WINDS OF CHANGE: DISCIPLINARY PROCEEDINGS UNDER THE LEGAL PROFESSION (AMENDMENT) ACT 19931
| Published date | 01 December 1995 |
| Citation | (1995) 7 SAcLJ 175 |
| Author | PALAKRISHNAN and MALATHI DAS |
| Date | 01 December 1995 |
How will the change strike me and you
In the house not made with hands?
Robert Browning, By the Fireside
The Legal Profession (Amendment) Act 1993 came into force on 1 January 19942. It has made sweeping changes to the existing law governing the practice and conduct of the legal profession3
Apart from the much debated amendments designed to restrict the supply of lawyers in Singapore, the other major amendments were made in respect of Part VII of the principal Act governing disciplinary proceedings, the focus of this article.
Where they assist in a purposive interpretation of the new provisions4, references herein have been made to the Parliamentary Debates at the Second Reading of the Amendment Bill5.
The new provisions pertaining to disciplinary proceedings have been stated to be:
‘aimed at ensuring that the legal profession will be distinguished by honest competent practitioners of the highest standards who will be able to meet the increasing expectations of the general public and the business community’6
The new amendments put beyond doubt the disciplinary jurisdiction of the Supreme Court over both practising7 as well as non-practising solicitors8 and legal officers9. However, it is now clear that the disciplinary powers of the Law Society only extend to practising lawyers. Thus, the Court of
Appeal’s ruling in Ang Boon Kong Lawrence v Law Society of Singapore10 extending the disciplinary jurisdiction of the Law Society over all advocates and solicitors called to the Bar, when a legitimate grievance is made known to the Law Society, has been legislatively overruled. Thus, the Law Society has no disciplinary jurisdiction over complaints relating to legal officers who are on the rolls and non-practising advocates and solicitors11.
On the other hand, the Court of Appeal’s holding that all advocates and solicitors whether holding practising certificates or not12, being officers of the Court, and therefore subject to the disciplinary jurisdiction of the Supreme Court, has been legislatively endorsed. The provisions have been further extended to include legal officers who may not be on the rolls. The Court of Appeal’s ruling that there was no distinction between misconduct in a professional capacity and other forms of misconduct has also been given legislative effect.
It must be noted, however, that there are substantive and procedural similarities as well as differences with respect to disciplinary proceedings pertaining to practising solicitors on the one hand, and non-practising solicitors, and legal officers on the other.
We propose to deal with the interpretation of this phrase in respect of practising and non-practising solicitors and legal officers separately.
The position accepted prior to the recent amendments was that complaints of misconduct for purposes of disciplinary proceedings must arise in relation to the solicitor’s professional business or capacity13. These words have now been deleted. With the removal of the requirement of ‘in his professional capacity’14, the scope of the inquiry would appear to extend to other complaints of general misconduct, and thereby casting a wider net over the potential acts which may be found to be objectionable.
However, the legislative intention in removing these words bears stating:
‘Why did we delete the words “in his professional capacity”? There is nothing sinister about this. The reason is that under the Act the list of offences which can be the subject of investigation includes matter which do not relate to disciplinary professional matters… So there is an inconsistency between the deletion of those words and other provisions. It is to harmonise15. But as I have assured the Members, it cannot mean that you can bring frivolous or irrelevant matters under the guise of this newly amended provision16.
The removal of these words does not mean that frivolous complaints should be entertained. The provision must be read in the context of the instances of misconduct enumerated in section 83(2) or it must be“misconduct unbefitting the advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession”17 (emphasis added)
In this respect, it is observed that the instances of misconduct enumerated in section 83(2) generally pertain to an advocate and solicitor’s conduct in his professional capacity.
Under section 83(2)(a), a criminal conviction need only imply a defect in character making him unfit for his profession18. Under section 83(2)(j) the carrying on of trade or business which detracts from the profession of law would suffice. As such, complaints brought under any of these limbs would arguably not be conduct in a lawyer’s professional capacity.
Thus with the legislative intent firmly in mind, the scope of the new section 83(2)(h) can be explored. The former section 83(2)(h) whereby due cause may be shown by proof that an advocate and solicitor
‘has done some other act which would render him liable to be disbarred or struck off the roll of the court or suspended from practice or censured if a barrister or solicitor in England’
has been deleted19 and substituted with the phrase
‘has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession.’
This is arguably the catch—all provision which can be relied on where the conduct does not fall within any of the other enumerated grounds but which is nevertheless found to be unacceptable.
As a guide to what the new provision encompasses, it is instructive to look at the recent English practice20 with respect to unbefitting conduct, which has by no means been restricted to professional misconduct. There, the standard is less strict and a solicitor need only be shown to have been guilty of such conduct as would render him unfit to remain as a member of an honourable profession21, or conduct which is inexcusable and such as to be regarded as deplorable by his fellows in the profession22, or conduct which can reasonably be regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.
In Re A Solicitor23, Lord Widgery CJ opined,
‘It has been laid down over and over again that the decision as to what is professional misconduct is primarily a matter for the profession, expressed through its own channels, including the disciplinary committee. I do not, therefore, for one moment question that if a properly constituted disciplinary committee says that this is the standard now required of solicitors that this court ought to accept that that is so and not endeavour to substitute any views of its own on the subject.’
However, if a standard is set, and certainly if it is a standard which is as high as this one, then considering the penalty one must have regard, and the disciplinary committee must have regard, to the extent to which the existence of the standard was known and accepted within the profession at the time when the alleged default occurred24.’
The above approach is consistent with the line of cases decided in our jurisdiction in respect of other professions.
In our courts, some observations by Yong Pung How J (as he then was) in a case involving disciplinary action against an accountant25 throws some light on the question as to when conduct would be unbefitting. In the case of accountants, a distinction was made in respect of misconduct ‘in a professional respect’ or ‘in the performance of his professional duties’, and acts or defaults ‘discreditable to an accountant’26. It is the interpretation of the latter phrase which may be instructive for our present purposes.
In Wong Kok Chin v Singapore Society of Accountants27, faced with this phrase, Yong J took the view that:
‘It may well be that an act or default which is discreditable to an accountant need not necessarily have arisen out of his professional work as an accountant, but it should nevertheless have been an act which would have brought discredit on him as an accountant or on the profession as a whole. A practical test could have been if reasonable people, on hearing what he had done, would have said without hesitation that as an accountant he should not have done it.’
In Chew Kia Ngee v Singapore Society of Accountants28, Thean J (as he then was), in construing the same phrase, followed the way in which the Supreme Court of Victoria interpreted the phrase ‘conduct discreditable to a pharmaceutical chemist’. In that Australian case of Mercer v Pharmacy Board of Victoria29, Pape J stated:
‘In my view ’conduct discreditable to a pharmaceutical chemist’ includes any conduct in relation to the carrying on the business of a chemist which would be reasonably regarded by other chemists of good professional competence as calculated to destroy or lower public confidence in that chemist, or as injuring the credit or standing of the chemist in his professional capacity. I do not think it necessary that his conduct should be dishonest or fraudulent, or that it should involve any moral turpitude. It is enough if it brings discredit on him as a pharmaceutical chemist or on the profession as a whole. Nor do I think it necessarily follows that conduct which is due solely to negligence or inadvertence cannot be said to be discreditable conduct, because the chemist is in a position where his duties are to a large extent laid down by Regulations or by the Act, and where great care is required in the carrying out of those duties and because failure to exercise that degree of care expected of him must necessarily lower public confidence in him and discredit him in the eyes of his professional brethren.’
The approach therefore is to allow for the...
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