The Law Society of Singapore v Disciplinary Committee

• Judgment Date: 14 August 2000
• Date: 14 August 2000
• Docket Number: Originating Summons No 1782 of
• Court: High Court (Singapore)

Law Society of Singapore

Plaintiff

and

Disciplinary Committee

Defendant

[2000] SGHC 169

Lim Teong Qwee JC

Originating Summons No 1782 of 1999

High Court

Legal Profession–Professional conduct–Grossly improper conduct–Practice Directions para 2.3–Property developer inviting solicitors to be on panel of solicitors–Property developer devising scheme offering financial advantage to buyers if solicitors on panel used–Whether solicitors agreed to, and participated in, the scheme–Whether solicitors guilty of improper conduct or practice as advocate and solicitor–Whether solicitors guilty of misconduct unbefitting advocate and solicitor–Rule 5 (c) Rules Regulating the Practice and Etiquette of the Singapore Bar–Sections 83 (2) (b)and 83 (2) (h) Legal Profession Act (Cap 161, 1994 Rev Ed)

The Council of the Law Society (“the Council”) referred a matter to the Inquiry Panel touching on the conduct of two solicitors. This was based on information it had received that the developers of a condominium project (“Winfast”) had informed intended purchasers that they would settle their legal costs, stamp duty and disbursements only if certain law firms were appointed. The Council said that this arrangement unduly influenced a purchaser to instruct a particular law firm and thereby undermined the party's right to appoint a solicitor of his choice to represent him. The Council referred to r 5 (c) of the Rules Regulating the Practice and Etiquette of the Singapore Bar (“Rules”) and para 2.3 of the Practice Directions of the Council (“Practice Directions”). The Inquiry Committee found that neither solicitor had acted improperly. It reported that a formal investigation by the Disciplinary Committee was not required and that the complaint be dismissed. The Council considered the report and referred the matter back to the Inquiry Committee for reconsideration. After reconsideration, the Inquiry Committee was of the view that that its original findings should stand.

The Council then requested the Chief Justice to appoint Disciplinary Committees, which he did. The two solicitors were charged with improper conduct or practice within the meaning of s 83 (2) (b) of the Legal Profession Act (Cap 161, 1994 Rev Ed) (“the Act”) in that they had knowingly agreed to, and did participate in, a scheme devised by Winfast, which enabled Winfast to tout for business on behalf of, the solicitors' firms, in contravention of r 5 (c) of the Rules. They were also charged with misconduct unbefitting an advocate and solicitor within the meaning of s 83 (2) (h)of the Act and in contravention of para 2.3 of the Practice Directions in agreeing to and participating in a scheme devised by Winfast.

The Disciplinary Committee investigated the matter and determined that there was no cause of sufficient gravity for disciplinary action. The Council was dissatisfied with this determination and made this application for an order for the two solicitors to show cause under s 98 (1) of the Act or alternatively directing the Council to make an application under s 98 of the Act.

Held, dismissing the application:

(1) The conduct of a solicitor who acted in non-compliance with or evasion or disregard of the provisions of the UK Solicitors' Introduction & Referral Code (1988 and 1990) where it applied to him may be conduct unbefitting a solicitor but this was so as the code itself so provided. There was no equivalent rule of conduct made by the Council under the provisions of the Act. There is no evidence of any such usage whether in Singapore or anywhere else. The provisions of the 1988 Code and the 1990 Code therefore clearly did not apply to the solicitors concerned. In any case the Law Society had not shown that there had been any non-compliance with or evasion or disregard of these provisions because there was no agreement between Winfast and either of the solicitors concerned or their firms under which either of them or their firms agreed to be paid by Winfast to provide conveyancing services for its buyers: at [29], [30] and [33].

(2) The scheme as alleged in the statement of the case was that Winfast would pay legal fees, stamp duty and other disbursements only if panel solicitors were retained. The alleged scheme was not the scheme that Winfast devised. Under the scheme Winfast devised or carried into effect Winfast would pay the stamp duty whether or not solicitors on its panel were retained. The Disciplinary Committee found that the solicitors concerned only accepted the invitation to “sit” on the panel and not that they agreed to participate in the scheme: at [25].

(3) By consenting to be on the panel or authorising Winfast to introduce or refer its customers to their firms, the solicitors had not done anything that compromised or impaired their professional independence or integrity. Winfast's buyers were entitled to an independent choice of solicitors and remained so. Any financial advantage they received by retaining solicitors on the panel arose out of the agreements they made with Winfast and not out of any agreement between Winfast and the solicitors or anything done by the solicitors: at [40].

(4) It was for Winfast and not the solicitors to decide who was to be added to or removed from Winfast's panel and it was for Winfast and its buyers to agree upon and to decide if legal fees incurred by the buyers would be paid by Winfast if solicitors, whether on the panel or not, were retained. It made no difference whether there were only two firms on the panel or whether the solicitors knew about it: at [45].

(5) Winfast's panel of lawyers was no different from panels established by lending institutions. In such transactions, a financial advantage may be available to a customer if he retains a solicitor who was on the lender's panel. The lender retained the right to determine how to make known to the customer that a particular solicitor was on its panel but it should not unduly influence the customer to retain the lender's solicitor to act for him as well. In the present case, it was not improper for the solicitors' concerned to be on Winfast's panel: at [49] to [51].

(6) The solicitors concerned had not been guilty of any breach of r 5 (c) of the Rules or para 2.3 of the Practice Directions as alleged nor were they guilty of conduct unbefitting a solicitor. There was no cause of sufficient gravity for disciplinary action under s 83: at [51].

Legal Profession Act (Cap 161, 1994 Rev Ed) ss 83 (2) (b), 83 (2) (h) (consd);ss 33 (3), 79, 85 (2), 85 (6), 87 (1) (b), 87 (1) (d), 93 (1) (a), 97, 98

Peter Cuthbert Low and Christine Sekhon (Peter Low, Tang & Belinda Ang) for the applicant

Harry Elias SC and Yeo Yen Ping (Harry Elias Partnership) for Kwa Kim Li

Michael Khoo SC and Josephine Low (Michael Khoo & Partners) for Vivien Quahe Mei Lin.

Lim Teong Qwee JC

1 This is an application by the Council of the Law Society of Singapore which is dissatisfied with the determination of the Disciplinary Committee published in its report dated 27 October 1999. It is an application under s 97 of the Legal Profession Act (Cap 161, 1994 Ed) for an order directing Vivien Quahe Mei Lin (“Ms Quahe”) and Kwa Kim Li (“Ms Kwa”) (together “the solicitors concerned”) to show cause under s 98 (1) or alternatively directing the Council to make an application under s 98. The application is made in the name of the Law Society and was served on the Disciplinary Committee.

2 At the commencement of the hearing, counsel for the Disciplinary Committee said that it was unable to add anything further to what appears in the documents before me and was not heard. The Law Society raised no objection to the solicitors concerned being heard but I think I should say that quite clearly they have a right to be heard and I do not think that anything in the Act or in s 97 (3) in particular takes away that right. After hearing counsel for the Law Society and for the solicitors concerned I made an order confirming the report of the Disciplinary Committee. The Law Society has given notice of appeal and these are my written grounds. [Editorial note: The appeal has been withdrawn.]

3 On 21 October 1996 the Council referred to the Chairman of the Inquiry Panel information touching upon the conduct of the solicitors concerned. It did so on its own motion in accordance with s 85 (2) and not as a result of any complaint made to the Law Society by any person. The information was expressed in these terms:

The Council has received information that the developers of Sunrise Gardens [Winfast] (the developers), a condominium project at Sunrise Avenue have informed intended purchasers that they will settle their legal costs, stamp duty and disbursements in respect of their purchase only if certain law firms, identified by the developers are appointed.

The Council has further received information that the firms identified have been M/ s Lee & Lee and M/s Wilfred Yeo Quahe & Tan. The Council has also received information that the partners of the respective firms handling the project are [Ms Kwa] of M/s Lee & Lee and [Ms Quahe] of M/s Wilfred Yeo Quahe & Tan.

The Council went on to express its view “that advocates and solicitors cannot participate in any arrangement which unduly influences a purchaser or mortgagor to instruct a particular law firm and thereby undermine a party's right to appoint a solicitor of his choice to represent him in a purchase or mortgage of property” and made reference to r 5 (c) of the Rules regulating the Practice and Etiquette of the Singapore Bar (“Rules”) and para 2.3 of the Practice Directions of the Council dated 20 May 1996 (“Practice Directions”).

4 Rule 5 (c) of the Rules states:

1. 5 It is contrary to the etiquette of the profession for an Advocate and Solicitor –

   1. (c) to directly or indirectly apply for or seek instructions for professional business or do or permit in the carrying on of his practice or otherwise any act or...