conversation (with the respondent) and he agreed that the brief fee would become payable. I think it is fair to say that at that point, he did mention there was a very slim chance of the case, that the case may not go ahead as a trial. He said that there were negotiations going on at government level to endeavour to resolve the matter and he asked if there would be any reduction in the fee should the case go short – if Mr Gray need not go to Singapore.

My reply was, that would depend on what point of time he said that Mr Gray would not be required. I think it was actually said that if it happened in the next week or so that we may be able to agree to half the brief fee. It would really depend on how near to the actual date it was; the nearer one got to the actual trial date obviously the shorter the time to replace his work with other work.

5 On 21 March 1986 Mr Kemp telephoned the respondent and informed him that Mr Gray had completed a case in Singapore and asked whether the respondent was in a position to deliver the papers to Mr Gray or have a consultation with him. The respondent replied that he was not in a position to have consultations yet as negotiations were still continuing; these negotiations must have...