Professional responsibility: relationship with other advocates and solicitors and third parties

Overview- Rr with fellow solicitors

- General rules- Specific rules- Eg of complaints

- Rr with third partieso Specific ruleso Eg of complaints

RR WITH OTHER SOLICITORS

1. r. 47 of Legal Profession (Professional Conduct) Rules exhorts advocates and solicitors to treat their professional colleagues with courtesy and fairness

Relationship with other advocates and solicitors47. An advocate and solicitor shall treat his professional colleagues with courtesy and fairness.

- General principle – do unto others as you wld have them do unto you- should never be a case of “one-upmanship” - Re J L P Harris:

solicitor felt that the police prosecutor had “put one over him”, so in turn he was going to “put one over the prosecutor”

It was a very simple case of a traffic offence He knew that the prosecution wanted a certain witness and he kept that witness out of the

prosecution’s reach until the case was closed The Disciplinary Committee which inquired into the matter found the respondent guilty of

grossly improper conduct He deliberately arranged for Heyes to be kept out of the way of the prosecution It was held that the respondent was deeply and grossly guilty of improper conduct and was

entirely unworthy as a member of the Bar, and should be suspended from practice for 3 months

- Law Society v Seow Francis T [1973] 1 MLJ 199: you should always refer to your opposing counsel as “my learned friend”, when you address the court, you always respectfully use the term “Your Honour” before the Chief Justice or a Judge in the High Court and “Sir” in the Sub Courts

Facts: The respondent was an advocate and solicitor. Ratnam joined his firm as a profit-sharing partner. The firm was instructed by Gemini Chit Fund Corp Ltd, now in liquidation, in connection with chit fund matters. Ratnam was the solicitor in charge of all Gemini matters. Later, the Minister for Finance, acting under the Chit Fund Act presented a petition for winding up Gemini. During this time, the respondent discovered a questionable letter sent by Ratnam. He merely questioned Ratnam about it, on the disposal of Gemini`s movable property in Malaysia. The respondent`s firm also acted as solicitors for Gemini in the winding up proceedings. Sometime later, a police party arrived at the respondent`s office with a warrant for the arrest of Ratnam and a search warrant to search to the respondent`s office. The respondent refused to allow the police to search his office. He called the Attorney General on the telephone and gave his personal undertaking to hand over to the police all books, files and documents relating to Gemini. The Attorney General relying on the respondent`s undertaking instructed the police to discontinue the search. The respondent subsequently relying on his partner, Ratnam, confirmed to the Attorney General that all files relating to Gemini had been handed over to the police. It was later found that two files relating to Gemini`s affairs and two deposit receipts and the seal of Gemini were in the respondent`s office.A disciplinary committee appointed by the Chief Justice found the respondent guilty of grossly improper conduct in the discharge of his professional duty under s 84(2)(b) of the Legal Profession Act (Cap 217, 1970 Ed) in failing in his duty to ensure that the letter to Gemini in Malaysia (having regard to its criminal nature, the full import of which was apparent to the respondent), was not countermanded, withdrawn, repudiated or otherwise negatived. The disciplinary committee also found the respondent guilty of grossly improper conduct in the discharge of his professional duty under s 84(2)(b) in giving his undertaking to the Attorney General so recklessly and irresponsibly. On an application to show cause under s 84 of the Legal Profession Act,

Holdings: Held, suspending the respondent from practice for one year:(1).The respondent was not only guilty of an error of judgment in relying on and placing his trust in a partner but also was guilty of improper conduct in the discharge of his professional duty. It was wholly deplorable conduct of him as a man and dishonourable of his profession.(2).It was not only gross misjudgment of Ratnam`s character but also the gross failure on his part to honour his undertaking to the Attorney General. A simple and normal step to take was for the respondent to give express orders and directions to every member of his staff to search every room of his office for any relevant files or documents relating to Gemini, but this was not done. It was culpable negligence on the part of the respondent amounting to grossly improper conduct in the discharge of his profession.

- Rondel v Worsley [1969] 1 AC 191: Counsel being an officer of the court concerned in the administration of justice and having an

overriding duty to the court and the public Implicit trust between the Bench and the Bar which does so much to promote the smooth and

speedy conduct of the administration Approved the statement of the court in Swinfern v Lord Chelmsford [1860] H&N 890 to the

effect that the duty undertaken by an advocate is one in which the client, the court and the public have an interest because due, proper and orderly administration of justice is a matter of vital public concern

Principle: The 2 over-riding principals are

(1) to act in good faith/honesty(2) to act with courtesy

- the consequences of this rule is that you can never carry out a conduct that is deceitful or fraudulent

- Sir Thomas lan – need to balance overriding duty to client with eq impt duty to act with max frankess and gd faith when acting with fellow colleague – do not prej interests of client but still copperate and mutual courtesy -> strengthens profession; public interest

- Also reciprocal; or can help in referral work. If not unpleasantness and genral decline in public standing of profession

- This duty stands apart from your duty to act in the best interests of a client. - Specifically, you’re required to conduct yourself in an honest, reasonable and reliable manner towards your

colleagues. o Its focus is to maintain the tradition of co-operation and assistance between members of the

profession so far as is possible without prejudicing the interests of your client. o Why?

Such maintenance would make the practice of law more enjoyable and also strengthen the profession and the general administration of justice.

Fosters a spirit of reciprocity Help others to Help You!

o Note: A breach of this rule includes not responding to calls or letters from other solicitors. If you

have ceased to act for your clients, you should let the other party(s) solicitors know of your discharge.

The granting of indulgences can be considered – e.g. Giving a time extension to the other side if it doesn’t impinge on your client’s interests OR compromise specific instructions given by your client.

If you tape record a conversation between you and another lawyer without his knowledge/consent, it is a breach of Rule 47.

- It is also the essence of the legal profession that its members must be able to rely on each other's word, whether given by way of an oral promise, a letter or by a formal undertaking [see rule 51 below on Undertakings to Lawyers and the Court]

- Articles – SLG april 1997 – when dealing with other solicitors

- SLG sept 2004 – towards a more couterous proff rr (Sg law gazette)

2. SHARING OF FEES:

Increased specialisation and the need to tap the experience of more senior lawyers has given rise to the question of the sharing of costs between such ‘specialists’ and instructing counsel.

9.2 Council Ruling – Sharing of Fees Between Solicitorsa) Seeking Guidance

An appropriate fee may be agreed upon between the solicitors seeking and giving guidanceb) Referrals

Solicitor in question should not claim costs for a mere referralc) Retainer

Solicitor continues to be the solicitor on record. Fees of the senior counsel may be separately agreed upon, or the fees charged to the client may be shared between the solicitor or record and the counsel appearing in court

- Client’s consent should be obtained before the brief is referred to another solicitor

There are 3 Situations in which ‘Sharing’ may arise:(1) Seeking Guidance: o Where a Solicitor needs to consult another solicitor who is either a specialist or more experienced member of

the profession with regard to some aspects of a case on which he is unsure of or needs guidance The instructed solicitor may obtain an opinion – either orally or in writing from another

solicitor. An appropriate fee may be agreed between them. Nothing improper in seeking such kind of assistance.

(2) Referralso A solicitor referring a matter to another solicitor who may have better expertise and experience than the

former Mere referrals should not result in any costs being demanded or incurred on the part of the

referring solicitor. Tantamount to ‘Brokering’ if otherwise Should not be permitted or condoned. No Costs should be claimed by the referring solicitor.

(3) Retainero Where the solicitor retains the services of the counsel owing to seniority and specialist knowledge

Instructing Solicitor remains the solicitor on record. Often engages the services of the senior counsel to appear in court. Fees of more senior counsel?

Either separately agreed upon, OR the fees charged to the client may be shared between the 2 solicitors.

NOTE:o In (1) to (3), the instructed solicitor should consult and inform his/her client that another solicitor will be

handling/assisting in the matter due to its complexity. o Client’s consent should be obtained before the brief is referred. --- Lack of consent opens the solicitor to

possibility of improper conduct and a complaint by client.

3. OTHER SOL’S CLIENTS –

RULE 48: No Communication with Represented Clients48. . —(1) An advocate and solicitor shall not, directly or indirectly, communicate with a client of another advocate and solicitor in the same transaction, except — (a) with the express approval of such other advocate and solicitor; (b) where it is not reasonably practicable to communicate with the other advocate and solicitor; or (c) where the interests of the advocate and solicitor’s client will be severely prejudiced if the communication is delayed. (2) In the case of paragraph (1) (b) or (c), the other advocate and solicitor must be informed as soon as possible.

Principle:

- Improper for one practitioner, whether directly or through an employee or agent, to contact the client of another practitioner in a particular matter without the latter’s consent.

- Irrespective of whether it is the other’s client who initiates contact with you! - Related Principle:

o A solicitor should not attempt to prevent a colleague from communicating with or obtaining instructions from that colleague’s client.

- In all cases of (a) to (c), you must inform the other counsel as soon as possible.

Details- Letters of Demand should be directed to the other side’s lawyers if there is reason to believe that they have

engaged counsel. - Express approval under (a) – includes CDR sessions.

Note: Where Delay by Other Counsel is Prejudicing Your Client

Rule 48 (1)(b) & (c) tend to go together E.g. persistent non-communication by the other side and your client’s interests are prejudiced.

- You would be justified in informing the practitioner in default that you will communicate with his or her client direct, unless the practitioner completes his or her part of the transaction within a specified period.

- Such communication should be in writing and should state that upon expiration of the specified period and no response is forthcoming, you will communicate directly with his client.

- If nothing happens at the expiration of the specified period, you could then write directly to the defaulting practitioner’s client. A copy of the letter should be sent to the defaulting practitioner.

- form of letter is important; terms should be neutral. o Letter to the other side’s client should explain the urgency of situation, and that they should contact

their solicitors immediately. - Example: in a delayed conveyancing transaction

“I act for the purchasers in respect of the sale of your house at . . . The contract provides that completion should take place on the . . .It is vital for my clients that settlement is not delayed as they have sold their own home and have arranged to vacate on the . . .Although Messrs B & C act for you, I have written to them on. . .occasions without response, and many telephone calls remain unanswered. There are many procedural steps which must be completed to ensure that settlement will take place on the due date. Would you please contact your solicitors immediately and instruct them to take appropriate action to protect your interests. If they are no longer acting for you, would you contact me immediately so that we can discuss the future of this transaction. A copy of this letter has been sent to Messrs B & C.”

- procedure should be resorted to only in an extreme situation where further delay will prejudice the interests of your client.

- should not be used simply to overcome your annoyance or frustration.

- Exceptions – in event of prejudicial delay/ not practicable to communicate with other sol/ where interests of client will be prejudiced – other adv must be informed as soon as possible. Improper forone practitioner directly or through another agent to contact another practitioner’s client on another matter; even if client himself approaches practitioner

- If this happens, if certain admissions made by client to you – will become problematic as to whether can use such info

- Rr principle – shld not prevent colleague fr communicating or obt instructions fr his own client- In sitn where opposing practitioner is refusing or delaying taking steps in matter or refuses to ans

correspondence -> client will be pressing for ans and why matter delayed., here, justified in informing opposing counsel that will have no choice but to communicate with her client directly unless practitioner compeltes his part of transacitn.

- This must be in writing and if nothing happens n expiration of specified period, then he will write to client directly. He must respond within specific period of time.

- Ensure that copy letter to opposing counsel when write to client. - Form of letter impt – ensure that terms of letter are neutral. - Procedure only rsorted to in extr sitn where further delay prejudicial to client. Not mereky to overcome

client frustration or your annoyance

4. RULE 49: SECOND OPINIONS

49. An advocate and solicitor may give a second opinion with or without the knowledge of the first advocate and solicitor except that the second solicitor shall not improperly seek to influence the client to determine the first advocate and solicitor’s retainer.

Principle- Rule concerning 2nd opinion- clients tend to lawyer-shop, even when they may have counsel on record. - good practice is to ask a first-time client if they already have a lawyer on record. Most clients wanting to

switch lawyers would say so at the outset, but there will be those who may be unhappy with their lawyer, rightly or wrongly, and who may be shopping around for a replacement or trying to get a second opinion.

- Do not have to seek consent of lawyer retained to get 2nd opinion- When being consulted on 2nd opinion, must not do anything to influence client to end retainer- In practice, prudent to inform retained lawyer- Also necessary to contact retained lawyer as client may not have all the documents with him – need to

request documents from retained lawyer- Note too that the retained lawyer may still be owed his fees! – He would have a lien over the

documents! o i.e. a General Lien – Covers all property which comes into the solicitor’s possession in the

course of his professional employment which are the client’s property. The lien only extends to a solicitor’s taxable costs – does not cover costs due to the

solicitor in a capacity other than that of a solicitor. It extends to all costs due to the solicitor and is not limited to the costs incurred in

relation to the particular documents in question or upon the particular instructions in consequence of which the property came into the solicitor’s possession.

o N/b: see pp 86 of Manual and note another type of lien – Particular Lien. i.e. A right to ask the court to direct that personal property recovered under a judgment

obtained by a solicitor’s exertions stand as security for his costs of such recovery. - usually, you will need access to the documents, so you will have to write to the other party to get

access- usual practice is to cc the 2nd opinion to the 1st lawyer, but there is no strict requirement that you must

let him know- when giving the 2nd opinion, you must not do anything to influence the client to determine the

retainer

- When start practice, clients like to lawyer shop. Good practice is to ask first time client whether have lawyer on record. Don’t assume they don’t. rule states that can gi ve 2nd opinion with or without knwldge of first sol but x improperky influence client and determine retainer with first solicitor.

- In event that find that neutral second opinion results in client choosing u over former sol, then rules governing how u shld take over brief -

5. RULE 50: TAKING OVER BRIEF

50. An advocate and solicitor who finds, on receiving instructions, that acceptance of the instructions would amount to his replacing another advocate and solicitor who has previously been instructed in the same matter, shall inform the other advocate and solicitor that instructions have been given to him and advise the client to pay the outstanding costs, if any, of the other advocate and solicitor before accepting the brief.

- Where client terminated retainer (at any time without any reason – Rule 41)- if you are told to take on a matter as instructed by a client, from another lawyer, as a matter of

professional courtesy, should call and write to the other lawyer - if there are any unpaid costs, you should undertake to hold the documents in lien pursuant to rule 41 (i.e.

the rule requiring the previous solicitor to co-operate and hand over documents that are in his possession upon an undertaking to protect his lien upon the documents)

- you should also undertake to advise to the client to pay any outstanding costs

- Note:

o The reason for writing is so that the 1st lawyer cannot complain that the 2nd lawyer ‘stole’ his client.o Likewise, the other side’s lawyers cannot object to 2nd lawyers taking up the case. Same so for the 1st

lawyer – who can only move to protect his lien for fees due to him. o Usually: The 2nd lawyer undertakes to protect the 1st lawyer’s fees. [In exchange for documents

pertaining to the file]

- Once given, the 1st lawyer must hand over the documents or will be guilty of professional misconduct- Shld inform other solicitor of instructions – that they have been given to you to take over matter. Advise

client that he needs to pay outstanding costs.- Advise him to do so – as matter of practice. Good to impress on client tt cannot just switch lawyers or get

away fr paying costs to prev lawyer. - Then if this happens to urself, your own fees wont remain unpaid.- Solicitor’s lien – issue of advising new clkient to pay fees of prev sol is apart fr fact that former sol have lien

over the cost.

6. RULE 51: PROFESSIONAL UNDERTAKING

51. An advocate and solicitor shall honour the terms of a professional undertaking given to another advocate and solicitor, a court of law, tribunal, client or any other person.

- effectively a promise made to other adv and sol, court of law, trib, client or other person – undertaking to do sth

- Impt thing is that be careful what u promise, don’t promise sth not within ur control to carry out – eg if give undertaking that client will make payment by certin date, this wld be diff to give unless u have ensure dhtat money paid has been handed over to you and you caryr uot undertaking.

- Otherwise in event that client defaults, wil have to make gd amt, not defence to say tht client not paid money and canot pay. Be careful when you give undertaking because beach pr se is discip offence., no enquiry as to how undertaking came about strongest personificaqtion of idea that your word is your bond. So if you give it, yuou have to ensure htat you can make it good.

- if the lawyer gives an undertaking to the court or client… being a professional undertaking by the lawyer, undertakings are strictly construed against the lawyer (common law rule adopted)

- when you are giving an undertaking, then you should make sure that you can fulfil it- if you give an undertaking on behalf of the firm, then you are in fact binding the partners of the firm- you may be sued on the undertaking … if you are going to rely on 3 rd parties to fulfil that undertaking… don’t

give it, unless you are in the driving seato You must be in a position to fulfil the undertaking YOURSELF, not by other lawyers in the firm or

by your client even if performance depends on your client. Common law cases: Courts always interpret undertaking given against the lawyer View

taken that you’re not excused from it because of impossibility to carry it out; If impossible, do not give undertaking in the first place!

Thus, important to draft clearly to prevent ambiguity interpreted against you Civil consequence (especially if given to third party) + professional misconduct

NB: Some firms do not allow their lawyer to give an undertaking on behalf of law firm/ corporation (Most firms bar this practice)

Cases:

Re Francis Seow [1973] 1 MLJ 199 Facts:- Pursuant to a search warrant, the police sought to search the premises of FS’s office for files relating to the

Gemini Chit Fund. Respondent (FS) refused to allow this and instead telephoned the Attorney General, giving an oral undertaking to hand over to the police all books, files and documents relating to the Gemini File. An Issac Paul Ratnam was running the file at that time. The Attorney General relying on the respondent`s undertaking instructed the police to discontinue the search. The respondent subsequently relying on his partner, Ratnam, confirmed to the Attorney General that all files relating to Gemini had been handed over to the police. It was later found that two files relating to Gemini`s affairs and two deposit receipts and the seal of

Gemini were in the respondent`s office. Ratnam was caught by police observing the respondent’s office, trying to dispose of the two files. Proceedings were brought under s 84(b)(ii).

Held, suspending the respondent from practice for one year: - On Professional Undertakings: “It was not only gross misjudgment of Ratnam`s character but also the

gross failure on his part to honour his undertaking to the Attorney General. A simple and normal step to take was for the respondent to give express orders and directions to every member of his staff to search every room of his office for any relevant files or documents relating to Gemini, but this was not done. It was culpable negligence on the part of the respondent amounting to grossly improper conduct in the discharge of his profession.”

- Respondent had spent 2 hours after giving the undertaking to the AG discussing the validity of the search warrant with Ratnam, no search was ordered at all.

- In fact, the respondent did nothing at all to ensure, by all the means within his power and control, that he honoured his undertaking. It is to be observed that before he gave the undertaking he was already aware that Ratnam had in fact sometime earlier `caused some files to be brought to the third room from the front portion of the office because the police were coming to collect them and he wanted to prevent the police from getting them. Respondent had in fact ordered that these files be returned at the front of the office. Hence, a through search should have been done.

Side Point:- respondent tried to rely on a taped recording (made by him) of a conversation with Ratnam after an

explanation had been sought from him by the Inquiry Committeeo Court gave minimal weight to it Coz Made without Ratnam’s Knowledge!!!

Re David Marshall [1972] 2 MLJ 221 Facts:David Marshall gave an undertaking in chambers, to the Attorney General before the Chief Justice, that affidavits of four persons detained under the ISA, in their habeas corpus applications that: “The Attorney General need have no anxiety about our office because we never give any pleadings to the press before trial and I can assure you that neither I nor my office have given these affidavits to them for publication.”Turned out that respondent passed subsequently made available to the foreign press the contents of the affidavits after obtaining solemn assurances from the press that the contents thereof would not be published. Proceedings subsequently brought under s 84(b)(ii) LPA.

Held:(1).The respondent meant the undertaking to be understood by the Attorney General that neither the respondent nor his office would be a party to the contents of the affidavits being made available to the `press` using the expression `press` in its generally accepted connotation without any qualification whatsoever. (2).The respondent acted with premeditation and deliberation and he had to have forseen that one of the consequences of his making available to the press the contents of the affidavits was the likelihood of the contents being published in the news media. (3).The test of what constitutes `grossly improper conduct in the discharge of his professional duties` has been laid down in many cases to mean conduct which is dishonourable to him as a man and dishonourable in his profession. Applying that test and taking into consideration the fact that the respondent was a leading member of the legal profession in Singapore, that the undertaking was given to the Attorney General in the presence of the Chief Justice, that the matter had aroused considerable public interest and the interest of journalists and pressmen all over the world, and the fact that the legal profession here had to be zealous and constantly endeavoured to uphold its standing in the community by strict adherence to the ethics and etiquette accepted as binding by the profession on its members; the respondent was suspended from practice for a period of six months, the period of suspension to commence from the date of the order.

Law Society of Singapore v Suresh Kumar Suppliah [1999] 4 SLR 50 Facts:Respondent acted for complainant. However, he neglected his duty which result in default judgment being entered against the complainant. Respondent subsequently undertook to complainant that he would settle the judgment sum in 6 monthly instalments. However, after 1 payment, he defaulted. A Statutory demand was subsequently sent to the complainant by the other side and she was made a bankrupt. Respondent did not notify complainant of his failure to pay the 2nd instalment, neither did he take any steps to prevent the complainant being made a bankrupt. Held: Struck off. Professional Misconduct.

o Affirmed: a undertaking given by an advocate and solicitor imposed a higher obligation than that given of an ordinary man.

Bentley & Anor v Gaisford & Anor (Times 4 November 1996) A solicitor who gave an undertaking to hold documents to the account or to the order of another firm of

solicitors in the interest of preserving that firm’s retaining lien for a client’s paid fees, was held to be in breach of the undertaking if he photocopied the documents and sent copies to the client.

SECTION 10 – UNDERTAKINGS - Rooks Rider (a firm) v Steel & others:

Plaintiff solicitors acted for a corporation which had agreed to lend £35m to C Ltd at interest of 10% per annum, on condition that C Ltd provide H Inc with a letter of credit and would pay H’s Inc’s costs

Plaintiff’s were asked to prepare the loan contract as a matter of urgency They agreed to act upon a written undertaking being given by the defendants, C Ltd’s solicitors,

“to pay your proper fees and disbursements” It later transpired that the corporation had no funds and its directors never intended to make the

loan Plaintiffs nevertheless sought to enforce the undertaking given by the defendants in respect of

the plaintiffs’ costs of preparing the loan documentation amounting to £31, 918 Defendants contended that they were entitled to refuse to pay because the undertaking had been

vitiated by the corporation’s fraudulent intention It was held that it was professional misconduct for a solicitor, without lawful jurisdiction, not to

comply with an undertaking On the facts, the plaintiffs were not affected by any illegality rising from the fraudulent intention

of the corporation in entering into the transaction, there was thus no lawful justification for the defendants not to comply with the undertaking

This conclusion was justified as the plaintiffs had had no notice of any illegality and were in no sense successors in title of persons affected by the illegality

Defendants were directed to comply with their undertaking

- Citadel Management Inc v Equal Ltd and others [1991] 1 F.L.R. 21: Held that when a solicitor had given an undertaking or persuaded the Court to make an order

which he subsequently asserted was impossible to perform, he should not seek to be excused from the consequences of non-compliance if he elected to conceal that his performance of the undertaking or the orders was dependant on others

The giver of a solicitor’s undertaking would escape liability thereunder if, at the earliest opportunity, he informed the recipient of any change of circumstances affecting that undertaking, was not a general principle

To hold otherwise, would mean that every solicitor’s undertaking would have to be read subject to an implied term that it would only hold good so long as circumstances remained the same and the recipient had not been advised to the contrary

Such a term would destroy the business efficacy of the undertaking

Examples of common undertakings:10.1 Change of Solicitors- new solicitor writes to the client’s former solicitor asking for the papers and undertakes to see that the

latter’s costs are paid- difficulties may arise about costs being paid, so do not give such undertakings unless you hold funds from

you client10.2 Witnesses’ Allowances- practice directions and rulings issued by the Law Society of Singapore: “where a solicitor engages the

services of a professional witness he should assume responsibility for the payment of the proper fees of that witness unless at the time the services are requested he makes it clear to the witness concerned that he will be not personally responsible for payment of the fees involved and that the witness must look o the client for payment.”

- Implied undertaking that you will be responsible for his fees and that is how it is regarded between the professions

10.3 Title Deeds

- context of a conveyance- at the bottom of the schedule of deeds are the words “on the usual undertakings” - means that the title deeds will be returned to the vendor’s solicitors on demand without any lien or nay

other right of claim in respect of those title deeds

7. RULE 52: RESPONSIBILITY FOR FEES

52. —(1)   Except where otherwise agreed, an advocate and solicitor, a law firm or a law corporation, as the case may be, who instructs another advocate and solicitor, law firm or law corporation shall be responsible for the payment of the latter's fees. (2)   This rule shall also apply where the advocate and solicitor, law firm or law corporation instructs a lawyer in such other jurisdiction which recognises a reciprocal responsibility for the payment of the fees of an advocate and solicitor, a law firm or a law corporation

- In some cases, when instruct counsel, ie act as solicitor and instruct another firm to act for client, or when deling with cross border work and instructing antoher set of sol in antoehr juris, general rule is that u are resp for fees of other set of solicitors. As rule 52 states, except where otherwise agred, adv and sol shall be resp for payment of latter’s fees and rule is applicable even in case of sol in another jursi so long as that juris recog a reciporcla resp for payment of fees

- council of law soc has received complaints fr other juris lawyers who have odne work for local sol and not been paid.

- If your client instructs u to instruct another set of sol, you must get a fee estimate fr them and get ur client to pay before you actually assign tht work – hold in client account, then ensure payment made over when time comes, otherwise must make good the fees to be paid to other side. And up to YOU to look to client for payment

- once a lawyer instructs another lawyer, or other expert in any professional field in any field, he is liable to pay the fees; unless he has expressly provided that the expert is to bill the client for his fees

- as of 1st September 2001: The rule has changed so that the “expert in any other professional field” has been taken out… because there is no reciprocal rule in other professions… otherwise, Law Society will be a debt collection agency

- now, it is only in situations that the lawyer instructs another lawyer that the rule applies o Practice:

Ensure that the client pays you first before you pay the 2nd lawyer. - for lawyers instructed in another country, the rule only applies if the country of that lawyer has a similar

reciprocal rule- Nothing in this rule detracts from contractual responsibilities if any, to such professional agents or foreign

lawyers.

8. RULE 53: COMMUNICATIONS WITH OTHER SOLICITORS

53. An advocate and solicitor shall not voluntarily disclose to the Court any discussions between himself and the advocate and solicitor acting for another party without the consent of the other advocate and solicitor.

- this does not only refer to without prejudice communications- as a lawyer, you should be satisfied that the other lawyer will not tell the court what transversed during the

course of communicationso if you are going to breach this communication requirement, then the lawyer intending the breach it

will ask for adjournment - you should also not tell the client about your conversation with the other lawyer

o this would be a breach of rule 53… because under the rule, if you reveal it without his consent, then this is a breach of the general rule of fairness

- Rule applies to negotiations for settlement too Nothing to be revealed unless consent of the other lawyer obtained in advanced.

- 53 – canot disclose to court comm bet himself and other adv without consent of other adv. Extension of rule is when you have written comm with court or any tribunal in partr matter – if do so, then ensure that letter or corresp or communuicaiton is also copied to opposing counsel. If oral comm (not recommended – allegations

can be made as to exaclyt what was said) – ensure that have opposing parties’ consent and set out what exactly it is that intended to be communicated to tribunal before you make the communication.

- Same with letters. When asking for adjournment, etc, first call ur opposing counsel and inform. Then tel judge whtehr opposing counsel has agreed or has not agreed.

9. NOTE ALSO RULE 63: RULE AGAINST PRIVATE COMMUNICATIONS TO THE COURT

Communication with the Court – Rule 63

Rule 63(1) An advocate and solicitor representing an interested party shall not initiate communication with the Court about the facts, issues or any other matter in a case that the advocate and solicitor knows is pending or likely to be pending before the Court unless the advocate and solicitor has first informed the persons acting for all other interested parties of the nature of the matters he wishes to communicate with the Court and has given them an opportunity to be present or to reply. (2) If an advocate and solicitor has communicated with the Court regarding the issues in a case in the absence of the person acting for the other party, the advocate and solicitor shall fully inform that person of such discussion at the earliest opportunity.

- If write to court on any matter (fact/ law), must copy communication to other side’s lawyer- If forget to do so, must remedy the situation as soon as possible- Rule against private communication with court

- *Is there a Duty of Court?- In practice, court (esp. Subordinate courts) will ensure that the document(s) is copied to the other side’s

lawyers. (Court will usually send a letter to the solicitor, if sees that it has not been copied)

10. RULE 70: ENTERING JUDGMENT BY DEFAULT 70. —(1)   An advocate and solicitor shall not enter judgment by default pursuant to the Rules of Court (Cap. 322, R5) against any other party who is on record represented by another advocate and solicitor, or take any advantage of any delay in filing pleadings unless written notice of his intention to do so has been given to the other advocate and solicitor and 2 working days have elapsed after service of such notice. (2)   Any notice under paragraph (1) given on a working day after 4.00 p.m. or on a day other than a working day shall be deemed to have been given on the next working day. (3)   This Rule shall not operate to extend the time stipulated by any Order of Court for any action or step to be taken and no notice need to be given under this Rule before any action or step is taken upon any failure to comply with any such Order of Court. (4)   In this rule, “working day” means any day other than a Saturday, Sunday or public holiday.

- as it stands now, … if there is a lawyer on record in the proceedings, and that lawyer has entered appearance on behalf of the client… he is a “solicitor on record”

- you are “on record” only if you have entered memorandum of appearance on behalf of the client- you are not to take advantage when he delays a defence or response in matrimonial proceedings… you cannot

take advantage of it as undefended or uncontested unless you have given him 48 hours notice- the reason for this is because we don’t want lawyers to get judgement (i.e. use technical rules against fellow

lawyers) merely on technicalities Rationale = Fair Play! - rule 70(4) says that “working days” does not include Saturdays, Sundays and Public holidays - if you give notice after 4pm., then the notice will be taken to have been given on the next day [Rule 70(2)]- see also Rule 70(3) that prescribes that this rule does not apply to “unless” orders or orders of the Court

o e.g. Court wants a banker’s guarantee by 15 days, otherwise, the court will enter judgment in favour of the other party… rule 70 does not apply here

==> rule 70 makes it clear that it only applies to (1) entering judgment in default of appearance(2) claiming that matrimonial proceeding uncontested

It does not apply to Court Orders.

Note:

Council of Law Soc has ruled that the 2 days notice can only be given after lapse of the 14 days provided for the filing of a defence.

o Logically follows that earlier notice before such expiry would be invalid. Grey Area:

o Does rule 70 apply to Judgments entered in default of Appearance??? Situation: where prior to the action, the defendants have already been represented by

solicitors in correspondence. – Are such solicitors ‘on record’ for the purposes of Rule 70(1)?

Gregory Vijayendran: Having regard to the mischief this rule was designed to cure – i.e. the taking advantage of an opposing lawyer’s oversight or inadvertence, the Rule should be extended to such judgments, especially where defendant’s solicitors have accepted service of the Writ on behalf of the defendants.

Note:o Failure to pay heed to Rule 70 could land you in trouble with Rule 47! [Would not bode well in

complaint proceedings]

1. where other side rep by sol. Rule of courtesy – give notice to other side on where there is sol on record and there is manner in which notice calculated

2. effect of overlooking deadline => no judgment entered => neg suit!3. Rule restricts solicitor – when there is someone else on record – fr entering judgement. X tke adv in delay of

filing pleadings unless writeen notice of his intention to do so guven to other adv and sol and two working days elapsed after service of such notice. Reason for this – rule also talks about how this is to be computed.

4. After 4pm or on day other than working day – this is not treated as working day and treated as if gave notice on Monday : GO CHECK RULE AND UNDERSTAND. Found in LPA, not ROC

5. Working day – any day other than sat, sun and public holiday

11. RULE 71: ALLEGATIONS MADE AGAINST ANOTHER SOLICITOR

71. —(1) An advocate and solicitor whose client has given instructions to include in an affidavit to be sworn whether by the client or his witness, an allegation made against another advocate and solicitor, shall give the other advocate and solicitor an opportunity to answer the intended allegations. (2) In such a case, the answer of the other advocate and solicitor shall be included in the affidavit before the same is deposed to, filed and served.

- in cors of conducting matter, client who may have been advised in advance – matter of sol clkient privilege. He has choice to waive it. As result of tt advice, he acted in partr way, he may want to state that in his affidavit. X obj on grds of privilege. But cannot allow client to make allegations against another sol in affidavit whtout giving other sol an oppty to respond

- OPPTY TO ANS THE INTENDED ALLEGATIONS. If opt given and not taken up, then okay, can stil put in. but must –

- If client tells you that intedns to make alegaiotns, and find that they are irrelevant, dissuade him fr making, if relevant, then course need to take under rule –

1. give notice to other side as to exaclyt wat it is client intending to allege. Tell them that this is what exactly – set out verbatim what client wants to set out. Invite him to respond. Also set out time frame within which he shld respond.

2. if response is given, then when filing affidavit, make allegation but must also exhibit the response. Stimes with the response, u may want to reconsider whether u want to maek the allegation – to give fellow counsel oppty

3. in unlikely event that sol does not respond, you can state in affidavit that allegation was forwarded but no response within period of time

Rule against making of such attacks unique to Singapore’s legal profession If client/ any third party witness, in affidavit, make an attack against another lawyer (eg. For misleading/

negligence), must show draft to the opposing lawyer and give opportunity to respond to attack. I.e. cannot swear such affidavits without giving the other lawyer a copy!

Must provide copy of unsworn affidavit Other Party’s response will be exhibited as evidence together with the affidavit containing the allegations. Ensures fairness (duty to fellow lawyers)

Exception:o however, if the other party is a Defendant to the proceeding, then at law, he has no right to respond…

so no need to comply with rule 71

Some egs where complaints made to law soc and some discip action taken 1. acting in conflkict of interest2. breach of rule 71 – attack against sol acting for party in affidavit without givng sol right to respond3. offensive letters in course of acting in matter – eg in one course, when acting in for defence conduct of

crim proceedings, A upset with police prosecutor and uttered harsh remarks – inquiry committee expressed view that sol x behave in manner acrimonious or offensive eor inconsite with position as adv and sol. Must maintain integiriyt and observe courtesy to members of profession or htier staff no matter how bitter feelings between them

4. failure to give requisite notice before filing ntice of default of defence5. threatening behaviour – penalty imposed after enquiry6. without prej letters exhibited in affidavits or to court directly in breach of PD and Rules7. threatening in lod police action or making dd of costs when not entitled to by law

a. in some cases, contractual rights to interest/ sol client b. must cite provision that allows you to claim costs => then clear that entiteldf ot make such claim

to costs

DUTIES TO 3 rd PARTIES

1. Not to act against client’s interests30. —(1) An advocate and solicitor or any member of his law firm or any director or employee of the law corporation of which the advocate and solicitor is a director or an employee shall decline to advise a person whose interests are opposed to that of a client he is representing on any matter and shall inform such person to obtain independent legal advice. (2) If the person does not obtain such independent legal advice, the advocate and solicitor is under a duty to ensure that the person is not under an impression that his interests are protected by the advocate and solicitor.

- rule that if you have a client, and an unrepresented person comes to you and although no special ethical restrictions apply when interviewing unrepresented defendants/persons, it would be prudent to:

(a) inform the person of the subject matter in question and on whose behalf you act;(b) make it clear to the person that you are not acting for or advising him or her; and (c) inform the person that he or she may choose not to discuss the matter with you.

- Where there is a possibility that a witness may be later joined as a defendant, it would be prudent to advise him or her to seek legal advice or representation by another practitioner before you obtain a written statement from that witness.

2. 53A – Unfair Advantage - Relations with third parties

CODIFICATION OF A COMMON LAW RULE: Rule 53A- common law rule of conduct when dealing with third parties - this is found in Rule 53A of the Professional Conduct Rules- solicitor cannot take unfair advantage of any person or act towards anyone in any fraudulent or deceitful

manner or otherwise contrary to the position as an advocate and solicitor or officer of the court- for eg, if an advocate and solicitor copies a letter of demand sent to a third party to the third party’s

Bankers, such conduct would be viewed as contrary to the position as an advocate and solicitor- would be unfair

- r. 53A of the Legal Profession (Professional Conduct) RulesRelations with third parties53A.   An advocate and solicitor shall not take unfair advantage of any person or act towards anyone in a way which is fraudulent, deceitful or otherwise contrary to his position as advocate and solicitor or officer of the Court.

- not take unfair adv against any person aor act in way fraudulent or contrary to position as adv and sol or officer of court

- unrepresented prospective def: - nomrlaly, potential def comes and see you, u wont come on record until letter of dd is issued. Then def will

come and brief you.- For plaintiff, first letter sent off unlkikely to be firm of sol, usu will be to def himself. - Chances of coming into contact with unreprsented def is very great. - As it stands, there is no special ethical restriction that applies when interview an unrep def. but as matter of

prudence, good to take note of – 1. inform other party what is subj matter and on whose behalf you are acting – make clear! Depending on

what happens and what was told to unrep person, they may not be clear as to who you are acting for. They may think that u act for them!!! No.

2. make clear that you are not acting for him or advising him3. inform person he may choose not to dicuss the matter with you

- impt to overcome allegations later than u have done admissions through trickery or been dishonest in ur dealings with them

- Gemini Chit Fund case: Managing Director was charged with criminal breach of trust and received a very severe

sentence Minister of Finance presented a petition to wind up the Fund Narayanan was convicted of certain offences under the Companies Act and sentenced to

imprisonment

He was subsequently struck off the roll, because it was a conviction that involved dishonesty or some defect of character: Law Society v Narayanan VKS [1974] 2 MLJ 146

Facts: The respondent, an advocate and solicitor had been convicted on two charges under the Companies Act (Cap 185, 1970 Ed) and was sentenced to a term of imprisonment. Disciplinary proceedings were commenced and he appeared before the court to show cause why he should not be dealt with under s 84(2)(a) of the Legal Profession Act (Cap 217, 1970 Ed) in that he had been convicted of a criminal offence, implying a defect of character which made him unfit for the profession.Holdings: Held, striking the respondent off the roll:The respondent had acted dishonestly in relation to the transactions in question. The criminal offences of which he had been convicted implied `a defect of character which makes him unfit for the profession`.

Isaac Paul Ratnam who acted for the Gemini Chit Fund was charged with the offence of instigating the dishonest removal of property belonging to the Gemini Chit Fund in Malaysia

He was convicted and sentence to imprisonment and subsequently struck of the roll The ‘Gemini Chit Fund fraud’ produced a large amount of legal casualties

- Hilton v Barker Booth & Eastwood: Claimant entered into a contract to sell to the purchaser flats which he proposed to build The defendant solicitors acted for both parties in the transaction Purchaser was unable to complete his purchase Claimant sued the solicitors in negligence, claiming that they should have advised him of the

substantial risks inherent in entering into a contract with the purchaser Facts:

Defendant solicitors acted for both the claimant seller and purchaser. Defendants previously represented the purchaser in criminal proceedings in which he had been convicted and sentenced to 9 months imprisonment. Subsequently, purchaser failed to complete his purchaser and claimant had to sell them at a loss. Claimant sued Defendant solicitors in negligence, claiming that they should have advised him of the substantial risks inherent in entering into a contract with the purchaser. Claimant also

claimed that he would not have entered into the transaction if he had knew about the purchaser’s conviction.

Question was whether the solicitors owed the claimant a duty to communicate to him the information about the purchaser’s conviction

1. A solicitor’s duty of disclosure depended on the nature and terms of his retainer2. Solicitor was under no obligation (quite the reverse) to disclose to a later client confidential

information obtained under an earlier retainer from a former client3. If a solicitor acted for more than one party to a transaction then he might be obliged to disclose

information obtained in that transaction from one of them to the other4. In that event he could not excuse his breach of duty to either of them by reference to the duty he

owed to the other The solicitors should have told the claimant that they were unable properly to act for him, but

they were not in breach of a duty to disclose to him what they knew of the purchaser On the facts:

o Retainer of the solicitors by the purchaser in connection with his prosecution not subject to any implied limitation by reference to disclosure to later clients. Retainer by the claimant must be subject to an implied exclusion from any general duty of disclosure of that which they were legally obliged to treat as confidential (i.e. the purchaser’s prior conviction!)

- Defendants should have told the claimant that they were unable to properly act for him.- BUT Defendants were not in breach of a duty to disclose to the claimant what they knew of the

purchaser.

National Home Loans Corporation plc v Giffen Couch & Archer (a firm) [1997] 3 ALL ER 808 Facts:Defendant solicitors acted for both borrower and lender in a remortgage transaction. Specific instructions from the lender was that the solicitors were to investigate the title to the property, advise if any condition of the offer of loan or any condition of the instructions had not been or could not be complied with; they were also required to report on title on the plaintiff's form, which required them to certify that they were not aware of any material change in the borrowers' circumstances subsequent to the date of the offer, and to conduct a bankruptcy search. However, there was no requirement to report on the state of the account on any existing mortgage. By 17 May 1989 the defendants had become aware that there were arrears of over £4,000 on the existing mortgage in respect of which legal proceedings had been threatened, but they did not pass that information on to the plaintiff. Completion took place on 9 June 1989. The borrowers fell into arrears and in April 1992 the plaintiff as mortgagee sold the property for £70,000. Thereafter the plaintiff commenced proceedings against the defendants for breach of duty in failing to reveal information obtained relating to the financial affairs of the borrowers prior to completion, when the offer could have been withdrawn. Trial judge found the defendant’s negligent.

Held: - a solicitor, in the course for acting for both the borrower and lender discovered information casting doubt on

the borrower’s ability to repay the loan, he was not under a duty to report that information to the lender unless his instructions required him to do so

- Here, the plaintiff's instructions to the defendants were framed with particularity and specified the matters which the defendants were required to advise on or to certify. Accordingly, since the information on the arrears and the threat of proceedings did not relate to title, the adequacy of the security, or any other matter on which the defendants were instructed to report or advise, and so was not clearly of potential significance to the plaintiff, it followed that the defendants were not in breach of duty in failing to pass that information on to the plaintiff.

- Appeal allowed.

Bristol & West Building Society v Baden Barnes Groves & Co [2000] Lloyd’s Rep PN 788 Facts:The claimant, BW, had advanced a loan to Defendant solicitor’s client, A who had subsequently defaulted on the repayments. Defendant had been retained by both parties. The advance had been subject to a special condition that "existing mortgages in the name of the applicants" had to be redeemed prior to completion. BW submitted that the Defendant’s failure to draw to its attention the existence of A's two other mortgages and the fact that A's declared investment income was already committed to discharging those loans, had induced it to make an advance which it would not otherwise have madeHeld:- a solicitor acting for both parties had a qualified duty of disclosure;

- he was required to disclose information of which he became aware while carrying out the lender's instructions, but he was not obliged to impart his entire knowledge of the borrower's circumstances to the lender, such as information arising out of previous dealings with the borrower, therefore failure to disclose the latter did not create a conflict of interest.

Mortgage Express Ltd v Bowerman & Partners (a firm) [1996] 2 ALL ER 836 Facts:Defendant Solicitor acted on behalf of claimant bank in a mortgage transaction for the purchase of a flat. He subsequently acted for the borrower (in that very transaction) too. However, Defendant’s soon found out that the borrower was actually purchasing through a sub-sale. Also Bank had based its loan calculations on the basis of a valuation report. Yet, the Defendants came to the knowledge of an obvious discrepancy between the price of the sale and that of the sub-sale. However, the defendants did not notify the lender bank of this discrepancy or the actual arrangement in reality. Bank alleged that it would have most definitely arranged for a 2nd valuation and on the basis of this, would have withdrawn its offer of a loan to the borrower, had it known of this fact. Also, the bank’s retainer of the Defendants contained the Bank’s Standing Instructions to Solicitors stating amongst others that “These instructions are not intended to be exhaustive and do not in any way limit the normal duties of a solicitor when acting for a mortgagee”. Bank alleged breach of duty.

Held: CA. - Where a solicitor acting for purchaser and lender receives information common to both, the question whether

he should pass it on to one client or the other or both or neither entirely depends on the relevant interest of each client which the solicitor is engaged to serve.

- A client cannot expect a solicitor to undertake work he has not asked him to do, and will not wish to pay him for such work. But if in the course of doing the work he is instructed to do the solicitor comes into possession of information which is not confidential and which is clearly of potential significance to the client, I think that the client would reasonably expect the solicitor to pass it on and feel understandably aggrieved if he did not.

Hence: in the course of investigating title, a solicitor discovers facts which a reasonably competent solicitor would consider might have a material bearing on the valuation of the lender's security or some other ingredient of the lending decision, then it is his duty to point this out.

On the facts, all 3 judges agreed that a reasonably competent solicitor would consider these facts as having a material bearing.

- Appeal by Defendant’s dismissed.

Giving references?- if a person comes to you and asks you for a reference as a client, you must give it objectively,,, and give both

the good and the bad…

Wong Juan Swee v The Law Society [1994] 3 SLR 849Respondent’s failure to warn the complainant of her client’s bankruptcy amounted to the giving of a wrongful reference, vis-à-vis a third party

Facts:Complainant brought complaint against Appellant lawyer, alleging that she had made telephone enquiries from the latter over the credit-worthiness of one Francis Tan, an acquaintance of the Appellant. In reliance of the Appellant’s assurance, the complainant proceeded to purchaser shares on behalf of Tan. Subsequently, Tan did not collect those shares. A subsequent bankruptcy search revealed that Tan was an undischarged bankrupt. Appellant’s case however was that no such telephone enquiries ever took place and instead, once she head that the complainant was acting for Tan in his purchases, she warned the complainant to ‘watch out’ in her business dealings with Tan. However, the complainant did not specifically mention Tan’s bankruptcy. In fact, the appellant subsequently wrote a letter (dated 22 Sept 1990) to the complainant stating that Tan had undertaken to collect his shares by a certain date. The Inquiry Committee accepted the Appellant’s case/explanation but nonetheless found that the Appellant’s failure to disclose the bankruptcy amounted to the giving of a wrongful reference. The Law Society Council subsequently imposed a penalty of $500. Appellant appealed all the way to the CA. FactsThe appellant Wong was an advocate and solicitor. The complainant, a remisier alleged that on 7 February 1990 she made enquiries of Wong over the telephone about the creditworthiness of one Francis Tan, who was Wong’s acquaintance. The complainant alleged that Wong assured her of Tan’s creditworthiness and in reliance on Wong’s assurance, she purchased shares on Tan’s behalf. Subsequently Tan failed to collect his shares or to pay for them.

On 22 February 1990 Wong wrote a letter on Tan’s behalf to the complainant’s firm, informing the firm of his undertaking to collect the shares. A bankruptcy search conducted by the firm revealed that Tan had been a bankrupt since 18 November 1983. When confronted by the complainant, Wong admitted that she had in fact previously acted for the petitioning creditor in the bankruptcy proceedings against Tan. The Law Society’s Inquiry Committee (IC) which investigated the complaint, disbelieved the complainant’s evidence as to the alleged telephone conversation of 7 February 1990 but accepted Wong’s evidence to the effect that sometime in February 1990, she had warned the complainant to “watch out” in her business dealings with Francis Tan. Nonetheless, the committee noted that she failed to inform the complainant of Tan’s bankrupt status. The IC stated in its report that “(i)f anything”, Wong’s conduct “amounted to the giving of a wrongful reference” and recommended that a penalty be imposed on her. The Law Society’s Council subsequently imposed on her a penalty of $500. Wong’s appeal to the High Court against this order of penalty was dismissed, following which she appealed to the Court of Appeal.

CA: 2:1 (Warren Khoo J Dissenting)

Majority: All the appellant had done during the conversation was to warn the complainant against dealing with Tan

without disclosing Tan’s bankrupt status: she had not given the complainant a reference vis–a–vis Francis Tan’s creditworthiness. The inquiry committee was therefore wrong in arriving at the finding that the appellant’s telephone conversation with the complainant amounted to the giving of a wrongful reference.

However, the Law Society’s Council is not bound by the recommendation of the inquiry committee (save where the committee recommends a formal investigation); nor is the Council bound by only the findings expressed in the committee’s report. The Council is obliged only to consider the report. Having considered that report, it may come to a different conclusion or make other or further findings based on the facts found or disclosed in the report; and it may then make a determination accordingly under s 87(1) of the Act.

In the present case the Council’s determination of a penalty could be sustained on the basis of the inquiry committee’s report and also on the basis of the facts disclosed therein. It was part of the complaint against the appellant that she had written a letter to the complainant’s firm on 22 February 1990 stating that Francis Tan would collect his shares. It was clear that she had written the letter on the instructions of Francis Tan, even though on her own admission she knew that Tan was an undischarged bankrupt – a status which disqualified him under the Bankruptcy Act (Cap 20) from entering into the sort of share transaction he had entered into. In writing the letter in the circumstances of the case the appellant’s conduct amounted to a misconduct justifying the imposition of a penalty on her by the Council. For this reason, the court was not disposed to interfere with the determination of the Council.

Held, (by a majority) dismissing the appeal:(1)    There was no provision in the Legal Profession Act (Cap 161) (“the Act”) excluding an appeal to the Court of Appeal against a High Court decision made pursuant to s 95 of that Act. In cases such as this, the proceedings below were commenced under s 95 of the Act by an originating summons, one of the four modes of commencing civil proceedings in the High Court. In hearing an application under s 95, the High Court was exercising a form of appellate but supervisory jurisdiction, and its judgment thereon was given in exercise of its appellate jurisdiction in a civil cause or matter. Under s 29A(1) [formerly s 29(1)] of the Supreme Court of Judicature Act (Cap 322), the Court of Appeal had jurisdiction to hear and determine appeals from such judgment or order of the High Court.(2)    All Wong did during the conversation was to warn the complainant against dealing with Tan without disclosing Tan’s bankrupt status. She did not give the complainant a reference vis–a–vis Francis Tan’s creditworthiness. The IC was wrong in arriving at the finding that Wong’s telephone conversation with the complainant amounted to the giving of a wrongful reference.(3)    However, the Law Society’s Council was not bound by the IC’s recommendation (save where the committee recommends a formal investigation); nor was the Council bound by the findings expressed in the IC’s report. The Council was obliged only to consider the report. Having considered that report, it may come to a different conclusion or make other or further findings based on the facts found or disclosed in the report; and it may then make a determination accordingly under s 87(1) of the Act.(4)    In this case, the Council’s determination of a penalty could be sustained on the basis of the IC’s report and also on the basis of the facts disclosed therein. It was part of the complaint against Wong that she wrote to the complainant’s firm on 22 February 1990 stating that Francis Tan would collect his shares. It was clear that she wrote the letter on Francis Tan’s instructions, even though she knew that he was an undischarged bankrupt – a status which disqualified him under the Bankruptcy Act (Cap 20) from entering into the sort of share transaction he had entered into. In writing the letter, Wong’s conduct amounted to a misconduct justifying the imposition of a penalty on her by the Council. For this reason, the court would not interfere with the Council’s determination.

Dissent: The report of the inquiry committee was unclear in the findings made. The committee did not appear to have

made a proper finding, or any finding at all, that the appellant had been guilty of giving a ‘wrongful reference’. The Law Society’s Council was therefore in error in proceeding on the basis that there had been such a finding by the committee; and its decision to impose a penalty on the appellant could not stand.

The order of a penalty should not be affirmed on the basis of the appellant having committed some other misconduct when the appellant had not been heard by the inquiry committee on the matter of this other misconduct. Also, in general the amount of evidence available to the High Court in hearing an application under s 95 of the Act does not always enable it to consider an offence or a misconduct not dealt with by the inquiry committee; and indeed s 95 itself does not, on the face of it, allow the court to do so.

Comment- A common law rule that if lawyer is asked to give reference qua lawyer, have to be truthful- Lawyer here failed to say that the person was a bankrupt… held that she was not truthful

- Note though the case of National Home Loans v Giffen.

Note: ON Jurisdiction of CA to hear appeal from decision of High Court Judge under s 95 LPA:

“ There is no provision in the Legal Profession Act (Cap 161) (‘the Act’)excluding an appeal to the Court of Appeal against a decision of the High Court made pursuant to s 95 of that Act. In cases such as the appellant’s, the proceedings below are commenced under s 95 of the Act by an originating summons, one of the four modes of commencing civil proceedings in the High Court. In hearing an application unders 95, the High Court is exercising a form of appellate but supervisory jurisdiction; and its judgment thereon is given in exercise of its appellate jurisdiction in a civil cause or matter. Under s 29A(1) [formerly 29(1)] of the Supreme Court of Judicature Act (Cap 322), the Court of Appeal has jurisdiction to hear and determine appeals from such judgment or order of the High Court.”

3. RULE 67: STATEMENTS TO PRESS OR MEDIA

Statements to press or media67. An advocate and solicitor shall not give a statement to the press or media whether on behalf of the client or otherwise, which may amount to contempt of Court or which is calculated to interfere with the fair trial of a case which has not been concluded.

- Lawyers are often faced with a dilemma when asked by the media to comment on a client’s case which is before the Court, prior to the conclusion of the proceedings.

- Most prudent course is not to comment at all. - Note too that a lawyer is also to vet any statements his/her CLIENT makes to the media.

- Should not criticise or debate the evidence given by a witness – especially if the witness has not completed his or her evidence – or any rulings made by the Court.

- Should certainly not speculate on the result.- No objection to accurately report or repeat what was said in open court, unless the Court has made an order

restricting publication of any evidence given in Court. - In order for you also to assist a journalist by clarifying who the parties are before the Court and to assist the

journalist in accurately quoting what was said in court (for example by reference to the transcript).- Media releases and sub judice rule

- most prudent course when matter not concluded is not to comment at all – don’t debate evid given by witness etc. aso not criticize any rulings made by court. And don’t speculate on what outomce ooigng to be

- but no objection to acurateyl repeat what was said in court nelkss court makes order restricting publication- for incamera proceedings, cannot name parties, refer to evid incourt etc - evne in open hearing, may also be specific directionsgivne by court- underdstnad the perimenters of the restriction- otherwise can assits jounrlaist in accurately quoting what was said in court – eg refer to transcripts. - Lawyers may be asked to vet media release by corporat clients – client hope to gain adv, say their peace in

media – risking infringing this rule- If client employ PR expert, ensure that you vet what they propoes to publish lest u be implicated

4. RULE 69: LETTERS OF DEMAND

Rule 69An advocate and solicitor shall not, in his letter of demand, demand anything other than that recoverable by due process of law.

- straddles rr bet lawyers and third parties. Usu recipient of lod wld be an unrep person at tt pt of itme.- Three areas:1. making of threat - unethical to threaten crim proceedings/ to prosecutre addressee etc or advertise what

addressee has done to country. Or threatening someone without legal liab to pay and threat to revela to parents/spouse etc of addressee

2. imptane of lod – in most cases, this is first doc u wld draft on behalf of client in civil case, this is not to be taken lkightly., this is usu first contact with law or legal system, ensure they are reasonable and x become subj matter of complaint, ensure that brief, courteous, temperate, no need to go into long detai abt client’s case, no need to disclose witness u intend to call etc, n need to submnit entire cse to other side

3. claiming of costs in lod – in absence of contractual right, cannot enforce legal costs. But pple usu try to sneak in claim of legal costs. Differences in opinion – most law soc ruled that canot claim csot of issuing that letter of dd

- In any Letters of Demand, do not make claim for costs in first letter, or make threatening remarks

- Must be entitled to make such demands by law- One cannot ask for cost since proceedings have not started.

1. Exception—where the contract between parties permits costs of a solicitor client nature to be recovered from the client on an indemnity basis.

- Cannot also ask for interest! – Unless previously agreed upon in the contract. This is because, ordinarily, interest runs from the date the writ is issued.

- If contract between client & third party with term entitling claim for all S&C costs (eg. Credit card arrangements/ Hire Purchase contracts), need to refer to term in agreement allowing such claims for costs

- Cannot make police reports – such matters are in the hands of the Attorney General (beyond the lawyer’s control). Instead, can advise that criminal action may be taken. But cannot threaten it if fail to meet the civil claim

- No threats to be made in letters.- E.g. writing to another lawyer for the other lawyer to meet him outside the Chambers for a

show-down. - Cannot similarly write such letters to DPPs.

Lie Hendri Rusli V Wong Tan & Molly Lim 2004 4 Slr 594 (Neg Case)stds of profession - high stds not synonymous wit impractical stds. Tied to realty. Real issue is whether court views stds and skills by sol as consisted with presumed resp and oblig to client. Not fossilized and stds evolve and vary in diff factual matrices.