10 Disciplinary Proceedings - Misconduct And Breaches

Professional Responsibility (10) & (11): Disciplinary Proceedings 1. DISCIPLINARY PROCEEDINGS a) Historical Background b) Burden of Proof c) Applicability of Double Jeopardy d) Legal Officer and Advocates & Solicitors without practicing Certificates Section 82A Legal Profession Act (Act) 2. SECTION 83(2)(A) - (K) a) Conviction of a criminal offence b) Fraudulent or Grossly Improper Conduct Breach of usage or Rules of Conduct c) Adjudicated Bankrupt and Section 124(5) (a) - (m) of the Bankruptcy Act d) Undercutting e) Employment of soliciting agents and touts f) Misconduct - ‘Unbefitting’ 3. COMPLAINTS AGAINST ADVOCATES & SOLICITORS a) Complaints b) Review Committee, section 85(6) c) Inquiry Committee (Sections 84 and 86) of the Act d) Composition e) Time Frame f) Report of the Inquiry Committee - Section 86(7) g) Powers of the Inquiry Committee h) Dissatisfied Complainants (Section 96) i) Disciplinary Committee (Sections 90 to 95) of the Act j) Composition k) Findings of Disciplinary Committee (Section 93) l) Dissatisfied Complainants (Section 97) 4. ORDER TO SHOW CAUSE (SECTION 98) 5. REPLACEMENT ON ROLL OF A SOLICITOR WHO HAS BEEN STRUCK OFF (SECTION 102) 6. MISCELLANEOUS a) Adverse Orders (Section 101) b) No action in absence of bad faith (Section 106) c) Emphasis on Time d) Statistics NB: Unless otherwise stated, all provisions cited herein are taken from the Legal Profession Act 1.

HISTORICAL BACKGROUND

Part VII, Legal Profession Act Section 82 1) Any person duly admitted as an advocate and solicitor and any legal officer shall be an officer of the Supreme Court 2) The provisions of any written law which imposes on officers of the Supreme Court any restrictions as to practice as advocates or solicitors shall not apply to any advocate and solicitor by virtue only of subsection (1)

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Jurisdiction of the Supreme court over all lawyers, pupils, legal service officers and non-practising professionals (see also section 82A, below) Note: Amendments to the Act 1986: law soc called up before select committee; biggest frustration:

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Fear of cover up by law oc when discip own members Discip committees dilatory – very slow in processing cases => new things introduced: - one of this was the Concept of a “lay person” sitting in lay committee those who are related to the legal profession (ie. Bankers; Engineers; Accountants/ etc). We now have lay persons judging to ensure that the proceedings are carried out impartially. They are pple whom profession has asosicaiton or dealinsg with eg doctors, engineers, accoutnatns and leading industrial figures new provn stated to be: “Aimed at ensuring legal profession distinguished by honest competent practitioners of the highest standards who will be able to the increasing expectations of the general public and the business community.” 1.1 Purpose of Disciplinary Action:

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The Law Society of Singapore v Tham Yu Xian Rick [1999] 4 SLR 168 held that disciplinary action serves 3 functions: punishment of the errant solicitor, deterrence against similar defaults by other like minded solicitors, protection of public confidence in the administration of justice Tham Yu Xian - Facts Tham was charged with abetting a ‘foreign person’ to acquire an interest in a residential property, an offence under s 3(1)(c) of the Residential Property Act (Cap 20). The charge alleged that he had acted for one Ang in his purchase of the property as Lim’s (the foreigner’s) nominee and prepared a trust deed to that effect. Tham claimed trial, denying that he had prepared the trust deed. Tham was convicted and fined. Subsequent to his conviction, a charge was formulated against Tham stating that by reason of his conviction, he was guilty of conduct implying a defect of character which made him unfit for the profession under s 83(2)(a) of the Legal Profession Act (‘Act’). The Disciplinary Committee found that the charge against the respondent was proved and that there was cause of sufficient gravity for disciplinary action to be taken pursuant to s 83(1) of the Act. During the show cause proceedings, Tham submitted, by way of mitigation, that he regretted what he had done, that he had derived no financial benefit from the matter, aside from the usual conveyancing fees; that his conduct amounted to no more than an isolated error of judgment and that his offence was ‘technical’. Held, ordering the respondent to be struck off the rollls: (1) The conviction of a criminal offence which implied a defect of character prima facie rendered an advocate and solicitor unfit for his profession. The nature of the offence was material, for not every violation of criminal law implied a defect of character. The penalty imposed as a result of the conviction must also be taken into account, as an indication of the moral turpitude or obliquity involved. The degree of moral blameworthiness was also to be weighed in deciding the appropriate disciplinary action to be taken. The offence need not involve money, but if the solicitor was shown to have acted dishonestly or where he fell short of the required standards of integrity, probity or trustworthiness, striking off would invariably follow. (2) Whether the offence was committed in a professional capacity would be irrelevant because due cause was based on the nature of the offence committed. However if the offence was committed in the offender’s capacity as an advocate and solicitor, that was an aggravating factor which the court would be entitled to take into account. (3) The standard of judgment to be applied in a scrutiny of the misconduct pursuant to s 83(2)(a) of the Act was that which was fixed by the court. Disciplinary action under s 83 of the Act served three functions: (a) punishment of the errant solicitor for his misconduct, (b) deterrence against similar defaults by other likeminded solicitors in the future, and (c) protection of public confidence in the administration of justice. Therefore orders made should not only have a punitive but also a deterrent effect. (4) In the present case, the offence for which the respondent was convicted was one involving dishonesty and was not merely ‘technical’ in nature. It was tantamount to the commission of a fraud on the authorities, and an intentional circumvention of the law of the land, which was Tham’s duty – as an advocate and solicitor – to uphold. As an advocate and solicitor of 18 years’ standing, Tham should have known better. The gravity of the offence was compounded by the fact that Tham committed it in his professional capacity as an advocate and solicitor and that he had abused his position as a member of a respected and honourable profession. (5) Where the case was one involving dishonesty, the weight attached to a mitigation plea was virtually negligible, as striking off would be the consequence as a matter of course. In the light of the circumstances and taking into account the paramount considerations of the protection of the public and the preservation of the good name of the legal profession, the respondent was ordered to be struck off the roll.

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TRIBUNAL’S BURDEN OF PROOF Criminal burden of proof is relevant std for charge under 82A and 83.2 Applied in case of A & F adv and solicitor Ahmad khalis also spoke of this When adv and sol confronted with charge – must ensure that high std of proof observed because this is his likelihood; cannot condemn lawyer oni mere balance of probabilities Privy Council cases adopted Criminal burden of proof is the relevant standard for charge under sections 82A and 83(2) Section 83 Charge is very serious Legal Profession’s disciplining is in the full glare of the public. The report of the Disciplinary Committee is published and the entire record of the proceedings and the findings can be made available to the public. Can attract disbarment Any misconduct or deceit or moral turpitude cannot be judged on the balance of probabilities

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Bhandari v Advocates Committee (PC) [1956] 1 WLR 1445 In this case, lawyer fr Canada appeared before judge. Did not disclose judgement tt he had received earlier involving same matter with same cient before the present charge. B: Kenyan lawyer Charged with misleading the court. Civil standard used in this case, held to be wrong. B failed to inform the judge that there was another judgment on the same matter with the same client obtaining judgment. Held: In every allegation of professional misconduct involving an element of deceit or moral turpitude, a high standard of proof is called for. cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities. - this seems to their lordships an adequate description of the duty of a tribunal. 3. -

APPLICABILITY OF DOUBLE JEOPARDY RULE

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1983 – concept of double jeopardy The Doctrine of Autrefois convict and acquit is applicable to disciplinary proceedings under a statutory code by which any profession is governed NB: Applicable alike to civil and criminal litigation (Harry Wee’s case)

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Note: the 2 cases are consistent. Can be distinguished because of Section 94A.

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Society to apply to court for cases involving fraud or dishonesty 94A. —(1) Where an advocate and solicitor has been convicted of an offence involving fraud or dishonesty, whether the offence was disclosed as a result of an investigation under section 87 (3) (b) or otherwise, the Society shall, without further direction or directions, proceed to make an application in accordance with section 98. (2) Where there is an appeal against conviction, the Society shall not make an application under subsection (1) until the appeal has been withdrawn or deemed to have been withdrawn or disposed of by the appellate court. Harry Lee Wee v Law Society [1985] 1 MLJ 1 (PC) (IMPORTANT CASE**) “Doctrine of Autrefois” applied  complaint against Wee was identical or so nearly, to entitled him to rely on this principle. Unusual case. 1976, wee was president of law soc of sg. In feb 1976, realised that clents acct had monies missing, one legal assistant by name of sundram resp for amt of 300000 which went missing. Burden for making money good into clients acct was on wee since he was sole prop. But he insisted on sundram reimbursing the sums. He did not report him to the police which he shld have done. Neither did he report it to the law soc.

In june 1976, sundram made good that amt of money. Wee tried to hide what transpired. Did not get own auditors but got indep auditors to verify the accts. But did not help – acctants said that this was clear defalcation. He had no choice but to rpoert it to law soc and police. Sundram charged with crim breach of charge, went to prison. Wee subj to discip proceedings. Inquiryt committee – discip committee. Whist facing discip committee, police because he had not reported in view of s213 PC, proceeded on offence with view of getting restitution. He faced 9 charges. Conviction of fraud or dishonesty – sent to discip comitte (in those days). Wee therefore faced two sets of charges – delayed proceedings; discip proceedings. Held that shld have held both concurrently. Looking at whole proceedings, whatever labels put under proceedings – all arose from same set of facts. Ie failure to report sundram and failure to perform restitution. First delay proceedings – suspended for 2 yrs Discip proceedings – second judgement then pronounced and suspended for another 2 yrs. So altogether 4 yrs PC gave a critical judgement and said that wrong for punishnment of two times. Made party pay sol client costs as well – law soc paid a lot. Wee (sole proprietor) discovered $300 000 missing from client’s account that was taken by his Legal Assistant. He confronted his LA. He threatened to report the LA if the LA did not make restitution. But Harry Wee repaid the amount and did not report it to the Law Society or to the Police. Auditors checked and affirmed that the sum of money was missing. He tried to get accounts to cover it but could not, and only then did he report it to the Law Society. Whilst dealing with (1) “delay proceedings”, the police stepped in. Police found Wee to have (2) committed an offence under s. 213 PC (accepting restitution without divulging what had happened)  charged and convicted Wee LPA: If convicted, have to commence disciplinary proceedings. *First instance: For 1st disciplinary matter, suspended for 2 years *CA: suspended for another 2 years *PC: On Wee’s appeal… 1. Law Society should have held the 2 matters concurrently, since both sets of disciplinary proceedings arose from the same conduct 2. “Unnecessary duplication” / undue hardship on Mr Harry Lee Wee 3. The essence of Mr Wee’s attack on the second order can be shortly stated. Both sets of disciplinary proceedings arose from exactly the same conduct by Mr Wee and although it was possible to attach a different label in each case to the particular form of professional misbehaviour alleged, the gravamen of the complaint against him in each case was either identical or so nearly, so as to entitle him either to rely on the principle, applicable alike to criminal and civil litigation, that the unnecessary duplication of proceedings is an abuse of process which the court has an inherent jurisdiction to restrain. 4. Abuse of process which court has inherent jurisdiction to restrain 5. For 2nd Disciplinary proceedings: Thus, Law Society made to pay costs and on an S&C basis (2x of P&P!!!) NB: Law Society objected to Wee’s appeal but lost!

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Now, with section 94A LPA – (NEW!) Applied in Edmund Nathan’s case below Convicted of fraud offence – no need to go to discip proceedings anymore, go straight to court of 3 judges 

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(ie diff fr harry lee wee case – court has jurisdiction and discretion under code) Section 94A(1), LPA Where an advocate and solicitor has been convicted of an offence involving fraud or dishonesty, whether the offence was disclosed as a result of an investigation under s. 87(3)(b) or otherwise, the Society shall, without further direction or directions, proceed to make an application in accordance with s. 98.

NB: Section 98 is an application for an order to show cause Order to show cause 98. —(1) An application that a solicitor be struck off the roll or suspended from practice or censured or that he be required to answer allegations contained in an affidavit shall be made by originating summons ex parte for an order calling upon the solicitor to show cause. (2) An application under subsection (1) may be made to a Judge and shall include an application for directions as to service if the solicitor is believed to be outside Singapore. (3) If the solicitor named in the order is or is believed to be within Singapore, the provisions of the Rules of Court (Cap. 322, R 5) for service of writs of summons shall apply to the service of the order. (4) If an order to show cause is made, a copy of the affidavit or affidavits upon which the order was made shall be served with the order upon the solicitor named in the order. (5) An application to make absolute an order to show cause must be made by motion in the same proceedings and, unless the Judge otherwise directs, there must be at least 8 clear days between the service of the notice of the motion and the day named therein for the hearing. (6) Any order absolute, made in cases where personal service of the order to show cause has not been effected, may be set aside on the application of the solicitor on good cause being shown. (7) The application to make absolute and the showing of cause consequent upon any order to show cause made under subsections (1) and (2) shall be heard by a court of 3 Judges of the Supreme Court, and from the decision of that court there shall be no appeal. (8) The Judge who made the order to show cause shall not thereby be disqualified from sitting as a member of the court of 3 Judges under subsection (7). (9) The Chief Justice or any other Judge of the Supreme Court shall not be a member of the court of 3 Judges when the application under subsection (7) is in respect of a complaint made or information referred to the Society by him. (10) subject to this section, the rules committee may make rules for regulating and prescribing the procedure and practice to be followed in connection with proceedings under this section and under sections 100 and 102, and in the absence of any rule or rules dealing with any point of procedure or practice, the rules of court may be followed as nearly as the circumstances permit. 1998 – another similar case to harry lee wee: Law Society v Edmund Nathan [1998] 3 SLR 414 EN acted for Mr Fernandez and his wife  both wanted a loan Misled Bank as to costs of property; Thus, (1) EN was charged Client also lodged a complaint. EN: penalty of $3000 by order of Enquiry Committee convened by law soc in meantime, after this -> (2) police: charged en for attempted cheating (en aided and abetted) ( convicted uner section 417pc read with s109pc en raised opposition, citing harry wee’s case *ca: distinguished harry wee’s case, (even though arguably, facts are more or less the same) noting the new section 94a (1). (1) harry wee had to go through entire proceedings (2) proceedings before the inquiry committee and a penalty of $3000 in en’s case, do not amount to a conviction; only a penalty for professional misconduct

(3) en only went before inquiry committee, which only investigates and recommends, and does not charge. thus, disciplinary action not taken, only inquisitorial. (4) thus, ca cannot apply harry wee’s case (doctrine of autrefois not applicable ( plea of autrefois convict cannot be raised at the show cause proceedings founded on en’s conviction of attempted cheating). (5) In other words, the proceedings before the inquiry committee and the imposition of a penalty of $3,000 by the Council under s 88(1) of the Act does not amount to a “conviction” such that the plea of autrefois convict can be raised at the show cause proceedings founded on the respondent’s criminal conviction of attempted cheating, although the facts on which the respondent was convicted of the offence of attempted cheating and the complaint inquired into by the inquiry committee are the same.

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LEGAL OFFICERS & SOLICITOR WITHOUT PRACTISING CERTIFICATES – SECTION 82 (12) read section 83 –  ALL ADV AND SOL are subj to discip proceedings

83. —(1) All advocates and solicitors shall be subject to the control of the Supreme Court and shall be liable on due cause shown to be struck off the roll or suspended from practice for any period not exceeding 5 years or censured. -

Section 82(12)

On completion of the hearing of the application under subsection (10), the court may(a) censure the legal officer or non-practising solicitor; (b) prohibit him from applying for an practising certificate for such period not exceeding 5 years as it may specify; (c) order that his name be struck off the roll; (d) order him to pay a penalty of not more than $5,000; or (e) make such order as it thinks fit.

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Inquire committee has jurisdiction over Legal Officers (Francis Seow’s case) Now, with section 82A, Legal Officers can also be subject to complaint proceedings. S82A was inserted to [provide a new procedure for the disciplinary of legal officers and non-practising solicitors. The Law Society has no jurisdiction over such persons. This new section 82A provides that an application to show cause may be made with the leave of the Chief Justice where any legal officer or non-practising solicitor has been guilty of such misconduct unbefitting a legal officer or an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession or has been adjudicated a bankrupt. Upon such an application, the Chief Justice may grant leave and appoint a Disciplinary Committee to inquire into the complaint if he is of the opinion that there is a prima facie case of misconduct against a legal officer or non-practising solicitor, the matter will be heard by a court of 3 judges of the Supreme Court. Upon completion of the hearing, the court may strike the person off the roll, prohibit him from applying for a practising certificate for up to 5 years, censure him or order him to pay a penalty of up to $5000. Section 82A (2) All legal officers and non-practising solicitors shall be subject to the control of the Supreme Court and shall be liable on due cause shown to be punished in accordance with this section. (3) Such due cause may be shown by proof that a legal officer or a non-practising solicitor, as the case may be (A) has been guilty in Singapore or elsewhere of such misconduct unbefitting a legal officer or an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession; or (B) has been adjudicated bankrupt and has been guilty of any of the acts or omissions mentioned in section 124(5)… of the Bankruptcy Act (Cap. 20) …

(7) The Disciplinary Committee shall hear and investigate into the complaint and submit its findings of fact and law in the form of a report to the Chief Justice. -

Situations where disciplinary proceedings can commence (ss. (3)) – 1) Unbefitting conduct 2) Adjudicated bankrupt under s. 124 Bankruptcy Act

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Procedure to commence proceedings: by ex parte originating summons + affidavit setting out the allegations of misconduct (ss. (5)) An application for such leave shall be made by ex parte originating summons and shall be accompanied by an affidavit setting out the allegations of misconduct against the legal officer or non-practising solicitor.

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Only the Chief Justice may grant leave of court, where the applicant has made out a ‘prima facie case for an investigation into his complaint’ (ss. (6)) Where the Chief Justice is of the opinion that the applicant has made out a prima facie case for an investigation into his complaint, the Chief Justice may grant such leave and appoint a Disciplinary Committee under section 90.

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Possible punishment (ss. (12)(a)-(e))– Censured Prohibited from applying for practising certificate for a period not exceeding 5 years Struck off roll Pay penalty of not more than $5000; or Any other order as the court thinks fit

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NB: Nothing may stop the Legal Service from starting its own separate proceedings

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Note: Different rules apply to lawyers, legal officers and non-practising solicitors

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SECTION 83, LPA (VERY IMPORTANT) for lawyers in private practice

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Pupils: Section 83 applies to pupils, too! (ss. (3))

Section 83(3) Pupils shall, with the necessary modifications, be subject to the same jurisdiction as can be exercised over advocates and solicitors under this Part; but in lieu of an order striking him off the roll or suspending him, an order may be made prohibiting the pupil from petitioning the court for admission until after a date specified in the order.  Only difference is that call will be deferred (for any length of time eg 3 yrs) -

- all a & s are subject to the control of the supreme court and shall be liable on due course shown  To be censured  Suspended from practise for a period of 5 years  Struck off

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Section 83(1) was amended to empower the High Court to suspend an advocate and solicitor for up to 5 years and to add a new clause upon which the High Court may discipline an advocate and solicitor, namely, if he has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. Power to strike off roll or suspend or censure 83. —(1) All advocates and solicitors shall be subject to the control of the Supreme Court and shall be liable on due cause shown to be struck off the roll or suspended from practice for any period not exceeding 5 years or censured. (2) Such due cause may be shown by proof that an advocate and solicitor —

(a) has been convicted of a criminal offence, implying a defect of character which makes him unfit for his profession; (b) has been guilty of fraudulent or grossly improper conduct in the discharge of his professional duty or guilty of such a breach of any usage or rule of conduct made by the Council under the provisions of this Act as amounts to improper conduct or practice as an advocate and solicitor; (c) has been adjudicated bankrupt and has been guilty of any of the acts or omissions mentioned in section 124 (5) (a), (b), (c), (d), (e), (f), (h), (i), (k), ( l) or (m) of the Bankruptcy Act (Cap. 20); (d) has tendered or given or consented to retention, out of any fee payable to him for his services, of any gratification for having procured the employment in any legal business of himself or any other 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; (f) has accepted employment in any legal business through a person who has been proclaimed a tout under any written law relating thereto; (g) allows any clerk or other unauthorised person to undertake or carry on legal business in his name, that other person not being under such direct and immediate control of his principal as to ensure that he does not act without proper supervision; (h) has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession; (i) carries on by himself or any person in his employment any trade, business or calling that detracts from the profession of law or is in any way incompatible with it, or is employed in any such trade, business or calling; (j) has contravened any of the provisions of this Act in relation thereto if such contravention warrants disciplinary action; or (k) has been disbarred, struck off, suspended or censured in his capacity as a legal practitioner by whatever name called in any other country. (3) Pupils shall, with the necessary modifications, be subject to the same jurisdiction as can be exercised over advocates and solicitors under this Part; but in lieu of an order striking him off the roll or suspending him, an order may be made prohibiting the pupil from petitioning the court for admission until after a date specified in the order. (4) The jurisdiction given by subsection (3) shall be exercised by a single Judge. (5) In any proceedings under this Part, the court may in addition to the facts of the case take into account the past conduct of the person concerned in order to determine what order should be made. (6) In any proceedings instituted under this Part against an advocate and solicitor consequent upon his conviction for a criminal offence, an Inquiry Committee, a Disciplinary Committee and a court of 3 Judges of the Supreme Court referred to in section 98 shall accept his conviction as final and conclusive. 5.1 Grounds on which solicitor may be suspended, censured or struck off – section 83(2) sets out the circumstances under which a solicitor may be asked to “show cause”. - An amendment in 1989 states that in disciplinary proceedings consequent upon conviction for a criminal offence, the conviction should be accepted as final and conclusive by an Inquiry Committee, a Disciplinary Committee and a Court of 3 judges. They therefore cannot go behind the conviction in these circumstances. 11 Grounds – “Such due cause may be shown by proof that an advocate and solicitor – (a) Conviction of criminal offence Such due course may be shown by proof that an advocate and solicitor has been convicted of a criminal offence, implying a defect of character which makes him unfit for his profession; -

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Require information to show if/ not been convicted Question of appropriate order to be made, assuming charged for offence Consider (guidance from rick tham case) – 1) Nature of offence – whilst crucial, not the only relevant issue 2) Penalty imposed upon conviction – indicative of moral turpitude or obliquity invloved

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Further or in the alternative, the degree of moral blameworthiness – also to be weighed in the balance in deciding the appropriate penalty to be imposed. Striking off  dishonesty + test in R Samuel’s case. Striking off would invariably follow where the solicitor is shown not only to have acted dishonestly, but also where he has fallen short of the required standards of integrity, probity and trustworthiness.

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Types of offences:  Disclose everything!  Traffice offences may not be that impt but still disclose  Shopliftg/ VCH/ etc

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Standard of judgment applied: fixed by courts, since the courts admit advocates and solicitors in the first place, thus they reserve the right to strike them off Should always disclose all offences (no need for parking offences).

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Law Society v Narinder Singh s/o Malagar Singh [1998] 1 SLR 328 Held: Clear that the respondent’s conviction under the Prevention of Corruption Act was a conviction which fell within the meaning of section 83(2)(a), LPA. Respondent’s willingness to assist his client in essentially getting a bribe in return for a confession implied a defect of character which made him unfit to be a solicitor. (b) Fraudulent or grossly improper conduct … has been guilty of fraudulent or grossly improper conduct in the discharge of his professional duty or guilty of such a breach of any usage or rule of conduct made by the Council under the provisions of this Act as amounts to improper conduct or practice as an advocate and solicitor; : – obj test – brought disgrace to urself as solicitor and to ur profession. And case cited ->>> Rajasooria v Disciplinary Committee [1955] 21 MLJ 65 Corporate lawyer acted for 90 shareholders who wanted EGM to be convened – 2 requisitions; R took signatures on earlier requisition and pasted signatures on the 2nd one. *Problem: some 30 shareholders were no longer shareholders at the time of the 2nd requisition, never checked, misleading the Register, the Company. RCB said his procedure was wrong. He did not check to find out if the SHs were still sitting. He submitted false documents. *Held: (1) For an advocate & solicitor to knowingly and deliberately submit a false document intending to be acted upon was grossly improper conduct as being dishonourable both to himself and his profession. (2) Submission of such a document with such intention in itself involved an element of deceit (3) A finding of an intention to deceive is not always an essential element in ‘grossly improper conduct’: Law Society v Lim Kiap Khee (OS 600376 of 2001)

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Includes gross/ culpable negligence – O Francis Seow: breach undertakings to the Attorney-General (to give certain files) O David Marshall: let matter be published in the papers O Surish kuman – acted for client and negligent/dilatoryover client’s interest – fialrue to file defence ended in judgement against her. It was his fault. When realised his mistake, went though agreement iwht plaintiff’s sol to pay sum every mth. Client through no fault of hers. He defaultd on the payment however. She was made bankrupt. Complaint. He breched undertaking by failing to honour payments to be made. So innocent person adjudicated bankrupt because of him. o e.g. failure to file a Defence in time, resulting in judgment in default and failure to rectify it properly subsequently.

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Important: Is the standard of unbefitting conduct under section 83(2)(h) the same as grossly improper conduct under section 83(2)(b)?

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charge under section 83(2)(b) is higher as it is dishonourable both to himself and to his profession. Section 83(2)(h) is more of a catch-all provision. It can be invoked when the solicitor’s conduct does not fall within any of the other grounds but is nevertheless unacceptable. “Unbefitting conduct” less strict than “grossly improper conduct”.

See also Law Society v Ng Chee Song [2000] 2 SLR 165 Facts: The respondent (“Ng”) was admitted to the Singapore bar in 1995. In 1996, he acted for both the purchasers/mortgagors, and the mortgagees (“Public Finance”) in a purported purchase of residential units by the former. When the mortgage loans were disbursed and forwarded to him by Public Finance, he extended part of it as loans to others and earned commissions on these transactions (“the loan/commission scheme”). Ng failed to register the mortgages after the purported purchases, and also did not inform Public Finance of the loan/commission scheme, and that the purchasers/mortgagors were his nominees. As such, Public Finance were under the impression that the mortgage loans were straightforward mortgage transactions. Pursuant to a complaint by Public Finance, the Disciplinary Committee found him guilty under ss 83(2)(b) and 83(2) (h) of the Legal Profession Act (Cap 161, 1997 Ed), and determined that there was a cause of sufficient gravity for disciplinary action. The Law Society applied to make absolute an order to show cause made against Ng. Held, striking off the rolls: (1) “Grossly improper conduct” is defined as “conduct which is dishonourable to the respondent as a man and to his profession”. It also applies to the situation where a solicitor prefers his own interests to that of his client. Ng was guilty of grossly improper conduct and due cause for disciplinary action was shown under s 83(2)(b) for the following reasons (a) he acted dishonestly and against the interest of Public Finance in using the mortgage loans for his own personal profit and deliberately concealing this from them, and (b) he acted irresponsibly and in callous disregard of his clients’ interests by failing to ensure the proper disbursement of the mortgage loans. (2) “Conduct unbefitting an advocate and solicitor” covers misconduct in both the solicitor’s professional and personal capacity, and the standard of judgment to be applied to the solicitor’s misconduct is fixed by the court and not by his peers. Ng was guilty of conduct unbefitting an advocate and solicitor and due cause for disciplinary action was shown under s 83(2)(h) as he was irresponsible in not registering the mortgages and without valid explanation. (3) The principles of disciplinary sentencing are - (a) a solicitor will be struck off the rolls if he has acted dishonestly, and (b) where he has not acted dishonestly but falls below the required standards of integrity, probity and trustworthiness, he will be struck off if his lapse indicates the lack of character and trustworthiness, (c) the need to protect the public, and (d) the need for the sentence to have a punitive as well as deterrent effect. The mitigating factors in Ng’s case were without merit, and he was struck off the rolls. Per Curiam: All advocates and solicitors, regardless of the extent of their experience, must behave honourably. A brief period in practice is not a valid reason for non-observance of strict standards of conduct. (c) Adjudicated bankrupt under s. 124 Bankruptcy Act – section 83(2)(c) … has been adjudicated bankrupt and has been guilty of any of the acts or omission mentioned in section 124(5)(a), (b), (c), (d), (e), (f), (h), (i), (k), (l), or (m) of the Bankruptcy Act (Cap. 20)’ -

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note: an undischarged bankrupt cannot leave singapore without permission of the official assignee. see Law Society Of Singapore V Chiong Chin May Selena [2005] Sghc 148

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bankruptcy does not, however, invariably connote dishonesty; nor does it preclude a solicitor from resuming practice once he had been discharged. the purport and intent of s 83(2)(c) of the lpa makes it amply evident that a solicitor who has been made a bankrupt, without being guilty of any impropriety, is not ipso facto denied a right to practise because of a prior act of bankruptcy or indeed, actual bankruptcy. a solicitor will have his name struck off the roll if he is found guilty of any of the acts or omissions specified in s 124(5) of the bankruptcy act (cap 20, 2000 rev ed) (“ba”). in this case, the respondent did not commit or omit to do any of the acts stated in s 124(5) of the ba. her bankruptcy was the direct consequence of her illness and clouded judgment. assoc prof leslie lim explained that her spendthrift habits were well-established symptoms of hypomania or mania.

(d) Undercutting – section 83(2)(d) … has tendered or given or consented to retention, out of any fee payable to him for his services, of any gratification for having procured the employment in any legal business of himself or any other advocate and solicitor; -

-

Promote fair professional practice amongst lawyers “Gratification” definition in Prevention of Corruption Act very wide: “[G]ratification” includes – (a) money or any gift, loan, fee, reward, commission, valuable security or other property or interesting property of any description, whether movable or immovable; (b) any office, employment or contract; (c) any payment, release, discharge or liquidation of any loan, obligation or other liability whatsoever, whether in whole or in part; (d) any other service, favour or advantage of any description whatsoever, including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary or penal nature, whether or not already instituted, an including the exercise or the forbearance from the exercise of any right or any official power or duty; and (e) any offer, undertaking or promise of any gratification within the meaning of paragraphs (a), (b), (c) and (d);

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Eg. Discounts in professional charges Note non-contentious proceedings under Solicitors Remuneration Order – charging on scale (got to keep within) Law Society v Lee Cheong Hoh [2001] 2 SLR 80 Facts: He was a former District Judge who went into private practice. He offered 10% kickback profit to another Raymond mak, only a clerk, who got him work from car workshops. Paid more than junior partners in the firm because of the firm! Raymond mak felt tt not paid enough, went to join another firm. Tried to get his files. In meantime, CPIB started to investigate this case. He was charged for forgery, went to prison. He also lodged complaint against lee cheong hoh. Lee cleimd did not pay him commission but performance bonus. Held: But in fact, this was in substance a commission. Eventually found guity and suspended. Note that under the rules you cannot share professional fees with an unqualified person. He was suspended for three years.

(E) Procured employment via agents – section 83(2)(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; Law Society of Singapore v Lau See Jin Jeffrey [1999] 2 SLR 215

Facts: A lot of conveyance work. Another firm, good knowledge of market in China-NewStart gave Jeffrey Lau 30% for every deal referred. Jeffrey Lau termed it as disbursement, service fee NOT part of legal fees. Later Jeffrey Lau wanted to rescind the agreement. NewStart lodged proceedings. >>”show cause” proceedings. Held: breach of section clearly. This was a fee being paid to get business. Look at the facts objectively. What was the intention of him entering into the agreement? >>> To benefit himself, therefore guilty under this section. Suspended for 5 years. Note: Under the rules, you cannot share fees with an unqualified person.

(F) Employment via Touting – section 83(2)(f) … has accepted employment in any legal business through a person who has been proclaimed a tout under any written law relating thereto; Lee Chong Ho v Law Society LCH: District Judge before going into private practice Employed Mark (clerk) who was familiar with accident cases. Gave Mark special employment contract: 10% more over basic contract. However Mark felt he was not being paid enough and lodged a complaint CPIB: charged, jailed and fined LCH Law Society took on the case later *Held: LCH was using Mark like a tout (or agent)  suspended for 3 years Law Society v Lau Sin Jee Jeffrey [1991] 2 SLR 215 *Held: Look at substance of transaction Agreement to get 30% of fees Sale & Purchase agreement, thus service fee is OK

(G) Improper delegation – section 83(2)(g) … allows any clerk or other unauthorised person to undertake or carry on legal business in his name, that other person not being under such direct and immediate control of his principal as to ensure that he does not act without proper supervision; Clerk or unauthorised person The question whether there has been an improper delegation. As it was put in a leading case it is whether the delegated tasks are merely ministerial or those which a Solicitor cannot delegate but to which he is bound to give his personal responsibility and skills.

(H) Misconduct unbefitting of the legal profession – section 83(2)(h) … has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession; -

New section (read: IMPT!) Potentially very very wide. Section 83(2)(h) is more of a catch-all provision. It can be invoked when the solicitor’s conduct does not fall within any of the other grounds but is nevertheless unacceptable. “Unbefitting conduct” less strict than “grossly improper conduct”. Law Society v Arjan Chotrani Bishan [2001] 1 SLR 684 Facts: Solicitor kept documents, refused to give them. 1) Misconduct under s. 83(2)(h) has to be conduct unbefitting of an advocate and solicitor

2) 3)

Standard of judgment to be applied as fixed by the court, not by peer judgment Solicitor would infringe this section if he was guilty of conduct such that it would render him unfit to remain as a member of an honourable profession

Unbefitting conduct from 5 Different Points of Views Unbefitting conduct Example(s) towards… 1. Court • False Affidavit • Intimidate witness (see section 152 Evidence Act) e.g. cross examination of witness without any foundation. 2. Law Society • Failed to implement undertaking to Law Society • Failure to file reports in time 3. Practice • Failed to give proper attention to client’s affairs • Charge improper fees • Drawing up excessive bills 4. Clients • Giving legal advice under the influence of alcohol • Taking advantage of inexperience (of clients) 5. Persons other than • False information to another solicitor clients • Grossly betraying client’s confidence • General offensive behaviour • Using foul language

(I)

Engaging in another profession/ employment which is incompatible with the legal profession – section 83(2)(i)

… carries on by himself or any person in his employment any trade, business or calling that detracts from the profession of law or is in any way incompatible with it, or is employed in any such trade, business or calling; -

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Especially if the solicitor holds a practising certificate! test – whether detracts from ur status as lawyer e.g. maid employment agencies/estate agencies (because of danger of touting)

SECTION 15 – ENGAGING IN ANOTHER PROFESSION has to satisfy 2 things: • the profession or business must be an honourable one • must not be calculated to attract business to him unfairly either it would be considered not an honourable profession, or it may be said that he is doing it merely to attract business to himself no objection to a solicitor taking on directorships in companies so long as he is not the executive director and also receiving remuneration for it: Rule 11 of the Legal Profession (Professional Conduct) Rules Executive appointment 11. An advocate and solicitor shall not accept any executive appointment in any company. -

can attend meetings and be paid director’s fees Re An Advocate [1964] 1 MLJ 1: • Was persuaded by a friend that there was a good market for ladies underwear • On his next trip, he took with him a sample of ladies undergarments and proceeded to advertise in the press giving his hotel room number for the potential customers to view the goods • Was charged for bringing the profession into disrepute and was suspended for a period

(J) Contravened provision of the LPA – section 83(2)(j)

… has contravened any of the provisions of this Act in relation thereto if such contravention warrants disciplinary actions; Note: section 71, LPA – Council is empowered to make rules Breach of such rules may result in disciplinary action Rules as to professional practice, etiquette, conduct and discipline 71. —(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 consult 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.

(K) Disbarred elsewhere than in Singapore – section 83(2)(k) … has been disbarred, struck off, suspended or censured in his capacity as a legal practitioner by whatever name called in any other country. Show cause • S. 83(2) of the Act sets out the circumstances under which a solicitor may be asked to “show cause”

(1)

An advocate and solicitor may be disciplined even thought the conduct or act in question had nothing to do with his character as a solicitor: Re Gopalan Nair [1993] 1 SLR 375 Gopalan Nair - Facts These show cause proceedings against the respondent Nair arose out of two letters he wrote to the AttorneyGeneral (AG). Nair had written the two letters after veteran lawyer and politician JBJ successfully appealed against a Singapore High Court decision to strike him off the roll of advocates and solicitors. Nair questioned the AG about the JBJ case and demanded certain explanations. On 27 September 1989, the AG lodged a complaint against Nair with the Law Society for writing the threatening letters. On 30 October 1989, Nair published the correspondence between himself and the AG by faxing the letters to various law firms in Singapore. Nair was referred to the disciplinary committee (DC) on two charges of having threatened the AG and on a further charge of falsely accusing the AG. The DC determined that cause of sufficient gravity for disciplinary action existed against Nair. Held, suspending the respondent from practice for two years: (1) Nair wrote the letters in his capacity as an advocate and solicitor, on a matter that concerned his profession. He was indisputably taking to task another member of his profession. An advocate and solicitor did not act in his professional capacity only when he acting for his client. It was misconduct if an advocate and solicitor were to threaten or abuse a judge. There was no difference in the nature of misconduct if the threat was uttered against the AG in respect of the latter’s professional duty. Similarly if an advocate and solicitor unjustifiably discredited his professional brethren, it would be an act done in a professional capacity. (2) An advocate and solicitor may be disciplined even though the conduct or act in question had nothing to do with his character as a solicitor. In this case, Nair’s letters sought to show that the AG was less than honest. Nair clearly showed himself to be on the war-path to ‘expose’ the AG. The threat was apparent. (3) The writing of offensive and abusive letters could subject a solicitor to disciplinary action. What Nair did were acts which rendered him liable to be disbarred or struck off the roll of the court or suspended from practice or censured if he were a barrister or solicitor in England. (4) The office of the AG, like that of a judge, was an essential pillar of our legal system and no advocate and solicitor should be allowed to undermine the integrity of that office. The misconduct here was serious. Nair was ordered to be suspended from practice for a period of two years. •

No requirement that the offence be connected in any way with the discharge of the solicitor’s professional duties: Re Knight Glenn Jeyasingam [1994] 3 SLR 531 Knight Glenn - Facts The respondent Knight was an advocate and solicitor. He pleaded guilty to a charge under s 6(c) of the

Prevention of Corruption Act (Cap 241). Knight was convicted and a disciplinary committee (DC) of the Law Society was appointed to hear and investigate certain complaints made against Knight. The amended charge against Knight in the disciplinary proceedings was that he was guilty of conduct implying a defect in character which made him unfit for his profession within the meaning of s 83(2)(a) of the Legal Profession Act (Cap 161, 1990 Ed). The DC concluded that the charge had been proven and that cause of sufficient gravity existed for disciplinary action against Knight under s 83(1) of the Act. Knight was accordingly called to show cause why he should not be dealt with under the provisions of s 83(1). He argued that he should be treated leniently on account of the mitigating factors in his case and also the prejudice allegedly caused by the time lag which elapsed before the commencement of disciplinary proceedings. Held, ordering that the respondent be struck off the roll: (1) Knight’s offence was not committed with the discharge of his professional duties as an advocate and solicitor and was of no mitigating value whatsoever. The charge against Knight required only that it be shown that he had been convicted of a criminal offence. It was immaterial whether or not the offence had involved him acting in his professional capacity. (2) The time lag before disciplinary proceedings were commenced against Knight did not constitute an “inordinate delay” on the part of the Law Society. The Society acted only with circumspection in seeking legal advice before bringing its disciplinary jurisdiction to bear on the respondent. Moreover, the allegation of prejudice caused to Knight was based mainly on conjecture. (3) Where the court had to consider the appropriate order to be made in respect of an advocate and solicitor convicted of a criminal offence, particularly one involving dishonesty, the paramount considerations must be the protection of the public and the preservation of the profession’s reputation. The court could only take note of the mitigating factors in so far as they were consistent with these two related objectives. (4) In the present case, Knight was, at the time of the offence, holding a position of considerable significance within the legal profession. His conviction of a crime of deceit wrought a negative effect on public confidence in the integrity of the profession. The court was of the view that it would be contrary to the interest of the public as well as those of the profession if he were not struck off the roll; and it was accordingly so ordered. •

In Re Mohd Jiffry Muljee [1994] 3 SLR 520, it was held that it would be an aggravating factor if the misconduct were to be committed in the course of the respondent’s professional duties as an advocate and solicitor Mohd Jiffry - Facts The respondent Jiffry was an advocate and solicitor. He was charged and convicted of six charges – four for conspiracy to commit criminal breach of trust and two for conspiracy to cheat – while acting owners of two plots of land which were being redeveloped. The Law Society then called on Jiffry to show cause why he should not be dealt with under s 83 of the Legal Profession Act (the Act). Held, ordering that the respondent be struck off the roll: (1) In this case, the convictions implied a defect in Jiffry’s character as they each involved fraud and dishonesty. Moreover, they were committed in the course of his professional duties as an advocate and solicitor. (2) Section 83(5) of the Act prevents the court from going behind the convictions at such proceedings. It was thus not open to Jiffry to argue that he was wrongly convicted. The sole question before the court was what consequences should flow from the fact that he had in fact been convicted of the offences charged. (3) The offences all involved fraud and dishonesty. They also involved large sums of money. Most importantly, the offences were carried out in Jiffry’s capacity as an advocate and solicitor. In view of. these facts, Jiffry was ordered to be struck off the roll of advocates and solicitors. 5.2

Scope of section 83

Law Society v Rick Tham [1999] 4 SLR 168 Tham acted for Indonesian client Lim, who wanted to purchase landed property (permission required) from Land Dealing Unit. Client cldnt get permission. Tham tried to get Singaporean nominee by name of steven to buy property and trust deed (M’s client: beneficiary nominee-trustee) for client (to get the property on client’s behalf) Client did not get permission again second time round The Singaporean nominee lodged a caveat against the property and the client subsequently lodged a police report.

*Held: Disciplinary action under s. 83 serves 3 functions – (1) Punishment of an errant solicitor (2) Deterrence against similar defaults by other like minded solicitors in future. (3) Protection of public confidence in the administration of justice (very impt – it is members of public who are worried – must restore public confidence therefore) Tham struck off. *How will the courts be guided (in determining appropriate punishment)? Case-by-case basis Law Society v Loo Choon Beng (OS 258/95) In considering the appropriate punishment to be meted out, the Court will consider the following – (1) Degree of culpability of the alleged conduct (2) Whether solicitor was motivated by dishonest intentions (This is important) (3) Whether the alleged conduct implied a defect of character as to make him unfit for the profession *Circumstances arising in disciplinary action? i. Dishonesty II. Not dishonest, but fallen below the required standards of integrity, probity and trustworthiness – Ravindra Samuel III. Conduct or act in question had nothing to do with character as solicitor – Re Gopalan Nair [1993] 1 SLR 275 IV. No requirement that offence be connected in any way with the discharge of the solicitor’s professional duties – Re Knight Glenn Jeyansingam [1994] 3 SLR 531 v. However, in Mohd Jiffry Muljee [1994] 3 SLR 520, it was held that it will be an aggravating factor if the misconduct were to be committed in his professional capacity. Ravindra Samuel [1999] 1 SLR 696 RS had a mental problem but still worked for the firm. He pocketed client’s payment and made a memo noting that client had not paid. The firm lodged a report against him and he was struck off the rolls. *Held by the Chief Justice: “A solicitor will almost invariably be struck off the roll where the charge against him involves proven dishonesty. If a solicitor has not acted dishonesty, but if is shown to have fallen below the required standards of integrity, probity and trustworthiness, he will nonetheless be struck off the roll, as opposed to merely being suspended, if his lapse is such as to indicate that he lacks the qualities of character and trustworthiness which are necessary attributes of a person entrusted with the responsibilities of a legal practitioner.” - Therefore, If a solicitor was not dishonest in any way but had fallen below the required standard of integrity, probity and trustworthiness, he can nonetheless be struck off the roll. RS’ lapse indicated he lacked qualities of character and trustworthiness. Above ratio has been used over and over again in discip cases Law Society of Singapore v Dhanwant Singh [1996] 1 SLR 429 Facts: The respondent was convicted in the District Court on three counts of abetting his clients to omit attending court by producing false medical certificates. It was not disputed that the convictions pertained to acts done by the respondent acting in his capacity as an advocate and solicitor and implying a defect of character which made him unfit for his profession, and that due cause had been shown. The only issue before the court was the question of determining the appropriate penalty as it was his partner, one Guru, who had effective control over the administration of the firm, and who was the prime mover of the arrangement whereby the false medical certificates were obtained. Guru himself had earlier been convicted in respect of other clients in the firm. He had been sentenced to three weeks’ imprisonment besides being fined $1000 unlike the respondent who had not been given a custodian

sentence. Guru had been dealt with under section 83(1) of the legal Profession Act (Cap 161) by being struck off the roll of advocates and solicitors. Held: Striking the respondent off the roll of advocates and solicitors that the principles of sentencing for a criminal offence had little relevance when it came to meting out the appropriate penalty for professional misconduct. An advocate and solicitor was an officer of the court. As such it was the bounded duty of every advocate and solicitor, no matter if he was the precedent partner in the firm or just a legal assistant or whether he had a great many years of practice behind him or just a few years, to uphold the integrity of the administration of justice in the courts and not to thwart it by delaying the judicial process by such nefarious means as the one in this case. The seriousness of the offences of which the respondent was convicted cannot be minimised on any account. When an advocate and solicitor intentionally abetted a client from delaying the judicial process, which very process it was his bounded duty to uphold. It showed an extreme defect of character. Bearing in mind that section 12(1) of the Act expressly provided that no qualified person was to be admitted as an advocate and solicitor unless he was of good character, a period of suspension even for the full period of five years would be neither adequate not appropriate. There was only one penalty appropriate in this case and that was being struck off the roll of advocates and solicitors. See also Law Society of Singapore v Ezekiel Caleb Charles James [2004] 2 SLR 256: Here he was in khattar wong. Hemade big mistake – dishonesty in dispute, he settled case when did not have auth to do so. No mandate given to settle partr case. But he had to get money to pay public trustee, so went to clients acct, took balance and paid the public trustee. Wrong. Cannot touch client’s account. Facts: He settled matter betond client’s mandate and he had to make good the money. He took the money from the general client’s account. He argued that he was stressed Held: Stress is part and parcel of the legal profession and cannot be an excuse for dishonesty. Law Society of Singapore v Loh Wai Mun Daniel [2004] 2 SLR 261: Where the case involves an offender of proven dishonesty, the weight to be attached to a plea in mitigation is negligible and a striking off would be the consequence as a matter of course. Principles and Cases: • The Law Society of Singapore v Dhanwant Singh:  Abetting his clients to omit attending court by producing false medical certificates  Implied a defect of character which made him unfit for his profession  Suspension was more appropriate than a striking off as it was his partner, Guru, who had effective control over the administration of the firm, and was the prime mover of the arrangement whereby the false medical certificates were obtained  Guru was sentenced to 3 weeks’ imprisonment besides being fined $1,000 and was struck of the roll of advocates and solicitors

(2) 

•

Principles of sentencing for a criminal offence had little relevance when it came to meting out the appropriate penalty for professional misconduct An advocate and solicitor was an officer of the court, was their duty to uphold the integrity of the administration of justice

(3) S. 12(1)(b) Legal Profession Act (the Act) expressly provides that no qualified person was to be admitted as an advocate and solicitor unless he was of good character, a period of suspension even for the full period of 5 years would be neither adequate nor appropriate  There was only one penalty appropriate in this case and that was for the respondent to be struck off the roll of advocates and solicitors Law Society of Singapore v Narinder Singh s/o Malagar Singh:  Respondent’s conviction for an offence under the Prevention of Corruption Act was a conviction which fell within s. 83(2)(a) of the Act Power to strike off roll or suspend or censure 83. —(2) Such due cause may be shown by proof that an advocate and solicitor — (a) has been convicted of a criminal offence, implying a defect of character which makes him unfit for his profession;

•

The Law Society of Singapore v Ravindra Samuel, held:  Invariably stuck off the roll where the charge against him involves proven dishonesty  If a solicitor is not shown to have acted dishonesty, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, he will nonetheless be struck off the roll, as opposed to merely being suspended, if his lapse is such that he lacks qualities of character and trustworthiness which are necessary attributes of a person entrusted with the responsibilities of a legal practitioner The Law Society of Singapore v Ong Ying Ping [2005] SCGH 120 & The Law Society of Singapore v Joseph Chen Kok Siang [2006] 1 SLR 273:  Both solicitors were suspended from practice for 2 and 4 years respectively after they intentionally misled the prison authorities  In Ong’s case, he tricked the prison officers into allowing the prisoner’s wife to be present at his interview with the prisoner by claiming that she was actually his assistant  In Joseph’s case, the solicitor was not allowed to interview his client regarding an offence the latter had committed in prison as it was an institutional disciplinary matter, he then pretended to be “just a friend” of his client’s when he accompanied his client’s grandmother on a visit that was supposed to be restricted to family, relatives and reputable friends only  Both got away with suspensions only because these were the first cases of their kind in Singapore  In Ong’s case, the court warned that any similar transgressions in future would be dealt with more severely

•

(4)

While an advocate and solicitor was expected to uphold his client’s interests fearlessly and to the best of his ability, that duty most definitely did not include taking the law into his own hands or warrant the giving of misleading information to public officers

5.3

Miscellaneous

I.

Mitigation does not matter with regards to disciplinary proceedings: Rick Tham (where dishonest, striking out is the ultimate punishment). See also Arjan Bishan. He said he was sick. Suffering from cancer, but that does not affect the decision of the three judges in the DP.

II.

Nothing to stop the Law Society from hauling up past conduct (s 83(5))

Section 83(5) In any proceedings under this Part, the court may in addition to the facts of the case take into account the past conduct of the person concerned in order to determine what order should be made.

III.

Where conviction is for a criminal offence, cannot go behind the offence and deal with it as a conviction per se! The conviction is taken to be ‘final and conclusive’ (s83(6))

Section 83(6) In any proceedings instituted under this Part against an advocate and solicitor consequent upon his conviction for a criminal offence, an Inquiry Committee, a Disciplinary Committee and a court of 3 Judges of the Supreme Court referred to in section 98 shall accept his conviction as final and conclusive.