PROFESSIONAL RESPONSIBILITY (3)

INTRODUCTION- Council of the Law Society (England & Wales) stated:

Circumstances must exist in which the general public require protection To retain their own repute and standing and to retain public confidence in their abilities, these

groups imposed upon themselves a discipline and adopted ethical rules and restrictions Voluntarily submitting themselves to standards of ethical conduct

- Ormrod Committee: Profession involves a particular kind of relationship which deprives the client of the ability to

make informed judgments for himself and so renders him to a large extent dependant upon the professional man

A self-imposed code of professional ethics is intended to correct the imbalance in the relationship between the professional man and his client

- President of Law Society: Urge you to observe the rules and principles of conduct and to be vigilant to ensure that others

do so Through maintenance of high standards by individuals that justice will be served, the public will

be protected and the profession as a whole will thrive- Rule 2(2) of the Legal Profession (Professional Conduct) Rules (Cap. 161, Section 71, R 1, 2000

Revised Edition) provides that regard should be had to the principle that an advocate and solicitor shall not in the conduct of his practice do any act which would compromise or hinder the following obligations:a) Maintain the Rule of Law and assist in the administration of justice;b) Maintain the independence and integrity of the profession;c) Act in the best interest of his clientd) Facilitate access to justice by members of the public

Outline of the sources of the Rules of Conduct which govern Professional Conduct of lawyers who hold practising certificates:

1. Legal Profession Act (LPA) (Cap. 161, 2001 Revised Edition)2. Rules made by the Council under sections 71 or 72 or 73 of the LPA.

- s71,72,73 – law soc council power to make rules- 71 – rules of ethics and practice- 72,73 – rules abt client money- no rules can be made by council unless consented to by chief justice., council of law soc given rule

making powers- Power of the Council of the Law Society to make rules for regulating professional practice – subject to

the Chief Justice’s approval – section 71(1) LPA

Section 71 LPA(1) Without prejudice to any other power to make rules, the Council may make rules for regulating the

professional practice, etiquette, conduct and discipline of advocates and solicitors.(2) Such rules shall not come into operation until they have been approved by the Chief Justice who may if he

thinks fit consults any of the other Judges before giving his approval.(3) Disciplinary proceedings may be taken against any advocate and solicitor who contravenes any rules made

under this section.

3. Legal Profession (Professional Conduct) Rules 1998 as amended on 1 September 2001 and 1 April 2005. – subsid legislation

a. Understanding Amendments To The Professional Conduct And Publicity Rules In 2002b. introduction of law corporations from 1 Oct 2000 necessitated consequential amendments to the

Legal Profession (Professional Conduct) Rules 1998 and the Legal Profession (Publicity) Rules 1998

Pursuant to powers outlined above, council has passed other rules:4. • Legal Profession (Publicity) Rules 1998 as amended on 1 September 2001.

5. • The Solicitors’ Accounts Rules (as amended on 1 April 2004), Deposit Interest Rules, Trust Account Rules and Accountant Report Rules.

6. Practicing certificate rules7. Practice Directions and Rulings of Council of the Law Society/ Practice Directions:

a. Section 59(1)(b) LPA – Directives on ethics are binding on the legal profession b. Breach of directives professional misconduct

Section 59(1)(b) LPAWithout prejudice to the general powers conferred by section 58 or the specific powers to make rules conferred by any other provision of this Act, the Council shall have power – … to answer questions affecting the practice and etiquette of the profession and the conduct of members thereof;

Council also given stat power under s59 LPA to pass rulings on conduct and ethics – practice directions and rulings of council so council can interpret rules and give guidance on rules

Binding on member of law society who is practicing at private bar If lawyer in breacah of PDs, can be guilty of misconduct and basis found in s83(2)(b) LPA

8. Common Law – also impt – because lawyers in fid rr with client and see pg 53-57 manuala. manual – secret profits by lawyers/ conflicts of interest/ gross overcharging is breach of fid duty

PYRAMID OF RESPONSIBILITY

(1) Duty to the Court- Administration of justice as an Officer of the Court - Ultimate responsibility- Disciplinary Council for –

Private Bar: Law Society; via a complaint Public Service: Supreme Court; via Originating summons to the Chief Justice

(2) Duty to the Legal Profession - Professional ethics- Duties to fellow lawyers- Whenever duty conflicts with that of the court, then duty to the court prevails

(3) Duty to the Client- Fiduciary relationship

The Professional Conduct Rules (PC Rules) –- Common law principles codified- sigf because gave lawyers codified conduct of conduct- Rule 89 - not limit or restrict any duty or obligation of an advocate and solicitor – cl governs proff

conduct. So clear tt rules do not restrict any other duties. So regulated by cl as well as LPAo Rule 89 – savings clause - not limit or restrict any duty or obligation of an advocate and

solicitor- Divided into 5 parts – prelim/ practice/rr with client/duty when conducting proceedings/proff duty when def

accusd/ conduct when acting as crim prosecutor

Criminal prosecutor:- DPP x members of law soc – but code stll needed because recogd tt a lot o stat tribunals engage lawyers

at private bar to prosecute for proff misconduct against professionals. Law soc instructs lawyers to act as prosecutors in discipline proceedings

- Have to comply with code of conduct in PC rules final part- Date of Commencement and Revocation of earlier Rules (Rule 1 and Rule 89

DECIPHERING THE CODE OF CONDUCT AN OVERVIEW OF THE LEGAL PROFESSION (PROFESSIONAL CONDUCT) RULES 1998

Introduction- 88 individual rules

PART I of the PC Rules

i)General Ethical Statement- Rule 2- What paras a, b, c and d do is set out duties of sg lawyer. In interpreting rules, council and court shld not in

any way compromise the four genral ethical ststements. Nth done to limit four basic duties in interpretation.

Rule 2(2)In the interpretation of these Rules, regard shall be had to the principle that an advocate and solicitor shall not in the conduct of his practice do any act which would compromise or hinder the following obligations:

Rule 2(2) Comments(a) to maintain the Rule of Law and assist in the administration of justice;

Any interpretation to uphold the rule of law Eg. Parliamentary system/ Constitution

(b) to maintain the independence and integrity of the profession;

Independence of the legal profession – not beholden to the judiciary. Must not have external influence on how we conduct our duties.

(c) to act in the best interests of his client and to charge fairly for work done; and

Private Bar – thus act in the best interests of Client(s). Fid duty of cl restated. One of ethical duties is pro bono. Paramount not that we get paid but whether we are wlling to rep pple to promote access to justice. Fees not impt.

(d) to facilitate access to justice by members of the public.

Facilitates access of justice: support of pro bono work Eg. Law Society’s provision of criminal legal aid

Interpretation of rules according to the principles in rule 2(2)

- Lie Hendri Rusli v Wong Tan & Molly Lim [2004] 4 SLR 594: “expectations of the profession must be tied to reality … the real issue is whether the court views the standards applied and skills discharged by the particular solicitor as consistent with the legal profession’s presumed responsibilities and obligations to its clients. This is not a fossilized concept and standard”

Lie Hendri - FactsThe plaintiff was the principal director and shareholder of PT Bangun Persada Tata Makmur (“PTB”), an Indonesian distributor of electronic goods. PTB had an important and close business relationship with a group of related electronics distributors in Singapore (“the Alps Group”), which included Alps Investment Pte Ltd (“Alps”).In November 1999, PTB’s business met with difficulties as a result of the Asian financial crisis, and the Alps Group pressed PTB to settle its debts. Agnes Goh, the principal officer in the Alps Group servicing PTB, proposed that the plaintiff mortgage his apartment to Malayan Banking Berhad (“MB”) for Alps’ benefit, so that PTB could obtain a higher credit limit using Alps’ letter of credit arrangements. The Alps Group would then also deal with PTB’s debts benignly. The plaintiff agreed.On the suggestion of Anthony Koh (“AK”), an officer in the Alps Group, the plaintiff agreed to engage the defendant firm of solicitors to act for him. The plaintiff was aware that the defendant also represented the Alps Group. Tan Yah Piang (“TYP”), the senior conveyancing partner with the defendant, received instructions from AK to act for Alps in the restructured facility arrangement with MB. Around the same time, the defendant also received instructions from MB to act for it in the restructured facility agreement with Alps. TYP prepared the necessary documents to secure the proposed mortgage of the apartment (“mortgage documents”), which included an “all moneys clause” making the plaintiff personally liable for all facilities extended by MB to Alps.The plaintiff, AK and TYP met at TYP’s office on 21 December 1999. TYP used both English and Mandarin to explain the legal implications of the mortgage documents to the plaintiff, who had a weak command of English and preferred to use Mandarin. The plaintiff did not ask any questions or communicate any concerns to TYP prior to and after signing the documents. TYP did not keep an attendance note of the meeting.

In 2002, the Alps Group met with serious financial difficulties. The plaintiff sought to redeem the apartment from MB. Eventually, the apartment was discharged by way of a partial discharge of mortgage, while the personal covenant undertaken by the plaintiff in the mortgage documents subsisted. MB later commenced proceedings in 2003 against several parties, including the plaintiff, who settled MB’s claim against him for $500,000.The plaintiff thereafter commenced these proceedings, alleging that he had suffered a loss of $500,000 as a result of TYP’s negligence in failing to explain to him and/or advise him on the potential consequences arising from his signing the mortgage documents, as he had unwittingly become a surety for MB’s loan facilities to Alps.Held, dismissing the claim:(1)    The plaintiff was aware that the proposed mortgage was intended to secure all credit facilities extended by MB to Alps: at [24].(2)    The plaintiff was not concerned about the extent of the facilities or the possibility that the facilities would be varied, as he did not expect or contemplate that Alps would be unable to repay its debts to MB: at [26].(3)    Contrary to the plaintiff’s claims, TYP had explained to him in some detail the intent and purport of the mortgage documents. Indeed, when asked by TYP, he confirmed that he understood TYP’s explanation and had no questions to ask. He did not communicate to TYP at any time any concerns about the transaction: at [28] to [30], [39].(4)    TYP candidly admitted that he had not informed the plaintiff that he was also concurrently acting for Alps and MB. However, this did not mean that TYP had been negligent. It was not a material omission, as the plaintiff would have proceeded with the transaction regardless. The plaintiff had been fully aware of TYP’s representation of Alps. Also, TYP did not let his representation of MB affect his conduct of the matter vis-à-vis the plaintiff: at [68].[Observation: While it was good practice for a solicitor to maintain contemporaneous attendance notes, the absence of such notes did not inexorably mean that he was to be disbelieved in the event of a dispute. However, he might find himself handicapped when the credibility of his evidence was assessed in court: at [36], [63] to [64].The risk of a conflict of interests arose when a solicitor (or an advocate) acted for multiple parties, and the reluctance of many to act for multiple clients, did not call into question the actual legitimacy of the practice of acting for multiple parties. Nevertheless, in the interests of the legal profession and the public, it had to be considered if clearer policies and rules had to be formulated in approaching issues of conflicts of interests, especially in conveyancing and loan transactions: at [48] to[57].]

- Alfons Tanumihardja v Thio Su Mien and others [2005] 2 SLR 445: “it spreads over such a wide sphere … left to the client and his solicitor to regulate between themselves”

Alfrons Tanumihardja - FactsThe plaintiff was a director of Multico-Orchids (S) Pte Ltd (“Multico”). On 1 October 1990, RHB Bank Bhd (“RHB”) granted Multico a loan facility for which the plaintiff executed a letter of guarantee dated 12 October 1990 (“the Guarantee”). The defendants, who were the plaintiff’s solicitors when he executed the Guarantee, also acted for the plaintiff in the execution of a deed of settlement dated 26 August 1993 (“the Settlement Deed”) between the plaintiff and Tradexim Ltd (“Tradexim”) as agent for the other main shareholders of the company. Under the Settlement Deed, Tradexim was to procure the plaintiff’s release from the Guarantee after the plaintiff fulfilled certain obligations. The relevant solicitor, Christopher Chuah (“Chuah”), rendered his final bill and closed the plaintiff’s file on 1 October 1996.On 21 June 2000, the plaintiff received a letter of demand from RHB for credit advanced under a facility letter from RHB to Multico dated 17 January 1998, which RHB alleged the plaintiff had guaranteed. This letter was sent through the defendants, who were now acting on behalf of RHB, but with a different solicitor in charge of the claim. The plaintiff contacted Chuah, who advised the plaintiff to seek independent legal advice, which the plaintiff did by consulting one Peter Chow. However, the plaintiff instructed Peter Chow not to proceed or continue to act for him until specifically instructed to do so.On 21 February 2002, RHB sent the plaintiff a second letter of demand and subsequently commenced action on 9 October 2002. The plaintiff reached an agreement with one of the main shareholders and signed a deed of release dated 23 December 2002, whereby the plaintiff accepted a sum of money in exchange for his releasing Tradexim and its principals from their obligations under the Settlement Deed. On 14 March 2003, RHB obtained summary judgment against the plaintiff, who consented to the judgment as his present solicitors advised him that he had no defence to the claim.The plaintiff brought this action in negligence against the defendants. He alleged that when he contacted Chuah

on 21 June 2000, Chuah failed to advise him of his rights against Tradexim and its principals for not procuring his release from the Guarantee, which rights subsequently became time-barred. The plaintiff argued that although Chuah could not defend him against the suit brought by RHB, Chuah ought to have acted for him in taking legal action against Tradexim and its principals.Held, dismissing the case:(1)    Had Chuah been the plaintiff’s lawyer, Chuah would have had an undeniable duty to advise the plaintiff of his rights against Tradexim and its principals. However, the plaintiff’s file with the defendants’ firm was closed on 1 October 1996, even though the covering letter did not mention that they were closing the file. There was no duty on a solicitor to state in his covering note that the file would be closed after payment of the bill. Although the closing of a file did not in itself terminate a solicitor-client relationship, the closure of the file in this case indicated that Chuah was of the (not unreasonably held) view that he had no further substantial service to perform for the plaintiff in respect of that file: at [7] and [8].(2)    As the plaintiff did not issue express instructions to Chuah to ensure that Tradexim procured the release of the Guarantee, whether Chuah was duty-bound to do so depended on whether it was reasonable to infer that he had to carry out an implied duty in question. In this case, it was not envisaged that the solicitors had to ensure the performance of the many obligations exchanged between the plaintiff and Tradexim. What implied or inferred duties a solicitor owed had to be implied and inferred only by means of reasonable foresight, and not by perfect hindsight: at [8].(3)    Even if Chuah was still regarded as the plaintiff’s solicitor in respect of procuring the plaintiff’s release from the Guarantee, that relationship was surely terminated when the plaintiff sought independent legal advice after Chuah informed the plaintiff that he (Chuah) was unable to act for him because of a conflict of interest. A solicitor-client relationship between the defendants and the plaintiff could only come about from a fresh and express agreement: at [9].(4)    A distinction could not be drawn between the suit by RHB against the plaintiff and the plaintiff’s rights against Tradexim and its principals, so that Chuah could act for him in respect of the latter but not the former. No reasonable solicitor would have advised the plaintiff to instruct someone else other than the defendants to sue Tradexim, and yet another lawyer to defend him against the RHB claim. Chuah could hardly have given such advice because it would have been advice against the interests of RHB that the defendants then represented:at [10].(5)    In the circumstances, Chuah had acted properly and neither Chuah nor the defendants were in breach of duty: at [11] and [13].(6)    Furthermore, the plaintiff’s detriment was not caused by, nor could it reasonably be attributed to, Chuah. If the plaintiff chose not to instruct a new solicitor, or having instructed him, instructed him not to proceed, the consequences were his to bear: at [11].(7)    By executing the deed of release, the plaintiff had assumed all liability in respect of RHB’s claim and absolved Tradexim and its principals from any liability, and had surely lost all his rights against them. On the evidence, the plaintiff had not shown that Tradexim had not already procured his release. The claim by RHB was based on the facility letter dated 17 January 1998 in which the plaintiff’s Guarantee was not one of the listed securities. It appears, therefore, that he had a reasonable defence, and cause for a third-party action against Tradexim on 14 March 2003 when RHB’s application for summary judgment was heard. The defendants did not cause the plaintiff’s loss or cause him to lose his rights against Tradexim and its principals: at [12] and [13].

ii. To whom these rules apply – Rule 2(1)

Rule 2(1)These Rules shall apply to every advocate and solicitor who has in force a practising certificate.=> Self regulating; indep profession.

iii. The effect of Practice Directions and Rulings of the Council of the Law Society under these Rules

- Rule 2(3) – no PD of council inconsistent with rules will be recognized. So council cannot pass any PD inconsistent with any of rules in proff conduct rules ie rules prevail over PDs.

Rule 2(3)These Rules shall, to the extent of any inconsistency, prevail over the Practice Directions and Rulings 1989 issued by the Law Society or any additions or amendments thereto.- If the Law Society issues a Practice Direction inconsistent with the Rules, the Rules shall prevail- Thus, Council of the Law Society cannot undermine Rules

- If the directives issued before the 1st June 1998 are inconsistent with the Rules, they have no force- See Practice Directions on 1st June 1998

iv. Definitions section of the PC Rules - Rule 3 – Rule 3In these Rules, unless the context otherwise requires — "Court" means any court, tribunal, board or committee where an advocate and solicitor appears as a representative of another person, whether or not for a fee; "law firm" means a firm of advocates and solicitors and includes a sole-proprietorship and partnership of 2 or more advocates and solicitors; "Judge" means a Judge of the Supreme Court, a District Judge, Magistrate, Coroner or any person presiding over a court or statutory tribunal.

- defn of ‘court’ – rules take wide intepreation of this expression can mean any tribunal, committee or board so long as appear bfore it either as advocate or advocate and solicitor. Can be Public service comm tribunal, etc. duty governed by rules.

- Defn of ‘firm’ very impt also – sg lawyers practise as sole props, partnerships, LLPs (later this yr) – soe propr/partner – firm made up of partners or indiv props, but as limited liab law corporation etc – there is a legal entity. But still made up of indiv adv and solicitors. Firm does not just mean entity but also includes the indiv props and partners of tt entity and the directors and the partners of LLCs/ LLPs

- ‘judge’ – any person presiding over any tribunal or court- rules confirm to lawyer that whenever he appears before anyone, he needs to comply with rules of conduct

PART II of the PC Rules – Practice

i. Rule 4 - Descriptive titles for lawyersRule 4 An advocate and solicitor shall not describe himself in connection with his profession as other than as an advocate and solicitor, lawyer, legal consultant (if qualified), or such other description as may be approved by the Council from time to time and where so appointed, as a Commissioner for Oaths or Notary Public.

- Descriptions must be one that Law Society approves- Some titles (eg. Senior Counsel; Commissioner of Oaths for Notary Public) – only rendered if approved by the

Singapore Academy of Law- Eg: Commissioner of Oaths for Notary Public – appointment by Singapore Academy of Law on 1st April and 1

October each year (with a licence fee payable)- “Consultant” – not within approved description, unless complies with statutory criteria set out in section 75D

LPA; Criminal offence if non-compliant

Section 75D LPA(1) No solicitor shall take or use the title of consultant unless he has, for a period of not less than 10 years in the

aggregate, been – (a) a solicitor in practice;(b) a legal officer;(c) a full-time member of the academic staff of the Faculty; or(d) holding any combination of occupations referred to in paragraphs (a), (b) and (c).

(2) Any solicitor who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5000.

- – lawyer cannt describe himself in connection with profession other than in manner approved by council fr time to time/. But certain expression preapproved by council – lawyer/ legal consultant or adv and sol in practice. Otherwise need approval.

- ‘Legal consultant (if qualified)’ - defn of legal consultant in LPA found in s75D – someone who must have at least 10 yrs of private practice or 10 yrs as legal officer in legal service or lecturer in faculty of law in NUS or combi of anyone of these and aggregates to 10 yrs.

- Statute does ensure that title not used presupposing the experience brought ot practice. - Criminal offence to do so if not qualified and calls oneself legal consultant/

- Notary public/ commissioner for oaths – can be called if licensed by sg academy of law. otherwise cannot describe urself as such

- Counsel – not preapproved. Need approval of law soc- But expressions like directors/ MDs are approved for LLCs.

ii. Rule 5 - Practice in one firm at any 1 timeRule 5An advocate and solicitor shall not practise either as a consultant or a member of more than one law firm or law corporation- The rule on practice in one firm- licence comes fr practisig cert. can only practise in one law firm at a time.

S25 and 26 LPA set out qualifications to obtain a practicing cert – they only permit lawyer to get PC to practise at 1 fim at a time.

- The exception to the rule above only for a locum solicitor under rule 5(2) – 1st april 2005 – rule in 5.1 does not apply to locum solicitors

- ‘locum’ – someone who has decided to practise law on part time basis. Puts himself out as someone who is available to work in law firms for short periods of time. He is a locum.

o not allowed to be propr, partner, director or full time employee of law firmn with full time PC. But can offer himself to more than 1 firm to work for them part time. => Restricted practicing certificate.

- Joint Law Ventures – LPA amended to allow foreign lawyers that the Attorney General licences to ‘set up shop’ in Singapore

- Eg. Baker & McKenzie – Wong & Leow – Lawyer can act as a partner in Wong or Baker, or Baker-Wong (ie. Of 3 different entities)

- Now allowed to be partner in both Joint law venture (based in Singapore) and in the registered Foreign law firm

- However, Practice Certificate licences only allows one to be partner of 1 Singapore law firm

iii. Rules on professional stationery and signs – Rule 6Rule 6An advocate and solicitor shall comply with all directions of the Society regarding professional stationery or signs, signboards and name plates.- Comply with Law Society’s directions- Also see Publicity Rules – Law Society Council empowered to stop publicity – Rule 6- Cannot use Law Society’s symbol in law firm sign boards/ etc.

- Rules on professional stationery and signs for law practices - council controls or regulates profession. Anything dealing with signplates etc set by council must be complied with. To ensure that when lawyers put up stationery etc x affect integrity of profession, publicity of firm controlled

- must write to council if not approved

- see also Rule 6 (Publicity Rules) – Responsibilities for publicity within Singapore claim to specialization no mention of past cases, success rate, success rate,

iv. Arrangements for taking over practice during periods of absence – Rule 7Rule 7An advocate and solicitor shall make suitable arrangements for the running of his practice during any period of his absence.- This duty is most significant for a sole proprietor.- Currently, around 380 sole proprietors now in legal practice- Requirement to make arrangements for practice during periods of absence- If fail to do so, Law Society will take disciplinary action – breach can amount to professional

misconduct- Making of “suitable arrangements” – scope varies on case-by-case basis- Eg: Medical leave for 5 months, must find another lawyer to run your practice – this would

require contractual relations and an issue of a Power of Attorney to sign accounts, give responsibility of office administration etc. Must also get client’s consent and insurance coverage to protect self from negligence

- Must inform Law Society in writing of such arrangements; However if leave is for 3-5 days, no need to inform Law Society

- Must be “legal managers” with at least 3 years of practicing experience

*Power of the Law Society? First Schedule LPAo Power of the Law Society to run a law firm under the circumstances listedo Relates to some sort of misconduct eg. Unsound mind/ etco See para. 1(1)(g) – incapacitated by illness or accident to such an extent as

to be unable to attend to his practice – applies to sole practiceo To protect clients; although interests may be jeopardised

- Arrangements during absence from a practice- impt, 51% of law firms are sole props followed by 30% - two man partnerships. Maj of firms are small firms

(// demographic in England and America)- in running of practice, lawyer must make suitable arrangements for any periods of absence. Impt for sole prop

because he is the propr of a practice. Any period of absence – must make arrangements for running of practice because of 1. client 2. duties in managemet of law firm esp clients’ account. Need to make suitable arrangements where only 1 junior partner left. Non equity partners have very limited manahement powers over law firm. Wher eonly 1 partner is equity and other two are salaried, then bound to be contract limiting latter;’s powers of management. So if away for sigf period, shld make sutable arrangements empowering salaried partners with managing partners or find someone else.

- 1998 – law soc has reqd sole proprs to inform law soc the mmt they start, who they have arranged to manage practice in period of absence

- : - admin arrangement

v. Duty to supervise qualified and unqualified staff – Rule 8Rule 8An advocate and solicitor shall exercise proper supervision over his employees and other staff.- Every lawyer with the obligation to supervise qualified and unqualified staff- Ensuring that

(a) staff/ employees maintain confidentiality to clients(b) unqualified staff do not do any acts which only a person qualified to practise is entitled to do,

correspondence signed by non-qualified staff are of a nature which is proper for a staff to sign and are not signed in the firm’s name designation of the employee must be described in the letter signed by him

- Discipline – responsibility of partners of the firm – since they run the firm- Breach includes firms which do not apply for licences for their lawyers – sections 32, 33 LPA

(Criminal offence to practice without a licence)

- Duty of lawyers to supervise qualified and unqualified staff – Lwyer shall ex proper supervision over employers and other stuff. employees include employed lawyers/ legal assistants

- The concept of a “designated supervising practitioner” for a locum solicitor in private practice- to bring to attention of lawyers that management of law practice involves risk management. With employees,

they are doing work and if don’t supervise, will face issues of civil liab etc where no proper supervision. - In absence of supervision, law soc may discipline the partners. - Eg

failure to ensure that lawyers have PCs Staff faxed confid info to opp side. In law firm, none of stuff had any training on client

confidentiality – r 24 PCR. Failure of firm to have system of training or supervision. Partners disciplined.

- Law soc website – law soc has developed prime law – system of practice management developed for law firms. Crated manual of processes and systems law firms hsld implement and if law firm adopts what has been proposed, then rule 7 and 8 shld be complied with

- Rule 8: Supervising employees/staff Employed in his practices ensuring that: staff/employees maintain clients’ confidentiality, unqualified

staff do not do any acts which only a person qualified to practise is entitled to do, correspondence signed by non-qualified staff are of a nature which is proper for a staff to sign and are not signed in the firm’s name

Instead, the designation of the employee must be described in the letter signed by him

vi. Sharing of premises with non-lawyers – Rule 9Rule 9An advocate and solicitor shall not share, occupy or use premises jointly with any unqualified person unless prior written approval of the Council is obtained.

- General rule – cannot share premises with non-lawyers – breach confidentiality to clients- Unless non-lawyers are people who enhance or contribute to the legal practice- 3 Principles for shared premises:

a) Cannot undermine dignity of the legal professionb) Cannot unfairly attract work to youc) Any sharing arrangement must not breach client’s confidentiality

(includes physical barriers, joint venture law firm)- Council’s permission required to share premises with offshore law firm

- Approval for the sharing of office premises with non-lawyers – not allowed. Non lawyers – unqualified persons. Need law soc approval

- rationale – client confidentiality. (fid rules and r24)- also to ensure that dignity of profession not undermined

- in seeking approval, must provide the following info – nature of company or buiness you are sharing with pple running it physical sharing arrangements – law soc looks for designated entrances and exits separate/ fax sytems/

filing systems etc so that client confidentiality is maintained who sharing with – don’t want to share with omsoen where intention is to nfairly attract work to urself. So

ahrign with real estate agent – no. lawyers have monopoly in conveyancing. Also with insurance agencies – no. with this, cld be flow of legal work to law firm.

- Guidelines applied by the Council for the approval of sharing of premises:- * Sharing must not attract business unfairly to a law practice * trade business of the third party must not be inconsistent with the standing of the legal profession * sharing must not put at risk solicitor’s duty to maintain confidentiality of clients’ affairs

NB: Rules 10 & 11 view law as a ‘calling’

vii. Engaging in any other business, trade or calling – Rule 10

Rule 10An advocate and solicitor shall not engage in any business, trade or calling which — (a) derogates from the dignity of the legal profession; (b) is likely to lead to the attraction of professional business unfairly; or (c) is in any way prohibited by the Act or any subsidiary legislation made thereunder.

- Must comply with principles laid down in Rule 10- Engaging in any other business, trade or calling (also refer to section 83(2)(i) of the LPA)- law soc carried out review of ethics rules in 2004/5 and asked govt that want to lieralise rules because

council x want rules that temper business- lawyers shld not engage in business or trade if x meet criteria in rule 10- see manual – write up. Page 153. Also case write up.

Viii. Rule against executive appointments in a company – Rule 11

Rule 11An advocate and solicitor shall not accept any executive appointment in any company.

- Requirement to be silent partner/ director

- Must 1st write to the Law Society if want to start business – Law Society will then consider whether it fits the dignity of the legal profession

- Rule against lawyers holding executive appointments in a company- Not allowed to be ex directors of companies which are real estate or property developers because lawyers have

monopoly of conveyancing. - Law soc to keep regist of locums – they have duty to tell where practicing within 7 days. If decide to stop,

must also inform law soc ouncil within 7 das

ix and x - Rules 11A and 11B- Impt rules. Brought into force 1 dec 2001. law soc crafted rules to deal with prob in profession – tt lawyers

have third aprties tout business for them or unfairly bring work to them ie unfair practices to attract work- Law soc concerned – law firm being controlled by the tout. This undermines indep of profession which is key

of general ethical code

- Touts – breach of fid duty to client. If profession dominated by such practices, not in public interest. Also undermines independence.

- 1999-2000 – council decided to create these rules. Inspired by English referral code which existed in 1990.

ix. Rule against touting, referral of work by Third Party – Rule 11A

Rule 11A1. An advocate and solicitor, a law firm or a law corporation shall not tout for business or do anything which is

likely to lead to the reasonable inference that it is done for the purpose of touting.

2. Without prejudice to the generality of paragraph (1), where there is reason to believe that a client is referred

to an advocate and solicitor, a law firm or a law corporation by a third party, the advocate and solicitor, law firm or law corporation, as the case may be, shall —

Rule 11A(2) Comments(a) maintain the independence and integrity of the profession and not permit the referror to undermine the professional independence of the advocate and solicitor, law firm or law corporation;

Ask developer not to publicise referror – ensures that independence and integrity of the legal profession is not undermined

(b) not reward the referror by the payment of commission or any other form of consideration;

Cannot offer referror rewards

(c) not allow the referral in any way to affect the advice given to such client;

Does not affect advise given to clients; Thus when act for purchaser, cannot be looking out for developer’s interests

(d) advise the clients impartially and independently and ensure that the wish to avoid offending the referror does not in any way affect the advice given to such clients;(e) ensure that the referror does not in any way influence any decision taken in relation to the nature, style or extent of the practice of the advocate and solicitor, law firm or law corporation; and

Must not allow referror to influence your practice (or any decision relating to your practice)

(f) communicate directly with the client to obtain or confirm instructions in the process of providing advice and at all appropriate stages of the transaction.

Always communicate directly with your client for instructions (not the referror)

- Rule 11A(2) – general principles – before accepting work referred by a Third Party, must ensure the following subsections (a)-(f)

- No case law to date- No definition of the term “touting” in the Rules

*Example:

If a debt collection agency refers clients to a law firm for recovery of their debts, the law firm cannot allow the referror to dictate the legal steps taken for the recovery or accept that all instructions for the progress of the case be communicated to the law firm by the referror only. Even if the referror produces a letter of authority on the client’s behalf, the practitioner has a duty under rule 23 of the Professional Conduct Rules to verify the authority of the agent to give instructions

- Section 79 LPA prohibits a lawyer from acting for both the developer and the purchaser

Section 79 LPA(1) Where a solicitor acts for a housing developer in a sale of immovable property developed

under a housing development, no specified person shall, in the sale of any immovable property developed under the same housing development, act for the purchaser of the property unless a certificate of fitness for occupation in respect thereof has been issued by the Commissioner of Building Control or other relevant authority.

…(4) Disciplinary proceedings may be taken against a solicitor who acts in contravention of

subsection (1)- Rule against Touting - Rule 11A(1) – law firm shall not tout for business or do anything which can lead to

reasonable inference that it was done for touting. See article. Touting is recognizable. Business comes to law firm where third party asks for benefit in return for doing this work. Eg cut fr legal fees/ commission or some other considerationf r law firm in monetary terms. There will be evid of fee sharing, etc

- see s83 (2) d,e, f - LPA – specific offences of touting. When lawyer prosecuted, will find evid to charge him under those sections.

- Rules on acceptance of referral work by a third party

- General principles on acceptance of referral work-Rule 11A(2) paragraphs (a) to (f)- 6 stds lawyers must comply with if to get work referred to him

o touting is breach of code but understand business of referral (fr clients/ third parties) – this is ok. But if for referral, promise referor benefit – this might amt to benefit and touting.

a) x undermine your indep as lawyer. You will act and advise client in his best interests, not the referor.b) No reward paid to referor for work eg even gift/dinner vouchers. These are rewards. Real estate agents are the

main referors.c) X allow referor to affect ur legal advice. (part of independence)d) Referor x affect ur duty to give impartial advice for fear of offending the referor (part of independence again)

=> indep stressede) Must not affect or influence how u carry on ur practice – ur nature and style of practice

a. S33 LPA only lawyers have auth to ask for letter of dd. Debt collection agencie go to law firms and get them to do letter of dd work. Ask them to set up structures/practice/employ someone who wil take directions. These is breach of e because influencing style of practice and how u give advice.

b. Again indep affectedc. This is not a referral arrangement. This is a toutingarrangement – giving up own independnece

f) Ony communicate directly with client to get instructions and not fr referor. If referor x understand this decline the referral arrangement

x. Requirement for written agreement for referrals for conveyancing services – Rule 11B

Rule 11B(1) In addition to rule 11A, when an advocate and solicitor, a law firm or a law corporation enters into agreements for referrals of conveyancing services, the advocate and solicitor, law firm or law corporation, as the case may be, shall ensure that the agreement is made in writing and contains the following terms:

Qualification/ Terms: Rule 11B(1) Comments

(a) the referror undertakes in such an agreement to comply with these Rules and the Legal Profession (Publicity) Rules (R 13);

Comply with Publicity & Professional Conduct Rules

(b) the advocate and solicitor, law firm or law corporation shall be entitled to terminate the agreement forthwith if there is reason to believe that the referror is in breach of any of the terms of the agreement;

(c) any publicity of the referror (whether written or otherwise), which makes reference to any service that may be provided by the advocate and solicitor, law firm or law corporation, must not suggest any of the following:

(i) that the conveyancing service is free;

(ii) that different charges for the conveyancing services would be made according to whether or not the client instructs the particular advocate and solicitor, law firm or law corporation; or

(iii) that the availability or price of other services offered by the referror or any party related to the referror are conditional on the client instructing the advocate and solicitor, law firm or law corporation; and

Any publicity referror does of legal services, he cannot say that conveyancing service is free, or suggest that conveyancing fees are different and cannot tell purchaser that any perks/ prices on property is dependent on instructing a particular law firm

(d) the referror must not do anything to impair the right of the client not to appoint the advocate and solicitor, law firm or law corporation or in any way influence the right of the client to appoint the advocate and solicitor, law firm or law corporation of his choice.

- To deal with mischief of conveyancing- If any referral of conveyancing work, must get referral in writing (difference between conveyancing and non-

conveyancing work)- Important that regardless of who purchaser instructs, it ultimately is the consumer’s choice- If law firm enters into agreement, where the principal/ lawyer finds referror in breach, must terminate

arrangement immediately; If not, amounts to professional misconduct

*Example:A developer who has recently launched a residential development approaches your law firm with an offer to refer all purchasers’ solicitors’ work to your firm, you must enter into a written agreement with them. Before doing so, if you are informed that the offer to the purchasers who instruct your law firm would be that they would receive a legal costs subsidy from the developer that would not be offered to purchasers who instructed another law firm, then you must refuse this arrangement. The publicity of the developer/ referror would certainly suggest that purchasers can obtain free or reduced legal charges for conveyancing by instructing your law firm. This could influence the right of the client to appoint a law firm of his choice.

Law Society of Singapore v Disciplinary Committee [2000] 4 SLR 413 (A very important case – advisable to read!)W, developers of a condominium project, had informed purchasers that they would settle legal costs, stamp duties and disbursements in respect of their purchase only if certain law firms identified by the developers were appointed. The solicitors concerned were charged for improper conduct (contravening section 83(2)(b), (h) LPA) – that they had agreed to and participated in W’s scheme, which allowed W to retain their law firms, or alternatively tout for business on behalf of their law firms.

In this case, the Council was dissatisfied with the Disciplinary Committee’s determination that, in accordance with section 93(1)(a) LPA, there was no cause of sufficient gravity to render disciplinary action against either solicitor concerned. The Council applied under section 97 LPA for an order directing solicitors to show cause under section 98(1) or alternatively directing Council to apply under section 98 of the Act.

*Held: (dismissing the Council’s application)(inter alia)(1) The Disciplinary Committee had made a conscious decision to find that the solicitors concerned only

accepted the invitation to sit on the panel and not that they had agreed to participate in the alleged scheme (2) By accepting the invitation to be on the panel, they must have given their consent to W to introduce or to

refer the purchasers to them or to their firms. However, this did not constitute ‘touting’ under r 5(c), since neither of the solicitors concerned nor their law firms had agreed to provide services to W in return for payment from W. There was clearly no agreement between W and either of the solicitors concerned or their firms. Neither of the solicitors concerned nor their firms at any time at all bound themselves with W to provide any services for the purchasers.

(3) The Disciplinary Committee’s finding was that when W offered the purchasers options to purchase the housing units, W also extended the offer of paying legal fees to the purchasers. Thus, the agreements were not between W and the solicitors concerned or their firms but between W and the purchasers. W’s scheme was in effect a discount given by W in good faith to the purchasers in order to make the purchase of the housing units more attractive at a time when the residential property market was lack.

(4) On the evidence, when the solicitors concerned were invited by W to be on W’s panel, both solicitors had emphasised that W must make it very clear that the purchasers were not compelled to appoint their respective firms, and that they were free to use whichever firm that they wanted. W’s representative had given that assurance to the solicitors concerned. All the purchasers had also been informed accordingly, and some of the purchasers had in fact appointed other solicitors or law firms that were not on W’s panel. Thus there had been no breach of para 2.3 of the Practice Directions.

(5) The fact that there were only two law firms on W’s panel was not significant. W had limited its panel to two firms merely for administrative convenience. In any event, it was not for the solicitors concerned to decide who was to be added to or removed from the panel. Furthermore, in each case, it was up to W and its buyer to agree upon and to decide if legal fees incurred by the buyers would be paid by W, regardless of whether the law firms on the panel had been retained or not.

(6) It may be wrongful for a party to exercise undue influence or coercion over a buyer in connection with his choice of solicitor. However, in the present case, the solicitors concerned had not participated in the scheme as alleged. The agreement in the present case was between W and the purchaser, and the solicitors concerned or their firms were not party to that agreement. Thus, the solicitors concerned had not breached para 2.3 of the Practice Directions.

(7) The solicitors concerned and their firms had acted in the best interests of the purchasers who had retained them, and there was no evidence that in the discharge of their professional duties they were in any way at all influenced by having been on W’s panel, or that they had done anything that compromised or impaired their professional independence or integrity or that it was likely to do so.

- Requirement for a written agreement between a law practice and third party for the referral of conveyancing services – Rule 11B- at this time, biggest area of touting was conveyancing. So in this field, additional resp – apart fr 6 stds

above, if referred conveancing work, referral arrangement must be in writing. This must specify tt referral will honour rule 11A and 11B. the referor undertakes to comply with our publicity rules.

- if no written referral letter, then solicitor is automatically in breach.

- 11B(1c) – referor will NOT tell purchaers/ clients that they will not pay legal fees because they pay legal subsidy. Again, consumer will feek that he does not get indep legal advice because referor is controlling the legal fee. So conveyancing service cannot be free – msut be agred by client

- also 11B(2c) – referor agrees that diff charges will not be made if purchaser goes to law firm that referor didn’t refer.

- 11B(2d) – referral grees not to impair right of client to refer to sol of his choice- 11B(3) – law firm must terminate arrgnemt with referor if knows that referor is not complying with 11A and

11B

- Law Society of Singapore v Lau See-Jin Jeffrey [1999] 2 SLR 215: Singapore Court of Appeal held that the respondent in that case had in fact agreed to a commission for successfully procuring his employment as solicitor for a project, which is prohibited by s. 83(2)(e) Legal Profession Act

Facts

Shijiazhuang Fuqiao Real Estate Development Co Ltd (“Fuqiao”) was a developer of a China project.  They requested New Start International Trading Pte Ltd (“NSI”), to find a law firm to witness and arrange for the authentication of the sale and purchase agreements between Fuqiao and their purchasers.  NSI found Lau See-Jin (“Lau”), sole proprietor of M /s Lau & Co.  Subject to Lau being appointed by Fuqiao, Lau agreed to pay NSI 30% of his legal fees for NSI’s consultancy and management service to the project. Lau described the payment as a “service fee” and payable to NSI when Lau had received his legal fees and disbursement.  Through NSI’s efforts, Lau was appointed to act for Fuqiao.  By a letter dated 14 August 1995, Lau informed NSI that he was rescinding the agreement dated 5 June 1995.On 4 April 1996, NSI solicitors demanded from Lau payment of the agreed “service fee”.  NSI also complained Lau’s conduct to the Law Society.  Before the Disciplinary Committee, Law Society argued that the sum which Lau agreed to pay NSI was a commission.  The Disciplinary Committee found that Lau’s scope of work under the project was limited to witnessing the execution of sale and purchase agreements, and on an objective constuction of the 5 June 1995 agreement, the parties’ true intention was that Lau would pay NSI a commission if NSI procured Lau to act for Fuqiao.  Such agreement was in breach of s 83(2)(e) of the Legal Profession Act.The Law Society applied under s 98 of the Legal Profession Act (Cap 161) to make absolute an order to show cause pursuant to the Disciplinary Committee’s determination that there was cause of sufficient gravity for disciplinary action under s 83 of the Act to be taken against Lau.  The issue before the court was whether the Disciplinary Committee’s determination should be upheld.Held, granting the application and suspending the respondent for 5 years:(1)    The objective intention of the parties was vital in determining the true purpose of the payment. The evidence showed that the fee was not a genuine payment to remunerate NSI’s services.  First, the considerable number of sale and purchase agreements which Lau handled after terminating the agreement with NSI showed that NSI’s services and its knowledge of the locality of the project were not required for Lau’s work for Fuqiao.  Second, Lau’s charges for work done to the project should have been reduced after terminating the agreement.  Third, NSI must be paid for its service regardless whether Lau had received his.(2)    The Disciplinary Committee’s determination was upheld.(3)    Although Lau had not acted dishonestly, he fell short of the integrity and impartiality expected of a solicitor.  A mere censure would not suffice. A charge under s 83(2)(e) of the Legal Profession Act was a serious charge. Lau was to be suspended from practice for five years with effect from 12 February 1999.

Power to strike off roll or suspend or censure83. —(2) Such due cause may be shown by proof that an advocate and solicitor — (e) has, directly or indirectly, procured or attempted to procure the employment of himself or any advocate and solicitor through or by the instruction of any person to whom any remuneration for obtaining such employment has been given by him or agreed or promised to be so given;

xi. Rule 11C –Locum Solicitor- The requirement by a locum solicitor to advise the Society of his date of commencement and period of

engagement as a locum solicitor.

Part III – Relationship with clients: - see chapter on rr with clientsLawyer’s Duties in Part IV – conduct of proceedings – see chapter on rr with court

Illustrative Examples of Unsatisfactory Quality of Service- failure to keep client reasonably informed- failure to answer reasonable requests- unexplained failure to respond to telephone calls- failure to keep appointments- informed that some step will be taken by a certain date, but letting date pass without follow-up- failure to answer within reasonable time- repeated mistakes or omissions in statements- failure to inform client of proposals of settlement- withholding information

Remedies Available to Council - LPA:

a) May specify the costsb) Costs to be wholly or partly refunded or waived

c) Secure rectification at the solicitors expense or that of the firmd) Pay such compensation (not exceeding $10,000) to cliente) Take other action

Inter-Relationship between Inadequate Professional Services, Negligence and professional Misconduct- concepts of inadequate professional services, negligence and professional misconduct are distinct and separate- overlap occurs when an act/omission meets the threshold of inadequate professional services and/or negligence

and/or professional misconduct- eg. Gross overcharging will be a breach of Rule 38 and amount to professional misconduct: Abdul Rahim

Rajudin v Law Society of Singapore [1991] 1 MLJ 257 (case already in previous pages)

Professional Conduct Rules - Gross overcharging38. An advocate and solicitor shall not render a bill (whether the bill is subject to taxation or otherwise) which amounts to such gross overcharging that will affect the integrity of the profession.

Practical Suggestions- insert into a firm’s Warrant to Act, a suitably worded clause on agreement by client to submit a complaint on

Inadequate Professional Services to mediation

Novel Provisions in the Rules- Rules, to the extent of any inconsistency, prevails over the Practice Directions and Rulings 1989 (“PDR”)

issued by the Law Society or any additions or amendments to the latter- Rules which have superseded the provisions in the PDR:

Rule 41 To protect his lien to release all documents and provide any assistance as is necessary to enable the

incoming advocate Change from previous practice: Leo Abse & Cohen v Evan G Jones (Builders) Ltd present rule draws

no distinction between situations where the discharge of the former solicitors was with or without cause

Rule 49 Need not obtain the consent of another advocate and solicitor to provide a second opinion on a

matter to a client Rule prohibits the second advocate and solicitor from attempting to influence the client to determine the

first advocate and solicitor’s retainer Liberalizes the previous position stated in Rule 14 of PDR i.e.: “solicitor should not, however, act in a

matter in place of another solicitor whom he knows has been retained until that retainer has been determined by the client or the consent of the first solicitor to the seeking of a second opinion adverse to that of the first solicitor whilst he continues to act can only be calculated to undermine the client’s confidence”

In this author’s view, an attempt to subtly or overtly undermine the standing and competence of the first solicitor could amount to influence to determine the first solicitor’s retainer

Rule 70 Stipulating that 48 hours notice of intention to enter judgment in default must be given to another

advocates and solicitors This rule revokes Rule 33(a) of the PDR stipulating a 24-hour notice period There is still a grey area as to whether the Rule applies to a judgment to be entered in default of

appearance where prior to the action, the defendants have already been represented by solicitors in correspondence

This issue is whether such solicitors are “on record” for the purposes of Rule 70(1) Having regard to the mischief that the Rule seeks to cure i.e. the taking advantage of an opposing lawyer’s

oversight or inadvertence, this would probably extend to such judgments, especially where the defendant’s solicitors had accepted service of the Writ of Summons on behalf of the defendants